In Re Estate Of Harry Douglas Graham

 

 

1941     Present: Moseley S.P.J.

 

In re ESTATE OF HARRY DOUGLAS GRAHAM

 

IN THE MATTER OF AN APPLICATION UNDER SECTION
68 OF THE COURTS ORDINANCE

 

Testamentary application-Transfer of case-Testamentary proceeding-Stamp

 

Ordinance (Cap. 189), Schedule A, Part III.

 

An application to the Supreme Court under section 68 of the Courts Ordinance for the transfer of a testamentary case from one District Court to another should be stamped under Part III. of Schedule A of the Stamp Ordinance.

 

THIS was an application for the transfer of a testamentary case under section 68 of the Stamp Ordinance.

 

H. V. Perera, K.C. (with him F. C. W. VanGeyzel), for appellants.-The question for decision is whether applications to the Supreme Court under section 68 of the Courts Ordinance, Chapter 6, for sole testamentary jurisdiction and for the transfer of testamentary cases should be stamped under Part III. of Schedule A, of the Stamp Ordinance, Chapter 189, as the appellants contend, pr as the Crown claims, under Part II, which contains the duties on civil proceedings in the Supreme Court.

 

The application for sole testamentary jurisdiction is the foundation of a testamentary proceeding for administering the estate of a deceased who has died out of the Island ; it has no significance except in relation to testamentary matters in which the Supreme Court has no original juris­diction. Accordingly, the schedule appropriate to it is that contained in Part III. according to which the relevant documents have been stamped. A review of earlier legislation supports this view. Part II. of the Stamp Ordinance of 1861 contained inter alia two schedules of duties on civil proceedings in the Supreme and the District Courts, and each schedule contained a footnote as follows :-" Testamentary proceedings shall be charged in the class corresponding with the value of the estate . . . ." ; there was also a schedule in Part III. enumerating a few items "containing the duties in testamentary proceedings, on probates of wills and letters of administration ", and it is clear, therefore, that the Legislature intended that proceedings in the Supreme Court relating to testamentary matters outside Part III. should be stamped as civil proceedings in the Supreme Court.

 

The Ordinance of 1861 was, however, replaced by Ordinance No. 3 of 1890. The items in Part III. are substantially the same as those in the present Ordinance, the footnotes to the schedules relating to proceedings

 

in the Supreme and District Courts were deleted and Part III. was enlarged, indicating that thereafter the duties on testamentary proceed­ings were to be governed entirely by Part III. This was the view taken by the Supreme Court in the case of Re estate of Ma

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