090-NLR-NLR-V-41-DE-SILVA-et-al.-v.-DE-SILVA.pdf
de Silva v. de Silva.
361
1940Present: Soerlsz and Hearne JJ.
DE SILVA et al v. DE SILVA.
33-^D. C. Gdlle, 36,337.
Prescription—Action to recover legacy—Cause of action arises on deathof testator.
A cause of action to recover a legacy accrues on the death of thetestator.
T
HIS was an action to recover the value of a legacy. The solequestion argued in appeal was whether the action was prescribed.
L. A. Rajapakse (with him M. M. I. Kariapper and H. A. Wijemanne),for the plaintiffs, appellants.—The action is not prescribed. The questionis whether the cause of action arose on the death of the testator or on theissue of probate or on the sale of the property. It cannot possibly be saidthat it accrued on the death of the testator. If, then, it arose either onthe issue of probate or on the sale of the property, the minority of someof the plaintiffs would interrupt prescription in their favour.
The period of prescription in this case is ten years. Section 5 of thePrescription Ordinance (Cap. 55) is applicable. The executor is in.theposition of a trustee—Eheliyagoda v. Samar adiwakara ’, Assail to et al. v.J. W. Fernando'. Further, when section 111(1)(a) of the Trusts
Ordinance is read with section 90, it can be argued that the defendantcannot plead prescription, because he is in the position of a trustee who hascommitted a fraud. See also Soar v. Ashwell *.•
The District Judge’s interpretation of Fernandoi v. Soysa ‘ cannot bejustified. Section. 554 of the Civil Procedure Code regarding the personalliability of the executor one year after the issue of probate, and section 720(b) are intended for the benefit of the devisee and cannot be used adverselyto him. For English law on the point, see 14 Laws of England (Hailsham)p. 339, para. 632.***
Finally, the view is possible that prescription commences only at thedate of the judicial settlement of the estate. The executor is the represent-ative of the deceased. Prescription would begin to run from the datewhen notice is given to everybody that the estate is closed. Judicialsettlement has not yet been reached in the testamentary case.
H. V. Per.era, K.C. (with him G. P. J. Kurukulasooriya), for thedefendant, respondent.—This case falls under section 9 of the PrescriptionOrdinance and the period of limitation is two years. Under section 9prescription would run notwithstanding minority. At best, the casecomes within section 10 and is barred in three years.
In the case of a legacy time begins to run from the date of the death ofthe testator—14 Laws of England (Hailsham) p. 341, para. 638. Thedevisee obtains title and can institute action soon after the testator’sdeath, Cassim v. Marikkar Silva v, Silva et al°. It is not necessary forhim to wait until the executor obtains probate ; it is for the executor toclaim certain powers over the property when he is sued, Fernando v. Soysa
' (1919) 22 N. L. R. 179.* (1896) 2 N. L. R. 40.
1 (1906) 1 Bol. Rep. 174.5 (1892) 1 S. C. R. 180.
» (1893) 2 Q. B. D. 390.• (1907) 10 .V. L. R. 231.
362
SOERTSZ J.—de Silva v. de Silva.
(supra). The words “ no action shall be maintainable ” in section 547 ofthe Civil Procedure Code does not amount to the same thing as “ No action■shall be instituted ”—Alagakawandi v. Muttumal
The question of a trust under section 90 of the Trusts Ordinance cannotbe raised on the present action. There is no averment in the plaint thatthe executor has gained an advantage for himself. Concealed- fraudreally gives rise to a new cause.of action, Dodwell & Co., Ltd., v. John et aV,Fernando v. Peiris
L. A. Rajapakse in reply.—The cause of action is the non-performance ofthe legal obligation imposed on the executor.' An action cannot bebrought against an executor till he either proves or intermeddles, Light-wood on Limitations (1909 Ed.) 206; 14 Laws of England (Hailsham)p. 329, para. 612. The- passage in Halsbury cited on behalf of therespondent refers to an immediate legacy.
Cur. adv. vult.
April 15, 1940. Soertsz J.—
On the last occasion on which this case came up on appeal, Keuneman J.held that in the absence of a contrary intention in.the Will, the executorwas bound by our law to discharge a mortgage created by the testatorover a land devised by him, so that the legatee might take the legacy freefrom encumbrances. Maartensz J. agreed:
The case was remitted to the trial Court for the determination of issueNo. 8, namely, “ Is the plaintiffs’ claim prescribed ?” The trial Judge hasanswered that issue in the affirmative, and the present appeal is from thatfinding.
Counsel for the appellants contended before us (a) that it was section 5of the Prescription Ordinance that applied in this case because, he sub-mitted, the action was one to compel the performance of a trust, and assuch, was not barred till ten years had elapsed. In this instance, theaction was instituted on October 25, 1937, and was, therefore, within timeeven if the correct view is that the cause of action to recover a legacyaccrues to the legatee on the death of the testator. The testator died onApr! 3, 1931. He contended, however, (b) that the correct view is thatthe cause of action in a case like this accrues when the executor puts itbeyond his power to pay the legacy. In this case that happened only inFebruary, 1933, when the executor, although he had funds sufficient Vopay the amount due on the mortgage to which the land devised was subjectpermitted it to be sold in execution, (c) Alternatively, he contendedthat no cause of action arose (1) till the executor obtained probate onOctober 18, 1932, or (2) till Final account was filed on February 11, 1936 ;or (3) till the estate was declared closed on October 28, 1937.
Counsel for the respondents submitted that this action was, in reality,an action for damage and, as such, barred by section 9 of the PrescriptionOrdinance in two years, or, at best, that it was within section 10, and wasbarred in three years. In either case, the plaintiff came into Court toolate, for, he contended, the cause of action arose on the death of thetestator.
1 (1020) 22 A". L. R. 111.* (1'JIS) 20 A'. L. R. 200.
={1931) 32 -V. L. R. 1.
Sivasambu v. Nugawela.
363
After careful consideration of the questions raised by the appellants’Counsel, I have come to the conclusion that section 5 of the PrescriptionOrdinance has no application at all. There is no express trust here, nois there such a constructive trust as is put upon the footing of an ExpressTrust by the English Law. I am also of opinion that the cause of actioncannot depend upon such uncertain, or at least such indefinite events asthe obtaining of probate, or the filing of the Final account, or the so-calledclosing of estate. The correct view seems to be that taken by the trialJudge, and contended for by the respondent, namely, that a cause of actionto obtain his legacy accrues to a legatee on the .death of the testator.That certainly is the view taken by the English Law. See 14 Laws ofEngland (Hailsham) p. 341 and the cases cited there, and that is theview implied in the local cases, Cassim v. MarikarSilva v. SilvaAlagakawandi v. Muttumal*, Fernando v. Soyza
In this view of the matter, prescription began to run when the testatordied on April 3, 1931, that is to say, in the life time of legatee, and itwas not interrupted by the fact of the minority of her children, at the timeof her death some thrtee weeks later.
The appeal, therefore, fails and must be dismissed with costs.
Hearne J.—I agree.
Appeal dismissed.