104-NLR-NLR-V-02-EDIRISHAMY-et-al-v.-DE-SILVA.pdf
( 242 )
1896.
November 27and
December 10.
EDIRISHAMY et al. v. DE SILVA.
D. C., Gaik. 3,482.Executors and administrators—Their liability for costs of unsuccessfulaction brought by them as such—Civil Procedure Code, s. 474—English Law on the subject..
When an executor or administrator brings an action for thebenefit of his testator’s or intestate’s estate and fails,' and is orderedto pay the costs, those costs can, both under section 474 of theCivil Procedure Code and according to the English Law whichgoverned cases of the kind before the passing of the Code, berecovered from him personally and not from the estate.
'JpHE facts of the case appear in the judgment of Bonser, C.J.
Wendt and Peiris, for appellant.
Sampayo, for respondent.
10th December, 1896. Bonser, C.J.—
The short question in this case is, whether when an executor oradministrator brings an action for the benefit of his testator’s orintestate’s estate and fails, and is ordered to pay the costs, thosecosts can be recovered from the estate, or whether they are onlyrecoverable from him personally ?
In the present case the executrix, who had been married in com-munity and had made a joint will with her husband, the testator,whereby certain lands, the property of the community, were settledon the survivor for life with remainder to the children, broughtan action in respect of certain lands belonging to the estate, andwas condemned to pay the costs.
The interest of the executrix in the land, the subject of thispresent action, being part of the settled land, was accordingly soldby the Fiscal for payment of these costs, and the Fiscal conveyed tothe purchaser that interest.
The present plaintiffs thereupon brought an action to recover theland from the purchaser, and the Acting District Judge gave judg-ment in their favour, on the ground that the decree for costs wasonly against the executrix personally.
. On an appeal to this Court the action was dismissed as premature,on the ground that the purchaser was entitled to the interest of theexecutrix; which was in any event at least a life-interest, and that,therefore the plaintiff had no cause of complaint until her death,but that if he then declined to<give up possession it would be timeenough to assert their rights. '
The executrix has. now died, and the defendant refuses to giveup possession.
( 243 )
I am of opinion that the exeoutrix was liable personally for the l???*costs of the unsuccessful action, and that it made no difference Nove^r 117that the action was alleged to be brought for the benefit of the December, 10.testator’s estate, but with this the defendant had nothing to do. ^^ j
Since the passing of the Civil Procedure Code this is dearly so,for section 474 expressly provides in the case of an action broughtby an executor or administrator in right of his testator or intestatethat the plaintiff is to be liable as though 'he were suing in his ownright upon a cause of action accruing to himself, and that the costsare to be recovered accordingly.
This case occurred before the passing.-of the Code, but the EnglishLaw does not allow a defendant to recover his costs from the estateof the deceased in such cases, and in my opinion that law shouldgovern the present case. The Fiscal therefore could not sell orthe petitioner buy more than the personal interest of the executrixin the settled land, that is to say, a life-interest. That interest hasdetermined by her death, and the plaintiffs are entitled to judgment.
Lawrie, J —
It is not without considerable hesitation that I agree to set asidethis decree of dismissal and to give judgment for the plaintiffs asprayed for.
The question to be decided seems to me to be,, when judgmenthas been pronounced against a woman who styled herself widow andexecutrix, and who was in fact the duly recognized executrix of herdeceased husband, and when in execution of that decree againsther a part of the testator’s estate was sold in execution, whetherthat sale can be challenged successfully by the heirs of the deceased,unless they can show misconduct on the part of the executrix in thataction in which she was unsuccessful.
I do not doubt that an executor or administrator is personallyliable in costs of an action, but it is equally well established, lawthat executors and administrators, like other trustees fairly con-ducting themselves, are entitled to their costs out of the estate.
I know nothing of the action in which the executrix failed. Ido not know whether it was one which she did right or did wrong tobring. It was (I understand) one in which if she had been successful,that success would not have been her personal success, but wouldhave benefited the estate. I do not know whether she got theapproval of Ithe District Court, as a Court of testamentary juris-diction,‘to charge these costs against the estate ; whether the Courtapproved expressly or tacitly the sale of this land to satisfy thedecree for costs.
( 244 )
1806.
November 27and"4
December 10.Lurra, J.
The executrix is dead; the facts of this case were not investi-gated. A question of law was put, and I cannot but agree in theanswer given to that question by the Chief Justice. As I said, Iam not sure that that was the right question, and whether (if thefacts had been inquired-into) it would not have been found thatthe defendant had both law and equity on his side.
Another point on which I feel much difficulty is, assuming thatthe estate of the deceased testator could not be sold to satisfy thecost due by the executor, did not the sale, in execution of whichthe defendant purchased the widow and executrix’s interest, carryto him the widow’s one-half of the land, not merely her life rentof the whole bity the half which fell to her on her husband’s deathby virtue of the then existing law of community ? Did that notremain subject to her debts ? Was it not liable to be seized by hercreditors ? Can .those whom she had designated in the joint willas her heirs to that half have rights superior to those of creditors. in debts she contracted after her husband’s death ?
I find that a difficult question.
These, doubts however give way before the clearly expressedstatement of the law by the Chief Justice, and I formally concurin the proposed judgment.