055-NLR-NLR-V-05-PINTO-v.-FERNANDO.pdf
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PINTO v. FERNANDO.D.C., Chilaw, 99.
180].July 3.
Curator—Civil Procedure Code, s. 585—Application of mother to be appointedeuratriz over property of her minor children by her first husband.
Under section 685 of the Civil Procedure Code, a mother who hasmarried a second time may be appointed euratriz over the property ofher minor children of the first bed.
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HIS was an appeal from au order of the District Judge ofChilaw disallowing Hie application of the appellant- to be
Appointed euratriz over the property of her minor children. Heheld that, as she had married a second time, her status as amarried woman debarred her from entering upon the duties of aeuratriz.
Fan Langenberg. for appellant.—The Court below relies upon2 Thomson 8 Institutes, p. 53, where it is stated on the authority ofVanderlinden that all women are disqualified, except the motherand grandmother, so long as they do not marry again. Thisdisqualification does not exist now. A married woman can haveseparate property, and it can be seized in execution. Section 475of the Civil Procedure Code shows that she can become executrixor. administratrix, and section 582 does not state any disqualifica-tions at all as regards curatorship.
3rd July, 1901. Moncreiff, J.—
In this case the District -Judge considered that he was unableto appoint the mother to be the curatrix of her minor children,on the ground that, her husband having died, she married asecond time. The authority upon which he went is a passagein 2 Thomson’8 Institutes, p. 53, which cites another passage inVanierUden's Institutes, p. 33 of the third edition. Thesepassages are to the effect that the mother is only eligible forappointment- as curatrix so long as she does not- contract a secondmarriage. Such may have been the Common Law of Ceylon; butwe now have to do with section 585 of the Civil Procedure Code,which provides that, when no person claims a- right to havecharge of a minor's property by virtue of a will or deed, the Courtmay appoint any near relative of the minor who is willing toundertake the trust, and is a fit person for that purpose.
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1901.
July 3.
Moncreiff,
J.
In my opinion that provision gives the District Judge thepower to appoint the appellant in this case in his discretion ascuratrix of the minors. There may be circumstances in whichthe fact that the mother has married a second time ought to betaken into consideration in making the appointment; but apartfrom that, the exercise of the judge’s discretion is unfettered.
Lawrie, A.C..J.—I quite agree, and would direct the DistrictJudge to reconsider the case on its merits and deal with itaccording to law.
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