In Re: Indian Succession Act and last Will and Testament of Emma Sarah Sibthorpe, (died) etc. Leslie Devison Miller

Balakrishna Aiyar, J.—The facts immediately relevant are these. On 31st December 1929 one Annie Sibthorpe executed a will whereunder

she left her property to her two sisters Louisa Sibthorpe and Emma Sarah Sibthorpe. Annie Sibthorpe died on 19th February 1932. Louisa

Sibthorpe made her last will on 15th July 1948 and she died on 11th September 1950. On 10th June 1932 Emma Sarah Sibthorpe executed a will

where under she nominated Louisa Sibthorpe and Nathaniel to be her executor. Emma Sarah Sibthorpe died on 17th December 1932. Probate of

all these three wills was obtained at various times in the High Court of Judicature in Eire. The petitioner Leslie Devison Miller holds a power of

attorney from the executor of the will of Louisa. Nathaniel, one of the two executors under the will of Emma Sibthorpe took no interest in the

matter and the residuary legatee of her estate is the church of Ireland. Leslie Division Miller holds a power of-attorney from "" the representative

body of the Church of Ireland."" On the strength of these powers of attorney Mr. Miller has applied for Letters of Administration with the will

annexed of the properties of Annie Sibthorpe, Emma Sarah Sibthorpe aid Louisa Sibthorpe in this country. Now, part of the property devised

under the wills of these three individuals are some shares in the Bucking ham and Cannabic Mills and also in the Impartial Bank. Between the dates

of the death of the individuals and the date of the present application the dividends payable in respect of these shares were from time to time

remitted abroad.

The first question I have to decide is whether on the dividends that were so remitted duty is payable by virtue of S. 56 of the Court Fees Act

XIV of 1955 So far as is now material that section runs as follows :

The fee chargeable for the grant of probate or letters of administration shall comprise a fee at the rate or rates prescribed in Art. 6 of Sch. 1,

computed......(b) where the application is made after the expiry of one year from such date, i.e., the date of the death of the testator, on the market

value of the estate on the date of the application.

It seems to me to be plain beyond dispute that ordinarily the estate of a person as on a certain date would, in the eye of law, be the original

CORONA plus all the accretions that have been lawfully made to it less everything that has been lawfully taken away '' form it, Now, the dividends

payable on the shares which the deceased individuals held in the Bucking ham and Carnation Mills and in the Imperial Bank would therefore

naturally form accretions to the estate unless they have been lawfully subtracted from it. It is true that certain individuals in this country remitted the

dividends abroad. But, so Ear as I can see, they had no legal authority to do so, since they were only inter me doers with the estate, and in

consequence those dividends must be considered to be accretions to the estate. The result follows that duty must be paid on them.

The learned Assistant Government Pleader cited a number of English easels before me, but I shall refer to only two of them. The first is reported

in Attorney General v. New York Breweries Co. 1698 1 Q.B.D. 205 The head note gives an adequate summary of the case :

Upon the death of a testator, resident and domiciled in America, shares and debentures in an English Company, of which he was the registered

holder in the books of the company in London passed by his Will according to the law of his domicile to his executors in America. At their request

the company registered them as the holders of two shares and a debenture in the place of the deceased, and paid to them the dividends and

interest due upon the shares and debentures at the time of the testator''s death. The executors'' to the knowledge of the company, bad not

obtained, and did not intend to obtain, probate of the will in England : Held; that the company, by so dealing with the assets of the testator in

England, constituted themselves executors de son tort, and were liable, upon an information filed by the Attorney General, to pay to the Crown

probate duty upon the assets so administered by them.

The observations of Rigby L.J. on page 220 are also of interest:

By English law, with which algae we are concerned in this case, probate duty is payable in respect of all assets of a deceased person, whether

domiciled or resident within this country or not, which are within the meaning of the numerous decisions on this point locally situated in England.

This decision was affirmed in New York Breweries Co. v. Attorney General 1899 A.C. 62.

It was argued on behalf of the petitioner that the money has gone abroad, and since it is not here it is not liable to pay duty. In my opinion the

fact that the money baa been remitted abroad makes no difference. As the Lord Chancellor observed in page 70 in New York Breweries Co. v.

Attorney General 1899 A.C. 62.

The company therefore, being now in possession of the share of the profits which belonged to the deceased person, are bund to see that they do

not hand it over, or hand over anything that it represents it, to any person who is not entitled to deal with it. That is their duty according to their

constitution and according to law, because they are in possession of something which is available as assets of the testator''s estate, bona nolabilia in

this country.

In the present case, when the dividends were sent abroad, whoever sent them did so without legal authority in that behalf. Such a deduction

from the estate of the deceased, is an unlawful one and cannot be recognised for purposes of duty. The duty must, therefore, be paid in respect

also of these dividends.

So far as the application for Letters of Administration on behalf of the estate of Emma Sibthrope is concerned there is a further difficulty. The

executor Nathaniel is alive and he has not formally relinquished his office. Nor is he legally incapable of acting. That being so the residuary legatee

has no power to act and a power of attorney which he has granted does not place the petitioner in any better position. S. 222 of the Succession

Act makes it clear that probate can be granted only to the executor appointed under the will. S. 229 says:

When a person appointed as executor has not renounced the executorship, letters of administration shall not be granted to any other person until a

citation has been issued, calling upon the executor to accept or renounce his executorship.

The application for Letters of Administration, so far as it relate to the Will of Emma, cannot, there fore, be entertained. In respect of the other

applications, additional duty must paid to the extent indicated above. Time to pay is two months.