CHAN PAK MAN v. CHAN PANG FEE AND ANOTHER

bjbj CACV000147/1980 Executors and Administrators - contract by husband of deceased to sell land "as proposed administrator" - minority interests - Letters of Administration subsequently granted to husband and another - husband purporting to ratify contract after grant - contract to sell not a "conveyance" within s.54 of Probate and Administration Ordinance - one of several administrators cannot bind estate by contract to convey unless duly authorised - husband did not purport to contract on behalf of co-administrator - doctrine of relation back applies to contract only if contract in interests of estate - co-administrator and beneficiaries opposed sale - contract not in interests of estate and not enforceable. Dates of hearing: 23rd, 24th and 25th February, 1981 and 18th June, 1981 W. Goodhart, Q.C. & J. Bleach (C.P. Lin & Co.) for Appellant. Miss G. Li (David Y.Y. Fung & Co.) for 1st Respondent. C. Ching, Q.C. & K. Kwok (Philip K.H. Wong & Co.) for 2nd Respondent. IN THE COURT OF APPEAL 1980 No. 147 (Civil) BETWEEN CHAN PAK MAN Appellant (1st Defendant) CHAN PANG FEE 1st Respondent (Plaintiff) LEE HSIN I 2nd Respondent (2nd Defendant) ----------------- Coram: Sir Alan Huggins, V.-P., Leonard, J.A. and Baber, J. Date of hearing: 23rd, 24th and 25th February, 1981 and 18th June, 1981 Date of Judgment: 18th June 1981 ----------------- JUDGMENT ----------------- Leonard, J.A.: This is an appeal from the judgment of and orders made by Mr. Justice Liu whereby he held that an agreement of sale and purchase made between the first and second respondents dated 8th March 1978 bound the estate of CHAN HO Fung-yee deceased and the administrators thereof and that whether or not the agreement did so bind the estate and its administrators orders should be made under section 54(1) of the Probate and Administration Ordinance ordering the execution of a conveyance to give effect to the said agreement. The deceased died intestate on the 14th June 1977 leaving, her surviving, her husband CHAN Pang-fee (the 1st respondent), her son CHAN Pak-man (the appellant) and four other children. Minority interests arose under her intestacy, her youngest child not obtaining his majority until 7th January 1980. Her estate consisted of money deposited in banks ($131,464.16); shares in public and private companies valued for the purposes of estate duty at $747,660; jewellery so valued $36,625; three leasehold properties (including the premises the subject matter of these proceedings which were so valued at $725,000) valued at $945,000. The premises the subject matter of these proceedings ("the flat") were subject to a mortgage and the amount due thereunder was $217,310.97. Due to an unexplained delay letters of administration to her estate were not issued until 4th January 1980 when they were issued to the 1st respondent and the appellant. The 1st respondent had instructed solicitors Messrs. K. Y. Woo & Co. to apply for them as early as December 1977 and had paid estate duty and interest in the sum of $152,065.80 out of his own pocket in May 1978. At all material times the flat has been used as the family home. On the 8th of March 1978 the 1st and 2nd respondents entered into an agreement in writing whereby the 1st respondent therein described as "the proposed administrator of the estates (sic) of HO Fung-yee deceased" agreed to sell the flat to the 2nd respondent for $960,000 and deposited with Messrs. Philip K. H. Wong & Co. solicitors who acted for both vendor and purchaser the sum of $96,000 as stakeholders. The agreement having recited that " the vendor who is the husband of the said deceased has instructed Messrs. K. H. Woo & Co. solicitors to make application to the High Court for letters of administration of the estates of the said HO Fung-yee deceased in respect of the premises hereinafter agreed to be sold" contained clauses recording agreement to sell the flat, the purchase to be completed at the expiration of a fourteen days' written notice to be sent by the 1st respondent to the 2nd respondent informing the purchaser that letters of administration had been obtained. It also contained the following proviso " Provided always that if the vendor shall have failed to obtain the said letters of administration on or before the 31st day of December 1978 the purchaser shall be entitled either to extend the date of completion to such time as the purchaser may decide or to rescind the sale and purchase hereof. In the latter event all deposit paid hereunder shall be returned to the purchaser and the vendor shall pay to the purchaser interest on the said deposit at the rate of 0.5% per calendar month calculated from the date hereof." The agreement contained a further clause reading " 18. The vendor is selling as the proposed administrator for the purpose of administering the estates of the deceased." In view of the course the appeal before us has taken Clauses 4, 7 and 8 of this agreement are relevant. They read: " 4. If the Purchaser shall make and insist on any objection or requisition either as to title conveyance or any matter appearing on the title deeds or particulars or conditions or otherwise which the Vendor shall be unable or on the ground of difficulty delay or expense or on any other reasonable ground unwilling to remove or comply with or if the title of the Vendor shall be defective the Vendor shall notwithstanding any previous negotiation or litigation be at liberty to annul the sale in which case the Purchaser shall be entitled to the return of the deposit but without interest costs or compensation. 7. If the Vendor shall (for any cause save as herein provided) fail to complete the said sale in accordance with the terms hereof then the said deposit shall be returned to the Purchaser who shall also be entitled to recover from the Vendor such damages (if any) over and above the said deposit as the Purchaser may sustain by reason of such failure on the part of the Vendor and it shall not be necessary for the Purchaser to tender an Assignment to the Vendor. 8. Nothing in this Agreement shall be so construed as to prevent the Purchaser from bringing an action and obtaining a decree for specific performance either in lieu of the aforesaid damages or in addition thereto." By letter dated 20th December 1978 the 1st respondent was given notice that completion "is extended until the said letters of administration have been obtained". On the 4th January 1980 letters of administration were granted to the appellant and the 1st respondent. On the 16th January 1980 Messrs. Ronald Wong & Co. solicitors for the 1st respondent informed the 2nd respondent that they had been issued and it was therefore the contention of the 2nd respondent that completion of sale should have taken place on the 30th January 1980. Since minority interests were involved administration could not be granted to less than two individuals and administration was in fact granted to the appellant and the 1st respondent. The 2nd respondent was until 16th January 1980 unaware of the existence of the minority interests and of the fact that the appellant was a co-administrator of the estate. On the 24th January 1980 the 2nd respondent tendered to the solicitors for the administrators the balance of the purchase price under the contract and on the same day was told that the appellant would not consent to the sale. On the 20th February 1980 she commenced proceedings for specific performance of the contract and for damages and on the 10th March applied for judgment under 0.86 r. 1. On the 21st February 1980 however the 1st respondent, having unsuccessfully sought the concurrence of the appellant and the other children entitled to share to the completion of the contract, took out originating summons No. 155/80 the judgment upon which is the subject of this appeal. The appellant was the 1st defendant to that summons and the 2nd respondent the 2nd defendant. In prayer 1 of that summons the 1st respondent sought confirmation of the agreement for sale and an order that the 1st respondent and the appellant as administrators of the estate of the deceased be at liberty to carry it into effect and that all necessary and consequential directions be given to that end. In the second prayer the 1st respondent claimed in the alternative a direction that the title of the respondent as vendor was defective and that he be at liberty to annul the sale under Clause 4 of the agreement. It was common case that as at the date of death the market value of the flat was $725,000, that as at the 8th March 1978 it was $960,000 and that by January 1980 it had risen to $2,250,000. By the time the summons was heard its value had risen to something in the neighbourhood of $2,500,000. In March 1978 the 1st respondent was unaware that letters of administration could not be granted to him as a single individual. He was not advised of this by solicitors instructed to apply for administration nor by the solicitors acting for both parties in drafting the agreement nor was the 2nd respondent told of the existence of a minority interest. The solicitors acting for both parties on the preparation of the contract of sale were not the same as those acting for the 1st respondent in connection with the application for letters of administration. The trial judge concluded that the agreement for sale bound the estate and the co-administrator (the appellant) and that the appellant could be compelled "to join in for completion" and gave consequential directions. He considered that "the price differential cannot be an overriding consideration" and that "the transaction was entered into at arm's length on proper advice and for an adequate consideration. The sale was then for the benefit of the estate and in due course of administration." The penultimate paragraph of his judgment reads: " It is quite unnecessary for me to consider prayer (2). I am grateful to both counsel for the assistance that they have generously given me, and it is no discourtesy to Mr. Miller's organized argument that I do not propose to deal with the second prayer at any great length. I have been referred to Bain v. Fothergill and Malhotra v. Choudhury. Clause 4 of the said Agreement for Sale and Purchase contains provisions for inter alia an objection to title or conveyance as well as a defective title. If I came to the conclusion that the sale could not, for any reason, be completed, I would feel disposed to hold that the plaintiff has used his best endeavours to fulfil his contractual obligation and that his failure falls within the wide provisions of clause 4 of the said Agreement for Sale and Purchase; in which event I would feel justified to make the declaration sought in prayer (2) of the originating summons." Earlier in his judgment he had this to say: " The plaintiff is an honourable man and has no desire of taking advantage of the rising market. He is anxious to complete the sale." and considers the bargain struck at that time of the Agreement for Sale and Purchase as being fair and reasonable. He regrets that the 1st defendant as his co-administrator has declined to concur in the completion of the sale. He has been advised that the said Agreement for Sale and Purchase does not bind the estate of the intestate and that he cannot compel the concurrence of the 1st defendant. He has endeavoured to solicit but in vain the cooperation of his other children. He has instituted these proceedings with the primary object of securing an order of the court for implementing the sale under the said Agreement for Sale and Purchase by a conveyance. Through leading counsel, the plaintiff eloquently urged the court to approve and confirm the sale under the said Agreement for Sale and Purchase which he entered into in good faith. He has done all that can reasonably be expected of him to perfect his title or remove any hindrance in matters of conveyance. As a last resort, the plaintiff would seek an annulment of the sale pursuant to Clause 4 of the said Agreement for Sale and Purchase." It is to be noted that apart from the attitude taken by the first respondent in the court below there was little in the way of evidence before the court, other than his averment that he had tried to obtain the concurrence of his children, to indicate the absence of a desire to take advantage of a rising market. In view however of the refusal of counsel for the 2nd respondent to cross-examine him on this aspect and of the strenuous argument (which found approval with the trial judge) advanced by his counsel that the sale should be confirmed I can see no reason for disagreeing with the view expressed by the trial judge in the paragraph last quoted. By means of a respondent's notice however the 2nd respondent has indicated her intention, in the event of the appeal being allowed, of contending that the application in terms of paragraph 2 of the originating summons should be dismissed. I will deal with this contention in due course. Counsel for the appellant must succeed in the appeal if he can satisfy this court of the correctness of either of two contentions viz. (a) that if there be a minority interest one of two administrators does not have power to enter into a contract for sale of immovable property binding on the estate without the consent of the other or (b) if he does, that the estate could not be bound by this particular contract entered into as it was before letters of administration were granted. In support of the first contention he referred us to sections 25, 54, 62(1) and 65 of the Probate and Administration Ordinance and contended that read in context the word "conveyance" in section 54 should be read as including every step leading to the transfer of immovable property. Section 25 restricts the grant of administration (if there be a minority or if a life interest arises) either to a trust corporation, with or without an individual, or to not less than two individuals. Section 62 provides that the immovable property of an intestate shall be held by his personal representatives upon trust, subject to section 54, to sell the same with power to postpone the sale for such a period as the personal representatives may think proper. Section 65(1) is again expressed to be subject to section 54 and provides that every contract entered into by a personal representative in the due administration of an estate shall be binding on and be enforceable against and by any other personal representative for the time being of the deceased. Section 54 reads: " 54. (1) No conveyance of immovable property of a deceased person dying after the commencement of this Ordinance shall be made without the concurrence of all the personal representatives of the deceased or an order of the court. (2) Notwithstanding subsection (1), where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, any conveyance of the immovable property may be made by the proving executor or executors for the time being, without an order of the court, and shall be as effectual as if all the persons named as executors had concurred therein. (3) Save where subsection (1) or (2) applies, where there are several personal representatives the powers of all may, in the absence of any direction to the contrary in the will or grant of administration, be exercised by any one of them. (4) A personal representative may charge, mortgage or otherwise dispose of any property vested in him, as he may think proper, subject to any restriction which may be imposed in this behalf by the will of the deceased and to the provisions of this section: Provided that an executor may dispose of any property notwithstanding any restriction so imposed, if he does so in accordance with an order of the court. (5) The disposal of property by a personsl representative in contravention of the provisions of this section shall be voidable at the instance of any other person interested in the property." As I understood him counsel for the appellant conceded that if the 1st respondent had power acting alone after grant to enter into an agreement for sale of immovable property he had power to ratify such an agreement entered into by himself before grant. In this respect he drew no distinction between the power to make a contract and the power to ratify one. Again he accepted that if the 1st respondent could have ratified this particular agreement (which he disputed) the 1st respondent had done so. The problem on this limb of his argument can therefore be simplified to the question whether one of two administrators has power, after a grant has been made to him and another jointly, to enter into a contract for sale binding on the estate without the concurrence of the other. In the consideration of this question the basic difference between an executor and an administrator - namely that the former's title springs from the death while the latter's title springs from the grant - can play no part for the question relates to the existence of a power arising after title has been acquired. The question is whether section 54(1) forbids all dealings in immovable property by the single administrator without the concurrence of his fellows or an order of the court or whether it forbids a conveyance strictu sensu. It is clear that section 54(1) does not require execution of a conveyance by all - execution by one is sufficient provided concurrence by the other or others or an order of the court is forthcoming. The word "conveyance" in its everyday meaning connotes a deed conveying from one person to another an interest in land. It does not normally include an agreement to sell for such an agreement precedes the "conveyance on sale". I do not consider that there is warrant to be found for giving the word a wider meaning in section 54 for if the Legislature had intended to forbid dealings in land without the concurrence of all the personal representatives it could have said so. It is to be noted that the phrase used in section 54(4) is "charge, mortgage or otherwise dispose of" and in section 54(5) the phrase used is "disposal of property". I assume that by the change of wording the Legislature intended a distinction. I do not consider that section 25 assists for, while that section requires that administration be granted to a trust corporation, with or without an individual or to not less than two individuals where a minority or life interest is involved, it does not forbid a plurality where there is no such minority or life interest. Section 54(1) is directed to the case in which there is a plurality whether or not a minority or life interest is involved. We have been urged not to have regarded to English cases in the interpretation of section 54 as our Ordinance is an independant code. I consider that because of the similarity of section 54 to section 2(2) of the 1925 Act I am entitled to have regard to the observations of Brightman J. in Fountain Forestry Ltd. v. Edwards (1) at page 14 where he said: " It appears to me that there is no decisive authority which answers the question whether one administrator, acting without his co-administrator has the same power of disposition as an executor acting without the concurrence of his co-executor. But having regard to the statement of Sir John Romilly M.R. that the question was settled by 1859 in favour of the administrator who acts alone, I am content to assume for present purposes that the view he expressed was a correct interpretation of the law with the result that an administrator has power, at the present day, to bind the intestate's estate by his own act without the concurrence of his co-administrator." The statement of Sir John Romilly M.R. occurs in Smith v. Everett (2): " There was, then, a question whether the same principle" (as applies to executors) extended to administrators, and later authorities have held it does". This was obiter. These remarks appear to me to be applicable here because of our section 54(3) which applies whether or not minority or life interests are involved "save where subsection (1) or (2) applies". Subsection (2) enables the proving executor or executors to make a conveyance as effectually as if all named as executors concurred. Section 54(1), (2) and (3) read together may lay down that one of several personal representatives may bind the estate in certain matters but, since he may not without judicial intervention make a conveyance unless, if an executor, he is the sole proving executor or if an administrator he has the concurrence of all, I am persuaded that it is the intention of the Legislature to give to the words "conveyance of immovable property" their strict and narrow meaning. What section 54(1) forbids therefore is not entry into an agreement to sell but the completion of the transaction by a conveyance on sale. I would, therefore, hold that a single personal representative does have power to enter into a contract of sale binding on himself. The question then is, does such a contract bind the estate. It may not be carried into effect by conveyance without the concurrence, if the single personal representative be an executor, of any other proving executor and if he be an administrator of all the other administrators or, if such concurrence be not forthcoming, without an order of the court. It cannot of itself bind the estate without that concurrence or judicial intervention because without such concurrence or intervention it would be impossible of performance. Hence came the necessity of rendering sections 62 & 64 subject to section 54. The first contention raised by the appellant must therefore be answered in his favour. This is sufficient to render it necessary to allow the appeal but, lest I be wrong, I pass to the question whether the estate could be bound by this particular contract entered into by the 1st respondent before he obtained a grant of letters of administration. In entering into the contract the 1st respondent did so as "the proposed administrator". The law does not recognize any such person because the title of administrator springs from the grant of administration, to the person or persons concerned, by the court. One cannot, for example, institute an action as administrator before one gets the grant (Chetty v. Chetty (3)). One is either an administrator - one to whom the court has granted administration - or one is not. At the time he entered into the contract the 1st respondent was not. He had no title to the flat. It and the remainder of the estate of the deceased was vested in the Official Administrator until administration was granted in respect of it (section 10 of the Probate and Administration Ordinance). Rule 21(1) of the Non-Contentions Probate Rules lays down that where a persons dies wholly intestate " the persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following order of priority (i) the surviving spouse ..... (ii) the children of the deceased ......" In this particular case because of the minority interest a grant could not be made to the 1st respondent alone. At best then he could be properly described as "one of the proposed administrators". Moreover the intention of rule 21 is not to confer status but to establish priority; status is conferred by the grant which alone divests the Official Administrator of the estate vested in him by section 10. So that on the 8th March 1978 the 1st respondent had neither status nor title and the estate could not be bound by his action in entering into the contract. However he did obtain a grant jointly with the appellant and he did without the consent of the appellant seek to ratify the contract. The questions for consideration arising from his so doing are threefold. (1) How was the contract affected by the grant to him jointly with the appellant of administration or, to put it another way, did the grant of itself make the contract binding on the estate so as to enable the 2nd respondent to sue the administrators qua administrators for specific performance of the contract; (2) If the grant of itself did not have that effect did the purported ratification by the 1st respondent as administrator have that effect; (3) If the answer to both these questions be in the negative should the court, at the request of the respondents, order that the 1st respondent be at liberty to complete a conveyance to the 2nd respondent notwithstanding the refusal of the appellant to concur. The proper consideration of these three questions involves an examination of the doctrine of "relation back" the rationale for which originates from two considerations. The first of these is that the title to property of an intestate did not vest until a grant of administration was issued by the court and the second that those converting or trespassing on the assets of the intestate during the period between the death and the grant should be answerable to him to whom administration was eventually granted. The doctrine thus came into being as a means of protecting the assets. It appears to have originated as a development of the law of trespass. Thus in Long v. Hebb (4) decided in the year 1653 it was said by Roll, C.J. that Letters of Administration do relate to the time of the death of the intestate and not to the time of granting of them "otherwise there would be no remedy for this wrong done". The wrong in question was a trespass on the lands of the deceased. In Tharpe v. Stallwood (5) it was suggested that trespass stood on a different footing from trover. In deciding that it did not and that an analogy did not exist between the position of an administrator and that of assignees in bankruptcy in respect of their right of action against a sheriff (the assignees being unable to treat the sheriff as a trespasser by relation although they might maintain trover against him) Tindal C.J. observed: " Here the defendant, if he has taken the goods at all is a wrong-doer ab initio." and later after a disucssion of a case in the year books and "this continuous current of authority" observed " It would be strange indeed, if an administrator might sue for a trespass committed in the life time of his intestate, and for one committed after the grant of the letters of administration but not for one committed in the intermediate time. I therefore think that, both upon principle and authority the present action is maintainable." Although Cresswell J. concerned himself more with a refutation of the argument that a distinction existed in this regard between trover and trespass and with a consideration of the defendant's position than with a consideration of the administrator's right to sue he observed: " In this case a trespass has clearly been committed by the defendants: they are wrong doers; and for doing the wrong they are liable to damages. They are not trespassers by relation, but trespassers de facto." This cannot in context have been intended to suggest that the administrators' right was not theirs by relation. Furthermore he is quoted in the English Reports derived from 5 Man. & G. 775 as having said " The case in 36 H 6 fo. 8 seems clearly to establish the principle that an administrator may maintain trespass for acts done after the death of the intestate, and before administration". Although this does not appear in the English Reports he is quoted by counsel in the course of the argument in Foster v. Bates (6) as having said " The only effect of the letters of administration is to fix the person to whom the right of action accrues." This quotation was put forward by counsel in refutation of an observation addressed to him by Parke B. that the right to sue in trespass arises from the "necessity of the thing". It seems clear that the concept originated from the desire of the courts to ensure that estates of intestates should not suffer from the torts of strangers merely because the title of the administrator was derived from his grant. I consider that when considering cases founded in contract rather than tort in which the doctrine has been applied one must, to determine its limits, bear this origin, the protection of intestates estates, in mind. I am fortified in this view by the observation of Asquith, C.J. in Fred Long & Sons Ltd. v. Burgess (7) at 489 that there was "much force in the contention" that "the doctrine of relation back must not be applied save to protect the estate from wrongful injury occurring in the interval." The first cited case in which it was recognized that the doctrine could have relevance in the demesne of contract was Kenrick v. Burqes [Easter Term 1583, 25 Eliz.] (8) where an oral assignment of the reversionary lease of an intestate to Burges by the widow who subsequently got letters of administration and made a written assignment to Kenrick was held invalid. "If a person enters as an executor de son tort and sells goods the sale is valid by relation back; but in this case there was a term of years whereof no entry could be made and no man could be executor of it by his own wrong and therefore the first sale to Burges before the letters of administration was utterly void." This indicates that the grant had no effect on the first sale to Burges although it would have done if the widow could have and did act as executor de son tort in relation to the reversionary lease. To validate the sale to Burges therefore some further action was necessary since she was not executor de son tort. The special position of an executor de son tort is also recognized in Thomson v. Harding (9) which decided that a creditor of a deceased may retain payments made to him out of the assets of the deceased in due course of administration by an executor de son tort if the executor de son tort was really acting as executor so that the creditor might reasonably suppose him to be the executor. The application of the doctrine of relation back to contract was further recognized in Middleton's case 5 Co. Rep. 28b(10) which lays down that a release by one who subsequently obtains letters of administration is no bar to an action "for the right of action was not in him at the time of the release". A footnote in the reports contrasts this decision with that in Whitehall v. Squire and continues: " There is some difficulty is ascertaining whether in any, and if in any, in what cases administration shall have relation back to the death of the intestate. In 2 Rolle's ab 399 tit. Relation AP1 it is laid down that if a man dies possessed of certain goods and then a stranger takes them and converts them to his own use, and then administration is granted to J.S. that the administration shall relate to the death of the testator so that J.S. can maintain an action of trover and conversion for this conversion before administration granted to him. In Brooke's Abridgement, Relation, 29.46. it is said that letters of administration committed to one by the Ordinary shall have relation to the death of the intestate (and 18 H 6.22 the opinion of the Court is cited and tit. Administration in Fitz. Ab 2) so as to punish trespassers .... In Fitz. Ab Administration the law is stated to be that the administrators have their power from the death of the intestate, and not from the grant of letters of administration, and shall have their actions for goods taken before the administration. In Wolley v. Clerk 58. & A. 744 S.C. 1 Dow and Ry 409 Abbott C.J. took a distinction between the case of an administrator and an executor: that the property vests in the executor from the moment of the testator's death, but in the administrator from the time of the grant of letters of administration. The point of relation in the case of an administrator was not before the Court: ideo quare?" The report of Whitehall v. Squire in 1 Salkeld 296(11) is misleading. The headnote reads: " Administrator cannot bring trover for a chattel after his consent to the defendants having it, before administration granted". But the facts there are garbled and Channel B. in Metters v. Brown(12) observed that the case had been explained in Williams on Executors "as deciding that the plaintiff being a particeps criminis in the very act of which he complained should not be permitted to recover on it against the person with whom he had colluded." It would appear that in that case the administrator had personally benefitted by the trespass of which he sought to complain. In Doe dem. Benjamin Hornby v. Glenn(13), a case which the trial judge sought to distinguish, Preston Hornby, the leasee of premises under a covenant for re-entry if rent should be in arrear 28 days died intestate on 5th November 1933. On the 19th November rent then being in arrear for 28 days, Glenn the landlord went to the house to demand it whereupon he met Benjamin Hornby the brother of the deceased who was intermeddling with the assets. They agreed that Glenn should abandon the rent in arrear, should have possession and that the lease should be cancelled. Glenn so obtained possession. On the 25th November Benjamin, having then taken out administration tendered the rent and demanded possession. Glenn had made no formal demand of possession. It was argued for Glenn that there had been a valid bargain at which Lord Denman C.J. observed that Benjamin had no power to make it and Parke J. that "he was nobody then". It was held that Glenn was not entitled to retain possession as "his title solely depends on a supposed arrangement with parties who had no right to make it." This case appears to me to establish that the mere fact of a grant to a sole administrator does not of itself validate acts done by him before the grant was made to him. It was followed in Metters v. Brown(12) a case which emphasized the distinction between a person acting in his personal capacity and the same person acting as administrator. The plaintiff administrator of his mother had during her life mortgaged premises in fee to Jago. The deed contained a covenant by the plaintiff that he had good title and right to convey. He sought to recover possession as administrator of his mother alleging that she had a lease for years. He was met by a plea of estoppel by virtue of the mortgage. A passage from the judgment reads: " The second point is whether assuming there was evidence of an existing term the plaintiff as administrator of his mother is estopped by his mortgage of the premises in her lifetime from setting up that term. We think he is not. In Doe d. Hornby v. Glenn (1 A. & E. 49) which was cited on the argument, it was held that an agreement entered into by an executor de son tort did not bind him after he became rightful administrator. In our opinion, the plaintiff who sues as administrator of his mother must be considered in the position of a stranger, and therefore the rule as to estoppel does not apply; for whenever a person sues, not in his own right, but in the right of another, he must for the purpose of estoppel be deemed a stranger." This case explained Whitehall v. Squire(11) as I have pointed out earlier and expressly approved Hornby v. Glenn(13). In Foster v. Bates 12 M. & W. 225(16), decided in 1843, one Pollard sent goods to his agent in Fernando Po for sale. He then died intestate. Bates bought the goods from the agent of the intestate who sold for the benefit of the estate. Foster took out letters of administration and sued Bates for the price. It was held that his title related back to death and so he was entitled as administrator to sue and that " as the act of agent was ratified by Foster after he became administrator it was no objection that the intended principal was unknown at the time to the person who intended to be the agent." Hornby v. Glenn and Whitehall v. Squire were cited and reference was made to Stewart v. Edmonds in which Hornby v. Glenn had also been cited. (I would mention in parenthesis that in Stewart v. Edmonds the intestate had sent plate to the defendant a silversmith for safe keeping the intestate being indebted to the defendant. The plaintiff after the death of the intestate but before obtaining letter of administration assented to defendant's retaining the plate in satisfaction of the debt. He took out letters of administration and sued in trover for the plate and succeeded notwithstanding Whitehall v. Squire.) In Foster v. Bates Parke B. after considering Long v. Hebb and Tharpe v. Smallwood held that the title of the administrator related back to the date of death so as to enable him to ratify the sale by the agent of the intestate to Bates and went on: " In the present case there is no occasion to have recourse to the doctrine that one may waive a tort and recover on a contract: for here the sale was made by a person who intended to act as agent for the person, whoever he might happen to be, who legally represented the intestate's estate; and it was ratified by the plaintiff after he became administrator: and when one means to act as agent for another, a subsequent ratification by the other is always equivalent to a prior command nor is it any objection that the intended principal was unknown, at the time, to the person who intended to be the agent, the case of Hull v. Pickersgill 1 Bro. & B. being authority for that position. We are, therefore, of opinion, that the plaintiff is entitled to recover." As I see it Foster v. Bates does not provide an exception to the general rule that an agent cannot act for a non-existent principal. The doctrine of relation back resulted in the administrator being deemed to have been in existence at the relevant time i.e. during the interval between the death and the grant of administration. He was therefore capable of ratifying the act of the agent. In Morgan v. Thomas(14) Whitehall v. Squire was again explained and it was suggested by Parke B. that " The general principle is, that the administration has relation back only in those cases where the act to be ratified is for the protection and benefit of the estate." (my emphasis) In that case the act in question was the act of assent (if such there had been) by the son, who subsequently took letters of administration, to continue possession by the widow of the intestate. Parke B. further observed obiter " Even supposing that he had in the most solemn manner, by an instrument under his hand and seal, assented to her doing so it is perfectly clear from all the modern authorities which are uniform on the question that she would not have acquired thereby a right to claim the property. An act done by a party who afterwards becomes administrator to the prejudice of the estate is not made good by subsequent administration. It is only in those cases where the act is for the benefit of the estate that the relation back exists, by virtue of which relation the administrator is enabled to recover against such persons as have interfered with the estate, and thereby prevent it from being prejudiced and despoiled." This last passage harks back to the origin of the doctrine in tort but it cannot have been the intention of Parke B. to limit it to tort. The case leaves unanswered the question " What if the act was at the time it was done for the benefit of the estate but was not of benefit when administration was granted?" Pollock C.B. observed " Unless the conduct of the party whose act is relied upon as binding the estate of the intestate be done by him in the character of administrator it can have no operation on the estate and, accordingly the utmost effect that can be given to the defendant's argument is, that where a party does an act professedly intending to take out letters of administration and afterwards becomes administrator, the administration has relation back and gives effect to what he has done by anticipation. But if that proposition be true in point of law this case would fail on the facts." Clearly Pollock C.B. did not decide that the proposition was true in point of law. In Baker v. Blaker(15) the title of an administratrix to compromise litigation in which the intestate was a plaintiff and which was the subject of negotiation unconcluded at the date of death was upheld. The negotiations were continued after the date of death by the solicitors for the intestate on the instructions of the intestate's daughter and a settlement was reached. The daughter then got a grant of administration and leave to carry on the proceeding as plaintiff and applied to stay all further proceedings in the action on the terms agreed. The application was resisted. Bodger v. Arch which itself followed Foster v. Bates was also followed and Kay J. observed: " Then as I have come to the conclusion that there was no repudiation of the contract and the administration relating back to the date of the death of the intestate, for the purpose of not losing the benefit of the contract - in the words of Parke B. which I have read - I must order the contract to be carried out." In Bodger v. Arch(16) the plaintiff sued as administrator of his deceased wife on a promissory note, received by her before her marriage, from the defendant. The wife had died in 1834 after giving birth to a child. By an arrangement made between the plaintiff and the defendant after the death of the wife it was agreed that the defendant in return for his keeping the child should retain the interest payable on the note. In 1839 the plaintiff endorsed the note to the effect that all interest on it had been paid and this was signed by the defendant. The child died whilst being maintained by the defendant up to which time the defendant retained the interest on the note. He promised but failed to give the plaintiff a new note and claimed that the old note was statute barred. The plaintiff was granted administration and sued. Parke B. observed at page 339: " There is no doubt that a promise to pay the plaintiff's wife whilst sole, and within six years, was not proved, and could not be, for she died in 1834, and consequently a non-suit ought to be entered, unless an amendment could be made, by stating a promise which the evidence would support. The plaintiff then proposes to amend, by stating a promise to himself as administrator. The only question then is, whether the evidence proves that promise, Suppose an actual promise to have been made to the plaintiff before he was administrator, and within six years, either in writing or accompanied by a part payment of principal or interest, we have no doubt the action would have been maintainable. It would have constituted a new contract with the plaintiff as administrator, founded on the consideration of the old debt; and this is the true nature of every case which is said to be taken out of the operation of the statute by a new promise; and this being a contract with a person acting on behalf of the intestate's estate, and not on his own account, the administration would have relation back in order not to lose the benefit of that contract, upon the same principle that an action of trover is maintainable for a conversion of goods of an intestate after his death and before the grant of administration, and that an action of assumpsit by an administrator as such will lie on a contract of sale of goods of the intestate by a person meaning to act as agent for the benefit of the estate between the death and grant of administration: Foster v. Bates 12 M. & W. 226. The case of Clark v. Hooper 10 Bing. 480 is to the same effect." In Hill v. Curtis(17) what was in issue was the ability of an executor de son tort to absolve himself from liability by handing over the property with which he had dealt to another or by accounting for it to another. It was held firstly that receipt by the other did not make that other an executor de son tort and secondly that if the person to whom the executor de son tort accounted become the administrator before action the executor de son tort had a good answer in a suit for an account. Wood Vice-Chancellor observed at page 100 " There is another strong case, that of Hooper v. Summersett, in which the wife was entitled to administer, and the husband, who was living in the house, carried on the business of the deceased in the same way as in his lifetime. The wife proved the will after action brought, and the Court held that this constituted a sufficient intermeddling to charge the husband as executor de son tort; and then as to hardship, there was none, for if the husband had pleaded plene administravit, he would not have been liable for more than the assets which he had received. The older authorities, indeed, all run uniformly in the same direction. In Kenrick v. Burges, the Court agreed that if one enters as executor, of his own wrong, and sells goods and then obtains administration, the sale is good by relation - the wrong is purged; so that, where a person sells a lease and afterwards obtains administration, the title goes back by relation. The only test is, whether or not the wrong has been purged. Then what have we here? The case of Sharland v. Mildon shews that if, before administration is taken out, an agent is employed, the agency is not lawful so long as the employer is wrong doer. But if the employer becomes administratrix, then all she has done is made right, and all that her agent has done is made right also. The case of Foster v. Bates, which is a very strong instance, shews that, if a person, without instructions, acting on behalf of the representative, whoever he may be, enters into a contract for the benefit of an intestate's estate, and that contract is afterwards ratified by the administrator, the ratification relates back, and is equivalent to a prior authority. Thus, in the absence of fraud, I have no doubt that the administratrix in this case might adopt the acts of the agent, and that her subsequent rightful appointment would give legal validity to the agency." Before us Mr. Goodhart complained that the reference to Kenrick v. Burges rests on a misquotation. I do not think so, for what vitiated the sale to Burges was the fact that no one could be an executor de son tort in relation to a reversionary lease. Had the lease been a lease in possession on which the executor de son tort had entered its sale would have been good if the executor de son tort subsequently obtained a grant. It is to be noted that the 1st respondent, in the instant case, was not, as Burges was not, an executor de son tort. In In re Watson Ex p.Phillips(18) letters of administration with the will annexed to the estate of a deceased were granted in 1878 to two ladies who had earlier in pursuance of a family agreement to which Robert Phillips was a party instructed Watson a solicitor to take certain steps relating to the estate. Both ladies died in 1879 and at the time of the death of the second of them Watson had performed all the work in respect of which he had been retained. A relation by marriage to one of them thereupon intermeddled and instructed Watson to perform further services for the estate. He did so until June 1882 when his authority was revoked by Robert Phillips who obtained letters of administration de bonis non in August 1882. Watson's bill of costs contained items in respect of the work done in the period between the date of the death of the second of the administratrices and August 1882 which were challenged. A.L. Smith J. said: " I am of opinion that Watson in order to support his claim against the estate in respect of work done during the period in question is bound to show not only that the services he rendered were for the benefit of the estate but that those services were rendered upon the order of somebody who had power to bind the estate ...." Wills J. observed: " It seems to be a principle of law that where work is done on the credit of the estate by the order of one who afterwards obtains administration and ratifies the contract the estate is bound if the work done is for the benefit of the estate. The essentials are that there should be some person professing to act for the estate, that the contract should be for the benefit of the estate and that the person in question should afterwards become administrator and should after being so appointed have ratified the contract." Later he observed " That work was done under an agreement made by Watson with a person who did not represent the estate and had no power to bind it, and that agreement must have come to an end when personal representatives of the deceased were appointed unless that person had professed to make the contract on behalf of the estate, that is to say on behalf of whoever should be appointed administrator and (the contract being in fact for the benefit of the estate) the administrator after his appointment had ratified it." In argument counsel for Phillips referred to Foster v. Bates which was clearly in Wills J.'s mind when setting out "the essentials". On appeal(19) it was argued that the estate having benefited by Watson's services while there was no personal representative and Phillips having received the benefit as administrator he was bound to pay for the services. The respondent was not called on and Lord Esher M.R. went so far as to say: " Speaking for myself only I doubt whether Phillips, after he became administrator and so was acting in the interests of other persons could have ratified a prior contract made with himself." All these cases suggest to me that the doctrine of relation back originating as it did in tort for the protection of the estate should be applied to a contract of sale only for benefit of the estate unless the eventual administrator when purporting to sell was acting as an executor de son tort, had entered into possession and appeared to the prospective purchaser to be clothed with the authority of an executor. If he was so acting and subsequently took out letters of administration then, but only if at the time it was entered into the purported contract was for the benefit of the estate, would the estate be bound by his acts. If, as in the present case, the eventual administrator was not an executor de son tort and, if, as in the present case, the proposed purchaser knew full well that he was not clothed with the authority of an executor I cannot see that the mere grant of administration could operate to validate the contract between the 2nd respondent with one who was as far as the estate was concerned "nobody". I would therefore answer the first question I posed (i.e. did the grant of itself make the contract binding on the estate) in the negative. In so doing I am refusing to follow: Nichol et al v. Pettycrew et al(20). I am prepared to accept that, on the facts of that case, MacPherson J. was entitled to conclude that the person who eventually secured the grant had prior to grant entered into a contract of sale -although I consider that there was room for argument that in doing so she acted through agents. What causes me to refuse to follow the decision is not that the ratio of Foster v. Bates as to ratification was not applied but rather that the administratrix was treated as if she had been executrix de son tort when there was, it appears, no evidence that she had intermeddled with the estate. Kenrick v. Burges as a consequence received incomplete consideration and the judge does not seem to have appreciated that the administratrix in that case succeeded because "no man could be executor .... by his own wrong" of a term of years in reversion whereof no entry could be made. Sharland v. Mildon(21) and the remarks of Wood V.-C. in Hill v. Curtis(17) at 100 are also quoted but they again refer to the making right wrongs done by executors de son tort by relation back. The judge does not appear to have borne in mind that Mrs. Pettycrew was not executrix de son tort and as a result the actions done in an unrepresentative capacity could not be made good by her in a representative capacity without some act of validation. Indeed the question whether ratification was necessary does not appear to have been present to his mind. In view of his complaint as to the rarity of cases concerned with the doctrine of relation back it is unfortunate that his attention was not drawn to Middleton's case, Doe d. Hornby v. Glenn; Metters v. Brown; Baker v. Blaker; and In re Watson. Had it been he might well have placed more significance on the use of the phrase "act to be ratified" by Parke B. in the course of argument in Morgan v. Thomas and the doubt expressed by Lord Esher M.R. in In re Watson. I sympathise with MacPherson J. when he says that " Wherever one finds reference to the qualification of 'benefit to the estate' one finds no assistance in the method of its application." If I were to accept his contention that the grant validated the contract I would be left with the question "Does one apply it (the qualification) to the date at which the contract was purportedly made or to the date of its validation by the grant?" If one asks oneself the two questions posed by him i.e. was the consideration reasonable and was the contract for the benefit of anyone other than the estate and if the first is answered in the affirmative and the second in the negative it may still be that the contract is not of benefit to the estate. I say this because where an estate consists of a number of assets, some of which are a speculative nature, as in our case, it might well be that a prudent administrator would realize the speculative asset before realizing immovable property. There was no evidence before the trial judge in our case as to the choice of property to be sold or indeed as to the necessity of selling any at the time of contract. A very large proportion of the assets of the deceased consisted of ordinary shares in limited companies and the decision to sell the flat appears to have been dictated more by a desire to get rid of an asset the first appellant found associated with tragedy then by a desire to benefit the estate. A factor to be taken into account was that the flat was the family home in which a number of the beneficiaries were living and the sale was to be with vacant possession. MacPherson J. held that " the tests should be applied as of the time the contract was entered into and not in the light of any events occurring thereafter." He gives no reason for so holding. In that case the contract had been entered into by exchange of letters which did not themselves stipulate the date for completion; in our case there were somewhat elaborate provisions by which the date for completion could be ascertained. I can myself see no reason for choosing the date at which the tests were to be applied as that of the contract rather than the date of completion. If the latter is applicable the sale was clearly not for the benefit of the estate. I would not be prepared to follow Nichol v. Pettycrew. If the grant of itself did not make the contract binding what was the effect of the purported ratification by the 1st respondent? In view of the doubt expressed by Lord Esher M.R., in In re Watson Ex p. Phillips and of the fact that by the time of the purported ratification the value of the flat had risen enormously and that the other beneficiaries were opposed to completion I have no doubt on this question. At the time of the purported ratification the 1st respondent was, and knew he was, acting not only for himself but for the estate and in a fiduciary capacity. Mr. Ching did not argue that he could ratify the contract. He contented himself with the argument that the contract was automatically validated. This court could not in my opinion assist either respondent by regarding the ratification as validly given. To do so would be to override the rights of the appellant who acted throughout with propriety and to drorive the appellant and the other beneficiaries of the rise in value of a property the ownership of which remained vested in the Official Administrator until 4th January 1980. Not until that date did it become vested in the appellant and the first respondent and by that date its value had more than doubled. While, of course, the 1st respondent would be by far the greatest loser if the contract was ratified the appellant and the other beneficiaries would be substantial losers as well. The 1st respondent had no right to impose this loss on them nor has the court. My answer to the three questions I have posed myself would therefore be in the negative and I would allow this appeal. I must now consider the 1st respondent's notice. I have already quoted that paragraph of the judgment which (if my finding on the appeal proper is correct) Mr. Charles Ching, Q.C. would wish to attack and which is supported by Miss Li for the 1st respondent. I have no doubt that if my finding is correct the 1st respondent's title is defective. Before he could complete the contract he required the concurrence of the appellant. This was not forthcoming. The sole question in view of clause 4 of the agreement was whether the 1st respondent used his best endeavours to secure the concurrence of the appellant. Their relationship is that of father and son but I do not consider that the law requires the 1st respondent so to exercise parental authority as to override the free will of the appellant. He states on affidavit that when entering into the contract he was labouring under the impression that he alone was entitled to a grant of administration and that he had power to sell. He Expected to get the grant not later than 31st December 1978 so that failure to get a grant by that date enabled the purchaser to rescind. When the appellant refused to consent to completion his solicitors wrote to all the beneficiaries explaining his dilemma and seeking their consent. On the face of them the letters are genuine requests for that consent. The 1st respondent was not cross-examined as to whether they were genuine. In addition to the letters and the negative replies to them the 1st respondent initiated these proceedings. No suggestion has been made that he was conducting an elaborate charade. If he was doing so he was indulging in a dangerous and unnecessary gamble at considerable expense. The trial judge was quite satisfied that he was sincere in bringing the proceedings and he was entitled so to be. If the proceedings were sincerely brought then the letters must logically be regarded as sincere. I do not think the 1st respondent could, in the representative capacity which he had by then acquired, properly have done more and consider that the second prayer should have been granted. I would therefore order that this appeal should be allowed with costs and grant a declaration that the title of CHAN Pang-yee is defective and that he is at liberty to annul the said sale under Clause 4 of the said agreement. Sir Alan Huggins, V.-P.: Two issues have been raised for our decision: Whether one of two administrators of an intestate estate has power to enter into a contract binding on the estate for the sale of immovable property comprised in the estate without the concurrence of the other administrator: If so, whether in the circumstances of this case the estate can be bound by a contract for the sale of immovable property entered into, before the grant of Letters of Administration, by one of the persons who subsequently took out representation. The Facts The deceased, a married woman died on 14th June 1977. Letters of Administration were taken out by the husband and one of the children on 4th January 1980, two individual administrators being required because there was a minority interest. Comprised in the estate were three leasehold flats. Not appreciating that not less than two individual administrators would be required (section 25 of the Probate and Administration Ordinance) and without obtaining a grant of Letters of Administration, the husband took it upon himself to administer the estate. One of the flats, which I shall hereinafter call "the flat", had been used as a family home, but the husband thought it had brought ill luck to the family. The estate duty payable exceeded the cash comprised in the estate and, having paid the duty out of his own pocket, he decided to sell the flat. As "the proposed administrator" he entered into a contract in writing with the second respondent to sell the flat at a price which, it is conceded, was at the time a reasonable price. The present appeal arises out of the decision of a judge in chambers upon an originating summons, taken out by the husband against his co-administrator and the would-be purchaser, asking the Court to confirm and approve the contract, or, alternatively, to declare that the husband is entitled under the terms of the contract to annul the contract by reason of his inability to make good title. The co-administrator and other beneficiaries oppose the sale, whereas the would-be purchaser has, in another action, sued for specific performance of the contract. The Judge in Chambers held that the contract was binding upon the estate and gave directions for completion of the sale. He indicated that if he had come to a different conclusion as to the enforceability of the contract against the estate he would have granted the alternative relief, declaring the husband to be entitled to annul the contract. The First Issue: s.54 of the Probate and Administration Ordinance If, even after the grant, the husband had no power without the concurrence of the co-administrator to bind the estate, it is clear that the appeal must be allowed, for both the original contract and the purported ratification would be ineffective. Can one of several properly constituted administrators bind the estate at Common Law? The answer may assist us in interpreting the statute. That one of several executors can do so is clear. In Smith v Everett (1859) 29 L.J.Ch. 236 Sir John Romilly M.R. said at p.239: "It is a settled principle with respect to executors, that any two may settle an account; in fact, one may settle an account, and it binds the others, though it may be a question as between co-executors whether they are liable to each other, or whether they are liable to their cestuis que trust for acting improperly. There was, then, a question whether the same principle extended to administrators, and later authorities have held that it does ......" With reference to that passage Brightman, J. said in Fountain Forestry Ltd. v Edwards 1975 Ch.1, 14A: "It appears to me that there is no decisive authority which answers the question whether one administrator, acting without his co-administrator, has the same power of disposition as an executor acting without the concurrence of his co-executor. But having regard to the statement of Sir John Romilly M.R. that the question was settled by 1859 in favour of the administrator who acts alone, I am content to assume for present purposes that the view which he expressed was a correct interpretation of the law with the result that an administrator has power, at the present day, to bind the intestate's estate by his own act without the concurrence of his co-administrator." No authority to the contrary has been cited to us and I see no reason why a distinction should have been drawn between an executor and an administrator in this respect. The relevant statutory provisions are: "54. (1) No conveyance of immovable property of a deceased person dying after the commencement of this Ordinance shall be made without the concurrence of all the personal representatives of the deceased or an order of the court. (2) Notwithstanding subsection (1), where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, any conveyance of the immovable property may be made by the proving executor or executors for the time being, without an order of the court, and shall be as effectual as if all the persons named as executors had concurred therein. (3) Save where subsection (1) or (2) applies, where there are several personal representatives the powers of all may, in the absence of any direction to the contrary in the will or grant of administration, be exercised by any one of them. ................................................................................ (5) The disposal of property by a personal representative in contravention of the provisions of this section shall be voidable at the instance of any other person interested in the property." "65. (1) Subject to the provisions of section 54 every contract entered into by a personal representative in the due administration of an estate shall be binding on and be enforceable against and by any other personal representative for the time being of the deceased, and may be carried into effect or be varied or rescinded by any other such personal representative as if it had been entered into by himself. (2) Nothing in this section shall affect the right of any person to require an assent, transfer or conveyance to be made." It will be seen that section 65 is concerned with the power to contract and section 54 with the power to dispose of property. It was, of course, under section 54(1) that the husband sought, in effect, an order of the Court for the conveyance of the property. It is argued on behalf of the co-administrator that upon a proper interpretation of that subsection it was not open to the husband even to contract for the sale of the flat without his own concurrence or an order of the Court. Whilst accepting that the word "conveyance" does not normally include a contract of sale under which it is intended that the completion shall be by a further formal document, Mr. Goodhart submitted that the Legislature must have used the word in a wider sense here, because otherwise one of several administrators could nullify the protection afforded by section 25, which requires more than one individual administrator. It is a necessary part of his argument that the Court would refuse to make an order under section 54(1) only upon the grounds which would justify the Court's refusing an order for specific performance of a contract which had been lawfully made, i.e. fraud, breach of trust or (possibly) great hardship: it would not refuse to make an order simply because, as a matter of business judgment, the contract was unfavourable. I cannot accept this argument. Applying the ordinary canons of interpretation I see no reason to give the word "conveyance" any but its ordinary meaning, nor do I think the Court's discretion upon an application under section 54(1) is limited in the manner suggested. The argument based upon section 25 must fail because it is clear that at least in relation to contracts other than those of the sale and purchase of immovable property one personal representative can bind the rest: section 65. In relation to a contract for the sale and purchase of immovable property any other personal representative can oppose an application to the Court for the exercise of its discretion to order a conveyance, as has been done here. As for the power of the Court under section 54, whilst I do not think it is limited to the cases suggested by Mr. Goodhart, I do not believe that the Court would order a conveyance by one personal representative on the ground that he had entered into a contract to convey: it would do so only where that personal representative could show that it was in the best interests of the estate that the property should be sold. As it seems to me, the power of the Court under section 54(1) to order a conveyance by one personal representative is limited to cases (1) where a contract binding on the estate has been concluded and one personal representative is willing to convey but another is not willing, (2) where the Court would, on the application of one personal representative, direct the sale of the property, regardless of whether there was an existing contract to convey, because a sale was in the best interests of the estate. Although a contract by one personal representative to convey may not be prohibited by section 54(1), one still has to consider whether that provision may not indirectly affect such a contract, for it is a contract to do something which cannot be done by the one personal representative on his own. If he purports to contract as a sole personal representative, he clearly cannot bind the others, whereas if he purports to contract with the authority of the others and does not in fact have that authority he, again, cannot bind them. In each case he may be personally liable to the other contracting party, but neither can specific performance be ordered against the estate nor can the estate be liable in damages. In the result I would hold that the contract entered into by the husband was not binding on the estate. The Second Issue: Relation Back In view of the conclusion we have reached on the first issue it is not strictly necessary to decide this further issue, but in case the matter should go further I shall express my view upon it. Many cases were cited to us and it is necessary to review some of them. In as much as he initially contracted as "the proposed administrator" and agreed to complete only after letters of administration had been granted, it seems to me that the husband did not in the first instance purport to bind the estate. If that be right, it would only be by virtue of the purported ratification after letters of administration had been granted that the estate could be bound. However, I will now assume that the words used were such as did indicate an intention to contract as an administrator. On that basis the question arises whether the husband could effectively contract before obtaining a grant of representation. The fundamental distinction between an executor and an administrator is that the title of the one stems from the will and the title of the other stems from the grant of letters of administration. It follows that an administrator has in theory no right to sue in respect of loss or damage to the estate occurring between the date of the death and the date of the grant. That was so manifestly inconvenient that the courts developed the doctrine of relation back. Originally the doctrine appears to have been concerned with damage resulting from tortious acts (see the authorities cited by Tindal, C.J. in Tharpe v Stallwood (1843) 5 Man. & G. 760, 773). However, the doctrine was extended to some cases where a person intermeddled with the estate, purporting to deal with property belonging to the estate, and subsequently took out representation. Those cases must be distinguished from cases where executors de ses torts, although they never became lawful personal representatives, were nevertheless able to bind the estate by reason of their purporting to act, and fairly being understood to act, with authority as personal representatives: see Thomson v Harding (1853) 2 E1. & B1. 630. At p.639 Lord Campbell, C.J. said: "We are by no means of an opinion that, as against a person who becomes the rightful representative of a person deceased, every payment from the assets of the deceased shall be valid, if made by a person who has so intermeddled with the property of the deceased as to render himself liable to be sued as executor de son tort. ........................................................ But, where the executor de son tort is really acting as executor, and the party with whom he deals has fair reason for supposing that he has authority to act as such, his acts shall bind the rightful executor, and shall alter the property. Says Lord Holt, in Parker v Kett (1 Ld. Raym. 661): 'The reason is, because the creditors are not bound to seek further than him who acts as executor; therefore if an executor de son tort pays 100 of the testator's in a bag to a creditor, the rightful executor shall not have trover and conversion against the creditor'." It is conceded that the present case does not fall into the second category. The first reported instance of the recognition of the doctrine relation back in connection with a contract was Kenrick v Burges (1583) No. 126, where the wife of an intestate had purported to assign by parole a term of years in reversion to the defendant and then, having obtained the letters of administration, made an assignment in writing to the plaintiff. The plaintiff brought ejectment. The report reads in part: "Et le Court direct le Jury pur Kenrick le darraine vendee: uncore ils agree, q si un enter come executor de son tort, & vende biens, & puis purchase administracon, que le sale est bone per relation: mes en cest case il est terme en revcon dont nul entry poit estre fait, ne ascu home poit de ceo estre executor de son tort demesne, & pur ceo le prim sale al Burges, devant administracon, est ousterment void." Thus the ratio decidendi was that no one could be executor de son tort of a reversionary lease and therefore the first sale was void. It seems to be implicit that, if the lease had been in possession, the wife might have been able to give a good title by relation back upon taking out letters of administration. The case was referred to in Hill v Curtis (1865) 1 Eq. 90, which was an action by persons entitled upon an intestacy against executors de ses torts for an account. It was, therefore, not directly in point but was cited to us for dicta at p.100: "In Kenrick v Burges, the Court agreed that if one enters as executor, of his own wrong, and sells goods and then obtains administration, the sale is good by relation - the wrong is purged; so that, where a person sells a lease and afterwards obtains administration, the title goes back by relation. The only test is, whether or not the wrong has been purged." It has been suggested in argument that that is not correct, but I am not persuaded that the learned Vice-Chancellor was in error. He was clearly concerned with a case where the executor de son tort had sold personalty before obtaining a grant and the only challenge to the sale was his want of title. He was not saying that Kenrick v Burges was itself concerned with a straightforward sale of a lease in possession. The substance of the passage is in the final sentence. An executor de son tort cannot purge his wrong by taking out letters of administration where the contract would have been bad even if preceded by a grant of letters of administration. Although the Vice-Chancellor appears to have regarded Kenrick v Burges as good authority, the court in Morgan v Thomas (1853) 8 Ex. 302 (to which I shall return later) emphasized that the dicta as to relation back were obiter. The Judges there rejected them as being inconsistent with the modern law and they supported the plaintiff's argument, based upon Stewart v Edmonds (an unreported decision of Abbott, C.J. in 1828), that "the general principle is that the administration has relation back only in those cases where the act to be ratified is for the protection and benefit of the estate". In Middleton's Case (1603) 5 Co. 28b it was held that a release before the grant by a person who subsequently became administrator was no bar to an action, "for the right of action was not in him at the time of the release". On the other hand a release by an executor would be effective, because the right of action was in him, although he could not successfully plead that right until he had proved the will. Leonard, J. has cited the footnote to that report, where the case was considered in the light of Whitehall v Squire (1690), a majority decision which, it has been suggested, supports the argument for the co-administrator. Whitehall v Squire is not an entirely satisfactory authority. There are to my knowledge six reports of the case: Carth. 103, 1 Salk. 295, 3 Salk. 161, Skin. 274, 3 Mod. 276, and Holt (K.B.) 45. Mr. Ching cited the second of these but the first is the most detailed. It differs substantially from all the others as to the facts, but was accepted as good authority by Lord Ellenborough, C.J. in Mountford v Gibson (1804) 4 East, 441. According to Carthew an intestate pastured his horse with the defendant. The intestate then died and the defendant, who was related to the intestate, requested the plaintiff to arrange a funeral. The plaintiff having done so and having reasonably incurred expenses amounting to 23, the defendant agreed with the plaintiff that the plaintiff should be reimbursed as to 10 by the transfer to him of the horse which had been left with the defendant and as to the balance by the defendant's giving his personal note. The plaintiff later took out letters of administration and, as administrator, proceeded to sue the defendant in trover for the horse which he had delivered to the plaintiff and which the plaintiff still retained. As Lord Ellenborough explained in the later case, all the judges were agreed that an administrator normally has a valid claim against an executor de son tort who has disposed of a chattel belonging to the estate even though, in an action against him by a creditor, he might successfully plead plene administravit: there was, however, a disagreement whether the fact that the plaintiff was particeps criminis in the very act complained of would bar the action. The majority thought it "not reasonable that he should be allowed to bring an action against the defendant for doing a thing to which he had not only consented, but jointly acted therein with the defendant; for [the defendant] did no more but only deliver the horse, and the plaintiff accepted and received, and still retains it", whilst Lord Holt, C.J. thought that made no difference, since the plaintiff had been acting in another capacity. The decision of the majority may have been founded upon the fact that, as the plaintiff was particeps criminis and still in possession of the horse, he should be deemed to hold it on behalf of the estate. All the other reports - which could well have stemmed from the same source - suggest that it was the plaintiff who asked the defendant to arrange the funeral and that the plaintiff released the horse to the defendant in settlement of the defendant's expenses. Skinner said that it was the plaintiff with whom the intestate pastured the horse and accordingly concurred with Carthew that the settlement of the account involved a physical delivery of the horse. It is remarkable that counsel in Morgan v Thomas (supra) in citing Whitehall v Squire, apparently from 1 Salk., said: "there the plaintiff, having received a horse belonging to the intestate from the defendant, in remuneration of services performed at the request of the defendant ......", which is contrary to the facts as reported by Salkeld but consistent with Carthew's report. In this connection it may not be out of place to observe that in Lord Kenyon, C.J.'s day Carthew had the reputation of being in general "a good reporter" (see Rex. v Heaven (1788) 2 Durn. & E. 772, 776), whereas, according to Blackburn, J. in Rex. v Allen (1862) 8 Jur. N.S. 230, 231, "the Modern Reports have a somewhat loose compilation" and the Jurist Reports in their turn were regarded by Lord Westbury, V.-C. to be of valuable assistance: see Francome v Francome (1865) 5 New Rep. 289. I am not persuaded that Whitehall v Squire is any authority for the proposition that a pre-grant contract entered into by someone who subsequently obtains a grant of letters of administration is automatically binding upon the estate at the date of the grant. Rather does it indicate that, in the ordinary way, the rightful administrator would have an action against the assignee of an executor de son tort. We now jump a hundred and fifty years to Doe dem. Hornby v Gleen (1834) 1 A. & E. 49. The defendant demised the suit premises to P.H. for 14 years. The lease contained a proviso for re-entry for non payment of rent. P.H. died and his brother, B.H. (the lessor of the plaintiff), took out letters of administration. After the death but before the grant of administration the defendant demanded rent which was already overdue. He saw B.H. and they orally agreed that the defendant should abandon the rent and have possession of the premises, the lease to be cancelled. B.H. was therefore executor de son tort. The defendant entered into possession. After obtaining a grant of letters of administration B.H. tendered the rent and demanded possession. The defendant was held to have no right to possession under the agreement, because it was not a valid surrender within the Statute of Frauds and also (and this is the important point for our purposes) because, even if it had been so, the grant of letters of administration did not validate an act which B.H. had had no authority to do. Accordingly the plaintiff succeeded. Lord Denman, C.J. said at p.50: "It would be very strong to hold that the lessor of the plaintiff was bound after he became rightful administrator, by an act of this kind done by him while he was an executor de son tort. There is no ground for a rule" to enter a verdict or that a new trial we had. In Foster v Bates (1843) 12 M. & W. 226 the plaintiff sued as administrator of the estate of an intestate who had, before he died, delivered goods to his agent for sale. After the death and before the grant of letters of administration the agent sold the goods to the defendant. The plaintiff, on behalf of the estate, claimed the price of the goods, which had apparently not been paid, and it was held that the action was maintainable. Parke, B. reviewed the history of the doctrine of relation back as lying in tort and continued at p.233: "The relation being established for the benefit of the intestate's estate, against a wrong doer, we do not see why it should not be equally available to enable the administrator to obtain the benefit of a contract intermediately made by suing the contracting party; and cases might be put in which the right to sue on the contract would be more beneficial to the estate than the right to recover the value of the goods themselves. In the present case, there is no occasion to have recourse to the doctrine, that one may waive a tort and recover on a contract; for here the sale was made by a person who intended to act as agent for the person, whoever he might happen to be, who legally represented the intestate's estate; and it was ratified by the plaintiff, after he became administrator: and, when one means to act as agent for another, a subsequent ratification by the others is always equivalent to a prior command; nor is it any objection that the intended principal was unknown, at the time, to the person who intended to be the agent, the case of Hull v Pickersgill (1 Bro. & B. 282), cited by Mr. Greenwood, being an authority for that position. We are, therefore, of opinion, that the plaintiff is entitled to recover." The doctrine of relation back is there applied to a contract and is clearly based upon agency and the ratification of the contract by the principal. This case also was later referred to in Hill v Curtis (supra) at p.100 and it is of interest to note that the learned Vice-Chancellor refers to the relating back of "ratification": "The case of Foster v Bates, which is a very strong instance, shows that, if a person, without instructions, acting on behalf of the representative, whoever he may be, enters into a contract for the benefit of an intestate's estate, and that contract is afterwards ratified by the administrator, the ratification relates back, and is equivalent to a prior authority." I said I would return to Morgan v Thomas. That was an action by an administrator against the sheriff. The facts and ratio decidendi are briefly stated in the headnote: "The widow of an intestate remained in the possession of her husband's property for some time after his decease. The intestate's son did not interfere in any way with the property, which was seized under a writ of fi. fa. issued against the widow. The son afterwards took out letters of administration:- Held, first, that there was no evidence of the administrator's assent to the widow's taking the property; and, secondly, that if such an assent could be implied, the estate was not bound by it, as the act to which the assent was given did not benefit the estate." It was argued that "the subsequent taking out of letters of administration by [the plaintiff] may fairly be treated as a ratification of an act which he did in the performance of his duty as administrator". To that Parke, B. said at p.307: "An act done by a party who afterwards becomes administrator, to the prejudice of the estate, is not made good by the subsequent administration. It is only in those cases where the act is for the benefit of the estate that the relation back exists, by virtue of which relation the administrator is enabled to recover against such persons as having interfered with the estate, and thereby to prevent it from being prejudiced and despoiled. It was not the duty of the plaintiff, acting in the character of administrator, to assent to a legacy till he had seen all the just debts owing by the estate duly satisfied." I think the case shows two things to be requisite for the operation of the doctrine of relation back: (1) that the person whose conduct is relied upon as binding the estate should have been acting in the assumed character of an administrator, and he does that if the act is done by him when professedly intending to take out letters of administration so that he is an executor de son tort; and (2) that the act done should be for the benefit of the estate. Whether an act is in fact for the benefit of the estate would seem to depend upon the opinion of the lawful administrator: if he ratifies it (as by suing upon the contract) the estate would be bound, but if he rejects the act by suing on behalf of the estate in conversion it would not seem to be open to the defendant to contend that the contract was for the benefit of the estate. In Morgan v Thomas the second requisite was absent because the fi. fa. was in respect of a debt owed by the widow personally and not one owed by the estate. So, if the son had assented to the wife's taking the property as a gift, that would have been a davastavit, and that was the effect of the sheriff's taking it. The position might have been different if the defendant, with the son's consent, purchased the property from the wife: see Kenrick v Burges. Bodger v Arch (1854) 10 Exch. 333 was a case where the defendant gave a promissory note in favour of his sister, then a femme sole. The plaintiff married the sister in 1833 and she died the following year in child birth. The parties then agreed that the defendant should maintain the child in return for the defendant's (a) receiving the rents of some cottages which had been the property of the wife and (b) retaining the interests to become payable on the note. In 1839 the defendant signed an endorsement on the note to the effect that all interests on the note had been paid. He continued to maintain the child until his death in 1848. After the child's death the defendant promised the plaintiff to give him a new note, but later refused to do so. In 1853 the plaintiff took out letters of administration in respect of the estate of his wife and in the same year brought an action on the original note for the principal and interest from the date thereof. The defendant pleaded inter alia that a new promise by the plaintiff before the grant of letters of administration would not take the case out of the Statute of Limitations since the plaintiff was not then clothed with any title to the note. Parke, B. said at p.339 that a promise to the plaintiff within six years before action brought would have sustained the action even though made before he became administrator: it was a contract with a person acting on behalf of the intestate's estate, and not on his own account, and "the administration would have relation back in order not to lose the benefit of that contract, upon the same principle that an action of trover is maintainable for a conversion of goods of an intestate after his death and before the grant of administration, and that an action of assumpsit by an administrator as such will lie on a contract of sale of goods of the intestate by a person meaning to act as agent for the benefit of the estate between the death and grant of administration: Foster v Bates 12 M. & W. 226. The case of Clark v Hooper 10 Bing. 480 is to the same effect." That passage was relied upon in Baker v Blaker (1886) 55 L.T. 723, 726, where Kay, J. said: "The law is that, if after death of an intestate, and before letters of administration to the intestate's estate have been taken out, someone acting avowedly on account of the estate of the intestate enters into a contract, then on the grant of the letters of administration the administrator may adopt that contract, and ratify what has been done under it. This is so, because the title of an administrator, although it does not exist until the grant of administration, relates back to the time of the death of the intestate." That was a case where an action commenced by the intestate was compromised after his death by a person who subsequently took out letters of administration. On the application of the administratrix the contract was ordered to be carried out. The material facts for our purposes in Metters v Brown (1863) 1 H. & C. 686 were that the plaintiff's mother died possessed of a leasehold estate. During her lifetime the plaintiff had executed a mortgage in fee of the premises to one Jago, the mortgage having subsequently vested in the defendant. The mortgage deed contained a covenant by the plaintiff, in the usual form, that he had good title and right to convey. The plaintiff obtained letters of administration and sued an ejectment. It was objected by the defendant that the plaintiff was estopped by the mortgage from claiming title under a lease, but it was held that the plaintiff as administrator could not be estopped by an act done by him in his personal capacity: he was a stranger to the estate. That was, no doubt, a stronger case than Doe dem. Hornby v Glenn because the mortgage was executed in the lifetime of the intestate, but the earlier case was approved and applied. Wills, J. in In re Watson (1886) 18 Q.B.D. 116 accepted the requirement of ratification. He said at p.119: "It seems to be a principle of law that where work is done on the credit of the estate by the order of one who afterwards obtains administration and ratifies the contract, the estate is bound if the work done is for the benefit of the estate. The essential conditions are that there should be a contract with some person professing to act for the estate, that the contract should be for the benefit of the estate, and that the person in question should afterwards become administrator and should after being so appointed have ratified the contract. Under those circumstances the case comes within the principle of law that a subsequent ratification of a contract by a person with authority to ratify it relates back to and supports the contract." There is a decision of a judge of first instance in Canada which suggests that the mere grant of letters of administration to an executor de son tort automatically validates even an executory contract previously entered into by him: Nichol v Pettycrew (1969) 7 D.L.R. (3rd Edition) 103. The learned Judge does not, however, appear to have been referred to a number of the later cases which indicating need for ratification after the grant, although the matter was raised before him. It was a case where an action was brought against the estate for specific performance of a contract for the sale of land. The contract was entered into by a person whom the plaintiffs mistakenly believed to be the administrator. The eventual administrator knew and approved of the negotiations, but subsequently declined to honour the agreement. She did nothing after the grant which might constitute ratification. Although the case was based upon section 168 of the Land Titles Act 1965, that section had been held to be merely declaratory of the Common Law doctrine of relation back. It reads: "The title of the executor or administrator shall relate back and take effect as from the date of the death of the deceased owner." The learned Judge thought that the grant purged the wrong and that, as the price was reasonable at the time of the agreement and as the contract was not for the benefit of anyone other than the estate, the contract was for the benefit of the estate. Accordingly he ordered specific performance. He relied upon an earlier Canadian case where the son of an intestate sold a horse of the deceased before obtaining letters of administration. After his appointment as administrator he brought the action to recover the horse but was held bound by the contract to sale: Murray v Munro (1916) 27 D.L.R. 98. We have not seen that case and I will assume that there was no question of a ratification. The case may be explicable on the basis that the purchaser had reasonable ground for believing that the son was the lawful administrator at the time of the contract. The difficulty I see in relation to Nichol v Pettycrew is the assumption that the relevant statute provision was merely declaratory of the Common Law doctrine. I am not persuaded that that is so, for I think the Common Law is as it was stated in Morgan v Thomas. I would, therefore, hold that the husband's contract with the 2nd Defendant would not have been validated by the grant of letters of administration even if made by him on behalf of the eventual administrator: it would have required ratification and could then bind the co-administrator only if it were in the interests of the estate. One would have to ask at what date the interests of the estate were to be considered and I have no difficulty in agreeing with Leonard, J. that the material date was the date of ratification. In the present case it was clearly not in the interest of the estate that the contract should be ratified and the purported ratification was made solely in the interest of the reputation of the husband. As to the husband's cross appeal I entirely concur with Leonard, J. and cannot usefully add anything. I therefore agree that the main appeal should be allowed and that the husband should be granted the declaration which he seeks. Baber, J.: I have had the advantage of reading the judgment of the Vice-President and that of Leonard, J.A. in this somewhat difficult case. I entirely concur with the views expressed in those judgments and with the orders consequent upon them which are proposed. This absurdly wasteful (though interesting) litigation would never have arisen if the Solicitor who was originally instructed by the 1st Respondent to obtain for him a grant of letters of administration to the estate of his deceased wife had made enquiry of the 1st Respondent as to those entitled to take upon the intestacy and specifically as to their dates of birth. He would then, I hope, have realized that two of the sons of the 1st Respondent were still minors and that the 1st Respondent required to be joined by another person sui juris in applying for the grant. Further the 2nd Respondent's Solicitor (who acted for both parties in the matter of the agreement for the sale of the flat) should not have drafted the agreement showing the 1st Respondent as "the proposed Administrator of the estate". I agree with Leonard, J.A. that the law knows no such animal as a competent party to such an agreement. An enquiry on his part as to the cause of the delay in obtaining letters of administration might have stopped the rot before irremediable harm was done. 18th June 1981 Representation: W. Goodhart, Q.C. & J. Bleach (C.P. Lin & Co.) for Appellant. Miss G. Li (David Y.Y. Fung & Co.) for 1st Respondent. C. Ching, Q.C. & K. Kwok (Philip K.H. Wong & Co.) for 2nd Respondent. (1) (1975) 1 Ch. (2) (1859) L.J. Ch. 236 (3) 1916 1 A.C. 603 (4) 82 E.R. 760, Style 341 (5) 5 Man. & G. 760 (May 5 1843) (6) 152 E.R. 1180 (7) (1949) 2 All E.R. 484 (8) [72 E.R. 483] (9) 118 E.R. 904 (10) (77 E.R. 93) (11) 91 E.R. 262) (12) 158 E.R. 1060 : 1 H. & C. 686 (13) 110 E.R. 1126 : Ad & E. 49 (12) 158 E.R. 1060 : 1 H. & C. 686 (11) 91 E.R. 262 (13) 110 E.R. 1126 (6) 152 E.R. 1180 (14) 155 E.R. 1362; 8 Ex. 302 (15) 55 L.T. 723 (16) 1854 10 Exch. 333 (17) L.R. 1 Eq. Cases 90 (18) 18 Q.B.D. 116 (19) 19 Q.B.D. 234 (20) 1970 7 D.L.R. (3d) P. 103 (21) 1946 5 Hare 469, 67 E.R. 997 (17) L.R. 1 Eq. Cases 90 PAGE PAGE PAGE - &`#$ &`#$ CACV000147/1980 CHAN PAK MAN v. CHAN PANG FEE AND ANOTHER Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACV000147/1980 CHAN PAK MAN v. CHAN PANG FEE AND ANOTHER Title Microsoft Word Document MSWordDoc Word.Document.8 CACV000147/1980 CHAN PAK MAN v. CHAN PANG FEE AND ANOTHER Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACV000147/1980 CHAN PAK MAN v. CHAN PANG FEE AND ANOTHER Title