[1940] EACA 49

# PROBATE AND ADMINISTRATION

## Before BARTLEY, J.

# IN THE ESTATE OF PURSHOTTAM SOMABHAI PATEL, DECEASED Probate and Administration Cause No. 70 of 1937

## Probate and Administration—Assignment of administration bond—Engagement of bond not kept-Prima facie case of breach-Failure by administrator to file accounts—Section 79, Probate and Administration Act, 1881.

The applicant, a creditor of the estate, applied for the assignment of the administration bond entered into by the administrator with one surety on the grounds that the administrator, who had obtained his grant in September, 1937, had failed to file accounts and had also failed to collect foreign assets.

Held (12-11-41).—(1) That the Court will not assign an administration bond on the ground of a breach of the condition to file an account unless the applicant or other interested party has previously taken legal steps to compel the administrator to file an account and even if that has been done without success the Court will not assign the bond if the application be clearly frivolous and vexatious.

(2) That the Court will exercise its discretion to assign a bond if a prima facie case of breach of it is made out.

#### Burke for Applicant.

### Figgis, K. C., for Surety and Attorney of Administrator.

ORDER.—This is an application made by petitioner under section 79 of the Probate and Administration Act, 1881, for the assignment of an administration bond. The applicant is a creditor of the estate to the extent of Sh. 2,367. The petition, which is supported by affidavit, sets out that the administrator, although several demands were made for an account of the administration to be filed, has failed to file any account although he received his letters of administration in September, 1937. The petition further sets out that a brother of the administrator obtained the payment to himself in India of Rs. 2,000 from the Reliance Assurance Society, Baroda, India, which sum was an asset in the estate and was shown as such in the Estate Duty affidavit filed by the administrator in this Court and that this sum has not been accounted for.

As I could not be referred to any previous application of a like nature in this Colony I consider it desirable to deal with this application more fully than I would otherwise have done.

The relevant portion of section 79 of the Probate and Administration Act, 1881, reads: —

"The Court may, on application made by petition and on being satisfied that the engagement of any such bond has not been kept, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise as the Court may think fit, assign the same to some proper person", etc.

The administration bond of surety is to perform and for performing the following matters: $-$

(1) To exhibit a true and perfect inventory.

(2) To well and truly administer the effects.

- (3) To make a just and true account of the administration wherever required by law so to do. - (4) To deliver and pay the rest and residue of the estate to those entitled.

Under section 98 of the Probate and Administration Act, 1881, an administrator is required to exhibit the account in Court within one year from the grant of letters of administration or within such further time as the Court may from time to time appoint. It is common ground that no account has been exhibited.

By section 167 (4) of the Judicature Act (1925), which replaced similar previous enactments, it is enacted that an administration bond may be assigned 'where it appears to the satisfaction of the Court or a judge that the condition of an administration bond has been broken". In Young v. Skelton, 162 E. R. 1342, Sir John Nicholl said: "The Ecclesiastical Court, when cases of this nature have been properly considered, has never, I conceive, decided whether there has been a breach of the bond or not; it avoids prejudicing either party".

In "In the goods of Young, 1 P & D. 186," Sir J. P. Wilde, referring to the English Statutes said: -

"The Statute does not mean that the applicant is to try the same question twice over, first in this Court and then in a Court of common law. It means that the Court ought to exercise its discretion by seeing that the application is bona fide, that a prima facie case is made out, and that the applicant is the proper person to whom the bond should be assigned".

Mr. Burke for the applicant submitted that the breach of the condition to file an account was sufficient in itself to entitle the Court to assign the bond. In Crowley and Sharman against Chipp and Tubb, 163 E. R. 160. it was submitted "that it was contrary to the law and practice of the Court to permit the bond entered into to be put in suit and for such purpose to be attended with in any court, until proceedings had been first taken against the administratrix to exhibit an inventory of the goods, chattels and credits of the deceased, which had come to her hands, possession or knowledge, and to render a just and true account of her faithful administration thereof". In reply it was submitted that as the administratrix had not exhibited an inventory and account within the time assigned by the bond entered into by her at the time of granting the administration of the goods of the deceased, a breach of the bond had actually been committed and that the applicants were entitled to have the bond attended with in any section for such a breach. The Court declined to make an order until the parties should have asked the administratrix to bring in an inventory.

In Barker v. Brooks, 164 E. R. 1183, a citation was extracted by parties interested in the estate calling upon the administratrix "to bring into the registry an inventory and account". The administratrix not appearing to the citation an attachment was issued under which she was arrested and imprisoned. She afterwards filed an inventory and account and applied for her discharge from prison, but the Court being of the opinion that the inventory and account were not satisfactory, the application was rejected and she was instructed to amend them. She neither amended the inventory and account nor filed others". The decision of the Court read: "The administratrix has not furnished such an inventory and account as the Court called for: That was part of the condition of the bond; if that is broken must not the bond be assigned? I had some doubt under the terms of the Statute whether I ought to have called the surety before the Court; all that the Court really does by assigning the bond is to put the plaintiff in the position of a person who has a right to sue. Now that the surety is before the Court I think I am bound to assign the bond if a prima facie case of breach of it is made out as there is in this case. On the other hand, I will not say that if on cause shown, the proceedings appeared to be clearly frivolous and vexatious I would assign the bond". In that case the cause shown included a submission that the administratrix had been guilty of devastavit.

In my view these cases show that the Court will not assign an administration bond on the ground of a breach of the condition to file an account unless the applicant or other interested party has previously taken legal steps to compel the administrator to file an account and even if that has been done without success the Court will not assign the bond if the application be clearly frivolous and vexatious.

In Sandrey v. Mitchell, 164 E. R. 1180, the plaintiff filed an affidavit stating that there was due to him from the deceased at the time of death the sum of $£36-18-0$ , that he had brought an action for the sum against the administrator of the estate who had allowed judgment to go by default. The administrator died. The appellant alleged that the plaintiff believed that assets had come into the hands of the administrator out of which he might and ought to have paid the debt. The plaintiff issued a citation against the sureties to the bond calling upon them to show cause why the bond should not be assigned to the plaintiff for the purpose of putting it in suit against them. The sureties filed an act on petition that the plaintiff had not cited the administrator to bring in an inventory in his lifetime as he might have done and that the non-payment of debts was not a condition for the breach of which an action was maintainable at common law. The Court directed the bond to be assigned, refusing to decide the question of the validity or invalidity of the condition for the payment of debts. The decision of the Court contained these words: "I incline to think that all that is required to authorize me to assign the bond is that the party applying for it to be assigned shall make out a prima facie case that the condition has been broken".

Apart from the administrator not filing the accounts in the case before me the petitioner alleges that the administrator permitted his brother to receive Rs. 2,000 from the Reliance Assurance Society. Although this is not made clear in the petition I read into the petition that the allegation is that but for the default of the administrator he would have received that Rs. 2,000 and that he is liable for his default

In my view the petitioner has made out a prima facie case that an engagement of the bond has not been kept.

Mr. Figgis, for the surety to the bond, confined himself to submitting that service should have been effected on the administrator personally and that it was not proper to proceed without such service. The circumstances are that the administrator is in India, where he has evidently been for some years past and that the surety is not only the surety to the bond but is also the duly constituted attorney of R. P. Patel, the administrator, and the surety was served in his dual capacity. Under Order 5, rule 11, service on an agent empowered to accept service is sufficient service on his principal.

I order the assignment of the bond as prayed, conditioned on the petitioner giving security to the satisfaction of the Registrar in a bond with one or more sureties to account to the Court for any sum recovered under the bond. The bond to be for Sh. 4,000.

Question of costs stood over generally pending decision of suit.