Probate Registrar V. Maurice Elliott & Ors (1942)

LawGlobal Hub Judgment Report – West African Court of Appeal

Case Stated—Letters of administration—Fee to be charged by Probate Registrar when personal estate alone discharges deceased’s liabilities—Effect of section 36 of Marriage Ordinance.

Facts

Daniel Maurice Elliot contracted a marriage under the Marriage Ordinance (Chapter 68). He died intestate. Letters of Administration were granted to Maurice Elliot and Gladys Wey on the 19th September, 1939. The estate was fully administered and the personal estate was sufficient to pay the debts, funeral expenses and administration of the deceased’s estate. The deceased also left real property. By section 2 of the Administration (Real Estate and Small Estates) Ordinance (Chapter 13), real property shall for the purposes of administration be deemed to be part of the personal estate of the intestate.

The Probate Registrar sued the Administrators of D. M. Elliott and their sureties for additional fees payable in respect of real property left by the deceased.

The proviso to section 2 of the Administration Ordinance (Chapter 13) enacts that the real estate shall not he administemi if the personal ‘estate is sufficient.

Held

As personal estate was sufficient to pay deceased’s debts, etc., the administration of the real estate by the Administrator was barred by section 2 of the Administration Ordinance (Chapter 13).

Held further that property the administration of which is statute barred cannot form part of property in respect of which letters of administration were granted, and that a fee is not chargeable upon the real estate.

We accordingly answer the question submitted for our opinion in the negative.