Begley v Attorney-General of New South Wales [1910] HCA 69

Begley v Attorney-General of New South Wales [1910] HCA 69 - HCA 1910 case summary — Zoe

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Attorney-General against the appellant as surety to an adminis- tration bond dated 31st July 1888, and made upon the grant of administration of the lands and goods of John O'Brien deceased to his widow Honorah O'Brien. The breaches alleged were : (1) that the administratix did not well and truly administer ; (2) that she did not make a just and true account of the administra- tion within fifteen months; and (3) that she did not pay or dispose of in due course of administration the rest and residue found remaining upon the administration account after being examined and allowed by the Court or in such manner as the Court by its decree and order did direct and appoint. At the trial the second breach was admitted. The only evidence offered upon the first and third breaches consisted of a decree pronounced in the Supreme Court in its equitable jurisdiction on 12th Feb- ruary 1907 in an administration suit brought by Denis O'Brien, one of the next of kin (who is the real plaintiff or relator in the present action), against the administratrix, by which she was ordered to pay into Court the sum of £2,773 6s. 4d., together with the other proceedings in that suit. The evidence was objected to as inadmissible, but was admitted. The defendant then offered evidence to show (1) that the amount, if any, lost to the estate by failure to make due administration was less than the sum men- tioned in the decree, and (2) that the interests of all the next of kin except the plaintiff had been assigned to the administratrix, the plaintiff's interest being less than one-sixth of the whole. The evidence was rejected. The decree was treated as conclusive evidence of the fact or extent of mal-administration, and the damages on the first and third breaches were assessed accord- ingly. A rule nisi for a new trial was granted by the Full Court and discharged. The learned Judges expressed no opinion on the question whether the decree was admissible, and, if admis- sible, conclusive, on the first breach, but held that it was both admissible and conclusive on the third.

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tains no obligation by the terms of which the decree in equity becomes necessary or admissible as evidence of the first breach, that is, of the failure "well and truly to administer according to law." As the proceedings are the only evidence of breaches that was tendered, we may leave the first breach out of consideration and pass to the third. By the terms of the fourth condition, on which the third breach is assigned, the administratrix was bound to "pay and dispose of in due course of administration or in such manner as the said Court" (i.e, the Supreme Court) " by its decree or order" should "direct or appoint" "all the rest and residue" of the estate which should "be found from time to time remaining upon the said administration account, the same being first examined and allowed of by the Judge or Judges for the time being of the said Court." The third breach as assigned is that the administratrix did not pay or dispose of the residue in due course of administration or in such manner as the Court by its decree and order directed. It is contended for the respondent that the decree or order intended being that of the Supreme Court, the decree in the administration suit, though made by that Court in its equitable jurisdiction, is within the condition, and that the decree, which admittedly the administratrix had failed to obey, was therefore evidence, and conclusive evidence, of the third breach sued upon. The appellant on the other hand main- tains that it is no proof at all of the breach of the fourth con- dition: that the decree or order which the administratrix bound herself to obey was such a decree as an Ecclesiastical Court would have made when the Charter of Justice prescribed this form of bond. He rightly says that the bond meant when executed what it meant when its form was first prescribed. It was executed in 1888, before the passage of the Probate Act 1890, which has no reference to this case. It is therefore necessary to refer to the provisions of the Charter of Justice, issued under the authority of the Act 4 Geo. IV. c. 96, of which sec. 10 empowered the Supreme Court when constituted by the Charter to exercise such ecclesiastical jurisdiction as the Charter should commit to it. The Charter was confirmed by the Act 9 Geo. IV. ¢. 83, though the Act of 4 Geo. IV. was repealed. Article XIV. ordains that the

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examine and allow, and, if occasion require, to disallow and reject the accounts of them in such manner and form as is now used or may be used in the said Diocese of London," &e. Articles XV., XVI. and XVIL have already been quoted. Article XVI. fully bears out the remarks of Faucett J. in Attorney-General v. Reddy (1), cited at the beginning of this opinion. As Article XIV. prescribes in terms for the Court's adoption, when it exercises its ecclesiastical jurisdiction, the procedure and practice of the Diocese of London, with especial reference to the accounts of executors and adminis- trators, and Article XV. immediately follows, prescribing the con- ditions of the administrator's bond, one cannot but think that the fourth of the prescribed conditions, in its reference to the admin- istration accounts, means the same accounts, quoad administra- tion, as are under Article XIV. to be dealt with, according to the practice of the Diocese of London in the exercise of the ecclesi-" astical jurisdiction ; and that the examination and allowance of accounts required, and the order for payment and disposal, mean in the bond further exercises of the same jurisdiction, and not exercises of the equitable jurisdiction over trusts. To say that the Supreme Court is all one Court proves nothing of itself. Of course the Court meant by the Charter, and therefore by the parties to the bond, is the Supreme Court, but the question is not to what Court, but to what functions of a Court, the instrument refers. Williams on Executors, 5th ed., published in 1856, before the Probate Act of England, states at p. 884 that: "The Spiritual Court can only require that all the deceased died possessed of should be included in the inventory: It cannot call for an account of the subsequent profits of his business" (Pitt v. Woodham (2)), nor on the same principle .could it order an account of gains not made by the administrator, but which hy better management he might have acquired for the estate. As that was the law when the Charter of Justice was granted, I think the bond must be construed with reference to it. Equity, on the other hand, (1) 2S.C.R, (N.S.W.) N.S., 87. (2) 1 Hagg. Bee., 250,

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