Supreme Court
Action No. 69 of 1982
26th August, 1983.
Moe, J.

Mr. Denys Barrow for the Plaintiff.
Mr. Oscar Sabido for the Defendant.

Order of Court upon account of deceased's estate - Defendant to return money and jewellery previously disposed of - Property to be sold - Sum owing to be paid to Plaintiff and remainder to be divided equally between Plaintiff and Defendant.

J U D G M E N T

The Plaintiff and Defendant are sister and brother of one Rita Garma who died on 17th February, 1980 without leaving a Will. Administration of the estate of the deceased Rita Garma was granted on the 22nd October, 1981 to the Defendant. In her Statement of Claim filed on 13th July 1982 the Plaintiff alleged firstly that the Defendant had not made any distribution of the estate despite repeated requests to him; secondly that he has dealt with the assets of the estate wrongfully and in breach of his duties as administrator. She gave the following particulars of four instances: -

(a) That on or about the 17th February, 1980, the Defendant took money totalling approximately $10,000.00 and jewelry valued at $5,000.00 from the premises of the deceased immediately after her demise and converted the same to his own use;

(b) That the Defendant sold 6 pigs and 8 piglets and 25 fowl-hens being the property of the estate and converted the proceeds thereof to his own use;

(c) That the Defendant has appropriated to his own use and continues to use a large dorey the property of the estate; and

(d) That the defendant has entered into possession of the real property of the estate and applies the income thereof to his own use and enjoyment.

The Defendant, in the defence delivered, categorically denied the allegation particularised at (a) and maintained that the deceased did not own $10,000.00 and jewelry valued at $5,000.00 at the time of her death and in fact the deceased had little or no money at all as he the Defendant and his wife Juana Patt were maintaining the deceased at the time of her death from the small income derived from the store. He also categorically denied allegation (b). He denied allegation (c) and says that he holds the dorey for the estate and that he improved and renovated the dorey from a wreck. He denied entering into possession of the real property of the estate but stated that he was responsible for the management of all the real property of this Estate for six years before the demise of the deceased and was living in the home of the deceased with the consent and approval of the deceased for six years before her demise. He also claimed the rights over two acres of Crown Land covered with coconut trees as compensation for six years of service and labour without wages or salary given to Rita Garma and the store before the same was given to him and his wife. There are other averments of the Defendant which need not be set out at this point but may be referred to later in the course of the judgment.

I found that at the date of her death the deceased owned the following: - (A) stock valued at $4,500 for the purpose of a business which she carried on in a shop. (B) money some of which she kept in a suitcase or valise and some in a chest.
(C) various items of jewelry. (D) furniture (E) livestock 14 pigs and 20 fowls and (F) a dorey.

I further found that after the deceased's death, the Defendant carried on the shop business which is now closed. He took possession of the money and spent from it. He distributed the jewelry and furniture. He sold some of the livestock and disposed of the remainder by other means. He distributed the furniture and has the dorey in his possession.

The Plaintiff's claim that the Defendant converted $l0,000 of the deceased's money has not been established but it is clear that there is an amount of the Plaintiff's money left which is not yet accounted for i.e. brought to account in the distribution of the estate. The Defendant did not give me the impression that he was a truthful witness. This was confirmed when I looked at other circumstances surrounding this case to which I will have cause to advert from time to time. I did not believe the Defendant's evidence that the deceased's money he took possession of amounted to $400. Yet even on the evidence that it was $400 and his evidence as to the amount spent from it there is a balance left.

Again the Plaintiff's claim that the deceased's jewelry was valued at $5,000 has not been established but the evidence is that the Defendant distributed it between one Alfredo Katzim and himself. I hold that the Defendant has converted some of the jewelry to the use of a person not entitled to share in the deceased's estate.

Again the Plaintiff did not establish as specifically pleaded with regard to the amount of livestock sold but there was a sale of some of them and it is again clear that the money from this sale has not been yet accounted for i.e. brought into account in a distribution of the estate. There has also been distribution of furniture to a person not entitled to share in the deceased's estate. Finally the Defendant is still in possession of the dorey. I must here observe that the money, jewelry, furniture, livestock and dorey were not declared in the inventory of the property of the deceased delivered pursuant to section l5 (l) (e) of CAP 45. Now having obtained letters of administration on 22nd October, 1981 he had by virtue of section 48(1) of CAP 196 until 22nd October, 1982 to file a full and true account of his administration and distribution of the estate. But the Plaintiff did not wait for such an account and it seems to me rightly so. Section 51 of the said (Administration of Estate Ordinance) CAP 196 recognises the right to apply for administration at any time.

Having now heard and assessed the evidence in this action, I got the distinct impression from everything put before me that the Defendant has made effort to have for himself as much as possible, if not all of the deceased's estate. Firstly I have already indicated his failure to disclose certain personal chattels belonging to the deceased. Secondly, the Defendant has sworn that the stock-in-trade was the deceased's at her death and then pleaded in his defence that it was his and he was working it as his at the time of her death. Yet while pleading it was his he claimed compensation for managing and operating the store for the deceased for six years which evidently included a period during which it would have been his if true. His claim for compensation for six years includes also compensation for service in looking after the deceased who according to him was sickly during those years. He claimed of this lady who by his declaration left estate valued $11,800 - compensation in the sum of $28,000, i.e. $400 per month. I noted further that the deceased left in the shop stock to the value of $4,500. That the business was continued i.e. items sold and presumably some profit however small made on that sum or at least that amount recovered. Subtracting the expenses shown as having been paid to the business firms owed i.e. $2,016.41 there is still over $2,000 to be accounted for. The Defendant made reference to an offer of his to distribute on the basis that compensation be paid inter alia for payment of $2,016.41 he made to creditors and funeral expenses incurred. If $2,016.41 shown in the inventory was his own money, then it seems he has to account for all the money from the stock and trade. If it came from the deceased's money, then he can't be compensated for that. I am satisfied it came from deceased money. This is reinforced by Defendant's own evidence. He himself said for example that he took money from deceased's money found in her box to buy coffin etc. That being so, how can he seek to be compensated in that amount. Finally he claimed in his evidence before the court that he and his wife began living in deceased's house i.e. House and Lot at Progresso because deceased told him he could live in the house as owner. This was in 1974. He went on to say that after deceased died he and his family remained in charge of the house. He took care of the place because she told him to take care of it until he died. He insisted the deceased did tell him to live in the house as owner because he was her little brother and used to take care of her husband. Along with the other circumstances mentioned above, which caused me to hold the Defendant as not a truthful witness, the following caused me to reject that there was such a statement of the deceased to the Defendant. It struck me as odd that in setting out a long defence in which he set up what was his position in relation to the estate he mentioned various claims but none suggesting he had a right to live in that house. All he asserted in his pleading was that he was living in the house with the consent and approval of deceased for six years before her death. Finally I observed that having stated for the purposes of obtaining letters of administration that the deceased's property devolves up Agripino Patt and Juana Patt in equal shares, the Defendant is now asserting otherwise.

I have come to the conclusion, on the basis of all I have set out above, that there should be administration of the estate of the deceased by the court. But before that I wish to have a full and true account from the Defendant of the estate and his handling of it to date. He should deliver this within 21 days to the Registrar. Until then the matter stands adjourned for one month i.e. until 23rd September, 1985. The matter of costs to be dealt with on further consideration.

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