Rothberg (deceased), The Will of, in Re [1963] PNGLR 144 (17 January 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 144 - Rothberg (deceased), The Will of, in Re

[1963] PNGLR 144

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN RE THE WILL OF MAX ROTHBERG, DECEASED

Port Moresby

Ollerenshaw J

17 January 1963

FOREIGN SURETY FOR ADMINISTRATION BOND - Requirements to be met - Probate and Administration Ordinance 1951-1960 S.S. 14 and 15 - Service and Execution of Process Act 1901.

B. was the holder of a power of attorney from R. the sole executrix and beneficiary under the will of M.R. As such attorney B. applied to the Registrar for a grant of Administration with the will annexed until such time as R. applied to the Court for a grant of probate. B’s application was lodged under S. 14 of the Probate and Administration Ordinance 1961 and she proposed as one surety a resident of the Territory and as a second surety the executrix who was resident in Queensland, in which State the testator was also resident at the time of his death. Assets existed in the Territory to the approximate value of £2,000. There were no Territory debts.

Held:

That from an examination of the authorities one clear principle emerges concerning the appointment of foreign sureties. In determining whether persons resident outside the jurisdiction are acceptable as sureties the dominating consideration is wether there are adequate facilities available for the enforcement of the bond. In the present case there is no difficulty in the way of enforcing a bond undertaken in the Territory for, by virtue of the Commonwealth Service and Execution of Process Act 1901 (which extends to the Territory of Papua and New Guinea), such bond may be enforced in any of the Australian States.

Other matters to be taken into consideration are:

1.       The value of the estate.

2.       The apparent financial status of the proposed sureties.

3.       The residence of the applicant within the jurisdiction.

Order directing the Registrar to accept R. of Queensland as a surety upon proof of the possession by R. of assets to cover the bond, independent of those held in the estate.

Counsel:

White, for the applicant.

OLLERENSHAW J:  This is an application to obtain a direction to the Registrar to accept a person resident outside the jurisdiction as one of the sureties to the administration bond, which is required under Section 14 of the Probate and Administration Ordinance 1951-1960. Alternatively application is made to obtain dispensation with one of such sureties as provided for in Section 15 of this Ordinance.

The deceased, Max Rothberg, died resident in Queensland on the 24th February, 1961, leaving assets in this Territory of the approximate value of £2,000 and no debts here.

By his will this testator devised and bequeathed the whole of his estate to his wife, Doris Elizabeth Mary Rothberg, of Queensland, and he appointed her to be his sole executrix.

The widow has given a power of attorney to her daughter, Elva Jenada Blackmon, who resides in this Territory, authorizing her to apply to this Court for a grant of administration of the estate of the testator with the will for her use and benefit and until she, herself, shall apply for and obtain probate of the said will to be granted to her by this Court.

The attorney has made application for such a grant and has furnished her bond with one local surety, namely her husband, and one living in Queensland, namely the widow.

In May, 1893, in the course of the development in England of the Court’s attitude to foreign sureties a Direction was promulgated in the Probate, Divorce and Admiralty Division of the High Court of Justice whereby in a case where the deceased left no debts in England, the leave of a Judge to be allowed to give bond with foreign sureties may be obtained at chambers. This direction has suffered some modifications in England but it has no counterpart in this Territory and although this matter first came to me upon an oral reference by the Registrar, it is now properly before me upon a Summons issued by Mr. White, who appears for the applicant: See In the Goods of MacKenzie[cxcviii]¹.

It is interesting and instructive for the purposes of this application to trace the change, or rather the modification of the attitude of the English Court of Probate to foreign sureties.

Before the year 1865 persons resident outside the jurisdiction of the Court were not accepted and residence even in, e.g. Scotland, attracted no exception. The rule established by the authorities and applied, it seems, inflexibly, was that sureties must be resident in, and justify to assets within the jurisdiction.

In that year, however, Sir J. P. Wilde in the case of In the Goods of Houston[cxcix]² accepted two sureties resident in Scotland in the estate of a deceased resident of India, who left no debts in England, and in which the person entitled to administration was the sole beneficiary, resided in India and had appointed a resident of Scotland to take out Letters of Administration. There was also evidence before the Court of the inconvenience, in the circumstances, of finding sureties in England. This decision was followed in the year 1879 by Sir James Hannen, President of the Probate, Divorce and Admiralty Division of The Hight Court of Justice, who allowed sureties resident in Paris in the estate of a deceased resident of Cuba, whose sole beneficiary was also a Cuban. There was before the Court evidence that the beneficiary’s attorney, who was also a foreigner, was unable to obtain English sureties and, most importantly, also the opinion of a French advocate that the sureties could, if necessary, be sued in France on the bond: In the Goods of Teodoro Uzuaga Y Fernandez, deceased[cc]³.

The modification in the attitude of the English Court of Probate revealed in these cases resulted in the direction of May, 1893, to which I have already referred, whereby, in effect, it was directed that (1) in a case where the deceased had been a foreign subject resident abroad and left no debts in England, the leave of a Judge for the allowance of a bond with foreign sureties should be obtained at chambers, (2) in all other cases leave for the allowance of sureties not resident in the United Kingdom, the Channel Islands or the Isle of Man should be obtained from a Judge by a formal application to be made in the usual way.

Two reported cases, which followed soon after the Direction of 1893 serve to emphasise the recognition by the Probate Court in England that foreign sureties should be allowed in a proper case, namely: In the Goods of De Beaufort[cci]⁴ and In the Goods of Scott[ccii]⁵. In each of these cases the deceased had been and the person entitled to his estate was a French subject and the sureties proposed to the bond of the attorney of such person were residents of France.

In each of the four cases, which I have cited, the dominant consideration was the facility for the enforcement of the bond and in my view, this Court generally should allow as sureties to administration bonds, persons resident in Australia, who are able to justify to assets there, because there are available for the enforcement of a bond the facilities provided by the Service and Execution of Process Act, 1901, (as amended). The importance of the justification to assets should not be overlooked and it should not be assumed that the bald deposition of the proposed surety that he is possessed of property to the value of a certain amount would be sufficient to satisfy the Court in all cases.

I find support for my view as to the acceptance of sureties resident in Australia in the judgment delivered by Mansfield A. C. J., in the case of In the Goods of Mackenzie[cciii]⁶ (See also In The Estate of Stephens[cciv]⁷).

In his judgment the Acting Chief Justice of Queensland also set forth the other considerations which influenced him in directing the acceptance of sureties, who were resident in New South Wales, namely, the small value of the estate, the apparent financial status of the proposed sureties and the fact that the applicant for administration was resident within the jurisdiction. This is an approach with which I would, with respect, agree. I add that, while I do not consider that the existence of debts in the Territory would be a bar to the acceptance of sureties resident outside the jurisdiction, it should not be overlooked that the object of a bond is the protection of creditors as well as of beneficiaries and just as the smallness of the value of the estate is a consideration, which favours the allowance of foreign sureties, the existence of debts of no small amount would require special consideration.

In this estate the proposed surety, in respect of whom leave is sought is, herself, the sole beneficiary entitled to the estate. However, it has been established that a person beneficially interested in an estate may be accepted as a surety provided that justification is made to separate assets, held independently of the interest in the estate: Estate of Cregan[ccv]⁸.

I have given the application for the acceptance of the surety resident in Queensland the consideration which I have expressed in this judgment because I am informed that it is considered that it would be of benefit if there were a judicial pronouncement upon the acceptance of foreign sureties by this Court. After such consideration as applied to the short relevant facts, which I have already recited, I direct the Registrar to accept Doris Elizabeth Mary Rothberg, of Queensland, as one of the sureties to the applicant’s bond, upon such proposed surety justifying to assets in Queensland or in this Territory to the requisite amount, independently of her interest in the estate. In this connection I repeat what I have said as to justification to assets and I refer to the form of Affidavit of Surety and notes thereon appearing at pp. 634 and 635 of Hastings and Weir’s Probate Law and Practice, (2nd ed.)

I order that the costs of this application may be retained out of the estate.

Solicitor for the applicant: N. White, Port Moresby.

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[cxcviii](1950) Q.W.N. No. 29.

[cxcix]L.R. 1 P.D. 85.

[cc]L.R. 4 P.D. 229.

[cci](1893) P.D. 231.

[ccii](1895) P.D. 342.

[cciii](1950) Q.W.N. No. 29.

[cciv](1883) 9 V.L.R. (1 P. & M.) 22.

[ccv] (1931) 48 W.N., N.S.W. 188.