Balakrishna Ayyar, J.The facts immediately relevant are these. On 31st December 1929, one Annie Sibthorpe executed a Will whereunder she left her property to her two sisters Louisa Sibthorpe and Emma Sarah Sibthorpe. Annie Sibthorpe died on 19th February 1932. Louisa Sibthorpe made her last Will on 15th July 1948, and she died on 11th September 1950. On 10th June 1932, Emma Sarah Sibthorpe executed a Will whereunder she nominated Louisa Sibthorpe and Nathaniel to be her executors. Emma Sarah Sibthorpe died on 17th December 1932. Probate of all these three Wills was obtained at various times in the High Court of Judicature in Eire. The Petitioner Leslie Davison Miller holds a power-of-attorney from the executor of the Will of Louisa. Nathaniel, one of the two executors under the Will of Emma Sibthorpe, took no interest in the matter and the residuary legatee of her estate is the Church of Ireland. Leslie Davison Miller holds a power-of-attorney from "the representative body of the Church of Ireland". On the strength of these powers-of-attorney, Mr. Miller has applied for Letters of Administration with the Will annexed, of the properties of Annie, Sibthorpe, Emma Sarah Sibthorpe and Louisa Sibthorpe in this country.

2. Now, part of the property devised under the Wills of these three individuals are some shares in the Buckingham and Carnatic Mills and also in the Imperial Bank. Between the dates of the death of the individuals and the date of the present application the dividends payable in respect of these shares were from time to time remitted abroad.

3. The first question I have to decide is whether on the dividends that were so remitted, duty is payable by virtue of Section 56 of the Court Fees Act XIV of 1955. So far as is now material that section runs as follows:

The fee chargeable for the grant of probate or letters of administration shall comprise

(a) a fee at the rate or rates prescribed in Article 6 of Schedule I, computed

(b) where the application is made after the expiry of one year from each date, i.e., the date of the death of the testator, on the market Value of the estate on the date of the application.

It seems to me to be plain beyond dispute that ordinarily the estate of a person as on a certain date would, in the eye of law, be the original corpus plus all the accretions that have been lawfully made to it less everything that has been lawfully taken away from it. Now, the dividends payable on the shares which the deceased individuals held in the Buckingham and Carnatic Mills, and in the Imperial Bank would, therefore, naturally form accretions to the estate unless they have been lawfully subtracted from it. It is true that certain individuals in this country remitted the dividends abroad. But, so far as I can see, they had no legal authority to do so, since they were only intermeddlers with the estate, and in consequence those dividends must be considered to be accretions to the estate. The result follows that duty must be paid on them.

4. The learned Assistant Government Pleader cited a number of English cases before me, but I shall refer to only two of them. The first is reported in Attorney-General v. New York Breweries Co. (1898) 1 Q.B. 205. The head note gives an adequate summary of the case:

Upon the death of a testator, resident and domiciled in America, shares and debentures in an English company, of which he was the registered holder in the books of the Company in London, passed by his will according to the law of his domicile to his executors in America. At their request, the company registered them as the holders of two shares and a debenture in the place of the deceased, and paid to them the dividends and interest due upon the shares and debentures at the time of the testators death. The executors, to the knowledge of the company, had not obtained, and did not intend to obtain, probate of the will in England:

Held, that the company, by so dealing with the assets of the testator in England, constituted themselves executors de son tort, and were liable, upon an information filed by the Attorney-General, to pay to the Crown probate duty upon the assets so administered by them.

The observations of Rigby, L.J., on page 220, are also of interest.

By English law, with which alone we are concerned in this case, probate duty is payable in respect of all assets of a deceased person, whether domiciled or resident within this country or not, which are within the meaning of the numerous decisions on this point locally situated in England.

This decision was affirmed in New York Breweries Co. v. Attorney-General (1899) A.C. 62.

5. It was argued on behalf of the Petitioner that the money has gone abroad, and since it is not here it is not liable to pay duty. In my opinion, the fact that the money has been remitted abroad makes no difference. As the Lord Chancellor observed in page 70 in New York Breweries Co. v. Attorney-General (1899) A.C. 62.

The company, therefore, being now in possession of the share of the profits which belonged to the deceased person, are bound to see that they do not hand it over, or hand over anything that represents it, to any person who is not entitled to deal with it. That is their duty according to their constitution and according to law, because they are in possession of something which is available as assets of the testators estate, bona notabilia in this country.

In the present case, when the dividends were sent abroad, whoever sent them did so without legal authority in that behalf. Such a deduction from the estate of the deceased, is an unlawful one and cannot be recognised for purposes of duty. The duty must, therefore, be paid in respect also of these dividends.

6. So far as the application for Letters of Administration on behalf of the estate of Emma Sibthorpe is concerned, there is a further difficulty. The executor Nathaniel is alive and he has not formally relinquished his office. Nor is he legally incapable of acting. That being so, the residuary legatee has no power to act and a power-of-attorney which he has granted does not place the Petitioner in any better position. Section 222 of the Succession Act makes it clear that probate can be granted only to the executor appointed under the Will. Section 229 says:

When a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to accept or renounce his executorship.

The application for Letters of Administration, so far as it relates to the Will of Emma, cannot, therefore, be entertained. In respect of the other applications, additional duty must be paid to the extent indicated above. Time to pay is two months.