1. This second appeal arises out of a suit for accounts between principal and agent. The final decree of the trial Court directed the defendant to pay a substantial amount to the plaintiff as a result of the taking of the account. On appeal by the defendant, the lower Appellate Court set aside that decree and directed the plaintiff to pay the defendant a sum of Rs. 3780 odd and also pay the defendant's costs including the court-fee payable to Government on the memorandum of appeal to the lower Court. It is against this latter decree that the plaintiff has preferred this second appeal. The defendant was adjudged an insolvent during the pendency of the appeal in the lower Court and the Official Receiver has continued the proceedings as representing the defendant's estate.
2. According to the plaint, the claim for account arose out of an agency constituted in March 1911 by a power of attorney marked Ex. A. But in substance the agency goes back to an earlier date. During the plaintiff's minority, a bond for Rs. 90,000 had been executed in his favour by two persons, a lady named Jumna Bai and a minor named Sethuram. The plaintiff and his mother who was his guardian were residents of Baroda but the executants of the bond were residing in South India. When it became necessary to institute a suit to recover the money due under that bond, the defendant's father was constituted agent by the plaintiff's mother and put in charge of the litigation. The suit was instituted in 1904, but even while it was pending before the trial Court, the defendant's father died and the evidence shows that the defendant attended to the subsequent stages of the trial till judgment was delivered by the trial Court in January 1906. We have not got the power of attorney or any formal document under which the defendant was appointed agent during the pendency of the suit in the trial Court. The only documentary evidence we have relating to this period is Ex. 1, dated 6th July 1906 wherein reference is made to the services rendered by the defendant's father and by the defendant in connexion with the suit and it is stated that the plaintiff's mother had agreed to pay a sum of Rs. 1500 by way of remuneration for the conduct of the suit; a period of two years was fixed by that document for payment of the amount. As the parties anticipated further proceedings in the suit, both by way of a possible appeal by the other side and by way of necessary proceedings in execution of the trial Court's decree, a further agreement was come to between the defendant and the plaintiff's mother acting on the plaintiff's behalf; this is evidenced by Ex. 2 which bears the same date as Ex 1. The defendant presumably acted under this arrangement for the rest of the litigation but when the plaintiff attained majority in October 1910, it was apparently thought more regular to have a power of attorney executed by the plaintiff in the defendant's favour (see Ex. A). The plaintiff instituted this suit on the basis that the agency was constituted by this document, but in the circumstances it seems to us more reasonable to hold that the agency really began under Ex. 2 and that the plaintiff merely adopted it and continued it by the execution of Ex. A.
3. We shall refer to the provisions of Ex. 2 in detail in due course. It is sufficient at this stage to say that it required the defendant to attend to the conduct of the possible appeal in the High Court as also to the conduct of the proceedings in execution of the trial Court's decree. The High Court pronounced judgment on 29th July 1910 varying the decree of the lower Court to this extent, namely whereas the lower Court had passed a decree against both the executants of Ex. A, the High Court confirmed the decree as against Jumna Bai and dismissed the suit as against Sethuram. The result was that an appeal was taken to the Privy Council by Jumna Bai and an appeal was also taken to the Privy Council by the plaintiff against so much of the High Court's decree as dismissed the suit as against Sethuram. The Privy Council delivered judgment in March 1916 confirming the decree of the High Court. In the meanwhile, proceedings were being taken in the mofussil in execution of the Appellate Court's decree as the High Court declined to grant stay of execution. In the course of the execution proceedings, a sum of about Rs. 26,000 was realised by the defendant upto 1918. In 1918, some villages belonging to the judgment-debtor were purchased in court auction in execution of the decree, on behalf of the plaintiff himself and the defendant was asked to take possession thereof and manage them as agent. To facilitate this management a fresh power of attorney Ex. B was executed in his favour by the plaintiff on 6th May 1918; the defendant continued the management or mismanagement till some time in 1922, though the correspondence of the later part of this period shows a growing estrangement between the principal and the agent. In August 1922 the defendant tendered his resignation by Ex. C and it was accepted by the principal subject to certain reservations. (Vide Ex. C-1.) Even after this resignation, the defendant did not render an account to the plaintiff, notwithstanding the issue of a lawyer's notice Ex. D. This suit was accordingly filed on 31st July 1925.
4. The plaint made several allegations of negligence, misconduct and misappropriation against the defendant and ask for an account being taken of the moneys which came into his hands from 1911 to 1918 as also of his management of the villages between 1918 and 1922. The defendant pleaded in bar to the suit that he was not accountable to the plaintiff but only to his mother and that in fact he had rendered account to his mother. The issues relating to these pleas were tried in the first instance and they were decided against the defendant both by the trial Court and by the the lower Appellate Court. The other issues in the case were thereafter tried and accounts were also taken by a commissioner and as a result the Courts below came to pass the final decree referred to supra. Though the parties are at issue on a number of points, it will be sufficient for the purpose of this second appeal to refer to a few main heads of dispute. The matter comes before this Court in second appeal; and so far as the findings of fact recorded by the lower Appellate Court are not vitiated by any error of law, it is not open to this Court to displace them. As we have come to the conclusion that the lower Appellate Court has fallen into serious errors of law in dealing with the principal questions arising in the case and has also failed to view some of them from the correct standpoint, we are obliged to deal with the questions raised before us with comparatively little help or hindrance from the judgment of the lower Appellate Court.
5. For convenience of discussion, the Courts below have rightly divided the case into two main heads, namely (1) the receipts and disbursements prior to 1918 which mainly related to the conduct of proceedings in Court whether in the appeal or in execution and (2) receipts and disbursements subsequent to 1918 which mainly relate to the management of the villages purchased in execution. Under both heads, one of the main points in dispute between the parties relates to the remuneration claimed by the defendant, and indeed this is a substantial figure. It will therefore be convenient to deal with it at the outset. We may premise this part of the discussion by stating that it has been found by both the Courts that prior to 1918, the defendant had come into possession, of a sum of Rs. 30,840-13-9; there is accordingly no dispute about the receipt side so far as this part of the case is concerned. The dispute relates only to the items in respect of which the defendant claims credit. Before dealing with the details making up the claim for remuneration it will be convenient to deal with one larger question raised by issue 7 in the case, namely whether the defendant has forfeited his right to remuneration by reason of misconduct in the discharge of his duty. This contention of the plaintiff covers the conduct of the defendant prior to 1918, as well as his conduct subsequent to 1918, but it may be dealt with here once for all.
6. There can be little doubt as to the legal principle applicable. We must express our dissent from the view of the lower Court that the agent's claim to remuneration will not be affected by his misconduct unless it is also shown that the principal has incurred loss thereby. We must also observe that the learned Judge was in error in thinking that even where loss had been caused to the principal, it was sufficient if the agent was directed to make good the loss, and once he does it, he will be entitled to his full remuneration. These views of the learned Judge wholly ignore the provisions of Section 220, Contract Act; the illustrations to that Section make it clear that the payment of damages caused by the misconduct is in addition to the forfeiture of commission or remuneration, and the forfeiture of commission is the result of misconduct and not of loss arising from the misconduct. The principle underlying the rule is that 'a principal is entitled to have an honest agent and it is only the honest agent who is entitled to any commission' Per Lord Alverstone, C.J. in Andrews v. Ramsay & Co. (1903) 2 K.B. 635 . Reference may also usefully be made to the following passage in Story's Laws of Agency in para. 331:
It is a condition precedent to the title of the commissions, that the contemplated services should be fully and faithfully performed. If therefore the agent does not perform his appropriate duties, or if he is guilty of gross negligence, or gross misconduct, or gross unskilfulness, in the business of his agency, he will not only become liable to his principal for any damages, which he may sustain there by, but he will also forfeit all his commissions. Slight negligence, or slight omissions of duty, will not indeed, ordinarily be visited with such serious consequences; although if any loss has occurred thereby to the principal, is will be followed by a proportionate diminution of the commissions.
7. Judged by the above test, we regret to say that the conduct of the, agent in this case has certainly not been faithful. So far as the work prior to 1918 is concerned, the agent's part in the proceedings to be taken in the Court must in the very nature of things have been small, because the matter was in the stage of appeal or execution and was in the hands of lawyers. The more important part of his duty during this period therefore was the proper disbursement of the moneys that came into his hands and duly accounting for them. The letters which have been exhibited out of the correspondence that passed between the agent on the one hand and the plaintiff or his mother on the other, between 1911 and 1918 are sufficient to show how the defendant kept them almost wholly in the dark as to what was happening here. Nonetheless, they heard with some relief that a small amount had been realized in execution; they congratulated him upon it and asked him to invest the realizations duly and they were being assured by the defendant that it was being so done. It now however turns out that it is not possible to know how the agent had invested them, on what terms or with what results. Such little evidence as we have clearly suggests that a portion of these moneys seems to have been utilized by him for his own purposes. In the witness box, he admits that he was carrying on some money-lending business of his own which he claims to have been doing with his own moneys. He however states that he has never kept any account for this business and adds that he mixed up his [funds with the principal's funds and invested them in one account in some local fund in Tanjore. Even the pass book or other voucher relating to that investment has not been made available. Having kept the principal in the dark as to the expenditure incurred by him, he pleaded when it came to the suit, that he had rendered account either to the mother or to the mother and the plaintiff together and that he had handed over all the papers to them. This has been found to be a false plea. All that 'happened is that he sent a miserable sheet of paper to the plaintiff which conveyed comparatively little information and was accordingly returned by the plaintiff to the defendant. The defendant has now produced Ex. X as that paper. At the time when the preliminary judgment was passed, the defendant was directed to file a statement of account, and he accordingly filed one. It is to this statement of account that the plaintiff filed objections as per directions of the Court.
8. It appears that there are very considerable differences between Ex. X and the account now filed by the defendant in Court. The answers of the defendant from the witness-box when these differences were brought to his notice are painful reading. We do not go into this matter in greater detail because both the Courts have concurrently found that many items of disbursements entered either in Ex. X or in the account now submitted are false. Coming to the period of management of the villages, subsequent to 1918, the defendant's management has certainly been indifferent and unbusinesslike. The report of the commissioner as to the state of the accounts throws sufficient light on the mismanagement. It is perhaps too much to say that there is as much of proved dishonesty during this period as during, the period prior to 1918; but that there has been a lapse from honesty at least in some matters may safely be said. We do not feel that the lapse during the whole period from 1911 to 1922 can be said to be 'slight' within the meaning of the rule stated by Story. But, for reasons which we shall presently advert to, we do not propose to go to the length of denying all remuneration to the defendant on the ground of misconduct.
9. The claim for remuneration in respect of the period prior to 1918, has been considered by the Courts below under four heads, (1) for the conduct of the trial of the suit on the Rs. 90,000 bond, (2) for the conduct of the appeal in the High Court, (3) for the conduct of the proceedings before the Privy Council, and (4) for the conduct of the execution proceedings. The remuneration claimed for the management of the villages stands on a slightly different footing, because the percentage allowed to the defendant under Ex. B covers not merely his remuneration proper but also the expenses of management. For both purposes, Ex. B allows him 15 per cent, of the collections. Under the first head, the defendant claimed Rs. 1500 on the basis of Ex. 1. Under the second head, he claimed Rs. 3000 on the basis of Ex. 2. As regards the third head, there was admittedly no specific agreement between the parties and the Courts below have allowed some reasonable remuneration to the defendant. As regards the fourth head, he claimed Rs. 5000 on the basis of (Ex. 2. The trial Court refused to act upon Exs. 1 and 2 on the ground that they were not binding on the plaintiff, as they had been entered into during his minority and it was of the opinion that in some respects the remuneration was excessive and that the mother was not shown to have had independent advice in agreeing to its terms. The learned District Judge was however of the opinion that there was no justification for declining to act upon Exs. 1 and 2. We think that the plaintiff after he attained majority or at any rate after 1917 must have been clearly aware of Ex. 2 and have acted on the basis thereof. We do not find sufficient reason for dissenting from this view of the learned District Judge. We therefore propose to deal with this part of the case on the footing that Ex. 2 is binding on the plaintiff. Even as regards Ex. 1, there is no sufficient reason for thinking that the remuneration provided is excessive. There is however one insuperable difficulty in the defendant's way, so far as his claim under Ex. 1 is concerned. The services to which that part of the claim related bad been completed as early as 1906 and in the ordinary course, a claim to recover remuneration therefor would have become barred at the end of three years therefrom. Ex. 1 however takes a period of two years from its date for payment and it may be possible to start limitation from the expiry of the two years, treating the case as one falling under Article 115, Limitation Act, on the ground of a special agreement. Even so the claim would be obviously barred on the date of the institution of the suit not to speak of the date of the written statement. The lower Courts have however allowed this claim of the defendant, on the ground that the suit being one for account, the defendant was in equity entitled to credit for all the items due to himself, though a suit by him for the recovery of any such item might be barred. And this conclusion was based upon the observations of this Court in Chidambaram Mudaliar v. Krishnasami Pillai (1916) 3 A.I.R. Mad. 720 . It seems to us that the Courts below have proceeded upon a misconception of that case. There can be no doubt in this case that the agency in respect of which the plaintiff has instituted this suit is wholly different from the agency to which Ex. 1 relates. As pointed out by Mr. Rustomji in the notes to Article 56, Limitation Act, the real question is not whether the work is continuous but whether the contract is continuous.
10. So far as the trial of the suit was concerned, the contract was in the first instance with the defendant's father and the stipulation for remuneration under Ex. 1 covers not merely the services of the defendant but also the services of his father. It is true that the proceedings in the High Court are in a sense the same matter as proceedings in the trial Court; but the contracts un-doubtedly are different. It is conceivable that anybody might have been entrusted with the charge of the conduct of the appeal and it was a mere accident that the defendant himself was thought of for the purpose. Even apart from this consideration, the fact that two independent documents Exs. 1 and 2 came to be executed on the same day is significant; and the terms of Ex. 1 are only consistent with the hypothesis that it was regarded by the parties as an independent bargain in respect of which the relation between them after the date of Ex. 1 was only that of debtor and creditor. The sum of Rs. 1500 was as from that date regarded as a debt recoverable from the plaintiff's estate, though on account of absence of funds a period of two years was provided for payment. The observations in Chidambaram Mudaliar v. Krishnasami Pillai (1916) 3 A.I.R. Mad. 720 , must be understood in the light of the further observation at p. 376 that in that case the right to account as between the parties was one that was subsisting on the date of suit. Here, there was in 1925 no subsisting right to account as between the parties in respect of the agency that related to the conduct of the suit in the trial Court which ended in 1906. We must accordingly hold that the defendant is not in this suit entitled to claim credit for the sum of Rs. 1000 or Rs. 1500 allowed in his favour by the lower Courts on the basis of Ex. 1.
11. Exhibit 2 provides for remuneration both in respect of the conduct of the appeal in the High Court and in respect of the conduct of the execution proceedings. For the first it fixed Rs. 3000 as remuneration payable in the event of success, and Rs. 1000 as payable in the event of non-success. We have already stated that what happened in this case was that the plaintiff lost as against one of the executants of the bond and succeeded as against the other. There has been some argument whether this is to be regarded as success or non-success, within the meaning of the provision in Ex. 2. We prefer to proceed on the view taken by the District Judge that for all practical purposes, it must be taken that the plaintiff was successful in the High Court. On this footing, the defendant would have been entitled to claim Rs. 3000 as his remuneration, for this part of his work. But there are two difficulties in his way; one is the view that we have already expressed as to his misconduct; the other arises from the frame of the suit. As we have stated already, the plaint claims relief only in respect of the agency that is alleged to have commenced in 1911 while the services of the defendant in connexion with the appeal in the High Court came to an end with the decision of the High Court in July 1910. It is accordingly contended on behalf of the plaintiff that any claim for remuneration for work done in the High Court is outside the scope of this suit. And the same line of argument as to limitation has been urged as was done with reference to Ex. 1. We do not however think that this part of the claim stands on the same footing as Ex. 1. Though the plaint claims account only in respect of the period subsequent to 1911, the account certainly relates to the receipts and disbursements in connexion with the execution proceedings.
12. As to this part of the arrangement under Ex. 2, we have already expressed the view that Ex. A is not an independent contract by itself but is only in furtherance of Ex. 2. Ex. 2, though it provides for two pieces of work, namely the High Court appeal and the execution proceedings in the Courts below, must be taken to be a single contract; and in this view neither the plea of limitation available in respect of the claim under Ex. 1 nor the plea that the High Court appeal must be treated as an independent contract will be available to the plaintiff. But the plaintiff seems to us right in his contention that if the defendant's claim for remuneration in respect of the High Court appeal is to be entertained in this suit, the defendant must also be called upon to account for all receipts and disbursements that passed through his hands between the date of Ex. 2 and the date of Ex. A. If we were attempting to work out a complete account between the parties, we should have given the parties an opportunity to go into those accounts also. But, here again, for reasons which will presently appear, we do not think it necessary or worth while to prolong these proceedings by directing any such further account. As regards the remuneration for the conduct of the execution proceedings, it has been contended with some justification that the provision for Rs. 5000 is excessive, but as we have held that Ex. 2 is binding on the plaintiff, we do not base any conclusion upon this argument. It only remains to point out that the trial Court attempted to fix the defendant's remuneration on a quantum meruit basis, as it had held that the plaintiff was not bound by Exs. 1 and 2. The learned District Judge awarded to the defendant full remuneration as per terms of Exs. 1 and 2 as he had held that they were binding upon the plaintiff. In the view we have above indicated the claim based on Ex. 1 must be disallowed as being barred, but the defendant would be entitled to claim on the basis of Ex. 2 except for our view on the question of misconduct and his claim will also be subject to his accounting in respect of the moneys that came into his hands between 1906 and 1911.
13. We however find that the plaintiff did not file an appeal to the District Court against the Sub-Court's decree objecting to the amount awarded by the learned Subordinate Judge to the defendant under the head of remuneration. We do not wish to be understood as saying that his omission to appeal wholly ties our hands in a suit of this kind, but we may take it as some indication that he was prepared to acquiesce in the Subordinate Judge's decree and that he did not regard the remuneration awarded as 'excessive. We have also been informed that the plaintiff does not stand to gain very much even if we should give him a decree for a larger amount than was awarded by the Subordinate Judge because the defendant had become insolvent. In view of these considerations, we have thought it unnecessary either to direct a further enquiry in respect of the period between 1906 and 1911 or to deny all remuneration to the defendant. We set aside the lower Appellate Court's decision on the above points and restore that of the Subordinate Judge. It is unnecessary to deal with the remuneration claimed in respect of the conduct of the Privy Council appeal because both the Courts have agreed on that matter and there has been no argument before us in respect of that head.
14. As regards the claim for remuneration in respect of the management of the villages subsequent to 1918, we are unable to see any justification for the learned District Judge having enhanced the amount awarded by the trial Court. If anything, there was considerable justification for reducing the amount, and on at least two points, the learned District Judge is obviously in error, namely, (i) when he thought that by reason of the payment of damages, the defendant was placed in a position to claim his full remuneration, and (ii) when he thought that the defendant was entitled to claim 15 per cent, on the Rs. 17,000 and odd found by the commissioner, though according to the defendant only Rs. 13,000 had been collected. Here again, as the plaintiff had not taken exception to the sum of Rupees 2003-9-1, awarded by the trial Court under this head, we confirm the trial Court's decision on that point.
15. The next important item pressed in the, appeal relates to the money due under the decree in O.S. No. 412 of 1916 on the file 'pf the District Munsif's Court, Tanjore. Here again, it is impossible to approve of the way in which the question has been dealt with by the learned District Judge. Admittedly, that suit was instituted on a promissory note obtained in the plaintiff's name. The decree also stood in the plaintiff's name and the defendant asked that the decree should be transferred to him. We need not go the length of saying that the defendant had no right to use his principal's name for a benami transaction of his; own. But the least that should be insisted on in a case of this kind is that it should I be proved beyond all doubt that the money was the agent's money and not the principal's and that the transaction was truly a benami one. Where an agent mixes up his moneys and the moneys of his principal, the onus clearly lies on the agent to prove that any particular transaction which is claimed by him to belong to himself really represented his money : see Tulasamma v. Venkatasubbiaha (1925) 12 A.I.R. Mad. 1125.
16. The learned District Judge reverses the rule and attempts to consider whether the plaintiff had shown that the promissory note to which O.S. No. 412 of 1936 related was taken for an advance of the plaintiff's moneys. Even apart from the special rule arising out of the defendant's agency, the onus must have been laid on the defendant who pleaded that it was a benami transaction. The defendant admits from the witness-box that he has no evidence to prove that the money lent under that promissory note was his. This was sufficient to support the decree of the learned Subordinate Judge and it passes our comprehension how the learned District Judge reached a different conclusion. We may also observe that independently of the attempted calculations as to the possible amount of interest that might have been received by the defendant out of the investments of the plaintiff's moneys prior to the date of this loan, the defendant on his own admission had about Rs. 24,000 of the plaintiff's money before this date out of which he has accounted only for about Rs. 12,000 or Rs. 13,000. We must express our dissent from the special pleading in the lower Appellate Court's judgment on this part of the case as to possible claims for interest which the defendant might have against the plaintiff even in respect of his remuneration. The learned District Judge ignored the distinction between the agent's claim for remuneration which, in the absence of a special contract, becomes payable only on the completion of his duty and the principal's moneys in the agent's hands which the agent has been specifically directed to invest. It does not appear to us necessary to say more against this part of the lower Appellate Court's judgment. This, decision must be set aside and the direction of the trial Court restored.
17. The third main item for consideration relates to certain Government promissory notes which the defendant purchased for being deposited as security in connexion with the plaintiff's appeal to the Privy Council against so much of the High Court's decree as dismissed his suit against Sethuram. The evidence of the defendant on this part of the case is extremely unsatisfactory. The accounts of the Madras Vakil produced by the defendant (Ex. 13) do not make any reference to this purchase. The defendant's story that he paid money for this purpose into the vakil's hands cannot be accepted. In all probability the defendant must have been in Madras and made arrangements presumably with the vakil's help for the purchase of the Government promissory notes. At a late stage of the enquiry it was found that the papers purchased represented 3 per cent, issue of 1896-97. The learned District Judge has given credit to the defendant in this connexion for the face value of the notes and he finds fault with the plaintiff for not having made available evidence as to what the actual costs must have been. This is only another instance of misapplied onus. Whatever may be the difficulty in fixing the exact figure, we may fairly take judicial notice of the fact that it could not have been the face value of the paper. The defendant would have been entitled to credit only for the money actually spent in the purchase of the promissory notes. It appears from the accounts that the interest on these promissory notes had been collected only to a small extent, namely Rs. 175 in September 1913. The papers seem to have come back into the defendant's possession in 1916 and it is his case that he sold them in 1920. He adds that at the time of the sale there remained about three years' interest unrealized. We are not satisfied that this has been proved beyond doubt. If it was true, it necessarily implies that the defendant must have drawn other sums for interest between 1912 and 1917. Whether drawn or not, the plaintiff was in any event entitled to credit for all the interest realized on the promissory notes. We do not think it worthwhile criticizing at length the learned Judge's arguments for holding that the defendant is not accountable to the plaintiff for this item. He merely falls back on the arguments which we have already noticed, that this might well be set off against the defendant's claim for interest on his remuneration. Here again, we refrain from directing a further account because we do not propose to do anything more than restore the trial Court's decree.
18. For the same reason we do not propose to deal at length with some of the minor items referred to in the Appellate Court's judgment and rejected by the Appellate Court merely on the ground that they had not been made the subject of a cross-appeal by the plaintiff to the lower Appellate Court. Seeing that the suit is one for accounts, the mere omission to file a cross-appeal would not be a fatal objection. We may also point out that in any event the plaintiff would have been entitled to maintain the decree of the trial Court by claiming credit for items not allowed by the lower Court at least as against the other items on which the Appellate Court was inclined to vary the directions of the lower Court. There is one observation of the learned District Judge which we do not wish to allow to pass unnoticed. The evidence establishes that in respect of certain proceedings in Courts conducted by the defendant on the plaintiff's behalf a sum of Rs. 750 was recovered from the other side as vakil's fee. It appears that only a smaller amount was in fact paid on the plaintiff's behalf to the vakils who conducted these proceedings. The learned Judge nevertheless thinks that the defendant was entitled to retain the balance for himself. He is neither the vakil nor the party. Whatever he got, he got for his principal and if part of it was not really disbursed, it must go to the credit of the principal and cannot on any pretext be retained by the agent.
19. We accordingly set aside the decree of the lower Appellate Court and restore the decree of the trial Court. The plaintiff will be entitled to his costs in all the Courts, to be paid from out of the defendant's estate in the hands of the Official Receiver. The direction in the lower Appellate Court's decree that the plaintiff should pay the court-fee payable to Government on the memorandum of appeal in that Court wilt be set aside and there will be a direction to the Official Receiver to pay the court-fee' payable on that memorandum of appeal to the Government, from the estate in his hands. The memorandum of objections is dismissed with costs to be paid out of the estate.