1. Much time, and I fear expense, has, been wasted on this litigation, for I cannot help thinking that the true nature of the suit hag been misunderstood. Though I would not hold the plaint up as a model of good drafting, still I think it is clear what its purpose is. The plaintiff is the widow of a deceased testator. Her case is that she obtained under her husband's will a share in his residue for the interest indicated in the will. The executor of that will, according to her, was one Ashutosh Roy who died on the 2nd of January 1904, leaving the present first defendant his sole heir. The testator died on the 21st January, 1895, and probate of the will was taken out by Ashutosh Roy on the 14th of November, 1895. The plaintiff says that there were considerable assets, that the estate remained in the hand of the executor Ashutosh up to his death, and was not handed over to her or her co-residuary legatee even on his death. It is in these circumstances that she has instituted this suit. The lower Courts have unanimously rejected her claim. There seems to be an idea running through the judgments that a residuary legatee cannot obtain an account for the purpose of recovering her legacy unless there is some allegation of misappropriation or devastation or something of that sort. But it is clear that a residuary legatee is entitled to recover her legacy or her share in it, and in the generality of cases, that would involve an account for the purpose of ascertaining what that share was, and that is all that the plaintiff really seeks in this case. The learned vakil, who appeared for the plaintiff, conceded that on her plaint, as it is framed, the plaintiff cannot ask for an account on the footing of wilful default, but maintained that She is entitled to get such an account as is necessary for the purpose of ascertaining what the residuary share is, to which she became entitled under her husband's will. This for some reason that I do not appreciate, all the Courts have rejected. There has been some suggestion that the executor is discharged from all liability to account because he has filed certain accounts in the testamentary jurisdiction, but that is not a sufficient answer to a suit brought against an executor for the purpose of enforcing a right to the residue under a will. In support of this I need only refer to Bissell v. Axtell (1688) 2 Vern. 47; 23 B.R. 641 to which attention was drawn in Khitish Chandra Acharya Chowdhury v. Osmond Beeby (1912) I.L.R. 39 Calc. 587.
2. It has been suggested before us that perhaps there might be the bar of limitation. But this suit is one which comes within Article 123 and so is within time, for it was instituted within twelve years from the time when the hare became payable.
3. We accordingly reverse the judgment of Richardson J. and the decrees of the lower Courts and send back the case that it may be determined whether the plaintiff is entitled to the legacy, that is to say, the share of the residue which she alleges was bequeathed to her by the testator. If accounts are necessary for the purpose of ascertaining that residue, those accounts must be directed. It is true that the executor is dead, but his estate which would be liable at least to the extent to which it was enriched, is represented by the presence before the Court of his sole heir and representative. That does not mean that the heir, or representative is personally liable for his father's breach of obligation, if breach there was, but that he is liable to the extent of the assets received from the father's estate. It is an unfortunate feature in this case that the plaintiff; is a purdanashin lady and the defendant is a minor who has as his guardian his mother, also presumably a purdanashin lady, and, in taking the account the Court will of course have regard to the fact that it is the father of the minor and not the minor himself who had direct knowledge of events, and will give such effect to that circumstance as may be required by the justice of the case. But at the same time the plaintiff is entitled, as far as possible, to have the residue ascertained and have her right to it established in this suit. The matter in dispute is not large. I have indicated what the position of the several parties is, and I venture to express the strong hope that when this case goes back to the Court of first instance, some arrangement may be made between the parties, which will do away with the necessity of further litigation.
4. There has been such misconception of the position that we think the proper order for costs will be that each party will bear his own costs up to this stage of the litigation.
5. I agree.