Such persons shall have recourse for their claims on the said estate or on the said trustee.

The costs incurred for the realisation of any portion of the estate over which any creditor shall hold any special mortgage as security for his claim, shall be paid out of the proceeds of such property, and when the proceeds shall be insufficient for the same, such creditor shall be personally liable.

Costs of sequestration incurred for other purposes shall in the latter case not be recoverable from the proceeds of such property.

NOTES.

The costs of a voluntary surrender are treated as part of the costs of sequestration, and as such are payable by the trustee (Du Preez vs. Botes' Trustee, 2 J. 386).

The trustee of an insolvent estate, who had been arrested and detained in a foreign country on account of a claim connected with his administration of the estate, was held not to be entitled, without special authorisation from the creditors, to charge the estate with damages sustained by him in consequence of such detention (In re Reinach, 2 G.W.R. 134).

Creditors who have proved on an insolvent estate in which there is a contribution account are liable to contribute, although the expenses were incurred before they filed their proofs (Standard Bank vs. Biden's Trustee, 2 G.W.R. 222).

Special mortgagees are not liable for a pro rata share of costs incurred in an unsuccessful action, to the bringing of which they refused their assent (S.A. Association vs. Van der Spuy's Trustee, B. 1870, p. 49).

The costs of a voluntary sequestration (which, as above stated, are preferent) must, after proper taxation, be paid out by the trustee as part of the costs of the estate, and not proved as a debt (l'an Zutphen vs. Macfarlane, 3 C.L.J. 92).

So long as it is not shown that the opposition to an application for a person's compulsory sequestration is malá fide, the costs of such opposition will be included in the costs of sequestration (Ballot vs. Strobel's Trustee, O.R. 1897, p. 234).

In Rolfes, Nebel & Co. vs. Norris (O.R. 1897, p. 469), the applicants for sequestration had consented to the discharge of the provisional sequestration of the respondent's estate, the respondent having paid the whole of applicants' claim. It was held that applicants must pay all costs, inasmuch as they were responsible for such costs having been incurred.

114. The trustee of any insolvent estate shall as soon as may be, and not later than six months after the confirmation of his appointment, frame and lay before the Master of the High Court, unless the Master of the said Court, upon his application stating the grounds thereof, of which application he must give at least fourteen days' notice previously in the Staatscourant, shall grant further time for that purpose:—

I. An exact account of the said estate, stating—
(a) The proceeds of all sales.

(b) The amount of all debts collected.

(c) An account of all debts still outstanding.

(d) An inventory of all property and effects still unsold. (e) All debts due by the estate.

II. A general plan for the distribution of the assets of the estate, stating

(a) Such creditors as are preferent by law in the order of their legal preference.

(b) The concurrent creditors, and balance which remains for division among them.

NOTES.

Trustees sold land belonging to an insolvent estate, and credited the account, which was not the final one, with the purchase price, although it had not yet been received. The purchaser became insolvent, and the sale was canceled. The Court allowed the trustees to debit the estate with the amount in their next account (In re Cerfontijn, 4 J. 157).

The period allowed to trustees of an insolvent estate, within which to file their account, having elapsed, and no extension of time having been applied for, the Court, on the application of a creditor, ordered an account to be filed, notwithstanding the allegation by the trustees that the funds in their hands were comparatively small, and that legal proceedings were pending relative to assets of the estate (London and South African Bank vs. Stratford's Trustees, B. 1875, p. 123).

The Cape Supreme Court (In re Maskell, B. 1873, p. 28) granted an order of personal attachment against a trustee for not complying with an order of Court to file their liquidation and distribution account.

115. When the place of residence of any insolvent shall be outside the limits of the district of Pretoria, the trustee shall, before laying the account and plan aforesaid before the Master of the High Court, lay the same before the Landdrost of the district, or the Special Landdrost of the public diggings where the estate is situated, in whose office it shall remain for the inspection of creditors for at least seven days.

Every Landdrost or Special Landdrost shall cause to be affixed in some public place, in or about his office, a list of all such accounts and plans as aforesaid lodged in his said office, together with the dates of their intended transmission to the Master of the High Court.

116. The account and plan of distribution before-mentioned shall also lie open at the office of the Master of the High Court for the inspection of creditors for a reasonable time, to be appointed by the said Master, not being less than fourteen days from the date at which the trustee or trustees of the said estate shall cause notice thereof to be given in the Staatscourant.

117. It shall be lawful for the insolvent, or any party interested in the estate under sequestration, within the time aforesaid, to enter objections against the said account and plan of distribution in writing with the said Master of the High Court, stating the grounds. thereof.

And it shall also be lawful for the High Court to permit such objection to be entered at any time before the final confirmation of the said account and plan upon sufficient cause to be shown to the satisfaction of the said Court, and upon such terms as the Court shall impose.

NOTES.

A proof of debt upon an insolvent estate was admitted, but the trustees in error omitted to award dividends in the first and second accounts, both of which were confirmed. The third account was filed, and no dividend was awarded therein. Before confirmation thereof the creditor moved to have it amended, so that, out of the moneys available, the dividends due on the first and second accounts should be awarded to him, and out of the balance a pro ratú dividend should be awarded him, as due on the third account. The Court granted the order (Union Bank vs. Ruperti's Trustees, 4 J. 444).

118. Any person lodging objections to the said account and plan of distribution shall call upon the trustee, and also upon the party whose interest may be affected thereby, to appear before the High Court and to show cause why the plan shall not be altered or amended.

The hearing and adjudication by the High Court of such objection must take place within a period of fourteen days after such objection has been lodged; and in default of any such hearing and adjudication, the objection shall be deemed to have lapsed.

The said Court, after hearing the parties respectively, shall make such order as to them shall seem just.

When however any alteration or amendment in the plan shall be ordered by the said Court, whereby the interest of any party who has not made appearance in the said Court shall be affected, the same shall again lie open for inspection of the creditors, after notice thereof as aforesaid.

119. If no objection has been lodged against the account and plan of distribution, the Master of the High Court shall confirm the same.

If objections have been lodged, then the High Court, after hearing such objections, shall decide upon the same, and upon the confirmation of the said account.

Such confirmation either by the High Court, or by the Master of the High Court, shall have the effect of a final sentence, except against such creditors as shall afterwards be admitted by the said Court in manner hereinbefore provided to prove their debts and rank upon the said estate at any time before the final distribution thereof.

NOTES.

If the free residue of an insolvent estate is insufficient to pay the costs of sequestration, the confirmation by the Court of the trustee's plan of distribution has not the effect of a final judgment as against the creditors who have proved their claims, and who are specified in such plan as being liable to contribute pro ratá towards payment of such costs (Steyn's Trustee vs. Gous, 11 J. 348).

A creditor on an insolvent estate for funeral expenses, who has proved his claim, cannot sue the trustee for the amount due to him, before the liquidation and distribution account has been filed (Tiffin vs. Harsant, B. 1876, p. 50).

A proof of debt had been made upon an insolvent estate and had been admitted as correct by the trustees, in so far as it appeared upon the first account filed by the trustees. This account had been confirmed by the Court, but nothing was awarded therein in respect of the said proof, and the final account had not been filed. The trustees then. applied to have the proof of debt expunged. It was held that a defence that the confirmation had the effect of a final judgment could not be pleaded to the claim by the trustees (Brink's Trustees vs. Van Reenen, 5 S. 151).

The ignorance of a creditor, who has proved upon an insolvent estate, that the plan of distribution lay for the inspection of the creditors, and was duly advertised and afterwards duly confirmed by the Court, is not sufficient to entitle him to have the order of confirmation set aside and a preference awarded to him in respect of his proof as a preferent debt (Stewart's Assignee vs. Wall's Trustee, 3 J. 243; Struben vs. Moller, O.R. 1894, pt. 3, p. 5).

120. After confirmation of the said account and plan of distribution, the trustee shall distribute the said estate according thereto.

During the continuance in office of the said trustee, any creditor may claim payment of any dividend due to him by motion in the High Court or any Circuit Court.

NOTES.

The Court will sanction the issue of a writ of execution against a trustee of an insolvent estate after confirmation of the liquidation account (Kunhardt's Erecutors vs. Lucas, 1 R. 349).

121. If it shall be found impracticable from the nature of the said estate, or from other causes, to frame the plan of distribution so as to arrange the distribution of the whole of the insolvent estate according thereto, it shall be lawful for the trustee, as soon as may be, and in no case later than six months after the confirmation of the plan, unless further time be given for that purpose as before set forth, to frame and lay before the Master a scheme of provisional distribution, which shall contain a return of all such matters hereinbefore required in regard to the plan of distribution in the 114th Article of this Law mentioned, in so far as the condition of the estate shall permit.

He shall further act in accordance with the same rules in respect of his plan of provisional distribution, and after confirmation of the same, shall cause the distribution to be made in accordance with the same rules as are hereinbefore prescribed in regard to the said plan of distribution.

NOTES.

It is the trustee's duty to apply to the Court as soon as practicable for an extension of time within which to file his account. Any person interested in an insolvent estate, who succeeds in an action against a trustee who has filed an account after the lapse of the limit of six months, is entitled to his costs, no matter what the trustee's reason may be--provided that the trustee has not obtained an extension of time (Norden vs. Brink, 3 M. 270).

122. When after such provisional distribution it shall happen that any residue remains over for distribution, the trustee shall, as soon as may be, but in no case later than six months after the lapse of the six months above fixed by Article 121, unless, as above, further time be given for that purpose, file and give effect to a second such scheme of distribution, and so on from six months to six months until the whole estate shall have been finally distributed.

123. The trustee shall, together with the account and plan of distribution of the estate, deliver to the Master of the High Court a duplicate or copy of the said account and plan of distribution, and in default thereof he shall be deemed not to have filed any account and plan of distribution at all.