powers of executors

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The Powers and Duties of Administrators

and Executors

Bipluv Jhingan (666)

Archana Suswaram (654)

INTRODUCTION

THE EXECUTOR

A person making a will is called a testator and has an obligation and a choice to nominate his or

her Executor and the role which he will be and willing to serve in it.

A person named as an executor in a will is free to accept or reject the position within a

reasonable time following the testator's death. If it is rejected, the court then must appoint

another representative, causing a delay in the settlement of the estate and its final distribution to

the heirs, and incurring greater legal fees for the estate.

Competency to become a Executor

Anyone who is capable of making a will is capable of becoming an executor.. Courts can

disqualify as executors persons who are legally incompetent or unsuitable. When this occurs, the

court appoints either an alternative executor, if the will has named one, or an administrator.

A person cannot be disqualified as an executor merely because he or she might inherit part of the

estate. Executors must submit the will to probate court, then dispose of the estate according to

the will.


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THE ADMINISTRATOR

A court usually appoints an administrator when a person dies without leaving a will. Courts are

required by statute to name the spouse of the decedent as administrator. Where no spouse is

involved, administration is usually assigned to the next of kin, such as parents, brothers and

sisters, nieces and nephews, or cousins. Special laws, called statutes of Descent and Distribution,

determine the next of kin who are entitled to serve as administrators.

To appoint an executor is to place one in the stead of the testator who may enter, to the

testators goods and chattels and who has actionagainst testators debtors and who may dispose

of the same goods and chattels towards the payment of the testators debts and performance of

his will. Unless separate executors are appointed an executorship is indivisible,1an executor is

the person appointed ordinarily by the testator by his will or codicil to administer testatorsproperty and to carry into effect the provisions of the will. An executor de son tort is one

who takes upon himself the office of an executor or meddles with the goods of a deceased

person, without being appointed by testators last valid will or by a codicil to that will or without

having obtained grant of administration from a competent court.

A will must contain expressly or by necessary implication the name of the executor;

otherwise no probate can be granted to any person.2Where in a will the testator did not appoint

any executor but granted the whole of his property to a person by testamentary disposition, such

persons may be called a universal legatee and not an executor. A universal legatee can be

legitimately granted letters of administration in respect of the whole estate of the deceased if

such prayer is made by him, but no probate can be granted to a universal legatee in the absence

of appointment being made in the will either expressly or by necessarily implication.3A person

appointed as an executor by a will, cannot be burdened with the duties and obligations of an

executor, if he has not accepted the office of the executor.4

1Williams and Mortimer,Executors, Administrators and Probate, 16thedn., p. 16.2Inder Chand v. SAP Sabha, AIR 1977 Del 34.3Lallubhai Chhotabhai v. Vithakbhai Parshottambhai, AIR 1982 Guj 222.4Bakshiram v.. Lilan Devi, AIR 1960 Punj 231.


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Only actions which are personal to the promisor e.g. promise to marry or which involve personal

skill or ability d not survive.

Order 31, rule 1 of the Code of Civil procedure in all suits concerning the property vested in an

executor or an administrator.

306. Demands and r ights of action of or against deceased sur vive to and against executor or

administrator.

This section lays down that all rights to prosecute or defend any actions or special proceedings

survive to and against his executors or administrators. The words executor and administrator

means person appointed by the court to administer the estate of the deceased person. The term

special proceedings covers summary proceedings under s.543 of the Indian Companies Act.

This section covers testamentary actions,8actions against a licensee,9actions in torts,10damages

for medical negligence,11

railway accident claim12

etc. The dictum in Peoples Bank v Desraj13

that the section is wide enough to include estate represented by heirs is wrong and was not

accepted by the court in the case of Official liquidatorvJugal Kishore14

.

In the 178th

Law commission report changes have been suggested to section 306 of the Indian

Succession Act. As per the Law Commission the section provides for the continuation of

proceedings by legal representatives of the injured upon his death. The commission relied upon

the decision of the Karnataka High Court in the case ofKanammav Dy. General Manager15

in

which the full bench recommended that the section should be so amended so as to permit the

survival of the right of the injured person to seek compensation to his legal representatives ,

irrespective of the fact that whether the death was related to the accident or not.

307. Power of executor or admini strator to dispose of property

Sub-s (1) Sub Section 1 provides the powers of the executors and the administrators in the case

when the deceased was a European, Parsi or an Indian Christian. An executor or administer has

8Pramanand Patel and Indu Patel v. Sudha Chowgule and Ors., 2008 (2) All MR 6949Ha Malbari (dead) by Lrs. v. Nasiruddin Pimuthmal & Ors., (1997) 8 SCC 5810Peoples Bank of Northern India Ltd. v. Hargopal, AIR 1936 Lah 27111Shri Aan Singh (dead) by Lrs. v. Municipal Corporation of Delhi and Ors., 135 (2006) DLT 60412Arthamudi Ramu v. Union of India, 2008 ACJ 165913AIR 1935 Lah 70614AIR 1939 All 1151990(3) Kar Lj 605


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308. General Powers of admini stration.-

Clause (a) Management of the estate The testator may respite confidence in the executor and

may confer upon him the rights to manage his property in a manner the testator would have

managed it. In the absence of any direction in the will as regards management, the executor has,

as a legal representative, power to incur expenditure for the proper management of the estate of

the deceased and to effect improvements which are reasonable and proper. If the property is in

disrepair he has the power to incur expenditure for such repairs. In all such acts with regard to

the management of the property entrusted to him, he must act with the same degree of care as a

man of ordinary prudence would in his own affairs.18

Clause (b) Expenses for improvement of property This clause permits the executor to incur

expenditure on such religious charitable and other objects, and on such improvements, with the

sanction of the High Court This clause was construed in Kali Kumar v. Rash Vehari Banerji.19

The court observed that the question of expenditure is not limited or qualified what is limited or

qualified are the religious charitable and other objects for the expenditure shall only be for

religious charitable and other objects. The question as to how is the reasonableness and propriety

of religious charitable and other objects are to be determined? The reasonableness and propriety

of the religious, charitable and other objects are to be determined with reference to the property.

309. Commission or agency charges.-

Ordinarily, a legal representative is not entitled to any allowance for his time and trouble he is

only entitled to out-of-pocket expenses. An executor or a trustee is not allowed any remuneration

as a rule especially when a legacy is given to him for his pains on the ground that he may not put

himself in a position in which his interests or duty may conflict.20

This section enables the executor or the administrator to stipulate for the payment of commission

within the limits laid down in the Administrator-General by or under the Administrator-General's

Act, 1913 (3 of 1913). The fee is charged under the rules framed under the Act. The percentage

18Lakhmichand v. kuvarbai, (1905) ILR 29 Bom 170.19(1974) 2 Cal 195-20420Burden v. Burden, (1813) 1 Ves & B 170.


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is to be calculated on the income and not the corpus and on the value of the asset collected by

him and not on the net value of the assets.21

310. Purchase by executor or admini strator of deceased's property- This section is based on the

rule that a legal representative shall not derive any pecuniary benefit from his office. He may not

directly or indirectly purchase any portion of the assets for himself. It is further based on the

principle that an executor is bound to do everything in his power for the estate and is therefore

precluded from buying the assets, irrespective of undervalue or otherwise, because he nay there

by nr induced to neglect his duty.22

This rule debarring executor from purchasing any part of the

property indirectly or directly has been rested by the courts of equity on the public policy.23

This

shall be regarded as breach of trust without any inquiry.

Even if the sale is made to the executor by the order of the court the voidable nature of the

purchase remains.

311. Powers of several executors or admini strators exercisable by one.-

Where there are several executors the powers of all maybe exercised by any one of the, unless

there is anything to the contrary in the will.24

The Co- executors are considered as one person in

law, irrespective of their number. That is why the acts of one in respect of administration are

deemed to be the act of others unless the will states that they should act jointly Thus unless

specified they have a joint and entire authority over the property. Illustration (vi) to the section

shows that the powers of the executors can be restricted when the testator directs the two or more

of his executors to form a quorum. . There is no bar on the court to issue probate to any one of

them on the basis of the conduct of one of them disentitling to be named as such, with the other

executor. One of several executors may release a debt,25

renew a barred debt,26

settle an

account27

, surrender a legacy, assent to a legacy, sell the property, give a valid receipt or

discharge, endorse a promissory note etc.

21Watkin v Sarat Chander Ghose Moulicl (1904) ILR 31 Cal 57222Re Boles and British Land Co. [1902] 1 Ch 244, 246.23Brij Kishore Singh v Nazuk Bai AIR 1948 Cal 1924AIR 1921 Cal 29225Jacomb v. Harwood, (1751) 2 Ves Sen 26526Alamuri Sitaramasumani v. Sreenath Prativadi, (1922) 42 Mad LJ 55927Smith v Everett (1859) 27 Beav 446


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312. Sur vival of powers on death of one of several executors or admini strators.

Upon the death of one of the several legal representatives in the office, with its incidents, duties,

powers, and the interest in all the property vested in them by virtue of their office, devolves upon

the survivors or survivor.

Where a special power or special direction is given to a particular executor personally by reason

of special confidence in him such power does not survive.28

313. Powers of administrator of effects unadministered:

Where all the people to whom a grant of probate or administration has been made have died

without completing administration and where, in the case of probate no claim of executor

continues, a grant is made to a new personal representative (administrator de bonis non) to

enable the administration of the estate to be completed.

This section enacts that an administrator de bonis non is entitled to all the properties which have

remained unadministered by the first executor or administrator, as he acquires the same power of

disposal as the original executor or administrator. If the original executor or administrator has

fraudulently alienated the property for his own use in collusion with the purchaser, such

propertied will be considered as unadministered and will pass to the administer de bonis nonwho

may apply to have the sale set aside.29

314. Powers of administrator during minority.-An administrator during minority has all the

powers of an ordinary administrator.

An administrator during minority has the same powers over the property of the minor as an

ordinary administrator. The limit of his administration is the minority of the person entitled to the

property; there is on other limit.

28Amrito Lall Dutt v. Surnomoye Dassee, (1897) ILR 24 Cal 589.29Cubbidge v. Bootwright, 1 Russ Ch Cas 549.


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315. Powers of married executrix or administratrix.-When a grant of probate or letters of

administration has been made to a married woman, she has all the powers of an ordinary

executor or administrator.

This section is now superfluous having regard to the amendment made in ss. 223 and 236 by Act

18 of 1927. Previous to the Act, a grant could not be made to a married woman without the

previous consent of her husband. The powers of a married executrix or administratrix are the

same as any other executor administrator.

DUTIES OF AN EXECUTOR OR ADMINISTRATOR

The duties of an executor or administrator are given in sections 316 to 331 of the Act. These

duties range from personal to purely legal duties.

316. As to deceased's funeral.-

A man cannot dispose of his body by his will and after death the custody and possession of the

body belong to his executors until it is buried.30

If a man dies possessed of property, the duty of

burying his body falls on his legal representatives but it is the duty of the executor to give effect

to the wishes of the deceased and if the deceased has left no directions, the executor must dispose

of the body in the usual manner prevailing in the community and the caste to which the deceased

belonged.31

The deceased should be buried in a manner suitable to the estate he leaves behind and funeral

expenses according to the degree and quality of the deceased are allowed.32

The expenses are to

be allowed according to the directions in the will. If it is directed that the expenses should be

paid out of legacy and not out of general estate, then it is paid out of the legacy33

. Where the will

directs a particular amount to be expended on the funerals, up to that amount the executor can go

and not beyond. But if it appears that even that amount would mean clear extra valence, it is

30Williams v. Williams, (1882) 20 Ch D 659.31R v. Stewart, 12 Ad&El 773.32Nistarini v. Nandalal, 30 Cal 369.33Camini v. Adm-General of Madras (1906) ILR 29 Mad 290


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within the discretion of the executor to expend less and ignore the direction in the will.34

The

executor is not bound to repay undertaken who gives credit to any person(stranger) who in turn

has given order as to the funeral. But if the person who gave the order for the funeral has paid for

the funeral, not voluntarily, he may have an action against the executor for reasonable

expenses.35

317. I nventory and account.-

It is the first duty of an accounting party, whether an agent, a trustee, a receiver or an executor

for, in this respect they all stand in the same position, to be constantly ready with the accounts.36

By this section a statutory obligation is placed upon the executors and administrators to exhibit

in court an inventory of all the property- movable and immoveable, and of all credits and debts

due to the estate of the deceased within six months from the date of grant without any

proceedings calling upon them to do so. An order for submitting inventory and account may be

passed after the grant is revoked.37

The section does not make it obligatory on the court to require an executor or administrator to

exhibit an inventory and account. It merely imposes a duty on the executor or administrator to do

so. If he does not do, so the court may require him to do so.38

If the person to whom the grant is

made wilfully or without reasonable cause omits to file an inventory and account when called

upon to do so, runs the risk of the grant being revoked. Igf he files a false inventory and account,

he will render himself liable to be prosecuted under sub-section 4.

318. I nventory to include property in any part of I ndia in certain cases.-

In the case of grant throughout the whole of India in addition to the requirements in s.317, the

inventory must show separately the property situated in each state and the approximate value of

such property. The probate duty will be assessed for the whole property according to the scale of

34Stag v. Punter, (1744) 3 Atk 119.35Green v. Salmons (1838) 8 A&E 34836Pearse v. Green, (1819) 1 Jac & W 135.37Re Thomas (deceased), [1959] 3 All ER 897.38Moola v. Moola, 35 IC 950.


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the state in which the court is situated and not according to different scales prevailing in the

states where the properties are.39

319. As to property of, and debts owing to, deceased.-

This section lays down that it is the duty of the executor or administrator to collect and get the

property of the deceased as well as to collect his debts with due diligence. It would be dereliction

of duty if on account of undue delay in collecting the debt, the debt becomes time barred. In such

a case he is personally liable.40

He is also allowed to make investments in accordance with

authorization from the testator.41

In case where the residue is given for life with remainders over,

it is the duty of the executor in the absence of special provision to see that the fund is properly

invested. It is the duty of the executor to get in as speedily as possible all moneys of the deceased

remaining outstanding. The executor will be personally liable if he unduly delays in filing a suit

for recovery, which enables the debtor to avail the benefit of The Limitation Act. The executors

od not have the absolute duty to realise mortgages created by the deceased himself but they have

a discretion which they must exercise as practical men.

320. Expenses to be paid before all debts.-

Under s. 316 it is the duty of the legal representative to provide funds for the funeral expenses

out of the property left by the deceased. It is not the duty of the husband to provide funeral

expenses of wife, nor of the father for the funeral expenses of his son or daughter.42

If the legal

representatives so provides funds under this section, he gets priority for such payment over all

liabilities. If the will gives discretion to the executors, the court cannot fix any sum so long as the

discretion is properly and honestly exercised and the court will leave it to them to determine how

much be spent.43

The court grants reasonable amounts for funeral expenses having regard to the

status of the deceased and the value of the estate.

The funeral expenses, gives priority to payment of medical expenses of the deceased, boardingand lodging charges for one month prior to death.

39Re G. T. Williams, AIR 1924 Cal 115.40Howard v. Kinsey, ILR 12 Mad 573.41Wragg v. Palmer, [1919] 2 Ch 58.42Rees v. Huhes. [1946] KB 517.43Mawjibhai v. Mulpibhoy, 4 Bom LR 199.


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321. Expenses to be paid next af ter such expenses.-

After the funeral expenses, medical expenses etc come a few other mandatory expenses, such as

(in order of payment)

a. The expenses of obtaining the grant which includes the probate duty and legal charges.The section does not declare a charge on the estate in favour of the lender who lends

money to the executor.44

b. The costs of judicial proceedings for the administration of the estate.Executorship expenses denote all expenses incidental to the proper performance of the duty of an

executor or administrator.

Cost of administration suit- The costs of the proceedings which were in their origin properly

directed for the benefit of the estate will be ordered to be paid out of the estate. Otherwise, as a

general rule, the costs of the proper parties, whose clain is a first charge on the property, are to be

defrayed before the claims of the persons beneficially entitled thereto are satisfied.

322. Wages for certain services to be next paid, and then other debts: The section is not

confined to the servants who actually work in the house but include other servants who would

ordinarily belong to an Indian household,with the exception of a tailor.45

A judgment debt takes

priority over other debts. But a creditor of the deceased who has obtained attachment on the

property of the judgement debtors property prior to the preliminary decree in an administration

suit is not entitled to priority over the other creditors.46

323. Save as afor esaid, al l debts to be paid equal ly and rateably

This section enjoins on the executors and administrators the duty of equal and rateable payments

of debts; it also declares that no creditors shall have priority over another.47

The executor has to

44Filix Joseph Sarpasadam & Ors. V. P. Rm. Sp. Subramania Chettiar, AIR 1937 Mad 484.45Banno v. Upendra, 8 Bom LR 244.46Gourgopal De Sarkar & Ors. V. Kamalkalika Datta & Ors., AIR 1934 Rang 3647Mathurdas Vassanji v. Raimal Hijri, AIR 1935 Bom 385


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repay the debts exercising due diligence and therefore, despite there being no rule of law that it is

the duty of the executor to repay the debts within one year of death, due diligence may require

that payment be made within one year. On failure to repay within the year, the executor is called

upon to justify the delay.48

Creditors of ordinary debts shall not have any priority and the repayment must be done equally

and rateably. If the legal representative pays such debts as he knows of otherwise than equally

and rateably, he is personally liable to the creditor for improper distribution of the estate.

Creditors or their representatives who have the decree for the recovery of a judgement debt, the

executor or legal representative is bound to pay the full amount of the decree though there may

be other creditors and the assets may be insufficient to pay all in full.49

324. Application of moveable property to payment of debts where domicil e not in I ndia.

Sub-section 1 this sub-section is a counterpart to section 5(2) of the Act. It provides that

although succession to the movable property of a foreigner is governed by the law of domicile,

the application of such movable property in India for the payment of that persons debt in India

is to be regulated by the provisions of this Act.

Sub-section 2this sub-section lays down the mode of equitable distribution.

Sub-section 3this sub-section re-enacts the provisions of the probate and Administration Act

1881.

325. Debts to be paid before legacies.-Debts of every description must be paid before any

legacy.

This section lays down the rule of distribution that no legatee is entitled to anything until all the

debts left by the deceased are discharged. Debts of every description must be paid, viz., ordinary

debts, bond debts, judgement debts and mortgage debts. In case of contingent liabilities, the

48Re Tankard, Tankard v. Midland Bank [1942] Ch 69.49

Khusrubhai Nasarvanji v. Hormajsha Phirozsha(1892) 17 Bom 637


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executor is not entitled to make provision for the payment of such liabilities, as they do not

constitute a debt until the contingency occurs.

326. Executor or administrator not bound to pay legacies without indemni ty.-

After the payment of all debts, the next in order of payment is the payment of legacies. This

section provides that before making any payment of legacies, the executor or administrator must

see whether there are any contingent liabilities, if there are, it is the duty of the legal

representative to make arrangement for such payment whenever they may become due. If he

distributes the property without regard to contingent liabilities, he will do so at his peril.

Beneficiaries, including legatees, are paid after taking sufficient indemnity from the

beneficiaries, with regard to any future liability to a contingent creditor. On the payment to a

contingent cresitor becoming due i.e on the happening of the contingency, the executor may

claim repayment of the sum which he has paid to the legatee.

327. Abatement of general legacies.

After the payment of debts, the legacies are to be paid and the order for payment of legacies is:

(a) Specific legacies(b) Demonstrative legacies; and(c) General legacies.If the estate is not sufficient to pay all the legacies in full; the general legacies abate pro rata in

the absence of a contrary direction by the testator. This section enacts that the executor has no

right to retain any money on account of legacy to himself or to any person for whom he is a

trustee, in priority to other general legatees. But if by express words or fair construction of the

will, the intention of the testator is clearly manifest to give one general legatee a priority over the

others, that intention must be given effect to. 50

50Re Marsh (1741) 2 Atk 171


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328. Non-abatement of specif ic legacy when assets suf f icient to pay debts.-Where there is a

specific legacy and the assets are sufficient for the payment of debts and necessary expenses, the

thing specified must be delivered to the legatee without any abatement.

So long as the assets of the testator are sufficient to pay the debts and necessary expenses, it is

the duty of the executor to deliver the thing specifically bequeathed to the legatee without any

abatement. Apart from the deductions necessary for debts and expenses, a specific legacy must

be delivered to the legatee without any abatement.51

329. Righ t under demonstrative legacy when assets suf f icient to pay debts and necessary

expenses.-Where there is a demonstrative legacy, and the assets are sufficient for the payment of

debts and necessary expenses, the legatee has a preferential claim for payment of his legacy out

of the fund from which the legacy is directed to be paid until such fund is exhausted and if, after

the fund is exhausted, part of the legacy still remains unpaid, he is entitled to rank for the

remainder against the general assets as for a legacy of the amount of such unpaid remainder.

Demonstrative legacies are not liable to abate with general legacies so long as the fund out of

which they are directed to be paid is sufficient to pay such legacies. But when the fund is

exhausted and the legacies become payable out of general rates, such legacies are liable to abate

with the general legacies on a deficiency of assets, unless there is a direction to the contrary.52

330. Rateable abatement of specif ic legacies.-If the assets are not sufficient to answer the debts

and the specific legacies, abatement shall be made from the latter rateably in proportion to their

respective amounts.

So long as the assets are sufficient, a specific legacy is not subject to the rule of abatement. It is

only when the assets are not sufficient for payment of the debts and the executor is obliged to sell

the thing specifically bequeathed to discharge the debts that the doctrine of abatement is applied

to the specific legacy, any if there are several specific legacies they abate pro rata. Testatorbequeathing rent of specific property to his wife and daughters, bequest being specific is liable to

abatement in proportion to all of the rent of property.53

51Maherwan Jahangir v. Dhunbai Kavasha Mistry, AIR 1940 Mad 785.52Chinnam Rajamannar v.Tadikonda Ramachendra Rao, (1906) ILR 29 Mad155.53Bhagirathibai v. Adv-General Bombay, AIR 1937 Bom 384.


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331. Legacies treated as general for purpose of abatement.-For the purpose of abatement, a

legacy for life, a sum appropriated by the will to produce an annuity, and the value of an annuity

when no sum has been appropriated to produce it, shall be treated as general legacies.

This section declares that a legacy for and annuity when no sum is appropriated to produce it, are

to be treated as general for the purposes of abatement and do not have any priority over general

legacies. On a deficiency of assets, they abate with the general legacies. But the whole of the

residue must first be exhausted.


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RESTRICTIONS ON THE GENERAL POWERS CONFERRED AN EXECUTOR OR

ADMINISTRATOR

An executor or administrator has very extensive powers of management and disposition over the

property of the deceased. Section 307(1) of the Indian Succession Act confers on him the

powers todispose of the property of the deceased wholly or in part in such manner as he may

think fit.

Thus a purchaser or mortgagee dealing with the executor is not bound to enquire into facts

outside the will. If the will contains no restrictions on the statutory power of the executor the

alienation binds the beneficiaries under the will. The lender is not bound to enquire into the

circumstances existing prior to the testator's death to see whether the alienation is supported by a

justifying necessity. In Sunil Kumar v. Sisir Kumar, 1940 PC 30, Lord Thankerton observed: In

their Lordships opinion much of the Statutory power conferred by S. 307 on executors in India

would be nullified if such a duty of enquiry was imposed on parties dealing with executors.

Restrictions :- Where the deceased was a Hindu, a Mohammedan, Buddhists, Sikhs, or Jain, or

an Exempted person, the Statutory power is subject to the following restrictions :-(a) In the case

of executors :- The executor's power of disposal over immovable property may be restricted by

the will. The court granting probate may, however, by order in writing permit the executor to

dispose of in a particular manner though it is not warranted by the restrictions imposed by the

will.(b) In the case of administrators :- Previous permission of the court granting letters of

administration, is required for executing (i) Mortgage, charge, sale, gift of exchange or (ii) A

lease for a term exceeding five years.

Any alienation contrary to these restrictions is voidable at the instance of any other person

interested in the property.


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LIABILITY OF AN EXECUTOR OR ADMINISTRATOR FOR LOSS OCCASIONED

BY HIM TO THE ESTATE:

The liability of the executor or administrator arises in two sets of cases:

Devastatavit: Deavastation consists in misapplication of the estate of the deceased or subjecting

to loss or damage. Suppose the executor pays a non- existent spurious debt out of the estate. It is

a case of devastav it.

Other such cases are :-

(a)Neglecting to renew a renewable lease.

(b) Neglecting to terminate a non-profitable lease, which is terminable on notice.

Neglecting to realize part of the estate: The executor or administrator is liable also for failure to

get in part of the property of the estate. Thus if he does not collect a debt or collects only a part

of it from a debtor who is able to pay in full or allows a debt to become barred by time, he is

liable to make good the loss caused to estate thereby.

ExecutorDe Son Tort (of his own wrong)

An executor de son tort means an executor of his wrong. Under S. 303 a person becomes such

an executor in the following circumstances:

(i) There is no rightful executor (or administrator ) in existence and a person does anyact which belongs to the office of executor. Then he becomes an executor de son tort.

Suppose A sues as executor of the deceased though he is not the executor. Such an act

appertains to the office of executor. So A is an executor of his wrong.

(ii) A person intermeddles with the estate of the deceased when there is no executor orthe administrator, then he becomes an Executor de son tort. Suppose A sells some of

the goods of the deceased. This makes him an executorde son tort. Thus if A has sold

the goods of the deceased in the ordinary course of business he does not become an

executor of his own wrong i.e. Wrongful act. Suppose during his lifetime B appoints

A his agent to sell his goods. After B's death, A not knowing about it continues to sell

B's Goods. This does not make A an executor of his own wrong. But if he comes to


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know of B's death(whereby the agency is terminated) and still continues to sell B's

goods, A becomes an executor of his wrong.

A person who intermeddles with the estate of the descendants so becomes an executor de son tort

incurs a liability to the extent of the assets, which have come into his hands. He can take credit

for:

(i) the payments made to the rightful executor or administrator, and(ii) the payments made in due course of administration. This liability can be enforced by:the

rightful executor of administrator; creditor of the deceased or legatee of the deceased (S.

304).

Relying upon the SC judgment, the Delhi High Court Held in Klaus Mittelbachert v. East Hotels

Ltd.54, considered the question under S. 306 of the Indian Succession Act whether the action

damages for personal injuries would abate on the death of the plaintiff. It was held that if the

action for damages is purely based upon a tort the action would abate; but if it is based upon a

contract it will survive to the executors and administrators.

AdministratorDe Bonis Non

Section 258 of the Indian Succession Act provides for the grant of administration de bonis non in

the case of a person dying testate. If the executor to whom the probate has been granted dies

before the administration of the estate, a new representative is appointed for the purpose of

administering such of the estate as remains unadministered. Such a representative is called the

Administrator de bonis non.

For the grant of administration de bonis non there should be a part of the original testator's estate

remaining un-administered. Suppose the funeral and testamentary expenses have been paid, all

the legatees are satisfied and the surplus of the estate is invested in authorised securities. In such

a case, there is nothing left to administer. The executor in fact sheds his character as executor

and becomes a trustee. Even if he dies there is no scope for appointing an administrator de bonis

non. This is because for a grant de bonis non a part of the original testator's estate should remain

un-administered.

54AIR 1997 Del 201

Documents

powers of executors