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.

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 action against 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,1 an executor is the person appointed ordinarily by the testator by his will or codicil to administer testators property 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.2 Where 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

1 2

Williams and Mortimer, Executors, Administrators and Probate, 16th edn., p. 16. Inder Chand v. SAP Sabha, AIR 1977 Del 34. 3 Lallubhai Chhotabhai v. Vithakbhai Parshottambhai, AIR 1982 Guj 222. 4 Bakshiram v.. Lilan Devi, AIR 1960 Punj 231.

POWERS OF AN EXECUTOR OR ADMINISTRATOR The powers of an executor or administrator are covered by sections 305 to 315 of the Indian Succession Act. 305. In respect of causes of action surviving deceased and debts due at death .-An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts as the deceased has when living. Survival of right of action By the virtue of section 211 all the property of the deceased vests in the executor or the administrator. Thus all the rights which the deceased could have executed in his lifetime and all the liabilities to which the deceased was subject vest in executor or administrator.5 This section lays down that only an executor or an administrator could sue in respect of any cause of action that survived the deceased, Hence, an executor or administrator completely represents the estate and all the rights and liabilities of the deceased are in him and him alone. No other person even the legal heirs or legatee has the right to sue in the respect of the cause of action surviving the deceased. Though a heir can sue in a cause of action surviving the deceased if he/she obtains a letter of administration. The cause of action which survive the either in contracts or tort the liability of the executor or the administrator is not personal but to th extent of the assets of the deceased which come in their hands. Actions in Contract Section 37 of the Indian contracts Act provides that promise binds the representatives of the promisors in the case of the death of the promisors before the performance unless contrary intentions appear. Therefore on the death of a person all obligations, contracts, debts, and other engagements survive to and against his executors or administrators. The right to sue for damages for breach of contract, the right to sue on a promissory note, the right to sue for debt, the right to sue for mortgages, the right to sue for pre-emption,6 and the right to sue for account7 all survive.
5 6

Sayyad Jiaul v. Sitaram Bhau, (1911) ILR 36 Bom 144 Sayyad Jiaul v. Sitaram Bhau, supra 7 Brij Kishore v. Nazukbai, AIR 1948 Cal 19.

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 rights of action of or against deceased survive 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,8 actions against a licensee,9 actions in torts,10 damages 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 liquidator v Jugal 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 of Kanamma v 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 administrator 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
8 9

Pramanand Patel and Indu Patel v. Sudha Chowgule and Ors., 2008 (2) All MR 694 Ha Malbari (dead) by Lrs. v. Nasiruddin Pimuthmal & Ors., (1997) 8 SCC 58 10 Peoples Bank of Northern India Ltd. v. Hargopal, AIR 1936 Lah 271 11 Shri Aan Singh (dead) by Lrs. v. Municipal Corporation of Delhi and Ors., 135 (2006) DLT 604 12 Arthamudi Ramu v. Union of India, 2008 ACJ 1659 13 AIR 1935 Lah 706 14 AIR 1939 All 1 15 1990(3) Kar Lj 605

absolute power of disposal of the property whether movable or immoveable, either wholly or in part .Transfer of property by an executor is valid without any reference to the court and without any reference to the provisions of the Will.16 The transfer shall be valid unless there is no consideration or the transferee had a notice that the executor was acting in breach of trust. The purchaser has a right to assume that the legal representative was acting within the scope of his duty. The powers of an administrator are the same as of executor. He can mortgage, sell or lease the property for any number of years. The alienee gets a good title.17 The executor has the absolute right to mortgage the property and is not fettered by any restriction under the Will. But an executor or an administrator has no absolute right if the property is necessary for administration purposes. Thus the mortgage must be only for administration purpose only. Even an administrator has an absolute right to mortgage but it must be shown that the mortgage was in course of administration and he was entitled to mortgage.. The power of the administrator and the executor also extend to leasing the property for however long period of time. The validity of the lease would depend on whether it was reasonably necessary for the due administration

Sub-s (2) This sub section stipulates the power of an executor or administer in cases the deceased was a Hindu or a Mohammedan or a Sikh or a Jain or an exempt person. An executor or administrator has the right to dispose of the immovable property vested in him while being subjected to certain restrictions imposed on him by the will of the deceased unless the court which granted the probate to him permits him to dispose the property by an order in writing notwithstanding the restriction . If there is no restriction he can alienate the property as longas he has not obtained probate. An administrator cannot lease any immovable property vested in him for a term exceeding five years or sell, mortgage, charge or make a gift without the previous permission of the court.

16 17

See Illustration (i) to the Section 307 De Silva v. De Silva, (1904) ILR 27 Bom 67

308. General Powers of administration.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

18 19

Lakhmichand v. kuvarbai, (1905) ILR 29 Bom 170. (1974) 2 Cal 195-204 20 Burden v. Burden, (1813) 1 Ves & B 170.

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 administrator 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 administrators 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.

21 22

Watkin v Sarat Chander Ghose Moulicl (1904) ILR 31 Cal 572 Re Boles and British Land Co. [1902] 1 Ch 244, 246. 23 Brij Kishore Singh v Nazuk Bai AIR 1948 Cal 19 24 AIR 1921 Cal 292 25 Jacomb v. Harwood, (1751) 2 Ves Sen 265 26 Alamuri Sitaramasumani v. Sreenath Prativadi, (1922) 42 Mad LJ 559 27 Smith v Everett (1859) 27 Beav 446

312. Survival of powers on death of one of several executors or administrators. 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 non who 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.

28 29

Amrito Lall Dutt v. Surnomoye Dassee, (1897) ILR 24 Cal 589. Cubbidge v. Bootwright, 1 Russ Ch Cas 549.

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

30 31

Williams v. Williams, (1882) 20 Ch D 659. R v. Stewart, 12 Ad&El 773. 32 Nistarini v. Nandalal, 30 Cal 369. 33 Camini v. Adm-General of Madras (1906) ILR 29 Mad 290

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. Inventory 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. Inventory to include property in any part of India 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

34 35

Stag v. Punter, (1744) 3 Atk 119. Green v. Salmons (1838) 8 A&E 348 36 Pearse v. Green, (1819) 1 Jac & W 135. 37 Re Thomas (deceased), [1959] 3 All ER 897. 38 Moola v. Moola, 35 IC 950.

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, boarding and lodging charges for one month prior to death.
39 40

Re G. T. Williams, AIR 1924 Cal 115. Howard v. Kinsey, ILR 12 Mad 573. 41 Wragg v. Palmer, [1919] 2 Ch 58. 42 Rees v. Huhes. [1946] KB 517. 43 Mawjibhai v. Mulpibhoy, 4 Bom LR 199.

321. Expenses to be paid next after 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 aforesaid, all debts to be paid equally 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

44 45

Filix Joseph Sarpasadam & Ors. V. P. Rm. Sp. Subramania Chettiar, AIR 1937 Mad 484. Banno v. Upendra, 8 Bom LR 244. 46 Gourgopal De Sarkar & Ors. V. Kamalkalika Datta & Ors., AIR 1934 Rang 36 47 Mathurdas Vassanji v. Raimal Hijri, AIR 1935 Bom 385

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 domicile not in India. 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 2 this sub-section lays down the mode of equitable distribution. Sub-section 3 this 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

48 49

Re Tankard, Tankard v. Midland Bank [1942] Ch 69.

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

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 indemnity.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) (b) (c) Specific legacies Demonstrative legacies; and 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

50

Re Marsh (1741) 2 Atk 171

328. Non-abatement of specific legacy when assets sufficient 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. Right under demonstrative legacy when assets sufficient 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 specific 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. Testator bequeathing 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

51 52

Maherwan Jahangir v. Dhunbai Kavasha Mistry, AIR 1940 Mad 785. Chinnam Rajamannar v.Tadikonda Ramachendra Rao, (1906) ILR 29 Mad155. 53 Bhagirathibai v. Adv-General Bombay, AIR 1937 Bom 384.

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.

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 to dispose 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.

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. Executor De 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 any act 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 or the administrator, then he becomes an Executor de son tort. Suppose A sells some of the goods of the deceased. This makes him an executor de 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

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) (ii) the payments made to the rightful executor or administrator, and 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. Administrator De 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.
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