1. This is an appeal under the Letters Patent from the order of a learned Judge of this Court granting probate to the Administrator-General. The findings of fact, so far as the main issues are concerned, are not disputed before us. The learned Judge found that the will of Mrs. Anselme was a genuine document, which had been executed by her while she was possessed of a sound disposing mind. He also found that the first codicil engrossed upon the will was also a genuine document similarly executed. But he came to the conclusion that the second codicil, which was also engrossed upon the will, had been obtained from her under undue influence, and she accordingly refused to give effect to it. These findings are not challenged.
2. But the learned Judge then went on to say that he had been told 'that the executor, Mr. Mitchell,' who had applied for probate, was in the unfortunate position of having to avoid his creditors. He accordingly thought it highly undesirable to have an executor of this estate in such financial position. It was on this ground solely that the learned Judge appointed the Administrator General as the executor and administrator of the estate and ordered that the probate be granted to him of the will and of the first codicil.
3. In the first place, there is nothing on the record to show that Mr. Mitchell was in such financial difficulty. Some statement might have been made orally in Court by some unknown person which was not recorded. We therefore think that the learned Judge was not entitled to take this into consideration at all, as there was no legal evidence on the record in support of it, nor was there any affidavit or any verified statement. It is also urged before us that the opinion expressed that this action has been improperly brought about; by the Coleston Brothers is not supported by any evidence. We have nothing but the bare fact that the executor, when filing a written reply, stated that the facts mentioned in some of the paragraphs were based on information received from Charles Coleston and Edward Colestion, This is rather a lender foundation for the inference that they themselves are wholly responsible for this litigation, The serious difficulty arises from the fact that the learned Judge had no jurisdiction to order probate to be granted to the Administrator General who had not boon named in the will Section 222, Succession Act, is perfectly clear and specific and lays down that 'Probate shall be granted only to an executor appointed by the will,' though the appointment may be expressed or by necessary implication. But there is no exception to this and therefore no person, who has not been named in the will either expressly or by necessary implication, can he granted probate of the will. The order passed to that effect is therefore illegal and cannot be upheld.
4. The executor, who had originally applied, has died since, and the legatees and other litigants have filed appeals under the Letters Patent. The proper course to adopt would be to proceed under Section 232 of the Act, under which when the executor dins after having proved the will, but before having administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed, may be granted to him of the whole estate, or of so much thereof as may be unadministered. The question of granting letters of administration can be considered when, a proper application is made by such a person. We accordingly allow this appeal and setting aside the order of the learned Judge of this Court dismiss the application. We do not think that there is any justification for ordering that the Coleston brother should bear the entire costs of this action; nor would it be just to make Mrs. Chitty pay the costs, because she has succeeded far at least as the second codicil is concerned. The executor has also succeeded in proving the will and the first codicil. Having regard to all the circumstances, we think that the parties should bear their own costs of both the hearings.