1. It appears that on 4lh March 1956 one George Pelham White executed a will where-under he appointed James Noel Anthony Hobbs, Captain J. A. A. Breithaupt and Lionel Aldred as his executors. Paragraph 1 of the document contains this restrictive provision:
"all dusts and powers hereinafter reposed in my executors shall be exercised by them jointly or may be exercised by the survivors or survivor of " them ..... On no account should the number of trustees acting at any time exceed three and the trustees shall act jointly."
This is a petition for probate which has been taken out by James Noel Anthony Hobbs and Captain J. A. A. Breithaupt. The office enquired how since the will requires all the three executors to act jointly a petition by two of them alone would lie. The petition was represented with the endorsement,
"though in the will it is stated that all trusts and powers should be exercised by the executors jointly Section 224 provides that where several executors are appointed probate may be granted to them all simultaneously or at different times. In this case the other executor Mr. Lionel Aldred is now in England on home leave and therefore the petitioners have applied for probate, power being reserved to the other executor."
The matter has therefore been posted for orders of Court.
2. Learned counsel for the petitioners relied on Section 224 of the Indian Succession Act which runs.-
"When several executors are appointed, probate may be granted to them all simultaneously, or at different times." ..
He also referred to the decision in Satya Prasad Pal Chowdhry v. Motilal Pal Chowdhry, ILR 27 Cal 683 (A).
3. Now, normally unless there is something in the law to prevent it one must give effect to the intention of the testator. It is clear that the intention of George Pelham White was that all the executors should act jointly, which means, that he did not want one or some of them alone to act. Section 224 of the Act would, it seems to me, apply only where the testamentary instrument is silent as to the manner in which the executors should act. If the document names several executors and says nothing more, then by reason of Section 224 some one or more of them may apply for probate. But, where the testamentary instrument requires that all the executors should act jointly Section 224 cannot be invoked to enable some of them alone to apply for probate. The decision in ILR 27 Gal 638 (A), does not help the petitioners. In that case five persons were appointed executors and they were jointly empowered to alienate any property for payment of debts and also to borrow moneys for the improvement and preservation of the estate. One of the executors alone alienated certain properties and the court held that the alienation was valid. But the reasons the court gave for taking the. view it did clearly show that the decision docs no help the petitioners in the present case. On page 689 the learned Judges say.
"Thus the three executors other than Damial Dasi, who were alive when the last named person applied for and obtained probate, if they had not formally renounced, must be taken practically to have refused to accept office. Damini Dasi was therefore, in our opinion, competent to act as exe-cutrix."
And again on pages 601 and 602, tho learned Judges further say,
"It was argued by the learned Vakil for the appellants that as the power of borrowing money was given to five persons jointly, one of them Damini Dasi, could not exercise that power singly. The answer to this argument is that the power was given not to this five persons in their individual capacity, but to them as executors and by virtue of their office, and if, as we have said above, Damini Dasi was, by reason of the death of one of the executors and refusal of the other three to act, alone competent to act as executrix, she was also competent to exercise the power of borrowing money by virtue of her office as executrix".
In the present case Lionel Aldred has not refusedt to act. I must give effect to the intention of the testator which is that all the persons should act jointly.
4. Learned counsel for the petitioners states that Lionel Aldred is absent in England and that the Will will have to be sent to him in order that he might swear to the necessary affidavits. This should present no insuperable difficulty. The petitoners can apply for the return of the Will in order that it might be sent to Lional Aldred in England for obtaining his affidavits.