1. Monmothonath Dey died in December 1881, leaving a will of which he appointed his wife Lakhemoni Dassi and the plaintiff Prosono Coomar Ghose, executrix and executor.
2. The will after the appointment of the executors provides for a legacy to the plaintiff in the following terms: 'My friend Prosono Coomar Ghose, whom I appoint executor, shall get Rs. 5,000 from my estate.' The plaintiff has not proved the will, and the question is whether, having regard to the provisions of Section 128 of the Succession Act, which is made applicable to the wills of Hindus by the Hindu Wills Act, he can take the legacy.
3. Section 128 enacts that, 'if a legacy is bequeathed to a person who is named an executor of the will, he shall not take the legacy unless he proves the will, or otherwise manifests an intention to act as executor.' It is contended that the will itself shows that the legacy was not given to the plaintiff in his character as executor, and that it was the testator's intention that be should take the legacy, whether he acted or not. It is also contended that the plaintiff, though he has not taken out probate, has sufficiently manifested an intention to act.
4. The section in question follows the English rule that, if a legacy is given to an executor, he must accept the office or manifest an intention of acting; but the rule is there based upon a presumption that a legacy to a person appointed executor is given to him in that character, and this presumption can be rebutted by ' something in the nature of the legacy or other circumstances arising on the will.' Whether it can be rebutted by parol evidence is more questionable. In In re Appleton, Barber v. Tebbit L.R. 29 Ch. D. 893, Lord Justice Cotton considered that parol evidence was admissible, but the question was not decided, and Lord Justice Fry declined to express an opinion without further time for consideration. I admitted parol evidence in the present case subject to the objection which was taken and without deciding as to its admissibility.
5. I am of opinion that the evidence is not, admissible in this country, and for this reason, that Section 128 leaves no room for a presumption. The language is peremptory; it is not left to the Court to decide whether the legacy was given to the person named in bis character as executor. It is assumed that it was so given and the prohibition follows.
6. As the plaintiff has not proved the will, the question arises whether he has manifested an intention to act as executor. The proving of the will, when a person is in a position to prove it, is of course the best manifestation of his intention, and, if he failed to prove it, the Court would require a very strong reason for the omission before finding that the intention existed.
7. The will is a peculiar one. It seems to have been clearly the intention of the testator that the two executors should act together, if they could do so, or not at all.
8. It gives permission to his wife to adopt a son, and he then directs that if she fails to adopt, the executors (she being one of them) are to compel her to do so. The executors are to act on all matters under the advice of Preonath Bose, and then comes this clause: 'Should there be no mutual agreement between the said executor and executrix in carrying on the work in terms of this will, then the Administrator-General of Bengal shall be the executor in their place.'
9. It seems to me that this last provision applies equally to disagreement before or after probate. It could not have been the intention of the testator that, if the executors disagreed so as to render a proper administration of his estate impossible, they were to go through the form of obtaining probate, and then incur the expense of getting this probate cancelled, so that the Administrator-General might be put in their place.
10. As a matter of fact, they did disagree. The plaintiff was at first willing to join Lukhemoni Dassi in taking out probate, and wrote to this effect through his attorney, but got no answer. In a subsequent letter he alludes to the disagreement, and suggests that the best course under the circumstances would be for the Administrator-General to take out probate. To this Lukhemoni objects, and intimates her intention of applying for probate on her own account. The plaintiff did not approve of this, and again, on the 1st of April 1882, asks if she is willing to join him in an application, intimating that if she did not he would proceed to prove the will. To this Lukhemoni's attorney replies on the 14th April that, if the plaintiff 'will not agree to my client alone taking out probate, he had better apply for probate to be granted to himself, and my client will take such steps as she may be advised; she is not willing to join your client in the application for probate.'
12. Subsequently probate was granted to the Administrator-General.
13. Having regard to the terms of the will, I think the plaintiff has manifested an intention to act sufficient to entitle him to the legacy. I have no doubt that he was always ready and willing to act, and it is proved that after the testator's death he made arrangements for the cremation and shradh, or borrowed or advanced the money which was necessary for those purposes. The action of Lukhemoni prevented him from carrying out his intention, and such action on the part of one or other of the executors was contemplated and provided for by the testator; provided for in this way, that they were to be relieved altogether from the responsibility of acting as his executors. I think the plaintiff was quite justified in not attempting to take out probate alone, and that it was not desirable in the interests of the estate or consistent with the intention of the testator that he should make the attempt. It might be open to argument that the plaintiff was not appointed an executor within the meaning of Section 128, his appointment being contingent on certain conditions, failing which the Administrator-General was to act; but on the other grounds stated I think he is entitled to the legacy.
14. There will be a decree declaring him entitled to the legacy and directing the Administrator-General to pay the same with interest and costs out of the assets of the estate. If he does not admit assets within one week from date there will be the usual administration decree.
15. The costs of the Administrator-General as between attorney and client to come out of the estate.