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PART XXXIX.

OF THE REFUNDING OF LEGACIES.

Refund

become

Refund of 316. When an executor has paid a legacy under the order legacy paid under

of a Judge, he is entitled to call upon the legatee to refund, in Judge's

the event of the assets proving insufficient to pay all the orders.

legacies 1 No refund 317. When an executor has voluntarily paid a legacy, he if legacy paid volun- cannot call upon a legatee to refund, in the event of the assets tarily. proving insufficient to pay all the legacies .

318. When the time prescribed by the Will for the performwhen ance of a condition has elapsed, without the condition having

a legacy has

been performed, and the executor has thereupon, without fraud, formam per- distributed the assets ; in such case, if further time has been of condi. allowed under the one hundred and twenty-fourth Section, for tion within

the performance of the condition, and the condition has been time

performed accordingly, the legacy cannot be claimed from the under sec. executor, but those to whom he has paid it are liable to refund

the amount 3. When each 319. When the executor has paid away the assets in legatee is

legacies, and he is afterwards obliged to discharge a debt of

which he had no previous notice, he is entitled to call upon each proportion. legatee to refund in proportion 4 Distribu- 320. Where an executor or administrator has given such tion of

notices as would have been given by the High Court in an administration suit 5, for creditors and others to send in to

further

allowed

tion 124.

compel

lable to refund in

assets.

>

1 Act V of 1881, sec. 135.

2 Act V of 1881, sec. 136. See sec. 323 infra, 'all the legacies,' not 'all the debts ;' see sec. 319.

3 Act V of 1881, sec. 137:

+ Act V of 1881, sec. 138.

o See the Civil Procedure Code, secs. 213, 215, 215 A, and Sched. IV, nos. 105-107, 130, 131.

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him their claims against the estate of the deceased, he shall, at the expiration of the time therein named for sending in claims, be at liberty to distribute the assets, or any part thereof, in discharge of such lawful claims as he knows of, and shall not be liable for the assets so distributed to any person of whose claim he shall not have had notice at the time of such distribution; but nothing herein contained shall prejudice the right of Creditor any creditor or claimant to follow the assets, or any part there- may follow of, in the hands of the persons who may have received the same respectively.

321. A creditor who has not received payment of his debt Creditor may call upon a legatee who has received payment of his may

require legacy to refund, whether the assets of the testator's estate legatee to

refund. were or were not sufficient at the time of his death to pay both debts and legacies; and whether the payment of the legacy by the executor was voluntary or not?

322. If the assets were sufficient to satisfy all the legacies When at the time of the testator's death, a legatee who has not who has received payment of his legacy, or who has been compelled to not rerefund under the last preceding section, cannot oblige one

ment, &c. who has received payment in full to refund, whether the cannot

oblige one legacy were paid to him with or without suit, although the paid in full assets have subsequently become deficient by the wasting of to refund. the executor 3.

ceived pay

323. If the assets were not sufficient to satisfy all the When unlegacies at the time of the testator's death, a legatee who has

satisfied

legatee not received payment of his legacy, must, before he can must first

proceed call on a satisfied legatee to refund, first proceed against the

against executor if he is solvent; but if the executor is insolvent not liable to pay, the unsatisfied legatee can oblige each satisfied legatee to refund in proportion 4.

or

executor.

1 Act V of 1881, sec. 139, with slight changes. Compare in England 22 & 23 Vic. c. 35, sec. 29.

: Act V of 1881, sec. 140. Suits under this section must be brought within three years from the date of payment or distribution, see Act XV of 1877, sched. ii, art. 137, in the second volume of this work.

3 Act V of 1881, sec. 141. The distinction between the case put in this section and that put in sec. 323 is that here the second legatee has received no more than he was entitled to, and the executor is therefore the only person to be resorted to.

* Act V of 1881, sec. 142. Here the legatee who has received his legacy

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Limit to 324. The refunding of one legatee to another shall not the refunding of one

exceed the sum by which the satisfied legacy ought to have legatee to been reduced if the estate had been properly administered. another.

Illustration. A has bequeathed 240 rupees to B, 480 rupees to C, and 720 rupees to D. The assets are only 1,200 rupees, and if properly administered would give 200 rupees to B, 400 rupees to C, and 600 rupees to D. C and D have been paid their legacies in full

, leaving nothing to B. B can oblige C to refund 80 rupees, and

D to refund 120 rupees". Refunding 325. The refunding shall in all cases 2 be without into be without

terest 3 interest. Payment of 326. The surplus or residue of the deceased's property residue to resi

after payment of debts and legacies, shall be paid to the duary residuary legatee when any has been appointed by the Will 4. legatee.

in full has received more than he even when a legacy has been
was entitled to, and the other legatees erroneously paid to a legatee who has
may therefore fairly call on him to no farther property in the estate.
refund. But they must resort, in the But in England see Gittins v. Steele,
first place, to the executor if solvent, i Swanst. 200, per Lord Eldon,
for he, by paying the one legacy, has 3 Act V of 1881, sec. 144.
admitted assets to pay all.

4 Act V of 1881, sec. 145. 1 Act V of 1881, sec. 143.

2

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PART XL.

OF THE LIABILITY OF AN EXECUTOR OR ADMINISTRATOR

FOR DEVASTATION.

327. When an executor or administrator misapplies the Liability estate of the deceased, or subjects it to loss or damage, he is of executor liable to make good the loss or damage so occasioned. trator for

devastaIllustrations.

tion. (a) The executor pays out of the estate an unfounded claim '. He is liable to make good the loss.

(6) The deceased had a valuable lease renewable by notice, which the executor neglects to give at the proper time. The executor is liable to make good the loss.

(e) The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particular time. The executor neglects to give the notice. He is liable to make good the loss,

part of

328. When an executor or administrator occasions a loss Neglect to the estate by neglecting to get in any part of the property to get in of the deceased, he is liable to make good the amount. deceased's

property. i.e. a claim which the executor the creditors; (i) he surrenders the is not bound to satisfy, e.g. a claim residue of a term when the land is of on a bond ex turpi causa, or a claim greater yearly value than the rent; for the schooling, feeding, or clothing (j) he ne zlects to assign the residue of the children of the deceased sub- of a term where the rent is greater sequently to his death. Wms. Exors. than the yearly value of the land; 1809.

(k) he releases a cause of suit founded * Act V of 1881, sec. 146. Other on a wrong committed within the

year next before the testator's death, (d) The executor applies part of and causing pecuniary loss to his the assets to the satisfaction of his estate. In each of these cases he is own debt to a third party; (e) he liable to make good the loss, Wms. collusively sells the testator's goods Exors. 1804-1806, 1809. So also an at an undervalue; (f) he misapplies executor submitting a debt due to the assets in undue expenses at the his testator to arbitration seems liable funeral; (g) he pays debts out of when the arbitrators award him less their legal order to the prejudice of than is due. There is nothing in such as are superior, and of which he India corresponding to 23 & 24 Vic. had notice; (h) he assents to or pays c. 145, sec. 30. a legacy when there is not enough for

illustrations are :

VOL. I.

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a

Iustrations. (a) The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with a debtor who is able to pay in full. The executor is liable to make good the amount '.

(6) The executor neglects to sue for a debt till the debtor is able to plead the Act for the limitation of suits, and the debt is thereby lost to the estate. The executor is liable to make good the amount ?

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1 Otherwise if the release or composition appear to be for the benefit of the estate, Wms. Exors. 1807, 1808. But in India executors have not as such any express power to release or compound such as is given in England by 23 & 24 Vic. c. 145, sec. 30.

2 Act V of 1881, sec. 147. Other illustrations are :

(c) The executor neglects to call in the money due on a bond to the testator, and the obligor becomes insolvent and no dividend is made on the insolvency; (d) an executor leaves an unascertained residue in his co-executor's hands, who becomes insolvent; (e) he enables a co-executor to receive money and does not enforce a debt due from him to the estate; (f) for more than a year after the testator's death he allows part of the assets to lie unproductive in the hands of a banker who fails; (g) he negligently omits to sell certain shares of the testator which were at a

premium at the time of his death, but which subsequently fell to a discount. In each of these cases the executor is liable.

If the testator have been in : partnership business the executor should wind it up as soon as possible. See Erp. Garland, 1o Ves. 119, per Lord Eldon, and 2 Lindley, Partnp., 4th ed., 1060.

If he carries it on he becomes personally liable to third parties as if he were a partner in his own right; and whether he is entitled to be indemnified out of the assets of the deceased depends on whether he bas acted pursuant to the will of the deceased, or the directions of those beneficially interested in his estate, Lindley, ubi supra.

As to the liability of an executor for a devastavit by his co-executor, see Wms. Exors. 1828-1835, and compare the Indian Trusts Act, II of 1882, sec. 26, infra.

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