Document Fragment View

Matching Fragments

Sections 222 to 231 deal with the case of the deceased leaving a will appointing an executor; and probate shall be granted only to an executor appointed by the will. We do not find anything in those sections entitling an executor to apply for probate for part of an estate. Sections 232 to 236 deal with a case where the deceased had made a will, but not appointed an executor or an executor appointed under the will is incapable or refuses to act or died before the testator or before he proved the will, or, having proved the will, he died before he had administered all the estate of the deceased. In such cases, Section 232 provides that a universal or 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. It will be noticed that this Section contemplates letters of administration being granted in respect of the whole estate or in respect of the whole of the un-administered portion of the estate. It will also be noticed that it is not confined only to a universal legatee; and even in the case of a residuary legatee, the administration contemplated by the section is of the whole estate or of the whole of the un-administered portion of the estate.

5. Chapter II of Part IX embodies several sections dealing with limited grants, that is, (1) grants limited in duration, (2) grants for the use and benefit of others having right, and (3) grants for the special purposes. It will be seen that there is no section dealing specifically with grants in respect of a portion of the estate or a particular item of property. However, there are four sections, namely, 254 to 257, in that Chapter, which throw light on that question and which constitute the exception to the general rule we have stated above. Section 254 contemplates a case where a person had died intestate or leaving a will of which there is no executor willing and competent to act, or where the executor is at the time of the death of such person, resident out of the province; and in such a case, if it appears to the court to be necessary and convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the court may, in its discretion, appoint such person as it thinks fit to be administrator.

"Thus the testator may make A his executor for his plate and household stuff, B for his sheep and chattel and C for his real estate or any part thereof. So, a person may be made executor for one particular thing only and no more. The same will may contain the appointment of one executor for general, and another for limited purposes."

The learned author observes thus at p. 135;

"If there are several executors appointed with distinct powers, as one for one part of the estate, arid another for all other purposes, probate is usually granted to the latter, if he is the first to apply, save and except that Special purpose of specific part of the estate. If it is the limited executor that applies first, he will obtain his limited grant and the other may take probate 'caeterorum'."
"If a testator appoint one executor for a special purpose or in respect to a specific fund only, and another executor for all other purposes, the latter may take probate, save and except that purpose or. fund."
"The probate or administration following upon a grant 'save and except' as mentioned above is caeterorum; it is granted for that part of the estate, or for that purpose, which was excluded from the scope of the grant 'save and except' to which it is complementary".
* * * "If the deceased has made a will and appointed an executor for a specific purpose, or for a specific fund or property only, and has died intestate in all. other respects, the persons entitled to the undisposed of residuary estate, after the executor has taken a limited probate of the will, arc entitled to administration with will of the rest of the deceased's estate".