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Report No. 110

35.33. Section 232.- Section 232 reads:-"232. When-

(a) the deceased has made a will, but has not appointed an executor, or

(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or

(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased.

an 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".

35.34. Universal and residuary legatees.-

Section 232 is concerned with two classes of legatees, namely the universal legatee and the residuary legatee. The universal legatee is one who, by virtue of the will, is entitled to the whole of the testator's property. In the absence of the executor, he has been given the right to prove the will and to obtain letters of administration with the will annexed. He cannot, however, obtain probate.

The residuary legatee is, it is said, the testator's choice; he is the next person in his election to the executor1. When the residum has been disposed of to another person, there would be no purpose in giving the administration to the next-ofkin, because no benefit can accrue to them by the grant of the Letters of Administration in such cases.

1. Atkins v. Bernard, 2 Phi11 18, cited in N.D. Basu Law of Succession, (1957), p. 699.

35.35. No change needed in section 232.-

What words would create a universal or residuary legatee is not a matter with which we are concerned at the moment, that being a question of construction of the words of the will. It is enough to note that there are adequate reasons for the grant of letters of Administration to the universal legatee or the residuary legatee, in preference to the next-of-kin.

The section, therefore, needs no change.

35.36. Section 233.-

Section 233 provides that when a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative has the same right to administration with the will annexed as such residuary legatee.

The section needs no change.

The Indian Succession Act, 1925 Back

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