Report No. 110

Chapter 39

Executors of their own Wrong (Sections 303 and 304)

39.1. Scope.-

The special topic of "executors of their wrong" is dealt with in a separate Chapter-sections 303 and 304. Of these two sections, one defines the concept, and the other deals with the liability, of such an executor.

39.2. Section 303-"Executor of his own wrong".-

Section 303 provides that a person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong.

There are, however, two exceptions to this general provision:

(1) Intermeddling with the goods of the deceased for the purpose of preserving them or providing for his funeral or for the immediate necessities of his family or property, does not make an executor of his own wrong.

(2) Dealing in the ordinary course of business with goods of the deceased received from another does not make an executor of his own wrong.

Illustration (i) explains the scope of the main as follows:-

"(1) A uses or gives away or sells some of the goods of the deceased, or takes them to satisfy his own debt or legacy or receives payment of the debts of the deceased. He is an executor of his own wrong."

However, if there is no notice of death, there is no intermeddling: Thus, in illustration (ii), A, having been appointed agent by the deceased in his lifetime to collect his debts and sell his goods, continues to do so after he has become aware of his death. He is an executor of his own wrong in respect of acts done after he has become aware of the death of the deceased.

The section does not seem to need any change.

39.3. Section 304-Liability of executor of his own wrong.-

Under section 304, when a person has so acted as to become an executor of his own wrong, he is answerable to the rightful executor or administrator, or to any creditor or legatee of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor or administrator, and payments made in due course of administration.

The section needs no change.