1923.   Present  Ennis A.C.J., Porter J., and Jayewardene A.J.

HASSAN v. SILVA.

 383-D. C Matara, 177.

Executor de son tort-Application for probate by executor named in the will-Order nisi made absolute--Action against executor-No probate issued-Administration cum testamento annexo issued to another-Is decree obtained by executor binding on estate ?

In March, 1917, I applied for probate of the last will of N, and order nisi was made absolute in June, 1918. The defendant, in August, 1917, sued I as executor, on a mortgage bond granted by N. I admitted the debt, and decree was entered in December, 1917. The mortgaged property was sold in July, 1918, and bought by defendant in August, 1918. I, purporting to act as executor, moved to set aside the sale, and subsequently withdrew his application, and Fiscal's transfer was issued to defendant in November, 1918. I took no steps, to have probate issued to him, and plaintiff obtained letters of administration cum testamento annexo, and brought this action to oust the defendant from the possession of the property on the ground that the decree against I was ineffectual to bind the estate.

Held, on the