Kumarajeeva V. Susana Fernando Et Al.,

1950 Present : Nagalingam J. and Swan J.

KUMARAJEEVA, Appellant, and SUSANA FERNANDO et al.,

Respondents

S. C. 23-D. C. (Inty.) Negombo, 3,493

 Will-Probate-Right of executor is paramount.

The Court cannot refuse to grant the probate of a will to a person appointed executor on the ground of refusal by the executor to include certain disputed moneys as forming part of the estate.

APPEAL from an order of the District Court, Negombo.

N. E. Weerasooria, K.C., with C. V. Ranawake, for the petitioner appellant.

H. V. Perera, K.C., with E. G. Wikramanayake, K.C., and Vernon Wijetunge, for the 3rd respondent.

Cur. adv. vult.

 December 11, 1950. NAGALINGAM J.-

This is an appeal from an order of the learned District Judge of Negombo granting letters of administration with the will annexed to the 3rd respondent, in preference to the claim of the petitioner who is the executor named in the will.

That the Court has the power to pass over an executor for good reason is a proposition that must necessarily flow from the Divisional Bench judgment of this Court in Setukavalar v. Alvapillai 1[ (1934) 36 N. L. R. 281.] by reason of the interpretation placed by the Court on the words " shall be preferred to all others " which were held to vest impliedly such a power in the Court. The case itself was one where the Court was invited to express its opinion

as to whether the claim of a widow or widower should be passed over in favour of another person. That was a case of intestacy, and it is the Court that appoints the administrator in such a case. The duty, therefore, is cast upon the Court to satisfy itself that the person it proposes to appoint as administrator of the estate of a deceased person is one who is fit and proper to carry out and discharge those duties faith-fully and in accordance with the trust imposed by the office. Under those circumstances, that a. Court has a large discretion and larg3 powers to investigate the suitability of a claimant for letters of administration cannot be doubted, but in the case of a. testacy and where the testator expressly appoints an executor to carry out his wishes embodied in his last will, a Court cannot be said to have any large discretion or broad powers to examine minutely the credentials of such an appointee.

A testator's right to dispose of his property in any way that he may think proper or to appoint any man with any history to the office of an executor cannot be questioned by a Court. The only case that I can think of where an executor may be passed over by Court in favour of another person is where the executor appointed becomes non compos mentis and incapable of taking upon himself the very office of executor. An utterly unworthy man is one who in the opinion of the majority of people or of mankind in general is regarded as such. But- so far as the family of that utterly unworthy man may be concerned, he may be the best person to protect the rights and their interests, so that if a testator chooses to appoint one who by ordinary standards is unworthy of trust, such an appointment would not necessarily invoke the disapprobation of Court to the extent of denying to him the right conferred on him by the testator, who is the sole and exclusive authority to appoint an executor to carry out his testament. I would emphatically say that the Court has no right to ignore or supersede the appointment made by a testator. That would be to substitute for the testator's mind the mind of the Court a course totally indefensible.

In this case, the appellant sought to have the will admitted to probate; he claimed probate as the executor named therein. He is a man of maturity, a man possessed of wealth, and is the eldest son-in-law of the deceased ; and he has been described by a witness called by the contesting respondent as one who is quite capable of managing the estate and who would honestly administer the

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