NOT LIABLE.

Auckland Star, Volume LXIX, Issue 177, 29 July 1938, Page 9

NOT LIABLE.

DECISION OF JUDGE.

POSITION OF EXECUTORS. WHEN A WIU IS REVOKED. (By Telograyh—Press AjwoctaHon ) CHRISTCHURCH, Thursday. Thc position of the executor of a will 111 the event of a successful attack on the will after a distribution has been made in good faith to legatee* is denned by Mr. Justice Northcroft in his judgment 111 the action recently taken by the l'ubr.c Trustee against the Guardian JriiHt and Kxwutory Company of New Zealand, Limited.

wither!'* " S Ven [° r thc 111 f, t, *?. tllat . the P«»>lic Trustee haa failed in his claim to recover £8450 paid out by the <lefenda.it as executor under the will-subsequently upset b v uranteT f ' l ' ter ' had been g anted-of M,« Elizabeth Smith, who lied in Chnstchurch on July 9, 1935 leaving an estate of £(iO,OOO

Legacies Paid in Good Faith. Of the comment* on two causes of aot.on set out by counsel for the pkint.ff. neither of which is held to have boon established, those on the second are of more general interest. His Honor here chsmwses the view of counsel that the recall of probate invalidates al transactions of the defendant a* executor, or at least makes defendant answerable for legacies paid in good faith, pursuant to the will.

J his follow* in the judgment his Himors decision that then? was not any failure of the duty or any breach of the trust with which the defendant was diarged so as to expose it to an action, lor a devastavit depends on a wilful or negligent breach of trust, which he holds not to have been committed thus dismissing the first cause of action.

"If a distribution to next-of-kin upon supposed intestacy is properly undertaken at the expense of the legatees of a will subsequently proved, I am not prepared to hold that a distribution made bona, fide to legatees is chargeable against an executor if subsequently the will is held invalid and probate recalled/' his Honor states. "Were this contention for plaintiff to prevail the position of an executor would be intolerable. Possessed of a will bona fide believed to be valid and having obtained probate, he would be required by his grant to realise the filets and to pay the debts and legacies. "Hazardous Duty." "If at some later date a subsequent will were discovered and proved or otherwise the first will was proved to l>e invalid," proceeded his Honor, "the unfortunate executor who had distributed legacies according to the supposed will of the testator and under order of the Court as to probate would find himself answerable to the estate for the amount of the legacies. Were this the law no executor -would be prepared to undertake so hazardous a duty.

"In my view this is not the law, and if authority be required to deny so startling a proposition I think it is to be found in Hewson v. Shelley."