In Re: Shoshee Bhusan Bannerjee

Trevelyan, J.—Yesterday an application was made to me for probate of a will. The applicant was not named as executrix. It was contended before me that as universal legatee she was executrix according to the tenor of the will, and in support of that argument the decision in the case of In the goods of Radhika Mohan Sett 7 B.L.R. 563 was cited. Although I desire to speak with every respect for the learned Judge who passed the order in that case, still I am unable to follow that decision. That decision, if it were right at the time, is inconsistent with the intention of the Legislature as shown by Section 19 of the Probate and Administration Act. Under this Act a universal or residuary legatee is entitled to letters of administration with the will annexed. I must take it that by that expression the Legislature intended that they are to be excluded from probate. The decision in the case of In the goods of Radhika Mohan Sett 7 B.L.R. 563, as far as 1 can find, has never been followed. Mr. Belchambers, the Registrar of the Court, has referred me to other cases. I find that in 1889 Mr. Justice Wilson refused probate to a universal legatee, and granted letters of administration with the will annexed. There have also been other cases. I must follow the practice which has been in force for the last 20 years, i.e., ever since that decision was passed. I decline to grant probate, but grant letters of administration with the will annexed.