Executor De Son Tort in the Eyes of the Law – Timothy Olamide

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INTRODUCTION.

Administration of  Estate is normally vested in the administrators and executors  of the deceased’s estate . The Executor of the deceased’s Estate is normally and duly appointed by the testator in his  will and his authority, being given by the Will itself, becomes complete upon the death of the testator. Administrator is normally  being appointed by the court having jurisdiction over the probate of wills. This is properly done after the letter of  administration of  estate and Grants of Probate have been made through the  Probate Registry  of the High court .Administration of Estates is governed by Administration of Estates laws of various states in the Nigeria.

There are several kinds of executors and administrators, namely: First, the executor proper, who is appointed legally by will. Second, the executor de son tort, as he is called, who is any person who, no person having been appointed by the will, officiously assumes the office and the duties of an executor. One can swiftly conclude that any intermeddling with goods, which is not done out of mere charity or kindness, but which is an assumption of right over the goods to be administered upon, will be sufficient to render a person an executor de son tort.

DEFINITION

The phrase Executor De son Tort  means  an Executor of his own Wrong. According to Williams’ Law  Dictionary 13th edition defined an executor de son tort as: “He that takes upon him the office of an executor by intrusion, not being so constituted by the testator….”

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Also according to “Blacks Law Dictionary 7th edition at page 591 defines executor de son tort as follows: ‘(Law French Executor of his own wrong)’ A person who, without legal authority, takes on the responsibility to act as an executor or administrator of a deceased property, to the detriment of the estate’s beneficiaries or creditors. Executor de son tort or executor of his own wrong is he that takes upon him the office of an executor by intrusion, not being so constituted by the testator.’

 Judicially, the Supreme Court in Augustine Udensi v. Alice Mogbo (1976) 7 S.C. 1 at 20 had cause to define executor de son tort as follows: ‘Now a person who has not been lawfully appointed an executor or administrator of an estate may by reason of his own intrusion upon the affairs of the estate be treated for some purposes as having assumed the executorship and in law such a person is called an executor de son tort”. See also the case of ALHAJI SUARA YUSUF VS YETUNDE DADA(MRS) &  ORS( 1990)LPELR 168/ 1987.

The definition offered by the Supreme court in the case above is not different from the definition given by in other jurisdictions. Let’s take a solace in the Canadian case of Canadian Commercial Bank v McLaughlan 69 Alta. L. R. (2d) 337  where Justice Wachowich added: “The executor de son tort is … person not lawfully appointed executor or administrator may by reason of his own intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship..’’

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WHAT THE LAW SAYS ABOUT HIM IN RELATION TO THE PROPERTY HE INTERMEDDLING WITH.

Being a stranger to the deceased’s  Estate, it is the trite law that he can be sued by the Executors of the deceased’s Estate. Thus in the case of Augustine Udensi v. Alice Mogbo (Supra): The court held “ The slightest interference with the goods or property of the deceased is sufficient to create such liability and such person( Executor de son tort) is liable to be sued by the rightful representative of the estate or by a creditor to the estate or by a beneficiary thereof…

From the above pronouncement, the Supreme court did not further say anything about an executor de son tort. Can  one can swiftly conclude that Executor de son tort is a trespasser not being duly appointed by the deceased in his Will?. The answer to the above question is in the affirmative

How ever the Court of Appeal, Enugu judicial division had opportunity to fully pronounce on the status of Executor de son tort and his liability in the case of ANIEDI BASSEY UDO Vs NKOYO BASSEY WILLIAM (1997)NWLR 505-631 where it  held  that ;An executor can properly do for the benefit of the estate anything which a legal personal representative can do. Thus, capacity of a plaintiff to sue for the estate of a deceased is not lost simply because the plaintiff is an executor de son tort . Nevertheless, the executor de son tort may be liable for not be indemnified for it by the estate…’’

 It was commonly held in America that Executor de son tort  had all of the duties but none of the rights of a real executor. See the old case of Carmichael v. Carmichael, 2 Phill. C. C. 102, 103.

Conclusion.

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There is a dearth of Nigerian decisions on this area of law as research did not yield enough result. However, it can be safely concluded from the case ANIEDI BASSEY UDO Vs NKOYO BASSEY(Supra) that an Executor de son tort can sue and be sued and as a result he is legal person recognised under the law.

Timothy Olamide is a law student of Ahmadu Bello university, Zaria. He can be reached via olaniyitimothyolamide@gmail.com or 08144856315.

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