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[2015] ZAKZPHC 45
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S.N.S and Another v Master of KwaZulu-Natal High Court, Pietermaritzburg and Others (3426/14) [2015] ZAKZPHC 45 (8 September 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 3426
/14
DATE:
08 SEPTEMBER 2015
In
the matter between
[S….]
[N…..]
[S…..]
.........................................................................................................
First
Applicant
[K…..]
[P…..]
................................................................................................................
Second
Applicant
And
THE
MASTER OF KWAZULU-NATAL
HIGH
COURT,
PIETERMARITZBURG
.................................................................
First
Respondent
[M…..]
[Z…]
[K…..]
.................................................................................................
Second
Respondent
STANDARD
EXECUTORS AND TRUSTEES
LIMITED
.....................................
Third
Respondent
JUDGMENT
Delivered:
8 September 2015
MOODLEY
J
[1]
This application originally placed the validity of a will in dispute
and the relief sought included the removal of the executor
appointed
by the Master of the High Court in terms of the disputed will.
[2]
Only the issue of whether the signature on the disputed will was the
authentic signature of the deceased, S….. P…,
and
whether she intended the aforesaid document to be her ‘last
Will and Testament’ was referred to oral evidence.
[3]
The applicants are the children of S…. P…., the
testatrix of the disputed will (‘the testatrix’):
the first applicant is her minor child who is represented by his
father and natural guardian, and the second applicant is her elder
child, who is a major.
[4]
The first respondent is the Master of the High Court, KwaZulu-Natal
(‘the Master’), to whom the estate of the testatrix
has
been reported. The second respondent is M…. Z… K…..
(‘K….’), to whom the testatrix
was married at her
date of death under Islamic law. The third respondent is the Standard
Bank Trust (Standard Bank) which was appointed
executor under a will
executed by the testatrix in 2007.
The
first and third respondents are cited by virtue of their interest in
the matter and no relief is sought against them. Neither
of these
respondents filed a report or notice to abide. K…. opposed the
application.
Factual
Background
[5]
The testatrix, S…. P…. also known as R…. S……,
died of natural causes on 11 May 2013. Her
marital status, as
reflected on her death certificate, is ‘divorced’. At the
time of her death, the deceased had two
minor children, S…..
N…. S…. ( the first applicant) and K…. P……
(the second applicant),
who has since attained the age of majority.
K…..
was born of the marriage of the testatrix and one T….. P….,
who were divorced in 1997. S…. N…..
S…. is a
child born of the relationship of the testatrix with N..... S.......
The
testatrix subsequently commenced a relationship with K....., whom she
married on 13 April 2004 in accordance with Islamic law.
No children
were born of this marriage.
[6]
It is common cause that the testatrix executed a will dated 2 March
2007 (the 2007 will) which was prepared by and executed
with the
assistance of Standard Bank, Amanzimtoti. In that will, the testatrix
bequeathed her estate to her two children in equal
shares and
Standard Executors and Trustees Limited or Standard Bank of South
Africa Limited was appointed executor.
[7]
After the death of the testatrix, the 2007 will was located by K….’s
paternal grandmother, P…. P…..
(Ms P…..), in the
possession of Standard Bank. Ms P….. informed K…. about
the will. With the assistance
of Ms P….., the Standard
Bank Trust Department reported the deceased estate to the Master and
letters of executorship were
issued to Standard Bank in accordance
with that will.
[8]
Subsequent to the appointment of the executor, the second respondent
produced a will dated 23 February 2013 (the 2013 will),
purporting to
be the later, and therefore valid, will of the testatrix, in which
she revoked and cancelled the 2007 will, appointed
the second
respondent the executor of her estate and bequeathed a fifty per cent
(50%) share in her estate to him and a twenty
five per cent (25%)
share to each of her sons. In the 2013 will the deceased also
directed that should any of her children be a
minor or minors at the
time of her death, the second respondent was to be appointed the sole
guardian and administrator of the
affairs and assets of that child or
children, until he or they attained majority. She directed further
that no money or asset due
to the children was to be placed in trust
with the Guardian Fund; it was to be held and administered at the
sole discretion of
the second respondent.
[9]
Without informing the beneficiaries or their guardians or Ms P….
about the 2013 will, K…. instructed a firm of
attorneys, Bilal
Malani & Associates, to report the estate of the testatrix, which
was duly done in September 2013. The Master
accepted the 2013 will as
the valid will, revoked the letter of executorship issued to Standard
Bank and appointed the second respondent
as the executor of the
deceased estate in terms of the letters of executorship dated 26
September 2013.
[10]
Emanating from the suspicions of Ms P….. about the signatures
on the will being that of the testatrix, the applicants
obtained the
opinion of a handwriting expert, who reported to them that the
signatures on the 2013 were not that of the testatrix.
The applicants
through their attorneys then disputed the validity of the later will
with Khan’s erstwhile attorneys, and
having failed to elicit a
positive response to their request that the deceased estate be
administered under the 2007 will, launched
this application to have
the 2013 will declared invalid on the basis that the signatures on
the Will were a forgery and not that
of the deceased, and for the
removal of Khan as the executor.
[11]
The founding affidavit was deposed to by N….. S……,
the father of the first applicant, supported by confirmatory
affidavits by K…. and Ms P…... K….. filed an
answering affidavit. No replying affidavit was filed.
[12]
Prior to the commencement of the hearing of oral evidence, I
requested that the two handwriting experts who were to testify
on
behalf of each party prepare a joint minute. At the insistence of the
applicant’s counsel the hearing proceeded in the
interim.
[13]
Ms P….., a bookkeeper with a firm of attorneys, and the former
mother-in-law of the testatrix testified
[1]
that she had maintained a good relationship with the testatrix until
her death, especially because K….. continued to live
with Ms
P…. after his parents were divorced and even after Truvin
remarried. The testatrix and K…. had also visited
her home
regularly, and they had a cordial relationship. Ms P…. knew
that the testatrix had executed a will with Standard
bank because the
testatrix had asked her about executing a will and had phoned her
from the bank. She had therefore informed K….
that he should
enquire with Standard Bank whether they were in possession of the
testatrix’s will.
However
when K…. advised her that there was no will with Standard
Bank, she communicated with the bank herself and the will
was located
around the end of September 2013. Ms P…. informed K….
that there was a will, and he was grateful for
her assistance. He had
also informed her that he had searched the house in which he had
lived with the deceased but did not find
another will. However he
took no further steps to report the estate; so she assisted Standard
Bank with the necessary documentation.
K….
did not tell P….. about the 2013 will, about which she only
found out on receipt of the letter from K…..’s
erstwhile
attorney informing them of the later will.
[14]
Ms P…. testified that the testatrix had consulted her about
the will and the property she had purchased because Ms P…..
worked for a firm of attorneys. She therefore believed that the
testatrix discussed her financial affairs with her. However she
admitted that the testatrix had an insurance policy of which she was
not aware until K…. had informed her about it in July
2013.
The two applicants and K…. were the beneficiaries, and the
proceeds due to the children were to be invested until
they attained
25 years of age.
[15]
After a consideration of the joint minutes prepared by the hand
writing experts, which was admitted as ‘Exhibit E’
by
consent, the applicants lead no further oral evidence and
closed their case. K….. closed his case without leading
any
evidence.
[16]
Mr N…., who appeared for the applicants, thereafter placed on
record that the applicants no longer persisted with the
relief sought
in in paragraphs 1 and 2 of the Notice of Motion in respect of the
validity of the 2013 will. However they
persisted with the
relief in paragraph 3 thereof: the cancellation of the letters of
executorship appointing K…. as executor
and administrator of
the testatrix’s estate, and an order for costs against K…….
[17]
This relief originally followed on the relief sought in the preceding
paragraphs of the notice of motion viz a declaratory
order that the
2013 will is invalid. It was not premised on any other ground.
However in his argument, Mr N…. premised the
application for
the removal of Khan as executor on
Section 54(1)(a)(v)
of the
Administration
of Estates Act 65 of 1965
.
The
applicants thereby assumed the onus to persuade me to exercise my
judicial discretion in their favour by directing the Master
to revoke
the appointment of K…. as executor by demonstrating on the
application papers and the testimony of Ms P….,
that it was
undesirable that K….. act as executor of the deceased estate.
The predominant consideration must be the interests
of the estate and
the beneficiaries.
[2]
[18]
In argument Mr N…., relying on the general principles set out
in
Van
Niekerk v Van Niekerk and Another
[3]
and
Reichman
v Reichman
,
[4]
submitted that K….‘s covert conduct in failing to inform
the beneficiaries about the 2013 will was suspicious and
questionable, and had engendered a feeling of distrust in the
applicants as beneficiaries under the will. There had also been an
altercation between K….. and K….. which prejudiced the
the objectivity with which the estate should be administered.
Further, the preliminary inventory filed by K…. on 9 September
2013 with the master did not record the assets of the testatrix
properly, nor did it reflect her bequest or inheritance from the
estate of her aunt. K…. had also not conducted himself
properly in these proceedings. Mr N…. contended in conclusion
that where there is a dispute between the beneficiaries, the
executor
should not have an interest in the estate. Therefore the relief
sought by the applicants was well-founded and should be
granted.
[19]
Mr M…. who appeared for K…..., pointed out that
although Ms P…. had testified, neither K…. nor
N….
S…. who deposed to the .founding affidavit had. Although K…..
had not testified, no replying affidavit
had been filed and the
disputed allegations of the applicants must be decided on the
respondent’s version in accordance with
the principle stated in
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints Proprietary (Pty) Ltd.
[5]
He contended that on the evidence before the court, that the
applicants had failed to place any pertinent proof before the
court
which justified the relief they sought. There was no
maladministration of the estate by K…. or any other conduct,
which could be properly be relied on to justify his removal. The
parties had agreed that the administration of the estate be
suspended.
The inventory was a preliminary one and Bilal Malani had
written to the previous executor requesting details of the estate in
which
the testatrix had been appointed heir. Consequently the
application lay to be dismissed.
Relevant Legal
principles :
Dispute
of fact
:
[20]
The general rule stated in
Stellenbosch Farmers’ Winery Ltd
v Stellenbosch Winery (Pty) Ltd
1957 (4) SA 234
(C)
at 235 E-G is
:
‘ …
.where
there is a dispute as to the facts a final interdict should only be
granted in motion proceedings if the facts stated by
the respondents
together with the admitted facts in the applicant’s affidavits
justify such an order….Where it is
clear that facts, though
not formally admitted, cannot be denied, they must be regarded as
admitted.
[21]
Clarification and qualification of the general rule was provided in
Plascon-Evans Paints v Van Riebeeck Paints
(supra)
at 634 H
– 635 C:
‘
It
is correct that , where in proceedings on notice of motion disputes
of fact have arisen on the affidavits, a final order, whether
it be
an interdict or some other form of relief, may be granted if those
facts averred in the applicant’s affidavits which
have been
admitted by the respondent, justify such an order. The power of the
Court to give such final relief on the papers before
it is, however,
not confined to such a situation. In certain instances the denial by
the respondent of a fact alleged by the applicant
may not be such as
to raise a real, genuine or
bona fide
dispute of fact…..If in such a
case the respondent has not availed himself of his right to apply for
the deponents concerned
to be called for cross-examination under Rule
6(5)(g) of the Uniform Rules of Court and the court is satisfied as
to the inherent
credibility of the applicant’s factual
averment, it may proceed on the basis of the correctness thereof and
include this
fact among those upon which it determines whether the
applicant is entitled to final relief which he seeks…..Moreover
there
may be exceptions to this general rule, as, for example where
the allegations or denials of the respondent are so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers.’
Removal
of an executor in terms of
Section 54(1)(a)(v)
of the
Administration
of Estates Act No 65 of 1965
, as amended
[22]
Section 54(1)(a)(v)
provides that a
n
executor may at any time be removed from his office by the Court :
‘
(v)
if for any other reason the Court is satisfied that it is undesirable
that he should act as executor of the estate concerned’.
[23]
The common law principle affirmed in
Grobbelaar
v Grobbelaar
[6]
is that the court is vested with a discretion to remove an executor
from office if his personal interests are in entire conflict
with the
interests of the estate.
[24]
In
Volkwyn NO v Clarke & Damant,
Murray J
appositely held :
‘
Both
the statute and the case cited (Letterstedt v Broers) indicate that
the sufficiency of the cause for removal is to be tested
by a
consideration of the interests of the estate. It must therefore
appear, I think, that the particular circumstances of the
acts
complained of are such as to stamp the executor or administrator as a
dishonest, grossly inefficient or untrustworthy person,
whose future
conduct can be expected to be such as to expose the estate to risk of
actual loss or of administration in a way not
contemplated by the
trust instrument.’
[7]
[25]
See also
Meyerowitz The Law and Practice
of Administration of Estates and Estate Duty
:
‘
Where
it is sought to remove an executor from office it must appear that
the acts complained of are such as to stamp the executor
as a
dishonest, grossly inefficient or untrustworthy person whose future
conduct can be expected to expose the estate to actual
loss, or of
administration in a way not contemplated by the will. Mere hostility
between the executor and other interested parties
which does not
affect the administration, or even negligence which may expose the
executor to a claim to make good the loss, is
not sufficient grounds
for removal; the test is whether the continuance of the executor in
office will prejudicially affect the
future welfare of the estate
placed in his care.’
[8]
[26]
In
Van
Niekerk v Van Niekerk,
Wallis
J
recognised that the executor is not a mere agent for the heirs nor
does he represent the creditors of the estate
[9]
.
He is given custody and control of all the property in the estate
and, when considering claims against the estate, he is obliged
to
exercise the powers conferred on him, in particular under
Sections 32
(disputed claims) and 33 (rejected claims),
bona
fide
and with a measure of objectivity. He held further:
‘
However,
where it is apparent from the executor’s conduct that it is
their purpose and intent to use the office to resist
all claims, or
all claims from a particular source, irrespective of their merits and
without any fair-minded consideration thereof,
that may, in my view,
constitute good cause for their removal in terms of
s 54(1)(a)(v).
That view would be strengthened where the motive was to secure
personal financial benefit in their capacity as heirs. The office
of
executor should not be used in order to pursue a private agenda.’
[10]
[27]
In
Reichman v Reichman,
in determining an application in terms of
Section 54(1)(a)(v)
,
Scholtz J concluded from a review of relevant authorities that the
court may exercise its power under this section where
there is a
conflict of interest between the executor in his capacity as executor
and his personal capacity, such as where there
is a dispute between
the executor and other beneficiaries concerning their entitlement to
benefit from the estate. He was satisfied
that even where there was
no finding of wrongdoing on the part of the executor the facts
established it was undesirable for him
to continue to act as
executor.
[28]
It is apparent that in applying in any of the principles enunciated
above, the court must be satisfied that there was some
act or conduct
on the part of the impugned executor which demonstrates or proves
that it is undesirable for him to continue as
executor.
Reasons
[29]
In
Reichman v Reichman
the
facts are the inverse of that prevailing in this matter. The executor
instituted an action in which he (acting as executor)
sought an order
that a document purporting to be a will was valid and that he (in his
personal capacity) should be declared the
sole heir of the deceased,
to the exclusion of the other beneficiaries. It is for that reason
that he court found that it was undesirable
for him to continue to
act as executor.
[30]
Therefore it is not any dispute which causes the executor of an
estate to become susceptible to removal at the instance of
the court.
There has to a proved conflict of interest or facts which demonstrate
that he is incapable of impartial administration
of the estate to the
detriment or prejudice of the estate, and consequently its heirs or
beneficiaries.
[31]
The dispute about the validity of the 2013 will, initiated by the
applicants, has been resolved in favour of K…. Mr
N….
sought to persuade me that the alleged altercation between K…..
and K…. would have adverse consequences
for K…. if the
estate were to be administered by K….. There is no evidence to
this effect, except Ms P….’s
testimony that there was an
altercation which ‘she thought’ occurred because K…..
was not happy that K…..
visited his brother’.
[32]
Mr Naidu also referred me to the following excerpt from the judgment
of
Wallis J
in
Van Niekerk
:
‘
Take
the case of an executor, who is also the sole heir to the estate, who
rejects all claims of R10 000 or less on the basis that
the cost of
establishing those claims will be such that a number of the claimants
will abandon them. That would be an abuse aimed
at personal
enrichment. Some claimants (widows, dependent children, domestic
workers, etc) may be in a vulnerable position and
ill-equipped to
enforce a claim against a recalcitrant executor. If the executor is
well provisioned, because the estate is a substantial
one, they may
be able to mount a campaign of attrition against claimants, resisting
their claims on grounds no stronger than personal
dislike. That is
not what the Act contemplates by way of the proper performance of an
executor’s duties. Where the exercise
of its powers in this way
is directed at personal financial advantage that is even less the
case.’
[11]
[33] The reliance on
both
Reichman v Reichman
and
Van Niekerk v Van Niekerk
to sustain the relief sought is, in my view, ill-conceived. The
applicants are not claimants against the estate but heirs, and
therefore the executor, although also an heir, cannot reject or
dispute their entitlement.
[34]
Further it is apparent from the judgment of
Wallis J
that it
was because of the attitude that the executrix adopted towards the
widow and her claims against the estate, and her determination
to
resist the claims by the widow, that he held that:
‘
[28]
Whilst the executor of an estate may be vigorous in resisting a claim
that he or she regards as doubtful and this may result
in acrimony
between the executor and the claimant, the proper execution of the
duties of an executor demands, in my view, a measure
of impartiality
and fair treatment in dealing with claims against the estate. The
respondent has demonstrated that, at least insofar
as the claims by
the applicant are concerned, she is incapable of exercising that
level of impartiality and treating the claims
fairly.’
[12]
[35]
While Khan has failed to explain why he failed to advise the
beneficiaries or their guardians when he found the later will
has not
been explained, he correctly points out that he had no legal
obligation to inform Ms Pillay. However I am unable to find
in any of
the submissions made by Mr Naidu, including the suspicions that the
aforesaid failure aroused, that Khan
has committed any act which
demonstrates that he is incapable of executing his duties as executor
with a measure of impartiality
or fair treatment in his dealing with
the estate or the other heirs or that he is pursuing his private
agenda.
[36]
To date, all that has occurred in respect of the administration of
the testatrix’s estate is that the preliminary inventory
and
Acceptance of Trust by K… were lodged with the 2013 will with
the Master and the letters of Executorship issued in favour
of K…..
The
preliminary inventory reflects a paucity of details; it does not
reflect the bank account of the testatrix, of which K…..
was
clearly aware, from his allegation in the answering affidavit that
the money was held on his behalf. Further, as correctly
pointed out
by Mr N….., according to the answering affidavit, the
immovable property described in the inventory, was not
owned by the
testatrix but leased by her. It is therefore questionable as to why
it is reflected as an asset. Similar questions
pertain to the BMW
motor vehicle and the remaining jewellery that was allegedly not
pawned by the testatrix.
[37]
However in my view the following considerations are pertinent :
(i)
this is a preliminary inventory; a final
inventory will have to be filed before the estate can be finalised
and distributed;
(ii)
albeit on the instructions of K… and
signed by him, the estate documents were completed by K….’s
erstwhile attorney,
who is no longer on record. (I am unable to read
anything sinister into this as suggested by Mr N…);
(iii)
the parties had agreed to pend the
administration of the estate until the finalisation of this
application; therefore any inaction
cannot be attributed to K….’s
failure to fulfil his obligations as executor;
(iv)
there are no claims reflected against the
estate at this stage, although claims may be lodged after the notice
calling for the debtors
and creditors of the estate in terms of
Section 29
of the
Administration of Estates Act is
advertised;
(v)
the testatrix’s inheritance from her
aunt has not been ascertained.
[38]
Therefore no act of maladministration, or repudiation or conflict of
interest or any other act on the part of K…. as
executor to
the detriment of the estate or its heirs, has been furnished or
proved by the applicant.
[39]
I am also mindful that in giving effect to the terms of a will, the
expressed intention and directions of the testatrix must
be
implemented as far as is reasonably possible, although this does not
preclude the removal of the nominated executor.
[13]
According to clause 5 of the 2013 will, despite the unfounded
reservations expressed by Ms P…., the administration of the
benefits due to the minor children was entrusted to K….. as
executor. Further from the evidence of Ms P……,
it would
appear that the beneficiaries of the insurance policy of the
testatrix were the same beneficiaries in terms of her will,
although
the proportion of benefit is unknown. I note in passing that K…..
was in a position to deal with insurance in July
2013, two months
after the death of the deceased, although he claims that he was so
emotionally distraught that he could not look
for the will until
September 2013.
[40]
I remain mindful that in his answering affidavit K….. alleges
that certain assets were held by the testatrix on his
behalf and he
has a claim against her estate, albeit he has also alleged in
correspondence that their marriage which was conducted
under Islamic
rites was one in which the community of property marital regime
prevailed. It remains to be seen if he pursues this
claim and whether
his performance of his obligations as executor is thereby compromised
by the conflict of interest which will
arise from his concurrent
status as a creditor of the deceased estate, to the prejudice of the
beneficiaries.
[14]
However
as the administration of the deceased estate was suspended pending
the finalization of the application, the administration
can only be
resumed hereafter. The applicants are at liberty to take whatever
measure they deem necessary to protect their interests
in the future.
But I am unable, on the application before me, to find in favour of
the applicants, even to the extent of the amended
relief sought.
Costs:
[41]
Mr N…. argued that the applicants had relied on the opinion of
their expert in bringing this application, and
as they acted
bona fide
, the costs should be borne by the second respondent.
This is clearly not a tenable argument, as there is no cogent reason
why K….
should be mulcted in the costs of the applicants,
whether or not they acted
bona fides
.
Mr
Mohammed left the issue of costs in my hands.
[42]
I am of the view that the applicants themselves (even K…. who
is clearly guided by his grandmother), had little or no
control over
the institution or the course of these proceedings, and cannot be
said to have acted
mala fide
.
But their estates will be depleted substantially by the legal costs
and disbursements incurred and any adverse costs order.
[43]
However it was at the insistence of those instructing their counsel
that the hearing of oral evidence commenced, while the
joint minute
was prepared. Thereafter, even though the validity of the 2013 will
was no longer in dispute, on 4 September 2015
the applicants
persisted in pursuing an order for the removal of the executor based
on new grounds, without any notice to K…..’s
legal
representatives and, in my view, without proper consideration of
whether they had made out a case for the relief as premised
on
Section 54(1)(a)(v).
Therefore,
despite any consideration I may have for the applicants, they have
been exposed to an adverse costs order for their unreasonable
persistence on 4 September 2015.
Order:
1.
The application for the cancellation of the letters of executorship
issued to the second respondent by the first respondent in
Estate
Late S…. P…. Reference No 8572/2013/PMB is dismissed.
2.
The costs of the application are to be costs in the administration of
the aforesaid estate, except for the costs of the opposed
hearing on
4 September 2015.
3.
The costs of the hearing on 4 September 2015 are to be borne by the
applicants, such costs to be taxed or agreed.
MOODLEY
J
Counsel
for the Applicants:
Adv V Naidu
Instructed
by:
WOODHEAD BIGBY INC
92
Armstrong Avenue
La
Lucia
c/o
BJ NICHOLSON
21
Drummond Street
Pietermaritzburg
3200
Counsel
for the Second Respondent:
Adv R Mohamed
Instructed
by: ABDUL KARRIM ATTORNEYS
81
Esselmont Avenue
Greyville
Durban
c/o
AK ESSACK, MORGAN, NAIDOO &CO
311
Pietermaritz Street
Pietermaritzburg
3200
[1]
I
have only summarised the pertinent evidence of this witness.
[2]
Van
Niekerk v Van Niekerk and Another
2011 (2) SA 145
(KZP) at 147B
[3]
Supra
[4]
2012
(4) SA 432
(SG)
[5]
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
[6]
1959
(4) SA 719(A)
at 724F-G
[7]
1946
W. P. A. 456 at 464
[8]
2007
Edition page 11-2
[9]
At
149
G-H
[10]
At
150 F-G
[11]
[12]
Van
Niekerk p
age
156 H-I
[13]
Port Elizabeth Assurance Agency & Trust Co. Ltd. v Estate
Richardson,
1965
(2) SA 936
(K) at 940:
"I
have no doubt that in the exercise of its power to appoint or remove
an administrator the Court will pay close attention
to the wishes of
the testator as expressed in or implied from the terms of the will.
The Court cannot, however, necessarily be
bound by these wishes even
to the detriment of the beneficiaries to whose interest it must
equally clearly have regard."
[14]
Meyerowitz
page 11-3 :
Conflicting
interests 11.6
‘
Where
an executor’s private interests conflict with those of the
estate, he may be removed from office. If application is
made for
removal of an executor on the ground that he has made a claim
against the estate which is disputed by the heirs it is
not
necessary for the court to go into the validity of the claim, as the
question as to who is right or wrong is irrelevant.
The executor
finds himself in the impossible position on the one hand having to
fight for his claim as a creditor and on the
other hand having as
executor to defend the estate against the same claim; he cannot
remain impartial.’