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Issues: (i) Whether an executor who has renounced executorship can later be reinstated or continue to act as executor; (ii) whether the executor should be removed for misconduct and incapacity; (iii) whether the consent terms recorded in the testamentary and administration proceedings were liable to be set aside and the proceedings restored.
Issue (i): Whether an executor who has renounced executorship can later be reinstated or continue to act as executor.
Analysis: Renunciation of executorship is treated as final and irrevocable once made. The statutory scheme distinguishes an executor from an administrator, and the provision governing renunciation bars a renouncing executor from thereafter applying for probate. An executor's office is derived from the will itself, not from court appointment, and permitting re-entry after renunciation would defeat the certainty required in probate administration.
Conclusion: An executor who has renounced executorship cannot thereafter resume or continue in that office.
Issue (ii): Whether the executor should be removed for misconduct and incapacity.
Analysis: The executor had acted contrary to the will by entering into consent terms inconsistent with the testamentary disposition and by dealing with estate property in an impermissible manner. Independently of that conduct, the executor's advanced age, infirmity, inability to hear or comprehend the proceedings, and dependence on another person for directions showed that he was incapable of discharging the duties of the office. The court may remove a private executor where the circumstances show that the estate must be protected from further prejudice.
Conclusion: The executor was liable to be removed from office.
Issue (iii): Whether the consent terms recorded in the testamentary and administration proceedings were liable to be set aside and the proceedings restored.
Analysis: The consent terms were contrary to the will and could not operate as a lawful family arrangement in probate proceedings where probate itself had to be worked out according to the testamentary instrument. Since the terms were legally untenable, the consequential orders recording them also could not stand. Restoration of the proceedings was necessary so that the testamentary issues could be determined afresh and the estate protected.
Conclusion: The consent terms were set aside, the consequential orders were recalled, and the proceedings were restored.
Final Conclusion: The executor was removed, the prior consent-based orders were undone, the proceedings were revived for further testamentary steps, and an officer of the court was substituted to pursue the matter in accordance with the will and probate procedure.
Ratio Decidendi: Renunciation of executorship is irrevocable, and a private executor may be removed where conduct contrary to the will or proved incapacity justifies protection of the estate; consent terms inconsistent with the testamentary scheme cannot be sustained in probate-related proceedings.
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