Executor's office is non-assignable: scheme provisions could not transfer probate rights or bar Grindlays from continuing the action.

An executor's office is personal and non-assignable, so a company scheme could not validly transfer executor rights or duties to National or entitle National to probate. Any scheme clause purporting to prohibit Grindlays from continuing as plaintiffs was ineffective because it could not override duties and powers enforceable under the general law. Grindlays also remained a trust corporation, as its status depended on the prescribed capital structure and not on the extent of beneficial assets held. The scheme therefore could not displace Grindlays as executors or disqualify it from probate.

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Issues: (i) Whether National could be substituted as plaintiff or be granted probate in place of the executors. (ii) Whether Grindlays could continue as plaintiffs and whether any scheme prohibition preventing them from doing so was effective. (iii) Whether Grindlays remained a trust corporation capable of being granted probate.

Issue (i): Whether National could be substituted as plaintiff or be granted probate in place of the executors.

Analysis: The office of executor is one of personal trust and, save for lawful acts done in the course of administration, the rights, powers, duties, and property attaching to it cannot be assigned. A scheme under the relevant Companies Act provisions can operate only upon interests capable of lawful transfer, and any purported transfer of an executor's office or executor's powers would be repugnant to the general law and ineffective to that extent. On the construction of the scheme and order, no property of the deceased was transferred to National and no provision validly vested in National the rights or duties of an executor.

Conclusion: National was neither entitled to be substituted as plaintiff nor entitled to probate.

Issue (ii): Whether Grindlays could continue as plaintiffs and whether any scheme prohibition preventing them from doing so was effective.

Analysis: If the scheme clause did not prohibit Grindlays from continuing, there was no other impediment to their doing so. If it did purport to prohibit them, the prohibition would be ineffective because a scheme cannot validly forbid the performance of a duty or the exercise of a power which the general law permits and which third parties are entitled to enforce. Accordingly, regardless of the rival constructions of the clause, the restriction could not operate to prevent continuation of the action by Grindlays.

Conclusion: Grindlays could and should continue as first plaintiffs, and any contrary prohibition was ineffective.

Issue (iii): Whether Grindlays remained a trust corporation capable of being granted probate.

Analysis: The applicable rules made trust-corporation status depend on capital structure, not on the extent of beneficial assets. Grindlays continued to exist as a legal entity and still satisfied the prescribed capital requirement. The transfer of its beneficial assets did not remove its qualification under the rules governing custodian trustees.

Conclusion: Grindlays remained a trust corporation and could be granted probate if either will were proved.

Final Conclusion: The scheme could not divest or disable Grindlays from acting as executors, could not vest executor functions in National, and did not disqualify Grindlays from obtaining probate.

Ratio Decidendi: A scheme under the Companies Act cannot validly transfer or prohibit the exercise of an executor's office, rights, or duties where those matters are non-assignable under the general law; any such inconsistent provision is ineffective to that extent.

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