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TMI Blog1981 (2) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... r cl. IV. Clauses V to IX deal with certain payments to be made by the executors. The wife is to get some amount towards subsistence money. A condition was, however, put that she will be entitled to the subsistence allowance monthly until her death or re-marriage She has also been allowed to use the residential bungalow. Clause X is more relevant for the purpose of deciding the issue in these appeals and we feel it better to reproduce cl. X. " I, hereby Devise and Bequeath the entire residue (excepting what is herein-before specifically bequeathed) of my estate both personal and real of whatever nature and description and wheresoever situated vested or in remainder in possession or contingent or over which I may have power of appointment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contingency upon the death or re-marriage of the testator's wife. At that stage the property whatever remains is directed to be distributed. 2. The WTO made the assessments by applying s. 19A of the WT Act. According to him, the executors continued to act as such and they should be assessed. The AAC, in appeal, held that the executors ceased to be executors as administration of the estate was complete and they became trustees. Consequently, the assessments have to be made on the trustees by applying s. 21 of the WT Act as admittedly the beneficiaries are determinate and known. He, therefore, directed fresh assessments to be made. 3. The Revenue is in appeal and the only question argued by the ld. Sr. Deptl. Rep. is that the executors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised by Mr. George. We have quoted all the details from the Will. Upto cl. IX there are certain directions by the testator. They have all been completed. Those clauses actually deal with the execution of the estate by the executors. The persons named in the Will were to act as executors only till that stage. Thereafter, they became trustees. Clause X which has been quoted by us in extenso clearly mentions the words ' residue', trustees, acting upon trust. It also speaks of the beneficiaries. These are not expressions of a layman but they are legal expressions. They definitely convey the idea that, as soon as the disbursements are over, the executors become trustees and thereafter act as such. They no longer continue as executors. Through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executorial functions and duties have not been discharged, the residuary estate has not been ascertained and has not come into existence, the trust fund has not been constituted, the executors have not yet become divested of the property and the residue has not vested in them as trustees. It is common ground that some of the pecuniary legacies bequeathed under the Will have not yet been paid. The suggestions that the time for payment of those legacies has not arrived is not supported by the answers given by one of the executors to the questions propounded by the Revenue authority. Even if the suggestions were correct, it was the duty of the executors under s. 342 of the Succession Act to have invested a sum sufficient to meet the legacy whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t least, to increase its capital and to covert it into a limited company in certain contingencies. The period of seven years was not over before the relevant years of accounts. If at the end of the period of seven years it was found that the business did not yield a profit of 3 per cent. On the outlay the executors were directed to wind up the business. The ordinary rule that an executor or trustee has no power to carry on his testator's business except so far as is necessary for winding up has no application to the present case as the Will not only authorise but requires the executors to carry on the business till the event on the happening of which it has to be wound up occurs. The business is now being carried on by the executors who are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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