Gunn v Gunn and Others [1911] ZAWLD 13 (3 May 1911)

Executor - Liquidation and Distribution - Validity of Acts of Executor without Title - Mistake - Mistake of Law - Principal and Agent -Ratification - Estoppel - Principal Estoppel by Acts of Agent.

A partner by will purported to appoint his co-partner sole executor. On the death of the former, the latter took out letters of administration. Acting in good faith, in order to liquidate the deceased's eslale, he took the business over at a proper valuation, paid out the legacies and filed an administration and distribution account with the Master. Thereafter the deceased's wife discovered that the appointment of the executor had not been made validly, and had it set aside. The said wife and X. then were elected co-executors, but by arrangement the latter alone took out letters of administration. Acting on the assumption that the aforesaid liquidation and distribution account was binding, X. agreed with the surviving partner to allow him to take over the said business at a price fixed on the basis of that account, and payment was made. Such payment, and the basis of it, were known to the agent, who had been appointed by the said wife to act for her, and, thereafter, he concurred in the disbursement of nearly half of the money so paid.

Held, that the said liquidation and distribution account was not binding on the estate.

Held, that, notwithstanding X's mistaken assumption that the said liquidation account was binding, there was a valid contract between X and the surviving partner with regard to the taking over of the said business.

Held, that, as the basis of the said payment was known to the agent of the said wife, and he had concurred in the said disbursement, the said wife had ratified the transaction between X and the surviving partner, and was estopped from challenging its validity.