JUDGMENT Harish Chandra, J. - This is an application of Madhu Sudan Bagchi under S. 301, Succession Act, 1925 (Act XXXIX [39] of 1925), for the removal of opposite party 1 Hrishikesh Sanyal, from the office of executor with respect to the estate of his father, the late Sarnath Sanyal, who died in October 1931, leaving a will dated 13th September 1931, in which he had appointed opposite party 1 as executor. No probate was obtained by opposite party 1 with respect to that will. But, admittedly, he has been in charge of the property. Opposite parties 2 and 3 are the minor brothers of the applicant and opposite party 4 is their guardian. As they did not join in the application they have been arrayed as opposite parties 2 to 4. They have not put in appearance and apparently do not contest the application which has been contested by opposite party 1 alone. 2. The late Sarnath Sanyal left two sons, Hrishikesh Sanyal, opposite party 1, and Satyendranath Sanyal, and three daughters, namely, Srimati Sarjoo Bala Devi, Srimati Shu Kumari Devi and Srimati Lalana Bala Devi. By his will Sarnath Sanyal disinherited his younger son, Satyendranath Sanyal, who had not married and lived separately from him and, as stated in the will, had squandered much of the testator's money and had not been obedient to him. He, however, permitted him to live in his residential house if he so wished and if he also paid back the money which he had borrowed from the testator he was to be paid a sum of Rs. 15 per mensem during his lifetime so long as he lived in the testator's residential house. The testator, in para. 5 of his will, also gave the right to live in his house during their lifetime to his eldest daughter, Srimati Sarjoo Bala Devi and his youngest daughter, Srimati Lalana Bala Devi and fixed an allowance of Rs. 15 each per mensem for them so long as they lived in his house. 3. In para. 6 of the will he says that his second daughter, Srimati Shukumari Devi, was living in his house with her three minor sons and two minor daughters. He allowed her to live in his house with her children and fixed an allowance of Rs. 50 per mensem for her till her sons attained, majority and her daughters were married. 6 of the will he says that his second daughter, Srimati Shukumari Devi, was living in his house with her three minor sons and two minor daughters. He allowed her to live in his house with her children and fixed an allowance of Rs. 50 per mensem for her till her sons attained, majority and her daughters were married. He also provided that "she shall receive an amount of saving from the income of property, if any, for her daughters' marriage," After her sons had attained majority and her daughters had been married the allowance was to be reduced to Rs. 15 per mensem in case she still continued to live in his house. 4. In para. 8 of the will he also gave to his widowed daughter-in-law, Srimati Usha Bala Devi, the right to live in the house and to receive an allowance of Rs. 15 per mensem throughout her life. 5. In para. 9 of the will he made provision for certain expenditure to be incurred over his funeral and for the celebration of the Sradh and the Chaturthi Sradh ceremonies. He also provided that the cost of taking out probate was to be paid from his estate. 6. In para. 10 of the will he charged his eldest son, Hrishikesh Sanyal, opposite party 1, with the payment of the monthly allowances fixed by him, maintenance of his properties, payment of taxes, etc., and the carrying out of repairs to the buildings. The balance of the income was to be utilized by him for himself. He charged all his property with the payment of the allowances fixed by him and directed opposite party 1 not to "mortgage or sell" the property. In case a son was born to him, he would, if he survived, have "the absolute right to my estate." In the absence of any male child to his two sons, opposite party 1 was authorised "to dispose of the said properties in the way he thinks proper either by giving it to some charitable purpose or by giving it to my grand-children (daughters' sons)" adding that "this shall not operate during the lifetime of my children." 7. The applicant has made various allegations against opposite party 1 of breach of trust and his contention is that he is not a fit person to continue to hold the office of executor of the estate of his deceased father. The application is strongly opposed by opposite party 1, who has filed a counter affidavit in answer to the affidavit filed by the applicant in support of his application. After perusing the application and the written statement, the affidavit and the counter affidavit the following issues were framed : (1) Whether this application lies under S. 301, Succession Act ? (2) Whether opposite party No. 1 has failed, without sufficient cause, to comply with the provisions of para. 6 of the will dated 13th September 1931, of the late Sarnath Sanyal ? (3) Whether opposite party No. 1 has failed, without sufficient cause, to comply with the second provision of para. 8 of the said will ? (4) Whether the transfer by opposite party No. 1 to bis wife of house No. D. 38/24, Hauz Katora, Banaras city, is contrary to the provisions of para. 10 of the said will? (5) Whether this application is maintainable in view of the decree of this Court dated 20th April 1942, made in Letters Patent Appeal No. 9 of 1941 ? 8. Before I take up the issues it may be mentioned that an application under S. 301, Succession Act, had previously been made on behalf of the applicant, who was then a minor, and his minor brothers and sisters under the guardianship of Mr. A.P. Bagchi, who is counsel for the applicant in the present case. This application was made in September 1940. It came up for hearing before Allsop J., who dismissed it on 3rd January 1941. There was a Letters Patent appeal, on behalf of the minors, No. 9 of 1941, and a first appeal from order also arose out of the same proceedings the appellant being opposite party 1, Hrishikesh Sanyal. The parties entered into a compromise on 20th April 1942, as a result of which the order passed by Allsop J., on 3rd January 1941, was vacated and the application under S. 301, Succession Act, filed on behalf of the minor appellants in the Letters Patent appeal was treated as withdrawn. The result of the first appeal from order was that Mr. The result of the first appeal from order was that Mr. I.B. Banerji was appointed guardian of the person and property of the minors in place of Mr. A.P. Bagchi. It will be noted that at the time when these orders were passed applicant had just attained majority. 9. It is contended on behalf of opposite party 1 that a fresh application under S. 301, Succession Act, cannot lie when a previous application on the same facts bad either been dismissed or withdrawn as far back as 20th April 1942. Learned counsel for the applicant contends that the applicant who had attained majority and was not a party to the compromise, is not bound by the decree passed in the Letters Patent appeal. This contention does not appear to be correct. It is not the contention of the applicant that he was not aware of what had happened in the Letters Patent appeal, but still he took no further steps in the matter and allowed the decree to stand. No action was taken by him under O. 32, R. 12, Civil P.C. But even if he is not bound by the decree in the Letters Patent appeal he is certainly bound by the decree dated 3rd January 1941 by which his petition under S. 301, Succession Act, had been dismissed by Allsop J. In any view of the matter it is not possible for the applicant to make a fresh application under S. 301, Succession Act, on the grounds upon which his earlier application of September 1910, was based, Mr. A.F. Bagchi on behalf of the applicant, however, has made a statement before the Court stating that the only new grounds upon which he is seeking the removal of opposite party 1 from executor ship are : (1) His failure to pay marriage expenses to the two daughters. (2) The transfer by him of his house No. D. 33/24 to his wife under a registered deed of gift dated 2nd November 1986. 10. At the same time he has withdrawn his claim with respect to the monthly allowance of RS. 15 thus being the difference between the monthly allowance of Rs. 50 as fixed by the testator for his eldest daughter, Srimati Sarjoo Bala Devi, and his children in para. 6 of his will and the amount of RS. 10. At the same time he has withdrawn his claim with respect to the monthly allowance of RS. 15 thus being the difference between the monthly allowance of Rs. 50 as fixed by the testator for his eldest daughter, Srimati Sarjoo Bala Devi, and his children in para. 6 of his will and the amount of RS. 35 per mensem as fixed by the compromise entered into between the parties in Letters Patent appeal No. 9 of 1941 on 20th April 1942 on the ground that it is open to him to seek such remedy by means of a separate suit. 11. In view of what has been said before and the above statement of Mr. Bagchi it would appear that issues 2 and 3 no longer arise except in so far as issue 2 relates to the alleged failure on the part of opposite party 1 to pay the marriage expenses of the two daughters of Srimati Shukumari Devi. And the answer to issue 5 would be that the present application is maintainable, if it is maintainable at all, only in so far as it relates to the alleged failure on the part of opposite party 1 (part of issue No. 2) to pay the marriage expenses of the two daughters of Srimati Shukumari Devi and the transfer by him to his wife of house No. D. 38/24 Hauz Katora, Banaras City. 12. I shall now proceed to consider issue 1. The contention of opposite party 1 is that the present application under S. 301, Succession Act, does not lie on two grounds : (1) That the applicant has no subsisting right under the will. (2) That the so-called executor opposite party 1, is not an executor but a trustee and can as such not be removed under S. 301, Succession Act. In regard to the first contention, reference is made to para. 6 of the will and it is pointed out that after the death of Srimati Shukumari Devi her children cannot be said to have any right to receive any allowance out of the income derived from the property left by the testator. This seems to me to be the more reasonable interpretation to put upon para. 6 of the will. But under para. This seems to me to be the more reasonable interpretation to put upon para. 6 of the will. But under para. 10 of the will the applicant has a possible interest in the property inasmuch as the testator has authorised the executor in the absence of any male child to the testator's sons to "dispose of the said properties in the way he thinks proper either by giving it to some charitable purpose or by giving it to my grand children (daughters' sons)." It cannot thus be said that the applicant has no subsisting rights under the will and that as such he has no right to maintain the present application. 13. There is, however, much force in the second contention urged on behalf of opposite party 1. It seems obvious that a person cannot become an executor or continue as such merely because he has been so described in a will. In the case of Maganlal Parikshawala Vs. Samson Shalom, AIR 1938 All 197 it appears that the will named three persons as executors. It, however, appeared that the will had set up a permanent trust and that the position of these persons named in the will was in fact that of trustees. An application for their removal under S. 301, Succession Act, was, therefore, dismissed. 14. The duty of an executor is to execute the will and to administer the estate of the deceased. The duties of an administrator to whom letters of administration have been granted and the duties of an executor who has obtained probate of a will are much the same and S. 291, Succession Act, gives some clue as to what such duties are. Under that section every person to whom any grant of letters of administration is committed is required to give a bond with one or more sureties, "engaging for the due collection, getting in and administering the estate of the deceased." Thus the duties of an executor mainly are to collect, get in and administer the estate of the deceased and after this has been done and the estate has been settled his duties as executor are finished and if he is required to continue to be in charge of the property for the benefit of certain beneficiaries he ceases to be an executor and becomes a trustee of the property. 15. 15. The leading case on the subject is that of Taran Singh Hazari v. Ram Ratan, 31 cal. 89. One Gauri Debi bad been appointed executrix of the will of the minor's father Shib Lal Tewari. She continued to manage the property of the minor for some time and then applied to the Court of Wards to take over the estate. The Court of Wards took over the estate and subsequently brought a suit on behalf of their ward against the defendant Taran Singh to recover from him the amount due on a mortgage bond executed by him in favour of Gauri Debi as guardian of the minor. One of the defendant's contentions was that as Gauri Debi was the executrix appointed under the will and had taken out probate of the will she was the only person legally entitled to sue. It was held that Gauri Debi had ceased to manage the property as executrix of the will of the deceased Shib Lal Tewari and that she was managing it as manager of the infant Ramratan Tewari before she applied to the Court of Wards to take over the estate and that, therefore, the Court of Wards had full authority to act under the provisions of the Court of Wards Act and to take possession of the property as guardian of the minor. Their Lordships have discussed the duties of an executor of a will and the following is reproduced from the judgment. The will itself has not been translated, but it is not disputed on behalf of the plaintiff that Gauri Debi was appointed executrix under it. There is a further clause that she being executrix, should remain in charge of the property during the minority of Ram Ratan Tewari. On those terms in the will the argument has been advanced that Gauri Debi having once taken out probate of the will and the estate of the deceased having vested in her, she could not divest herself of the estate, nor could she hand over the property to the Court of Wards on behalf of the minor till the terms of the will had been fulfilled and the minor had attained majority ; she was therefore the only person who could sue to recover the debt in suit. It has also been contended that the Court of Wards had no power to proceed under the provisions of Ss. It has also been contended that the Court of Wards had no power to proceed under the provisions of Ss. 6, 27 and 35, Court of Wards Act, to take over the estate and the property of the minor. We have heard the learned vakil at great length in support of his contentions but we are unable to accept them as valid. No doubt, after Gauri Debi had taken out probate of the will, the estate of the deceased would under the law vest in her as executrix for the purpose of carrying out her duties as such, and those duties would be generally to collect the debts due to the estate, to pay the debts due from the estate, to pay off legacies and other bequests, etc., and then to make over the property to the residuary legatee. It would be no part of her duties as executrix to manage the property for the benefit of the minor till he attained majority. The position and duties of an executor in this country are not very well understood, and considerable confusion exists as to duties of the executor in administering the estate. The duties of the executor are to administer the estate of the deceased only so far and so long as to enable him to carry out the terms of the will of which he is executor. After the property has ceased to be the estate of the deceased and has become the property of the residuary legatee under the will, the executor as such has no authority to manage the estate on his behalf. Under the will the beneficial interest in the property vested in the minor as soon as the testator died, and Gauri Debi was appointed as executrix to manage the property till the minor attained majority. In describing her as executrix for this purpose there has, in our opinion, been a confusion or misinterpretation of the term "executrix". What was intended appears to us to be that she should as executrix administer the estate and see that the terms of the will were carried out, and this being done, that she should manage the property covered by the will not as executrix under the will and administratrix of the deceased's estate, but as manager for the minor till he attained majority. The intention clearly was to appoint her to be manager of the minor's estate. The intention clearly was to appoint her to be manager of the minor's estate. We think that in interpreting the will we must have regard not merely to the words used but to the evident intention of the testator. It has been suggested that she could not as executrix make over the property to herself as manager of the infant without an administration suit or without the will being revoked. We cannot accept this contention as correct. It is opposed to the ordinary practice and there is no authority to support it. We hold, therefore, that Gauri Debi had ceased to manage the property as executrix of the will of the deceased Shib Nath Tewari, and that she was managing it as manager of the infant Ram Ratan Tewari before she applied to the Court of Wards to take over the estate. We accordingly hold that the Court of Wards had full authority to act under the provisions of Ss. 6, 27 and 35, Court of Wards Act, 1879, and to take possession of the property as guardian of the minor. And such being the ease, manager under the Court of Wards had full power to institute this suit, and the objection raised disputing his power fails. 16. This case was followed in another Calcutta case of Shanker Nath Mukerji v. Biddutalata Debi, 28 C.L.J. 271: (A.I.R. 1918 cal. 41.) In that case the testatrix had died more than thirty-five years ago and it appeared that the estate had been fully administered. An application was made for the probate of the will and it was contended on behalf of the applicant that there were certain debts and legacies unpaid, and that it was necessary to grant administration to manage the properties dedicated for deba sheba provided for in the will of Bhayaharini. 17. In dealing with the question of deba sheba, Chatterjee J., by whom the case was decided observed : The last point relates to deba sheba and the contention is that the sheba is to be carried on by the executors. This contention was raised in another appeal to this Court arising out of the application made by Biddutlata for revocation of the probate granted to Girindra and Harendra Nath Mookerji. This contention was raised in another appeal to this Court arising out of the application made by Biddutlata for revocation of the probate granted to Girindra and Harendra Nath Mookerji. Coxe J. in disposing of that contention observed as follows : As regards the idol it is argued that the sheba has to be performed for ever and that consequently the estate cannot have been completely administered. It appears to us that this argument amounts to reductio ad absurdum. 18. A quotation from Lewin on Trusts occurring in the judgment in the case of Dhanabakkiyammal Vs. Thangavelu Mudaliar and Others, AIR 1927 Mad 994 is reproduced below : An executor is regarded in some sense as a trustee, but he cannot like a trustee, be discharged, even by the Court from his executorship. When the funeral and testamentary expenses, debts, and legacies have been satisfied, and the surplus has been invested upon the trusts of the will, the executor then drops that character and becomes a trustee in the proper sense, and may then be discharged from the office like any other trustee. 19. The duties of an executor and a trustee are quite different. But an executor may also be a trustee under a will appointing him executor and creating the trust and in this connexion the following is reproduced from the judgment in the case of Hara Coomar Sircar v. Doorgamoni Dasi, 21 Cal. 195 : The learned pleader for the respondent contends that an executor is in fact a trustee, and that as such a Court of Equity can either grant or refuse him probate at its discretion. We think, however, that this contention is not sound. An executor may no doubt be regarded as occupying the position of a trustee for the purpose of administering the estate, and he may also be a trustee under a will appointing him executor and creating the trust, but that is quite a different matter from saying that an executor qua executor is a trustee. The true position, powers, and duties of an executor are essentially different from those of a trustee. 20. The true position, powers, and duties of an executor are essentially different from those of a trustee. 20. Applying these principles to the present case my view is that the estate having been administered, funeral ceremonies of the deceased having been long over and the daughters of Srimati Shukmari Devi having been married, the remaining duties of opposite party 1 are more of a trustee than of an executor. He is to look after the property, pay allowances to whomsoever they may be due, and in the absence of any male child to the testator's sons to dispose of the property in the manner provided by the will. As he is no longer an executor an application for his removal under S. 301, Succession Act, does not lie. 21. In view of this finding it is unnecessary to consider the other issues and I would dismiss the application with costs. Mootham J. 22. The applicant applies under S. 301, Succession Act, for the removal of one Hrishikesh Sanyal from his office as executor of the will of the late Sir Nath Sanyal. Sarnath Sanyal died in the year 1931 leaving a will whereof he appointed Hrishikesh Sanyal to be the sole executor. The will was not proved in Court, but it is not in dispute that Hrishikesh Sanyal entered upon his duties as executor and as such proceeded to administer the estate. 23. Clauses 6, 8 and 10 of the will are as follows : (6) My second daughter, Srimati Sheo Kumari Devi lives in my house with my family with her three minor sons and two minor daughters. She shall live in my house with her children and shall get Rs. 50 per month, till her sons attain majority and her daughters are married and she shall receive an amount of saving from the income of my property, if any, for her daughters marriage. 8. My daughter in-law Srimati Usha Bala Devi shall have a right to live in the house and shall get Rs. 15 per month all her life during the period of her widowhood. 10. My eldest son Hrishikesh Sanyal shall pay all these monthly allowances fixed by me, shall maintain the properties by paying taxes, rents and keeping the house in good repair, and shall utilise for himself the balance of the income. 15 per month all her life during the period of her widowhood. 10. My eldest son Hrishikesh Sanyal shall pay all these monthly allowances fixed by me, shall maintain the properties by paying taxes, rents and keeping the house in good repair, and shall utilise for himself the balance of the income. All my property shall remain charged for these and he shall not mortgage or sell them. Should a son be born to Hrishikesh Sanyal if he survives he shall have the absolute tight to my estate. In absence of any male child to my sons Hrishikesh Sanyal shall be able to dispose of the said properties in the way he thinks proper either by giving it to some charitable purpose or by giving it to my grand children (daughters' sons) but this shall not operate during the lifetime of my children. 24. Hrishikesh Sanyal is said not to have complied, or not fully to have complied, with the obligations imposed on him by these clauses, and the question which arises is whether Hrishikesh Sanyal, as regards the execution of such obligations, held the character of executor or that of trustee. The answer to this question does not depend upon the words used in the will for the latter may create a trust of which the executor, although described as such is in law the trustee. The duties of an executor in general terms are to collect the assets of the deceased, to pay his debts and the funeral and testamentary expenses and thereafter to make over the residue of the estate to the person or persons entitled thereto under the will. Where the testator intends to create a trust of the whole or part of his property his will, if properly drawn, will direct the executor, after performing the ordinary duties of administration, to make over the estate or such part thereof as the testator indicates to a trustee or trustees to be held by them upon such trusts as are set out in the will. The will may not, however, be properly drawn and may contain no specific reference to a trust, yet if it is clearly the intention of the testator that the whole or part of his estate shall not be immediately distributed but be retained by his executor and the income thereof be paid to certain persons or institutions, then in law a trust is created and the executor holds the property as a trustee on behalf of the persons beneficially entitled. 25. I am clearly of opinion that in this case Sarnath Sanyal's will created a trust, and that upon completion of the ordinary duties of administration Hrishikesh Sanyal lost his character of executor, and thereafter held the residue of the testator's property as a trustee upon the trusts set out, inter alia, in cls. (6), (8) and (10) of the will. 26. If this be so, it follows that the remedy open to the petitioner in the present case is to apply for the removal of the trustee under S. 71, Trusts Act. The present application under S. 301, Succession Act, is, in my opinion, misconceived, and on that ground I am of opinion that the application should be dismissed with costs.