英文法律词典 E-38

EXECUTOR, trusts. The word executor, taken in its largest sense, has several accep tations. 1. Executor dativus, who is one called an administrator¹ to an intestate. 2. Executor testamentarius, or one appointed to the office by the last will of a testator, and this is what is usually meant by the term.

2. In the civil law, the person who is appointed to perform the duties of an executor as to goods, is called haeres testamentarius; the term executor, it is said, is a barbarism unknown to that law. 3 Atk. 304.

3. An executor, as the term is at present accepted, is the person to whom the execution of a last will and testament² of personal estate is , by the testator's appointment, confided³, and who has accepted of the same. 2 Bl. Com. 503; 2 P. Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinh. t. 4, s. 2, pl. 2.

4. Generally speaking, all persons who are capable of making wills may be executors, and some others beside, as infants and married women. 2 Bl. Corn. 503.

5. An executor is absolute or qualified⁴; his appointment is absolute when he is constituted certainly, immediately, and without restriction⁵ in regard to the testator's effects, or limitation in point of time. It may be qualified by limitation as to the time or place wherein, or the subject matters whereon, the office is to be exercised; or the creation of the office may be conditional⁶. It may be qualified. 1st. By limitations in point of time, for the time may be limited when the person appointed shall begin, or when he shall cease to be executor; as if a man be appointed executor upon the marriage of testator's daughter. Swinb. p. 4, s. 17, pl. 4. 2. The appointment may be limited to a place; as, if one be appointed executor of all the testator's goods in the state of Pennsylvania. 3. The power of the executor may be limited as to the subject matter upon which if is to be exercised; as, when a testator appoints. A the executor of his goods and chattels⁷ in possession; B, of his choses in action. One may be appointed executor of one thing, only, as of a particular claim or debt due by bond, and the like. Off. Ex. 29; 3 Phillim. 424. But although a testator may thus appoint separate executors of distinct parts of his property, and may divide their authority, yet quoad the creditors¹⁰ of the testator they are all executors, and act as one executor, and may be sued as one executor. Cro. Car. 293. 4. The appointment may be conditional, and the condition may be either precedent¹¹ or subsequent. Godolph. Orph. Leg. pt. 2, c. 2, s. 1; Off. Ex. 23. 6. An executor derives¹² his interest in the estate of the deceased entirely¹³ from the will, and it vests in him from the moment of the testator's death. 1 Will. Ex. 159; Com. Dig. Administration, B 10; 5 B. & A. 745; 2 W. Bl. Rep. 692. He acquires an absolute legal title to the personalty by appointment, but nothing in the lands of the testator, except by devise. He can touch nothing which was not personal at the testator's decease, except by express direction. 9 Serg. & Rawle, 431; Gord. Law Dec. 93. Still his interest in the goods of the deceased is not that absolute, proper and ordinary interest, which every one has in his own proper goods. He is a mere¹⁴ trustee to apply the goods for such purposes as are sanctioned by law. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; Off. Ex. 192. He represents the testator, and therefore may sue and recover all the claims he had at the time of his death and may be sued for all debts due by him. 1 Will. Ex. 508, et seq. By the common law, however, such debts as were not due by some writing could not be recovered against the executors of a deceased debtor¹⁵. The remedy was only in conscience or by a quo minus in the exchequer¹⁶. Afterwards an action on the case in banco regis was given. Crom t. Jurisdic. 66, b; Plowd. Com. 183: 11 H. VII. 26.

7. The following are the principal duties of an executor: 1. Within a convenient time after the testator's death, to collect the goods of the deceased, provided he can do so peaceably; when he is resisted, he must apply to the law for redress¹⁷.

8. - 2. To bury the deceased in a manner suitable to the estate he leaves behind him; and when there is just reason to believe he died insolvent¹⁸, he is not warranted in expending¹⁹ more in funeral expenses (q. v.) than is absolutely necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. & Rawle, 204 14 Serg. & Rawle, 64.

9. - 3. The executor should prove the will in the proper office.

10. - 4. He should make an inventory²⁰ (q. v.) of the goods of the intestate, which should be filed in the office.

11. - 5. He should ascertain²¹ the debts and credits of the estate, and endeavor to collect all claims with as little delay as possible, consistently with the interest of the estate.

12. - 6. He should advertise for debts and credits: see forms of advertisements, 1 Chit. Pr. 521.

13. - 7. He should reduce the whole of the goods, not specifically bequeathed into money, with all due expedition. #p#副标题#e#

14.-8. Keep the money of the estate safely, but not mixed with his own, or he may be charged interest on it.

15.-9. Be at all times ready to account, and actually file an account within a year.

16. - 10. Pay the debts and legacies²² in the order required by law.

17. Co-executors, however numerous, are considered, in law, as an individual person, and; consequently, the acts of any one of them, in respect of the administration of the assets, are deemed, generally, the acts of all. Bac. Ab. Executor, D; Touch. 484; for they have all a joint²³ and entire authority over the whole property Off. Ex. 213; 1 Rolle's Ab. 924; Com. Dig. Administration, B 12. On the death of one or more of several joint executors, their rights and powers survive to the survivors²⁴.

18. When there are several executors and all die, the power is in common transferred to the executor of the last surviving executor, so that he is executor of the first testator; and the law is the same when a sole executor dies leaving an executor, the rights are vested in the latter. This rule has been changed, in Pennsylvania, and, perhaps, some other states, by legislative²⁵ provision; there, in such case, administration cum testamento annexo must be obtained, the right does not survive to the executor of the executor. Act of Pennsylvania, of March 15 1832. s. 19. In general, executors are not responsible for each other, and they have a right to settle separate accounts. See Joint, Executors.

19. Executors may be classed into general and special; instituted and substituted; rightful and executor de son tort; and executor to the tenor²⁶.

20. A general executor is one who is appointed to administer the whole estate, without any limit of time or place, or of the subject-matter.

21. A special executor is one. who is appointed or constituted to administer either a part of the estate, or the whole for a limited time, or only in a particular place.

22. An instituted executor is one who is appointed by the testator without any condition, and who has the first right of acting²⁷ when there are substituted executors. An example will show the difference between an instituted and substituted executor: suppose a man makes his son his executor, but if he will not act, he appoints his brother, and if neither will act, his cousin; here the son is the instituted executor, in the first degree, the brother is said to be substituted in the second degree, and the cousin in the third degree, and so on. See Heir, instituted, and Swinb. pt. 4, s. 19, pl. 1.

23. A substituted executor is a person appointed executor, if another person who has been appointed refuses to act.

24. A rightful executor is one lawfully²⁸ appointed by the testator, by his will. Deriving³⁰ his authority from the will, he may do most acts, before he obtains letters testamentary, but he must be possessed³¹ of them before. he can declare in action brought by him, as such. 1 P. Wms. 768; Will. on Ex. 173.

25. An executor de son tort, or of his own wrong, is one, who, without lawful²⁹ authority, undertakes to act. as executor of a person deceased. To make fin³² executor de son tort, the act of the party must be, 1. Unlawful. 2. By assertingownership, as taking goods or cancelling a bond, and not committing a mere, trespass³³. Dyer, 105, 166; Cro. Eliz. 114. 3. An act done before probate of will, or granting letters of administration. 1 Salk. 313. One may be executor de son tort when acting under a forged will, which has been set aside. 3 T. R. 125 . An executor de son tort. The law on this head seems to have been borrowed from the civil law doctrine³⁴ of pro⁹ hoerede gestio. See Heinnec. Antiq. Syntagma, lib. 2, tit., 17, §16, p. 468. He is, in general, held responsible for all his acts, when he does anything which might prejudice the estate, and receives no, advantage whatever in consequence of his assuming the office. He cannot sue a debtor of the estate, but may be sued generally as executor. See a good reading on the liabilities of executors de son tort, in: Godolph. Orph. Legacy³⁵, 91, 93, and 10 Wentw. Pl. 378, for forms of declaring; also, 5 Co. Rep. 50 31 a; Yelv. 137; 1 Brownlow, 103; Salk. 28; Ham. Parties, 273; Imp³⁶. Mod. Pl. 94. As to what acts will make a person liable as executor de son tort, see Godolph. O ubi sup.; Gord. Law of Dec. 87, 89; Off. Ex. 181; Bac. Ab. Executor, &c., B 3; 11 Vin. Ab. 215; 1 Dane's Ab. 561; Bull. N. P. 48; Com. Dig. Administration C 3 Ham. on Part. 146 to 156; 8 John. R. 426; 7 John. R. 161; 4 Mass. 654; 3 Penna. R. 129; 15 Serg. & Rawle, 39.

26. - 2. The ussurpation of an office or character cannot confer the rights and privileges of it, although it may charge the usurper³⁷ with the duties and obligations annexed³⁸ to it. On this principle an executor de son tort is an executor only for the purpose of being sued, not for the purpose, of suing. In point of form, he is sued as if he were a rightful executor. He is not denominated in the declaration executor (de son tort) of his own wrong. It would be improper³⁹ to allege⁴⁰ that the deceased person with whose estate he has intermeddled died intestate. Nor can he be made a co-defendant with a rightful executor. Ham. Part. 146, 272, 273; Lawes on Plead. 190, note; Com. Dig. Abatement⁴¹, F 10. If he take out letters of administration, he is still liable to be sued as executor, and in general, it is better to sue him as executor than as administrator. Godolph. 0. Leg. 93, 94, 95, §§2, 3.

27. An executor to the tenor. This phrase is ased in the ecclesiastical law, to denote a person who is not directly appointed by the will an executor, but who is charged with the duties which appertain to one; as, "I appoint A B to discharge all lawful demands against my will." 3 Phill. 116; 1 Eccl. Rep. 374; Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide. generally, Bouv. Inst. Index, h. t.; 11 Vin. Ab. h. t.; Bac. Ab. h. t.; Rolle, Ab. h. t.; Nelson's Ab. h. t.; Dane's Ab. Index, h. t.; Com. Dig. Administration; 1 Supp. to Ves. jr. 8, 90, 356, 438; 2 Id. 69; 1 Vern. 302-3; Yelv. 84 a; 1 Salk. 318; 18 Engl. C. L. Rep. 185; 10 East, 295; 2 Phil. Ev. 289; 1 Rop. Leg.' 114; American Digests, h. t.; Swinburne, Williams, Lovelass, and Roberts' several treatises⁴² on the law of Executors; Off. Ex. per totum; Chit. Pr. Index; h. t. For the various pleas that may be pleaded by executors, see 7 Wentw. Plead. 596, 602; 10 Id. 378; Cowp. 292. For the origin and progress of the law in relation to executors, the reader is referred to 5 Toull. n. 576, note; Glossaire du Droit Francais, par⁸ Delauriere, verbo Executeurs Testamentaires, and the same author on art. 297, of the Custom of Paris; Poth. Des Donations Testamen taires.