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Bouvier's Law Dictionary, Revised 6th Edition (1856)

EXECUTOR, trusts. The word executor, taken in its largest sense, has several
acceptations. 1. Executor dativus, who is one called an administrator 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 testament of personal estate is, by
the testator's appointment, confided, and who has accepted of the same. 2
Bl. Com. 503; 2 P. Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinb. 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 qualified; his appointment is absolute
when he is constituted certainly, immediately, and without restriction 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 conditional. 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
chattels 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 creditors 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 precedent or subsequent. Godolph. Orph. Leg. pt. 2, c. 2, s. 1; Off.
Ex. 23.
6. An executor derives his interest in the estate of the deceased
entirely 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 mere 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 debtor.
The remedy was only in conscience or by a quo minus in the exchequer.
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 redress.
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
insolvent, he is not warranted in expending 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 inventory (q.v.) of the goods of the
intestate, which should be filed in the office.
11.-5. He should ascertain 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.
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 legacies 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 joint 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 survivors.
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
legislative 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 tenor.
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 acting 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 lawfully appointed by the testator, by
his will. Deriving his authority from the will, he may do most acts, before
he obtains letters testamentary, but he must be possessed 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
lawful authority, undertakes to act. as executor of a person deceased. To
make fin executor de son tort, the act of the party must be, 1. Unlawful. 2.
By asserting ownership, as taking goods or cancelling a bond, and not
committing a mere, trespass. 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 doctrine of pro hoerede
gestio. See Heinnec. Antiq. Syntagma, lib. 2, tit., 17, Sec. 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. Legacy, 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; Imp. 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 usurpation of an office or character cannot confer the
rights and privileges of it, although it may charge the usurper with the
duties and obligations annexed 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 improper to allege 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. Abatement, 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, Sec.
2, 3.
27. An executor to the tenor. This phrase is based 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 treatises 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, par
Delauriere, verbo Executeurs Testamentaires, and the same author on art.
297, of the Custom of Paris; Poth. Des Donations Testamen taires.

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