Executor

The appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the purposes of the will, but he holds the legal title in all the chattels of the testator. He is, for the purpose of administering them, as much the legal proprietor of those chattels, as was the testator himself while alive. This is incompatible with any power in the ordinary to transfer those chattels to any other person by the grant of administration on them. His grant can pass nothing; it conveys no right, and is a void act.

One to whom another man commits by his last will the execution of that will and testament. 2 Bl. Comm. 503. A person to whom a testator by his will pommits the execution, or putting in force, of that instrument and its codicils. Fonbl. Rights & Wrongs, 307. Lord Hardwicke, in 3 Atk. 801, says: "The proper term in the civil law, as to law." And again: "What we called 'executor and residuary legatee' iS, in the civil law, 'universal heir.'" Id. 300. The word "executor," taken in its broadest sense, has three acceptations: (1) Executor a lege constitutus, he is the ordinary of the diocese. (2) Executor ah episcopo constitutus, or executor dativus, and that is he who is called an administrator to an intestate. (3) Executor a testator constitutus, or executor testamentarius, and that is he who is usually meant when the term "executor" is used. 1 Wms. Ex'rs, 185. — 1

— General Executor. One who Is appointed to administer the whole estate, without any limit of time or place or of the subject matter. Special Executor. 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. Instituted Executor. One who is appointed by the testator without any condition, and who has the first right of acting when there are substituted executors. Substituted Executor. A person appointed executor if another person who has been appointed refuses to act. An example will show the difference between an instituted and a 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, the cousin in the third degree, and so on. See Swinb. Wills, pt. 4. § 19, pi. 1. Rightful Executor. 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 an action brought by him as such. 1 P. Wms. 768; Wms. Ex'rs, 173. Executor de Son Tort. One who, without lawful authority, undertakes to act as executor of a person deceased. Executor to the Tenor. 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 Phl Uim. Ecc. Law, 116; 1 Ecc. 374; Swinb. Wills, 247; Wentw. Ex'rs, pt. 4, § 4, p. 230. EXECUTOR LUCRATUS (Lat.) An executor who has assets of his testator, who in his lifetime made himself liable by a wrongful interference with the property of another. 6 Jur. (N. S.) 543.

A person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease. Scott v. Guernsey, 60 Barb. (N. Y.) 175; In re Lamb's Estate, 122 Mich. 239, 80 N. W. 1081; Compton v. McMahan, 19 Mo. App. 505. One to whom another man commits by his last will the execution of that will and testament. 2 Bl. Comm. 503. A person to whom a testator by his will commits the execution, or putting in force, of that instrument and its codiclis. Fonbl. 307. Executors are classified according to the following several methods: They are either general or special. The former term denotes an executor who is to have charge of the whole estate, wherever found, and administer it to a final settlement; while a special executor is only empowered by the will to take charge of a limited portion of the estate, or such part as may lie in one place, or to carry on the administration only to a prescribed point. They are either instituted or substituted. An instituted executor is one who is appointed by the testator without any condition; while a substituted executor is one named to fill the office in case the person first nominated should refuse to act. In the phraseology of ecclesiastical law, they are of the following kinds: , Executor d lege constitutus, an executor appointed by law; the ordinary of the diocese. Executor ab episcopo constitutus, or executor dativus, an exechtor appointed by the bishop; an administrator to an intestate. Executor d testatore constitutus, an executor appointed by a testator. Otherwise termed "executor testamentarius;" a testamentary executor. An executor to the tenor is one who, though not directly constituted executor by the will, is therein charged with duties in relation to the estate which can only be performed by the executor.

— Executor creditor. In Scotch law. A creditor of a decedent who obtains a grant of administration on the estate, at least to the extent of so much of it as will be sufficient to discharge his debt, when the executor named in the will has declined to serve, as also those other persons who would be preferentially entitled to administer.

— Executor dative. In Scotch law. One appointed by the court; equivalent to the English "administrator with the will annexed."

— Executor de son tort. Executor of his own wrong. A person who assumes to act as executor of an estate without any lawful warrant or authority, but who, by his intermeddling, makes himself liable as an executor to a certain extent. If a stranger takes upon him to act as executor without any just authority, (as by intermeddling with the goods of the deceased, and many other transactions,) he is called in law an "executor of his own wrong," de son tort. 2 Bl. Comm. 507. Allen v. Hurst, 120 Ga. 763, 48 S. E. 341; Noon v. 'Finnegan, 29 Minn. 418, 13 N. W. 197; Brown v. Leavitt, 26 N. H. 495; Hinds v. Jones, 48 Me. 349.

— Executor lucratus. An executor who has assets of his testator who in his lifetime made himself liable by a wrongful interference with the property of another. 6 Jur. (N. S.) 543.

— General executor. One whose power is not limited either territorially or as to the duration or subject of his trust.

— Joint executors. Co-executors; two or more who are joined in the execution of a will.

— Limited executor. An executor whose appointment is qualified by limitations as to the time or place wherein, or the subject-matter whereon, the office is to be exercised; as distinguished from one whose appointment is absolute, i. e., certain and immediate, without any restriction in regard to the testator's effects or limitation in point of time. 1 Williams, Ex'rs, 249, et seq.

— Special executor. One whose power land office are limited, either in respect to the time or place of their exercise, or restricted to a particular portion of the decedent's estate. In the civil law. A ministerial officer who executed or carried into effect the judgment or sentence in a cause.

I.

In old English law. A person appointed or authorized to execute or perform a duty or trust, especially to manage and dispose of the property or estate of a deceased person. Executor a legfe constitutus: an executor appointed by law; the ordinary of the diocese. Executor a testatore constitutus: an executor appointed by a testator. Executor ab episcopo constitutus, or executor dativns: an executor appointed by the bishop; an administrator to an intestate. Executor testament!: an executor of a will.

In the civil law. A ministerial officer who executed or carried into effect the judgment or sentence in a cause.

<A person appointed by a testator to carry out the directions and requests in his will, and to dispuse of the property according to his testamentary provisions after his decease. One to whom another man commits by his last will the exccution of that will and testament. 2 Bl. Comm. 603. A person to whom a testator by his will commits the evecufion, or putting in force, of that instrument and its codicils. Fonbl. 307. Executors are classified according to the following several methods: They are either general or special. The former term denotes an executor who is to have charge of the whole estate, wherever found, and administer it to a final settlement; while a special executor is only empowered by the will to take charge of a limited portion of the estate, or such part a9 may lie in one place, or to carry on the administration only to a prescribed point. They are either instiiuted or substituted. An instittted executor is one who is appointed by the testator without any condition; while a substituted executor is one named to fill the office in casé the person first nominated should refuse to act. In the phraseology of ecclesiastical law, they are of the following kinds: Hwecutor & lege constitutus, an executor appointed by law; the ordinary of the diocese. Exceutor ab episcopo constitutus, or executor dativus, an executor appointed by the bishop; an administrator to an intestate. Eaecutor & testatore constitutus, an executor appointed by a tes.ator. Otherwise termed “executor testamentarius;” a testamentary executor. is therein charged with duties in relation ta the estate which can only be performed by the executor.

In the civil law. A ministerial officer who executed or carried into effect the judgment or sentence in a cause. Calvin,

He to whom another commits by will the execution of his last will and testament.3 Feminine form, executrix. Correlative, testator, testatrix. He so closely resembles an " administrator " that that term will not amount to a substantial misdescription in a deed or prosecution.'' Acting executor. Such executor, of two or more, as actually performs the duties of the trust. General executor. An executor whose power is unlimited as to time, place, or subject-matter. Special executor. An executor who serves for a limited time, in a particular place, or as to a part of the estate. ■ Buck V. Colbath, 3 Wall. 313-44 (1865), Miller, J. •Sharp V. Doyle, 103 U. S. 689 (1880), Miller, J. s 3 Bl. Com. 503; 1 Ga. 330; 55 Md. 194; 31 Wend. 436; Instituted executor. Has the option to serve before another who is named as substitute—the substituted executor. Rightful executor. The executor named in the will; the lawful executor. Executor de son tort. An executor of his own wrong: he who, without authority, does such acts as only the rilghtful executor may do. At common law an executor de son tort is one who,.without authority from the deceased or the court of probate, does such acts as belong to the office of an executor or administrator. ^ Not unauthorized are, acts ot kindness in providing for the family of the deceased or in preserving the estate.2 An executorde son tort is liable to all the trouble of an executorship without the profits or advantages.^ Sole executor. The one person named to serve as executor. Co-executjor, jointexecutor. One of two or more executors. A wife, with her husband's consent, or a minor over seventeen, or other person of gound mind, may be an executor. He takes title from the will; is a personal representative, identified in interest with the testator; holds the estate in trust for creditors and legatees. His power being founded upon the special confidence the deceased had in him, he is not ordinarily required to furnish security for the faithful performance of the duties of the trust.' He is to do the things set forth in the will: to bury the deceased, prove the will, give notice of letters issued, make an inventory, collect the moiiey and personal effects,* pay the debts and legacies, and file an account or accounts. Contract rights pass to him, but not contract duties of a purely personal nature. He can buy no part of the estate; nor let assets lie unproductive; nor use the estate for his own benefit. He may be surcharged in his accounts. He is held to the care of a man of ordinary prudence, and to the most scrupulous good faith. If he honestly exercises a discretion conferred upon him by the will hh cannot be held liable for a loss occasioned by an honest error of judgment.^ The act of one co-executor is the act of all: each is liable for the other's wrong, effected through negligence or connivance. All sue and are to be sued together. Death vests all rights and duties in the survivor. The rule is that each co-executor has complete ' Emery v. Berry, 28 N. H. 481 (1864), Eastman, J. 'See 29 Minn. 421-22; 17 Ark. 125; 5 Heisk. 194; 26 N. H. 49B; 1 Baxt. 9; 30 Conn. 3S9; 12 Ga. 588; S»id. 264; 26 Me. 361; 8 Miss. 437; 19 Mo. 196. s 2 Bl. Com. 507. • See generally Wall v. Bissell, 125 U. S. 387, 389 (1888), cases. power to administer the estate. A payment therefore to one is payment to all. ■ At common law executors have a 3oint authority and a joint interest in the property of the estate. They are esteemed in law as one person, and, as such, represent the testator, although each may be responsible only for his own acts.'' Wiiether an executor may be imprisoned for not paying over an amount due upon final account, the statutes and decisions, of the States are not in accord. In Vermont and South Carolina, though refusal to pay is a contempt of court, imprisonment is not allowed under the constitutional inhibition against imprisonment for debt.^ See Administee, 4; Assets; Bona; Charge:; Commission, 3; Dbvastavit; Devisavit; Donatio; Funeral; Goods; Improvident; Inventory; Legacy; Letters; Perishable; Power, 2; Probate; Representative, (i); Settle, 4; Trust, 1; Voucher; Witness.

The person named in a will to take tator's property and carry the will into effect. son tott,fr.: one who interferes and acts own wrong, without lawful authority.

[L. Lat. executor; L. Fr. executour.] A person appointed by a testator, in his last will and testament, to carry it into effect or execution after his decease, and to dispose of his property according to the tenor of the will.* Wood's Inst. 310. CowelL Blount, Wkishaw. — A person appointed by a testator, and whose appointment is con6rmed by the proper court, to execute his will, and to represent him in his personal rights and liabilities. Brande. He to whom another man commits by will the execution of hb last will and testament. 2 BL Com. 603. See 1 Williams on Exec. 185, et seq. This word has been adopted without change from the Latin of the earliest writers on English law. Glanv. lib. 7, c. 6. Bract. fol. 20, 61. Stat. Westm. 2, c. 19. See supra. Lord Hardwicke, in Androvin v. Poilblanc, calls it a " barbarous term," unknown to the civil law, the proper term in that law, as to goods, being h€Bres testamentarius. 3 Atk. 209, 301.,

INSTITUTED; an mstituted 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 a 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 Hetr, instituted, and Swinb. pt. 4, s. 19, pl. 1.