and if that fail to remedy negligence, or miscarrying in the executors, he may complain to the Spiritual Court, and his charges in so doing ought to be allowed out of the testator's estate.(x) It is therefore material to inquire what words in a Will amount only to an appointment as coadjutor, or overseer. If A. be made an executor, and B. a coadjutor, without more, he is not by this made a joint executor with A.(y) But if [*213] A. be *made executor, and the testator after in his Will expresseth that B. shall administer also with him, and in aid of him, here B. is an executor as well as A., and may prove the Will alone as executor, if A. refuse.(2) Where an infant was made an executor, and A. and B. overseers, with this condition, that they should have the rule and disposition of his goods, and payment and receipt of debts unto the full age of the infant, by this they were held to be executors in the mean time. (a) Where the testator named his wife his executrix, and A. B. to assist her, it was held that A. B. might be executor according to the tenor.(6)

Although when there is an express appointment of an executor, it is less probable that there should be an indirect appointment to the same office, yet there is no objection either in principle or practice, to admit an executor according to the tenor to probate, jointly with an executor expressly nominated. Thus in Powell v. Stratford, (c) the testator's wife was expressly named as executrix; and Lord H. was to assist her, but he was not called executor; the Court said he might be so according to the tenor. So in a late case, (d) the deceased left a Will and four codicils; and in the Will named certain persons executors, and his nephew residuary legatee: in the last codicil, dated at a time when his nephew was on the point of attaining twenty-one years, the words were, "I appoint my nephew my residuary legatee, to discharge all lawful demands against my Will and

codicils, signed of different dates:" It was held that the nephew [*214] should be joined in the probate. (e) And in a subsequent case, where an executor was expressly nominated for general purposes, another person was held to be executor, according to the tenor, for limited purposes.(f)

Again, in a case where a person had been expressly appointed executor for a limited purpose in a Will, it was held that he was appointed general executor by a codicil, by implication merely, without express words.(g)

In a late case, where a person by his Will directed that the legatees should appoint two persons to execute his testamentary bequests, probate

(x) Wentw. Off. Ex. 2, 14th edition. Sir Thomas Ridley takes occasion to wish that overseers might be made of more use; although, he says, they be looked upon only as candle-holders; having no power to do anything but hold the candle, while the executors tell the deceased's money: Ridley, Pt. 4, c. 2. 4 Burn. E. Law, 126, 8th edition.

(y) Bro. Executors, pl. 73. Wentw. Off. Ex. 21, 14th edition. Godolph. Pt. 2, c. 2, s. 4. The words in the year-book, 21 H. VI. 6, are, "I will that A. and B. shall be my executors, and also that I. and K. be coadjutors of the same A. and B. to distribute my goods." (z) Bro. Executors, pl. 73. Wentw. Off. Ex. 21, 14th edit. Where a testator willed that A. and B. should be his executors, and that I. and K. should be the executors of A. and B. to dispose of his goods, they are all executors: Dyer, 4, pl. 10, in marg.

(a) Wentw. Off. Ex. 21, 14th edition.

(b) Powell v. Stratford, cited 3 Phillim. 118.

(c) Prerog. 1803, 3 Phillim. 118. See also Collard v. Smith, Prerog. 1799, ibid. 117. (d) Grant v. Leslie, 3 Phillim. 116.

(e) If a man makes J. N. his executor, and devises goods to him, and to W. S. to devise for his soul, W. S. is executor of these goods by these words as well as J. N. is. Bro. Executors, pl. 98.

(f) Lynch v. Bellew, 3 Phillim. 424.

(g) In the goods of Aird, 1 Hagg. 336.

was granted in the Prerogative Court to the nominees as executors; and on that occasion the Deputy Registrar informed the Court, that, in practice, instances had frequently occurred of granting probates to persons nominated by those authorized by the testator so to nominate.(h) And it has been held, that the New Wills' Act does not preclude this practice.(i)

An executor may be appointed solely, or in conjunction with others: but in the latter case they are all considered in law in the light of an individual person.(k) Likewise a testator may appoint several persons as executors in several degrees: as where he makes his wife executrix, but if she will not or cannot be executrix, then he makes his son executor; and if his son will not or cannot be executor, then he makes his brother, and so on.(1) In which case the wife is said to be instituted executor in the first degrec, B. is said to be substituted in the second degree, C. to be substituted in the third degree, and so on.(m) It must be observed, that if an instituted executor once accepts the office, and afterwards *dies intestate, the substitutes, in what degree so ever, are all ex- [*215] cluded; because the condition of law, (if he will not or cannot be executor,) was once accomplished by such acceptance of the instituted executor.(n) But where a testator appoints an executor, and provides that in case of his death, another should be substituted; on the death of the original executor, although he has proved the Will, the executor so substituted may be admitted to the office, if it appear to have been the testator's intention that the substitution should take place on the death of the original executor, whether happening in the testator's lifetime, or afterwards.(o)

A man may by his Will substitute another legatee, or executor, if the first should by treason forfeit during the life of the testator; but if he means to extend this beyond the term of his own life, it will not take effect; for if it should, it would be a plain evasion of the statute of Hen. VIII., and other Acts made concerning treason. (p)(1)

In a late case, (7) a testatrix appointed A. and B. executors of her last Will, and "in case of the death of either of them," empowered the survivor to appoint another, "so that there should continue to be two executors:" Upon the death of A., B. appointed C. executor to act with him : C. did not take probate during the lifetime of B.: And it was held by Sir

(A) In the goods of Cringan, 1 Hagg. 548: The testator in this case died in Scotland; and Sir John Nicholl said, he was informed that such a provision, as to the appointment of executors, is not very unusual in that country.

(1) Infra, p. 216, note (r).

(k) Toller, 37. See post, Pt. III. Bk. 1. Ch. 1.

(1) Swinb. Pt. 4, s. 19, pl. 1. Godolph. Pt. 2, c. 4, s. 1.

(m The substituted executor cannot propound the Will, till the person first named exeentor has been cited to accept or refuse the office: Smith v. Crofts, 2 Cas. temp. Lee, 557. Bit where a testatrix appointed her nephew Charles her executor, "but in case he shall happen at the time of my decease to be abroad, or from any other cause incapable of acting as such executor, then and in such case I appoint my nephew Eardley executor, to act only during such time as the said Charles shall be resident abroad, or otherwise incapable of acting." and the nephew Charles died in the lifetime of the testatrix, probate was granted by Sir John Dobson to the nephew Eardley, as executor: In the goods of Wilmot, 2 Robert. 579.

(n) Swinb. Pt. 4, s. 19, pl. 10. Godolph. Pt. 2, c. 4, s. 2.

(0) In the goods of Lighton, 1 Hagg. 235.

(p) By Lord Hardwicke, in Carte v. Carte, 3 Atk. 180. (g) In the goods of Deichman, 3 Curt. 123.

(1) See note, ante, p. 209.

H. Jenner Fust, that probate might pass to C., and that he might [*216] appoint another executor to act with him. *So where a testator bequeathed his estate in trust to F. and G., who were nominated executors, with directions conjointly with the testator's wife to appoint a third person as trustee and executor, it was held by Sir H. Jenner Fust that, though there was no probability of agreement between F. and G. and the testator's wife in the choice of such third person, the appointment of executors was not thereby void, but that F. and G. were entitled to probate, with a power reserved for the third person when appointed.(r)

[*217]

*CHAPTER THE THIRD.

IN WHAT WAYS THE APPOINTMENT OF EXECUTOR MAY BE QUALIFIED.

THE appointment of an executor may be either absolute or qualified. It may be absolute, when he is constituted certainly, immediately, and without any restriction in regard to the testator's effects, or limitation in point of time.(a) It may be qualified, by limitations as to the time or place wherein, or the subject-matter whereon, the office is to be exercised: or the creation of the office may be conditional.

It may be qualified by limitations in point of time, inasmuch as the time may be limited when the person appointed shall begin, or when he shall cease, to be executor. Thus if one appoint a man to be his executor at a certain time, as at the expiration of five years after his death, (b) or at an uncertain time, as upon the death or marriage of his son, (e) this is a good appointment. Where the deceased appointed two executors, and, in case of the death of either of them, appointed two others to be executors in their stead on the death of the original executor who had alone proved the Will, the substituted executors were admitted to the office.(d) So if a man appoints his son to be executor when he shall come to full age,(e) such qualified appointment is good; and in the mean time he has no executor. Again, the testator may appoint the executor of A. to be his

executor and then if he die before A. he has no executor till A. [*218] die.(f) So a man may make A. and B. his executors, and appoint

that A. shall not intermeddle during the life of B., and by this they shall be executors successively, and not jointly.(g) Likewise the (r) Jackson v. Paulet, 2 Robert. 344. It was objected that, under the Wills' Act, probate could be decreed only to a person named in a duly executed testamentary paper. But the Court said, the case was not like one where a testator, in his Will, reserves to himself a power to deal hereafter with his Will by writings not duly executed. (See ante, p. 87.) (a) Toller, 36.

(b) Swinb. Pt. 4, s. 17, pl. 1. Wentw. Off. Ex. 22, 14th edition.

(c) Swinb. Pt. 4, s. 17, pl. 4.

(d) In the goods of Lighton, 1 Hagg. 235: A proxy of consent was exhibited from the original executor who had not proved.

(e) Wentw. Off. Ex. 22, 23, 14th edition.

(f) Ibid. Godolph. Pt. 2, c. 2, s. 4. Graysbrook v. Fox, Plowd. 281.

(9) Wentw. Off. Ex. 31, 14th edition. Bro. Executors, 155. But where two were made executors with a proviso or clause, that one of them should not administer the goods, this was held void for repugnancy by Brudenel and Englefield, Justices; but Fitzherbert, Jus

testator may appoint a person to be his executor for a particnlar period of time only, as during five years next after his decease, (h) or during the minority of his son, or the widowhood of his wife, (2) or until the death or marriage of his son.(k) In a case() where a widow was appointed executrix and residuary legatee for life, with remainder, as to the residue, to the nieces of the testator, and by a codicil it was provided, that in case she thought proper to marry again she and the nieces should agree on proper persons to be trustees, to whom she was directed to assign all the real and personal estate, in trust for the uses of the Will, but so as not to be liable to the debts, or subject to the power, of her second husband, it was held that her executorship expired on her second marriage.

In these cases, if the testator does not appoint a person to act before the period limited for the commencement of the office on the one hand, or after the period limited for its expiration on the other, the Ordinary may commit administration to another person, until there be an executor, or after the executorship is ended.(m)

*In like manner, the appointment may be limited in point [*219] of place: as thus; the testator may make A. his executor for his

goods in Cornwall, B. for those in Devon, and C. for those in Somerset:(n) or he may make different executors for his goods in different dioceses, or different provinces :(0) or, which seems more rational and expedient, he may so divide the duty when his property is in various countries.(p)

Again, the power of an executor may be limited as to the subjectmatter, upon which it is to be exercised. Thus the testator may make A. his executor for his plate and household stuff, B. for his sheep and cattle, C. for his leases and estates by extent, and D. for his debts due to him.(q) So a person may be made executor for one particular thing only, as touching such a statute or bond, and no more.(r) And the same Will may contain the appointment of one executor for general, and another for limited

tice, was of mind that it was not void, nor utterly repugnant, for the other might join in suits, though not administer: And Shelley, Justice, was of a third opinion, difierent from all the rest, viz. that there was a repugnancy, but the last clause should control the premises, and so this one only should be executor: Anon. Dyer, 3, b. Wentw. Off. Ex. ubi supra. See also Bro. Executors, 9, citing 3 Hen. VI. 6, 7, where Martin, J., gives an opinion similar to that of Shelley, J., above.

(h) Swinb. Pt. 4, s. 17, pl. 1.

(i) Wentw. Off. Ex. 29, 14th edition. Godolph. Pt. 2, c. 2, s. 3. Carte v. Carte, 3 Atk. 180. Pemberton v. Cony, Cro. Eliz. 164.

(k) Swinb. Pt. 4, s. 17, pl. 4.

(1) Bond v. Faikney, 2 Cas. temp. Lee, 371. (m) Swinb. Pt. 4, s. 17, pl. 2, Plowd. 279, 281: This will be an administration cum testamento annexo, and the person entitled to it will be discovered by referring to the rules respecting that species of administration: See post, Pt. 1. Bk. v. Ch. III. ? I.

(n) Swinb. Pt. 4, s. 18, pl. 1. Godolph. Pt. 2, c. 2, s. 3. Wentw. Off. Ex. 29, 14th edition. Bro. Executors, 2, 155. Anon. 2 Sid. 114, per tot Cur. Spratt v. Harris, 4 Hagg.

408, 409.

(p) Toller, 36. 4 Hagg. 408, 409.

Bro.

(0) Swinb. Pt. 4, s. 18, pl. 4. (7) Dyer, 4, a. Wentw. Off. Ex. 29, 14th edition. Godolph. Pt. 2, c. 3, pl. 2, 3. Executors, 155. Austre v. Audley, 1 Roll. Abr. 914, (S.) pl. 4. See however the judgment of Lord Hardwicke in Owen v. Owen, 1 Atk. 495, contra, post, Pt. III. Bk. 1. Ch. II.

(r) Wentw. Off. Ex. 29, 14th edition. Davies v. Queen's Proctor, 2 Robert. 413. But when the testator said, "I make my wife my full and whole executrix of all my cattle, corn, and movable goods," and said nothing of what should be done with the residue of his estate, as leases and debts, Jones and Croke, Justices, held that she was sole and absolute executrix for the whole estate, as well leases and debts as other things; but Berkeley, Justice, thought that she was a special executrix for the things named, and not a general executrix: Rose v. Bartlett, Cro. Car. 293.

VOL. I.-12

purposes.(8) But although a testator may thus appoint separate executors of distinct parts of his property, and may divide their authority, [*220] *yet quoad creditors, they are all executors, and as one executor, and may be sued as one executor.(t)

Lastly, the appointment may be conditional; and the condition may be either precedent or subsequent.(u) Thus it may be, that he give security to pay the legacies, and in general to perform the Will, before he acts as executor.(x) In Alice Frances' case,(y) the testator willed, that if his wife suffered J. S. to enjoy Blackacre for three years, then she should be his executor; but if she disturbed J. S., then he made his son executor: It was held in C. B. by all the Justices (The Lord Anderson at first dissentiente) that she was executrix presently; for this should not be construed a condition precedent, but as a condition to abridge her power to be executrix, if she perform it not.

In a case where an executor was appointed, provided he proved the Will within three calendar months next after the death of the deceased, it was held, that in computing the time, the day of the death was to be excluded.(z) But if he fails to prove the Will within three months, his appointment is void, (at all events if there be substituted executors,) though the failure were through the inadvertence of his solicitor, and though he has acted in the execution of the trusts of the Will.(a)

[*221] *It is not thought expedient to go further into the law of con

ditional appointments of executors, which the reader will find fully discussed in Swinburne (b) and Godolphin.(c) The parts of the subject which seem necessary to be introduced into this Treatise will be found subsequently, when conditional legacies are considered. (d)

[*222]

*CHAPTER THE FOURTH.

IN WHAT CASES THE APPOINTED EXECUTOR MAY TRANSMIT HIS APPOINTMENT.

ALTHOUGH the executor cannot assign the executorship, (a) yet the interest vested in him by the will of the deceased, may, generally speaking,

(8) Lynch v. Bellew, 3 Phillim. 424. (t) Rose v. Bartlett, Cro. Car. 293. (u) Wentw. Off. Ex. 23, 14th edition. Godolph. Pt. 2, c. 2, s. 1. Should the executorship be determined by a breach of the condition, yet all acts done by the executor in pursuance of his office, before such condition broken, are good: Godolph. Pt. 2, c. 2, s. 1. See post, Pt. 1. Bk. vI. Ch. III.

(x) Godolph. Pt. 2, c. 2, s. 1. Wentw. Off. Ex. 28, 14th edition. Where A. made B. and C. executors, and added, "I will that C. shall pay my other executor all such debts as he owes me, before he meddle with anything of this my Will, or take any advantage of this my Will for the discharge of the same debts, for that I have made him one of my executors," it was held that C. could not administer, or be executor, before he paid the debts: Stapleton v. Truelock, 3 Leon, 2, pl. 6.

(y) Dyer, 4, pl. 8, in marg. Wentw. Off. Ex. 28, 14th edition. S. C. semble, by the name of Jennings v. Gower, Cro. Eliz. 219. S. C. 1 Leon, 229.

(2) In the goods of Wilmot, 1 Curt. 1.

(a) In the goods of Day, 7 Notes of Cas. 553.

(b) Pt. 4, s. 5-16.

(d) Post, Pt. II. Bk. II. Ch. 11. 2 VI.

(a) Bedell v. Constable, Vaugh. 182.

(c) Pt. 1, c. 13, 14. Pt. 2, c. 2.