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 [ *130 ] die before A. he has no executor till A. die. (ƒ) *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 testator may appoint a person to be his executor for a particular 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, (i) or until the death or marriage of his son.(j) And 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.(k)

In like manner, the appointment may be limited in point 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:(7) or he may make different executors for his goods in different diocesses, or different provinces; (m) or, which seems more rational and expedi

(g) 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, Justice 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, different 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. 3. See also Bro. Executors, 9. citing 3 H. 6, 6, 7, where Martin, J. gives an opinion similar to that of Shelley, J., above.

(h) Swinb. Pt. 4, s. 17, pl. 1. (2) 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.

(j) Swinb. Pt. 4, s. 17, pl. 4. (k) 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, Book 5, c. 3, s. 1.

(7) 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.

(m) Swinb. Pt. 4, s. 18, pl. 4.

ent, he may so divide the duty when his property is in [ *311] various countries. (n)

Again, the power of an executor may be limited as to the subject matter, 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. (0) So a person may be made executor for one particular thing only, as touching such a statute or bond, and no more. (p) And the same Will may contain the appointment of one executor for general, and another for limited purposes. (9) But although a testator may thus appoint separate executors of distinct parts of his property, and may divide their authority, yet quoad creditors, they are all executors, and as one executor, and may be sued as one executor. (r)

Lastly the appointment may be conditional, and the condition may be either precedent or subsequent. (s) Thus it may be, that he give security to pay the legacies, and in general to perform the

will before he acts as executor. (t) *In Alice Frances' [ *132 ] case,(u) the testator willed, that if his wife suffered J. S. to

enjoy Blackacre for three years, then she should be his executrix; 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.

(n) Toller, 36. (0) Dyer, 4, a. Wentw. Off. Ex. 29, 14th edition. Godolph. Pt. 2, c. 3, pl. 2, 3. Bro. Executors, 155.

(p) Wentw. Off. Ex. 29, 14th edition. But when the testator said, "I made my wife my full and whole executrix of all my cattle, corn, and moveable 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.

(q) Lynch v. Bellew, 3 Phillim.

424.

(r) Rose v. Bartlett, Cro.Car.293. (s) 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. 6, c. 3.

(t) 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 any thing 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.

(u) 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. Č. 1 Leon. 229. C.

It is not thought expedient to go farther into the law of conditional appointments of executors, which the reader will find fully discussed in Swinburne(v) and Godolphin. (w) The parts of the subject which seem necessary to be introduced into this treatise will be found subsequently, when conditional legacies are considered.

[ *133 ]

*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, be continued and kept alive by the will of the executor; so that if there be a sole executor of A., the executor of such executor is, to all intents and purposes, the executor and representative of the first testator.(b) But if the first executor dies intestate, then his administrator is not such a representative, but an administrator de bonis non of the original testator must be appointed by the ordinary :(c) for the power of an executor is found upon the special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another, in whom he has equal confidence; and so long as the chain of representation is unbroken by any intestacy, the ultimate executor is the representative of every preceding testator;

but the administrator of the executor is merely the officer [*134] of the ordinary, and* has no privity or relation to the original testator, being only commissioned to administer the effects of the intestate executor, and not of the original testator. (d)

it was held that the administratrix of an executrix could not sue for the double value of lands held over, after notice to quit under a demise from the testator, contrary to 4 Geo. II. c. 28, without taking out administration de bonis non; even though the tenant had attorned to her. Tingrey v. Brown, 1 Bos. & Pull. 310.

(d) 2 Bl. Comm. 506. However the administrator, durante minore ætate, of the executor of an executor, is the representative of the first testator: for such an administrator is loco Executoris. Anon. Freeman, 287. Contra, Linmer v. Every, Cro. Eliz. 211,

If the first executor should die, without having proved the will, the executorship is not transmissible to his executor, but is wholly determined, and an administrator cum testamento annexo must be appointed. (e)(1)

In Barr v. Carter, (f) Elizabeth Chapman, a married woman, made a will, merely executing a power given her by the marriage settlement, but she also went on to appoint Elizabeth Carter, sole executrix of that her will; she died in the life-time of her husband; and the Ecclesiastical Court granted probate of this will in the general form : the testatrix was herself the executrix of a former husband, Thomas Hawley; and it was held that the general probate of her will transmitted the representation to Elizabeth Carter, so as to make her the personal representative of the first testator, Thomas Hawley.

If there are several executors appointed, and one of them dies, leaving one or more of his co-executors living, no interest in the executorship is transmissible to his own executor, but the whole representation survives, and will be transmitted ultimately to the executor of the surviving executor, unless he dies intestate. Thus, if A. makes B. and C. executors, then B. makes J. S. executor and dies, and afterwards C. dies intestate, the executor of B. shall not be

executor* of A., because the executorship wholly and sole- [ *135 ] ly vested in C. by the survivorship; and so administration de bonis non shall be committed.(g)

The law is the same where there are several executors, and one alone proves the will, and the rest renounce before the ordinary; there, upon the death of him who proved, no interest is transmitted to his executor, if any of those who refused be surviving. (h)

as cited by C. B. Gilbert, in Bac. Abr. Executors, (B. 1:) but see Mr. Smirke's note, in his valuable edition of Freeman.

(e) Isted v. Stanley, Dyer, 372, a. Hayton v. Wolfe, Cro. Jac. 614, S. C. Palm. 156. Hutton. 30. Wentw. Off. Ex. 82, 14th edition. Day v. Chatfield, 1 Vern. 200. Wankford v. Wankford, 1 Salk. 308. S. C. Freeman. 520. Anon. 3 Salk. 21. Hence it fol

lows, that if the person appointed
executor dies before the testator,
there must be administration cum
testamento annexo. See Brown
v. Poyns, Sty. 147. Pullen v.
Sergeant, 2 Chanc. Rep. 300.
(f) 2 Cox. 429.

(g) Wentw. Off. Ex. 215, 14th edition.

(h) Arnold v. Blencowe, 1 Cox,

426.

(1) Case of Drayton's Will, 4 M'Cord, 46. Accor. Where a will was proved per testes, and the ordinary decided in its favour, but the granting of letters of administration was suspended by an appeal from the ordinary, and in the mean time the executor died, his executor does not represent the original testator. Id. ibid. The true rule, by which to determine whether an executor transmits to his executor the administration of the original testator's estate, is best ascertained by inquiring, whether the proceedings are in such a state, that he cannot renounce. Id. ibid.

136

CHAPTER THE FIFTH.

OF AN EXECUTOR DE SON TORT.

HAVING thus considered the appointment of executors by legal means, it remains to treat of a class who are in some sort regarded as executors, but who assume the office by their own intrusion and interference.

If one, who is neither executor nor administrator, intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, he thereby makes himself what is called in the law, an executor of his own wrong, or more usually, an executor de son tort.(a)

A very slight circumstance of intermeddling with the goods of the deceased, will make a person executor de son tort.(1) Thus it is said in Dyer, in margine, (b) that milking the cows, even by the widow of the deceased, or taking a dog, will constitute an executorship de son tort. So in one case the taking a Bible, and in another, a bedstead, (c) were held sufficient, inasmuch as they were the indicia of the person so interfering being the representative of the deceased. (d) So if a man kills the cattle, (e) or uses or gives away, or

sells any of the goods, (f) or if he takes the goods to* [ *137] satisfy his own debt or legacy :(g) or if the wife of the deceased take more apparel than she is entitled to, she will become executrix de son tort.(h) So there may be a tort executor

(a) The definition of an executor de son tort, by Swinburne, Godolphin, and Wentworth, is in the same words, viz., "He who takes upon himself the office of executor by intrusion, not being so constituted by the deceased, nor, for want of such constitution, substituted by the [Ecclesiastical] Court to administer." Swinb. Pt. 4, s. 23, pl. 1. Godolph. Pt. 2, c. 8, s. 1. Wentw. Off. Ex. c. 14, p. 320, 14th edition. But the term is, in the older books, sometimes applied to a lawful executor, who mal-administers; as by the Lord Dyer, in Stokes v. Porter, Dyer, 167, a.

(b) P. 166, b.

(c) Robbins's case, Noy, 69. (d) Toller, 38.

(e) Godolph. Pt. 2, c. 8, s. 4, (f) Read's case, 5 Co. 33, b. Padget v. Priest, 2 Term Rep. 97. Godolph. Pt. 2, c. 1, s. 1. Swinb. Pt. 4, s. 23. So if he gives them away to the poor, Dyer, 166, b. in marg.

(g) Godolph. Pt. 2, c. 8, s. 1. Swinb. Pt. 4, s. 23.

(h) Stokes v. Porter, Dyer, 166, b. 1 Roll. Abr. 918, Executors (C. 2) pl. 2.. Wentw. c. 14, 325, 14th edition. Godolph. Pt. 2, c. 8, s. 1. Swinb. Pt. 4, s. 23.

(1) The intermeddling necessary to render a person liable as executor of his own wrong, must be such as to manifest a right to exercise or make disposition of the effects of the deceased. Givers v. Higgins, 4 M'Cord, 286.