Effect of re (as in the case of a lost Will, or a Will destroyed unduly or sine animo revocandi (a)) probate might have been granted of the Will itself, as contained in the draft and the depositions of the witnesses. It has been already observed, that although a Will made by a widow before or during coverture, will not revive by publication by the mere circumstance of her husband's death, yet if she a widow: by an infant after attaining majority: republish it, it will become valid (b). So if, at any time before the statute of Victoria came into operation, an infant having attained the age of fourteen, if male, or twelve, if a female, by approval or recognition, or any other means republished a Will, which he or she made before arriving at those ages, it was thereby made effectual to all intents and purposes (c). Likewise, although if the testator make his Will while non compos, and afterwards recover his understanding, the Will does not thereby obtain any force or strength (d); yet if he should, after having regained a sound understanding. state of mind, republish the Will made during his former insanity, it would doubtless become a valid Will. by a person formerly of non-sane me mory, who has recovered his (a) See post, Pt. 1. Bk. IV. Ch. III. § VII. (b) Ante, p. 49, 55. But see Du Hourmelin v. Sheldon, cited ante, p. 191. (c) Swinb. Pt. 11, s. 2, pl. 8. Herbert v. Torball, 1 Sid. 162. (d) Swinb. Pt. 2, s. 3, pl. 2. Godolph. Pt. 1, c. 8, pl. 2. BOOK THE THIRD. OF THE APPOINTMENT OF EXECUTORS, AND THE ACCEPTANCE OR REFUSAL OF THE OFFICE. THE word Executor, taken in its largest sense, has three acceptations: for there is, 1. Executor a lege constitutus, and that is the Ordinary of the diocese: 2. Executor ab Episcopo constitutus, or Executor dativus, and that is he who is called an administrator to an intestate: 3. Executor a testatore constitutus, or Executor testamentarius, and that is he who is usually meant when the term "Executor" is used (a). The proper term in the civil law, as to goods, is hæres testamentarius (b); and executor, said Lord Hardwicke, is a barbarous term unknown to that law (c). An executor, as the term is at present accepted, may be defined to be, The person to whom the execution of a last Will and Testament of personal estate is, by the testator's appointment, confided (d). "To appoint an executor," says Swinburne (e), "is to place one in the stead of the testator, who may enter to the testator's goods and chattels, and who hath action against the testator's debtors, and who may dispose of the same goods and chattels, towards the payment of the testator's debts, and performance of his Will." The bare nomination of an executor, without giving any legacy, or appointing anything to be done by him, is sufficient to make it a Will, and as a Will it is to be proved (ƒ). (a) Godolph. Pt. 2, c. 1, s. 1. Swinb. Pt. 6, s. 1. Wentw. Off. Ex. c. 1. (b) Godolph. Pt. 2, c. 1, s. 1. Swinb. Pt. 6, s. 1, pl. 4. (c) Androvin v. Poilblanc, 3 Atk. 304. (d) 2 Black. Comm. 503. Farrington v. Knightly, 1 P. Wms. 548, 549. Toller, 30. (e) Swinb. Pt. 4, s. 2, pl. 2. Who may be an executor. The King. CHAPTER THE FIRST. WHO IS CAPABLE OF BEING AN EXECUTOR. GENERALLY speaking, all persons, who are capable of making Wills, and some others besides, are capable of being made executors (a). From the earliest time it has been a rule, that every person may be an executor, saving such as are expressly forbidden (b). It seems to be admitted that the king may be constituted executor; in which case he appoints such persons as he shall think proper to officiate the execution of the Will, against whom such as have cause of action, may bring their suits: also the King may appoint others to take the accounts of such executors (c). Thus, Katherine, Queen Dowager of England, mother of Henry the Sixth, made her last Will and testament, and thereof constituted King Henry the Sixth her sole executor: Whereupon the King appointed Robert Rolleston, keeper of the great wardrobe, John Merston, and Richard Alreed, esquires, to execute the said Will, by the oversight of the Cardinal, the Duke of Gloucester, and the Bishop of Lincoln, or two of them to whom they should account (d). Doubts have been entertained whether a Corporation Corporations. aggregate can be executor; principally because they cannot prove a Will, or at least cannot take the oath for the due execution of the office (e). But there are authorities in favour of the capability (ƒ); and it is said to be now (a) 2 Black. Comm. 503. (e) 1 Black. Comm. 477. Com. are stated to be: 1st, Because they cannot be feoffees in trust, to others' use 2dly, They are a body framed for a special purpose. (f) Swinb. Pt. 5, s. 9. Godolph. Pt. 2, c. 1, s. 1. 1 Roll. Abr. tit. Executors (T) 7, citing 12 E. 4, 9, b. Firm. settled, that on their being so named, they may appoint persons styled Syndics, to receive administration with the Will annexed, who are sworn like other administrators (g). No doubt appears ever to have been entertained, but that a corporation sole may be executor (h). Where a testator in A partnership India nominated his brother, and "Messrs. Cockerell and Co., East India agents, London," and one A. B., to be his executors, and before his death the firm of Cockerell and Co., which consisted of four members, had been dissolved, Sir H. Jenner Fust held that the appointment was not of the firm collectively, but of the persons composing it individually, and that each of the members was entitled to be joined in the probate with the other executors (i). It seems agreed that by our law an alien, or one born out Aliens. of the King's allegiance, may be an executor (k): though by the civil law he cannot, unless so appointed in a military testament (1). With respect to alien enemies," it has long been doubted," says Lord C. B. Gilbert, in his history of the C. P. (m), "whether an alien enemy should maintain an action as executor: for on the one hand it is said, that, by the policy of the law, alien enemies shall not be admitted to actions to recover effects, which may be carried out of the kingdom to weaken ourselves and enrich the enemy, and therefore public utility must be preferred to private convenience; but, on the other hand, it is said that those effects. of the testator are not forfeited to the King by way of reprisal, because they are not the alien enemy's, for he is to recover them for others; and if the law allows such alien enemies to possess the effects, as well as an alien friend, it must allow them power to recover, since in that there is no difference, and, by consequence, he must not be disabled to sue for them; if it were otherwise it would be a prejudice to (g) 3 Bac. Abr. by Gwillim, p. 5, tit. Executors, A. 2. Toller, 30, 31. (h) Godolph. Pt. 2, c. 6. Wentw. Off. Ex. p. 39, 14th edit. (i) In the goods of Fernic, 6 Notes of Cas. 657: (k) Caroon's case, Cro. Car. 8. (1) Godolph. Pt. 2, c. 6, s. 2. the King's subjects, who could not recover their debts from the alien executor, by his not being able to get in the assets of the testator" (n). But now, on declaring war, the King usually, in the proclamation of war, qualifies it, by permitting the subjects of the enemy resident here, to continue, so long as they peaceably demean themselves; and without doubt, such persons (n) It is said in Toller, pp. 33, 34, that, although the cases are not uniform, yet it seems clear on the whole that alienage, with a relation to a hostile country, accompanied with residence abroad, or residence here without the king's permission, express or implied, clearly works a disability. It may, however, be remarked, without presuming to controvert this position, that the weight of authorities does not appear to be in favour of it. The earliest case on the subject is an anonymous one (probably it was Pascatia de Fountain's case, mentioned in Wentworth, p. 35, 14th edit.) decided in 31 Eliz., and reported in Cro. Eliz. 142, and Owen, 45: The action was debt by an executor; and the plea, that the plaintiff was an alien, born at Ghent under the allegiance of the king of Spain, the queen's enemy; and it was held a good plea. This is certainly a direct authority upon the point, but it seems the only one in favour of the disability: all the succeeding decisions are uniformly in favour of the executor's capacity. Thus, in Watford v. Masham, (38 Eliz.) Moor. 431, and Brocks . Phillips, (41 Eliz.) Cro. Eliz. 684, (also cited by the Court as adjudged, in Caroon's case, Cro. Car. 9,) the same plea, under the same circumstances, was held bad on demurrer. The next case is Richfield r. Udall, (19 Car. II.,) Carter, 48, 191, where the Court agreed that an action by an alien enemy, as executor, lies: and Bridgman, C. J., said he remembered Sir Stephen Le Sure's case, 11 Jac. I., that any alien whatsoever may be executor. The last case on the subject is Villa r. Dimock, (5 W. & M.) Skinner, 370, which was an action brought by an executor, for work and labour, and the plea was, that both the testator and executor were alien enemies, born at such a place, under the obedience of the French king; to this the plaintiff demurred and had judgment, on the ground that it was not shown that the testator did not die before the war; and that the plaintiff might be executor, and the action attach in him before the war, and then being dead before he became an alien enemy, the testator might have an executor; and the action being in auter droit, it should be maintained. The other cases cited by Sir S. Toller, it is submitted, with deference, do not apply; inasmuch as they merely decide the general question as to suits by alien enemies whereas, the present inquiry is, whether, assuming an alien enemy to be generally incapable of suing proprio jure, he may not still sue in auter droit, as executor, just as persons attainted or outlawed may. |