are to be deemed alien friends in effect (o). And though an alien should come here after the war commenced, yet if he has been commorant here by the license of the King ever since, he may clearly maintain an action (p), and consequently there seems no objection to his acting as executor. every 5 Geo. I. c. 27. Artificers realm, (repealed by c. 97.) By statute 5 Geo. I. c. 27, s. 3, it was enacted that subject being an artificer, &c., who should go into any going out of the country out of his Majesty's dominions, there to use or teach his trade, or who being in such foreign country, and there 5 Geo. IV. using his trade, should not return into this realm within six months after warning given him, should be deemed an alien, and should be incapable of being an executor or administrator. But this statute was repealed by the statute 5 Geo. IV. c. 97. 38 Geo. III. executor cannot act till 21 years c. 38: sole An infant may be appointed executor, how young so ever Infants: he be (q), and even a child in ventre sa mere (r) (who is considered in law, to all intents and purposes, as actually born) (8), inasmuch that when such is so appointed, if the mother bring forth two or three children at that one birth, they are all to be admitted executors (t). But if an infant be appointed sole executor, by statute 38 Geo. III. c. 87, s. 6, he is altogether disqualified from exercising his office during his minority, and administration, cum testamento annexo, shall be granted to the guardian of such infant, or to such other person as the Spiritual Court shall think fit, until such infant shall have obtained the age of twenty-one years (u). This Act only applies in case of an infant being sole executor; for if there are several executors, and one of (0) Co. Lit. 129, b. note by Hargrave. (p) Wells v. Williams, 1 Lord Raym. 283. S. C. 1 Salk. 46. S. C. 1 Lutw. 34. (q) Wentw. Off. Ex. c. 18, p.. 390, 14th edit. Swinb. Pt. 5, s. 1, pl. 6. (r) Godolph. Pt. 2, c. 9, s. 1. (s) 2 Saund. 387, note to Purefoy v. Rogers. (t) Godolph. Pt. 2, c. 9, s. 1. (u) Post, Pt. 1. Bk. v. Ch. III. § III. Before the passing of this Act the law considered him capable of acting as executor at the age of seventeen: Godolph. Pt. 2, c. 9, s. 2. Swinb. Pt. 5, s. 1, pl. 6. Piggot's case, 5 Co. 29, a. old: whether if an infant execu band of full age, he shall them is of full age, no administration durante minore ætate ought to be granted; for he who is of full age may execute the Will (x). It has been said, that if it be a woman infant who is made trix take hus- executrix, and if her husband be of age and assent, it is as if she were of age, and her husband shall have execution of have the execu- the Will (y): and in Prince's case (z), it was resolved by the justices of the Common Pleas, that if administration be committed during the minority of the executrix, and she take husband of full age, then the administration shall cease. But this has since been doubted (a). tion. Feme covert : cannot accept the executor. ship without her husband's consent. A married woman may be appointed an executrix, and according to the canon law, (in which there is no distinction between women married and unmarried, but the wife may sue and be sued alone,) she may take upon her the probate without the assent of her husband (b). But by the law of England, husband and wife are considered but as one person, and as having one mind, which is placed in the husband, as most capable to rule and govern the affairs of the family: and therefore the wife can do no act which may prejudice the husband without his consent: consequently, the wife cannot, by our law, take upon her the office of executrix, without the consent of the husband (c). Therefore, it seems, that where a wife, who is made executrix, is cited in the Spiritual Court to take upon her the executorship, and the husband appears and refuses his consent thereto, if after (a) Pigot and Gascoigne's case, cited Brownl. 46. Foxwist v. Tremain, 1 Mod. 47, by Twysden, J. See further, post, Pt. 1. Bk. v. Ch. III. § III. as to infant executors and administration durante minoritate. (y) Wentw. Off. Ex. c. 18, p. 392. Toller, 31. (z) 5 Co. 29, b. (a) See post, Pt. 1. Bk. v. Ch. III. § III. (b) Godolph. Pt. 2, c. 10, s. 3. Went. Off. Ex. 375, et seq., 14th edition. (c) Godolph. Pt. 2, c. 10, s. 2, 3. Wentw. Off. Ex. 377, 14th edition. Thrustout v. Coppin, 2 Black. 801. Another reason is, that in all actions by or against the wife, the husband, by our law, must be joined. Upon this ground, where the husband was abroad, and not amenable to process, Lord Hardwicke granted an injunction to restrain an executrix from getting in the assets of the testator, and appointed a receiver for that purpose: Taylor v. Allen, 2 Atk. 212. wards they proceed to compel her, a prohibition will be granted (d). It appears, however, to have been the practice in the Registry of the Prerogative Court to allow a married woman to take probate without requiring the consent of her husband. But on a late occasion (e), Sir H. Jenner Fust said he thought it would be well to reconsider such practice, as a husband is liable for the acts of his wife. nister without whether he is But if the wife administer, though without the husband's If she admiprivity and assent, and then an action be brought against her husband's them, they are estopped, it is said, from pleading that she consent, was not executrix (ƒ). "Yet perhaps," adds the author of bound. the Office of Executor, "this administration of the wife against her husband's mind, will, (as against him) be a void. act: else I cannot see how the opinion before cited, viz. that the wife shall not be executrix without or against her husband's mind, can be law (g).” On the other hand, if the husband of a woman named executrix, would have his wife to take upon her the execution of the Will, and to prove the same, but she will not assent thereto, in this case the Spiritual Court will not (d) 3 Bac. Abr. 9, (edition by Gwillim,) tit. Executors, (A.) 8 Wentw. Off. Ex. 377, 14th edition: but see Mr. Fonblanque's note (h.) to Treat. on Eq. B. 1, c. 2, s. 6. Administration taken by the wife during coverture must be presumed to have been with the consent of the husband: Adair v. Shaw, 1 Sch. & Lef. 266. (e) In the goods of Dye, 2 Robert. 342. In that case a testator had appointed a married woman, to whom he bequeathed certain property to her separate use, and one A. B., executors. They took probate; but in consequence of the Bank of England refusing to allow a transfer of stock in the absence of her husband, who was in foreign parts, the Court was moved to revoke it, and to decree it to A. B. alone; and Sir H. Jenner Fust (f) Godolph. Pt. 2, c. 10, s. 4. The husband cannot compel the wife to accept the executorship: bound, if he administer against her consent. fasten the executorship upon the wife, against her will (h). But if the husband, though the Will be not proved, administers as in the wife's right, though against her consent, how far she is she will thereby be so far bound and concluded, as that during his life she cannot decline or avoid the executorship (); but after his death she may refuse, if she has never intermeddled with the administration (k). A distinction is taken between the case of a woman made executrix during her coverture, and the case of a feme sole made executrix, who takes a husband after the testator's death, before either proving, or refusing to prove the Will; for in the latter case, she, marrying before her determination, does upon the matter deliver it into her husband's hands (); and if he administers, this is such an acceptance as will bind her, and she can never afterwards refuse (m). Persons attaint and outlaws. The general law respecting the powers, duties, and respon sibilities of the husband and wife respectively, when the wife is appointed executrix, will be found in a subsequent part of this Treatise. There are few or none, who, by our law, are disabled, on account of their crimes, from being executors: and therefore it has always been holden, that persons attainted or outlawed may sue as executors, because they sue in auter droit, and for the benefit of the parties deceased (n). By the civil (h) Godolph. Pt. 2, c. 10, s. 1. Wentw. Off. Ex. 376, 14th edition. See Da Rosa v. Da Pinna, cited 2 Cas. temp. Lee, 390, and post, Pt. 1. Bk. v. Ch. 11. § II. as to letters of administration to a feme covert, being next of kin. (i) Godolph. Pt. 2, c. 10, s. 1. Wentw. Off. Ex. 378, 14th edition. See also 1 Salk. 306, in Ld. Holt's judgment in Wankford v. Wankford. Thrustout v. Coppin, 2 W. Black. 802. (k) Stokes v. Porter, Dyer, 166. Godolph. Pt. 2, c. 10, s. 1. Wentw. Off. Ex. 378, 14th edition. Beynon v. Gollins, 2 Bro. C. C. 323; and see the note (b) by the learned reporters to Adair v. Shaw, 1 Sch. & Lef. 258, and the remarks of Lord Redesdale, on the report of Beynon v. Gollins, ibid. 259. (1) Wentw. Off. Ex. 379, 14th edition. (m) Wentw. Off. Ex. 379, 14th edition. Godolph. Pt. 2, c. 10, s. 4. Bro. Abr. tit. Exor. 147. (n) Hix & Uxor v. Harrison, 3 Bulst. 210. Co. Lit. 128, a. Caroon's case, Cro. Car. 9. Killigrew v. Killigrew, 1 Vern. 184. Swan & Ux. v. Porter, Hard. 60. Wentw. and canon law indeed, not only traitors and felons, but heretics, apostates, usurers, famous libellers, incestuous bastards, and many others, are incapable of being executors (o). mean or insolvent circum The Spiritual Court cannot refuse to grant the probate of Persons in a Will to a person appointed executor, on account of his poverty or insolvency. Therefore, where, to a mandamus to stances; the judge of the Prerogative Court, to grant the probate of a Will to a person named executor therein, the Ordinary returned that he was an absconding person, and insolvent, and that he refused to give caution to pay legacies bequeathed to some of the testator's infant relations; a peremptory mandamus was granted; for the Ordinary has no authority to interpose and demand caution of the executor, when the testator himself required none (p). So where, after probate of the Will, the executor became bankrupt : bankrupt, and a suit was commenced in the Ecclesiastical Court to revoke the probate, and grant administration to another; the Court of King's Bench granted a prohibition (q). The consequence of these decisions was, that the Court of Chancery was forced to assume a new jurisdiction (): Off. Ex. 36, 14th edition. Godolph. Pt. 2, c. 6, s. 1. Vin. Abr. tit. Utlawry, n. a. pl. 2. So a villain was capable of being an executor: Swinb. Pt. 5, s. 1, pl. 3. Off. Ex. 36, 14th edition: and the lord could not seize those goods which he had to the use of the deceased; and he might sue his lord for a debt due to the testator: Lit. B. 2, c. 11, s. 192. But it was held that an outlaw could not move to have an attorney's bill taxed, where he (the outlaw) was administrator, with the Will annexed, by which all the personal estate was bequeathed to him, subject to payment of the debts, &c. and one of the bills which he sought to tax related to business done for him- (0) Swinb. Pt. 5, s. 2, 3, 4, 7, 9, (p) Rex v. Sir Richard Raines, 1 Lord Raym. 361. S. C. 1 Salk. 299. 3 Salk. 162. 1 Stra. 672. Carth. 457. Holt, 310. Hathornthwaite v. Russell, 2 Atk. 127. S. C. Barnard. Chanc. C. 334. See also 3 P. Wms. 336, note to Slanning v. Style. (q) Hill v. Mills, 1 Show. 293. S. C. 1 Salk. 36. S. C. Skin. 299. (1) By Lord Mansfield, in Rex v. Simpson, 1 W. Black. 458. when the Court will control of Chancery |