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insolvent exe. and that Court will now restrain an insolvent or bankrupt cutors by the appointment of executor, and appoint a receiver: and if it is necessary to receivers :

bring actions at law to recover part of the effects, since that must be in the name of the executor, the Court will compel him to allow his name to be used (8).

But if a person, known by the testator to be a bankrupt or insolvent, be appointed an executor by him, such person cannot, on the ground of insolvency alone, be controlled by the appointment of a receiver (t). It is not, however, to be inferred from the circumstance of the Will having been made some time before the commission, and not altered afterwards, that the testator had a deliberate intention to entrust the management of his estate to an insolvent executor (u). It must be observed, finally, that the Court will certainly not grant a receiver upon the single ground, that the executor is in mean circumstances (x).

The general principle upon which the Court will restrain executors and administrators by the appointment of receivers

will be pointed out hereafter (y). by requiring Likewise, as an executor is considered but as a bare security.

trustee in equity, if he be insolvent, the Court of Chancery will oblige him, as it will any other trustee, to give security

before he enters upon the trust (2). Persons ex- A person excommunicated may be appointed executor; communicated,

"yet so long as he standeth in the sentence of excommunication, he is not to be admitted by the Ordinary, nor

(8) Uterson v. Mair, 2 Ves. jun. Langley v. Hawke, 5 Madd. 46. 95. S. C. 4 Bro. C. C. 269. Scott Stainton v. The Carron Company, 1. Becher, 4 Price, 346. In like 18 Beav. 146, 161. manner, it will restrain the assignees (u) 5 Madd. 46. of a bankrupt executor from pay- (2) Hathornthwaite r. Russell, 2 ing over the fund to him, and this Atk. 126. S. C. Barnard. Chanc. upon petition in the bankruptcy, Cas. 334. Anon. 12 Ves. 4. from the peculiar authority it has Howard v. Papera, 1 Madd. 142. over them : Ibid. See also Ex (y) Infra, Pt. v. Bk. II. Ch. II. parte Ellis, 1 Atk. 101. Fonbl. (=) Rex v. Raines, Carth: 456, Eq. B. 4, Pt. 2, c. 1, s. 3.

ad finem, S. P. S. C. Holt, 310. (t) Gladdon v. Stoneman, 21st Duncumban v. Stint, 1 Ch. Cas. 121. March, 1808, coram Lord Eldon, C., S. C. 1 Eq. Cas. Abr. 238, pl. 21. reported in a note to 1 Madd. 143. Rous v. Noble, 2 Vern. 249. S. C.

can commence any suit for his legacy" (a). But now, by
statute 53 Geo. III. c. 127, excommunication is not to be
pronounced except in certain cases: and by section 3, in
those cases, parties excommunicated shall incur no civil
incapacity whatever.
By statute 3 Jac. I. c. 5, s. 22, a Popish recusant convicted Roman

Catholics, at the time of the testator's death, is made altogether incompetent (); and so, by statute 3 Car. I. c. 2, s. 1, is any person sending or contributing to send another abroad, to be educated in the Popish religion. But now by statute 31 Geo. III. c. 32, Roman Catholics are exempt from these disabilities, upon subscribing the declaration and oath of allegiance, &c. as appointed by that Act (c).

By statute 9 & 10 Wm. III. c. 32, persons denying the Persons deny. Trinity, or asserting that there are more Gods than one, de

ing tlie Trinity, or denying the Christian Religion to be true, or the Holy Scriptures, shall be for the second offence disabled to be executors. But this statute is repealed, as far as denying the Trinity, by statute 53 Geo. III. c. 160, s. 1.

Also by the statutes prescribing the qualifications for Persons not offices (d) persons not having taken the oaths, and complied qualifying for with the other requisites for qualifying, who shall execute their respective offices after the time limited for the performance of those acts, shall incur the same incapacity (e).

By our law, as well as by the civil law, idiots and lunatics Non compotes, are incapable of being executors or administrators; for these disabilities render them not only incapable of executing the trust reposed in them, but also by their insanity 1 Eq. Cas. Abr. 238, pl. 22. Bac. (c) See note to Co. Lit. 391, a, Abr. tit. Exors. A. 6. See also (d) 25 Car. II. c. 2. 1 Geo. I. Batten v. Earnley, 2 P. Wms. 163. stat. 2, c. 13. 13 W. III. c. 6, s. 6. Slanning v. Style, 3 P. Wms. But see 9 Geo. IV. c. 17. 336.

(e) Toller, 33, 34. 4 Burn. E. L. (a) Swinb. Pt. 5, s. 6. Wentw. 123. But it is usual to pass in Off, Ex. 38, 14th edition.

every Session an act to indemnify (6) Richardson v. Seise, 12 Mod. those who have omitted to qualify, 306. Hill v. Mills, Show. 293. &c, Ride v. Ride, 6 Mod. 239.

and want of understanding they are incapable of determining whether they will take upon them the execution of the trust, or not (f).

Therefore it has been agreed, that if an executor become non compos, the Spiritual Court may, on account of this natural disability, commit administration to another(g).

(f) Godolph. Pt. 2, c. 6, s. 2. Bac. Abr. Exors. (A.) 6. 2 Robert. 133, 134,

(9) Hill v. Mills, 1 Salk. 36,

Evans v. Tyler, 2 Robert. 128,
134. S. C. 7 Notes of Cas. 296.
Sec post, Pt. 1. Bk. v. Ch. III. $
VI.

CHAPTER THE SECOND,

OF THE APPOINTMENT OF EXECUTORS-BY WHAT WORDS

EXECUTORS MAY BE APPOINTED,

An Executor can derive his office from a testamentary appointment only(a). His appointment may either be express; or constructive, Executor ac

cording to the in which case he is usually called executor according to the tenor : tenor; for, although no executor be expressly nominated in the Will by the word executor, yet, if by any word or circumlocution, the testator recommend, or commit to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors (b). As if he declare by his Will that A. B. shall have his by words

pointing at the goods after his death to “pay his debts, and otherwise to office or rights dispose at his pleasure," or to that effect, by this A. B. is of an executor : made executor (c). So if the testator say, "I commit all my goods to the administration of A. B." (d), or to "the disposition of A. B." (e); in this case he is made executor. And where certain persons were directed by the Will to pay

(a) A Will (says the author of the Office of Executor,) p. 3, 14th edit. is the only bed where an executor can be begotten or conceived. According to the old doctrine, an executor could not be primarily appointed in a codicil: See ante, p. 8, note (p).

(6) Swinb. Pt. 4, s. 4, pl. 3. Godolph. Pt. 2, c. 5, s. 2. Wentw. Off. Ex. 20, 14th edition.

(c) Ibid. Henfrey v. Henfrey, 4 Moore, P. C. C. 33. So where one

said on his death-bed to his wife
that she should pay all and take all,
by this she was executrix : Bright-
man v. Keighley, Cro. Eliz. 43.

(d) Godolph. Pt. 2, c. 5, s. 3.
Bro. Esecutors, pl. 73.

(c) Pemberton v. Cony, Cro. Eliz. 164. Godolph. Pt. 2, c. 5, s. 3. So if he says, “I will that A. B. shall dispose of my goods which are in his custody,” he is thereby made executor of those parcels of goods: Ibid.

VOL. I.

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debts, funeral charges, and the expenses of proving the Will, they were held to be clearly executors according to the tenor (f). So where the testator in a codicil said, “I appoint my nephew my residuary legatee, to discharge all lawful demands against my Will,” the nephew was admitted executor (). So if the testator say, "I make A. B. lord of all my goods” (1), or “I make my wife lady of all my goods” (i), or “I leave all my goods to A. B." (k), or "I leave A. B. legatary of all my goods” (), or “I leave the residue of all my goods to A. B.” (m), it will amount to the appointment of such persons respectively as executors according to the tenor (n). And where the testator gave divers legacies, and then appointed that, lis debts and legacies being paid, his wife should have the residue of his goods, so that she put in security for the performance of his Will, this was held by three common law judges to make her executrix (o). Again, where the Will said nothing of the testator's debts, but contained only devises of real and personal legacies, to be paid within two months after his death, and concluded, without any bequest of the residue or express appointment of executors, in these words, “I

(f) In the goods of Fry, 1 Hagg. 80. In the goods of Montgomery, 5 Notes of Cas. 99, 101.

(9) Grant x. Leslie, 3 Phillim. 116.

(1) Godolph. Pt. 2, c. 5, s. 3. Swinb. Pt. 4, s. 4, pl. 3.

(i) Swinb. Pt. 4, s. 4, pl. 3.

(1) Godolph. Pt. 2, c. 5, s. 3. Swinb. Pt. 4, s. 4, pl. 3.

a Will, would have a right to go to the Ecclesiastical Court for the probate.

(0) Wentw. Off. Ex. p. 20, 14th edition. But if the testator bequeath the residue of his goods, the debts discharged, in this case, according to Swinburno, the universal legatary doth still remain legatary, and is to recoive his legacy at the hands of the executor or administrator: Swinb. Pt. 4, s. 4, pl. 7. See Friswell r. Moore, 3 Phillim. 138. Hillam v. Walker, 1 Hagg. 71, and In the goods of Davis, 3 Curt. 748, 749, for instances where a party was held not to be executor according to the tenor.

(1) Ibid.

(m) Ibid. I devise all my personal goods to my two daughters and my wife, whom I make executrix:" this was holden to appoint them all three executrices : Foxwith r. Tremaine, Ventr. 102.

(n) In Androvin v. Poilblanc, 3 Atk. 301, Lord Hardwicke said a person named “universal heir," in

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