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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) Jackson v. Paulet, 2 Robert. not like one where a testator, in his 344. It was objected that, under Will, reserves to himself a power the Wills' Act, probate could be to deal hereafter with his Will by decreed only to a person named in writings not duly executed. (See a duly executed testamentary paper. ante, p. 87.) But the Court said, the case was
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, inas. 1. Limitations
in point of much as the time may be limited when the person appointed time : shall begin, or when he shall cease, to be executor. Thus if as to when the one appoint a man to be his executor at a certain time, as begin to execute at the expiration of five years after his death (b), or at an uncertain time, as upon the death or marriage of his son (c), 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 (cl). So if a man appoints his son to be executor when he shall come to füll 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. die (f).
bis office :
(a) Toller, 36.
(6) 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
(e) Wentw. Off. Ex. 22, 23, 14th
(F) Ibid. Godolph. Pt. 2, c. 2, 5.4. Graysbrooku. Fox, Plowd. 281.
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 (9). as to when le Likewise the testator may appoint a person to be his chall ccasc :
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 (). In a case (1) 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 slre 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 sub. ject to the power, of her second husband, it was held that
her executorship expired on her second marriage. in these cases In these cases, if the testator does not appoint a person an administrator may be to act before the period limited for the commencement of appointed till there be an ex
the office on the one hand, or after the period limited for its ecutor, or after expiration on the other, the Ordinary may commit administhe cxecutorship is ended. tration to another person, until there be an executor, or
after the executorship is ended (m).
(9) Wentw. Off. Ex. 31, 14th mises, and so this one only should edition. Bro. Executors, 155. But be executor: Anon. Dyer, 3, b. where two were made executors Wentw. Off. Ex. ubi supra. See with a proviso or clause, that one also Bro. Executors, 9, citing 3 of them should not administer the Hen. VI. 6, 7, where Martin, J. goods, this was held void for re- gives an opinion similar to that of pugnancy by Brudenel and Engle- Shelley, J., above. field, Justices; but Fitzherbert, (1) Swinb. Pt. 4, s. 17, pl. 1. Justice, was of mind
(i) Wentw. Off. Ex. .29, 14th not void, nor utterly repugnant, edition. Godolph. Pt. 2, c. 2, s. 3. for the other might join in suits, Carte v. Carte, 3 Atk. 180. Pemthough not administer: And Shel- berton v. Cony, Cro. Eliz. 164. ley, Justice, was of a third opinion, (k) Swinb, Pt. 4, s. 17, pl. 4. different from all the rest, viz. that (1) Bond v. Faikney, 2 Cas. there was a repugnancy, but the temp. Lee, 371. last clause should control the pre- (m) Swinb. Pt. 4, s. 17, pl. 2,
at it was
as to the sub
In like manner, the appointment may be limited in point 2. Limitations
in point of of place: as thus; the testator may make A. his executor placc. 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 3. Limitations subject-matter, upon which it is to be exercised. Thus the ject-matter. 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 (9). So a person may be made executor for one particular thing only, as touching such a statute or bond, and no more (1). And the same Will may contain the appointment of one executor for general, and another for limited purposes (8). But although a testator may thus appoint separate executors of distinct parts of his property, and may divide their authority,
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. § 1.
(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 r. Harris, 4 Harg. 408, 409.
(o) Swinb. Pt. 4, s. 18, pl. 4.
(p) Toller, 36. 4 lags. 408, 409.
(1) Dyer, 4, a. Wentw. Off. Ex. 29, 14th cdition. Godolph. Pt. 2, c. 3, pl. 2, 3. Bro. Executors, 155. Austre r. Audley, 1 Roll. Abr. 914, (S.) pl. 4. See however the judgment of Lord Hard wicke in
Owen ?. Owen, 1 Atk. 495, contra;
(r) Wentw. Off. Ex. 29, 14th
(s) Lynchr. Bellewv, 3 Phillim. 424.
yet quoad creditors, they are all executors, and as one
executor, and may be sued as one executor (t). 4. The ap: pointment may
Lastly, the appointment may be conditional; and the con• be conditional. dition 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 (2). 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).
(t) Rose v. Bartlett, Cro.Car.293. my Will, or take any advantage of
(u) Wentw. Off. Ex. 23, 14th this my Will for the discharge of edition. Godolph. Pt. 2, c. 2, s. 1. the same debts, for that I have Should the executorship be deter- made him one of my executors,” mined by a breach of the condition, it was held that C. could not adyet all acts done by the executor minister, or be executor, before he in pursuance of his office, before paid the debts : Stapleton v. True. such condition broken, are good: lock, 3 Leon. 2, pl. 6. Godolph. Pt. 2, c. 2, s. 1. See
(y) Dyer, 4, pl. 8, in marg. post, Pt. 1. Bk. vi. Ch. III.
Went. Off. Ex. 28, 14th edition. (xv) Godolph. Pt. 2, c. 2, s. 1.
S. C. semble, by the name of JenWentw. Off. Ex. 28, 14th edition.
nings v. Gower, Cro. Eliz. 219. Where A. made B. and C. execu
S. C. 1 Leon, 229. tors, and added, “I will that C.
(2) In the goods of Wilmot, 1 shall pay my other executor all
Curt. 1. such debts as he owes me, before
(a) In the goods of Day, 7 Notes he meddle with anything of this
of Cas. 553,