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

(6) Pt. 4, s. 5—16.

(d) Post, Pt. III. Bk. III. Ch. II. (c) Pt. 1, c. 13, 14. Pt. 2, c. 2. SVI,

several execu- dies, leaving one or more of his co-executors living, no tors, no interest is trans. interest in the executorship is transmissible to his own exemissible, ex.

cutor, but the whole representation survives, and will be cept to the executor of the transmitted ultimately to the executor of the surviving survivor,

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 solely vested in C. by the survivorship; and so administration de bonis non shall be committed (i).

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 (k).

(i) Wentw. Off. Ex. 215, 14th edition. In the goods of Smith, 3 Curt. 31.

(1) Arnold v. Blencowe, 1 Cox, 426.

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 What acts congoods of the deceased, will make a person executor de son

ecutor de son tort. Thus it is said in Dyer, in margine (b), that milking tort. 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 de. ceased (d). So if a man kills the cattle (e), or uses or gives away, or sells any of the goods (S), or if he takes the goods

stitute an ex

(a) The definition of an executor to a lawful executor, who mal-adde son tort, by Swinburne, Godol- ministers; as by the Lord Dyer, in phin, and Wentworth, is in the Stokes v. Porter, Dyer, 167, a. same words, viz., “ He who takes (6) P. 166, b. upon himself the office of executor (c) Robins's case, Noy, 69. by intrusion, not being so consti- (d) Toller, 38. tuted by the deceased, nor, for (e) Godolph. Pt. 2, c. 8, s. 4. want of such constitution, substi- (5) Read's case, 5 Co. 33, b. tuted by the [Ecclesiastical] Court Padget v. Priest, 2 Term. Rep. 97. to administer;" Swinb. Pt. 4, s. Godolph. Pt. 2, c. 1, s. 1. Swinb. 23, pl. 1. Godolph, Pt. 2, c. 8. 8. Pt. 4, s. 23: So if he gives them 1. Wentw. Off. Ex. c. 14, p. 320, away to the poor: Dyer, 166, b. in 14th edition. But the term is, in marg the older books, sometimes applied

VOL. I.

CHAPTER THE FOURTH.

IN WHAT CASES THE APPOINTED EXECUTOR MAY TRANSMIT

IIIS APPOINTMENT.

ALTHOUGH the executor cannot assign the executor. ship (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 1. Where there executor of A., the executor of such executor is, to all intents isra hilean and purposes, the executor and representative of the first tor represents testator (1). But if the first executor dies intestate, then his the first testator :

administrator is not such a representative, but an adminis. trator de bonis non of the original testator must be appointed

by the Ordinary (c): for the power of an executor is founded but his almin: upon the special confidence and actual appointment of the istrator docs

deceased; and such executor is therefore allowed to transmit not :

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

(a) Bedell v. Constable, Vaugh. 182.

() Com. Dig. tit. Administration (G) tit. Administrator (B. 6). Touchst. 464. Wankford v. Wankford, 1 Salk, 308. Stat. 25 Edw. III. st. 5, c. 5. Wentw. Off. Executor, 461, 14th edition. Bro. Administrator, pl. 7. 2 Bl. Comm. 506. The rule is the same, though the original probate was a limited

power given to an executor is transmissible to his executor.

(c) Bro. Abr. Administrator, pl. 7. Com. Dig. Administrator (B. 6). 2 Bl. Comm. 506. Thus 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 demiso from the testator, contrary to stat. 4 Geo. II. c. 28, without taking out administration de bonis non, cyen though the tenant had attorned to her: Tingrey v. Brown, 1 Bos. & Pull. 310.

In the goods of Beer, 2 Robert. 349. See post, Pt. III. Bk. 1. Ch. III. as to whether a

one :

executor is merely the officer of the Ordinary, and has no privity or relation to the original testator, being only com. missioned to administer the effects of the intestate executor, and not of the original testator (a). If the first executor should die, without having proved the executor of

the executor the Will (e), the executorship is not transmissible to his does not repreexecutor, but is wholly determined, and an administrator sent the first

testator, unless cum testamento annexo must be appointed (f).

the first execu.

tor proves the A married woman, being executrix, may continue the Will. chain of representation, by making her own executor (g). In Barr v. Carter (h), Elizabeth Chapman, a married Transmission

of executorship woman, made a Will, merely executing a power given her by a ferne coby the marriage settlement, but she also went on to appoint vert executris. Elizabeth Carter sole executrix of that her Will: 'She died in the lifetime 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 If there are

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(d) 2 Bl. Comm. 506. However the administrator durante minore atate of the executor of an executor is the representative of the first testator; for such an administrator is loco Executoris: Anon. 1 Freem. 287. Contrà, Limmer v. Every, Cro. Eliz. 211, 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) But if administration cum testamento annexo has been granted under his letter of attorney for his use or benefit to another, it is the same thing as if he had proved the Will himself: In the goods of

Bayard, 1 Robert. 769. S. C. 7
Notes of Cas. 117.
(5) Isted v. Stanley, Dyer, 372,

Hayton v. Wolfe, Cro. Jac.
614. S. C. Palm. 156. Hutton,
30. Went. Off. Ex. 82, 14th
edition. Day r. Chatfield, 1 Vern.
200. Wankford v. Wankford, 1
Salk. 308. S. C. 1 Freem. 520.
Anon. 3 Salk. 21. Hence it follows,
that if the person appointed execu-
tor dies before the testator, there
must be administration cum testa-
mento

See Brown . Poyns, Sty. 147. Pullen v. Scrgeant, 2 Chanc. Rep. 300.

(9) Birkett V. Vandercom, 3 Hagg. 750, ante, p. 47, 48.

(h) 2 Cox, 429.

annero,

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