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the executor

There are some old cases, in which it is laid down, that if an executor has once administered, not only is he compellable to undertake the office if the Ordinary desire it, but that the Ordinary has no jurisdiction to accept his refusal, and grant If the Ordinary

accepts his administration cum testamento annexo to another (m): and in refusal, and

grants adminisone case it was expressly holden, that if such an adminis- tration, it is trator bring an action, it is a good plea to say, that the valid, although executor made by the Will has administered (n). But these has adminis

tered. cases appear to have been decided while a great jealousy of the Ecclesiastical Court prevailed : and the law, it should seem, is now taken to be, that the Ordinary may (though perhaps he ought not) accept the executor's refusal, notwithstanding he has administered (o). So if the executor has acted, and the Ordinary, not knowing it, commits administration to another, though the administration may be revoked, and the executor compelled to prove the Will (p), yet the grant of administration cum testamento annexo, until so revoked, is valid; and, consequently, in neither of these cases can a debtor to the testator, in answer to a suit by such administrator, set up the act in pais of the executor against his renunciation, in order to delay or prevent a recovery by the administrator (q).

ford, that the executor of an executor may renounce being executor to the first testator. But it appears from the report in Freeman, that his lordship referred for this position to Hayton v. Wolfe : And it should be observed that, although, in that case, the Court seems to have entertained the same opinion, yet, in fact, the point was not properly raised there; because the first executor had died without having obtained probate of the Will of the first testator. Indeed, this is pointed out by Freeman in his report of Wankford v. Wankford ; for after stating the dictum of Lord Holt, the reporter adds sed semble q'iste livre ne warrante

cest point, q' in le case in Cro.
le volunt ne fuit prove per

le
executor."

(m) Graysbrook v. Fox, 1 Plowd. 280, 280, a. Wankford v. Wankford, 1 Salk. 308. Hawkins and Lawse's case, 1 Leon. 155.

(n) Parten and Baseden's case, 1 Mod. 213.

(0) 1 Roll. Abr. Exor. (C.) 2, p. 907. Wentw. Off. Ex. 91, 14th edit. 2 Scho. & Lefr. 237. Factum valet, says Wentworth, quod fieri non debuit. See also Jackson v. Whitehead, 3 Phillim. 577.

(p) Wentw. Off. Ex. 91, 14th edit. Godolph. Pt. 2, c. 31, s. 3.

(9) Doyle v. Blake, 2 Scho. & Lefr. 237.

The executor

The only sense in which the committing of the adminisis liable to be tration under such circumstances, can now be said to be void, sued, although administratin is, as far as respects the protection of the executor: for if be granted to

he has once administered, he will remain liable to be sued has adminis

as executor, both at law and in equity, in spite of his tered.

renunciation, and the consequent appointment of an administrator (r). So if an executor administer to part of the assets, he shall be charged with the receipts, as executor, though he renounced the executorship, and paid the money to the other executor, who proved the Will (8).

The general question as to the liability, to creditors and legatees, of an executor who renounces after an act of administration, or who proves the Will, and then professes to renounce his representative character, will be considered

at large, in a subsequent part of this Treatise (t). What amounts

With respect to what acts will amount to an administering, to an adminis- such as to render an executor compellable to take probate, tration.

two general rules may be laid down : 1st, That whatever the executor does with relation to the goods and effects of the testator, which shows an intention in him to take upon him the executorship, will regularly amount to an administration. 2ndly, That whatever acts will make a man liable as an executor de son tort (u), will be deemed an election of the executorship (x).

Hence, it has been adjudged, that if the executor takes possession of the testator's goods, and converts them to his own use, or disposes of them to others, this is an administration (y). So if he takes the goods of a stranger, under an apprehension that they belonged to the testator, and

(r) Wentw. Off. Ex. 92, 14th (3) Godolph. Pt. 2, c. 8, s. 1, edit. Parsons r. Mayesden, 1 and s. 6. Bac. Abr. tit. Executors, Freem. 151. Doyle t. Blake, 2 (E.) 10. Toller, 43. Rayner v. Scho. & Lefr. 237. Rogers t. Green, 2 Curt. 248; but see Frank, 1 Younge & Jervis, 409. Wentw. Off. Ex. c. 3, p. 94, 14th

(8) Read r. Truelove, Ambl. 417. edition.
(1) Post, Pt. w. Bk. II. Ch. 11. SII. (y) Wentw. c. 3, p. 93, 14th

(u) See ante, Ch. v. p. 225, et seq. edit.: or even take them into his as to what acts will constitute a hands, some say, without convertman executor de son tort,

ing of them : Ibid.

administers them, this amounts to an administration (2). As where the testator being tenant at will of certain goods, his executor seized the goods, supposing them to belong to the testator, with an intent to administer; it was holden, that his intention appearing, this made him executor in law (a).

But if an executor seizes the testator's goods, claiming a property in them himself, though afterwards it appears that he had no right, yet this will not make him executor; for the claim of property shows a different view and intention in him than that of administering as executor (b).

If an executor receives debts due to the testator, and, especially, if he gives acquittances for such debts, this amounts to an election of the executorship; so, if he releases a debt due to the testator (c).

So, if there are two executors, and one of them hath a specific legacy devised to him, and he takes possession of it, without the consent of his co-executor, this amounts to an administration; for a devisee cannot take a personal chattel devised to him, without the assent of the executor (d).

In a modern case (e) the insertion of an advertisement calling on persons to send in their accounts, and to pay money due to the testator's estate to A. and B. “his executors in trust," was held to make them compellable to take probate, and to subject them personally to the costs occasioned by their resistance: the estate being small, and left for two years and a half without a representative.

An executor who has not proved, is not to be considered as acting, by assisting a co-executor who has proved, in writing letters to collect debts, nor by writing directly to a debtor of the testator, and requiring payment (f). But in

(z) 1 Roll. Abr. 917, pl. 12, Bac. Abr. tit. Executors (E.) 10.

(a) 1 Roll. Abr. 917, pl. 13. Bac. Abr. tit. Executors, (E.) 10.

(6) Bac. Abr. tit. Executors, (E.) 10.

(c) Wentw. Off. Ex. 94, 14th edit. Swinb. Pt. 6, s. 22, pl. 2. 1

Roll. Abr. 917, pl. 7, 8. Pytt v.
Fendall, 1 Cas. temp. Lee, 553.

(d) 1 Roll. Abr. 917, tit. Exor. (B.) pl. 9. Bac. Abr. tit. Exor. (E.) 10. See infra, Pt. III. Bk. III. Ch. IV. § III.

(e) Long v. Symes, 3 Hagg. 771.

() Orr v. Newton, 2 Cox, 274. See also Stacey v. Elph, 1 M. & K. 195.

Harrison v. Graham (g), Barbara Graham by Will appointed her mother, her sisters Margaret and Elizabeth, and her brother Robert, her executors, and died : Margaret alone proved the Will, and acted chiefly as executor, and was described as the only acting one, in a letter of attorney executed by the others, who were therein described as executors, to empower Margaret to receive a quantity of stock: Robert, by virtue of another letter of attorney, executed by the other executors, transferred a quantity of the testatrix's S. S. Stock, received the money, and paid it over the same day to Margaret : After this she and the mother died, making Robert their executor : It did not appear that Robert had, under the first executorship, done any other act as executor, besides giving the one letter of attorney, and receiving the other: But Lord Hardwicke held that this was such an act of administration in Robert, as should make him chargeable as to his own estate (h).

Taking the oath as executor is not to be considered as an intermeddling such as to preclude renunciation (i). In a case indeed, decided 31 Car. II., the executor named in the Will had taken the usual oath, and then refused (but after a caveat entered); and another endeavoured to obtain letters of administration : the executor came afterwards to desire the Will under probate, and contested the granting of administration : and it was adjudged against him, supposing that he was bound by the refusal: But after an appeal to the Delegates, a mandamus was prayed, and granted by the Court of King's Bench: for that, having taken the oath, he could not be admitted to refuse, and the Ecclesiastical Court had no further authority (K). However, if he has not administered, the Court will now, upon his own application, dismiss him, and allow him to renounce probate, even after the usual oath, and an appearance given as executor. Such a renunciation was permitted in a modern case (1), in order

An executor may renounce after he is sworn.

(9) 3 Hill's MSS. 239. 1 P. Wms. 241, note (y) to 6th edition.

(h) The judgment in this case will be found fully stated, post,

Pt. Iv. Bk. II. Ch. II. $ 11.

(i) 3 Hagg. 216.
(k) Anon, 1 Ventr. 335.
(1) Jackson v. Whitehead, 3

that the executor might be examined as a witness; and Sir John Nicholl, in giving his judgment, seemed to doubt the correctness of the report of the former case, and said, that at most it only decided that a voluntary renunciation is not so binding as to exclude an executor from the duties of the executorship.

With respect to the mode of refusal by the executor, it is How an exlaid down that refusal cannot be verbally, or by word, but it renounce : must be by some act entered or recorded in the Spiritual Court; and therefore must be done before some judge spiritual, and not before neighbours in the country (m). But if the refusal

must not be in the executor send a letter to the Ordinary, by which he pais, but in

the Spiritual renounces, and the refusal be recorded, it is sufficient. As Court : in a case where Sir Ralph Rowlet made the Lord Keeper Bacon, C. J. Catlin, and the Master of the Rolls, executors; they wrote a letter to the Ordinary, that they could not attend the executorship, and therefore wished him to commit administration; who did so, making every one of their refusals to be recorded ; and this was held good (n).

Until the refusal is recorded, no person can take administration (0) In case the Ordinary himself be made executor, then he before whom,

when the Or may refuse before his own commissary (p).

dinary himself If a party renounce in person, he takes an oath that he has not intermeddled in the effects of the deceased, and will not intermeddle therein with any view of defrauding the creditors. But he may renounce by proxy, and then the Form of renunoath is dispensed with (9). If the executor refuse to take the usual oath, or being a executor de

clining the Quaker, to make the affirmation, this amounts to a refusal usual oath : of the office, and shall be so recorded (r).

is executor :

1 Leon. 135. Wentw, Off. Ex. 88,
14th edit. Godolph. Pt. 2, c. 19,

S. 4.

Phillim, 577. See also Panchard o. Weger, 1 Phillim. 212. Meek v. Curtis, 1 Hagg. 129. In the goods of Wilkinson, 3 Phillim. 96. Long e. Symes, 3 Hagg. 774.

(m) Wentw.Off. Ex.88, 14th edit. Long v. Symes, 3 Hagg. 776.

(n) Broker v. Charter, Cro. Eliz. 92. S. C. Owen, 44. Moor, 272.

(0) 3 Hagg. 776.

(p) Wentw. Off. Ex. 89. Bro. Ordinary, pl. 13.

(9) Toller, 42.

(r) Rex v. Raines, 1 Lord Raym. 363, per Holt, C. J. Toller, 41. If

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