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his renuncia An executor cannot in part refuse. He must refuse tion cannot be in part :
entirely, or not at all (s). An exception has been supposed to exist in the case of his testator being executor to another person; for there, it has been said, he might well assent to be executor to the one testator, and refuse for the other. But the established practice of the Prerogative Court is to
the contrary (t). The renuncia- It is the practice of the prerogative office of Canterbury, tion will not be received not to receive the renunciation of a party, unless it be panied by the accompanied by the original Will of the deceased, probate of Will.
which it purports to renounce (u).
The consequence of Renunciation by an Executor.
The renuncia- An executor, who has renounced, may, at any time before tion may be retracted at
the grant of administration cum testamento annexo has any time be
passed the Seal of the Court, retract his renunciation (x). fore administration And even an executor, who had renounced in order to granted.
become a witness in a suit commenced touching the validity of the Will, might, at the termination of such suit, retract his renunciation, and take probate of the Will(y): but this could not be done without the consent of all parties in
Court (2) Where there is
If there be a sole executor appointed who renounces, or a sole executor, several executors, who all renounce, administration cum or several, who
the executor neglects probate for a Harrison, 4 Notes of Cas. 455,
(t) Ante, p. 242, note (7). of the retractation in such a case
(u) In the goods of Fenton, 3 had always presented difficulties to Add. 35,
his mind: The executor was allowed (2) McDonnell v. Prendergast, to renounce, for the purpose of 3 Hagg. 212, cited and recognised being examined as a witness, to by Sir H. Jenner Fust in Harrison forward the ends of justice, and
testamento annexo will thereupon be granted to another (a), all renounce,
and adminisand the sole executor in the one case, and each of the tration is several executors in the other, thereupon become incapable granted : of being at any time afterwards admitted to the executorship (b). It has indeed been said, that such incapacity lasts only during the life of such administrator, and that after his death, the renunciation may be retracted (c). But in a the renuncia
tion can never modern case, where there were two executors, who had both be retracted : renounced, and administration cum testamento annexo had been granted, one of the executors, upon the death of such administrator, wished to retract his renunciation, and to be admitted to take probate as executor; and in support of the motion for that purpose, it was urged, that an executor, after renunciation and administration granted, had still a right to probate whenever a vacancy occurred in the representation of the deceased : But the Court refused to accede to the motion, on an objection of the inconvenience that might occur in other quarters from chains of executorship once broken being thus suffered to revive : Should this deceased, for instance, have been the surviving executor of other testators, and should administrations have been granted of their effects on the renunciation of his executors, if the chain of executorship were to revive, as proposed, there would be double and conflicting representation of such testators; the one by grant of administration, as above; the other by the revived chain of executorship (d). then was allowed to retract for the sequence merely of the default of benefit of the estate: Ibid.
the executor to come in to prove (a) If there are several execu- the Will on the above-mentioned tors, they must all duly renounce, process of citation, he has a right before administration with the Will at any future time to appear and annexed can be granted : 1 Roll. prove the Will, and cause the adAbr. 907, pl. 6. Toller, 44.
ministration to be revoked: Go(6) Broker v. Charter, Cro. Eliz. dolph. Pt. 2, c. 31, s. 3. Wentw. 92. S. C. Owen, 44. Moor, 272, by Off. Ex. 92, 14th edit. Baxter and the name of Bewacorne v. Carter, Bale's case, 1 Leon. 90. 1 Leon. 135. Wentw. Off. Ex. 95, (c) Toller, 42. 2 Roberts. 14th edit. Hensloe's case, 9 Co. Wills, 171. 37, a. Touchst. 466. Robinson v. (d) In the goods of Thornton, Pett, 3 P. Wms. 251. But if ad- Add. 273. mini ation be committed in con
but where But where there are several executors, and some renounce there are several executors,
before the Ordinary, and one or more prove the Will, the and some re
renunciation is not peremptory: such as refuse, however nounce, and others prove
formally, may, at a subsequent time, come in and admithe Will :
nister (e): and although they have never acted during the
lives, they may assume the executorship after the death, of the renuncia
their co-executors (f). And it has been considered that if tion is not
administration be committed to another, before refusal by peremptory :
the surviving executor, such administration will be void (g). it may be re- But it appears that this position is at variance with the long cording to the established practice of the Ecclesiastical Court; according
; practice of the to which it has never been deemed necessary that the surcivilians, at any time before viving executor should be called upon a second time to an actual grant of administra
renounce or refuse, before letters of administration are tion de bonis
granted to another. And it has lately (h) been deliberately non, but not afterwards. held by Sir H. Jenner Fust, on an elaborate review of the
authorities, that this practice is right, and that though the surviving executor is entitled to come in and retract his renunciation, if he thinks proper so to do, at any time before the grant of administration de bonis non has passed the seal, yet if he has not retracted, and his renunciation still remains recorded against him, it is not requisite that he should
(e) Swinb. Pt. 6, s. 3, pl. 22. Bro. Executors, pl. 117. 1 And. 27. Godolph. Pt. 2, c. 19, s. 4. Wentw. Off. Ex. 96, 14th edit. Hensloe's case, 9 Co. 37, a. Middleton's case, 5 Co. 28, a. Brookes v. Brookes, 1 Salk. 3. 4 Burn, E. L. 244. Treatise on Eq. Bk. 4, Pt. 2, c. 1, s. 2. Creswick v. Woodhead, 4 M. & Gr. 814, per Tindal, C. J.
(f) Pawlet v. Freak, Hardr. 111. Brooks v. Stroud, 7 Mod. 39. Wankford v. Wankford, 1 Salk. 307. House v. Lord Petre, 1 Salk. 311, Rex v. Simpson, 3 Burr. 1463. S. C. 1 W. Black. 456. Hayward v. Dale, 2 Cas. temp. Lee, 333. Arnold v. Blencoe, 1 Cox, 426. Cottle v. Aldrich, 4 Mau. & Selw.
177. Strickland v. Strickland, 12 Sim. 253, 259. See also in re Deichman, 3 Curt. 124, ante, p. 215. According to the older practice of the civilians, if there were two executors, and one refused, and the other took probate, he that did refuse the executorship could not assume the office after the death of his fellow-executor: Anon. Dyer, 160, b. Godolph. Pt. 2, c. 7, s. 4. Wentw. 96, 14th edit. 1 Salk. 311.
(9) Wankford v. Wankford, 1 Salk. 307, 308. House v. Ld. Petre, ibid. 311. Fonblanque's Treat. on Eq. Bk. 4, Pt. 2, c. 1, s. 2, note (d).
(h) Harrison v. Harrison, Prerog. H. T. 1846. 4 Notes of Cas. 434 ; S. C. 1 Robert. 406.
renounce a second time, or that he should be cited, before a good and valid grant of administration de bonis non to another can be made : And that the executor, after such a grant has been made, cannot procure it to be revoked and obtain a grant of probate to himself, on a retractation of his renunciation made subsequently to the actual grant of administration de bonis non.
This decision was afterwards fully discussed, and, after a careful consideration of all the authorities and doctrines bearing on the subject, confirmed and adopted by the Court of Exchequer, on the ground that though the stat. 21 Hen. VIII. c. 5, s. 3, requires a refusal by the executor before any grant of administration can be made, yet it is silent as to the time when the refusal is to be made ; and the Ecclesiastical Court have invariably treated a formal refusal made in Court at any time after the testator's decease as binding, unless the refusing party afterwards, of his own accord, comes in and retracts his refusal; which practice the Barons considered as consistent with the statute, and perfectly reasonable, and not conflicting with any positive decision in the Temporal Courts (i).
It is said by very eminent writers, that where a power is Whether exegiven to executors, they may exercise it, although they after renounc
ing, exercise a renounce probate of the Will (k). But with the greatest power. deference to their authority, it may be doubted whether the position is true, unless when the power is given them in their proper names, and without reference to their office as executors (I).
If a power has been conferred on a party to a deed, his
() Venables v. The East India are certainly named, so that it apComp., 2 Exch. 633.
pears the Will of the testator is, (k) 1 Sugden on Powers, 138, that they shall sell, whether they 6th edit. 2 Prest. on Abstr. 264. refuse or not. But otherwise it
(1) See Perkins, No. 548, where shall be (as it seems) if he will, the distinction is thus taken: “If that his executors shall sell, witha man will that A. and B., his exe- out expressing their names, and cutors, shall sell, &c., and they re- they all refuse before the Ordinary, fuse before the Ordinary, yet it they cannot sell.” See also the seems they may sell, because they cases of Yates v. Compton, 2 P.
executors, administrators, and assigns, and he dies, having appointed several executors, one of whom renounces, the others who act may well exercise the power (m).
If a debtor makes his creditor and another his executors, and the creditor neither intermeddles, nor proves the Will, he may bring an action against the other executor (n).
Wms. 309, and Keates v. Burton, they have renounced the only cha-