his renunciation cannot be in part: The renunciation will not be received An executor cannot in part refuse. He must refuse 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). It is the practice of the prerogative office of Canterbury, not to receive the renunciation of a party, unless it be panied by the accompanied by the original Will of the deceased, probate of which it purports to renounce (u). unless accom Will. The renuncia tion may be retracted at any time before administration granted. Where there is a sole executor, or several, who SECTION II. The consequence of Renunciation by an Executor. An executor, who has renounced, may, at any time before the grant of administration cum testamento annexo has passed the Seal of the Court, retract his renunciation (x). And even an executor, who had renounced in order to 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). If there be a sole executor appointed who renounces, or several executors, who all renounce, administration cum the executor neglects probate for a (s) Paule v. Moodie, 2 Roll. Rep. (x) McDonnell v. Prendergast, v. Harrison, 4 Notes of Cas. 455, 456. 1 Robert. 419. (y) Thompson v. Dixon, 3 Add. 272. (z) 3 Hagg. 216. Sir John Nicholl observed, that the admission of the retractation in such a case had always presented difficulties to his mind: The executor was allowed to renounce, for the purpose of being examined as a witness, to forward the ends of justice, and and administration is granted: the renuncia tion can never be retracted : testamento annexo will thereupon be granted to another (a), all renounce, and the sole executor in the one case, and each of the several executors in the other, thereupon become incapable 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 modern case, where there were two executors, who had both 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 benefit of the estate: Ibid. (a) If there are several executors, they must all duly renounce, before administration with the Will annexed can be granted: 1 Roll. Abr. 907, pl. 6. Toller, 44. (b) Broker v. Charter, Cro. Eliz. 92. S. C. Owen, 44. Moor, 272, by the name of Bewacorne v. Carter, 1 Leon. 135. Wentw. Off. Ex. 95, 14th edit. Hensloe's case, 9 Co. 37, a. Touchst. 466. Robinson v. Pett, 3 P. Wms. 251. But if administration be committed in con sequence merely of the default of (c) Toller, 42. 2 Roberts. (d) In the goods of Thornton, Add. 273. but where there are several executors, and some renounce, and others prove the Will: the renunciation is not peremptory: it may be retracted, ac cording to the practice of the civilians, at any time before an actual grant of administration de bonis non, but not afterwards. But where there are several executors, and some renounce before the Ordinary, and one or more prove the Will, the renunciation is not peremptory: such as refuse, however formally, may, at a subsequent time, come in and administer (e) and although they have never acted during the lives, they may assume the executorship after the death, of their co-executors (f). And it has been considered that if administration be committed to another, before refusal by the surviving executor, such administration will be void (g). But it appears that this position is at variance with the long established practice of the Ecclesiastical Court; according to which it has never been deemed necessary that the surviving executor should be called upon a second time to renounce or refuse, before letters of administration are granted to another. And it has lately (h) been deliberately 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. (g) 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 given to executors, they may exercise it, although they renounce probate of the Will (k). But with the greatest 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 (1). If a power has been conferred on a party to a deed, his (i) Venables v. The East India Comp., 2 Exch. 633. (k) 1 Sugden on Powers, 138, 6th edit. 2 Prest. on Abstr. 264. (1) See Perkins, No. 548, where the distinction is thus taken: "If a man will that A. and B., his executors, shall sell, &c., and they refuse before the Ordinary, yet it seems they may sell, because they are certainly named, so that it ap- An executor who renounces may sue his co-executor. 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 character in which it was competent to them to exercise it." See Ford v. Ruxton, 1 Coll. 407. (m) Granville (Earl) v. M'Neile, 7 Hare, 156. (n) Dorchester v. Webb, Sir W. Jones, 345. Rawlinson v. Shaw, 3 Term Rep. 557. |