and not transmissible to heirs, except where the executor is also general disponee or residuary legatee of the deceased and beneficially interested in the estate. (k) The chief points under this head are :— 1. Survivorship in appointment of executors. The office on the death of one accrues to the survivors or survivor, and when purely a trust for others falls entirely on the death of the whole.(¿) 2. Executors dying before realising. Where the executor dies after expeding confirmation, but before realising the whole of the funds, a title must be made up to such unrealised funds by another executor. (m) The office may be obtained by the next-of-kin of the person whose estate is to be administered, who will present a petition to the Commissary as in the ordinary case, but will confine the inventory to the unrealised portion of the estate. A judicial factor on an estate vested in trustees and executors who have in similar circumstances died, may be appointed executor qua factor.(n) 3. Executors dying after realising. Where, again, the executor dies after realising, but before distributing the funds, the estate can be taken up by a judicial factor appointed by the Court, or taken up by diligence,(o) or the party entitled to the funds, or the administration thereof may establish a title by a declaratory adjudication (p); but not by confirmation, because the former executor had actually recovered the estate, for effecting which confirmation is only applicable. 208. Discharge of Executor.-No formal exoneration of an executor is necessary; if he be sued by creditors or others interested, he may competently plead that the inventory in the testament-dative is exhausted by lawful payments, if not by mere decrees ordaining him to make payment. If there be any debts given up in the inventory as due to the deceased which have not been received by the executor, he will be exonerated as to these by producing decrees against the debtors, and by assigning such decrees to the creditors so suing him.(q) (k) Bell's Lect. p. 1045; Ersk. 3, 9, 38. (1) M'Laren, § 1738; Bones, 21st Dec. 1866, 5 Macp. 240. (m) Nicol, 10th June, 1856, 18 D. 1000; M'Laren, § 1685 (n) Bell's Lect. p. 1046. INTESTATE SUCCESSION IN PERSONAL ESTATE IN ENGLAND. With a view to aid to a better understanding of the answer based on English law given in the preceding table, the following statement of the leading principles and maxims of that law respecting succession has been compiled and taken from various standard works. DEFINITIONS AND GENERAL RULES. 209. Real and Personal Estates.-These terms coincide in many particulars with the terms "heritable and moveable" in the law of Scotland; but they are by no means synonymous in their extent and application. (a) In the law of England, lands, houses, and all immoveable property were formerly called tenements or things held; they were also called hereditaments, because on the death of the owner they devolved by law to his heir. So that the phrase, "lands, tenements, and hereditaments," was used to express all sorts of property of the immoveable class, and the expression is still in use. The other, or moveable class of property, was known by the name of goods or chattels. In later times, lands and tenements were designated real property, more from the nature of the legal remedy for their recovery than because they are real things; and, on the other hand, goods and chattels were called personal property, because the remedy for their abstraction was against the person who had taken them away. The division of property into corporeal and incorporeal also obtains in English law: the former comprehending all things which are visible and tangible, and the latter what are not so. Thus, a house is corporeal, but the rent payable for it is incorporeal. Real property is divided into freehold and copyhold. Freehold is the popular name given to land held of the crown by virtue of the Act 12 Car. II. c. 24. In nearly every case a (a) Robertson on Personal Succession, 307. freeholder holds his estate by the service of mere fealty. Freehold estates are subdivided into freeholds of inheritance, and freeholds for life, and the former are further divided into estates in feesimple and estates in fee-tail. Where a title is to A and his heirs or heirs-general, the right is fee-simple; where to A merely, it is freehold for life. An estate tail is a larger estate than an estate for life, as it may endure so long as the first owner of the estate has any issue of the kind mentioned in the deed. It somewhat resembles the entail tenure in Scotland. Copyhold is the name given to property held by the custom of some manor by record of Court Roll. Formerly copyholders held their property at the will of the lord of the manor; but now, so long as the copyholder complies with the custom, he cannot be deprived of his tenancy. The right is practically as secure as a freehold. Each manor has its own peculiar customs. Personal property has been generally defined as anything that can be killed, eaten, stolen, broken, or burnt, and particularly stolen, as it is pointed out that no man, however feloniously disposed, can run away with an acre of land.(b) In questions regarding succession between the heir and executor, the following distinctions are to be noticed: "Leases or leasehold estates for a term of years, and whether limited to heirs or not, are personalty, and go to the executor; also a lease pur autre vie, but the heir of the lessee may take as special occupant. The following also are personal property: Rights of presentation to church livings; annuities, even when limited to the heir, unless they issue out of land; copyrights and patent rights; mortgage debts-i.e., debts due to the mortgagee; estates by elegit; deer in a park-i.e., a park by prescription; conies in a warren; doves in a dove house; fish in a pond, if the deceased was owner of the freehold. Canal shares, &c., are real at common law, but in almost all instances special statutes have declared them personal. The right of the heir or executor to fixtures varies according to the nature of the interest which the deceased had in the freehold— whether he was tenant in fee, tenant for life, tenant for years, &c.(c) 210. "Executors" and "Administrators."-These terms are analogous to the terms "executor-nominate" and "executordative" in Scotch law. Administrators are appointed (1) whenever (b) Williams on Real Property, 1, 5, 10, 34; Paterson's Comp. pp. 10-69. (c) Pat. Comp. p. 239. an intestacy occurs, or (2) whenever a will is left which does not appoint an executor, or to which there is no executor capable of acting or willing to act. In the first case the person appointed is styled simply administrator, but in other cases his title is qualified according to his appointment, which may be "administrator with a will," "administrator de bonis non"-i.e., of the effects left unadministered by a former administrator, "administrator during minority," "pendente lite," "durante absentia," and some others.(d) 211. Executor de son tort-Is a person who, without authority, interferes and acts as administrator, by which he subjects himself to all the liabilities, but has few of the privileges of, an executor. The term generally corresponds with a vitious intromitter in Scotch law. (e) 212. Vesting of Succession.-In the case of an executor the personal estate vests from the date of the death, but in the administrator from the date only of the letters of administrationhis title, however, for many purposes, relating back to the date of death.(ƒ) 213. Next-of-Kin: Who these are. The question who are the next-of-kin under the Statute of Distributions is decided by the rules of the civil law. But there is no difference between the rules of the civil and those of the canon law, except in reckoning the collateral line. In that line the computation by the civil law is made by counting upwards from either of the persons related to the common stock, and then downwards again to the other, reckoning a degree for each person, ascending and descending; while the computation by the canon law is made by beginning at the common ancestor, and reckoning downwards, and in whatever degree the two persons or the most remote of them is distant from the common ancestor, that is the degree in which they are related to each other.(g) The following diagram shows the operation of the above rules according to both laws; the numeral letters at the top denote the degree of kindred by the civil law, and the figures at the bottom the degrees by the canon law: (d) Horsey's Exers. 155. (e) Pat. Comp. p. 232. (f) Pat. Comp. p. 227. (g) 2 Black's Com. 207; Allnutt, 176; Rob. on Per. Succ. 329. Upon this diagram it has to be observed that although the children and parents of the intestate are both in the first degree of kinship, the children are preferred; of those in the second degree the brothers are preferred, and next in order are uncles or nephews, and lastly cousins. In the Statute of Distributions the words "legal representatives" are not used for next-of-kin, but for the children of the deceased or their children only, or the descendants of the next-of-kin; the statute means persons substituted in the place of others deceased.(h) 214. Half-Blood.-A brother or sister of the half-blood, whether by the father or mother's side, shares equally with the whole blood, both being equally near-of-kin to the deceased.(?) (h) Allnutt, p. 380. (i) Williams' Executors, 1348 |