refuses to administer, she will not be bound after her husband's death to continue the administration because her husband carried it on.

Outlaws are sufficient executors, because in suing as executors they do not sue in their own right. Insolvent persons are also capable, subject to this limitation, that the Chancery Division may be asked to restrain an insolvent executor from acting, and to appoint a receiver, unless the testator knew of the insolvency and preferred to have an insolvent executor. And, lastly, lunatics and idiots, and persons who, having been brought up as Christians, have twice been convicted of advisedly denying the Christian religion to be true, or the Holy Scriptures to be of divine authority, are utterly incapable of being executors or administrators.1

A will may appoint one or more executors, and that either absolutely or conditionally, and the contingency of the firstappointed executor or executors refusing to act or not acting may be provided for by appointing another, or others, to be executor or executors on the happening of that contingency,2 or the testator may give a legatee power to nominate executors, or the survivor of the executors named in his will power to appoint another or other executors. Any appointment of executors, or any revocation of such appointment, may, it is now admitted, be made by codicil.

3

In old wills it sometimes happened that coadjutors to the executors were appointed; but as a coadjutor had no power except that of giving advice, to which the executors were not even obliged to listen, the practice has become almost altogether obsolete.

An executor may either be appointed by express words or by implication, or as it is sometimes called, according to the tenor. Express appointments call for no remark. The rule as to appointments according to the tenor is this: that any words

19 & 10 Will. III. c. 35, as altered by 53 Geo. III. c. 160. 2 Smith v. Crofts, 2 Cas. temp.

Lee, 557.

3 Jackson v. Paulet, 2 Rob. 344.

in the will which betoken a wish that a certain person should have the rights and perform the duties of executor is an appointment. A direction to A. to pay all debts, or to administer all the property, or to dispose of it, or a gift of legacies and devises followed by an appointment "to receive and pay the contents above mentioned," would be a sufficient appointment of the person or persons named.1 But the Court will not grant probate as executor to a person named trustee in a will, unless it is clear from the will that the testator intended the trustee to pay the debts, and generally to administer his estate.2

There are other cases in which an appointment is clearly implied, as if the testator appoint "A. to be his executor if B. will not," or as B. is dead." In such a case if B. will act, or if he be not really dead, he is executor, and may have probate in preference to A.3

When several executors of a will are appointed and prove the will, on the death of any of them the office, being joint, survives, and the legal personal representatives of none of the executors who predecease their colleagues have any right to interfere in the administration of the estate of the original testator. Formerly, if some only of the executors proved the will, on the decease of them, another executor who had not proved might come in and prove; but this is now altered.*

Upon the death of the only or last surviving executor or executrix, although married, of those who have proved, the representation of the testator is continued to the executor of that executor, or executrix, who is as much the executor of the original testator as if he had been nominated by the will of the original testator. But if the only or last surviving executor die without appointing any executor to himself, the administrator who is appointed by the Probate Division to administer his

estate does not continue the representation of the original testator, and must not intermeddle with the estate of the latter in any way. In such a case the Probate Division appoints an administrator de bonis non to administer the estate of the original testator in so far as it is not already administered. But until such a break in the chain of representation occurs the representation of the original testator may be carried on by a long chain from executor to executor. The only case in which an administrator represents the original testator is where he is an administrator durante minore ætate of the executor of an executor.1

But there is no executorship for the purposes of transmission until proof of the will, and therefore if the executor appointed die without proving the will, his executor is not executor of the original testator, whose estate must be administered by an administrator cum testamento annexo appointed by the Court.

An executor de son tort is one who, without having been appointed executor or administrator, wrongfully takes upon him to meddle with the estate of the deceased, or to act as owner or disposer of any part of the estate. Very little has been held to constitute the meddler an executor de son tort. Milking a cow, killing cattle, asking for payment of a debt due to the deceased, taking payment, carrying on the trade of the deceased, suing as executor, and many other like acts have been held to constitute the offender an executor de son tort,2 and by the statute 43 Eliz. c. 8, after reciting that creditors are delayed by executors de son tort dealing with dead men's estates by the fraud of the persons who should administer them, it is enacted that whoever should obtain or release any goods or debts of such estates, without equal consideration or in payment of just debts, shall be chargeable as an executor de son tort, deducting, however, all debts paid by him or due to himself and other lawful payments made by him.

11 Freem. 287; Williams on Exors. Pt. 1, bk. 3, ch. 4, p. 259.

2 Dyer, P. 1662; Robin's Case, Noy. 69; Godolphin, Pt. 2, c. 8, s. 1-4.

Mere dealing with the estate of the deceased as owner will not make the meddler an executor de son tort if there be a legal personal representative of the deceased in existence, but it will make the meddler a trespasser or liable in trover.1 It has been said that if the meddler claims to act or meddle as executor while there is a legal executor or administrator in existence, he will be an executor de son tort, but this has been denied by several judges.2

As the liabilities in law of an executor de son tort are heavy the law does not make an innocent person an executor de son tort, but regards the intention with which the acts relied upon to prove such an executorship are done. Therefore if the dealing with the deceased was done by mistake, or under a bonâ fide although erroneous claim of another right, for instance as mortgagee, or as holder of a lien, or as agent of one who is a lawful executor either at the time of the dealing or afterwards, or as an innocent purchaser from an executor de son tort, or merely by way of kindness, as ordering the funeral or doing other necessary or reasonable acts, such a dealing will not make the person so dealing as executor de son tort.3

cutor.

An executor de son tort may be sued by a creditor or legatee charging him to be executor generally, and that either as a sole defendant or as a co-defendant with the legal exeIf the executor de son tort plead that he is not executor, and he be proved to be executor de son tort, he will then have the ordinary liabilities of an executor, and the common judgment will pass for the plaintiff, recoverable out of the testator's assets if the defendant has sufficient of them, and if not, out of his own assets. But although the plea of ne unques executor will not avail him, yet if he plead plene administravit and support the plea as an ordinary executor might do, by showing that he has administered, in due course of administration, all

the assets that have come to his hands, or that before action brought he paid them over to the legal personal representative of the testator, he will not be personally charged by the judgment for the debt.1

An executor de son tort cannot acquire any right of retainer for his own debt, even though the legal personal representative of the deceased should assent to such retainer, and of course he cannot plead it; but if he take out letters of administration afterwards, even after action brought, he may then retain, and plead the right of retainer.2

The liability of an executor de son tort, in an action against him for the assets he has received, by the legal personal representative of the deceased is somewhat different. In such an action the defendant cannot plead plene administravit, but he may prove, in diminution of damages, that he has duly administered, and such payment will be allowed in diminution or extinction of damages if the assets of the deceased are sufficient to pay all his debts. But even in that case the plaintiff will be entitled to a verdict for nominal damages.3

If an executor de son tort acts generally as executor, a person to whom he aliens some of the assets and who receives them in good faith appears to acquire a good title, if the alienation took place in the due course of administration; but although it is laid down in some of the older cases that all lawful acts of an executor de son tort are good, yet one who becomes an executor de son tort by a solitary act of seizure of a part of the assets cannot by aliening that part pass the property in it to the alienee.1

As the wrongful acts of an executor de son tort will be legalized by his obtaining a grant of administration afterwards, he may in this way acquire a right of retainer for his own debt in preference to other creditors.a

1 Godolphin, Pt. 2, c. 8, s. 2; Eyre v. Eyre, 1 Ch. Cas. 33 Hill v. Curtis, L. R. 1 Eq. 90.

2 Vaughan v. Broune, 1 Stra. 1106.

3 Mountford v. Gibson, 4 East

447.

4

Thomson v. Harding, 5 Ell. & B. 630; Mountford v. Gibson, 4 East 447; Curtis v. Verson, 3 T. R. 590.