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*BOOK THE THIRD.

OF THE APPOINTMENT OF EXECUTORS, AND THE ACCEPTANCE OR REFUSAL OF THE OFFICE.

Definition of

The word executor, as the term is at present accepted, may be defined to be, the person to whom the execution of a last will and term "executor." testament of personal estate is, by the testator's appointment, confided (d). "To appoint an executor," says Swinburne (e), "is to place one in the stead of the testator, who may enter to the testator's goods and chattels, and who hath action against the testator's debtors, and who may dispose of the same goods and chattels, towards the payment of the testator's debts, and performance of his Will." 1 The bare nomination of an executor, without giving any titles will to pro- legacy, or appointing anything to be done by him, is sufficient to make it a will, and as a will it is to be proved (ƒ).2

Bare nomination of executor en

bate.

(d) 2 Black. Comm. 503. Farrington v. Knightly, 1 P. Wms. 548, 549. Toller, 30.

(e) Swinb. Pt. 4, s. 2, pl. 2. Brownrigg v. Pike, 7 P. D. 61-64.

1. It may be essential to administer upon the estate of a decedent in more jurisdictions than one. The executor being appointed to stand in the place of the testator, the question arises at times as to in what jurisdiction such executor is accountable. As a general rule, the distribution of personal property must be made according to the law of the place of the testator's domicil. Harvey v. Richards, 1 Mason 381, 407; Normand v. Grognard, 2 C. E. Gr. 425.

However, it is held that where there are domestic creditors of the estate, the

2. Where the question is raised as to whether a will effectively appoints a person named therein executor, the intention of the testator must be gathered from the words of the will, free of conjecture, under the guidance of precedents and

payment of the debts may be decreed out of the estate in the hand of the resident executor. Dawes v. Boylston, 9 Mass. 337; Richards v. Dutch, 8 Id. 506; Harvey v. Richards, ubi supra.

In some states, it has been held, however, that for the purpose of the payment of legacies, in making distribution, the surplus of the estate must be remitted to the place of domicil. But it would seem to be the better rule that such question is not a question of jurisdiction, but of judicial discretion, under the circumstances of each particular case. Despard v. Churchill, 53 N. Y. 192, 200; Normand v. Grognard, ubi supra.

(f) Godolph. Pt. 2, c. 5, s. 1. Brownrigg v. Pike, 7 P. D. 61-64. In the Goods of Lancaster, 1 Sw. & Tr. 464.

rules of law. Myers v. Eddy, 47 Barb. 263; Terpening v. Skinner, 30 Id. 373. And where the words of a will are plain the intent always follows. Therefore, where the words in question are, "Prior to my decease," the fact that the persons

269

*CHAPTER THE FIRST.

WHO IS CAPABLE OF BEING AN EXECUTOR.

Generally speaking, all persons who are capable of making wills, and some others besides, are capable of being made execu- Who may be an tors (a). From the earliest time it has been a rule, that executor. every person may be an executor, saving such as are expressly forbidden (b).

The King.

It seems to be admitted that the King may be constituted executor; in which case he appoints such persons as he shall think proper to officiate the execution of the will, against whom such as have cause of action may bring their suits: also the King may appoint others to take the accounts of such executors (c). Thus, Katherine, Queen Dowager of England, mother of Henry the Sixth, made her last will and testament, and, thereof constituted King Henry the Sixth her sole executor: Whereupon the King appointed Robert Rolleston, keeper of the great wardrobe, John Merston, and Richard Alreed, esquires, to execute the said will, by the oversight of the Cardinal, the Duke of Gloucester, and the Bishop of Lincoln, or two of them, to whom they should account (d).

This seems to be so even though the will
deals only with reality: In the Goods of
Jordan, L. R. 1 P. & D. 555. But such
a will cannot be proved if no executor be
appointed: In the Goods of Bootle, L.
R. 3 P. & D. 177. Nor if the will be
that of a married woman in execution of
a power which relates only to real estate.
O'Dwyer v. Geare, 1 Sw. & Tr. 465. In
the Goods of Barden, L. R. 1 P. & D.
325. In the Goods of Tomlinson, 6 P.
D. 209. See In the Goods of Horn- .
buckle, 15 P. D. 149, 151. But the will
of a married woman dealing only with

mentioned though very aged, did not die
until after the death of the testatrix, is a
controlling circumstance in determining
that it was not her intention to have
others appointed in case of their death
after her death. Fosdick v. Delafield, 2

realty, but appointing executors, is en-
titled to probate where a portion of the
estate consists of personalty vested in her
by virtue of the Married Women's Prop-
erty Act, 1882: In the Goods of Cubbon,
11 P. D. 169. Or of property to which
she is entitled as separate estate: Brown-
rigg v. Pike, 7 P. D. 61. See also in the
Goods of Hornbuckle, 15 P. D. 149. See
ante, p. *58, *162.

(a) 2 Black. Comm. 503.
(b) Swinb. Pt. 5, s. 1, pl. 1.
(c) Godolph. Pt. 2, c. 1, s. 2.
(d) 4 Inst. 335.

Redf. 392, 403; Cheeseman v. Wilt, 1
Yeates 411; Carr v. Jeannereth, 2 Mc-
Cord 66; Jenkins v. Van Schaack, 3
Paige 242; Van Ostrand v. Moore, 52 N.
Y. 12.

Corporations.

Doubts have been entertained whether a corporation aggregate can be executor; principally because they cannot prove a will, or at least cannot take the oath for the due execution of the office (e).1 But there are authorities in *favour of the capability (f); and it is said to be now settled, that on their being so named, they may appoint persons styled syndics, to receive administration with the will annexed, who are sworn like other administrators (g). No doubt appears ever to have been entertained, but that a corporation sole may be executor (h). Where a testator in India nominated his brother, and "Messrs. Cockerell & Co., East India agents, London," and one A. B., to be his executors, and before his death the firm of Cockerell & Co., which consisted of four members, had been dissolved, Sir H. Jenner Fust held that the appointment was not of the firm collectively, but of the persons composing it individually, and that each of the members was entitled to be joined in the probate with the other executors (i).

A partnership firm.

By the "Naturalization Act, 1870," an alien has the same capacity of taking, acquiring, holding and disposing of property as if he were a natural-born British subject (k), and is therefore capable of being an executor (1).2

Aliens.

(e) 1 Black. Comm. 477. Com. Dig. Admon. B. (2). Went. Off. Ex. c. 1, p. 39, 14th edit. The other grounds of the last author's doubt are stated to be: 1st, Because they cannot be feoffees in trust, to others' use: 2ndly, They are a body framed for a special purpose.

1. In Georgetown College v. Brown, 34 Md. 450, it is expressly held that letters testamentary or of administration

(ƒ) Swinb. Pt. 5, s. 9. Godolph. Pt. 3, c. 1, s. 1. 1 Roll. Abr. tit. Executors, T. 7, citing 12 E. 4, 9, b.

(g) 3 Bac. Abr. by Gwillim, p. 5, tit. Executors, A. 2. Toller, 30, 31. In the Goods of Darke, 1 Sw. & Tr. 516. But the grant will not be made until the appointment of Syndics is before the Court, ibid.

(h) Godolph. Pt. 2, c. 6. Wentw. Off. Ex. p. 39, 14th edit. See In the Goods of Haynes, 3 Curt. 75.

will not be granted to a corporation, nor, according to the English practice, will a corporation when named executor, be allowed to designate a person to receive administration with the will annexed. So in Maryland, the right of administration cannot be delegated. But in Delaware a corporation may be authorized to administer on the estate of a decedent. Fidelity Insurance, &c., Co. v. Niven, 5

(i) In the Goods of Fernie, 6 Notes of Cas. 657.

(k) See stat. 33 & 34 Vict. c. 14, s. 2. See ante, p. *9.

(1) As to the question of the capability of aliens to be executors prior to the passing of the above Act, see the former editions of this work, Pt. I. Bk. III. Ch. I.

2. "Letters of administration are not of necessity to be granted within the limits of the jurisdiction: the granting

An infant may be appointed executor, how young so ever he be (in), and even a child in ventre sa mere (n), (who is considered

Infants.

in law, to all intents and purposes, as actually born) (0), inasmuch that when such is so appointed, if the mother bring forth two

Del. 416. It is clear that corporations or societies cannot be the administrators of an estate, the societies being beneficiaries under the will and entitled to

the property. Matter of Thompson's Estate, 33 Barb. 334.

In Porter v. Trall, 3 Stew. (N. J.) 106, the question is raised whether a corpora

thereof being not a judicial but a ministerial (and therefore not a local) act, wherein the bishop acts, as a person designated and appointed by law." Grimke's Law of Executors, p. 193, 16.

It is not essential that an executor should be a resident of the jurisdiction in which the will is probated. For both by the common law and by statute, in some of the states, it is held that an executor may be an alien and that he may be resident out of the King's allegiance, and yet he may be qualified to hold his trust. It is said in Wisconsin that this liberal and beneficial common law dictum, and the rights flowing from it, is too sacred to be swept away by construction. And in Wisconsin the language of the Wills Act is, "if any executor shall reside out of this state," clearly indicating that the executor need not be a resident of Wisconsin. Cutler v. Howard, 9 Wis. 309. And the New York statute (2 R. S. 70, 7) contemplates that a non-resident, being appointed executor, may receive letters testamentary. McGregor v. McGregor, 1 Keyes 133.

The same may be said as to administration. The fact that the applicant for administration is not a citizen and resident of the state, is no legal objection to his appointment as administrator, unless there be special statutory provision of the state to that effect. Ex parte Barker,

tion can be an executor in New Jersey, but the point was not decided:

(m) Wentw. Off. Ex. c. 18, p. 390, 14th edit. Swinb. Pt. 5, s. 1, pl. 6. (n) Godolph. Pt. 2, c. 9, s. 1.

(0) 2 Saund. 387, note to Purefoy v. Rogers.

2 Leigh 719, 720; Jones v. Jones, 12 Rich. 623. This was the common law rule. McClaurin v. Thompson, Dud. 335.

But in Kentucky, the fact that the widow is a non-resident of the state, though her husband resided in Kentucky, is sufficient reason for rejecting her claim, where, by statute, the widow is entitled to administration, and granting administration to another. Radford v. Radford, 5 Dana 156. But see Thompson v. Hucket, 2 Hill (S. C.) 347.

However, in New Hampshire, where two persons are of the same relationship to the deceased, and one resides within the jurisdiction and the other resides without, ordinarily the one residing within is entitled to the administration; but where such applicant makes a claim against the estate, which is disputed by the heirs, it is properly within the discretion of the judge to appoint the one residing out of the state. Pickering v. Pendexter, 46 N. H. 69.

But it is held in Illinois that a nonresident cannot be legally appointed administrator on an estate within that commonwealth, not even upon the estate of a non-resident dying abroad and leaving effects in Illinois. Child v. Gratiot, 41 Ill. 357.

But in Pennsylvania, the mere fact that an executor resides beyond the jurisdiction of the court, does not give to the

-38 Geo. III. c. 87: sole executor cannot act till 21 years old:

or three children at that one birth, they are all to be admitted executors (p).3 But if an infant *be appointed sole executor, by statute 38 Geo. III. c. 87, s. 6, he is altogether disqualified from exercising his office during his minority, and administration, cum testamento annexo, shall be granted to the guardian of such infant, or to such other person as the court shall think fit, until such infant shall have attained the age of twenty-one years (9). This act only applies in case of an infant being sole executor; for if there are several executors, and one of them is of full age, no administration durante minore ætate ought to be granted; for he who is of full age may execute the will (r).

whether if an infant executrix take husband of

have the execu

It has been said, that if it be a woman infant who is made executrix, and if her husband be of age and assent, it is as if she were of and her husband shall have the execution age, full age he shall of the will(s): and in Prince's Case (t), it was resolved by the justices of the Common Pleas, that if administration be committed during the minority of the executrix, and she take husband of full age, then the administration shall cease.4 But this has since been doubted (u).

tion.

(p) Godolph. Pt. 2, c. 9, s. 1.

3. It has been held in Pennsylvania that a child en ventre sa mere is for all purposes, for his own benefit, considered as absolutely born. Such child, therefore, Swift v. Duffield,

may be an executor.
5 Serg. & R. 38, 40; McKnight v. Read,
1 Whart. 213, 220.

But, in North Carolina, an infant of tender years is not capable of being an executor. Bailey v. Miller, 5 Ired. 444.

(q) See In the Goods of Stewart, L. R. 3 P. & D. 244. Post, Pt. I. Bk. V. Ch. III. III. Before the passing of this act the law considered him capable of acting as executor at the age of seventeen: Godolph. Pt. 2, c. 9, s. 2. Swinb. Pt. 5, s. 1, pl. 6.

(r) Pigot and Gascoigne's case, cited Brownl. 46. Foxwist v. Tremaine, 1 Mod. 47, by Twysden, J. See further,

Register or the Orphans' Court the right to demand of him a bond conditioned for the

post, Pt. I. Bk. V. Ch. III. III. as to infant executors and administration durante minoritate. See also 2 Williams' Notes to Saunders, 637.

(s) Wentw. Off. Ex. c. 18, p. 392. Toller, 31.

(t) 5 Co. 29, b.

4. A man who marries a woman who is an executrix becomes by the marriage an executor in her right, and renders himself a trustee with her of the assets of the estate, and as such he may be compelled to account. Wood v. Chetwood, 12 C. E. Gr. 311, 313. Linsay v. Linsay, 1 Desaus 150. Of course it follows from this that there can be no question that where a bill is brought against a married woman as executrix her husband is a necessary party. Wood v. Chetwood, ubi supra.

(u) See post, Pt. I. Bk. V. Ch. III. § III.

proper performance of his duties as executor. Harberger's Appeal, 98 Pa. St. 29, 33.

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