*The bare nomination of an executor, without giving any 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) come incapacitated, or unwilling longer to serve, or two persons may be appointed to act for a definite period or during the minority, or during the absence from the country of one appointed executor. Hartnett v. Wandell, 60 N. Y. 346, 351. In Hill v. Tucker, 13 How. (U. S.) 466, Mr. Justice Wayne says: "The executor's interest in the testator's estate is what the testator gives him. That of an administrator is only that which the law of his appointment enjoins. The testator may make the trust absolute or qualified in respect to his estate. It may be qualified as to the subject-matter, the place where the trust shall be discharged, and the time when the executor shall begin and continue to act as such. He may be executor for one or several purposes,- for the part of the effects in possession of the testator at the time of his death, or for such as may be in action, if it be only for a debt due. But though the executor's trust or appointment may be limited, or though there are several executors in different jurisdictions, and some of them limited executors, they are, as to the creditors of the testators, executors in privity, bearing to the creditors the same responsibilities as if there was only one executor. The privity arises from their obligations to pay the testator's debts, wherever his effects may be, just as his obligation was to pay them. The executor's interest in the testator's estate, is derived from the will, and vests from the latter's death, whatever may be the form which the law requires to be observed before an executor enters upon the discharge of his functions. When within the same political jurisdiction, however many executors the testator may appoint, all of them may be sued as one executor for the debts of the testator, and they may unite in a suit to recover debts due to their testator, or to recover property out of possession. All of them, then, having the same privity with each other, and the same relation to the testator, and the same responsibility to creditors, though they may have been qualified as executors, in different sovereignties, an action for a debt due by the testator, against any one of them in that sovereignty where he undertook to act as executor, places all of them in one relation concerning it, and as to the remedies for its recovery, what one may plead to bar a recovery, another may plead; and that which will not bar a recovery against any of them, applies to all of them. Between administrators deriving their commissions to act from different political jurisdictions there is no such privity."] (f) Godolph. pt. 2, c. 5, s. 1; In the Goods of Lancaster, 1 Sw. & Tr. 464. See, also, O'Dwyer v. Geare, 1 Sw. & Tr. 465; In the Goods of Jordan, L. R. 1 P. & D. 555. See, also, ante, 204. [227] be an ex *CHAPTER THE FIRST. WHO IS CAPABLE OF BEING AN EXECUTOR. GENERALLY speaking, all persons, who are capable of making Who may wills, and some others besides, are capable of being made executors. (a) From the earliest time it has been a rule, that every person may be an executor, saving such as are expressly forbidden. (b) ecutor. 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, Catherine, 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) tions. Doubts have been entertained whether a corporation aggregate Corpora- can be executor, (d1) principally because they cannot prove a will, or at least cannot take the oath for the due execution of the office. (e) But there are authorities in * favor of the capability; (f) and it is said to be now settled, that on their (a) 2 Bl. Com. 503. (b) Swinb. pt. 5, s. 1, pl. 1. [See post, 232, note (c), 235, note (q), 238, note (g).] (c) Godolph. pt. 2, c. 1, s. 2. (d) 4 Inst. 335. (d) [A corporation cannot be an administrator. Thompson's Estate, 33 Barb. 334; Georgetown College v. Brown, 34 Md. 450.] (e) 1 Bl. Com. 477; Com. Dig. Admon. B. 2; Wentw. Off. Ex. c. 1, p. 39, 14th ed. The other grounds of the last author's doubt are stated to be: 1st, because they cannot be feoffees in trust, to others' use; 2d, they are a body framed for a special purpose. (f) Swinb. pt. 5, s. 9; Godolph. pt. 2, c. 1, s. 1; 1 Roll. Abr. tit. Executors, T. 7, citing 12 E. 4, 9 b. 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 execu- A partnertor. (h) Where a testator in India nominated his brother, shíp firm. 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) It seems agreed that by our law an alien, or one born out of the king's allegiance, may be an executor; (k) though by Aliens. the civil law he cannot, unless so appointed in a military testament. (1) With respect to alien enemies, "it has long been doubted," says Lord C. B. Gilbert, in his history of the C. P., (m) "whether an alien enemy should maintain an action as executor; for, on the one hand, it is said, that, by the policy of the law, alien enemies-shall not be admitted to actions to recover effects, which may be carried out of the kingdom to weaken ourselves and (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. 1 Sw. & Tr. 516. (h) Godolph. pt. 2, c. 6; Wentw. Off. Ex. p. 39, 14th ed. See In the Goods of Haynes, 3 Curt. 75. necessarily disqualify an executor in Wisconsin. Cutler v. Howard, 9 Wisc. 309. So, there is no legal objection, in some states, to granting letters of administration to one who is a resident and citizen of another state. Ex parte Barker, 2 Leigh, 719; Jones v. Jones, 12 Rich. (S. Car.) 623. In others, a non-resident cannot be appointed administrator. Child v. Gratiot, (i) In the Goods of Fernie, 6 Notes of 41 Ill. 357; Radford v. Radford, 5 Dana, Cas. 657. (k) Caroon's case, Cro. Car. 8; Godolph. pt. 2, c. 6, s. 1. [The statute of New York, which provides that an executor shall not be an alien non-resident of the state, excludes only those who are both, not citizens of the United States, and non-residents of New York. A citizen of any state of the Union may take letters testamentary under the laws of New York, although he may reside in another state. McGregor v. McGregor, 3 Abb. (N. Y.) App. Dec. 86; S. C. 1 Keyes, 133; 33 How. Pr. 456. Non-residence does not 156. Where two persons are of the same relation to the deceased, and one resides in New Hampshire and the other does not, ordinarily, the one resident there is entitled to administration as of right; but if he makes a claim against the estate which is resisted by the heirs, it is properly within the discretion of the court in New Hampshire to appoint the one residing out of the state. Pickering v. Pendexter, 46 N. H. 69.] (1) Godolph. pt. 2, c. 6, s. 2. (m) P. 166; 3 Bac. Abr. 6, tit. Executors, A. 4. enrich the enemy, and therefore, public utility must be preferred to private convenience; but, on the other hand, it is said that those effects of the testator are not forfeited to the king by way of reprisal, because they are not the alien enemy's, for he is to recover them for others; and if the law allows such alien enemies to possess the effects, as well as an alien friend, it must allow them power to recover, since in that there is no difference, and, by consequence, he must not be disabled to sue for them; if it were otherwise it would be a prejudice to the king's subjects, who could not recover their debts from the alien executor, by his not being able to get in the assets of the testator. (n) *But now, on declaring war, the king usually, in the proclamation of war, qualifies it, by permitting the subjects of the enemy resident here to continue, so long as they peaceably demean them (n) It is said in Toller, pp. 33, 34, that although the cases are not uniform, yet it seems clear, on the whole, that alienage, with a relation to a hostile country, accompanied with residence abroad, or residence here without the king's permission, express or implied, clearly works a disability. It may, however, be remarked, without presuming to controvert this position, that the weight of authorities does not appear to be in favor of it. The earliest case on the subject is an anonymous one (probably it was Pascatia de Fountain's case, mentioned in Wentworth, p. 35, 14th ed.) decided in 31 Eliz. and reported in Cro. Eliz. 142, and Owen, 45. The action was debt by an executor; and the plea, that the plaintiff was an alien, born at Ghent under the allegiance of the king of Spain, the queen's enemy; and it was held a good plea. This is certainly a direct authority upon the point, but it seems the only one in favor of the disability; all the succeeding decisions are uniformly in favor of the executor's capacity. Thus, in Watford v. Masham (38 Eliz.), Moore, 431, and Brocks v. Phillips (41 Eliz.), Cro. Eliz. 684 (also cited by the court as adjudged in Caroon's case, Cro. Car. 9), the same plea, under the same circumstances, was held bad on demurrer. The next case is Richfield v. Udall (19 Car. 2), Carter, v. 48, 191, where the court agreed that an action by an alien enemy, as executor, lies; and Bridgman C. J. said he remembered Sir Stephen Le Sure's case, 11 Jac. 1, that any alien whatsoever may be execu tor. The last case on the subject is Villa Dimock (5 W. & M.), Skinner, 370, which was an action brought by an executor for work and labor, and the plea was, that both the testator and executor were alien enemies, born at such a place, under the obedience of the French king: to this the plaintiff demurred and had judgment, on the ground that it was not shown that the testator did not die before the war; and that the plaintiff might be executor, and the action attach in him before the war, and then, being dead before he became an alien enemy, the testator might have an executor; and the action being in auter droit, it should be maintained. The other cases cited by Sir S. Toller, it is submitted, with deference, do not apply; inasmuch as they merely decide the general question as to suits by alien enemies; whereas, the present inquiry is, whether, assuming an alien enemy to be generally incapable of suing, proprio jure, he may not still sue in auter droit, as executor, just as persons attainted or outlawed may. selves; and without doubt, such persons are to be deemed alien friends in effect. (o) And though an alien should come here after the war commenced, yet if he has been commorant here by the license of the king ever since, he may clearly maintain an action, (p) and consequently there seems no objection to his acting as executor. Infants. 38 Geo. 3, c. 87: sole executor cannot act An infant may be appointed executor, how young so ever he be, (q) and even a child in ventre sa mere, (r) (who is considered in law, to all intents and purposes, as actually born), (8) inasmuch that when such is so appointed, if the mother bring forth two or three children at one birth, they are all to be admitted executors. (t) But if an infant be appointed sole executor, by statute 38 Geo. 3, 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 spiritual court shall think fit, until such infant shall have attained the age of twenty-one years. (u) 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. (x) old: an infant take hus *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 age, and her husband shall have execution of the will: (y) and in Prince's case, (2) it was resolved by the justices of the common pleas, that if administration be committed during the minority of the (0) Co. Lit. 129 b, note by Hargrave. (p) Wells v. Williams, 1 Ld. Raym. 283; S. C. 1 Salk. 46; S. C. 1 Lutw. 34. (q) Wentw. Off. Ex. c. 18, p. 390, 14th ed.; Swinb. pt. 5, s. 1, pl. 6. (r) Godolph. pt. 2, c. 9, s. 1. (s) 2 Saund. 387, note to Purefoy v. Rogers; [Duncan J. in Swift v. Duffield, 5 Serg. & R. 40; Thompson v. Garwood, 3 Whart. 304; M'Knight v. Read, 1 Whart. 220.] (t) Godolph. pt. 2, c, 9, s. 1. (u) Post, pt. 1. bk. v. ch. 111. § 111. [p. 479, and note (el).] Before the passing of whether if executrix band of shall have the execu full age, he tion. 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; Piggot's case, 5 Co. 29 a. (x) Pigot & Gascoigne's case, cited Brownl. 46; Foxwist v. Tremain, 1 Mod. 47, by Twysden J. See, further, post, pt. 1. bk. v. ch. 111. § III. as to infant executors and administration durante minoritate, [p. 479, and note (ƒ).] See, also, 2 Williams's Notes to Saunders, 637. (y) Wentw. Off. Ex. c. 18, p. 392; Toller, 31. (z) 5 Co. 29 b. |