EXECUTORS AND ADMINISTRATORS, in English law, those persons upon whom the property of a deceased person both real and personal devolves according as he has or has not left a will. An executor can only be appointed by the will of his testator and the estate of his testator vests in him from the date of the testator's death. An administrator on the other hand is appointed by the probate division of the High Court and no estate vests in him till such appointment, the title to the property being vested till then in the judge of the probate division. Since the Administration of Estates Act 1925 this is the case whether the property be personalty or realty. As to whom the court will appoint administrators and the various kinds of administrators see ADMINISTRATION. Apart from these two points the rights and liabilities of executors and administrators are the same, and they may be indifferently referred to as the representatives of the deceased. Before the Land Transfer Act 1897 the real estate of the deceased did not devolve upon the representative but vested directly in the devisee or the heir-at-law, but by that Act it was provided that the personal representative should also be the real representative. Under this Act legal estates in copyhold and fees tail did not vest in the deceased's personal representatives, but now copyhold tenure is abolished and by the Administration of Estates Act 1925 fees tail, whether in land or goods, vest in the owner's executors if he disposes of them by his will. As the representative stands in the shoes of the deceased he is entitled to sue upon any contract or for any debt which the deceased might have sued in his lifetime.
2. Administration (which includes probate) will now be granted to not more than four persons. A person appointed executor by the will of another cannot be compelled to act as executor unless he intermeddles with the testator's assets; but he can be called upon either to take out probate or renounce. Where administra tion has been improperly granted all acts done by the persons to whom it is granted in due course of administration before the grant is revoked are valid.
3. Strictly speaking he should compile an inventory of all the estate of the deceased, whether in possession or outstanding, and he is to deliver it into court on oath. He is to collect all the assets so inventoried and in his discretion to commence actions to get in all those outstanding. It is necessary to file an affidavit setting out the value of the estate of the deceased upon applying for a grant of probate or letters of administration. The repre sentative must pay the debts of the deceased to the extent of the assets real and personal which he has received or which he might have received but for his own wilful default. Realty and personalty are now equally liable for the payment of the de ceased's debts. Formerly intricate rules as to the priority of payment of debts applied at least to personal assets. These rules are not expressly abolished where the estate is solvent, but there they are of no importance. Where the estate is insolvent the deceased's debts of all kinds are payable according to the rules applicable in bankruptcy whether the estate is wound up by the personal representatives or by the court (Administration of Estates Act 1925; see also BANKRUPTCY) . Though the creditors can, if necessary, take all the estate of the deceased to satisfy their claims, yet as between the various classes of assets the representative must pay the debts out of assets in the following order: (i.) Property not disposed of by will; (ii.) property dis posed of by a residuary gift ; (iii.) property specifically appro priated by the will for the payment of debts; (iv.) property charged with and left subject to the payment of debts; (v.) general legacies; (vi.) specific legacies and devices; (vii.) property over which the will exercises a general power of appointment and fees tail of which the testator was life tenant and which he dis poses of by will.
4. The debts of the deceased being satisfied, the representative must next proceed to satisfy the legacies and devises left by the testator. In order to enable him to do this with safety to himself, it is provided that he cannot be compelled to divide the estate among the legatees or next of kin until 12 months from the death of the deceased (this is commonly known as "the executor's year"), though if there is no doubt as to the solvency of the estate he may do so at once. As a further protection the repre sentative may give notice by advertisement for creditors to send in their claims against the estate, and on expiration of the notices he may proceed to divide the estate, though even then the creditor may follow the assets to the person who has received them and recover for his debt. As between legatees the following priorities must be observed: (1) Specific legatees and devisees, (2) demonstrative legatees and (3) general legatees. Formerly real estate was not liable for the payment of general legacies. Now all the testator's property is treated as a single fund and general legacies are payable out of it without any charge.
5. The residue, after all the legacies and devises are satisfied, must, if there be a will, be paid to the residuary beneficiary therein named, and if there be no will it is divisible among the statutory next of kin. (See INTESTACY.) It was held at one time that in default of a residuary legatee the residue fell to the exec utor himself, but now nothing less than the expressed intention of the testator can give it to him.
The liabilities of the representative may be shortly stated. He is liable in his representative capacity in all cases where the de ceased would be liable were he alive. To this general rule there are some exceptions. The representative cannot be sued for breach of contract for personal services which could be performed only in the lifetime of the person contracting, nor again can he be sued in a case where unliquidated damages only could have been re covered against the deceased. He is liable in his personal capacity in the following cases : if he contracts in writing to pay a debt due by the deceased, or if having admitted that he had assets in his hands sufficient to pay a debt or legacy he has misapplied such assets so that he cannot satisfy them; or lastly, if by mismanaging the estate and effects of the deceased he has made himself liable for a devastavit. Shortly stated, a representative is bound to exercise the ordinary care of a business man in administering the estate of the deceased, and he will be liable for the loss to the estate caused by his own negligence, or by the negligence of a which his act or neglect has rendered possible. Though the general rule of delegates non potest delegari holds good of a representative, yet in certain cases he may "rely upon skilled persons in matters in which he cannot be expected to be experienced," e.g., he may employ solicitors to conduct a lawsuit.
The privileges of the representative are these: he may prefer one creditor to another of equal degree ; he may retain a debt owing to him from the deceased as against other creditors of equal degree (see RETAINER) ; he may reimburse himself out of the estate all expenses properly incurred in the execution of his trust.
An executor de son tort is one who, without any title to do so, wrongfully intermeddles with the assets of the deceased, dealing with them in such a way as to hold himself out as executor. In such a case he is subject to all the liabilities of an executor, and can claim none of the privileges though recent legislation seems to have conferred upon him the right to retain. He may be treated by the creditor as the executor, and, if he is really assuming to act as executor, creditors and legatees will get a good title from him, but he is liable to be sued by the rightful representative for dam ages for interfering with the property of the deceased. (J. A. ST.) Scotland.—Executor in Scots law is a more extensive term than in English. He is either nominative or dative, the latter appointed by the court and corresponding in most respects to the English administrator. Caution is required from the latter, not from the former. By the common law doctrine of passive repre sentation the heir or executor was liable to be sued for implement of the deceased's obligations. The Roman principle of beneficium inventarii was first introduced by an Act of 1695. As the law at present stands, the heir or executor is liable only to the value of the succession, except where there has been vitious intromission in movables, and in gestio pro Iiaerede (behaviour as heir) and other cases in heritables. The present inventory duty on suc cession to movables and heritables depends on the Finance Acts 1894--19o9. (See ESTATE DUTIES.) All debts are payable pari passe except privileged debts. (See PRIVILEGE.) (X.) In the great majority of the States of North America, special courts have been established by statute and invested with juris diction over the administration of the estates of deceased persons. These courts are commonly denominated as probate, orphans' or surrogate courts. The court of the county in which the deceased was resident at the time of his death is primarily entrusted with the duty of administration. It is the law of that State which will govern the devolution of his property. Other States in which the deceased may have had assets will order their distribution according to the law of the deceased's domicile. The executor or administrator, however, is only an officer of the court which confirms his appointment, and letters testamentary or of administration have no legal effect outside the territorial limits of the State in which they were granted. Consequently, ancillary administration must be secured in order to collect assets of the estate in any jurisdiction in which the deceased was not a resi dent. Statutes provide for the ready appointment of ancillary administrators and often give preference in this respect to the domiciliary executor or administrator. Without such authority the domiciliary executor or administrator, though invested with title to the assets in the foreign State, has no right to remove them nor can he sue upon outstanding claims due to the deceased in order to reduce them to possession.
The fact of death and the deceased's residence within the county are essential to the validity of a grant of letters testa mentary or of administration. Statutes make provision for ad ministration of estates of persons who have disappeared for such a length of time as would lead to a presumption of their death. In the United States, contrary to the common law doctrine, an executor is not entitled to exercise his powers before the probate of the will and the grant of letters testamentary, though until that time he may perform such acts as may be necessary to pre serve the estate. Statutes also provide for revocation of powers granted to an executor upon proof of fraud or mismanagement in the conduct of his duties.
The executor's duty, broadly speaking, is to wind up the busi ness of the deceased and distribute the assets. He has no power, except under extraordinary circumstances or by leave of the probate court, to carry on the business or change the character of the deceased's investments. He must file an inventory of the deceased's assets within a period commonly prescribed as be tween three and six months. Statutes impose upon him a duty to give notice to creditors of the deceased to present their claims. Failure to present claims within a stipulated time operates to bar them. The deceased's estate is liable upon all contract claims except those where death operates as an excuse for non-per formance. Statutes have generally changed the common law rule absolving the estate from liability for torts committed by the deceased during his lifetime. Obligations incurred by the executor in behalf of the estate after the death of the testator impose a liability upon the executor and not upon the estate, though in proper cases he can demand reimbursement from the estate. The executor must render an account to the probate court of his administration of the estate. Statutes usually provide that a final settlement cannot be demanded of the executor until the expiration of a year or 18 months.
At common law realty descended to the heirs and could not be sold by the executor for the payment of the deceased's debts unless the deceased had specified to the contrary. In most States to-day, though the realty still descends to the heirs, the executor or administrator is authorized to apply to the court and obtain leave to sell real estate in order to pay debts. Such legislation may make the realty equally liable with the personalty for the payment of debts or provide that the personalty must first be exhausted before recourse may be had against the realty. So much of the realty as consists of homestead rights is exempted from this liability and preserved for the benefit of the widow or children. Where the estate is insolvent the problem as to what debts should first be satisfied and what preferences may be made by the executor as between competing creditors is now governed by legislation which has abrogated much of the ancient common law doctrine. The order in which legacies are to be paid, how 1 ever, generally follows the common law principles.
The executor's compensation is usually governed by statutes allowing a certain percentage upon the value of the estate. In the absence of statute he is entitled to a reasonable allowance which is determined by the probate court.
American jurisdictions have been unfriendly to the common law doctrine of executors de son tort. Some States have expressly abolished the institution; the courts of other States by regard ing the extensive statutory regulation of executors and adminis trators as a completed system that superseded common law doc trines have treated such legislation as impliedly abolishing the office of executor de son tort. Still other States by judicial decision have narrowed the broad liabilities imposed upon him at common law. (J. M. LA.)