31 An executor, is he to whom another man commits the execution of his last will and testament. The appoint ment of an executor is essential to the making of a will, and it may be performed either by express words, or such as strongly imply the same ; but if the testator makes an incomplete will, by not naming an executor, or if he names incapable persons, or if the executors named refuse to act ; in any of these cases, the ordinary must grant administra tion to some person, cum testamento annexo. a person dies wholly intestate, without either making a will or naming executors, then general letters of administra tion must be granted by the ordinary to such administrator as the statutes of 31st E. Ill. c. 11, and 21st Hen. VIII. c. 5, direct. The office of an executor and administrator are very much the same, except that an executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and he can do nothing before letters of administration are granted ; but an executor may do many acts before he proves the will ; as, commence an action, assent to a legacy, &c.
32. If a stranger takes upon himself to act as an execu tor, he is called in law an executor of his own wrong, de son tort ; but, locking up the goods, or burying the corpse deceased, will not amount to such an intermeddling. He cannot bring an action in right of the deceased, but ac tions may be brought against him.
33. By law, the appointment of an executor vests in him beneficially all the personal estate of the testator not other vise disposed of ; but wherever courts of equity have seen on the face of the will sufficient to convince them, that the testator did not intend the executor to take the surplus, they have turned the executors into trustees for those to whom the law would cast the surplus in case of a complete intestacy, i.e. the next of kin ; as where the executors are expressly called executors in trust, or any other expres sion occur, sheaving the office only to he intended them, and not the beneficial interest. So a pecuniary legacy to a sole executor affords a sufficient argument to exclude him from the residue ; as it is absurd to suppose a testator to give expressly a part of the fund to the person whom tie intended to take the whole. If the testator give the resi duum to a person who dies in his life-time, in consequence of which this bequest is lapsed, the executor, though he has no legacy, shall be a trustee for the next of kit), be cause the testator has expressed a manifest intention not to give it to the executor.
34. Of injuries to real property, the following may be noted as the principal ; First, Dispossession, or ouster from the freehold. Second, Trespass. Third, Nuisance. Fourth,
'Waste. Fifth, Subtraction. Sixth, Disturbance.
35. Ouster is the dispossessing another of his lands or hereditaments, and may arise by the following causes, as 1. Abatement, which is the entry of a stranger after the death of the ancestor, before the heir or devisee. 2. In trusion, which is the entry of a stranger after a particular estate is deter mined, before him in remainder or reversion.
Disseisin. which is the wrongful putting out of hint that is seised of a freehold estate. 4 Discontinuance, which Is one having an estate-tail makes a larger estate than by law he is entitled to do, in which case the estate is good so far as his power extends who made it, but no farther.. 5. Deforcement, which is where the entry of the present tenant or possessor was originally lawful, but whose detain er is now become unlawful, i. e. such a detainer of the free hold from hint that has the right of property, but never had any possession under that right, as fails within none of the injuries already mentioned. Dispossession or ouster of chat tels real, may arise from the arnotion of him who holds an estate by statute merchant, recognizance, elegit, or years, for securing a certain stint of money, by the borrower raising the stun for which it is holden before the estate is determined by lapse of time.
36. The unwarrantable entering upon another man's soil the law entitles a trespass, and a man must have a property in the soil, and actual possession thereof by entry, to enable him to bring an action of trespass. By statute 6th Anne, c. 18, if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the determination of their respective interests, hold over, and continue in possession of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers.
37. Nuisance is that which worketh hurt, inconvenience, or damage ; and is either public or private. Nuisance to corporeal hereditaments are, such as a man's building a house so near mine that my ancient window is closed up, or the water from the roof of his house falls upon mine ; by keeping animals, or carrying on any noisome trade, from which a stench arises so as to render the air unwholesome ; neglecting to scour a ditch, &c. So, where any one ne glects to do, or does any act which inconveniences or da mage another, it is a nuisance. Nuisances to incorporeal hereditarnents are, such as a man's obstructing another that has a right of way, either by stopping it up or placing impediments to his annoyance; or if one sets up a fair or market within seven miles of my private fair or market, whereby I am injured.