EXECUTOR. One to whom another man commits by his last will the execution of that will and testament. 2 Blackstone, Comm. 503.
A person to whom a testator by his will commits the execution, or putting in force, of that instrument and its codicils. Yonblanque, Rights and Wrongs, 307.
Lord Hardwicke, in 3 Atk. Ch. 301, says, " The proper term in the civil law, as to goods, is here, testamentarius ; and executor is a barbarous term, unknown to that law." And again." What we call executor and residuary legatee is, in the civil law, universal heir." Id. 300.
The word executor, taken in its broadest sense, has three acceptations. 1. Executor a loge coned tutus. He is the ordinary of the diocese. 2. Exe cutor ab epiecopo constitutue, or executor datieus ; and that is he wild is called an administrator to an in testate. 3. Executor a testator constitutue, or executor testamentarilui ; and that is he who is usually meant when the term executor is used. 1 Williams, Exec. 185.
A general executor is one who is appointed to administer the whole estate, without any limit of time or place or of the subject mat ter.
An instituted executor is one who is ap pointed by the testator without any condi tion, and who has the first right of acting when there are substituted executors.
An example will show the difference between an instituted and a substituted executor. Suppose a man makes his son his executor, but if he will not act he appoints his brother, and if neither will act, his cousin : here the see is the instituted executor in the first degree, the brother is said to be sub stituted in the second degree, the cousin in the third degree, and so on. See Swinburne, Wills, pt. 4, s. 19, IA. 1.
A rightful executor is one lawfully ap pointed by the testator, by his will. De riving his authority from the will, he may do most acts before he obtains letters testa mentary ; but he must be possessed of them before he can declare in an action brought by him as such. 1 P. Will. Ch. 768 ; Williams, Exec. 173.
An executor de son tort is one who, without lawful authority, undertakes to act as exe cutor of a person deceased. See EXECUTOR DE SON TORT.
A special executor is one who is appointed or constituted to administer either a part of the estate, or the whole for a limited time, or only in a particular place.
A substituted executor is a person appointed executor if another person who has been appointed refuses to act.
An executor to the tenor is a person who is not directly appointed by the will an exe cutor, but who is charged with the duties which appertain to one : as, " I appoint A B to discharge all lawful demands against my • — will." 3 Phi11. Eccl. 116 ; 1 Eft!. 4; Swinburne, Wills, 247 ; Wentworth, Exic. pt. 4, s. 4, p. 230.
2. Qualification. Generally speaking, all persons who are capable of making wills, and many others besides, may be executors. 2 Blackstone, Comm. 503. The king may be an executor. So may a corporation bole. So may a corporation aggregate. Toiler, Exec. 30, 31. So may an alien, if he be not an alien enemy residing abroad or unlawfully continuing in the country. So may married women and infants ; and even infants unborn, or en venire sa mare, may be executors. 1 Dane, Abr. c. 29 a 2, 3 ; 5 Serg. & R. Penn. 40. But in England an infant cannot act solely as executor until his full age of twenty one years. Meanwhile, his guardian or some other person acts for him, as administrator cum test. ann. See ADMINISTRATION. A mar ried woman cannot be executrix without her husband's consent. But a man by marry ing an executrix becomes executor in her right, and is liable to account as such. 2 Atk. Ch. 212 ; 1 Des. So. C. 150.
3. Persons attainted, outlaws, insolvents, and persons of bad moral character, may be qualified as executors, because they act en autre droit and it was the choice of the tes tator to appoint them. 6 Q. B. 57 ; 12 B. Monr. Ky. 191 ; 7 Watts & S. Penn. 244; 3 Salk. 162. Poverty or insolvency is no ground for refusing to qualify an executor ; but an insolvent executor may be compelled to give security. 2 Halst. Ch. N. J. 9 ; 2 Barb. Ch. N. Y. 351. And in Vermont, New Hampshire, Massachusetts, Rhode Island, Connecticut, Pennsylvania, Delaware, Mary land, Virginia, and Kentucky, a bond is re quired from executors, similar to or identical with that required from administrators. The testator may, by express direction, exempt from the obligation of giving a bond with sureties any trustees' whom he appoints or directs to be appointed, but not his executor ; because the creditors of the estate must look to the funds in the executor's hands.