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Executors

executor, person, appointed, law, act, estate, ex and court

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EXECUTORS. An executor is, as above de fined, a person charged with the administra tion of the estate of one who leaves a will.

Lord Hardwicke, in 3 Atk. 301, says, "The proper term in the civil law, as to goods, is hares testa mentarius; and executor is a barbarous term, un known 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 Zege consti tutus. He Is the ordinary of the diocese. 2. Execu tor ab episcopo constitutes or executor dativus ; and that is he who is called an administrator to an intestate. 3. Executor a testatore constitutes, or executor testamentarius; and that is he who is usu ally meant when the term executor is used. 1 Wins. Ex. 185. See ORDINARY.

The power of an executor under modern probate law is derived not so much from the will of the testator as from the appointment of the court and the powers conferred upon it by law ; Lamb v. Helm, 56 Mo. 420. While he is a trustee in the broadest sense, he is not such in the general acceptation of the term ; In re Hibbler, 78 N. J. Eq. 217, 78 At]. 188, affirmed In re Hibbler's Estate, 79 N. J. Eq. 230, 81 Atl. 1133.

If the executor be legally competent and accepts the trust, it is the duty of the pro bate court to grant letters testamentary to him ; Clark v. Patterson, 214 Ill. 533, 73 N. E. 806, 105 Am. St. Rep. 127, where it was said that legally competent meant of legal age, sound mind and memory and not convicted of crime.

One should not be appointed an executor pending a suit by him on a claim against the estate ; Cogswell v. Hall, 183 Mass. 575, 67 N. E. 638. The renunciation of an executor may be by oral statement in open court; In re Baldwin's Will, 27 App. Div. 506, 50 N. Y. Supp. 872. Where one declines the appoint ment and another person is appointed, the former has no legal right thereafter ; Briggs v. Probate Court, 23 R. I. 125, 50 Atl. 335.

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.

A rightful executor is one lawfully appoint -ed by the testator, by his will. Deriving his authority froni the will, he may do most acts before he obtains letters testamentary ; but he must be possessed of them before he can •declare in an action brought by him as such ; 1 P. Wms. 768 ; Wms. Ex. 173.

An instituted executor is one who is ap pointed by the testator without any condition, and who has the first right of acting when there are substituted executors.

A substituted executor is a person appoint ed executor if another person who has been appointed refuses to act.

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 son is the instituted executor in the first degree, the brother is said to be substi tuted in the second degree, the cousin in the third degree, and so on. See Swinb. Wills, pt. 4, s. 19, pl. 1.

An executor de son tort is one who, with out lawful authority, undertakes to act as executor 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.

An executor to the tenor is a person who is not directly appointed by the will an execu tor, but who is charged with the duties which appertain to one: as, "I appoint A B to dis charge all lawful demands against my will ;" 3 Phill. Eccl. 116 ; 1 Eccl. 374 ; Swinb. Wills 247; Wentw. Ex. pt. 4, s. 4, p. 230'; [1892] Prob. 227, 380; 66 Law T. N. S. 382.

Qualification. Generally speaking, all per sons who are capable of making wills, and many others besides, may be executors ; 2 Bla. Com. 503. The king may be an executor. So may a corporation sole. So may a corpo ration aggregate ; Toiler, Exec. 30 ; Schoul. Ex. & Ad. 32. So may an alien, if he be not an alien enemy residing abroad or unlawfully continuing in the country. See McGregor v. McGregor, 3 Abb. Dec. (N. Y.) 92. So may married woMen and infants ; and even in fants unborn, or en ventre sa mere, may be r executors ; 1 Dane, Abr. c. 29 a 2, § 3; Swift v. Duffield, 5 S. & R. (Pa.) 40. But in Eng land an infant cannot act solely as executor until his full age of twenty-one years. Mean while, his guardian or some other person acts for him as administrator cum test. ann. See Christopher v. Cox, 25 Miss. 162 ; Schoul. Dom. Rel. § 416; ADMINISTRATION. It was held that a married woman cannot be execu trix without her husband's consent ; Appeal of Stewart, 56 Me. 300 ; English's Ex'r v. Mc Nair's Adm'rs, 34 Ala. 40 ; and that a. man by marrying an executrix became executor in her right, and was liable to account as such ; 2 Atk. 212 ; Lindsay v. Lindsay's Adm'rs, 1 Des. (S. C.) 150.

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