1U07 



EXECUTOK. 



EXETEU or EXON DOMKSDAY. 



P I,T from the will, and not from the probate : the latter owe* hU 

 entirely to the appointment of the court If an executor die before 

 probate, administration must be taken out to his testator, with the will 

 annexed ; but if an executor, having proved the will, die, his executor 

 will be the executor and representative of the first testator, unless, 

 before proving the will of the second testator, he expressly renounces 

 the execution of the will of the first. If the executor dies intestate, 

 hiii administrator is not the representative of the testator, but an 

 administrator de bonit HUH of the testator must be appointed by thu 

 court. If there are several executors, the office survives, and is trans- 

 mitted ultimately to the executor of the surviving executor, unless he 

 dies without having appointed an executor. Executors have a joint 

 and entire interest in the effects of their testator ; any one of them is 

 capable of acting by himself ; and the receipt of a debt, or the transfer 

 of property by one, is as valid as if it had been done by all 



If a stranger takes upon himself to act as executor without any 

 authority, as by intermeddling with the goods of the deceased, he is 

 called an executor de ion tort (of his own wrong), and is liable to 

 all the trouble of an executor without any of the advantages attached 

 to the office. He is chargeable with the debts of the deceased, so far 

 as assets come to his hands ; and is liable not only to an action by the 

 rightful executor or administrator, but also to be sued as executor of 

 the deceased by his creditors and legatees. The only advantage which 

 an executor derives from his office is the right to retain any debt due 

 to him from the testator, as against creditors of equal degree, and this 

 privilege is allowed him, because he cannot take ally legal steps to 

 recover payment. This, though practically a privilege, is in reality 

 only a provision of the law that he shall not be prejudiced by his 

 appointment; otherwise as a man cannot sue himself, all the other 

 creditors would, by instituting a suit against the executor, gain priority 

 over him in respect of their debts. 



The duties of executors and administrators are in general the same, 

 the only essential difference between them being, as before mentioned, 

 the mode of their appointment. Their duties are to bury the deceased, 

 to prove his will in the proper court, to collect and get in his goods 

 .mil chattels, to pay his debts in the order appointed by law, and also 

 his legacies, if he has bequeathed any, aud to dispose of the residue of 

 his goods and chattels in the manner by the will directed, or accord- 

 ing to the statutes for the distribution of the effects of intestates, if 

 there should be a total or partial intestacy. Executors and adminis- 

 trators are liable to an action at law, and also to a suit in equity, for 

 the payment of the debts and liabilities of their testator or intestate ; 

 and to be sued for the legacies bequeathed by him, and the due 

 administration of his estate : but no action at law lies for a legacy, at 

 least not until after the executor has assented to it, as it is called, that 

 is, has acknowledged the sufficiency of the assets after providing for 

 the payment of the debts. [LEGACY.] 



It appears to have been a subject of much controversy whether the 

 probate of wills was originally a matter of exclusive ecclesiastical 

 jurisdiction, but whatever may have been the case in earlier times, it 

 is certain that until the passing of the 20 & 21 Viet. c. 77, the Eccle- 

 siastical Courts were the only courts in which, except by special pre- 

 scription, the validity of wills of personalty could be established or 

 disputed. By that act the ancient jurisdiction of those courts, in 

 matters of probate and administration, was transferred to a new court 

 thereby established and styled "The Court of Probate." A will 

 should be proved within six months after the death of the testator, or 

 within two months after the termination of any dispute respecting the 

 probate. (See 55 Qeo. III. c. 184, sec. 57.) 



Executors and administrators are treated by the courts of equity 

 as trustees for the creditors, legatees, and next of kin of their testators 

 or intestates. They are bound to administer the assets according to 

 their due order of priority, and to pay the debts of the deceased in like 

 manner. The probate is exclusive" evidence of a will of personalty ; 

 but courts of equity assume the jurisdiction of construing the will in 

 order to enforce the performance of the trusts by the executor : 

 hence they are sometimes styled courts of construction, in contra- 

 distinction to the Court of Probate. Formerly, the personal estates 

 only of persons deceased were liable for the payment of their simple 

 contract debts; but now, since the statute 3 & 4 Will. IV. c. 104, 

 real estates are liable for the payment of debts of that nature ; and 

 it may be broadly stated that all the real and personal estates of the 

 deceased are assets for the payment of his debts. The personal 

 estate is liable in the first instance, unless the testator direct other- 

 wise. Estates descended are applied before estates devised ; aud in 

 other respects the estates of the deceased are administered in the 

 order laid down by the courts. , 



The debts are also payable in a certain prescribed order. 1. The 

 funeral expenses, the expenses of probate, and the costs of a suit for 

 the administration of the estates, if any be instituted. 2. Debts due 

 to the crown on record or specialty. 8. Certain debts, which by 

 statute are to be preferred to others, as poor-rates, by stat. 17 Geo. II. 

 c. 38, Ac. 4. Debt* of record, as judgments, statutes, and recognisances. 

 5. Specialty debts, that is, debts due on bonds or instruments under 

 seal. 6. Simple contract debts, as upon bills of exchange aud ordinary 

 verbal engagement*. It seems that in this class debts due to the crown 

 and the wages of domestic servants are entitled to priority. 



The executor must pay the debts in the order mentioned ; for if ho 



apply the aaseU in payment of those of a lower degree, he will U 

 jiersonally answerable, to the extent of the assets misapplied, to the 

 creditor of the higher degree. He may, however, pay a debt of an in- 

 ferior degree before one of a superior, provided he has no notice of the 

 latter, aud a reasonable time has elapsed after the testator's death ; 

 except in the case of debts of record, of which the executor is bound to 

 take notice. An executor or administrator may also retain his own 

 debt as against creditors of an equal degree ; and ho may pay any one 

 or more debts to creditors of equal degree, although thereby In 

 exhaust the assets, unless a suit or action be commenced against lii-u : 

 and even in that case he may, by confessing a judgment, enable a 

 creditor to obtain priority. But notwithstanding an action or uuit be 

 commenced, he inuy pay a creditor of a higher degree than the one 

 proceeding against him ; save only where the suit is for a general ad- 

 ministration of the estate, when the executor should not make any 

 farther payments. 



The debts being all paid, the next duty of an executor or adminis- 

 trator is to pay the legacies, and distribute the personal estate to t In- 

 next of kin of the testator if there be any overplus ; but where the 

 testator has made a residuary legatee, he is entitled to the surplus. If 

 the assets are not sufficient for the payment of the legacies, the executor 

 must pay to each legatee an equal proportion of his legacy, unit 

 testator has directed the order of payment, in which case the 1 

 must be paid in full in the prescribed order, and the whole IOSM must 

 fall upon the last in order. Specific legatees, that is, persons to whom 

 a specific fund or article of property is given by the will, are not liable 

 to abatement of their legacies, but receive the fund or article whether 

 the assets are or are not sufficient to pay the other legatees ; though if 

 the fund is changed, or the article sold, or from any other cause i.- n.it 

 in existence at the death of the testator, the legacy fails, or in teclini< i! 

 language is said to be adeemed. Executors and administrators cannot 

 be compelled to pay legacies or distribute the personal estate before tin- 

 expiration of a year after the decease of the testator ; and not even then, 

 if notice has been acquired or there is reasonable ground to BUS]" 

 existence of debts and liabilities. Indeed, unless the assets 

 ample amount, the executor or administrator should not pay within 

 the year, even though the testator has directed it to be done ; for it 

 has been held that such a payment affords no defence against a creditor, 

 and the testator or intestate may be bound by covenants upon which 

 subsequent liabilities may accrue ; or he may have been a trustee, and 

 some maladministration of the trust estate may be discovered after the 

 lapse of many years. In these and many other cases, executors and 

 administrators should not part with the assets until all chance of liability 

 is at an end, or security be given by the parties receiving them to refund 

 in case of need. This last course will sometimes be directed by a eourt 

 of equity in a suit for a legacy ; for though an executor or adminis- 

 trator may recover from the legatees or next of kin to whom he has 

 handed over the assets in case of subsequently-discovered debts of the 

 deceased, it is obvious that this is a very insufficient and uncertain 

 security. Where a legatee is an infant, or the testator has directed his 

 executors to invest any portion of his estate in the funds, or has pro- 

 vided for some future payment to be made, or from any other cause, 

 an investment by the executors becomes necessary, they are, in the 

 absence of any express direction to the contrary, bound to make such 

 investment in the Three per Cent Consols, that fund being considered 

 by the Court of Chancery as the most desirable for the purpose of 

 investment. The rule is inflexible, and an executor who should dis- 

 regard it woidd run great risk of having to pay the costs of a suit to 

 compel him to place the money in that fund, and to make good any 

 loss which might occur through the change of securities. 



Full information upon these subjects will be found in the valuable 

 work of Mr. Justice Williams, on the law relating to Executors ami 

 Administrators ; and in Jarman on Wills, and Powell on Devises. 



EXE'DRA (ie$pa), a name given to certain open chambers or 

 recesses in the buildings of the ancients. There were numerous 

 exednc in the baths. Vitruvius says the spacious exedno of the 

 paliestra were furnished with Beats. The exediio were placed iu the 

 three porticos of the pakcstra. (Vitruvius, v. c. 9.) Sometimes in 

 houses a covered hall, and of a square form, was called exwlra. 

 (Vitruvius, vi. cap. 5.) In the disposition of the Greek housu the 

 exedne were placed looking to the west. (Vitniv., vi. cap. 10.) 



EXEMPLIFICATION. [RECORD.] 



EXERCISE. [ANALEPTICS.] 



EXETER or EXON DOMESDAY, the name given to a I\T.T,| 

 preserved among the muniments and charters belonging to the dean ami 

 chapter of Exeter Cathedral, containing a description of the western 

 parts of the kingdom, comprising the counties of Wilts, Dorset, Somer- 

 set, Devon, and Cornwall ; supposed, as far as it extends, to contain ui 

 exact transcript of the original rolls or returns made by the Conqueror's 

 commissioners at the time of forming the General Survey, from which 

 the Great Domesday itself was compiled. It is written on vellum, iu 

 the form of a book of the small folio size, containing 632 double pages. 

 The skins or sheets of vellum of which it is composed vary in the 

 number of leaves which they comprise from one to twenty ; the 

 of each of the more considerable tenants beginning a new sheet, ami 

 those of almost every tenant a new page. The lands in the counties 

 of Devon, Somerset, and Cornwall belonging to one tenant are classed 

 together, the counties following each other, though not always in the 



