676 EXE 
not done, or some reasonable cause returned 
vdiy it is delayed, the judges of the court 
mav amerce them. 
EXECUTOR, is a person appointed by 
the testator, to carry into execution his will 
and testament after his decease. The regu- 
lar mode ot appointing an executor, is by 
naming him expressly 'in the will; but any 
words indicating an intention of the testator 
to appoint an executor will be deemed a 
sufficient appointment. 
Any person capable of making a will, is 
also capable of being an executor: but in 
some cases, persons who are incapable of 
making a will, may nevertheless act as ex- 
ecutors, as infants, or married women ; to 
obviate, however, inconveniences which have 
occurred respecting the former, it is enacted 
by stat. 38 Geo. 111. c. 89, that where an 
infant is sole executor, administration, with 
the will annexed, shall be granted to the 
guardian of such infant, or such other person 
as the spiritual court shall think lit, until 
such infant shall have attained the age of 
twenty-one; when, and not before, probate 
of the will shall be granted him. 
An executor derives his authority from the 
will and not from the probate, and is there- 
fore authorized to do many acts in execution 
of the will, even before it is proved, such as 
releasing, paying, or receiving of debts, as- 
senting to licences, &c. but he cannot pro- 
ceed until lie has obtained probate. 
If an executor dies before probate, adminis- 
tration must be taken out with the will an- 
nexed; but if an executor dies, his. executor 
will be executor to the first testator, and no 
fresh probate will be needed. It will be 
sufficient if one only of the executors prove 
the will; but if all refuse to prove, they can- 
not afterwards administer, or in any respect 
act as executors. 
If an executor becomes a bankrupt, the 
court of chancery will appoint a receiver of 
the testator’s effects, as "it will also upon the 
application of a creditor, if he appears to be 
wasting the assets. 
If an executor once administers, he cannot 
afterwards renounce ; and the ordinary may 
in such case issue process to compel him to 
prove the will. 1 Mod. 213. 
If an executor refuses to take upon him 
the execution of the will, lie shall lose the 
legacy therein contained. 
If a creditor constitutes his debtor his ex- 
ecutor, this is at law a discharge of the debt, 
whether the executor acts or not, provided 
however there be assets sufficient to dis- 
charge the debts of the testator. 
The first duty of an executor or adminis- 
trator :s to bury the deceased in a suitable 
manner ; and if the executor exceeds what 
is necessary in this respect, it will be a waste 
of the substance of the testator. 
The next thing to be done by the execu- 
tor is to prove the will, which may be done 
either in the common form, by taking the 
oath to make due distribution, &e. or in a 
more solemn mode, by witnesses to its exe- 
cution. 
By stat. 37 Geo. III. c. 9, s. 10, every 
person who shall administer the personal 
estate of any person dying without proving 
the will of "the deceased, or taking out let- 
ters of administration within six calendar 
months after such person's decease, shall for- 
feit 50/. 
EXE 
Upon proving the will, the original is to 
be deposited in the registry of the ordinary, 
by whom a copy is made upon parchment 
under his seal, and delivered to the executor 
or administrator, together with a certificate 
of its having been proved before him, and 
this is termed the probate. 
If all the goods of the deceased lie within 
the same jurisdiction, the probate is to be 
made before the ordinary or bishop of the 
diocese, where the deceased resided; but if 
he had goods ami chattels to the value of 
51. in two distinct dioceses or jurisdictions, the 
will may be proved before the metropolitan 
or archbishop of the province in which the 
deceased died. 
An executor, by virtue of the will of the 
testator, has an interest in all the goods and 
chattels, whether real or personal, in posses- 
sion or in action of the deceased ; and all 
goods and effects coming to his hands will 
be the assets to make him chargeable to 
creditors and legatees. 
An executor or administrator stands per- 
sonally responsible for the due discharge of 
his duty; if, therefore, the property of the 
deceased is lost, or through his wilful neg- 
ligence becomes otherwise irrecoverable, he 
will be liable to make it good ; and also 
where he retains money in his hands longer 
than is necessary, he will be chargeable not 
only with interest but costs, if any have been 
incurred. 
But one executor shall not be answerable 
for money received, or detriment occasioned 
by the other, unless it has been by some 
act done between them jointly. 
An executor or administrator has the same 
remedy for recovering debts and duties, as 
the deceased would have had if living. 
Neither an executor nor administrator can 
maintain any action, for a personal injury 
done to the deceased, when such injury is of 
such a nature for which damages may be re- 
ceived ; in actions however, which have 
their origin in, breach of promise, although 
the suit may abate by the death of the party, 
yet it may be revived either by his executors 
or administrators, who may also sue for rent 
in arrear, and due to the deceased in his life- 
time. 
By the custom of merchants, an executor 
or administrator may indorse over a bill of 
exchange or promissory note. 
An executor or administrator may also, on 
the death of a lessee for years, assign over 
the lease, and shall not be answerable for 
rent after such assignment ; nor shall he 
be liable for rent due after the lessee’s death, 
from premises which in his life-time he had 
a .signed to another. 
An executor or administrator is bound 
only by such covenants in a lease as are said 
to run with the land. 
The executor or administrator, previous to 
the distribution of the property of the de- 
ceased, must take an inventory of all his 
goods and chattels, which must, if required, 
be delivered to the ordinary upon oath. 
He must then collect, with all possible 
convenience, all the goods and effects con- 
tained in such an inventory; and whatever is 
so recovered that is of a saleable nature, and 
can be converted into money, is termed as- 
sets, and makes him responsible to such 
amount to the creditors, legatees, and kin- 
dred of the deceased. 
EXE 
The executor or administrator having col. 
lected in the property, is to proceed to dis- 
charge the debts of tiie deceased, which he 
must do according to the following priorities, 
otherwise he will be personally responsible. 
1. Funeral expences, charges of proving 
the will, and other expenditures incurred by 
the execution of his trust. 
2. Debts due to the king on record, or by 
speciality. 
3. Debts by particular statutes, as by 30 
C. II. c. 23. Forfeitures for not burying in 
woollen, money due for poor-rates, and mo- 
ney due to the post-office. 
4. Debts of record, as judgments, statutes,, 
recognizances, and those recognized by a de- 
cree of a court of equity ; and debts clue on 
mortgage. 3 Peere Wins, 401. 
5. Debts on special contract, as bonds or 
other instruments under seal, and also rent in 
arrear. 
6. Debts on simple contract, viz. such as 
debts arising by mere verbal promise, or by 
writing not under seal, as notes of hand, ser- 
vants’ wages, &c. 
The executor is bound at his peril to take 
notice of debts on record, but not of other, 
special contracts, unless he receives notice.. 
If no suit is actually commenced against 
an executor or administrator, he may pay 
one creditor in equal degree the whole debt, 
though there should be insufficient remaining 
to pay the rest; and even after the com- 
mencement of a suit, he may by confessing 
judgment to other creditors of the same de- 
gree, give them a preference. 
Executors and administrators are also al- 
lowed, amongst debts of equal degree, to pay 
themselves first : but they are not allowed to 
retain their own debt, to the prejudice of 
others in a higher degree ; neither shall they 
be permitted to retain their own debts, in. 
preference to that of their co- executor or 
co-administrator of equal degree, but both 
shall be charged in equal proportion. 
A mortgage made by the testator must be- 
discharged by the representative out of the 
personal estate, if there is sufficient to pay 
the rest of the creditors and legatees. Where 
such mortgage, however, was not incurred 
by the deceased, it is not payable out of the 
personal estate. See Legacies, and As- 
sets. 
Executor de son tort, or an executor of 
his own wrong, a person that takes upon him 
the office of an executor by intrusion, with- 
out being so constituted by the testator, or 
appointed by the ordinary to administer. 
Such a person is chargeable to the rightful 
executor, as also to ail the testator’s creditors 
and legatees, so far as the goods amount to 
which lie wrongfully possessed. 
EXECUTORY estate. Estates execu- 
tory, are when they pass presently to the 
person to whom conveyed, without any after- 
act, 2 Inst. 513; and leases for years, rents, 
annuities, conditions, &c. are called inheri- 
tances executory. Id. 293. 
Executory devise, is defined a future in- 
terest, which cannot vest at the death of a tes- 
tator, but depends upon some contingency 
which must happen before it can vest. Abr„ 
Eq. 186. 
An executory devise differs from a re- 
mainder, in three very material points: 
1. That it needs not any particular estate to 
support it. 2. That by it a fee-simple, or 
