no 
EXEC 
where A. is appointed executor on condition that he gives 
fecurity to pay legacies, or generally to perform the will. 
So a teftator may make A. an executor in refpeft to his 
plate and houftiold goods, B. in refpeft to his cattle, C. 
as to his leafes, and D. in regard to his debts; or appoint 
A. an executor for his effefts in one county, and B. exe¬ 
cutor for his effefts in another, or (which feems more 
rational or expedient) he may fo divide the duty where 
his property is in various countries. So he may nominate 
his wife executrix during the minority of his fon, or fo 
long as (lie continues a widow. 
The duty and office of executors and adminiftrators in 
general are very much the fame ; excepting, firft, that 
the executor is bound to perform a will, which an admi- 
niffrator is not, unlefs where a teftament is annexed to his 
adminiftration, and then he differs ftill lefs from an exe¬ 
cutor : and, fecondly, that an executor may do many adds 
before he proves the will; but an adminiftrator may do 
nothing till letters of adminiftration are iffued ; for the 
former derives his power from the will and not from the 
probate; the latter owes his entirely to the appointment 
of the ordinary. Com. 51. 
The executor or adminiftrator muft bury the deceafed 
in a manner fuitable to the eftate which he leaves behind 
him. Necelfary funeral expences are allowed, previous 
to all other debts and charges; but if the executor or 
adminiftrator be extravagant, it is a fpecies of devaftation 
or wafte of the fubltance of the deceafed ; and (hall only 
be prejudicial to himfelf, and not to the creditors or lega¬ 
tees of the deceafed. Salk. 196. Godolph. 2. c. 26. The 
executor or adminiftrator durante minore atate, or durante 
cbfentia , or cum tefamento annexo, muft: prove the will of the 
deceafed : which is done either in common form, which 
is only upon his own oath before the ordinary, or his fur- 
rogate ; or per tejlcs, in more folemn form of law, in cafe 
the validity of the will be difputed. When the will is 
fo proved, the original muft be depofited in the regiftry 
of the ordinary ; and a copy thereof in parchment is made 
out under the feal of the ordinary, and delivered to the 
executor or adminiftrator, together with a certificate of 
its having been proved before him ; all which together is 
ufually (filed the probate. If there are many executors 
of a will, and one of them only proves the will, and takes 
upon him the executorfhip, it is fufficient for all of them ; 
but the reft after may join with him, and intermeddle 
with the teftator’s eftate : but if they all of them refufe 
the executorfliip, none of them will ever afterwards be 
admitted to prove the will ; the ordinary in this cafe 
grants adminiftration with the will annexed. Perk. 485. 
The executor or adminiftrator is to make an inventory 
of all the goods and chattels,whether in poffeftion or action, 
of the deceafed ; which he is to deliver in to the ordinary 
upon oath, if thereunto lawfully required. 21 Hen. V 111 . 
c.5. But no adminiftrator (hall be cited into court to 
render an account of the perfonal eftate of his inteftate, 
otherwile than by an inventory thereof, unlefs at the in- 
ftance of fome perfon in behalf of a minor, or having a 
demand out of fuch eftate as a creditor, or next of kin; 
nor (hall be compellable to account before any ordinary 
or judge empowered by the aft of 22 and 23 Car. II. 
c. 10, otherwife than as afoiefaid. <)Rep. 39. Raym. 407. 
He is to colled! all the goods and chattels fo inventoried ; 
and to that end he has very large powers and interefts 
conferred on him by law ; being the reprefentative of the 
deceafed, and having the fame property in his goods as 
the principal had when living, and the fame remedies to 
secover them. And if there be two or more executors, a 
f.de or releafe by one of them (hall be good againft all the 
reft : Dyer, 23 ; Cro. Eliz. 347 ; unlefs fuch releafe be ob¬ 
tained by fraud, Moor , 620 ; but in cafe of adminiftrators 
it is otherwife. 1 Aik. 460. Whatever is fo recovered, 
that is of a faleable nature and may be converted into 
r'ady money, is called affets in the hands of the executor 
©r adminiftrator, that is, fufficient or enough (from the 
Trench ajfcz) to make him chargeable to a creditor or 1«; 
U T O R. 
gatee, fo far as fuch goods and chattels extend. What, 
ever affets fo come to his hands, he may convert into ready 
money to anfwer the demands that may bemade upon him. 
Co. Lit. 374. Inactions againft executors, the jury muft 
find affets to what value, for the plaintiff (hall recover 
only according to the value of affets found. 
The chattels real and perfonal of the teftator coming 
to the executor, are leafes for years, rent due, corn grow¬ 
ing and cut, grafs cut and fevered, cattle, money, plate, 
hou(hold goods, See. An executor having a leafe for years 
of land in right of the deceafed, if he purchafe the fee, 
whereby the leafe is extinft, yet this leafe (hall continue 
to be affets, as to the creditors and legatees. Bro. Leafe , 63. 
Though a plantation be an eftate of inheritance, yet being 
in a foreign country, it is a chattel in the hands of execu¬ 
tors to pay debts. 1 Vent. 358. The executor is not only 
intitled to all perfonal goods and chattels of the teftator, 
of what nature foever they are, but they are alfo accounted 
to be in his poflellion, though they are not actually fo; 
for he may maintain an aftion againft any one who detains 
them from him : he is likewife intitled to things in action ; 
as right of execution on a judgment, bond, iftatute, See. 
Alfo to money awarded on arbitration. Co-Lit. 209. iDanv. 
Abr. 549. If goods of the teftator are kept from the exe¬ 
cutor, he may fue for them in the fpiritual court, or at 
common law ; and if one feifed of a meffuage in fee, See. 
hath goods in the houfe, and makes a will and executors, 
and dies, the executors may enter into the houfe, and carry 
away the goods. Lit. 60. An executor may, in convenient 
time after the teftator’s death, enter into a houfe defeended 
to the heir, for removing and carrying away the goods; 
fo as the door be open, or the key be in the door. Offic. 
Exec. 8. He may take the goods and chattels 10 himfelf, 
or give power to another to feize them for him. If an 
executor with his own goods redeem the goods of the tef¬ 
tator, or pays the teftator’s debts, &c. the goods of the 
teftator (hall, for fo much, be changed into the proper 
goods of the executor. Jcnk.Cent. 188. 
Where a man by will devifes that his lands (hall be 
fold for payment of debts, his executors (hall fell the 
land, to whom it belongs to pay the debts. And if lands 
are devifed to executors to be fold for payment of the 
teftator’s debts, thofe executors that aft in the executor- 
fhip, or that will fell, may do it without the others. Co. 
Lit. 113. By 21 Henry VIII. c. 4, bargains and (ales of 
lands, See. devifed to be fold by executors, (hall be as 
good, if made by fuch of the executors only as take upon 
them the execution of the will, as if all the executors had 
joined in the fale. If lands are thus devifed to pay debts, 
a furviving executor may fell them ; but if the devife be, 
‘ that the executor (hall fell the land,’ and not ‘of the land 
to them to be fold,’ here being only an authority, and not 
an intereft, if one dies the other cannot fell. 1 Lev. 203. 
The executor or adminiftra tor muft pay the debts of the 
deceafed. In payment of debts he muft obferve the rules 
of priority; otherwife, on deficiency of affets, if he pay 
thofe of a lower degree firft, he muft anfwer thofe of a 
higher out of his own eftate. And firft, he may pay all 
funeral charges, and the expences of proving the will. 
Secondly, debts due to the king on record or fpecialty. 
Thirdly, fuch debts as are by particular ftatutes to be 
preferred to all others; as the forfeitures for not burying 
in woollen, and money due upon poor rates. Fourthly, 
debts of record ; as judgments, ftatutes, and recognizances. 
Fifthly, debts due on fpecial contrufts; as for rent, or 
upon bonds, covenants, and fimilar fecurities under leal. 
Laftly, debts on fimple contrafts, viz. upon notes unfealed 
and verbal promifes. Among debts of equal degree, the 
executor or adminiftrator is allowed to pay himfelf firft, 
by retaining in his hands fo much as his debt amounts to. 
10 Mod. 496. If a creditor conftitutes his debtor his exe¬ 
cutor, this is a releafe or difeharge of the debt, whether 
the executor afts or not, provided there be affets fufficient 
to pay the teftator’s debts : for, though this difeharge of 
the debt (hall take place of all legacies, yet it were unfair 
1 to 
