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the affidavit for the Inland Revenue, to which is annexed an Affidavits. account of the personal estate of the deceased. No further affidavits are, as a rule, required, but circumstances may render additional evidence necessary.

Rule 4 provides that "if there be no attestation clause to a will or codicil presented for probate, or if the attestation clause thereunto be insufficient, the registrars must require an affidavit from at least one of the subscribing witnesses, if they or either of them be living, to prove that the provisions of 1 Vict. c. 26, s. 9, and 15 Vict. c. 24, in reference to the execution, were, in fact, complied with."

By Rule 7, "If both the subscribing witnesses are dead, or if from other circumstances no affidavit can be obtained from either of them, resort must be had to other persons (if any) who may have been present at the execution of the will or codicil; but if no affidavit of any such other person can be obtained, evidence on affidavit must be procured of that fact, and of the handwriting of the deceased and the subscribing witnesses, and also of any circumstances which may raise a presumption in favour of due execution."

tions to solicitors.

If a person has given instructions to a solicitor to make a will Instrucand the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far: "I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me, as carrying it out" (').

(1) Parker v. Felgate, 8 P. D. 173.

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Executors.

Who may

be appointed an executor.

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CHAPTER V.

EXECUTORS.

'Let's choose executors, and talk of wills" (').

An executor, as the term is at present accepted, says Mr. Justice Williams, may be defined to be "the person to whom the execution of a last will and testament of personal estate is, by the testator's appointment, confided."

In the language of an old authority (Swinburne), "To appoint an executor is to place one in the stead of the testator, who may enter to the testator's goods and chattels, and who hath action against the testator's debtors, and who may dispose of the same goods and chattels, towards the payment of the testator's debts and performance of his will."

Generally speaking, we are told in Williams on Executors (2) all persons who are capable of making wills, and some others besides, may be executors.

It has been from the earliest times an established principle that every person may be an executor, saving such as are expressly forbidden. Thus the appointment of the Sovereign, of a corporation, of a partnership, of an alien, and it would seem even of an alien enemy, are all valid (3).

An infant who, as we have seen (ante, p. 961), cannot make a will, may be appointed executor, and even an infant en ventre sa mère may be so appointed, but if appointed sole executor he cannot act until he attains his majority; meanwhile, and until that time, administration with the will annexed is granted to his guardian, or some other person appointed by the Court.

A married woman, as we have seen, may be appointed executrix or administratrix, under the Married Women's Property Act, 1882 (4).

The position of an executor differs essentially from that of an

(1) Shakespeare, Rich. II., Act iii. Scene 2.

(2) Williams on Executors, 8th ed. p. 232 et seq.

(3) 38 Geo. 3, c. 87, s. 6; Rules

P. R. Non. C. B., 33 to 36.

(*) See Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 18, as to married woman being an executrix or trustee (ante, p. 224).

between an executor

ministra

administrator, and most important consequences follow from the Difference distinction. An administrator, on the one hand, is only the person appointed by the Court by Act of Parliament, in whom and an adthe deceased has reposed no confidence. The executor, on the tor. other hand, is the person specially selected by the testator himself. His power and authority are therefore founded upon the special appointment by the testator.

outlaws.

Bankrupts

and insol

This principle has been carried to its utmost logical conse- Felons and quence, for it has been decided that persons in mean and insolvent circumstances, and even persons convicted of felony, and outlaws, may be appointed executors. In the case of a bankrupt vents. executor, it has, however, been the practice to interfere for the protection of the estate, by appointing a receiver, or compelling the bankrupt executor to give security before entering upon the duties of his office; but, if the person appointed executor be known by the testator to be a bankrupt or insolvent, a receiver will not be appointed on the ground of insolvency alone (1); and even in a case where an executor had attempted to commit a fraud against the estate the Court granted him probate (2).

In a case decided in 1875, very soon after the Judicature Act Jurisdiccame into operation, the judge of the Probate, Divorce, and tion. Admiralty Division proceeded on the principle that that Division had vested in it the jurisdiction formerly exercised by the High Court of Chancery, and he accordingly made an order prohibiting dealings with certain shares in a ship (3).

ment of

executor.

An executor can derive his appointment from a testamentary Appointdocument only, but this appointment may be either express or constructive. "A will," said an old writer, "is the only bed where an executor can be begotten or conceived, but this must be taken to include a codicil." In other words, executors are appointed either by direct nomination or by a request to perform Executor such duties in carrying out the provisions of the will as will according constitute them executors. In the latter case they are called executors according to the tenor.

It is always a question of the testator's intention, and of the construction to be put upon the will, whether there is an appointment of an executor according to the tenor.

In a very recent case where a testator appointed trustees of his will, and directed them, after paying all his funeral and other expenses, to distribute the residue of his property in a certain manner, the Court considered that this was sufficient to con

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to the tenor.

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Executor

to the tenor.

Difference between

an execu

tor and an administrator.

Executor

stitute the trustees executors according to the tenor. The result of deciding otherwise, said the President, would be that the trustee, having got in the estate in accordance with the directions in the codicil, he would have to hand it over to the executors for them to hand it back again to him as trustee (1).

In a case where a will contained a clause to the effect: "I appoint my sister A. B. my executrix, only requesting that my nephews C. D. and E. F. will kindly act for and with this dear sister," the Court decided that C. D. and E. F. were executors according to the tenor of the will (2).

In a case decided in 1887 a testator by his will appointed two executors with the usual direction as to payment of debts, and also appointed the same persons trustees; after his death the will was found with the clause appointing executors cut out of it, and there was evidence of declarations by the testator that he had cut it out with a pair of scissors, with the intention of cutting out the name of one of the executors. The Court decided that the appointment of the executors was revoked by the publication of the will, and that the trustees were not to be treated as executors according to the tenor (3).

Another very important distinction between the position of an executor and administrator may here be pointed out. The interest of an administrator is derived wholly from the Court of Probate, and only vests in him from the time of the grant of administration. The interest of an executor, on the other hand, in the estate of the deceased is derived exclusively from the will, and, therefore, vests in him from the moment of the testator's death. An executor is a complete executor for nearly all purposes before probate; he may release debts, get in the testator's estate, distrain, assent to legacies, or otherwise intermeddle with the estate. He may commence an action before probate, but he must produce the probate at the trial as proof of his title.

In addition to executors who are appointed by "legal means," de son tort. there is a class who assume the office by their "own intrusion and interference," as has been well laid down in Williams on Executors (4). "If one, who is neither executor nor administrator, intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, he thereby makes himself what is called in the law an executor of his own

20.

(1) In the Goods of Lush, 13 P. D

(2) In the Goods of Brown, 2 P. D. 110, and see In the Goods of the Earl

of Leven and Melville, 15 P. D. 22.
(3) In the Goods of Maley, 12 P.D.
134.

(') 8th ed. vol. i. p. 261.

de son tort.

wrong, or more usually, an executor de son tort." A very slight Executor interference with the estate of the deceased will constitute a person executor de son tort. Taking a Bible in one old case, and a bedstead in another, were held sufficient to constitute an executorship de son tort (1). Demanding or receiving the debts of the deceased (2), or paying the same with the moneys of the deceased, will constitute a person executor de son tort.

In a very recent case it was held that an auctioneer who sold the assets was liable as an executor de son tort, unless he was able to show that he acted for an executor who had proved the will (3).

A person, however, is not rendered an executor de son tort by reason of discharging offices which are merely those of kindness and charity, such as giving directions for a funeral (for if that were the law as was said in an old case (1) “the deceased could not be buried by any one from the apprehension of being involved as executor); locking up the goods for preservation (); making an inventory of the property (5); feeding the cattle (6); repairing the houses; or providing necessaries for the children of the deceased (5). A person who deals with the goods of a testator as agent of the executor, cannot be treated as executor de son tort, whether the will has been proved or not (').

If, for the purpose of providing the funeral, a person receives a debt due to the estate of the deceased, this will not render him an executor de son tort, unless he receive a larger sum than is reasonable for such purpose, having regard to the estate and condition of the deceased (8).

creditors.

It is provided by Lord St. Leonards' Act (22 & 23 Vict. c. 35), Notices to that where executors or administrators have given such or the like notices, as in the opinion of the Court in which such executor or administrator is sought to be charged, would have been given by the Court in an administration action for creditors and others to send in their claims, they may, after the expiration of the time named in the notices, distribute the assets, having regard to the claims of which they have notice, and are not to be liable in respect of claims of which they have no notice. This provision, however, is without prejudice to the rights of

38.

(1) Robin's Case, Noy, 69; Toller,

(2) Godolph, pt. ii. c. 8, s. 1; Swinb., pt. iv. s. 23.

(3) Nulty v. Fagan, 22 L. R. Ir. 604. (*) Harrison v. Rowley, 4 Ves. Jun. 216

(5) Godolph, pt. ii. c. 8, s. 6.
() Godolph, pt. ii. c. 8, s. 8.
() Sykes v. Sykes, L. R. 5 C. P.

113.

(*) Camden v. Fletcher, 4 M. & W. 378.

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