if he does resort to the former mode, he will not thereby be precluded from bringing trespass for the subsequent profits; for the act provides, "that nothing therein contained shall bar the landlord from bringing trespass for the mesne profits which shall accrue from the verdict or the day so specified, down to the day of the delivery of possession of the premises recovered." a a 1 G. IV. c. 87. s. 3. VIII. Of the interest which an executor or administrator takes in the estate of the deceased 972 IX. Of the disposition of the estate of the deceased... 975 X. ..... Of the liability of an executor or administrator in respect of 984 AN executor is a person to whom the execution of a last will and testament of personal estate is by the testator's appointment confided; and all persons are capable of being executors who are capable of making wills, and many others besides. An infant may be an executor, how young soever he be, and so may a child in ventre sa mere b. But if an infant Infant. be appointed sole executor, by 38 Geo. III. c. 87. s. 6, he is altogether disqualified from exercising his office during his minority, and administration cum testamento annexo shall be granted to his guardian, or such other person as the spiritual * 2 Bl. Com. 503. b Id. Wentw. Off. Ex. c. 18. court shall think fit, until such infant shall attain the age of twenty-one. This act applies only where an infant is sole executor, for if there be several executors, and one of them A married is of full age, he may execute the will. A married woman may be an executrix, but she cannot take on herself the office without the consent of her husband b. woman. Persons attainted and outlawed may sue as executors, beBankrupts. cause they sue in autre droite. The Ecclesiastical Court cannot refuse to grant the probate of a will to an insolvent or a bankruptd. But the Court of Chancery will restrain an insolvent from acting as executor, and appoint a receiver e. An alien', or corporation, may be an executor 8; but idiots and lunatics are incapable of being executors or administrators h. Alien. An exe cutor may When there is a sole executor, his executor represents the testator; but if the first executor dies intestate, his administrator is not such representative; but an administrator de bonis non of the original testator must be appointed by the ordinary i. If the first executor should die without having proved the will, the executorship is determined, and an administrator cum testamento annexo must be appointed *. If there are several executors, the interest is transmissible to the executor of the surviving executor only, unless he dies intestate, in which case an administrator de bonis non must be appointed1. a The person nominated executor in the will of the testator, Pigot & Gascoigne's Case, Thrustout v. Coppin, 2 Bl. 801. Hix v. Harrison, 3 Bulst. 219. d R. r. Raines, 1 Ld. Raym. 361. e Uterson v. Mair, 2 Ves. Jun. 95. Scott v. Becher, 4 Price, 346. f Caroon's Case, Cro. Car. 8. Co. Litt. 129. n. & Wms. 114. h 1d. 121. Id. 133. Com. Dig. tit. Admin. B. 6. Wankford v. Wankford, I Salk. 308. 2 Bl. Com. 506. Tingrey v. Brown, 1 B. & P. 310. It seems that where a testator's will is proved in a prerogative court, and his executor's will in a diocesan court, the executor of the executor is not the personal representative of the original testator. Jernegan r. Baxter, 5 Simon. 568. * Day v. Chatfield, 1 Vern. 200. Hayton v. Wolfe, Cro. Jac. 614. Isted v. Stanley, Dyer, 372. 1 Wentw. Off. Ex. 215. may refuse to accept the office a. But the ordinary may summon such person before him, with intent to prove or refuse the testament, within any time which he may think proper 1, and if he refuses, administration cum testamento annexo will be granted to another. The refusal must be by some act entered or recorded in the spiritual court; but if the executor sends a letter to the ordinary, by which he renounces, it will be sufficient d. An executor cannot in part refuse, he must refuse entirely or not at all e. If a sole executor renounces, he cannot afterwards retract, and be admitted to take probate as executor; but if one or more out of several executors prove the will, and others renounce, those who renounced it may assume the executorship after the death of their co-executors who took out probate, though those who renounced had never before acted f Although an executor may accept or renounce the executorship at his option, yet if he once administers, or intermeddles with the effects of the testator, the ordinary may compel him to prove the wills; and if he administer, and omit to take probate within six months after the death of the deceased, he will forfeit 100%., and 107. per cent. on the duty h. refuse to accept the office. SECTION II. OF AN EXECUTOR DE SON TORT. stitutes an executor de If any person, without just authority, take upon himself to What conact as executor, by intermeddling with the goods of the deceased, he is called an executor of his own wrong, or more son tort. usually, executor de son tort; and he is liable to all the troubles of an executorship without any of the profits or advantages i. A very slight circumstance of intermeddling with the effects of the deceased will make a person executor de son tort, as milking a cow, even by the widow of the deceased, or taking a dog. So if a man kills the cattle, or disposes of the goods, or takes them in satisfaction of his own debt or legacy, or exercises any right in respect of them, by taking possession of them or otherwise, it will be sufficient to constitute him executor de son tort d. Living in the house, and carrying on the trade of the deceased as a victualler, has been held sufficient, where the person's wife, who was daughter of the deceased, proved the will, after the action was commenced, and she and her husband were in the house before the death of the testatore. To make a man liable as executor de son tort, it is not essential that the dealing with the chattels of the deceased should be in the character of executor; therefore, where a party had received possession of goods from the widow of a deceased person, being aware at the time that they were the property of the deceased; held, that it was sufficiently an intermeddling to make him liable as an executor de son tort. And even the possession of goods which the defendant had received from the deceased in his lifetime, under a colourable sale, may be sufficient to charge him as an executor de son tort s. deceased make a deed of gift, or bill of sale, of his B., in fraud of his creditors, and B., after the death of the donor, disposes of those goods, it is sufficient to constitute him executor de son tort h. So if the effects to But if the will be proved, or administration taken out, and a stranger takes the goods, and claiming them as his own, uses and disposes of them; this will not make him executor de son |