when the action was commenced, or even when they pleaded, were both adjudged liable as executors of their own wrong. (q) So where a creditor took an absolute bill of sale of the goods of the debtor, but agreed to leave them in his possession for a limited time, before the expiration of which the debtor died, and the creditor took and sold the goods; he was held liable to the extent of their value, as executor de son tort, for the debts of the deceased. (r) So by stat. 43 Eliz. c. 8, if administration by fraud be granted to an insolvent person, who gives any of the effects to A., or releases a debt due from him to the intestate, A., for so much, shall be an executor de son tort. (s) [40] But there are many acts which a stranger may perform without incurring the hazard of being involved in such an executorship; (t) such as locking up the goods; directing the funeral, in a manner suitable to the estate which is left, and defraying the expenses of such funeral himself, or out of the deceased's effects; (u) making an inventory of his property; (v) advancing money to pay his debts or legacies; (w) feeding his cattle; repairing his houses; providing necessaries for his children; (x) for these are offices merely of kindness and charity. And although, as I have stated, a party may be executor de son tort of a term actually existing, and in that case cannot enlarge his estate by claiming in fee, yet if he enter generally on lands of which there is no term in being, he cannot qualify his wrong by expressly claiming only a particular estate, but must be a disseisor in fee, and not an executor de son tort. (y) Nor can there, generally speaking, be such an executor, when there is a rightful executor, or where administration has been duly granted; for, if after probate of the will, or administration granted, a stranger take possession of the property, he may be sued as a trespasser by the executor or administrator; but it is otherwise if, after taking such possession, he claim to be executor, pay or receive [41] debts, or pay legacies, or otherwise intermeddle in that character; (2) for in all those cases he becomes an executor of his own wrong. Whether a man has made himself such an executor, is a question not to be left to a jury, but is a conclusion of law resulting from the facts established in evidence. (a) SECT. III. Of the renunciation or acceptance of an executorship. AN executor may, if he please, decline to act, but he has no power to assign the office. (b) On his being cited by the ordinary, pursuant to stat. 21 H. 8. c. 5, to come in and prove the will, if he neglect to appear, he is punishable by excommunication for a contempt. (c) If he appear, either on citation, or voluntarily, and pray time to consider whether he will act or not, the ordinary may, though the practice seems now obsolete, grant letters ad colligendum in the interim: (d) If he refuse, he cannot be compelled to accept the executor[42] ship, and his renunciation is entered and recorded in the spiritual court before the ordinary. A refusal, by any (y) 3 Bac. Abr. 23, 24. Mayor of Norwich v. Johnson, 3 Lev.35, S.C. 3 Mod. 90, and 2 Show. 457. (z) 3 Bac.Abr.22.5 Co.33 b. Anon. Salk. 313. pl. 19. 11 Vin. Abr. 212. (a) Padget v. Priest, 2 Term Rep. 99. 92. (b) 3 Bac. Abr. 42. (c) Off. Ex. 37. Vide infra. act in pais, as a mere verbal declaration to that effect, is not sufficient; but, to give it validity, it must be thus solemnly entered and recorded, and then administration with the will annexed will be granted to another. (e) If the executor refuse to take the usual oath, or, being a quaker, to make the affirmation, this amounts to a refusal of the office, and shall be so recorded. (ƒ) In case the ordinary himself is nominated executor, he may renounce before the commissary. (g) If a party renounce in person, he takes an oath that he has not intermeddled in the effects of the deceased, and will not intermeddle therein with any view of defrauding the creditors. But he may renounce by proxy, and then the oath is dispensed with. An executor cannot in part refuse; he must refuse entirely, or not at all. (h) After such refusal, and administration granted, the party is incapable of assuming the executorship (i) during the [43] lifetime of such administrator; but, after the death of the administrator, the executor may retract his renunciation, however formally made: but if administration be committed consequence merely of his failure to appear on the abovementioned process, he has a right, at any future time, even in the administrator's lifetime, to come in and prove the will. (k) If he appear, and take the usual oath before the surrogate, he has made his election, and cannot afterwards divest himself of the office, but may be compelled to perform it. (7) So, if he once administer, he is absolutely bound; (m) and (e) Off. Ex. 38. 4 Burn Eccl. L. 198. Swinb. 6, s. 12. Roll. Abr. 907. (ƒ) 4 Burn Eccl. L. 213. Rex v. Raines, Ld. Raym. 363. (g) Ibid. 38. (h) 11 Vin. Abr. 139. Anon. Brownl. 82. Fooler v. Cooke, 1 Salk. 297. (i) Swinb. 6, s. 12. 3 Bac. Abr. 42, 43. Off. Ex. 39. (k) Off. Ex. ibid. Com. Dig. Admon. B. 4, infra. (7) Swinb. 6, s. 12. 1 Ventr. 335. 11 Vin. Abr. 207. (m) 4 Burn's Eccl. L.198. Swinb. 6, s. 12. Wankford v. Wankford, Salk. 301, 304, 307. by stat. 37 Geo. 3, c. 90, s. 10, if he administer, and omit to take probate within six months after the death of the deceased, he is liable to the penalty of fifty pounds. (n) The acts which amount to an administration are all such as indicate an election of the executorship, (o) and within this class all such acts as constitute an executor de son tort are of course comprehended. (p) Hence, it hath been adjudged, that if he take the goods of a stranger, under an [44] idea that they belonged to the testator, and with an intent to administer them, this act is sufficient to charge him; as, where the testator was tenant at will of certain goods, and the executor seized them, supposing they were part of the deceased's effects, and intending to administer them, this was held to be an election of the office. (q) So also where he inserts an advertisement, calling upon persons to send in their accounts, and to pay money due to the testator's estate to A., "his executor in trust." (qq) But it is otherwise if the executor take the testator's goods on a claim of property in them himself, although it afterwards appear that he had no right, since such claim is expressive of a different purpose from that of administering as executor. (r) So, if an executor sequester goods in the character of a commissary, that is no assent to the executorship. (s) But if there be two executors, and one of them have a specific legacy bequeathed to him, and take possession of it without the consent of his co-executor, such act amounts to an administration. (t) So, if an executor have refused before the ordinary, and administration hath been granted, if it appear he had administered before, and thus determined his election, the letters of administration may be revoked, and he may be enforced to prove. (u) Where during the life of an acting executrix, an executor who had not proved, interfered in the disposition of the testator's property as her friend or agent, he was held under the circumstances not chargeable as executor or trustee. (uu) But where one appointed executor intermeddled with the estate of the testator, and afterwards renounced, he was held liable to be sued in equity in the character of executor, by the legatees under the will, one of whom was also executrix, and had proved the will. (v) If there be several executors, they must all duly renounce before the administration with the will annexed can be granted. (vv) [45] If some of them renounce before the ordinary, and the rest prove the will, the renunciation is not peremptory; such as refused may, at any subsequent time, come in and administer, and although they never acted during the lives, they may assume the execution of the will after the death of their co-executors, and shall be preferred before any executor appointed by them. (w) And if administration be committed before a refusal by the surviving executor, such administration will be void. (x) If an executor of an executor intermeddle in the administration of the effects of the first testator, he cannot refuse the administration of the effects of the latter; but he may take upon himself the latter, and refuse the former. (y) (un) Stacey v. Elph. 1 Myl. & Keen, 195. (v) Rogers v. Frank, 1 Youn. & Jer. 409. (vv) Roll. Abr. 907. (w) 5 Co. 28. 9 Co. 36 b. Anon. Dyer, 160. House v. Lord Petre, 2 Salk. 311. Mead v. Lord Orrery, 3 Atk. 239. Robinson v. Pett, 3 P. (y) Shep. Touchst. 464. |