So where a testator bequeathed his estate in trust to F. and G., who were nominated executors, with directions conjointly with the testator's wife to appoint a third person as trustee and executor, it was held by Sir H. Jenner Fust that, though there was no probability of agreement between F. and G. and the testator's wife in the choice of such third person, the appointment of executors was not thereby void, but that F. and G. were entitled to probate, with a power reserved for the third person when appointed (r).

344.

(r) Jackson v. Paulet, 2 Robert. It was objected that, under the Wills' Act, probate could be decreed only to a person named in a duly executed testamentary paper. But the Court said, the case was

not like one where a testator, in his Will, reserves to himself a power to deal hereafter with his Will by writings not duly executed. (See ante, p. 87.)

CHAPTER THE THIRD.

IN WHAT WAYS THE APPOINTMENT OF EXECUTOR MAY BE
QUALIFIED.

THE appointment of an executor may be either absolute
or qualified. It may be absolute, when he is constituted
certainly, immediately, and without any restriction in regard
to the testator's effects, or limitation in point of time (a).
It may be qualified, by limitations as to the time or place
wherein, or the subject-matter whereon, the office is to be
exercised or the creation of the office may be conditional.
It may be qualified by limitations in point of time, inas.
much as the time may be limited when the person appointed
shall begin, or when he shall cease, to be executor. Thus if
one appoint a man to be his executor at a certain time, as
at the expiration of five years after his death (b), or at an
uncertain time, as upon the death or marriage of his son (c),
this is a good appointment. Where the deceased appointed
two executors, and, in case of the death of either of them,
appointed two others to be executors in their stead; on the
death of the original executor who had alone proved the
Will, the substituted executors were admitted to the office (d).
So if a man appoints his son to be executor when he shall
come to full age (e), such qualified appointment is good; and
in the mean time he has no executor. Again, the testator
may appoint the executor of A. to be his executor: and
then if he die before A. he has no executor till A. die (ƒ).

(a) Toller, 36.

(b) Swinb. Pt. 4, s. 17, pl. 1. Wentw. Off. Ex. 22, 14th edition. (c) Swinb. Pt. 4, s. 17, pl. 4. (d) In the goods of Lighton, 1 Hagg. 235: A proxy of consent

was exhibited from the original
executor who had not proved.
(e) Wentw. Off. Ex. 22, 23, 14th
edition.

(f) Ibid. Godolph. Pt. 2, c. 2,
s. 4. Graysbrook v. Fox, Plowd. 281.

1. Limitations in point of time:

as to when the

executor shall

begin to execute

his office:

shall cease:

So a man may make A. and B. his executors, and appoint that A. shall not intermeddle during the life of B., and by this they shall be executors successively, and not jointly (g). as to when he Likewise the testator may appoint a person to be his executor for a particular period of time only, as during five years next after his decease (h), or during the minority of his son, or the widowhood of his wife (i), or until the death or marriage of his son (k). In a case (1) where a widow was appointed executrix and residuary legatee for life, with remainder, as to the residue, to the nieces of the testator, and by a codicil it was provided, that in case she thought proper to marry again she and the nieces should agree on proper persons to be trustees, to whom she was directed to assign all the real and personal estate, in trust for the uses of the Will, but so as not to be liable to the debts, or subject to the power, of her second husband, it was held that her executorship expired on her second marriage.

in these cases an administrator may be appointed till there be an ex

ecutor, or after

the executorship is ended.

In these cases, if the testator does not appoint a person to act before the period limited for the commencement of the office on the one hand, or after the period limited for its expiration on the other, the Ordinary may commit administration to another person, until there be an executor, or after the executorship is ended (m).

(g) Wentw. Off. Ex. 31, 14th edition. Bro. Executors, 155. But where two were made executors with a proviso or clause, that one of them should not administer the goods, this was held void for repugnancy by Brudenel and Englefield, Justices; but Fitzherbert, Justice, was of mind that it was not void, nor utterly repugnant, for the other might join in suits, though not administer: And Shelley, Justice, was of a third opinion, different from all the rest, viz. that there was a repugnancy, but the last clause should control the pre

mises, and so this one only should be executor: Anon. Dyer, 3, b. Wentw. Off. Ex. ubi supra. See also Bro. Executors, 9, citing 3 Hen. VI. 6, 7, where Martin, J. gives an opinion similar to that of Shelley, J., above.

(h) Swinb. Pt. 4, s. 17, pl. 1. (i) Wentw. Off. Ex. 29, 14th edition. Godolph. Pt. 2, c. 2, s. 3. Carte v. Carte, 3 Atk. 180. Pemberton v. Cony, Cro. Eliz. 164.

(4) Swinb. Pt. 4, s. 17, pl. 4. (1) Bond v. Faikney, 2 Cas. temp. Lee, 371.

(m) Swinb. Pt. 4, s. 17, pl. 2,

in point of

place.

In like manner, the appointment may be limited in point 2. Limitations of place as thus; the testator may make A. his executor for his goods in Cornwall, B. for those in Devon, and C. for those in Somerset (n) or he may make different executors for his goods in different dioceses, or different provinces (0) or, which seems more rational and expedient, he may so divide the duty when his property is in various countries (p).

Again, the power of an executor may be limited as to the subject-matter, upon which it is to be exercised. Thus the testator may make A. his executor for his plate and household stuff, B. for his sheep and cattle, C. for his leases and estates by extent, and D. for his debts due to him (q). So a person may be made executor for one particular thing only, as touching such a statute or bond, and no more (1). And the same Will may contain the appointment of one executor for general, and another for limited purposes (s). But although a testator may thus appoint separate executors of distinct parts of his property, and may divide their authority,

Plowd. 279, 281: This will be an administration cum testamento annexo, and the person entitled to it will be discovered by referring to the rules respecting that species of administration: See post, Pt. 1. Bk. v. Ch. III. § I.

(n) Swinb. Pt. 4, s. 18, pl. 1. Godolph. Pt. 2, c. 2, s. 3. Wentw. Off. Ex. 29, 14th edition. Bro. Executors, 2, 155. Anon. 2 Sid. 114, per tot Cur. Spratt v. Harris, 4 Hagg. 408, 409.

(0) Swinb. Pt. 4, s. 18, pl. 4. (P) Toller, 36. 4 Hagg. 408, 409.

(1) Dyer, 4, a. Wentw. Off. Ex. 29, 14th edition. Godolph. Pt. 2, c. 3, pl. 2, 3. Bro. Executors, 155. Austre v. Audley, 1 Roll. Abr. 914, (S.) pl. 4. See however the judgment of Lord Hardwicke in

Owen . Owen, 1 Atk. 495, contra,
post, Pt. III. Bk. 1. Ch. II.

で。

(r) Wentw. Off. Ex. 29, 14th edition. Davies . Queen's Proctor, 2 Robert. 413. But when the testator said, "I make my wife my full and whole executrix of all my cattle, corn, and moveable goods," and said nothing of what should be done with the residue of his estate, as leases and debts, Jones and Croke, Justices, held that she was sole and absolute executrix for the whole estate, as well leases and debts as other things; but Berkeley, Justice, thought that she was a special executrix for the things named, and not a general executrix: Rose v. Bartlett, Cro. Car. 293.

(s) Lynch . Bellew, 3 Phillim.

424.

3. Limitations ject-matter.

as to the sub

4. The appointment may

yet quoad creditors, they are all executors, and as one executor, and may be sued as one executor (t).

Lastly, the appointment may be conditional; and the con. be conditional. dition may be either precedent or subsequent (u). Thus it may be, that he give security to pay the legacies, and in general to perform the Will, before he acts as executor (r). In Alice Frances' case (y), the testator willed, that if his wife suffered J. S. to enjoy Blackacre for three years, then she should be his executor; but if she disturbed J. S., then he made his son executor: It was held in C. B. by all the Justices (The Lord Anderson at first dissentiente) that she was executrix presently; for this should not be construed a condition precedent, but as a condition to abridge her power to be executrix, if she perform it not.

In a case where an executor was appointed, provided he proved the Will within three calendar months next after the death of the deceased, it was held, that in computing the time, the day of the death was to be excluded (z). But if he fails to prove the Will within three months, his appointment is void (at all events if there be substituted executors), though the failure were through the inadvertence of his solicitor, and though he has acted in the execution of the trusts of the Will (a).

(t) Rose v. Bartlett, Cro.Car. 293. (u) Wentw. Off. Ex. 23, 14th edition. Godolph. Pt. 2, c. 2, s. 1. Should the executorship be determined by a breach of the condition, yet all acts done by the executor in pursuance of his office, before such condition broken, are good: Godolph. Pt. 2, c. 2, s. 1. See post, Pt. 1. Bk. vi. Ch. III.

(x) Godolph. Pt. 2, c. 2, s. 1. Wentw. Off. Ex. 28, 14th edition. Where A. made B. and C. executors, and added, "I will that C. shall pay my other executor all such debts as he owes me, before he meddle with anything of this

my Will, or take any advantage of this my Will for the discharge of the same debts, for that I have made him one of my executors," it was held that C. could not administer, or be executor, before he paid the debts: Stapleton v. Truelock, 3 Leon. 2, pl. 6.

(y) Dyer, 4, pl. 8, in marg. Went. Off. Ex. 28, 14th edition. S. C. semble, by the name of Jennings v. Gower, Cro. Eliz. 219. S. C. 1 Leon. 229.

(z) In the goods of Wilmot, 1 Curt. 1.

(a) In the goods of Day, 7 Notes of Cas. 553.