It is not thought expedient to go further into the law of conditional appointments of executors, which the reader will find fully discussed in Swinburne (b) and Godolphin (c). The parts of the subject which seem necessary to be introduced into this Treatise will be found subsequently, when conditional legacies are considered (d). (b) Pt. 4, s. 5-16. (d) Post, Pt. III. Bk. III. Ch. II. $ VI. several executors, no in missible, except to the survivor. dies, leaving one or more of his co-executors living, no terest is trans- interest in the executorship is transmissible to his own executor, but the whole representation survives, and will be executor of the transmitted ultimately to the executor of the surviving executor, unless he dies intestate. Thus, if A. makes B. and C. executors, then B. makes J. S. executor and dies, and afterwards C. dies intestate, the executor of B. shall not be executor of A., because the executorship wholly and solely vested in C. by the survivorship; and so administration de bonis non shall be committed (i). The law is the same where there are several executors, and one alone proves the Will, and the rest renounce before the Ordinary; there, upon the death of him who proved, no interest is transmitted to his executor, if any of those who refused be surviving (k). (i) Wentw. Off. Ex. 215, 14th edition. In the goods of Smith, 3 Curt. 31. (k) Arnold v. Blencowe, 1 Cox, 426. CHAPTER THE FIFTH. OF AN EXECUTOR DE SON TORT. 44 HAVING thus considered the appointment of executors by legal means, it remains to treat of a class who are in some sort regarded as executors, but who assume the office by their own intrusion and interference. 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 wrong, or more usually, an executor de son tort (a). taking a So in one What acts constitute an ex ecutor de son A very slight circumstance of intermeddling with the goods of the deceased, will make a person executor de son tort. Thus it is said in Dyer, in margine (b), that milking tort. the cows, even by the widow of the deceased, or dog, will constitute an executorship de son tort. case the taking a Bible, and in another a bedstead (c), were held sufficient, inasmuch as they were the indicia of the person so interfering being the representative of the deceased (d). So if a man kills the cattle (e), or uses or gives away, or sells any of the goods (ƒ), or if he takes the goods (a) The definition of an executor de son tort, by Swinburne, Godolphin, and Wentworth, is in the same words, viz., "He who takes upon himself the office of executor by intrusion, not being so constituted by the deceased, nor, for want of such constitution, substituted by the [Ecclesiastical] Court to administer;" Swinb. Pt. 4, s. 23, pl. 1. Godolph. Pt. 2, c. 8. s. 1. Wentw. Off. Ex. c. 14, p. 320, 14th edition. But the term is, in the older books, sometimes applied VOL. I. to a lawful executor, who mal-ad- (b) P. 166, b. (c) Robins's case, Noy, 69. (e) Godolph. Pt. 2, c. 8, s. 4. (f) Read's case, 5 Co. 33, b. Padget v. Priest, 2 Term. Rep. 97. Godolph. Pt. 2, c. 1, s. 1. Swinb. Pt. 4, s. 23: So if he gives them away to the poor: Dyer, 166, b. in marg. 1. Where there is a sole execu tor, his executor represents the first testator: CHAPTER THE FOURTH. IN WHAT CASES THE APPOINTED EXECUTOR MAY TRANSMIT HIS APPOINTMENT. ALTHOUGH the executor cannot assign the executor. ship (a), yet the interest vested in him by the Will of the deceased, may, generally speaking, be continued and kept alive by the Will of the executor; so that if there be a sole executor of A., the executor of such executor is, to all intents and purposes, the executor and representative of the first testator (b). But if the first executor dies intestate, then his administrator is not such a representative, but an adminis trator de bonis non of the original testator must be appointed by the Ordinary (c): for the power of an executor is founded but his admin upon the special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another, in whom he has equal confidence; and so long as the chain of representation is unbroken by any intestacy, the ultimate executor is the representative of every preceding testator: But the administrator of the istrator docs not: (a) Bedell v. Constable, Vaugh. 182. (b) Com. Dig. tit. Administration (G) tit. Administrator (B. 6). Touchst. 464. Wankford v. Wankford, 1 Salk, 308. Stat. 25 Edw. III. st. 5, c. 5. Wentw. Off. Executor, 461, 14th edition. Bro. Administrator, pl. 7. 2 Bl. Comm. 506. The rule is the same, though the original probate was a limited one: In the goods of Beer, 2 Robert. 349. See post, Pt. III. Bk. 1. Ch. III. as to whether a power given to an executor is transmissible to his executor. (c) Bro. Abr. Administrator, pl. 7. Com. Dig. Administrator (B. 6). 2 Bl. Comm. 506. Thus it was held that the administratrix of an executrix could not sue for the double value of lands held over, after notice to quit under a demise from the testator, contrary to stat. 4 Geo. II. c. 28, without taking out administration de bonis non, even though the tenant had attorned to her: Tingrey v. Brown, 1 Bos. & Pull, 310. executor is merely the officer of the Ordinary, and has no privity or relation to the original testator, being only com missioned to administer the effects of the intestate executor, and not of the original testator (d). If the first executor should die, without having proved the Will (e), the executorship is not transmissible to his executor, but is wholly determined, and an administrator cum testamento annexo must be appointed (f). the executor of the executor does not repre sent the first testator, unless the first execu tor proves the A married woman, being executrix, may continue the wall. chain of representation, by making her own executor (g). In Barr v. Carter (h), Elizabeth Chapman, a married Transmission of executorship woman, made a Will, merely executing a power given her by a feme co by the marriage settlement, but she also went on to appoint vert executrix. Elizabeth Carter sole executrix of that her Will: She died in the lifetime of her husband; and the Ecclesiastical Court granted probate of this Will in the general form: The testatrix was herself the executrix of a former husband, Thomas Hawley And it was held that the general probate of her Will transmitted the representation to Elizabeth Carter, so as to make her the personal representative of the first testator, Thomas Hawley. If there are several executors appointed, and one of them If there are (d) 2 Bl. Comm. 506. However the administrator durante minore ætate of the executor of an executor is the representative of the first testator; for such an administrator is loco Executoris: Anon. 1 Freem. 287. Contrà, Limmer v. Every, Cro. Eliz. 211, as cited by C. B. Gilbert, in Bac. Abr. Executors (B. 1). But see Mr. Smirke's note, in his valuable edition of Freeman. (e) But if administration cum testamento annexo has been granted under his letter of attorney for his use or benefit to another, it is the same thing as if he had proved the Will himself: In the goods of Bayard, 1 Robert. 769. S. C. 7 a. (f) Isted v. Stanley, Dyer, 372, (g) Birkett v. Vandercom, 3 |