CHAP. II. OF THE LAW RELATING TO THE DUTIES OF EXE- SECTION I. The capacity for the office.-The manner of appointment thereto―The refusal and acceptance thereof -what may be done before probate. and who may not, be execu tor. A PERSON excommunicated, until absolution”;— Who may, an alien belonging to a country at war with us and residing abroad, or here without the king's licence ;persons who from any cause are without common understanding, or who want the common inlets of knoware incapable of the office of executor or ad ledge®, ministrator. But an infant may be appointed, (though by 38 Geo. 3. c. 87. § 6. he cannot act until he is twenty-one, and administrator must be substituted in the mean time",) an Appointment. Of the renunciation. and so may a married woman with the consent of her husband; but if she is under twenty-one he shall exercise the office. A foreigner belonging to a country at peace with us, a Roman Catholic conforming to the requisites of the 31 Geo. 3. c. 32. and a person outlawed or attainted", are also capable of being executors. The appointment of an executor is grounded on the will, and he may be constructively appointed by any words denoting the testator's intention to invest him with the character. The office may be qualified either as to the time of its taking place, its duration, or the subjects to which it is to extend; and may be committed to several persons, as co-executors, who are then considered in law as an individual. An executor must, on being cited, appear before the ordinary, or he becomes liable to excommunication for a contempt. He may then renounce the office by refusing to take the customary oath, or if he be a Quaker the affirmation': but this cannot be done by a mere verbal declaration, for his renunciation must be entered and recorded in the spiritual court before the ordinary; nor after taking the usual oath before the surrogate, for thereby he will have made his election. to act; nor after he has once administered. He cannot renounce in part'; neither can he assign the of 3 Bac. Abr. 9. 'Off. Ex. 215. 3 Bac. Abr. 6. *Rolls Abr. 907. fice to another, but in case of his renunciation administration with the will annexed will be granted to another. If he renounces in person he must take an oath that he has not intermeddled with the effects of the deceased, and will not intermeddle therewith with a view of defrauding the creditors. After administration granted he cannot assume the execution during the life of the administrator*, but after his death he may retract his renunciation, however formally made; and if administration be granted merely in consequence of his non-appearance he has a right at any future time to come in and prove the will'. amount to an admi nistration. The acts which amount to an administration are all What acts such as in law belong to the office of an executor; so that if there be two executors, and one of them has a specific legacy bequeathed to him, and he takes possession of it without the consent of his co-executor, such an act amounts to an administration. If there be several executors they must all duly renounce before administration with the will annexed can be granted; but if some only renounce, and the rest prove the will, those who renounced may come in at any future time and administer; and if they never acted during the lives, they may assume the execution of the will after the deaths of their co-executors, and 3 Bac. Ab. 42, 43. "Com. Dig. Admon. (B. 4.) E 2 Derivative executor. The autho rity of exe cutor is from the vested on shall be preferred to any executor appointed by them ". The executor of an executor is to all intents and purposes the executor of the first testator", and may be so named in legal proceedings, and so on through any number of successive executorships; but if there are two or more original executors, the interest goes only to the executor of the last survivor; and if he renounces, the original executorship will not go to his executor, but administration will be granted". If the executor of an executor intermeddle with 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". The authority of an executor being derived from the will must be considered as completely vested at will, and is the instant of the testator's death. He may, therefore, the death before proving the will, do all that which an executor of testator. after probate may do, except that, although he may commence actions in right of the testator, yet he cannot declare; since in order to maintain his claim in a court of law, he must produce the probate; but when produced, it shall be considered as relating back to the time of suing out the writ'. He may also arrest a debtor to the estate, and shall be justified in that act the pro by this relation of the probate. But such relation Relation of shall not prejudice a third person; and therefore when bate. the debtor after being arrested by the executor before probate paid a debt to another creditor, and continued two months in prison, he was adjudged not to be a bankrupt from the time of the arrest so as to invalidate that payment'. He may also before probate maintain actions on his own actual or constructive possession, as trespass, detinue, replevin and trover for goods or cattle of the testator taken or converted after the testator's death". Again, supposing him to have intermeddled, he may be sued at law by the creditors of the testator; as the law will not suffer him by his delay to impede the rights of those, to whom by his interference he has made himself responsible". dies before If he dies before probate he is considered in law as Where he intestate in regard to the executorship; although he probate. may have made a will and appointed executors, and although he die after taking the oath, if before the passing of the grant. If A. be executor for a certain period, and B. nominated for the time subsequent, and A. prove the will, after that time has expired, B. may sue without another probate'. Roll. Abr. 917. 11 Vin. Abr. 203. Plowd. Com. 280. b. '11 Vin. Abr. 68. 90. 2 11 Vin. Abr. 204. 3 Bac. Abr. 53. 11 Vin. Abr. 205. 2 Vern. 49. * Ca. Ch. 265. 11 Vin. Abr. 56. |