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istered by the former executor or administrator. And this administrator de bunis non is the only legal representative of the deceased in matters of personal property. But he may have only a limited or special administration committed to his care, viz.: of certain specific effects, such as a term of years; the rest being committed to others. V. OFFICE AND DUTIES OF EXECUTORS AND ADMINISTRATORS.
Duties of Both Compared. These in general are the same in both executors and administrators, except, first, that the executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, ånd then he differs still less from an executor; and second, that an executor may do many acts, before he proves the will, but an administrator can do nothing, till letters of administration are issued; for the former derives his power from the will and not from the probate, while the latter owes his power entirely to the appointment of the ordinary.
Executor de son Tort. If a stranger assumes to act as executor without just authority, as by intermeddling with the goods of the decedent, and many other acts, he is called in law an executor of his own wrong, de son tort, and is liable to all the troubles of an executorship, without any of its profits or advantages. But merely performing acts of necessity or humanity, as burying the corpse of the deceased, or locking up his goods, will not amount to such meddling, as will charge a man as executor of his own wrong.
Liability of an Executor de son Tort. He cannot bring an action himself, in right of the deceased, but actions may be brought against him, in which creditors shall name him executor, generally, for they would naturally conclude his assumption of such position indicated his possession of a will of the deceased, which had not yet been probated. He is chargeable with debts: of the decedent, to the extent of the assets that may come into his hands, and as against creditors shall be allowed all payments made to any other creditor in the same or a superior degree, himself only excepted. Though as against the rightful executor or administrator, he cannot plead such payment, yet it shall be allowed him in mitigation of damages, unless, perhaps, upon a deficiency of assets, the rightful executor may be prevented from satisfying his own debt.
1. Funeral Expenses. A rightful executor must bury the deceased in a manner suitable to the estate he left behind him. Necessary funeral expenses are allowed previous to all other debts and charges, but, if the executor or administrator be extravagant in such expenditures, it is a species of waste of the property of the deceased, and shall be prejudicial to him only, and not to his creditors or legatees.
2. Probate of the Will. The executor, or the administrator durante minore aetate, or durante absentia or cum testamento annexo must prove the will of the deceased, which is done either in common form, that is, only upon his own oath before the ordinary or his surrogate, or per testes, in more solemn form of law, in case the validity of the will is disputed. When the will is so proved, the original must be deposited in the registry of the ordinary, and a copy be made out under the seal of the ordinary and delivered to the executor or administrator, together with a certificate of its probate.
Letters of Administration. In default of any will, the person entitled to administer must take out letters of administration, under the seal of the ordinary, whereby an executorial power to collect and administer, that is, dispose of the goods of the deceased, is vested in him, upon his entering into a bond with sureties to faithfully execute his trust.
Property in Two Jurisdictions. If all the goods of the deceased lie within the same jurisdiction, a probate before the ordinary, or an administration granted by him, will suffice, but if the deceased had bona notabilia, or chattels to the value of a hundred shillings in two distinct jurisdictions, then the will must be proved, or administration taken out before the metropolitan of the province, by way of special prerogative. Whence the courts, where the validity of such wills is tried, and the offices, where they are registered, are called the prerogative courts and the prerogative offices of the provinces of Canterbury and York.
Prerogative Courts. Which prerogative is based on the fact, that as the bishops were originally the administrators of all intestates in their respective dioceses, and as the present administrators are in effect none other than their officers or substitutes, it was impossible for them to collect any goods of the deceased, other than such as lay within their own dioceses, beyond which their episcopal authority did not extend. But it would be extremely troublesome to take out administrations for every diocese in which the deceased had bona notabilia, and it would puzzle creditors and legatees to ascertain from what fund their demands would be paid. A prerogative is, therefore, vested in the metropolitan of each province, to make in such cases one administration serve for all. This accounts for the taking out of administration to intestates, that have large and diffusive property, in the prerogative court; and the probate of wills naturally follows the powers of granting administrations.
3. Inventory. The executor or administrator is to make an inventory of all the goods and chattels, whether in possession or action, of the deceased, which he is to deliver to the ordinary upon oath, if required.
4. Collection of Assets. He is to collect all the goods so inventoried, and to that end has large powers and interests conferred on him by law; being the representative of the deceased, and having the same property in the goods, as his principal had when living, and the same remedies to recover them. Whatever is recovered, that is of a saleable nature and may be converted into ready money, is called assets in the hands of the executor or administrator (from the French, assez), that is, sufficient or enough to make him chargeable to a creditor or legatee, so far as such goods and chattels extend. All such assets he may convert into ready money to meet demands, that may be made upon him.
5. Payment of Decedent's Debts. In the payment of debts, he must observe the rules of priority, otherwise on deficiency of assets, if he pays those of a lower degree first, he must answer those of a higher grade out of his own estate.
(1.) He must pay all funeral expenses, and the costs of probate of the will, and the like.
(2.) Debts due the king on record or specialty.
(5.) Debts due on special contracts, as for rent, for which the lessor has a better remedy by distraining, or upon bonds and covenants, under seal.
(6.) Debts on simple contracts, viz.. upon notes unsealed and verbal promises. Among these simple contracts, servants' wages are, with reason, preferred to any other, and so stood the ancient law.
Personal Debt of the Executor. Among debts of equal degree, the executor or administrator is allowed to pay himself first, by retaining in his hands so much as his debt amounts to. This does not apply to an executor of his own wrong, for if it were so, creditors would strive to obtain possession of the decedent's goods. If a creditor constitutes his debtor his executor, this is a release or discharge of the debt, whether the executor acts or not, provided there be assets sufficient to pay the testator's debts, for otherwise it would be unfair to defraud the testator's creditors of their just debts, by a mere voluntary release.
Priority in Payment. If no suits have been commenced against an executor, he may pay any one creditor in equal degree his whole debt, though he has nothing left for the rest, for without a suit commenced, the executor has no legal notice of the debt.
6, Payment of Legacies. After the debts are all discharged, the legacies next are to be regarded, and are to be paid by the executor as far as his assets may extend, but he may not give himself preference therein.
Legacy, Defined. A legacy is a bequest or gift of goods and chattels by testament, and the recipient is the legatee, which every person is capable of being, unless particularly disabled by the common law or statute. This bequest transfers an inchoate property to the legatee, but the legacy is not perfect, without the executor's assent. In the executor all the chattels are vested, and it is his business first of all, to see whether there is a sufficient fund left to pay the debts of the testator, the rule of equity being, that a man must be just, before he is permitted to be generous.
Abatement of Legacies. Specific Legacy. In case of a deficiency of assets, the general legacies must abate proportionately, in order to pay the debts, but a specific legacy of a piece of plate, a horse, or the like, is not to abate at all, unless there be not sufficient without it. Upon the same principle, if the legatees have been paid their legacies, they are afterwards bound to refund a ratable part, in case debts come in more than sufficient to exhaust the residuum after the legacies are paid.
1 This was the rule at common law, but it has long been held, that a debt due from the executor of a testator is general assets of the estate, and the law will presume that the executor as an individual has paid such debt to himself in his representative capacity, and will consider it as assets in his hands, for which he will be personally liable at the action of any creditor.
Lapsed Legacy. Vested and contingent. If a legatee dies before the testator, the legacy is lost or lapsed, and shall sink into the residuum.' And if a contingent legacy be left to any one, as if he shall attain the age of twenty-one, and he dies before that time, it is a lapsed legacy. But a legacy to one, to be paid when he attains the age of twenty-one, is a vested legacy; an interest, which commences in praesenti, although it be solvendum in futuro, and if the legatee dies before that age,
representative shall receive it out of the testator's personal estate, at the same time, that it would have become payable, had the legatee lived. This distinction is borrowed from the civil law. But if such legacies be charged upon real estate, in both cases they shall lapse for the benefit of the heir."
Interest on Legacies. In case of a vested legacy, due immediately, and charged on land, or money in the funds, which yield an immediate profit, interest shall be payable thereon from the testator's death, but if charged on the personal estate, which cannot at once be obtained, interest will not commence until one year from the death of the testator.
Donatio Causa Mortis. There is also permitted another death-bed disposition of property, which is called a donatio causa mortis. This occurs, when a person in his last sickness, expecting death, delivers or causes to be delivered to another the possession of any personal goods, which may inter alia include bonds or bills drawn by the dying person on his banker, to keep in case of his decease. The gift, if the donor dies, needs not the assent of his executor, yet it shall not prevail against creditors, and is accompanied with this implied trust, that if the donor lives, the property itself shall revert to himself, being only given in contemplation of death, or mortis causa. This differs from a testamentary disposition of property, in being accom
1 An exception exists by statute of Victoria, where the legacy is to a child or other issue of the testator. In such case, the issue of such deceased legatee takes its parents legacy, provided the issue be living at the date of the testator's death.
2 Unless the will direct otherwise.
3 Not now the law. Interest on a pecuniary legacy is not payable for one year after the testator's death. The rule is different as to legacies charged on land.