The Orphans Legacy, Part 2 · Chapter 1 – Chapter 4
CHAP. I. Of the Appointing or Conſtituting Executors.
1. The Teſtators freedome or Liberty in making Executors.
2. How the Office of Executorſhip may be perform'd or diſcharg'd, when a King is made Executor.
1. THe word Executor taken in the largeſt ſence falls under a three-fold acceptation, for ſo there is Executor à Lege conſtitutus, and that is the ordinary of the Dioceſs; and there is Executor à Teſtatore conſtitutus, and that is the Executor Teſtamentarius; and there is Executor ab Epiſcopo conſtitutus, and that is the Executor Dativus, who is called an Adminiſtrator to an Inteſtate: By the Civil Law this Executor Teſtamentarius, or Haeres in the Dialect of that Law, doth ſucceed in Ʋniverſum jus defuncti. aL. 1. Cod. de Heredib.Now the Law holds forth that Liberty to Teſtators that they may if they pleaſe exclude their own Wives and Children, and appoint ſtrangers in their Teſtaments to be their Executors; bBract. de Conſuetud. & Leg. Angl. lib. 2. cap. 26. & Tract. de Reb. Angl. lib. 3. cap. 7.for the validity of the Teſtators Will chiefly conſiſts (in) the freedome and liberty of the Will of the Teſtator. Therefore the Teſtator may if he pleaſe appoint even Bondmen, Villains, or Priſoners as his Executors, cInſt. de Haered. inſt.or Infants, dBrock. Abrid. tit. Execut. nu. 115.yea whether born or not born at the time of the Teſtators death; eJo. de Can. Tract. de Exec. ult. vol. partic. r. nu. 44.or Women, whether under Covert and Married, or Sole. fFitzh. & Broo. tit. Exec.Alſo Teſtators may if they pleaſe make ſuch perſons their Executors as are either their Debtors or their Creditors, gl. Simus. §. in computatione. C. de jure delib.or one ſingle perſon, or many joyntly as Co-Executors in ſeveral perſons, h§. unum. Inſt. de haer.or many joyntly repreſenting one Body, as a Colledge, City, or other Corporation. il. haered. C. de haered. Inſt. & Minſing. in dict. §. unum. & Graſ. Theſ. Com. Op. §. Inſt. q. 40.So likewiſe they may make their Executors ſimply and abſolutely, or conditionally; alſo from a certain time, or to a certain time; alſo either univerſally, or ſpecially and particularly; likewiſe in the firſt, ſecond, third, &c. degree by the ſubſtitution of one Executor in the place of another. And here note, that after how many wayes an Executor may be appointed, after ſo many and the ſame wayes may a Legacy be given; and whoſoever is capable of an Executorſhip, is alſo capable of a Legacy. kGloſs. in l. is cui. ff. de Teſt.Et è Contra.
2. When the King is made Executor, he doth appoint certain perſons to Officiate the Execution of the Will; againſt whom ſuch as have cauſe of Action may bring their Suits; and appointeth others to take the account. lRot. Par. 15 H. 6. n. 32.So Katherine Queen Dowager of England Mother of Henry the ſixth, who died 2 June, 1436. made her Will, and thereof Henry the ſixth her ſole Executor; whereupon the King appointed Robert Rolleſton, Keeper of the Wardrobe and others to Execute the ſaid Will, by the overſight of the Cardinal, the Duke of Gloceſter, and the Biſhop of Lincoln or any Two of them, unto whom they were to account.mCoke Inſt. part. 4. verb. Praerogat.
CHAP. II. Of Conditional Executors.
1. Executors may be appointed ſimply or conditionally.
2. Executors may be limited in point of time.
3. A threefold qualification of an Executors Power.
1. TEſtaments wherein the Executor is pure and ſimply made, are ſuch as wherein the Teſtator maketh his Executor without any condition at all; but when the aſſignation or nomination of the Executor hath ſome ſuch quality added to it or joyned with it, as whereby the effect of the diſpoſition is ſuſpended and depends upon ſome future event, then is ſuch aſſignation ſaid to be Conditional. aSichard. in Rub. de Inſt. & Subſt. C. nu. 1. & Graſſ. Theſ. Com. Op. §. legatum. …. 46.Alſo the condition in creating or appointing an Executor may be either precedent or ſubſequent; bH. 6. fol. 6.yea and ſometimes it may be conditionally that he give ſecurity to pay the Legacies, and, in general, to perform the Will before he Act as Executor. The conditions incident to the appointing of Executors are very numerous and uncertain according to the pleaſure of the Teſtator, ſo as they be neither neceſſary, nor impoſſible, nor unlawful, nor captious Conditions.
2. The time may be limited when the Executorſhip ſhall begin, and that either certainly or with reference to Contingency; cPlowd. in Caſ. inter Greith. & Fex. & 32 H. …. & Brook. nu. 155. tit. Execut. & tit. Adminiſt. nu. 45.for by the Laws of the Land it is lawfull for a Teſtator to appoint his Executor either from a certain time, or until a certain time; and in the mean time Adminiſtration may be committed to the next of Kin, or to the Widow; and the Acts then done by ſuch Adminiſtrator cannot be voided by the Executor afterwards; dPlowd. in dict. Caſ.and in this ſence the ſame perſon may be ſaid to die partly Teſtate and partly Inteſtate, which by the ſtrictneſs of the Civil Law is not allowable.eDec. Cagnol. & Hier. Franc. in l. jus noſtrum. ff. de Reg. Jur.
3. As the Conditions incident to the making of Executors and giving of Legacies, are (as aforeſaid) very many and full of variety; ſo alſo the power it ſelf of Executors may be limited, qualified, and divided, ſpecially theſe Three wayes, viz. Firſt, Really: as thus; he may make A. his Executor for his Plate and Houſeholdſtuff; B. his Executor for his Sheep and Cattel; C. his Executor for his Leaſes and States by extent; and D. his Executor for the Debts due to him. Secondly, Locally: as thus, viz. he may make E. his Executor for his Goods in Cornwall; F. his Executor for his Goods in Devon; and G. his Executor for his Goods in Somerſet. Thirdly, Temporally: as thus; he may make his Wife his Executrix during her Widow-hood, or during his Sons minority.f19 H. 8. 3. & 16 H. 8. Dyer. 4. Hill. 33 Eliz. in Com. B. & 32 H. 8. Bro…. 115.
CHAP. III. Of appointing Co-Executors.
1. How one alone or many joyntly may be made Executors.
2. How Executors may be made univerſally or particularly.
1. ONe perſon alone, or divers together, ſo the number be not too numerous, may be appointed Executors. a§. Et unum. Inſtit. de haered. inſtit.And where divers perſons be made Executors, all are to be admitted, and not one without the reſt, bl. religioſa. §. Sanct. de Teſt. lib. 6.unleſs they cannot or will not undertake the Executorſhip. cSupra. Par. 1. c. 20. §. 6.Which concluſion holds true, though he be a ſtranger who is joyned in the Executorſhip with the Teſtators own Son; it is true alſo whether the Executorſhip be appointed alternatively or disjunctively; in which caſe if the Teſtator ſay, I make A. B. or C. D. my Executors, both perſons are Admiſſable; dl. quidam. C. de verb. ſign. & Mant. de Con. ult. vol. l. 4. t. 3. n. 19.For this word [or] in favour of Teſtaments is taken for [and] edict. l. quid. C. ibid.unleſs it be moſt evident that the Teſtator did bear much more affection to the one than to the other, fRipa. in C. inter caeteros. De Reſ…ript. Extr. nu. 54.or unleſs the Authority of Election of the perſon be by the Teſtator granted unto another, gl. Si Titio aut Seio. ff. de Leg.or unleſs one of the perſons be incapable of the Executorſhip. hJaſ. in l. cum quid. C. de ver. …ig. limit. 5. & Broo. Ab…idgm. tit. Execut. n. 117.And here note, that where there be divers Executors, the Action commenced by them or againſt them, ought to be commenced in all their names, and not in the name of ſome of them only without the reſt.
2. Likewiſe an Executor may be appointed either univerſally or particularly. Ʋniverſally, when he is made Executor of the whole Will, or of all the Teſtators Goods, or indefinitely; il. 3. C. de mil. teſta.and ſuch Executor may enter into all the Teſtators Goods; kl. haered. ff. de Reg. jur. & ibi Cogn. & Plowd. in Caſ. inter Creisb. & Fox.in which reſpect he is univerſally chargeable with the payment of all his Debts and Legacies, ſo far as the ſame Goods extend. lTe…ms of law. verb. Exec.Alſo an Executor may be appointed Particularly, that is, of ſome part of the Will, or only of ſome part of the Teſtators Goods; mFitzh. Abr. tit. Exec. n. 26. Broo. eod. tit. a. …. & 155.in which reſpect ſuch Executor may meddle with no more than is allotted to him, and ſo not chargeable but according to his portion. nFitzh. & Br. ubi ſupra. & l. ſi haered. de Eleg. 1.And if there be no other Executor appointed, ſuch particular Executor cannot meddle with the reſidue of the Goods; for of them the Teſtator by the Laws of this Land is ſaid to die Inteſtate. oFitzh. & Br. Ibid.And thus in this caſe alſo may the ſame perſon die both Teſtate and Inteſtate, not only in reſpect of time, as aforeſaid, but alſo in reſpect of place and Goods, contrary (as was before declared) to the ſtrictneſs of the Civil Law. In the ſame ſence alſo one may be made univerſal or particular Legatary. And where the Teſtator leaves all his Goods or the reſidue of them to ſome perſon, none elſe being appointed Executor, that perſon in Law ſeems to be appointed Executor thereof, at leaſt admiſſable to the Adminiſtration.
CHAP. IV. Of Subſtitutions and appointing Executors by degrees.
THe Teſtator is then ſaid to make degrees of Executors when he doth ſubſtitute one in place of another; al. poteſt quis. ff. de vulg. Subſt. & Inſt. de vulg. Subſt. in prin. & Franc. poſt Gloſ. in cap. ult. de Teſta. 6. & Broo. tit. Exec. nu. 9.For an Executor may be made either in the firſt, ſecond, third, fourth or fifth degree, &c. bIbid.And he that is made Executor in the firſt degree is ſaid to be inſtituted, the reſt are ſaid to be ſubſtituted: cZaſ. in Tract. de ſubſt. in prin.As thus; The Teſtator maketh A. his Executor, but if he will not or cannot be his Executor, then he maketh B. his Executor, and if B. cannot or will not be his Executor, then he maketh C. his Executor; and ſo on. In which example there be Three degrees of Executors; A. is ſaid to be inſtituted Executor in the firſt degree; B. is ſaid to be ſubſtituted Executor in the ſecond degree; and C. is ſaid to be ſubſtituted in the third degree. And ſo it is lawful for a Teſtator to make as many degrees of Executors as he pleaſes; ddict. l. poteſt quis. ff. de Vulg. Subſt. & Inſt. eod. tit. in prin.and in the place of one only Executor he may if he pleaſe ſubſtitute more than one. e§. plures. Inſt. ibid.Alſo it is lawful for the Teſtator to inſtitute an Executor ſimply, and to ſubſtitute another in his place conditionally; fl. qui Liberis. ff. de Vulg. Subſtit.or to inſtitute one conditionally, and to ſubſtitute another ſimply. gl. ſub Conditione. ff. de haered. inſtit.And ſo long as he that is appointed Executor in the firſt degree may be Executor, he in the ſecond degree may not be admitted. hl. quamdiu. ff. de Acq. haered. & l. cum in teſta. ff. de haered. inſtit. & l. poſt ad C. de Impub.Likewiſe by the ſecond degree the third is repelled, and by the third the fourth, &c. Alſo if but any one of the Executors in the firſt degree may be admitted, the Subſtitute is excluded, unleſs the Teſtator doth appoint to every Executor firſt inſtituted his ſeveral Subſtitute reſpectively. il. quidam. C. de Impub.Alſo the Subſtitute ought to ſucceed in that part or quantity of the Teſtators Goods which was aſſigned to the former Executor.kl. 1. C. eod.