The Orphans Legacy, Part 2 · Chapter 5 – Chapter 6
CHAP. V. Of the ſeveral wayes of Conſtituting Executors.
1. The bare nomination of an Executor is the Creation of a Will.
2. Words implying an Executor equivalent to the word Executor.
3. Inſtances of an Executorſhip without naming the word [Executor.]
4. Small Errours in a Will no prejudice to the Will.
1. THe bare naming of an Executor, in the name of a Will, without giving any Legacy, or appointing any thing to be done by an Executor, is ſufficient to make it a Will, and as a Will it is to be Proved: aOffic. Exec. c. 1. §. 1.for the naming of Executors is by Implication a gift or Donation to them of all the Goods, Chattels, Credits, and perſonal eſtate of the Teſtator, and the laying upon them an obligation of ſatisfying the Teſtators debts to the juſt value of the ſaid Goods and Chattels.
2. Although no Executor by the word [Executor] be expreſly in the Will nominated or appointed, yet if any other words or circumlocutions equivalent to the Function of an Executor, or to the charge and office which in any part pertains to an Executor, be recommended or committed to any one or more, it ſhall amount to as much as the Ordaining or Conſtituting of him or them Executors by the very word Executor. bCum tibi. de Teſta. Extr. ſum. Roſell. verb. teſta. §. 1. verſ. quibus verbis.For the Law in the interpretation of Wills and Teſtaments regardeth not ſo much the words as the meaning of the Teſtator. cl. quoniam. Mant. de Conject. ult. vol. l. 4. …. t. 3.Beſides, it is not alwayes neceſſary to expreſs the word [Executor] in the making of an Executor; dBroo. tit. Execut. nu. 98.nor indeed hath every Teſtator skill enough ſo to do, or to think it neceſſary. ePanor. in C. Ranuſius. nu. 3Wherefore it is ſufficient if the Teſtators meaning doth appear by other words of the like ſence. fin dict. l.▪ quoniam. C. de Teſta. & Mant. ſupra.Hence then it is evident that ſuch words as do imply the office of an Executor are as valid as the word [Executor] it ſelf; ſo that if the Teſtator declare by his Will that A. B. ſhall have his Goods after his death, to pay his debts, or otherwiſe to diſpoſe thereof at his pleaſure, or to that effect, he ſhall be his Executor. g39 H. 6. Dyer. 290.Inſomuch that he that doth commit all his Goods to the diſpoſition of another, doth not die Inteſtate; yea, if only Adminiſtration be (by that word) in a Will granted to one, Executorſhip doth thereby paſs. hM. 15, & 16 Eliz. 21 H 6. 6, 7. & 39 H. 6. Dyer. 290.And unto whom the Teſtator doth leave the reſidue of his Goods (none elſe as aforeſaid being appointed Executor) to him the whole Executorſhip doth paſs by that general Legacy, at leaſt the Adminiſtration as aforeſaid is to be granted to ſuch a general Legatary; the reaſon being, becauſe the ignorant and vulgar ſort know not for the moſt part how better to expreſs their meaning of an Executor, or the function thereof.
3. If the Teſtator ſaith, I commit all my Goods to the Adminiſtration, or to the diſpoſition of A. B. in this caſe he is made Executor, it being in effect as if he had ſaid, I make him my Executor: idict. cum tibi. De Teſta. extra. & Sum. Roſell. ubi ſupra.Or if he ſaith, I will that A. B. ſhall diſpoſe of my Goods which be in his cuſtody, he is thereby made Executor of thoſe parcells of Goods; kAbridg. dez Caſes. fol. 175. nu. 1.or if the Teſtator ſaith, I commit all my Goods to the hands and diſpoſition of A. B. In this Caſe alſo he is made Executor of all his Goods. lBroo. Abridg. tit. Exec. nu. 98.So alſo if he ſaith I make A. B. Lord of all my Goods: ml. his ver. ff. de haer. inſt.or, I leave all my Goods to A. B. nGloſ. Bart. & Bald. in dict. l. his verbis.or thus, I make A. B. Legatary of all my Goods: oMant. ubi ſupra. nu. 8.or I leave the reſidue of all my Goods to A. B. pPanor. in dict. c. Ranu. de Teſt. extra. nu. 3.or if the Teſtator ſaith, I will that A. B. be my Executor, if C. D. will not; in this Caſe C. D. is appointed to be Executor, and may if he pleaſe be admitted to the Executorſhip, and exclude A. B. qJul. Cla. §. teſt. l. 35. nu. 2.Or if the Teſtator ſuppoſing his Child, his Brother, or his Kinſman to be dead, doth ſay in his Will, viz. Foraſmuch as my Child, my Brother, &c. is dead, I make A. B. my Executor: In this Caſe, if the perſon whom the Teſtator thought dead be alive, he ſhall be Executor. rSichard. in Rub. de haer. inſt. C. nu. 3.Or if the Teſtator being demanded by another whether he doth make A. B. his Executor, doth anſwer, Yea, I do, or, What elſe, or, Why not, or, Whom elſe ſhould I make Executor, or, I cannot deny it, or other words to that purpoſe cum animo Teſtandi; this ſhall be a pure and ſimple aſſignation of A. B. to be Executor. sRipa. Alceat. Zaſius. & alii DD. in l. …. §. ſi quis ita. ff. de verbor. Oblig. & Jul. Clar. §. Teſt. q. 37.Alſo if the Teſtator doth make A. B. or C. D. his Executors; in this Caſe both of them ſhall be his Executors; becauſe (as aforeſaid) or] is here taken for [and] Provided alwayes in all the Caſes aforeſaid, and in every other the like Caſe, that the Teſtator have a firm and conſtant purpoſe and meaning to make his Will whenſoever he uttereth any ſuch words. fMantic. de Conject. ult. vol. lib. 4. tit. 4. in prin.And as it matters not by what ſignificant words the Executor is appointed: So it is not material in what part of the Will or Teſtament he is appointed, as whether in the beginning, or in the middeſt, or in the end thereof: u§. ante. inſt. de Legat. & Graſ. Theſ. Com. Op. Inſt. q. 1.So as that he be therein expreſſed or ſufficiently implyed as aforeſaid.
4. Falſe Engliſh, or words miſ-ſpelt in a Will, or other common miſtakes ſhall not prejudice the Will or diſpoſition or Executorſhip, if it may evidently appear what or whom the Teſtator meant, and that at the ſame time he was not non ſanae memoriae; yea, though the Will want the words of concluſion, viz. In witneſs whereof, &c. It is good in caſe it may otherwiſe appear to be the Teſtators Laſt Will and Teſtament.
CHAP. VI. Of perſons incapable of being Executors or Adminiſtrators.
A Poſtates, al. hi qui. C. de Apoſt.Traytors, Felons, bl. qui ultimo. ff. de Poenis.perſons Out-lawed, cFitz. Abridg. tit. Adm. n. 3.Inceſtuous Baſtards, dC. de Inceſt. Nupt.Famous Libellers, el. is cui. §. ult. ff. de Teſta.manifeſt Uſurers, fGloſſ. ibid.Sodomites, gIbidem.uncertain perſons, h§. incertis. Inſt. de Legib.and Recuſants Convict, i3 Jac. cap. 5.are all excluded from being Executors; yet each of theſe hath his reſpective qualifications. kSap. lib. 1. cap. 7, 8, 9.And all theſe are incapable both of Executorſhip and Legacies, if they be ſuch either at the time of making the Teſtament, or at the time of the Teſtators death, or when they aſſume the Executorſhip. ll. ſi alienum. §. 1. ff. de haered. inſtit.Yet Inceſtuous and Adulterous Baſtards are incapable of being Executors only to, or receiving Legacies only from their own Natural Parents, neceſſary means of ſuſtentation only excepted. mGloſſ. in Auth. quib. mod. Na. effic. ſui. §. fin. & Jul. Cla. §. Teſt. q. 31. nu. 4.But as to other Legataries it is ſufficient if they are capable only at the time of the Teſtators death. nl. non poteſt. ff. de leg.And the foreſaid Rule relating to Inceſtuous Illegitimates is attended with more ampliations and reſtrictions in the Law than to inſert here is adequate to the deſign of this ſummary Collection. Add to theſe perſons Excommunicated, who ſo long as they lie under the ſentence of Excommunication are not to be admitted either to Executorſhip or to Legacie; ocap. intelleximus. de Judic. & C. poſt ceſſionem. de Probat. Extr.nor during ſuch time can ſuch commence any ſuit for Legacies; they cannot ſue, that is, proceed in ſuit as Executors till they be abſolved; for this works not a nullity of the Executorſhip, nor overthrows the ſuit, but ſtays it only from proceeding untill abſolution be had and obtained: pOffic. Exec. cap. 1. §. 4.Yet a perſon Out-lawed (as is reported) alſo a perſon attainted may be an Executor: lCroke Rep. in Sir Ʋpwells Caroons Caſe.where it is alſo ſaid, that an Alien may be Adminiſtrator, and have Adminiſtration of Leaſes as well as of perſonal things, becauſe he hath them as an Executor in anothers right, and not to his own uſe. rCrok. Rep. ib.Yea, it is alſo ſaid, that a Baſtard, an Excommunicate, or an Out-lawed perſon may be as able and as abſolute an Executor as any other. sFitzh. tit. Execut. nu. 11. 88. Non-ability. 18 Broo. Non-ability. nu. 38.Alſo Infants may be made Executors; but the performance of that Office ſhall not be committed to them untill they have attained unto the Age of ſeventeen years. tOffic. Exec. c. 18. & alii.To the firſt forementioned may be added Corporations, which, although lawful ones, yet may not ſtand Executors, unleſs they can duely Prove the Will, and take an Executors Oath. Finally note, that what hath been here formerly ſaid of Executors, may be alſo applyed to, and underſtood of Adminiſtrators.