Executor is one to whom another commits the execution of his last will or testament. The origin of executors appears to be traceable to a constitution of Manuel Commenus. All persons capable of making a will, and some others, as married women and infants, are eligible to be made executors, but infants are incapable of acting in that capacity till they attain full age.
An executor derives his authority from the will alone. If no executor be appointed by the will, administration is granted with the will annexed, and administrator is bound to obey the directions of the will. An executor may decline to act; but, having once acted, he cannot divest himself of the office or its liabilities; nor can an administrator who has accepted the office get rid of his responsibility.
The first business of an executor is to prove the will, which is now done in the Probate, Divorce, and Admiralty Division of the High Court at the principal or one of the District Registries. Formerly this jurisdiction was vested in the Ecclesiastical Courts. [Ecclesiastical Courts.]
The Court furnishes the executor with a document known as "the Probate" containing an engrossment of the will and copy of the grant of Probate. The original will is deposited in the Registry of the
Court, and may be inspected in office hours on payment of a search fee of Is. An executor may do many acts in execution of the will before Probate, as paying and receiving- debts, etc.; but he cannot before Probate sustain actions or suits. An administrator can do nothing till the grant of letters of administration. [Administration.]
If an executor happens to die before grant of Probate, admininstration must be taken out to his testator, with the will annexed; but if an executoidie after having probate of will granted to him, his executor will be the executor and representative of the first testator, unless, before proving the will of second testator, he renounces the execution of the will of the first. If the executor should die intestate, his administrator is not the representative of the original testator, but an administrator "de bonis non" (that is, of the goods unadministered) of the original testator must be appointed. Should there be several executors, the office survives, and is transmitted ultimately to the executor of the surviving executor, unless he dies intestate. Executors have a joint and entire interest in the effects of their testator; any one of them is capable of acting by himself or herself and the receipt for a debt or the transfer of property by one is as effectual as if made by all.
If a stranger acts as executor without authority, he is termed an executor de son tort (in his own wrong), and he has all the liabilities of an executor without any advantages. But the only advantage which an executor practically derives from his office is his right to retain any debt due to him from the testator, as against creditors of equal degree to himself.
The duties of executors and administrators are generally the same and comprise the burying of the deceased, the proving of his will (if any), the getting in his goods and chattels to pay his debts in the order appointed by law, and also his legacies, if any, and to distribute the residue of his goods and chattels in the manner directed by the will, or according to the statutes for the distribution of the effects of intestates, in case of there being a total or partial intestacy (q.v.).
In like manner as the rights of a bankrupt pass (with certain exceptions) to the trustee, so upon the death of either of the parties between whom a cause of action founded on contract has arisen, the right of maintaining such action survives in general to or against his executors or administrators. In respect, however, of actions founded on certain violations of personal rights - as, for instance, slander - the maxim is that they die withthe person, and this formerly extended to every case of tort as distinguished from contract. But (except with reference to causes of action for violation of personal rights, such as assault, slander, and the like) this ancient rule has been now set aside by various Acts of Parliament; for by 4 Edwaird III., cap. 7, actions may be maintained by executors and administrators for trespasses to the personal property of their testator or intestate, and by 3 and 4 William IV., c. 42, sec. 2, for any injury to his real estate provided such injury was committed within six calendar months before and the action is brought within one year after his death, and by the last-named statute actions may be maintained against executors or administrators for any wrong committed by the deceased to another in respect of property either real or personal, provided the wrong was committed within six calendar months preceding the death and the action be brought within six calendar months after the executors or administrators have taken upon themselves the administration. As to compensation to families of persons killed by accident, see "Campbell's Act." Executory and Executed Consideration. The consideration for a contract (like the contract itself), may be either executed or executory, and its character in this respect is determined by the relation which its performance bears in point of time to the promise as being either prior or subsequent. Thus, if I bail a man's servant, and the master afterwards promises to indemnify me, this is an executed consideration; but if a man promises to indemnify me in the event of my bailing his servant, the consideration is then executory. And with regard to an executed consideration the rule is, that if it were not at the express or implied precedent request of the promiser, but a mere voluntary contract, it will not suffice to support a promise. Therefore, in the first example, the promise would not be binding -in law unless the bailing were at the master's precedent request. [Contract, Consideration.]