| slovo | definícia |
executor
(mass) | executor
- vykonávateľ, exekútor |
executor
(msas) | executor
- exec. |
executor
(msasasci) | executor
- exec. |
executor
(encz) | executor,exekutor n: Zdeněk Brož |
executor
(encz) | executor,vykonavatel n: Zdeněk Brož |
Executor
(gcide) | Executor \Ex*ec"u*tor\, n. [L. executor, exsecutor: cf. F.
ex['e]cuteur. Cf. Executer.]
1. One who executes or performs; a doer; as, an executor of
baseness. --Shak.
[1913 Webster]
2. An executioner. [Obs.]
[1913 Webster]
Delivering o'er to executors paw?
The lazy, yawning drone. --Shak.
[1913 Webster]
3. (Law) The person appointed by a testator to execute his
will, or to see its provisions carried into effect, after
his decease.
[1913 Webster]
Executor de son tort [Of., executor of his own wrong]
(Law), a stranger who intermeddles without authority in
the distribution of the estate of a deceased person.
[1913 Webster] |
executor
(wn) | executor
n 1: a person appointed by a testator to carry out the terms of
the will |
EXECUTOR
(bouvier) | EXECUTOR, trusts. The word executor, taken in its largest sense, has several
acceptations. 1. Executor dativus, who is one called an administrator to an
intestate. 2. Executor testamentarius, or one appointed to the office by the
last will of a testator, and this is what is usually meant by the term.
2. In the civil law, the person who is appointed to perform the duties
of an executor as to goods, is called haeres testamentarius; the term
executor, it is said, is a barbarism unknown to that law. 3 Atk. 304.
3. An executor, as the term is at present accepted, is the person to
whom the execution of a last will and testament of personal estate is, by
the testator's appointment, confided, and who has accepted of the same. 2
Bl. Com. 503; 2 P. Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinb. t. 4, s.
2, pl. 2.
4. Generally speaking, all persons who are capable of making wills may
be executors, and some others beside, as infants and married women. 2 Bl.
Corn. 503.
5. An executor is absolute or qualified; his appointment is absolute
when he is constituted certainly, immediately, and without restriction in
regard to the testator's effects, or limitation in point of time. It may be
qualified by limitation as to the time or place wherein, or the subject
matters whereon, the office is to be exercised; or the creation of the
office may be conditional. It may be qualified. 1st. By limitations in point
of time, for the time may be limited when the person appointed shall begin,
or when he shall cease to be executor; as if a man be appointed executor
upon the marriage of testator's daughter. Swinb. p. 4, s. 17, pl. 4. 2. The
appointment may be limited to a place; as, if one be appointed executor of
all the testator's goods in the state of Pennsylvania. 3. The power of the
executor may be limited as to the subject matter upon which if is to be
exercised; as, when a testator appoints. A the executor of his goods and
chattels in possession; B, of his choses in action. One may be appointed
executor of one thing, only, as of a particular claim or debt due by bond,
and the like. Off. Ex. 29; 3 Phillim. 424. But although a testator may thus
appoint separate executors of distinct parts of his property, and may divide
their authority, yet quoad the creditors of the testator they are all
executors, and act as one executor, and may be sued as one executor. Cro.
Car. 293. 4. The appointment may be conditional, and the condition may be
either precedent or subsequent. Godolph. Orph. Leg. pt. 2, c. 2, s. 1; Off.
Ex. 23.
6. An executor derives his interest in the estate of the deceased
entirely from the will, and it vests in him from the moment of the
testator's death. 1 Will. Ex. 159; Com. Dig. Administration, B 10; 5 B. & A.
745; 2 W. Bl. Rep. 692. He acquires an absolute legal title to the
personalty by appointment, but nothing in the lands of the testator, except
by devise. He can touch nothing which was not personal at the testator's
decease, except by express direction. 9 Serg. & Rawle, 431; Gord. Law Dec.
93. Still his interest in the goods of the deceased is not that absolute,
proper and ordinary interest, which every one has in his own proper goods.
He is a mere trustee to apply the goods for such purposes as are sanctioned
by law. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; Off. Ex. 192. He represents the
testator, and therefore may sue and recover all the claims he had at the
time of his death and may be sued for all debts due by him. 1 Will. Ex. 508,
et seq. By the common law, however, such debts as were not due by some
writing could not be recovered against the executors of a deceased debtor.
The remedy was only in conscience or by a quo minus in the exchequer.
Afterwards an action on the case in banco regis was given. Crom t. Jurisdic.
66, b; Plowd. Com. 183: 11 H. VII. 26.
7. The following are the principal duties of an executor: 1. Within a
convenient time after the testator's death, to collect the goods of the
deceased, provided he can do so peaceably; when he is resisted, he must
apply to the law for redress.
8.-2. To bury the deceased in a manner suitable to the estate he
leaves behind him; and when there is just reason to believe he died
insolvent, he is not warranted in expending more in funeral expenses (q.v.)
than is absolutely necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. &
Rawle, 204 14 Serg. & Rawle, 64.
9.-3. The executor should prove the will in the proper office.
10.-4. He should make an inventory (q.v.) of the goods of the
intestate, which should be filed in the office.
11.-5. He should ascertain the debts and credits of the estate, and
endeavor to collect all claims with as little delay as possible,
consistently with the interest of the estate.
12.-6. He should advertise for debts and credits: see forms of
advertisements, 1 Chit. Pr. 521.
13.-7. He should reduce the whole of the goods, not specifically
bequeathed into money, with all due expedition.
14.-8. Keep the money of the estate safely, but not mixed with his
own, or he may be charged interest on it.
15.-9. Be at all times ready to account, and actually file an account
within a year.
16.-10. Pay the debts and legacies in the order required by law.
17. Co-executors, however numerous, are considered, in law, as an
individual person, and; consequently, the acts of any one of them, in
respect of the administration of the assets, are deemed, generally, the acts
of all. Bac. Ab. Executor, D; Touch. 484; for they have all a joint and
entire authority over the whole property Off. Ex. 213; 1 Rolle's Ab. 924;
Com. Dig. Administration, B 12. On the death of one or more of several joint
executors, their rights and powers survive to the survivors.
18. When there are several executors and all die, the power is in common
transferred to the executor of the last surviving executor, so that he is
executor of the first testator; and the law is the same when a sole executor
dies leaving an executor, the rights are vested in the latter. This rule has
been changed, in Pennsylvania, and, perhaps, some other states, by
legislative provision; there, in such case, administration cum testamento
annexo must be obtained, the right does not survive to the executor of the
executor. Act of Pennsylvania, of March 15 1832. s. 19. In general,
executors are not responsible for each other, and they have a right to
settle separate accounts. See Joint, Executors.
19. Executors may be classed into general and special; instituted and
substituted; rightful and executor de son tort; and executor to the tenor.
20. A general executor is one who is appointed to administer the whole
estate, without any limit of time or place, or of the subject-matter.
21. A special executor is one. who is appointed or constituted to
administer either a part of the estate, or the whole for a limited time, or
only in a particular place.
22. An instituted executor is one who is appointed by the testator
without any condition, and who has the first right of acting when there are
substituted executors. An example will show the difference between an
instituted and substituted executor: suppose a man makes his son his
executor, but if he will not act, he appoints his brother, and if neither
will act, his cousin; here the son is the instituted executor, in the first
degree, the brother is said to be substituted in the second degree, and the
cousin in the third degree, and so on. See Heir, instituted, and Swinb. pt.
4, s. 19, pl. 1.
23. A substituted executor is a person appointed executor, if another
person who has been appointed refuses to act.
24. A rightful executor is one lawfully appointed by the testator, by
his will. Deriving his authority from the will, he may do most acts, before
he obtains letters testamentary, but he must be possessed of them before. he
can declare in action brought by him, as such. 1 P. Wms. 768; Will. on Ex.
173.
25. An executor de son tort, or of his own wrong, is one, who, without
lawful authority, undertakes to act. as executor of a person deceased. To
make fin executor de son tort, the act of the party must be, 1. Unlawful. 2.
By asserting ownership, as taking goods or cancelling a bond, and not
committing a mere, trespass. Dyer, 105, 166; Cro. Eliz. 114. 3. An act done
before probate of will, or granting letters of administration. 1 Salk. 313.
One may be executor de son tort when acting under a forged will, which has
been set aside. 3 T. R. 125. An executor de son tort. The law on this head
seems to have been borrowed from the civil law doctrine of pro hoerede
gestio. See Heinnec. Antiq. Syntagma, lib. 2, tit., 17, Sec. 16, p. 468. He
is, in general, held responsible for all his acts, when he does anything
which might prejudice the estate, and receives no, advantage whatever in
consequence of his assuming the office. He cannot sue a debtor of the
estate, but may be sued generally as executor. See a good reading on the
liabilities of executors de son tort, in: Godolph. Orph. Legacy, 91, 93, and
10 Wentw. Pl. 378, for forms of declaring; also, 5 Co. Rep. 50 31 a; Yelv.
137; 1 Brownlow, 103; Salk. 28; Ham. Parties, 273; Imp. Mod. Pl. 94. As to
what acts will make a person liable as executor de son tort, see Godolph. O
ubi sup.; Gord. Law of Dec. 87, 89; Off. Ex. 181; Bac. Ab. Executor, &c., B
3; 11 Vin. Ab. 215; 1 Dane's Ab. 561; Bull. N. P. 48; Com. Dig.
Administration C 3 Ham. on Part. 146 to 156; 8 John. R. 426; 7 John. R.
161; 4 Mass. 654; 3 Penna. R. 129; 15 Serg. & Rawle, 39.
26.-2. The usurpation of an office or character cannot confer the
rights and privileges of it, although it may charge the usurper with the
duties and obligations annexed to it. On this principle an executor de son
tort is an executor only for the purpose of being sued, not for the purpose,
of suing. In point of form, he is sued as if he were a rightful executor. He
is not denominated in the declaration executor (de son tort) of his own
wrong. It would be improper to allege that the deceased person with whose
estate he has intermeddled died intestate. Nor can he be made a co-defendant
with a rightful executor. Ham. Part. 146, 272, 273; Lawes on Plead. 190,
note; Com. Dig. Abatement, F 10. If he take out letters of administration,
he is still liable to be sued as executor, and in general, it is better to
sue him as executor than as administrator. Godolph. 0. Leg. 93, 94, 95, Sec.
2, 3.
27. An executor to the tenor. This phrase is based in the ecclesiastical
law, to denote a person who is not directly appointed by the will an
executor, but who is charged with the duties which appertain to one; as, "I
appoint A B to discharge all lawful demands against my will." 3 Phill. 116;
1 Eccl. Rep. 374; Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide.
generally, Bouv. Inst. Index, h.t.; 11 Vin. Ab. h.t.; Bac. Ab. h.t.;
Rolle, Ab. h.t.; Nelson's Ab. h.t.; Dane's Ab. Index, h.t.; Com. Dig.
Administration; 1 Supp. to Ves. jr. 8, 90, 356, 438; 2 Id. 69; 1 Vern. 302-
3; Yelv. 84 a; 1 Salk. 318; 18 Engl. C. L. Rep. 185; 10 East, 295; 2 Phil.
Ev. 289; 1 Rop. Leg.' 114; American Digests, h.t.; Swinburne, Williams,
Lovelass, and Roberts' several treatises on the law of Executors; Off. Ex.
per totum; Chit. Pr. Index; h.t. For the various pleas that may be pleaded
by executors, see 7 Wentw. Plead. 596, 602; 10 Id. 378; Cowp. 292. For the
origin and progress of the law in relation to executors, the reader is
referred to 5 Toull. n. 576, note; Glossaire du Droit Francais, par
Delauriere, verbo Executeurs Testamentaires, and the same author on art.
297, of the Custom of Paris; Poth. Des Donations Testamen taires.
|
| | podobné slovo | definícia |
executor-heir relation
(encz) | executor-heir relation, n: |
executors
(encz) | executors,exekutoři n: Zdeněk Brožexecutors,vykonavatelé n: Zdeněk Brož |
executory
(encz) | executory,exekuční adj: Zdeněk Brožexecutory,vykonavatelský adj: Zdeněk Brožexecutory,výkonný adj: Zdeněk Brož |
literary executor
(encz) | literary executor,správce literární pozůstalosti n: Pino |
Coexecutor
(gcide) | Coexecutor \Co`ex*ec"u*tor\, n.
A joint executor.
[1913 Webster] |
Dative executor
(gcide) | Dative \Da"tive\, a. [L. dativus appropriate to giving, fr. dare
to give. See 2d Date.]
1. (Gram.) Noting the case of a noun which expresses the
remoter object, and is generally indicated in English by
to or for with the objective.
[1913 Webster]
2. (Law)
(a) In one's gift; capable of being disposed of at will
and pleasure, as an office.
(b) Removable, as distinguished from perpetual; -- said of
an officer.
(c) Given by a magistrate, as distinguished from being
cast upon a party by the law. --Burril. Bouvier.
[1913 Webster]
Dative executor, one appointed by the judge of probate, his
office answering to that of an administrator.
[1913 Webster] |
Executor
(gcide) | Executor \Ex*ec"u*tor\, n. [L. executor, exsecutor: cf. F.
ex['e]cuteur. Cf. Executer.]
1. One who executes or performs; a doer; as, an executor of
baseness. --Shak.
[1913 Webster]
2. An executioner. [Obs.]
[1913 Webster]
Delivering o'er to executors paw?
The lazy, yawning drone. --Shak.
[1913 Webster]
3. (Law) The person appointed by a testator to execute his
will, or to see its provisions carried into effect, after
his decease.
[1913 Webster]
Executor de son tort [Of., executor of his own wrong]
(Law), a stranger who intermeddles without authority in
the distribution of the estate of a deceased person.
[1913 Webster] |
Executor de son tort
(gcide) | Tort \Tort\, n. [F., from LL. tortum, fr. L. tortus twisted,
crooked, p. p. of torqure to twist, bend. See Torture.]
1. Mischief; injury; calamity. [Obs.]
[1913 Webster]
That had them long opprest with tort. --Spenser.
[1913 Webster]
2. (Law) Any civil wrong or injury; a wrongful act (not
involving a breach of contract) for which an action will
lie; a form of action, in some parts of the United States,
for a wrong or injury.
[1913 Webster]
Executor de son tort. See under Executor.
Tort feasor (Law), a wrongdoer; a trespasser. --Wharton.
[1913 Webster]Executor \Ex*ec"u*tor\, n. [L. executor, exsecutor: cf. F.
ex['e]cuteur. Cf. Executer.]
1. One who executes or performs; a doer; as, an executor of
baseness. --Shak.
[1913 Webster]
2. An executioner. [Obs.]
[1913 Webster]
Delivering o'er to executors paw?
The lazy, yawning drone. --Shak.
[1913 Webster]
3. (Law) The person appointed by a testator to execute his
will, or to see its provisions carried into effect, after
his decease.
[1913 Webster]
Executor de son tort [Of., executor of his own wrong]
(Law), a stranger who intermeddles without authority in
the distribution of the estate of a deceased person.
[1913 Webster] |
Executorial
(gcide) | Executorial \Ex*ec`u*to"ri*al\, a. [LL. executorialis.]
Of or pertaining to an executive.
[1913 Webster] |
Executorship
(gcide) | Executorship \Ex*ec"u*tor*ship\, n.
The office of an executor.
[1913 Webster] |
Executory
(gcide) | Executory \Ex*ec"u*to*ry\, a. [LL. executorius, L. exsecutorius:
cf.F. ex['e]cutoire.]
1. Pertaining to administration, or putting the laws in
force; executive.
[1913 Webster]
The official and executory duties of government.
--Burke.
[1913 Webster]
2. (Law) Designed to be executed or carried into effect in
time to come, or to take effect on a future contingency;
as, an executory devise, reminder, or estate; an executory
contract. --Blackstone.
[1913 Webster] |
Substituted executor
(gcide) | Substituted \Sub"stit"uted\, a.
1. Exchanged; put in the place of another.
[1913 Webster]
2. (Chem.) Containing substitutions or replacements; having
been subjected to the process of substitution, or having
some of its parts replaced; as, alcohol is a substituted
water; methyl amine is a substituted ammonia.
[1913 Webster]
Substituted executor (Law), an executor appointed to act in
place of one removed or resigned.
[1913 Webster] |
executor-heir relation
(wn) | executor-heir relation
n 1: the responsibility of an executor (or administrator) of an
estate to act in the best interests of the heir |
restructured extended executor
(foldoc) | Restructured EXtended eXecutor
REXX
System Product Interpreter
(REXX, or "System Product Interpreter", originally
known as "REX") A scripting language for IBM VM and MVS
systems, developed by M. Cowlishaw at IBM ca. 1979,
replacing EXEC2.
Versions: PC-Rexx for MS-DOS, AREXX for the Amiga, the
OS/2 implementation from IBM, WINREXX (Rexx for Windows,
from Quercus systems) and Personal Rexx (Rexx for MS-DOS,
from Quercus systems).
See also Regina, freerexx, imc.
REXXWARE is an implementation of REXX for {Novell
NetWare}.
Usenet newsgroup: news:comp.lang.rexx.
["The REXX Language: A Practical Approach to Programming",
M.F. Cowlishaw, 1985].
(1992-05-13)
|
CO-EXECUTOR
(bouvier) | CO-EXECUTOR. One who is executor of a will in company with another. In
general each co-executor has the full power over the personal estate of the
testator, that all the executors have jointly. Vide Joint Executors. But one
cannot bring suit without joining with the others.
|
EXECUTOR
(bouvier) | EXECUTOR, trusts. The word executor, taken in its largest sense, has several
acceptations. 1. Executor dativus, who is one called an administrator to an
intestate. 2. Executor testamentarius, or one appointed to the office by the
last will of a testator, and this is what is usually meant by the term.
2. In the civil law, the person who is appointed to perform the duties
of an executor as to goods, is called haeres testamentarius; the term
executor, it is said, is a barbarism unknown to that law. 3 Atk. 304.
3. An executor, as the term is at present accepted, is the person to
whom the execution of a last will and testament of personal estate is, by
the testator's appointment, confided, and who has accepted of the same. 2
Bl. Com. 503; 2 P. Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinb. t. 4, s.
2, pl. 2.
4. Generally speaking, all persons who are capable of making wills may
be executors, and some others beside, as infants and married women. 2 Bl.
Corn. 503.
5. An executor is absolute or qualified; his appointment is absolute
when he is constituted certainly, immediately, and without restriction in
regard to the testator's effects, or limitation in point of time. It may be
qualified by limitation as to the time or place wherein, or the subject
matters whereon, the office is to be exercised; or the creation of the
office may be conditional. It may be qualified. 1st. By limitations in point
of time, for the time may be limited when the person appointed shall begin,
or when he shall cease to be executor; as if a man be appointed executor
upon the marriage of testator's daughter. Swinb. p. 4, s. 17, pl. 4. 2. The
appointment may be limited to a place; as, if one be appointed executor of
all the testator's goods in the state of Pennsylvania. 3. The power of the
executor may be limited as to the subject matter upon which if is to be
exercised; as, when a testator appoints. A the executor of his goods and
chattels in possession; B, of his choses in action. One may be appointed
executor of one thing, only, as of a particular claim or debt due by bond,
and the like. Off. Ex. 29; 3 Phillim. 424. But although a testator may thus
appoint separate executors of distinct parts of his property, and may divide
their authority, yet quoad the creditors of the testator they are all
executors, and act as one executor, and may be sued as one executor. Cro.
Car. 293. 4. The appointment may be conditional, and the condition may be
either precedent or subsequent. Godolph. Orph. Leg. pt. 2, c. 2, s. 1; Off.
Ex. 23.
6. An executor derives his interest in the estate of the deceased
entirely from the will, and it vests in him from the moment of the
testator's death. 1 Will. Ex. 159; Com. Dig. Administration, B 10; 5 B. & A.
745; 2 W. Bl. Rep. 692. He acquires an absolute legal title to the
personalty by appointment, but nothing in the lands of the testator, except
by devise. He can touch nothing which was not personal at the testator's
decease, except by express direction. 9 Serg. & Rawle, 431; Gord. Law Dec.
93. Still his interest in the goods of the deceased is not that absolute,
proper and ordinary interest, which every one has in his own proper goods.
He is a mere trustee to apply the goods for such purposes as are sanctioned
by law. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; Off. Ex. 192. He represents the
testator, and therefore may sue and recover all the claims he had at the
time of his death and may be sued for all debts due by him. 1 Will. Ex. 508,
et seq. By the common law, however, such debts as were not due by some
writing could not be recovered against the executors of a deceased debtor.
The remedy was only in conscience or by a quo minus in the exchequer.
Afterwards an action on the case in banco regis was given. Crom t. Jurisdic.
66, b; Plowd. Com. 183: 11 H. VII. 26.
7. The following are the principal duties of an executor: 1. Within a
convenient time after the testator's death, to collect the goods of the
deceased, provided he can do so peaceably; when he is resisted, he must
apply to the law for redress.
8.-2. To bury the deceased in a manner suitable to the estate he
leaves behind him; and when there is just reason to believe he died
insolvent, he is not warranted in expending more in funeral expenses (q.v.)
than is absolutely necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. &
Rawle, 204 14 Serg. & Rawle, 64.
9.-3. The executor should prove the will in the proper office.
10.-4. He should make an inventory (q.v.) of the goods of the
intestate, which should be filed in the office.
11.-5. He should ascertain the debts and credits of the estate, and
endeavor to collect all claims with as little delay as possible,
consistently with the interest of the estate.
12.-6. He should advertise for debts and credits: see forms of
advertisements, 1 Chit. Pr. 521.
13.-7. He should reduce the whole of the goods, not specifically
bequeathed into money, with all due expedition.
14.-8. Keep the money of the estate safely, but not mixed with his
own, or he may be charged interest on it.
15.-9. Be at all times ready to account, and actually file an account
within a year.
16.-10. Pay the debts and legacies in the order required by law.
17. Co-executors, however numerous, are considered, in law, as an
individual person, and; consequently, the acts of any one of them, in
respect of the administration of the assets, are deemed, generally, the acts
of all. Bac. Ab. Executor, D; Touch. 484; for they have all a joint and
entire authority over the whole property Off. Ex. 213; 1 Rolle's Ab. 924;
Com. Dig. Administration, B 12. On the death of one or more of several joint
executors, their rights and powers survive to the survivors.
18. When there are several executors and all die, the power is in common
transferred to the executor of the last surviving executor, so that he is
executor of the first testator; and the law is the same when a sole executor
dies leaving an executor, the rights are vested in the latter. This rule has
been changed, in Pennsylvania, and, perhaps, some other states, by
legislative provision; there, in such case, administration cum testamento
annexo must be obtained, the right does not survive to the executor of the
executor. Act of Pennsylvania, of March 15 1832. s. 19. In general,
executors are not responsible for each other, and they have a right to
settle separate accounts. See Joint, Executors.
19. Executors may be classed into general and special; instituted and
substituted; rightful and executor de son tort; and executor to the tenor.
20. A general executor is one who is appointed to administer the whole
estate, without any limit of time or place, or of the subject-matter.
21. A special executor is one. who is appointed or constituted to
administer either a part of the estate, or the whole for a limited time, or
only in a particular place.
22. An instituted executor is one who is appointed by the testator
without any condition, and who has the first right of acting when there are
substituted executors. An example will show the difference between an
instituted and substituted executor: suppose a man makes his son his
executor, but if he will not act, he appoints his brother, and if neither
will act, his cousin; here the son is the instituted executor, in the first
degree, the brother is said to be substituted in the second degree, and the
cousin in the third degree, and so on. See Heir, instituted, and Swinb. pt.
4, s. 19, pl. 1.
23. A substituted executor is a person appointed executor, if another
person who has been appointed refuses to act.
24. A rightful executor is one lawfully appointed by the testator, by
his will. Deriving his authority from the will, he may do most acts, before
he obtains letters testamentary, but he must be possessed of them before. he
can declare in action brought by him, as such. 1 P. Wms. 768; Will. on Ex.
173.
25. An executor de son tort, or of his own wrong, is one, who, without
lawful authority, undertakes to act. as executor of a person deceased. To
make fin executor de son tort, the act of the party must be, 1. Unlawful. 2.
By asserting ownership, as taking goods or cancelling a bond, and not
committing a mere, trespass. Dyer, 105, 166; Cro. Eliz. 114. 3. An act done
before probate of will, or granting letters of administration. 1 Salk. 313.
One may be executor de son tort when acting under a forged will, which has
been set aside. 3 T. R. 125. An executor de son tort. The law on this head
seems to have been borrowed from the civil law doctrine of pro hoerede
gestio. See Heinnec. Antiq. Syntagma, lib. 2, tit., 17, Sec. 16, p. 468. He
is, in general, held responsible for all his acts, when he does anything
which might prejudice the estate, and receives no, advantage whatever in
consequence of his assuming the office. He cannot sue a debtor of the
estate, but may be sued generally as executor. See a good reading on the
liabilities of executors de son tort, in: Godolph. Orph. Legacy, 91, 93, and
10 Wentw. Pl. 378, for forms of declaring; also, 5 Co. Rep. 50 31 a; Yelv.
137; 1 Brownlow, 103; Salk. 28; Ham. Parties, 273; Imp. Mod. Pl. 94. As to
what acts will make a person liable as executor de son tort, see Godolph. O
ubi sup.; Gord. Law of Dec. 87, 89; Off. Ex. 181; Bac. Ab. Executor, &c., B
3; 11 Vin. Ab. 215; 1 Dane's Ab. 561; Bull. N. P. 48; Com. Dig.
Administration C 3 Ham. on Part. 146 to 156; 8 John. R. 426; 7 John. R.
161; 4 Mass. 654; 3 Penna. R. 129; 15 Serg. & Rawle, 39.
26.-2. The usurpation of an office or character cannot confer the
rights and privileges of it, although it may charge the usurper with the
duties and obligations annexed to it. On this principle an executor de son
tort is an executor only for the purpose of being sued, not for the purpose,
of suing. In point of form, he is sued as if he were a rightful executor. He
is not denominated in the declaration executor (de son tort) of his own
wrong. It would be improper to allege that the deceased person with whose
estate he has intermeddled died intestate. Nor can he be made a co-defendant
with a rightful executor. Ham. Part. 146, 272, 273; Lawes on Plead. 190,
note; Com. Dig. Abatement, F 10. If he take out letters of administration,
he is still liable to be sued as executor, and in general, it is better to
sue him as executor than as administrator. Godolph. 0. Leg. 93, 94, 95, Sec.
2, 3.
27. An executor to the tenor. This phrase is based in the ecclesiastical
law, to denote a person who is not directly appointed by the will an
executor, but who is charged with the duties which appertain to one; as, "I
appoint A B to discharge all lawful demands against my will." 3 Phill. 116;
1 Eccl. Rep. 374; Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide.
generally, Bouv. Inst. Index, h.t.; 11 Vin. Ab. h.t.; Bac. Ab. h.t.;
Rolle, Ab. h.t.; Nelson's Ab. h.t.; Dane's Ab. Index, h.t.; Com. Dig.
Administration; 1 Supp. to Ves. jr. 8, 90, 356, 438; 2 Id. 69; 1 Vern. 302-
3; Yelv. 84 a; 1 Salk. 318; 18 Engl. C. L. Rep. 185; 10 East, 295; 2 Phil.
Ev. 289; 1 Rop. Leg.' 114; American Digests, h.t.; Swinburne, Williams,
Lovelass, and Roberts' several treatises on the law of Executors; Off. Ex.
per totum; Chit. Pr. Index; h.t. For the various pleas that may be pleaded
by executors, see 7 Wentw. Plead. 596, 602; 10 Id. 378; Cowp. 292. For the
origin and progress of the law in relation to executors, the reader is
referred to 5 Toull. n. 576, note; Glossaire du Droit Francais, par
Delauriere, verbo Executeurs Testamentaires, and the same author on art.
297, of the Custom of Paris; Poth. Des Donations Testamen taires.
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EXECUTORY
(bouvier) | EXECUTORY. Whatever may be executed; as an executory sentence or judgment,
an executory contract.
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EXECUTORY DEVISE
(bouvier) | EXECUTORY DEVISE, estates. An executory devise is a limitation by will of a
future contingent interest in lands, contrary to the rules of limitation of
contingent estate is in conveyances at law. When the limitation by will does
not depart from those rules prescribed for the government of contingent
remainders, it is, in that case, a contingent remainder, and not an
executory devise. 4 Kent, Com. 257; 1 Eden's R. 27; 8 T. R. 763.
2. An executory devise differs from a contingent remainder, in three
material points. 1. It needs no particular estate to precede and support it;
for example, a devise to A B, upon his marriage. 2. A fee may be limited
after a fee, as in the case of a devise of land to C D, in fee, and if he
dies without issue, or before the age of twenty-one, then to E F, in fee. 3.
A term for years may be limited over after a life estate created in the
same. 2 Bl. Com. 172, 173.
3. To prevent perpetuities, a rule has been adopted that the
contingency must happen during the time of a life or lives in being and
twenty-one years after, and the months allowed for gestation in order to
reach beyond the minority of a person not in esse at the time of making the
executory devise. 3 P. Wms. 258; 7 T. R. 100; 2 Bl. Com. 174; 7 Cranch, 456;
1 Gilm. 194; 2 Hayw. 375.
4. There are several kinds of executory devises; two relative to real
estate, and one in relation to personal estate.
5.-1. When the devisor parts with his whole estate, but upon some
contingency, qualifies the disposition of it, and limits an estate on that
contingency. For example, when the testator devises to Peter for life,
remainder to Paul, in fee, provided that if James should within three months
after the death of Peter pay one hundred dollars to Paul, then to James in
fee; this is an executory devise to James, and if he dies during the life of
Peter, his heir may perform the condition. 10 Mod. 419; Prec. in Ch. 486; 2
Binn. 532; 5 Binn. 252; 7 Cranch, 456; 6 Munf. 187; 1 Desaus. 137, 183; 4
Id. 340, 459; 5 Day, 517.
6.-2. When the testator gives a future interest to arise upon a
contingency, but does not part with the fee in the meantime; as in the case
of a devise of the estate to the heirs of John after the death of John; or a
devise to John in fee, to take effect six months after the testator's death;
or a devise to the daughter of John, who shall marry Robert within fifteen,
years. T. Raym. 82; 1 Salk. 226; 1 Lutw. 798.
7.-3. The executory bequest of a chattel interest is good, even
though the ulterior legatee be not at the time in esse, and chattels so
limited are protected from the demands of creditors beyond the life of the
first taker, who cannot pledge them, nor dispose of them beyond his own life
interest in them. 2 Kent, Com. 285; 2 Serg. & Rawle, 59; l Desaus 271; 4
Desaus.340; 1 Bay, 78. But such a bequest, after an indefinite failure of
issue, is bad. See 2 Serg. & R. 62; Watk. Prin. Con. 112, 116; Harg. note, 1
Tho. Co. Litt. 595-6, 515-16. Vide, Com. Dig. Estates by Devise., N 16;
Fearne on Rem. 381; Cruise's Dig. Index, h.t.; 4 Kent, Com. 357 to 381; 2
Hill. Ab. c. 43, p. 533.
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EXECUTORY PROCESS
(bouvier) | EXECUTORY PROCESS, via executoria. In Louisiana, this is a process which can
be resorted to only in two. cases, namely: 1. When the creditor's right
arises-from an act importing a confession of judgment, and which contains a
privilege or mortgage in his favor. 2. When the creditor demands the
execution of a judgment which has been rendered by a tribunal different from
that within whose jurisdiction the execution is sought. Code of Practice,
art. 732.
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EXECUTORY TRUS
(bouvier) | EXECUTORY TRUST. A trust is said to be executory where some further act is
requisite to be done by the author of the trust himself or by the trustees,
to give it its full, effect; as, in the case of marriage articles; or, as in
the case of a will, where, property is vested in trustees in trust to settle
or convey.; for, it is apparent in both of these cases, a further act,
namely, a settlement or a conveyance, is contemplated.
2. The difference between an executed and an executory trust, is this,
that courts of equity in cases of executed trusts will construe the
limitations in the same manner as similar legal limitations. White's L. C.
in Eq. 18. But, in cases of executory trusts, a court of equity is not, as
in the case of executed trusts, bound to construe technical expressions with
legal strictness, but will mould the trusts according to the intent of the
creator of such trusts White's L. C. Eq. 18.
3. When a voluntary trust is executory, and not executed, if it could
not be enforced at law, because it is a defective conveyance, it is not
helped in equity, in favor of a volunteer. 4 John. Ch. 498, 500; 4 Paige,
305; 1 Dev. Eq. R. 93.
4. But where the trust, though voluntary, has been executed in part, it
will be sustained or enforced, in equity. 1 John. Ch. R. 329; 7 Penn. St. R.
175, 178; White's L. C. in Eq. *176; 18 Ves. 140; 1 Keen's R. 551; 6 Ves.
656; 3 Beav. 238.
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JOINT EXECUTORS
(bouvier) | JOINT EXECUTORS. It is proposed to consider, 1. The interest which they have
in the estate of the deceased. 2. How far they are liable for each other's
acts. 3. The rights of the survivor.
2.-1. Joint executors are considered in law as but one person,
representing the testator, and, therefore, the acts of any one of them,
which relate either to the delivery, gift, sale, payment, possession or
release of the testator's goods, are deemed, as regards the persons with
whom they contract, the acts of all. Bac. Abr. h.t.; 11 Vin. Abr. 358; Com.
Dig. Administration, B 12; 1 Dane's Abr. 583; 2 Litt. (Kentucky) R. 315;
Godolph. 314; Dyer, 23, in marg. 16 Serg. & Rawle, 337. But an executor
cannot, without the knowledge of his co-executor, confess a judgment for a
claim, part of which was barred by the act of limitations, so as to bind the
estate of the testator. 6 Penn. St. Rep. 267.
3.-2. As a general rule, it may be laid down that each, executor is
liable for his own wrong, or devastavit only, and not for that of his
colleague. He may be rendered liable, however, for the misplaced confidence
which he may have reposed in his coexecutor. As, if he signs a receipt for
money, in conjunction with another executor, and he receives no part of the
money, but agrees that the other, executor shall retain it, and apply it to
his own use, this is his own misapplication, for which he is responsible. 1
P. Wms. 241, n. 1; 1 Sch. & Lef. 341; 2 Sch. & Lef. 231; 7 East, R. 256; 11
John. R. 16; 11 Serg. & Rawle, 71; Hardw. 314; 5 Johns. Ch. R. 283; and see
2 Bro. C. C. 116; 3 Bro. C. C. 112; 2 Penn. R. 421; Fonb. Eq. B. 2, c. 7, s.
5, n. k.
4.-3. Upon the death of one of several joint executors, the right of
administering the estate of the testator devolves upon the survivor. 3 Atk.
509 Com. Dig. Administration, B 12; Hamm. on Parties, 148.
5. In Pennsylvania, by legislative enactment, it is provided, "that
where testators may devise their estates to their executors to be sold, or
direct such executors to sell and convey such estates, or direct such real
estate to be sold, without naming, or declaring who shall sell the same, if
one or more of the executors die, it shall or may be lawful for the
surviving executor to bring actions for the recovery of the possession
thereof, and against trespassers thereon; to sell and "convey such real
estate, or manage the same for the benefit of the persons interested
therein." Act of March 12, 1800, 3 Sm. L. 433.
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NE UNQUES EXECUTOR
(bouvier) | NE UNQUES EXECUTOR, pleading. A plea by which the party who uses it denies
that the plaintiff is an executor, as he claims to be; or that the defendant
is executor, as the plaintiff in his declaration charges him to be. 1 Chit.
Pl. 484; 1 Saund. 274, n. 3; Coin. Dig. Pleader, 2 D, 2 2 Chit. PI. 498.
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