1902 Encyclopedia > Executors and Administrators

Executors and Administrators




EXECUTORS AND ADMINISTRATORS, in the law of England, are those on whom the personal property of a deceased person devolves, according as he has or has not left a will. If a man dies and leaves a will, the person or persons named therein to carry out his intentions are his executors, and their title to the personality vests at the moment of the testator's death. If there is no will, the right of administering the personal estate of the deceased is granted, according to certain rules, by the court of probate to persons who are called administrators. When the will contains no nomination of executors, administra-tion is said to be granted " with the will annexed." The title of the administrator vests at the date of the letters of administration. As to the appointment of executors and administrators before the establishment of the Court of Probate, see articles WILL and INTESTACY. The executors or administrators when appointed become the legal personal representatives of the deceased. As to powers and duties administrators stand in the same position as executors.

It is the duty of an executor—(1) to bury the deceased in a manner suitable to the estate he leaves behind him;, extravagant expenses will not be allowed, but the payment of legitimate funeral expenses " takes precedence of any debt or duty whatsoever;" (2) to obtain probate of the will (or letters of administration) within six months after the death. (3) He must make an inventory of the personal estate of the deceased, whether in possession or outstanding, and this inventory he is to deliver to the court on oath. He is to collect all the goods so inventoried and to commence actions which may be necessary to recover those which are outstanding. The executor is responsible to creditors for the whole of such estate, whether in possession or in action. (4) He must pay the debts of the deceased according to their several degrees of priority. An executor can, how-ever, pay any debt due to himself by retaining it out of the fund before the other creditors are paid, except in the case of an executor de son tort. And a creditor only gains a preference for himself over others of the same class by taking action and obtaining judgment for his debt. If the estate is exhausted by due and proper payments before all the debts are cleared off, the unsatisfied creditors cannot re-cover. (5) Aiter the debts come the legacies, which must be paid as far as the estate will extend. An executor cannot exercise a preference in the payment of his own legacy. (6) The residue of the estate must be paid to the person named in the will as residuary legatee. If there is no will or no residuary legatee named, the residue falls to be distributed among the next of kin, under the statute of distributions (see INTESTACY). It was held at one time that in default of a residuary legatee the residue fell to the executor himself, but now nothing less than the expressed intention of the testator can give it to him.

An executor tie son tort (of his own wrong) is one who in-termeddles with the estate of a deceased without authority. He thereby makes himself liable to all the trouble of an executorship without any of its profits.

If an executor is under age or abroad when he is appointed, temporary administration durante minore cetate, or durante absentia, may be granted to another.

An executor of an executor becomes the executor of the first testator. If, however, an executor dies intestate before completing the administration of the estate, an administrator de bonis non must be appointed. This is also the case where an administrator dies before the administration is complete. (E. E.)






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