continues it. The chain of representation; and also a feme covert. attorney of an executor has not, by the executor's death, when he has appointed executors, been deemed to break the chain of representation. My impression is that a will proved by the attorney of an executor is the same thing as if actually proved by himself." A. died abroad. B., his acting executor, proved his will there and died. C., B.'s executor, proved his will in England. C. is not the personal representative of A., having omitted to prove his will.2 A. died intestate, and her husband, surviving her, died without administering her estate. His executor proved abroad (Ireland) only. The will of the executor also was proved abroad (Ireland), and resealed here. The executor of the executor applying for administration here of the deceased A.'s estate as her husband's representative, was held disentitled, as his executor had died before proving his will there.3 6 4 A married woman may appoint by will an executor of her office as executrix. She may therefore continue the chain of executorship or representation. She may, with the consent of her husband, make a complete will of personal estate, and may appoint a general executor, who will in that case be not only her general representative, but also that of any testator of whose will she was executrix. And so, as in this case, when a sole executrix proved the will naming her, and, after nominating a sole executrix of her will, died, and a legatee under the first will sued the executrix of the executrix of the first will, she (the defendant) was adjudged to be the legal representative of the first executrix. In other words, the general probate of the will of B. will transmit to C., the executor named in it, the representation of A., who has nominated B. executor, with 1 Bayard, 1 Rob. 768; 7 N. C. 117. 2 Twyford v. Trail, 7 Sim. 92. 4 Hodsden v. Lloyd, 2 Bro. C. C. 2 East, 558; see also Stevens v. Bagwell, 15 Ves. 156. 5 Birkett v. Vandercom, 3 Hagg. 750. 6 Barr v. Carter, 2 Cox, Eq. 429; by Romilly, M. R. out a separate grant of administration de bonis non, of A.'s estate to C. Here there was a power in question, and hence Lord Romilly stated, "The will recites the power, and does nothing more than execute it." Therefore the appointment of the executor must be necessarily limited to that which is the only subject of the will. 1 sentation is chain of tion. From this it is clear that whatever may be the executor- But the repreship under a will, limited or general, the representation is limited to the likewise limited and general. And it is manifest, also, appointment. that the chain of representation under a general executor- Thus a limited appointment ship will not be continued in an executor appointed only will not confor a limited purpose under the previous executor's will. tinue a general The power of transmitting representation of the deceased's representaestate vests under C. P. A. 1858, s. 16, in the proving executor, or, if more than one, in the survivor of them.2 Limited executorships are, of course, subject to different rules, and come to an end on the execution of the duty to which they are limited. The limited probate cannot give power to deal with the estate of the original executrix. The most correct mode of proceeding is to apply for a supplemental grant of probate, limited to the property which the first executrix has as executrix. An executrix cannot, therefore, exceed the terms of the will appointing her. limit is under The will of a married woman, made under a power, and As where the appointing executors, does not continue the chain of repre- a power. sentation from a former will of which she was executrix;3 in other words, she cannot exceed her power. The grants of probate sufficiently prove the transmission of the executorship through the various incidental ramifications. An executor acting under the grant of the testator nominating him, needs no grant de bonis non to administer the estate of which the deceased was himself executor. 1 Bayne, 1 Sw. & Tr. 132. 2 Post, p. 149. 3 Hughes, 4 Sw. & Tr. 920; 29 D. L. J., Prob. 165; see Bridger, 4 L One administrationother than under an executor's letter of attorneysevers the chain. The surviving executor only can transmit the chain of representation. Wherever the course of representation from executor to executor is interrupted by any one administration, the chain of representation is severed, and it is necessary to commit administration afresh of the goods of the deceased not administered by the former executor,1 to a person entitled, or if not directly entitled, in the opinion of the Court desirable. The chain of representation is only transmissible, where there are two or more executors, by the survivor of them; for, as quaintly put by Wentworth, "where two executors be made, the one making a will and executors, and dying, if the other die after, intestate; now shall not the executor of him who first died be executor to the first testator, but he is dead intestate,1 because the surviving executor is so dead, and in him the executorship was wholly and solely settled by the death of his fellow before him; so administration de bonis non admin. shall be committed." 3 This must be taken, of course, to mean that in the surviving executor was the sole right of transmission. A testator died leaving three executors, of whom only one proved, and then died, leaving executors of his will, who prayed probate of the will of which he was co-executor with others who had survived him. "How is it possible," said Sir H. Jenner Fust, "for the court to grant probate to the executors of this executor? He was not the surviving executor."5 It will have been noticed that the other executors in the preceding case had renounced, and it might have been expected that their renunciation would have sufficed, but it was not so; 6 for then the renunciation of one executor in the lifetime of another was a nullity, 1 2 Black. Comm. 506. 2 Under the Court of Probate Act of 1857, s. 73. See post, SPECIAL POWER. 3 Off. Executors, 14th ed. p. 215. 4 Intestate here is used in a manner totally inapplicable at the present day, for this intestate actually left a will. The learned writer must be taken to mean that he was thus far intestate, that his will was never proved, but only admitted to administration. 5 Smith, 3 Curt. 31; see Wentworth. 6 Arnold v. Blencowe, 1 Cox, Eq. 426. an executor and not binding unless made after he had become the Formerly resurvivor. This arose from the right of executors, not-nunciation by withstanding their renunciation, to come in and prove at any time while living, and the testator would not be unrepresented until the surviving executor renounced after the death of his companions.1 was practically a nullity during his survival unless administration was granted. Now tratrix can ship as ad otherwise the But if an executor die intestate, leaving an estate un- it is at once administered, wholly or in part, his administratrix, if she final and comseek to administer the estate of which he was executor, made. plete when must derive her title so to do from a separate grant to her Where an of administration or administration de bonis non of that executor dies intestate, estate. If, however, she does not administer, then the duty his adminisof appointing an administrator devolves upon the Division only perform as one of its special functions under the Wills Act, and his executorwill be performed according to the rules regarding priority ministratrix; of claim to the grant which it usually adopts in such cases, Division apselecting those, as will appear presently, most nearly in- points an adterested in carrying out the will, if there be one, or in administering the intestate's estate, if there be no will. It is apparent that an executor has no more power than is given him under the will, and therefore he cannot assign his office unless permitted. But if an executor die, If he adminleaving the estate unadministered in part, or it seems altogether if he has taken probate, and his executors prove only, his will, they are entitled, as continuing the chain of repre- his executors sentation, to administer the whole or the remainder of the can continue. estate, and must be cited before a grant of administration ministrator. For the exe cutor cannot assign. isters the estate in part no chain of But an executor may die without proving the will,5 that If he does not is, without entering upon his office. In such case the prove the will chain of representation is, with one exception, not even commenced, and cannot, therefore, be continued in the 1 See RENUNCIATION. 2 Tingrey v. Brown, 1 Bos. & Pull. 310. 3 Velho v. Leite, 3 Sw. & Tr. 456; Wallich, 33 L. J., Prob. 87; Adamson, 3 P. & D. 253. 4 Beer, 2 Robert. 349. 5 See post, p. 151. 6 That of an executor's agent under letters of attorney. See p. 146. representamenced. tion is com A nonproving executor's executor cannot prove the first testator's will. "None can prove a will but who is named executor therein.' determines person of his executor. When the executor dies before proving his will, his executor cannot take upon himself the execution of the first will, but administration of the goods of the first testator with the will annexed is to be committed to the executor of the executor, if the residue of the goods of the first testator (the legacies performed) were bequeathed by his last will to the first executor, or to such other person or persons to whom the said residue is bequeathed, otherwise to the next of blood to the first testator demanding it; and such in effect is now the law. "The reason," why, the executor dying before probate, though after administering, his executor shall not be executor to the first testator, is because his executor cannot prove the will of the first testator, and, consequently, is incapable of recovering his debts, and consequently of being his executor. The administering executor may prove his testator's will, because he is the person named in the will, and, if he does so, his executor shall be executor to the first testator, because there needs no new probate; but, when the executor dies after administering and before probate, his executor cannot prove the will of the first testator, because he is not named executor to him in the will, and no one can prove the will but who is named executor in the will; the executor of an executor may renounce being executor to the first testator, but, if he does not renounce, he is executor of course." The exe 66 Not proving cutor's not proving the will does upon his death determine the executorship, but not avoid it." executor's office, not avoids it. As no one but the executor can prove the will, when he dies after the testator's death, but without having done so, administration with the will annexed must follow to some one, and only in the case where the original executor does 1 Day et ux v. Chatfield, 1 Vern. 200. 2 Isted v. Standey, 3 Dyer, p. 372 a, temp. Eliz. 3 See Wankford v. W., 1 Salk. 299 et seq., on appeal; and Freem. 520. |