SECT. III.-Appointment of Executors in several degrees. of executors A testator may appoint several persons as executors in Appointment several degrees; as where he makes his wife executrix, but if in several she will not or cannot be executrix, then he makes his son degrees. executor; and if his son will not or cannot be executor, then he makes his brother, and so on. In which case the wife is said to be instituted executor in the first degree, the son is said to be substituted in the second degree, the brother to be substituted in the third degree, and so on (u). The substituted executor cannot propound the Will till the first-named executor has been cited to accept or refuse the office (x). If an instituted executor once accepts the office, and afterwards dies intestate, the substitutes in what degree soever are all excluded (y). It may be a question of construction whether the substitution was to take place only in the event of the first executor not acting at all, or in the case also of his death after having taken probate (z). An appointment of A. as executor, and "in case of his absence on foreign duty" of B. as executrix, was held to be an appointment of B. as substituted executrix in the event of A.'s absence from the country when the necessity for proving the Will arose, although he was in England at the time of the testator's death (a). Substitute pound until cannot pro after citation. Acceptance excludes all of office substitutes. of executor may be SECT. IV.-How the appointment may be restricted. The appointment of an executor may be either absolute or Appointment qualified. It may be absolute when he is constituted certainly, immediately, and without any restriction in regard to the absolute testator's effects or limitation in point of time. It may be qualified by limitations as to the time, or place wherein, or (u) Williams (10th ed.) 171. (c) Smith . Crofts, (1758) 2 Lee, 557. (y) Williams (10th ed.) 172. (*) In the Goods of Lighton, (1828) E. 1 Hagg. 235; In the Goods of Johnson, E or qualified. 1. Limitation in point of time: of commence ment; the subject-matter whereon, the office is to be exercised; or the creation of the office may be conditional (b). 1. Limitation in point of time-(a) in respect of the commencement of the office, e.g., an appointment of executor to have (a) in respect effect at the expiration of five years after the testator's death; or upon the death or marriage of a particular person, or upon a particular person coming to full age; or the testator may appoint the executor of A. to be his executor, and then if (b) in respect he die before A. he has no executor till A. die ;-(b) in respect of the duration of the office, e.g., during five years next after the testator's decease, or during the minority or widowhood or until the death or marriage of a person. of duration. 2. Limitation in point of place. Executor appointed for abroad only not entitled to probate here. 3. Limitation matter. In these cases, if the testator does not appoint a person to act before the period limited for the commencement of the office on the one hand or after the period limited for its expiration on the other, the Court may commit administration to another person until there be an executor, or after the executorship is ended (c). 2. Limitation in point of place-e.g., the testator may appoint different persons executors for properties situate in different counties in England or in different parts of the world (d). Where, however, a person is appointed executor for a place abroad he is not entitled to probate in this country (e), but where the testator has made two Wills with separate executors, one Will relating to property abroad and the other to property in England, probate should be granted here of the two documents as together constituting the Will of the deceased (ƒ). 3. Limitation as to the subject-matter-e.g., of particular as to subject property such as of the testator's plate and household stuff, sheep or cattle, leases, etc. But where a testator, after giving specific legacies, but not personal estate, appointed his (b) Williams (10th ed.) 175. (d) Re Cohen's Executors and disposing of the residue of his daughter executrix for all (e) Velhor. Leite, (1864) 3 Sw. & Tr. 456. (f) In the Goods of Harris, (1870) L. R. 2 P. & D. 83. property not named in the Will, the Court refused to grant probate to the daughter as executrix, on the ground that the Court cannot grant probate to an executor who is precluded from dealing with the property which passes under the Will (9). The same Will may contain the appointment of one executor for general and another for limited purposes (h); but s. 10 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), replacing s. 31 of the Conveyancing and Law of Property Act, 1881, does not enable a sole trustee of a Will to appoint by his Will special executors, for the purpose of executing, in continuation to himself, the trusts of the Will of the original testator (i). But although a testator may appoint separate executors of distinct parts of his property, and may divide their authority, yet quoad creditors, they are all to be considered as one executor, and may be sued as one executor (k). limited appointment 4. Condi 4. The appointment may be conditional. The condition may be precedent, as for instance on the person nominated tional. giving security to pay the legacies, or on his payment to the other executors of the debts which he owes the testator, or on his proving the Will within a certain time; or the condition. may be subsequent, as if the person nominated does some act on the happening of which the appointment is determined or another person is substituted (1). SECT. 5. Of the transmissibility of the office of Executor. If there be a sole executor, whether originally so appointed, Executor of or becoming such by survivorship, who proves the Will, the sole executor. executor of such executor is to all intents and purposes the executor and representative of the first testator. So long as Chain of the chain of representation is unbroken by any intestacy, the representaultimate executor is the representative of every preceding testator. But if the first executor should die without having proved the Will the executorship is not transmissible to his (g) In the Goods of Wakeham, (1872) L. R. 2 P. & D. 395. (h) Lynch r. Bellew, (1820) 3 Phillim. 424. (i) Re Parker's Trusts, [1894] 1 Ch. 707. (k) Williams (10th ed.) 178. (1) Ibid. tion continues until broken by intestacy. First executor must have proved Will. Rule same though original probate limited. Effect of renunciation: death before proving: non-appearance to citation. Where chain of executorship continues no fresh grant required. Administrator durante minori ætate. Administra tor cum testamento annexo as attorney. executor, but is wholly determined. Hence it follows that if the person appointed executor dies before the testator there must be administration cum testamento annexo (m). The rule is the same, though the original probate was a limited one (n), but a limited probate formerly taken out to the Will of a married woman did not continue the chain of representation under the general probate of the Will of the original testator (0). Since the stat. 20 & 21 Vict. c. 77, s. 79, where any person renounces probate, his right in respect of the executorship wholly ceases and the representation devolves as if he had not been appointed executor (p); and 21 & 22 Vict. c. 95, s. 16, provides that whenever an executor survives the testator but dies without having taken probate, and whenever an executor is cited to take probate and does not appear to such citation, his right in respect of the executorship shall wholly cease, and the representation to the testator, and the administration of his effects, shall and may, without any further renunciation, go, devolve, and be committed in like manner as if he had not been appointed executor. Consequently where an executor to whom power has been reserved survives his acting co-executor and does not appear to a citation the chain of executorship will be continued in the executors of the acting executor without any fresh grant from the Court (q). The administrator of an executor is merely an officer of the Court and has no privity or relation to the original testator. But the administrator durante minori ætate of the executor of an executor is the representative of the first testator; for such an administrator is in loco executoris (r). So also if administration cum testamento annexo has been granted under letter of attorney for the use or benefit of another it is (m) Williams (10th ed.) 180 et seq. (0) In the Goods of Bayne (1858), 1 (P) Post, p. 55. (4) In the Goods of Noddings, (1860) 2 Sw. & Tr. 15; In the Goods of the same thing as if the executor had proved the Will himself, and the chain of representation remains unbroken (s). SECT. 6.-Of Renunciation or Acceptance of office. The executor named in the Will cannot be compelled to accept the office, even though in the lifetime of the testator he had agreed to accept the office (t). Moreover, the Public Trustee if appointed executor is in certain cases prohibited by statute from accepting the office (tt). Executor canpelled to not be com accept office. be cited to accept or By stat. 21 Hen. VIII. c. 5, s. 8, power was given to the Executor may Ordinary to cite the executor to take or refuse probate, which power was transferred to the Court of Probate by s. 23 of refuse prothe Court of Probate Act, 1857, and is now vested in the Probate Division of the High Court of Justice. No action will lie for neglect to take out probate; the only remedy is by citing the executor in the Probate Division (u). By stat. 21 & 22 Vict. c. 95, s. 16, whenever an executor named in a Will is cited to take probate, and does not appear to such citation, the right of such person in respect of the executorship shall wholly cease, and the representation to the testator, and the administration of his effects, shall and may, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor. If an executor once elects to accept the office he cannot afterwards renounce or refuse probate; and in spite of his renunciation, and the consequent appointment of an administrator, he will remain liable to be sued as executor both at law and in equity (x). His renunciation, after intermeddling, being invalid, he will be allowed to retract it and prove the Will, and any appointment of an administrator will be revoked (y). (8) Williams (10th ed.) 181; In the Goods of Murguia, (1884) 9 P. D. 236. (t) Doyle r. Blake, (1804) 2 Scho. & Lef. 231, 239. (tt) 6 Edw. VII. c. 55, s. 2 (4). See Appendix. (u) Re Stevens, [1898] 1 Ch. 162, (x) Williams (10th ed.) 200. bate. No action for neglect to take probate. On nonrepresentation goes as if appearance executor had not been appointed. After electing to accept executor can not renounce : may retract nunciation. invalid re |