After inter meddling may be attached for not taking probate : also liable to penalties. What will be deemed an election to Where the executor has intermeddled and will not take upon himself probate of the Will, the Court will issue a citation calling upon him within a time limited to enter an appearance in the registry, and to take upon himself the probate and execution of the Will. In case of disobedience to the citation, the Court will make a peremptory order upon him to take probate within a specified time, and condemn him in the costs, and on failure to comply with the peremptory order the Court will on motion order a writ of attachment to issue to compel him to answer for his contempt (z). Moreover, stat. 55 Geo. III. c. 184, s. 37, enacts that "if any person shall take possession of, and in any manner administer, any part of the personal estate and effects of any person deceased, without obtaining probate of the Will or letters of administration of the estate and effects of the deceased, within six calendar months after his or her decease, or within two calendar months after the termination of any suit or dispute respecting the Will or the right to letters of administration, if there shall be any such, which shall not be ended within four calendar months after the death of the deceased, every person so offending shall forfeit the sum of one hundred pounds, and also a further sum at and after the rate of ten pounds per centum on the amount of the stamp duty payable on the probate of the Will or letters of administration of the estate and effects of the deceased." The penalty is now one hundred pounds or double the amount of duty chargeable according as the Commissioners. elect, which is a debt due to the Crown, and is recoverable by any of the ways or means in force for the recovery of probate, legacy, or succession duty (a). Whatever acts will make a man liable as executor de son tort will be deemed an election of the executorship. Moreover, accept office. whatever shows an intention to take upon himself the executorship will be sufficient (b). A statement by him in answer to () Mordaunt v. Clarke, (1868) L. R. 1 P. & D. 592. (a) See 44 Vict. c. 12, s. 40 ; 57 & 58 Vict. c. 30, s. 8 (1), (5), (6); Att.-Gen. v. New York Breweries Co., [1898] 1 Q. B. 205; [1899] A. C. 62. (b) Long r. Symes, (1832) 3 Hagg. 774. an inquiry by a creditor, that he is an executor, and that the Will has been proved, will render him liable as an executor (c). Taking the oath as executor is not to be considered as an Oath as intermeddling such as to preclude renunciation (d), but an not preclude executor cannot renounce after he has taken probate (e). executor does renunciation. Practice as to renouncing. The present practice is that the executor intending to renounce signs the common form of renunciation in the presence of a witness (f), and the form is then filed in the registry of the Probate Division. It need not be under seal, but if sealed it is liable to 10s. stamp duty (g). A renunciation Until filed does not exist as an effective instrument until it has been recorded, and until it is filed it may be withdrawn (h). Where the executor is out of England an authority to renounce by power of attorney may suffice (i). renunciation can be with drawn. cannot in part An executor cannot in part refuse. He must refuse Executor entirely or not at all, even in the case of his testator being executor to another person (k). Under 20 & 21 Vict. c. 77, s. 79, after renunciation the rights of executorship wholly cease, and the representation of the testator and the administration of his effects shall and may go, devolve, and be committed in like manner as if the person renouncing had not been appointed executor. Under the old law, where all the executors of a Will renounced, and administration had been granted, the renunciation could not be retracted, but where some executors proved and others renounced, those who had renounced were allowed. to retract, as they could then be let in without altering the devolution of the representation. The old practice is not abrogated by the above Act, and where one of two executors absconded after taking probate the Court allowed his (c) Vickers v. Bell, (1864) 10 Jur. N. S. 376. (d) McDonnell r. Prendergast, (1830) 3 Hagg. 216; Long r. Symes, (1832) 3 Hagg. 774; Jackson . Whitehead, (1821) 3 Phillim. 577; Mohamidu . Pitchey, [1894] A. C. 437, 443. (e) In the Goods of Veiga, (1862) 32 L. J. P. M. & A. 9. (f) Form No. 247, Tr. & Coo, P. P. (14th ed.) p. 895. (1) Tr. & Coo. P. P. (14th ed.) p. 202. (h) Williams (10th ed.) 204; In the Goods of Morant, (1873) L. R. 3 P. & D. 151. (i) In the Goods of Rosser, (1864) 3 Sw. & Tr. 490. (k) Williams (10th ed.) 204; Brooke r. Haymes, (1868) L. R. 6 Eq. 25, 30. renounce. After renunciation rights as executor wholly cease. When Court will allow retraction of renunciation. A person can. not renounce probate and tration in co-executor who had and take probate (1). renounced to retract his renunciation. The retraction will not be allowed unless it can be shown that it will be for the benefit of the estate or of those interested under the Will (m). By rule 50, P. R. (Non-Contentious business) "no person who renounces probate of a Will or letters of administration of take adminis- the personal estate and effects of a deceased person in one character is to be allowed to take a representation to the deceased in another character." But this rule is merely for the guidance of the registry, and is capable of modification by the Court on sufficient reason being shown (n). another character. 12. (1) In the Goods of Stiles, [1898] P. () In the Goods of Gill, (1873) L. R. 3 P. & D. 113. (n) In the Goods of Loftus, (1864) 3 Sw. & Tr. 307. If one who is neither executor nor administrator intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, he thereby makes himself what is called in the law an executor of his own wrong, or more usually an executor de son tort (a). When a man has so acted as to become in law an executor de son tort, he thereby renders himself liable, not only to an action by the rightful executor or administrator, but also to be sued as executor by a creditor of the deceased, or by a legatee (b). The following points were resolved in Read's case (c) :1. "When no one takes upon him to be executor, nor any hath taken letters of administration, there the using of the goods of the deceased by any one, or the taking of them into his possession, which is the office of an executor or administrator, is a good administration to charge them as executors of their wrong; for those to whom the deceased was indebted in such case have not any other against whom they can have an action for recovery of their debts." 2. "When an executor is made, and he proves the Will, or takes upon him the charge of the Will, and administers in that case, if a stranger takes any of the goods, and, claiming them for his proper goods, uses and disposes of them as his own goods, that doth not make him in construction of law an executor of his wrong, because there is another executor of right to whom he may charge, and these goods which are in such case taken out of his possession after that he hath administered, are assets in his hands; but although there be (a) Williams (10th ed.) 183. (b) Williams (10th ed.) 190. (c) (1600) 5 Rep. 33 b. Yet stranger expressly claiming to act as executor may be charged as executor de son tort. As to goods taken by stranger before execu an executor who administers, yet if the stranger takes the goods, and claiming to be executor, pays debts, and receives debts, or pays legacies and intermeddles as executor, there, for such express administration as executor, he may be charged as executor of his own wrong, although there be another executor of right." 3. "In the case at bar, when the defendant takes the goods before the rightful executor hath taken upon him, or tor has taken proved the Will, in this case he may be charged as executor of his own wrong, for the rightful executor shall not be charged but with the goods which cometh to his hands after he takes upon him the charge of the Will." office. Taking pos session of Taking possession of foreign assets without taking possesforeign assets sion of any of the English assets will not constitute a person executor de son tort (d). only not suffi cient. What acts constitute executor de son tort is question of law. Acts of kindness or charity. Paying debts or testamen The question of fact whether the person charged as executor de son tort took possession of effects of the deceased and acted or intermeddled is for the jury; but when the facts are established, the result from them-whether they constitute an executor de son tort-is a matter of law for the judge to decide (e). Although the slightest circumstance of intermeddling will make a person executor de son tort (f), yet there are many acts which a stranger may perform without incurring the hazard of being involved in such an executorship; such as locking up the goods for preservation, directing the funeral in a manner suitable to the estate which is left and defraying the expenses of such funeral himself or out of the deceased's effects, making an inventory of his property, feeding his cattle, repairing his houses, or providing necessaries for his children; for these are offices merely of kindness and charity (g). A man who pays the debts of the deceased, or the fees tary expenses about proving his Will, with his own money does not thereby constitute himself executor de son tort (h). of deceased. (d) Beavan v. Lord Hastings, (1856) (e) Padget. Priest, (1787) 2 T. R.97. see per Buller, J., in Padget r. Priest, (g) Williams (10th ed.) 187. |