CHAPTER IX. CO-EXECUTORS. ors how 230. Co-executors, however numerous, are regarded Co-executin law as an individual person, and therefore the acts regarded. of any one of them in respect of the administration of the effects are deemed to be the acts of all; for they all have a joint and entire authority over the whole property. Hence a release of a debt by one of several executors is valid, and shall bind the rest. So, one of several executors may settle an account with a person accountable to the estate, and in the absence of fraud the settlement will be binding on the others though dissenting. So a grant or surrender of the term by one executor shall be equally available; the attornment of one shall be the attornment of the other. And the sale or gift by one of several executors of the goods and chattels of the deceased is the sale and gift of them all. Wms. p. 816. 231. An assent to a legacy by one of several execu- Assent to tors is sufficient. So if one of several executors be a a legacy by one legatee, his single assent to his own legacy will vest the executor complete title in himself. Wms. old authorities, p. 819. sufficient. executor of a 232. The act of one in taking possession of the One testator's effects, real or personal, cannot create a new taking liability and impose a charge on the other personally possession and in his own individual character which, without such chattel. an Act, would never have existed. Therefore, if one executor takes possession of and uses a personal chattel, the other is not liable to the creditors for such an act of his co-executor. Mortgage by one to the other. Beatty v. Shaw, 13 O. R. Interest of 233. If there be several executors or administraexecutors. tors, they are regarded in the light of an individual person. They have a joint and entire interest in the effects of the testator or intestate, including chattels real, which is incapable of being divided, and in case of death such interest shall vest to the survivor, without any new grant by the Surrogate Court. Consequently, if one of two executors or administrators grant or release his interest in the testator's or intestate's estate to the other nothing shall pass, because each was possessed of the whole before. So, if one of several executors release but his part of the debt, it has been held that the whole is discharged. Effect of possession by one. Death of one of several executors. Of one of several adminis trators. Survival of powers. Heath v. Chilton, 12 M. & W. 632. 234. Since several executors have a joint and entire interest in all the goods of their testator, including chattels real, it follows that the act of one in possessing himself of the effects, is the act of the others, so as to entitle them to a joint interest in possession and a joint right of action if they are afterwards taken away. Nation v. Tozer, 1 Cr. Mees. & R. 174. 235. If one of several executors dies before the joint interest in the residue is severed, where the executors are entitled to such residue the share of the executor dying will survive to his common executors, and the executors of his own executors or administrators. 236. One of several administrators stands on the same ground and foundation with one of several execu tors. Stanley v. Bernes, 1 Hagg. 222. 237. The power of an executor is not determined by the death of his co-executor, but survives to him. And so, likewise, if administration has been granted to two and one dies, the other will be sole administrator and all the power of the office will survive to him. Hudson v. Hudson, Cas. temp. Talb. 127. several 238. The ordinary functions incident to the office One of of executor may be exercised by one of several appointed may act. executors, although the others renounce; but at common law where a power was given to executors to sell land, and one of them refused the trust, it was clear that the others could not sell, but the Statute 21 Hen. VIII. cap.4, provides that where lands are willed to be sold by executors and part of them refuse to be executors and to accept the administration of the will, all sales by the execu tors that accept the administration shall be as valid as if all the executors had joined.* 239. If one of two executors dies the office sur- Naked vives to his co-executor. authority A naked authority given to does not several cannot survive. Therefore if a man devises his survive. lands to A. for life, and that after his decease the estate shall be sold by the executors, naming them as B. and C., his executors, or by B. and C., who are not named executors; in that case if one of them die during the life of A. the other cannot sell, because the words of the testator would not be satisfied. Co. Lit. 113a. 240. If there are several executors appointed by Must join the will they must all join in bringing actions, even in actions though some of them be infants, or have not proved the will. executor. 241. Where there are several executors they may Lease to agree that one of them shall hold the land devised to one them in trust at a fixed rent, and if the rent falls into arrears he may be distrained upon in respect of it. Cowper v. Fletcher, 34 L. J. (N. S.) Q. B. 187. 242. In this connection, it may be well to call attention here to the following section (3) of the Trustee Act, R. S. O. 1897, chapter 129. The section will come again under consideration in dealing with the liabilities of Executors. * The special powers of sale conferred upon executors by R. S. O., 1897, c. 129, The Trustee Act, may be exercised by a surviving executor. Every trust instrument to be 3. Every deed, will, or other document, creating a trust, either expressly or by implication, shall, without prejudice to the clauses actually contained therein, be deemed to contain a clause in the deemed to words, or to the effect following, that is to say:-" That the trustees contain the of the trustees Imp. Act, 22-23 V. c. 35 s. 31. clause for or trustee, for the time being, of the said deed, will or other instrument, shall be respectively chargeable only for such moneys, stocks, indemnity funds and securities as they shall respectively actually receive, notand reimbursement withstanding their respectively signing any receipt for the sake of conformity, and shall be answerable and accountable only for their own acts, receipts, neglects or defaults, and not for those of each other, nor for any banker, broker, or other person with whom any trust moneys or securities may be deposited, nor for the insufficiency or deficiency of any stocks, funds or securities, nor for any other loss, unless the same shall happen through their own wilful default respectively; and also that it shall be lawful for the trustees or trustee for the time being, of the said deed, will, or other instrument, to reimburse themselves or himself, or pay or discharge out of the trust premises all expenses incurred in or about the execution of the trusts or powers of the said deed, will or other instrument." R. S. O. 1887, c. 110, s. 2. CHAPTER X. APPLICATION IN CASES WHERE SUCCESSION duties are 243. In certain cases, which will be stated in a sub- Security required sequent part of this book, Succession Duties are re- when quired by the Crown to be paid for the purposes of the succession Province. In such cases, information is required and payable. security taken from Executors and Administrators as directed by the following sections of the Ontario Succession Duties Act. R. S. O. 1897, chapter 24. make 5. (1) An executor or administrator applying for letters probate, Executors or letters of administration. to the estate of a deceased person, shall, etc. to file inventory before the issue of letters probate or administration to him, and bonds and file with the Surrogate Registrar a full, true, and correct state- for ment under oath shewing: (a) A full itemized inventory of all the property of the deceased person, and the market value thereof, and (b) The several persons to whom the same will pass under the will or intestacy, and the degree of relationship, if any, in which they stand to the deceased; and the executor or administrator shall before the issue of letters probate, or letters of administration, deliver to the Surrogate Registrar a bond in a penal sum equal to ten per centum of the sworn value of the property of the deceased person liable, or which may become liable, to succession duty, executed by himself and two sureties, to be approved by the Registrar, conditioned for the due payment to Her Majesty of any duty to which the property coming to the hands of such executor or administrator of the deceased may be found liable. Ont. Stats., 1892, c. 6, s. 5 (1); ditto, 1896, c. 5, s. 8. (2) This section shall not apply to estates in respect of which no succession duty is payable. Ont. Stats., 1892, c. 6, s. 5 (2). payment of duty. |