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EXECUTORS AND ADMINISTRATORS

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Originally appearing in Volume V10, Page 64 of the 1911 Encyclopedia Britannica.
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EXECUTORS AND ADMINISTRATORS , in See also:

English See also:law, those persons upon whom the See also:property of a deceased See also:person both real and See also:personal devolves according as he has or has not See also:left a will. Executors differ from administrators both in the mode of their creation and in the date at which their See also:estate vests. An executor can only be appointed by the will of his testator; such See also:appointment may be See also:express or implied, and in the latter See also:case he is said to be an executor "according to the See also:tenor." The estate of an executor vests in him from the date of the testator's See also:death. An See also:administrator on the other See also:hand is appointed by the See also:probate See also:division of the High See also:Court, and his estate does not vest till such appointment, the See also:title to the property being vested till then in the See also:judge of the probate division. As to whom the court will appoint administrators and the various kinds of administrators see under See also:ADMINISTRATION. Apart from these two points the rights and liabilities of executors and administrators are the same, and they may be indifferently referred to as the representative of the deceased. As to their appointment before the See also:establishment of the court of probate see articles WILL and See also:INTESTACY. Before the See also:Land See also:Transfer See also:Act 1897, the real estate of the deceased did not devolve upon the representative but vested directly in the devisee or See also:heir-at-law, but by that act it was provided that the personal representative should be also the real representative, and therefore it may now be said broadly that the representative takes the whole estate of the deceased. There are, however, a few See also:minor exceptions to this See also:rule, of which the most important are lands held in See also:joint tenancy and See also:copyhold lands. As the representative stands in the shoes of the deceased he is entitled to See also:sue upon any See also:contract or for any See also:debt which the deceased might have sued in his lifetime. The duties of a representative are as follows: 1. To See also:bury the deceased in a manner suitable to the estate he leaves behind him; and the expenses of such funeral take See also:precedence of any See also:duty or debt whatever; but extravagant expenses will not be allowed.

No rule can be laid down as to what is a reasonable See also:

allowance for this purpose, as it is impossible to know at the See also:time of the funeral what the estate of the deceased may amount to. The broad rule is that the representative must allow such sum as seems reasonable, having regard to all the circumstances of the case and the conditions in See also:life of the deceased, remembering that if he should exceed this he will be personally liable for such excess in the event of the estate proving insolvent. 2. He must obtain probate or letters of administration to the deceased within six months of the death, or, if such See also:grant be disputed, within two months of the determination of such suit. The See also:penalty for not doing so is fixed by the See also:Stamp Act 1815, § 37, at See also:ioo, and an additional stamp duty at the See also:rate of 1o%. As to the formalities of PROBATE see that See also:article. 3. Strictly speaking, he must compile an See also:inventory of all the estate of the deceased, whether in See also:possession or outstanding, and he is to deliver it to the court on See also:oath. He is to collect all the goods so inventoried and to commence actions to get in all those outstanding, and he is responsible to creditors for the whole of such estate, whether in possession or in See also:action. This duty is thrown upon the representative by an act of 1529, but it is not the See also:modern practice to exhibit such inventory unless he be cited for it in the spiritual court at the instance of a party interested. It is, however, necessary to See also:file an See also:affidavit setting out the value of the estate of the deceased upon applying for a grant of probate or letters of administration. 4.

The representative must pay the debts of the deceased according to their priority. Next to the legitimate funeral expenses come the See also:

costs of proving and administering the estate; in the event, however, of the funeral and testamentary expenses being charged by the will upon any particular fund, they will be primarily payable out of that fund. The representative must be careful to pay the debts according to the rules of priority, otherwise he will become personally liable to the creditors of one degree if he has exhausted the estate in paying creditors of a lesser degree. First of all, a See also:solicitor has a See also:lien for his costs upon any fund or duty which he has recovered for the deceased; next in See also:order come debts due to the See also:crown by See also:record or speciality; then debts given a priority by See also:statute, as, for example, by the Poor See also:Relief Act 1743, See also:money due by an overseer of the poor to his See also:parish. Next, debts of record, i.e. See also:judgment recovered against the deceased in any court of record; all such debts are equal among themselves, but a judgment creditor who has sued out See also:execution is preferred to one who has not; another class of debts of record are statutes See also:merchant and See also:staple, or recognizances in the nature of statute staple, i.e. bonds of record acknowledged before the See also:lord See also:mayor of See also:London or the mayor of the staple. Last in the order of debts come specialty and See also:simple contract debts, which by Hinde See also:Palmer's Act (the Executors Act 1869) are of equal degree, though as between specialty debts bonds given for value See also:rank before voluntary bonds unless assigned for value, and as between simple contract debts those due to the crown have priority. Though the creditors can if necessary take all the estate of the deceased to satisfy their claims, yet as between the various classes of See also:assets the representative must pay the debts out of assets in the following order: (i.) See also:General personal estate not specifically bequeathed nor exempted from See also:payment of debts; (ii.) real estate appropriated to debts; (iii.) real estate descended; (iv.) real estate devised charged with payment of debts; (v.) general pecuniary legacies See also:pro rata; (vi.) specific legacies and devises; (vii.) real estate over which a general See also:power of appointment has been exercised by will; (viii.) the widow's See also:paraphernalia. 5. The debts of the deceased being satisfied, the representative must next proceed to satisfy the legacies and devises left by the testator. In order to enable him to do this with safety to himself, it is provided that he cannot be compelled to See also:divide the estate among the legatees or next of See also:kin until twelve months from the death of the deceased (this is commonly known as " the executor's See also:year "), though if there is no doubt as to the solvency of the estate he may do so at once. As a further See also:protection the representative may give See also:notice by See also:advertisement for creditors to send in their claims against the estate, and on expiration of the notices he may proceed to divide .the estate, though even then the creditor may follow the assets to the person who has received them and recover for his debt.

As between legatees the following priorities must be observed: (I) Specific legatees and devisees, (2) See also:

demonstrative legatees, and (3) general legatees ; and as to this last class the testator can give priority to one over another. If there are not sufficient assets to pay the general legatees they must abate rateably. Legacies were not payable out of the real estate See also:prior to the Land Transfer Act 1897, unless the testator charged the realty with them. Even then unless the testator exonerates his personalty from payment of the legacies the personalty will be the first fund chargeable. It has been suggested that the effect of the act is to make the realty chargeable pro rata with the personalty, but this is doubtful. 6. The See also:residue, after all legacies and devises are satisfied, must, if there be a will, be paid to the residuary legatee therein named, and if there be no will the real estate will go to the heir (see See also:INHERITANCE) and the personalty to the next of kin (see INTESTACY). It was held at one time that in See also:default of a residuary legatee the residue See also:fell to the executor himself, but now nothing less than the expressed intention of the testator can give it to him. The liabilities of the representative may be shortly stated. He is liable in his representative capacity in all cases where the deceased would be liable were he alive. To this general rule there are some exceptions. The representative cannot be sued for See also:breach of a contract for personal services which can be performed only in the lifetime of the person contracting, nor again can he be sued in a case where unliquidatecl See also:damages only could have been recovered against the deceased.

He is liable in his personal capacity in the following cases: if he contracts to pay.a debt due by the deceased, or if having admitted that he had assets in his hands sufficient to pay a debt or See also:

legacy he has misapplied such assets so that he cannot satisfy them; or lastly, if by mismanaging the estate and effects of the deceased he has made himself liable for a devastavit. Shortly stated, a representative is See also:bound to exercise the See also:ordinary care of a business See also:man in administering the estate of the deceased, and he will be liable for the loss to the estate caused by his own See also:negligence, or by the negligence of a co-representative which his act or neglect has rendered possible. Though the general rule of delegatus non potest delegari holds See also:good of a representative, yet in certain cases he may " rely upon skilled persons in matters in which he cannot be expected to be experienced," e.g. he must employ solicitors to conduct a lawsuit. The privileges of the representative are these: he may prefer one creditor to another of equal degree; he may retain a debt owing to him from the deceased as against other creditors of equal degree (see See also:RETAINER); he may reimburse himself out of the estate all expenses incurred in the execution of his See also:trust. An executor de son See also:tort is one who, without any title to do so, wrongfully intermeddles with the assets of the deceased, dealing with them in such a way as to hold himself out as executor. In such a case he is subject to all the liabilities of an executor, and can claim none of the privileges. He may be treated by the creditor as the executor, and, if he is really assuming to act as executor, creditors and legatees will get a good title from him, but he is liable to be sued by the rightful representative for damages for interfering with the property of the deceased. See also:Scotland.—Executor in Scots law is a more extensive See also:term than in English. He is either nominative or See also:dative, the latter appointed by the court and corresponding in most respects to the Englishadministrator. Caution is required from the latter, not from the former. By the See also:common law See also:doctrine of passive See also:representation the heir or executor was liable to be sued for See also:implement of the deceased's obligations. The See also:Roman principle of See also:ben' ficium inventarii was first introduced by an act of 1695.

As the law at See also:

present stands, the heir or executor is liable only to the value of the See also:succession, except where there has been vitious intromission in movables, and in gestio pro haerede (behaviour as heir) and other cases in heritables. The present inventory duty on succession to movables and heritables depends on the See also:Finance Acts 1894–1909(see ESTATE DUTY). In See also:England the executor is bound to pay the debts of the deceased in a certain order, but in Scotland they all rank See also:part passu except privileged debts (see See also:PRIVILEGE).

End of Article: EXECUTORS AND ADMINISTRATORS

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