EXECUTOR - Steven J. Coker
From: Steven J. Coker
Date: December 22, 1998

Extracted From:

EXECUTOR, trusts. The word executor, taken in its largest sense, has several

  a. Executor dativus, who is one called an administrator to an intestate. 

  b. Executor testamentarius, or one appointed to the office by the last will of
a testator, and this is what is usually meant by the term. 

In the civil law, the person who is appointed to perform the duties of an
executor as to goods, is called haeres testamentarius; the term executor, it is
said, is a barbarism unknown to that law....

An executor, as the term is at present accepted, is the person to whom the
execution of a last will and testament of personal estate is, by the testator's
appointment, confided, and who has accepted of the same.... 

Generally speaking, all persons who are capable of making wills may be
executors, and some others beside, as infants and married women....

An executor is absolute or qualified; his appointment is absolute when he is
constituted certainly, immediately, and without restriction in regard to the
testator's effects, or limitation in point of time. It may be qualified by
limitation as to the time or place wherein, or the subject matters whereon, the
office is to be exercised; or the creation of the office may be conditional. It
may be qualified. 

  a. By limitations in point of time, for the time may be limited when the
person appointed shall begin, or when he shall cease to be executor; as if a man
be appointed executor upon the marriage of testator's daughter.... 

  b. The appointment may be limited to a place; as, if one be appointed executor
of all the testator's goods in the state of Pennsylvania. 

  c. The power of the executor may be limited as to the subject matter upon
which if is to be exercised; as, when a testator appoints A the executor of his
goods and chattels in possession; B, of his choses in action. One may be
appointed executor of one thing only, as of a particular claim or debt due by
bond, and the like.... But although a testator may thus appoint separate
executors of distinct parts of his property, and may divide their authority, yet
quoad the creditors of the testator they are all executors, and act as one
executor, and may be sued as one executor.... The appointment may be
conditional, and the condition may be either precedent or subsequent....

An executor derives his interest in the estate of the deceased entirely from the
will, and it vests in him from the moment of the testator's death.... He
acquires an absolute legal title to the personalty by appointment, but nothing
in the lands of the testator, except by devise. He can touch nothing which was
not personal at the testator's decease, except by express direction.... Still
his interest in the goods of the deceased is not that absolute, proper and
ordinary interest, which every one has in his own proper goods. He is a mere
trustee to apply the goods for such purposes as are sanctioned by law.... He
represents the testator, and therefore may sue and recover all the claims he had
at the time of his death and may be sued for all debts due by him.... By the
common law, however, such debts as were not due by some writing could not be
recovered against the executors of a deceased debtor. The remedy was only in
conscience or by a quo minus in the exchequer. Afterwards an action on the case
in banco regis was given....

The following are the principal duties of an executor: 

  1. Within a convenient time after the testator's death, to collect the goods
of the deceased, provided he can do so peaceably; when he is resisted, he must
apply to the law for redress. 

  2. To bury the deceased in a manner suitable to the estate he leaves behind
him; and when there is just reason to believe he died insolvent, he is not
warranted in expending more in funeral expenses (q.v.) than is absolutely

  3. The executor should prove the will in the proper office. 

  4. He should make an inventory (q.v.) of the goods of the intestate, which
should be filed in the office. 

  5. He should ascertain the debts and credits of the estate, and endeavor to
collect all claims with as little delay as possible, consistently with the
interest of the estate. 

  6. He should advertise for debts and credits....

  7. He should reduce the whole of the goods, not specifically bequeathed into
money, with all due expedition. 

  8. Keep the money of the estate safely, but not mixed with his own, or he may
be charged interest on it. 

  9. Be at all times ready to account, and actually file an account within a

 10. Pay the debts and legacies in the order required by law. 

Co-executors, however numerous, are considered, in law, as an individual person,
and; consequently, the acts of any one of them, in respect of the administration
of the assets, are deemed, generally, the acts of all.... On the death of one or
more of several joint executors, their rights and powers survive to the

When there are several executors and all die, the power is in common transferred
to the executor of the last surviving executor, so that he is executor of the
first testator; and the law is the same when a sole executor dies leaving an
executor, the rights are vested in the latter. This rule has been changed, in
Pennsylvania, and, perhaps, some other states, by legislative provision; there,
in such case, administration cum testamento annexo must be obtained, the right
does not survive to the executor of the executor.... In general, executors are
not responsible for each other, and they have a right to settle separate

Executors may be classed into general and special; instituted and substituted;
rightful and executor de son tort; and executor to the tenor. 

A general executor is one who is appointed to administer the whole estate,
without any limit of time or place, or of the subject-matter. 

A special executor is one. who is appointed or constituted to administer either
a part of the estate, or the whole for a limited time, or only in a particular

An instituted executor is one who is appointed by the testator without any
condition, and who has the first right of acting when there are substituted
executors. An example will show the difference between an instituted and
substituted executor: suppose a man makes his son his executor, but if he will
not act, he appoints his brother, and if neither will act, his cousin; here the
son is the instituted executor, in the first degree, the brother is said to be
substituted in the second degree, and the cousin in the third degree, and so

A substituted executor is a person appointed executor, if another person who has
been appointed refuses to act. 

A rightful executor is one lawfully appointed by the testator, by his will.
Deriving his authority from the will, he may do most acts, before he obtains
letters testamentary, but he must be possessed of them before. he can declare in
action brought by him, as such....

An executor de son tort, or of his own wrong, is one, who, without lawful
authority, undertakes to act as executor of a person deceased. To make an
executor de son tort, the act of the party must be, 

  1. Unlawful. 

  2. By asserting ownership, as taking goods or cancelling a bond, and not
committing a mere, trespass.... 

  3. An act done before probate of will, or granting letters of
administration.... One may be executor de son tort when acting under a forged
will, which has been set aside.... The law on this head seems to have been
borrowed from the civil law doctrine of pro hoerede gestio.... He is, in
general, held responsible for all his acts, when he does anything which might
prejudice the estate, and receives no, advantage whatever in consequence of his
assuming the office. He cannot sue a debtor of the estate, but may be sued
generally as executor....

The usurpation of an office or character cannot confer the rights and privileges
of it, although it may charge the usurper with the duties and obligations
annexed to it. On this principle an executor de son tort is an executor only for
the purpose of being sued, not for the purpose, of suing. In point of form, he
is sued as if he were a rightful executor. He is not denominated in the
declaration executor (de son tort) of his own wrong. It would be improper to
allege that the deceased person with whose estate he has intermeddled died
intestate. Nor can he be made a co-defendant with a rightful executor.... If he
take out letters of administration, he is still liable to be sued as executor,
and in general, it is better to sue him as executor than as administrator....

An executor to the tenor. This phrase is based in the ecclesiastical law, to
denote a person who is not directly appointed by the will an executor, but who
is charged with the duties which appertain to one; as, "I appoint A B to
discharge all lawful demands against my will." ....

==== SCROOTS Mailing List ====

Go To:  #,  A,  B,  C,  D,  E,  F,  G,  H,  I,  J,  K,  L,  M,  N,  O,  P,  Q,  R,  S,  T,  U,  V,  W,  X,  Y,  Z,  Main