1911 Encyclopædia Britannica/Executors and Administrators

EXECUTORS AND ADMINISTRATORS, in English law, those persons upon whom the property of a deceased person both real and personal devolves according as he has or has not left a will. Executors differ from administrators both in the mode of their creation and in the date at which their estate vests. An executor can only be appointed by the will of his testator; such appointment may be express or implied, and in the latter case he is said to be an executor “according to the tenor.” The estate of an executor vests in him from the date of the testator’s death. An administrator on the other hand is appointed by the probate division of the High Court, and his estate does not vest till such appointment, the title to the property being vested till then in the judge of the probate division. As to whom the court will appoint administrators and the various kinds of administrators see under 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 establishment of the court of probate see articles Will and Intestacy. Before the Land Transfer Act 1897, the real estate of the deceased did not devolve upon the representative but vested directly in the devisee or 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 minor exceptions to this rule, of which the most important are lands held in joint tenancy and copyhold lands. As the representative stands in the shoes of the deceased he is entitled to sue upon any contract or for any debt which the deceased might have sued in his lifetime.

The duties of a representative are as follows: 1. To bury the deceased in a manner suitable to the estate he leaves behind him; and the expenses of such funeral take precedence of any duty or debt whatever; but extravagant expenses will not be allowed. No rule can be laid down as to what is a reasonable allowance for this purpose, as it is impossible to know at the 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 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 grant be disputed, within two months of the determination of such suit. The penalty for not doing so is fixed by the Stamp Act 1815, § 37, at £100, and an additional stamp duty at the rate of 10%. As to the formalities of Probate see that article.

3. Strictly speaking, he must compile an inventory of all the estate of the deceased, whether in possession or outstanding, and he is to deliver it to the court on 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 action. This duty is thrown upon the representative by an act of 1529, but it is not the 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 file an 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 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 solicitor has a lien for his costs upon any fund or duty which he has recovered for the deceased; next in order come debts due to the crown by record or speciality; then debts given a priority by statute, as, for example, by the Poor Relief Act 1743, money due by an overseer of the poor to his parish. Next, debts of record, i.e. 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 execution is preferred to one who has not; another class of debts of record are statutes merchant and staple, or recognizances in the nature of statute staple, i.e. bonds of record acknowledged before the lord mayor of London or the mayor of the staple. Last in the order of debts come specialty and simple contract debts, which by Hinde Palmer’s Act (the Executors Act 1869) are of equal degree, though as between specialty debts bonds given for value 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 assets the representative must pay the debts out of assets in the following order: (i.) General personal estate not specifically bequeathed nor exempted from 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 pro rata; (vi.) specific legacies and devises; (vii.) real estate over which a general power of appointment has been exercised by will; (viii.) the widow’s 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 divide the estate among the legatees or next of kin until twelve months from the death of the deceased (this is commonly known as “the executor’s year”), though if there is no doubt as to the solvency of the estate he may do so at once. As a further protection the representative may give notice by 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: (1) Specific legatees and devisees, (2) 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 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 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 Inheritance) and the personalty to the next of kin (see Intestacy). It was held at one time that in default of a residuary legatee the residue 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 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 unliquidated 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 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 bound to exercise the ordinary care of a business man in administering the estate of the deceased, and he will be liable for the loss to the estate caused by his own 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 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 Retainer); he may reimburse himself out of the estate all expenses incurred in the execution of his trust.

An executor de son 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.

Scotland.—Executor in Scots law is a more extensive term than in English. He is either nominative or dative, the latter appointed by the court and corresponding in most respects to the English administrator. Caution is required from the latter, not from the former. By the common law doctrine of passive representation the heir or executor was liable to be sued for implement of the deceased’s obligations. The Roman principle of beneficium inventarii was first introduced by an act of 1695. As the law at present stands, the heir or executor is liable only to the value of the 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 Finance Acts 1894–1909 (see Estate Duty). In England the executor is bound to pay the debts of the deceased in a certain order, but in Scotland they all rank pari passu except privileged debts (see Privilege).

Authorities.—R. L. Vaughan Williams, The Law of Executors and Administrators; W. G. Walker, Compendium on the Law of Executors and Administrators; James Schouler, Law of Executors and Administrators (3rd ed., Boston, 1901).