EXECUTOR

In Law, an executor is a person appointed by a testator, and whose appointment is confirmed by the proper ecclesiastical court, to execute his will, and to represent him in his personal rights and liabilities. Thus the rights and liabilities of an executor in his representative capacity ( the same as those of an administrator), are those of the testator or intestate, arising, — for or against him — either out of contract, or from injury done to his property, real or personal, or from injury done by him to the real or personal property of another; but the liabilities of an executor or administrator do not overreach the property or a ets which he has received, or might but for his negligence or default have received, by virtue of his office. The first and most important duty of executors and administrators is the payment of debts which attach to the property in their hands, in the following order; the reasonable expenses of the funeral, and the nece ary expenses of proving the will, or of obtaining letters of administration, being first defrayed. 1st. Debts due to the crown by record or on specialty. 2dly. Debts due to the subject by virtue of the j udgment of any court of record. 3dly. Debts acknowledged upon record, as by recognizance. 4thly. Debts due upon specialty, or on account of rent, 5thly, Debts of the crown not upon specialty or record, Cthly. Debts by simple contract. Creditors of each cla are entitled to be paid in full before any thing is allowed to debts of an inferior order; and as between themselves they are paid pro rata as far as the a ets will extend. But an executor will be allowed, upon account, any debt that he may have paid without notice of another debt of a higher cla ; and as between creditors of equal degree, he may, before action brought at law, or decree to account in equity, give preference to any. He may also at any time as against creditors of an equal cla retain a debt due to himself. Next to debts stand, in the first place, specific legacies, t. e. gifts of specific parts of personal estate; and in the next place general legacies, that is, gifts of money payable out of the general residue of such estate: what remains after payment of legacies, wheVe there are any, or where there are none after payment of debts, is divisible among the next of kin according to the Statute of Distributions. Specific legacies may be recovered at law; but the rights of general legatees, and of next of kin, are enforcible only in courts of equity, or in the ecclesiastical courts. Most frequently also claims in the nature of debt or legacy to which the personal estate of testators or intestates is subject are prosecuted in courts of equity; which do not only, like courts of law, take cognizance of each individual right as brought forward, but will take upon themselves the whole administration of the estate, and retain it in their hands for the purpose of doing justice to all claimants. In so dotag courts of equity are bound to follow the legal order of priority above stated, so far at least as the a ets are legal; i.e. either recoverable in courts of common law, or arising upon trust direct and proper and coextensive with the legal interest {vide Trust), to which the principle of cequitas sequitur legem applies. But where there are a ets recoverable only in equity, and arising upon implied or resulting trusts, these are called equitable; and in the application of such a ets the rule obtains of equality between all debts, the priority of debts to legacies, and among these of speciiic to general, being still observed. Where there are both legal and equitable a ets, creditors availing themselves of their priority against the legal a ets will not be admitted to any participation in the equitable a ets till other creditors shall have received out of them the same proportion of their debts as the creditors of a higher degree shall have been already paid out of the legal a ets. By the recent act of the 3 W.4. real estate not devised for or charged with the payment of debts is made a ets for the payment of all debts, to be administered by courts of equity according to the legal order of priorities; but real estate so devised or charged still remains as before equitable a ets. Executors and administrators as such have no concern in either case with the application of real a ets. Many questions arise in regard to legacies, — as to when they are vested, when sipecific or general, — which it is impo ible to notice within the limits of this summary. 429 EXILE. [s. 442]