Executor - Definition - Law Dictionary Home Dictionary Definition executor

Definition :

Executor. A person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease.

One who performs or carries out some act, Black's Law Dictionary, 7th Edn., p. 591.

The leading duties and responsibilities of an executor may be thus classed:-

(1) He will not be allowed as against creditors extravagant funeral expenses if the testator died insolvent; and if he neglects to secure the property, and loss ensue, he will be personally liable for a devastavit, but will not be responsible for mere neglect to take out probate (Re Stevens, (1898) 1 Ch 162). See DEVASTAVIT.

(2) By operation of law by virtue of his office he takes a title to the personal property of the testator which vests him with full power ovr the testator's chattels, Attenborough v. Solomon, 1913 AC 76, and by Administration of Estates Act, 1925, s. 1, extending and amending the Land Transfer Act, 1897, real property devolves in the same manner as personal property, with some exceptions, e.g., an entailed interest not disposed of by the will, and property held in joint tenancy, and he can sell or mortgage that property for purposes of administration, and no purchaser or mortgagee dealing with him is concerned to inquire for what purpose the money is required. Even if a later will subsequently comes to light appointing a different person executor, the acts of the former executor so long as his title existed are good, Hewson v. Shelley, (1914) 2 Ch 13. Probate of the will, when obtained, is only evidence of his title; as a rule it relates back to the time of the testator' death, and as the executor derives full power from the will he can act as executor before probate obtained. He may even commence an action before probate, and it is usually sufficient if he obtain probate in time to prove his title if it should be disputed; see, however, Tarn v. Commercial Banking Co., (1884) 12 QBD 294. But he must be prepared either to act wholly or not at all, for probate cannot be renounced partially (Re Smith, (1904) 1 Ch 139), except in regard to land settled otherwise than by the will of the testator of the settlement of which the executor has not been appointed a trustee. [Administration of Estates Act, 1925, s. 23(1)]

(3) Under the Trustee Act, 1925, s. 7, replacing and amending s. 29 of the Law of Property Amendment Act, 1859 (22 & 23 Vict. c. 35) and 1860 (23 & 24 Vict. c. 38), the executor may and should shortly after the funeral publish an advertisement in The London Gazette, a London daily newspaper and, if necessary, a local newspaper, for debtors to pay their debts, and for claimants to send in the particulars of their claims to a named person within the time (not being as a rule less than two months) fixed by the notice and he may at the expiration of the time distribute the estate, having regard to the replies to the advertisement or any other claim of which he may have notice; see Re Bracken, (1889) 43 Ch D 1.

Under s. 26 of the (English) Trustee Act, 1925, and the (English) L.P. Amendment Act, 1926 (Sched.), reproducing and extending to trustees the (English) Law of Property Amendment Acts, 1859 (22 & 23 Vict. c. 35), ss. 27-29, and 1860 (23 & 24 Vict. c. 38), s. 8, a sum may be set apart to meet future claims upon the estate in respect of the covenants in a lease assigned to a purchaser, etc.

(4) Probate should be obtained within six calendar months after death of testator, and if delayed after that time a penalty of 100l. and 10l. per cent. on the property would be incurred; and if there be a suit or dispute relative to the will or administration, the probate or letters of administration should be obtained within two calendar months after it is ended [(English) Stamp Act, 1815 (55 Geo 3. C. 184, s. 37)]. The probate should be obtained to the extend of the sum really expected to be received.

(5) It is the duty of the executor to collect and speedily reduce into money the personal assets, when not otherwise directed, especially if they be of a perishable nature.

(6) As an executor cannot sue himself, the law now allows him, when he has been legally invested with his representative character, to retain out of any assets [either legal or equitable (English) A.E. Act, 1925, s. 34(2)], see O' Grady v. Wilmot, (1916) 2 AC 231, for the previous law), that may have come to his hands money to the extent of all funeral and testamentary expenses and debts legally paid by him out of his own pocket, and also any debt due to himself, before he pays any other creditor in equal degree, and he may retain his own debt notwithstanding a decree has been made for administration of the estate and notwithstanding the assets out of which he seeks to retain his debt came to his hands after decree, and even though the debt be statute-barred. Before 1926 an executor could retain a debt due to himself as trustee, but by (English) A.E. Act, 1925, s. 34, the right is now exercisable only in respect of debts due to him in his own right. The degree of debts is now regulated in the case of insolvent estates by the rules of bankruptcy, s. 34 and Sched. I., Part I., (English) A.E. Act, 1925. See RETAINER OF DEBTS.

(7) The executor may, even after action commenced by an adverse creditor and at any time before judgment therein, pay one creditor in preference to another of equal degree. After an order for administration has been made, however, the power to prefer no longer exists.

(8) In general, legacies ought not to be paid within a year after the death of the testator, and not even then without an indemnity, if there be the least reason to apprehend that there are debts or claims outstanding. This year is allowed in analogy to the Statute of Distribution, which enacts 'that no distribution of the goods of any person dying intestate be made till after one year after the intestate's death'; and in order that the executor may have full opportunity to obtain in formation of the state of the property he cannot be compelled to pay a legacy within that period, even in a case where the testator directed it to be discharged within six months after his death.

(9) An executor is not entitled to any remuneration for his own personal trouble or loss of time, unless it be expressed in the will: on which account the law formerly gave to the executor the whole residue undisposed of, unless, by some expression, to be collected from the will, a contrary intention was to be collected. But the next of kin became entitled to the unbequeathed residue by the (English) Executors Act, 1830 (11 Geo. 4 & 1 Wm. 4, c. 40), now replaced with modifications by s. 49(b), (English) A.E. Act, 1925; see A.-G. v. Jefferys, 1908 AC 411. In many of the colonies, e.g., New Zealand, where not more than 5 per cent. can be allowed by the Administration Act, 1879 [1879, No. 49, s. 20], the executor has a percentage by statute on the net amount realized.

Executors are accountable for estate duty on property which comes to them as such [(English) Finance Act, 1894], see O'Grady v. Wilmot, (1916) 2 AC 231 (57 & 58 Vict. c. 30). Ss. 6, 8; (English) Law of Property Act, 1925, s. 16; and for legacy duty with the exception of annuities, and the executor must deduct the duty before transferring the legacy; see Legacy (English) Duty Act, 1796 (36 Geo. 3, c. 52) , ss. 8, 9.

When an executor or administrator sues, his representative character must appear on the writ [(English) R.S.C. 1883, Ord. III., r. 4]; and he may sue or be sued without joining the parties beneficially interested in the estate (Ord. XVI., r. 8). Consult Williams or Ingpen on Executors, and Chitty's Statutes, tit. 'Executors and Administrators,' and see titles PROBATE; REAL REPRESENTA-TIVE; WILL. In Scotland an executor appointed by the deceased is called an 'Executor-nominate'; when the deceased makes no appointment an 'executor-dative' is appointed by the Court.

(10) It means a person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided. [The Indian Succession Act, 1925, s. 2 (c)]

(11) It means an executor or administrator of the estate of a deceased person. [The Wealth-tax Act, 1957, s. 2 (i)]

Executor means a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided. [Indian Succession Act, 1925 (39 of 1925), s. 2(c)]