EXECUTIVE, government. That power in the government which causes the
laws to be executed and obeyed: it is usually. confided to the hands of the
chief magistrate; the president of the United States is invested with this
authority under the national government; and the governor of each state has the
executive power in his hands.
2. The officer in whom is vested the executive power is also called the
3. The Constitution of the United States directs that "the executive power
shall be vested in a president of the United States of America." Art. 2, s. 1.
Vide Story, Const. B. 3, c. 36.
EXECUTOR, trusts. The word executor, taken in its largest sense, has
several accep tations. 1. Executor dativus, who is one called an administrator
to an intestate. 2. 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.
2. 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. 3 Atk. 304.
3. 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. 2 Bl. Com. 503; 2 P.
Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinh. t. 4, s. 2, pl. 2.
4. Generally speaking, all persons who are capable of making wills may be
executors, and some others beside, as infants and married women. 2 Bl. Corn.
5. 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. 1st. 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. Swinb. p. 4, s. 17, pl. 4. 2. 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. 3. 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. Off. Ex. 29; 3 Phillim. 424. 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. Cro.
Car. 293. 4. The appointment may be conditional, and the condition may be either
precedent or subsequent. Godolph. Orph. Leg. pt. 2, c. 2, s. 1; Off. Ex. 23. 6.
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. 1 Will. Ex.
159; Com. Dig. Administration, B 10; 5 B. & A. 745; 2 W. Bl. Rep. 692. 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. 9 Serg.
& Rawle, 431; Gord. Law Dec. 93. 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. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; Off. Ex.
192. 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.
1 Will. Ex. 508, et seq. 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. Crom t. Jurisdic. 66,
b; Plowd. Com. 183: 11 H. VII. 26.
7. 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.
8. - 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
necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. & Rawle, 204 14 Serg.
& Rawle, 64.
9. - 3. The executor should prove the will in the proper office.
10. - 4. He should make an inventory (q. v.) of the goods of the intestate,
which should be filed in the office.
11. - 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.
12. - 6. He should advertise for debts and credits: see forms of
advertisements, 1 Chit. Pr. 521.
13. - 7. He should reduce the whole of the goods, not specifically bequeathed
into money, with all due expedition.
14.-8. Keep the money of the estate safely, but not mixed with his own, or he
may be charged interest on it.
15.-9. Be at all times ready to account, and actually file an account within
16. - 10. Pay the debts and legacies in the order required by law.
17. 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. Bac. Ab.
Executor, D; Touch. 484; for they have all a joint and entire authority over the
whole property Off. Ex. 213; 1 Rolle's Ab. 924; Com. Dig. Administration, B 12.
On the death of one or more of several joint executors, their rights and powers
survive to the survivors.
18. 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. Act of
Pennsylvania, of March 15 1832. s. 19. In general, executors are not responsible
for each other, and they have a right to settle separate accounts. See Joint,
19. Executors may be classed into general and special; instituted and
substituted; rightful and executor de son tort; and executor to the tenor.
20. 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.
21. 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
22. 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 on.
See Heir, instituted, and Swinb. pt. 4, s. 19, pl. 1.
23. A substituted executor is a person appointed executor, if another person
who has been appointed refuses to act.
24. 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. 1 P. Wms. 768; Will. on Ex. 173.
25. 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 fin
executor de son tort, the act of the party must be, 1. Unlawful. 2. By
assertingownership, as taking goods or cancelling a bond, and not committing a
mere, trespass. Dyer, 105, 166; Cro. Eliz. 114. 3. An act done before probate of
will, or granting letters of administration. 1 Salk. 313. One may be executor de
son tort when acting under a forged will, which has been set aside. 3 T. R. 125
. An executor de son tort. The law on this head seems to have been borrowed from
the civil law doctrine of pro hoerede gestio. See Heinnec. Antiq. Syntagma, lib.
2, tit., 17, §16, p. 468. 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. See a good reading
on the liabilities of executors de son tort, in: Godolph. Orph. Legacy, 91, 93,
and 10 Wentw. Pl. 378, for forms of declaring; also, 5 Co. Rep. 50 31 a; Yelv.
137; 1 Brownlow, 103; Salk. 28; Ham. Parties, 273; Imp. Mod. Pl. 94. As to what
acts will make a person liable as executor de son tort, see Godolph. O ubi sup.;
Gord. Law of Dec. 87, 89; Off. Ex. 181; Bac. Ab. Executor, &c., B 3; 11 Vin.
Ab. 215; 1 Dane's Ab. 561; Bull. N. P. 48; Com. Dig. Administration C 3 Ham. on
Part. 146 to 156; 8 John. R. 426; 7 John. R. 161; 4 Mass. 654; 3 Penna. R. 129;
15 Serg. & Rawle, 39.
26. - 2. The ussurpation 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. Ham. Part. 146, 272, 273; Lawes on Plead. 190, note; Com. Dig.
Abatement, F 10. 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. Godolph. 0. Leg. 93, 94, 95, §§2, 3.
27. An executor to the tenor. This phrase is ased 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." 3 Phill. 116; 1 Eccl. Rep. 374;
Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide. generally, Bouv. Inst. Index,
h. t.; 11 Vin. Ab. h. t.; Bac. Ab. h. t.; Rolle, Ab. h. t.; Nelson's Ab. h. t.;
Dane's Ab. Index, h. t.; Com. Dig. Administration; 1 Supp. to Ves. jr. 8, 90,
356, 438; 2 Id. 69; 1 Vern. 302-3; Yelv. 84 a; 1 Salk. 318; 18 Engl. C. L. Rep.
185; 10 East, 295; 2 Phil. Ev. 289; 1 Rop. Leg.' 114; American Digests, h. t.;
Swinburne, Williams, Lovelass, and Roberts' several treatises on the law of
Executors; Off. Ex. per totum; Chit. Pr. Index; h. t. For the various pleas that
may be pleaded by executors, see 7 Wentw. Plead. 596, 602; 10 Id. 378; Cowp.
292. For the origin and progress of the law in relation to executors, the reader
is referred to 5 Toull. n. 576, note; Glossaire du Droit Francais, par
Delauriere, verbo Executeurs Testamentaires, and the same author on art. 297, of
the Custom of Paris; Poth. Des Donations Testamen taires.
EXECUTORY. Whatever may be executed; as an executory sentence or
judgment, an executory contract.
EXECUTORY DEVISE, estates. An executory devise is a limitation by will
of a future contingent interest in lands, contrary to the rules of limitation of
contingent estate is in conveyances at law. When the limitation by will does not
depart from those rules prescribed for the government of contingent remainders,
it is, in that case, a contingent remainder, and not an executory devise. 4
Kent, Com. 257; 1 Eden's R. 27; 8 T. R. 763.
2. An executory devise differs from a contingent remainder, in three material
points. 1. It needs no particular estate to precede and support it; for example,
a devise to A B, upon his marriage. 2. A fee may be limited after a fee, as in
the case of a devise of land to C D, in fee, and if he dies without issue, or
before the age of twenty-one, then to E F, in fee. 3. A term for years may be
limited over after a life estate created in the same. 2 Bl. Com. 172, 173.
3. To prevent perpetuities, a rule has been adopted that the contingency must
happen during the time of a life or lives in being and twenty-one years after,
and the months allowed for gestation in order to reach beyond the minority of a
person not in esse at the time of making the executory devise. 3 P. Wms. 258; 7
T. R. 100; 2 Bl. Com. 174; 7 Cranch, 456; 1 Gilm. 194; 2 Hayw. 375.
4. There are several kinds of executory devises; two relative to real estate,
and one in relation to personal estate.
5. - 1. When the devisor parts with his whole estate, but upon some
contingency, qualifies the disposition of it, and limits an estate on that
contingency. For example, when the testator devises to Peter for life, remainder
to Paul, in fee, provided that if James should within three months after the
death of Peter pay one hundred dollars to Paul, then to James in fee; this is an
executory devise to James, and if he dies during the life of Peter, his heir may
perform the condition. 10 Mod. 419; Prec. in Ch. 486; 2 Binn. 532; 5 Binn. 252;
7 Cranch, 456; 6 Munf. 187; 1 Desaus. 137, 183; 4 Id. 340, 459; 5 Day, 517.
6. - 2. When the testator gives a future interest to arise upon a
contingency, but does not part with the fee in the meantime; as in the case of a
devise of the estate to the heirs of John after the death of John; or a devise
to John in fee, to take effect six months after the testator's death; or a
devise to the daughter of John, who shall marry Robert within fifteen, years. T.
Raym. 82; 1 Salk. 226; 1 Lutw. 798.
7. - 3. The executory bequest of a chattel interest is good, even though the
ulterior legatee be not at the time in esse, and chattels so limited are
protected from the demands of creditors beyond the life of the first taker, who
cannot pledge them, nor dispose of them beyond his own life interest in them. 2
Kent, Com. 285; 2 Serg. & Rawle, 59; l Desaus 271; 4 Desaus.340; 1 Bay, 78.
But such a bequest, after an indefinite failure of issue, is bad. See 2 Serg.
& R. 62; Watk. Prin. Con. 112, 116; Harg. note, 1 Tho. Co. Litt. 595-6,
515-16. Vide, Com. Dig. Estates by Devise., N 16; Fearne on Rem. 381; Cruise's
Dig. Index, h. t.; 4 Kent, Com. 357 to 381; 2 Hill. Ab. c. 43, p. 533.
EXECUTORY PROCESS, via executoria. In Louisiana, this is a process
which can be resorted to only in two. cases, namely: 1. When the creditor's
right arises-from an act importing a confession of judgment, and which contains
a privilege or mortgage in his favor. 2. When the creditor demands the execution
of a judgment which has been rendered by a tribunal different from that within
whose jurisdiction the execution is sought. Code of Practice, art. 732.
EXECUTORY TRUST. A trust is said to be executory where some further
act is requisite to be done by the author of the trust himself or by the
trustees, to give it its full, effect; as, in the case of marriage articles; or,
as in the case of a will, where, property is vested in trustees in trust to
settle or convey.; for, it is apparent in both of these cases, a further act,
namely, a settlement or a conveyance, is contemplated.
2. The difference between an executed and an executory trust, is this, that
courts of equity in cases of executed trusts will construe the limitations in
the same manner as similar legal limit-ations. White's L. C. in Eq. 18. But, in
cases of executory trusts, a court of equity is not, as in the case of executed
trusts, bound to construe technical expressions with legal strictness, but will
mould the trusts according to the intent of the creator of such trusts White's
L. C. Eq. 18.
3. When a voluntary trust is executory, and not executed, if it could not be
enforced at law, because it is a defective conveyance, it is not helped in
equity, in favor of a volunteer. 4 John. Ch. 498, 500; 4 Paige, 305; 1 Dev. Eq.
4. But where the trust, though voluntary, has been executed in part, it will
be sustained or enforced, in equity. 1 John. Ch. R. 329; 7 Penn. St. R. 175,
178; White's L. C. in Eq. *176; 18 Ves. 140; 1 Keen's R. 551; 6 Ves. 656; 3
EXECUTRIX, A woman who has been appointed by. will to execute such
will or testament. See Executor.
EXEMPLIFICATION, evidence. A perfect copy of a record, or office book
lawfull kept, so far as relates to the matter in question. 3 Bouv. Inst. n.
3107. Vide, generally, 1 Stark. Ev. 151; 1 Phil. Ev. 307; 7 Cranch, 481; 3
Wheat. 234; 10 Wheat. 469; 9 Cranch, 122; 2 Yeates, 532; 1 Hayw. 359; 1 John.
Cas. 238. As to the mode of authenticating records of other states, see articles
Authentication, and Evidence.
EXEMPTION. A privilege which dispenses with the general rule; for
example, in Pennsylvania, and perhaps in all the other staies, clergymen are
exempt from serving on juries. Exemptions are generally allowed, not for the
benefit of the individual, but for some public advantage.
EXEMPTS. Persons who are not bound by law, but excused from the
performance of duties imposed upon others.
2. By the Act of Congress of May 8, 1792, 1 Story, L. U. S. 252, it is
provided, §2. That the vice-president of the United States the officers,
judicial and executive, of the government of the United States; the members of
both houses of congress, and their respective officers; all custom-house
officers, with their clerks; all post officers, and stage drivers, who are
employed in the care and conveyance of the mail of the post office of the United
States; all ferrymen employed at any ferry on the post road; all inspectors of
exports; all pilots; all mariners, actually employed in the sea service of any
citizen or merchant within the United States; and all persons who now are, or
may hereafter be, exempted by the laws of the respective states, Shall be, and
are hereby, exempted from militia duty, notwithstanding their being above the
age of eighteen, and under the age of forty-five years.
EXEQUATUR, French law. This Latin word was, in the ancient practice,
placed at the bottom of a judgment emanating from another tribunal, and was a
permission and authority to the officer to execute it within the jurisdiction of
the judge who put it below the judgment.
2. We have something of the same kind in our practice. When a warrant for the
arrest of a criminal is issued by a justice of the peace of one county, and he
flies into another, a justice of the latter county may endorse the warrant and
then the ministerial officer may execute it in such county. This is called
backing a warrant.
EXEQUATUR, internat. law. A declaration made by the executive of a
government near to which a consul has been nominated and appointed , after such
nomination and appointment has been notified, addressed to the people, in which
is recited the appointment of the foreign state, and that the executive having
approved of the consul as such, commands all the citizens to receive,
countenance, and, as there may be occasion, favorably assist the consul in the
exercise of his place, giving and allowing him all the privileges, immunities,
and advantages, thereto belonging. 3 Chit. Com. Law, 56; 3 Maule & Selw.
290; 5 Pardes. 1445.
EXERCITOR. A term in the civil law, to denote the person who fits out,
and equips a vessel, whether he be the absolute or qualified owner, or even a
mere agent. Emer. on Mar. Loans, c. 1, s. 1.
2. In English, we generally use the word "ship's hushand," but exercitor is
generally used to designate and distinguish from among several part owners of a
ship, the one who has the immediate care an management of her. Hall on Mar.
Loans 142, n. See Dig. 19, 2, 19, 7; Id. 14, 1 1, 15; Vicat, Vocab.; Ship's
EXHEREDATION, civil law. The act by which a forced heir is deprived of
his legitimate or legal portion which the law gives him; disinherison. (q.
EXHIBIT, practice. Where a paper or other writing is on motion, or on
other occasion, proved; or if an affidavit to which the paper writing is
annexed, refer to it, it is usual to mark the same with a capital letter, and to
add, " This paper writing marked with the letter A, was shown to the deponent at
the time of his being sworn by me, and is the writing by him referred to in the
affidavit annexed hereto." Such paper or other writing, with this attestation,
signed by the judge or other person before whom the affidavit shall have been
sworn, is called an exhibit. Vide Stra. 674; 2 P. Wms. 410; Gresl. Eq. Ev.
TO EXHIBIT. To produce a thing publicly, so that it may be taken
possession of, or seized. Dig. 10, 4, 2. To exhibit means also to file of
record; as, it is the practice in England in personal actions, when an officer
or prisoner of the king's bench is defendant, to proceed against such defendant
in the court in which he is an officer, by exhibiting, that is, filing a bill
against him. Stepb. P.I. 52, n. (1); 2 Sell. Pr. 74. In medical language, to.
exhibit signifies to ad minist er, to cause a thing to be taken by a patient.
Chit. bled. Jur. 9.
EXHIBlTANT. One who exhibits any thing; one who is complainant in
articles of the peace. 12 Adol. & Ellis, 599 40 E. C. L. R. 124.
EXHIBITION, Scotch law. An action for compelling the production of
writings. In Pennsylvania, a party possessing writings is compelled, to produce
them on proper notice being given, in default of which judgment is rendered
EXIGENT, or EXIGI FACIAS, practice. A writ issued in the course of
proceedings to out lawry, deriving its name and application from the mandatory
words found therein, signifying, "that you cause to be exacted or required; and
it is that proceeding in an outlawry which, with the writ of proclamation,
issued at the same time, immediately precedes the writ of capias utlagatum. 2
Virg. Cas. 244.
EXIGIBLE. That which may be exacted demandable; requirable.