A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

EXECUTOR.

Executor, is when a man makes his Testament* 1.1 and last Will, and therein nameth the person that shall execute his Testament, then he that is so na∣med is his Executor, and is as much in the Civil Law, as haeres designatus, or testamentarius, as to debts, goods and chattels of the Testator.

An Executor is after three sorts.

• 1. Executor testamentarius a testatore constitu∣tus.
• 2. Executor legalis, That is the Ordinary.
• 3. Dativus the Administrator, Cook 8 Rep. Sir Iohn Nedhams Case.

An Executor or Administrator ought to execute* 1.2 his Office, and Administer the goods of the dead lawfully, truly and diligently.

• 1. Lawfully in paying all the duties, debts and legacies, in such precedency and order, as they ought to be paid by the Law.
• ...

• 2. Truly, to convert nothing to his own use, for an Executor or Administrator hath not goods of the dead to his own use, but in anothers right, and to others uses, and he ought not to practice or de∣vise any thing to hinder the Creditor of his debt, but truly to execute his Office according to the trust reposed in him.
• 3. Diligently, quia negligentia semper habet com∣item in fortunium.

If Tenant for life soweth the ground and dieth, his Executors shall have the Corn, because his estate was uncertain, and determined by the Act of God.

De bonis defuncti trina debet esse dispositio.

• 1. Necessitatis, ut funeralia.
• 2. Utilitatis, that every one shall be paid in such precedency as ought to to be.
• 3. Voluntatis, as Legacies.

Executor de son tort, is he that takes upon him the Office of an Executor by intrusion, not being so constituted by the Testator or deceased, nor (for* 1.3 want of such constitution) constituted by the or∣dinary to administer how farro we shall become lyable to Creditors vide 43 Eliz. cap. 8. Dyer 166. 105. 6. Dyer 166. Belknap. 50. Ed. 3. 9. 13, 14. Eliz. Dyer 305, 306.

Notes

• * 1.1

  An Execu∣tor of a last Will and Testament executing and perfor∣ming the Will of the dead Iudg Doderidge.
• * 1.2

  Debts due by obligati∣on, shall be payed by Executors before debts by single contract, and they before Le∣gacies Cook 9 Rep. Duchons Case. Cook 8 Rep. Tamors Case. Cook on Lit. p. 55. Cook 8 Rep. Nedhams Case.
• * 1.3

  Smiths Common∣wealth of England. Quod non est debi∣tum vel quod est ultra de∣tum, vel ante tem∣pus quod est debi∣tum.