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EXECUTE... EXECUTRIX

    14.8.17  

TO EXECUTE. To make, to perform, to do, to follow out. This term is frequently used in the law; as, to execute a deed is to make a deed.
2. It also signifies to perform, as to execute a contract; hence some contracts are called executed contracts, and others are called executory contracts.
3. To execute also means to put to death by virtue of a lawful sentence; as, the sheriff executed the convict.
EXECUTED. Something done; something completed. This word is frequently used in connexion with others to designate a quality of such other words; as an executed contract; an executed estate; an executed trust, &c. It is opposed to executory.
2. An executed contract is one which has been fulfilled; as, where the buyer has paid thrice of the: thing-purchased by him. See Agreement.
3. An executed estate is when there is vested in the grantee a present and immediate right of present or future enjoyment; and in another sense, the term applies to the time of enjoyment; and in that sense, an estate is said to be executed, when it confers a present right of present enjoyment. When the right of enjoyment in possession is to arise at a future period, only, the estate is executed that is, it is merely vested in point of interest: when the right of immediate enjoyment is annexed to the estate, then only is the estate vested in possession. 1 Prest. on Est. 62.
4. Trusts executed are, when by deed or will, lands are conveyed, or devised, in terms or in effect , to and for the use of one person or several persons, in trust for others, without any direction that the trustees shall make any farther conveyance; so that it does not appear that the author of the trusts had a view to a future instrument for accomplishing his intention. Prest. on Est.188.
EXECUTIO NON. These words occur in the stat. 13 Ed. I. cap. 45, in the following connexion: Et...precipiatur vice comiti quod scire faciat parti... quod sit ad certum diem ostensura si quid sciat dicere quare hujustnodi irrotulata vel in fine contenta executionem habere non debeant. This statute is the origin of the scire facias post annum et diem quare executionem non, etc. To a plea in bar to such a writ, the defendant should conclude that the plaintiff ought not to have or maintain his aforesaid execution thereof against him, which is called the executio non, as in other cases by actio non. (q. v.) 10 Mod. 112; Yelv. 218.
EXECUTION, contracts. The accomplishment of a thing; as the execution of a bond and warrant of attorney, which is the signing, sealing, and delivery of the same.
EXECUTION, crim. law. The putting a convict to death, agreeably to law, in pursuance of his sentence.
EXECUTION, practice. The act of carrying into effect the final judgment of a court, or other jurisdiction. The writ which authorizes the officer so to carry into effect such judgment is also called an execution.
2. A distinction has been made between an execution which is used to make the money due on a judgment out of the property of the defendant, and which is called a final execution; and one which tends to an end but is not absolutely final, as a capias ad satisfaciendum, by virtue of which the body of the defendant is taken, to the intent that the plaintiff shall be satisfied his debt, &c., the imprisonment not being absolute, but until he shall satisfy the same; this is called an execution quousque. 6 Co. 87.
3. Executions are either to recover specific things, or money. 1. Of the first class are the writs of habere facias seisinam.; (q. v.) habere facias possessionem; (q. v.) retorno habendo; (q. v.) distringas. (q. v.) 2. Executions for the recovery of money are those which issue against the body of the defendant, as the capias ad satisfaciendum, (q. v.); an attachment, (q. v.); those which issue against his goods and chattels; namely, the fieri facias, (q. v.); the, venditioni exponas, (q. v.); those which issue against his lands, the levari facias; (q. v.) the liberari facias; the elegit. (q. v.) Vide 10 Vin. Ab. 541; 1 Ves. jr. 430; 1 Sell. Pr. 512; Bac. Ab. h. t.; Com. Dig. h. t.; the various Digests, h. t.; Tidd's Pr. Index, h. t.; 3 Bouv. Inst. n. 3365, et seq. Courts will at any time grant leave to amend an execution so as to make it conformable to the judgment on which it was issued. 1 Serg. & R. 98. A writ of error lies on an award of execution. 5 Rep. 32, a; 1 Rawle, Rep. 47, 48; Writ of Bxecution;
EXECUTION PAREE. By the term execution paree, which is used in Louisiana, is meant a right founded on an authentic act; that is, and passed before a notary, by which the creditor may immediately, without citation or summons, seize and cause to be sold, the property of his debtor, out of the proceeds of which to receive his payment. It imports a confession of judgment, and is not unlike a warrant of attorney. Code of Pr. of Lo. art. 732; 6 Toull. n. 208; 7 Toull. 99.
EXECUTIONER. The name given to him who puts criminals to death, according to their sentence; a hangman.
2. In the United States, executions are so rare that there are no executioners by profession. It is the duty of the sheriff or marshal to perform this office, or to procure a deputy to do it for him.
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 executive.
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. 503.
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 a year.
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 ofPennsylvania, 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, Executors.
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 particular place.
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. R. 93.
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 Beav. 238.
EXECUTRIX, A woman who has been appointed by. will to execute such will or testament. See Executor.

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