Executio non

To a plea in
bar, to a scire facias , the defendant
should conclude that the plaintilf ought
not to have or maintain his aforesaid
execution thereof against him, which
js called the excculio nan, as in other
cases by actio non , (q. v.) 10 Mod.
112 ; Yelv. 218.

EXECUTION, contracts, signifies !
the accomplishment of a thing; as, the
execution of a bond and warrant of |
attorney, which is the signing, scaling, j
and delivery of the same.

Execution, crim. lent}. The putting
a convict to death, agreeably to law,
in pursuance of his sentence.

Execution, practice. The act of ,
carrying into elfect the final judgment ,
of a court, or other jurisdiction. The

writ which authorises 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 capais ad
satisfaciendum , by virtue of which the
body of the defendant is taken, to the
intent that the plaintiff shall be satis-
fied his debt, &c., the imprisonment
not being absolute, but until be shall
satisfy the same ; this is called an
execution quvusque. 6 Co. 87.

3. — Executions ore either to recover

specific things, or money. 1 . Of the
first class arc the w rits of hal/ere fa-
cias seisin am, (q. v.) habere facias pos-
sessionem, (q. v.) rctorvo habentlo, (q.
v.) distringas , (q. v.) 2. Executions

for the recovery of money arc those
which issue against the body of the
defendant, as the capias a/l satisfacien-
dum, (q. v.) ; an attachment (q. v.) ;
those which issue against his goods
and chattels ; namely, the fieri facias ,
(q. v.) ; the venditioni cxjxmas (q. v.) ;
those which issue against his lands, the
levari facias, (q. v.) the liberari facias,
the digit , (q. v.) Vide 10 Yin. Ab.
541 ; 1 Vos. jr. 430 ; 1 Sell. Pr. 512;
Bac. Ab. h. t.; Com. Dig. h. t. ; the
various Digests, h. t. ; Tidd’s Pr. In-
dex, h. t. Writ of Execution.

Exe cution pare e. By the term
execution parte, which is used in Loui-
siana, is a right founded on an authen-
tic act ; that is, an act passed before a
notary, by w hich the creditor may im-
mediately, w ithout citation or summons,
seize, and cause to he sold, the pro-
perty 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. 09.

EX ECUTION E R . The name given
to him who puts criminals to death,
according to their sentence; a hang-
man.

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539

2. — In the United States, executions
are so rare that there arc no execution-
ers hv profession. It is the duty of the
sheriff or marshal to perform this of-
fice, or to procure a deputy to do it for
him.

EXECUTIVE,, government, is that
power in the government which causes
the laws to be executed and obeyed : it
is usually confided in the hands of the
chief magistrate ; the President of the
United States is invested with this au-
thority 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. 30.

EXECUTOR, (rusts. The word
executor, taken in its largest sense, has
several acceptations. 1. Executor da-
tivus, who is one called an administra-
tor to an intestate ; 2. Executor testn-
mentarius, or one appointed to the of-
fice 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 h ceres
testamentarius ; the term executor, it
is said, is a barbarism unknown to that
law. 3 Atk. 304.

3. — An executor, ns 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. 2
Bl. Com. 503 ; 2 P. Wins. 548 ; Tol-
ler, 30; 1 Will, on Ex. 112; Swinb.
pt. 4, s. 2, pi. 2.

4. — Generally speaking, all persons
who are capable of making wills may
be executors, and some others beside,
ns infants and married women. 2 Bl.
Com. 503.

5. — An executor is absolute or
qualified ; his appointment is absolute
when he is constituted certainly, imme-

diately, and without restriction in re*
gard to the testator’s effects, or limita*
tion in point of time. It may be quali-
fied by limitation ns to the time or
place wherein, or the subject-matters
whereon, the office is to lie exercised ;
or the creation of the office may be
conditional. It may lie 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, pi. 4. 2. The appointment may

lie limited in point of place ; as, if one
lie npjM)inted executor of all the testa-
tor’s goods in the state of Pennsylva-
nia. 3. The power of the executor
may be limited as to the subject-matter
upon which it is to l>e exercised ; as,
when a testator appoints A the execu-
tor of his goods and chattels in posses-
sion, B, of his choscs in action. One
may lie 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 pro-
perty, and may divide their authority,
yet quoa/l creditors of the testator
they are all executors, and as one ex-
ecutor, and may be sued as one execu-
tor. Cro. Car. 293. 4. The appoint-

ment may be conditional, and the con-
dition may be either precedent or sub-
sequent. (iodolp. Orph. Leg. pt. 2, c.
2, s. 1 ; Off. Ex. 23.

0. — 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. Administra-
tion, B 10; 5 B. & A. 745; 2 W. Bl.
Hop. G92. 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 purjjoses as are sanctioned by
law. 4 T. R. 045; 9 Co. 88; 2 Inst.
236; Off Ex. 192. lie represents the
testator, and therefore may sue and re-

540

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EXE

cover all ihc claims he had at the time
of his death ; and may be sued for all
debts due by him. 1 Will. Ex.508etseq.

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 de-
ceased, provided he can do so pcacea-
abl v ; when he is resisted, he must ap-
ply to the law for redress.

8. — 2. To bury the deceased inn man-
ner suitable to the estate he leaves be-
hind him ; and when there is just rea-
son to believe he died insolvent, he is
not warranted in expending more in
funeral expenses (q. v.) than is abso-
lutely necessary. 2 Will. Ex. 630 ; 1
Salk. 296 ; 1 1 Scrg. & Rawlc, 204 ;
14 Serg. & Rawlc, 64.

9. — 3. The executor should prove
the will in the projicr office.

10. — 4. He should make an inven-
tory (q. v.) of the goods of the intes-
tate, which should Ik: filed in the office.

11. — 5. He should ascertain the
state of the debts and credits of the
estate, and endeavour to collect all
such claims with as little delay ns pos-
sible, consistently with the interest oi
the estate.

12. — G. He should advertise for
debts and credits ; sec forms of arlver-
Uscments, 1 Chit. Pr. 521.

13. — 7. He should reduce the whole
of the goods, not specifically be-
queathed, into money, with all due ex-
pedition.

14. — 8. Keep the money of the es-
tate in bank, but not mixed with his
own account, or lie may be charged
interest on it.

15. — 9. Be at all times ready to ac-
count, 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 numer-
ous, are considered, in law, as an indi-
vidual 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 au-

thority over the whole property. Off.
Ex. 213; 1 Rollc’s Ab. 924; Com.
Dig. Ailministration, B 12. On the
death of one of several joint executors,
the rights and power which he possessed
survive to those who are still living.

18. — When there arc several execu-
tors and all die, the power is in com-
mon transferred to the executor of the
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
testa mento annexo must l>c obtained,
the right docs not survive to the execu-
tor of the executor. Act of Pennsyl-
vania, of 15th March, 1882, s. 19. In
general, executors arc not responsible
lor each other, and they have a right
to settle separate accounts. See Joint
Krecutors.

19. — Executors may be classed into
general and special ; instituted and
substituted; rightful and executor dc
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 only a part of the estate, or for
a limited time, or only in a particular
place.

22. — An instituted executor is one
who is ap|K)inted by the testator with-
out any condition, and who has the
first right of acting when there are
substituted executors. An example
will show the difference between an in-
stituted and substituted executor : sup-
pose 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 de-
gree, and so on. Sec Heir , instituted,
and Swinb. pt. 4, s. 19, pi. 1.

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EXE

541

23. — A substituted executor is a
person appointed executor, if another
person who has been appointed refuses
to net.

24. — A rightful executor is one law-
fully appointed by the testator, in his
will. Deriving his authority from the
will, he may do most acts, before he
obtains letters testamentary, but he
must l>o possessed of them before he
can declare in action brought by him,
ns such. 1 1*. Wins. 708; Will, on
Ex. 173.

25. — An executor de son tort, or in
his own wrong, is one, who without
lawful authority, undertakes to net as
executor of a person deceased. He is
in general held responsible for all his
acts, when he does any thing which
might prejudice the estate, and receives
no advantage whatever in consequence
of his assuming the office. Mo cannot
sue a debtor of the estate, but may be
sued generally as executor. Vide Off.
Ex. 181 ; Bac. Ab. Executor, &c., B
3; 11 Vin. Ab. 215; 1 Dane’s Ab.
501 ; Bull. N. P. 49 ; Com. Dig. Ad-
ministration, C 3; Ham. on Part. 140
to 156; 8 John. R. 426; 7 John. R. 1G1 ;
3 Penna. R. 129 ; 15 Serg. & Rawle,39.

26. — An executor to the tenor . This
phrase is used 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. 4, p. 230.

Vide, generally, 11 Vin. Ab. h. t. ;
Bac. Ab. h. t. ; Rolle, Ab. h. t. ; Nel-
son’s Ab. h. t. ; Dane’s Ab. Index, h.

t. ; Com. Dig. Administration ; 1 Supp.
to Vcs. jr. 8, 90, 356, 438 ; 2 lb. 69 ;
1 Vern. 302, 3; Yelv. 94 a; 1 Salk.
319; 18 Engl. C. L. Rep. 185; 10
East, 295 ; 2 Phil. Ev. 299 ; 1 Rop.
Leg. 114; American Digests, h. t. ;
Swinburne, Williams, Lovelass, and
Roberts’s several treatises on the law'
of Executors ; Off. Ex. per totum ;
Chit. Pr. Index, h. t. For the origin
and progress of the law in relation to

executors, the reader is referred to 5
Toull. n. 570, note ; Glossairc du Droit
Franca is, par Dclaulierc, verl>o Exe-
cuteurs testamentaires, and the same
author on art. 297, of the Custom of
Paris ; Poth. Des Donations Testamen-

taires.