Front Page Titles (by Subject) 74.: ROBERT CAILLEMER, THE EXECUTOR IN ENGLAND AND ON THE CONTINENT 1 - Select Essays in Anglo-American Legal History, vol. 3
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74.: ROBERT CAILLEMER, THE EXECUTOR IN ENGLAND AND ON THE CONTINENT 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3.
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THE EXECUTOR IN ENGLAND AND ON THE CONTINENT1
THE European systems of legislation present to-day many differences in the matter of testamentary executorship; yet during the Middle Ages this institution offered throughout Christian Europe nearly the same aspect. The point of departure has been one, though the paths have diverged widely. In Italy, France, Spain, England and Germany the testamentary executorship played during the Mediæval epoch a pretty uniform part; its legal structure reveals everywhere the same legal traits. Born of the same creeds, it assumed everywhere the same forms.
The part it has played is considerable. The testamentary executor has been the intermediary of numberless pious gifts; the cartularies of the convents are full of acts drawn up by executors for the good of the souls of the deceased. We cannot realize to-day the social importance of the functions of these almoners. It is due to them and to the bounty they are going to bestow upon the convent by the request of the deceased, that the body of the latter is allowed to receive an honorable burial in consecrated ground; due to them that the soul of the dead can be happy in the other world; for alms redeem sin. Happy he who has left behind him an almoner to watch over his soul, and make gifts pro anima.
This is not all. Beside the religious part, the testamentary executor played after the 12th century another which is essential in the law of succession. He is the liquidator of the estate of the deceased. He receives his assets, goods and demands; to him also pass the debts. To third parties he continues the person of the deceased, like the heir of the Roman law. He must settle and adjust the varied interests arising in connection with the succession; he interprets the will; he allays controversies; he delivers the bequests to the legatees, and if after the settlement of the estate, something is left over, he disposes of it in his discretion as he may judge most beneficial for the soul of the deceased. Often the testator has given only the briefest hints, relying upon the executor for the disposal of the surplus.
1 By a remarkable coincidence, the institution developed at the same time and assumed a great importance in two other legal systems, the Byzantine and the Mahometan. The testamentary executorship which appears in its germs in the law of Justinian, grows in strength in the Byzantine law of the 9th and 10th centuries. The ἐπίτροπος resembles in many points the executor of the Western law: he too temporarily continues the person of the deceased, he too is placed under the close supervision of the public authorities, lay and religious, which can remove him and appoint in his stead an official administrator.
Perhaps under the influence of the Byzantine law, but with very original peculiarities, the testamentary executorship had also come to hold a place of great importance in the Mahometan system of succession. Of considerable consequence in the Shafite and Shiite laws, it attains its maximum development in the Hanefite law. An authority of the 12th century of our era, the Hedaya, gives us precise and detailed information concerning it, and we are somewhat surprised to meet with rules mentioned by Beaumanoir, and with principles established by English custom.1 Here too the executor appears as continuing temporarily the person of the deceased, as his active and passive representative. Moreover, in the Musulman law, as in the law of Southern France and of the German cities, the testamentary executor performs important functions in the guardianship of the minor children of the deceased. Finally like the Roman-German and the Byzantine law, so the law of Islam knows an ex-officio executor of testaments, the judge, who can name official administrators, in case the executors chosen by the testator do not perform their functions or happen to die.
The testamentary executorship thus played in the Middle Ages an essential part in the legal life of the civilized world. A complete history of testamentary executorship during the Middle Ages ought not merely to set forth the development of the institution in parts of the world apparently so dissimilar, but should also suggest the reasons which have given rise to it everywhere at the same time, and explain the striking resemblances which it presents under different conditions. Perhaps the cause of this parallel movement may be found in the universal spread of the idea of charity in the Frankish epoch and at the beginning of the Middle Ages, in the impulse then given to the relief of the poor, to pious gifts, and eleemosynary foundations. The world of Islam and the world of Christianity share in this movement. The Christian wants his goods distributed to the poor and to monasteries, the Musulman desires that his fortune may serve to organize pilgrimages to Mecca or establish philanthropic works. Both have taken upon themselves the duty of charity during life, and they do not want its accomplishment put an end to by their death. Their care is to find for the continuation of the task some person other than the heres institutus of the Roman law, a person who however like the heir will succeed to the rights and actions of the deceased, who will collect his goods and claims, to whom the estate of the deceased will not pass as to an heir or legatee, but who will deal with it as a master, so that it shall not become res nullius.
1 There is no indication of such an institution in the customs from which the law of the Frankish period sprang. Neither in the Roman law of the lower Empire, nor in the usages which ruled the Teutonic nations, are there testamentary executors. But the study of these customs reveals certain elements, the combination of which contains the germ of the institution.
In the 8th century, the executorship is found everywhere on the continent, and from that time we can trace its history easily. In the first centuries of the Middle Ages, this history is independent of that of the testament. The latter is unknown in Germany, and in the greater portion of France has disappeared under the influence of Germanic ideas, which are hostile to acts mortis causa, and require for the transfer of rights public acts inter vivos showing a surrender of seisin on the part of the alienor. The testament proper, as an unilateral and revocable act, is found hardly anywhere except in Languedoc and Italy. Everywhere else the executor is appointed by an act of delivery: the grantor transfers by act inter vivos a specific portion of his property (usually land) to the executor (eleemosynarius, wadiator), charging him to transfer in his turn upon his death the property to some other person or to the Church.
In the 12th century, under the influence of different causes, especially of the revival of the Roman law, the testament reappears throughout Occidental Europe, and the old executorship gains entrance into this new institution. From now on the executor is appointed by a will, and carries out its dispositions. At the same time the Canon law develops a system of supervision by public authority over the carrying out of wills. This is the era in which the executorship attains its highest development. And it is precisely the time when the executorship, together with the will, makes its appearance and becomes organized in the English law.
In the last centuries of the Middle Ages, finally, the institution enters upon a crisis, due to the renascence of the Roman law and its influence upon the customs. The Romanists revive the institutio heredis, and since the 13th century, in Italy and in Southern France, the heir gradually resumes the first place in the testamentary succession. Every advance of the heirship marks a step backward of the executorship. The executor ceases to be a channel of devolution; he loses all title to the goods of the deceased; he becomes a simple supervisor of the heir.
In Northern France the crisis came with less rapidity and intensity. During the entire Middle Ages, the executor’s seisin remained almost intact, exclusive of the seisin of the heir; the executor remains, down to the 16th century, the active and passive representative of the person of the deceased. True, since the 13th century the premonitions of decay are discernible in the possibility that the heir may under certain conditions exclude the executor from the seisin of the goods of the succession, in the increasing limitations upon the extent and duration of the executor’s seisin, in the appearance of residuary legatees distinct from the executors. But only since the codification of the customary law, especially in the 17th and 18th centuries, does this decay become pronounced, owing to the progress of the universal (legs universel) and the attacks of the Romanists. In the Civil Code of 1804, the executor has no real power; he is no longer the representative of the deceased, and his rights do not materially limit the right or the seisin of the heirs.
In Germany, the same crisis occurred only after the reception of the Roman law; until that time the executor retains his entire autonomy. But, since the 16th century, the Romanists and writers of the German common law, in order to define the position of the executor, put forward various theories, all tending to narrow his functions: some consider him as a mere agent of the heir. The first draft of the German civil code confirmed this effacement, and it required the efforts of the Germanic jurists to restore him to a portion of his ancient dignity.
In England the crisis came likewise, but it took another direction. It resulted in the aggrandizement of the powers of the executor: he assumes in the English law of succession a preponderance which the ends of the institution by no means required. In the 13th and 14th centuries the English executor had only limited powers and was the object of active supervision. In the 16th century he has become the almost uncontrolled master of the succession to the personalty, he pays himself in preference to other creditors, his debt to the deceased becomes extinguished, he retains the residue of the estate, the concurrent rights of widow and children of the testator to parts of the personal property have disappeared. The executor becomes like an appointed heir, or rather, in numerous points, he has more rights than an heir. Only in comparatively recent times has there been a reversion to a more appropriate measure of powers, and the most exorbitant of the powers, the right to retain the residue, has disappeared.
1 As we have seen above, the history of testamentary executorship begins in England only with the 12th century. In the law of the Anglo Saxon period, the right to dispose by a last will had been a privilege reserved to certain preferred persons, in derogation of the common law. It had been necessary to surround this testament with special guaranties. Hence the nomination of a guardian (mund) of the will (cwide). The intervention of a great person in the execution of a will might, to be sure, have more special objects than mere general protection; it might for instance be a means of bringing about a testamentary disposition of Folkland, not specially granted by charter, and hence subject to the common law of Germanic custom excluding wills. But even where the will disposes of Bocland, the charter of which gives the owner the right to leave it by will to a successor of his own choice, the testator will endeavor to obtain for his will the consent and protection of the King, for which purpose we find in some documents a gift to the King of the heriot. The mund is very different from the testamentary executor as we shall find him later on in the English law, and if we want to find some analogous institution on the Continent, we must think, not of executors, but of the adjutores and the defensores, who in the charters of the Middle Ages, guarantee and protect legal acts.
After the Norman Conquest the cwide disappeared, and with it the mund charged with its protection. When subsequently the testament developed in England, it presented, like the continental testament, executors to carry out its provisions. In order to trace the development of the institution in the English law, we shall study the growth of the following three rules, which characterize the position of the testamentary executor in the common law, and which have appeared successively in the order named: first, the executor receives the chattels of the testator; second, he is the representative of the testator, both for claims and liabilities; third, he has a right to the residue.
1 I. In England, during the Middle Ages, the seisin of the executors never embraced, as it did on the Continent, the entirety of the succession. One domain eluded them: that which was afterward called real property. The executors had their rights limited to personal property. At the very period when in England during the 12th century the testament developed, the English customs became strongly attached to the principle that no one can alien an immovable without entirely divesting himself of it during his lifetime, and they even required for the validity of gifts of immovables that the donor should be in sound bodily condition. This virtually amounted to a prohibition of testamentary disposition of immovables. Consequently the sphere of action of testamentary executors became restricted to movables.2
On the other hand, the executor became exclusively entitled to chattels: excluded from real property, he in his turn excluded any share of the heir in the personal property. This produced a complete separation within the English law; real and personal property became two independent spheres of law. After the Norman Conquest, the English system of succession took for its foundation the strict application of the parentelic system, with primogeniture and preference of males. This system was inapplicable to movables; and thus, as to them, the testamentary executorship had a chance to develop itself.
It is certain that this system of devolution of personal property did not spring into existence ready made. On the contrary, we have positive evidence of the end of the 12th century to the effect that at first the catalla, like the immovables, passed to the heir; and that the heir, with the catalla, paid the debts and performed the last will. This fact is clearly indicated in 1176 in the assize of Northampton.1 In the course of the 13th century, a modification took place. Gradually the heir ceased to meddle with the catalla, which became the exclusive domain of the executor. In 1215, the Petition of the Barons to King John, article 15, and the Great Charter, article 26, decide that the catallum of the deceased, shall be left to his executors, as soon as the debt due to the king, is paid, and we find the same rule in a great number of later texts, in the Great Charter of Henry III, article 18, in Bracton, and above all in the numerous documents of the rolls of Gascony relative to England from 1242 to 1254. The king commands his officers not to disturb the executors in the possession and administration of the catalla, and to cause to be restored to them such as may have been taken from them.2
The statement that the entire personal property soon came to fall into the hands of the executor is liable to be questioned on the ground that numerous documents of the 13th and 14th centuries show that the testator cannot dispose freely of all his movables. If he leaves both wife and children, he may dispose only of a third; if only a wife, or only children, then of one half of the catalla.1 Must we then not say that the executor is seised only of a third or one half of the movables, of the dead’s part?
The documents which inform us concerning this tripartite division of the decedent’s movables show at the same time that all movables are delivered to the executors. Thus in Bracton the two rules are stated side by side, and the rolls of Gascony always mention the delivery to the executors of all bona and catalla. These two rules, while apparently in conflict, are not so in reality. The personal property is handed over entirely to the executor; but he can perform the will of the deceased only with regard to the third or the half of the goods; he must return the other parts to the widow or children. So the Year Books show the widow and the children of the testator suing the executor to recover their parts. The doctrine of the pars rationabilis therefore does not limit the extent of the executor’s seisin, but merely his power of disposition. Strange to say, this relation between the executor’s seisin and the widow’s and children’s rights is not peculiar to England; we find it clearly in another country in which the tripartite division of the testator’s goods has been developed, to wit, in Catalonia: the executors there are seised of the entirety of the movables, but have to give one third to the widow, one third to the children, and distribute the residue according to the will of the testator. Moreover, we shall see presently that this right of the widow and children to the chattels has gradually disappeared.
Thus, as early as the 13th century, the executors have become the successors of the testator for the chattels, just as the heir receives the real property. They are in fact temporary owners of the chattels. The legatees, for the time being have only an imperfect and inchoate right to the legacy, and their right becomes perfect only through the assent of the executor. As long as this assent has not been given, the executor is sole master of the chattels; he alone can validly dispose of them. While many customs of the Continent limit the executor’s seisin to one year, the English common law provides, on the contrary, that during the first year the legatees cannot sue the executor to compel him to deliver the chattels.
This right of the executor to the chattels springs directly from the testament. It does not seem that the English law ever required a traditio inter vivos of the catalla, and the instances that can be adduced of such a delivery inter vivos are very rare. As early as the year 1100, the charter of Henry I (article 7) admits that simple words spoken on the deathbed can have the effect of passing the pecunia; a will without delivery may therefore give to the executors a right to the movables.1
The right of the executor, like every other right to personal property, is transmissible to his own representatives, to his executors.2 The requirement of words of inheritance to make property descendible to the successors of the donee, applies to real property only. However, when there are several executors, and one of them dies, his right passes, not to his own representatives, but to the other executors. This is no exception to the principle of transmissibility, but simply means, that, the executors being joint tenants, the rules of joint tenancy are applied to them; the survivor takes all the rights of the predeceased, and transmits them to his own representatives. From this results a chain of representation, a chain of executorship, which closes only when the last executor dies intestate.1
2 II. The representation of the deceased by the executor developed in England later than on the Continent. Only since the 12th century is the testamentary executorship known to the English customs, only from the 13th century on did the representation of the testator by his executors gradually establish itself. Certain obstacles stood in the way of the transfer of the claims and debts of the deceased to the executor.
In the first place, any assignment of a claim by the testator to the executor was almost impracticable. Obligations to the bearer, the use of which had in Italy rendered the transfer of claims from the testator to the executor possible, were almost unknown in England at the beginning of the 13th Century.3 Again, representation in court by an attorney is admitted, at the same period, in exceptional cases only.4 In Glanvil’s time, it is permitted, on principle, only in the Curia Regis; outside of that, the person who desires himself to be represented must produce a royal writ stating that the attornatio took place coram rege vel justitiis suis. Moreover the attornatio, where it is permitted, is terminated by the death of the person represented. Hence it was impossible to make the English executor either an assignee of a claim or an attorney.
Moreover, after the English law, in consequence of a concession which will be traced presently, has permitted the claims of the deceased to pass to the executor, it emphasizes in a striking manner the difference between a testamentary executor and an attorney. When the testator in his lifetime appoints an attorney, the attorney’s powers are revoked by the death of the principal, and in order that the attorney may after the death of the principal retain the benefit of the assignments and prosecute the debtor, he must apply to the executors, to whom the law has transferred the claim.
As for the payment of his debts, the testator may undoubtedly charge his executor therewith, but we know how imperfect this arrangement is, since it does not exclude the personal liability of the heir. At the end of the 12th century, it is still the heir who succeeds alone to the claims and debts of the testator, just as he receives the catalla. Such is the law as laid down by the Dialogus de Scaccario (II, 18), about 1177—1179, and, ten years later, by the treatise attributed to Glanvil (VII, 5).
A rapid development altered this condition completely. Since the debts become a charge on the chattels, and the entirety of the chattels must be handed over to the executors, why not give to the executors directly the duty of paying the debts? Why not, on the other hand, concede to them directly the recovery of claims, since the amount recovered will come to them ultimately? The active and passive representation of the deceased by the executor was thus the necessary consequence of his having become the sole successor to the catalla of the deceased. But this representation did not come about all at once: admitted by the ecclesiastical courts at first to a limited degree, then somewhat more liberally, it was finally, at the end of the 13th century, fully established by the royal justices.
Bracton’s Notebook reveals to us the first stage of this evolution.
On principle, the payment of the debts still devolves upon the heir, and the creditors of the deceased sue him in the lay courts (n° 1543, 1693). But as early as 1219 an heir demands a continuance in order to ascertain whether the deceased has not in his will mentioned the debt sued for; for in that event it ought to be paid, not by him, the heir, but by the executors (n° 52). Again, in 1222, the executors are sued in a court christian, and the action against them encounters a writ of prohibition, because the debt is not mentioned in the will (n° 162). It appears from these two decisions that debts named in the will are payable by the executors and not by the heirs.
As for the recovery of claims, it is again the heir who on principle represents the deceased. Twice, in 1231 and 1233, executors bring suit in the ecclesiastical court against the debtors of the deceased, and both times they are met by a writ of prohibition (n° 550, 810). But this prohibition relies no longer upon an absolute intransmissibility of the claims to the executor; this intransmissibility is only relative. The executors are barred from their action, because the claim has not been judicially established or acknowledged during the testator’s lifetime, and therefore was incapable of being bequeathed. This view is confirmed by a note to a judgment of 1231. “Nota quod in extremis non potest quis legare actiones suas, et maxime de debitis que petita non fuerunt nec recognita in vita debitoris.” Bracton thus seems to concede that the claim of the deceased might be transmitted to his executors, if it had been acknowledged during the lifetime of the testator, and he gives as a reason that the claim so acknowledged constitutes part of the goods of the testator and is transmitted with them.1 In fact the Notebook shows on two occasions executors recovering, without any question being raised, claims of the deceased. So, in 1231, we find testamentary executors vested with a claim secured by a mortgage, and granting to third parties some rights in the land thus pledged.2
Bracton, embodying in his treatise (written between 1250 and 1258) the decisions referred to in his Notebook, as yet considers the heir as the true representative of the deceased.1 Yet we must ask whether at that time the development has not considerably advanced beyond that stage. The rolls of Gascony of 1242 and 1252 seem to regard the testamentary executors as the active and passive representative of the testator. True, in a compromise between the King and one of his debtors (No. 347, 367), it is agreed, that the heirs of the debtor shall pay his debt, and that the executors shall dispose of his goods; but we have here a covenant, a specialty binding the heir, which later on becomes necessary in order to hold the heir for the debts of the deceased. In all the other cases, action for the debt of the deceased is brought against the executors (77, 457, 1386). Moreover the executors bind themselves to pay to the King the debts of the testator that might hereafter be discovered (1820, 2750, 3487, 3534); their responsibility is thus no longer limited to the debts mentioned in the will and acknowledged by the deceased. On the other hand the King directs his bailiff to pay to the executors, and not to the heirs, the sums which he owes to the testator (1672, 3114, 3137).
The wills of the same period show that the clause binding the testamentary executors to pay all the debts of the deceased has become a common form. It is found regularly in the wills registered since 1259 in the Hustings Court of London, and it is generally accompanied by particular directions as to the goods chargeable with the payment of debts.2 On the other hand, in 1248, an Archdeacon of York, by his will, places at the disposal of his executors “omnia sua, tam debita, quam ubique locorum inventa sint;” which implies a transfer, without distinction, of all claims of the deceased in favor of the executor.3
These illustrations show that as early as the middle of the 13th century, the executor was according to the English view the true successor to the claims and debts of the deceased; and the English common law would have adopted this solution very quickly, had not the question of principle been complicated by a conflict of jurisdictions.
It was through their connection with the will, as testamentary causes, that the “actions of debt” by or against the executors had been allowed by the courts christian;1 but this method of procedure threatened to derange and alter the theory of contracts. The courts of the church, under pretence of restraining every breach of promise (fidei laesio), indirectly came to validate obligations that were not binding in the eyes of the lay courts. Moreover, they proved to be much less strict than the lay courts about the proof of obligations; and so the death of the debtor or creditor, by changing the jurisdictions admissible for the action of debt, had its effect upon the contracts themselves.
This is the reason why the lay justices were led to contend against the justices of the Church, with a view to retain or recover, not a general jurisdiction in matters testamentary, but a special jurisdiction in the matter of actions of debt by or against the executors. In order to prevail over the ecclesiastical courts on this point, the lay courts in their turn consented to treat the executor as the active and passive representative of the deceased.
A rapid development transferred from the courts of the Church to the lay courts the actions of debt to which testamentary executors were parties. A register of writs of the first years of Edward I shows that there are some who allow to the executor a breve de compoto reddendo, and that this action, being testamentary, belongs to the church. But some time afterward, between 1279 and 1285, the Articuli cleri show the English clergy complaining of the prohibitions encountered in the actions brought against the debtors of the deceased by testamentary executors in the ecclesiastical courts. The advisers of the King answer that the executor must not occupy, as against the debtors of the estate, a better position than the testator himself; in the courts of the church, the executor might prove the debt “per duos testesminus idoneos,” while the defendant could not defend by the oath and the other methods of defence admitted by the temporal courts, and would thus find his position impaired by the death of his creditor.1
It is certain that even before 1285 the temporal courts assumed cognizance of actions of debt brought by or against executors; for at that date the Statute of Westminster Second gives executors in the temporal courts the breve de compoto reddendo (13 Ed. I, c. 23); at the same time, it requires the ecclesiastical Ordinary, successor to the goods of an intestate, to pay the debts of the deceased “in the same manner as testamentary executors (c. 19).” Thus the executor becomes in the temporal courts the active and passive representative of the deceased. No doubt, in 1287, the synod of Exeter (c. 50) excommunicates debtors of the estate who prevent testamentary executors from prosecuting their claims before the courts of the Church. But these protests are of no avail. About 1290, while Fleta, under Bracton’s influence, seems wavering,2 Britton is quite positive: though testamentary causes belong to the courts of the Church, nevertheless the actions of debt belong to the temporal courts exclusively.3 From about the same time, the Year Books4 and the Rolls of Parliament5 leave no further doubt. The debts and claims devolve upon the executor; and the actions to which they give rise belong to the temporal courts.
Thus the English temporal jurisdictions, following the example of the courts christian, established the active and passive representation of the testator by his executors. The heir is no longer held for the debts of the ancestor, unless the latter has covenanted for himself and his heir, later on called a specialty binding the heir.6
We must not however exaggerate the practical importance of the development thus far traced. The actions which are transmitted from the debtor or creditor are not yet numerous. It was in connection with the action of debt, that in the course of the 13th century the struggle was fought out, first between the heirs and executors, then between courts christian and courts temporal. The breve de compoto reddendo, which the courts christian had endeavored to secure to the executors, was given them by the lay courts after 1285. But the actions founded on injury to the person or property of the testator or on injury done by him remained absolutely intransmissible. The English law applied rigorously the rule: actio personalis moritur cum persona. A series of reforms, leaving the principle intact, restricted the scope of its application. The first step in that direction affected the executor’s active representation, and was taken in 1330 by the famous statute of Edward III “de bonis asportatis in vita testatoris,” which gave to the executors the action of trespass that had accrued to the testator by reason of damage done to his personal property (bona et catalla; 4 Ed. III, c. 7). This statute was later on interpreted most liberally; but it extended neither to injuries done to the person of the testator, nor to damage done to his real property. On the other hand, as regards the executor’s passive representation, actions founded in tort became extinguished (according to the doctrine of the Middle Ages) with the death of the wrong doer; it was only conceded that the executor might be held for the benefit (in money or goods) received by the wrong doer. Only in the 19th century was an action given against the testamentary executors for the damage done by the testator within six months prior to his death, to the property (real or personal) of a third person; and on the other hand, an action on behalf of the executors for damage done to the real property of the testator within six months prior to his death. As regards actions founded on personal injuries, they have remained practically intransmissible, both in favor of and against executors. Even in contractual matters, the transmission of claims and debts to the executors had not in the 13th century the importance which it subsequently assumed; for it must be remembered that in the English law the system of contracts at the end of the 13th century was very imperfectly developed.
Thus the English law gradually came to make the executor the active and passive representative of the testator. Claims and debts of the deceased devolve on him, as they did on the heir in Rome,—a resemblance noticed by English writers.1
But what happens, if the debtor of the deceased or the creditor of the deceased is the executor himself? What will result from the concurrence in the same person of the two capacities of creditor and debtor? The English common law has not hesitated to accept the extreme consequence involved in the idea of representation: the claim of the executor against the deceased, his debt to the deceased, becomes extinct by merger. The English writers while not using the word, state the fact. If the testator appoints his debtor as executor, he thereby releases the debt. For a claim, the English writers say, is nothing but a right to recover a sum of money by action. Since the executor cannot sue himself, the appointment of a debtor to the office of testamentary executor of his creditor suspends the right of action arising from the claim. But when an action is suspended voluntarily by the person who might have brought it, it is regarded as permanently extinguished. If the testator appoints his creditor as executor, the doctrine of the common law is more complex: as soon as the executor gets possession of the assets of the estate, his claim becomes extinct; and if there are co-debtors, the creditor can no longer sue them. But the English law gives to the executor a right of retainer; he may pay himself out of the assets, in preference to other creditors of the same rank.
Such is the doctrine of the common law. When was it introduced? We cannot tell. English custom has conferred upon the executor exorbitant rights, without it being possible to follow the stages of the evolution.
1 III. The bestowal of the residue upon the executor has likewise assumed in the English law a much more pronounced character than that given to it by the customs of the Continent. On the one hand, while on the Continent a formal clause of the will is required in order that the residue may belong to the executor, at common law the residue of the catalla belongs to him as of right. On the other hand, while in the continental customs the residue is handed to the executor merely for the purpose of distribution, at common law, the residue belongs to him, and he retains it for himself.
This is one of the best established rules of the common law; yet its origin is obscure. The English wills of the 13th century rarely contain a residuary disposition; as a rule they are made up of a number of particular bequests. What, then, becomes of the residue? In the silence of the authorities, a positive reply is impossible. Yet the thought occurs that the same reasons that have kept the heir of the real property from any administration of the catalla must also have rendered difficult any claim of the heir concerning the residue. The heir of the real property must have very rapidly lost all relation to the catalla, from the point of view of the residue as well as from any other.
It is true that wife and children have a right to a part of the catalla; but just because this part is fixed by custom, it is difficult for them to raise claims to the “dead’s part,” i. e. the residue, and it is very probable that this part, even in the absence of a formal clause in the will, was expected to be applied entirely for the good of the soul of the deceased.
It is also possible that the rules relating to the assignment of the “dead’s part” to the executors have been influenced by rules relating to its assignment to the administrators (who also, at that time, were called executors). The administrator may dispose of the dead’s part of the deceased: why should the executor, chosen by the deceased and enjoying his confidence, not have the same right? As soon as the executor has distributed the legacies expressly given by the deceased, he finds himself, as to the residue of the “dead’s part,” in the same position as the administrator. We therefore believe that in the 13th or 14th century (beginning at a time which it is impossible to fix now) the executor had the power, in the absence of any testamentary clause, to distribute for the benefit of the soul of the deceased the residue of the “dead’s part,” without having to restore it to the heirs of the deceased.
But we are here as yet far from the final result reached by the common law, for: 1. The executors cannot dispose of the residue of all the catalla, but only of the residue of the “dead’s part.” 2. They may not keep that residue for themselves, but must distribute it for the benefit of the soul of the deceased.
And first, as we have seen above, the testator cannot dispose freely of all his chattels. If he leaves a wife and children, he can dispose only of one third; if he leaves a wife or children, he can dispose only of one half. Hence the executor’s right can extend only to the residue of the third or half, the “dead’s part.” The other parts he must restore to the widow and children. But the rights of the widow and children have gradually disappeared from English custom, without it being possible to say at what time the transformation took place. As early as the 16th century the division of the catalla into two or three parts ceased to exist in a great portion of England, while it survived until the 17th century in London, Yorkshire, and Wales: only at the end of the 17th and the beginning of the 18th century several statutes brought uniformity to the English law on this point.
Moreover, even with the limitation mentioned, the residue was not absolutely free in the hands of the executor; he was not allowed to keep it for himself. He had to distribute it for the benefit of the soul of the testator. His large powers over the residue were like those of an executor in the continental law to whom a formal clause has given the right to distribute the residue; he was a distributor, and not a beneficiary. This resulted at first from the very nature of the “dead’s part,” the third or half reserved to the deceased. The division of the succession did not contemplate the enrichment of the executors, but the benefit of the soul of the deceased, and that third part, in the absence of a contrary clause, must be devoted to pious works. This appears from numerous wills of the 13th century; whenever these instruments speak of the residue, it is to charge the executors to distribute it.1 The same is still true in the 14th Century: the executors receive the residue to distribute, not to keep it; they must distribute it “in periculo animarum suarum”; and they will answer for it before God “in tremendo judicio.”2 At this time also, the English councils and synods prohibit the executor from keeping, on whatever pretence, the goods of the succession. The synod of Worcester (1240), c. 49, the council of Lambeth (1261), the synod of Exeter (1287), c. 50, and the council of London (1342), c. 7, declare that the executor has no right to retain any part of the goods of the deceased, save as creditor or legatee. At most the bishop is permitted, when the succession is considerable, to allow the executor a small remuneration pro ipsius labore.
We find, however, in the 14th century, in several wills which increase in number as we approach the end of the century, legacies of the residue by which the testator transmits this residue, not to be distributed, but to definite beneficiaries. One fact is to be noticed: while in France these dispositions were made for the benefit of third parties other than the executors, in England, in the great majority of cases they are made to the executors themselves, or to some of them. By virtue of such clauses the executors take the residue, not to distribute but to keep it.3 Moreover in some instruments the legacy of the residue is expressly given to the executor as such, and the testator takes care to declare formally that if the executor, who is also residuary legatee, will not take upon himself the execution of the will, he shall not be allowed to claim his legacy. So in 1395 a widow has appointed her son as “chief executor” and has bequeathed to him the residue of her goods; but she adds that if her son should refuse execution, the residue shall be distributed among the other executors.1
As these instruments prove, the English custom, at the end of the 14th century tended to regard the two capacities of testamentary executor and of residuary legatee as tied up with each other. At what moment did this usage become a rule of law? We cannot say. We can only state the point of departure of this development, and its final outcome.
This final outcome is clear. If the deceased has not named in his will a residuary legatee, then according to the common law the executors must collect the residue of the personal property, and they may apply it to their own use. Their position is in this respect exactly like that of the Roman heir, whose right may be limited in fact by particular legacies, but who has a contingent claim to the entirety of the succession. In English law, all disposable goods not charged by the testator with a fixed application go to the executor and belong to him as his own. This rule is clearly formulated by Blackstone: “If there be none (residuary legatee),” he says, “it was a long settled notion that it developed to the executor’s own use, by virtue of his executorship,”2 and in Blackstone’s time this rule is set aside in equity only when it conflicts with the clear intention of the testator, as e. g. where the testator has given the executor a fixed legacy.
It may even happen that the executor receives not merely the residue, but all the chattels. In England, as on the Continent, in the Middle Ages, a custom grew up for those who, surprised by death, had not the time to regulate in detail the disposition of their goods, to name simply a distributor, a commissarius, leaving it to him to distribute at his discretion the goods of the decedent. This practice, quite opposed to the principles of the Roman law, is found everywhere in the 13th century. In 1216 King John, attacked by a sudden illness, entrusts the ordinatio and dispositio of his property to thirteen faithful friends, leaving to them the care of distribution. In vain did Innocent IV, about 1246, declare such testaments void, and wanted to treat those, who were content to name an expressor et executor, as intestate. The Fleta and Britton declare that one may leave “simplement sauntz aucune especialté . . . sa dreyne volunté en la distribucioun de touz ses biens moebles en la ordinounce de acun ami.” So the mere appointment of an executor is enough to constitute a will.1
These executors, appointed without any directions, were, in the 13th century, certainly required to distribute the chattels, at least the dead’s part, for the profit of the soul of the deceased. But gradually they are allowed to retain the dead’s part, then the entire personal property, and thus the mere appointment of an executor has become in the common law the equivalent of a bequest of all the personal property for the benefit of the executor.
Not until 1830 is it provided by statute that the executors shall be regarded by the courts of equity as trustees for the benefit of the persons named in the statute of distributions as takers in case of intestate administration, namely, the next of kin. Only in our days therefore has the English law come back to the rule which never ceased to be observed on the Continent: the residue belongs to the executor only if expressly so provided by the testator. The Scotch law, as early as the 17th Century, had done away with the extraordinary common law power of disposal, by putting again into force the tripartite division of the chattels and by limiting to the “dead’s part” the right of the executor to keep the residue.
But it is not our task to trace through modern times the history of testamentary executorship. We have even omitted in this study many features of the institution in the Middle Ages. We have said nothing of the essential duties of the executor on entering upon his office (burial of the deceased, probate of the will, inventory); nor of the rules established by the English councils with regard to the supervision and control of the executors by the public authorities; nor of the creation of judicially appointed executors, the administrators cum testamento annexo. We merely wished to sketch the fundamental features which the institution presents on the common law, and to trace their development. We wished at the same time to indicate the importance of the executorship in the English law. It is there, what the institutio heredis is in Rome, caput atque fundamentum totius testamenti. In the 17th century, Swinburne and Godolphin declare that “the naming or appointment of an executor is said to be the foundation, the substance, the head, and is indeed the true formal cause of the testament, without which a will is no proper testament,” but only a codicil. There are even some decrees that say that, without an executor, a will is “null and void.”
Certainly, the evolution of the institution is not closed. The Land Transfer Act of 1897 has given the executor a new function in committing to him not merely the personalty but the realty, in making of him a representative of the deceased for the entire succession. The future, which alone can tell what the consequences of such a reform will be, may perhaps yet give a new lease of life to the old mediæval institution, which, when it declined on the continent, retained such vitality in the English law.
[1 ]This Essay consists of extracts from a treatise entitled “Origines et développement de l’exécution testamentaire; époque franque et moyen âge” (Lyon, Rey; 1901). In extracting the parts needed to give some continuity in the account of English law, some transposition was necessary. The pages of the original, at the beginning of the respective passages, are shown in a bracketed footnote; they are chiefly pp. 3, 682, 679, 95, 406, 453, 503. The author has revised and added to these passages for the purpose of this Collection.
[2 ]Professor of the History of French Law, in the University of Grenoble, France, since 1906. Graduate of the University of Lyon, Faculty of Law; chargé de cours in French legal history, at the same, 1901-1903; agrégé in legal history at the University of Aix-en-Provence, 1903-1906.
[1 ][P. 682.]
[1 ]Hedaya, LII, 7: the executor having accepted his office is definitely bound to perform the will; the rights of the deceased executor pass to his own executors.
[1 ][P. 679.]
[1 ][P. 95.]
[1 ][P. 406.]
[2 ]This restriction was not absolute. Certain species of property, such as houses in cities, were assimilated to chattels, and regarded as devisable; they could therefore pass under the seisin of the executor. Bracton (ed. Travers Twiss) VI, 24, says that these houses are quasi catalla. But the executor very soon loses their seisin. In the 15th century the legatees of these houses may take possession of them without requiring the assent of the executors; and even where the testament directs the executors to sell such property and to distribute the proceeds, the seisin belongs, not to the executors but to the heirs at law. Littleton 167, 169.—On the other hand, the executors have always had the seisin of chattels real, rights in lands of fixed duration, and hence not included in the term real property: term of years, wardship in chivalry, and the right of mortgage, when it is created, not by a feoffment, but by a lease for years. Vice versa, heirlooms, though movable, go to the heir.
[1 ]§ 4: “Si quis obierit francus-tenens, haeredes ipsius . . . catalla sua habeant, unde faciant divisam defuncti.”
[2 ]Michel, Rôles gascons, I Nos. 109, 347, 367, 671, 1458, 1463, 1557, 1820, 2750, 3204, 3487.
[1 ]As Brunner has shown (Zeitschrift der Savigny Stiftung, Germ. Abt. 1898, p. 107 seqq.), this division of the succession into two or three parts is a widespread institution in the customs of the middle ages.
[1 ]It might happen that the testator wanted to confer upon his executors a right to his immovables: for this purpose, a transfer inter vivos was required, a feoffment of the immovables to the executors; and we have here one of the oldest and most remarkable application of uses, strongly reminding of the old form of executorship on the Continent (See Holmes, vol. II., of these Essays, No. 41). But these are in our opinion very different things. From the 13th Century on, the English law separates sharply the feoffee to uses, whose right relates to real property and arises from a feoffment, from the executor, whose right relates to personal property and arises from a will, the two capacities remain distinct, even while united in the same person.
[2 ]St. 25 Ed. III c. 5.
[1 ]Blackstone II c. 25, 32. Cf. Littleton 280, 281. The administrator of an executor dying intestate does not succeed to his office.
[2 ][P. 453.]
[3 ][See Essay No. 50, in this Volume, “The Early History of Negotiable Instruments.”—Eds.]
[4 ][See Professor Brunner’s article, “The Early History of the Attorney in English Law,” Illinois Law Review, 1908, III, 257.—Eds.]
[1 ]Bracton, De legibus, ed. Travers Twiss VI p. 212; and Cases No. 162, 325, 550, 684, in his Notebook. This distinction between claims which have been the subject of judgment or acknowledgment, and others, is not peculiar to the English law. It is also found on the Continent; but it is noteworthy, that the English law which in principle has rejected without distinction any assignment of claims, admits the distinction in question only in the matter of testamentary executorship. This can be explained only on the theory that English custom regards the executor not as an assignee, but as the representative of the deceased.
[2 ]Bracton’s Notebook No. 381, 559. The mortgage here seems to pass like a chattel into the hands of the executors; which is surprising, since at this time the creditor is ordinarily a feoffee of the mortgaged land, whose estate, upon his death, passes to his heir. Only in equity, the heir is regarded as trustee for the executor or administrator of the mortgagee: Williams, Real Property, 512. Perhaps this is the case of a mortgage created by a term of years, for the term of years is a chattel which passes to the executors or administrators of the termor.
[1 ]Ed. Travers Twiss I p. 482; II 122; 220; VI p. 212.
[2 ]Sharpe, Calendar of Wills I, pp. 3, 4, 11, 12, 13; Rymer, Foedera I, p. 495, will of Edward, son of the King of England (1272): “as queus (i.e. the executors) nus donoms e grauntoms plener poer, ke ils pusint ordiner, pur nostre alme, de tuz nos beyns moebles e noun moebles, cum en rendre nos dettes e redrecher les tort ke nus avons fet par nus ou par nos Baliz.”
[3 ]Historians of York III p. 165 (1248).
[1 ]See above, on this matter, vol. II, p. 301.
[1 ]Raine, Historical papers and letters from the Northern registers, No. 43, p. 71 (1279-1285), §3.
[2 ]II 57, §13 seqq.; II 62, §8 seqq.
[3 ]Britton c. 29, §35.
[4 ]Y. B. 20 and 21 Ed. I, p. 375 (1293); 21 and 22 Ed. I, p. 259 (1293), p. 519 (1294), p. 599 (1294); 33 and 35 Ed. I, p. 63, 69 (1305); 30 and 31 Ed. I, p. 238 (1302)
[5 ]Rolls of Parliament I, 43, 47a, 107, 164, 197 s.
[6 ]Already the Fleta clearly indicates this principle: Fleta II 62, §10. But see Stat. Westm. I. c. 36; Stat. Westm. II. c. 35, which admit subsidiarily an action against the heir, si executores non sufficiant.
[1 ]Doctor and Student, I, c. 19: “the heir, who in the English law is called executor.”
[1 ][P. 503.]
[1 ]Bracton’s Notebook, No. 550 (1231); Historians of York, III p. 165 (1248); Madox, Formulare No. 771 (1295); Sharpe, Calendar of Wills, p. 1, 3, 5, 48.
[2 ]Wills and Inventories, I No. 16 (1313), No. 25 (1335), No. 29 (1372); No. 31 (1378); No. 33 (1388); Madox, Formulare No. 774; Testamenta Eboracensia, I No. 1 (1316), No. 5 (1342), No. 70 (1375), No. 142 (1393); Historians of York III p. 271 (1349).
[3 ]Madox, Formulare, No. 773 (1326); Wills and Inventories, I, No. 21 (1334); No. 26; No. 30 (1372); Testamenta Eboracensia, I No. 3 (1341); No. 4 (1342); No. 6 (1342); No. 7 (1344); No. 13 (1346); No. 144 (1392); No. 8; No. 12.
[1 ]Furnivall, Fifty Earliest English Wills, p. 4, p. 9.
[2 ]II, p. 514.
[1 ]Rymer, Foedera I p. 144; Matth. Paris; Chron. maj. IV p. 604 et s.; Fleta II, 62, 13; Britton c. 29, § 35.