Henry St. George Tucker.

Commentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 1) online

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literating, the principles of which kind of revocation have been set forth
under the head of devises. We may add here, that a partial obliteration
will not amount to a total revocation ; Cow. 812 ; though I should presume
the extent of the revocation must, in such cases, depend on the obliterated
clause being more or less intimately connected with the other provisions of
the will. 4. So a will of personalty may be avoided by making another
testament of a later date ; for though I make a last will and testament irre-
vocable in the strongest terms, yet I am at liberty to revoke it. I cannot,
by my act, alter the disposition of the law and make that irrevocable which
is in its own nature revocable ; for this, as Lord Bacon says, would be to
deprive myself of that which of all things is most incident to human con'-
dition ; viz. the power of alteration or repentance. Yet this principle mu&t
be taken in subordination to another, that when a party by contract, for
valuable consideration, binds himself not to alter a will made in favour of
another, a court of equity would secure to the party the benefit of his con-
tract by avoiding the effect of a subsequent revocation. Moreover, the
power of revocation must be distinctly exerted either expressly or by the
latter will being clearly inconsistent in its provisions with the first. Yet
though a devise to a person who is incapable of taking (as a devise of
lands to a papist in England) is void to pass an estate, it may be a good
revocation of a prior will. Roper vs. Radcliffe, 10 Mod. 2'JO. 7 John.
C. R. 271. In no case, however, can a will in writing be revoked by a
nuncupative will, our act having followed the English statute in providing
that no will in writing, nor any devise therein of chattels, shall be revoked
by a subsequent will, codicil, or declaration, unless the same be in writing.
5. A will of personalty is also subject (as are devises of lands) to implied
revocations, some of which are common to both, while others are peculiar
only to one or other of these two species of testamentary dispositions.
Thus, the subsequent marriage of a man, and birth of a child, are equally
revocations of wills of real or personal estate. So, too, the laws in rela-
tion to posthumous and afterborn children, already noticed at some length,
apply both to realty and personalty. In like manner, as the sale of the
land devised operates a revocation jiro tanto, so where a specific legacy is
given, the subsequent disposition of it operates an ademption, which is in
effect a revocation quoad hoc. But where a bequest is not specific but
general, it is otherwise. Thus, although where the testator bequeaths a
particular horse, which he afterwards sells, the legacy is adeemed or taken
away, and the will quoad hoc is revoked by the act of sale ; yet where he
bequeaths a horse, without specifying any one, the legacy is good, provided
he dies possessed of a horse. For though a devise of realty speaks as at
the date of the ivill, yet a will of personal estate speaks as at the death of
the testator, and it will be good and effectual, if there be found among the

408 EXECUTORS. [book 2.

testator's chattels at his death any thing which answers to tlie description
of his will, tlioiigh acquired subsecjuent thereto.

It" a feme sole makes a will, and afterwards marries, her marriage alone
operates a revocation of her will, not only because her husband becomes,
by the intermarriage, entitled to her personalty, but also because, if it were
otherwise, her will would be irrevocable, since, during the coverture, she
has not the power of making another whereby the former might be an-
nulled. )Ve are, therefore, sustained both by reason and authority in the
position that the subsequent marriage of a feme is of itself a revocation of
her will, and that it is not revived by her husband's death. 2 T. R. 084.
7 John. C. 11. '258. Roper on Wills, 24. Sec, however, Bac. Ab. Wdls,
G. citing Plovvdcn, 343.

If there be two inconsistent wills of the same date, or without date, both
will be rejected for uncertainty, unless it can be ascertained by evidence
which was last signed. 5 Bro. Par. Ca. 45. If one will be revoked by
the execution of a subsequent will inconsistent with it, and the latter is at-
wards cancelled, the first will is revived. See 4 Bur. 2512. 3 H. &. M.
592 : for, as wills are ambulatory and inoperative until the testator's death,
the revoking will never was an effective instrument, as it was destroyed be-
fore that event. Yet it seems to be supposed, that if the last will contained
an express clause of revocation, the cancelling of the last will would not
revive the first. Roper 28, citing Cow. 49. If the first be cancelled, as
well as revoked by the latter, it is not revived by the revocation of the latter.

Having thus presented to the student what seemed of most importance
to be observed under the preceding heads, I proceed next to consider the
subject of executors and administrators in various points of view.

" An executor is he to whom another man commits by will the execution
of his last will and testament. And all persons are capable of being exe-
cutors, that are capable of making wills, and many others besides ; as
feme-coverts, and infants : nay, even infants unborn, or in ventre sa mere,
may be made executors." If a woman executrix marries, her husband be-
comes executor in right of his wife. If a feme-covert be appointed exe-
cutrix, the letters testamentary ought to be granted to her and to her hus-
band in her right only : and so where she becomes administratrix : for if
granted to him absolutely, the right would survive to him if she died. But
the wife cannot lawfully qualify as executrix in Virginia, without her hus-
band's assent. This seems, in England, to be a doubtful matter. Toll. 11.
Went. Off. Ex. 202. 1 Fon. 86. But as in general, bond must be given
on the qualification of an executor in Virginia, which the English law does
not require, I presume the wife would not be considered here as entitled to
qualify without the husband's assent ; for she cannot administer in Eng-
land without it, because a bond is required of administrators, though not
of executors. Toll. 92.

The appointment of executors may be qualified : as where A is appoint-
ed to be executor when he comes of age ; or in case B refuses to act : and
it is said a testator may appoint one executor as to his goods, and another
as to his debts ; or one for one country, and another for another. Toll. 35.
If more than one is appointed, yet are they considered but as one person
in law, and must join in all actions. And this even though one refuses the
executorship, for the suit must still be brought in his name, as well as in
that of the others. If indeed he refuses to join in the prosecution of the
action, he may be summoned and severed, and then the suit will proceed in
the name of the others. Toll. 446. In Virginia, however, an executor
who refuses, does not join in a suit, nor is he sued. Per Coalter, J. 4
Mun. 198.


The executor may either accept or refuse the office. If he accepts and
qualifies, he can never afterwards recede. If he be sole executor and re-
fuses, or if there be several, and all refuse, and administration is granted,
they cannot assume the executorship during the administrator's life; but
after his death theij may retract their renunciation, hoivever formally made*
If there be several, and one qualifies, and the others refuse, however for-
mally, the renunciation is not peremptory, but such as refuse may come in
and administer, and this even after the death of those who did qualify ; for
upon their deaths the executorship survives to the surviving executor, and no
administration can be committed unless he then again refuses. Toil. 43, &c.

The acceptance of the executorship may be shown in England by the
acts of the executor. 5 John. 403. In Virginia, his acceptance can only
be by qualification. On the other hand, the refusal of the executor may,
in Virginia, be evidenced by acts in pais, or presumed from circumstances,
and need not, as in England, be a matter of record. 3 Mun. 345. 4 Mun.
33'2. The most usual mode of renunciation, however, is either by refusal
in court, or by writing which is proved in court and recorded. By law,
also, it is provided with us that executors shall give security, unless the tes-
tator otherwise directs, and even then where the court shall in its discretion
think proper; and if the executor, being required to give such security,
fails to do so, this also is construed a refusal, and is so recorded. 1 R. C.
ch. 104, § 22.

The provision here mentioned, requiring security from executors, is un-'
known to the English law. 1 Salk. 299. Some alterations have been ef-
fected by it in the law of executors, though they cannot perhaps be yet very
accurately traced. In England any intermeddling by an executor with the
property of the deceased, will fix the administration on him, and prevent
his retracting. 5 John. C. 403. Here, however, it is otherwise, for until
he qualifies and gives bond, he may refuse the trust, and is no executor,
and by that alone he elects to be executor. In England an executor may,
before probate, release debts or receive them ; assent to legacies or pay
them ; use the goods or dispose of them ; and even sue and be sued in the
courts of law and equity. He cannot, however, declare before probate,
though he may file his bill, and if probate be obtained before the hearing,
it will be available. Toll. 47. 7 John. C. 51. 4 John. C. 549. 2 John.
C. 1.

In Virginia, it would seem from the case of Jones's Executors vs. James,
(4 Mun. 194,) that there are some acts which an executor named in the will
may do even before probate, and which will nevertheless be valid, though
he never afterwards gives bond ; such as providing for the decent burial of
the deceased, paying funeral expenses, and taking possession of, and pre-
serving the estate from waste and embezzlement; for all these even a stran-
ger may lawfully do. Toll. 40. All other acts which in England may be
done before probate, are to be "considered valid for the present, and irre-
vocably so when he subsequently qualifies. But if he refuses or fails ta
qualify, this is to be considered as a refusal of the executorship, which re-
lates back to the testator's death ; and thereupon, as to him, the will is con-
sidered as having never been made, and thus the only foundation of his
authority being done away, all his acts are invalidated." 4 Mun. 201.

It seems to be admitted in the same book, (pa. 199,) that before probate
an executor may sue and be sued. This was not, however, a question be-
fore the court. The doctrine seems not to be without difficulty. For if he
may sue, he may receive the money without having given security ; and if
he bo sued, how could a plea of ne unques executor be negatived unless he

* This is denied in Thornton vs. Winston, to be reported in 4 Leigh,


410 EXECUTORS. [book 52.

had qualified ? The right to sue implies the right to receive and to release ;
which acts before probate he cannot do : the capacity of being sued implies
a power to dispose of the funds for payment ; which he has not. I am not
aware of any case directly on this point.

During any contest about a will, or during the infancy or absence of an
executor, or until a will which may have once existed, but is destroyed,
shall be established, or whenever, irom any other cause* the court having
jurisdiction of the probate shall adjudge it expedient, they may appoint a
person to collect and preserve the estate, and to take an inventory thereof,
who is to enter into bond with condition for safe-keeping and delivering up
the same when required, to the executors or administrators. 1 R. C. ch.
104, § 24.

lu England, in all these cases of special administrators, (who are with
us frequently called curators,) they are entitled to perform all acts which
cannot be delayed without prejudice to the assets. They may sell bona
peritura, fattened cattle, grain, fruit, Sec, which may be the worse for keep-
ing. They may collect and pay debts, and for payment of them, may dis-
pose even of ellects not perishable; and in like manner^ they may com-
mence and prosecute suits as an executor or regular administrator may,
1. R. C. ch. 104, § 4:2.* But they cannot assent to legacies, release debts
without receiving them, or sell property not perishable, save where neces-
sity requires. Toll. 403, &c. If suits are brought by or against them, and
pending the action the administration determines, the suits abate. If, how-
ever, there be a judgment before its determination, it may be revived by
scire facias for or against the executor or administrator on whom the man-
agement of the estate devolves. Ibid, 407. Upon the determination of
the administration, they must deliver over to such executor or administra-
tor all the funds in their hands, nor are they entitled to retain what may be
necessary for payment of judgments against them ; for those judgments
can no longer be enforced against them, but must be revived against their
successors : and should execution issue against the curator after his admin-
istation has determined, it would be quashed.

If the executors named in the will refuse the executorship, or being sum-
moned do not appear, or being required to qualify and give bond fail to do
so, administration with the will annexed is granted to such person as would
have been entitled to administration if there had been no will. 1 R. C.
ch. 104, § 20. The duty of such administrator differs little from that of
the executor, for he must act according to the will.

If there be no will, the court having jurisdiction may grant administra-
tion to the representative entitled thereto. Until the second term of the
court after the expiration of thirty days from the death of the intestate, the
court cannot grant the administration to any other than such representa-
tive, unless he renounces the administration, which is usually done in court,
or by writing proved and recorded : they may then or afterwards appoint
any creditor who applies, or any other person in their discretion : and if no
person applies, they may, after the expiration of three months from the de-
cedent's death, order the sheriff of the county to take the estate into his

If the executor dies without making an executor, and without leaving a
surviving executor, or if an administrator dies before he has fully adminis-
tered, an administrator de bonis non is appointed to finish the business of
the estate.

The persons entitled to administration are, first the husband or wife, who
have preference over all others ; then such others as are next entitled to

* Collating this clause of the act with the preceding section, it seems possible that these provisions
x\ ere designed only for the case of curators appointed upon the removal ol the executor.


distribution according to the statute, or one or more of them, as the court
shall think will best manage the estate. The intention of the act is, that
the person entitled to the estate shall have the administration. 1 Call, 1.
4 Mun. 231. And hence if the husband takes administration, (Toll. 116,)
and dies, his executor or administrator is entitled to be administrator de
bonis non of the wife, in preference to her next of kin ; for by the opera-
tion of the statute which exempts him from making distribution, the pro-
perty became his, subject to his wife's debts. If he dies before he takes
administration, administration shall be granted to the wife's next of kin,
but they will in that case be trustees for the husband's representatives.
Tol. 116. 7 John. 244. So far, indeed, is the doctrine carried which
gives the administration to the person entitled to the property, that although
the act directs the husband or wife to be preferred, yet their claims will
yield where the estate is to go to other persons. As where by settlement,
upon the death of the feme, her property is to pass to her representatives
to the exclusion of her husband, herTelations shall have the administra-
tion in preference to the husband or his representatives. 6 Mun. 132.*
The English law conforms to this principle. Toll. 85, 116.

It is said by counsel, arguendo, (4 Mun. 410,) that the representative
having a right to the administration, may depute another person to admin-
ister in his stead. This is very customary, but I am not aware of any ad-
judged case upon the point.

The court we have said may, in their discretion, grant the administration
to one or more of the distributees who are entitled. Hence they may clear-
ly refuse after a grant to one, to associate another with him. It has been
made a question in the general court, whether they can join another with
him against his assent. I presume not; Toll. 96; for the grant once made
is irrevocable, except where the law otherv.'ise expressly provides, and ia
this case qui prior est tempore potior est jure. Where there are joint ad-
ministrators, the law of joint executors in all respects applies to them.
Toll. 407.

" An infant may be an executor in England at seventeen, till which time
administration must be granted to some other, durante minore cetateA In
like manner as it may be granted durante absentia, or pendente lite; when
the executor is out of the realm, or when a suit is commenced in the eccle-
siastical court touching the validity of the will. This appointment of an
executor is essential to the making of a will ; and it may be performed either
by express words, or such as strongly imply the same. But if the testator
makes an incomplete will, without naming any executors, or if he names
incapable persons, or if the executors named refuse to act; in any of these
cases administration must be granted cu7n testamento annexe," and then the
duty of the administrator, as also when he is constituted only durante mi-
nore (Elate, is very little different from that of an executor. See 1 R. C.
ch. 104, § 24, 20. And if the deceased died wholly intestate without will
or executors, then general letters of administration must be granted.

In granting administration, it is provided by our law, 1 R, C. ch. 104, §
32, that the court having jurisdiction shall prefer first the husband or wife,
and then such others as are next entitled to distribution, or one or more of
them, as the court shall judge will best manage and improve the estate.

If no such person applies for administration within thirty days from the
death of an intestate, or at the next succeeding court after the expiration
thereof, the court may grant administration to any creditor or creditors who

* Tbornion and Winston, not j-et reported, accords herewith. I

t In Virginia, unless bond be dispensed with, he cannot be executor, I conceive, till tWCJ|
Because ol'tlie necessity of giving bond.aniutantcanJioi in England be administrator.

412 EXECUTORS. [book 2.

apply for the sanic, or to any other person tlic court shall, in their discretion,
think fit.

But if any will shall afterwards be produced, and proved by executors, or
the wife or other distributee, who shall not have before refused, shall apply
for the administration, the same shall be granted, in like manner as if the
former had not been obtained.

In like manner, if the estate be committed to the sherill', (which is direct-
ed, if administration is not applied for within three months, 1 R. C. ch.
104, § 67,) the court has power at any time afterwards to revoke the order,
and to grant letters testamentary to the executor if there be one, or letters
of administration to any person entitled. And, in this case, it seems that
the right is not qualified by the provision that the party shall not have be-
fore refused.

Where there is a residuary legatee in the will, he seems to have a prefer-
ence over the next of kin, as they have in such case no interest in the pro-
perty. Toll. IK). And this is the real ground of preference, in England,
of the executor or administrator of the executor, for he is in general entitled
to the residuum, and where he is not, the residuary legatee, as has just been
said, will be preferred. See Toll. ch. 3, § 7.

" The interest, vested in the executor by the will of the deceased, may
be continued and kept alive by the will of the same executor : so that the
executor of A's executor is to all intents and purposes the executor and re-
presentative of A himself; and so long as the chain of representation is
unbroken by any intestacy, the uUimate executor is the representative of
every preceding testator, nor is a new probate of the original will requisite
in any of the subsequent stages. Toll. Ex. 68. 1 Salk. 309. But the exe-
cutor of A's administrator, or the administrator of A's executor, is not the
representative of A. For the power of an executor is founded upon the
special confidence and actual appointment of the deceased ; and such exe-
cutor is therefore allowed to transmit that poiver to another, in whom he
has equal confidence : but the administrator of A is merely the officer of the
ordinary, prescribed to him by act of parliament, in whom the deceased
has reposed no trust at all: and therefore on the death of that officer, it re-
sults back to the ordinary to appoint another. And with regard to the ad-
ministrator of A's executor, he has clearly no privity or relation to A ; be-
ing only commissioned to administer the effects of the intestate executor,
and not of the original testator. Wherefore, in both these cases, and when-
ever the course of representation from executor to executor is interrupted
by any one administration, it is necessary for the ordinary to commit ad-
ministration afresh of the goods of the deceased 7iot administered by the
former executor or administrator. And this administrator, de bonis non, is
the only legal representative ofthe deceased in matters of personal proper-
ty. But he may, as well as an original administrator, have only a limited or
special administration committed to his care, viz. of certain specific effects,
such as a term of years and the like : the rest being committed to others."*

By our act of assembly, 1 R. C. ch. 104, § 65, it is provided that execu-
tors of executors shall do and perform all things in the execution ofthe will
of the first testator, which shall remain undone at the death of the first
executor ; and shall and may sue, or be sued, in all things respecting the
estate, in the same manner as such first executor could or might have sued,
or been sued. This section of our law is taken from the 25 of Ed. III.

* Where tlie cause of action is such liiat tlie executor or administrator may sue in his representa-
tive character, the right to sue devolves on the administrator de bonis non. 1 Barn. &. Cres. J50. 8
C. L. R. 45, 47. See Post. 435.

Administrators de ionis «o« are now empowered to sue out scire facias upon judgments obtained
by a deceased executor or administrator. Sess. Acts 1830, ch. 32. The act prescribes also in what
jnnaiiner the scire facias shall be served on absentees.


Stat. 5, ch. 5. Whether that statute used the imperative "shall" or not, I
do not know. Since its passage, however, it lias been repeatedly decided,
that the executor of an executor may renounce the will of the first testator
and accept that of the second. See Judge Tucker's note on this passage.
See, also, 1 Salk. 309. Shep. Touch. 464. 1 Croke, ()14. In Hobson vs.
Jones, 2 Rand. 50ii, Judge Green refers to the common law right of the exe-
cutor to renounce, but does not allude to the statute of Edward III. The
act of assembly (sess. acts, 1824, ch. 8, § 11,) seems very clearly to imply
the right of renunciation. It provides that the second executor shall give
security for the due execution of the will of the first testator, or he shall be
deemed to have renounced all authority over that estate. The securities of
the first executor are not responsible for the second executor's mal-adminis-
tration of the first testator's estate. 2 Ran. 483.

The executor of the executor when appointed, if he accepts the execu-
torship of the first will, claims immediately under the first testator, and de-
rives no interest in the goods of the first testator, from the will of his own
testator. 2 Ran. 502. If the executor of the executor accepts the execu-
torship of the first will, it amounts to an acceptance of the last also.

Where there are several executors, and only one qualifies and dies, the

Online LibraryHenry St. George TuckerCommentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 1) → online text (page 104 of 117)