A New Law Dictionary and Institute of the Whole Law

EXECUTOR continued.

the Court of Chancery. For this latter purpose executors may carry out their testator's contracts, and, as a rule, should endeavour by all means to do so. But an executor is not bound to insure or to keep up an insurance against fire. Under the stat. 23 & 24 Vict. c. 145, s. 30, he has a right to compound debts. When the estate is realized, for which purpose he is allowed a year, thence called the executor's year, his next duty is to divide or distribute the estate among the legatees (as to whom see title LEGACY). But before making any such distribution, it is incumbent upon him to pay or provide for the funeral and testamentary expenses of the deceased, and all his just debts, otherwise he will be personally liable therefor as for a devastavit (see that title), assuming that there was a sufficiency of assets to pay them.

It is competent to an executor to renounce probate of the will, and in that case his right as executor wholly ceases. But, assuming that he has obtained a grant of probate, he and he only is entitled to act as executor until the grant is revoked.

With reference to the question in what cases an executor is entitled to sue, or is liable to be sued, as executor, or in his own personal capacity, there is a clear line of division, namely the death of the testator; and us to all contracts which had their commencement on the one side of that line, i.e., during the life of the testator, the executor is entitled and liable in his representative capacity only; but as to all contracts which had their commencement on the other side of that line, although these contracts are incidental to the contracts of the testator, the executor is entitled and is liable in his own personal capacity.

All the rules stated above regarding a lawful executor hold true, mutatis mutandis, for an administrator also.

(2.) A person becomes an executor de son tort from almost any intermeddling with the estate after the death of the testator; e.g., where A., the servant of B., sold the goods of C. the testator, as well after his death as before, though by the orders of C., and paid the money arising therefrom into the hands of B., the latter was held liable to be sued as executor de son tort (Padget v. Priest, 2 T. R. 97). So also living in the house and carrying on the trade of a deceased victualler was held to be a sufficient intermeddling to make an executor de son tort (Hooper v. Summersett, Wightw. 16). Where there is also a lawful executor, the act of an executor de son tort is good against him only when it is lawful, and such an act as the lawful executor was bound to perform in the due course of administration (Buckley v. Barber, 6 Ex.

EXECUTOR-continued.

164). But it is evident that an act of intermeddling may be sufficient to make a person liable as executor de son tort, although it should not bind the lawful executor. Thompson v. Harding, 2 El. & Bl. 630.

EXECUTORY AND EXECUTED.

These

words denote respectively incomplete and complete, and that as well in their Common Law application to contracts, as also in their Equity application to trusts. Thus (1.) In the case of contracts,-The contract or consideration is said to be executed when it is completely performed; and it is said to be executory when it is not yet completely or only incompletely as yet performed. And it is clear that a contract may be executed on one side and executory on the other. In the case of executory contracts, a request to perform, together with the consequent promise to pay for the performance is always implied by law, where it is not expressed in words by the parties; but in the case of executed considerations, this is not always so, although sometimes it is so; and as to when it is and when it is not so, see title CONTRACT.

And (2.) In the case of trusts,-A trust is said to be executed when it is completely created or declared, and executory when the words of trust are merely directory, and point to some further instrument as being necessary to complete the declaration or creation. Many distinctions are made in Equity according as a trust is executed or executory. Thus, Equity follows the Law in applying, for example, Shelley's Rule to trusts that are executed; but as to trusts executory it takes this distinction, viz., if the instrument containing the executory trust contains a reference to marriage, Equity refuses to follow Shelley's Rule, and moulds the trusts so as best to suit the presumed intention of the testator; but where there is no such reference to marriage, then Equity permits the Law to have its own way. And, again, an executory trust which exceeds the rule against perpetuities, is not therefore void (as an executed one would be), but Equity will mould the executory trust so as to confine it within that rule of Law, believing that the testator could not intend what was illegal.

EXEMPLIFICATION. In law is an official copy or transcript made from a record of Court: thus, an exemplification of a recovery signifies a copy or transcript of the recovery roll, and the same should be set out literis et verbis in an abstract of title comprising it. Similarly, an exemplification of letters patent signifies a copy or transcript of letters patent made from the original inrolment.

EXHIBIT. An exhibit is the name given to any particular document which in the course of a cause is exhibited, i.e., produced by either party. Such documents, when numerous, are usually marked with some letter of the alphabet as a convenient mode of referring to and distinguishing them, and they are then called "Exhibit A," or "Exhibit B," and so forth.

This use of exhibits is a convenient mode of abridging evidence in the case of written documents, the proof being either vivá voce or by affidavit. But only some documents may be exhibited, namely, extracts from registries, records from the Bodleian and Museum libraries, and generally all documents coming out of the custody of a public officer having care of them; also, office-copies of records, whether of the Superior Courts at Westminster or of the Courts of the County Palatine of Lancaster, or of the Inferior Courts of Record; also, and chiefly, deeds, bonds, notes. bills of exchange, letters, or receipts, and the like. Documents of other kinds may not be so proved; and generally, no document may be proved as an exhibit, if it requires more to substantiate it than the proof of the execution or of handwriting, e.g., if any ulterior circumstance which might affect it requires to be proved, and the opposite side would have a right to crossexamine upon that circumstance (Lake v. Skinner, 1 J. & W. 9, 15). Thus, a will of real estate could not generally be proved as an exhibit at the hearing, but under the present practice that is allowed to be done, the heir having liberty to cross-examine the witnesses.

If it is intended to prove an exhibit at the hearing of the cause, an order of course to be obtained on motion of course or petition of course at the Rolls is necessary.

EXPROPRIATION. In French Law, is the compulsory realization of a debt by the creditor out of the lands of his debtor, or the usufruct thereof. When the debtor is co-tenant with others, it is necessary that a partition should first be made. It is confined in the first place to the lands (if any) that are in hypothèque (see that title), but afterwards extends to the lands not in hypothèque. Moreover, the debt must be of liquidated amount.

EXTENT. Is a writ of execution available in cases in which the Crown has an interest. The extent may either be an extent in chief or an extent in aid, the distinction being that the former is a hostile proceeding by the Crown against its debtor, or against the debtor of that debtor, while the latter is an extent issued at the instance of the Crown debtor himself against his debtor, to aid his payment of the Crown debt. The extent of the

EXTENT-continued.

Crown has priority over all executions of the subject.

See also titles POWERS; RIGHTS, &c.

EXTORTION. Is a criminal offence when committed by sheriff's or other officers; but, semble, a mere civil injury, when committed by other persons, against whom an action for money had and received will lie. EXTRADITION. Denotes the giving

up of a criminal by a foreign state in which he has sought refuge from prosecution to the state within whose jurisdiction the offence has been committed. The duty of a state to make extradition of criminals is by no means generally admitted, and at the most it is an exercise of comity only. Generally, no state will make an extradition of its own subjects; and generally, also, no state will make an extradition of political offenders. The present practice of England with regard to the extradition of criminals is expressed in the Extradition Act, 1870 (33 & 34 Vict. c. 52), and the Extradition Act, 1873 (36 & 37 Vict. c. 60), which provide that when an arrangement for that purpose has been made with any foreign state, Her Majesty may by Order in Council direct that the Act shall apply in the case of such foreign state, subject to any conditions to be expressed in the order. But the former Act makes an express exception of political offences, the Secretary of State having it in his discretion to decide whether the offence is or not of a political nature. The Act of 1873 extends the provisions of the principal Act to the case of accessories punishable as principals. See generally Clarke on Extradition, 1874.

EXTRINSIC EVIDENCE. This evi dence is so styled because it is brought forward to throw light upon a written instrument ab extra the instrument. The usual rule of law being that the meaning of the instrument is to be gathered from the instrument itself, the introduction of extrinsic, or (as it is sometimes called) parol, evidence to assist in ascertaining its meaning, is to be regarded in the light of an exception.

It may be premised generally, that by a rule of the Common Law, independently of statute, extrinsic or parol evidence was equally inadmissible in certain cases to throw light upon a written document; and that the Statute of Frauds, and other statutes which have made writing an ab

EXTRINSIC EVIDENCE-continued. solute sine quâ non to the validity of certain obligations, have not been the occasion of the inadmissibility of this species of evidence, but have at the most only rendered that inadmissibility somewhat more patent (Goss v. Lord Nugent, 5 B. & Ad. 58). Thus, before the Statute of Frauds, the Courts were uniformly governed by the rule-that the judgment of a Court or judge in expounding a will should be simply declaratory of what is in the instrument (Wig. Extr. Ev. p. 6); and since that statute the rule is the same, only more apparently so than before, inasmuch as the admission of evidence to do more than to declare what is in the will, would be, to the extent the evidence was admitted, to be in fact making an additional or other I will for the testator which he has not made. The question is, what has the testator written, not what (in any one's opinion) he intended or ought to have written.

(A.) Considering the matter, firstly, with reference to Wills. The following are the uses to which extrinsic or parol evidence may be legitimately applied:

(1.) Where there is nothing in the context of a will shewing that the testator has used words in other than their strict or primary acceptation, but that acceptation is insensible with reference to extrinsic circumstances, then the extrinsic circumstances may be looked at for the purpose of arriving at some secondary or popular sense which shall be sensible with reference to these circumstances.

(2.) Where the written characters of the will are difficult to decipher, or the words of the will are in an unknown or unusual language, the evidence of persons experienced in deciphering written characters or acquainted with the language is admissible for the purpose of informing the Court or judge.

(3.) Extrinsic evidence is also admissible for the purpose of identifying the object of the testator's bounty (whether devisee or legatee), and for the purpose of identifying the subject of disposition.

(4.) Also, for the purpose of defeating a fraud, whereby either the wrong will is executed or an alteration in or omission from the true will is occasioned. Doe v. Allen, 8 T. R. 147.

On the other hand, extrinsic evidence will not be admissible for the following purposes:

(1.) To add to the contents of a will, by proof of a mistake of the testator (Brown v. Selwin, Cas. t. Talb. 240), or of the counsel who prepared the will (Newburgh (Earl) v. Newburgh (Countess), 5 Mad. 364, 1 M. & Scott, 352; but an issue devisavit vel non, where that will serve the same purpose (as

EXTRINSIC EVIDENCE-continued. it would have done in Newburgh v. Newburgh, supra) may be directed.

(2.) To supply a total blank in the will, whether of the name of the legatee or devisee, or of the amount of the legacy or estate given. Doe v. Needs, 2 M. & W. 139; Edmunds v. Waugh. 4 Drew. 275.

(3.) To identify a legatee or devisee or the estate given, where there being some description, no part of that description is applicable to any person or estate. Hampshire v. Pierce, 2 Ves. 218; Miller v. Travers, 8 Bing. 244.

And generally, although the judgment of the Court or a judge in expounding a will should be simply declaratory of what is in the will, yet—

(1.) Every claimant under a will has a right to require that the Court or judge shall, by means of extrinsic evidence, place itself or himself in the situation of the testator, the meaning of whose language it or he is called upon to declare; and

(2.) The intention, as an independent fact, may be proved by means of the like evidence in all those cases in which the description being accurate, i.e., unambiguous on the face of it, its applicability to each of several subjects, or to each of several objects, occasions what is called a latent ambiguity. See also titles LATENT AMBIGUITY; PATENT AMBIGUITY.

(B.) Considering the matter, secondly, with reference to other instruments than wills. The following is an enumeration of the purposes for which extrinsic evidence in connection with written documents may be admitted:

(1.) To prove the making of the contract; (2.) To prove the writing not to have been a contract;

(3.) To prove that the contract was induced by fraud, mistake, or

duress;

FACTOR-continued.

These privileges are due in some measure to the circumstance that the factor is in a position that is analogous to that of the consignee of goods. Thus, he was able by the Common Law to bind his principal by the sale of the goods entrusted to him, and he still has that power; but he could not pledge the goods in a valid manner. However, under the stat. 6 Geo. 4, c. 94, usually called the Factors' Act, he is enabled to make a valid pledge of the goods, or of any part thereof, to one who believes him to be the bona fide owner of the goods; and under the stat. 5 & 6 Vict. c. 39, he is further enabled in all respects, as if he were the true owner of the goods, to enter into any contract or agreement regarding them by way of " pledge, lien, or security,' as well for an original loan, advance, or payment made on the security of such goods or documents, as also for any further or continuing advance in respect thereof, and such contract or agreement is made valid against the principal, notwithstanding the lender was fully aware that the borrower was a factor only. This power does not extend to antecedent debts.

FACTORIES. Are placed under statutory supervision; the stat. 42 Geo. 3, c. 73, regulating the health and morals of apprentices and others employed therein, the stat. 3 & 4 Will. 4, c. 103 (Factory Act, 1833), amended by the Factory Acts, 1844 and 1856, regulating the labour of children and young persons therein. And under the stat. 30 & 31 Vict. c. 103, the meaning of the word "factory" is, for the purposes of these Acts, extended to smelting works, copper mills. iron and brass foundries, and to paper, glass, and tobacco manufactories, and to letterpress printing and bookbinding.

The employer of labour in factories is also subject, even by the Common Law, to make due provision, e.g., by properly fencing his machinery, for the security of the lives and limbs of his workmen. Coe v. Platt, 7 Ex. 460.

FACULTY (facultas). A privilege or special dispensation granted to a man by favour and indulgence, permitting him to do that which by the law he could not do; as to marry without banns being first published; to hold two or more ecclesiastical livings at the same time; and the like (25 Hen. 8, c. 21; Les Termes de la Ley). At the present time a faculty is not unfrequently granted for the removal of a churchyard or church; as to which see 32 & 33 Vict. c. 94.

FAIRS: See title MARKET.

FAIT. This word was used in the old law to signify a deed, factum. In juris

FAIT-continued.

prudence, the phrase fait juridique, or factum juridicum, denotes one of the factors or elements constitutive of an obligation.

FALDAGE, called also FOLDAGE. Is a privilege enjoyed by certain lords of manors and others of setting up folds, i.e., inclosures, for sheep, as well belonging to themselves as to their tenants, in order with the manure thereof to fatten their lands. The privilege is sometimes called suit of fold, secta falda. The tenant by paying a fald-fee might have commuted the privilege.

FALSE IMPRISONMENT. An action will lie for false imprisonment as well against officers exceeding the process of the Courts as also against private individuals assuming to imprison. For the success of the action it is necessary to prove both malice on the part of the defendant and the absence of all reasonable or probable

cause.

This

See also title MALICIOUS ARREST. FALSE JUDGMENT, WRIT OF. was a writ which lay to the Superior Courts at Westminster to rehear and review a case which had been tried in an inferior Court, and the judgment in which was submitted to be erroneous. In lieu of this writ, an appeal is open to the party dissatisfied with the judgment. See Judicature Act, 1873.

FALSE REPRESENTATION: See titles FRAUD; WARRANTY.

FALSE RETURN: See title RETURN.

FALSIFY. This word, as occurring in the phrase "with liberty to surcharge and falsify," means to impugn as false or erroneous certain items or entries in an account. The Court of Chancery, where an account has been stated between parties, and they afterwards disagree regarding it, may either open the whole account or (according to the nature of the case) merely give liberty to surcharge and falsify particular items in the account.

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