Executor. In England, the person to whom the execution of a last will and testament of personal estate is by testamentary appointment confided. The appointing by will of an executor, without giving any legacy or appointing anything to be done by him, is sufficient to make a will. The appointment of an executor can only be by a will, the person who takes charge of the estate of an intestate being called an Administrator (q.v.). The appointment may be either express or constructive—i.e. gathered from the general terms of the will. An early duty of an executor is to take Probate (q.v.) of the will. He derives his title solely from the will; the estate vests in him from the death of the testator, at which time his responsibility begins, and from which time he may enter upon all the duties of managing the estate. But his position will not be recognised as suitor in any court until he has taken probate. The whole personal estate vests in the executor, and, if the testator has made no disposition of the residue, it devolves, as trustee for the next of kin, upon the executor, unless it appears from the will or any codicil thereto that the executor was intended to take the residue beneficially. By 21 Henry VIII. chap. 5, an executor is bound to prepare an inventory of the personal estate. This, if required, must be produced. An executor may raise actions in respect to the estate in his charge; and generally it may be said that his powers, duties, and liabilities are commensurate with those of the deceased, except in regard to contracts and wrongs of a merely personal nature. He may enter the house of the deceased to remove the personal property. The first claims to be discharged are those of the funeral and the expenses of probate. He must then pay the debts; and he is responsible for paying them in due order, so that those having a legal preference shall first be discharged. An executor is not bound to accept the office; but, if he administer, he cannot then renounce the executorship without cause. On the death of an executor, the office passes, as a general rule, to his executor. See Sir E. V. Williams's Law of Executors and Administrators (8th ed. 2 vols. 1879), or the shorter treatise of Walker and Elgood (1883).
An executor to a will in Scotland is called a testamentary executor, to distinguish him from the next of kin, who are styled executors. The term executor is given to all who manage the estate of a deceased, whether appointed by will or by authority of the court. The former are called executors nominate; the latter, executors dative. All executors must, before entering upon their duties, obtain confirmation from the Commissary Court. This is equivalent to probate in England. But in Scotland no right vests in the executor until after confirmation, except a title to sue, being exactly the reverse of the English rule. An executor acting without confirmation is called a Vitious Intromitter (see INTROMISSION). Executors must, on entering upon their office, exhibit a full inventory of the whole movable estate of the deceased. An executor is only liable to the extent of the inventory. He is not bound to pay interest on the funds in his hands unless they bore interest before confirmation, or unless he is guilty of undue delay in administering the estate. He is not bound to pay the debts for six months after the death of the deceased. But, as in England, the expenses of the funeral and confirmation are entitled to immediate payment. Servants' wages and a year's house-rent have also a preferable claim. An executor is entitled to claim one-third of the Deed's Part (q.v.), after deducting debts. But, should he receive a legacy, he is bound to impute that towards part payment of his claim.
In the United States, the rights and duties of an executor are analogous to those defined by English law; in this, as in other matters relating to property, each state has its own laws. See Stimson, American Statute Law; Schouler, Treatise on Law of Executors and Administrators (Boston, 1883).