United States.—Execution in the United States is founded upon English law, which it closely resembles. Substantially the same forms of execution are in force. The provisions of the Statute of Frauds making the lien of execution attach only on delivery to the sheriff were generally adopted in America, and are still law in many of the states. The law as to the rights and duties of sheriffs is substantially the same as in England. The “homestead laws” (q.v.) which are in force in nearly all the American States exempt a certain amount or value of real estate occupied by a debtor as his homestead from a forced sale for the payment of his debts. This homestead legislation has been copied in some British colonies, e.g. Western Australia (No. 37 of 1898, Pt. viii.), Quebec (Rev. Stats., ss. 1743-1748), Manitoba (Rev. Stats., 1902, c. 58, s. 29, c. 21, s. 9), Ontario (Rev. Stats., 1897, c. 29), British Columbia (Rev. Stats., 1897, c. 93), New South Wales (Crown Lands Act 1895, Pt. iii.), New Zealand (Family Homes Protection Act 1895, No. 20 of 1895).
France.—Provisional execution (saisie-arrêt) with a view to obtain security has been already mentioned. Execution against personalty (saisie-exécution) is preceded by a commandement or summons, personally served upon, or left at the domicile of the debtor calling on him to pay. The necessary bedding of debtors and of their children residing with them, and the clothes worn by them, cannot be seized in execution under any circumstances. Objects declared by law to be immovable by destination (immeubles par destination), such as beasts of burden and agricultural implements, books relating to the debtor’s profession, to the value of 300 francs, workmen’s tools, military equipments, provisions and certain cattle cannot be seized, even for a debt due to Government, unless in respect of provisions furnished to the debtor, or amounts due to the manufacturers or vendors of protected articles or to parties who advanced moneys to purchase, manufacture or repair them. Growing fruits cannot be seized except during the six weeks preceding the ordinary period when they become ripe. Execution against immovable property (la saisie immobilière) is preceded also by a summons to pay, and execution cannot issue until the expiry of 30 days after service of such summons (see further Code Proc. Civ., Arts. 673-689). Imprisonment for debt was abolished in all civil and commercial matters by the law of 22nd of July 1867, which extends to foreigners. It still subsists in favour of the State for non-payment of fines, &c. The French system is in substance in force in Belgium (Code Civ. Proc., Arts. 51 et seq.), the Netherlands (Code Civ. Proc., Arts. 430 et seq.), Italy (Code Civ. Proc., Arts. 553 et seq., 659 et seq.), and Spain.
Germany.—Under the German Code of Civil Procedure (Arts. 796 et seq.), both the goods and (if the goods do not offer adequate security) the person of the debtor may be seized (the process is called arrest) as a guarantee of payment. The debtor’s goods cannot be sold except in pursuance of a judgment notified to the debtor either before or within a prescribed period after the execution (Art. 809 [3], and law of 30th of April 1886). Imprisonment for debt in civil and commercial matters has been abolished or limited on the lines of the French law of 1867 in many countries (e.g. Italy, law of the 6th of December 1877; Belgium, law of the 27th of July 1871; Greece, law of the 9th of March 1900; Russia, decree of the 7th of March 1879).
Authorities.—Anderson, Execution (London, 1889); Annual Practice (London, 1908); Johnston Edwards, Execution (London, 1888); Mather, Sheriff Law (London, 1903). As to Scots law, Mackay, Manual of Practice (Edinburgh, 1893). As to American law, Bingham, Judgments and Executions (Philadelphia, 1836); A.C. Freeman, Law of Execution, Civil Cases (3rd ed., San Francisco, 1900); H.M. Herman, Law of Executions (New York, 1875); American Notes to tit. “Execution,” in Ruling Cases (London and Boston, 1897); Bouvier, Law Dict., ed. Rawle (1897), s.v. “Execution.”
EXECUTORS AND ADMINISTRATORS, in English law, those persons upon whom the property of a deceased person both real and personal devolves according as he has or has not left a will. Executors differ from administrators both in the mode of their creation and in the date at which their estate vests. An executor can only be appointed by the will of his testator; such appointment may be express or implied, and in the latter case he is said to be an executor “according to the tenor.” The estate of an executor vests in him from the date of the testator’s death. An administrator on the other hand is appointed by the probate division of the High Court, and his estate does not vest till such appointment, the title to the property being vested till then in the judge of the probate division. As to whom the court will appoint administrators and the various kinds of administrators see under [Administration]. Apart from these two points the rights and liabilities of executors and administrators are the same, and they may be indifferently referred to as the representative of the deceased. As to their appointment before the establishment of the court of probate see articles [Will] and [Intestacy]. Before the Land Transfer Act 1897, the real estate of the deceased did not devolve upon the representative but vested directly in the devisee or heir-at-law, but by that act it was provided that the personal representative should be also the real representative, and therefore it may now be said broadly that the representative takes the whole estate of the deceased. There are, however, a few minor exceptions to this rule, of which the most important are lands held in joint tenancy and copyhold lands. As the representative stands in the shoes of the deceased he is entitled to sue upon any contract or for any debt which the deceased might have sued in his lifetime.
The duties of a representative are as follows: 1. To bury the deceased in a manner suitable to the estate he leaves behind him; and the expenses of such funeral take precedence of any duty or debt whatever; but extravagant expenses will not be allowed. No rule can be laid down as to what is a reasonable allowance for this purpose, as it is impossible to know at the time of the funeral what the estate of the deceased may amount to. The broad rule is that the representative must allow such sum as seems reasonable, having regard to all the circumstances of the case and the conditions in life of the deceased, remembering that if he should exceed this he will be personally liable for such excess in the event of the estate proving insolvent.
2. He must obtain probate or letters of administration to the deceased within six months of the death, or, if such grant be disputed, within two months of the determination of such suit. The penalty for not doing so is fixed by the Stamp Act 1815, § 37, at £100, and an additional stamp duty at the rate of 10%. As to the formalities of [Probate] see that article.
3. Strictly speaking, he must compile an inventory of all the estate of the deceased, whether in possession or outstanding, and he is to deliver it to the court on oath. He is to collect all the goods so inventoried and to commence actions to get in all those outstanding, and he is responsible to creditors for the whole of such estate, whether in possession or in action. This duty is thrown upon the representative by an act of 1529, but it is not the modern practice to exhibit such inventory unless he be cited for it in the spiritual court at the instance of a party interested. It is, however, necessary to file an affidavit setting out the value of the estate of the deceased upon applying for a grant of probate or letters of administration.
4. The representative must pay the debts of the deceased according to their priority. Next to the legitimate funeral expenses come the costs of proving and administering the estate; in the event, however, of the funeral and testamentary expenses being charged by the will upon any particular fund, they will be primarily payable out of that fund. The representative must be careful to pay the debts according to the rules of priority, otherwise he will become personally liable to the creditors of one degree if he has exhausted the estate in paying creditors of a lesser degree. First of all, a solicitor has a lien for his costs upon any fund or duty which he has recovered for the deceased; next in order come debts due to the crown by record or speciality; then debts given a priority by statute, as, for example, by the Poor Relief Act 1743, money due by an overseer of the poor to his parish. Next, debts of record, i.e. judgment recovered against the deceased in any court of record; all such debts are equal among themselves, but a judgment creditor who has sued out execution is preferred to one who has not; another class of debts of record are statutes merchant and staple, or recognizances in the nature of statute staple, i.e. bonds of record acknowledged before the lord mayor of London or the mayor of the staple. Last in the order of debts come specialty and simple contract debts, which by Hinde Palmer’s Act (the Executors Act 1869) are of equal degree, though as between specialty debts bonds given for value rank before voluntary bonds unless assigned for value, and as between simple contract debts those due to the crown have priority. Though the creditors can if necessary take all the estate of the deceased to satisfy their claims, yet as between the various classes of assets the representative must pay the debts out of assets in the following order: (i.) General personal estate not specifically bequeathed nor exempted from payment of debts; (ii.) real estate appropriated to debts; (iii.) real estate descended; (iv.) real estate devised charged with payment of debts; (v.) general pecuniary legacies pro rata; (vi.) specific legacies and devises; (vii.) real estate over which a general power of appointment has been exercised by will; (viii.) the widow’s paraphernalia.