5. The debts of the deceased being satisfied, the representative must next proceed to satisfy the legacies and devises left by the testator. In order to enable him to do this with safety to himself, it is provided that he cannot be compelled to divide the estate among the legatees or next of kin until twelve months from the death of the deceased (this is commonly known as “the executor’s year”), though if there is no doubt as to the solvency of the estate he may do so at once. As a further protection the representative may give notice by advertisement for creditors to send in their claims against the estate, and on expiration of the notices he may proceed to divide the estate, though even then the creditor may follow the assets to the person who has received them and recover for his debt. As between legatees the following priorities must be observed: (1) Specific legatees and devisees, (2) demonstrative legatees, and (3) general legatees; and as to this last class the testator can give priority to one over another. If there are not sufficient assets to pay the general legatees they must abate rateably. Legacies were not payable out of the real estate prior to the Land Transfer Act 1897, unless the testator charged the realty with them. Even then unless the testator exonerates his personalty from payment of the legacies the personalty will be the first fund chargeable. It has been suggested that the effect of the act is to make the realty chargeable pro rata with the personalty, but this is doubtful.
6. The residue, after all legacies and devises are satisfied, must, if there be a will, be paid to the residuary legatee therein named, and if there be no will the real estate will go to the heir (see [Inheritance]) and the personalty to the next of kin (see [Intestacy]). It was held at one time that in default of a residuary legatee the residue fell to the executor himself, but now nothing less than the expressed intention of the testator can give it to him.
The liabilities of the representative may be shortly stated. He is liable in his representative capacity in all cases where the deceased would be liable were he alive. To this general rule there are some exceptions. The representative cannot be sued for breach of a contract for personal services which can be performed only in the lifetime of the person contracting, nor again can he be sued in a case where unliquidated damages only could have been recovered against the deceased. He is liable in his personal capacity in the following cases: if he contracts to pay a debt due by the deceased, or if having admitted that he had assets in his hands sufficient to pay a debt or legacy he has misapplied such assets so that he cannot satisfy them; or lastly, if by mismanaging the estate and effects of the deceased he has made himself liable for a devastavit. Shortly stated, a representative is bound to exercise the ordinary care of a business man in administering the estate of the deceased, and he will be liable for the loss to the estate caused by his own negligence, or by the negligence of a co-representative which his act or neglect has rendered possible. Though the general rule of delegatus non potest delegari holds good of a representative, yet in certain cases he may “rely upon skilled persons in matters in which he cannot be expected to be experienced,” e.g. he must employ solicitors to conduct a lawsuit.
The privileges of the representative are these: he may prefer one creditor to another of equal degree; he may retain a debt owing to him from the deceased as against other creditors of equal degree (see [Retainer]); he may reimburse himself out of the estate all expenses incurred in the execution of his trust.
An executor de son tort is one who, without any title to do so, wrongfully intermeddles with the assets of the deceased, dealing with them in such a way as to hold himself out as executor. In such a case he is subject to all the liabilities of an executor, and can claim none of the privileges. He may be treated by the creditor as the executor, and, if he is really assuming to act as executor, creditors and legatees will get a good title from him, but he is liable to be sued by the rightful representative for damages for interfering with the property of the deceased.
Scotland.—Executor in Scots law is a more extensive term than in English. He is either nominative or dative, the latter appointed by the court and corresponding in most respects to the English administrator. Caution is required from the latter, not from the former. By the common law doctrine of passive representation the heir or executor was liable to be sued for implement of the deceased’s obligations. The Roman principle of beneficium inventarii was first introduced by an act of 1695. As the law at present stands, the heir or executor is liable only to the value of the succession, except where there has been vitious intromission in movables, and in gestio pro haerede (behaviour as heir) and other cases in heritables. The present inventory duty on succession to movables and heritables depends on the Finance Acts 1894-1909 (see [Estate Duty]). In England the executor is bound to pay the debts of the deceased in a certain order, but in Scotland they all rank pari passu except privileged debts (see [Privilege]).
Authorities.—R.L. Vaughan Williams, The Law of Executors and Administrators; W.G. Walker, Compendium on the Law of Executors and Administrators; James Schouler, Law of Executors and Administrators (3rd ed., Boston, 1901).
EXEDRA, or Exhedra (from Gr. ἐξ, out, and ἕδρα, a seat), an architectural term originally applied to a seat or recess out of doors, intended for conversation. Such recesses were generally semicircular, as in the important example built by Herodes Atticus at Olympia. In the great Roman thermae (baths) they were of large size, and like apses were covered with a hemispherical vault. An example of these exists at Pompeii in the Street of the Tombs. From Vitruvius we learn that they were often covered over, and they are described by him (v. 11) as places leading out of porticoes, where philosophers and rhetoricians could debate or harangue.