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.
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.
EXELMANS, RENÉ JOSEPH ISIDORE, Count (1775–1852),
marshal of France, was born at Bar-le-Duc on the 13th of
November 1775. He volunteered into the 3rd battalion of the
Meuse in 1791, became a lieutenant in 1797, and in 1798 was aide-de-camp
to General Éblé, and in the following year to General
Broussier. In his first campaign in Italy he greatly distinguished
himself; and in April 1799 he was rewarded for his services by
the grade of captain of dragoons. In the same year he took
part with honour in the conquest of Naples and was again promoted,
and in 1801 he became aide-de-camp to General Murat.
He accompanied Murat in the Austrian, Prussian and Polish
campaigns of 1805, 1806 and 1807. At the passage of the
Danube, and in the action of Wertingen, he specially distinguished
himself; he was made colonel for the valour which he
displayed at Austerlitz, and general of brigade for his conduct
at Eylau in 1807. In 1808 he accompanied Murat to Spain,
but was there made prisoner and conveyed to England.
On regaining his liberty in 1811 he went to Naples, where
King Joachim Murat appointed him grand-master of horse.
Exelmans, however, rejoined the French army on the eve of the
Russian campaign, and on the field of Borodino won the rank of
general of division. In the retreat from Moscow his steadfast
courage was conspicuously manifested on several occasions.
In 1813 he was made, for services in the campaign of Saxony
and Silesia, grand-officer of the Legion of Honour, and in 1814
he reaped additional glory by his intrepidity and skill in the
campaign of France. When the Bourbons were restored,
Exelmans retained his position in the army. In January 1815
he was tried on an accusation of having treasonable relations
with Murat, but was acquitted. Napoleon on his return from
Elba made Exelmans a peer of France and placed him in
command of the II. cavalry corps, which he commanded in
the Waterloo campaign, the battle of Ligny and Grouchy’s
march on Wavre. In the closing operations round Paris
Exelmans won great distinction. After the second Restoration
he denounced, in the House of Peers, the execution of
Marshal Ney as an “abominable assassination”; thereafter he
lived in exile in Belgium and Nassau for some years, till 1819,
when he was recalled to France. In 1828 he was appointed
inspector-general of cavalry; and after the July revolution of
1830 he received from Louis Philippe the grand cross of the Legion
of Honour, and was reinstated as a peer of France. At the
revolution of 1848 Exelmans was one of the adherents of Louis
Napoleon; and in 1851 he was, in recognition of his long and
brilliant military career, raised to the dignity of a marshal of
France. His death, which took place on the 10th of July 1852,
was the result of a fall from his horse.
