It is not necessary at this point to study family rights in the German tribes.For it is not disputed that the modern executor derives his characteristics from the Roman heir.Wills also were borrowed from Rome, and were unknown to the Germans of Tacitus.
Administrators were a later imitation of executors, introduced by statute for cases where there was no will, or where, for any other reason, executors were wanting.
The executor has the legal title to the whole of the testator's personal estate, and, generally speaking, the power of alienation.Formerly he was entitled to the undistributed residue, not, it may fairly be conjectured, as legatee of those specific chattels, but because he represented the person of the testator, and therefore had all the rights which the testator would have had after distribution if alive.The residue is nowadays generally bequeathed by the will, but it is not even now regarded as a specific gift of the chattels remaining undisposed of, and I cannot help thinking that this doctrine echoes that under which the executor took in former times.
No such rule has governed residuary devises of real estate, which have always been held to be specific in England down to the present day.So that, if a devise of land should fail, that land would not be disposed of by the residuary clause, but would descend to the heir as if there had been no will.
Again, the appointment of an executor relates back to the date of the testator's death.The continuity of person is preserved by this fiction, as in Rome it was by personifying the inheritance ad interim.
Enough has been said to show the likeness between our executor and the Roman heir.And bearing in mind what was said about the heres, it will easily be seen how it came to be said, as it often was in the old books, that the executor "represents the person of his testator." The meaning of this feigned identity has been found in history, but the aid which it furnished in overcoming a technical difficulty must also be appreciated.If the executor represents the person of the testator, there is no longer any trouble in allowing him to sue or be sued on his testator's contracts.In the time of Edward III., when an action of covenant was brought against executors, Persay objected: "I never heard that one should have a writ of covenant against executors, nor against other person but the very one who made the covenant, for a man cannot oblige another person to a covenant by his deed except him who was party to the covenant." But it is useless to object that the promise sued upon was made by A, the testator, not by B, the executor, when the law says that for this purpose Bis A.Here then is one class of cases in which a transfer is accomplished by the help of a fiction, which shadows, as fictions so often do, the facts of an early stage of society, and which could hardly have been invented had these facts been otherwise.
Executors and administrators afford the chief, if not the only, example of universal succession in the English law.But although they succeed per universitatem, as has been explained, they do not succeed to all kinds of property.The personal estate goes to them, but land takes another course.All real estate not disposed of by will goes to the heir, and the rules of inheritance are quite distinct from those which govern the distribution of chattels.Accordingly, the question arises whether the English heir or successor to real estate presents the same analogies to the Roman heres as the executor.
The English heir is not a universal successor.Each and every parcel of land descends as a separate and specific tiling.
Nevertheless, in his narrower sphere he unquestionably represents the person of his ancestor.Different opinions have been held as to whether the same thing was true in early German law.Dr.
Laband says that it was; Sohm takes the opposite view. It is commonly supposed that family ownership, at least of land, came before that of individuals in the German tribes, and it has been shown how naturally representation followed from a similar state of things in Rome.But it is needless to consider whether our law on this subject is of German or Roman origin, as the principle of identification has clearly prevailed from the time of Glanvill to the present day.If it was not known to the Germans, it is plainly accounted for by the influence of the Roman law.If there was anything of the sort in the Salic law, it was no doubt due to natural causes similar to those which gave rise to the principle at Rome.But in either event I cannot doubt that the modern doctrine has taken a good deal of its form, and perhaps some of its substance, from the mature system of the civilians, in whose language it was so long expressed.For the same reasons that have just been mentioned, it is also needless to weigh the evidence of the Anglo-Saxon sources, although it seems tolerably clear from several passages in the laws that there was some identification. As late as Bracton, two centuries after the Norman conquest, the heir was not the successor to lands alone, but represented his ancestor in a much more general sense, as will be seen directly.
The office of executor, in the sense of heir, was unknown to the Anglo-Saxons, and even in Bracton's time does not seem to have been what it has since become.There is, therefore, no need to go back further than to the early Norman period, after the appointment of executors had become common, and the heir was more nearly what he is now.
When Glanvill wrote, a little more than a century after the Conquest, the heir was bound to warrant the reasonable gifts of his ancestor to the grantees and their heirs; and if the effects of the ancestor were insufficient to pay his debts, the heir was bound to make up the deficiency from his own property.
