1 Reynolds v. Nelson, 6 Madd. 18. 2 King v. King, 1 My. & Kee. 442. "Peake's Ca. 192; Kirtland the other, if he intend to rescind it, should give clear notice of his intention 1. Where a party had contracted to purchase, and had been eight years in possession of the premises, to which the vendor was unable to make a good title, and refused either to abandon the agreement or to accept such title as the vendor could give, having paid no part of the purchase-money and no rent, the court, upon a bill filed by the vendor for relief, ordered the agreement to be delivered up to be cancelled, and the rents and profits received by the purchaser: and, his "improper conduct having made the suit necessary," that he should pay the costs of the suit 2. A Purchaser let into Possession before the Completion of Contract-nature of his Tenancy.]-Where a purchaser has been let into possession under the agreement, or consistently with it, the relation of landlord and tenant is not thereby created; and hence it seems to be doubtful whether if the vendor should be unable to make a good title, he can in any case maintain an action against the purchaser for the intermediate profits3; but, on the other v. Pounsett, 2 hand, as the possession is lawful, and with the consent of the owner of the estate, ejectment does not lie against the purchaser without a demand of possession and refusal to quit 4, unless there was, at the time of his taking possession, an agreement that he should quit, if he did not pay the purchase-money on a given day, or the like; in which case, the agreement operating in the same manner as a clause of re-entry on breach of contract in a lease, ejectment will lie against the purchaser without notice on the non-performance of his agreement 5. Taunt. 45. *Doe v. Jack son, 1 Barn. & Cress. 448. Doe v. Sayer, 3 Camp. 8. • Seaton v. Booth, 4 Ad. & When by the conditions of sale it was stipulated that "the vendor should deliver an abstract of title, that the conveyance should be executed, and the whole purchase-money paid on a certain day, from which time the purchaser should have possession; and that if the purchaser should be let into possession before payment of the purchase-money, he should be considered as tenant at will to the vendor, and pay interest, at the rate of 4 per cent., on the amount of the purchase money, as and for rent;" no abstract was delivered, but the purchaser was let into possession, and held for several years without paying the purchasemoney: it was held, that there being no evidence of an express contract by the purchaser to waive the delivery of the abstract, no such contract could be implied at law from the mere circumstance of his being let into possession-the remedy was to be sought in equity 6. And where, by the agreement which was under seal, it 498. 2 Magennis v. Fallon, 2 Moll. 584, per Hart, C. was provided, that the purchaser might require the purchasemoney to remain a charge upon the estate for a certain number of years, and the purchaser was to be considered as a tenant to the vendor, at a rent equal in amount to the interest, and the vendor was to have power to distrain, as between landlord and tenant: it was held that this was substantially an agreement for a purchase, and did not become a lease or an agreement for a lease by reason of the power of distress contained in it 1. ' Hopev. Booth, Intermediate Acts of Waste are a good Ground for rescind- 1 Barn. & Ad. ing the Contract.]-When difficulties arise to delay the completion of a sale, and during the interval of making out a title ordinary dilapidation takes place, that is a case for compensation; but, if a destruction of ornamental timber, that is a ground for a purchaser to rescind the contract 2. In the case cited, pending a reference as to title, and before a title was shewn under which the purchaser could safely take possession, the vendor had cut down certain ornamental timber trees standing on the lawn in front of the house, as well as several other trees. The purchaser further alleged, that he had bid for the property as a residence, and that the quality of the place as a residence was altered and deteriorated by the destruction of the ornamental timber. It appeared, that nothing was said of ornamental timber at the time of sale; but the house was represented as fit for the residence of a respectable family, and the demesne well wooded; and, at the time of the bidding, a map of the premises was exhibited, upon which several clumps and single trees were delineated, tastefully disposed. It was admitted that some of these trees had been cut down. Hart, C., said, "I must discharge this purchaser. I shall not go into the quantum of despoliation of ornament. The destruction of one beautiful tree would be sufficient; and the question is, is it such an accident and appendage as admits of pecuniary compensation. The purchaser swears he did not buy this estate for income to be derived from farming the land, but for a residence. By reference to the map, it appears an attractive place of residence; for that purpose it might have a value beyond the real value. But that adventitious value is taken away, and there is no instance of a court of equity, under such circumstances as these, compelling a purchaser contracting for the purchase of a house and demesne fit for residence, and embellished with ornamental timber, when ornamental timber has been cut down between the contract and possession given, or title shewn, to complete the purchase. I say ornamental trees, for ordinary timber cut down would be ' Ib. 588. * Ib. 593. matter of compensation1." And, on a subsequent day, "I repeat, that, when the purchaser contracting to sell, can be shewn to have laid the axe to a single ornamental tree, it would be very difficult to induce me to hold the purchaser and enforce the contract 2." In re Fry, 1 Hagg. 86. • In re Aird, 1 Hagg. 336. No. II. Appointment of Executors.]—An executor is the person to whom the execution of a last will and testament is confided by the testator's appointment. The appointment may be either express or implied, absolute or qualified, exclusive or in common with others his co-executors. He may be expressly appointed, and as well by a nuncupative as a written will; or he may be appointed merely by implication or construction, as by the testator imposing on him duties which belong to an executor, or conferring on him rights which properly belong to the office, or any other circumstance from which the testator's intention to make him executor may be directly inferred: hence, as paying debts and funeral expenses, and expenses of proving a will, is performing the office of executor, a direction to certain persons to pay debts, funeral expenses, and expense of probate, is to appoint them executors3. His appointment may be either absolute or qualified. It is absolute when he is constituted certainly, immediately, without any restriction in regard to the testator's effects, or any limitation in point of time. It may be qualified, as where a person is appointed executor at a given period after the testator's death, or during the absence of A., or on condition that he give securities to pay the legacies, or, generally, to perform the will. So, one person may be made executor in regard to his plate and household goods; another, in regard to his debts; a third, in regard to his leases, &c.: or, one person may be appointed as to his effects in one country; and another, as to his effects in another. Where a person is appointed limited executor in a will, he may be appointed general executor in a codicil by implication and without express words. So, two persons may be named executors; and if they will not act, then two others may be substituted in their place: and in this case, where a testator appoints two executors by his will, and also in the event of the death of either of the two, nominates and appoints two other persons to act as executors in their stead, on the death of the original executor who had proved the will, and on a proxy of consent from the other, the court will grant probate to one of the substituted executors, where it appears to have been the testator's intention that the substitution should take place on the death of either of the original executors, whether that event took place in the lifetime of the testator or subsequently 1. Where a married woman living separate from her husband, was joined in the probate of a will, (authorizing her "to act as executrix in all respects without her husband"), but not having intermeddled, the court, on the Bank refusing to transfer stock without her husband's joining in it, will revoke such probate, and decree a new probate to the remaining executors, with a power reserved to her2. 1 In re Lighton, 1 Hagg. 235. Meek v. Cur 129. Lastly, an executor may be appointed either alone or in con- tis, 1 Hagg. junction with others; and, in the latter case, they are all considered in law in the light of an individual person. 3. 6. What Persons are capable of taking the Office of Executor.] -The king may be appointed executor; but he has a right to nominate persons to execute the trust for him, and auditors, to whom such nominees shall account. Corporations aggregate may be named executors; and, on being so named, may appoint persons, styled syndics, to receive administration with the will annexed, who are sworn like all other administrators. An infant, or even a child en ventre sa mère, may be appointed executor; and if the mother have more than one child, they shall all be entitled; but an infant, though appointed, is disqualified by statute3 38 G. 3, c. 87, from acting until he attains twenty-one, and an administrator is substituted to act for him in the interval. A feme covert, with the consent and concurrence of her husband, may be executrix, even if she be an infant, if her husband be of full age and consent; but he will have the execution of the will. A person excommunicated until absolution,—an alien, belonging to a country at war with us, and residing abroad or here, without the king's license, -persons who are without common understanding, or do not possess the common inlets of knowledge,—are incapable of the office of executor or administrator. But a foreigner who belongs to a country at peace with us, or an alien enemy resident here with the king's license, and a person outlawed or attainted, may be executors. Executor de son Tort.]-If a person assume the executorship without any authority from the testator, he is called an exeA A A 2 1 Padget v. Priest, 2 T. R. 99. cutor de son tort; or an executor of his own wrong. There are various acts which constitute such an executor; as dwelling in the deceased's house, and carrying on his business; taking possession of the assets, and converting them to his own use; paying his debts, or suing for them, or releasing them; and, in general, any acts of a similar character, and which afford indicia of the party so interfering being the representative of the deceased. There are, however, several acts which a stranger may do, without risking the hazard of being involved in the executorship; as directing the funeral in a manner suitable to the estate of the deceased, or defraying its expenses out of his own or the effects of the deceased, taking an inventory of his property, advancing money to pay the debts and legacies, feeding cattle, &c., for these are merely acts of kindness and charity. In general, however, there can be no executor de son tort where there is a rightful executor, or administration has been granted; for if a stranger, in this case, intermeddle with the property of the deceased, he is a trespasser; but, it seems, if, after taking such possession, he claim to be executor, pay or receive debts, pay legacies, &c., or otherwise intermeddle in that character, he becomes an executor de son tort. Whether a party has made himself executor de son tort is not a question of fact for a jury, but a question of law for the court1. Renouncing the Executorship.]-An executor may decline to act, but cannot assign his office. If he refuse, he cannot be compelled to accept the executorship; he cannot refuse in part, but must renounce entirely, or not at all. A refusal by any act in païs, as a mere declaration to that purpose, is insufficient; in order to give it validity, the refusal must be solemnly entered and recorded in the spiritual court before the ordinary, and then administration with the will annexed will be granted to another. If the ordinary himself be nominated executor, he may renounce before the commissary. If the executor refuse to take the usual oath, or being a quaker to make the affirmation, this is a refusal, and shall be so recorded. If he renounce in person, he makes oath that he has not and will not intermeddle with the effects of the deceased, with any view to defraud the creditors; if he renounce by proxy, the oath is not enforced. After such refusal and administration granted, the party nominated executor is incapable of assuming the executorship during the life of such administrator; but though an executor who has |