Case 6. A Lost Will

Caius had made several wills before his death, as was well known among his relatives. When he died, Titius succeeded to his property, both movable and immovable, by virtue of the latest will that was found, although it was commonly thought that Caius had afterward made another; because it was not found after his death, however, the relatives thought that it had been destroyed. Titius had possessed the inheritance for several years when, by chance, while reading in the library, it happened that he found in a certain book the truly last will of Caius, which was thought to have been destroyed. By this last will all the property of Caius had been left to Paul, a cousin of Titius, and among the burdens with which the immovable goods were charged there was one of paying a debt of one hundred pounds to Sempronius, which had never been paid because Sempronius had not been able to prove the debt after the death of Caius. Titius preserves deep silence toward others concerning the will that was found, but asks a confessor whether he is bound to hand over the inheritance to Paul or to pay the debt to Sempronius. Hence it is asked:

1. What is an executor of a will, and what are his duties?

2. What is to be said of the case?

1. What is an executor of a will, and what is his duty?

A will usually designates a person to whom the testator commits the execution of his last will and testament. This person is called the executor of the will. If no executor has been appointed in the will, his place is taken by an administrator appointed by the Court. After burying the deceased the executor's duty is to prove the will in the Probate Division of the High Court of Justice. On proving the will and fulfilling the duties laid on him by law the executor receives a copy of the will of which he is the executor, and this constitutes his title to act. It confers on him the right to administer the testator’s property in accordance with the terms of the will. The executor must collect the effects of the deceased, pay his debts, and then he must pay the legacies if there were any in the will.

2. The case. Titius succeeded to the estate of Caius according to the terms of the last will which was found after Caius' death. Some years elapsed before Titius discovered another and later will of Caius in a book in the library. By this really last will all the property of Caius was left to Paul, a cousin of Titius, with the exception of £100 which was a debt due to Sempronius, who had claimed the money after Caius' death, but as he had not been able to prove his debt it had never been paid. The question is: Whether Titius is bound to hand over the property to Paul and to pay the £100 to Sempronius. The answer is: No. The title of Titius is derived from the will which was proved after the death of Caius; according to that will the property of Caius was duly administered according to law, and the transaction is closed, nor can it be re-opened because of the finding of a later will after the lapse of several years.