The History of the Testamentary Executor
(a) A Creation of Legal Practice
As far as Roman law, Canon law, and the customary laws of late antiquity and the early medieval period are concerned the history of the testamentary executor provides a good example.[506] Classical Roman law had not known this institution.[507] None the less, in the Digest we find a number of fragments where a person or public authority other than the heir has to carry out the will of the testator.[508] This was an inchoate executorship which may have been based on the legal practice in the Greek provinces of the Roman Empire.
It was used, particularly, with regard to testamentary dispositions ad pias catisas which had become very common by Justinian's time.[509] In medieval Germanic law, on the other hand, we find the notion of Salmann or Treuhand: a specific part of the estate, or even the entire estate, was transferred to a person or institution in whom the transferor had confidence, with certain instructions about the final disposition of the property.[510] This transaction constituted a substitute for the testament which was unknown in Germanic customary law.It was the medieval Church that combined the Treuhand concept with the Roman notion of the last will as a unilateral disposition mortis causa.[511] The Church, of course, was keen to encourage dispositions ad pias causas and therefore equally eager to promote the last will as a convenient means of effecting that goal.[512]' Thus, on the one hand, the Church relaxed the formal requirements for the validity of the Roman testament. On the other hand, the testament was converted, essentially, into a spiritual instrument. 'Caput et fundamentum testamenti'[513] was no longer the institution of an heir but the bequest pro animae remedio.[514] [515] This bequest had to be saved—in the interest of the testator's soul!— from invalidity at all costs.[516]’ Al the same time, a person, or institution, was needed to implement that disposition: a fiduciary who acted in the best interests of the testator. This was the executor. He was referred to as executor testament i, or executor ultiniae voluntatis, and features prominently in title XXVI of the Liber Extra. The popes emphatically insisted that 'in omnibus piis voluntatibus' everything had to be carried out in accordance with the wishes of the testator[517] and they therefore made it their business to see to it that the executor did not neglect his duties. Generally speaking, the Church could be involved on two different levels. The testator might have appointed a cleric as executor; but even if he had not, the Church sought to ensure that the person appointed properly distributed the bequests ad pias causes. Moreover, it stepped into the breach when the testator had merely left his property to Christ, or to the Angels, or to the poor, without naming any specific person to implement these instructions. (b) The Testamentary Executor Today Thus, the executor was a creation of legal practice that developed at the intersection between Roman law, Canon law, and medieval customary law of Germanic derivation. Not surprisingly, contemporary learned authors found it very difficult to conceptualize this new institution:[518] was the executor a mandatary, or a procurator/tutor/curator, or a negot iorum gestor? Was he a fideicommissary? Or an heres fiduciarius? Centuries of discussion were required to provide a suitable doctrinal framework and to integrate the executor into the general law of succession. The results of these discussions, and of the way in which legal practice developed, were different everywhere.[519] The Austrian Code devotes a single section to the executor. This is indicative of the fact that his position is largely redundant in view of a system of comprehensive and obligatory official estate supervision. Of marginally more substantial stature is the executor according to French law where estate regulation was regarded as an essentially private matter, even before the French Revolution. In Germany, as in France or Austria, an executor need not be instituted. But if he is—and that is often the case—his position is very powerful. Particularly the institution of a long-term administrative executor leaves the heir with hardly more than a nudum ius.[520] He is about as powerful as the executor in English law, the important difference being, of course, that there he came to be seen as a representative of the deceased and was, eventually, equated with the Roman heres.[521] Unlike on the European Continent, there was no need to coordinate the position of heir and executor with regard to the estate. None the less, the English executor is rooted in the same historical soil as his Continental counterparts. He might still be referred to, in the learned language of the Middle Ages, as heres fiduciarius.
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