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. 1 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 [345] 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.” 1 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.” 2 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 B is 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.