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RELEASE.

Executorship.

No. CCCCLIV.

A Release (1) (or Relinquishment) of an Executorship.

Parties.

Recital of will appointing ex

ecutors.

day of

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THIS INDENTURE made the in the year of our Lord 18 between (the releasing executor) of, &c. one of the executors named in the last will and testament of (the testator) of, &c. deceased, of the one part, and (the acting executor) of, &c. one other executor named in the said will, of the other part. WHEREAS the said (testator) made his last will and testament in writing, bearing date on or about the day of in the year of our Lord and thereby appointed the said (releasing executor) and the said (acting executor) joint executors of his said will. AND WHEREAS the said testator soon afterwards departed this life without revoking or altering his said will, which soon after his decease was duly proved in the prerogative court of the Archbishop of Canterbury, by the said (releasing and acting executor). AND WHEREAS the said quish his trust. (releasing executor) is desirous of being discharged from the execution of the trusts reposed in him by the said will (2). Now THIS

Death of testator and probate

of the will.

Desire of executor to relin

Where release

necessary.

(1) A release by an executor is necessary only where he has either of executorship proved the will of the testator, or done some other act in relation to the testator's affairs, which might be construed into an acceptance of the executorship, till when no part of the testator's effects is considered as having vested in him. Where therefore this has not been the case, a renunciation in the form given post. tit. RENUNCIATION, will be sufficient, but as a very trifling interference in the testator's concerns beyond what was necessary for the immediate preservation of his property as a friend of the testator, would constitute him an acting executor, the precaution is usually taken of having a release of all his interest in the testator's effects as executor, in addition to a simple renunciation.

An executor having acted can be dis

charged only by

(2) Executors appointed by a testator are not obliged to take upon themselves the executorship, but in order to be discharged they must either wholly renounce, and not act at all, or if they have acted and

RELEASE.

Executorship.

WITNESS.

The releasing

executor relin

And releases his interest in the

testator's effects to his co-execu

tor.

INDENTURE WITNESSETH, that in pursuance of such desire he the said (releasing executor) HATH relinquished and given up, and by these presents DOTH relinquish and give up all and every the executorship, and right and title of probate, power and authority of him the said (releasing executor) to act under or by virtue of the said herein- quishes the before in part recited will of the said (testator) deceased, or to perform executorship. all or any of the trusts or directions therein contained. AND also that he the said (releasing executor) HATH remised, released, and for ever quitted claim, and by these presents DOTH for himself, his heirs, executors and administrators, remise, release, and for ever quit claim unto the said (acting executor), (as such acting and only surviving and proving executor as aforesaid,) his executors, administrators and assigns, ALL and every the lands, tenements, hereditaments, goods, chattels and effects, of what nature or kind soever, which is, are, or have, or hath been vested in him the said (releasing executor), as such executor as aforesaid; and all the estate, right, title, interest, term or terms for years, property, claim and demand whatsoever, both at law and in equity, of him the said (releasing executor), in, to, or concerning the same, or any part thereof, under or by virtue of the hereinbefore in part recited will of the said (testator) deceased, and probate thereof, or otherwise howsoever (1). TO HAVE AND TO HOLD the said lands, tenements, hereditaments, goods, chattels and effects, hereby released, or intended so to be, unto the said (acting executor), his executors, administrators and assigns, upon, with, under and subject to the trusts, powers and directions, and to and for the ends, intents and purposes, in the said hereinbefore in part recited will of the said (testator) deceased contained, concerning the same respectively, or such and so many of them as are, is or may be unperformed or capable of taking effect. And the said (acting executor) for himself, his heirs, executors, and administrators, doth hereby covenant, promise and agree, with and to the said (releasing

Covenant by acting executor to indemnify releasing executor.

taken upon themselves that character, they cannot be absolutely dis- a court of charged from their liability but by application to a court of equity. equity. Doyle v. Blake, 2 Sch. and Lef. 245; but as this is attended with considerable delay and expense, releases are frequently given where the resigning executor has full confidence in his co-executor.

(1) If there be any legacy given to the executor by the testator which Legacy to

it is not intended to release, say,

"Save only and except the said legacy or sum of £

so given

or bequeathed to him the said (releasing executor) as in the said will is mentioned."

executor.

RELEASE.

executor), his executors and administrators, that he the said (acting Executorship. executor), his executors, administrators or assigns, shall and will from time to time, and at all times hereafter, well and sufficiently save harmless and keep indemnified the said (releasing executor), his heirs, executors and administrators, and their and every of their real and personal estates and effects, of and from (1) all and every the acts, deeds, payments, matters and things whatsoever, now and already, or at any time hereafter, by the said (acting executor), his executors or administrators, to be done, made or committed, of, or concerning the estate and effects of the said (testator) deceased, or any part thereof. AND ALSO of, from and against all and all manner of actions, suits, costs, charges, damages and expenses, which shall or may at any time hereafter be brought or commenced against him the said (releasing executor), his executors or administrators, or which he or they shall pay, expend, sustain, or be put unto for or by reason or on account of any such act, deed, matter or thing as aforesaid, touching or concerning the premises. IN WITNESS, &c.

Covenant of indemnity by acting executor should be

(1) It can scarcely in general cases be expected that a continuing executor should indemnify the resigning executor against any consequences which may arise by his own voluntary act of resignation, but if such a covenant be inserted, it should be confined to the acts of the confined to his continuing executor as in the above form.

own acts.

Stamp.

See post. " STAMP", Schedule.

No. CCCCLV.

A Release of a Jointure by the Widow to the Heir (1).

THIS INDENTURE made the

day of

in the

year

RELEASE.

Jointure.

of the reign, &c. and in the year of our Lord 18, BETWEEN (the jointress) of, &c. of the one part, and (the releasee) of, &c. of the

and

days of

,

which tion of rentcharge by way of jointure.

other part. WHEREAS by indentures of lease and release bearing Recital of limitadate respectively the was in the year , the release being made between, &c. and purporting to be a settlement made in contemplation of a marriage then intended, and which was afterwards had and solemnized between the said (husband) and the said (jointress), certain messuages, lands, tenements and hereditaments therein particularly described, were limited unto the said (trustees) and their heirs, from and after the solemnization of the said intended marriage, TO THE USE of the said (husband) for the term of his natural life, and from and after his decease, To THE USE, intent, and purpose that the said (jointress) in case she survived the said (husband) might receive and enjoy an annuity, yearly rent-charge, or annual sum of £

to be issuing and payable out of the said hereditaments and premises, for the term of her natural life, at the times and in the manner therein mentioned, with powers of distress and entry upon and perception of the rents and profits of the said hereditaments, in case the said annuity should be in arrear; and subject thereto, TO THE USE of the said (trustees), their executors, administrators and assigns, for the term of 1000 years, upon trusts for the better securing the same, in the manner therein mentioned, with remainder To THE USE of the

(1) This release can only be where a rent-charge was limited to the jointress by way of jointure, for, if any part of the estate itself were settled upon her, it must, like all other estates in land, be conveyed by a deed capable of operating by way of transmutation of possession.

Conveyance necessary where

land limited,

RELEASE.

Jointure.

WITNESS.

The jointress releases her

jointure.

Consideration

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first and other sons of the said (husband) on the body of the said
(jointress) to be begotten, in tail male, with divers remainders over.
AND WHEREAS the said (husband) departed this life, leaving the
said (jointress) and also the said (releasee), his eldest son, him sur-
viving. AND WHEREAS the said (jointress) hath (1) at the request
of the said (releasee) agreed to release and give up the said annuity,
yearly rent-charge or annual sum, to which she is entitled under or
by virtue of the said hereinbefore in part recited indenture of settle-
ment, and to exonerate and discharge the said lands and heredita-
ments from the payment thereof, in the manner hereinafter mention-
ed. NOW THIS INDENTURE WITNESSETH, that in pursuance and
performance of the said agreement (2), SHE the said (jointress)
HATH remised, released and for ever quitted claim, and by these
presents DоTH freely and absolutely remise, release and for ever
quit claim unto the said (releasee), his heirs and assigns, ALL that
the said annuity, yearly rent-charge or annual sum of £
limited and secured to her in or by the said hereinbefore in part re-
cited indenture of the day of and all arrears thereof, and the
powers of distress and entry in or upon the messuages, lands, tenements,
hereditaments and premises comprised in the said indenture, and there-
by charged with the payment thereof, and all other powers and reme-
dies for recovering or compelling payment thereof; and all the estate,
right, title, interest, trust, property, possession, claim and demand
whatsoever, both at law and in equity, of her the said (jointress)
in, to or concerning the same; to the end and intent that the said
annuity, yearly rent-charge, and annual sum of £
may forth-
with sink into and be consolidated with the several messuages, lands,
tenements and hereditaments charged with the payment thereof, and
be utterly extinguished, annihilated and destroyed, and that the said
(releasee), his heirs and assigns, may hold, possess and enjoy the said
messuages, lands, tenements and hereditaments, freed and absolutely
discharged of and from the said annuity, yearly rent-charge, or an-
nual sum of £
and all claims and demands of her the
said (jointress) and all persons claiming by, from, under or in trust
for her, of, in, to, out of, or upon the same, or any part thereof.

(1) If the release be in consideration of a sum of money, or for the should be stated. purpose of enabling the heir to sell, &c. the recital should be made to correspond with the circumstances of the case.

Consideration of money.

(2) If the release be in consideration of a sum of money paid her by the heir, state the payment of it, and acknowledgement as in other cases. See ante, p. 656.

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