^B' ^ tj&5t UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY "h ** ). ^:.m m ^ Li-, ^OSANGEl^ lOSANGEIfXy I ^^TOIWD-JO fi a 'i '11 jj U 1 i f -t IC3I ^oxm ,OFCALIF0% <::£^/A LAW OP EXECUTORS AND ADMINISTRATORS. By Sir SAMUEL TOLLER, Knight, XATE ADVOCATE GENERAl AT MADRAS. WITH CONSrIDERABLE ADDITIONS. By FRANCIS WHITMARSH, Esq. OF gray's inn, barrister at law. THE SECOND AMERICAN, FROM THE FIFTH tONDON EDITION : ^VITH NOTES, AND REFERENCES TO AMERICAN AUTHORITIES. By THOMAS F. GORDON, Esq. OF THE PHILADELPHIA BAR. Sorte supremS. Permutat Dominos, et cedit in altera jura. Hoe. FHILADELPHIJi : PUBLISHED BY THOMAS DESILVEB, NO. 253, MARKET STREET. L. R. BAILET, PRINTER, 1824. n <» V. ^% T T57e7e EASTERN DISTRJCT OF PPiNNSYLVANiA, to wit: BK IT lili.MKMBERED, That on the fifth day of February, io (L. S.) the forty-eighth year of the Independence of the United Slates of America, A D. 1824, Thomas Desilter, of the said District, hath deposited in this office the Title of a Book, the right whereof he claims as Proprietor, in the words following', lo wit : " The Law of Executors and Administrators. By Sir Samuel Toller, Knight, " late Advocate General at Madras. With considerable additions. By Francis " Whitmarsh, Esq of Grav's Inn, Barrister at Law. The second American, "from the fifth London edition: with Notes, and references to American autho- **x*ities. By Thomas F. Gordon, Esq of ihe Philadelphia Bar. " Sorte suprema " Permutat Dominos, et cedit in altera jura, Hor." In cbnformity to the Act of the Congress of the United States, intituled, "An Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned." And also to the Act, entitled, " An Act supple- mentary to an Ac, entitled, 'An Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of sucii copies during the times therein rpentioned,' and extendmg the benefits thereof to the arts of designing, engraving, and etching historical and other prints." D. CALDWELL, Clerk of the Eastern District of Pennsylvania ,•*> ft "84 ADVERTISEMENT OF THE AMERICAN EDITOR. THE American Editor has endeavoured to give, in the Notes to thi^ Work, an outline of the law, in the several States, relating to wills, to executors and administrators, and to intestates. To give more than an outline would be impossible, even if it were practicable to procure all the statutes of the several States relating to the subject matter of the Work, unless the Editor could also acquire a knowledge of the various modifications which practice has giv- en to the law in allgHie States. He flatters himself, however, that he has succeeded in presenting to the Profession, a condensed and useful view of the law, relating to, the execution and probate of wills, tlie granting of letters testamentary and of administra- tion, the power of the executor and administrator over the real estate of the decedent, the application of real and personal assets to the payment of debts, the distribution of real and personal estate, and the iv ADVERTISEMENT. remedies for and against executors and administra- tors; and that he has added many valuable American authorities in support of the principles laid down in the text. The American authorities cited will be readily distinguished, throughout the book, by the italics in which they are printed, as will also the references in the index, to the notes. Philadelphia, Feh'y. 10, 1824. ADVERTISEMENT TO THE FIFTH EDITION, IN this Edition of " The Law of Executors and Administrators," the same plan has been pursued as in the last, viz. to make no alteration in the lan- guage of the original Work, and to introduce the variation in the law by way of addition or explana- tion. The Names of the Cases cited in the Work, and an alphabetical List of tliem, have been added to the present Edition. Lincoln^ s Inn, August, 1822. PREFACE THE FIRST EDITION. THE subject of the following treatise compre- hends a great variety of points, in which the public are very generally interested. In the ordinary course of human affairs, almost all persons, at some period of their lives, are called to exercise the office of a personal representative, or to transact business with such as are invested with it. An attempt, there- fore, to unfold its nature, to describe its rights, and to point out its duties, as there is no modern work of any reputation which professes exclusively to treat of these topics, will, I persuade myself, be re- garded with favour. The book of the most distinguished merit on this subject, is that which is entitled " The Office, and Duty of Executors ;" and which, although it bear the name of Thomas Wentworth, is now gene- rally ascribed to Mr. Justice Dodderidge. It was vi PREFACE TO THE FIRST EDITION. first publislied anonymously in the year 1641 : to the third edition, printed in the same year, was pre- fixed for the first time the fictitious name I have just mentioned. The eighth edition appeared in 1689, to which Chief Baron Comyns, in his Digest, constantly refers. In 1703, the ninth edition was published, with a supplement by H. Curzon : the twelfth edition was published in 1762, with refer- ences by a Gentleman of the Inner Temple ; and in 1774, the thirteenth and last edition, by Mr. Ser- jeant Wilson. Of the original work, it is no undue praise to as- sert, that it is worthy the pen of so learned an au- thor. It is calculated to engage the attention of the reader, and contains very sound principles, and au- thentic information. At the same time, it must be confessed, that it is often uncouth, and sometimes obscure, in its language ; altogether inartificial in its method ; and of necessity defective in regard to later adjudications ; which at law are numerous and important ; and in equity constitute a new system. It is also silent respecting the office of an adminis- trator. Nor is it much indebted to its several edi- tors. The supplement, as it is called, is a mere collection of cases, without order, and without pre- cision. PREFACE TO THE FIRST EDITION, vii Under these circumstances, I was induced to compile the present treatise. The subject appeared to me capable of an arrangement more natural and distinct than any which has hitherto been adopted. Such arrangement I have endeavoured to form, and to preserve. It has also been my object to comprise the multifarious matter, of which I have been treat- ing, within as narrow limits as it would admit ; and to express myself at once with brevity and with clearness. The authorities I have stated very fully in the margin, with a view of facilitating farther re- searches into points of a nature so interesting, and of so perpetual a recurrence. And it will afford me much satisfaction, if I shall have contributed to ex- tend so useful a species of knowledge. TABLE OP THE CONTENTS. BOOK I. Of the appointment of executors and administrators. CHAP. I. Page Of wills and codicils — wJio may make them — Tvho not— how they are cancelled — or revoked — hoxv republished i CHAP. II. Of the appointment of executors. Sect. I. Who may be an executor — who not — how he may be appointed - - - - 33 Sect. II. Of an executor de son ^orf— how a party be- comes so - 39 Sect. III. Of the renunciation or acceptance of an exe- cutorship - - - - - -43 (b) 46 A TABLE OF THE CONTENTS. Page Sect. IV. Of an executor before the probate of the will ------- Sect. V. Of the probate— jurisdiction of granting the same — of bona notabilia - - - 49 Sect. VI. Of the probate of nuncupative wills - 59 Sect. VII. Of the probate of the wills of seamen and marines ------ Sect. VIII. Of the probate under special circum- stances Sect. IX. Of caveats, revocation of probates, and ap- peals - - • - Sect. X. The effect of a probate— loss of the same— what is evidence of probate — effect of its revocation ------ 60 65 72 75 CHAP. III. Of the appointment &f administrators. Sect. I. Of general administrations — origin thereof — who entitled— of consanguinity - - 80 Sect. II. Of the analogy of administrations to probates 94 Sect. III. In regard to the acts of a party entitled previous to the grant - - - - 95 Sect. IV. Practice in regard to administrations - 96 Sect. V. Of special and limited administrations - 98 Sect. VI. Of administi'ations to intestate seamen and marines - - - - - - 109 Sect. VII. Of administrations in case of the death of the administrator, or of the executor, in- testate - - - - - - 114 Sect. VIII. How administration shall be granted — when void — when voidable — of repealing the same — how a repeal affects mesne acts 1 19 A TABLE OF THE CONTENTS. XI BOOK II. Of the rights and interests of executors and administrators. CHAP. I. Page Of the general nature of an executor^s or administrator's interest — Distribution of the subject with reference to the different species of the deceased's property - - 133 CHAP. II. Of the interest of an executor or administrator in the chattels real and personal. Sect. I. Of his interest in the chattels real - - 139 Sect, II. Of his interest in the chattels personal, ani- mate, vegetable, and inanimate - - 146 CHAP. III. Of the interest of the executor or administrator in such of the chattels as were not in the deceased's possession at the time of his death. Sect. I. Of his interest in cAo«es in action - - 157 Sect. II. Of interests vested in him by condition, by- remainder, or increase, by assignment, by limitation, and by election - - - 164 xii A TABLE OF THE CONTENTS. CHAP.JV. Page Of chattel interests which do not vest in the executor or administrator. Sect. I. Of chattels real which go to the heir ; and also touching money considered as land, and land as money - - - - - 176 Sect. II. Of chattels personal which go to the heir ; and herein, of heir-looms - - - 192 Sect. III. Of chattels which go in succession - 201 Seot. IV. Of chattels which go to a devisee, or re- mainder-man; and herein, of emblements, and heir-looms ----- 203 CHAP. V. Of the chattels which go to the -widow. Sect. I. Of the chattels real which go to the widow; and herein also of such chattels real as be- long to the surviving husband - - 212 Sect. II. Of the chattels personal which go to the wi- dow; and herein, of such personal chattels of the wife as go to the surviving husband 216 Sect. III. Of the wife's paraphernalia - - - 229 CHAP. VI. Of the interest of a donee mortis causa - - - £33 CHAP. VII. Hotv effects^ which an executor takes in that character, may become his own ------ 238 A TABLE OF THE CONTENTS, XIU CHAP. VIIL Page Of the interest of an administratorf general and special — of a married woman executrix, or administratrix — of several executors or administrators — of the executor of an executor — of an administrator de bonis non — of an executor de son tort - - - - - 241 BOOK III. Of the powers and duties of executors and administrators. CHAP. I. Of the funeral — of making an inventory — of collecting the effects. Sect. I. Of the funeral ... .> 245 Sect. II. Of the making of an inventory by the exe- cutor or administrator - _ _ 247 Sect. III. Of his collecting the effects - - 254 CHAP. II. Of his payment of debts in their legal order. Sect. I. Of debts due to the crown by record, or spe- cialty — of certain debts by particular sta- tutes 258 Sect. II. Of debts of record in general — of judgments —and herein of decrees — of statutes and re- cognizances— of docquetting judgments 262 xiv A TABLE OF THE CONTENTS. Page Sect. III. Of debts by specialty — and herein of rent — of debts due by simple contract - - 278 Sect. IV. Of a creditor's gaining priority by legal or equitable process — of notice to an executor of debts by specialty or simple contract - 288 CHAP. III. Of an executor* s right to retain a debt due to him from the testator — under what limitations - - - 295 CHAP. IV. Of the payment of legacies. Sect. I. Legacy, what — who may be legatees — who not — legacies general and specific — lapsed and vested --.... 299 Sect. II. Of the executor's assent to a legacy— on what principle necessary — what shall amount to such assent — assent express, or implied— absolute, or conditional— has relation to the testator's death— when once made, irrevoca- ble — when incapable of being made - 306 Sect. III. When a legacy is to be paid — to whom— of payment in the case of infant legatees — of a conditional payment of a legacy— of pay- ment of interest on legacies — of such pay- ment where the legatees are infants — of the rate of interest payable on legacies - 312 Sect. IV. Of the ademption of a legacy - - 329 Sect. V. Of cumulative legacies . . . 334 Sect. VI. Of a legacy's being in satisfaction of a debt 336 Sect. VII. Of the abatement of legacies — of the re- funding of legacies— of the residuum - 339 A TABLE OF THE CONTENTS. XV Page Sect. VIII. Of an executor's being legatee; and herein of his assent to his own legacy - - 344 Sect. IX. Of the testator's appointing his debtor exe- cutor — when the debt shall be regarded as a specific bequest to him — when not - 347 Sect. X. Of the residue undisposed of by the will, when it shall go to the executor — when not 351 CHAP. V. Of the incompetency of an infant executor — of the acts of an executor durante minoritate — of a married woman executrix — of co-executors — of executor of executor — of executor de son tort 356 CHAP. VI. Of Distribution. Sect. I. Of distribution under the statute; and herein, of advancement ----- 359 Sect. II. Of distribution by the custom of London 388 Sect. III. Of distribution by the custom of York — and of Wales 400 CHAP. VII. Of the powers and duties of limited administrators — of joint administrators - - _ . _ 404 CHAP. Vllt. Of assetSf as distinguished into real and personal, legal and equitable — of marshalling assets - - 409 CHAP. IX. Of a devastavit 424 XVI A TABLE OP THE CONTENTS. CHAP. X. Of remedies for and against executors and administrators at law and in equity, S^c, Page Sect. I. Of remedies for executors and administrators at law - - _. - - 431 Sect. II. Of remedies for executors and administrators in equity ------ 454 Sect. III. Of remedies at law against executors and administrators -- - - - 458 Sect. IV. Of remedies against executors and admi- nistrators in equity - - _ . 479 Sect. V, Of remedies against executors and adminis- trators in the ecclesiastical court • 489 TABLE OF CASES CITED. Abury v. Miller . Abney v. Miller . 22. 27 Abram v. Cunningham 120. 127, 128, Abbot V. Massie Adams v. Savage V. Buckiand Adair v. Shaw Adams v. Peirce 114, 308, Page 19 . 306 347 347 55 407 358 320 425 222 13 Adye v. Fenilletcau Adams v. Cole Ainalie v. Martin All Souls' Coll. -v. Codrington 2. 301 Allen V. Dundas 76, 77. 128, 129 Allison V. Dickenson . 120 Aliens i>. Andrews . 122 Allen ^ al. v. Irwin i!f al. 463 Alexander -y. Alexander 318,319 Aldrich K. Cooper . 421 Annandale, Marchioness of, esc fiarte ... 190 Ankerstein v. Clarke . 241 Andrews x". Brown . 287 -v. Partington 326, 327 Andrew v. Clark . 352 Annand v. Honeywood 394, 395 Ancaster, Duke of, f. Mayer 4 1 7 Apreece v. Apreece . 301 Appleton -v. Doily . 452 Aplyn v. Brewer . 484 Ards -y. Watkin . . 179 Arnold v. Preston . 300 Arundell v. Trevill . 434 Arndt V. jirndt . . 19 Ashburne v. M'Guire 172. 300, 301. 303. 324. 330, 33 1 . 334 Astley -v. Powis . . 269 Ashton V. Ashton 301. 331 (c) Page Ashburnham v. Thompson 480. 483 Attorney-General v. Barnes 6 V. Vigor 21 X'. Downing 22. 27 ■ V. Baines 27 V. Hooker 117. 352, 353 V. Milner 172 7'. Parkin 303. 33 1 V. Harley 335 v. Hudson 339 ■y. Robins 339, 340. 347 Atcherly -v. Vernon 25, 26 Atkins V. Hill . . 49 Atkinson, adm. -v. Baker 140. 178. 190. 409 Atkins -V. Hiccocks 171 Atkinson x'. Webb 337 Atkyns v . Waterston . 391 Atkins V. Hill . 464 Atkinson V. Henshaw . 496 Audley v . Audley 182 186 Aubin V. Daly . 200 Auriol X'. Thomas 287 jiuste7i V. Gag-e . 156 Ayliffe v. Ayliffe 122 Avelyn -v Ward . 301 ji-very isf al. V. Pixleij o B. Baillie -u. Mitchell . 2 Baxter v. Dyer . . 19 Banks v. Sutton . . 21 Barnes -v. Crowe . . 26, 27 Baxter and Bale's Case 128 Baden v. Earl of Pembroke 142 xvm lACLE OF CASES CITED. Pat^e 151. 475 167 Baxter v. Burficld Barker v. Parker Barlow V. Grant , 171 Barnes v. Allen . Baker v. Baker . Bates V. Dandy . Barclay v. Marshall Bank of England v. Moffat 255 .^ X'. Morricc 281 Barker v. Dumcres Barksdale -v. Gilliat Baugh V. Reed Badrick v. Stephens . Barker v. Rayner Baillie -v. Butterfield . Barret -v. Beckford Bagwell i>. Dry . Bail T'. Smith . 352. Bayley v. Powell Babingdon -v. Greenwood Baldwin -v. Church Barne's Case Ball -v. Oliver Bath, Earl of, -v. Earl of Brad- ford . . . 410 Batson V. Eindegreen 412. 414 Bamfield v. Wyndham 117 Bai'tholomew x-. May . 417 -y. Meredith 173 Barker -v. Talcot . 425 Bagot f. Oughton . 419 Bonafous v. Walker . 437 BaynhaiTi u. Matthews 440 Barwell v. Parker . 455 Barry -v. Rush . . 464 Balchen v. Scott . 486 Bastard v. Stockwell . 490 Bagnall v. Stokes . 494 Barneys Lessee v. Irvin 1 1 Bales V. Holman . 19 Batchelor v. Elliott's Jchn, 479 Bennet v. Lord Tankerville 25 327 171 183 223 253 290 328 329 330 333 335 337 343 373 352 391 359 363 404 Beard v. Beard . Bearblock v. Read 267 Beachcroft v. Beachcroft Bennet v. Whitehead . Beckford v. Tobin Bell V. Coleman . Benyon v. Benyon Beeston v. Booth Berry v. Usher . Bennet v. Batchelor Beeton v. Darkin Benson v. Bellasis Benyon -v. GoUins 35 Beckford v. Beckford Beckford -u. Parnccott Beaumont v. Perkins Bell V. Timiswood Benyon v. Maddison Beck V. Rebow Beamond v. Long Bennet v. Davis , 26, 27 57 90 171 197 201 226 Page 227 . 404 300 306 323 329 335 339 350 350. 352 382 391. 393 429. 472 394 Berwick v. Andrews 43 1 .434.472 Bennet v. Coker . Belchier, ex parte Belt V, Belt Beach v. I.ee Beeston' s Ex'rs v. Dorsey Bindon's Case Bilson -o. Saunders 317. 323 Billinghurst v. Speerman 279. 459 440 484 19 224 456 230 1). Walker 419 320 333 426 156 Birch V. Wade . -v. Baker . Bird V. Lockey . B icicle V. Young . Blackborough v. Davis 82. 84. 91. 103. 120, 121, 122. 127. 129. 241. 297. 382, 384, 385. 494 Blackburn v. Davis . 124 Bligh V. Earl of Darnley 144 269. 420 Blackburn v. Greaves . 219 Blois V. Countess of Hereford 222 Blount V. Burrow . 234 Blaney v. Hendricks . 287 Blakeway v. Earl of Strafford 288 Blandivell v. Loverdell 290 Blandy v. Wedmore . 337 Blois V. Blois . . 305 Blundeni;. Barker 391.398,399 Blinkhorn v. Feast 354. 361 Blankhard X'. Galdy 416 TABLE OF CASES CITED. XIX Page Blue L'. Marshall 429. 481 Bowers v. Littlewood 22. 370. 374. 382. 384 Bollard -v. Spencer 48. 439. 467, 468 Bourne v. Dodsou . 1 34 Body V. Hargrave . 141 Bolton r. Cannon . 142 Bolland et Ux. Adm'x. v. Spencer - . . 152 Boycott 1-. Cotton . 172 Bowles r. Poore . 176 Bond r. Simmons 220. 417 Bosvil V. Brander . 223 Boone's Case . . 250 Bonny i-. Ridgard . 256 Bothomly i'. Ld. Fairfax 276. 278 Bowker y. Hunter . 361 Bootle V. Blundell . 417 Boyntun v. Boyntun , 422 Booth V. Holt , . 440 Boothsby I'. Butler . 467 Boudinot V. Bradford 13. 15, 16 Boston, Selectmen off v. Boylston . . 56. 247 Borden v. Borden . 56 Bnvard v. Wallace . 58 Boniface v. Scott . 259 Boylston v. Carver . 156 Brydgesr. Duchess of Chan- dos - 1, 2. 21,22,23. 25 Broderick r. Broderick 2 Brudenall v. Boughton 7. 15. 19 Bridgham r. Frontee . 12 Brady v. Cubitt . 15. 18 Brocks V. Phillips . 34 Brandon v. Nesbitt . ibid. Bristow r. Towers . ibid. Broker v. Charter . 41 Briers v. Goddard 105. 404 Brightman v. Keighley 162 Brown v. Farndell 171. 341. 386. 373 Bradley 1-. Powell - 172 Brewin v. Brewin 173. 327 Bristol, Countess of, v. Hun- gerford . . 178. 284 Bradishr. Gee . . 180 Pag'e Brooks V. Brooks . 224 Bragner v. Langmead 266. 468 Brome v. Monck . 281 Brooking v. Jenners 292. 474 Britton r. Bathurst 292, 293 Bronsdon r. Winter 301. 331 Bridge i*. Abbot . 304 Brown v. Peck . 314. 329 Brown v. Elton . 320. 466 Bradshaw v. Bradshaw 327 Brown v. Allen . . 339 1". Selwyn . 350 Brydges v. Wotton . 347 Briddle i-. Briddle . 390 Brasbridge r. Woodcroft 361 Bright V. Smith . . 394 Bridgman i*. Dove . 417 Brightman v. Knightly 425 Brown i'. Litton 428, 481 Brook V. Skinner . 455 Braithwaite v. Cooksey 475 Bruere v. Pemberton . 418 Bi'ice r. Stokes . 485, 485 Breedon v. Gill . . 494 Bra7idt v. Crotj • . 158 Brown^s Ex'rs. . . 484 Bryan ^ al. v. M' Gee 56 Brattle w. Gustin . 116 V. Converse . 116 Brewster v. Brewster . 134 Bryant v. Hunter 156. 338 Browers' Ex'rs. v. Fromm 300 Bradford' s Adrn'rs. Case of ^ 407 Bradford v. Boudinot , 468 Burtenshaw i*. Gilbert 13, 14 Burston r. Ridley . 49 Burn r. Cole . 71. 387 Budd V. Silver . . 90 Buckley v. Pirk 165. 279. 281 Butler V. Duncomb . 172 Burton r. Pierepoint 226.231 Bunn V. Markham . 235 Burnett v. Holden . 265 Burting r. Stonard . 256 Buccle r. Atleo 269. 289. 454 Buckland V. Brook . 281 Burke v. Jones . . 288 Bull f. Kingston . . 352 XX TABLE OF CASES CITED. Buffer V. Bradford 304 Burgess I". Robinson . Butcher v. Butcher Butler V. Butler . 325 Buckworth i'. Buckvvorth Butler ejc parte . Butler V. Richardson Burroughs r. Elton Burns V. Burns . . 1 Burke v. Les. of Yoiaig Bulls V. Rice Byrne v. Byrne . Page . 361 314 319 , 326 326 488 ibid. ibid. 3. 15 27 56 339 Carey v. Askew Caroon's Case Campbell v. French Carte t'. Carte . . 2: Cave V. Holford . Canterbury, Archbishop of, V. House . . 65. 49 1 Canterbury, Archbishop of, V. Wills 247. 491. 493 Carter f. Bletsoe . Canning v. Hicks Cave V. Cave Cappin r. 6. 325 12. 24 15 22. 35 25 495 495 172 185, 186 196 219 223. 321 300. 303. 350. •Jl O, Carr v. Taylor Castleton, Lord v. Lord Fan- shaw Catchside v. Ovington Careless v. Careless Cavteret v. Carteret Cav^eth v. Phillips Carey v. Goodinge Carter r. Crawley 370 Caldicoti'. Smith . Campart v. Campart Car V. Car . Carter v. Barnadiston QdXcoXi ex jiarte . Camden v. Turner Carter^s heirs v. Cutting if Wife . . .56. 329 Caswell \. IVendall . 134 Cavendish v. Fleming . 329 Carrell's Lessee v. jindrenvs 364 Callahan v. Hall 168. 481. 486 43 253 314 331 349 361 382 382 357 396 417 453 463 Page Church t'. Mundy . 6 Christopher r. Christopher 18 Chetham I'.Lord Audley 35. 456 Chamberlain r. Chamberlain 139 Chauncey r. Graydon . 171 Chandos,Duke of, f, Talbot 173. 305 Chichester v. Bickerstaff Chester r. Painter Chamberlain v. Hewson Chambers w Goldwin . Chaworth v. Hooper Chancey's Case . Cheney's Case Chomley i'. Chomley Chace v. Box ('hallis V. Casborn Chambers v. Harvest Chandler r. Taylor Charlton r. Lowe 336, 590. 180 312 320 325 326 a try 345 401 396 412 412 425 426 Chamberlain v. Williamson 436 Chevalier v. Finnis . 438 Childs r. Monins . . 463 Churchill v. Lady Hobson 481 Churchill v. Hopson . 484 Chambers v. Minchin . 486 Chamfilin v. Tilley isf al. 56 Chase Isf al. v. Lincoln's Ex'rs. ... 58 Civil V. Rich . . 395 Clerke v. Cartwright . 8 'Clarke -u. Berkley . 21 Clymer v. Littler . 22 Cloberie's Case . 171. 305 Clarkson v. Bowyer . 189 Cleland v. Cleland . 222 Clarke v. Blake . . 300 V. Sewell . 337, 338 Clifton V. Burt 339. 411. 420 Cloyne, Bp. oiv. Young 352. 36 1 Cleaver T'. Spurling 39 1. 394. 398 Clennel v. Lewthwaite . 354 Clerk V. Hopkins . 355 Clerk -v. Withers 442. 447. 449 Cleve x'. Vere . . 442 Clerke u. Clerke . . 490 Clark v. Higgins . 439 Clay V. Williams 1st al. 341 Clarke v. Herring . 466 TABLE OF CASES CtTED. XXI Coles V. Trecothick Cothay v. Sydenham Cook V. Oakley Cotter V. Layer Coke V. Bullock Coppin V. Fernyhough Cockerill v. Kynaston Comber's Case Colborne v. Wright Copeman v. Gallant Cooke V. Fountain — V. Jennor , Collins V. Metcalf . Cowper V. Scott . Cotton V. lies Cox V. Godsalve . Comely v. Comely Cox V. Joseph Cox's Case . Cope V. Cope 284. Cock V. Goodfellow Cooper V. Thornton 314, 315. Cockerell v. Barber Collis V. Blackburn Cookson V. Ellison Coleman v. Coleman Coote V. Boyd Cordell v. Noden II Pag-e 2 9 . 343 9. 19. 25 19. 21 22. 27 48. 152. 438, 439 74. 114 102 134 158 162 305, 173 187 204 231 281 415 419 297 171, 417, 317. 321 322 326 329 331 334, 335, 336 352 Colesworth x*. Brangwin 361 Cox -L). Belitha . 395. 399 Constable v. Constable 400, 401 Cooper V. Douglas 427. 481 Colebeck v. Peck . 442 Coan V. Bowles . . 446 Coke V. Hodges . . 447 Cottle -v. Aldriche . 473 Cockshutt V. Pollard . 480 Cook V. License . . 494 Cominonivealth v. Seldon ifal. 13 19. 71 50 156 iSJ" al. 156 259 496 165 Coats V. Hughes. Commonwealth v. Brady Coleman v. Anderson . Commonivealth v. Rabm Commonwealth v. Lewis Coney v. Williams Cortelyon v. Lansing . Cogbill V. Cogbill is" al. Crooke-u. Watt . Crabtree 'u. Bramble Crane v. Drake . Cray v. Rooke Croft V. Pyke Crenze -v. Hunter Craven v. Tickell Crawford v. Trotter Crickett v. Dolly 312. Crockat v. Crockat Cranmer's Case Cromptoii V. Sale Cray v. Willis Crosman's Case . Crosman v. Reade C ran ley, Lord, v. Hale Crackelt v. Bethune Cruchfield v. Scott Craig V. Radford Crane v. Crane's heirs Curtis -o. Vernon . Currie -v. Pye Cuthbert -v. Peacock Cutterback v. Smith Cults et alv. Haskins Cutchln V. Wilkinson Cuthbert v. Cuthbert D Darley v. Darley 21, Pape . 71 . 94. 373 180 256 263 283. 296 286, 287 287 , 312 324, 325, 326 . 331 336 , 337 . ibid. 343 347 349 . 349 352 481 439 , 13 30.-? 243 . 367 335 . 422 . 336 . 412 , 50 172 Daniel v. Luker Dabbs V. Chisman Dawson v. Killet . Davis V. Gibbs u. Monkhouse . v. Gardiner Darston v. Earl of Orford Darrel x'. Molesworth . 301 25. 226. 230. 326 52. 55 124 Dagley v. Tolferry Davies v. Austen Dawson v. Clark . Davers v. Davers . v. Dewes Dawes y. Boylston 165. Dallam v, Wamfiole 305 179 392 421 289 305 314 317 353 352 374 168.494 11 352, XXll tablf: of cases cited. Page Dawes, Judge, iSfc. v. Boylston 134. 259 Dawes, Judge v. Swan ^ al. 329 Daillaird v. Tomlinson 329 Denham v. Stephenson 49. 55 Devereux v- Bullock . 57 Devon, Duke of, v. Atkins 140. 240 Deering f. Torrington 154 Dembyn r. Brown . 216 Defflis V. Goldschimdt 300 Descrambes-y. Tomkins 325, 326 Debeze v, Mann . Dewdney, ex fiarte Dean 'v. Dalton . XK Lord Delaware Deeks n. Strutt . 466 329 343 350 394 489 468 2. 387 334 156 14 Dearne xk Grimp Dessebats v. Berqiiier Dewit V. Yates Dean v. Dean Dickenson x). Dickenson Disher v. Disher . 200. 286 Dietrich v. Dietrich . 16 Dixon's Ex'rs. v. Ramsay's Ex' vs. . . . 56 Digge's Lessee v. Jarman 364 Dormer T Thurland . 6 Doe V. Pott . . .15 ■ V. Staple . . 19 Douglas's, Sir Charles, Case 387 Doune v. Lewis . . 419 Doe V. Potter . . 433 Dorford -y. Dorford . 481 Doyle V. Blake . . 484 Dorr Adm.v, CoinmonwealthXOi Dorsey v. Tunis . . 259 Drake xj. Munday . 176 Druce xj. Denison . 222 Drury v. Smith . 232. 234 Drinkwater x}. Falconer 33 Drinkwater v. Drinhwater 156. 430 Duncomb v. Walker . 46 V. Walter 434. 437 DulwichCoU.-y. Johnson 48. 495 Dubois T^, Trant 121, 122. 124 Duppa V. Mayo . . 176 Dupleix V. De Roven . 266 Dudley, Lord, v. Lord Duffield V. Smith Dubost, ex parte . Dorchester v. Webb Durant v. Prestwood Dupratt V. Testard Dubray v. Comb . Page Warde 197. 210 329 ibid. 347. 470 374. 385 466 467 Earl V. Wilson . . 300 Eastwood V. Vinke 336, 337 Eaves v. Mocats . . 438 Earl V. Brown . . 442 Ecles V. England . . 304 Edwards v. Countess of War- wick . . 7. 180. 208 Edwards x). Freeman 25. 341. 368. 370. 373. 376, 377, 378. 380. 419 Edwards v. Harben . 38 Eddowes v. Hopkins . 287 Edwai'ds v- Graves . 412 Eiibech, Devisees of, \. Gran- berry iS^ al. . . 2 Edwards v. Bethee . 467 Ellis -y. Smith . 2. 6. 15 Elliot V. Gurr . . 84 Elliot X). Collier 115. 380. 389. 396. 398. 401 Elme V. Da Costa . 131 Ellis V. Guavis . . 186 Ehves V. Maw . . 197 Elliot xf. Merriman . 256 Ellison V. Airey . 300. 455 Ellis V. Walker . . 301 Elliot V. Davenport . 303 EUibank, Ladyiy.Montolieu 320, 321 Ellison v. Cookson . 329 Elwell V. Quash . . 359 'EXYi^ ex fiarte . . 488 Emerson v. Boville . 19 Emerson x', Emerson 157. 159. 433. 436 Emes X). Hancock . 172 Embrey v. Martin . ibid. Engli^, ex parte . 453 TABLE OF CASES CITED. XXlll Page Engles is" al. v. Bruington 2 Errington v. Hirst . 179 Erby i-. Erby . 259, 260 Erving r. Peters . . 431 Eubrin r. Manpesson . 447 Evelyn i-. Evelyn 381. 384. 419 Everlyn v. Chichester . 436 Eves i\ Mocats . . 433 £vans v. JVorris's ^dm. 239 Ewer V. Corbet . . 256 Ryster ijf al. v. Young . 2 £yre v, Golding . . 329 Eyre r. Countess of Shafts- bury . . 242. 407 Farrington y. Knightly 30. 117 306. 352. 478. 490 Fawtry v. Fawtry 84. 87. 94. 98. 103. 105 Farr r. Newman . 134. 468 Fawsey v. Edgau . . 173 Farquhar v. Morris . 287 Fawkes v. Gray . . 313 Farnham r. Phillips . 329 Fane ;•. Blance , . 394 Fawkner v. Watts 396. 39 8 Farish v. Wilson . . 466 Farr v. Newman . . 467 Faith V. Dunbar . . 489 Farenaell v. Jacobs . 92. 116 Fairfax Devisee v. Hun- ter's Lessee . . 13 Fearon, ejc finrte . . 2 Fettiplace v. Gorges 9. 11. 84 Fell I. Lutwidge . . 95 Fellowes r. Mitchell 307. 484 Ferrand r. Prentice . 481 Fereyes v. Robertson . 417 Fetherston v. Allybon . 438 Fenwlck v. Sear's Adm'rs. 56 Fitzgerald v. Villiers . 471 Fisher r. Lane . . 477 Findley v. Riddle . 71 Fitzgerald v. Caldwell's Ex'rs. . . . 286 Fitch v. ilnntinden . 327 Page Fitzgerald Ex'r. v. Jones 329 Fleice v. Southcot Fletcher v. Stone . Flud V. Rumcey . Flanders v. Clarke Fletcher v. Walker Forrester v- Pigon Fooler v- Cook Foxvvist V. Tremaine 37 284 350 363 427 2 42. 142 102, 355. 446 Fonereau v- Fonereau 171. 305. 312 Fowler v. Fowler 227. 336, 337 Foi'd u. Fluming . . 331 Foy V- Foy . . . 335 Fonnereau v. Poyntz . 343 Fox V. Fox . . . 350 Foster v. Munt . . 352 Fowke V- Hunt . . 390 Fouke I". Lewin . 393. 396 Ford V. Glanville . . 406 Forrester v. Lord Leigh 419. 421 Foster v. Blagden . 422 Foster v. Jackson . 446 Forbes v- Ross . . 481 Fox v. Wilcocks 329. 480, 481 V. Southack isf al. 12, 13 Ford V. Gardner iJf al. 50. 78 Forster V. Fuller . 134 Foivle V. Lovet 161. 156. 433 Frederick v. Hook . 46 Freke u. Thomas . 101. 386 Fryer v. Gildridge . 167. 296 FreeiTiantle v. Dedirc . 283 Freeman t*. Fairlie . 347. 456 Fretw ell u. Stacy . . 347 Frewin t*. Rolfe . . 365 Freemoult r. Dedire . 414 Franklin v. Frith . 426, 427 Frevin v. Paynton . 436 Frescobaldi v. Kinaston 471 Freeman v. Tarbell . 247 G GiixXdiWCi, ex parte . 165.486 Garret D. Evers . . 189 Garforthr. Bradley . 219 XXIV TABLE OF CASES CITKD. I'ag'c Garth v. Ward . . 269 Gatre v. Acton . . 278 Garvcy v. Herbert . 300 Gawlcr u. Standerwjck 313- Gay nor v. Wood . 336 Garret y. Lister . 344, 345 Garon v. Trippit . 380. 394 Garrick v. Lord Camden 386 Gawler v. Wade . . 411 Gaiton V- Hancock 417. 419,420, 421 Gale r. Till . . 8 Gay Ex jmrte . 140. 156 General v. Tyndall . 422 Gearz v. Beaumont . 429 Geyer v. Smith . . 463 Gibson v- Lord Montford 25, 26, 27 Gifford V. Goldsey . 173 Gillaume 15 Adderley 301.303 Gibson t'. Kinven . 318 V. Bott . 323, 324 Giraud v. Hanbury . 352 Gibbs V- Rumsey . 352 Girling r. Lee . . 412 Gittins V. Steele . . 417 Gilpin V- Lady Southampton 455 Gibson v. Brook . . 468 Gill V. Scrivens . . 470 Glasscock v. Smither . 19 Glcvcr V. Heath . 248 Goodright v. Sales . 7 Gore V. Knight . . 9 Goodright v- Glazier . 17 Goodtitle r. Newman . 18 V. Meredith . 26 Gold V. Strode . . 55 Goodlellovv r. Burchett 142. 288. 426 Goss V. Nelson . 171, 172 Gordon v. Hayncs . 172 Goodright v- Sales . 178 Gomersal v. Aske . 265 Goldsworthy v. Southcott 265. 443 Goldsmith v. Sydnor 275. 281 Godfrey r. Newport . 278 Gordon v. Raines • 305 Goodwin v- Ramsden . 394 Page Goring v. Goring . 425 Goldthwayte v. Petrie . 439 Goodwin, ex parte . 452 Gould V. Fleetwood . 456 Goodwyn v. Goodwyn 491 Govane v. Govaiie 86. 100 Goodwin v. Jones . 50. 56 Gold's Case . . 247 Go7-e V. Brazier . 248. 364 Golding V. Eyre . . 329 Gordon, Jdm. V. Justices of E'rcderic . . • 430 Griffin's Case . . 2 Greenhill v. Greenhill . 25 Green v. Ship worth . 57 V. Proude . ibid. Griffiths r. Hamilton -76. 352. 360. 363 Grandison, Lord, v- Coun- tess of Dover . 105. 124 f. Coun- tess of Devon . . 124 Greaves v. Powell . 154 ; Grantham v. Hawley 202. 205 j Grute r. Locrof . . 215 I Griffith r. Wood . ibid. Graham r. Londonderry 226. 228. 230, 231. 422 Greenside v. Benson 245.491.495 Grosvenor v. Cook . 2S7 Greenwood v. Brundnish 292 i Green v. Pigot 312. 324. 481 Grove r. Banson . 322 Green v. Ekins . . 326 Ex parte . 327 Grace v. Earl of Salisbury 329 Graydon t'. Hicks , 350 Granville, Lady, v. Duchess of Beaufort . 353,354 Griffith V. Rogers . 353 Green r. Green . . 417 Growcock V. Smith . 422 Gregg's Case . 439, 440 . Griffith V. Frazier 77, 7 8. 131 Grout V. Chamberlain 448, 449 Green v. Deivit . . 41 Grame v. Harris . 56 Gray v. Gardner . 156 TABLE OF CASES CITED. XXV Graff V. Smith's ^dm'rs. Griswold v. Broivn Guidot I*. Guidot Gudgeon v. Ramsden . Guier v. Kellt/ . 156 Page 156 161 180 395 , 239 H. Harris v. Bedford V. Ingledew Harwood v. Goodright 17. 21 Harkness V. Bailey . 19 Hawkes r. Wyatt Harrison v. Rowley 39. Harris v. Hanna Habergham v. Vine ens Hatton V. Mascal . 102. Havers r. Havers Harrison i*. All Persons 1'. Michell 121, ■ f. Weldon Hay ton v. Wolfe Harecourt r. Wrenham 159, Hall V. Huffam . V. Terry Harvey v. Harvey 197. Hardwick, Lord, in Lawton V. Lawton Hay V. Palmer . 208. Hastings, Lord, v. Sir A. Douglas . . 228. Hassell V. Tynte . Harman v. Harman 269. Harding v. Edge . 270. Hawkins v. Day 281.292. 322. Harrison v. Naylor r. Buckle Haughton v. Harrison . Harvey r. Harvey 326, Hales V. Freeman Hartop V. Whitmore . ' V. Hartop Hambling v. Lister 330, Hanes v. Warner 336, Hayes v. Mico Harford r. Browning . Harwood's Case . 390. Hancock v. Hancock 391, 3 6 ,22 .21 22 342 48 68 447 102 103 122 121 114 161 162 172 224 197 210 230 236 292 289 471 305 312 326 327 328 329 329 331 337 347 347 393 . 394 Hartwell v. Chitters Harcourt v. Wrenham Haslewood v. Pope Handby r. Roberts Hall V. Hallet Hayward v- Kinsey Harden v. Parsons Harris v. Vandridge Hawes v. Saunders Page 415 415 417. 420 421 425 426 428 433 438, 439, 440 440 442 460. 462 463, 464 466 472 474 481 483 490 Harris v. Jones Harrison v. Bowden Hambly v- Trott . Hawkes v. Saunders Hargrave v. Rogers Hargthoi'pe v. Milforth Hall V. Huffam . Harris v. Docura Hathomthwaite v. Russell Hatton V, Hatton Hawley v. Broiv7i . 2 Hathorn is" al. v. King^s Ex'rs. ... 8 Hayden v. Smith . 9 Havard v. Davis . 19 Hantz V. Hull . . 58 Hays Isf al. Ex'rs, v. Jackson £5* al. 134. 156. 239. 350 Hassencleaver \. Tucker 314 Hannum v. Shear . 364 Hartzel v. Broivn . 468 Herbert v. Torball . 8. 27 r. Herbert . 9 Heylyn v. Heylyn . 26 Henslor's Case . . 74 Helier v. Casbert . 142 Hewitt t'. Wright . 180 Hedges v. Hedges . 232 Heapy v. Paris . . 266 Herbert's Case . . 269 Heath v. Perry 301. 324, 325 Hearle r. Greenbank 312. 324, 325. 327 326 340 358 394. 396 399 417 Heysham v. Heysham Headly v. Redhead Heyward's Case Hearne v. Barber Heron v. Heron . Heath v. Heath . XXVI TABLE OF CASES CITED. V. 173 234 253 266, 267 301, 302. 340 320 326 416 422 439 468 490 2 464. Heme v. Meyricke Hcapy V. Parris . HeJidrin v. Colgin Jienshaw v. Blood iJf a Heist er v. Knifie . Hitchins v. Basset Hill I. Mills Hiliiard v. Cox Hibben v. Calemberg Hinchinbrooke, Lord, Seymour Hill '.-. Chapman . Hinton v. Parker Hickey v. Hayter Hinton v. Pinke Highman, ex fiarte Hiil V. Hill . Hitchon r. Bennett Hillyard -v. Taylor Higgs r. Warry Hindsley v. Russel Hill V. Turner Hight V. Wilson . Hill iP" Ux. V. Da-vis b* al. Ex''rs. Hollway 1'. Clarke Hodsden v. Lloyd Hogan V. Jackson Hone V. Med craft Hooper r. Summerset House V. Lord Petre 44 Hog V. Lashley . Hoe V. Nathorpe Howard I'. Jemmet 134 Hall V. Bradford . Howe I'. Whitebanck Hodgson I'. Rawson Holderness, Countess of, v. Marquis of Carmarthen Howe V. Howe Holt V. Bishop of Winches- ter .... Howell V. Hanforth V. Maine . Hodges V. Beverley HoUingsworth v. Ascue Howell V. Price 284, 417, Holbird v. Anderson . Page 420 468 86 247 360 17 31,32 52 124 Hornsby v. Hornsby Holloway tj. Collins . --. Howe V. Earl of Dartmouth 318 76. 41 19 19 22 22 37 118 57 77 463. 467 157. 433 169 172 178. 200 179 189 210 219 228 276 .421 288 318 320 322 326 329 334 340 352 380 354 363 439 442 450 457 471 472 Holland v. Hughes Hough u. Ryley . Holditch v. Mist . Hoste V. Pratt Hortop V- Hortop Hooley r. Hatlon . Hodges v. Waddington Hornsby v. Finch Holt V. Frederick Hoskins v. Hoskins Howell V- Barnes Hollis V. Smith . Hollingshead's Case Hooie r. Bell Howse V. Webster Horay v. Daniel . Holcomb V. Petit Hoge, Less of, v. Fisher is" al. . Holmes v. Williams Hoare v. Mulloy Hodges V. Cox Horsam v. Turget Horsley v. Chaloner Hovey v. Blakeman Howell V. Waldron Hoi'ton V. Wilson Huntingdon v. Huntingdon •Huline v. Heggate Hutton V- Simpson Humphreys v. Incledon V. Humphreys 46. 302 Hudson V. Hudson 74. 114. 241. 359. 407. 446. 471 Hutchinson v. Savage Hunt U.Hunt Husband v- Pollard Hutchins -u. Foy . Hubert v. Parsons . Hutchens v. Fitzwater Hulbert t*. Hart . Huntley v. Griffiths Humble v. Bile . Hussey v- Berkeley Hume v. Edwards 302 Page 304 314 9 71 465 477 478 483 484 490 496 2 26 27 46 134 152 161 171 305 172 180 220 256 300 39.396 172 TABLE OF CASES CITED. xxva Pag'e Hutcheson v. Hammond 303.427 304 368 410 19 156 156 13. 17 144 2 Humberstone v. Stanton Hughes V. Hughes V. Doulben Hughes V. Hughes, Hubbell, Adm. v. Pratt Huckle V. Phillips Hyde v. Hyde f. Skinner . Hylton V. Browne IIchesteVjEarlof, e:c/zar?f 18,19 Inchiquin, Earl of, v- French 304, 417 Incledon r. Northcote . 422 Ingersoll v, Bradford . 58 Ireland v. Coulter . 365 Irod V. Hurst . . 330 Isted V. Stanley . 114. 117 Ives V. Medcalf . . 399 Izon V. Butler . . 304 Jauncy v. Sealey . . 71 Jackson v. Hurlock . 21 James v. Dean . . 141 Jacomb v. Harwood 241, 242. 256. 359. 407 Jackson v. Kelly . . 341 Janson r. Bury . . 374 Jacobs V. Miniconi . 442 Jackson v- Leaf . . 455 Jackson is" al. v. Van Dusen 9 V. Wood 58 V. Durland 58 et Ux. V. Holloway 219 Jenkins v. Whitehouse . 9 Jevons V. Harridge . 12 V- Livermore . ibid. Jenison v. Lord Lexington 1 40 Jenkins v. Plumbe 152. 426, 427 436 Jenkins v. Plume 161, 162. 438 Jennings v. Looks . 172 Jeffereys v. Small . 155 Jemmot v. Cooly • 179 Jenner v. Morgan . 208 Jewson V. Moulson , 217. 490 Page Jenkins v- Powell . . 329 Jeffetj. Wood . 336.338 Jeacock v- Falkener . 337 Jennor v. Harper . . 339 Jenour v. Jenour . . 343 Jesson V. Essington . 393 Jenks V. Halford . . 396 Jefferies v. Harrison . 483 Jenkins v. Stoaffer ijf al. 364 Johnston v. Johnston . 19 Johns V. Rowe . . 84 Johnson's Case . . 118 Jones V. Earl of Stafford 101 V. Goodchild . 106 v. Waller . . 129 r. Jones . . 154 V. Selby . . 234 r, Westtomb . 354 r. Wilson . . 439 Johnson v- Lee . . 496 Joslin V- Brewit . . 352 Jolly V. Gower . . 289 Joseph V' Mott . . ibid. Jones -v. Williams 329. 456 Johnston v. Sommerville 335 K. Ket V. Life . Kemp V. Andrews Kendal v. Micfield Kendar v. Milward Kenrick v. Burges Keates v. Burton . Kennedy v. Stainsby Keylway v. Keylway Kelsock I". Nicholson . Kenyon v. Worthington Kellog V. Williams Kennon v. M^ Robert . King V. King V. Ayloffe V. Stevenson Kirkman v. Kirkman . Kififien isf al. v. Carr's Ex'rs. Knight V. Duplessis Knight V. Maclean V. Knight . Knot V. Barlow . 131 155. 162 140 182 243. 367 319 352 382 360 455 134 344 417 434 437 391 295 102 287 410 357 284, 436. XXVlll TABLE OF CASES CITED. Page Kniveton v- Latham . ibid. Knox isf al. v. Jenks . 156 Krumbhaar v. Burt ISf al. 219 L. Lancashire t\ Lancashire 18 Lake V. Craddock . 155 Lampen v. Clowbery 171, 172 Lawton V. Lawton . 197. 210 Lawson v. Lawson 232. 234, 235, 236 Lancy r. Fairechild . 281 Lassels v. Lord Cornwall 283 Lawson v- Stitch 301. 323 Laundy v. Williams 313. 325 Langham r, Sandford . 352 Laker. Lake . 353,354 Lamplugh I*. Lamplugh 354 Langard i*. Earl of Derby 410 Lacam v. Mertins 419, 420, 421 Lawson r. Hudson . 419 Lancy v. Duke of Athol 420 Langston v. Ollifant . 428 Langford v. Gascoigne 486 Lawson v. Morrison . 16. 19 Levet V. Needham . 178 Lechmere -v. Earl of Carlisle 1 80. 189. 283. 415 Leman t;. Tooke . 281 Lees V. Summersgill . 300 Lewin v. Lewin 302. 339. 391 Lewis y. Lewis . . 314 Leake xk Robinson . 324 Leech v. Leech . . 327 Le Grice v. Finch . 331 Lee V. Cox . . 386 Lewin v. Okeley . . 412 Leman v. Newnham . 419 Lewis v. Mangle . . 119 Le Mason v. Dixon . 436 Levet -p. Lewkenor 447. 449 Leigh -v. Barry . . 484 Leek, ex parte . . 488 Lewis V. Alar is . . 2 Lee l^ Wife v. Sedgwick 88 Leveritt v. Harris . 156 Leggv. Legg . . 219 Lewis V. Fisher i!f al. . 300 Lee, Ex'r. v. Cook . 305 Page Limberg v. Mason 2. 17. 57 Lingen v. Sowray 7. 180, 181 Limmer V. Every . 118 Littleton's, Sir Thomas, Case 185 Lister v. Lister . . 222 Littleton v. Hibbins 259, 260. 269. 292 Littlehales v. Gascoyne 426. 429. 471,472 Lightner v. Wike . 58 Livingston et Ux. AdmWs. V. Bird . . . 156 Lloyd V. William . 323 -y. Tench 374.381.385 Lloyd's Lessee V. Taylor 364 Lowther x'. Condon 171, 172 Lonquet v. Scawen . 178 Loeffs V. Lewin . . 283 Lonsdale, Lord, v. Church 287 Loame v. Casey . . 297 Long V. Short . 301. 340 Lowther T*. Cavendish . 314 London, City of, v. Rich- mond . . . 319 Longmore v. Broom . ibid. Lowndes r. Lowndes . 326 Lockier -v. Smith . 349 Lockyer v. Simpson . 350 V. Savage . 399 Lowson V. Copeland . 426 Logan V. Walts . . 71 Lorimer v. Irvin . 156 Lodge V, Hamilton . 219 Lugg V. Lugg . , 18 Lucy V. Levington 158. 431 Lucas I'. Lucas . . 226 Luck's Case . . 253 Lumley v. May . . 304 Luke v. Alderne . 312. 491 Lutwyche v. Lutwyche 281 Lutkins v. Leigh . . 42 1 Lyddall v. Dunlapp . 278 Lynn's Less. v. Daines 71 M. Mason -v. Williams . 270 Mayott ■u. Mayott . 301 Mann -v. Copeland . 302 Maybank -v. Brooks . 303 TABLE OP CASES CITED. XXIX Page 304 315 319 328 323 335^ Massey v. Hudson Maddox v. Staines Maddison v. Andrews . Malcolm v. Martin 322 Maxwell v. Wettenhall Masters v. Masters 334, 336. 339. 420 Mathews v. Mathews . 337 Martin v. Rebow 352, 353 Maw V. Harding . 382 Mathews v. Newby 389. 480, 489 Manning's Case . . 35 5 Madox V. Jackson . 410 Manaton v. Manaton • ibid. Manning -u. Spooner 416.419 Mackenzie v. Mackenzie 437. 467 M'Williams, matter of, 358 Mathews v. Warner . 2. 74 Marlborough, Duke of, v. Lord Godolphin Mason v. Limberry Marwood v. Turner Martwick v. Taylor Marriot v. Marriot Marhall v. Frank Manning v. Napp Marlow v. Smith Mann v. Bishop of Bristol 22 155. 187 V. 9 14 25 57 65.76 85 106 134 144 162 159 171 172 179 ibid. 189 199 Martin v. Crump Mason -v. Dixon . May V. Wood Mannering v. Herbert Marshall v. Frank Mathews v. Weston Martin v. Mowlin Macclesfield, Earl of, Davis Morrice v. Bank of Eng- land . . 269,270.289 Martin v. Martin Markland, ex parte M'Leod V. Drummond M' Call y. Peachy 92. Matthews v. Noel \lf al M'Ever v. Pitkin M'Loud V. Roberts isi" Mason V. Dunman M'Culloch V. Young 270 488 256 134.429 305 461 al. 4 56 Page Marks £5* Wife v. Bryant is- Wife ... 59 Mann v. Man7i . . 71 Malin v. Malin . . 71 M'Rae v. Harrow . 364 M'Kay^ Ex. v. Young 364 M'Gooch V. M'Gooch 86 Mason's Devisees v. Peters' Ex'rs. . . , 479 M'JVeil if Wife \. Adm'rs. of Quince . . 466 Mence v. Mence . 14 Mead v. Lord Orrery 44. 256. 306, 307. Mentney v. Petty Mellor V. Overton Meales v. Meales 321. Medcalfe v. Medcalfe 391. Merchant v. Driver Meason, ex /larte 239. 259. Measinger v. Kitner Miller v. Miller . Milner -v. Loi'd Harewood Mitchinson v. Hewson Miles's Case Miller v. Miller 232. 234, v. Warren Milner v. Colman 311 88 288 490 394 428 295. 297 156 140. 409 219 224 236 304 320 337 353 Minnel v. Sarazine Middleton v. Spicer Mildmay's, Sir Henry, Case 466 Middleton v. Dodswell 489 Millar is" al. v. Millar 2 Mitchell V. Lunt 41. 156. 494 Miller v. Stout . . 156 Miles V. Wis tar . . 329 Morison v. Turner . 2 Moore v. Moore . . 17 Moreton's Case . 157. 433 Monkhouse v. Holme . 171 Moore v. Moore . , 242 Mountford v. Gibson . 257 Moore Ty. Godfrey . 315 Motam V. Motam . 320 Mordaunt v. Hussey . 352 Morris v. Boroughs 391.396. 399 XXX TABLE OF CASES CITED. Page Mogg r. Hodges 420. 422 Morgan v. Greene . 257 Mortlock V. Leathes . 480 Morley v. Ward . 481 Morgan v. Harris . 496 Morton v. Hopkins . 433 Monroe., Ex. of Jones, V. Jones ... 46 Morrises Less. v. Smith 156 Moliere's Less. v. JSToe 156. 259 Moody is" al. v. Vandyke 364 Murray v. Jones . . 70 Munt V. Stokes . 152. 436 Musson V. May . . 297 Mundy V. Earl Howe . 326 Murrel v. Cox . . 484 Murray v. Ridley . 259 Myddleton v. Rushout 249 N. Napier, Charles James, in re 73 Nanney v. Martin . 223 J^an Miekle's Case . 333 JVash V. ^fash . 333. 343 Meweirs Will . . 304 J^Telson v. Carrington 364 Newman v. Hodgson . 55 Netter v. Bret . . 68 Neale V. Willis . . 171 Neeve v. Hecke . 172 Newport v. Godfrey . 278 Newman V. Barton 340.341 Nelthorp v. Hill . 341 Newstead v. Johnson 342, 343 Newton V. Bennet 412.414. 428. 480. 483 Nicholas v- Kelligrew 48 Nisbet r. Murray . 319 Nichols V. Osborne 326. 354 Nicholls -v. Judson . 337 V. Crisp . 352 Nicholas v. Nicholas . 490 JVichol V. Munford . 56 JViinmo's Ex'r. v. the Com- monivealth . 293, 414 Norwich, Mayor of, v. John- son ... 39 Northey v. Northey . 230 Page Northey v. Strange 300. 305. 389, 390. 396 -V. Burbage . 304 Noel -v. Robinson 308. 321, 322. 340. 416 Northumberland, Earl of, v. Marquis of Granby 314 North, Lord, u. Purdon 352 Nourse v. Finch . 354 Norden v. Levit . 425 Norgate v. Snape . 447 Noys r. Mordant . * 187 Noel V. Nelson . 467. 470 Norwich, Mayor, v. John- son . . . 473 Norton v. Turville . 486 Nugent V. Gifford . 256 O. Offleyx;. Best 71. 121, -v. Offley . Oke V. Heath Oldfield V. Oldfield Onions f. Tyree 6. 13, Oneal v. Meade Openheimer -v. Levy Orr -v. Kains u, Newton Orr V. Hodgson . Osgood V. Breed Owen -y. Curzon Oxenden v. Lord Compton 190 122. 125. 127 230. 245 1, 2. 304 172 4,15. 17 421 34 340 364 13 11 457 P. Paine v. Teap . , II Parsons u. Freeman . 19.21 Parker v. Biscoe . 21 Pad get t;. Priest . 38.41 Patten, executrix, v. Panton 46 Partridge's Case . 68 Palgrave X'. Windham 158.434 Pawlet's, Lord, Case 171. 330 Paget -v. Gee . . 208 Packer!/. Wyndham 222,223 Palmer x;. Trevor 224. 320 Parker v. Kitt . 243. 364 Paget V. Hosltins . 256 Parker v. Alfield . 266 TABLE OF CASES CITED. XXXI Page Parker v. Dee . 288, 289 V. Amys . . 293 V. Masters . ibid. Palmer v. Dawson . 288 Parrot v. Worsfield . 302 Partridge tj. Partridge 302. 333 Papwoi'th V, Moore . 312 Parsons v. Dunne . 320 Page V. Leapingwell . 340 V. Pager . . 343 Palmer x>. Garrard . 374 V. Allicock . 386 Parsons v. Freeman . 419 Paddy, ex jiarte in re Drake- ly . . . . 452 Paine v. M'Intyre . 329 Patton Adm. v. IVilliayns and Wife . . . 329 Parsons v. Mills 343. 429 Perkes v. Perkes . 14 Peach V. Phillips . 19 Peanlie's Case . . 94 Pearce v. Chamberlain 165. 167 Peck -y. Parrot . , 169 Petre, Lord, v. Heneage 196 Pearly v. Smith . 210 Perkins v. Thornton . 223 Peacock v. Monk 227. 239 Petit V. Smith 247. 360, 361. 370. 490 Peploe V. Swinburn 269. 289 Perrot v. Austin . 284 Perkins v. Micklethwaite 304 Pearson v. Garnet . 322 Pett V. Pett . . 382 Pett's Case . 3. 82. 373 Percival v. Crispe . 389 Pettifer v. James . 393 Pearce v. Taylor . 422 Pease V. Mead . . 167 Perkins -v. Baynton . 426 Petrie f. Hannay . 431 Pearson v. Henry 463, 464 Pett V. Inhab. of Wingfield 475 Perkins v. Baynton . 480 Pemberton v. Parke is" al. 300. 303, 304 People V. Pleas k^ al. Perkins v. Williams . 56 Page Perkins v. Fairfield . 156 Penrose v. Penrose . 467 Phipps u. Pitcher . 2 Phipps T'. Earl of Anglesea 17 Phillips -v. Phillips 140. 417 Pheasant v. Pheasant 220 Phillips XK Bignell . 249 V. Echard . 270 V. Paget 314, 315. 317 Phiney v. Phiney 377, 378 Phipps V. Steward . 496 Phcenix v. Hill . . 441 Philli/is and Wife v. Melson isf al. Pilkington v. Peach Pickering v. Towers . Pigot V. Gascoigne's Case Pinbury v. Elkin Pitfield's Case Pitt V. Hunt V. Lord Camelford Pierson v. Garnet Pipon i", Pipon Pitts V. Evans Plume r. Beale . Plumer v. Marchant Plunpet V. Penson Pltimstead's Appeal Piatt V. Smith's ExWs. Portland, Countess of, Progers Potter v. Potter . Powley and Sear's Case Poulet V. Poulet Poole's Case Powell f. Hankey Pope V. Whitcombe Pott V. Fellows Powell u. Coleaver Potinger v. Wightman Pockley v. Pockley Portman v. Cane Powell V. Killick Potts V. Layton Pollard V. Gerrard Poor i^ al. V. Robinson Pratt V. Stocke . Prattle v. King 344 12 35 102 169 172 217 301 328 387 490 70 278. 283. 296, 297 414, 415 2 430 V. II 26, 27 60 172 196 227 300 326 329 387 419 438 452 455 496 364 125 141 417 XXXll TABLE OF CASES CITED, Prowse V. Abingdon Pring V. Pring . Pratt V. Sladden Proud V. Turner Price V- Simpson Probert v. Clifford Price V' Packhurst V. Vaughan Prescott V. Tarbell Prevost V. JVichols Price V. Watkins Purse V. Snaplin 301, PuUen V. Serjeant Pulkney u- Earl of Darling- ton Pusey V- Pusey . Pusey V- Desbouverie Pynchyn v. Harris Pyne v- WooUand 243. Page 172. 422 300 352, 353 378 403 446 486 247 259 304 302 305 180 190 391 139 367 Quick r. Staines . 134, 135 i^nmcy^ ex fiarte . 197 Quarle's Ex'rs. v. Quarles l:f aL . . . 329 R. Rawlins i*. Burgis . 23 Raine's, Sir Richard, Case 65 Raine r. Comin. of Dioc. of Canterb, . . 74 Rachfield r. Careless 118. 350. * 352. 354 Ravenscroft r. Ravenscroft 121 Ray 1-. Ray . . 135 Ratcliff r. Graves . 159 Rashleigh f. Master . 208 Ravvlinson r. Shaw 297. 466 Raven r. White . 326 Rawlins v. Powel . 337 Ranking v. Barnard . 338 Randall y. Bookey . 352 Rann v. Hughes . 463 Raphael r. Boehm . 481 Rashley v. Masters . 483 Rattoon v. Overacker . 366 Read i\ Phillips . 2 Rex V. Bettesworth 9. V. Raines 31. 41. 65 ■ V. Simpson • y. Hay • r. Netherseal • V. Viiicent . ■ V. Rhodes . V. Inhab. of Horsley ■ V. Willet . ■ V. Inhab. of Stone ■ V. Stockland • V. Withers ■ V. Hilton ■ V. Peck r. Rett Page 71. 85. 105 370. 490 44 65 74 76 ibid. 87 141 145 157 172 358 457 ibid. 249 336 347 388 394 417 483 484 446 239 Reeves v. Freeling Reech v. Kennegal Reed v. Devaynes Redshaw v. Brazier Regina v. Rogers 389, 390. Read r. Litchfield Reech v. Kennegal 463. Read v. Truelove Reno, Ex. v. Davis llf ux. Rham v. J\forth Ripley t?. Watcrworth 3 Rickards v. Mumford . 14 Rider v.Wager 25, 304. 307. 33 1 . 338. 421 Richfield v. Udall . 34 Rigden v. Vallicr . 57 Ridler v. Punter . 135 Richardson v. Greese 172. 336 Rivers, Earl, v- Earl Derby 173 Richmond v. Butcher 176 Rightston f. Overton . 185 Ridout V. Lewis . . 227 r. Earl of Plymouth 230 Ridges V. Morrison 334, 335 Richardson v. Disborow 494 Riley v. Riley . . 56 Rickets v. Livings t07i . 338 Ric/iardso?i Ex. v. Hunt 344 Ross V. Ewer . . 9 Rowley v. Eyton . 26 Robinson %'. Pett 44, 455. 456 TABLE OF CASES CITED. 55XX111 Page Rose V. Bartlett . 106 Robin's Case . . 120 Rockingham, Lord, v. Ox- enden . . . 176 Roper V. RadclifFe . 199 Rook V. Warth . . 20 1 Rolfe V. Budder . • 226 Rogers v. Danvers 276. 283 Robinson v. Gee 283. 417. 419 V. Bland . 287 — V. Tonge 409 . 4 11 . 42 1 Rose V. Rose . . 304 Roden 17. Smith . . 312 Rotheram v. Fanshaw 317 Rowney v. Dean . 438 Rogers v. James . 452 Rocke r. Hart . 481. 483 Rous V. Noble . . 481 Robinson v. Martin Is^ al 303 Rossetter v. Siminojis 2 Royal V, Efifies Admr. of Royal ... 131 Rudstone v. Anderson 22 Rutland r. Rutland . 133 Rutland, Duke of, v. Duchess of Rutland . 354. 382 , Countess of, r. Rut- land . . 431. 433 Rutler V. Rutler . . 390 Russel's Case . 357. 433 Rush V. Higgs . . 455 Ruston V. Ruston . 71 Ruggles V. Sherman 156. 288 Rye V. Fuljambe . . 320 Page Sale V. Roy . . 307 Say's ExWs. v. Barnes 329 Scott V. Rhodes . . 57 Scudamore v. Hearne 281.292 Scattergood v- Harrison 455, 456 S. Sand's Case Sadler v. Daniel . Sacheverel v. Frogate Salwey v. Salwey Sawyer v- Mercer Sayer v. Sayer 30 1 , Saunders v. Drake Savile V. Blacket Sanivvell v. Wake Sagittary v. Hyde Sausmerez, ex parte Sadler v. HoBbs . Sampson v. Bryce (e) 122. 124 124. 491 176. 179 222 293 102. 339 322 330 417 420 452 484 305 Scott V. Stephenson Scurfield v. Howes Scott V. Halliday , Adm. V. Ramsay V. Dobson Semine t\ Howes Searle l*. Law V.Lane 263,266. Seton V. Lane Serle v. St. Eloy Seaman v. Everad Seers v. Hind Seno V. Dillingham'' s Ex'rs Selectmen of Boston v. Boyl- ston Shaw V. Cutteris . Sheath v. York Shaw V. Stoughton Shergold v. Stoughton Shepherd v. Shoi'those Shore v. Porter -, Lady, v. Billingsby 463 484 305 259 335 229 263 269 317 417 425 483 58 494 12 19 50 57 77 140 154 172 210 232 245 269 287 324 326 329 414 436 Sherman v. Collins Sherrard u. Collins Shaugley v- Harvey Shilleg's Case Shafts r. Powel Sharp V. Earl of Scarbro' Shirt V- Westby . Shepherd v. Ingram Shudall -u. Jekyil . Shiphard v. Lutwidge . Shuttleworth v. Garnet Shipbrook, Lord, v.' Lord Hinchinbrook . 485, 486 Shakeshaft, ex parte . 488 Shatter v. Friend . 494 Shelton v. Shelton . 301 Sliobe V. Carr . 323. 344 Shields ist al. v. Irvin is" al. 2 Sheaf v.O'JVeil . . 12 Shauffer V. Stoever . 124 Sheldon., isfc. v. Woodbridge 239 Shejile V. Farnsivorth . 340 1 XXXIV TABLE OF CASES CITED. Page Shefifiard's Ex. v. Starke iSt Wife . . 329. 341 Siiberschild V. Schiott 189 Sibley -v. Cooke . . 304 Sibthorp v. Moxam 304. 307 Simmons v. Gutleridge 349 Silsby isf al. v. Young 'C^ al. 341 Skinner v. Sweet . 424 Slaughter r. May 103. 404 Slanning -y. Style 227.481 Sleech v. Thorington 30 1 , 302 323. 340 Slingsley v. Lambert . 437 Sme'llr. Dee 171.305.312.324 105 . 45.74 48. 162. 439 91. 137 102. 172.471 151 172 270. 289 283. 443 290 300. 386 303 436 46 9 364 Smith's Case Smith V. Milles — — — V. Barrow ■ V. Tracey ■■ V. Smith - V. Gould - V. Partridge ' V. Haskins .. -v. Harman • V. Eyles -v. Campbell - V. Fitzgerald — V. Norfolk , Smithley v. Chomeley Smith V. Fenner . — — V. Folivell , Snelson v. Corbet 230, 231. 422 Snelling -y. Norton . 281 Snape v. Norgate . 447 Snyder's Less. v. Snyder 156 Southby V. Stonehouse 9 Southcot V. Watson 18. 352. 353 Sorrell v. Carpenter . 269 Soan V. Bowden and Eyles 286 Solley v. Gower . . 288 Southouse V, Bate . 353 Southampton, Mayor of, v- Graves . . . 466 Sprange r. Stone . 18 Sparrow v. Hardcastle 21, 22 Spurstow V. Prince Spinks V. Robins . Spencer's Case Sparks v. Crofts . S/iangler v. Rambler 158. 329. 434 390 406, 407 . 50. 73 Pa^e Squib -y.Wyn . 115.372 Squier v. Mayer . . 197 St. John's, Lord, Case 134 Stapleton v. Cheales 171, 172 Steadman -v. Palling . 171 Stapleton v. Cheele 171. 305 Stafford, Earl, 1-. Buckley 1 78.200 Stukely v. Butler '. 190 Stonehouse v. Evelyn 2. 323 Stone V. Forsyth . . 9 Stirling v. Lidiard . 22 Strathmore, Countess of, v. Bowes . . 26. 217 Stokes V. Porter . . 38 St. Legar v. Adams . 77 Strata, Case of Abbot of, ibid. Stanley v. Stanley 91. 382 Stodden v. Harvey . 255 Steel V. Roke . . 269 Stasby v. Powell . . 270 Stonehouse v. Ilford . 278 Stockdale v. Bushby . 300 Stephens r. Totty . 320 Stent V. Robinson . 326 Stanley r. Potter . . 331 St. Alban's, Duke of, v. Beauclerk . . 335 Stackpoole v. Howell . 347 Stanton v. Polatt . 394 St. John, Lord, v. Brandring 433 •Strange v. Harris . 481 Startup V. Dodderidge 494 Storer v. Hinkley . 134 V. Storer . . 134 Stoval, Ex. v. Woodeson isf Wife . . . 341 StoneiS'al.y. Massey 172.304.305 Stein isf al. v. JK''ort/i . 2 Stone v. Damas . . 8 Starr et v. Douglass . 9 Stone v. Batson . , 12 Stevens, Adm. v. Gaylord, 50. 56. 259. 350. 494 Stevenson v. Pemberton 56 Stair v. Stair . . 71 Sutton V. Sutton . . 14 Sudgrove v. Bailey . 234 Sumner, Adm'r. y. Williains 134. 156 TABLE OF CASES CITED. XXXV Page Swift V. Roberts 1. 21, 22. 28 Sweetland v. Squire . 286 Swift V. Gregson . 319 Swallow I". Emberson 444.471 Swearing-en v. Pendleton 134. 293. 430 Sword's Less. v. Adams 172 Swearingham v. StuU 324 Syms -v. Syms . , 129 's Case . . 155 Sympson v. Hornsby , 27 T. Tappenden v. Walsh . 1 1 Taylor -v. Shore . . 99. 124 Tasker d. Burr . . 141 Tate V. Hibbert 234, 235, 236 Tattersall v. Howell . 314 Talbot u. Duke of Shrews- bury . . 336, 337 Tate -v. Austen . . 339 Taylor -v. Acres . . 386 -v. Allen . . 358 Tankerville, Earl of, v. Faw- cet . . . . 419 Targus -y, Puget . . 172 Taylor v. Delancy . 86 Tamner v. Freeland . 267 Teynham, Lord, v. Webb 173 Tebbs -v. Carpenter . 426 Terrewest -v. Featherby 455 Temple v. Taylor Isf al. 9 Ten Eyck v. Vanderfiool 463 Thomas v. Davies . 55 -v. Butler 82. 98. 105. 117. 125. 127. 129 -y. Kemish . 182 -v. Bennett 227. 337 - V. Thomas . 318 r. Ketteriche . 385 Thorold v. Thorold . 57 Thrustout -y. Coppin 91.241 Thomson v. Butler 99. 121 — -u. Dowe . 173 Thornborough v. Baker 187 Thynn v. Thynn . . 295 Thellusson v. Woodford 330.373 Page Thornard, Earl of, v. Earl of Suffolk . . 331. 339 Thome v. Watkins . 387 Thompson -u. Stanhope 454 Thompson v. Thompson 350 Tipping TJ. Tipping 230, 231 421, 422 303 326 396 456 . 94. 108 172 Tidwell V. Ariel . Tissen v. Tissen . Tiffin -y. Tiffin . Tilney v. Norris . Tourton x>. Flower Tournay v. Tournay Townshend, Lord, v. Wind- ham . 227. 231.422 Toplis -v. Baker - . 304 Toulson V. Grout . 321 Tomkyns i*. Ladbroke 391. 395 Tomlinson -v Dighton . V. Ladbroke Tower -v. Lord Rous Todd V. Todd Toner v. Tagger t Tor bit t isf al. v. Twining Trevelyan v. Trevelyan Tredway v. Fotherly V. Bourn Trimmer v. Bayne Treviban v. Lawrence Trevinian v. Howell Troughton v. Hill Tuffnell -V. Page . Tucker v. Thurston Turner x>. Davies V. Crane . V. Turner 258, V. Jennings Tunstal v. Bracken 172 Turner's Case Turner's, Sir Edward, Case 217 Tudor r. Samayne . 217 Tulk -v. Houlditch . 306 Turbett v. Turbett . 71 Turner^ isfc. v. Chinn 430 Twaites v. Smith . 56 Tweedle v, Coverley . 417 Tweddle -y. Tweddle . 419 414 421 417 ibid. 2 71. 225 14 185 321 421 429 463 410 6 21 131 187 480 389 ,305 185 XX XVI TABLE OF CASES CITED. Page Tyntv. Tynt . 230,231 Tyrrell v- Tyrrell 324, 325, 326 U. Underwood v, Stephens 485 Upton t'. Prince . . 318 Urquhart v. King . 352 Utterson v. Utterson . 28 V. Vawson t;. Jeffery . 21 Van u. Clark . 171,172 Vanthieuson v. Vanthieuson 118 Vaux V. Henderson . 304 Van Renssalacr v. Plainer 172. 432. 435 Van Gordon v. Van Gordon 71 Vernon v. Vernon . 208 -v. Bethell . 314 Villiers -v. Villiers . 7 Villa V. Dimock . . 34 Vigrass -v. Binfield . 480 Visiters of the Free School of St. Mary's County v. Bruce . . • 58 W. Walker -v. Walker . 2 Warde v. Warde . 6 Ward -y. Moore . 21 Walker x-. Woolaston 31. 98. 102. 105. 257. 403, 404. 406. 447 Watford Ty. Mash am . 34 Wankford v. Wankford 42. 44, 45. 48. 91. 95. 114, 115. 241. 297. 347. 349. 357. 434. 437 Watt -v. Watt . . 84 Warwick x'. Greville . 90 Walcot x;. Hall . . 171 Warr -v. Warr . . 173 Waring x'. Danvers 183. 288, 289,290. 297 Walter v. Hodge . 232 Ward V. Turner 234, 235, 236" Walker v. Wiffer . 266 X'. Smallwood 269 Wall V. Thurborne . 319 Wallis V. Britrht . 322 Page Walker v. Shore . 326 Waring v. Ward . 328 Ward V. Lant . 329. 378 Watson V. Earl of Lincoln 329 Wallace v. Pomfret . 337 Walsh V. Walsh . 374 Walton V. Walton 354. 376 Walsam v. Skinner . 3 Wallis V. Hodgson . 373 Warren x^. Statwell . 410 Walker v. Meager . 414 V. Jackson . 417 Wainwright u. Bendlowes 417 Ward V. Lord Dudley and Ward ... 419 Wate V. Briggs . . 437 Walrond v. Fransham 438 Wallop V. Irwin . . 443 Wadsworth u. Gye . 475 Wall V. Bushby 483. 486 Walmsley v. Read . 2 Ware is" al. v. Fisher isf al. 303 Wales, j^dm'r.v. Willard 121 Ward V. Reeder . 466 Westbeech v. Kennedy 2 Wells V. Williams 12. 31. 34 Weston V. James 265. 442, 443 Wetherby r. Dixon . 329 Webb -u. Webb 340. 390 \yebster v. Webster 343 Westfailing v. Westfailing 409 Weston V. Poole . 440 West V. Skip . . 454 Westcot V. Cottle . 470 Wells f. Fydell . . 472 Webb r. Jones . . 4^7 Westley v. Clarke . 484 Wells V. Tucker 233. 234 Webster v. Hammond 293 Weston V. Weston . 50 Weeks v. Gibbs . 134 Weishaufit v. Boeman 172 White V. Driver . 8 —V. Barford . 18 Whale V. Booth 134. 256 Whitehall v. Squire 154. 472 Whitman v. Wild 173. 357 Whitchurch i\ Baynton 284 Wheeler v. Sheer 350. 352 TABLE OP CASES CITED. XXXVll White v. Williams Whithill V. Phelps White r. Evans . Whytmore v. Porter Wheatly v. Lane Page 352 391 360 367 428 Whitchurch v. Whitchurch 6 White's Ex'rs. v. Johnson if al. . . . 329 Wind r. Jekyl . 1,2.478 Winsor v. Pratt . . 14 Willet V. Sandford . 17 Williams v- Owen . 25 u. Crey . 158 V. Gary 433,434 ex fiarte . 454 Winchelsea, Earl of, v. Nor- cliffe 91. 115. 182, 373 Wilson -y, Pateman . 121 — — ^— V. Spencer . 173 r. Harman . 210 V. Fielding 284. 415. 420 — - V. Ivat . . 361 V. Poole . 440 Witter V. Witter . 182 Winn V. Littleton . 187 Wilford V. Chamberlain of London . . . 201 Winchcombe -v. Bishop of Winchester . 283. 425 Willing V. Baine . 304 Willats V. Cay . . 320 Wilcocks I". Wilcocks 386. 393 Wilkinson i'. Miles . 390 Willis V. Brady . 359. 361 Willand v. Fenn . 407 Willoughby v. Willoughby 410. 426 Wilks V. Steward . 428 Wightman v. Townroe and others . . . 474 Widdowson v. Duck . 480 Wilkinson v. Mayo . 50 Wilmot V. Talbot . 71 Page Willard v. A^'ason^ AdmW. 156 Wilson V. Watson . 156 Wilkes ^ ux. v. Rogers t?" al 329 Winshifi v. Briss Isf al. 350 Wilson V. Wilson 355. 457. 464 Wilson V. Hurst's Ex'rs. 470 Woodward I?. Parry . 219 Worsley r. Earl of Scarbo- rough . . 269. 270 Woodhouselee,Lord, V. Dal- rymple . . . 300 Woodward v. Glassbrook 302 Woodroffe v. Wickworth 385 Wood V. Briant . 394 Worthington v. Barlow 464 Wooster v. Bisho/i . 431 Workring v. Stewart 156. 259 Woodhul V. Ramsey . 59 Worsham v. M'Kinsie 430 Wright V. Woodward 28 9 — -v, Rutter . 32 1 V. Lord Cadogan 337" executors of, v. Nutt 443 V. Bluck . 495 Wynch v. Wynch . 325 Yates r. Phittiplace Yard v. Eland -u. Ellard Yates V. Gough Yate V. Goth Yaites v. Gough Yare v. Harrison Yard v. Lea's Ex. Young V. Case V. Holmes V. Radford Yohe V. Barnet . Z. Zachariah r. Page Zebach v. Smith 172 241 241 449 447 449 480 496 67 344 217 223 439 364 THE LAW OF EXECUTORS AND ADMINISTRATORS. BOOK I. OF THE APPOINTMENT OF EXECUTORS AND ADMINISTRATORS. CHAP. I. OF WILLS AND CODICILS WHO MAY MAKE THEM — WHO NOT HOW THEY ARE ANNULLED OR REVOKED — HOW REPUB- LISHED. BEFORE I enter on the subject of this treatise, I shall state some general propositions in regard to wills. A will, or testament, is defined to be the legal declaration of a party's intentions, which he directs to be performed after his death. (^) A will may relate either to real, or to personal property. In the former case, it is denominated a devise, which is an appointment of a person to take in the nature of a convey- [2] ance, although fluctuating till the testator's death, and will pass only such estate as he was seised of at the time of making itC*) ; the right to devise arising from the stat. 32 Hen. 8. c. 1. which enacts, that persons having lands may devise the same. By the statute of frauds and perjuries, 29 Car. 2. c. 3. it shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express directions; and (^) 2 Bl.Com. 499, 500. Swift v. Roberts, Amb. 619. Oke v. C') 4 Bac. Abr. 242. 2 Bl. Com. 378. Heath, 1 Ves. 141. Brydges v. Duch. .501. AVind V. Jckyl, 1 P. Wms. ST5. of Chandos, 2 Ves, jun. 427. B 2 OF WILLS AND CODICILS. [bOOK I. be subscribed in bis presence by three or four credible wit- iiesses(='). [1] (') Vide Ellis v. Smith, 1 Ves. jun. Wms. 239. and Stonehouse v. Evelyn, II. Brodei-ick v. Broderick, 1 P. 3 P. Wms. 254. [1] The manner of executing last wills and testaments is variously prescribed in the several states, by Statute. In all, wills disposing of real estate are re- quired to be in writing.* In the following states, the -attestation of three or more witnesses, as set forth in the text, is necessary, to a will of lands, &c. viz. Vermont, Rhode Island, New Hampshire, Massachusetts, Connecticut, New York, New Jersey, Maryland, South Carolina, Alabama, and Mississippi. In Maine, the like formalities are necessary; and in wills of personal as of real estate. In Pennsylvania and Delaware, two witnesses only are necessary ; but two are required, whether the will be of real or personal estate. In Virginia, North Carolina, and Kentucky, Ohio, Indiana, Missoiu-i, Tennessee, and Delaware, two witnesses must attest the devise of real estate, which must be signed by the testator, or some other person in his presence and by his direction, and the witnesses must subscribe also in his presence. In the three first named states, the witnesses are not requisite, if the will be written wholly by the testator. In Indiana, a will of personal or real estate must be sealed. In Illinois, a will of real or personal estate must be signed by the testator, and witnessed by huo or more witnesses in his presence and in the presence of each other. In Louisiana, wills of real and personal estate are nuncupative, mystick, or olographick. The nuncupative is authentick or private. The authentick is re- ceived by a notary and three witnesses resident in the parish, or five non-resi- dents. The private is executed before five witnesses resident in the parish, or seven others. In the country, three witnesses of the parish, or five resident out of it, suffices. The mystick will is written by the testator, or some other person by his order, and presented, closed, to a notary and seven witnesses. The notary draws on the cover an act of superscription, to be signed by him- self and tlie witnesses. The olvgraphick will is -n'liolly written, dated, and sign- ed by the testator. If it be sealed up, he ought to write on the cover, " This is my olographick will," and subscribe his name. Women, males under sixteen, the blind, deaf, dumb, or insane, the infamous, and slaves, cannot be witnesses to a will. Neither can instituted heirs or le- gatees. The authenlick codicil may be received by a notary and two witnesses ; the private codicil requires five, and the mystick demands five, if the testator have signed, and six if he have not signed, the codicil. Under the foregoing rules, the following judicial decisions have been madp. In Massachusetts, it is not necessary that a seal be annexed to a-will. Avery y al. v. Pixley, 4 Mass. T. R. 460. * See, for Pennsylvania, Rossetter v. Simmons^ 6 Serg. & R. 452. CHAP. I.] OF WILLS AND CODICILS. 2 But tlic actual sigMiaturc of the testator in the presence of the three subscribing- witnesses, is not required, if he recognise In Pennsylvania, two witnesses are required in proof of every testamentary writing- disposing of real or personal estate. Lewis v. Maris, 1 Dall. 278. But it is not necessary that a will should be sealed ; nor that all the subscribing witnesses should prove the execution ; nor that proof of the will should be made by subscribing witnesses; nor that the will should be subscribed by the witnesses. Might v. Wilson, 1 Dall. 94 : nor that the testator should sign it, if drawn pursuant to his special instructions. Less, of Walmsleii v. Read, 1 Yeates, 87. Though a will of land must regularly be proved by two witnesses, yet cir- cumstances may supply the want of one witness, where they go directly to the immediate act of disposition. Eyster et al. v. Young, 3 Yeates, 511. A will to pass lands, though proved out of the state, must be proved by two witnesses, but they need not be subscribing witnesses. Hylton v. Browne, C. C. Jan. 1806. MS. Rep. Wharton's Dig. And when the subscribing witness is out of the jurisdiction of the Court, his handwriting may be proven as if he were dead. Eiigles et ah v. Benington, 4 Yeates, 345. In Virginia, a testator executed his will in due form of law; one of the le- gatees afterwards died in the lifetime of the testator; he gave verbal instruc- tions for a new will, and subsequently drew a memorandum (nearly similar to the instructions) all written with his own hand, but in which his name no where appeared. He dying without having executed a new will, the memorandum was established as a good codicil to pass the personal estate. Cogbill v. Cogbill^ 2 Hen. & Mun. Rep. 467. In North Carolina, the signing of the testator may be proved by evidence, that he acknowledged it, though the name or signature or handwriting was not before him, and though the paper lay at a distance on the table. Devisees ofEilbeek v. Gi-ajiberry & al. 2 Hayw. R. 233. The writing of the decedent must appear clearly to be of a testamentary na- ture, or it will not operate as a will. For where one enclosed securities for debts in an envelope, and endorsed on it, " for R. G." and other securities in another envelope, endorsed "for the heirs of G. P." and such securities so en- veloped were found in the possession of the deceased, never having been out of her possession, and without any communication made to any one upon the sub- ject, it was held, that the endorsements were not testamentary, and could not be admitted to probate as a will. Plu/nstead's appeal, 4 Serg. &, R. 545. So, where A, living in Philadelphia, wrote a letter to a sist^T in Germany, desiring her to send over her son B, "and if he proved obedient, and followed all his directions, he should be the heir of his whole estate," this is not a will of land in favour of B. Stein & al. v. J\i'orth, 3 Yeates, 324. Where A executed an instrument under seal, declaring that in consideration of the care and attention shown him by B, during his illness, he acknowledged himself indebted to her, and that his executors or administrators should pay her a certain sum in one year, which instrument was delivered to B : this was ruled to be an obligation, and not a testamentary disposition. Shields and Bea. 362. Sel. 9. (c) Morlson v. Tumour, 18 Vez. 183. (0 Bettison v. Bromley, 12 East. 250. So, where A, who had been brought up in the store of B, and to whom B had given proofs of kindness, deposited in the hands of B, at different times, between the months of January and June 1804, the sum of glO,000, for which he refused to take receipts, saying that he had mentioned his purpose to B. At one time, he said he should not have been worth a cent, but for B, and that he should leave §8000 to one of B's children : at another time, he declared, that he meant to place glO.OOO in B's hands, for the proofs of his friendship ; and afterwards, that, what he should die possessed of, he meant to leave to B and his children. In the summer of 1805, at which time he was in ill health, he said, that he owed every thing to B, and that in case of his death, B or his famihi should be secured, -whether he made a luill or not. After his death, a paper was found in his pocket-book, with his signature, in these words, "I acknow- ledge to be indebted to B in the sum of g8000, value received of him— Phila- delphia, June 15, 1805." Held, that this paper might be considered as a debt by A to B, and that B, who took out letters of administration, might retain the amount as a debt, but that it was not of a testamentary nature ; and if it were, it must be proved before the Register, before the Supreme Court could give it effect. Toner v. Tagger t, 5 Binn. 549- A will of personal property, not executed according to the law of the place of which the testator was a domiciliated inhabitant at the time of his death, will not pass personal property in a foreign country, although executed accord- ing to the laws of that country. Bessebats v. Berquier, 1 Binn. 336. CHAP. I.] OF AVILLS AND CODICILS. 2 And an executor clothed with a trust to pay debts, and to lay out money for the benefit of the testator's children, and with power to sell freehold lands in fee, but taking no benefi- cial interest under the Will, is a good attesting witness to it (f). A will, as it respects personal property, is an indefinite dis- position of all the testator may be possessed of at his death (g), inclusive of chattel leases, whether they were his at the time of making his will or not(h), and is of two species, written, and nuncupativ e : if of the former, it may be committed to writing either by the testator himself, or by his directions (') ; nor is the affixing of his seal to the instrument, nor the presence of witnesses at its publication, essential to its validity ; yet it is safer, and more prudent, and leaves less in the breast of the ecclesiastical judge, if it be not only signed by the testator, but also published in the presence of witnesses ('). But although the testator's seal, and tlie attestation to the will, and, under certain circumstances, even his signature, may be omitted, and still it may operate as an available disposition [3] of personal estate C^) ; yet if, on the omission of either ol those solemnities, a fair presumption may be raised of an aban- donment of intention on the part of the deceased, or that his in- tention was merely ambulatory, the instrument shall have no effect. Thus, where the party wrote a paper purporting to be a testamentary disposition of his property, to which a clause of attestation was added, but not filled up, the court thought it reasonable, from the want of witnesses, to infer that he had changed his mind, and pronounced for an intestacy. So, where the party had merely sealed the paper propounded for a will without signing it, from the omission of the signature, the in- ference and decision were the same. In these and the like cases, the framer of the instrument appears evidently to liave contemplated a farther solemnity, as essential to its perfection j (f) Ph'ipps V. Pitcher, 6 Taunt. Rep. (»>) Wind v. Jekyl, 1 P. Wms. 575. 220. 1 Madcl. Rep. 144. 1 TJooi's i?e/). (:) Huntingdon v. Huntingdon, 2 494. Phill. Rep. 213. (g) Oke V. Heath, 1 Ves. 141. All (i) 2 Bl. Com. 501, 502. Godolph. p. Soul's Coll. V. Codrington, 1 P. Wms. 1. c. 21. s. 2. Vide Limberg tj. Mason, 598. Brydges v. Duch. of Chandos, 2 Com. Rep. 451. Ves. jun. 42r. (^> Read v. Phillips, 2 Phill. Rep. 122. 3 OF WILLS AND CODICILS. [bOOK I. and such solemnity not having been superadded, and the in- strument being left inchoate and imperfect, a change of inten- tion may reasonably be presumed (i). But sucli presumption may be repelled by evidence, as by showing that the party was suddenly arrested by death, or incapacitated by illness, before the instrument could be conveniently perfected (">), or by prov- ing his recognition of it in extremis, or by circumstances show- ing he intended it to operate in that form, for the presumption from such an omission that he intended doing something more, is slight, and may be rejjelled by slight circumstances ("»). By Stat. 33 Geo. 3. c. 28. § 14. and 35 Geo. 3. c. 14. § 16, it is enacted, that all persons possessed of any share or interest in the funds or any estate therein may devise the same by will in writing, attested by two or more credible witnesses. But it has been adjudged, that although the same should not be so bequeathed, yet it devolves on the executor in trust for those who are entitled to the personal estate ("). With regard to nuncupative wills, the unqualified allowance of them was found productive of the greatest frauds, and it her- [4] came necessary to subject them to very strict regulations. Accordingly, by the stat. 29 Car. 2. above-mentioned, it is en- acted, that no such will shall be good, where the estate thereby bequeathed shall exceed the value of thirty pounds, that is not proved by the oaths of three witnesses at the least, who were present at the making thereof (who, by stat. 4 & 5 »inn. c. 16, must be such as are admissible on trials at common law), nor unless it be proved, that the testator, at the time of pronounc- ing the same, did bid the persons present, or some of them, bear witness that such was his will, or to that effect ; nor, un- less such nuncupative will were made in the time of the last sickness of the deceased, and in his dwelling-house, or where he had been resident for the space of ten days or more, next (') Mathews tj. Warner, 4 Ves. jun. ("<) Baillie v. Mitchell, in Prerog. 185. and5 Ves. jun. 23. Griffin's case, Court, 1805. cited in Mathews v. Warner, and in ("') Harris v. Bedford, 2 Phill. Rep. ex-parte Fearon, 5 Ves. jun. 644. and 177. Coles V. Trecotliick, 9 Ves. jun. 249. (") Ripley V. Waterworth, 7 Ves. jun. and see Walker v. Walker, 1 Meri. 452. Hep. 503. CHAP. I.] OF WILLS AND CODICILS. 4r before the making of such will, except where such person was taken sick from home, and died before his return ; nor, after six months past after the speaking of the pretended testament- ary words, shall any testimony be received to prove any will nuncupative, except the testimony, or the substance thereof, were committed to writing within six days after the making of the said will (°). [2] Soldiers in actual military service, and mariners, or seamen at sea, are exempted from the provisions of this act. The for- mer may at this day make nuncupative wills, and dispose of tlieir goods, wages, and other personal chattels, without those forms and solemnities which the law requires in other cases (p\ (°) See INIiller v. Miller, 3 P. Wms. (p) 1 Bl. Com. 417- Stat. 29. Car. f? 356. c. 3. s. 23. 5 W. 3. c. 21. s. 6. [2] The law relative to nuncupative wills, in the several states, is substan- tially the same as the Stat. 29 Car. 2. The principal variation is in the sum disposable by this species of will, when the directions of the Act are not com- plied with. This sum is fixed, in Vermont and Missouri, at two hundred dol- lars ; in Massachusetts and Delaware, at fifty pounds ; in New York, at seventy- five dollars ; in New Jersey, at eighty dollars; in Maryland, at three hundred dollars ; in Virg-inia, at thirty'doUars ; in North Carolina and Tennessee, at one hundred pounds ; in Kentucky, at ten pounds ; in Alabama and Maine, at one lunidred dollars ; in New Hampshire, Ohio, Mississippi, South Carolina, and Georg'ia, the provisions of the Stat, of Car. 2, on this head, are preserved. la Khode Island, a nuncupative will is not permitted, unless to a soldier in actual service, or a sailor at sea. Connecticut does not appear to have legislated up- on tliis subject. In Pennsylvania, Delaware, Virginia, North Carolina, Ken- tucky, Tennessee, and Missouri, two witnesses only are required to the proof of a nuncupative will. A man on his death-bed, at his own house, and in his proper senses, sent for a neighbour to make his will, who took notes thereof in his presence, and in that of another witness, who was present all the time, and heard the sick man request the first witness to make his will, and direct each note to be taken. A third witness was not present when the first witness began to take notes, but was present afterwards, and heard some of the notes dictated. Two of the witnesses swore that the notes, or most of them, were read to the decedent, but were not positive, that the whole were, nor did the sick man read them himself, but he was then in his proper senses. After the first witness had made a draught from the notes, the decedent was incapable of reading, or hearing it read, being at that time delirious The notes so taken were estr\ blished as a nuncupative will. Mason y. Diinman, 1 Munf. K, 456, 6 OF WILLS AND CODICILS. [bOOK f. [5] But, with respect to the latter, tliis license no longer ex- ists. The perpetual impositions practised on this meritorious and unsuspecting body of men induced the legislature to adopt a new policy, and to divest them of a privilege, which, instead of being beneficial to them, was perverted to purposes the most injurious. Many salutary regulations were accordingly prescribed by the statutes 26 Geo, 3. c. 63. 32 Geo. 3. c. 34. and 49 Geo. 3. c. 108, in regard to the making and prohate of the wills of petty officers and seamen in the king's service, and of non-commis- sioned officers of marines, and marines serving on board a ship in the king's service, since however repealed, and other regu- lations substituted by the statute 55 Geo. 3. c. 60, but which I shall defer specifying till I treat of probates. A codicil is a supplement to a will, annexed to it by the tes- tator, and to be taken as part of the same, either for the pur- pose of explaining, or altering, or of adding to, or subtracting from, his former dispositions (i). A codicil may be annexed to the will, either actually or con- structively. It may not only be written on the same paper, or affixed to, or folded up with the will, but may be written on a different paper, and deposited in a different place. A codicil may be annexed either to a devise of lands, or to a will of personal estate. To alter the former, a codicil must [6] by the statute of frauds be in writing, and signed by the devisor, or some other person in his presence, and by his express directions, and be subscribed in his presence by three or four credible witnesses {^). To a will of personal estate it may be either written or nuncupative, provided, in case of its being the latter, it merely supply an omission in the instrument. Therefore A having disposed of part of his effects by his will in writing, may dispose of the residue by a nuncupative codi- cil (^). But by the same statute, as we shall presently sec, such codicil shall not operate to repeal, or alter a will. A written ('i) 2 lU. Com. 500. Svvlnb. Part 1. . Ellis v. Smitli, 1 Ves. jun. 11. and s. 5. Infr. 15. (') Onions v.Tyrer, 1 P. Wms. 344 & (') Com. Dig. Devise (C.) Raym. 334 note 1. ibid. vid. Douf'l. 244. note 2. CHAP. I.] OF WILLS AND CODICIL.^. 6 codicil respecting personal estate is autlienticatcd in the same manner as a will of such property. In respect to copyholds, they are not within the statute of frauds. A devise of them operates only as a declaration of uses on the surrender to the use of the will : if, therefore, the form required by the surrender, which is usually nothing more than a testamentary declaration in writing, he observed, it is suffi- cient without any witness : and till that statute required all de- clarations of trusts to be in writing, even a nuncupative will of copyholds was an effectual declaration of the uses, where the surrender was silent as to the form (t). [7] But a devise of customary freeholds, where there is no custom to surrender to the use of the will, must be pursuant to the statute ("). An estate pur autre vie, being freehold, will pass by such a will only, as is so executed (j). In regard to terms for years, as they fall within the descrip- tion of personal estate, they may be disposed of by Mill accord- ingly, with this distinction : If they are terms not in gross, but vested in trustees to attend the inheritance, they so partake of its nature, that if the owner devise the land generally, the trust of the term will not pass, unless the will be so attested as to pass the inheritance (w). If they are terms in gross of which the testator is possessed, he may transmit them by the same kind of will as any other personalty ; yet he cannot create them by will, without observing all the forms essential to a devise of real estate^ because the interest, in right of which the testator creates the term, is real property, and the creation of the term is a partial devise of it ("). (t) Harg. Co. Lilt. 114 b. note 3. (") See Walk. Princ. Convey. 22. and Tiiffnell V. Page, 2 Atk. 37. S. C. Stat. 29 Car. 2. c. 3. s. 12. and 14 Geo. 2 Barnard, Ch. Rep. 9. Attorney-Ge- 2. c. 20. neral v. Barnes, 2 Vern. 598. Dormer (w) Harg. Co. Litt. 114 b. note 3. V. Thurland, 2 P. Wms. 510. Harris Whitchurch r. Whitchurch, Gilb.Ca. V. Ingledew, 3 P. Wtns. 96. Carey v. in Eq. 168. S.C. 2 P. Wms. 236. S.C. Askew, 2 Bro. Ch. Rep. 58. Church 9Mod. 127. Villiers w. Villiers, 2 Atk. r. Mundy, 12 Ves. jun. 429. 72. Goodright i>. Sales, 2 Wils. 329. (") Warde v. Warde, Amb. 299. c Vid. infr. (") Harg. Co. Litt. 114 b. note 3 7 OF WILLS AND CODICILS. [bOOK I. If a will give a sum of money originally, and primarily out of land, tiic instrument is considered as a devise of real estate, and must be executed with the same solemnities, because the charge is regarded in equity as part of the land, since it can be raised only by sale, or disposition of part of it (y). [8] Although money covenanted to be laid out in land shall descend as a real estate, and may be devised accordingly, yet lie, who is entitled to the fee of the land when purchased, may dispose of it as personal property, under the description of so much money to be laid out in land, by a will, which is not at- tested by three witnesses (^). The statute of frauds has been held not to be applicable to the case of a devise of land in Barbadoes ("), because acts of parliament passed in England without naming the foreign plan- tations will not bind them. A will may be void from the incapacity of the party making it ; and secondly, it may be annulled by cancelling, or revok- ing it (b). There are three grounds of incapacity^ the want of sufficient legal discretion ; the want of liberty or free will ; and the cri- minal conduct of the party (<=). [3] (y) Bruclenellw. Houghton, 2 Alk. 272. (^) Anon. 2 P. Wms. 73. (^) Lingen v. Sowray, 1 P. Wms. 172. (b) 2 Bl. Com. 502. 291. Edwards v. Countess of War- /.x o t.i ^ ,ir,^ ^r^^ wick. 2 P. Wms. 171. S.C. 3 P. Wms/ ^^ ' ^'^ ^°"- ^''' '''■ 221. note. S. C. 2 Eq. Ca. Abr. 298. [3] The age of legal discretion for making a devise of real estate, has beeu fixed at 21 years, by every state in the Union, for males. In Vermont and Ma- ryland females may devise lands at 18 years of age. The age of discretion for bequeathing personal property, remains as at common law, in all the states, except Connecticut, Rhode Island, Virginia, North Carolina, and Missouri. In the first, it is fixed at 17, in the others at 18 years. If a testator, at the time of dictating his will, have sufficient discretion for that purpose, and be able to recollect, at the time of makin.^ his will, tlie par- ticulars he has dictated, it will be evidence of a sound and disposing mind and memory. Hathorn & al. v. King's Ex'rs. 8 Mass. T. R. 371. If a person, placed under guardianship as nnn compos tneniis, be restored to his reason, he is capa- ble of making a will, although the letters of guardianship remain unrevoked. Slone V. Damas, 12 Mass. T. R, 488 '' CHAP. I.] OP WILLS AND CODICILS. 8 To the first are subject, by the expi-ess provision of the stat. 34 & 35 Hen. 8. c. 3. all infants under the age of twenty-one years in regard to lands (''). In respect to personal estate, in- fants under the age of fourteen years, if males, and of twelve years, if females, are ijicomjjetent to bequeath the same (*^) : After that period their incapacity ceases : although, on the one hand it has been strangely asserted, that an infant of any age, even of four years old, may make a testament of personal pro- [9] perty (f) ; and on the other, he has been denied before eigh- (<<) Herbert v. Torball, 1 Sid. 162. (0 Perkins s. 503 ; but that seems an Stat. 34 & 35. H. 8. c. 5. s. 14. error of the press for 14. Vide Harg. {') Off. Ex. 213, 214. Harg. Co. Litt. Co. Litt. 89 b. note 6. 89 b. note 6. The sanity of a testator is presumed, until the contrary appears. The onus probandi as to his mental incapacity, lies on the party who alleges the insanity. But if a mental derangement have been proven, it is incumbent on the devisee to show a lucid interval, or the sanity of the testator, at the time of executing the will. Jackson £J Van Dusen v. Van Dusen, 5 John. Rep. 144. Less, of Hoge V. Fisher & al. 1 Peters' Rep. 163. To prove the sanity of his testator, it would seetn, the executor is not a witness. Hat/den v. Smith, 2 Root, 350. The will being luholly written by the testator himself, affords pri7nn facie evidence that he was in his senses, and able to make a will, so that the omis probandi lies on those who wish to impugn it : and proof that the testator's intellects were greatly impaired by the use of opium and ardent spirits, and that, in consequence thereof, he was frequently unfit for business, is not suffi- cient to repel this presumption, without proof, that such was liis condition at the time -Mhen the -writing was executed. Temple v. Taylor & Temple, 1 Hen. & Munf R. 476. Drunkenness, merely of itself, is no legal exception to the validity of a will, unless it absolutely disables the parly from disposing of his estate with intelli- gence and reason. Starret v. Douglas, 2 Yeates, 48. 1 Hen. & Munf R. 476. A man has a right, by fair argument and persuasion, to induce another to make a will, and even to make it in his favour. Millar & al. v. Millar, 3 Serg. & R. 269. ♦ The declarations of the testator before and at the time of making a will, and afterwards, if so near as to be a part of the res gestx, are adnjissible, to show fraud in obtaining the will. But not declarations at any distance of time after the will has been executed, especially, where the will has been in the testator's possession. Smith v. Fenner, 1 Gall. Rep 170. The declarations of the testator as to his intention to alter his will, and being prevailed upon not to do so, are not adniissible, to show that the will was fraudulently prevented from being revoked, there being no act or attempt shown to revoke the will. Ibid. 9 OF WILLS AND CODICILS. [bOOK L. teen, to be competent (k) • yet tliis, as a matter of ecclesiastical cognizance, must be determined by the ecclesiastical law, which has prescribed the rule as above stated (■'). But, if the testatoi-, of whatever age, were not of sufficient capacity, that will invalidate his testament. By the above-men- tioned statute of tlie 34th and 35th Hen. 8. a will of lands made by an idiot, or by any person of nonsane memory, is declared void. Persons afflicted with madness, or any other mental dis- ability, idiots, or natural fools, or those whose intellects are destroyed by age, distemper, or drunkenness, are all incapable of making a will of personal estate, during the existence of such disability. In this class also may be ranked those persons, who, having been born deaf, and blind, have ever wanted the common sources of understanding ('). But a will is not affected by the subsequent iiisanity of the testator (i-^). And if a testator be subject to insanity, a will made during a clear lucid interval will be established ('). In respect to the incapacity arising from the want of liberty, or freedom of will, prisoners, captives, and the like, are not by the law of England absolutely disabled to make a testament j but the court has a discretion of judging, whether, from the special circumstances of duress, such act shall be construed in- voluntary. A married woman is also precluded, by the aforesaid stat, 34 and 35 Heji. 8. from devising lands. Nor has she the power of [10] bequeathing personal estate. Her personal chattels belong absolutely to the husband. He may also dispose of hei* chattels real, and he shall have them to himself in case he survive ; an interest which necessarily precludes her from such an aliena- tion ('") : yet by the license of the husband, she may make a testament, and, on marriage, he frequently covenants with her friends to allow her that privilege (»). So, w here he stipu- (i) Harg. Co. Litt. 89 b. 90. White v. Driver, ib. 84. 1 Dow's (h) 2 Bl. Com. 497. Harg. Co. Litt. 89 Rep. 178. b. note 6. ('") 2 Bl. Com. 497, 498. 4 Co. 51. 34 (■■) 2 Bl. Com. 497. & 35 Hen. 8. c. 5. s. 14. (}) 4 Co. 60. (") Dr. &, Stud. D. 1. c. 7. 4 Bac. Abr. (1) Gierke v. Cartwright, 1 Plull. Rep. 244. Vide Rex v. Bettesworth, Stra. 891. CHAP. I.] OF WILLS AND CODICILS. 10 lates that personal property shall be enjoyed by the wife sepa- rately, it must be so enjoyed with all its incidents, one of which is the power of disposition by a testamentary instrument (°). And where she has such power over the principal, it extends also to its produce, and accretions (i>). [4] But wliere a feme covert, in consequence of such a contract on the part of the husband, makes a writing in the nature of a will, it seems not in a strict legal sense to operate as a will, but as an appointment ,♦ yet it is so far testamentary, that it must be proved in the spiritual court, before her legatee shall be entitled (q). If the husband be banished for life by act of parliament, the wife is entitled to make a will ('). So where personal property [11] is given in trust for the sole and separate use of a married (°) 4 Bac. Abr. 244. in note, Fettl- v. Forsyth, Dougl. 707. Vide also place V. Gorges, 3 Bro. Ch. Rep. 8. Cotter v. Layer, 2 P. Wms. 624. Duke S. C. 1 Ves. jun. 46. 12 Mass. Rep. of Marlborough v. Lord Godolphin, 525. 2 Ves. 75. Southby v. Stonehouse, ib. (p) Gore V. Knight, 2 Vern. 5:^5. Her- 612. 2 Bl. Com. 498. Rex v. Bettes- bert V. Herbert, Free. Ch. 44. 355. worth, Stra. 891. (. land v. Progers, 2 Vern. 104. 2 Huyio. Sydenham, 2 Bro. Ch. Rep. 392. Stone Rep. 406. [4] By the covenant of the husband with the wife before marriage, the wife may not only bequeath personal property, but she may devise her real estate. Barncs''s Lessee v. Irwin, 2 Dall. 199. 1 Yeates, 221. A feme covert, with the assent of her husband, may dispose of money or other chattels by will ; because he alone is interested to question her authority. But she cannot devise her lands, even with her husband's assent, so as to bar and exclude her heir ; because the heir cannot be disinherited hut by some legal conveyance made by her, and the assent of tlie husband will not make the will effectual for that purpose. Osgood v. Breed, 12 Mass. T. R. 525. If a wife make a will during the life of her husband, and she survive him, but do not republish the will after his death, it cannot be valid and effectual to pass the estate. Ibid. A feme covert, entitled, under a marriage settlement, to a sum of money, set- tled upon her, to her sole and separate use, and after her death without issue, to her next of kin, may, by an in.strument freely and voluntarily executed under her hand and seal, direct the whole amount in the hands of the trustee or his assignees to be paid to her husband. Dallam v. JVampole, I Peters' R. 116. 11 OF WILLS AND CODICILS. [bOOK I. woman, she may dispose of it by will, without her husband's assent (*). A feme covert may also make a will of effects, of which she is in possession in autre droits in a representative capacity j for they never can be the property of the husband ('). The queen consort has a general right to dispose of her personal estate by will, without the consent of her lord ("). Persons incompetent by their crimes are all traitors, and fe- lons without benefit of clergy, from the time of their conviction and attainder, or outlawry, which amounts to the same ; for then their property is no longer at their own disposal, but is altogether forfeited (^). [5] In case a traitor, or felon without benefit of clergy, shall die after conviction, and before attainder, his lands shall pass by his will, but not his goods and chattels; for the formei re for- feited only on attainder, the latter on conviction (^^). Nor shall the will of a felo de se, so far as it respects goods and chattels, have any operation ; for they are forfeited by the [12] act and manner of his death; but a devise of his lands shall be effectual, for of them no forfeiture is incurred ("). As is also that of a party guilty of felony, not punishable with death, for he forfeits only his goods and chattels {j). And a felon of every description may devise lands held in gavelkind ; for lands of this tenure are not forfeited by felony {^). (s) Fettiplace v. Gorges, 3 Bro. Ch. ' Hale, P. C. 205. Godolph. p. 1. c. 12- Rep. 8. S. C. 1 Ves. jun. 46. Tappen- s. 8, den V. Walsh, 1 Phill. Rep. 352. (^v) 4 Bl. Com. 387. (') Off. Ex. 87. Godolph. 1.10, 11. Vin. (") Plowd. 261. Swinb. 106. 4 Bac. Abr. 141. Abr. 247. 4 Bl. Com. 386. 3 Inst. 55. (") Harg. Co. Litt. 133. (v) 4 Bl.Com. 97. Co. Litt. 391. (•■) 2 Bl. Com. 499. 4 Bl. Com. 380, (^) 2 Bl. Com. 84. 4 Bl. Com. 386. 381. 387. Bac. Abr. tit. Outlawry. 2 Lamb. Peramb. 634. [5] The forfeiture of estate for crimes, longer than the life of the offender, i.s abrogated in many, and it is believed in all the states. And a felo de se is humanely and universally considered as having been insane at the time of his self-murder, and his relations as entitled to commiseration, not to punishment, for his act. (See the Constitutions of the several states.) His will of chattels as well as of lands is valid, if at the time of making it he were of disposing mind and memory. CHAP. I.] OF WILLS AND CODICILS. 12 Outlaws also, though merely in civil cases, are intestable, in respect to their personal property, while their outlawry subsists ; for their goods and chattels are forfeited during that time (^). As for persons guilty of other crimes inferior to felony, as usurers, and libellers, they are not precluded from making tes- taments C^) ; nor, as it seems, is a party excommunicated («). An alien, with whose country we are at war, if he have uot the king's license to reside here, express, or implied, is, by our law, incapable of making a will ; but if he have such license, he, as well as an alien friend, may bequeath his personal es- tate (''). They can neither of them acquire any permanent property in land. They may, indeed, hire, or take leases for years of houses for habitation (e), which chattel interests, it [13] seems, they may dispose of by will (f) : But the stat. 32 Hen. 3. c. 6. s. 13. makes void all leases of houses or shops to an alien artificer, or handicraftsman. And this law, however contrary it may appear to sound policy, and the spirit of com- merce, is still in force ; but in favour of aliens it has been con- strued very strictly (?). [6] (») Fitzh. Abr. tit. Descent, 16. Paine Harg. Co. Litt. 1 Anders. 25. -v. Teap, 1 Salk. 109. Seel vid. Shaw N. Bendl. 36. vld. V. Cut'eris, Cro. Eliz. 851. also, Caroon's case, Cro. Car. 8. Sed C") Godolph. p. 1. c. 12. vid. Co. Litt. 2 b. (') Off. Ex. 17. (6) Harg. Co. Litt. 2 b. note 7. vid. ('') 1 Bl. Com. 372. Wells v. WiHiatns, Jevons v. Harridge, 1 Sid. 309. Jevoiis 1 Lutvv. 34. 1 Wooddes. 374. v. Livemere, 1 Saund 7. Pilkington (0 1 Bl. Com. 371, 372. 7 Co. Rep. 17. t)! Peach, 2 Show. 135. Bridgham r. Harg-. Co. Litt. 2 b. Frontee, 3 Mod. 94. Wells t;. Wil- (0 Harg. Co. Litt. 2 b. note 8, liams, 1 Salk. 46. [6] In Pennsylvania, Ohio, Illinois, and Louisiana, alien friends may take by devise, whether residents or non-residents. In Indiana, Missouri, and Tennes- see, they must be residents of the United States, and have declared their in- tention to become citizens. In Kentucky, such alien having resided in the state two years, shall, during the continuance of his residence therein after that period, be enabled to hold, receive, and pass any right, title, or interest to any lands or other estate, in the same manner as citizens may lawfully do. In the rest of the states, the common law prevails on this subject. An alien can purchase real estate, and can hold against all except the Com- monwealth, and until office found can convey. Stone v. JBatson, 7 Mass. T. R. 431. Sheaf V. O'A^eil, 1 Mass.T. R. 250. Fox v. Southack et al. 12 Mass. T. R. 13 OP WILLS AND CODICILS. [bOOK I- By stat. 5 Geo. 1. c. 27. British artificers going out of the realm to exercise or teach their trades abroad, or exercising their trades in foreign parts, who shall not return within six months, after due warning given them, shall be deemed aliens, and incapable of taking any lands, and shall forfeit all their real and personal estates ; consequently, their wills can have no operation here. Secondly, a will of personal estate, and by the statute of frauds a will of lands, may be annulled by burning, cancelling, tearing, or obliterating the same, by the testator, or in his presence, and by his direction and consent ('*). [7] And a will (•>) Stat. 29. Car. 2. c. 3. s. 6. Bouilinot v. Bradford, 2 Dull. 268. Burns v. Burns, 4 Serg. & R. 297. 143. 1 Johns. Cas. 399. Fairfax Devisee v. Hunter's Les. 7 Cranch, 603. 621. Craig V. Radford, 3 Whealon, 594. 599. The 6th article of the treaty of peace of 1783, between the United States and Great Britain, completely protected the title of British subjects to lands in the United States, which would have been liable to forfeiture by escheat for the defect of alienage- That article was not meant to be confined to confisca- tions jure belli. Orr v. Hodgson, 4 Wheaton, 453. 462. And by the 9lh article of the treaty of 1794, which seems to be a stipulation which cannot be dissolv- ed by any subsequent event, British subjects, who then held lands within the United States, might continue to hold them according to the nature and tenure of their estates and titles therein ; and might grant, sell, or devise the same to whom they would, in like manner as if they were natives. 7 Mass. T. R. 523- Ainslie v. Martin, 11 Mass. T. R. 454. Tox v. Southack et al. 12 Mass. T. R. 143. In North Carolina, it has been determined that an alien cannot take real estate by devise. 2 Hainv. 104. 108. But in Virginia, if the real estate be converted into personalty, pursuant to the will the alien may take. Commoniuealth v. Sel- don & Seddon, 5 Munf. Rep. 160. [7] These provisions of the Stat. 29 Car. 2. c.3. § 6. are in force in all the states except those herein enumerated, either by the extension of the Statute, or by the incorporation of the section in the several Acts of Assembly. In New Hampshire, the 6th section of the Stat. Car. 2. has not been adopted. In Pennsylvania and Indiana, where the revocation is in writing, it is by the same forms used in the making. Tlie Illinois Statute declares that no ~.uords spoken shall revoke or annul any will or codicil in writing, executed in due form of law. In Alabama, no will in writing, or bequest therein of goods or chattels, shall be revoked by any subsequent will, codicil, or declaration, unless the same be in writing. CHAP. I.] OF WILLS AND CODICILS. 13 of either species may be annulled by an express or implied re- vocation of it. Although a testator has made a will irrevocable in the strongest terms, yet he is at liberty to revoke it ; for he shall [14] not, by his own act or expressions, alter the disposition of law, so as to make that irrevocable, which is of an opposite nature (■). With respect to the revocation of a will by the act of cancel- ling, it is in itself an equivocal act ; and in order to make it a revocation, it must be shown quo animo it Avas cancelled j for, unless that appear, it will be no revocation. As, if A were to throw the ink upon his will instead of the sand, although it might be a complete defacing of the instrument, it would be no cancellation : or, suppose A, having two wills of diiferent dates in his possession, should direct B to cancel the former, and through mistake he should cancel the latter; such an act would be no revocation of the last will ; or, suppose A, having a will consisting of two parts, throws one unintentionally into the fire, where it is burnt, it would be no revocation of the devises con- tained in such part {^) : or if A, upon a supposition that he had executed a second will, according to the statute of frauds, con- taining devises of the real estate precisely the same as those in the first, and to the same person, cancel such former will, the devises shall not be revoked, since the cancelling was upon an evident mistake (•). And where a testator, being angry with one of the devisees in his will, began to tear it with the inten- tion of destroying it ; and having torn it into four pieces, was prevented from proceeding further, partly by the efforts of a ('i) 8 Co. 82. Gilbert, Covvp. 49. 8 Vin. Abr. 146, {^) Hyde V. Hyde, 1 Eq. Ca. Abr. 409. P^' J;^' o Cha. Rep. 155. S. C. Burtenshavv v. (') Onions v. Tyrer, 1 P. Wms. 343. 345. Burtenshaw v. Gilbert, Cowp. 52. In Louisiana, a will may be revoked by a subsequent will, or by a codicil, or by any other act received by a notary in presence of ttuo witnesses, expressing a change of will. In Tennessee, no written will shall be revoked or altered by words, unless the words are put in writing- in the lifetime of the testator, and read over to him and approved, and the same be proved by two witnesses. D 14 OF WILLS AND CODICILS. [bOOK I- by-standcr, who seized his arms, and partly by tlie entreaties of the devisee, and upon that became calm ; and having put by the several pieces, he expressed his satisfaction that no mate- rial part of the writing had been injured, and tliat it m as no worse ; upon the facts, the verdict of a jury in favour of the will, was supported ('). It is the intention, therefore, that must govern in such cases, and parol evidence is admissible to ex- plain it (■'^). If a will be destroyed during the lifetime of the testator, but without his knowledge, it will be substantiated upon satisfac- tory^ proof thereof, and of its contents ("). [15] In case there be duplicates of a will, one in the custody of the testator, the other not ; and the tcfetator, with an in- tention to revoke his will, cancels tliat which is in his custody, it is an effectual cancellation of botli ("). So a will may be only partially cancelled : therefore, if A devise two estates, Black Acre to B and White Acre to C, and, after the execution of such will, expunges that part which re- lates to the disposition of White Acre, the devise of Black Acre shall not be revoked by such obliteration (p). A residuary bequest was held to be cancelled by striking through with a pencil all the disposing part, leaving only the general description, with notes in pencil in the margin, indicat- ing alteration and a different disposition of certain articles (i). Alterations in pencil of a will, are not therefore to be taken as merely deliberative, but are to be considered as equally valid as if made in ink, provided it appear that the deceased intend- ed them to take effect ('). A will may be expressly revoked by anotlier will, or by a codicil in writing ; either of which, in case it relate to laiid, must be executed pursuant to the statute of frauds as above (') Perkes v. Perkes, 3 Barn. & Aid. Burr. 2515. S. 0. Com. Rep. 451. Rick- 489. ards v. Mumford, 2 Phill. Rep. 123. ('") Burtenshaw v. Gilbert, Cowp. 53. (p) See Sutton v. Sutton, Cowp. 812. 4 Serg. & R. 297, 2 Ball. 266. and Winsor v. Pratt, 2 Brod. and (■■OTrevelyantJ.Trevelyan, PliilLRep. Bing, 650. 149. (1) Mence -v. Mence, 18 Ves. jun. 348. (o) Burtenshaw v. Gilbert, Cowp. 54. (j) Dickenson v. Dickenson, 2 Phill Onions v. Tyrer, 1 P. Wms. 346 B.C. Rep. 173. 2 Yern. 742. Mason v. Limberry, 4 CHAP. I.] OP WILLS AND CODICILS. 15 stated. Such will of lands may be also revoked by writing other than a will, or codicil ; and then such other writing must by the statute be signed by the devisor, in the jjresence of three or four witnesses declaring the same. The requisition in the statute of the signature by the devisor to such revocation in the presence of three or four witnesses declaring the same, is, ac- cording to the sound construction of the statute, applicable merely to such other writing, and not to a will, or codicil of revocation ; since the legislature could not intend to require that a will or codicil amounting to a revocation sliould be exe- [16] cuted in one mode, and a will or codicil originally dispos- ing of lands should be executed in another (q). These provisions of the statute in regard to revocation do not extend to personal estate. A will of personal estate may be revoked by another will, or by a codicil, or other writing au- thenticated in the same manner as a will of such property («•). But by the same statute no will in writing of personal estate shall be repealed, or altered by parol, or will nuncupative, un- less the same be committed to writing in the testator's life, and afterwards read to, and allowed by him, and proved so to be by three witnesses at the least ('). Devises of customary freeholds, or of terms vested in trus- tees to attend the inheritance, or of sums of money primarily charged on lands, must, as we have seen, be executed pursuant to the solemnities required by the statute, and, consequently, fall within its provisions in regard to revocation ('). If a testator, in consequence of fraud, or misinformation, or mistake in regard to a fact, as, for example, the death of a de- visee, or legatee, who is living, make a new will, the former instrument shall not be revoked by the latter ("). ■ [17] It is essential that the second will should expressly re- voke, or be clearly inconsistent with the first, in respect to the subject matter of such will ; for no subsequent disposition shall (<)) Ellis V. Smith, 1 Ves. jun. 11, (s) Vicl. infr. (0 Vid. Brady v. Cubitt, Dougl. 35. (') Brudenell v. Boughton, 2 Atk. 272. Doe V. Pott, ib. 690. n. 2. Onions v. («) Campbell v. French, 3 Ves. jun. Tyrer, 1 P. Wms. 343. Ellis v. Smith, 321. 5 Serg-. & R. 207. 1 Ves. jun. 11. 17 OF WILLS AND CODICILS, [bOOKL I. revoke a prior, unless it apply to the same subject (»). It is also necessary that the second will should be subsisting and effective at the time of the testator's death -, if, therefore, in case of a devise of lands, it be not executed according to the statute of frauds, it is not effective, and is as if no second will had existed ("). So, if the second will be effectually cancelled in the Vifetime of the testator, the first will shall operate as if 110 other had existed ; for it is the only will subsisting at the testator's death (^). But the particular circumstances of the cancellation and tlie case must be looked to, for in a late case where a second will was mutilated so as to amount to a cancel- lation, such cancellation was held not to revive the prior will of nearly similar import (y). In case a party leave two inconsistent wills of the same date, neither of which can be proved to have been last executed, un- less explained by some act of the testator, they are both void for uncertainty, and will let in the heir (^). The making of a subsequent codicil does not invalidate the former, unless it appear to be so intended. Codicils, however numerous, may be all effectual (=»). [18] There are also other species of revocations which I have not mentioned. Tiie statute of frauds extends not to implied revocations, or to such as are in the nature of ademptions. With respect to implied revocations, they depend altogether on the supposed intention of the party. The law will presume such intention, and allow it to prevail, in case the circumstances of the testator's situation be materially altered. Hence, if, after the making of his will, he marry, and have a child, this is a constructive revocation of the will which he made in a state of celibacy C*)^ so marriage, and the birth of a posthumous child, (") Onions v. Tyrer, 1 P. Wms. 345, P. C. 45. Onions v. Tyrer, 1 P. Wms. in note. Harvvood v. Goodwright, 344. note 1. Covvp. 87. S. C. 7 Bro. P. C. 344. (») Swinb. Part 1. s. 5. Hitcliins v. (w) Hyde v. Hyde, 3 Ch. Rep. 155. Basset, 1 Show. 549. Willet v. Sand- Linnbery v. Mason, Com. Rep. 451. ford, 1 Ves. 187. (") Goodrightr.Glazier, 4Burr. 2512. . (^) Lug-g'u.Lugg.Ld. Raym.441. Cook 2 Ball. 289. f. Oakley, 1 P. Wms. 304. Spraage v. (y) Moore v. Moore, 1 Phill. Rep. 375 Stone, Ambl. 721. and vid. Christopher and 406. 2 Yeates, 170. 2 Dall. 266. v. Christopher, 4 Burr. 2182. note. O Phipps V. Earl of Anglesea, 5 Bro. CHAP. I.] OF WILLS AND CODICILS. 18 afford the same inference ; or rather in such cases a tacit con- dition is annexed to the will at the time of making it, that the party did not then intend that it should take effect, if a total change should happen in the situation of the family (c). But the presumption, like all others, may be rebutted by every sort of evidence (''). Yet it seems there is no case in which marriage and the birth of a child have been held to raise an implied revocation, unless there has been a total disposition of the whole estate- In cases of personal property it is always a total disposition, because, by the appointment of an executor, tlie whole is vested in him (e). [19] To raise this presumption of a revocation, both the cir- cumstances of a man's marriage and of the birth of a child must conspire (<") : neither the subsequent marriage of a man, nor the subsequent birth of a child, shall of itself have that effect (J). [8] (") Lancashire v. Lancashire, 5 Term Newman, 3 Wils. 516. and 2 Fonbl. Rep. 49. 2cl edit. 350. note (b) Sed vid. Lanca- (''•) Brady v. Cubitt, Dougl. 31. See shire v. Lancashire, 5 Term Kep. 52. 1 P. Wms. 304. note 4, in note. (-) Brady ti. Cubitt, Dougl. 39. South- (R) Lancashire v. Lancashire, 5 Term cot V. Watson, 3 Atk. 228. Rep. 51. in note. White v. Barford, 4 ('") Wooddes. 373. vid. Goodtitle v. Maul, and Sel. 10. " [8] In the following states, the birth of a posthumous child is by Statute a revocation pro tanto of a will. And such child shall inherit the portion of the real and personal estate which would have come to him had his parent died intestate ; viz. Vermont, Maine, Rhode Island, Massachusetts, Pennsylvania, Delaware, Virginia, South Carolina, Kentucky, Alabama, Maryland, New Jersey, New Hampshire, and New York. In Pennsylvania, marriage or birth of issue amounts to a revocation of a will previously made, but only so far as regards the widow or child, or children after born ; although the subsequent issue be the testator's only child. Coats V. Hughs, 3 Binn. 498. The law is the same in Missouri. In Virginia, a will made when the testator had no cliild living, not providing for or mentioning any child he might have, if at his death he leave a child, or liis wife ensient of a child which shall be afterwards born, the will shall be re- voked during the life of such child, and shall be void, unless the child die without being married and before full age. In Ohio, a will made when the testator has no child, is rendered void on the birth of a child ; and a child born after the will made in any case (unless ex- 19 OF WILLS AND CODICILS. |]bOOK 1. But a will made in favour of children of a first marriage shall not be revoked by a subsequent marriage, and the birth pressl}' disinherited) and a child absent and supposed to be dead, succeed to the same share as if the ancestor had died intestate ; to raise which the devi- sees contribute. Where a second will is destroyed without more, the preceding will not having been cancelled is generally speaking ipso facto revived. Laiuson v. Morrison, The mere making of a second, is the revocation of a preceding testament in relation to personal estate. lb. 2 Dall. 289. A will of lands in wi-iting may be revoked by a parol i*epublication of a for- mer will in writing; and parol proof may be given of the contents of the ear- lier will, to ascertain whether the two wills are different, if the will itself can- not be found, and the usual ground is laid for introducing secondary evidence. JIavard v. Davis, 2 Binn. 406. A executed a will in due form, disposing of the whole of his property ; seve- ral years afterwards he drew up a writing headed " memorandum of the last will, &.C." by which he made a different disposition of the estate, bequeathing the whole of his property and appointing executors, and which paper he show- ed to B, requesting him to put it in form. B pointed out some apparent incon- sistencies, and advised him to apply to counsel. A replied that he believed he would do so, but survived the conversation five months, during which he was in health and capable of transacting business, and then died without having made any altei-ations in the paper, and having in his possession the former will uncancelled. Held that the paper last executed, being duly proved by two wit- nesses, was a good will under the law of Pennsylvania, and revoked the former will. Arndt v. Arndt, 1 Serg. & R. 256. But in Maryland, a paper purporting to be a will, not signed by the testator, though in his own handwriting, and hi? name written at the top, is not a revo- cation, so far as relates to personal property, of a former will of real and per- sonal estate, duly executed. Belt v. Belt, 1 Har. & M'Hen. 409. A testator made a will in due form of law, to which he afterwards subjoined a codicil; he then made a second will, and annexed a postscript to it, by which " he revoked all former wills," and signed the postscript ; the second will was cancelled by cutting his name out from the body of it, but leaving the post- script with his name subjoined to it. This paper was carefully preserved by the testator, as also his first will ; both of which were found after his death. Held that the postscript to the second will was a substantive revocation of the first will, and that the cancelling of the second will did not necessarily cancel the postscript also, so as to set up the first as the will of the testator. Bales v. Ilolman, 3 Hen. & Mun. 502. A commission of lunacy against a testator is not a revocationof a will, which he made when of sound mind. Hughes v. Hughes' Ex. 2 Munford's Rep. 209. In Virginia, it has been decided, that a will of personal estate may be revoked by a subsequent will, not written or subscribed by the testator, but which was proved by one witness only to h^ve been prepared by the testator's directions. CHAP. I.] OF WILLS AND CODICILS. 19 of children of such subsequent marriage, the second wife and her children being provided for by settlement (•'). In case where a testator, a widower, having a son and two daughters, by will gave all his real and personal estates in trust, subject to debts, for those children, and in case of their deaths over, and afterwards married, had a daugiiter and died ; the general principles of this branch of the law are so clearly defined by the Master of the Rolls, that it is thought most use- ful to introduce his judgment verbatim. " Long after it had " been settled by decisions of the ecclesiastical couit, with the " concurrence of common law Judges sitting in the Court of " Delegates, that marriage and the birth of a child would " amount to a revocation of a will of personal property, it re- ** mained a doubt whether such an alteration of circumstances " would have the same effect with regard to a will of real es- ♦'< tate : but it is now settled, that even a devise of land may be <* revoked by what Lord KenyoUf in the case of JJoe on the de- *' mise of Lancashire v. Lancashirei 5 T. Rep. 58, calls * a to- *' tal change in the situation of the testator's family.' What *' may be deemed such a total change, may be matter of con- " troversy in each new case ; but all the cases, in which hither- *« to wills of land have been set aside upon this doctrine, have *< been very simple in their circumstances ; and such as, when ^< the doctrine was once received, could admit of no doubt with " respect to its application. In all of them the will lias been <* that of a person, who, having no children at the time of mak- <' ing it, has afterwards married, and had an heir born to him. <' The effect has been to let in such after-born heir to take an " estate, disposed of by a will, made before his birth. The '' condition, implied in those cases, was, that the testator, when " he made his will in favour of a stranger or some more remote ('') Ex-parte the Eai-l of Ilchester, 7 Ves. jun. 348. corrected by his order, and which he afterwards declared to be his last will. Glasscock v. Smither, 1 Call's Rep. 479. A will in writing may be revoked by parol ; but the words must be a revo- cation instanter. Cameron & Norwood's Rep. 174. The directing a will to be burnt by the person with whom it was deposited, who refused to do so, but ofFered to surrender it to the testator for that purpo.se, is not a revocation. lb. 19 or WILLS AND CODICILS. [bOOK 1. <« relation, intended that it should not operate if he should have " an heir of his own body. In this case there is no room for i( the o])eration of such a condition ; as this testator had chil- *< dren at the date of the will, of whom one was his heir appa- '•^ rent, who was alive at the time of the second marriage, of *' the birth of the children by that marriage, and of the testa- *t tor's death. Upon no rational principle therefore can this ** testator be supposed to have intended to revoke his will on ** account of the birth of other children ; those children not " deriving any benefit whatsoever from the revocation ; whicli " would have operated only to let in the eldest son to the whole <« of tliat estate, which he had by the will divided between that <« eldest son and the other children of the first marriage. It is " true, the ecclesiastical court has decided, that the will was ** revoked as to the personal estate ; that is, in opposition to <* their decision in Thompson v. Shep2)ard in 1779; where, un- <« der circumstances precisely the same, the will was held not " revoked even as to the personal estate. There was in that <* case an appeal to the Delegates, but it w as not prosecuted. <' The revocation however as to the personal estate had an ef- " feet, which might perhaps have been intended by the testator *' — that of letting in the after-born children with those of the *' first marriage: but the principle of the decision has no bear- " ing whatsoever upon the devise of the real estate; which, ac- <« cording to my opinion, stands unrevoked (')." In a late most important case, where a man made a will, providing for all his children then living, and with which his wife was ensient, the birth of other children, combined with circumstances of large increase of property, and declarations of tlie testator, were held to revoke his will ('^). If a single woman make a will, her subsequent marriage shall alone revoke it (') ; nor shall it be revived by the death of her husband ("»). (') Sheath v. York, 1 Ves. & Bea.390. (') 4 Co. 60. Cotter v. Layer, 2 P. and sec Hollvvay t>. Clarke, 1 Phill. Rep: Wms. 624. Hodsden v. Lloyd, 2 Bro. 339. Emer-soh v. Boville, ibid. 342. C. Ca. 534. (K) Johnston v. Johnston, 1 Phill. (m) Dog ^. Staple, 2 Term Rep. 695 Rep. 445. » CHAP. l.J OF WILLS AND CODICILS. 19 There are also revocations (") in the nature of ademptions. If the testator do any act inconsistent with the operation of the will, such act sliall amount to a revocation of it. To render a cancellation effectual, we have seen, the intention of the testator must in all cases concur, and an implied revocation is founded entirely on the intention : but the species of revocation I have just mentioned is altogether independent of intention ('*), and may prevail even in opposition to it. It is true that before the [20] statute of frauds the intention was«the criterion. It was therefore held, that where A having devised lands to B in fee, granted to B a lease of the same lands, to commence after A's death, such act revoked the disposition of the will, on the ground that tlie lease clearly implied an alteration of intention, namely, to give the devisee a less estate (p). But since the statute I conceive such a case would be differently decided : The lease effectuating no alienation of the subject matter of the devise, would not be held to defeat the operation of the will ; nor if A were to devise lands to B in fee, and afterwards mort- gage to him the same lands for a term of years, would the de- vise be revoked (i). On the same principle, since the statute of frauds, the subsequent act of the devisor must be complete to produce such effect. Before the statute, a deed of feoffment without livery, a bargain and sale without enrolment, a grant of reversion without attornment, were held to revoke a will of lands, on the ground, that although these acts were themselves imperfect, yet they equally indicated a change of the devisor's intention ; but since the statute, I apprehend that acts thus in- complete, not amounting to an alienation of the estate incon- sistent with such will, would not be more effectual to revoke it than a subsequent will imperfectly executed {'■■). And altogether to defeat the disposition by the will, there must be a subsequent conveyance of the whole estate. It mUvSt [21] be commensurate with the appointment which the will has (n) Brudenelliy.Boughton, 2Alk.272. inaccurate; and see Baxter f. Dyer, (o) Abury v. Miller, 2 Atk. 598. Par- 5 Ves. jun. 656. and Peach i^. Phillips, sons V. Freeman, 3 Atk. 745. ibid. 664. (P) Coke V. Bullock, Cro. Jac. 49. (') Sed vid. ex-parte the Earl of II- ("i) As to the subsequent case of Hark- Chester, 7 Ves. jun. 378. ness V. Bailey, Free, in Ch. 514. it is E 21 OF WILLS AND CODICILS. [bOOK I, made. If the inconsistency between the disposition by the will, and the subsequent disposition, be merely partial, the revoca- tion shall not extend bejond such inconsistency. As, wlicre A devises an absolute estate in fee to B, and afterwards, by a subsequent devise, gives him only an estate tail in the same land, it is a revocation merely to the extent of the difference between an estate tail, and an estate in fee (•"). So, if A devise all his real estate to B, and afterwards, on B's marriage, settle upon her a part of suoh estate, in respect to the remaining part of it the will shall operate ('). So, if A devise lands in fee to B, and afterwards grant a lease to C for a term of years to commence after A's death, or mortgage the lands to C for a term of years or in fee, the devise of the fee, subject to the lease (•) or mortgage ("), either of which is merely the intro- duction of an incumbrance, shall continue good. If the owner of an unqualified equitable fee devise it by his will, and after- wards the unqualified legal fee be conveyed to him, the will is not thereby revoked, because such conveyance was incident to the equitable fee devised. But if he afterwards take a qua- lified conveyance of the legal fee, for the purpose of preventing dower, it is a revocation of the will, being a change in the quality of the estate, and not incident to the equitable fee (^). A surrender made by a testator of copyholds to the uses of his marriage settlement, is not a total revocation of a surren- der made to the use of his will,, and a devise of such copyholds, but the devisee takes the copyhold subject to the charge created by the marriage settlement (''). Where a testator devised real and personal estate to certain uses, and afterwards by deed conveyed it to the same uses un- til marriage, and then to new uses, providing for his intended wife and the issue of the marriage, and after the deed, and be- fore marriage, by codicil duly attested, and directed to be an- nexed to his will, he imposed a forfeiture in case of his wife being disturbed, and after the codicil married : it was held that (') irarwood v. Goodright, Ccwp. 90. (») Harkness v. Bailey, Prec. in Ch. (') Clarke v. Berkeley, 1 Eq. Ca. Abr. 515. Tucker v. Thurston, 17 Ves. 134. 412. S. C. 2 Vern. 720. (^) Ward v. Moore, 4 Madd. Rep. 368. (0 Coke V. Bullock, Cro. Jac. 49. Roll. (w) Vawser v. Jeffery, 3 Barn. & Aid. Abrid. 616. 462. and 2 Swans. Rep. 268, 4 CHAP. I.] OF WILLS AND CODICILS. 21 the settlement revoked the will, and that the will was repub- lished by the codicil; that the new uses springing on the mar- riage did not revoke the codicil, nor did the marriage, and birth of children, as being contemplated by the will(^^). I have already stated that this species of revocation may operate even in opposition to the devisor's intention (^). Hence if A, after making his will, suffer a recovery, levy a fine, or convey his estate by lease or release, the devise will be revoked, although the use result, or be limited to A himself (y). So, if [22] A devise lands, and afterwards make a feoffment to the use of his will ('), or if A covenant to levy a fine to the use of such person as he shall name by his will, then makes his will and devises his land, and afterwards levies a fine in performance of his covenant (=•) ; or if A, seised in fee, devise an estate in fee to B, and by a conveyance takes back an estate from B in fee (b) ; or, if A, seised in fee, thinking he has only an estate tail, suffer a recovery in order to confirm his will(<=), all these cases amount to a revocation. So, if A be disseised, after making his will, and die before re-entry, the disseisin will have the same effect (''). These are the necessary consequences flowing from the na- ture of a devise of lands as before defined. It is not an insti- tution of an heir : It is in the nature of a conveyance : It is an appointment of the specific estate, to be completed by a subse- quent event, namely, the death of the devisor. The devisor must therefore continue to have it unaltered, and witliout any new modifica.tion, to the time of his death, when the devise is to take effect. If, therefore, any new disposition be made sub- sequently to the will, or, in other words, any new conveyance (w) Jackson v. Hurlock, 2 Eden's Rep. 804. Swift v. Roberts, Ambl. 618. 263. {") Swift V. Roberts, Ambl. 610. (") Banks v. Sutton, 2 P. Wms. 713. Q') Parsons v. Freeman, 3 Atk. 742. Sparrow v. Hardcastle, 3 Atk. 803. Bridges v. Duchess of Chandos, 2 Ves. 1 Roll. Abr. 614. Swift v. Roberts, jun. 431. Ambl. 618. Darley v. Darley, ib. 653. (') Sparrow id. Hardcastle, 3 Atk. 803. and Dick. Rep. 397. S. C. See also Darley v. Darley, Ambl. 653. Cv) Parsons v. Freeman, 3 Atk. 741. and Dick. Rep. 397. S.C. Darley v. Darley, Ambl. 653. Parker {^) 1 Roll. Abr. 616. Attorney-General V. Biscoe, 3 Moore. 24. o. Vigor, 8 Ves. jun. 282. ^'■) Sparrow v. Hardcastle, 3 Atk. 22 ^I;' WILLS AND CODICILS. [bOOK I. of that which had heen conveyed hy the will, it shall defeat the will. It implies an alteration, and the rule, that the estate must pass hy the first complete conveyance, hecomes applica- ble («). [23] On the same principle, where A, seised of a lease for lives, devises it, and afterwards renews, the renewal of the lease is a revocation of the will as to this particular j for by the surrender of the former lease, the testator puts it out of him, divests himself of the whole interest, and it is gone, so that there be nothing left for the devise to work upon, the will must fail (<"). And the law is the same in regard to chattel leases, if specially bequeathed {^') ; but not otherwise (••). So, if A specifically bequeath to B a gold cup, under a par- ticular description, and afterwards sell, or give it away, and then buy another gold cup, such newly purchased cup shall not pass to B by the will, inasmuch as the identical subject is gone ('). If the subsequent conveyance be procured by fraud, it shall have no effect ('^). Such are the principles of law in regard to revocations. Equity also proceeds on the same principles ; and, following the law, admits no revocation that would not be a revocation on legal grounds. Therefore if A, having an equitable estate, make his will, and then execute a conveyance, and dispose of it, or declare the uses to himself, that will he a revocation, in [24] case it would so operate at law on a legal estate (*). But still this revocation is bounded by the rule of lawj and (O Swift t). Roberts, Ambl. 618. Bi-id- Fernyhough, 2 Bro. C. C. 291. See 1 ges V. Duchess of Chandos, 2 Ves. jun. P. Wms. 597- 426. Sparrow v. Hardcastle, 3 Atk. ('') Bovvers v. Littlewood, 1 P. Wms 803. Harwood v. Goodright, Cowp. 90. 595. Hogan ■v. Jackson, ib. 305. (') Off. Ex. 23. vid. Abney v. Miller, (f) Marwood v. Turner, 3 P. Wms. 2 Atk. 599. 170, 171. ('') Clymer v. Littler, 3 Burr. 1244. (g) Abney w. Miller, 2 Atk. 527. Carte Hawes v. Wyatt, 3 Bro. C. C. 156. V. Carte, 3 Atk. 174. Stirling v. Li-. S. C. 2 Cox. Rep. 263. diard, 3 Atk. 199. Rudstone t;. An- (i) Brydges w. Duchess of Chandos, 2 dersou, 9 Ves. 418. Attorney-General Ves. jun. 428. RawUns v. Burgis, 2 "I;. Downing, Ambl. 571. Ilonew. Med- Yes. & Bea. 381. crafl, 1 Bro. C. C 261. Coppin v. CHAP. I.J OP WILLS AND CODICILS. 24 therefore, if the conveyance be of part only, and for a partial purpose, it shall be a revocatfon only jiro tanto("'). In cases of mortgage, if, as I have already stated, A. de- vise to B in fee, and afterwards mortgage to C for a term of years, that at law is no revocation of the fee. If it be a mort- gage in fee, a court of law has no concern with the disposition of the equity of redemption. It takes no notice of such an interest, but considering the land only as a pledge for a debt, which is the personal estate of the mortgagee, of necessity holds, that the land to all other purposes remains unaltered in the mortgagor. It merely decrees the redemption to that per- son, who would have been entitled if the mortgage had never existed, that is, the devisee. Being discharged, it is as if it had never existed. As, in cases at law, if the mortgage be for a term of years, it is no revocation, it would be incongruous that it should be so in equity in the case of a mortgage in fee, where tlie act done gives as at law nothing more than a pledge for a debt to the mortgagee, which is personal estate, and would de- volve upon his executors ("). So, in the case of a conveyance for payment of debts, the surplus resulting or being expressly [25] reserved to the party making it, and his heirs, it is pre- cisely the same case as that of a mortgage. There is no dis- tinction between a general charge for debts, and a charge for a particular debt. The alteration of the estate in substance extends no further than to let in the particular purpose ; and whether definite for a particular debt, or indefinite for all debts, makes no difterence ("). Therefore, these cases have been de- termined in strict analogy to the law. In like manner, if A have an equitable interest in fee in an estate, and afterwards take «i conveyance of the legal estate to the same uses : as, where A enters into articles of agreement with B to buy lands of him, and afterwards devises those lands, and then B conveys the same pursuant to the articles, this is no revocation in equity ; for, the equitable right which A has to the ("^) Brydges v. Duchess of Chandos, 2 Ves. jun. 428. See also Williams 2 Ves. jun, 428. r. Owen, ibid. 595. and Cave 7j. Hol- (") 2 Ves. jun. 428. Ambl. 31. land, ibid. 603. in note, and 3 Yes. (") Brydges v. Duchess of Chandos, jun. 650, 25 OP WILLS AND CODICILS. * TbOOK I. * ■ ^ lands to be purchased shall pass by the will, and his heir at law be a trustee for the devisee (»'). * In the case of a recovery after a will, though in terms show- ing clearly no intention to revoke, a recovery suffered after a will is as much a revocation in a court of equity, as it is in a cotirt of law (i). So, if A, after making his will, covenant for a valuable consideration to convey the devised estate to B ; al- [26] though A die before the contract is executed, yet the cove- nant shall revoke the will, on the equitable principle, that what ought to be done is supposed to be done : therefore, as at law, if the covenant had been performed in the testator's lifetime, it would have amounted to a revocation, the covenant hy analogy shall have the same effect in equity ('); or rather it constitutes the devisee a trustee to perform the contract for the benefit of the executor. In regard to the republication of wills, since the statute no devise of lands can be republished, unless it be re-executed by the devisor with the same solemnities with which it was executed at first ; or by a codicil executed in the same manner, in terms I'atifying, confirming, or republishing the will («), or expressive without being restricted to any precise form of words (*), of his intention that the will should be considered as bearing the same date with the codicil ("). A codicil so executed, although it relate merely to personal estate, yet, if it contain a general clause of confirmation of the will, or sufficiently indicate an intention that the will shall be deemed of the same date with the codicil, shall have the same effect (^), In case the will be republished by a codicil, the will and codicil are considered in point of law as constituting but one instrument ('). There- [27] fore, in all these instances, lands purchased after the date (p) Marwood v. Turner, 3 P. Wms. (^) Atcherley v. Vernon, Com. Rep. 169. GreenhiU v. Greenhill, 2 Vern. 381. Gibson i;. Lord Montfort, 1 Ves. 679. 492. (s) Darley v. Darley, 3 Wils. 6. Bryd- (0 Potter v. Potter, 1 Ves. 442. ges 7>. Duchess of Chandos, 2 Ves. (") Barnes ■r. Crowe, 1 Ves. jun. 486. jun. 430. 4 Bro. C. C. 2. S. C. (') Cotter T>. Layer, 2 P. Wms. 624. (^ Gibson T^-Ld. Montfort, 1 Ves. 493. Rider v. Wager, ib. 329. Edwards v. (w) Atcherley v. Vernon, Com. Rep. Freeman, ib. 436. Bennett v. Lord 382. Barnes i^. Crowe, 1 Ves. jun, 496 Tankerville, 19 Ves. 170. CHAP. I.] OF WILLS AND CODICILS. 27 of the will, and before its re-execution, or before the date of the codicil, or lands contracted for before the date of the will, but conveyed between the date of the will and codicil (''), shall pass under the will, if the terms of the will be sufficiently com- prehensive to include them. For, when a will is republished, the effect is, that the terms and words of the will shall be con- strued to speak with regard to the property the testator is seis- ed of at the date of the republication, just the same as if he had such additional property at the time of making his will. Hence, if A devise lands by the name of B, C, and D, and purchase new lands, and republish his will, the republication does not concern such new lands, because the will speaks only of the particular lands B, C, and D. But if the testator in his will say, I give all my real estate, a republication will affect such newly purchased lands, because it is then the same as if the testator had made a new will (y). So, where a testator charged all his estates with payment of debts, and made his son residu- ary legatee, and afterwards purchased copyholds, which w^ere duly surrendered to the use of his will, and by codicil devised those copyholds to his son in fee, the codicil was held a repub- lication of the will, so as to subject the copyholds to the pay- ment of debts (^). Nor is an actual annexation of tlie codicil to the will, essential to its republication ("). Whether a mere annexation to the will of the codicil so executed, but silent in respect to any intention of republishing tjje will, shall have such operation, is a point on which different opinions have pre- vailed. Lord Camden C. thought that annexation would of itself demonstrate that intention {^) ; but by other authorities it has been held that annexation alone would not be thus effec- tual (•=). (") Goodtitle v. Meredith, 2 Maul. & (») Potter v. Potter, 1 Ves. 443, Sel. 5. Hulme v. Heygate, 1 Meri. (b) Attorney-General v. Downing-, Rep. 285. Ambl. 571. (y)Heylyn'y.Heylyn,Cowp. 132. Rolls, C-^) Sympson t.. Hornsby, Prec. Ch. Abr. 618. Beckford v. Parnecott, Cro. 439. Hutton v. Sympson, 2 Vern. 722. Eliz. 493. Countess of Strathmore v. Gibson v. Montfort, 1 Ves. 493. Barnes Bowes, 7 Term Rep. 482. Burke v. v. Crowe, 1 Ves. jun. 497. S.C. 4Bro. Less, of Young, 2 Serg. & R. 387. 389. CC, 9. Vid, also Coppin v. Ferny- (0 Rowley v. Eyton, 2 Meri, Rep, 128, hough, 2 Bro. C. C. 296. 28 OF WILLS AND CODICILS. [bOOK 1. [28] If a will of lands be not executed pursuant to the sta- tute, altljougli a codicil reciting the will be ('') thus executed, yet it has been held that the codicil shall not effectuate the will. An infant, we have seen, is by the stat. 34 and 35 Hen. 8. c. 5. disabled from devising land j but if, after attaining the age of twenty-one years, he re-execute, pursuant to the statute, a will of lands made by him before, it shall be effectual {"). A will of personal estate may be expressly republished by a codicil, or other writing, authenticated in the same manner as a will of such property j or by a codicil, or such other writing, from the contents of which such an intention may be fairly in- ferred ; or merely by annexing a codicil, or other writing to such will (f), whether it expressly refer to the will or not ; or such will may be revived by the mere parol declarations of the testator (e). In a case where copyhold and personal estates were given by will, and so much of the will was revoked by an interlineation, and a codicil to the same effect, and the codicil was afterwards cancelled ; it was held that the cancelling the codicil was effec- tual to set up the original will, notwithstanding the interlinea- tion was left in the will, upon the evidence of intention (''). The statutes of the 32d & 34th of Hen. 8. give the power of devising to all having estates in fee-simple, except in joint- tenancy ('), over the whole of their socage lands. Persons seised in fee-simple in coparcenary, or in common, in rever- [29] sion, or remainder, are expressly comprised by the last- mentioned statute ('^). Copyhold lands are not within these statutes, since they re- quire that the tenure should be socage, which copyholds are not(') ; but they are devisable by an application of the doctrine of uses as above stated ('"). ('') Attorney-General r.Baines, Prec. C') Utterson v. Utterson, 3 Ves. & Ch. 270. Bea. 122. («■) Herbert v. Torball, 1 Sid. 162. q^ gwift v. Roberts, Ambl. 617. (0 Coppin V. Fernyhough, 2 Bro. C. C. . g^^^ ^ ^^^^^ ^ 291. (0 Off. Ex. 25. Beckford r.Parnecott, O ^^^^S-^o. Litt. 111. b. note 1. Cro. Eliz. 493. and Vid. Abney v. Mil- ('") Supr. 6. ler, 2 Atk. 599. [ 30 ] CHAP. II. OF THE APPOINTMENT OF EXECUTOUS. Sect. I. Who may be an executor — who not — how he matj be appointed. An executor is he, to whom the execution of a last will and testament of personal estate is by the testator's appointment confided (*). In general, all persons are capable of sustaining this clia- racter; but there are some exceptions, which I shall presently mention. The king, it seems, may be appointed an executor, but in that case, as he is presumed to be so engaged in public affaii-s as to have no leisure to attend to the private concerns of individuals, he has a right to nominate persons to execute the trust for him, as well as auditors to whom such nominees shall account ('^). It was formerly a doubt, whether corporations aggregate could be constituted executors, inasmuch as they cannot take [31] an oath for tlie due execution of the office (^) ; but it now seems settled in the affirmative ('i), and that, on their being so named, they may appoint persons, styled syndics, to receive administration with the w ill annexed, who are sworn like all other administrators (e). Such corporations as can take the oath of an executor are clearly competent (f). An infant may be appointed an executor (s), and even a child in ventre sa mere ; and then if the mother be delivered of two or more children at the birth, they shall all be entitled (h). But an infant, although appointed, is by stat. 38 Geo. 3. c. 87. s. 6. (») Off. Ex.2. 2B1. Com.503. Farrlng- (). Nor had villenage, dur- ing its existence in this country, that effect (p). Nor is poverty, nor even insolvency, a disqualification of him in wlioni the testator has chosen to repose so great a con- fidence (q). A disability, however, may arise in various modes, either from the party's being guilty of certain offences against the established religion ; or from his being the subject of an ene- my's country, and resident within it, or resident here without the king's license ; or, under certain circumstances, from going or residing abroad^ or from a defect of understanding. [S3] A person excommunicated is suspended from acting till absolution (j). By stat. 3 Jac. 1. c. 5. s. 22. a popish recusant, convicted at the time of the testator's death, is altogether in- competent (s). By stat. 3 Car. 1. c. 2. s. 1. if any person send another abroad to be educated in the popish religion, or to reside in any reli- gious house abroad for tliat purpose, or contribute to his main- tenance when there, both the sender, the sent, and the contri- buter, are subject to the same disability. But by virtue of the stat. 31 Geo. 3. c. 32. Roman Catholics who shall make, take, and subscribe the declaration of their religious profession^ and the oath of allegiance and abjuration as appointed by that act, shall be exempt from tliis as well as other disabilities. By stat. 9 & 10 W^. 3. c. 32. persons denying the Trinity, or asserting that there are more Gods than one, or denying the Christian religion to be true, or the Holy Scriptures to be of divine authority, shall for the second offence, among other in- capacities, be disabled from being executors. [4] (o) Oif. Ex. 16. 3 Bac. Abr. 5. Co. 3 P.Wms. 388. note b. Anon. 12 Ves, Litt. 128. jun. 4. (P) Swinb. 5. s. 1. 3 Bac. Abr. 5 Roll. (0 Off. Ex. 17. 107. 3 Bac. Abr. 6. Abr. 915. 11 Vin. Abr. 141. 2 Burn's Eccl. Law, 222. (q) 3 Bac. Abr. 7. Hill v. Mills, Salk. 0) Hill v. Mills, 1 Show. 293. 11 Vin. 36. Rex V. Raines, Lord Raym. 361. Abr. 142. 144. See 4 Bl. Com. 56. and S. C. Salk. 299. 11 Vin. Abr. 143. stat. 3 Jac. 1. c. 5. s. 10. and 30 Car. 2. Walker v. Woolaston, 2 P. Wms. 582. s. 2. c. 1. [4] It is scarcely necessary to observe, that religious opinions do not dis- qualify in this country. 33 OF APPOINTING EXECUTORS, [bOOK k. Also, by the statutes prescribing the qualifications for of- fices ('), i)ersons not having taken the oaths and complied [34] with the other requisites for qualifying, who shall execute their respective offices after the time limited for the perform- ance of those acts, shall incur the same incapacity. Alienage with relation to a hostile country, accompanied with residence abroad, or residence here without the king's permission, either express or implied, is to be classed as a spe- cies of disability ; for although the cases in respect to the in- capacity of alien enemies are not entirely uniform ("), yet this principle of exclusion, thus modified, seems clearly to exist (^). By stat. 5 Geo. 1. c. 27. British artificers going out of the realm to exercise or teach their trades abroad, or exercising their trades in foreign parts, who shall not return within six months next after due warning given them, shall be deemed aliens out of liis majesty's protection, and are expressly disqua- lified for executors. Idiots, and those who are visited with insanity, or whose in- tellects are destroyed by age, disease, or intemperance; such persons as, having been born blind and deaf, have always^ wanted the common inlets of knowledge, are all necessarily incapable of the office (y). [35] The authority of an executor, as appears by the definition, is grounded on the will, and may be either express, or implied ; absolute, or qualified; exclusive, or in common with others. He may be expressly nominated, either by a written, or by a nuncupative will ("). He may be constructively appointed merely by the testator's recommending or committing to him the charge of those duties, which it is the province of an executor to perform, or by con- (') Slat. 25 Car. 2. c. 2. 1 Geo. 1. stat. (") Wells v. Williams, Lord Raym. 2. c. 13. Vide also 13 W. 3. c. 6. s. 6. 282. Openheimer v. Levy, Stra. 1082. ('•) 3 Bac. Abr. 6. 1 Bac. Abr. 5. Brandon v. Nesbett, 6 Term Rep. 23. Brocks V. Phillips, Cro. Eliz. 684. Bristow •«. Towers, ib. 35. Watford 7>.Masham, Moore 431. Rich- /w\ 3 3^0. Abr. 7. field .^Udall, Carter 49 J91 Villa.. (.) off.Ex. 7. 3 Bac. Abr. 28. llVii. Dimock, Skmner, 370. MoUay, lib. 3. ./ .„- C.2.S.10. OfF. Ex. 15. Anon. Cro. Eliz. ''' ^ ' 142. CHAP. II.] OF APPOINTING EXECUTORS. 35 ferring on him those rights which properly belong to the office, or by any other means from Mhich the testator's intention to invest him with that character may be distinctly inferred. As if a will direct that A shall have the testator's personal proper- ty after his death, and, after paying his debts, shall dispose of it at his own pleasure; or declare that A shall have the admin- istration of the testator's goods ; this alone constitutes A an ex- ecutor according to the tenor. So, where the testator, after giv- ing various legacies, appointed that, his debts and legacies being paid, his wife should have the residue of his goods, on condi- tion that she gave security for the performance of his will; this was held to be sufficient to make her executiix. And so where an infant was nominated executor, and A and B overseers, with this direction, that they should have the control and disposi- tion of the testator's effects, and should pay and receive debts [36] till the infant came of age ; they were held to be executors in the meantime (>). His appointment may be either absolute, or qualified. It is absolute, when he is constituted certainly, immediately, and without any restriction in regard to the testator's effects, or lim- itation in point of time. It may be qualified, as where A is ap- pointed to be executor at a given period after the testator's death ; or where he is appointed executor on his coming of age, or dur- ing the absence of J. S. ; or where A and B are made executors, and B is restricted from acting during A's life; or where A and B are named executors, and if they will not accept the office, then C and D are substituted in their room; or where A is appointed executor on condition that he gives security to pay legacies, or generally to perform the will. So a testator may make A an executor in respect to his plate and household goods, B in respect to his cattle, C as to his leases, and D in regard to his debts ; or appoint A an executor for his effects in one county, and B executor for his effects in another; or (which seems more rational and expedient) he may so divide the duty where his property is in various countiies. So he may nomi- (V) 2 Bl. Com. 503. Off. Ex. 8, 9. 3 (B.) Cro. Ellz. 48. Pickering t;.To\v^ Bac. Abr. 27. 11 Vin. Abr. 136. Go- crs, Ambl. 364. Swinb. p. 4. s. 4. dolph. 83. Com. Dig. Administration 37 OF AN EXECUTOR DE SON TORT. [boOK I. [57'] natc his wife executi'ix during the minority of his son, or so long as she continues a widow ('). Lastly, an executor may be appointed solely, or in conjunc- tion with others ; hut, in the latter case, they arc all considered by the law in the light of an individual person ("). Sect. II. Of an executor de son tort — how a party becomes so. Having thus treated of executors regularly constituted, I l)roceed now to the consideration of another species of them, who derive no authority from the testator, but who assume the office by their own intrusion and interference. Such an one is styled an executor de son tort, or an executor of his own wrong (»>). Various are the acts which constitute an executor of this description («), such as his taking possession of, and converting the assets to his own use (d) ; living in the house, and carrying on the trade of the deceased (e) ; paying the deceased's mort- [38] gages, or other debts or legacies out of them ; suing for, receiving, or releasing the debts due to the estate (f) ; seizing a specific legacy without the assent of the lawful executor (e) ; entering on a lease or term for years (''), or an estate pur autre vie ('), (which is made assets by stat. 29 Car. 2. c. 5.) espe- cially if he enter in right of the deceased, and do acts on the land, which belong to the office of an executor; as turning the cattle upon it; delivering to the widow more apparel than is suitable to her rank (^) ; answering in the character of an exe- (') off. Ex. 10.12. SBac.Abr. 28.30. (■=) Hooper v. Summerset, 1 Wight- 11 Vin. Abr. 136, 138, 139. Carte v. wick, 16. Carte, 3 Atk. 180. Chetham v. Lord (t) Svvinb. 6. s. 22. No. 2. Fleice v. Audley, 4 Ves. jun. 72. Southcot. Dyer, 105. Roll. Abr. 918. (•^) 3 Bac. Abr. 30. Off. Ex. 95. ,g. 3 ^^^ j^^^. 31. Godolph. 91. ('')Off. Ex. 172. 3 Bac. Abr. 20. „,„ . ^ ^ o« ^r « o « au OK/: 00 XT o o ni r«^ «nr - CO Swmb. 6. s. 22. No. 2. 3 Bac. Abr. Svvinb. 6. s. 22. No. 2. 2 BI. Com. 507. ^ ^ 11 Vin. Abr. 210. ^^' (') 3 Bac. Abr. 21. 11 Vin. Abr. 205. (') Carth. 166. C) 5 Co. 33 b. Off. Ex. 172. U Vin. (X) Off. Ex. 175. Abr. 210, 211. CHAP. II.] OF AN EXECUTOR DE SON TORT. 38 ciitor to any action brought against liim, or pleading any other plea than iie ungues executor ('). And all other acts of a similar nature, however slight ('"), may have the same consequence, as in one case, merely taking a bible, and in another a bedstead ("), were held sufficient, inasmuch as they are the indicia of tiic person so interfering being the representative of the deceas- ed. So if J. S. be appointed by the ordinary to collect the effects, and he exceed his authority, and sell any of them, even such as are perishable (»), or if he had the express direction of the ordinary for such sale, the same being illegal, he becomes an executor de son tort{v). [39] So where A, the servant of B, sold goods of C, an intes- tate, both before and after C's death, in consequence of orders given by him in his lifetime, and paid the money arising from such sale into the hands of B ; and D had also, in the capacity of a servant, sold other goods of the intestate ,♦ on an action brought against B and D as executors, for a debt due from the deceased, they, not having discharged themselves by payment of the money, which they had respectively received, to the right- ful administrator at the time when the action was commenced, or even when they pleaded, were both adjudged liable as exe- cutors of their own wrong (i). So where a creditor took an absolute bill of sale of the goods of the debtor, but agreed to leave them in his possession for a limited time, before the expiration of which the debtor died, and the creditor took and sold the goods ; he was held liable to the extent of their value, as executor de son tort, for the debts of the deceased ('). So by stat. 43 Eli'Z:. c. 8. if administration by fraud be grant- ed to an insolvent person, who gives any of the effects to A, or releases a debt due from him to the intestate, A, for so much, shall be executor de son tort (*). [40] But there are many acts which a stranger may perform (1) 3 Bac. Abr. 21. Godolph. 92. (0 Off. Ex. 175. 11 A^in. Abr. 209. (™) Padget V. Priest, 2 Term Rep. (i) Padget v. Priest et al. 2 Term 100. Stokes V. Porter, Dyer, 166 b. Hep. 97. 11 Vin. Abr. 212. (>•) Edwards v. Harben, 2 Term Rep. (») 3 Bac. Abr. 24. Noy. 69. 587. {-) on\ Ex. 174. (») Vin. Off. Ex. 182, 183. 40 OF AN EXECUTOR DE SON TORT. [bOOK I. without incurring the hazard of being involved in such an executorship Q) ; such as locking up the goods ; directing the funeral, in a manner suitable to the estate which is left, and defraying the expenses of such funeral himself, or out of the deceased's effects (") ; making an inventory of his property (^ ) : advancing money to pay his debts or legacies (^) ', feeding his cattle; repairing his houses; providing necessaries for his chil- dren (x) ; for these are offices merely of kindness and cliarity. And although, as I have stated, a party may be executor dc son tort of a term actually existing, and in that case cannot enlarge his estate by claiming in fee, yet if he enter generally on lands, of which there is no term in being, he cannot qualify his wrong by expressly claiming only a particular estate, but must be a disseisor in fee, and not an executor de son tort (y). Nor can there, generally speaking, be such an executor, wlien there is a rightful executor, or where administration has been duly granted ; for, if after probate of the will or administration granted, a stranger take possession of the property, he may be sued as a trespasser by the executor or administrator ; but it is otherwise if, after taking such possession, he claim to be exe- [41] cutor, pay or receive debts, or pay legacies, or otherwise intermeddle in that character (^) ; for in all those cases he be- <:omes an executor of his own wrong. [1] ('•) 3 Bac. Abr. 22. Godolph. 93,94. (") Swinb. ibid. (f) Off. Ex. 174. Swinb. 6. s. 22. No. 2. " (v) 3 Bac. Abr. 23, 24. Mayor of Nor- 2 Bl. Com. 507. 11 Vin. Abr. 207. wich v. Johnson, 3 Lev. 35. S. C. 3 Harrison v. Rowley, 4 Ves. jun. 216. Mod. 90. and 2 Show. 457. (") Swinb. ibid. (^) 3 Bac. Abr. 22- 5 Co. 33 b. Anon. (w) 3 Bac. Abr. 22. Godolph. 92. Salk. 313. pi. 19. 11 Vin. Abr. 212. [1] No action lies against an executor Je son tort, for waste in not collecting the personal estate and paying the debts of the deceased, and thereby subject- ing the lands to be taken into execution ; for he has no authority to collect the effects of the deceased. Mitchel v. Lunt, 4 Mass. Rep. 654. If a person intermeddle with the personal estate of the deceased, to creditors as executor de son tort, so far as he has intermeddled ; when sued, he falsely deny that he is executor, he is made chargeable false plea for the debt out of his own estate, if he have not persona the deceased sufficient to pay it. Ibid. But no intermeddling with the lands of the deceased, will charge a person 1, he is liable \ lied ; and if, i geable by bis I onal estate of J CHAP. II.] OF THE RENUNCIATION, &C. 41 Whether a man has made himself such an executor, is a question not to be left to a jury, but is a conclusion of law re- sulting from the facts established in evidence (a). Sect. III. Of the renunciation or acceptance of an executorship. [1] An executor may, if he please, decline to act, but he has no power to assign the office (b). On his being cited by the ordi- (^) Padget V. Priest. 2 Term Rep. 99. (b) 3 Bac. Abr. 42. as executor de son tort,- but such intermeddling is a wrong done to the heir or devisee. Ibid. 1 Root 183. Nor will the intermeddling with goods which are held by a conveyance from fthe deceased, although it be fraudulent, make a man executor in his own wrong. Taking of administration will not purge the wrong of an executor de son tort."^ / Green v. De-wit, 1 Root R. 183. / -^ The policy of the several states has varied in regard to an executor de son tort. In some, his interference with the estate of the decedent is punishable by penalty ; in others, is rewarded by permitting him to retain his debt as a rightful executor or administrator. In Vermont and New Hampshire, a person embezzling or alienating the goods or chattels of the decedent, is chargeable, as executor de son tort, to double the value of the article embezzled or alie- nated; and he maybe compelled to render an account, on oath, of the property that may have come to his hands. In Rhode Island, one so alienating or em- bezzling, is chargeable as executor de son tort. In New York and New Jersey, the executor de son tort may retain his own debt, and be allowed all debts paid by him, as if he were a lawful executor. In South Carolina, he is considered as a trespasser, and is chargeable as far as assets come to his hands, and is in every respect liable as an executor of his own wrong, at common law. [1] In Vermont, Rhode Island, New Hampshire, Massachusetts, and Con- necticut, if the executor, having knowledge of his appointment, shall not, within thirty days next after the decease of the testator, cause the will to be proved and recorded in the proper Office, or present the will and declare in writing his refusal, he is subjected to a penalty for his delay. In Vermont and Rhode Island, the penalty is ten dollars per month ; in New Hampshire and Massachusetts, five pounds ; and in Connecticut, seventeen dollars. The pro- priety of these provisions becomes obvious, when it is considered, that under the Stat. 21 Hen. 8. c. 5. by which the practice of the otker states, in this par- G 41 OF THE RENUNCIATION OR [bOOK I. nary, pursuant to stat. 21 //. 8. c. 5, to come in ami prove the will, if lie neglect to appear, he is punishable by excommuni- cation for a contempt {"). If he appear, either on citation, or voluntarily, and pray time to consider whether he will act or not, the ordinary may, though the practice seems now obsolete, grant letters ad colligendum in the interim ('') : [2] If he refuse, [42] he cannot be compelled to accept the executorship, and his renunciation is entered and recorded in the spiritual court be- fore the ordinary. A refusal, by any act in pais, as a mere verbal declaration to that effect, is not sufficient j but, to give C^) Off. Ex. 37. Vid infr. ('') Broker v. Charter. Cro. Eliz. 92. ticular, is regulated, the judge of probate can punish by excommunication only the contumacy of the executor who refuses to appear on citation — a punishment, whether taken in its ecclesiastical or civil effect, altogether unknown to the American law. But if the executor do not come in on the citation, he is con- sidered as having refused the office, and it is so recorded, and letters of admi- nistration cum testamento annexo are granted. . It has been determined in Massachusetts, that if two executors be appointed in a will, and both, knowing of their appointment, neglect to present the will to the Probate Court within thirty days after the testator's decease, a joint forfeiture is incurred under the Stat, of 1783, c. 24. § 16, which may be sued for jointly, and perhaps separately, although but one forfeiture may be recover- ed. But if the neglect be in one executor, and not in both, the negligent exe- cutor alone incurs the forfeiture, and is alone to be sued. If either executor present the will, no forfeiture is incurred by either. Hill & Ux. v. Davis & at. JEx'vs 4 Mass. R. 137. In Vermont, the judge of probate may enforce his decrees by attachment. Ver7nont Laws. [2] Letters ad coiligendijm are granted by the ordinary in Maryland, in case of delay on account of the absence from the state of an executor, or of a contest relative to the right of administration, or of a contested will or codicil, or of the negligence of any executor to take out letters testamentary, or the absence or negligence of any person entitled to letters of administration, or on any other account, at his discretion. And in Virginia and Kentucky, such letters may be issued during any contest about a will, or during the infancy or in the ab- sence of an executor, or until a will, which may have once existed, but is de- stroyed, shall be established, or whenever the Court, from any other cause, shall judge it convenient. And the collector, in all the foregoing states, must give bond, with security, for collecting the estate, making an inventory tliereof, and safe keeping and delivering up the same, when required, to the executors or administrators. CHAP. II.] ACCEPTANCE OF AN EXECUTORSHIP. 42 it validity, it must be thus solemnly entered and recorded, and then administration with the will annexed will be granted to another (''). If the executor refuse to take the usual oath, or, being a quaker, to make the affirmation, tliis amounts to a refusal of the office, and shall be so recorded (f). In case the ordinary himself is nominated executor, he may renounce before tlie commissary (s). If a party renounce in person, he takes an oath that he has not intermeddled in the effects of the deceased, and will not intermeddle therein with any view of defj-auding tlic creditors. But he may renounce by proxy, and then the oath is dispensed with. An executor cannot in part refuse ; he must refuse entirely, or not at all (^). After such refusal, and administration granted, the party is incapable of assuming the executorship (>) during the lifetime of [43] such administrator ,• but, after the death of the administra- tor, the executor may retract his renunciation, however formally made; but if administration be committed in consequence mere- ly of his failure to appear on the above-mentioned process, he has a right, at any future time, even in the administrator's life- time, to come in and prove the will C^). If he appear, and take the usual oath before the surrogate, he has made his election, and cannot afterwards divest himself of the office, but may be compelled to perform it (•). So, if he once administer, he is absolutely bound (m) ; and by stat. 37 Geo. 3. c. 90. s. 10. if he administer, and omit to take probate within six months after the death of the deceased, he is liable to the penalty of fifty pounds ("). («) OfF. Ex. 38. 4 Burn. Eccl. L. 198. ("<) Off. Ex. ibid. Com. Dig. Admon. Swinb. 6. s. IT. Roll. Abr. 907. (B. 4.) infr. (0 4 Burn. Eccl. L. 213. Rex iy. Raines, (') Swinb. 6. s. 12. 1 Ventr. 335. 11 Ld. Raym. 363. Vin. Abr. 207. (g) Ibid. 38. ('") 4 Burn's Eccl. L. 198. Swinb. 6. (h) 11 Vin. Abr. 139. An6n. Brownl. s. 12. Wankford v. Wankford. Salk, 82. Fooler v. Cooke. 1 «alk. 297. 301. 304. 307. (i) Swinb. 6, s. 12, 3 Bac. Abr. 42, 43. (") Vid. infr. Off. Ex. 39. 43 t)F THE RENUNCIATION, &C. [bOOK I. The acts which amount to an administration are all such as indicate an election of the executorship (°), and within this class all such acts as constitute an executor de son tort are of course comprehended (p). Hence, it hath been adjudged, that if he [44] take the goods of a stranger, under an idea that they be- longed to the testator, and with an intent to administer them, this act is sufficient to charge him ; as, where the testator was tenant at will of certain goods, and the executor seized them, supposing they were part of the deceased's effects, and intend- ing to administer them, this was held to be an election of the office (n). But it is otherwise if the executor take the testator's goods on a claim of property in them himself, although it after- wards appear that he had no right, since such claim is expres- sive of a different purpose from that of administering as exe- cutor (>•). So, if an executor sequester goods in the character of a commissary, that is no assent to the executorship Q), But if there be two executors, and one of them have a spe- cific legacy bequeathed to him, and take possession of it with- out the consent of his co-executor, such act amounts to an ad- ministration (t). So, if an executor have refused before the or- dinary, and administration hath been granted, if it appear he had administered before, and thus determined his election, the letters of administration may be revoked, and he may be en- forced to prove ("). If there be several executors, they must all duly renounce before the administration with the will annexed can be grant- ed'(v). [45] If some of them renounce before the ordinary, and the rest prove the will, the renunciation is not peremptory ; such as refused may, at any subsequent time, come in and adminis- ter, and although they never acted during the lives, they may assume the execution of the will after the death, of their co-ex- ecutors, and shall be preferred before any executor appointed (°) 3 Bac. Abr. 44. Roll. Abr. 917. (■) 3 Bac. Abr. 44. Roll. Abr. 917. 11 Vin. Abr. 205. (^) Roll. Abr. 917. 11 Vin. Abr. 206. (p) 3 Bac. Abr. 44. Roll. Abr. 917- (t) Roll. Abr. 917. 11 Vin. Abr. 206 Swinb. p. 6. s. 22. („) off. Ex. 40. (1) Roll. Abr. 917. 11 Vin. Abr. 206. (") Roll. Abr. 907. UIIAP. n.] OF EXECUTOR BEFORE PROBATE. 45 by them Q"-). And if administration be committed before a re- fusal by the surviving executor, such administration will be void (=«). If an executor of an executor intermeddle in the administra- tion of the effects of the first testator, he cannot refuse tlie ad- ministration of the effects of tlie latter ; but he may take upon himself the latter, and refuse the former (> ). Sect. IV. Of an executor before jyrobate of the tvill. As a consequence of the principle that an executor derives ali his title from the will, his interest is completely vested at the [46] instant of the testator's death ; and therefore before pro- bate, that is, before the will is authenticated in the spiritual court, and a copy of it delivered to him, certified under the seal of the ordinary, he may lawfully perform almost every act which is incident to the office (^). Not to mention the funeral, he may make an inventory, and possess himself of the testator's effects (a) : he may enter peaceably into the house of the heir, and take specialties, and other securities for the debts due to the deceased C'), or remove his goods (<=) : he may pay or take re- leases of debts owing from the estate : he may receive or release debts which are owing to it (^) : he may sell, give away, or otherwise dispose, at his discretion, of the goods and chattels (w) 5 Co. 28. 9 Co. 36 b. Anon. Dyer, Com. 280. Smith v. Milles. 1 Term 160. House V. Lord Petre. 2 Salk. 311. Rep. 480. 3 Bac. Abr. 52. Off. Ex. 34. Mead v. Lord Orrery. 3 Atk. 239. 11 Vin. Abr. 202. Wankford f . Wank- Robinson ti. Pett, 3 P. Wms. 251. vid. ford. 1 Salk. 299. also Rex v. Simpson. Burr. 1463. S.C. (a) off. Ex. 34. 1 Bl. Rep. 455. 11 Vin. Abr. 55. 66. .^. ^^ ^^ 24 (>')\Vankfordr).Wankford. Salk. 308. (y) Shep. Touchst. 464. (') ^^''l- 92- Vid. infr. (0 Com. Dlg^. Admon. E. 9. Plowd. ('") I'^i^- ^^- 46 OF EXECUTOR BEFORE PROBATE. [bOOK I. of tlie testator ('^) : [1] he may assent to or pay legacies (f) : he may enter on the testator's term foryea)s(ff) : he may commence actions in right of the testator, as for trespass committed, or goods taken, or on a contract made in the testator's lifetime, although he cannot declare hefore probate, since, in order to assert such claims in a court of justice, he must produce the copy of the will, certified under seal as above-mentioned, or, as it is sometimes stvled, the letters testamentary | but when [47] produced, they shall have relation to the time of suing out the writ(''). So, if in the same right he file a bill in equity, a subsequent probate shall be equally available ('); and, accord- ing to a late case, it seems sufficient if it be obtained at any time before the hearing Q<). So, an executor may before pro- bate arrest a debtor to the estate, and shall be justified in that act by the relation of the subsequent grant ('). But such rela- tion shall not prejudice a third person ; and therefore, where the debtor, after being arrested by the executor before probate, paid a debt to J. S. and continued two months in prison, he was adjudged not to be a bankrupt from the time of the arrest, so as to invalidate that payment ("'). An executor may also maintain actions on his own posses- sion, as trespass, detinue, or replevin, for goods or cattle of the testator taken after the testator's death (") : so, if he be en- (') Ibid. 35. C"*) Patten, executrix, v. Panton, 1793, (0 Ibid. 35. 11 Vin. Abr. 204. cited 3 Bac. Abr. 53. (s) 11 Vin. Abr. 203. (i) off. Ex. Suppl. 103. Roll. Abr. 917. rh)ll Yin. Abr. 202. et seq. Com. r,r,\ it v au cca c, ~y *u m ^ ' „„ ■? ('") 11 Vin. Abr. 204. 3 Bac. Abr. So. Dijc. Admon.B.9. Off.Ex. 36. 3 Bac. „ i^- a i « n r. u " „, ,^ „ . Com. Die. Admon. B. 9. Duncomb t». Abr. 53. 9 Co. 38. Harg. Co. Litt. ,,, „ o , er ci • oo q- ° Walker. 3 Lev. 57. Skmn. 22. 87, ^^^ ^' , , . „ ,„ Cooke's Bank. Laws. 4th edit. 94. (') Humphreys r.Inffledon, 1 P. Wms. 752. Humphreys v. Humphreys, 3 P. (") ^ Vin. Abr. 203. Off. Ex. 2,^. Wms. 351. [1] In Virfrinia, where the executor must qualify himself by giving bond with surety, if a person named as one of the executors, not having so qualified himsielf, sell a slave belonging to the estate of his testator, and die without be- ing qualified, the sale is void against the executor who did qualify, though made for a vaUiul>le consideration, and at a time wlien there was no qualified executor. Munrue Ex. nf Jones \. Jones, 4 Munford's Rep. 104. CHAP. II.] OF EXECUTOR BEFORE PROBATE. 47 titled as executor to the next presentation to a living, and it become void, he, or his grantee, may maintain a quare imjjedit for it before probate ("). [48] So he may maintain actions, as trespass or trover, for such of the effects as never came into his actual possession, taken or converted after the testator's decease (p). So he may maintain actions on contracts either actually made with him subsequent to that event, or arising by legal implication, as assumpsit for the goods sold by him ('•), or for money due to the testator, received by the defendant after the testator's death (i). In all such cases, the causes of action arise subse- qnent to the attaching of the plaintiff's right, and therefore he need not describe himself as executor (''), and consequently no profert of the letters testamentary is requisite. So, where a reversion for years is vested in him in tliat clniracter, he may avow without probate for the rent which accrued after the tes- tator's death, but not for such as accrued before ('). Such are the acts, which an executor, although the will has not received the sanction of the spiritual court, is warranted in performing, and which his death before probate will not annul ("). On the other hand, if he have elected to administer, he may [49] also before probate be sued at law, or in equity, by the deceased's creditors, whose riglits shall not be impeded by his delay, and to whom, as executor de jure or de facto, he has made himself responsible (v). If an executor die before probate, he is considered in point (o) 3 Bac. Abr. 53. Off. Ex. 36. Com. (») Smith v. Barrow, 2 Term Rep. Dig. Pleader. O. 14. Smithley v. 477. Chomeley. Dyer, 135. ("•) Wankford v. Wankford. 1 Salk. (p) 3 Bac. Abr. 53. Frederick v. Hook. 302. 307. Bollard v. Spenser. 7 Term Carth. 154. Rep. 359. (q) Off. Ex. 36, 37. in note 1. Anon. (") Off. Ex. 35. 11 Vin. Abr. 204. Ventr. 109. Bollard v. Spenser. 7 Anon. Dyer, 367. "Wankford v. Wank- Term Rep. 358. Harris v. Hanna. Ca. ford. 4 Salk. 306, 307. Temp. Hardwicke, 204. Cockerill v. (") Com. Dig. Admon, B. 9. Plowd. Kynaston. 4 Term Rep. 277. Com. 280 b. 11 Vin. Abr. 205. Dul- (') Nicholas V. Killigrew. Ld. Raym. wich College v. Johnson. 2 Vern. 49. 436. Off. Ex. 37. 49 OF EXECUTOR BEFOIIE PROBATE. LroOK I. of law as intestate in regard to tlie executorship (^*'), althoiigli he have made a will and appointed executors ; and although he die after taking the oath, if before the passing of the grant. If A be executor for a certain period, and B be nominated executor for tlie time subsequent, and A prove the will ; after the time is expired, B may sue without another probate ("). Sect. V. Of the probate^ — Jurisdiction of granting the same — of bona notabilia. [1] I PROCEED now to consider the probate of a will. The juris- diction of proving wills consequent, as will be hereafter shown, (w) off. Ex. Suppl. 74, 75. 182. 11 (") Com. Dig. Admon. B. 9. Ca. Ch. Vin. Abr. 68. 90. 265. 11 Vin. Abr. 56. [1] The ecclesiastical polity of England was not brought by our forefathers to America. The clerical jurisdiction over the estates of decedents, was there- fore to be supplied to every colony before the Revolution, and to every state constituted since. A history of these substitutions might be interesting; but our plan does not admit of more than an outline of the systems, as they are at present established. In Vermont, New Hampshire, and Connecticut, Courts of Probate are erect- ed in certain districts, with one judge each, having power to appoint a clerk. These Courts have jurisdiction over the probate of wills, granting of adminis- trations, the appointment of guardians, and all matters of a testamentary na- ture. In case of difficulty or dispute, the judge may call to his assistance two or three justices of the quorum of the county in which the dispute arises. In Rhode Island, the To-ivn Councils in the several towns in the state are the Courts of Probate for their respective towns, and have original jurisdiction of all probate cases, and authority to grant administration in their respective towns. In Massaclmsetts, by the Stat, of Feb. 24, 1818, a judge is appointed in each county, for taking the probate of wills and granting administration; for ap- pointing guardians ; for examining and allowing tlie accounts of executors, ad- ministrators, or guardians ; and for such other matters as the Courts of Pro- bate in the several counties shall have bylaw cognizance and jurisdiction of. A like Court is also established in Maine, with authority over all matters relating to the settlement of the estates of decedents. An appeal lies from these Courts to the Superior or Supreme Court. CHAP. 11.] OF THE PROBATE. 50 [50] on the power of granting administrations, regularly belongs to the bishop of the diocese, or the metropolitan of the province, In Massachusetts, the power of granting administration upon the estates of persons who at the time of their deatli wei-e inhabitants of tlie commonwealth, is vested exclusively in the judge of probate for the county in which the de- ceased dwelt at the time of his death; and the doings of any other judge of probate in such case would be merely void. Cutts & al. v. Haskins, 9 Mass. Rep. 543. When a deceased intestate has left any estate within the commonwealth, although he were not an inhabitant or resident at the time of his death, admi- nistration may be granted by the judge of probate of any county where the estate lies ; and the person first obtaining administration will have legal au- thority to administer all the estate of the intestate, although it may lie in several counties of the commonwealth. Good-win v. Jones, 3 Mass. Rep. 514. Stevens, Adm. v. Gaylord, 11 Mass. Rep. 256. If a foreigner, or citizen of any other of the United States, die, leaving debts and effects in this state, these can never be collected by an administrator ap- pointed in the place of his domicil ; but administration must be granted to some person here for that purpose, which will be considered as ancillary merely to the principal administration. Ibid. But in such case, it is not necessary that an administrator be appointed in the place of the deceased's domicil, before administration is granted. Ibid. 2 Root, 426. In New York, a Court of Probate, having one judge, is held in the city of Albany, of which city the judge must be a resident ; and a surrogate is ap- pointed in each county of the state, by the executive. The judge and surro- gates are empowered to take probate of wills of all deceased persons, who, at or immediately previous to their deaths, were inhabitants of the respective counties of such surrogates, in whatever place the death of such persons may have happened ; to grant letters testamentary thereon, and letters of adminis- tration of the goods, &c. of all persons dying intestate, or with the will annex- ed where it shall be requisite. The Court of Probate is the Prerogative Court, and has concurrent jurisdiction with the surrogates of the several counties of the state, in cases where persons die out of the state, or die within the state not being inhabitants thereof. An inhabitant of New York went into another state, leaving behind him his wife and property, and there resided seven years, and died intestate. It was held that he had ceased to be an inhabitant of New York, (there being no evi- dence of an animus revertendi,) and it belonged to the judge of probate, and not to a surrog.ite, to grant administration of his goods and chattels within that state. Weston v. Weston, 14 Johns. Rep. 428. In New Jersey, the governor is the ordinary or surrogate genei'al. He has power to grant probate of wills, letters of administration, letters of guardian- ship, and marriage licenses ; and to hear and finally determine all disputes that may arise thereon. The secretary of state is the Register of the Preroga- tive Court. A deputy surrogate is appointed in every county, whose power is H 50 or THE PROBATE. [bOOK I. in which the parties resided at the titnc of their death (y). But if a testator die within some peculiar jurisdiction, which is ' (y) 3 Bac. Abr. 34. 39. Com. Dig. Admon. B. 6. 4 Burn. Eccl. L. 188. limited to the county for which he is appointed, and he is ex officio Clerk or Register of the Orphan's Court. It is the duty of the surrogate to take the deposition to wills, administrations, inventories, and administration bonds, in cases of intestacy, and transmit them to the Registry of the Prerogative Court, where no objection, difficulty, or dispute, shall arise thereon. But in all cases where doubts arise on the face of the will, or a caveat is put in against proving a will, and wherever disputes happen respecting the existence of a will, the fairness of an inventory, or the right of administration, the parties are to be summoned by the Register before the Orphan's Court, where the cause is heard in a summary way, and decided by the judges, subject to an appeal to the Prerogative Court, if demanded by the party within one month after the decree of the Orphan's Court. It is also the duty of the surrogate to audit and state the accounts of executors and administrators to the Orphan's Court, before which they are to be investigated, if exceptions be taken to his report. Laws of JVew Jersey. In Pennsylvania, an Office for the probate of wills and granting letters of administration, called the Register's Office, is established in each county. The officer is appointed by the governor, and has power to appoint a deputy. An appeal lies from the Register to the Register's Court, composed of the Register and two or more judges of the Common Pleas. The power of this Court, under the several Acts of Assembly now in force, extends no further than to decide on caveats respecting the validity of wills, and controversies as to whom letters qf administration shall be granted. It has no power to settle the accounts of administrators, and consequently no power to issue an attachment against an administrator for not obeying a citation to appear and render his accounts. Commonivealth v. 3rady, 3 Serg. & R. 309. On filing a caveat against the probate of a will, either party may demand a trial by jury. In such case, the Register's Court directs an issue to determine the will, to be tried in the Common Pleas, which being tried and returned, the Register's Court takes the fact as settled. Spongier v. Rambler, 4 Serg. Si R. 193. With regard to personal estate, such decision is absolute ; but the ver- dict on the issue is not considered conclusive with respect to real estate, and the party dissatisfied may have the title tried in ejectment. Ibid. When the dispute is about \\\efact of the execution or the sanity of the tes- tator, the Register's Court may send an issue to the Common Pleas, even with- out the request of either party ; but when the dispute is about the legality of the execution, the Court is the proper tribunal. Cumberland,\793. 1 Sm. Laws, 10. Anon. In Delaware, a Register is appointed in each county, with authority to take probate of wills, grant letters testamentary and of .administration, and to adjust and settle the accounts of executors, administrators, and guardians. An appeal lies from the Register to the Supreme Court. It is doubted whether he may, €;HAP. II.] OF THE PROBATE. 50 either regal, archiepiscopal, episcopal, or arcliidiaconal : in each of these the owner hath of common right the power of in disputed cases, send an issue to be tried by the Common Pleas or Supreme Court. In Maryland, the governor, with the consent of council, is authorized to ap- point three justices of the Orphan's Court in each county, for the purpose of taking the probate of wills, granting letters testamentary and of administration, directing the conduct and settling the accounts of executors and administra- tors, securing the rights of legatees, superintending ihe distribution of the estates of intestates, securing the rights of orphans, and administering justice, in all matters relative to the affairs of deceased persons, according to law. There is a Register of wills, who is ex officio clerk of the Orphan's Court, and has an Office seal In common with it. The Court has like powers with Chan- cery to enforce its decrees, and may proceed like Chancery by bill or petition, and answer under oath or affirmation of defendant; and at the request of either party, may send an issue to be tried by any Court of law, and award costs to the party entitled thereto in the opinion of the Court. An appeal lies from this Court to the Court of Chancery, or to the general Court of the Shore whereon such Orphan's Court is held. The appellate Court is authorized to affirm the decree of the Court below, or direct the manner in which it shall be changed or amended ; and its decision is final and conclusive. In Virginia and Kentucky, the several district, county, or corporation Courts have jurisdiction over the probate of wills and causes testamenlacy, and the granting of administration. Letters testamentary, and letters of administration, must be granted from the Court of the district, county, or corporation, in which the mansion-house of the decedent lies, or in which was his place of residence. If he had no such place of residence, and lands be devised in the will, then the will shall be proved in the district, &c. where such lands lie ; or in one of them where there are lands in several districts or counties. Or if he had no such place of residence, and there be no lands devised, the will may be proved, or, if the case require it, letters of administration may be granted, by the Court of the district, &c. in which the decedent died, or that, wherein his estate or the greater part thereof shall be. Or letters testamentary, or of administration, may be granted, in any case, by the General Court. Under the Virginia Statute, it has been determined, that, notwithstanding a will has been admitted to record in a district Court, a county Court has juris- diction to try its validity. Ford v. Gardner et al. 1 Hen. & Munf 74. The county and corporation Courts, at quarterly terms, may, in their discre- tion, receive the probate of deeds or wills, or transact any business embraced by the general jurisdiction of the Courts ; but at a monthly session, they can- not take jurisdiction of any case expressly and exclusively assigned to a quar- terly term. 3 Hen. & Munf. 565. Wilkiiison v. Mayo. In North Carolina, all wills are proven, and administrations granted, in the Courts of the county where the testator or intestate had his usual residence at 50 OF THE PROBATE. [bOOK 1. granting probate. This privilege is founded on the notion of an original composition between such owner and the ordinary of the diocese for that purpose {'■). (z) 3 Bac. Abr. 39. Denham v. Stephenson. Salk. 40, 41. 11 Yin. Abr. 77. the time of his death; or in case the decedent had fixed places of residence in more than one county, in either or any of said counties; and in case of a writ- ten will, with the witnesses thereto, the same shall be proved by at least one of the subscribing witnesses, if living ; but if contested, shall be proven by all the living witnesses, if to be found, and by such other persons as may be produced to support such will ; and where the validity of any last will or tes» lament shall be contested, the same shall be invariably tried by a jury, on an issue made up under the direction of the Ctourt for that purpose ; any usage pr law to the contrary notwithstanding. 2 Haywood's Rep. 3. In South Carolina, an ordinary is appointed by the Legislature for each dis- trict, without salary, but having fees. He holds a Court as occasion requires ; and has cognizance of probate of wills, granting letters of administration, the examination and settlement of executors' and administrators' accounts, distri- butions of assets, &c. with all requisite powers for this purpose. An appeal lies from the ordinary to the Common Pleas of the district. In Georgia, the inferior Court of each county is constituted a Court of ordi- nary, to take probate of wills, grant letters of administration, and to determine all testamentary causes touching the proof of wills. To the clerk of such Court, who is commissioned by the governor, application must be made for letters of administration, of which he must give notice in one of the public gazettes, and by advertisement at the county court-house, at least thirty days before the sitting of the Court. But the clerk may grant, at his discretion, letters to collect and take care of the effects of the deceased, until such meet- ing of the Court. And the Court has like power to grant such letters, in case of appeal from their determination to the superior Court. In either case, the collector must give security. In Ohio, the Court of Common Pleas has tlie probate of wills, and the grant- ing of letters testamentary and of administration ; and generally takes cogni- /ance of all probate and testamentary causes and matters, and has the appoint- ment of guardians. An appeal lies to the Supreme Court. In Illinois, by Stat. Feb. 10, 1821, a Court of Probate, held by a single judge, is established in each county. An appeal lies to the Circuit Court. In Indiana, the Court of Probate is held by the judges of the Circuit Court. The clerks of the several Circuit Courts are authorized to take proofs of last wills and testaments, and to grant letters testamentary and of administration, m vacation, subject to be revoked by the judges in term time. These clerks are recorders of wills; and all administration bonds, inventories, accounts, &c. and other documents appertaining to the settlement of estates of decedents, are file^ in their respective Offices. CHAP. II.] OF THE PROBATE. 50 Courts baron, which have had the pi'obate of wills from time immemorial, and have always continued that usage, are also entitled to this species of jurisdiction ; but they can claim it only by prescription (»). By custom also the probate of wills of burgesses belongs to the mayors of some boroughs in respect of lauds devisable with- in the same ; yet, as to personal property, the will must be proved before the ordinary (^). But in general a probate can be granted only in the court of the ordinary, or of the metropolitan. [51] If all the effects at the time of the testator's death lie within one diocese, the executor ought regularly to appear be- fore the bishop, or his surrogate, and prove the will. But if the testator hath left bona notabiliaf or effects to the value established by 92 canon Jac. 1. namely, a hundred shil- lings in two distinct dioceses, or in several peculiars within the same province ; then the will must be proved before the metro- politan, by way of special prerogative (c) ; whence the court where the validity of such wills is tried, and the office where they are registered, are called the prerogative court, and the («) 3 Bac. Abr. 39. OfF. Ex. 44. Den- (0 2 Bl. Com. 509. 3 Bac. Abr. 56. ham V. Stepheiisoi^. Salk. 41. Atkins v. Com Dig Admon. B. 3. OfF. Ex. 45, Hill. Cowp. 286. 48. 4 Burn. Eccl. L 191. Roll. Abr. (•>) 3 Bac. Abr. 40. Off. Ex. 45. Off. Ex. 909. 11 Vin. Abr. 79. Swinb. p. 6. s. 11. Suppl. 10. In Alabama, Missouri, and Tennessee, the county Courts are invested with all the powers of the ordinary. An appeal lies to the Circuit Court. In Louisiana, there is a judge appointed in each parish, called the "parish judge," who is exq^do judge of probate. An appeal lies to the District Court. In Mississippi, there is a Court of Probate in each county, composed of a single judge and clerk. It has cognizance of all matters relating to the duties and powers of a surrogate in England. The Court holds stated monthly ses- sions. An appeal lies to the superior Court of the county, in all cases. In all the states, the probate is made by the subscribing witnesses, and it is conclusive on the heir, if unappealed from, in the following states : — Vermont, New Hampshire, Connecticut, Massachusetts, Maine, Georgia, Indiana, Ten- nessee, and Maryland. But it is not so conclusive in New York, Pennsylvania, New Jersey, Delaware, Virginia, Kentucky, Ohio, North Carolina, South Caro- lina, Alabama, Missouri, and Louisiana. In Rhode Island, the law is unsettled. 51 OF THE PUOBATE. [BOOK I. prerogative oflice, of the provinces of Canterbury and York ('i). So if there be bona notabilia in those several provinces, the archbishops shall in each of them grant a probate according to the bona notabilia in their respective provinces. Each of them has supreme jurisdiction, and neither can act within the pro- vince of the other (e). If there be bona notabilia in different dioceses of one province, and in one diocese only of the other; in respect to the former, the arclibishop shall have the probate ; in respect to the latter, the particular bishop (^). [52] So if the testator, not in itinere, die in one diocese, not liaving any goods there, but having bona notabilia in another diocese, the archbishop shall grant the probate {s). So if the goods be in several peculiars of a bishop's diocese, in that case probate shall not be granted by him, but by the metropolitan, inasmuch as peculiars are exempt from ordinary jurisdiction (''). But where the testator dies possessed of goods in the diocese of an archbishop, and in a peculiar of the same diocese, there must be several probates : the arclibishop shall have no prerogative, because the peculiar was derived out of his episcopal jurisdiction (■). By the canon 92 Jac. 1. above referred to, goods which a man has with him, who dies in itinere, shall not make bona notabilia i^)', but if a man have two houses in different dioceses, and resides chiefly at one, but sometimes goes to the other, and- being tliere for a day or two, dies, leaving no bona notabilia in tlte first-mentioned house, probate shall be granted by the bishop of the diocese in which the testator died, for he was commorant there, and not there as a traveller ('). , [53] If there be bona notabilia in England and Ireland, seve- ral probates shall be granted by the archbishop or bishop in England, and the archbishop or bishop in Ireland, as the case ('!) 2 Bl. Com. 509. 11 Vin. Abr. 56. ('') 4 Burn. Eccl. L. 191. 11 A^in. Abr. pi. 7. Vid. Harg. Co. Litt. 94. 80. Gibs. Cod.4r2. Swinb. p. 6. s. 11. (") 3Bac. Abr. 36. Burston v. Ridley. (-i) 4 gurn. Eccl. L. 191. Gibs. Cod. 1 Salk. 39. Shaw v. Stoughton, 2 Lev. 473. Cro. El. 719. Vid. 1 Bl. Com. 380. 36. 11 Vm. Abr. 76. pi. 15. Off. Ex. 48. ^^ ^^ ^ rO off Ex. 48. ^ ^ ^^ (0 3 Bac. Abr. 36. Roll. Abr. 909. 4 (') 4 Burn. Eccl. L. 191. Hilliard r-. Burn. Eccl. L. 189. 11 Vin. Abr. 80. Cox. 1 Salk. 57. CHAP. II.] OF THE PROBATE. 53 may require (™). The probate of a bishop's will, although he had goods only in his own jurisdiction, belongs to the arch- bishop of the province ("). If the testator died beyond sea, although the goods be in one diocese only, the arclibishop is to grant the probate (°). If the probate be granted by a bishop, or inferior judge, when it docs not belong to him, it is void ; but if it be granted by the metropolitan wlien it does not belong to him, it is only voidable, and is of foice till reversed by sen- tence, for he hath jurisdiction over all the dioceses within his province (p). In the above-mentioned canon, Jac. 1. there is a provision, that the jurisdiction of those dioceses shall not be prejudiced where, by composition or custom, bona notabUia are rated at a greater sum, as in London, where by composition they are to amount to ten pounds (i). Nor is it necessary that the deceased should have left effects to the value of five pounds in each of the several dioceses where they are dispersed ; if there be effects in any one diocese, [54] other than that in which he died, to the amount of five pounds, they constitute bona notabilia {^). But if the goods in the diocese wliere he died be of the value of ten pounds or up- wards, and he have not left goods amounting to five pounds in another diocese, they shall not be denominated bona notabUia {^'). If goods be left in two dioceses to the amount of five pounds in the whole, they shall be bona notabilia, and consequently sub- ject to the archbishop's jurisdiction (t), for in that case neither of the bishops has an exclusive authority. Bona notabilia may consist of goods to the value of five pounds in one diocese, and a lease or term for years of that value in another, iji which the lands lie("). (■") 3 Eac. Abr. 36. Daniel v. Luker. (q) 3 Bac. Abr. 37. Off. Ex. 45. Dyer, 305. Roll. Abr. 908. Gibs. Cod. (,) 1^-,^. 87. Godolph. 69. (5) Ibid. 57. Ibid. 69. 472. (") 3 Bac. Abr. 37. 4 Inst. 335. (o) lb. lb. 35. Roll. Abr. 908. (0 4 Burn. Eccl. L. 189. Roll. Abr. (p) lb. lb. 36. 4 Bum. Eccl. L. 193. ^^^' ^^^• Off. Ex. Suppl. 27. 11 Via. Abr. 75. (") 3 Bac. Abr. 27. Com. Dig. Admon, 80. Gibs. Cod. 472. B. 4. 54 OF THE PROBATE. [bOOK T. Debts due to the deceased, however difficult to be collected, or however desperate, may make bona notabilia {''). So, it seems, a debt dtie from the king, for which there is no remedy but by petition, may fall within the same description (^). But if there be a bond in the penalty of five pounds to secure the payment of a less sum, and tbe same be forfeited, it shall not be classed among bona notabilia ("). And it was so held even antecedently to the statute 4 & 5 Ann. c. 16. s. IS. whereby [55] the penalty is saved on bringing principal, interest, and costs, into court. Nor shall lands devised to executors for payment of debts and legacies, although they become assets, be considered as such goods (y). On this point the law makes a distinction between debts by specialty and debts by simple contract. It regards debts by specialty as the deceased's goods in that diocese where the se- curities are found at the time of his death, although they were entered into in another, or the debtor or creditor, at the time when they were executed, lived in a different diocese (^). But debts by simple contract follow the person of the debtor, and therefore are esteemed the deceased's effects in that diocese where the debtor resided at the creditor's death {^). On this principle it hath been holden, that a judgment obtained in one of the courts at Westminster, "altbough in an action laid in Dorsetshire, made bona notabilia^ because the record was at "Westminster ; but that a debt on a bill of exchange followed the person of the debtor {^). An annuity out of a parsonage shall be reputed to be pro- perty in the diocese where the parsonage lies (<=). (') 3 Bac. Abr. 47. Com. Dig. Admon. (^) 3 Bac. Abr. 3S. Off. Ex. 47. S- ^- (b) Gold V. Strode. Carth. 149. Den= (w) Off. Ex. 46. 11 Vin. Abr. 80. ham v. Stephenson. 1 Salk. 40. Adams (") Off. Ex. 46. - '"• Savage. Ld. Raym. 854. 11 Vin. (y) 3 Bac. Abr. 37. Off. Ex. 47. 11 Vin. ^^^- ^^- ^^• Abr. 80. ('^) Com. Dig. Admon. B. 4. Daniel t;. (^) 3 Bac. Abr. 37. Off. Ex. 46. Roll. ^''^^''- ^^^'•' ^05, in note. 11 Vin. Abr. 909. Shep. Touchst. 463. Abr. 80. CHAP, n.] OF THE PROBATE. 56 [56] And leases for yeai-s where the land lies, not where the lease is merely found (•"). Debts on recognizances, statutes, or judgments, shall he bona notahilia, where they were acknowledged or given (e). And by statute 4 & 5 Ann. c. 16. s. 26. salary, wages, or pay due to persons for work in any of her majesty's yards or docks, shall not he taken or deemed to be bona notabilia, whereby to found the jurisdiction of the prerogative courts. But to obtain an order of the Court of Chancery for the payment of money out of court, however small the amount, a prerogative probate is held to be indispensable, {f) [2] ('') Com. Dig. Admon. B. 4. (f) Newman v. Hodgson. 7 Ves. jun. (*) Com. Dig. Admon. B. 4. Daniel r. 409. Thomas x>. Davies. 12 Ves. jun. Luker. Dyer, 305, in note. 417. [2] It will be perceived at once, that all the learning relative to bona nota- bilia is inapplicable in the several states ; as the officers of probate for each county or district are independent of each other, and are established solely with regard to the convenience of the people. But it may be proper to intro- duce here the law in the several states, relating to letters testamentary, and letters of administration, granted in another state, or in foreign countries. By the codes of Vermont, New Hampshire, Massachusetts, Maine, and Rhode Island, it is provided, that the copy of a will, duly proven in a Probate Court of any of the United States, or in any foreign state or kingdom, may be filed and recorded in any Probate Court of the said states respectively, and that it shall have the force of an original will proved and allowed in the same Court of Probate; and bond shall be taken, or administration granted, and the estate settled, as in cases where wills are duly proven in such states respectively. But when the executor shall present the copy of such will, so proved out of the state, to any judge of probate, and shall desire (in writing) that the same may be filed and recorded pursuant to the Statute, it is made the duty of the judge to assign a time and place to take the same into consideration, and to give notice in some newspapers of the state, three weeks successively, thirty days at least before the time assigned, to the end that any person may appear and show cause against the filing and recording of the will. In Connecticut and New York, the executors or administrators, having letters in another state, cannot sue without proving the will and taking out letters testamentary ; and in case there be no will, the administrators must take out letters of administration. In New Jersey, by an old colonial Act, (1714,) it is enacted, that the copy of any will made in Great Britain or Ireland, or in any of his Majesty's colonies, whereby any land, &c. or other estate in that province is devised or bequeathed, I 56 OF THE PROBATE. [_BUUK l'. If the will be not contested, the executor may prove it in the common form by his own oiith, and in some of the dioceses of if certified under the seal of the Office, (if made in Great Britain or Ireland,) where such will or testament is proved and lodged ; or if made in any such colony, and certified under its great seal, may be given in evidence in any Court within the province, and shall be esveemed as valid and sufficient as if the oris^inal will were produced and proved. In Pennsylvania, it is enacted, that all wills in writing, proved in the Chan- cery of England, and the bill, answer, and deposition, transmitted hither under the seal of that Court, or proved in the Hustings or Mayor's Court in London, or in some Manor Court, or before sucli as shall have power in England or elseivhere to lake probate of wills and grant letters of administration; and a copy of such will, with the probate annexed, being transmitted here under the seal of the Court or Office where the same have been taken or granted, and re- corded in the Register-General's Office (Register's Office) of that province, shall be good and available in law, for the granting, conveying, and assuring the lands and hereditaments therein devised, as well as of the goods and chat- tels thereby bequeathed. And all such probates, as well as all letters of ad- ministration, granted out of this province, being produced here, are declared to be matter of record, and sufficient to enable the executors or administrators, by themselves or attorneys, to bring their actions in any Court, as if the same probates, or letters testamentary, or administrations, were granted here, and produced under the seal of the Register (General) of this province. This Statute has in substance been adopted in Delaware, except that in lieu of the word " clse-mhere" a more special enumeration of the places from whence conies of wills may be received, is given, in the following words: "That any will, &.C. proved in the Chancery of England, Scotland, or Ireland, or in the Court of Chancery in any colony, plantation, or island, in America, belonging to his Majesty, or which has been or shall hereafter be proved in the Hustings or Mayor's Court in London, or in some Manor Court," &c. Executors or ad- ministrators, having letters in another state, may sue in this. But in Maryland, though an attested copy, under the seal of Office, of any will recorded in any Office authorized to record the same, may be admitted as evidence in any Court of law or equity, yet the execution of the original will may be contested, until probate be made according to the law of that state. Letters must be taken out in this state, by executors or administrators having letters in anotlier state. And in Virginia, authenticated copies of wills, proved according to the laws of any of the United States, or of countries without the limits thereof, relating to any estate within that comnr mweallh, may be proved in the General Court, or in the Court of the district or county where the estate devised shall lie ; but the bond and oath of the executor or administrator, and the proof to be made by the witnesses, shall be conformed to the nature of the case. But such will shall be liable to be contested, in the same manner as the original might have been. And in Kentucky, the same provision is enacted in like terms. In CHAP. II.] OP THE PROBATE. 56 York, with the additional oath of one witness ; or in case its validity is called in question, he will be required to substantiate Virginia, no probate of a will or ,^rant of administration in another state of the Union, or in a foreign country, will give the executor or administrator any right to demand the effects of a decedent, within the jurisdiction of that com- monwealth. But in Kentucky, such executor or administrator may sue, upon filing with the clerk of the Court when the suit is brought an authentic copy of the certificate of probate, or order granting letters of administration, given in the state in which the executor or administrator resides. But before exe- cution had, bond with surety must be given duly to administer the assets re- covered ; and the executor may maintain suit, by the authority of letters tes- tamentary granted him in such other state; but an administrator must take out letters within the state, and give the usual bond with surety. In North Carolina, the copy of a will, registered and deposited agreeably to the laws of the state where the same was made, and properly certified, either according to the Act of Congress passed in May, 1790, or by the proper officer of the said state, and with the further testimonial of the governor or com- mander-in-chief of the said state, that the person certifying the same is the proper officer, or duly authorized by law, shall be read in evidence in the Courts, and admitted in the same manner as a copy from any of the Registers' or Clerks' Offices of North Carolina. In South Carolina and Georgia, executors and administrators cannot sue on letters granted in another state. They must take out letters in these states respectively. But, exemplifications of wills are evidence in these states, if authenticated according to the Acts of Congress. In Tennessee, Ohio, and Mississippi, exemplifications of wills are evidence; and the executor or administrator, having letters in anotlier state, may, on producing a copy of such letters, properly authenticated, maintain an action in the same manner as if they were granted in Tennessee, Ohio, or Mississippi, respectively. In Alabama, exemplifications of wills are evidence, when properly proven : and an executor or administrator, having letters in another state, may sue here; but before rendition of judgment, he must produce to the Court his letters, authenticated according to the laws of the United States, and, before execution, must give bond with surety for the faithful administration of the money reco- vered. In Louisiana, exemplification of a will suffices but to entitle executors or ad- ministrators to maintain suit. Letters of curatorship must be taken out in this state. In Missouri, authenticated copies of wills, proved according to the laws of any of the United States, or territories, or coimtry, where the same are made, with the probate thereof annexed or endorsed, being attested by the public or common seal of the Court or Office where the same have been granted and re- corded, the same being recorded within this state, shall be as good and valid, to all intents and purposes, as if executed and proved within this state, and be 56 *>F THE PROBATE. [bOOK 1. it more solenmly per testes, by the examination of witnesses in the presence of the parties interested, as the widow and next of admitted in evidence as such. And letters testamentary and of administration, gi-anted out of the state, produced fiere, under the seal of the Court or Office granting the same, are sufficient to enable the executor or administrator to sue, as if granted in this state. In Illinois, an exemplification of a will by the proper officer in other states, is not evidence : the original must be produced. And executors or adminis- trators having letters in another state, must also take out letters in Illinois, in order to sustain suit. In Indiana, it is expressly provided, that all probates of wills, duly granted in other states, shall be as valid and effectual as if granted in that state; and executors and administrators, having letters in other states, may maintain suit in this. By Act of Congress passed May 26th, 1790, the records and judicial proceed- ings of the Courts of any state shall be proved or admitted in any other Court within the United States, by attestation of the clerk, and the seal of the Court annexed, if there be a seal, together with a certificate of the judge, chief jus- tice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every Court within the United States, as they have by law or usage in the Courts of the state from whence the said records are or shall be taken. On the consideration of this subject, the Supreme Court of the United States have decided that the Orphan's Court, or other Court of Probates, has juris- diction to allow probate of wills made by persons in foreign states ; and that probate, once allowed, operates as a sentence affirming the validity of such wills between the parties, so far as the lex loci can give them operation. Car' ter^s Heirs v. Cutting & Wife, 8 Cranch, 251, 252. But an executor or administrator of a person who dies in a foreign country, cannot maintain an action in this country by virtue of letters testamentary granted to him abroad. Femvick v. Sears, 1 Cranch, 259. Bixon^s Ex^rs. v. Ramsay's Ex^rs. 3 Cranch, 319. 323. Perkins v. Williams, 2 Root. Rep. 462. And there is no difference in this respect between an executor and an adminis- trator; for they both derive their power of maintaining suits from the letters testamentary. Thus, an administrator having had letters of administration in Maryland, befoi'e the separation of the District of Columbia from Maryland and Virginia, cannot, after the separation, maintain an action, in that part of the District ceded by Maryland, under those letters of administration; but must take out new letters of administration within the District. 1 Cranch, 259. The same point has been determined in Massachusetts. Goodxvin v. Jones, 3 Mass. Rep. 514. Stevens, Mm. v. Gaylord, 11 Mass. Rep. 256. So in the Circuit Court in Connecticut. Riley v. Riley, 3 Day's Cases, 74. Bulls v. Rice, Cameron & Nor. R. 69. Champlin v. Tilley & al. 3 Day's Cases, 303. But it has also been deter- mined in that state, that an administrator appointed according to- the laws of CHAP. II.] OF THE PROBATE, 56 kin (s). This latter mode of proving a will is seldom resorted to, unless at the instance of a party whose object is to oppose it ('') ; but the executor himself may, for greater safety, if he have an interest in the will, elect to have it sanctioned by this more decisive species of evidence, and call on the next of kin to see it propounded ('). (g) 3 Bac. Abr. 59. 2 Bl. Com. 508. C^) 4 Burn. Eccl. L. 207. 4 Burn. Eccl. L. 205. 207. Godolph. {') 4 Burn. Eccl. L. 208. 1 Ought. 65. 1 Ought. 20. Svvinb. b. 6. s. 14. 20. the state where the intestate in his lifetime dwelt, may sue in that capacity in Connecticut, such having been the immemorial usage ; even though the admi- nistration be gi'anted of the goods and chattels of the intestate, in the state where he died only. JVicol v. J\tumford, Kirby, 270. And where an administra- tor cum testamento annexo of a person who at the time of his death was domi- ciled in England, comes into this country, (Massachusetts,) and takes out ad- ministration from the Probate Office, according to the Statute, he cannot be cited before the judge of probate, to give an account of assets received by him in England. Selectmen of Boston v. Boyleston, 2 Mass. T. R. 386. Nor is an administrator, not appointed in this state, liable in any action brought against him here, so as to subject the real estate of his intestate to be taken in execution. Borden v. Borden, 4 Mass. T. R. 67. It -woidd seem, that an administrator, who takes out letters of administration in one state, may, in equity, be called upon by a creditor to account for the as- sets in another. Bryan et al. v, JSVGee, C. C. April, 1809. MS. Rep. Whavton's Dig. 277. But though an administrator may not maintain suit on foreign letters, yet, if he have lawful authority to receive a debt due to his intestate, his discharge will be a good bar to an action for the same debt by an administrator in any other state. Stevens, Adm. v. Gaylord, 11 Mass. Rep. 256. In Pennsylvania, an exemplification of a will made in England, and certified generally to have been proved, approved, and registered, in the year 1704, in the Prerogative Court of Canterbury, under the seal of that Court, was allowed to be read in evidence, 1 Dall. 2. and such probate was admitted, though not recorded in the provincial Office. Ibid. 66. In Grxme v. Harris, 1 Dall. 450. it was decided, that letters of administration granted by the archbishop of York were not of sufficient authority to maintain an action in this commonwealth. And in JWCulloch v. Young, 4 Dall. 292. 1 Biiin. 63. it was determined, "that the Act of Assembly has uniformly been considered not to extend further than to the provinces in this country at the time the Act was passed, and that Gr■) Wankford v. Wankford. 1 Salk. 309. [2] In Massachusetts, Rhode Island, Vermont, and Maryland, by Statute, the executor of an executor is not of course the executor of the first testator. But administration de bonis non is granted at the discretion of the judge of probate. 69 OF THE PROBATE UNDEU [bOOK 1. Wlierc the will respects lands merely, the spiritual court ought not to grant probate ; and if there be a suit to compel [70] it, a prohibition will lie (^). But when the will is of a mixed nature, that is, relates both to real and personal property, the probate of it shall be entire in the spiritual court. Q'") [3] A will may be proved with a reservation as to a particular legacy. And in such case, if there be a decree against such legacy as a forgery or interpolation in the ecclesiastical court, the will shall be engrossed without it, and so annexed to the probate Q"). The will of a party who has been long absent from this coun- try may be proved, if he be generally understood to be dead, and the executor will take upon himself to swear that he be- lieves him to be so (y). If the executor named in the will be unknown or concealed, administration may, after due process, be granted till he appear and claim the probate (j-). [71] If the will be lost, two witnesses, superior to all excep- tion, who read the will, prove its existence after the testator's death, remember its contents, and depose to its tenor, are suffi- cient to establish it (^). (V) 4 Burn. Eccl. L. 195. Netter v. ■ (") 4 Burn. Eccl. L. 209. Plume r. Brett, Cro. Car. 396. Habergham in Beale. 1 P. Wms. 388. Vincent, 2 Ves. jun. 230. (y) Off. Ex. Suppl. 63. Swinb. Part 6. (w) Netter v. Brett, Cro. Car. 396. 11 s. 13. Vin. Abr.sr. 60. 117. Partridge's Case, (') 4 Burn. Eccl. L. 202. Roll. Abr. 2 Salk. 552. 3 Salk. 22. 907. and vid. infr. (») 4 Burn. Eccl. L. 209. [3] Wills, whether relating to real or personal estate, may be proved before the officer of probate, in every state. And in New York, any person interested in lands may at his expense cause the same to be proved in the Court of Common Pleas of the county in which the real estate lies ; and if the estate lies in several counties, then to be proved in the Supreme Court. The certificate of the Register, that a will of land had been duly proven and approved before him, and a copy thereof annexed, is prima facie evidence of such will, though a copy of the probate is not set out. Logan v. fFalts, 5 Serg' & II. 212. CHAP. II.] SPECIAL CIRCUMSTANCES." 71 So, where the testator had delivered his will to A to keep for him, and four years afterwards died, when the will was found gnawn to pieces by rats, and in part illegible, on proof of the substance of the will by the joining of the pieces, and the memory of witnesses, the probate was granted ('•). A will is to he construed by the coiurt without regard to the instructions given for preparing it (<=). [4] (*>) OfF. Ex. Suppl. 215. 7. Bac. Abr. ('^) Murray v. Jones, 2 Ves. and Bea. 320. in note. Wilmot v. Talbot, 3 Har. 318. & M'Hen. 2. [4] The following rules of construction have been laid down by the Courts. The intention of the testator shall govern in the construction of a will, in all cases except where the law overrules the intention ; and this is reducible to four instances : 1. Where the devise would make a perpetuity ; 2. Where it would put the freehold in abeyance ; 3. Where chattels are limited as inherit- ances ; and 4. Where a fee is limited on a fee. Ruston v. Rnston, 2 Dall. 244. 2 Yeates,60. Findlay v. Riddle, 3 Binn. 149. Less. ofLynn&al. v.Daines, 1 Yeates, 518. Holmes v. William, 1 Root. R. 332. But the intention of the testator must be collected from the will itself. Mann v. Mann, 14 Johns. Rep. 1. And parol testimony is inadmissible to explain, vary, or enlarge the words of the will, unless in case of a latent ambiguity, or to rebut a resulting trust. Ibid. Every sentence and word in a will must be considered, in forming a judicial opinion upon it. Turbett v. Turbett, 3 Yeates, 187. The word estate in a will carries every thing, unless restrained by particular expressions. Ibid. So also the vfovd property. Pearson v.IIo-well, 17 Johns. R. 281. The word issne is either a word of purchase or limitation, as will best effectuate the testator's intention. So hmrs, and heirs of the body, have likewise been restrained as words of purchase. Findlay v. Riddle, 3 Binn. 160. Parol evidence is not admissible to increase or abridge the effect of words used in a written will. Torbert & al. v. Tviining, 1 Yeates, 432. A will cannot be good and approved in part. Starr v. Starr, 2 Root. R. 303. An alteration, whether material or immaterial, made in a will by any person claiming under it, renders it void; but whether a material alteration by a stran- ger has that effect, Qjiiere. Malin v. Malin, 16 Johns. Rep. 293. The testator having drawn his pen through certain words in the draft of his will, and the writer of the draft having inserted therein, in the presence of the testator, and with his assent, certain other words (mere expletives) which were erased by him after the testator's death, these erasures and interlineations were held not to vitiate the instrument. Cogbill v. Cogbill, 2 Hen. 8c Mun. 467, But the probate is conclusive as to personal estate only, while the letters testamentary remain unrevoked; as to realty, it is only prima facie evidence Coates V. Hughes, 3 Binn. 498. Vangordon v. Vangordon, cited 3 Binn. 506, 71 OF CAVEATS, REVOCATION OY [bOOK I. If the testator resided in Scotland, and left effects there and in England, the will is pro^ ed in the first instance in the court of great sessions in Scotland, and a copy duly authenticated being transmitted hither, it is proved in the prerogative court, and deposited as if it wei-e an original will. So in such case, if the testator resided in Ireland, the will is j)roved in tl»c spiritual court of that country ; or if in the East or West Indies, in the probate court there, and a copy trans- mitted, proved, and deposited in the same manner. Where the testator was resident in England, not merely as a visitor, and has left property in the plantations, the judge of [72] probate in the plantations is bound by a grant of probate by the prerogative court here, and ought to make a similar grant to such grantee (*•). If a will be made in a foreign country, disposing of goods in England, it must be proved here (•"). But if the effects were all abroad, and the will be proved according to the custom of the country where the testator died, it is sufficient. And the executor may plead such matter to a bill filed against him by the administrator, for an account of the deceased's personal estate (f). If a will be in a foreign language, the probate is granted of a translation of the same by a notary -public. Sect. IX. Of caveats f revocation of probates , and appeals. When the will is opposed, it is the practice to enter a caveat in the spiritual court to prevent the probate. And it is said that, by the rules of that court, the caveat shall stand in force for three months, and that, while it is pending, probate cannot [73] be granted J but whether the law recognises a caveat and allows it so to operate, or whether it does not regard it as a (. c. 1. But it is not matter of right, which the subject may demand ex dehito justitiai, but merely a matter of favour, which is never granted but under special cir- cumstances (°). Before revocation of a probate, the court will not grant a )iew one (i?). ,") Com. Dig. Prerogative. (p) 4 Burn. Eccl. L. 193. Rains v. (") Off. Ex. Suppl. 127. 129. 3 Bl, Com. Comm. of Dioc. of Canterb. 7 Mod. 64—67. 146. (o) 3 Bl. Com. 6r. Matthews v. War- ner. 4 Ves. jun. 205. CHAP. II.] EFFECT OF A PROBATE. 75 Where probate granted by the special court is affirmed on an appeal to the arches or delegates, the usage is to send the cause back. But when the first sentence is reversed, tlie court below shall be ousted of its jurisdiction, and the court which reverses it shall grant probate de novo (''). [2] Sect. X. The effect of a iwobate. — Loss of the same. — What is evidence of probate. — Effect of its revocation. The probate tluis passed, although it does not confer, yet authenticates the right of the executor, for courts of law or equity take no judicial notice of any executor until he has proved the will. But it shall have relation to the time of the testator's death (>). [1] (<)) 11 Vin. Abr. 76. Com. Dig. Admon. 1 P. Wms. 767. Hudson v. Hudson. B.2. 2 Roll. Abr. 233. 1 Atk. 461. Ca.inCh. 2 pi. 56. Smith (') 11 Vin.Abr.205. OfF.Ex.49. Hen- v. Milles. 1 T. Rep. 480. Rex v. Ne- slor's case. 9 Co. 38. Comber's case. therseal. 4 T. Rep. 260. [2] An appeal lies from the judge of probate to the Supreme Court, in all cases, in the states of Massachusetts, Rhode Island, Connecticut, New Hamp- shire, and Vermont, if made within sixty days after the decree or order: from tlie surrogates to the judge of the Court of Probates, in New York, if entered within fifteen days next after sentence given or decree made. In Pennsylvania, an appeal lies from the Register to tlie Register's Court, composed of tlie Register and two or more judges of the Common Pleas, if made witliin two years, with the usual reservation to persons within age, non compos, &.C ; and from the Register's Court, an appeal lies to the Supreme Court, if made within one year. In Virginia and Kentuckj-, the appeal is from the Probate Court to the Court of Chancery : in Georgia, from the Court of Ordinary to the Superior Court. In Indiana, an appeal lies from the decision of the Clerk to the judges of the Circuit Court. [1] The appointment of an executor, and his acceptance of the office, consti- tute a complete legal owner of the personal estate of the deceased ; and a tem- porary administration cannot be granted by the ordinary (except by some spe- M 76 EFFECT OF A PROBATE. []bOOK I. [76] If the will be proved in common form, it may at any time within thirty years be disputed ; if in the more formal mode, and all persons interested are made parties to the suit, and there be no proceedings within the time limited for appeals, it is liable to no future controversy (»). So long as the probate remains unrevoked, the seal of the ordinary cannot be contradicted, for the temporal court cannot pass a judgment respecting a will in opposition to that of the ecclesiastical court (t) ; and therefore if a probate under seal be shown, evidence will not be admitted that the will was forged, or that the execution of it was procured by fraud, or that the testator was noii compos mentis, or that another person was executor ; for these are points which are exclusively of spiritual cognizance ; but it may be shown that the seal was forged, or that there were bona notahilia, for such evidence is no contradic- tion to the seal, but admits, and avoids it ("). [2] Such then being the nature of a probate, inasmuch as it is a judicial act of the court having competent authority ; and is conclusive till it be repealed, and a court of common law cannot admit evidence to impeach it ; it was determined in a recent case, in opposition to some old decisions (^), that 'payment of [77] money to an executor who had obtained probate of a forged will, was a discharge to the debtor of the intestate, although (s) 4 Burn. Eccl. L. 207. Godolph. 62. (") Marriott t;. Marriott, Stra.671,672. (0 House V. Lord Petre, 1 Salk. 311. 4 Burn. Eccl. L. 196. Griffiths V. Hamilton, 12 Ves. jun. (") 1 Roll. Abr. 919. anon. Com. Rep. See also 1 P. Wms. 388. 548. in note. 152. Vid. 11 Vin. Abr. 89. cial statute) unless the executor is under an actual or legal disability to per- form the functions of his office. Griffith v. Frazer, 8 Cranch, 9. 21. The appointment of an executor vests the whole personal estate in the person so appointed, who holds as trustee for the purposes of the will, but has the legal title in all the chattels of the testator ; and for the purposes of adminis- tration, he is as much the legal proprietor of them as was the testator himself whilst alive. Ibid. But until probate and letters testamentary granted, the executor cannot ob- tain judgment, because it cannot appear that he is executor. Ibid. [2] See nole [1] page 50. CHAP. II.] EFFECT OF A PROBATE. 77 the probate were afterwards revoked and administration grant- ed to the next of kin (*^). And on the same principle it is holden, that pending a suit in tJie spiritual court respecting the validity of a will, an indict- ment for forging it ought not to be tried ; and it is tlie practice to postpone the trial till that court has given sentence (^). But a payment of money under probate of a supposed will of a living person would be void, because in such case the eccle- siastical court has no jurisdiction : and the probate can have no effect. The power of the ordinary extends only to the prov- ing of wills of persons deceased (r). Where the probate is lost, the spiritual court never grants a second, but merely an exemplification of the probate from its own records, and such exemplification is evidence of the will having been proved {^). The copy of the probate of a will of a personal property [78] is evidence, inasmuch as the probate is an original taken by authority, and of a public nature ('i). The register's book, or, as it is sometimes styled, the ledger- book, in the spiritual court, is evidence that there was such will, in case of its being lost C^). A copy of the ledger-book seems also to be sufficient proof for the same purpose ; since such book is a roll of the court, and therefore a copy of it is not a copy of a copy, as hath been erroneously supposed (<=). If issue be taken on a probate of a will, it shall be tried by a jury {^). The probate, or, as it is sometimes called, the letters testa- mentary, may be revoked either on a suit by citation, or on appeal to reverse a sentence by which they are granted ; and, (w) Allen V. Dundas, 3 Term Rep. 125. Raytn. 154. Law of Ni. Pri. 245, 246, (") 3 Bac. Abr. 34. Rex v. Vincent, 1 4 Burn. Eccl. L. 219. Stra.481. Rex r. Rhodes, 2 Stra.703. C') 4 Burn. Eccl. L. 218. St. Legar (y) Allen v. Dundas, 3 Term Rep. 130. v. Adams, Ld. Raym. 731. (^) Shepherd v. Shorthose, Stra. 412. (') L. of Ni. Pri. 246. 4 Burn. Eccl. L. 219. ( Off. Ex. Suppl. 9. Case of Abbot (') 3 Balk. 154. Hoe v. Nathorpe, Ld. of Strata, 9 Co. Rep. 31. 78 EIFECT or A PROBATE. [bOOK I. in case of revocation, all the intermediate acts of the executors shall be void. [3] But where a widow possessed herself of the personal estate as executrix under a revoked will, and paid debts and legacies [79] without notice of the revocation, she was allowed those payments in equity ; but leases which she had granted were ordered to be set aside {"). Where B, a married woman, who was the sole executrix of her late husband A, made a will merely executing a power (") 3 Bac. Abr. 50. 1 Chan. Ca. 126. [3] Letters testamentary, when once granted, are not revocable by the ordi- nary. He cannot annul them, nor transfer the legal interest of the executor to any other person. The cases in which administration has been granted not- withstanding the existence of a will, are cases in which it is not apparent that there is any person possessing a right in the chattels of the testator, or in cases in which that person is legally disqualified from acting. Thus, where adminis- tration is granted pending a dispute respecting a will, it is not certain that there is an executor, or that there is a will. So if administration be granted during the minority of an executor, it is because the executor is legally dis- qualified from acting, and indeed has not taken and could not take upon himself the trust. So in the case of an absent executor, who has not yet made probate of the will, and qualified. He having as yet no evidence that he is executor, nor yet being able to act as one, and having it in his power to renounce the office ; the ordinary is not yet deprived of tliat power which he possesses, to appoint a person to represent a dead man who lias no representative. Though the ordinary may liave jurisdiction to grant administration in cases where the executor has not qualified, and his act though erroneous may be valid till repealed, yet in cases where there is a qualified executor, the ordinary can have no jurisdiction, and his act in itself is an absolute' nullity. Griffith v. Fra- zer, 8 Cranch, 9. 21. There is no distinction in this respect between the grant of an absolute, and temporary administration. Such grant is absolutely void, for want of jurisdiction. And this defect of jurisdiction renders such adminis- tration a nullity, wlicre it is collaterally and incidentally brought in question before the Court. Ibid. In Virginia, the validity of the probate maybe contested by bill in Chancery, within seven years, by any person who had not appeared and contested it before the ordinary. And though he had appeared and contested the probate, he may file a bill on the ground of fraud unknown to him at the time of the pro- bate. Ford V. Gardner, 1 Hen. & Mun. liep. 73. And though a probate may have been admitted to record in a district Court, a county Court in Chancery may try its validity. CHAP. II.] EFFECT OF A PROBATE. 79 given to her by a marriage settlement, but appointed C execu- trix generalhj, and the ecclesiastical court granted probate of her will in the general form ; it was held, that the general pro- bate of the will of B transmitted to C the representation of A without an administration de honis iion(J). (0 BaiT V. Carter, 2 Cox's Rep, 429. C 80 j [80] CHAP. III. OF THE APPOINTMENT OF ADMINISTRATORS. Sect. I. OJ general adminislrations, — origin thereof, — who entitled, — Of consanguinity. In case a party makes no testamentary disposition of his personal property, ^le is said to die intestate («) ; the conse- quences of wliich are now to be considered. In ancient times the king was, on such event, entitled to take possession, by his officers, of the effects, as the parens 'patriae, and general trustee of the kingdom, in order that they might be applied in the burial of the deceased, in the payment of his debts, and in a provision for his wife and children ; or if none, then for his next of kin Q"). This prerogative was most pro- bably exercised in the county court; it was also delegated as a franchise to many lords of manors and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors in- their own courts baron and [81] other courts, or, as we liave seen (*=), to grant probate of their wills, in case they have made any disposition (''). This power was afterwards vested by the crown in the pre- lates, who, on a notion of their superior sanctity, were, by the superstition of the times, conceived capable of disposing of the property most for the benefit of the deceased's soul («). The effects were therefore committed to the ordinary, and he might seize and keep them without wasting, and after the partes ratio- fiabiles, or two thirds belonging to the wife and children were de- ducted (f), might give, alien, or sell the remainder at his pleasure, (») 2 Bl. Com. 494. (0 Perkins, sect. 486. Plowd. 277. 9 (^) 2 Bl. Com. 494. 9 Co. 38 b. Co. 38 b. (0 Vid. supr. 50. (f) 2 Bl. Com. 491. 495. 516. 2 Inst. (•>) 2 Bl. Com. 494. 9 Co. 37 b. CHAP. III.] OF GRANTING ADMINISTRATION. 81 and dispose of the money in pious uses. If he did otherwise, he violated the trust reposed in him as the king's almoner within his diocese (?). The jurisdiction of proving wills of course fell into the same channel, since it was thought reason- ahle that they should he proved to tlie satisfaction of liim whose right of distribution tliey effectually superseded (•>). ' But his conduct did not justify the presumption which had been thus formed in his favour. The trust so confided to him, he did not very faithfully execute (•). He converted to his own use, under the name of church and poor, the whole of such re- {82] sidue, without even paying the deceased's debts. To re- dress such palpable injustice, the statute of Westminster 2. or the 13 E.l. c. 19. was passed ; by which it is enacted, that the ordinary is bound to pay the debts of the intestate, so far as his goods will extend, in the same manner as executors are bound, in case the deceased has left a will; an use, as Mr. Justice Blackstone styles it, more truly pious than any requiem, or mass for his soul Q^), Although the ordinary were now become liable to the intes- tate's creditors, yet the residue, after payment of debts, conti- nued in his hands, to be applied to whatever purposes his con- science might approve. But as he was not sufficiently scrupu- lous to prevent the perpetual misapplication of the fund, the legislature again interposed, in order to divest him and his de- pendents of the administration. The stat. 31 E. 3. c. 11. there- fore provides, that in case of intestacy, the ordinary shall de- pute the nearest and most lawful friends of the deceased to administer his goods, and they are thereby put on the same footing in regard to suits, and to accounting, as executors ap- pointed by will (1). Such is the origin of administrators. They are the ofllicers of the ordinary, appointed by him in pursuance of the statute, which selects the next and most lawful friends of the intestate. [83] But the stat. 21 H. 8. c. 5. allows the ecclesiastical judge a little more latitude, and empowers him to grant administra- tion either to the widow or next of kin, or to both of them, at (g) Plowd. 277. (k) Ibid. 495. (h) 2 Bl. Com. 494. (') 2 Bl. Com. 495, 496. 3 Bac. Abr. 54. (0 Ibid. 491. 495. Raym. 498. 83 OF GRANTING ADMINISTRATION. [bOOK I. his own discretion ; and where two or more persons are in the same degree of kindred, in case tliey apply, gives him his elec- tion to accept whichever he pleases. Letters of administration, then, must be granted by the ordi- nary to such persons, as the statutes 31 E. 3. & 21 //. 8. point out("»), that is, according to the former statute, to tiie next and most lawful friends of the intestate ; according to the latter, to the widow, and next of kin, or both, or eitlier of them. What parties fall within the first description, it was the pro- vince of the courts of common law to determine ("). and they have interpreted such friends to mean in tiie first place the hus- band, if lie were not entitled at common law, and secondly, the next of blood, under no legal disabilities ("). First, the ordinary is bound to grant administration of the effects of tiie wife to the husband (p). Various opinions have indeed been held with regard to the husband's title to administer. Some have maintained that he [84] has no such exclusive right, eirhei- at common law, or by virtue of the statutes ; but that the ordinary may refuse the administration to him, and may, elect to grant it to the next of kin of the wife ('i). By othei*s, it has been asserted, that he is entitled under the equity of the stat. of the 21 H. 8. whereby tlie ordinary is directed to grant administration of the Inis- band's effects to the wife, or next of kin, or to either ('). By a third class, it has been insisted, that although the husband have not been expressly named in the stat. 31 E, 3. nor does he answer the description of next of kin to the wife, yet he is included under the denomination of the next and most lawful friend of the intestate ; and that thus he supports his claim, not on the common law, nor, as described eo nomine^ by the statute, but as comprehended within its general provision ('). By a fourth, it is alleged, and the doctrine is recognised, in a recent ('") 2 Bl. Com. 504. • (') 11 Yin. Abr. 84. in nole. (") 3 Bac. Abr. 54. 11 Vin. Abr. 93. ' (s) Fawtry v. Fawtry. 1 Salk. 36. 11 Thomas v. Butler, 1 Ventr. 218. yin. Abr. 73. 84. in iiote. 116. Black- (°) 2 Bl. Com. 496. 9 Co. 39 b. borough v. Davis. 1 P. Wms. 44. 4 (P) 11 Vin. Abr. 86. Blackborough x-. Burn. Eccl. L. 235. Vid. Fettiplace v. Davis, 1 P. Wms. 44. Gorges. 1 Ves. jun. 49. (s) Johns V. Rowe. Cro. Car. 106. CHAP. III.] OF GRANTING ADMINISTRATION. 84 case, by Lord Loughborough, C. ('), that he is entitled at com- mon I'AW, jure maritU and that his right is not derived from any of the statutes, but, on the contrary, is supposed by them, and exists independently of them all. However, to speculate on these points is useless to the present purpose, since the husband's right [85] to administer, on whatever fbundation, is now beyond all question established. The stat. 29 Car. 2. c. 3. contains a clause, that the statute of distributions, the 22 & 23 Car. 2. c. 10. hereafter to be dis- cussed, shall not prejudice such title of tlie husband, under an apprehension that it might be considered to be thereby affevted. And though a marriage was voidable as being witiiin the pro- hibited degrees, but not declared void in the lifetime of the par- ties, tjje marriage is valid for all civil purposes, and the hus- band is entitled as a civil right to administration of her ef- fects {^). Such is the general right of the husband to the administration of the wife's effects ; but this right may, in certain cases, be controlled or varied ("). If the husband part with all his inter- est in diis wife's fortune, he shall not be entitled to the admi- nistration ; as, where a wife had a power to make a will, and dispose of her whole estate, and though, strictly speaking, she made no will, but rather an appointment capable of operating only in equity, the court held that it was for the spiritual juris- diction to determine to whom to grant administration, and re- fused to interpose in favour of the husband (^^). So where a feme covert, by virtue of her power to dispose of her estate, devised a term for years to J. S. administration was granted to the devisee (^). [86] On the other liand, where the return to a mandamus to grant administration to a husband stated that, by articles before marriage, it was agreed that the wife should have power to 0) WaU^'.Watt. 3Ves.jun.246,247. («) 4 Burn. Eccl. L. 232. Rex r. Vid. also Com. Dig. Admon. B. 6. 282. Betteswortb. Stra. 1111. 2 Bl. Com. 515. 4 Co. 51 b. Roll. Abr, ^^^ j j y^^ ^^^. gy Marshall v. Frank, 910. 4 Burn. Eccl. L. 264. p^^.^, f^^^^^ 480, Gilb. Eq. Rep. 143. (") Elliott V. Gurr. 2 Phill. Rep. 16. g_ g (») 3 Bac Abr. 55. in note. Com. Dig'. Admon. B. 6. vid infr. N 86 OF GRANTING ADMINISTRATION. [bOOK I. make a will, and dispose of a leasehold estate, and pursuant to this power she had made a will, and appointed her mother exe- cutrix, who had duly proved the same, it was objected that she might have things in action not covered by the deed, and that the husband was at all events entitled to an administration in respect to them, though equity would control it in respect to the lease ; the court allowed the objection, and granted a pe- remptory rAundamus (y). In case of a limited probate, granted to the executor of a married woman as above mentioned (^), the husband is entitled to administration of the other part of her property, which is called an administration cctterornm. Secondlv, the ordinary is to grant administration of the effects of the husband to the widow or next of kin ; but he may grant it to eitlicr, or both, at his discretion (='). If the widow re- nounce administration, it shall be granted to the children or other next of kin of the intestate, in preference to creditors. [1] (y) 4 Burn. Eccl. L. 232. Rex v. Bet- (^) Vid. 11 Vin. Abr. 92. Anon. Stra. tcsworth. S*rfi. 891. 552. 4 Mass. Hep. 348.' 2 Cairn" i: (=!) Vid. supr. 68. Cases, 143. [1] The law in the several states is as favourable to the husband and wife, in their rights lo administration, as that laid down in the text. In some of the states, it is different, and more favourable to their interests respectively. In Vir- ginia, the wife has the prior right of administration to her deceased husband. In Maryland, the husband is not required to take out letters of administration to his intestate wife ; but all her choses in actio7i devolve on him, as if he had taken out such letters. But choses in action, not reduced by him into possession during his life, devolve to her representative, and administration will be grant-. ed accordingly. In Georgia, the real and personal estate of the wife becomes alike the absolute property of the husband upon the marriage : and the wife becomes entitled to a child's share if there be children, or her dower at com- mon law, and a child's part of the personal estate, at her election. If there be no children, she takes one-half of the real and personal estate absolutely. Upon the death of the husband who survived his wife, and administered upon her estate, his executor (or it seems his administrator) is entitled to be adminis- trator de bonis nan of the wife, in preference to her next of kin. Hendrin v. Col- gin, 4 Mun. Rep. 231. It seems, too, that his executor is entitled in preference to his residuary legatee. Ibid, In Maryland, letters of administration have been granted to natural children (being residuary legatees) in preference to the widow. Govan v. Govane, 1 Har. & M'Hen. 346. CHAP. III.] OF GRANTING ADMINISTRATION. 87 [87] The ordinary may grant administration quoad part to the wile, and as to the other part, to the next of i^in ; ffir in such case there can he no ground to complain, as the ordinary is not hound to grant it exclusively to either C'). But the ad- ministration is so much a claim of right, that a mandamus will be issued by the court of K. B. in favour of the party entitled to enforce it (<=). It now becomes necessary to inquire who are such next of kin as shall be thus entitled. Consanguinity or kindred is defined to be vinculum perso- narum ah eodem stipite dcscendentium, the connexion or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal or collateral ("'). Lineal consanguinity is that which subsists between persons of w^hom one is descended in a direct line tVom the other, as be- tween J. S. the propositus in the table of cnnsanguinity, and his father, grandfather, great-grandfather, and so upwards in The ascending line; or between J. S. and his son, grandson, and great-grandson, and so downwards in the direct descending line. Every generation in this lineal direct consaviguinity constitutes a different degree, reckoning either upwards or downwards. The father of J. S. is related to him in the first degree, and so likewise is his son ; his grandsire and grandson in the second ; [88] his great grandsire and great graiidson in the thii-d. This is the only natural way of reckoning the dcgi-ees in the direct line, and therefore universally obtains as well in the civil and canon as in the common law. Thus this lineal consanguinity falls strictly within the defi- nition of vinculum personarum ah eodem stipite descendentiumf (b) 11 Yin. Abr. 71. 3 Bac. Abr. 55. (0 Rex v. Inhabitants of Horsley. 8 Com. Dig. Admon. B. 6. Fawtry v. East. 408. Fawtry. 1 Salk. 36. Vid. infr. ('') 2 Bl. Com. 202. In Connecticut, it is decided that administration is to be granted to the daughter, in preference to the son of the eldest son of the intestate. Lee 6f Wife V. Sedffivick, 1 Root's Rep. 52. The person entitled to distribution is entitled to administration also. Ciitchiii T. Wilkinson, 1 Call. Rep. 1. 88 OF GRANTING ADMINISTRATION. [bOOK I. since lineal relations are such as descend one from the other, and botli of course from the same common ancestor (e). Collateral kindred answers to the same description ; colla- teral relations agreeing with the lineal in this, that they de- scend from the same stock or ancestor, hut differing in this, that they do not descend the one from the other. CoUatei-al kinsmen are, then, such as lineally spring from one and the same ancestor, who is tlic stirps or root, stipes or common stock, from which these relations are branched out. As if J. S. have two sons who have each issue ; both of these issues are lineally descended from J. S. as their common ances- tor, and they are collateral kinsmen to each other, because they are all descended from one common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos. [89] Thus the very being of collateral consanguinity consists in this descent from one and the same common ancestor. A, and his brother are related, because both are derived from one father. A, and his first cousin are related, because both are descended from the same grandfather ; and his second cousin's claim to consanguinity is this, that they are both derived from one and the same great-grandfather. In short, as many an- cestors as a man has, so many common stocks he has, from w hich collateral kinsmen are derived. And as from one couple of ancestors the whole race of mankind is descended, it neces- sarily follows that all men are in some degree related to each other C). The mode of calculating the degrees in the collateral line is not that of the canonists adopted by the common law in the descent of real estates, hut conforms to that of the civilians, and is as follows ; to count upwards from either of the parties related to the common stock, and then downwards again to the other, reckoning a degree for each person, both ascending and descending (s) ; or, in other words, to take the sum of the de- grees in both lines to the common ancestor ('^). (0 Ibid. 203, 204. (s) Ibid. 2G7 504. Mentney v. Petty. CO 2 Bl. Com. 204, 205. 504: P^e. in Ch. 593. ('') Ibid. 12th edit. note. (4). CHAP. III.] OF GRANTING ADMINISTRATION. 89 Thus, for example, the propositus and his cousin-german are related in the fourth degree. We ascend first to the father (•), [90] which is one degree, and from him to the common ances- tor, the grandfather, which is the second degree ; from the grandfather we descend to the uncle, whidi is the third degree ; and from the uncle to the cousin-german, which is the fourth degree. So, in reckoning to the son of the nephew, or the hro- ther's grandson, we ascend to the father, which is one degree ; from the father we descend to the brother, which is the second degree ; from the brother to the nephew, which is the third de- gree ; and from the nephew to the son of the nephew, which is the fourth degree (''). Of the kindred, those, we must recollect, are to be preferred, who are the nearest in degree to the intestate ; but from among persons of equal degree, in case they apply, the ordinary has the power of making his election (•). The court never forces a joint administration; and where the option was between two persons in equal degree of relation- ship, one of whom had been twice a bankrupt, the court reject- ed the claim of the latter, and condemned him in costs (m). But if there be no material objection on one hand, or reasons of preference on the other, the court, in its discretion, puts the administration into the hands of the person with whom the ma- jority of interests are desirous of entrusting the estate ("). Of the next of kin, then, first the children, and, on failure of them, the father of the deceased, or if he be dead, the mother is entitled to administration ; the parents indeed, as well as the children, are of the first degree, but the children are allowed the preference (») ; then follow brothel's (p), but primogeniture [91] gives no right to a preference (i) j then grand-fathers (''), (') See the table of consanguinity an- (") Budd v. Silver, 2 Phill. Rep. 115. nexed, in which the degrees of colla- (o) n yin. Abp. 91, 92. 2 Bl. Com. 504. teral consanguinity are computed as .p. jj y.^ ^^j, g^ flir SiS tlic sixlli. /ixjT. i? 1 T Off m 1 TA (q) Warwick ti-Greville, 1 Phill. Rep. (k) 4 Burn. Eccl.L. 355. Black. Desc. *• ^ ' f 123. 41, 42. (1) 11 Vin. Abr. 114, 115. Com. Dig. C) ^ Vin. Abr. 93. and in note Lord Admon. B. 6. Raym. 684. Com, Dig. Admon. B. 6. (») Bell V. Timiawood, 2 Phill. Rep. Blackborough v. Davis, 1 Salk. 38. 22. IV. Great Grand- father's Father. II. Grand- father. I. Father. THE PROPOSI- TUS. I. Son. IV. Great Uncle. ^. III. Uncle. V. Great Uncle's Son. a; II. Brother. IV. Cousin German. r\. VI. Second Cousin. ■^. A. III. Nephew. V. Son of the Cousin German. IV. Son of the Nephew or Brother's Grandson. CHAP. III.] OF GRANTmC ADMINISTRATION. 91 and although they are both of the second degree, yet the former are first entitled ; next in order are uncles or nephews (*), and lastly cousins, and the females of each class respectively (»). Relations by the father's side and the mother's, in equal degree of kindred, are equally entitled ; for in this respect dignity of blood gives no preference («). So the half blood is admitted to the administration as well as the whole {"), for they are the kindred of the iritestate, and excluded from inheritances of land only on feudal reasons (^) ; tlierefore the biother of the half blood shall exclude the uncle of the whole blood (^) ; and the ordinary may grant administration to the sister of the half, or the bro- ther of the whole blood, at his discretion (>). [2] If a feme eovert be entitled, she cannot administer unless with the husband's permission (^), inasmuch as he is required to enter into the administration bond, which she is incapable of doing. But if it can be shown by affidavit that the husband is abroad, or otherwise incompetent, a stranger may join in such security in his stead. In either case, the administration [92] is committed to her alone, and not to her jointly with her husband (•'') ; otherwise, if he should survive her, he would be administrator, contrary to the meaning of the act(^). [3] («) 2 Bl.Com. 505. Stanley tj. Stanley, (w) 2 Bl. Com. 505. 1 Atk. 455. (X) 11 vin. Abr. 85. C) 2 Bl.Com. 505. (y) 2 Bl. Com. 505. (") Blackborough v. Davis, 1 P. Wms. 53 (^) Thrustout t;. Coppin, Bl. Rep. 801. C) 11 Vin. Abr. 91. Smith v. Tracey, (^) H Vin. Abr. 85. 4 Burn Eccl. L. 1 Ventr. 323. 424. Earl of Winchelsea 241. Com. Dig. Admon. D. Sty. 75. V. Norcliffe, 1 Vern. 437. C") 3 Salk. 21. [2] In Georgia, "the next of kin shall be investigated by the following rules of consanguinity : that is to say, children shall be nearest ; parents, brothers, and sisters, shall be equal in respect to distribution, and cousins shall be ne.xt to them." And so with regard to the right to have administration. [5] In New Hampshire, if an executrix or an administratrix marry, her hus- band is not entitled to the trust, but her power is extinguished; and the judge of probate may grant administration, if circumstances require it, to the hus- band, or to such person as would be entitled in case of her death. 92 OP GRANTING ADMINISTRATION. [uOOlt I. If it were committed to them jointly during coverture only, it miglit perhaps be good, because, if committed to the wife alone, the husband for such period may act in the administra- tion with or without her assent ; and therefore the effect of the grant seems in cither case the same (*=). If the wife be the only next of kin, and a minor, she may elect her husband her guardian, to take the administration for her use and benefit during her minority ; but the grant ceases on her coming of age, when a new administration may be com- mitted to her. The Stat. 21 if. 8. has also expressly provided for another case than that of actual intestacy ; namely, where the deceased has made a will, and appointed an executor, and such executor refuses to take out probate (•>), in such an event the ordinary must grant administi'ation cum tesiamento annexo, with the will annexed, and the duty of such grantee differs but little from [93] that of an executor (<^). He is equally bound to act accord- ing to the tenor of tlie will. So, if one of two executors prove the will and die, and then the other refuse, such administration shall be granted (f). The ordinary cannot grant administration with the will an- nexed in which an executor is named, until he has cither for- mally renounced his right to the probate, or neglected to appear on being duly cited to accept or refuse the same. So if several executors be named in the will, they must all refuse, or fail to appear on citation previous to the grant. After such adminis- tration the executor cannot retract his refusal during the life- time of the administrator, but he may do so after the grant has ceased by the administrator's death (®). A party, although otherwise entitled, may be incapable of the office of administrator on account of some disqualification in point of law. The incapacities of an administrator are not confined to such as have been enumerated in respect of execu- {') 11 Vin. Abr. 85. 4 Burn. Eccl. L. " (') 2 Bl.Com. 504. 4 Mass. Rep. 634i. 241. Com. Dig. Admon. D. Wankford 3 Munf. Rep. 288. V. Wankford, 1 Salk. 305. Vid. Thrust- ^^^ ^.^ ^^^^ g^ out V. Coppin, Bl. Rep. 801. {^) 4 Burn. Eccl. L, 228. 11 Vin. Abr. C) Vid. supr. 45- 78. 2 Inst. 397. CHAP. III.] OF GRANTING ADMINISTRATION. 93 tors, but comprise attainder of treason, or felony, outlawry, imprisonment, absence beyond sea, banki-nptcy (f), and, in short, [94] almost every species of legal disability ; for, by the express requisition of the statute, tJie ordinary is bound to grant admi- nistiation to the next and most lawful friends of the intestate (&). But coverture is no incapacity, nor is alienage, if qualified, as in the case of executors (''). Even an alien of tlie half blood may he appointed an administrator ('). [4] (0 Co. 39 b. Com. Dig. Adnion. B. 6. C') Com. Dig. Admon. B. 6. Caroon's 4 Burn. Eccl. L. 233. 3 Bac. Abr. 56. C:ise. Cro. Car. 9. Anon. 1 Browal. 31. i» note. (i) 11 vin. \br. 94. Crooke v. Watt, (s) Com. Dig. Admon. B. 6. Fawtryr;. g Vern. 126. Fawtry. 1 Salk. 36. [4] In Maryland, alienage incapacitates. Tbi.s state has designated the persons to whom administration shall be granted, with much certainty, and it is presumed with happy effect. Administration is to be granted, at the discretion of the ordinary, to the widow or one of the children; if rhere are no children, the widow shall be preferred: if there be no widow nor children, the grandchildren shall be preferred ; if no grandchild, ihe father; if no father, the brothers and sisters, and next to them the mother shall be preferred ; after her, the next of kin. Males shall be preferred to females of equal degree, and relations of the whole to those of the half blood ; but rela- tions of the half blood shall be preferred to those of the whole blood m a re- moter degree. Relations descending shall be preferred to relations ascending in the collateral line. None shall be preferred in the ascending line beyond the father and the mother, or in the descending line below a grandchild. A feme sole shall be preferred to a married woman in equal degree. Where a female is entitled, administration maybe granted to her and her husband, pro- vided he be capable. Relations on the side of the fatlier shall be preferred to those on the side of the mother, of equal degree. If there be no relations, administration sliall be granted to the largest creditor applying for the same. In default of these, administration may be granted at the discretion of the Court. 94 ADMINISTRATIONS TO PROBATES. [bOOK I. Sect. II. Of the analogtj of administrations to prohates. What has been stated respecting the different jurisdictions relative to probates, of issuing a commission or requisition in case the party be in an ill state of health, or reside at a distance -, of bona notabilia ; of the ecclesiastical privilege of granting pro- bate being personal, and not local (^) ; of its devolving on the archbishop where the party deceased was a bishop, and on the dean and chapter in case of the death or suspension of the me- tropolitan or ordinary ; of his being compelled by mandamus [95] to grant probate, unless he return a lis pendens {^) ; of ca- veats and appeals; of the power of the court of appeal to grant probate where the sentence is reversed («) ; of probates being of unquestionable validity in courts of common law() Toiirton v. Flower. 3 P. Wms. 569. C") 4 Burn Eccl. L. 230. Com. Dig. (e) 4 Burn. Eccl L. 248 Peaulie's Admon. B. 7- 11 Vin. Abr. 74. 202. Case. 1 Lev. lUl. 4 Inst. 335. _. , , (") H Vin. Abr. 202. 4 Burn. Eccl. L. C^) 11 Vin. Abr.76. Com. Diff. Admon. oyii i^r ir 1 i.r ir ion ^a, 1,^„ „,, „ , *" 241. Wankfordr.Wankford. Salk.301. B. 2. 2 Roll. Abr. 233. CHAP. III.] PRACTICE, &C. 95 It has indeed been held that a party before administration may file a bill in chancery, although he cannot commence an action at lawC*). [96] But by stat. 57 Geo. 3. c. 90. s. 10. if a party administer, and omit to take out letters of administration within six months after tlie intestate's death, he incurs the penalty of fifty pounds (*=). Sect. IV. Practice in regard to administrations. Letters of administration do not issue till after the expira- tion 01 fourteen days from the death of the intestate, unless, for special cause, as that the goods would otherwise perish, the judge shall think fit to decree them sooner ("i). [1] . (<>) 4 Burn. Eccl. L. 242. Fell v. Lut- (>=) Vld. supr. 43. 66. widge. Barnardist. 320. () Fawtry v. Fawtry. 1 Salk. 36. cited. (') Com. Dig. Admon B. 6. Thomson Walker w. Woolaston. 2 P. Wms. 582. 'v. Butler. 2 Lev. 56. 1 Venlr. 219. (0 11 Vin. Abr. 90. 94- Govane v. Go- S. C. vane, 1 Har. & M'llen. 346. ("•) Com. Dig-. Admon, (F.) 11 Vin. C') Com. Dig. Admon. B. 6. Taylor v. Abr 105. Shore. 2 Joa, 162. 11 Vin. Abr. 94. (") Supr. 31. CHAP. III.] LIMITED ADMINISTRATION. 100 teen, yet administration during the minority of an infant next of kin was always of force until his age of twenty-one ; on the [101] principle that the authority of an administrator is derived from the stat. of 31 Ed. 3. c. 11, which admits only a legal construction, and therefore it was held he must be of the lea:al age of twenty-one before he is competent ; and the executor comes in by the act of the party, and that he should be capable of the executorship at the age of seventeen was in conformity to other provisions of the spiritual law ("). And also, which was the more forcible reason, because the statute of distribu- tions requires administrators to give a bond, wliich an iitfant is incapable of doing (p). But now, by the above-mentioned stat. 38 Geo.S.c. 87, recit- ing, that inconveniences arose from granting probate to infants under the age of twenty-one, it is enacted, that where an infant is sole executor, administration with the will annexed shall be granted to the guardian of such infant, or to such other person as the spiritual court shall think fit, until such infant shall have attained the full age of twenty-one years, at which period, and not before, probate of the will shall be granted to him. If administration be granted to such guaidian for the use and benefit of several infants, it ceases on the eldest attaining twenty-one. If there be several infant executors, he who first attains the [102] age of twenty-one years shall prove the will, and the ad- ministration shall cease (q) ; but administration granted during the minority of several children will not expire on the marriage of one of them to a husband of full age ('). Nor, if an infant be executrix, shall it be determined by her taking a husband who is of age. Nor, if there be several infants, by the death of one of them («). If there be two executors, one of whom has attained the age of twenty-one years, and the other not, ad i inistration shall (") 4 Burn. Eccl. L. 238, 239. Freke (). Under this head is also comprised a(hninistration granted to a creditor : such administration in general is warranted only by custom, and not by any express law, and may be granted where it is visible the next of kin cannot derive any benefit from the estate ; but that is to be understood only where ^hey refuse the grant, and the course is for the ordinary to issue a citation for the next of kin in special, and all others in gene- ral, to accept or refuse letters of administration, or sliow cause why the same should not be granted to a creditor (c). And by the aforesaid stat. 33 Geo. 3. c. 87, if, after the expi- ration of twelve calendar months from the testator's death, the [105] executor to whom probate had been granted shall be residing out of the jurisdiction of his majesty's courts, on ap- plication of any creditor, next of kin, or legatee, grounded on an affidavit, in the form therein specified, stating the nature of his demand and absence of the executor, such administration shall be granted. [1] Of the same nature is administration committed by the ordi- nary, in default of all the above-mentioned parties, to such dis- creet person as he shall approve ('•). (*>) Roll. Abr. 907. Lutw. 842. Slaugli- 505. Blackborough v. Davis. Salk. 38. ter V. May. Salk. 42. and vid. supr. 70. Com. Dig. Admon. B. 6, (0 4 Burn. Eccl. L. 230. 2 Bl. Com. ('") 2 Bl. Com. 505. [1] In Vermont, Rhode Island, and Massachusetts, if the executor, and in the two latter states the administrator also, live out of the state at the time of taking upon him the trust, or afterwards remove out of the state, and ne- glect or refuse, after due notice from the Court of Probate, to render his account and make settlement of tlie estate, he m.iy be removed, and adminis- tration granted at the discretion of the judge. In Connecticut, the provisions of the Act cited in the text are in substance adopted. In Maryland, if the executor be out of the state at the time of the probate, and do not return for six months thereafter, administration may be granted. 105 OP SPECIAL AND [bOOK I. The jurisdiction of granting these administrations results from the ordinary's original power at common law, by which he may make tlie grant to whom he pleases ; and therefore it is held, that he may in these cases, as not having been expressly provided for, impose on the grantee such terms as he may think reasonable {^). Hence, where the executors renounced, and the residuary legatee moved for a mandamus to the ecclesiastical judge to be admitted to prove the will, and have administration with the will annexed, on showing cause the court held that the matter was left to the election of the ordinary, and discharged the rule (f). [106] So, where a grandfather moved for a mandamus to such judge to grant him administration of the effects of his deceased son during the minority of his grandson, the court refused the application (&). On the same principle, w here, on the renunciation of the next of kin, several creditors apply for administration, though the court may prefer any one of them C"), yet, on the petition of the others, it will compel him to enter into articles to pay debts of equal degree in equal proportions, without any preference of his own. There may be also a limited or special administration com- mitted to the party's care, namely of certain specific effects, as of a term for years and the like, and the rest may be committed to others, or for effects of the intestate in this country or place to one, and for effects in that country or place to another ; and as well in general cases, as in the case above stated, of the wife, and next of kin ('). But several administrations cannot be grant- ed in respect of one and the same thing; as a house, or a bond, (e) 4Burn. Eccl. L. 237. 3 Bac. Abr. tcswortli, Stra. 956. Com. Dig. Ad- 13. Ld. Grandison v. Countess of Do- mon. B. 6. ver. Skin. 155- Walker v. Woollaston. (g) 4 Burn. Eccl. L. 231. Smith's Case. 2 P. Wms. 582. 589, 590. Briers 7-. Stra. 892. Goddard Hob. 250. Thomas v. But- (*>) Harrison v. All Persons. 2 Phill. ler. 1 Ventr. 219. Smith's Case. Stra. Rep. 249. 892. Rex v. Bettesworth. ib. 956. (') Com. Dig. Admon. B. 7. Roll. Abr, (f) 4 Burn. Eccl. L. 231. Rex v. Bet- 908. Vid. supr. 87. CHAP. III.] LIMITED ADMINISTRATION. 106 or any other debt. For it would be absurd that two persons should have a distinct right to an individual chattel, or c/to«e in action (''). In respect however to creditors, such several admi- [107] nistrators are all considered as one person, and may be sued accordingly C^). Administration also may be granted on condition, as where a former grantee is outlawed, and in prison beyond sea, it may be committed to another, but so as, if the first grantee shall return, he shall be entitled to administer (i). The ordinary also, in default of persons entitled to the ad- ministration, may grant letters ad colligendum bona defuncti, and thereby take the goods of the deceased into his own hands, and thus assume the office of an executor or administrator in respect to the collecting of them ; but the grantee of such letters cannot sell the effects without making himself an executor de son tort. The ordinary has no such authority, and therefore he cannot confer it on another {""). If a bastard, who, as nullius JiliuSt hath no kindred, or any other person having no kindred, die intestate, and without wife or child, it hath formerly been holden that the ordinary could seize his goods, and dispose of them to pious uses ; but now it seems settled that the king is entitled to them as ultimus hccres ; yet in such case it is the practice to transfer the royal claim by [108] letters patent, or otiier authority from the crown, with a reversion, as it is said, of a tenth, or other small proportion of the property, and then the ordinary of course grants to such appointee the administration ("). [2] (K) 3 Bac.Abr. 57. Roll. Abr. 908. Faw- (") 4 Burn.Eccl.L. 241. 11 VIn. Abr. try V. Fawtry Salk. 36. Vid. supr. 98. 87. Off. Ex. 174, 175. 2 Bl. Com. 505. (k) 1 1 Vin. Abr. 139. Rose v. Barllett. (") Com. Dig. Admon. A. 11 Vin. Abr. Cro. Car. 293. ^^- Jones v. Goodchild, 3 P. Wms. 33- (1) Com. Dig. Admon. B. 7. Roll. Abr. 1 Wooddes. 398. Dougl. 548. 908. 11 Vin. Abr. 70. [2] Where a naturalized citizen dies intestate, the Court will order the re- mainder of his estate to be paid to the treasurer of the commonwealth, for its use, until some person shall be entitled to receive the same as next of kin or otherwise. Dorr, Adm. v. Common-wealthy 1 Mass. T. R. 293, 108 OF ADMINISTRATION [bOOK I. It has indeed been asserted that such letters patent are mere- ly in the nature of a recommendation; and that though it be usual for the ordinary to admit such patentee, yet it is rather out of respect to the king than strictly of right ("). Administration may also be granted to the attorney of all executors, or of, all the next of kin, provided they reside out of the province : but if the effects are under twenty pounds, such administration may be granted, whether they are so resi- dent or not. A grant of administration in a foreign court, as for example at Paris, is not taken notice of in our courts of justice (p). [3] [109] Sect. VI. Of administrations to intestate seamen and marines. With regard to the administration of the wages, pay, prize- money, bounty -money, or allowance of money of such petty oflScers, and seamen, non-commissioned officers of marines, and marines, as are above-mentioned, in respect of services in his majesty's navy, by the before-cited stat. 55 Geo. 5. c. 60. it is enacted, that the party claiming such administration shall send or give in a note or letter to the inspector of seamen's wills, stating his place of abode, and the parish in which the same is situate, the name of the deceased, the name of the ship or ships to which he belonged, and that he has been informed of his death, and requesting the inspector to give such directions as may enable him to procure letters of administration to the de- ceased ; upon receipt whereof the inspector shall send, or cause to be sent, by course of post, under cover to the minister, offici- ating minister or curate of the parish wherein the claimant shall (°) 11 Vin. Abr. 86. Manning v. Napp. (p) Tourton v. Flower. 3 P. Wms. 371- 1 Salk. 37. Vid. supr. 72. [3] See page 56, note [2] CHAP. III.] TO SEAMEN. 109 reside, a petition or paper containing a list of the degrees of kindred to the tenth degree inclusive, with blanks for the time and place of the intestate's birth, and the ship he belonged to, and that the party had obtained information of his death, with blanks for tlie place where, and the time when it happened, without leaving a will, to the best of the party's knowledge and belief, and applying to the inspector for a certificate, to enable such party to obtain letters of administration to the deceased's effects, with also a blank of his degree of kindred ; and stating [110] that no one, to the best of his knowledge and belief, was of a nearer degree at the time of the intestate's death, who died (with a blank in which to insert whether) bachelor or widower; to which form shall be subjoined a blank certificate, to be sign- ed by two reputable housekeepers of the parish where the party applying is resident, of their knowledge of him, and of their belief that what he states is true ; and also another certificate, to be signed by the minister of the parish, and two of the churchwardens or two elders of the same, as the case may be, certifying that such two housekeepers are resident in the parish, and of good repute, and also stating, that if the party applying is the widow of the deceased, slie must forward with such cer- tificate an extract from the parish register, or some other au- thentic proof of her marriage, and containing also the same directions as annexed to the second certificate subjoined to the above-mentioned check (*), in regard to proof of the deceased's death, if he died after he had left the naval service, in regard to mentioning the name of a proctor to be employed in obtain- ing the administration : and that the application, wlien filled up and attested, shall be sent by the general post under cover, di- rected to the treasurer or paymaster of his majesty's navy, London. And the inspector shall at the same time send or cause to be sent to such minister, officiating minister, or curate, a letter, acquainting him with the nature of the claim and the steps to be taken thereon ; and also send or cause to be sent, in like manner, to the claimant, a letter, advising him of the for- warding of the petition or paper, under cover, to such minister, officiating minister or curate, and directing him to take such (») Supr. 62. 110 OF ADMINISTRATION [bOOK I. steps as ai'c directed, for the purpose of substantiating liis claim to tlic satisfaction of tlie inspector; and upon receipt of the said petition or paper and letter, the minister, officiating minister or curate, shall, on being applied to for his signature to the paper, examine the claimant, and also two inhabitant house- holders of the parish as may be disposed to sign the first cer- tificate on tlie paper, touching the right of such claimant to the administration to the effects of the intestate, according to the degree of relationship stated in such petition, and being satis- fied of such right, the person claiming such administration shall fill up, or cause to be filled up, the several blanks in the first part of the paper, according as the truth may be, and sub- scribe the same in the presence of the minister, officiating mi- nister or curate, and the two inhabitant householders shall also subscribe the first certificate on the paper (the blanks therein being first filled up agreeably to the truth) in the like presence; for which purposes the claimant and the householders shall attend at such time and place, as the minister, officiating minis- ter, or curate shall appoint; and the minister, officiating minis- ter or curate shall sign the second certificate upon the paper (the blanks therein, and in the description thereunto subjoined, being first filled up agreeably to the truth) ; and the claimant shall, before his examination, or his signing the petition or ap- plication, pay to the minister, officiating minister or curate, a fee of two shillings and sixpence for his trouble on the occa- sion ; and the said paper being in all things completed accord- ing to the directions therein and hereby given, the same shall be returned by the minister, officiating minister or curate, by [111] the general post, addressed to the treasurer or paymaster of his majesty's navy, London ; and he, on receiving the same, shall direct the inspector to examine it, and make such inquiry relative thereto as may appear to him necessary ; and, if he shall be satisfied, to make out a certificate, stating the applica- tion of the party to his office, containing the party's description, and stating whether he is sole or one of the next of kin of the deceased, tiie original place of residence of the deceased, and whether seaman or marine, and tlie name of the ship he belong- ed to, and that he died intestate, and whether bachelor or widower, together with the time of his death ; and that it ap- CHAP. Ill,] TO SEAMEN. Ill pearing that no will of the deceased has been lodged in the oflSce, he therefore grants such abstract of the application, and certifies that he believes what is stated to be true ', and that such party may obtain letters of administration to the effects of the deceased, which appear not to exceed a sum specified, pro- vided such party is otlierwise entitled thereto by law : to which certificate there shall be subjoined a notice, that the previous commission or requisition is to be addressed agreeably to the superscription of the within cover, in which the same is to be [112] enclosed and forwarded by the proctor; and when the commission or requisition shall be returned to the office, it will be forwarded to him, and he is then to sue out letters of admi- nistration, and send them to the inspector, with his charges noted thereon; and then this certificate the inspector shall sign, and address to a proctor in Doctors?' Commons, and shall at the same time enclose therein a letter addressed to the ministers and churchwardens, or elders (as the case may be), of the pa- rish within which the party then resides, franked by the trea- surer, paymaster, or inspector, in which the previous commis- sion or requisition is to be enclosed, informing him of the ap- plication attested by him and the two churchwardens or elders, and requiring him to swear the party accordingly, provided he answers the description contained in such commission or requi- sition ', and whert the same is executed, to return it to the trea- surer or paymaster of his majesty's navy, London, and to spe- cify and describe the receiver-general of the land-tax, collector of the customs or of the excisej^r the clerk of the check, whose abode is nearest to the party applying, when such person will b# directed to pay him the wages due to the deceased ; and the proctor shall, immediately on receipt of such certificate en- closed in such letter, sue out the previous commission or requi- sition, and enclose it, with instructions for executing the same, in such letter, and shall transmit the letter by the general post [113] to the minister, agreeably to the address put thereon, by the treasurer or paymaster of the navy, or the inspector. If the minister, officiating minister or curate, shall reject the petition or paper, for want of proof to his satisfaction of the claimant being the person entitled to letters of administration of the deceased's effects, such minister, ofiiciating minister or 113 OF ADMINISTRATION [bOOK J. curate, shall state his reasons for such rejection on the petition or paper, and return the same, addressed to tiie treasurer or to the paymaster of the navy ; and in case no application shall he made to the minister, ofticiating minister or curate, hy the claimant, or no effectual steps shall he taken hy sucii claimant, so as to complete the petition or paper, and the certilicates thereon, within the space of two calendar months from the date of the inspector's letter accompanying such petition or paper, the minister, officiating minister or curate, shall at the expira- tion of that time return the petition or paper, addressed to the treasurer or to the paymaster of the navy, with his reason for doing so noted thereon. The minister shall, immediately upon the receipt of such letter, with the previous commission or requisition or other instrument enclosed therein, take such steps as to him may seem proper or necessary for procuring the execution of such previous commission or requisition, or other instrument trans- mitted by the proctor to he executed; and being executed, he shall transmit the same to the treasurer or to the paymaster of his majesty's navy, London ; who shall, immediately upon the receipt thereof, send tiie previous commission or requisition, or other legal instrument executed by the person applying for the administration, to the proctor employed .in Doctors' Com- mons, who shall forthwith sue out and procure letters of admi- nistration in favour of the person so applying for the same, in the manner and form above-mentioned, to the estate and effects of the intestate. , As soon as any letters of administration, or probates of wills, or letters of administration with will annexed, have been obtain- ed, and passed the seal of the proper court in the manner direct- ed, the proctor who sued them out shall immediately send the same, addressed to the treasurer or to the paymaster of his majesty's navy, together with a copy of the will, and an ac- count of his charges and expenses in obtaining the same ; which shall not exceed the sum or sums thereinafter specified ; and the treasurer or paymaster of his majesty's navy, upon receiv- ing such letters of administration, or probates of wills, or let- ters of administration with will annexed, shall direct the in- spector of seamen's wills to issue a check containing the heads CHAP. III.] TO SEAMEN. 113 thereof; and the inspector shall note thereon the amount of the proctors' charges and expenses, provided the spnie shall be at and after the rates allowed to be charged ; and likewise specify and describe upon the said check, the revenue officer or clerk of the cheque residing nearest to the administrator or executor so to be named in such check, if such communication shall have been made to him ; which check, so prepared, shall be delivered over by him to the administrator or executor, together with the copy of the will transmitted to him by the proctor, the copy being first stamped by the inspector, if the administrator, or the administrator with will ajniexed, or the executor, s!\all be present or demand the same in person ; hut if he siiali ixf be present, but be and reside at a distance, then the ins|»ector shall deliver such check and such copy of will to the deputy-pay- master. No proctor shall deliver any letters of administration, probate of will, or letters of administration with will annexed, to any person but the treasurer or paymaster of the navy, or the inspec- tor of seamen's wills, under a penalty of one hundred pounds. For further penalties upon a proctor acting contrary to the provisions of the act, vid. supr. 64. The statute also prescribes similar regulations in regard to the grant of administration to a creditor of such intestate. [114] Sect. VII. Of administrations in case of the death of the administrator, or of the executor intestate. I AM now to consider the effect of the death of an executor or administrator with regard to the administration. Where administration is granted to two, and one dies, the survivor shall be sole administrator (*) ; for it is not like a let- ter of attorney to two, where by the death of one the authority (0 4 Burn. Eccl. L. 241. Hudson v. Hudson, Ca. Temp. Talb. 127. Q 114 OF ADMINISTRATION ON DEATH [bOOK I. ceases, but it is an office analogous to tliat of an executor, which survives {^). An administrator is merely the officer of the ordinary, pre- scribed to him by act of parliament, in whom the deceased has reposed no trust ; and therefore, on the de.ith of that officer, it results to the ordinary to appoint another. And if A's execu- tor die intestate, the administrator of such executor has clearly no privity or relation to A, sijice he is commissioned to admi- nister the effects only of the intestate executor, and not of the [115] original testator. In both these cases, therefore, it is necessary for the ordinary to commit another administration (<=). But, with regard to the species of administration to be thus granted, a distinction arises between the case where the exe- cutor or next of kin had before his death taken out probate or letters of administration, and where he had omitted to do so. If an executor die before probate, his executor cannot prove or take on himself the execution of the will of the original tes- tator, because he is not thereby named executor to such testator. He only can prove the will who by the will is constituted exe- cutor. The omission of the first executor to prove the same on his death determines, although it does not avoid the execu- torship, or vacate the acts which he has performed in such character (''). When this case occurs, an administration must be granted, and the grantee shall be the representative of the party who originally died ; but it shall be an immediate administration, that is, without making mention of the executor, whether he did in point of fact administer, or not ; because administering [116] is an act in pais, of which the spiritual court cannot take notice. The ordinary must commit administration, as it appears to him judicially ; and it can thus appear only by the probate («). In like manner, if A die intestate, and B be entitled to ad- (b) 3 Bac. Abr. 56. Adams v. Buck- r. Wankford, 1 Salk. 308, 309. Hayton land, 2 Vern. 514. 11 Vin. Abr. 69. " v. Wolfe, Cro. Jac. 614. pi. 4. Shep. Com. Dig. Admon. B. 7- Touch. 464. Isted v. Stanley, Dyer, (') Com. Dig. Admon. B. 6. 4 Burn. 572. Comber's Case, 1 P.Wms. 767. Eccl. L. 241. 1 Roll Abr. 907. 2 Bl. (e) Wankford v. Wankford, 1 Srik, Com. 506. 308. 3 Bac. Abr. 19. C'') 11 Vin. Abr. 67. 90. 111. Wankford CHAP. III.] OF ADMINISTRATOR, &,C. 116 minister, and die before lie take out administration, an imme- diate administration shall be committed: in such case it shall be granted to the representatives of B, if the only party in distribution, in preference to the representatives of A, because by the statute of distributions B had a vested interest, and in such grant the ecclesiastical court regards the property ; and therefore if a son die intestate without wife or child, leaving a father, and the father shall himself die before he takes out administration, it shall be committed to his representatives (f) ; and so it has been held, in case the wife die intestate, and the husband die before he takes out administration, it shall be granted to the representatives of the husband ; but it is now settled that the court is in the latter instance bound by stat. 31 E. 3. to grant administration to the next of kin of the wife, and then he shall be a trustee in equity for the husband's repre- sentatives (s). If the deceased executor hath taken out probate, or the de- [117] ceased's next of kin administration, then another species of administration, which hath tiot hitherto been mentioned, becomes necessary, namely, an administration de bonis jwji, that is, of the goods of the deceased left unadministered by the for- mer executor or administrator, by the grant of which, such administrator de bonis non becomes the only personal repre- sentative of the party originally deceased (h). [l] Administration of either species is, generally speaking, grant- ed to the next of kin of such party. But in case there be a (f) 11 Vin. Abr. 88. pi. 25. Squib v. Squib -D.Wyn, 1 P.Wms. 382. note 1. Wyn, 1 P. Wms. 381. Vid. also Com. Vid. infr. 217. Dig. Admon. B. 6. Vid. Earl of Win- (^) 11 Vin. Abr. 111. Attorney-Gene- Chelsea v. Norcliffe, 1 Vern. 403. ral v. Hooker, 2 P. Wms. 340. Com. (?) Elliott T.. Collier, 3 Atk. 526. S. C. Dig. Admon. B. 1. Plowd. 279 3 Bac. 1 Ves. 16. and 1 Wils. 169. 4 Burn. Abr. 19. Farewell v. Jacobs, 4 Mass. Eccl. L. 235. 11 Vin. Abr. 88. pi. 27. T. R. 634. [1] And this administration is to be granted, where the estate is not fully settled, if the administrator be dead or have absconded. Brattle v. Gusiin, 1 Root's Rep. 425 ; even though the estate have been distributed, if there remain debts unsatisfied. Brattle v. Converse, lb. 174. 117 OF ADMINISTRATION, &C. [BOOK I. residuary legatee, it shall be granted to him in preference to such next of kin on the principle above stated, because the next of kin has then no interest in the property (*). Thus, where A made C executor and residuary legatee, and B made C executor without giving him the surplus, and C after- wards died intestate, it was held that the administrator of C should be administrator de bonis non of A, but that the next of kin of B should be administrator de bonis non of B (''). If the residue be bequeathed to several persons, such admi- nistration may be granted to all or either of them, as in the case of an original administrator, although there be no pre- sent residue (»). But for such purpose there must be a com- [118] plete disposition of the property («"). If the executor be liimself residuary legatee, although he refused, or, before he proved the will, died intestate, an immediate administration with the will annexed shall be granted to his administrator ("). If an executor be residuary legatee, although he refused, or died before probate, leaving a tvilU his executor will be entitled to such administration ("). If an executor and residuary lega- tee, after probate, die intestate, administration de bonis non, with the will annexed of the testator, shall be granted to the administrator of such executor. If a feme covert executrix die intestate, then, as to the effects which she had in that capacity, administration shall be granted to the residuary legatee if any, or to the next of kin of the testatoi*. If she were hersf If resi- duary legatee, it shall be granted to her husband (p). Where there are two executors, of whom only one proves and dies, and then the other renounces, the executors of the acting executor have no concern with tlie administration of the (') Com. Dig. Admon. B 6. Thomas w. (") Com. Dig. Admon. B.6. Isled v. Builer, 1 Ventr. 219. S.C. 2 Lev. 56. Stanley, Dy. 372. 3 Bac. Abr. 19. ^,,^ ^1 y;„ j^^^. gg. 91. m. Rach- (k) 11 V.n. Abr. 87. Farrington v. fi,i^ ^. Careless, 2 P. Wms. 161. 4 Knightly, Free. Chan. 567. Barn.Eccl. L 236. 3 Salk. 21. 11 (1) Com. Dig. Admon. B. 6. Vid. Tho. ^^^ ^^^ ^^^ ^^^^ ^^3 Vun.hieuson mas V. Butler, 2 Lev. 56. ^r .1 • v \ u on-, t u^ r. Vanihieiison, tiizscibb. 203. John- ('") 11 Vin. Abr. 89. Jo. 225. , ,., „ , ,,,^ : .\. . . ^ ,, x^ son s Casej Foph. 106. (") 11 Vin. Abr. 88. 92. 2 Roll. Rep. ^ 158. CHAP. JII.] OF ADMINISTRATION, &C. 118 goods unadministered, but the same shall be granted to the next of kin, or residuary legatee of the first testator (i). [119] So, if there be two executors, one of whom appoints an executor, and dies, and the survivor dies intestate, the executor of the executor shall not intermeddle with the first testator's effects ; for the power of his testator was determined by his death, and the executorship vested solely in the other executor as survivor. So, where an administrator is appointed during the minority of the executor of an executor, he has no authority to inter- meddle with the effects of the original testator. The ordinary, in either case, shall commit administration de bonis non to the next of kin or residuary legatee of the original testator (»). • Sect. VIII. How administration shall be granted — when void — when void- able — of repealing the same — how a repeal affects mesne acts. Administration is generally granted by writing under seal ; it may also be committed by entry in the registry, with- out letters sub sigillo ; but it cannot be granted by parol (»). [120] In letters of administration, the style of jurisdiction, as well as the name of the ordinary, shall be inserted (*>). A party may refuse the office, nor can the ordinary compel • him to accept it («). Where administration is improperly granted, a distinction occurs between administrations which are void, and such as are only voidable. If there be an executor, and administration be granted before probate and refusal, it shall be void on the will's being after- (q) Com. Dig. Admon. B. 1. House v. (^) 11 Vin. Abr.!rO. Anon. 1 Show, 408, Lord Petre, Salk. 311. 409. Godolph. 231. Com. Dig. Admon. (0 11 Vin. Abr. 67 in note 89. Off. Ex. B. 7. 101 Limmer v. Every, Cro. Eliz. 211. (*>) 4 Burn. Eccl. L. 273. 3£ac. Abr. 13. 0) Id. 233. 120 ADMINISTRATION, HOW GRANTED. [iJOOK 1. wards proved, although tlie will were suppressed, or its exist- ence were unknown (*•), or it were dubious who was executor («), or he were concealed or abroad (*^) at the time of granting the administration. Or, if there be two executors, one of whom proves the will, and the other refuses, and he who proved the will dies, and administration is granted before the refusal of the survivor, subsequently to the death of his co-executor; or if granted before the refusal of the executor, although he after- wards refuse (s), such administration shall be void. It shall also be void if granted on the ground of the executor's becom- [121] ing a bankrupt, as it was before the stat. 38 Geo. 3. c. 87, if committed durante minoritate, where the infant executor had attained the age of seventeen {^). It shall also be void if grant- ed by an incompetent authority, as by a bishop, where the in- testate had bona notabilia (')> or by an archbishop, of effects in another province C^). [1] In all these instances, the administration is a mere nullity. The executor's interest the ordinary is incapable of divesting. But there is another description of cases, where administration is not A^oid, but voidable only by the act of the spiritual court, as if administration be granted to a party not next of kin ('), or to one of kin together with one not of kin, as to a sister and her husband ('"), or to the wife's next of kin instead of the hus- (d) Com. Dig. Admon. B. 1. Plowd. (h) 11 Vin. Abr. 99. 5 Co. 29 b. 8 279. 282. Cranch, 9. 21. (') Com. Dig. Admon. B. 1. Robin's C) 3 Bac. Abr. 36. Com. Dig. Admon. Case, Moore, 636. B. .3. Blackborough v. Davis, 1 Salk. 39. 1 P. Wms. 44. 767. S.C. (0 11 Vin. Abr. 68. Abram v. Cun- ^,^ ^^^.^^^^ ^ Dickenson, Hard. 216. lungham, 2 Lev. 182. ^,^ ^^^ ^.^ ^^^^^^ B. 6. Blackbo- (f) Com. Dig. Admon. B. 2. B. 10. rough v. Davis, Salk. 38. 1 P. Wms. Abram v. Cunningliam, 2 Lev. 182. 43. S. C. Vid. Anon. 1 Show. 411. (") Com. Dig. Admon. B. 8. Al. 36. [1] AdjTiinistration is void, if committed to any one without bond and sure- ties. In Pennsylvania, the officer of probate is liable for all damages arising from the want of such bond. In Maryland, he is liable for the sufficiency of the sureties in bonds. Administration originally granted upon the estate of a deceased person, after the expiration of twenty years from the death of such person, is ipso facto void. WaleSjAdm. v, Willard, 2 Mass. Rep. 120. CHAP. III.] ADMINISTRATION, HOW GRANTED. 121 band (») ; or if it be granted on the refusal of an executor wbo had before administered (") ; or if it be granted, non vocatis jure v'ocandiSf without citing the necessary parties (p) ; or to a stranger (i) ; or by fraud and misrepresentation, though other- wise duly granted ('), as where the grantee by false suggestions prevented a party in equal degree from applying ; or in case [122] administration be granted in consequence of the incapaci- ty of the next of kin, and the incapacity be removed (^) ; or if tlie grantee shall become non compos mentis^ or otherwise inca- pable (') ; or if it be granted to a creditor before the renuncia- tion of the next of kin (") ; it is not void, but voidable, and may be repealed. If there be a residuary legatee, and administration be grant- ed to the next of kin, though not void, it may also be repealed, whether there be any present residue or not(^). Although a feme covert die entitled to several debts due to her before marriage, which by law do not belong to the hus- band, and her next of kin appear, and take out administration, it shall be repealed, and administration granted to the hus- band (^). If there be two grants of administration, one by the metro- politan, and the other by the bishop, where they were not bona notabilia, the prerogative admuiistration may be repealed (y). At common law the ordinary might repeal an administration at his pleasure ; but now, since the stat. 21 //. 8, if administration [123] be regularly granted to the next of kin, according to the provisions of the same, the ordinary has no such discretion. If he assign a cause for a repeal, the temporal courts are to judge (n) 11 Vin. Abr. 85. Anon. 1 Sid. 409. (') 11 Vin. Abr. 115, 116. (°) Com. Dig. Admon. B. 8. OfF. Ex. (") Com. Dig. Admon B. 6. Elackbo- 40, 41. rough v. Davis, 1 Salk. 38. 4 Burn. (p) 11 Vin. Abr. 115. Com. Dig. Ad- Eccl. L. 249. Harrison v. Weldon. mon. B. 8. Ravenscroft v. Ravens- Stra. 911. croft, 1 Lev. 305. C'") Com. Dig. Admon. B. 8. Thomson (q) 11 Vin. Abr. 95. Wilson v. Pate- v. Butler, 2 Lev. 56. 1 Venlr. 219. S. C. man, Moore, 396. (") 11 Vin. Abr. 92. in note 116. Du- (') 11 Vin. Abr. 114. 117. Harrison v. bois v. Trant, 12 Mod. 438. Mitchell, Fitzgibb. 303. (v) 11 Vin. Abr. 114. Aliens v. An- (») 11 Vin. Abr. 115. Offley v. Best, drews, Cro. Eliz. 283. Com. Dig. Ad- 1 Sid. 373. mon, B. 8, 123 WHEN VOIDABLE. [bOOK I. of its su(liciciicy('). Thus it was Iield, that where the ordinary had elected to grant administration to the father, he had no power of repealing the administration at the suit of af party alleging herself to be the widow (=*). [2] So where administration was granted to a sister, a married woman, pending a caveat entered by the brother, on appeal it was adjudged that the administration should not be revoked at his suit {^). And where administration was granted to the younger bro- ther, and the elder sued to repeal it, the decision was the same ; but in that case it was intimated it would have been different if the administration had been granted pending a caveat («=). Nor, if administration be granted to a creditor, and afterwards a creditor to a larger amount a])pear, shall it be revoked for him (<>). So where administration during the infancy of the [124] intestate's sister was committed to the great-grandmother, and though the grandfather, the plaintiff" in prohibition, sug- gested that the administration was granted by surprise, and that, as he was nearer of kin, it ought to be granted to him ; the court thought, in this instance. proj)inquity to be no ground of preference, and, since the ordinary had no power at common law to grant such administration in the case of an infant next of kin, but only in that of an infant executor, having once (^) 11 Vin. Abr. 114. 4 Barn Eccl L. (t) U Vln. Abr. 115. Offley v- Best, 248, 249. Com. Dig. Admon. B. 8. 1 Lev. 186. Rlackborough v. Davis, 1 P. Wms. 42. (0 11 Vin. Abr. 116. Ayliffe v. Ayliffe, sed vid. Skinner, 156. 2 Kebl. 812. Harrison v. Milchell, («) Sand's Case, Raym. 93. S. C. 3 Fitzgib. 303 Salk. 22. 11 Vin. Abr. 115. S.C. 1 (<') 11 Vin. Abr. 116. Dubois t-. Trant, Kebl. 667. 683. S. C. 1 Sid. 179. 12 Mod. 438. [2] In Pennsylvania, the Register's Court has a right to revoke letters of administration where they have issued improperly, and to direct to whom new letters shall issue. But the power of an administrator to recover debts due to his intestate continues in force, notwithstanding a decree of the Regis- ter's Court revoking the letters of administration, if there has been an appeal to the Supreme (Jourt from such decree, until the determination of the appeal Shnuffer v. Stoever, 4 Serg. & R. 202. CHAP. III.] OF REPEALING THE GRANT. 124 executed his authority, the grant ought not to be repealed (e). So where A, an infant, was made executor and residuary lega- tee, and if he died under age, then B, another infant, was ap- pointed residuary legatee, and on the like contingency, the residue was bequeathed to C ; administration during the mino- rity of A was granted to M, his mother; A died intestate under age, B was still an infant ; and on the question whetlier the administration might be repealed and granted to C, the court seemed to be of opinion that the ordinary had executed his authority, and that M should not be divested of the adminis- tration during the infancy of B (f). So also administration de bonis non, with the will annexed, granted to one, where two had equal right, is good, and shall not be revoked (s). [125] But, in general, if administration be granted to a wrong party, in such case the ordinary may rfpe.il it, and grant it to another, for he has not executed his authority, and it is a power incident to every court to rectify its errors ('*). Therefore,* where a feme covert has died intestate, and her next of kin had obtained administration, it was adjudged that it should be repealed at the suit of the husbaju], because tlie ordinary had no power or election to grant it to any other than to him ('). A person in possession of an administration, is not bound to propound his interest till the party calling in question the grant has first propounded and proved his ('-). If the administration be repealed for want of form in the grant, in such case the ordinary must regrant it to the same party, altliough there be others in equal degree ("). (<=) llVin.Abr. 100.116. Ld. Grandi- ('■) 11 Vin. Abr. 114. 4 Burn. Eccl. L. son V. Countess of Dover, 3 Mod. 23. 248, 249. Com. Dig. .\dmon. B. 8. 25. Ld. Grandison v. Countess of De- Blackburn v. Davis, 1 P. Wros. 42. von, Skin. 155. Vid. Sadler v. Daniel, sed vid. Skinner, 156. 10 Mod. 21. (') 11 Vin. Abr- 116. 4 Burn. Eccl. L. 248. Sand's Case, 3 Saik. 22. (0 11 Vin. Abr. 116. Dubois v. Trant. ^^^^^ ^ chisman, 1 Phill. Rep. 12 Mod. 436. 438. ^^^ ^^^^^^^^ ,, Calemberg. ib. 166. (g) 11 Vin. Abr. 116. Taylor t>. Shore, (i) 11 Vin. Abr. 115. Offley v. Best, 2 Jo. 161.' 1 Sid. 293. R X25 OF REPEALING THE GRANT. [bOOK I. If administration be repealed quia improvide, that is, where, on a false suggestion in respect to the time of the intestate's death, it issued before the expiration of a fortnight from that event ; or where the court on committing it took security inade- quate to tlic value of the property, it shall be granted to the same person (n^). Nor can the ordinary revoke the grant on account of ahusc, [126] although the letters were issued after a caveat entered, for he ought to take sufllcient caution in the first instance to prevent mal-administration ("). Nor can he revoke it on the adnjinistrator's omission to bring in an inventory and ac- count ("). If the grant regularly issue, and subsequent letters of admi- nistration be obtained by collusion, such subsequent letters are void, and shall not repeal the former administi-ation (i'). Some authorities maintain, that if the ordinary commit ad- ministration to the wrong party, and then commit it to the right, the second grant is a repeal of the first without any sen- tence of revocation (i) ; but in other cases it is hel(*^ that the first is not avoided except by judicial sentence (■•). And the practice is, to call in and revoke the first administiation before the second is granted. But after an administration by an arch- bishop, if the bishop to whom it belongs gratit administiation, and then the fii-st administration be roi)ealed, the administra- tion granted by the bish!»p before the repeal shall stand good {'). So, in all cases where the first administration is repealed, the [127] second shall be valid, though committed after the grant of the first, and before the i-epeal of it (')• If the ecclesiastical courts, in the granting or repealing of administrations, shall transgress the bounds which the law prescribes to them, a prohibition from the temporal courts shall (•") Com. Dljj. Admon. li. 3. Offley v. (i) 11 Vin. Abr. 114. 4 Burn. Eccl. L. Best, 1 Sid. 293. 249. (") 11 Vin. Abr. 115. Com. Dig. Ad- " (0 1^ ^'i"- ^^r. 115. in note. Pratt r. men. B. 8. Thomas v. Bailer, 1 Venlr. Stocke, Cio. Eliz. 315. (s) Com. Dig. Admon. B. 3. 8 Co. 135 b. (J) Com. Dig. Admon. B. 3. Vid. 2 (p) 11 Vin. Abr. 114. 3 Co. 78 b. Browul. 119. 219. (°) 11 Vin. Abr. 116. Sty. 102. 'chap. Ill,] OF REPEALING THE GRANT. 127 be awarded, as in the case above-mentioned, wliere tbe ordinary has ji^ranted a regular administration, and is proceeding to re- peal it on insufficient grounds, such as mal-administration ("), or that the letters issued after a caveat entered {") : but no pro- hibition to the ecclesiastical courts shall issue on suggestion, that they arc about to repeal an administration granted by sur- prise, or that they refused to commit the administration to the intestate's next of kin, but were proceeding to grant it to an- other, for the point, who is in fact next of kin, is of spiritual cognisance, and must be contested before the spiritual jurisdic- tion (j). How far the repeal of an administration affects the interme- diate acts of the former administrator remains now to be con- sidered. And here we must again recur to the distinction between [128] such administrations as are void, and such as are only voidable. If the grant be of the former description, the mesne acts of such administrator shall be of no validity ; as, if admi- nistration be committed on the concealment of a will, and after- wards a will appear ; inasmuch as the grant was void from its commencement, all acts performed by the administrator in that character shall be equally void Q^). Or if administration be granted before the refusal of the executor, a sale by the admi- nistrator of the testator's effects shall be void, although the exe- cutor afterwards appear and renounce (y). Or if the executor omit proving the will, whereby administration is granted to a debtor, the executor may afterwards prove it, aiid then sue the administrator for the debt, which is not extinguished by the administration (^). So where an administratrix sued a debtor of the intestate, and, pending the suit, another by fraud pro- cured a second administration to himself jointly with her, and (") Thomas v. Butler, 1 Ventr. 219. (") Com. Dig. Admon. B. 10. Abram Al 56 V. Cunningham, 2 Lev. 182. 3 Bac. {") Offley V. Best, 1 Lev. 186. Dufa. Abr. 50. S. C. 1 Sid. 371. 1 Lev. 187- & vid. (>) 11 Vin. Abr. 95. Abram v. Can- supr. ningham, 2 Mod. 146. (w) Blackborough v. Davis, 1 P. Wms. (') Com. Dig. Admon. B. 10. Baxter 43. 2 Bl Com 112. 11 Vin. Abr. 92. and Bale's Case, 1 Leon. 90. 11 Vin. 115. Com. Dig. Admon. B, 7, 8. Abr. 94. 128 OF PROHIBITION. [bOOK I. " after jud.^ment released to tlie debtor, on whirli he broui^ht an midita querela, and in the meantime the second administration was revoked,, the release was held to be of no avail (^). Thus in all other cases tl>e acts of the administrator are of no effect, where the administration is unlawful ab initio. [129] If the grant were only voidable, then another distinc- tion arises between the case of suit by citation, which is to countermand or revoke former letters of administration ; and on appeal, which is always to reverse a former sentence {^). In case of an appeal, such intermediate acts of the adminis- trator shall be ineffectual ; becanse, as we have before seen, the appeal suspends the former sentence, and on its reversal it is as if it had never existed ('). But if administration be only voidable, and the suit be by citation, all lawful acts by the first administrator shall be valid, as a bond fide sale, or a gift by him of the goods of the intes- tate ; and such gift shall be available, even if it were with intent to defeat the second administrator, or were made, pendente lite, on the citation; although by the stat. IS Eliz>. c. 5. it be void as to a creditor ('•). So if administration be committed to a creditor, and afterwards repealed on citation at the suit of the next of kin, such creditor shall retain against the rightful aduTiinistrator ; and his disposal of the goods pending the cause, and before sentence of repeal, shall be effectual (e). If an ad- ministrator assign a term, and, on a subsequent citation to re- peal the administration, it is confirmed, and on appeal the sen- [130] tence is reversed, the assignment shall be good, for the repeal is merely of a sentence on citation, and therefore of the nature of a suit on such process ; consequently the effect is the same as if the first administration had been avoided in such suit, and not as if an api>eal had been brought in the first in- stance C). But where an administrator sold a term in trust for himself, (») Com. Dig. Admon. B. 10. Anon. 38. 6 Co. 18 b. 11 Vin. Abr. 95. Dyer, 339. 6 Co. 19. (=) Blackborough v. Davis, 1 Salk. 38. C") 6 Co. 18 b. 11 Vin. Abr. 117. Thomas v. Butler, {") Allen V. Dundas, 3 Term Rep, 129. 1 Ventr. 219. 11 Vin Abr. 117 (f) Syims r;. Syms, Raym.224. Seminc (">) Com. Dig. Admon. B. 9. 1 Salk. v. Seminc, 2 Lev. 90. 11 Vin. Abr. 118. CHAP. III.] HOW A REPEAL, &C. 130 although the administration were revoked on a suit by citation, and not on an appeal, the assignment was decreed to be set aside (s). Whether the administration be void or voidable, a bona Jide payment to the administrator of a debt due to the estate shall be a legal discharge to the debtpr, by analogy to the case be- fore stated in regard to such payment under probate of a forged will ('»). In a case as early as the time of Charles the Second, where the administrator of the lessee paid rent to tlie adminis- trator of the lessor, and the latter administration was repealed and granted to A, and he brought an action as well for the rent paid to the former administrator of the lessor, as foi' rent wliich accrued due subsequently to the repeal, and obtained a verdict and judgment for the same, the defendant was relieved in equity [131] in regard to the rent he had paid, inasmuch as he had paid it to the visible administrator (■). This, however, is to be understood only where the grant is revoked on citation ; if it be reversed on appeal, the adminis- trator's authority was suspended by the appeal, and of course such payments shall be void. But whether the administration be void or voidable, or be revoked on citation or appeal, if an action be brought by the administrator, and, while it is pending, administration is com- mitted to another, the writ shall be abated ('^). [3] Or if the administrator, before the repeal, obtain a judgment for a debt due to the intestate, he is not entitled to take out ex- ecution, but the defendant may avoid the judgment by an audita querela ('). So, if the defendant be actually in execution, the (?) 11 Vin. Abr. 95. Jones t. Waller, (■<) 11 Vin. Abr. 118. Bro. Admon. 2 Ch. Ca. 129. pl- 3. C^) Allen V. Dundas, 3 Term Rep. (') 11 Vin. Abr. 102. 117. Com. Dig. Ad- 125. supr. mon. B 10. Turner ■«. Davies, 2 Sand. (i) 11 Vin. Abr. 117. Finch. Rep. 40. 149. S. C. 1 Mod. 62. Lut. 343. [3] In the common case of intestacy, letters of administration must be granted to some person by the ordinary ; and though they should be granted to one not entitled by law, still the act is binding until annulled by the com- petent authority. Griffith v. Frazer, 8 Cranch, 9. 21. -Royal v. Eppes, .Uin'r. of Royal, 2 Munford's Rep. 479. 131 HOW A REPEAL, &C. [bOOK I. Jidgnient shall be vacated in the same manner, and tlie execu- tion set aside ('") : for in such cases the plaintiff had no autho- rity but by virtue of a commission from the ordinary, and when that is determined, his authority is determined with it. But on affidavit to stay execution on a judgment recovered by an [132] administrator, on the ground that the letters of adminis- tration were repealed before the judgment entered, it was held that the matter did not come legally in question before the court, and that the party ought to bring an audita querela{'^). If administration be granted, and afterwards an executor appear, if the administrator have, paid debts, legacies, or fune- ral exi>enscs, he shall be allowed to deduct such payments in the damages recovered against him in an action by the exe- cutor ("). If administration have been granted to a creditor, he has a right to maintain it against the executor of a will afterwards produced, oi" the next of kin ,• it is not to be revoked on mere suggestion, and he is at liberty to show cause why it should not be revoked (p). (■") 11 Vin. Abr. 117- Ket r. Life, (°) 3.Bac. Abr. 50. Plow. 282. Yelv. 125 3 Bac Abr. 51. (p) Elme v. Da Costa, 1 Phill, Rep. (") 11 Vin. Abr. 117. Styl. 417- 173. C 133 1 BOOK II. OF THE RIGHTS AND INTERESTS OF EXECUTORS AND ADMINISTRATORS. CHAP. I. V. of the generat nature of an executor's or adminis- trator's interest distribution of the subject with reference to the different species of the deceased's property. An executor or administrator represents the person of the testator or intestate in respect to his personal estate, the whole of which, generally speaking, vests in the executor immediately on the testator's death : in the administrator, on the grant of letters of administration (^) ; and such grant hath relation to the time of the intestate's decease {^): The interest which such representative takes in the deceas- ed's property is very different from that which helongs to him in regard to his own. Instead of heing an ahsolute interest, it is only temporary and qualified. He is not entitled in his own [134] right, but in autre droits in right of the deceased. He is intrusted merely with the custody and distribution of the effects («). [1] (») Com. Dig. Admon. B. 10, 11. Co, Abr. 554. Liu. 209. 3 Bac. Abr. 57- Off. Ex. (<^) Off. Ex. 85. 88. Plowd. 182. 525. Suppl. 47. 11 Vin. Abr. 54. 9 Co. 88 b. Rutland (b) Com. Dig. Admon. B. 1. 2 Roll. v. Rutland, 2 P. Wms. 212. [13 The possession of an administrator is in autre droit ,- and the personal estate of the decedent, including bonds, contracts, promises, and other choses in action, until accounted for by the payment of debts to the amount at least of their appraised value, continues liable in the hands of an executor or ad- ministrator; and the goods and moneys which were a decedent's at his decease are liable to be claimed in that right, so long as they are distinguishable in thd hands of an executor or administrator, or in the hands of their representa- 134 OF THE NATURE OF [bOOK II. Hence, il' a tenant for years die, having appointed him who has the reversion in fee his executor, whereby the term of years lives. And though the executor or administrator charge himself with ihe ap- praised value of the goods of the decedent, and settle his account in the pro- bate office, the property is not thereby vested in him to the exclusion of tlie creditors. Da-wes, Judge, &c. v. Boylston, 9 Mass. Rep. 337. But the property of the goods of a decedent will be considered as vested absolutely in the exe- cutor or administrator, after an administration to the full amount and value. Weeks v. Gibbs, 9 Mass. Rep. 74. A power, accompanied with an interest, vests in the executors or adminis- trators of the testator or intestate. Kellog v. WUliams, Kirby's Rep. 316. An executor is liable in respect to all the assets which come to his hands, whether they arise in the county where the letters testamentary are granted, or elsewhere, as in another state, or even in a foreign country. Swearingen v. Pendleton, 4 Serg. & R. 392. Where a testator directs the money arising from certain sources (among which are the rents of his lands) to be placed out at interest, his executor is impliedly authorized to make leases of such lands, not already occupied by tenants, as are not necessary to be reserved for cultivation by the testator's own slaves. JH^Call v. PeachifsAdm. 3 Munford's Rep 288. In Connecticut, the administrator is accountable for the rents and profits of land, where the estate is insolvent. Storer v. Hinkly, 1 Root's Rep. 182. An administrator has no power of charging the effects in his hands to be ad- ministered by any contract originating with him.self; but his contracts in the courseof his administration, or for the debts of his intestate, render him liable de bonis propriis. Sumner, Adm. v. Williams & al. 8 Mass. T. R. 199. Foster V. Fuller, 6 lb. 58. If a note be assigned to an executor or administrator as such, he can main- tain an action upon it in that capacity, lb. 190. And he may assig^i a negotia- ble note made to his testator or intestate ; but if he endorse the note, he will be answerable personally, although he endorse it as executor or administrator. Ibid. So, if he give a deed of land with the usual covenants, he will be per- sonally liable for a breach of the covenants. Caswell v. TVendaltj 6 Mass. T. R. 108. An executor may ex officio administer on any undevised estate of the testator, and it is not necessary that he be authorized by a letter of administration for that purpose : for the executor, by the probate of the will, has the administra- tion of the testate estate, according to the will; and on imdevised estate he is also directed to administer, agreeably to the provisions respecting intestate estates. Ilat/s & al. ExWs. v. Jackson & al. 6 Mass. T. R. 149. An administrator will not be allowed any charges, in his administration ac- count, for the support and education of an infant child and heir of the intestate. ■Bre^vster v. Breivster, 8 Mass. T. R. 131. It is no part of the duty of an administrator to advance his own funds for the benefit of the estate ; and if he do, he will not be allowed interest therefor in his administration account. Storer v. Storer, 9 Mass. T. R. 37. CHAP. I.] AN executor's INTEREST. 134 vests also in liim, tlie term shall not merge, for lie has the fee in his own right, and the term of years in right of the testator, and siilijcct to his debts and legacies (''). So if an executor be attainted of felony oi- treason, he incurs a forfeiture of all his own goods and chattels, but those of which he is possessed as executor shall not be forfeited ("^). If he grant all his jjroperty, such as belongs to him in the character of executor shall not pass, uiiless he be so named in the grant C^), or unless he have no othei- property (e). If he become bankrupt, the commissioners cannot seize the specific effects of the testator, not even in nKmcy, which speci- fically can be distinguished and ascertained to belong to the deceased, and not to the bankrupt himseir('»). Nor can the testator's go()ds be taken in execution for the executor's debt, either on a reqpgnizance, statute, judgment, or for his debts of [135] wlia(tever nature (•), unless there be sufficient evidence, either direct or presumptive, of the executor's having convert- ed the goods to his own use('*^), or unless he consent to such seizure, and then it differs not from any other alienation ; an execution acquiesced in being equivalent to a conveyance ('). Therefore, where an executor brought an action in the court of exchequer, suggesting that the defendant detained from him one hundred pounds, which he owed to him as executor of J. S. whereby he was the less able to pay a debt due fiom himself to the crown ; the writ was abated, because the court could not intend that the king's debt could be satisfied by a judgment recovered by the plaintiff" in that capacity ('"). And where a creditor laid by for six oi- seven years, pej'- mitting the executor to remain in possession of the testator's ( ') 2 Bl Com. 177. (') H Vin. Abr. 272. Com. Dig-. Ad- {■') Miirlow V. Smivh. 2 P. Wms. 200. mon. B. 10. Off. Ex. 86. R. Fair v. (■) Off. Ex. 86. Vid. 2 Roll Abr 58. Newman, 4 Term Kep.621. Buller J. pi. 8. Ld. St. John's Case, 1 Leon. 263. contra. See also Whaler. Booth, ibid. Shep. Touch. 94. Marlow r>. Smith, 625. in note, and 632. 2 P. Wms. 200. (i<) y;j p^rr v. Newman, and also (?) Hutchinson v. Savage, Ld. Raj m. q^^;^^ ^ Staines, 1 Bos. & Pull. 293. 1307. (1) Per Lord Mansfield in Whale r. (h) Copeman v. Gallant, 1 P. Wms. Booth. 319. Howard v. Jemmett, 3 Burr. , ^ ,^rr t. o^ 1369. Bourne v. Dodson, 1 Atk. 158. "^ ^ S 135 OF THE NATURE, &C. [bOOK II. property, the court refused to restrain by injunction a creditor of the executor from taking in execution the goods of the tes- tator for the executor's own debt ("). Nor can an executor bequeath the effects which he holds in that right (°). And if he die without a will, his administi'ator shall not, as we may remember, intermeddle with the testator's estate. Nor, if an executor die in debt, shall the effects of the testator be liable, in the hands of the executor's representative, [136] to the payment of the executor's debts (p). So, if an executrix marry, all the personal chattels, of which she is possessed in her own right, are of course absolutely vest- ed in the husband. But in respect of the goods of the testator, they are not transferred by the marriage (i). Nor if the husband of an executrix sue jointly witli her for a debt due to her in that character, and she die after judgment, and -before execution, can the husband have execution on the judgment 5 for although he were privy to the judgment, yet he shall not recover the debt, because it belongs to the testator's representative ('). Nor sliall a term in the hands of the hus- band, in right of his wife as administratrix, be extendible for his debt {'). But wheje A appointed his widow executrix, who continued in possession of his goods during three months after his death, and at the end of that time married B, and, for half a year after the marriage, the goods were treated by them both as the goods of B, it was held, that they might be taken in execution at the suit of B's creditor ('). Such is the nature of the interest to which an executor or [137] administrator is entitled in that right, and so distinguish- able is it from that whicii pertains to him in his own. The personal property, in which they are thus respectively interested, that is of a saleable nature, and may be converted into ready money, is called assets in the hands of the executor or administrator, that is, sufficient, from the French assez, to (") Ray V. Ray, Coop. Rep. 264. (0 1 Roll. Abr. 889. tit. Execution. (°) 11 Vin. Abr. 421. Plowd. 525. Off, (s) Ridler v. Punier, Cro. Eliz. 291. Ex. 86. (p) Off. Ex. 86. (1) Off, Ex. 87. (0 Quick V. Staines, 2 Bos. & PulL 293. CHAP. I.] DISTRIBUTION OF, &C. 137 make him cliargoable to a creditor, and Icj^atee, or party in distribution, so far as such goods and chattels extend ("). The personal effects comprehend so wide a circle, that in order to view them with any distinctness, it is necessary they should be arranged in a variety of classes. I shall therefore first consider them as distinguished into chattels real, and chattels personal, in the deceased's possession at the time of his death. I shall then treat of such as were not in his possession. And, Among such as were not in his possession, of things in action, as well those where the cause of action accrued in his lifetime, as those where it accrued after his death. I shall then proceed to the examination of such chattels as [138] vest in the executor, or administrator, by condition, by remainder, or increase, by assignment, by limitation, and by election. I shall next inquire wliat chattels go to the heir, successor, devisee, or remainder-man. Then show to wiiat the widow shall be entitled. Then describe the nature of the interest of a donee mortis causa. And lastly, point out how effects, which an executor or ad- ministrator takes in tliat character, may become his own. f") 1 Bl. Com. 510. Off. Ex. Suppl. 53. Shep. Touchst. 496. [ 139 ] CHAP. II. OF THE INTEREST OF AN EXECUTOR OR ADMlNISTUAl Oli IN THE CHATTELS REAL AND PERSONAL. SECT. I. Of his interest in the chattels real. First, the personal representative is entitled to the chattels real, that is, such as concern or savour of the realty, as terms for years of houses, or land, mortgages, the next presentation to a church, estates by statute merchant, statute staple, or elegit, interests for years in advowsons, commons, fairs, corodies, estovers, profits of leets, and the like. This species of chattels is styled by the civil law immoveable goods, and, inasmuch as they are interests issuing out of, or annexed to real estates, in the immobility of wliich they participate, by our law they arc described as real : And also, as the utmost period of their exist- ence is fixed and limited, either for such a space of time cer- tain, or till such a particular sum be raised out of such a par- ticular income, and consequently are distinguishable from the lowest estate of freehold, the duration of which is necessarily indeterminate, they are denominated chattels {^). [140] Lands devised to an executor for a term of years foi' payment of debts are assets in his hands (•*). Leases are likewise assets to pay debts, although the execu- tor assent to the devise of them {"). And in case a tei'm be devised to the executor, and he enter, and die before probate, the tei'm shall be deemed to be legally vested in him by his entry, and the devise executed without the probate (''). So a lease (^) 2 Bl. Com. 386. 3 Bac. Abr. 57, 58. (^) 11 Viii. Abr. 240. 2 Brovvnl. 47. 60, 61. Off. Ex. 53, 54. 73. 11 Vin. (c) u yin. Abr. 233. Cliamberlain v Abr. 173. 227. Pynchyn v. Harris, Chamberlain, 1 Clian. Ca. 257. Cro. Jac. 371. Off. Ex. Suppl 59. ,h) Dyer 367 a 5 Miss. Hep. 419. v >» / ' CHAP. II.] OF THE EXECUTOR'S INTEREST, &C. 140 for years determinable on lives is a chattel interest, and shall vest in the personal representative of such lessee («). If an estate be granted to A pur autre vie, but not limited to his heirs, and A die in the lifetime of the cestui que vie, or of him by whose life it is holden, as thi^e is no special occuj»ant, the heir not being named in the grant, it shall, by the stat. 29 Car, 2. c, 3. go to the executor, and be assets in his hands for payment of debts, and after payment of the same, tlie surplus of such estate, by the stat. 14 Geo. 2. c. 20. shall go in a course of distribution like a chattel interest (Q. These statutes operate equally on gi-ants of estates pur autre vie in incorporeal here- ditaments; as if rent be granted to A during tlie lite of another, [141] the rent by virtue of tliese provisions has been holden to continue in the representatives of the grantee dying in the lifetime of the cestui (pie vie (s). Where A, tenant for three lives to him and his heirs, assign- ed over his whole estate in tlie premises by lease and release to B and his heirs, reserving rent to A, his executors, adminis- trators, and assigns, with a proviso that on non-payment A and his heirs might re-enter; and B covenanted to pay the rent to A, his ejcecutors and administrators; the rent was held pay- able to A's executor, and not to his heir, on the ground that there was no reversion to the assignor, and tlie rent was ex- pressly reserved to the executor. That therefore the proviso for the heir to enter was not material, for the reservation of the rent being to the executor, the heir in case of re-enti-y would be a trustee for him ('•). In case of a tenancy from year to year as long as both par- ties please, if the tenant die intestate, the same interest as the deceased had shall devolve on his administrator ('). (") OfF. Ex. 54. ist. 46. Vld. also Stat. 5 Geo. 3. c. 17. (0 2 Bl. Com. 120. 258, 259, 260. Sed vid. 2 Bl. Com. 260. Vaugh 201. Phillips V. Phillips, Prec in Ch. 167. (h) Jenison v. Lord Lexin,^ton, 1 P. S. C. 1 P. Wms. 39. Duke of Devon \Vms. 555. V. Atkins, 2 P. Wms. 380. Vid. At- ^i^ ^^^^ ^^ j^,^ Shore v Porter, 3 kinson adm'x. v. Baker, 4 Term Rep. ^.g,.,^^ j^^.p 13 Vij also Gulliver on 229. and 6 Term Rep. 291. Milner ^^^^^ ^^^,.^,. ^ j^,,^^^ j q^.^^^ K^p V. Lord Harewood, 18 Ves. 273. ^^g j^^,^ ^ willet, 6 Term Ifep. 295. (g) Harg. Co. Litt. 41 b. Fearne's Con- j^^^^^ ^ y^^,,^ 1 1 y^^ j^j„ 35,3, .^^^ ting. Rem. 232, 233. 3 P. Wms. 264. j^ y^^ ■ 235 in'nole. Kendul v. Micfield, Barnard- 141 OF THE executor's INTEREST [bOOK II. If the testator wei-e lessee for years, fish, rabbits, deer, and pigeons, shall belong- to his executor as accessory chattels, partaking of the nature of their respective principals, namely, the pond, the warren, the park, and the dove-house C^). If an executor hath a lease for years of land of the annual value of twenty pounds, rendering a rent often pounds a year, it shall be assets only for the ten pounds over and above the rent (i). A reversion of a term is vested in the executor immediately on the testator's death, and shall be assets in his hands for its utmost value ('"). If an executor renew, the new lease as well as the old shall be assets ("). If A be possessed of a term as [142] executor, and he purchase the reversion in fee, he is still chargeable for the assets in respect of the term, although it be extinguished, so that it shall be incapable of vesting in his ex- ecutor (°). So, if the executor of the lessee surrender the lease, it shall be considered as assets, although the term be extinct (i'). So, where A seised of land in fee devised it to B for thirty- one years, for payment of debts, and appointed B his executor, and, during the term, the fee descended on B ; it was adjudged, that, although by tlie descent of the inheritance, the term was merged as to him, yet that it was in esse as to creditors, and legatees, and should be assets in his hands ('i). If A have a term in right of his wife, as executrix, and he purchase the reversion, the term is extinct as to her, though she survive, but, in regard to a stranger, it shall be considered as assets in her hands ('). But, where A on his marriage de- mised lands to B, and B re-demised them to A for a shorter term, subject to a pepper-corn rent, during the life of A, and after his death, to an annual sum for the life of his wife, as her jointure, and a pepper-corn rent for the remainder of the terra, (i<) Off. Ex. 53. 11 Vin. Abr. 166. (") 3 Bac. Abr. 58. Anon. SChan.Ca. Harg. Co. Litt. 8. note 10. 208. (') 3 Bac. Abr. 57- H Vin. Abr 230. .(„) off Ex. Siippl. 53. 11 Vin. Abr. pi. 42 S. C. 5 Co. 31. Off. Ex. Suppl. 227. pi. 16. 21. Shep. Touchst. 497. 55. Shep. Touchst. 498. Body v. Har- ^^^ ^ ^.^ ^^ ,^ ^^ ^j^ j^^^. 329. grave, Cro. Eliz. 712. Sed vid. Cro. ^^ ^^. ^ ^^^ ^^^ ^^ ^^ ^^pp, Jac. 545. ' (") 11 Vin. Abr. 240. Prattle v. King, " ' 2 Jo. 170. (') ^^ ^"^' ^^^' 226. Anon. Moore, 54. CHAP. II.] IN CHATTELS REAL. 143 [143] and A died, it was held, that the re-demised term should not he assets to pay any of his debts, except such as affected the inheritance, inasmuch as such term was raised for a par- ticular purpose (s). So, where A, on the marriage of his son B, settled a lease for years on him for life, and on the wife for life, and then on the issue of the marriage, and B covenanted to renew the lease from time to time, and to assign it on the same trust, and B renewed the lease in his owji name, but made no assignment to the trustees, and died ; the lease was held to be bound by the agreement on the marriage, and that it was not assets, nor liable to his debts ('). Nor where a lease for years is granted on condition to be void on non-payment of rent, and the condition is broken, and the lessee afterwai'ds dies, sliall it be assets in the hands of his executor ("). Nor is the trust of a term made assets by the statute of frauds in the hands of the executor of cestuy que trust {^''^. If the (estator die in possession of a term for years, it shall vest in tlie executor ; and, although it be worth nothing, he cannot waive it, for he must renounce the executorship in totOf or not at all (^). But this is to be understood only where the executor has assets, for he may relinquish the lease, if the pro- [144] perty be insufficient to pay the rent; yet in case there are assets to bear tlie loss for some years, though not during the whole term, it seems the executor is bound to continue tenant, till the fund is exhausted, wlien, on giving notice to the lessor, he may waive the possession (y). A leasehold estate in Ireland is considered as personal estate in England ; but, whether a leasehold estate in Scotland is to be regarded in the same light, seems not to be settled (^). If A covenant to grant a lease for years to B, his executors, or administrators, and after B's death tlie lease is granted to his executor accordingly, it shall be assets (»). («) 11 Vin. Abr. 236. Baden v. Earl of (") Com. Dig. Admon. B.4. B. 10. 1 Pembroke, 2 Vern. 52. 213. Sid. 266. Fooler v. Cooke, 1 Salk.297. (') 11 Vin. Abr. 237. GoodfcUow v. Helier t). Casebert, 1 Lev. 127. Bolton Burchett, 2 Vern. 298. v. Cannon, 1 Ventr. 271. supr. 42. (") 11 Vin. Abr. 228. 2 Leon. 143. (y) OfF. Ex. 120. vid. infr. (w) Vid. 11 Vin. Abr. 236. Greaves v. (^) 11 Vin. Abr. 239. Bligh v. Earl Powell, 2 Vern. 248. Vid. infr. Book Darnley, 2 P. Wms. 622. III. c. 9. (-) Shcp. Touchst. 497. infr. 144 OF THE executor's interest [book II. So, if the lessor covenant to renew the lease at the request of the lessee, withirrthe term, and the lessee does not make the request, but his executors n»ake the request within the term, the lessor shall be compelled to renew the lease; for the execu- tors of every person are implied in himself, and bound without being named {^). A gi'ant of the next presentation to a living to J. S. during his life, is limited, and shall not carry the presentation to his executors, on his dying before the church becomes void («). Among chattels real is also to be classed, thp interest, styled in law, the annum, dieirif et vastum, the year, day, and waste, that is, where a paity, who is not tenant to the king, is attaint- ed of felony, all his lands and tenements in fee simple are, after his death, foH'eited to tlie crown, for a year and a day ; and [145] the king, or his grantee, and therefore his executor dur- ing such period, hath nt)t only a right to take the rents and profits of the estate, but also to Commit upon it whatever waste he pleases (•!). If rent be reserved on a lease for years, and the lessor die, the rent in arrear at the time of his death shall go to his exe- cutor («). A lessee for years hath only a special interest and property in the fruit and shade of timber trees, so long as they are an- nexed to tlic land, but he has a general ))roperty in hedges, hushes, and trees not timber (f), and consequently tlie same in- terest shall vest in his executor. If he be lessee without im- peachment of waste, in that case he has a general property, as well in timber trees as others; but unless tliey are severed dur- ing the tei-ra, they shall not belong to him, or to his executor, but to the lessor, as annexed to the freehold. Whei-e such chattels concern corporeal hereditaments, as leases for years of houses or lands, the executor is not deemed to be in ])()ssession of them, till he is actually entered. But, in regard to such chattels as relate to incorporeal hereditaments, (>>) Hyde V. Skinner, 2 P. Wms. 196. Abr. 175. (0 11 Vui Abr 436. pi. 27, 28. Mann (*) Off". Ex. 53. Off. Ex. Suppl. 119. V. Bishop of Biistol, Cio Car. 506. 3 Bac Abr. 63. ('') 3 Bac. Abr. 61. Off". Kx. 54. 2 Bl. (') Com. Dig. Riens. 11. 4 Co. 62 b. Com. 252. 4 Bl. Com. 385. 11 Vin. y. 90 b. 1 Roll. Rep. 181. CHAP. II.] IN CHATTELS REAL. 146 [146] as leases of tithes, the possession of the executor is ne- cessarily constructive, because on them there can be no entry. At the instant therefore that the tithes are set out, in a place however remote, he shall be possessed of them in contemplation of law (5?). If the lease be of a rectory, consisting not only of tithes, but also of glebe lands, then it appears that the executor is not in possession of the tithes, unless he enter upon the lanils ('•). The executor of tenant from year to year, of an estate under the annual value of ten pounds, may gain a settlement by re- siding on it for forty days ('). Sect. II. Of his interest in the chattels ■personal, animatef vegetable, and inanimate. Secondly. Chattels personal are such things as are annex- ed to, or attendant on the person of the owner ; and these, by the civil law, are denominated moveable. They are, also, to [147] be distinguished into animate, vegetable, and inanimate(a). The animate are also divided into such as are domitce. and such as are fercE naturce., some being of a tame, and others of a wild disposition. Those of a nature tame and domestic, as sheep, horses, kine, bullocks, poultry, and the like, are capable of an ahsolute property, and are transmissible, like all other personal chattels, to an executor. Those of a wild nature, as deer, hares, rabbits, pigeons, pheasants, partridges, and hawks, admit only of a qualified ownership. Therefore, unless they are reclaimed, that is, rendered tame by art, industry, and education, or con- fined so that they cannot escape, and enjoy their natural liberty, or, unless they are incapable, through weakness, of flying, or running away, tliey are nullius in bonis, not regarded in the (s) off. Ex. 108, 109. 11 Vin. Abr. 240. Stone, 6 Term Rep. 29. (i>) Off. Ex. 109. (') 2 Bl. Com. 387. 3S9. Off. Ex. 55, (}) The King v. The Inhabitants of 56, 57. ' ' ' T 147 OF THE executor's INTEREST [bOOK II. light of private property, and consequently cannot pass to re- presentatives (i*). But the animals I have just enun!erate). There are, also, various vegetables, styled in law emblements, [150] which are deemed personal, and go to the executor, al- though they are affixed to the soil. They are so classed when they are raised annually by labour and manurance, which are considerations of a personal nature. The a])pellation of emble- ments, properly speaking, signifies the profits of sown land, but, in a larger sense, it extends to roots planted, or otltcr an- nual artificial profit ; it includes corn growing, hops, saffron, hemp, flax, and, as it seems, clover, saint-foin, and every other yearly production in which art and industry must combine with nature ('"). On the same principle melons, cucumbers, artichokes, par- snips, carrots, turnips, and the like, belong to the executor ("). The executor of a tenant for life has also been held entitled to hops, although growing on ancient roots, as in the nature of emblements, in respect of tlie cultivation which is necessary to produce them (°). Manure, in a heap, before it is spread on the land, is also a personal chattel (p). (k) 2 Bl. Com. 392. Com. Dig. Biens. Co. Lilt. 55 b. Anon. 2 Freem. 210. F. 7 Co. 17 b. (") 4 Burn. Eccl. L. 254. 2 Bl. Com. (1) 2 Bl. Com. 389. Off. Ex. 59. 123. Roll. Abr. 728. (">) 2 Bl. Com. 122, 123. Termes de (°) Harg. Co. Litt. 55 b. note 1. Cro. laleyEmbl. Off. Ex. 59. 4 Burn. Eccl. Car. 515. L. 255. Com. Dig. Biens. G. 1. Harg. (p) 11 \\n- Abr. 175. Sty. 66. 150 OF THE executor's INTEREST [bOOK II. Personal chattels inanimate are household goods, merchan- dise, money, pictures, jewels, garments ; in short, every thing not included in the former classes, that can be properly put in [151] motion, and transferred from one place to another (i). There are, also, some other interests, which fall under the description of personal chattels. Of this species is the testator's property in the public funds. The next advowson, before it becomes void, as I have already stated, is a chattel real, but, after an avoidance, it is a chattel personal ('). The executor also has an interest in the person of a debtor, in execution at the testator's suit; and without the executor's assent, the party cannot be discharged. This interest is in the nature of a personal chattel, inasmuch as the debtor is merely a pledge to secure the debt ('). So, a prisoner taken in war is of the same species in respect of his ransom, and, on the captor's death, shall go to his executor ('). Such, also, seems the in- terests in negro servants, purchased when captives of the na- tions with whom they are at war; though, accurately speaking, this property of the purchaser, (if it indeed continue), consists rather in their perpetual service, than in their bodies or per- sons ; but, such as it is, it vests equally in the executor ("). [152] In general, however, a servant is legally discharged by the death of his master, and" the executor has no claim to his service (^). Nor has an executor any interest in an appren- tice bound to the testator. The contract, in regard to instruc- tion, is in its irature merely personal, and dies with the master. Yet, although an apprentice be not strictly transmissible, if, with the consent of all parties, and his own, he continue with the executor, it is a continuation of the apprenticeship (^) ; pro- vided, in the case of a tiadc, it be of tlie same species ("). (1) 2 Bl. Com. 387. 389. Off. Ex. 57. (") Off. Ex. 56. (^) 11 Viii. Abi-. 173. Off.Ex. 54. 73. (w) Baxter v. Biirfield, Stra. 1115. ('} 3 Bac. Abr. 57. Off. Ex. 56. - 1266. Rex v. Stockland, Doiigl. 70. (0 Off. Ex. 56. 2 Bl. Com. 402. Bro. j Burn. Just. 82. at seq. 2 Ves. 35, Abr. tit. Propertie 18 L. of Test. 378. ged vid. Off. Ex. 53. 56. (••) 2 Bl. Com. 403. Chamberlain v. ^.^ ^^^, ^ ^^.^ ^ ^ ^ ^^ ^^^ Harvey, Carth 396 Ld. Raym. 147. ^^g^ ^^ .^^^ Smith V. Gould, Salk. 667. CHAP. II.] IN CHATTELS PERSONAL. 152 An interest in the testator's literary property may devolve on the executor, pursuant to several statutes (y). An interest may likewise vest in him by virtue of a patent grantcil to the testa- tor, for the invention of a new manufacture vvitliin the realm («). It seems, also, that a caroome, or a license by the mayor of London to keep a cart, is a chattel interest, and belongs to the executor ("). Tlie interest in all these chattels is, at the instant of the tes- tator's death, vested in the executor ; and from the death of the [153] intestate, by relation, in the administrator, whether he has reduced them into his actual possession, or not, and how- ever widely dispersed, or remotely situated, they are regarded in law as assets in his hands («=). Therefore, where the jury found assets in Ireland, the stating of tlicm on the special ver- dict to be in Ireland, was holden surplusage (•'). So, if an ex- ecutor live in London, and have left goods in Bristol, he hath such an immediate possession of the goods, that he may main- tain trover for them in his own name {^). In like manner he shall be deemed to be in possession of a ship at sea. In short, in whatever part of the world the testator hath left effects, the executor, whether in the manual occupation of them, or not, is deemed to all intents and purposes the possessor in point of law (^). And even if goods be in fact taken out of his possession after he has administered, legally he is not divested of them ; they are still esteemed assets in his hands (?). But, to give the executor a title, or to constitute assets, the absolute property of such chattels must have been vested in the testator ; and, therefore, if A take a bond in trust for B, and [154] die, it shall form no part of the assets of A(''). So, if (y) Stat. 8 Ann. c. 10. 15 Geo. 3. c 53. by Holt, C. J. Bolknd et Ux. Adm'x. 8 Geo 2. c. 13. 7 Geo. 3. c. 38. 17 Geo. v. Spencer, 7 Term Rep. 358. Munt 3, c. 57. r. Stokes, 4 Term Rep. 563. Sed vid. (^) Stat. 21 Jac. 1. c. 3. CockeriU et Ux. ex'x. v. Kynaston, 4 (=>) 11 Vin. Abr. 151. Com. Dig. Biens. Term Rep. 277. B. Hunt V. Hunt, 2 Vem. 83. (0 3 Bac 57. U Vin. Abr. 230. 240. (') Off. Ex. 108, 109. 3 Bac. Abr. 57. Shep. Touchst. 496. Roll. Abr. 921. (0 Off. Ex. 113. Off. Ex. Suppl. 56. C) 6 Co. 46 b. 11 Vin. Abr. 230. 5 Co. 33 b. 11 Vin. Abr. 230. l^) 3 "hac. Abr. 58. in note. Jenkins C") 3 Bac. Abr. 58. Ueering v. Toi- v. Plombe, 6 Mod. 181. li. in evidence rington, Salk. 79. 154 Ol-' I'Hl^ executor's interest [book II. the oblii?ce assign a bond, and covenant not to revoke the as- signment, the bond shall not be included among his assets (>). Nor shall goods, bailed or delivered for a particular purpose, as to a carrier to convey to London, or to an innkeeper to se- cure in his inn, be assets in the hands of their respective exe- cutors. Nor, till the time for redemption is past {^), shall goods pledged or pawned in the hands of the executor of the pawnee, nor goods distrained for rent or other lawful cause, be regai-d- cd as the assets of the party distraining. Nor, if the testator were outlawed at the time of his death, shall his effects be so consideied ('). If A consent to a disposition of the goods of the intestate, and afterwards take out administration, he shall be bound by the antecedent gift ("^) : but, if the executor make a fraudulent gift of them, they shall continue assets ("). Such deeds and writings as relate to terms for years, or other chattels, or are securities for debts, belong to the executor ("). [155] Also, the property in the coffin, shroud, and other ap- parel of the dead body, remains in the executor (p). Chattels, whether real or personal, may be held not only in severalty, but also in joint-tenancy. Thus, if a lease for years be granted, or a horse be given, to two or more persons abso- lutely, they are joint-tenants of it; and unless the jointure be severed, it shall be the exclusive property of the survivor (i). If the jointure be severed, as by either of them assigning his interest, or selling his share, the assignee or vendee, and the remaining lessee or part owner, shall be tenants in common without any JMS accrescendi, or right of survivorship ('). So if a sum of money be given by will to two or more, equally to be divided between them, they shall be tenants in common ('). On (i) Ibid. (°) 3 Bac. Abr. 65. Off. Ex. 63. Jones C) Vid. Shep. Touchst. 496. -v. Jones, 3 Bro. Ch. Hep. 80. (') 2 Bl. Com. 395, 396. 3 Bac. Abr. (i') 2 Bl. Com. 429. 58. Shep. Touchst. 498. (q) 2 Bl. Com. 399. Com. Dig. Estates. ('") Com. Dig-. Admon. B. 10. Per two K. Litt. S. 281. Harg. Co. Litt. 46 b. Just. Holt. C. J. contr. Whitehall v. and 182. note 1. Lady Shore v. Bil- Squire, 1 Salk. 295. S. C. 3 Salk. 161. lingsly, 1 Vern. 482. S. C. Carth. 103. S. C. Skin. 274. S. C. (') Litt. S. 321. Com. Dig. Estates. K. 3 Mod. 276. vid. infr. 5. Sym's Case, Cro. Eliz. 33. (") 3 Bac. .\br. 58. Cro. Eliz. 405. (') 1 Eq. Ca. Abr. 292. UHAP. II.] IN CHATTELS PERSONAL. 155 the principle also of encouraging husbandry, and commerce, stock on a farm, although occupifd jointly, or sto( k of a part- nership in trade, shall always, independently of any express contract to that effect, be considered as common, and not as joint property; and therefore in these instances there shall be no survivorship, but the interest of the party dying shall vest in his executor ('). At law, it is true, the remedy survives, yet [156] the duty does not survive; and, therefore, if one of two joint merchants die, the action for money due to them survives for the survivor, and the executor of the deceased cannot join in an action. But the survivor, on recovery, is liable to an action of account by the executor ("). Such actions, however, are in a great measure superseded, by the more effectual juris- diction of a court of e«iuity in matters of account. Chattels personal in the hands of an executor may, in certain cases, he changed into chattels real, and so vice versa; as, if a debt be due to J. S. as executor, on statute, recognizance, or judgment, and he sue out execution, and take the lands of the debtor in extent, the personal duty is, in that case, converted into a chattel real : On the other hand, if such estate, by extent or a mortgaged term, devolve on an executor, and the debtor or mortgagor pay the money due, such chattels real are turned into chattels personal (^). [1] (0 2 Bl. Com. 399. Com. Dig. Mer- P. Wms. 161. chant D. Harg. Co. Litt. 182. and note (u) Martin v. Crump, Salk. 444. Kemp 4. 2 Browl. 99. Noy. 55. Jeffereys v. ^, Andrews, Show. 188. Small, 1 Vern. 217. Kemp v. Andrews, ^,^ ^^ ^^ ^^ „ ^j ^^^ ^^O. Garth. 170. See Lake v. Craddock, 3 |]1] In many, especially In the commercial states of the Union, every species of real estate, as well as chattel interest, is made assets in the hands of the executor or administrator, for payment of the debts of the decedent. In Vermont and New Hampshire, it is enacted, that, when the personal estate of a decedent shall be insufficient to pay his debts and the legacies bequeathed by him, the judge of probate may authorize the executor or administrator to sell so much of the real estate of the deceased, as will satisfy such debts and legacies. In Rhode Island, on a deficiency of personal estate, the Supreme Judicial Court, at any term thereof in the county in which the decedent last dwelt, may empower the executor or administrator to sell so much of the real estate as 156 NOTE. [book II. shall be necessary to pay the debts, the expenses of the funeral, and the main- tenance of the family of the decedent, together with the incidental charges. Thirty days' public notice of sale is to be given in the town where the real estate lies, and also in the two next adjoining towns. In Massachusetts, the same provisions are enacted ; save that the Courts of Common Pleas in the counties respectively have concurrent authority with the Supreme Court. 6 Mass. Rep. 149. 394, 395. In Connecticut, when the debts and charges allowed by any court of probate in the settlement of any intestate estate, or of a testate estate, where sufficient provision is not made by the will of the testator, cannot be fully paid out of the personal estate, without prejudice to the widow or heirs, by depriving them of their necessary stock and implements for farming, or other business for up- holding life, the judge of such Court of Probate shall have power and authority to order payment of such part of the debts and charges as he shall judge rea- sonable, by disposing of the lands or real estate for that purpose, in such way and manner as he shall judge to be most equitable and beneficial for the widow and heirs, or devisees of such estate; any law or usage to the contrary notwith- standing. In New York, when the personal estate is exhausted, the executor or admi- nistrator must present to the judge of probate, or the surrogate, of the county in which the probate or administration shall have been had, a true and just account of the personal estate and debts. Upon this the judge or surrogate makes an order, directing aU persons interested to appear before him at a time and place indicated in the order, not less than six nor more than ten weeks after its date, to show cause why so much of the real estate of the decedent shall not be sold, as will be sufficient to pay his debts. After publication of such order for four weeks successively in two or more of the public newspapers, the judge or surrogate having examined the proofs and allegations of the executors or administrators, and of such other persons as may have appeared, and finding the insufficiency of the personal estate, may direct the whole, or so much of the real estate to be sold, as will pay his debts. In New Jersey, the like provisions are enacted, except that the powers of the surrogate are given to the Orphan's Court. In Pennsylvania and Delaware, if the personal estate of the decedent be in- sufficient to pay his debts and support his minor children, or if, on a final set- tlement of the accounts of the executor or administrator, in relation to the personalty, a deficit be apparent, the Orphan's Court may authorize the execu- tor or administrator to sell so much of the real estate as may be sufficient to pay the debts of the decedent. In Delaware, also, if the widow and children, or devisee of a testator, who have lands left him or them, being of the age of twenty-one years, or the guar- dians of such as are under that age, shall neglect and refuse to pay the debts of the decedent remaining unpaid, in proportion to each devisee's share, after a just settlement of the personal estate in the Orphan's Court, the executor may, by order of the Orphan's Court, sell and convey so much of tlie lands and tenements of the decedent, in proportion to each devisee's share, as the Court shall deem sufficient to pay the debts of such decedent. CHAP. II.] NOTE. 156 In Maryland, the real estate of a decedent can be subjected to the payment of debts only by bill in Chancery. Judgments against the executor or adminis- trator do not bind lands. And it is provided, that " Leases for years, estates for the life of another person, except those granted to the deceased and his heirs only, and all goods, wares, merchandise, utensils, furniture, negroes, cattle, stock, provisions, tobacco, and every kind of produce, the crop on the land of the deceased by him begun, unless where the lands are divided, things annexed to the freehold or buildings, which may be removed without prejudice to the building, clothing, ornaments, and every other species of personal pro- pefty, (except those things which are denominated heirlooms, and the clothes of a widow, and ornaments and jewels proper for her station, and the clothing of the family,) shall be included in an inventory, and considered as assets in the hands of an executor or administrator." In North Carolina and Tennessee, real estate is assets for the payment of debts; but it cannot be sold by execution, on a judgment against executors or administrators. A sci. fa. must first issue to the terre tenants, on which they may contest the want of personal assets in the hands of the executor or admi- nistrator. In South Carolina, lands are assets, and may be sold indiscriminately with personal estate, on judgment against executors or administrators. In Georgia, on the application of executors or administrators, a part or the whole of the real estate of a testator or intestate may be sold, by order of the inferior county Courts, if it be made fully and plainly to appear beneficial to the heirs or creditors of such estate. In Alabama and Missouri, lands are assets after the exhaustion of the per- sonal estate, and may be sold, but not by execution ; it must be by an order of Court, upon a representation of an executor or administrator. In Mississippi, Louisiana, and Illinois, real estate is assets, and may be sold on judgment against the executor or administrator. In Indiana, lands may be sold for the payment of debts, by order of the pro- bate Court ; and it seems, upon judgment against executors or administrators. Under these statutory regulations, it has been decided, that an administrator has no interest in the lands of his intestate, unless they have been mortgaged to him ; and having no right of entry, he cannot bring any real action to reco- ver seisin or possession of them. DrMnvater v. Driiiktuater, 4 Mass.T. R. 354. But he may lawfully sell lands which are liable for the p.iymenl of the intes- tate's debts on license, whether they be in possession of the heir or of his alienee, or of a devisee. For no seisin of the heir, nor of his alienee, nor of the devisee, can defeat the naked authority of the administrator to sell on license. Ibid. Willard v. JVasun, AdirCx. 5 Mass.T. U. 240. Ilai/s & al. v. Jackson & at. 6 Mass. llep. 149. But lands are not liable for the payment of the debts of a deceased person as his lands, unless he died seised of them, or had fraudulently conveyed them, or were colourably and fraudulently disseised of them, with the intent to de- fraud his creditors. Willard v. J\i''ason, ,idm^T. 5 Mass. Rep. 240. If an executor or administrator, in the sale of the real estate of the deceased, do not comply with the requisites of the Statutes, as by giving bonds to afc- u 156 NOTE. [book II. count, taking the previous oath, advertising and making a public sale, yet strangers to the title, those who have no esiate nor privity of estate nor inter- est, and who pretend to none, cannot avail themselves of a want of compliance with these requisites, if the executor or administrator be otherwise duly autho- rized to sell, and have given a deed recited to be made upon a sale pursuant to that authority. Knox ^ al. v. Jenks, 7 Mass. Rep. 488. Gray v Gardner, 3 Mass. T. R. 399. Colemaii & al. v. Anderson, 10 Mass. T. R. 105. Perkins v. Fairfield, 11 lb. 227. But heirs at law, creditors, and others concerned in the estate to be conveyed, and whose interests are affected by the authority to sell, and those claiming under them, are not concluded by the exercise of the au- thority and license to sell in derogation of their rights, unless every essential requisite and direction of the law have been complied with. Ibid. Ibid. Ibid. Ibid. Yet even heirs and creditors are concluded after a long acquiescence ; and a legal presumption of the regular exercise of the authority is accepted instead of proof lb. lb. lb. lb. Z' If an executor or administrator sell the lands of the deceased for the payment of his debts, pursuant to an order of Court for that purpose, one claiming as heir shall not afterwards avoid the sale, by proving that there were sufficient personal assets for payment of the debts ; but the order of the Court, having competent jurisdiction, shall be conclusive evidence of the authority to sell, • and the sale shall be valid. Leveritt v. Harris, 7 Mass. Rep. 292. An administrator, acting under a license, and exercising an authority to sell the real estate of his intestate, is not required, by any duty of his office or trust, to enter into a personal covenant for the absolute perfection of the title which he undertakes lo convey, or for the validity of the conveyance, beyond his own acts. Sumner, Jldm. v. IViUiavis & al. 8 Mass. Rep. 162. 201. But if he do enter into such a covenant, he will be liable thereon de bonis propriis. Ibid. So, if he enter into covenants expressed to be made in his capacity of admi- nistrator, respecting the title of his intestate, such covenants will necessarily be considered as personal covenants, for which he will be liable de bonis pro- priis; because the effects of the intestate are not liable to the contract of an administrator as such, and because an express contract of that kind can hava; no other legal operation. Ibid. 162. Sedgwick, J. dissentient. The administrator cannot defend in any real action brought against him as administrator, by any person claiming as a purchaser from the intestate, whe- ther the purchase be bona fide or fraudulent as to creditors. Drink-water v. Drinkrwater, 4 Mass. Rep. 354. Under the Statute of 1788, c. 51, an executor or administrator to whom land is set off, on execution, takes an estate in such land in trust for tiie heirs, &c. and neither the legal estate nor the possession vests in the heirs, until the land is apportioned and distributed in the probate office, or until the administration has been settled, or it is ascertained that it will not be wanted for tlie payment of debts. And the administration bond is a security for tlie faithful adminis- tration of such land, it being only a substitute for money due to the testator or intestate. The executor or administrator may maintain an action for the same land against a stranger in possession. Boylston v. Carver, 4 Mass. Rep. 611. Willard V. J^ason, 5 Mass. T, R. 240. CHAP. II.] NOTE. 156 An administrator cannot administer on lands, but by selling them according to a license duly granted, and by appropriating the proceeds to the discharge of the intestate's debts. Dean v. Dean, 3 Mass. Ilep. 258. Drinkicater y. Drink-water, 4 Ibid 354. Mitchell \. Liint, A\h\(\..65'i:. Nor can the intestate's lands be sold to defray the expenses of administration ; the personal estate alone is a fimd for the payment of those charges. But the Court, in granting license to sell the real estate of the intestate for the payment of his debts, may also authorize the administrator to sell lands enough to pay the incidental charges of sale ; it being an expense which he must necessarily incur, in pursu- ing his authority. Ibid. Ibid. If an administrator enter upon the lands of the intestate, and receive the rents and profits, they will become a part of the fund, if wanted for the payment of the debts ; and if not wanted, they will form a part of the distributive shares of the personal estate ; although in law, the administrator has no right to enter upon the lands, or to take the profits. Drink-water v. Drink-water, ./idm. 4 Mass. Rep. 354. In granting license to an executor to sell the real estate of \\\s testator for the payment of debts, the Court will marshal the assets according to the fol- lowing rule : — 1. The personal estate, excepting specific bequests, or such of it as is exempted from the payment of debts. — 2. The real estate which is appro- priated in the will as a fund for the payment of debts. — 3. The descended es- tate, whether the testator were seised of it when the will was made, or it were after acquired— 4. The lands specifically devised, although they may be gene- rally charged with the payment of the debts, but not specially appropriated for that purpose. Hays & ah Ex\s. v. Jack.ion & al. 6 Mass.T. R. 149. But the rents and profits of the descended estate, received by the heir after the testator's death, cannot be come at to be marshalled as assets. Ibid. Lands in another state are not assets within Massachusetts. Austin v. Gage et al. 9 Mass. Rep. 395. The executor or administrator has no occasion for a license to sell the de- ceased's interest in lands, held under a lease for 999 years ; for such interest is but a chattel, which he may dispose of in the same manner as he may of the other personal property of the decedent. Ex parte Gay, Adm. 5 Mass. R. 419. The money due on mortgage in fee is assets for the payment of debts ; and the land will be ordered to be sold to raise the money for that purpose, if the heir of the mortgagee will not save the land by paying the money as he may. 8 Mass. Rep. 554. In Connecticut, an executor hath no right to lands, unless wanted to pay debts, or to answer some purpose expressed in the will. 1 Root's Rep. 518. 2 Ibid. 438. I In Pennsylvania, real and personal estates are both funds for the payment of f debts. The lands of a decedent are bound for his debts, though in the hands t of a bona fide purchaser from the heir. Graff v. Smith's Adm'rs. 1 Ball. 481. Morris's Less. v. Smith, 1 Yeates, 238. S. C. 4 Ball. 119. And though lands do not pass into the hands of the executor in the same way that chattels do, they are liable to be seized and sold in like manner as if they did. Wilson v. 156 NOTE. [book II. Watson, 1 Peters' Rep. 273. Tlie plaintiff is not bound to sue out a sci. fa. against the heirs or terre tenants of his debtor, in order to charge the lands of which they are seized Ibid. Theiefore, to a sci. fa. against an executor to revive a judgment obtained against his testator, the defendant cannot plead that there are terre tenants, whose lands are bound by the judgment. Ibid. Under Sect. 14. of tiie Act of April 19th, 1794, assets, arising from the sale of real as well as personal estate of decedents, must be averaged am.ig the creditors. Workring v. Siexuart & al. 2 Yeates, 483. The executor of a cestin que trust, entitled to a sum of money under a mar- riage contract, has a right to call for the application of the personal estate to discharge the debt, in aid of the real estate devised to the cestui que trust, in part performance ; but such executor cannot resort to the real estate devised to the cestin que trust, in the hands of her heirs ; but the land of the obligee, devised to other persons, is liable. Bryant \. Hunter, C.C. April, 1811. Whar- ton's Digest, 356. If a devisee or one of the heirs of a decedent, loses his lands by an execution, he is entitled to a contribution from the owners of the remaining part of such decedent's estate. Gider\. Kelly, 2Binn.219. Graff \. Smith's Ex'rs.WiAX. 4:^1. By the Act of April 4th, 1797, no debts of a decedent shall remain a lien longer than seven years from his decease, unless secured by mortgage, judg- ment, recognizance, or other record. But where a testator gave his executors power to sell so much of his remain- .ing lands as should be sufficient to pay his debts, and, instead of selling, the executors made an arrangement with the residuary devisees, by which each devisee was to have his part on paying a proportion of the testator's debts, it was held, that the debts remained a lien longer than seven years, notwith- standing this act, and that a purchaser under one of the devisees took it sub- ject to such Hen. Miller v. Stout, 2 Browne, 294. It is not necessary, if there are several -orders of sale, that there should be debts unpaid, as well as children to support, at the time each order of sale is made. If there have been two sales, the proceeds of which extinguished all the debts, a third sale for the maintenance of children is nevertheless good. And it is not necessary that the accounts of an administrator shoidd be settled previous to a decree for sale of the intestate's land. Huckle v. Phillips, 2 Serg. &. R. 4. Under the Act of April 1st, 1814, the Court has power to order a sale of r^al estate, to satisfy the debts of an intestate, by one administrator, where there are several. Bickel v. Young & al. 3 Serg. &. R. 234. A purchaser under a sale by order of the Orphan's Court, takes the land dis- charged from the lien of the intestate's debts, and from the lien of judgments, but not from that of mortgages. Graff w. Snutli's Adm. lDall.481. Moliere's Less. v. J\'ue, 4 Uall. 450. Bat it behooves such purchaser to see that the pro- ceedings are so far regular as to authorize a sale. JMessenger v. Kintner, 4 Binn. 104. Larrimer w . Invin, cited ibid. Snyder's Less. v. Snyder, 6 Binn 483. It is the practice in Pennsylvania, where there is a sale of lands of a testator under an execution, to pay the surplus, beyond what will satisfy the execution. CHAP. II.] NOTE. 156 to the executor, in whose hands it is assets for the payment of other debts. Guier v. Kelly, 2 Binn. 298. Commoirwealth v. liahm & al. 2 Serg. &. R. 375. And such payment is good against the heir, unless he have previously given notice to the sheriff not to pay to the executor or administrator, or have made application to the Court for an order on the sheriff to pay the money into Court. IbiJ. All outstanding debt due to the decedent is not assets in the hands of his executors or administrators, where there has not been gross negligence, or collusive, fraudulent, and unreasonable delay, in collecting it. Bu^-gles v. SVterman, 14 Johns. Rep, 446. [ 157 1 CHAP. III. OF THE INTEREST OF THE EXECUTOR OR ADMINISTRATOR IN SUCH OF THE CHATTELS AS WERE NOT IN THE DECEASED'S POSSESSION AT THE TIME OF HIS DEATH. Sect. I. Of his interest in choses in action. I PROCEED now to treat of such of the testator's effects as were not in his possession at the time of his death ; and in this class I am first to consider choseSf or things in action, as well those where the cause of action accrued in the testator's life- time, as those where it accrued after his death. In regard to the first, the executor is entitled to the testator's dehts of every description, either debts of record, as judgments, statutes, and recognizances ; or debts due on special contracts, as for rent ; or on bonds, covenants, and the like under seal ; or debts on simple contracts, as notes unsealed, and promises not in writing, cither express or implied ; and all such debts, when received by the executor, shall be assets in his hands (*). [158] An executor is also entitled, pursuant to stat. 4 Ed. 3. c. 7. to a compensation in damages for a trespass committed on the testator's goods in his lifetime; and by the equity of that statute, for a conversion of the same, or for trespass with cat- tle in his close {^) ; or for cutting his growing corn, which is a chattel, and carrying it away at the same time(*') ; and by the same liberal construction of the above-mentioned statute, the executor is also entitled to a debt accrued to the testator under the stat. of 2 & 3 Ed. 6. c. 13. for not setting out tithes ('i) ; to (») Off. Ex. 65. 3 Bac. Abr. 59. Com. (') Emerson v. Emerson, 1 Ventr. 187. Dig. Admon. B. 13. ^a) hoU v. Bradford, 1 Sid. 88. 407. (b) 3 Bac. Abr 59. Com. Dig. Admon. ^,^,^^^„,^ ^ase, 1 Ventr. 30. Poph B.13. Off.Ex.ro. Lat. 168. 2Jo/ms. jg^ Jic'p. 9.27. «7nAP. III.] OF THE executor's INTEREST, &C. 158 a quare impedit, for a disturbance of his patronage (*); to eject- ment, for ejecting liim (J) ; and, in short, to every other injury done to his personal estate previously to his death. An executor shall also have damages for the breach of a co- venant to do a personal thing (e) ; and although the covenant sound in the realty, as for not assuring lands, yet if it be broken in the testator's lifetime, the executor shall be entitled to damagesC*); and the damages in any of these cases, when recovered, shall be regarded as assets. So the executor of the assignee of a bail-bond shall recover [159] on that instrument, inasmuch as it is a vested interest (•). So an executor is entitled to damages against a sheriff for permitting a party in execution on a judgment recovered by the testator to escape ; even although the esca])e happened in the testator's lifetime C'). [1] An executor may also demand da- mages of a sheriff for not returning his writ, and paying money levied on a Jieri facixis Q) ; or for a false return stating that he had not levied the whole debt, when in fact he had (">). So, if the testator in his lifetime were entitled to a writ of error, or audita querelttf or to the antiquated remedies of attaint, deceit, or identitate nominiSf the executor has a right to recover such compensation as the testator might have claimed ; and what- ever he so recovers shall be assets in his hands ("). So, an executor is entitled to replevy goods of the testator (") ; or to recover damages of an officer for removing goods taken in exe- cution before the testator, who was the landlord, had been paid (•) Off. Ex. 66, 67. C') Com. Dig-. Admon. B. 13. Spur- (f) Poph. 189. stow V. Prince, Cio. Car, 297. Mod. (g) Lat. 168. 3 Bac. Abr. 59. Ca. 126. (h)Com.Dig. Admon.B.lS.Com.Dig. (i) Com. Dig. Admon. B. 13. Spur- Covenant. B. 1. Lucy V. Levington, 1 stow v. Price, Cro. Car. 297. Ventr. 176. lb. Cooke v. Fountain, ,„, „,,,. p,„„., ■, c n, 10 ("") VVillianis V. Crev, 1 SalK. 12. 347. Lucy V. Levington, 2 Lev. 26. ' ^ Off. Ex. 65. 4 Jo,l Rep. 42. ("^ ^ «^^- ''^'- ^'^^ ^^- ^"- ^^• (i) Com. Dig. Admon. B. 13. Fortes, (°) 1 Sid. 82. Off. Ex. 66. 367. £1] But debt will not lie against the executors or administrators of a sheriff, for an escape in the lifetime of their testator or intestate. Martin v. Bradley, 1 Caine's Rep. 124. 159 OF THE executor's INTEREST [bOOK II. a year's rent (p). And, in general, an executor has a right to a compensation, whenever the testator's personal estate has been damnified, and the wrong remains unredressed at the time of his death. [160] But an executor has no right to an action for an inju- ry done to the person of the testator ('') ; nor for a prejudice to his freehold ; as for felling trees, or cutting the grass, for the trees and grass are parcel of the same (').[2] An executor sliall also have the benelit of any equitable title of the testator in respect to personal property ; and money re- covered by the executor by decree in a court of equity shall be assets (s). In all the above-mentioned cases, I suppose the cause of ac- tion to have accrued before the death of the testator. But where it accrues after that event, tlie executor is equally entitled to the debt, or damages. Therefore, if A contract to deliver certain goods to B on a certain day, and they are not delivered in the lifetime of B, but after his death to his executor, he shall be possessed of them in that character, and they shall be assets in his hands ,• as in case the contract had not been performed, damages recovered for the non-performance would have been so considered ('). So if A covenant with B to grant him a lease of certain land by a cer- tain day, and B die before the day, and before the grant of the lease, A is bound to grant it to the executor of B, and it shall [161] be vested in him as executor, and consequently be assets ("). (r) Com. Dig. Admon. B. 13. Palgrave («) 3 Bac. Abr. 59. Harecourt v. Wren- V. Windham, Sira. 212. ham, Moore, 858. Ratcliff w. Graves, (q) Lat. 168, 169. 1 And. 243. Mason 2 Chan. Ca. 152. Brownl. 76. V. Dixon, Jon. 174. (0 Off. Ex. 82. (') Emerson v. Emerson, 1 Ventr. 187. (") Off. Ex. 82. 11 Vin. Abr. 231. L. Off. Ex. 68. of Ni. Pri. 158. supr. 144. [2] But in Connecticut, it has been determined, that an action of trespass for entering on the intestate's lands and burning his mills, in his lifetime, sur- Tives to the administrator. Grisivold v. Brown, 1 Day's Cas. 150. And an administrator may maintain trover against a stranger for the conver- sion of a title-deed of the plaintiff's intestate, which took place during the life of the intestate. Foivle v. Lovet, 6 Mass. T. R. 394. CHAP. III.] IN CHOSES IJS ACT10><. 161 Or, if A refuse to grant the lease, he is liable to make a com- pensation to the executor of B in damages, whicii shall also be assets ('■). * So where a father, possessed of a term for years held of tbe church, renewable every seven years, assigned the lease to his son in trust for himself for life, remainder in trust for the son, his executors, administrators, and assigns ; and the father cove- nanted to renew the lease every seven years as long as he should live. The son died, and the seven years elapsed, when the executory of the son filed a bill to compel the father to re- new the lease at his own expense. It was decreed accordingly(w). A bail-bond may also be assigned to a deceased plaintiff's executor, and he shall be equally entitled to recover upon it, as if it had been assigned to the testator in his lifetime (^). If a defendant in execution at the testator's suit escape after the testator's death, the executor shall recover damages for the escape, and the damages so recovered shall be assets (v). So an executor is entitled to replevy goods taken after the death of the testator (*). So, if A die possessed of a term for years in an advowson, such term shall vest in his executors; and in case of their being disturbed, they shall recover damages in a quare impeditf and such damages shall be assets (•'*). If an executor have an equitable title to property in that character, and he institute a suit for the same, and it be de- creed to him in a court of equity, it shall also be assets {^). Where the cause of action accrued before the testator's death, [162] neither debts nor damages shall be assets, till they are actually recovered by judgment, and levied by execution, or otherwise reduced into possession ('=). Nor shall the balance of an account stated with the executor subsequently to the testator's death be assets, unless he has re- covered the same, and has it actually in his hands ; for the C) Plowd. 286. (^) Ibid. (y) Husband v. Pollard, Feb. 17-18- (b) Com. Dig. Assets C. Roll. Abr. 920. 19, cited 2 P. Wms. 467. Harcourt v. Wrenham, Moore, 858. (") Fortes. 370. ^,^ ^^ y^^^ ^1,^. 359, 240. 3 Bac. Abr. (y) Com. Dig. Admon. B. 13. Godb. g^ Jenkins v. Plume, 1 Salk. 207. 262. Vid. 1 Roll. Rep. 276. g,^ ^,,^^^,,,t 49- (j) Off. Ex. 36. X 162 OF THE executor's INTEREST [bOOK II. promise to the executor on the account stated, creates no neW cause of action, but ascertains merely the old cause of action which existed in the testator's lifetime ("i). But such debts or damages recovered may be assets, although never, in point of fact, received, as, if they be released by the executor. For the release, in contemplation of law, shall amount to a receipt («). Where the cause of action accrues after the testator's death, the debt or damages shall be assets immediately. As where money was had and received by the defendant, to the use of the plaintiff as executor, it was held, that if the defendant received the money by the consent or appointment of the plaintiff, it was assets in his hands immediately; if without his consent, yet the bringing of the action was such a consent, as that on judgment obtained it should be assets immediately without execution (^). [163] If a covenant affect the realty, and the breach be sub- sequent to the testator's death, the heir, and not the executor, as is hereafter shown, shall be entitled to the damages. If a joint merchant die, his interest in the choses in action belonging to the partnership devolves on his executor in the same manner as the other joint property (e). It has been even held that the executor of the deceased shall join with the sur- viving merchant in an action for goods carried away, or money had and received in the testator's lifetime (■>). But it has been doubted whether the executor and surviving partner must, or can join in such action (■), and it has been adjudged to the con- trary, and such adjudication seems now to be established, on the ground that although the duty survive not, the remedy does survive, and therefore must be enforced by the latter alone C^), who will still be accountable to the executor as above stated ('). (d) 1 1 Vin. Abr. 240. Jenkins v. Plume, Huffam, 2 Lev. 188. and 228. S, C. 1 1 Salk. 207. Freem. 468. (<') 3 Bac. Abr. 60. Cooke v. Jeiinor, (*) Kemp v. Andrews, Show. 189. S. C. Hob. 66. Brightman v. Keighley, Cro. 3 Lev. 290, 291. Eliz. 43. C*) Kemp v. Andrews, Carth. 170. (f) Jenkins v. Plume, 1 Salk. 207. " Martin w. Crump, Salk. 444. Vid.S.C. (p) Harg. Co. Litt. 182. Com. Dig. 1 Ld. Raym. 340. and Smith v. Bar. Merchant. D. row, 2 Term Rep. 476. (!>) Com. Dig. Merchant. D. Hall v. (') Supr. 155. CHAP. III.] BY CONDITION AND REMAINDER. 164 [164] Sect. II. Of interests vested in him hy condition^ by remainder or increase, by assignment, by limitation, and by election. An executor may become entitled in such character to chat- tels real or personal by condition. As if a lease for years, or other chattel, has been granted by the testator to A, on condi- tion that if A do not pay a certain sum of money, or perform some other specific act, within a limited time, the grant shall be void, and the condition is not performed, such chattel shall result to the executor, and be assets («). So, where the condi- tion is, that the testator, or his executors, shall pay a sum of money to avoid the grant, and the executor shall pay it accord- ingly : As if A mortgage a lease, or pledge a jewel, or piece of plate, and before the day limited for redemption or payment die, his executor is entitled to redeem at the day and place ap- pointed C^). If he redeem with the testator's money, such chat- tels shall be assets (•=). If he redeem with his own money, he shall be indemnified in respect to the sum he has disbursed out of the effects of the testator, or, if necessary, by the sale of the [165] chattel itself; and in that case, the surplus over and above such indemnity shall be assets {^). In case he have no fund as executor, and he advance the money out of his own purse for the redemption, and it be fully equivalent to the value of the chattel, the property is altered by such payment, and shall be vested in the executor as a purchaser in his own right (e). But if the executor disbursed his own money to redeem, after the time specified for redemption is elapsed, then it is said that the chattel, without any distinction in respect of its value, shall at law belong to the executor in his own right; since in such case it must be deemed to be sold to him by the mortgagee or pawnee, who, after the forfeiture is incurred, has a legal right to dispose (') Off. Ex. 76. . (<*) 3 Bac. Abr. 58, 59. in note. Off. (b) Ibid. 76, 77. Cortelyonv, Lansing, Ex.79. 2 Fonbl. 404. n. f. Da-wesy. 2 Caine's Cas. 200. Boyhton, 9 Mass. T. R. 337. (c) Ibid. 81, (0 3 Bac. Abr. 58. Kelhv, 63, 165 OF THE executor's interest [book 11. of it at his pleasure to him, or to any other person. But in equity, the excess in the value of tlie thing beyond .the money paid for the redemption shall be regarded as assets in the hands of the executor ('). Chattels which were never vested in the testator in posses- sion, may accrue to an executor by remainder, or increase. As, if a lease be granted to A for life, remainder to his execu- tors for years, such remainder shall be assets in the hands of his executor, though it could never come into the possession of the testator. In like manner, where a lease for years is given [16G] by will to A for life, and on his death to B, and B dies before A, although the term were never in B, yet it shall de- volve on his executor, and be assets. So a remainder in a term for years, though it never vested, in the testator's possession, and thougii it continue a remainder, shall go to the executor, and shall be assets, for it bears a present value, and is capable of being sold (s). So the young of cattle, or the wool of sheep, produced after the testator's death, shall be assets {^). So if an executor of a lessee for years enter on the lands demised, the profits over and above the rent shall be so regarded ('). A trade, generally speaking, is determined by the death of the trader. Articles of partnership in trade subsist not for the benefit of executors of a deceased partner, unless they contain a proviso to that effect (^) : They may contain such proviso : Or the testator may by his will direct his executors to carry on his trade after his death, either with his general assets, or ap- point a specific fund to be severed from the general mass of his property for tbat purpose ('), Executors may also carry on [167] their trade in their representative character, under the direction of the Court of Chancery (m). In all these instances, and a fortiori in case the executor shall take upon himself to (f) Off. Ex. 81. (k) pearce v. Chamberlain, 2 Vez. 33. (g) Off. Ex. 83. Vid. 2 Fonbl. 371. „, ^ ^ . , ^ \ ,, . (') Ex parte Garland, 10 Ves. un. 110. note (k). V / 1 J C") Off. Ex. 83. ('") Pearce w. Chamberlain, 2 Vez. 33. (') Com. Dig. Assets. C. Buckley v. Barker v. Parker, 1 Term Rep. 295. Pirk, 1 Salk. 79. Vid. Off. Ex. 84, 85. Vid. Off. Ex. 83. and 3 Bro. C. C. 552. and supr. 143. CHAP. III.] BY CONDITION AND REMAINDER. 167 carry on the testator's trade, the profits of such trade shall he assets for which he shall he accountahle. [1] An executor may also take under the description of an as- signee. Assignees are such persons as the party, wljo has a power of assignment, actually assigns to receive the chattel ; as if A con- tract to deliver a horse on a given day to B or his assigns, then if B appoint J. S. to receive the horse, J. S. is an assignee in dted ("). But an executor is an assignee in law, because by law he is » the representative of the testator, and is entitled to all his goods # and chattels, and the benefit of all personal contracts entered I into with him ; and therefore, in the case just mentioned, if B f die before the day limited for the delivery of the horse, it ought to be delivered to his executor ; for by law he is the assignee of B for such a purpose («>). So, if a legacy is bequeathed to A and his assigns, and A die before payment, it shall go to his executor or administrator, as [168] assignee (p). So, if A be bound to deliver a true rental to J. S. or his assignee at the end of twenty years, and he die before that time has elajjsed, A is bound to deliver a true rental to his executor, for he is assignee in point of law (i). So, if A be bound to abide by the award of two arbitrators, and they award that he shall pay to B or his assigns two hundred pounds (") Plowd. 288. (P) 11 Vin. Abr. 156. (o) Ibid. ('') 11 Vin. Abr. 156. Fryer v. Gild- ridge, Hob. 10. 1^1] And if the capital stock be lessened by consequence of a commercial adventure, the administrator shall be liable for the loss. Callaghan v. Hall, 1 Serg. & R 241. If an executoror administrator compound debts or mortgages, and buy them in for less than is due upon tliem, although he do it with his own money, he is not to have the advantage to himself. Dawea v. Boylstov, 9 Mass. T. R. 337. And where the assignees of a bankrupt, after his decease, assigned choses in action, and other personal estate of the bankrupt, to his executor, for his own use and benefit, he having paid a consideration therefor out of his own money, he was nevertheless held accountable for the same to the creditors and legatees uf the bankrupt. Daives v. Boylston, 9 Mass. T. R. 337. 168 OF THE executor's INTEREST [bOOK II. before a day limited for that purpose, and B die before the day, the money shall be paid to liis executor or assii?nec('). Or, if A covenant to grant a lease to J. S. and his assigns by Christ- mas, and J. S. die before that time, and before the grant of the lease, it must be maclc to his executors as his assigns (*). So, if a lessor covenant to build a new house for the lessee and his assigns, the executor of the lessee shall hav^e the benefit of the covenant as assignee (t). But where a bond was conditioned for the obligor's paying twenty pounds to such person as- the obligee should by his will appoint, and he nominated J. S. his executor, but made no other appointment, it was resolved, that ; the executor should not have tlie twenty pounds, for he is only iin assignee in law, and takes to the use of the testator, but that in that case the condition was in favour of an actual assignee, who takes to his ow n use ("). [169] So, it has been held, that if A be bound to pay ten pounds to the assignee of B the obligee, B's executor shall not have the ten pounds : But that if A be bound to pay ten pounds to B or his assignee, then the executor of B shall be entitled, because it was a right vested in the obligee himself (''). So, before the provisions of the statute of frauds in regard to estates pur autre vie (w), if a lease were granted to A and his assigns during the life of B, it could go only to A's assignee in deed, and not to his executars {^). And, on his failure to appoint such assignee, it was, in case of his deatli, open to be appropriated by the first occupant that could enter upon it during the life o^ cestui que vie. But where on a fine the use of land was limited to A for eighty years, with a power to A and his assigns to make leases for three lives, to commence after the expiration of the term : A assigned over to B ; B died, having made his will and ap- pointed C his executor: C assigned over to D ; and D, in pur- suance of the power, made a lease for life : The question was, (0 11 Vin. Abr. 157. 1 Leon. 316. " Hob. 9. Godb. 192. Harg. Co. Litt. 210. (») 11 Vln. Abr. 158. Off. Ex. 101. note 1. (0 11 Vin. Abr. 158. Lat. 261. ('') ^^ ^in. Abr. 161. Godb. 192. (w) Vid. supr. 140. C») 11 Vin. Abr. 156. Pease v. Mead, (x) jj yin. Abr. 158. Off. Ex. 101. CHAP. III.] BY LIMITATION. 169 whether D was such an assignee of A as to have a power to make this lease, or whether it sliould extend only to the im- mediate assignees of A ; a point the more doubtful, as there had been a descent on an executor. On its being objected, that [170] an executor should not in some cases be said to be a spe- cial assignee, the court seemed inclined to the contrary ; and that D should be considered as an assignee for the purpose of making the leases in question, as well as any person that should come to the estate under the first lessee, though there should be twenty mesne assignments j and on a subsequent day, judgment was given accordingly (>'). An executor may also be entitled in respect of limitation. A contingent or executory interest, whether in real or personal estate, is transmissible to the representative of the devisee when such devisee dies before the contingency happens, and, if not before disposed of, will vest in such representative when the contingency takes place. Thus where the testator, in case his wife should die without issue by him, after her decease, which was taken to mean immediately after her decease, gave eighty pounds to his brother ; and after the testator's death the bro- ther died in the lifetime of tlie widow, and sh? afterwards died without leaving any issue : It was held that the possibility de- volved to the executors of the brother, although he died before the contingency happened ; and the legacy was decreed accord- ingly, with interest from the widow's death ('). So where B, in consideration of natural love and affection for her niece, and to secure to her separate use her personal estate to trustees, in [171] trust for herself during her life, and after her decease, and payment of her debts and funeral expenses, in trust for the sole and separate use of her niece alone, and not for her hus- band, or for such person as she should appoint, and the niece died in the lifetime of B : Jt was decided that the contingent interest belonged to the representative of the niece (»). And in like manner, where legacies were bequeathed to children, to be transferred to them at their respective ages of twenty-one years, (y) Harg. Co. Litt. 210. note 1. Howe (0 Pinbury v. Elkin, 1 P. Wms. 563. V. Whitebanck, 1 Freem. 476. 11 Yin. Fearne's Conting. Rem. 444. Abr. 158. (0 Peck v. Parrot, 1 Vez. 236, 171 OF THE executor's INTEREST [bOOK II. OP (lays of inaiTiage, and that in case any of tlieni should die under that age, or marry without consent, his or her sliarc should go to others at their age of twenty-one years, Lord Hardwicke C. decreed that a share accruing hy the forfeiture of a child's marrying without consent vested in anotlicr child who attained twenty-one, but died before such forfeiture, so as to entitle the personal representative of such deceased child to an equal share thei'eof with the other surviving children {^). If a legacy out of the personal estate is bequeathed to A, to be paid when he is of the age of twenty -one years, and he dies before that time, his executors are entitled to the legacy ; im- mediately, if it be payable with interest ; if not, when A would have come of age (^). But if such legacy be bequeathed to A at his age of twenty-one merely, or i/he shall attain the age of [172] twenty-one, and he die before that period, his executors have no title (<•). This distinction with respect to interests arising out of per- sonal property, as far at least as they are of a legatory nature, although it be explained, and in some degree corrected by the more modern cases, is in substance established by a series of authorities («^) ; but although the legacy out of the personal property be left to A at twenty-one, yet if interest is given be- fore the time of payment, that circumstance is held to be evi- dence of an intention to vest the- legacy (f). But such presump- tion does not appear to be formed from that circumstance in (>>) Chauncy u Graydon, 2 Aik. 616. 548. Lowther r. Condon, Barnard. 329. (=) 11 Vin. Abr. 160. Brown v. Earn- Steadman v. Palling, 3 Alk.427'. Goss dell, Carth. 52. Com. Dig. Chan. 3 Y. v. Nelson, 1 Burr. 227. Barnes v. Al- 8 Chan. R. 112. Cloberie's Case, 2 len, 1 Bro. Ch. Rep. 181. Monkhouse Ventr. 342. Lord Pav/let's Case, 366. v. Holme, ib. 298. Benyon v. Maddi- Anon. 2 Vern. 199. son, 2 Bro. Ch. Rep. 75. May ■«. Wood, (-1) Com. Dig. Chan. 3. Y. 8. Cloberie's 3 Bro. Ch. Rep. 471. Case, 2 Ventr. 342. Hutchins v. Foy, (f) 2 P. Wms. 612. note 1. Collins v. Com. Rep. 2ded. 719. Metcalfe, 1 Vern. 462. Stapleton v. (-) 2 P. Wms. 612. Mr. Cox's note 1. Cheele, 2 Vern. 673. S. C. Prec. Ch. Lampen v. Clowbery, 2 Ch. Ca. 155. 318. Atkins v. Hiccocks, 1 Atk. 501. Smell V. Dee, 2 Salk. 415. 1 Eq. Ca. Van v. Clark, 1 Atk. 512. Neale v. Ab. 295. Barlow v. Grant, 1 Vern. Willis, Barnard. 43. Foncrean v. Fon- 255. Stapleton r. Cheales, Prec. Chan. crean, 3 Atk. 645. B.C. 1 Vez. 118. 318. 3 Bro. P. C. 237. 2 Eq. Ca. Abr. Walcot v. Hall, 2 Bro. Ch. Rep. 305. BY LIMITATION. 173 CHAP. III.] respect to any interests but those of a legatory nature, although the fund be merely personal : for it hath not been admitted, in cases of portions for younger children, to be raised out of such fund at twenty-one, with interest in the meantime for mainte- nance and education (^). So with respect to all interests arising out of land, the rules [173] on the subject are totally different : for whether the land be the primary or auxiliary fund, whether the charge be made by deed or will, as a portion or a geneial legacy for a child or a stranger, with or without interest, the general rule is, that charges on land payable on a future day, shall not be raised where the party dies before the day of payment C^). This rule however is subject to many exceptions ; as, where the time of payment is postponed from the circumstances, not of the person, but of the fund. As, where a term was created for daughters' portions, commencing after the death of the father and mother, on trust to raise the portions from and after the commencement of the term, and the father died leaving a daughter, the portion was decreed to be vested, but not raisable during the life of the mother (>). (g) 2 P. Wms. 612. note 1. Targus v. Puget, 2 Vez. 207. Hubert v. Parsons, ib. 262. Goss v. Nelson, 1 Burr. 227. (h) Pitfield's Case, 2 P. Wms. 515. 612. note 1. Lampen v. Clowbery, 2 Ch. Ca. 155. Poulet v. Poulet, 1 Vern. 204. 321. Smith v. Smith, 2 Vern. 92. Yates V. Phittiplace, ib. 416. Carter T^. Bletsoe, Free. Ch. 267. Tournayv. Tournay, ib.290. Slapleton T;.Cheales, ib. 318. Jennings v. Looks, 2 P. Wms. 276. Anon. Mosel. 68. Neeve t). Kecke, 9 Mod. 106. Gordon v. Raynes, 3 P. Wms. 134. Bradley v. Powell, Ca. Temp. Talb. 193. Prowse v. Abing- don, 1 Atk. 482. Hall v. Terry, ib. 502. Van v. Clarkj ib. 512. Boycot V. Cotton, ib. 555. Richardson v. Greese, 3 Atk. 69. Attorney-General ■V. Milner, ib. 112. Oldfield v. Old- field, 1 Bro. Ch, Rep. 106. in note. 124. in note. Ashburne v. M'Guire, 2 Bro. Ch. Rep. 108. 2 Yeates, 369. 5 Binn. 118. 3 Yeates, 34. (') 2 P. Wms. 612. note 1. Lowther V. Condon, 2 Atk. 127- 130. S. C. Barnard. 327 Emes v. Hancock, 2 Atk 507. Butler v. Uuncomb, 1 P. Wms. 457. Pitfield's Case, 2. P. Wms. 513. Ca. Temp. Talb. 117. King v. Withers, 3 P. Wms. 414. Sherman V. Collins, 3 Atk. 319. Hutchins v. Fitzwater, Com. Rep. 716. Hodgson V. Rawson, 1 Vez. 44. Dawson v. Killet, 1 Bro. Ch. Rep. 119. 124. in note. Tunstal v. Bracken, Amb, 167. Embrey v. Martin ,ib. 230. Smith v. Partridge, ib. 266. Mannering v. Herbert, ib. 575. Fawsey v. Edgar, 1 Bro. Ch. Rep. in note. Thomson -v. Dowe, ib. 193. in note. 173 OF THE executor's INTEREST [bOOK II. In respect to those cases where portions have been given out of land, and no time of payment expressed, it seems difficult to reconcile the determinations. According to one class, their interest is vested immediately, and transmissible : according to [174] another, such portions shall not vest, if the cliildren die before they want them Q^). But if lands be devised for payment of portions, and one of the children entitled to a portion die after it becomes due, though before the lands are sold, the personal representative of such child will clearly be entitled to the money ('). In those cases, in which both the real and personal estates are charged with a legacy, as far as the executor claims out of the latter he shall succeed according to the rule of the spiritual court where such claim is determinable, though the infant le- gatee die before the time of payment, and consequently the legacy, so far as it is charged upon the land, shall sink {""), An executor may also claim by election ; as where tlie testa- tor at the time of his death was entitled out of several chattels to take his choice of one or more to his own use. If nothing passes to the grantee of a chattel before his election, it ought to be made in his lifetime ("). As if A give to B such of his horses as B and C shall choose, the election ought to be made in the lifetime of B (°). But where an interest vests immedi- ately by the grant, the election may be made by the executor, as well as by the party himself (p). As, if a fine be levied of a hundred acres, and the conusee grant fifty to the conusor for a term of years, his executor may choose which fifty he will have. So if A gives one of his horses to B and C, B may elect (k) Cowper V. Scott, 3 P. Wms. 119. (') U Vin. Abr. 163. Bartholomew v. Wilson V. Spencer, ib. 172 2 P. Wms. Meredith, 1 Vern. 276. 612. note 1. Brewin v. Brewin, Prec. ^^^ ^^^^ ^^ Chandos v. Talbot, 2 P. Ch. 195 Warr v. Warr, ib. 213. Ld. ^^^ ^^3 Teynham v. Webb, 2 Vez. 209. 1 Bro. Ch. Rep. 124. in note. Lord Hinchln- . (") Com. Dig. Election B. Harg'. Co. broke v. Seymour, ib. 395. and vid. Litt. 145. 2 Atk. 133. and 11 Vin. Abr. 163, 164. (o) 1 Roll. Abr. 726. Whitmore v. Wild, 1 Vern. 326. 347. , ^ „ ^ t -L . . - ^■a- 1 ^11 n T- or Wo,.! (P) Harg. Co. Litt. 14a. Gifford V. Goldsey, 2 \ern. 35. Larl "^ -' ° Rivers v. Earl Derby, ib. 72. CHAP. III.] BY LIMITATION. 174 after the death of C, which he will take, for an interest vested [175] in them immediately by the gift('i). So if the election determine only the manner or degree in which the thing shall be taken, the executor, as well as the grantee himself, may make it; for in such case also there is an immediate interest (■■). As, if a lease be granted to A for ten or twenty years, as he shall elect, the executor is entitled to the election. 0) 1 Roll. Abr. 725. (0 Harg. Co. Litt, 144 b. [ 176 ] [176] CHAP. IV. OP CHATTEL INTERESTS WHICH DO NOT VEST IN THE EXECU- TOR OR ADMINISTRATOR. Sect. I. Of chattels real xvhich go to the heir; and also touching money considered as land, and land as money. I PROCEED now to inquire under what special circumstances chattel interests shall go to the heir of the last proprietor. The principle which generally pervades the cases in which the heir, as distinguished from the executor, shall be entitled to chattels, is this — that they are so annexed to and consolidated with the inheritance, that they shall accompany it wherever it vests (*). And, first in regard to chattels real : If A seised in fee grant an estate tail, or a lease for life or years, reserving rent, such rent as accrues after his death, being incident to the reversion, shall go to his heir, and not to his executors C^), although they are expressly named in the covenant (•=). If A seised in fee make a lease, reserving rent to him, his executors and assigns, [177] and die, the rent is determined, for the executors are not entitled to it, inasmuch as they are strangers to the reversion, which is an inheritance, nor shall it go to the heir, because he is not named (•*). But if A seised in fee make a lease for years, reserving rent to him and his assigns, or to him, his executors and assigns, during the term, although there be decisions to the contrary («^), the words, " during the term," shall be suffi- cient to carry the rent to the heir. Where the rent is so re- (») 2 Bl. Com. 427, 428. (^) Harg. Co. Litt. 47. 2 Roll. Abr. (b) 3 Bac. Abr. 62. Harg. Co. Litt. 47. 450. Sacheverel v. Frogate, 1 Ventr. 2 John. Cos. 24. ^^^• .. „ ^ w-.. x^ ' . n r. 1 (O See Nov. 96. 12 Co. 36. Richmond (') Harg. Co. Litt. 47. note 9. Drake ^ ■' ^ ^ „ ^,. „,« « „ X, 7 « r, ^n>* V. Butcher, Cro. Ehz. 217. 3 Bac. V. Munday, Cro. Car. 207. . , ^„ . ' Abr. 63. m note. CHAP. IV.] OF CHATTELS REAL, &C. 177 served, the intention of the parties is clearly expressed, that the lessee is to pay the same during the continuance of the demise (f). In case the lease reserve rent at Michaelmas, or ten days after; if the rent be not paid at Michaelmas, and, before the ten days are expired, the lessor dies, his heir, and not his exe- cutor, shall receive the rent : for although it were in the elec- tion of the lessee to pay it at Michaelmas, yet the ten days after are the true legal term, and consequently the rent was not legally due before that period of time, and therefore is no chattel (s). So if the lessor die on the day on which the rent is payable, after sunset, and before midnight, the heir, and not the executor, may demand the rent, for it is not in strict- ness due till the last minute of the natural day, although it [178] may be more convenient to pay it before (»>). So where rent is granted to A and his heirs for life, and the lives of B and C, the heir shall have the rent as a party specially nomi- nated, and as heir by descent (•). So, although, for the arrears of a nomine poence^ or penalty for non-payment of rent, the gran- tee himself, and therefore his executors, may have an action of debt, yet such penalty, as an incident to the rent, shall descend to the heir (■"). So a term for years in trust to pay debts, after- wards to attend the inheritance, shall go to the heir, and not to the executor (•). So if a term be raised for a certain purpose, and that purpose be answered, the heir shall have the benefi- cial interest in the same, whether it be so expressed or not('") ; but he shall take it as a term, and consequently as a chattel ("). So an annuitj, although a chattel interest, is descendible to the (f) Harg. Co. Liu. 4^. note 8. ibid. (') 11 Viii. Abr. 168. Bowles tj. Poore, 202. 3 Bac. Abr. 62. Sacheverel v. Cro. Jac. 282. Vid. 2 Bl. Com. 259. Fmgate, 2 Saund. 367. S.C. 1 Vent. (}) 11 Via. Abr. 168. Harg. Co. Litt. 148. 161. Sacheverel v. Frogate, 162 b. Raym. 213. 2 Lev. 13. S.C. (') 11 Vin. Abr. 172. Countess of Bris- / X « T, Kx. rn ir^r. -. o^ tol T;. Hungcrfopd, 2 Vcm. 645. Com. (g) 3 Bac. Abr. 63. 10 Co. 127. _. „. *'„ „ „ „, ^ ^ Dig. Biens. B. 2 Ca. Ch. v. (!>) 3 Bac Abr. 63. Harg. Co. Lltt. Langton, 156. 160. 202. note 1. Duppa v. Mayo, 1 Saund. (m) n yin. Abr. 169. Anon. 2 Vent. 287. Ld. Rockingham v. Oxenden, 359. Salk. 578. and vid. 1 P. Wms. 177- (n) n vin. Abr. 171. Levet v, Need- S. C. ham, 2 Vern. 139. 178 OF CHATTELS REAL [bOOK II. heir(°). So where A, the cestuy que trust of a term in Black- acre, afterwards purchased the fee in his own name, and devised Blackacre in fee to B, his heir, whoni he made his executor and residuary legatee, it was held that on the death of B the term should go Nvith the fee to B's heir, and not to his personal [179] representative (p). So if ^n estate pur autre vie be limit- ed to A, his heirs, executors, administrators, and assigns, and be not devised, it shall descend to the heir as a special occu- pant (1). But if a debt be owing to A, and, in satisfaction of it, the debtor grants him an annuity, charged on lands for the grantor's own life, and redeemable, such annuity shall be part of A's personal estate (j). So a term conveyed as a fee by lease and release to J. S. and his heirs by the word " grant," although it cannot operate as a fee to vest in the heirs of J. S. yet shall go to his personal representative (s). So if a lessee for twenty years make a lease for ten years, reserving a rent during the last-mentioned term to him and his heirs, it shall be void as to his heir, and shall belong to his executors ('). So if A pos- sessed of a term for years devise it to B for life, remainder to the heirs of B, it seems that on B's death it sliall go to his ex- ecutor, and not to his heir("). So if A seised in fee make a lease for years, reserving rent, and devise the rent to B ; B's executor, and not his heir, shall be entitled to the rent, because B had no more than a chattel interest (v). So where a copy- [180] hold estate was granted to A for the lives of A, B, and C, and A died intestate, it was held that his administrator should have the estate during the lives of B and C {^). So a lease granted by a copyholder for one year only shall (0) 11 Vin. Abr. 153. Arg. 10. Mod. Scawen, 1 Vez. 402. 237. Vide also 11 Vin. Abr. 146. pi. (») 11 Vin. Abr. 153. Marshall v. 25. Co. Litt. 374 b. Earl Stafford v. Frank, Chan. Prec. 480. Buckley, 2 Vez. 170. Countess of Hoi- Q) Sacheverel v. Frog-ate, 1 Vent. 161. derness v. Marq. of Carmarthen, 1 (") 11 Vin. Abr. 155. Davis v. Gibbs, Bro. C. Rep. 377. 2 Bl. Com. 40. 3 P. Wms. 29. (p) Goodright v. Sales, 2 Wils. 329. (") U Vin. Abr. 145. Dyer 5. b. note vid. supr. 7. !• ibid. Ardsv. Watkin, Cro. Eliz. 637. (1) Atkinson, adm'x. 7). Baker, 4 Term 651. Moore, 549. S. C. Rep. 229. Vid. supr. 140. {"") 11 Vin. Abr. 151. in note. Howe (') Com. Dig. Blens. 0. Longuet v, v. Howe, 1 Vern. 415. CHAP. IV.] WHICH GO TO THE HEIR. 180 be no forfeiture, for it is warranted by the general custom of the realm, and shall be accounted assets in the hands of the executor of the lessee (='). If A grant a rent in fee to J. S. with a proviso that, if it be in arrear, the grantee may enter the lands, and retain till he be satisfied ; the power of entry is an inheritance, and descends to the heir : but when entry is made, the party has merely a Chattel interest in the lands, which, with the arrears, shall go to his executor (y). If the grantee of a rent in fee take a lease for years of the lands out of which the rent issues, and die, his executor shall have the land, and the heir is precluded from the rent (^). So, a bond given by one parcener to pay the other, her exe- cutors or administrators, an annual sum during tlie life of J. S. [181] for owelty of partition, or as a compensation for her share being of the less value, shall go to the executor, and not to the heir : because in such case there is no grant of a rent, but a mere contract, and therefore the obligor had an election, either to pay the same, or to forfeit her bond (''). Money covenanted to be laid out in land, we have seen(i'), shall descend to the heir. Nor is the case varied by tlie cove- nants being voluntary ; as, if A without any consideration co- venant to lay out money in a purchase of land to be settled on him and his heirs, a court of equity will compel the execution of such contract, though merely voluntary ; for in all cases where it is a measuring cast between an executor and an heir, the latter shall in equity have the preference (<=). But in such cases, if there be proof that the party, absolutely and in all events entitled to the money, intended to give it the quality of a personal estate, then it shall go to his executor. Whether the mere circumstance of the fund remaining in his hands in the shape of money shall of itself be evidence of such intention, and C) 11 Vin. Abr. 146. Poph. 188. (^ 11 Vin. Abr. 147. Lit. Rep. 59. Harg. Co. Litt. 59. note 4. 4 Co. 26. (a) n yin. Abi-. 150. Hulberl v. Hart, 9 Co. r5 b. Matlhewes v. Weston, W. i Vern. 133. Jo. 249. Lilt. Rep. 233. .,. g^ '^ g ' (y) U Vin. Abr. 147. Jemmot v. Coo- ly, 1 Lev. in. Errington v. Hirst, Cowards u Countess of Warwick, Raym. 125. 158. 1 Sid. 223. 262. 344. 2 P. Wms. ir6. 181 ■ OF CHATTELS REAL [^BOOK ll. if not, whether the heir has any equity against the personal representative in this respect, are points in whicli the cases seem in some measure to differ. But they all agree that even blender proof of the intention will decide the question (^). Thus, by articles before marriage, securities for moneys amounting to the sum of 1,400/. were assigned to trustees, and agreed to be invested in land to be settled on the husband for life, remainder to the wife for life, remainder to the issue of thfe marriage, remainder to the right heirs of the husband, some of the securities were continued unaltered, but part of the mo- ney settled was invested on other securities expressly in trust for the husband, his executors and administrators. The husband died without issue, having made his will, by which be devised some of his lands to his wife, and the rest of his real estate in Yorkshire and elsewhere to J. S. and all his personal estate and all his secu- rities for money to his wife, whom he appointed executrix. It was held, that so much of the 1,400/. as was subsisting upon the securities on which it was originally placed, or on any other securities where no new trust "had been declared, ought to be considered as real estate ; but that such part as was called in by the testator, and afterwards placed out upon securities upon a different trust, should be taken to be personal estate ; upon the principle, that as there was no issue of the marriage, it was in the power of the husband to alter and dispose of the settled property as against the heir at law, though not against the wife, and yet the placing it out upon different trusts was an alteration of the nature of it, and his declaring the trust to his executors seemed equivalent to his declaring that it should not go to his heir(*'). But where A executed articles of agreement for the purchase of land of B, and paid B six hundred pounds j but B paid A in- terest for the money, and A paid B rent for the premises, it was held, that on A's dying before the conveyance, his executor was (^) Edwards t;. Countess of Warwick, 8 Atk. 254. ib. Crabtree v. Bramble, 2 P. Wms. 175. and note 1. Chiches- 680. 5 Bro. P. C. 269. Bradish v. Gee, ter V. Bickerstaff, 2 Vern. 295. Lingen Ambl. 229. Hewitt v. Wright. 1 Bro. v. Sowray, 1 P. Wms. 172. Lechmere Ch. Rep. 86. Fulkney v. EarlDarling- V. Earl of Carlisle, 3 P. Wms. 211. S. C. ton, 223. Ca. Temp. Talb. 80. Guidot v. Guidqt, (•=) Lingen *. Sowray, 1 P. Wms. 172. CHAP. IV.] WHICH GO TO THE HEIR. 182 [182] entitled to the six hundred pounds, as part of his personal estate C). On the other hand, where A died intestate, leaving two daughters, and after his decease the widow laid out the sura of four hundred pounds, part of his assets, in land, and settled it to herself for life, remainder to her two daughters in tail, remainder to her own right heirs : the administrators of the dauglitei's claimed from the heir at law of the widow two- thirds as personal estate, and it was proved that the same four hundred pounds w ere applied in the purchase : although the Master of the Rolls decreed for the administrators, yet on ap- peal the Lord Keeper reversed the decree, on the ground, that money could not be specifically distinguished, nor followed, when invested in a purchase (^). But where an executor in trust for an infant of a lease for ninety-nine years determinable on three lives, on the lord's refusal to renew but for lives abso- lutely, complied with his requisition, and changed the years into lives ; on the infant's dying under twenty -one, this was held to be a trust for his administrator, and not for his heir (h). So where trustees purchased lands in fee simple with the infant's money, and the infant died in his minority, it was held that the land should be accounted part of the personal estate, and should go to his administrator ('). So, where committees of a [183] lunatic invested part of his personal estate in the purchase of lands in fee, the court declared it should be deemed personal property, decreed an account, the land to be sold, and the mo- ney to be divided among the next of kin : For it shall not be in the power of a guardian or trustee to change the nature of the estate. But it appears, that if in such case the trustees obtain a decree in equity for the purchase, the court will main- tain its decree, and then the estate shall go to the heir, and not return to the personal fund, if there be no ground to impeach the trustees of fraud ('^). With respect to mortgages, since courts of equity consider such contracts as merely personal, the mortgage money is in (0 11 Vin. Abr. 149. 2 Chan. Rep. 138. (0 11 Vin. Abr. 151. 2 Chan, Rep. Z77. (g) 11 Vin. Abr. 153. Kendar v. Mil- (") 11 Vin. Abr. 51. Audley r. Audley, ward, 2 Vern. 440. 2 Vern. 192. Thomas v. Kemish, 2 ('^)llVin.Abr. 155. Witter u Witter, Preem. 209. Earl of WincUelsea r. 3 P. Wms. 99. Norclifle, 1 Vern. 435. z 133 OJF CHATTELS REAL [bOOK II. general held to be part of the personal estate, and to belong to the executor of the mortgagee. But, under special circum- stances, it shall be regarded in the light of real property, aud shall go to the heir (»). At law, if the condition or defeasance of a mortgage of inhe- ritance make no mention either of heirs or executors, to whom the money shall be paid, the money ought to go to the executors, for, being originally derived out of the personal estate, in na- tural justice it ought to return thither. If the defeasance ap- point the money to be paid either to the heir or executors, and the mortgagor pay the money at or before the day, he may elect [184] to pay it cither to the heir or the executor. If the day of payment be past, and the mortgage be forfeited, all election is gone ; for at law there exists no right of redemption. There can be a redemption only in equity, and equity will not revive the election ; but considers the case the same as if neither heir nor executor had been named. And as in that case tlie law will give it to tlie executor ; equity, which ought to follow the law, will decree it to the same person. Hence, therefore, when the security descends to the heir of the mortgagee attended with an equity of redemption, as soon as the mortgagor pays the money, the land shall belong to him, and the money only to the mortgagee, which is merely personal, and so accrues, and is payable to his executor ('"). Nor will it appear inequitable that the heir should be decreed to make a reconveyance without having the money v/hich comes in lieu of the land, if it be con- sidered tliat the land was no more than a security, and that, after payment of the money, a trust results for the mortgagor, which tlie heir of the mortgagee is bound to execute. Nor is it material that tlie executor of the mortgagee has assets without such money. Assets shall not be th«i measure of justice between the parties. The heir either ought to have the money if there were no assets, or ought not to have it although there were. Nor is the principle varied by there beijig no per- [185] sonal covenant on the part of the mortgagor to pay the money; for although the claim of the mortgagee's executor (I) Powell on Mortgages, 2d vol. 682 (™) Waring -w.Danvers, 1 P.Wms.295. —698. See also Fonbl. 255. CHAP. IV.] WHICH GO TO THE HEIR. 185 would be strengthened by such a covenant, yet it shall avail him without it("). And although a mortgage in fee be condi- tioned that the mortgagor shall pay the money to the mortgagee, his heirs, executors, administrators, or assigns, and the mort- gagee die before the forfeiture of the mortgage^ whereby the mortgagor has his election at law to pay the money to either, yet in equity it shall belong to the executor; for, in mortgages in fee, the mortgagee's heirs are trustees for his personal re- presentatives (°). In short, mortgages are deemed in equity to be mere chattel interests, and to belong to the executor of the mortgagee, unless his intention to the contrary be declared in express terms by the contract (p), or by his will, or be evi- dently implied by his conduct : As, if he foreclose, or procure a release of the equity of redemption, and obtain actual posses- sion of the premises. So, where a mortgage in fee descended on the heir at law of the mortgagee, and the personal repre- sentative of the mortgagee, ten years after the money had been paid to such heir, filed a bill for the same, it was decreed to him, but without interest (i). Nor shall a legacy to the executor, although expressed to be payable after debts, and the other legacies, affect his title to [186] money due to the testator on mortgage. Thus, where a mortgagee in fee, after bequeathing several legacies, gave one hundred pounds to his executor, with a direction that his legacy should not be paid till the testator's debts and other legacies were discharged, and there was no deficiency of assets, yet the court decreed in favour of the executor against the heir('"). So, if the mortgagor shall fail to redeem, tl)e heir of the mortgagee shall convey the land to the executor : As where the mortgage was forfeited, though the heir of the mortgagee were in posses- sion by descent, and there were no deficiency of assets, on the mortgagor's not offering to redeem, the heir of the mortgagee was decreed to make such conveyance : for since the money, (n) 11 Vin. Abr. 148. and in note. Ba- Litt. 208 b. note 1. ker V. Baker, 2 Freem. 143. See also (p) Off'. Ex. Suppl. 47. Harg. Co. Litt. SP.Wms. 455. 210. (o) Sir Thomas Littkton's Case, 2 ("i) Turner's Case, 2 Ventr. 348. Ventr. 351. Barnard. 50. Rightson (') Canning v. Hicks, 2 Ca. Cha. 18T V. Overton, 2 Freem, 20, Harg. Co. .SCI Vern. 412. ^86 ^^ CHATTELS REAL [bOOK 11. as part of the personal estate, would have gone to the executor, he was held entitled to the land as a recompense ('i). So, where a co])yhold was mortgaged by surrender to A, who was admit- ted tenatit, and died, leaving B his son, and heir, and executor; B entered, and was also admitted, and afterwards by his will, hut without any surrender to the use of the same, devised it to C : on B's death, C became the personal representative of A, and exhibited his bill against D, who was heir at law of A and B, and who claimed this as a real estate on a variety of grounds: that the forfeiture had been so long incurred ; that two descents had been cast; that more was due on the estate than its value j that tlie mortgagor had by his answer refused to redeem ', and [187] submitted to be foreclosed; and that the devise by B to the plaintiff was void at law for want of a surrender to the use of the will : Yet it was decreed to C, as the personal repre- sentative of A, inasmuch as there was no foreclosure, nor re- lease of tlie erjuity of redemption in the lifetime of the mort- gagee ; and on appeal the decree was affirmed (j). If on a mortgage being forfeited, the mortgagor release to the heir of the mortgagee in fee, yet the executor of the mort- gagee shall have the benefit of the estate, although there be no debts. So, in the case of a foreclosure of a mortgage, or that the mortgage be of so ancient a date, as in the ordijiary course of the court it is not redeemable, it shall belong to the personal representative of the mortgagee ; for unless the mortgagee were actually in possession, it shall be considered as personal es- tate ('). So, where a wife had a mortgage in fee of a copyhold, and died leaving issue, and the issue was admitted, and died, and then the husband, as administrator to his wife, claimed the copyhold as a mortgage, and consequently part of the wife's personal estate ; it was decreed to him against the heir at law, although the latter had been admitted (i). So, a mortgage of an inheritance to a citizen of London hath been held to be part of his personal estate, and divisible according to the custom ("). (1) Ellis V. Guavas, 2 Chan. Ca. 50. (') Awdlcy v. Awdley, 2 Vern. 19j. Canning v. Hicks, 187. (') Turner v. Crane, 1 Vern. 170. (0 Tred way v. Fotherley, 2 Vern. 367. („j Thomborough v. Baker, 1 Chan. 1 Eq. Ca, Abr. 273. 328. vid. Awdley ^^ .g^ ^^.^^ ^ Littleton, I Vern. 4. V. Awdley, 2 Vern. 193. CHAP. IV.] WHICH GO TO THE HEIR. 188 [188] But if the possessor of the estate conceive himself to hold it in fee, his interest will not be considered as personal against his evident intention; as if an absolute sale of an estate in mortgage be fraudulently made by the mortgagee to a third person, the purshase money, on its being refunded by the ven- dor after the death of the vendee, will go to his heir ; for the intention of the vendee was to alter the nature of his property, and to invest the money in the purchase of land, and therefore the court will consider it as real property (^). So, if it appear to be the intention of the mortgagee that the mortgage should pass by devise as a real estate, the executor will not be enti- tled (5"). As, where the testator had several mortgages, and among the rest a mortgage in fee of lands in Whiteacre, and devised his mortgages to his two daughters, their executors and administrators, and his lands in Whiter.cre, on which he had entered on forfeiture of the mortgage, to them and their heirs : M, one of the daughters, died without issue ; H, her husband and administrator, claimed a moiety of the lands in Whiteacre as a mortgage not foreclosed, nor of which the equity of redemp- tion was released, and therefore part of his wife's personal es- tate ; but it was held, that although it were a mortgage, as be- tween a mortgagor and mortgagee, and therefore personalty ; yet the testator's intention was, that it should pass to his daugh- ters as a real estate to them and their heirs, and that inasmuch as M was dead without issue, it descended to her sisters as her [189] heirs at law, and that H was entitled to no part of the same in the nature of personal estate (^). But wliere a mort- gage was devised as real estate after a decree of foreclosure nlsif that is, unless cause were shown to the contrary, it was held to be personal estate for payment of debts, if the assets were insufficient, although considered as real estate between the devisor and devisee ("). A mortgage will not pass as land under a general description applicable to it in point of locality, if from other circumstances it be evident that the owner regard- ed it as personal property {^). (x) Cotton V. lies, 1 Vern. 271. (») Garret ■». Evers, Moseley, 564. and (y) Martin t>. Mowlin, 2 Burr. 969. see Silberschildt b. Scliiott, 3 Ves. Sc (') Noys V. Mordant, 2 Vern. 581. S. Bea. 45. C. Gilb. Rep. in Chan. 2. S. C Chan. (b) Martin v. Mowlin, 2 Barr. 9C9. Free, 265. 189 OF CHATTELS REAL [bOOK II. "Where money secured by mortgage, to which the executor was entitled at law, was articled to be laid out in land, and set- tled on the issue of the marriage, on special verdict it was ad- judged to be bound by the articles (•=). And it has been held, that the heir of a mortgagee in fee, if he pay tlie executor the mortgage money, may take the benefit of a foreclosure to him- self («»). If the parson of a church be seised of the advowson in fee, and die, in such case the heir, and not the executor, shall pre- sent ; because at the same time the avoidance rests in the exe- cutor, the inheritance descends to the heir; and where two titles concur in an instant of time, the elder shall be preferred (e). [190] But if A be seised of an advowson in. gross, or in fee appendant to a manor, and an avoidance happen in his lifetime, his executor, and. not his heir, shall present, inasmuch as it was a chattel vested, and severed from the manor (*^). But if the next presentation be granted to A, his heirs and assigns, it is clearly a mere chattel, notwithstanding the word "heirs:" It is but one turn, and where the thing is a chattel, the word ** heirs" cannot make it an inheritance (s). So, if a man grant the two next presentations of a church, they are chattels, and if the grantee die, the executor shall have them, and not the heir {^). If a party having tlie inheritance of tithes die after the tithes are set out, they shall go to his executor, and not to his heir('). The interest denominated the year, day, and waste, which has been already explained C^), is but a chattel; and although granted by the crown to A and his heirs, shall go to his exe- cutors ('). In regard to the estate of a lunatic, the Court of Chancery will change the nature of the property so as to alter the suc- [191] cession, if the interest of the owner, which is solely con- (') Vid. Lechmere v. Earl of Carlisle, '.(?■) 11 Vin. Abr, 173. Br. Chattels, pi. 6. 3 P. Wms. 217. C') 11 Vin. Abr. 173. Br. Chattels, pi. (J) Clarkson v. Bowycr, 2 Vern. 67. 20. (<•) 11 Vin. Abr. 169. 3 Bac. Abr. 61. ('•) Com. Die^. Biens. A. 2. Off. Ex. 60. UoU V. Bishop of Winchester, 3 Lev. 3 Bac. Abr. 64. 47. 3 Salic. 280. S. C. ('0 Vid. supr. 144. (0 11 Vin. Abr. 145. Fitzh. N. B. 33, (') 11 Vin. Abrl 175. Off. Ex. 54. CHAP. IV.] WHICH GO TO THE HEIR. l9l sidered, shall require it. Between the real, and personal re- presentatives of a lunatic, there is no equity. They are both volunteers, and must take what they find at his death in the condition in which they find it. Thus the produce of timber on a lunatic's estate, cut and sold by an order of the court, found- ed on the Master's report that it would be for the benefit of the lunatic, as some of the timber was in a state of decay, and in- juring the rest, was on his death held to be personal assets, and incapable of a transmutation for the benefit of the heir('>^). Charters and deeds, court rolls, and other evidences of the land, as well as the chests in wliich they are usually kept, shall pass with the land to the heir, and shall not go to the executor ("). So, where a bill was filed in chancery for an antique horn, with an ancient inscription, on the ground that it had immemorially gone with the plaintiff's estate, and been delivered to his an- cestors by which to hold the land, the court was of opinion, that if the land were of the tenure called cornage, the heir had a title to this monument of antiquity at law(<'). So, if land be sold by A, on condition, that if the purchase money be not paid by a limited day, then that he shall re-enter*; and A die; here, [192] altiiough there be a debt due to the executor, and no land descended to the heir of A, yet the heir shall have the deeds. Inasmuch as upon him the condition descended (p). But if A deliver a charter to B, to redeliver to him, and his heirs, hav- ing no title to the land, his executor, and not his heir, shall have this charter, because it was only a chattel without the land('i). So, if the writings of an estate are pawned or pledged for money lent, they are considered as chattels in the hands of the creditor, and in case of his decease, they will go to his personal representative, as the party entitled to the benefit accruing from the loan ('). (">) Oxenden v. Lord Compton, 2 Ves. (°) 3 Bac. Abr. 65. Posey r;. Pusey, jun. 69. 75. note b. 4 Bro. Ch. Rep. 1 Vern. 273. Harg. Co. Litt. 107. 231. 397. S. C. vid. ex parte Marchio- /p\ off. Ex. 63. ness of Annandale, Ambl. 81. .^ ,< ,r- ai itt: -c-* u n^*- tc o (^) 11 ^'"- ^"''' l*^' -f^^tzh. Detinue. pi. 7. (n) Off. Ex. 63. 3 Bac. Abr. 65. L. of Test. 381. vid. Atkinson, adm'x. *, Baker, 4 Term Rep. 229, (') ^ Bac. Abr. 65. Noy. Max. 5Q. 192 «^F CHATTELS PERSONAL [bOOK II. Sect. II. Of chattels personal which go to the heir : and herein of heir-looms. With respect to chattels personal, and animate, the heir has a qualified possessory property in deer in a park, hares or rabbits in a warren, doves in a dove-house, pheasants and par- tridges in a mew, swans, though unmarked, in a private moat [193] or pond, or kept in water within a manor, or at large, if marked, and in bees in a hive, or as it has been held by some authorities, though not in a hive, ratione soli, in respect of his ownership in the soil. He is, also, entitled to fish in a private pond or piscary. These various animals shall all go with the inheritance, for without them it is incomplete (a). And such, We may remember, is the property that shall vest in the exe- cutor, if the testator had a lease for years in the land C'). With regard to chattels personal, and vegetable, not only timber trees, as oak, beech, chesnut, walnut, ash, elm, cedar, fir, asp, lime, sycamore, birch, poplar, alder, larch, maple, and horn-beam, but also trees of every other description belonging to the soil, and unless severed during tlie life of the ancestors, are the property of the heir («=). So, likewise, are all species of fruits, if hanging on the tree at the time of his ancestor's death. Grass, also growing, though ready to be mown for hay, shall descend witli the land to the heir; for these are either natural, or permanent profits of the earth ("'). He is also enti- tled to sucli hedges and bushes as are standing at that time (^). [194] But, as I have already stated (f), corn, which is raised by yearly cultivation, shall go to the executor, to compensate for the expense and labour of tilling, manuring, and sowing the (') Harg. Co. Litt. 8. Com. Dig. Biens. - (<:) Com. Dig. Biens. H. 3 Bac. Abr. B. 1 Roll. Abr*. 916. Off. Ex. 53. 11 64. Off. Ex. 59. Swinb. 934, 035. p. 7. Vin. Abr. 166. 2 Burn. Just. 369. 7 s. 10. Co. 15 b. 3 Bac. Abr. 64. 2 Bl. Com. (d) Swlnb. 934, 935. p. 7. s.-lO. '^27. (=)OffEx. 59. 3 Bac. Abr. 64. (b) Harg. Co. Litt. 8. note 10. Vid. ^^.^ ^ if, i^o (*) Supr. 150. sapr. 141. 148. ^ ■' ^ CHAP. IV.] WHICH GO TO THE HEIR. 194 lands, and for the encouragement of husbandry, whicli is of so public a concern (^). The same law, on a similar principle, extends to other em- blements, as hops, saffron, liemp, and the like(^'). It has been asserted by a learned writer ('), that roots of all kinds, such as parsnips, carrots, turnips, and skirrets, shall go to the heir, since they cannot be taken without digging and breaking the earth, which must of necessity be a detriment to tlie inheritance. It seems, however, perfectly clear, that these articles, as requiring an annual cultivation, fall within the like reasoning, which the law has adopted in regard to corn, and consequently shall belong to the executor C^). But things which produce no annual profit arc not compre- hended under the name of emblements ,• tiierefore, although the testator himself hath sown the land with acorns, or planted it with oaks, alders, elms, or otiier trees, they shall not be classed [195] as emblements, but shall belong to the heir(>). So if the testator improved the natural produce, either by trenching, or by sowing hay-seed, such increase shall go to the heir,- for the executors have no property in the natural produce, and in such instances that wliich was artificial cannot be distinguished from it(™). Wall fruit also, though greatly improved by culture, seems to fall within the same principle and to be the property of the heir. But the executor, we iiave seen, is entitled to hops, though growing on ancient roots, for they are produced by manurance and industry ("), Although timber trees originally belong to the soil, yet, if A, seised in fee, sell the timber ti-ecs on iiis land to B, and B die before they are felled, they shall belong to his executor ("). So, if a man sell his land, reserving the timber trees, they remain in him by particular contract, as chattels distinct from the soil, and shall go to his executor. For, in both these cases, in con- (?) Off. Ex. 59. 3 Bac. Abr. 64. (') 2 Bl. Com. 123. Com. Dig. Biens. (h) Ibid. G. 1. Harg. Co. Litt. 55 b. (i) Off Ex. 62, 63. Vid. also Gilb. L. ('") ^""'- ^'^- ^'^"'- ^- ^- ^'^^- ^ "^ ^,f Ev 249 ^^- 249. Harg. Co. Litt. 56. (") Har?. Co. Litt. 55 b. Cro. Car. 515. (") Harg. Co. Litt. 55 h. 2 Bl. Com. :,', ^ , -^ ' ° Vid. supr. 15U. 12 Aa (°) 3 Bac. Abr, 64. Off. Ex. 59, 60. 195 OF HEIK-LOOMS. [bOOK II. struction of law, they arc abstrarteil fi"om the earth, although they are not actually severed by the axe (i*). But, if a tenant in tail sell the timber trees on his soil, such sale will not be effectual without docking the intail, unless they were actually felled in tiie litetime of such tenant, otherwise [196] they will descend with the land to the issue (i). So, if A lease lands for life, or years, excepting the trees, they continue parcel of the inheritance, so long as they are annexed to the land, and descend with it to the heir. So if a feoffment be made excepting the trees, and the feoffee afterwards buy them, they are re-annexed to, and become part of the inheritance {^'). So, where a lessee for years purchased trees growing on land, and had liberty to cut them within eighty years, and he afterwards bought the inheritance of the land, and died ; it was held that the executor should not have the trees, for although they were once chattels, yet by the purchase of the inheritance they were re-united to the land (^). Such personal chattels inanimate, as go to {he heir with the inheritance, and not to the executor, are, for the most part, denominated heir-looms. The termination loom, in the Saxon language, signifies a limb, or member; consequently heir-looms denote limbs or members of the inheritance. They are such things as cannot be taken away without damaging or dismem- bering the freehold. Whatever^ therefore, is strongly affixed to the inheritance, and cannot be severed from it without vio- [197] lence or damage, quod ah ctdibus non facile rexjelliturf is a member of the same, and shall pass to the heir, as chimney- pieces, pumps, tables, and benches, which have been long fixed(t). The law is the same in regard to coppers, leads, pales, posts, rails, window-shutters, windows, whether of glass or otherwise, wainscots, doors, locks, keys, mill-stones fixed to a mill, anvils, and the like. They are annexed to the freehold, and are held to form part of it ("). (p) 3 Bac. Abr. 64. Off. Ex. 60. - (0 2 Bl. Com. 427, 428. Ld. Petre r. (<)) Ibid. Slukeley v. Butler, Hob. 173. Heneage, 12 Mod. 520. 11 Co. 50. („) 4 Burn. Eccl. L. 256. 3 Bac. Abr. (OCom. Dig. Biens. H. 11 Co. SO. go off. Ex. 62. 4 Co. 63, 64. Svvinh * *^o- ^3 b. p 5 s Y. (') 11 Vin. Abr. 168. Ow. 49. CHAP. IV.] OF HEIR-LOOMS. 197 Although pictures and looking-glasses generally go to the executor, as personal chattels, yet it has been held, that if they are put up instead of wainscot, they shall belong to the heir. He has a right to the house entire and undefaced (^). But at so remote a pci-iod as that of Henry the Seventh, it was adjudged, that if tlie lessee annex any chattel to the house for the purposes of his trade, he may disunite it during the continuance of his interest, if he can do so without prejudice to the freehold. And therefore, that if such lessee be a dyer, and erect a furnace in the middle of the floor not affixed to any wall, he, and by consequence his executor, may take it down during the term, if it can be removed without injury to the inheritance; [198] that while the term continues, he is the owner both of the floor and of the furnace, but that if it be not severed while his interest subsists, it goes to the lessor of his heirs, inasmuch as the lessee is not master of both the subjects of alteration (y). In modern times, the doctrine of annexation has, on principles of public policy, been gradually relaxing ; therefore, if things of this species can be removed without injury to the fabric of the house, or the soil of the freehold, they shall, in general, be the property of the executor (z). Thus, modern tables, although fastened to the floor, grates, iron ovens, jacks, clock-cases, in whatever mode annexed to the freehold, have by more recent cases been held to belong to the executor (=>). So also have hangings, tapestry, beds fastened to the ceiling, and iron backs to chimneys C'). So, likewise in favour of trade, brewing ves- sels, vats for dyers, and soap-boilers' coppers. So also fur- naces, though fixed to the freehold, and purchased with the house ('^). It has also been ruled, that a cyder mill erected on the land shall go to the executor, and not to the heir. And in ('<)L. of Test. 380, 381. Cave r-. Cave, ('') 4 Burn. Eccl. L. 256. 259. L. of 2 Vern. 508. Ni. Pri. 34. Harvey v. Harvey, 2 Str. (y) 3 Bac. Abr. 63. Keilvv. 88. Ow. 1141. Ex parte Quincy, 1 Atk. 477. 70, 71. Off. Ex. 60, 61. Ex parte Quin- Beck v. Kebow, 1 V. Wms. 94. cy, 1 Atk. 477. Poole's Case, Salk. / ^ „ i > r. o,iu "rq t ^e -kt •" „ ' (O Poole s Case, Salk. ooa. L. oi Ni, 368. L. of Test. 380. ,/. ..,, ^, ' . . .,, __ Pn. 34. Ex parte Quincy, 1 Atk. 477. (^) 3 Bac. Abr. 68. in note. Ld. Dud- , ^ ^ ^ oa41i/iic-h l^ , , . ,, ,„ Lawton *. Lawton, 3 Atk. 14. 16. 11 ley V. Ld. Warde, Ambl. 113. Harvey ^..,^ ^^^ jg^ 1^2 g^,^;^^ ^ ^^^^^^^ V. Harvey, 2 Str. 1141. ^Freeni. 249. Harg.Co.Litt.53.note5. (-) 4 Burn, Eccl. L. 257- 198 OF IlEIR-LOOMS. [bOOK II. a case where tlie litigating parties were the executor of the [199] tenant for life, and the remainrler-man, the Lord Chan- cellor seemed to be of opinion that a fire-engine set up for the benefit of a colliery, as between heir and executor, might in some instances be considered as personal property (''). Such latitude encourages improvements, and is beneficial to trade. But if the subject be not capable of removal without injury to the freehold ; as, if a furnace is so affixed to the wall of a house as to be essential to its support, it siiall not be taken away by the executor (f). The ancient jewels of tlie crown are also held to be heir-looms, for they arc necessary to maintain the state, and to support the dignity of the existing sovereign C). So also the collar of S. S. is an iieir-loom, and shall go to the heir(J?). There are also other personal chattels, which descend to the heir in the nature of heir-looms; as ancient portraits of former owners of the mansion, though not fastened to the walls, a iiio- nument or tombstone in a church, or the coat armour of his an- cestor there hung up, with the pennons and other ensigns of honours suited to his degi'ee(''). And the court will order an inspection of articles claimed by the plaintiff as heir-looms, in a chest at tlie bankers of t!ie defendant, who insists by his an- swer that he has a lien on the contents of the chest ('). Pews [200] also in a church may immemorially descend from the ancestor to the heir, as appurtenant to his house C*). By the special custom of some jdaces, carriages, and also various articles of houschohl furniture and implements, may be heir-looms. But such custom must be strictly proved ('). On the other hand, a granary built on pillars in Ham])shire is by custom a ciiattel, and belongs to the executor ("'). C) Lord Hardwicke in Lawton v. (■') 2 Bl. Com. 429. Harg. Co. Lilt. Lawton, 3 Atk. 15. See alsoElwes v. 18 b. Maw, 3 East. T. Rep, 38. • (i) Earl of Macclesfield v, Davis, 3 («) Off. Ex. Gl. 4 Burn. Eccl. L. 256. Ves. & Bea. 16. 11 Vin. Abr. 166. /ks g uj gom. 529. 12 Co. 105. (0 2 Bl.Com. 428. Harg. Co. Lltt. n lu* iqk ^' (') Ibid. 428. Harg. Co. Lltt. 18 b. (0-11 Vin. Abr. U,7. 0*v. 124. ''") ^1 ^'i"- Abr. 154. CHAP. IV.] OF HEIR- LOOMS. 200 The heir is likewise entitled to otlier personal chattels inani- mate, to which this appellation of heir-looms does not belong. An annuity, although only a chattel interest, is, as we have seen (»), descendible to the heir (°). So, a grant from the crown of one thousand pounds per annum out of the four and a half per cent. Barbadoes duty, with collateral security out of other revenue, although a mere personal chattel, having no relation to lands or tenements, nor partaking of the nature of a rent, was adjudged to the heir(p). But such an annuity is personal property, and will pass under a will attested by two witnesses, by a residuary clause, bequeathing all the rest, residue and remainder of the personal estate to the executor (q). So where A on his marriage settled land on himself and his wife, and the issue of the marriage, with remainder over, and assigned to trustees bankers assignments established by act of parlia- ment, and made a perpetual annuity redeemable by parliament, and directed to go as personal estate, and limited the profits thereof to the same person as by the settlement would be enti- tled to the land, and if the annnities should be redeemed by parliament, the money should be invested in the land, to be set- tled to the same uses, and A died ; it was decreed that these annuities being thus redeemable were to be considered as money directed to be laid out in lands, and to be as real estate, which after the wife^s death should go to the settler's heir ('). On the other hand, a perpetual annuity of 4,000L issuing out of the revenue of the post-office, but redeemable upon payment of 100,000/. when the state of affairs would permit, which sum, when paid, was to be laid out in the pure base of lands to be settled in manner there mentioned, was not considered as money to be laid out in land, but merely as a perpetual annuity, inas- much as there was no certainty of the redemption {'). Where a copyhold tenement was burnt down, and money collected on briefs for rebuilding it was lodged in the hands of (") Vid. supr. 178. Stafford v. Buckley, 2 Ves. 170. {') 11 Vin. Abr. 153. Argdo. Roper (i) Aubin v. Daly, 4 Barn. & Aid. 59. V. Radcliffe, 10 Mod. 237. vid. also (0 Disher v. Disher, 1 P. Wms. 204, 11 Vin. Abr. 146. pi. 25. Dr. & Stud. (») Countess of Holderness v. Marquis 90. of Carmarthen, 1 Bro. C. Rep. 37T. (p)Com. Dig. Biens. A. 2. Earl of and 1 P. Wms. 206. in note. S. C. 201 OF CHATTELS [bOOK II. [201] a guardian of the tenant in tail, who died under age; it was hold that the money should go to his heir, hoth because of the intail, and because it was copyhold; hut that allowance should be made to his personal representative for the amount of the interest of the money from the time it was so lodged to the death of the infant ('). If A recover land and damages, or a deed relative to land and damages, and die hefore execution, his heir shall have exe- cution for the land or deed, and the executor for the damages ('). Sect. III. Of chattels which go in succession. Chattbi-s given to a corporation aggregate, as the dean and chapter of a cathedral church, the mayor and commonalty of a city, the head and fellows of a college, shall go in succes- sion ; hut in case of a sole corporation, whether created hy charter or prescription, as a bishop, parson, vicar, master of a hospital, and the like, chattels real and personal in possession, and in action, belong to their respective executors. Such pro- [202] perty shall no more go to their successors than it shall go to an heir ; for succession in a body politic is inheritance in case of a private person ('^). So, if the chattel be granted to such sole corporation and his successors : As, if a term for years be granted to a bishop and his successors, his executors shall have it ('>). So if an obligation or other specialty be executed to him and his successors, he can take it only as a private in- dividual, and not in his corporate capacity ('^). But by custom a corporation sole may take goods and chat- tels in succession, as in London, where the chamberlain is a (') Com. Dig. Biens. B. Rook v. (=>) Com. Dig. Biens. C. Franchises F. AVarth, 1 Ves. 460. 16. 4 Co. 65. Haig. Co. Litt. 9 a. (') 11 Vin. Abr. 145. 169. Beamond (b) i RqU. Abr. 515. V. Long, Co. Car. 227. Off. Ex. 93. ^.^ ^ ^o. 65. Dy. 48 a. 2 Bl. Com. Com. Dig. Execution, E. X Roll. Abr. .r,Q ^^i 889. "^ ' CHAP. IV.] WHICH GO TO A DEVISEE, 202 Special corporation for taking bonds for orphanage-money. And such custom has been frequently adjudged good {^). Also in some instances, particularly of chattels in action, the law is the same without a custom («). As if the president of the col- lege of physicians recover in debt against a party for practising without a license, his successor, and not his executor, shall have a scire facias on the judgment, for the debt was recovered as due to him and the college (f). So, if the master of an hospital recover in that character the [203] arrears of an annuity due to the hospital, and die, ther go to his successor, and not to his executor (^). Sect. IV. Of chattels which go to a devisee or remainder-man : and herein of emblements f and heir-looms. A DEVISEE of the lands is entitled to all those chattel inter- ests which have been stated to belong to the heir (f) ; and in one respect he has an advantage to which the heir is not enti- tled. Such devisee, and not the executor of the devisor, shall have the emblements. Thus it has been held, that if A, seised in fee of land, m\\, and devise it to B for life, remainder to C in fee, and die before severance, B shall have the emblements, and not the executor of A : Or that if B die before severance, his executor shall not have them, but they shall go to him in remainder : Or that if the devise be only to B, and B die before severance, there his executor shall have them, though B did not sow. These points were so adjudged on the principle, that the devisee, in relation to the chattels belonging to the lands, stands in the place of the executor by the express terms of the [204] will (!>). This distinction, however, seems not very rea- {^) Harg. Co. Litt. 9 a. note 1. 4 Co. (f) 1 Roll. Abr. 515. 64 b. Wilford, Chamberlain of Lon- (g) Ibid. don, Cro. Eliz. 464. 682. (^) 2 Bl. Com. 428. («) Harg. Co. Litt. 9 a. note 1. 11 Vin. (•') Winch. 51. Gilb. L. of Ev. 248. Abr. tit. Corporation L. Vid. Grantham v. Hawley, Hob. 152. 204 OF CHATTELS WHICH GO [boOK II. sonable (') : It appears strange, that the corn should pass to tlic devisee as appurtenant to the soil, and yet shall not descend to the heir. But a devisee of the goods, stock, and moveables, is, it seems, entitled to growing corn in preference both to the devisee of the land and the executor (•'). In respect of the rights of the executor of tenant for life, as t)pposed to those of the remainder-man, it is a general rule, that where a party hath an uncertain interest in land, and his estate determines, yet he. hath a title to tlie corn that is sown, and the other emblements on the land, though the property of the soil be altered (e) With the view of giving all possible encouragement to agriculture, the law has created a property in the emblements distinct and separate from that of the soil, and has provided that such property shall be at the entire dis- posal of the owner, that he may not decline cultivation, lest the harvest should be reaped by a stranger. Moreover, the tenant who has sown has acquired a property in the corn by his ex- ])ense and labour. It was his own in its original state, and be- fore it was committed to the earth ; and his property shall not be divested by its being sown on his own ground, and the less, on account of the skill and industry he has employed in rais- ing it (f). [205] On these principles the doctrine of emblements in re- spect to the executor of tenant for life is founded. Therefore, if such tenant sow the land, and die before severance, inasmuch as his estate was uncertain, and determined by the act of God, his executor shall have the corn, and he may take it from off the ground of the remainder-man (e). So it has been held, that at common law, on the death of tenant in dower, her executor was entitled to the corn ; and that the statute of Merton (•'), which gives her the power of devising it, was passed only in affirmance of the common law('). If A seised in fee of land sow, and then convey it to B, and (<:) Harg. Co. Litt. 55 b. note 2. («) Id. 242. Harg. Co. Litt. 55 b. 5 (<') Winch. 51. Cox v. Godsalve, Holt's Co. 116. Roll. Abr. 726, 727. MSS. 157. L. of Ni. Pri. 34. Swinb. (i.) 20 H. 3. c. 2. 933, 934. p. 7. s. 10. (i) q'h, j^ ^f ^y 245. Harg. Co. Litt. (^) Gilb. L. of Ev. 240. 55 j^ (f) Id. 241. CHAP. IV.] TO THE REMAINDER-MAN. 205 die before severance, the corn shall belong to B, and not to the executors of A ; on the principle, that every man's donation is to be taken most strongly against him ; and therefore, it shall pass not only the land itself, but also the chattels which are incidental to it {^), If A seised in fee of land sow, and then convey it to B for life, with remainder to C for life, and B die before the corn is reaped, C shall have it, and not the executors of B, for B had no property in the corn arising from his own charge and industry, but merely by A's donation of the land, to which the corn is appurtenant ,• and by force of the same [206] donation, by which B had a right to the corn, C is enti- tled to it after the death of B (»). If A seised in fee sow land, and give it to B for life, remain- der to C for life, and they both die before severance, it shall go to A ; for when the force of the donation is spent, the property shall result to the donor (™). If a disseisor of tenant for life sow the land, and such tenant die before severance, his execu- tor, and neither the disseisor nor the reversioner, shall have the corn ("). But trees shall not be regarded in favour of the executor of the tenant for life, any more than of any other exe- cutor, as emblements, or as distinct from the soil ; for they are parcel of the inheritance, and are planted for the benefit of fu- ture generations (o). Therefore, if such tenant plant oaks, or other timber trees, or trees not timber, or hedges, or bushes, they shall not go to his executor, but to him in remainder (p). If, as we have seen, the tenant in fee make a lease excepting the trees, and afterwards grant the trees to the lessee, they are not re-annexed to the inheritance, but the lessee has an absolute property in them, and they shall go to his executor (^i). But if tenant by the curtesy, or in dower, or after possibility [207] of issue extinct, cut down trees, they shall not go to the executor, but to the remainder-man, or reversioner (' ). So, if (X) Gilb. L.of Ev. 247- 123. Co. Litt. 55 b. (') Gilb. L.of Ev. 247. Grantham v. (p) Gilb. L. of Ev. 249. Com. Dig. Ilawley, Hob. 132. Roll. Abr. 727. Biens. G. 1. II. Harg. Co. Litt. 55 h. (") Gilb. L. of Ev. 248. Grantham v. Lat. 270. Hawley, Hob. 132. (<)) Com. Dig. Biens. H. 4 Co. 63 b. (") 2 Bac. Abr. 64. Goulds. 143. (') Com. Dig. Biens. H. 4 Co. 63. U (°) Gilb. L. of Ev. 242. 2 Bl. Com. Co. 82. Bb 207 OF CHATTELS WHICH GO [bOOK II. A, tenant for life, with remainder to B for life, cut down trees, they shall belong to him in reversion {'). Yet, if there be a lessee for life, or years, without impeach- ment of waste, he has such an interest and property in timber trees, that, in case they are cut down in his lifetime, or during the term, they shall belong to his executor (»). If the trees are thrown down by tempest in the lifetime of such lessee, or during the term, they shall go to his executor, and vest equally as if they had been severed by the act of the party ("). But a lessee, though without impeachment of waste, has not an absolute property in the trees ; for if they are not cut down in his lifetime, or during the term, his executor shall not have them, but they shall go to the lessor, as annexed to the freehold (^). So, if A, tenant for life, without impeachment of waste, with power to cut trees, and to make leases for three lives, lease for three lives, excepting the trees, and die before they are cut, the trees are re-annexed, and shall not be severed by his executor ("). [208] A tenant pur autre vie is considered by the law, in regard to emblements, in the same light as a tenant for his own life : and therefore if a man be tenant for the life of another, and the cestui que vie die after the corn be sown, the tenant pur autre vie, and in case of his death, his executor, shall have the emblements (>'). The advantages of emblements are also extended to the pa- rochial clergy, by the stat. 28 H. 8. c. U. (-). [1] (») Com. Dig. Biens. H. Al. 81. (") Lat. 163. (') Com. Dig-. Biens. H. Harg.Co. Litt. (y) 2 Bl. Com. 123. 220. Moore, 327. 11 Co. 82 b. ^^^ ^ gj ^^^ J23. vid. 1 Roll. Abr. ('■) 11 Co. 84. 1 Roll. Rep. 183. g-^ (w) 1 Roll. Rep. 182. Lat. 270. ri] The following provisions have been made with regard to emblements, in the states of Rhode Island, South Carolina, and Kentucky. If the decedent die after the first day of March, the emblements severed before the thirty-first of December next following are assets in the hands of the executor or administrator; but such as are growing upon the lands on the last day, or at the time of the death of the testator or intestate, if that event happen after the thirty -first day of December and before the first day of March, pass with the land to the heir, devisee, or tenant in reversion or remainder. CHAP. IV.] TO THE REMAINDER-MAN. 208 The lessees of tenants for life, at common law, on the death of the lessors, exercised the unreasonable privilege of quitting the premises, and paying rent to nobody for the occupation of the land subsequent to the last quarter-day, or other day as- signed for the payment of rent : For the representative of the tenant for life could maintain no action for the use and occupa- tion, much less in case there were a lease; nor had the remain- der-man such a right, because the rent had not accrued due in his time (a). Nor could equity relieve, by apportioning it (^). To remedy which hardship it is now enacted by stat. 11 Geo. 2. c. 19. § 15. that the executors of tenant for life, on whose death any lease determined, shall, in an action on the case, recover [209] of the lessee a rateable proportion of rent from the last day of payment to the death of such lessor. The provisions of this statute have, by an equitable construc- tion, been extended also to the case of tenants in tail, where leases are determined by their deaths (<=). Equity, however, will not in general apportion dividends of stock {^) ; but where the money is laid out in a mortgage till a purchase can be made, the interest is capable of being appor- tioned (e), and the distinction seems to turn on tliis point, that the interest on a mortgage is in fact due from day to day, and, therefore, not properly an apportionment ; whereas the divi- dends accruing from the public funds are made payable on cer- tain days, and, consequently, cannot be apportioned ('). On the principle of this distinction, dividends of money directed to be laid out in land, and in the meantime to be invested in go- vernment securities, and the interest and dividends to be appli- ed as the rents and profits would in case it were laid out in [210] land, were held not to be apportionable, though the tenant (a) 2 Bl. Com. 124. 1 Fonbl. 2d edit. v. Vernon, 2 Bro. Ch. Rep. 659. 384. Jenner v. Morg-an, 1 P. Wms. (d) Rashleigh v. Master, 3 Bro. Ch. 392. Paget v. Gee, Ambl. 199. jjep, 99 (b) Jenner v. Morgan, 1 P. Wms. 392. (=) Edwards v. Countess of Warwick, Hay V. Palmer, 2 P. Wms 502. sed 2 P. Wms. 176- vid. Anon. B\inh. 294. (f) i Fonbl. 2d edit. 385. Hay v. Pal- (^) Paget V. Gee, Ambl. 198. Vernon mer, 2 P. Wms. 5Q1 and 503, note 1* 210 OF CHATTELS WHICH GO [bOOK II. for life died in the middle of the half year (s). And the decision was the same, where the money had been originally secured by mortgage, but by order of the court had been transferred on government securities (''). But where, by a marriage settlement, maintenance for daugh- ters was made payable half-yearly at Lady-day and Michael- mas, and to continue until their portions should become payable, namely, at their age of eighteen, or marriage, the portions and maintenance to be raised out of the rents and profits of the es- tate, or by sale, mortgage, or lease of the premises, and one of the daughters attained the age of eighteen on the I6th of August, she was decreed to have maintenance pro rata from the last Lady-day to the time of her attaining that age. On the ground that the general intention of the settlement was clear, that maintenance should be paid during the whole interval of time from the commencement of the term till the portion should be- come due, that is to say, half-yearly on the days above speci- fied in every instance where it could happen, and where that could not be, it was a case not directly provided for by the set- tlement, as to the time of payment, but within the general pro- vision of the maintenance itself, which was expressed to conti- nue till the portions should become payable ('). And even dividends of money in the funds, directed to be applied to the maintenance of an infant, or secured by the hus- band as a separate provision for his wife, would perhaps be apportioned in equity ; inasmuch as it would be diflScult for them to find credit for necessaries, if the payment depended on their living to the end of the quarter Q"). And on this principle, an apportionment of an annuity, being for the separate main- tenance of a feme covert, has been allowed at law ('). Yet if the quarterly payments were originally prospective payments, by way of maintenance for the ensuing quarter, and not payable at the end of each quarter, in order to discharge the expenses (g) Com. Dig. Chancery (4. N. 5.) (') Hay v. Palmer, 2 P. Wms. 501. Sherrard v. Sherrard, 3 Atk. 502. (k) yid. 1 Fonbl. 2d edit. 386. and 2 Wilson V. Harman, Ambl. 279. S. C. 3]. Kgp. 1017. 2 Vez. 672. sed vid. 3 Vin. Abr. 18. ^.^ j^^^^^^j ^ Uanforth, 2 Bl. Rep. pi. 3. C) Pearly 7;. Smith, 3 Atk. 260, 1016. CHAP. IV.] TO THE BEMAINDER-MAN. 210 incurred in the three preceding months, that circumstance might make a difference ('"). If a lessee for life of a manor seize an estray, and die before the year and day are elapsed, it shall belong to his executor ("). [211] In regard to heir-looms, I have already stated, that the strictness of the ancient rule has in later time been relaxed, as between the executor and the heir(°). But it has been still more so as between the executors of tenant for life, or in tail, and the reversioner (p). Hence, it has been adjudged, that a fire-engine set up for the benefit of a colliery by tenant for life, or in tail, shall be con- sidered as his personal estate, and shall go to his executor, and not to the remainder-man. And indeed reasons of public con- venience operate more strongly as between such parties, than even as between heir and executor. A tenant for life would be discouraged from making improvements, if the benefits of them might devolve, not on his personal representatives, but on a remote remainder-man, perhaps the next day after the improve- ments w^ere effected (i). (") Per de Grey, C. J. 2 Bl. Rep. 1017. (?) L. of Ni. PrI. 34. (") 11 Vin. Abr. 145. Moore, 11. (i) Lawton v. Lawlon, 3 Atk. 13. Lord (") Supr. 198. Dudley v. Lord Warde, Ambl. 198. [• 212 ] CHAP. y. OF THE CHATTELS WHICH GO TO THE WIDOW. Sect. I. Of the chattels real which go to the widow : and herein also, of such chattels real as belong to the surviving husband. In contemplation of law, a complete unity of person subsists between the husband and wife. As long as the relation conti- nues, they are regarded as one individual. The very existence of the wife is suspended during the coverture, or entirely merged, or incorporated in that of the husband. On this prin- ciple, whatever personal property belonged to her when sole, is vested in the husband by the marriage (^). And, first, in regard to chattels real : Some are in the nature of a present vested interest, in others she has only an interest possible, or contingent. Of the first class are leases for years, estates by statute-merchant, statute-staple, or elegit, or any other chattel real in her possession. The second class is dis- tinguished into such as are called possibilities, and such as are [213] denominated contingent interests; as, if a term of years be devised to A for life, and after A's death to B, B's interest in the residue of the term operates by way of executory devise, and is styled a possibility. But, if a real estate be limited to A for life, and after the decease of A, and if B die in A's lifetime, to C for a term of years, this operates not as an executory de- vise, but as a remainder, and therefore is considered as a con- tingent interest (^). In the chattels real of the wife, present and vested, an inter- est of the nature of the joint-tenancy of the husband and wMfe is created by the marriage, and is a consequence of their legal unity, but subject to alienatipn by the husband in his lifetime ("=) ; (») 2 Bl. Com. 433. Com. Dig. Baron (•>) Harg. Co. Litt. 351. note 1. & Feme, D. 1. (<=) Plowd. 418. 2 Bl. Com. 435. CHAP, v.] OP CHATTELS REAL, &C. 213 for example, in case of a lease for years, he shall, during the coverture, receive the rents and profits of it ; but if he does nothing more, on his dying before his wife, it shall survive to her, and shall not go to his executor j but he may during the covei'ture alienate it, eitlier directly or consequentially, by such acts as shall induce an alienation. He may sell, surrender, or dispose of it in his lifetime at his pleasure. On his attainder or outlawry, it shall be forfeited to the king, or it may be taken in execution for his debts (•'). He has also during coverture a right to assign such possible [214] and contingent interests as have been just mentioned, unless, perliaps, in those cases where the possibility or contin- gency is of such a nature that it cannot happen during his life. As where a lease is granted to the husband and wife for their lives, with remainder to the executors of the survivor («). Or unless, in equity at least, tlie future or executory interest in a term, or other chattel, were provided for the wife with the con- sent of the husband before marriage, for in that case his dispo- sition of it would be a breach of his own agreement (f). If the husband dispose not of the chattels real of the wife in his lifetime, and die before her, they shall not pass by his will, nor shall they go to his executor ; for, not having altered the property in his lifetime, they were never transferred from the wife ; but after his death, she shall remain in her ancient pos- session (s). But, if the husband grant the term, or condition that the grantee shall pay a sum of money to his executors, though the condition be broken, and the executors enter, this is a disposi- tion of the term, and the wife is barred of it, for the whole interest was passed away (''). [215] If the husband and wife be ejected of the term, and the husband bring an ejectment in his own name only, and recover, this also is an alteration of tlie term, and vests it in the hus- band (') ; for his suing alone is expressive of his intention to (^) 2 Bl. Com. 434. Harg. Co. Litt. (g) 2 Bl. Com. 434. Plowd. 418. 46 b. Plowd. 263. (h) Com. Dig. Baron and Feme. E. 2. («) 10 Co, 51. Uarg. Co. Litt. 46 b. Harg. Co. Litt. 46 b. Com. Dig. Baron and Feme, E. 2. (') 1 Roll. Rep. 359. Harg. Co. Litt, (f) Harg. Co. Litt. 351. note 1. 46 b. sed vid. note 6. ibid. 215 OF CHATTELS REAL [boOKL U. divest the wife of her interest, and to treat the term as exclu- sively his own. If he submit the term to the arbitration of A, who awards it to B, it will be a disposition by the husband against the wife (''). So, the husband may make a lease of the term to commence after his death, and it shall be good, although the wife sur- vive (i); but he cannot charge such chattel real beyond the coverture ; as, if he grant a rent-charge out of the term, and the wife survive, she shall avoid the charge, for by her survi- vorship she is remitted to the term, of which the coverture did not divest her(f»). Nor if there be judgment against him, can execution he sued out after his death against the term (°) ; nor shall it after his death be extended on a statute or recognizance acknowledged by him (°) ; nor, as it seems, for a debt due from him to the king (i'). [216] Nor, has his disposition of part of the term the effect of a disposition of the whole. As, if A be possessed of a term for forty years, in right of his wife, and grant a lease for twenty years, reserving a rent, and die ; although the executors of the husband shall have the rent, for it was not incident to the re- version, inasmuch as the wife was not party to the lease, yet she shall have the residue of the term (i). If the term be ex- tended, the wife shall have the term after the extent is satis- fied ('■). If the husband and wife mortgage the term, and the husband pay the money, and enter and die, the wife shall have it ('). If the wife and her husband were joint tenants of a rent- charge for their lives, the wife, in case she survive, shall have the arrears incurred during the coverture ('). If the husband and wife make a lease reserving rent, and she assent after the death of the husband, she shall have the arrears incurred in his lifetime (")• O^' Jf the husband be entitled to an advowson (><) Dyer, 183. i"^) Harg-. Co. Litt. 46 b. (1) Grute V. Locroft, Cro. Eliz. 287. (r) i Roll. Abr. 344. l'"P*^- 5- (s) Ibid. ("') Harjr. Co. Litt. 351. Plowd. 418. n) 1 Roll. Abr. 344. 346. (') ^ «•»"• ^^'- ^^O- Dembyn v. Bro.vn, Jo) 1 Roll. Abr. 346. Moore. 887. (p) 2 Roll. Abr. 157. 1 Roll. Abr. 346. (°) Ibid. 350. CHAP, v.] WHICH GO TO THE WIDOW. 216 in right of his wife, and after an avoidance, but before presen- tation, die, his wife, and not his executors, shall present (*). In case the wife die before the husband, all the chattels real of the wife, in which there exists a present, actual, and vested interest, become absolutely and entirely his own by survivor- [217] ship (^), and that without taking out administration to her(y). To entitle himself to her chattels real, which are not so vested, he must make himself her representative, by becom- ing her administrator. It seems formerly to have been doubted, whether, if, having survived his wife, he died during the sus- pense of the contingency on which any part of his wife's pro- perty depended, his representative, or his wife's next of kin, had a right to the benefit of it ; but by a series of authorities it is now settled, that the husband's representative is beneficially entitled as well to this species of the wife's property (^), as to any other, which devolved to him either as survivor, or by vir- tue of the grant of administration. And although the husband's right to such grant be personal only, and not transmissible, and, as I have before stated (»), the spiritual court be in such case obliged by the stat. 31 E. 3. to commit administration to the next of kin of the wife, yet such grantee is regarded in equity as a mere trustee for the representative of the husband (>»). If the tenant in dower grant a lease for years, and marry, and die, the husband shall have the rent in arrear in his wife's lifetime ('). And by the stat. 32 Hen. 8. c. 37. arrears of rent due as well before as after coverture to the wife seised in fee, in tail, or for life, are on her death given to the husband. If [218] the husband be entitled to an advowson in right of his wife, and he survive, he shall have an avoidance which happen- ed during the coverture ('*). If a wife were possessed at her marriage of a trust term to her separate use, the surviving (w) Com. Dig. Baron and Feme, E. 3. C^) Supr. 116. Co. Liu. 351. (b) sed vid. Harg. Co. Litt. 351. note (") Co. Litt. 300. Com. Dig. Baron and i. i Harg. Law Tr. 475. in note. Feme, E. 2. ,,. ,, » ' ("=) Moore, 7. (y) Com. Dig. Baron and Feme, E, 2 Roll. Abr. 345. C) C'^'"- ^'^- ^*'°" ^"^ ^^"'^» ^ ^^ (^) Harg. Co. Litt. 351. note 1. ^'^'S- Co- Litt. 351. Co 218 OF CHATTELS REAL []bOOK II. husband shall be entitled to it, except in special cases (e); as if, before marriage, it were settled on ber with the assent of the husband (f). If the husband and wife mortgage a term of the wife, and the husband survive, he shall have the equity of re- demption (s). If the husband sow the land of which he is seised in right of his wife, and she die, he shall have the profits ('^). Or if he die before the wife and before severance, his executors shall be en- titled to them ; but it seems, that in the event of his so dying, if the lands were sown before the marriage, the wife shall have the profits, and not the executors of the husband : for the corn committed to tlie ground belongs to the freehold, and is not transferred to the husband ; and, therefore, as it was undisposed of in his lifetime, it devolves to the wife (i). So, if A, seised in fee, sow copyhold lands and surrender them to the use of his wife, and die before severance, it seems that the wife shall have [219] the corn, and not the executors of the husband; for this is a disposition of the corn, as appurtenant to the land, and since the husband disposed of it during his life, it cannot belong to his executors (t). But, if the husband and wife be joint tenants, and the husband sow the land, and die, it seems the corn shall go to the executor of the husband, for the land is not cultivated by a joint stock, the corn is altogether the property of the husband, and it shall not be lost by being committed to their joint possession, any more than if it had been sown in the land of the wife only(»). [1] (e) Com, Dig. Baron and Feme, E. 2. (h) Gilb.L.of Ev. 245. Harg. Co. Lilt. 1 Fonbl. 98 Sir Edward Turner's 55 b. Case, 1 Vern. 7. Pitt v. Hunt, ib. 18. (i) cilb. L. of Ev. 246. Harg. Co. Litt. Tudor V. Samayne, 2 Vern. 270. Jew- 55 b. note 5. Roll. Abr. 727. son V. Moulson, 2 Atk. 421. Sed vid. p. j^^j^ ^j^^. ^27. Countess Strathmore v. Bowes, 2 Bro. ^^^ ^.^^^ ^ ^^ ^^ ^^^ ^^^^ ^^^ ^2^_ Chan. Rep. 345. Sed vid. Harg. Co. Litt. 55 b. et note rn Com. Dit?. Chan. 2 M.9./Harg.Co. " *> '' ^ , ° 7. Vm. Abr. tit. Emblements, pi. 16. Lilt. 351. note 1- ' com. Dig. Biens. G. 2. L. of Test. 380. (g) Young V. Radford, Hob. 3. ri] The general rule is, that the choses in action of the wife survives to her unless the husband had reduced them into possession, or assigned or released them, during the coverture. And the rule is the same, where the husband and CHAP, v.] WHICH GO TO THE WIDOW. 219 Sect. II. Of the chattels personal which go to the widow : and herein, of siich personal chattels of the wife as go to the surviving husband. Chattels personal, or choses in action, as debts on bond, simple contracts, and tbe like, do not vest in the husband, until he receives, or recovers them at law. When he has thus re- duced them into possession, they become absolutely his own, and at his death, shall go to his representatives, or as he shall [2£0] appoint by his will, and shall not revest in his wife (»). In respect to such choses in action as vested in the wife before her marriage, the husband must sue jointly with her to recover (>) 2 Bl. Com. 434. Harg. Co. Litt. 351. wife jointly become entitled to a chose m actio?! during' coverture. Lcd^e v. Hamilton, 2 Serg. & R. 493. Therefore, a recognizance taken in the Orphan's Court, for the wife's share of land, in the name of husband and v/lfe, in rig-ht of the wife, and not reduced into possession or disposed of by the husband, survives on his death to the wife, although the husband may have died indebt- ed. Ibid. And a divorce d vinculo for the adultery of the wife, makes no alter- ation in the right of the wife, if the husband does no act after the divorce to affect it. Ibid. And this right is good against his creditors, unless he stood in the light of a purchaser of her property in consequence of marriage articles, or some agreement made on a valuable consideration. Ibid. A husband may extinguish a wife's choses in action by a release, and he may in equity assign away a possibility to which she is entitled, so faras, that a Court of equity will decree a specific performance when the right vesis, if the assignment were made for a valuable consideration. Kr%imbhuav v. Bxirt SJ al. C.C. 3d Circuit, Oct. 1808. MS. Reports Wharton's Digest, 297. A legacy to the wife of a bankrupt is a mere possibility, which did not pass to the assignees of the husband under the Act of 1800. Ibid. It seems that where husband makes a lease of wife's land, the wife noi being party to the lease, it is void as to her; and acceptance of renr, or other act of the wife, after the death of the husband, will not confirm it. Jackson, Campbell 6 al. V. Holloioay, 7 Johns. Rep. 81. If choses in action be not reduced into the possession of the husband during the coverture, they remain the property of the wife, on the dissolution of the marriage, either by death of the husband or by divorce c) vinculo. Legg v. Legg, 7 Mass. Rep. 99. 220 OF CHATTELS PEKSONAL [bOOK II. them ('•)• As to such of the wife's choses in action, as accrued subsequent to the coverture, he may sue either in their joint names, or alone, at his pleasure («=). If he join her in action and recover judgment, and die, the judgment will survive to her on the principle, that although his bringing the action in his own name alone be a disagreement to the wife's interest, and indicate his intention that it shall not survive to her : Yet if he bring an action in the joint names of himself and his wife, the judgment is, that they both shall re- cover, and therefore such action docs not alter the property, nor imply an intention on his part to do so, and, consequently, the surviving wife, and not the representative of the husband, is entitled to a scire facias on the judgment {^). Indeed it has been asserted by a great authority, that, even in the case of the husband's suing alone for the wife's debt and [221] his dying before execution, his wife, and not his execu- tors, shall be thus entitled (^). Such chattels shall, a fortiori, survive to her, if the husband die before he has proceeded to reduce them into possession (f). Hence a portion due to an orphan in the hands of the chamber- lain of London, unless it be recovered, or received by the hus- band, shall, on his death, go to his wife, and not to his execu- tor, for it is clearly a chose in action (s). So before the stat. 5 Geo, 2. c. 30. s. 25. where the debtor to the wife became bank- rupt, and the husband claimed the debt and paid the contribution- money, and died before any dividend, his wife, and not his executor, was held entitled to the debt, for by such payment the property was not altered (^). So if an estray come into the wife's franchise, in case the husband die without seizing it, his wife, and not his executors, are entitled to the seizure. In all (^) Com. Dig. Baron and Feme, V. 1 (d) Com. Dig. Baron and Feme, "V. Roll. Abr. 34r. Ow. 82. Woodward Harg. Co. Litt. 351. note 1. V. Parry, Cro. Eliz. 537. Garforth v. (=) Bond v. Simmons, 3 Atk. 21. Bradley, 2 Ves. 676. 1 Sid. 25. (0 2 Bl. Com. 434. Harg. Co. Litt. 351 (') Blackborn v. Greaves, 2 Lev. 107. , , ' T^• t. i t^ h- - TT n M ■ "? L 40"^ Al 36 ^^) ^^' ^'*''^" ^"^ Feme, E. 3. ' „ T^ ,,r ItnT Pheasant ■«. Pheasant, 2 Ventr. 341. vTm-:.^ '^ Tt!!' S.C. Ca.Ch.l82. Vid. Mitch mson i;. Hewson, 71erm ,.. „ ,^ t, <^ ^ „,„ O") Com. Ditr. Baron and Feme, E. o. Rep. 349. \' „ ,, ^r,^ ' Anon. 2 Vern. 707. CHAP, v.] WHICH GO TO THE WIDOW. 221 tliese cases the husband's right is determined with the cover- ture (i). But, if the husband grant a letter of attorney to A to receive a debt or legacy due to the wife, and A receive it, but before he pays it over the husband die, it shall be considered as hav- [22£] ing vested in his possession, and shall go to his execu- tors C^). Such are the principles of law on this subject ; but in equity it is held, that a settlement before marriage, if made in consideration of the wife's fortune, entitles the representative of the husband dying in her lifetime to her choses in action. But it has been asserted, that if it be not made in consideration of her fortune, the surviving wife will be entitled to the things in action, the property of which has not been reduced by the husband. So, if it be in consideration of part of her fortune, such things in action as are not comprised in that part, it is said, survive to the wife. And in a case where a settlement was made to provide for the wife, without mentioning her per- sonal estate, tiie Lord Keeper decreed, that such estate should belong to the representatives of the husband, and held, that in all cases where there is a settlement equivalent to the wife's portion, it shall be intended that the husband shall have the portion, although there be no agreement for that purpose (>). But the presumption of an agreement from the mere fact of a settlement being made by the husband, is peculiar to the case last cited, and has been disavowed by the court in several other cases ("*). Equity also considers money due on moitgage as a chose in action ; and it seems to have been formerly understood, that since the husband could not dispose of lands mortgaged to the wife in fee without her, and the estate remained in her, she or her representatives were entitled to the money, as incident to it J but that in regard to a mortgage debt, secured by a term of (*) 2 Bi. Com. 434. Harg. Co. Litt. ham, 412. Blois v. Countess of Here- 351 b. ford, 2 Vein. 502. Adams v. Cole, CO Roll. Abr. 342. Huntley v. Grif- Ca. Temp. Talb. 168. tiths, Moore, 452. (■") Lister v. Lister, 2 Vern. 68. Cle- (') Harg. Co. Litt. 351. note 1. 3 P. land v. Cleland, Prec. Chan. 63. See Wms. 200. note D. Prec. Chan. Cle- also Salwey v. Salwey, Amb. 692. and land V. Cleland, 63. Packer v. Wynd- Druce v. Denison, 6 Yes. jun. 385, 223 OF CHATTELS PERSONAL [bOOK II. [223] years, as the husband had an absolute power over the term, there was no obstacle to the debt's vesting in his repre- sentatives ; but this distinction is exploded, and it is now held, that although in case of a mortgage in fee, the legal fee of the lands in mortgage continue in the wife, she is but a trustee, and the trust of the mortgage follows the property of the debt(n). If the husband and wife have a decree in equity, in right of the wife, and the husband die, the benefit of the decree belongs to the wife, and not to the executors of the husband (»). But if the wife's fortune be in the Court of Chancery, on the husband's death his representatives shall be entitled to it, sub- ject to the same equity as before, in favour of the wife. In case of her death, it shall become the absolute property of the hus- band ; and it has been held, even where the court detained the fund, in order to enforce a provision for the wife, and made a decree for that purpose, and she survived her husband, yet, that on her death, his representatives were entitled to it, inasmuch as it had absolutely vested in him by law. In these cases, it [224] seems to make no difference whether there be any issue of the marriage or not(p). [1] In case the husband survive the wife, her chattels real, as we have seen, shall become his absolute property (i). But her choses in action shall go to her representatives, excepting the arrears of rent due to her, which; as I have before stated, on her death, are, by stat. 32 Hen. 8. c. 37. given to the husband. The ground of the distinction is this : The husband is in abso- lute possession of the chattel real during coverture, by a kind of joint-tenancy with his wife, and therefore the law will not wrest it from him, though if he had died first it would have (n) Harg. Co. Litt. 351. note 1. Bosvil Taylor, 10 Ves. jun. 579, 580. V. Brander, 1 P. Wms. 458. Bates v. (p) 1 Fonbl. 8. 89. Packer v. Wynd- Dandy, 2 Atk. 207. ham, Prec. Chan. 418. Perkins v. (o) Harg. Co. Litt. 351. note 1. Nanney Thornton, Ambl. 503. ■V. Martin, 1 Chan. Ca. 27. Carr v. (q) Supr. 216. [1] The Courts of Pennsylvania have no authority to insist on a provision for the wife, when the husband applies for her personal property. Yoke v JBarnet, 1 Binn. 365. CHAP, v.] WHICH GO TO THE WIDOW. 224 survived to the wife, unless he had altered the possession in his lifetime : but a chose in action was never in his possession : He could acquire it only by suing in his wife's right, and as after her death he cannot as husband bring an action in her right, because they are no longer one and tlie same person-in-law, therefore he can never as such recover the possession. But, in the capacity of her administrator, he may recover such things in action as became due to her before or during the coverture (i). In chattels personal, or choses in possession of the wife in her own right, as ready money, jewels, household goods, and the like, the husband hath an immediate, absolute, and actual pro- perty devolved to him by the marriage, which never can revest in the wife or her representatives {^). [2] [225] Such chattels also as are given to the wife after the marriage shall belong to the husband, and he shall be entitled to them, although they had not come to his possession at the time of her death («). Thus it hath been held, that if a legacy be left to a wife, to be paid twelve months after the testator's deatli, and the wife die within that period, her husband is enti- tled to it, for an immediate interest was vested in him, and subject to his release before the time of payment ('^). Such are the legal consequences of the unity of husband and wife; but courts of- equity, although they recognise the rule of law which considers the husband and wife as one person, yet, in some cases, will treat their interests as distinct ("). If pro- perty be given generally to the wife, it shall vest in tlie hus- band, both in law and equity ; nor shall it be supposed to be for her separate use, though she live apart from the husband (^•). (q) 2 Bl. Com. 435. 2 Roll. Rep. 134. (0 2 Bl. Com. 435. 3 Bac. Abr. 65. (") 1 Fonbl. 87. Brooks v. Brooks, Dr. & Stud. Dial. 1. cap. 7. Free. Chan. 24. Moore v. Moore, t (') Com. Dig-. Baron and Feme, E. 3. Atk. 272. Miles' Case, 1 Mod. 179. 1 Sid. 337- (") Palmer v. Trevor, 1 Vern. 261 (f) Com. Dig. Baron and Feme, E. 3. Harvey v. Harvey, 2 Vern. 659. [2] He will hold her property, discharged from the lien of the wife's debts, if the wife die before payment, and the husband do not assume her debt Beach v. Lee, 2 Dall. 257. 225 OF CHATTELS PERSONAL [bOOK II. But where it is given to the separate use of the wife, she shall be entitled to it in equity independently of her husband (y). And though it were always clear that she was thus entitled to such property, if trustees were interposed, yet it was formerly a doubt, whether she could take it where none were appointed ("). It is now however settled in the affirmative. It has been held, that where A devised lands in fee to his daughter, a feme co- vert, for her separate use, without naming trustees, it should be a trust in the husband, for it makes no difference whether the trust be created by the act of the party, or by the act of the law (y). So, where a bond was bequeathed to a wife for her sole and separate use, and no trustees nominated, it was held to be completely vested in her in equity (^). [3] And equity will not only raise a trust where the gift is ex- pressly for the separate use of the wife, but will infer it from words not technical, or from the circumstances under which the gift is made, or, as it seems, merely from the nature of the subject: Thus, where an estate was given to a husband, for the livelihood of his wife, he was considered as a trustee for her separate use («). So where diamonds were given to the wife by the husband's father, on her marriage, it was held, that they were a gift to her separate use, and that she was in equity en- (w) Griffith V. Hood, 2 Ves. 452. barley v. Darky, 3 Atk. 399. Com. (") 1 Fonbl. 98. Harvey v. Harvey, 1 Dig. Baron and Feme, D. 1. P. Wms. 126. Burton v. Pierepoint, (z) Rolfe v. Budder, 1 Bunb. 187. 2 P. Wms. 79. (y) Bennet v. Davis, 2 P. Wms. 316. (^) ^^^^^^ ^- ^^'^^V' ^ ^'^' ^^^- [3] The intention to create a separate use for the wife must be very clear. For where a testator devised to his married daughter B, " the use, issues, and profits" of his lands and tenements at X, to hold to her during- her natural life, &.C. and by codicil reciting the devise in the will, and on further consideration, devised the same to C and D, " in trust for the use, benefit, and behoof of my daughter B, for and during her natural life, they or the survivor to rent out the same in the best manner, so that no waste is made of the timber, and the best care that can be, to preserve the land from abuse by extravagant tillage ; she, the said B, to have all the rents, issues, and profits, for and during her natu- ral life," and at her decease, to her male heirs. See. Held, that there being no clear intent manifest, that the devise was for the separate use of B, the husband was entitled to the rents and profits. Torbet v. Tivining ^ al. 1 Yeates, 432. ItHAP. v.] WHICH GO TO THE WIDOW. 226 titled to them in hei* own right (b). And, where a foreigner made the wife a present of trinkets, though not expressly for [227] her separate use. Lord Haidwicke, C. seemed to think they should be so construed (<=). Gifts, likewise, from the husband to the wife, although the law does not allow the property to pass, shall, without prejudice to creditors, be supported in equity, wiiether trustees be inter- posed, or not(>) 2 B'. Com. 435. 3 Bac. Abr. 66. shend x;. Windham, 2 Vez. 7. Peacock Off. Ex. Suppl. 61, 62. 11 Vin. Abr. r. Monk. 190. 178. ("') Ridout t;. Lewis, 1 Atk. 269. See (}) Com. Dig. Baron and Feme, F. 3. also 1 Eq. Ca. Abr. 140. pi. 7. 1 Roll. Abr. 911. Swinb. part 6. s. 7, CHAP, v.] OF PARAPHERNALIA. 229 by the wife(c), or worn only on birth-days, or other public occasions (*i), are also paraphernalia. To what amount such claims shall prevail is a point which cannot admit of specific regulations. It must be left, on the [230] particular circumstances of tiie case, to the discretion of the court (e). In the reign of Queen Elizabeth, jewels to the value of five hundred marks were allowed, in the case of the wife of a vis- count (f). A diamond chain, of the value of three hundred and seventy pounds, where the lady was the daughter of an earl, and wife of the king's sergeant at law, in the reign of Charles the first, was considered as reasonable (f?). Jewels and plate bought with the wife's pin-money, to the amount of five hundred pounds, which bore a small proportion to the husband's estate, were regarded in the, same light (h). And Lord Hardwicke, C. held the widow of a private gentleman to be entitled to jewels worth three thousand pounds, as her parapliernaiia, and that the value made no difference in the Court of Chancery (>). By the custom of London, a citizen's widow may retain some of her jewels as paraphernalia, but not all ('^). If the husband deliver cloth to the wife for her apparel, and die before it be made, she shall have the cloth, as of this species of property (')• If the husband present his wife with jewels, [231] for the express purpose of wearing them, they shall be esteemed merely as paraphernalia, for if tl)ey were considered as a gift to her separate use, she might dispose of them abso- lutely, and so defeat his intention (m). The husband, if inclined to so unhandsome an exercise of his power, may sell, or give away in his lifetime, such ornaments and jewels of the wife, but he cannot dispose of them by will, (') Lord Hastings v. Sir A. Douglas, Cro. Car. 343. S. C. Jon. 332. Roll. Cro. Car. 343. Abr. 911. 11 Vin. Abr. 179. S. C. ('t) Graham v. Londonderry, 3 Atk. (h) offlev v. Offley, Prec. Chan. 27. 394 ■ ■ ., ,^ ('") NorUiey v. Northev, 2 Atk. 77. (e) 3 Bac. Abr. 66. Lord Hastings w. ^ ^ ^ Sir A. Douglas, Cro. Car. 343. (') ^^ ^'^"- ^^'- ^^O" ^^'^- C^^"' ^^P' (0 2 Leon. 166. Bindon's Case, Moore, ^^^' 213. (') 1 Roll. Abr. 911. (?) Lord Hastings v. Sir A. Douglas, (>") Darley v. Darley, 3 Atk. 398. 231 OP PARAPHERNALIA. [bOOK II. any more than he can de\ ise heir-looms from the heir (n). In case of a deficiency of assets for payment of debts, the widow shall not be entitled to such paraphernalia («), not even if they were presents made to her by the husband before marriage (p); nor shall she be so entitled where there are not assets at the time of the husband's death, although contingent assets should afterwards fall in (i) ; on the principle, that the same might not have happened until twenty or thirty years after the death of the testator, nor possibly until after the death of the widow, when the end and design of the widow's wearing her bona paraphernalia in memory of her husband could not have been answered, and therefore it is reasonable that in such case it should be reduced to a certainty, namely, that if there should not be assets real or personal at the testator's death, or at least when the jewels are applied in the payment of debts, then the jewels shall be liable. But, such ornaments, though subject to the debts, shall be preferred to the legacies of the husband, and the general rules of marshalling assets, (which will be treated of hereafter,) are applicable in giving effect to such priority (i). If the husband pawn the wife's pai'aphernalia, and die, leav- ing a fund sufficient to pay all his debts, and to redeem the pledges, she is entitled to have them redeemed out of his per- [232] sonal estate (^). So where a husband pledged a diamond necklace of the wife, as a collateral security for money borrow- ed on a bond, and authorized the pawnee to sell it during his absence, at a sum specified, it was held, that this amounted not to an alienation, if it were not sold in his lifetime, and that it was redeemable for his widow ('). If a woman by marriage articles agree to claim such part (n) 2 Bl. Com. 436. Graham ly. Lon- (i) Burton T;.Pierepoint, 2P.Wms. 80. donderry, 3 Atk. 394. (') 2 P. Wms 80. note 1. Tipping r. (o) 2 Bl. Com 436. Tipping v. Tip- Tipping, 1 P. Wms. 729. Tyntx^.Tynt, ping, 1 P. Wms. 730 Tynt v. Tynt, 2 P Wms. 542. Lord Townshend v. 2 P. Wms. 544. Snelson v. Corbel, 3 Windham, 2 Vez. 7. Snelson r. Cor- Atk 369. Bindon's Case, Moore, 216. bet, 3 Atk. 369. 3 Bro. P. C. 187. (0 Graham v. Londonderry, 3 Alk. (p) Itidout V. Earl of Plymouth, 2 Atk. 395. 104. (0 Ibid. 3 Atk. 393. CHAP, v.] OF PARAPHERNALIA. 232 only of the effects of the husband as he shall give her hy his will, she is excluded from her paraphernalia ("). But her ne- cessary apparel shall, in all cases, he protected, as decency and humanity require, even against the claims of creditors (^). If the husband bequeath to tlie widow her jewels for her life, and then over, and she make no election to have them as her paraphernalia, her executor shall have no title to demand them (w). (") 3 Bac. Abr. 66. Com. Dig. Baron (') 2 Bl. Com. 436. 2 Roll. Abr. 911. and Feme, F. 3. Comely v. Comely. ^^^ ^ ^ Albemarle, 2 Vern. 246. 2 Vern. 49. S.C. 83. ^ ' & _, ^ [ 233 ] CHAP. VI. OF THE INTERESTS OF A DONEE MORTIS CAUSA. Another species of interest in the personal property of the deceased remains to be considered. Such as vests neither in his executor, nor his heir, nor his widow, in those respective characters. It is created by a gift under the following circum- stances. When in his last illness, and apprehensive of the approach of death, he delivers, or causes to be delivered, to or for a party, the possession of any of his personal effects, to keep in the event of his decease. Such gift is therefore called a donatio mortis causa. It is accompanied with the implied trust, that, if the donor live, the property shall revert to him, since it is given only in contemplation (a). A party's wife is as capable of such gift as any other per- son (•*). And so is a negro brought to England as a slave, for the moment he set foot on English ground he was free (<=). To substantiate the gift, tliere must be an actual tradition or delivery of the thing. The possession of it must be transferred in point of fact, and established by evidence beyond suspi- [234] cion {^). [1]. The purse, the ring, the jew«l, or the watch, must be given into the hands of the donee, either by the donor himself or by his order (''). But there are cases, in which (a) 2 Bl. Com. 514. 11 Vin. Abr. 176. ('') Walter v. Hodge, 2 Swans. Rep. Hedges v. Hedges, Free, in Chan. 269. 92. Drury v. Smith, 1 P. Wms. 404. 3 ^,^ ^^^^ ^ .j,^,^^^^^ 2 ^.^^ 43^ ^^^^ ^^^^■^70. ^,. Hilbert, 2 Ves.jun. 111. Drury t;. ('')Lavvsont,.Lawson,lP.Wms.441. g^.^j^^ ^ p^ ^y^^ 4^4 Lawson v. Miller V. Miller, 3 P. Wms. 356. Dawson, 441. 3 £inn. 370. (') Shanley v. Harvey, 2 Eden's Rep. 126. [1] But such delivery may be made to a third person for the use of the donee ; and a delivery to the wife of the donor for the use of the donee, is valid, TVells v. Tucker, 3 Binn. 370. CHAP. VI.] OF A DONATION MORTIS CAUSA. 234 the nature of the subject will not admit of a corporeal delivery ; and then if the party go as far as he can towards transferring the possession, his bounty shall prevail. Thus, a ship has been held to be delivered by the delivery of a bill of sale defeasible on the donor's recovery. And, in a recent case, the Lord Chancellor seemed to be of opinion, that such donation might be effected by deed or writing (e). Tlie delivery also of the key of a warehouse, in which goods of bulk were deposited, has been determined to be a valid deli- very of the goods for such a purpose (f). So the delivery of the key of a trunk has been decided to amount to a delivery of the trunk, and its contents (s). Nor in those instances were the key and bill of sale considered in the light of symbols, but as modes of attaining the possession and enjoyment of their pro- perty (■'). So a bond given in prospect of death, although a chose in action, is a good donation mortis cansd^ for a property is conveyed by the delivery ('). Such, likewise, have been the [235] decisions in regard to bank notes (^•). In all tiiese cases, the donor delivers as complete a possession as the subject matter will permit. But bills of exchange, promissory notes, and checks on bankers, seem incapable of being the objects of such donation ('). The delivery of these instruments is distinguishable from that of a bond, which is a specialty, and itself the foundation of the action, the destruction of which destroys the demand ; whereas the bills and notes are only evidence of the contract ('^). Nor shall a delivery merely symbolical have such operation. As, where on a deed of gift not to take place tjll after the grantor's death, a sixpence was delivered by way of putting the grantee in possession ; the ecclesiastical court held sucl» delivery to be insullicient for the purpose, and pronounced for ("=) Tate T'. Hilbert, 2 Ves. jun. 120. v. Burrow, 4 Bro. Ch. Rep. 72. 3 (f) Ward W.Turner, 2 Vez. 434. ■^'«"- 366. /„\ T„„^c c iu r> • r-.! cnn ('') Drurv V. Smith, 1 P. Wms. 404. (?) Jones V. Selby, Prec. in Chan. 300. \ ^ j Ward V. Turner, 2 Vez. 441. Vide ^'^^^^ "• ^^'"^'■' ^ ^'^ '^^"''- ^^^^ ^'" also Tate v. Hilbert, 2 Ves. jun. 116. ^- Chapman, 2 Bro. Ch. Rep. 612. „,,,,_ (1) Miller v. Miller, 3 P. Wms. 356. CO Ward D. Turner, 2 Vez. 443. ^J. , ^^ o^r ^>.o 'r. ^ ' ' Ward V. Turner, 2 Vez. 442. Tate v. (') Sudgrove v. Baily, 3 Atk. 214. Hilbert, 4 Bro. Ch. Rep. 291. Ward x>. Turner, 2 Vez. 441. .JBlount ("') Ward v. Turner, 2 Vez. 442. 235 <)F A DONATION MORTIS CAUSA. [bOOK II. the instrument as a will("). So it was determined in chancery, that the delivery of receipts for South Sea Annuities was in like manner ineffectual, and that, to make it complete, there ought to have been a transfer of the stock (°). Least of all shall such donation be effectuated by parol, as, merely saying, " I give," without any act to transfer the property (p). Nor where a man considering himself dying took certain property out of an iron chest, and wrote the names of two persons upon the envelope containing it, and declared it to be his intention that they should have such property upon his death, and then re- turned it to the chest and kept the keys in his own possession, never having made an actual delivei'y thereof to the parties, or to trustees for them (i). Nor shall a present absolute gift be [236] considered as of this denomination. To bring it within the class, it must be made to take effect only on the death of the donor (■•). Therefore, the gift of a check on a banker, « Pay to self or bearer, two hundi-ed pounds," and also of a promissory note, being absolute and immediate, was held clear- ly on that ground to be no donatio mortis causa (»). But where the donor gave a bill on his banker with an indorsement ex- pressing that it was for the donee's mourning, and giA'ing di- rections respecting it, the bill was decided to be an appointment in the nature of such donation, since it was for a purpose ne- cessarily supposing death ('). Simple contract debts and arrears of rei. I*. Wms. 43. vld. Hudson t>. Hudson, Ankerstein v.Clarke, 4TermRep. 617 1 Atk. 460. and Jacomb v. Harwood, (^) Thrustout t;. Coppin, Bl.Kep. 801. 2 Vez. 267. and infr. (f) Yard v. Ellard, Salk. 117. Off. Ex. ('') 2 Fonbl. 387. 208. V) 11 Vin. Abr. 104, 105. 3. Bac. Abr. (g) Wankford v. Wankford, Salk. 306. 13, 14. Off. Ex. 207, 208. Com. Dig. Admon, ('I) Yar^ V. Eland, Ld. Raym. 369. D. vid. supra, 9. 242 MARRIED WOMAN EXECUTRIX. [bOOK II. the husband's death, the interest never having heen divested, shall survive to her; but if she die, it shall not survive to the husband, inasmuch as it belonged to him merely in her right, as representative of the deceased (''). And although, generally speaking, a feme covert cannot make a will without the assent of her husband, yet without his assent she may make a will, and continue the executorship in respect to the propei'ty thus vested in her in autre droit Q). Hence, if the wife of A have debts due to her in her own right, and be also executrix to B, and make a will without her husband's assent, appointing an executor, the will, in respect to the goods and credits which belonged to her as the executrix of B, shall be valid, and her executor may prove it in opposition to the husband. But as to the debts due to her in her private capacity, the will shall be [243] void, and the husband may take administration : she shall be considered as dying testate in regard to the property of which she was possessed as executrix, and as intestate in regard to that to which she was entitled in her own right C*^). If there be several executors, or administrators, they are re- garded in the light of an individual person. They have a joint and entire interest in the testator's effects, which is incapable of being divided ('), and in case of death, such interest shall vest in the survivor ("»). So also an executor of an executor, in however remote a se- ries, has the same interest in the goods of the first testator, as the first and immediate executor (°). An administrator de bonis non has also the same interest in such of the effects as remain unadministered, as was vested in the executor, or antecedent administrator. An executor de son tort has no interest whatever in the pro- perty, and therefore can maintain no action in right of the deceased ("). ('') off. Ex. 208. Com. Dig. Baron (">) 9 Co. 36. Dy. 160. Eyre^.Coun- ancl Feme, E. 1. Dy- 331. "tcss of Shaftsbuiy, 2 P. Wms. 121. (i) 2 Bl. Com. 408. Off. Ex. 199. 3 vid. supra, 37. Bac. Abr. 10. Off. Ex. Suppl. 20. (") Com. Dig. Admon. G. Off. Ex. 259- ( k) Off. Ex. 202. 11 Vin. Abr. 240. 4 Burn. Eccl. L. 273. (') Com. Dig. Admon. B, 12. Dy. 23. b. Sliep. Touclist. 464. 3 Bac. Abr. 30. Jacomb v. Harwood, (<>) 11 Vin. Abr. 215. Parker v. Kitt, 2 Vez. 267. and vid. infr. 12 Mod. 471, 472. 2 Bl. Com. 507. CHAP. VIII.] OF SEVERAL EXECUTORS, &C. 244 [244] But if the executor de son tort take out administration, it shall to most purposes qualify the wronc^, and vest the same interest in him as in other administrators, and conse- quently such as shall have relation to the time of the intes- tate's death (p). (p) 11 Vin. Abr. 214—217. Parker v. land, 2 Ventr. 179. 3 Bac. Abr. 25, 26, Kitt, 12 Mod. 471, 472. Kenrick v. Curtis v. Vernon. 3 Term Rep. 590. Biirges, Moore, 126. Fyne v. Wool- Ibid. 2. H. Bl. 26. [ 245 ] BOOK III. OF THE POWERS AND DUTIES OF EXECUTOPtS AND ADMINIS- TRATORS. CHAP. I. OF THE rUNEEAX — OF MAKING AN INVENTORY — OF COL- LECTING THE EFFECTS. Sect. I. OJ the funeral. The subject now leads me to consider the powers and duties of an executor, or administrator (>*). And first he is to bury the deceased according to his rank and circumstances (•'). It has been already stated, tha! an ex- ecutor, before probate, may perform this pious office (f) ; and that the performance of it by a stranger shall not constitute him an executor de son tort{'^). The expenses attending it shall be allowed in preference to all debts and charges (^) ; but the executor is not justified in incurring such as are extra- [246] vagant(f). Nor as against creditors shall he be war- ranted in more than are absolutely necessary. In strictness, no funeral expenses are allowed in the case of an insolvent es- tate, except for the coffin, shroud, and ringing the bell, the fees of the parson, clerk, sexton, and bearers j but not for the pall, or ornaments (s). Still less shall charges for feasts and enter- tainments be admitted ; and indeed in any case they seetn in- (^) 8 Co. 136. tor, pi. 172. Dr. & Stud. Dial. 2. c. 10. (b) Offley V. Offley, Prcc. Chan. 27. (0 2 Bl. Com. 508. Com. Dig. Admon. C. («) Shilleg's Case, Salic. 296. L. of (') Supi-. 46. Ni. Pri. 143. 4 Burn. Eccl.'L. 301. ('') Ibid. 40. Off. Ex. 174. Greenside v. Benson, (<) 11 Yin. Abr. 432. Br. tit. Execu- 3 Atk. 249. 3 Bac. Abr. 85. CHAP. I.] OF THE FUNERAL. 246 congruous to so mournful an occasion (''). If the executor neglect the observance of these rules, he will be chargeable with a species of devastation or waste of the testator's proper- ty, which shall be prejudicial only to himself, and not to the creditors or legatees ('). The executor must also prove the will ; or, in case of intes- tacy, the next of kin must take out administration, within the six months limited by the statute, provided they respectively acte). A memorial and registry are also required by different acts of parliament (') of all wills which affect any lands or tenements in the county of York, or Middlesex, excepting copyhold estates, leases at a rack rent, or leases not exceeding twenty-one years, [247] where the actual possession accompanies the lease, and chambers in Serjeant's Inn, the Inns of Courts, and Inns of Chancery. Sect. II. Of the making of an inventory by the executor, or administrator. An executor, or administrator, before he administers, except by the performance of such acts as cannot be deferred, as dis- posing of perishable articles (*), is likewise bound, pursuant to the stat. 21 H. 8. c. 5. passed in affirmance of the ecclesiastical law, to make an inventory of the deceased's personal estate and effects, in the presence of at least twb of his creditors, or lega- tees, or next of kin : and in their default, or absence, of two other honest persons ; and the same shall cause to be indented, of which one part shall be delivered in to the ordinary upon oath, and the other part shall remain in the possession of such executor, or administrator. And the ordinary shall not, under ('■) OfF. Ex. 131. (1) Stat. 2 & 3 Ann. c. 4- 6 Ann. c. 35. (i) 2 Bl. Com. 508. Godolph. p. 2. "^ Ann. c. 20. 8 Ceo. 2- c. 6. vid. 2 c. 26. s. 2. Bl. Com. 343 C) Vid. supr. 43. 65. 96. ('') ^ »"'•"• ^^^^' ^- ^^O' Swinb. p. 6. s. 8. Ff 247 OF THE INVENTORY. [bOOK III. the penalty of ten pounds, refuse to take such inventory, when so presented to him {^). Also, by the stat. 22 & 23 Car. 2. c. [248] 10. as hath been before mentioned («), an administrator must enter into a bond, with two or more securities, conditioned, among other things, for his exhibiting into the registry of the court, at or before a day specified, a true and perfect inventory of the goods, chattels, and credits of the deceased come to his possession (**). An inventory is thus required for the benefit of creditors, and legatees, or parties in distribution (^). It must be w i-itten or engrossed on paper or parchment duly stamped C^). It is to contain a full, true and perfect description and estimate of all the chattels, real and personal, in possession and in action, to which the executor or administrator is entitled in that character, as distinguished from the heir, the widow, and the donee mortis cmisd of the testator, or intestate (s). [1] It must also distinguish C') 3 Bac. Abr. 45. 4 Burn. Eccl. L. (') 3 Bac. Abr. 45. Swinb. p. 6. s. 6. 251. (0 Vid. Append. (') Supr. 97. (0 2 Bl. Com. 510. 3 Bac. Abr. 4T. (d) 3 Bac. Abr. 46. 11 Vin. Abr. 358. 4 Burn. Eccl. L. 253, 254. [1] Although the real estate be assets, when the personal is exhausted, yet the administrator is not bound by the form of the administration bond to inventory the real estate of the intestate. Hensha^u v. Jilood & al. 1 Mass. T. R. 35. Prescott v. Tarbell, lb. 204. Freeman v. Tarbell, 11 Mass. T. R. 190. The administration bond has relation to the personal estate only. Prescott v, Tarbell, 1 Mass. T. R. 204. In Connecticut, it is determined to be the duty of the administrator to exhi- bit to the Court of Probate an inventory of all the estate, real and personal, that he has reason to suppose belongs to the intestate; and the Court of Pro- bate is bound to receive such inventory, although the estate so inventoried be claimed by a third person ; because the administrator cannot prosecute his claim until it be inventoried. Gold's Case, Kirby, 101. It is the duty of executors and administrators to make an inventory of the personal estate of their decedent. In some of the states, this is conditioned in the bond of the executors — vide note [4], page 58. It is one of the condi- tions of the administration bond, that an inventory should be filed within the time specified in the bond, and the bond is forfeited by non-compliance there- with. Selectmen of Boston v. Boylston, 4 Mass. T. 11. 318. In Vermont, the inventory being made, tlie judge of probate appoints a committee of two or more, to make appraisement ; from which an appeal roa) CHAP. I.] OF THE INVENTORY. 248 sucli debts as are sperate, and those which are doubtful, or desperate (''). By the executor it must be exhibited within a competent time : what shall be so considered, depends on the discretion of the ordinary, regulated by the distance at which the goods lie from the residence of the executor, and other cir- [249] cumstances ('). An administrator is bound pursuant to the stat. of Car. 2. to exhibit his inventory before tlie ordinary by the time specified in the condition of the bond, and must do so at his peril C^). And the judge has authority to cite or summon cither of them for such a purpose, not only at the suit of a party, but at his own discretion ('). In point of law, nevertheless, it is the duty both of an executor and an administrator, of their own accord (■»), to exhibit an inventory ; the former within a reasonable time, the latter at the time limited by the condition of the administration bond. And the courts formerly considered the neglect of this duty in a liglit unfavourable to the party, especially where there was a- deficiency of assets : and although not conclusive against him, yet as exposing him to imputation ^ and that the omission was the less to be excused, since neither at law nor in equity is the inventory final j it is permitted him to show that the assets (>') 4 Burn. Eccl. L. 254. 3 Bac. Abr. (') Com. Dig. Admon. B. 7. 4 Burn. 47. L. of Ni. Pri. 140. Eccl. L. 250. 265. Sed vid. Petit v. (') 3 Bac. Abr. 47. Swinb. p. 6. s. 8. Smith, 5 Mod. 247. 4 Burn. Eccl. L. 265. (^) 3 Bac. Abr. 47. Archbishop of ^^ ^'^'^ :^ "^"- ^- ""■ ^ Archbishop Canterbury ,-. Wills, Salk. 251. ^^ Canterbury v. Wdls. Salk. 251. be made, williin thirty days, by parties interested, to the judge, who then ap- points six other persons, who under oath make a new appraisal of the estate, ]n whole or in part, at the true value thereof in money. And at the valuation thus made, the executor or administrator is held to account for the estate. When the legacies in a will are specific, or to be ascertained without inven- tory or account, and the executor be the residuary legatee, if the legatees and creditors can be secured, there can be no occasion for inventory or account. Gore V. Brazer, 11 Mass. T. Tl. 542. The amount of the inventory of the personal estate may be recovered against an executor, in Massachusetts, where he refuses to account upon oath for such estate. G.lover v. Heath, 3 Mass. T. R. 258. 249 OF THE INVENTORY. [bOOK III. come to his hands amount, from unforpscen circumstances, to less thsui he may have orii^inaJly statec? them ("). But although such be the le.^^al obligation imposed on an executor or admi- nistrator, in every case, to produce an inventory, yet the prac- tice of the spiritual courts seems in this point to have been [250] gradually relaxing : at one period it appears to have been usual for the executor, or administrator, after probate, or ad- ministration, to exhibit an inventory, which was considered as authenticated by the general oath he had taken for the due ex- ecution of the will, or administration of the effects, and for exhibiting a true irnentory. Yet then he was liable to be called upon to exhibit a farther inventory on liis special oath, at the suit of a party interested (°). But according to the practice which at present pi'evails, neither the executor, nor adminis- trator, in general cases, exhibits any inventory whatsoever, unless he be cited for that purpose in the spiritual court, at the suit of a creditor or legatee, or party in distribution (p) ; and in that case he is bound to exhibit an inventory and account ("i) ; and his former gcnci'al oath will not be sufficient j but the in- ventory, thus exhibited must be verified by a special oath, either personally, or by virtue of a commission {'^). The court, how- ever, may exercise a discretion as to the sort of inventory it will accept, particularly in complicated cases ('). It is, however, the part of a. prudent person, who sustains tikis office, in every case to see that the effiscts are carefully appraised, and reduced into an inventory, not only because he may be cited hereafter to produce it, but also because a distinct and accurate knowledge of the fund is necessary, as will more clearly appear from the sefjuel of this work, to direct him in the safe execution of the trust. Indeed, if a party administer without making an inventory, the law will suppose him to have [251] assets for the payment of all the debts and legacies, un- less he repel tlie presumption; whereas if he make an inventory, he shall not be presumed to have more effects of the deceased ('>)4Burn.Eccl. L.252. Orrrt. Kaines, (<)) Phillips w. Bignell, 1 Phill. Rep. 2 Vez. 193. 239. Myddletoii v. Rushout, ibid. (°) 4 Burn. Eccl. L. 250. 265, 266. 224. 1 Ought. 344. ("•) 4 Burn. Eccl. L. 266. (p) Ex. relat. (») Reeves v. Freeling, 2 Phill. 56. CHAP. I.] OF THE INVENTORV. 251 than are comprised within it, and the proof of any omission is then thrown on tl»e opposite party (»). But it is not necessary, according to the modern practice, that the appraisement and inventory should he made exactly pursuant to the letter of the statute. If the effects appear to have been appraised fairly, and b\ persons of repute, and re- duced into an inventory, such inventory shall obtain credence, unless it be falsified by the adverse party (»). And an inventory may be dispensed with altogether, if it shall ajjpear clearly to the court to be unnecessary ("). As, where A died possessed of a large personal estate, and appointed his eldest son execu- tor; and, among other bequests, gave his second son two thou- sand pounds, to be paid at three several payments : The second son cited his elder brother before the judge of the prerogative court where the will was proved, in order to compel him to bring in an inventory; but it appearing that the two first pay- ments had been made, and the thiid had been tendered, the judge decided, that there was no need of an inventory at the [252] instance of the plaintiff; and the sentence was affirmed by the delegates, first on appeal, and afterwards on a commis- sion of review (v). On the other hand, the judge will, in special cases, at the instance of a party interested, decree an inventory to be exhi- bited by the executor, or administrator, before the issuing of the probate, or letters of administration, under seal ; and such inventory must also be substantiated by a special oath {"■"). Also, under particular circumstances, before the granting of the probate, or letters of administration, the court will, on the petition of a pai-ty interested, instead of requiring such inven- tory, issue a commission for the appraisement and valuation of the goods, rights, and credits, and inspection of the bonds, leases, and other writings relative to the personal estate of the deceased, at his house, or elsewhere, on the day specified, with such continuation of time and place as may be necessary {^). (s) 4 Burn. Eccl. L. 265, 266. Swinb. (w) 4 Burn. Eccl. L. 266. 1 Ought p. 6. s. 6. 344. (0 Ibid. 1 Ought. 344. (-) Ibid 265 ^'^ "* ^"''"- ^^'''- '" 266- 1 Ought. {") Boone's Case, Raym. 470. 252 ^1^ THE INVENTORY. [bOOK III. In cases of this nature, there also usually issues a monition to the other party in special, and to all others in general, witli whom any of such effects of the deceased remain, requiring them to exhihit the same to the appraisers under such commis- sion, at the time and place appointed for its execution, in order [253] that they may he appraised and inserted in the inven- tory (>'). And on such commission heing duly executed, the inventory shall he hrought in and exhibited, signed by the hands of the appraisers, or two of them at the least, but without the oath of the party ('^). In such case, also, an inventory is often required on the ex- ecutor's or administrator's oath, of such goods of the deceased as liave been already disposed of (a). But after an inventory is exhibited, a creditor cannot impeach it in the ecclesiastical court; for the stat. 21 Hen. 8. which requires an executor or administrator to make an inventory, enjoins him only to deliver it on oath into the keeping of the ordinary; and the ordinary is bound to receive the same on its being so presented {^). Yet a creditor may state objections to the inventory, which the party is bound to answer upon oath ; but no evidence is admissible to contradict the answer. If the creditor be still dissatisfied, lie may have recourse to equity for more effectual relief ('). But where a creditor gave in an allegation, pleading an omission in the inventory, to which the executrix put in a declaration instead of a specific answer, the court held that such creditor was entitled to ha^ e a constat of the assets that had come to her hands ; and admitted the allegation {^). [254] By the custom of London, if any man, or woman, free of the city, die leaving an orplian within age, and not married, the mayor and aldermen may compel the executor, or adminis- trator, to appear at a court of orphanage, and exhibit an inven- (y) 4 Burn. Eccl. L. 266, 1 Ought. (^) 4 Burn. Eccl. L. 267. Catchsi^le 344,345. v.Ovington, Burr. 1922. Hinton v. (') 4 Burn. Eccl. L. 267. 1 Ought. o45. Parker, 8 Mod. 168. 2 Fonbl. 418. note ('')• (=) 2 Fonbl. 418. note i^). (0 4 Burn. Eccl. L. 267. 1 Ought. (.i) Barclay -j. Marshall, 2 Phill. Rep. 345. 188. CHAP. I.] OF COLLECTING THE EFFECTS. 254 tory. And in case any debt appear to be outstanding, to give security to the chamberlain to render upon oath a true account of the same when received,' and on liis refusal may commit him till compliance. Nor shall his having given security to the spiritual court, as above-mentioned, release him from the obli- gation of the custom (*■). Sect. III. Of his collecting the effects. The next duty of the executor, or administrator, is to collect all the goods and chattels so inventoried. For that purpose, the law invests him with large powers, and authority. As re- presentative of the deceased, we have seen, he has the same property in the effects as the principal had when living; he has [255] also the same remedies to recover them (a). Within a convenient time after the testator's death, or the grant of ad- ministration, he has a riglit to enter the house descended to the heir, in order to remove the goods (^), provided he do so with- out violence ; as, if the door be open, or at least the key be in the door; and, although the door of entrance into the hall and parlour be open, he cannot therefore justify forcing the door of any chamber to take the goods contained in it ; but is empow- ered to take those only which are in such rooms as are unlock- ed, or in the door of which he shall find the key. He has, also, a right to take deeds and other writings relative to tlie personal estate out of a chest in the house, if it be unlocked, or the key be in it ; but he has no right to break open even a clicst. If he cannot take possession of the effects without force, he must desist, and resort to his action (=). On the other hand, if the executor or administrator on his part be remiss in removing (=) Com. Dig. Guardian, G. 1. 1 Roll. (>>) Vid. Harg. Co. Litt. 56 b. and supr Abr. 550. Luck's Case, Hob. 247. 46. («) 2 Bl. Com, 510. Harg. Co. Litt. (0 Off. Ex. 92, 93. 11 Yin. Abr. 26r. 209. * Shep. Touchst. 470. 255 OF COLLECTING THE EFFECTS. [bOOK III. the goods within a reasonable time, the heir may distrain them as damage feasant («'). Tlie executor has also a right, on producing the probate at the bank, and causing so much of it as relates to the testator's [256] interests in the several stocks to be entered in the proper offices, according to the acts of parliament which regulate this species of property, to have the same transferred from the tes- tator's name into his own, or to such person as he shall appoint; and even in the case of a specific bequest of stock, the executor is entitled to call upon the bank for a transfer; and on their refusal, they are subject to an action at his suit. It is personal property, and subject to all its incidents {'^)- The administrator has the same right, on producing the letters of administration. The executor or administrator has likewise authority to sell or dispose of the deceased's effects, and convert them into ready money, to answer the purposes of the trust (*"). He has power to sell(s), or as it has been held, to mortgage terms of years, or assign mortgaged terms (h), and to dispose of any of the effects, although, as it seems, specifically given by tiie will ('), and even in satisfaction of his own private debt(''). Nor when he has aliened the assets, can a creditor follow them [257] at law ; for the demand of a creditor is only a personal demand against the executor in respect of the assets come to his hands, but no lien on the assets. Equity will, indeed, follow assets on voluntary alienations by collusion with the executor; but if the alienation or pledge be for a valuable consideration, (rf) Off. Ex. 93. Plowd. 280, 281. vkl. 78. Elliot v. Merriman, 2 Atk. 41. Stodden v. Harvey, do. Jac. 204 and Jacomb v. Harwood, 2 Vez. 265. Ilarg. Co. Lltt. 56 b. (h) Nugent v. Gifford, 1 Atk. 463. (') See Stat. 5 W. &. Mary, c. 20. The Mead v. Ld. Orrery, 3 Atk. 235. sed Bank of England T). Moffat, 3 Bro. Ch. vid. Bonny tj. Ridgard, cited 2 Bro. Rep. 260. Yld. also Dougl. 524. cii. Rep. 438. (f) 2 Bl. Com. 510. 11 Vin. Abr. 270. (^^ p^,,,^ ^^ ^orbett, 2 P. Wms. 148. Humble V. Bill, 2 Vern. 445. 1 Bro. ^-^ ^ ^^^ ^h. Rep. 431. P. (;. 71. Paeret v. Hoskins, Gilb. Rep. _ ,. ,,o xf . *-•«■ 1 -. ».i C") Nugent V. Gifford, 1 Atk. 463. En. 113. Nugent r. Gittord, 1 Atk. v / & ' .,„ ,,,, , n *u ^ M' o Mead v. Ld. Orrery, 3 Atk. 235. 463. Whale w. Booth, 4 lerm Rep. •' -__ . . Jacomb v. Harwood, 2 Vez. 265. 625. m note. .„. „ „ , .^ - „ „. ,.o Ewer -w. Corbett, 2 P. Wms. 149. note (?) Ewer V Corbett, 2 P. Wms. 148. ' „ . .. c< J I 1-n n 1 2. vid. 2 Bro. CltRep. 431. Biirtnig f. Stoiiard, ib. laO. Barnard. ^ CHAP. I.] OF COLLECTING THE EFFECTS. 257 unless fraud be proved, neither law nor equity will defeat it; for a purchaser from an executor has no means of knowing the debts of the testator ; and if a court of equity on the subsequent appearance of debts would control such purchasers, all dealings wit!) executors would be dangerous ('). An executor is entitled to recover by action, or other legal remedies, or by suit in equity, wliatever pertains to such per- sonal estate ('"). He is also empowered to redeem such chattels as the deceased may have left in pledge ("). Temporary administrators, as an administrator durante ab- sentiOf or durante minoritate, or pendente lite, have not, as we shall hereafter see, so unlimited an authority to sell or alienate the testator's property. They may dispose bona peritura from necessity, and to prevent an irreparable loss to the estate; and on the same principle they may maintain actions to recover the debts of the deceased (»). But where the widow of an intestate delivered goods back to a creditor in satisfaction of his demand, in an action of trover by the lawful administrator, it was held, that such creditor could not protect his possession, upon the ground of such delivery having been made by one, who had by such intermeddling made herself executrix de son tort; no fact appearing to give colour to her having acted in that respect in the character of executrix, except the single act of wrong com- plained of, in which the defendant participated (p). [1] (1) Nugent V. GifFord, 1 Alk. 463. (™) Vid. supr. 157. Mead v. Ld. Orrery, 3 Alk. 237. (") Vid. supr. 164. Crane 7). Drake, 2 Vern. 616. M'Leod (°) Vid. supr. 404. and Walker v. V. Drummond, 14 Ves. jun. 353. and Woollaston, 2 P. Wms. 584. S. C. 17 Ves. jun. 152. (p) Mountford v. Gibson, 4 East. 441. [1] Tn the state of Pennsylvania, the administrator has power to raise assets by mortgaging the real estate, when the decedent left lawful issue, but not sufficient personal estate to pay his just debts and maintain his children- C 258 ] CHAP. II. OF HIS PAYMENT OF DEBTS IN THEIR LEGAL ORDER Sect. I. Of debts due to the crown hy record, or specialty, — Of certain debts by particular statutes. . The disposition of the property when thus collected, and which constitutes assets, is next to be discussed. And, first, I shall treat of the application of the assets in the order prescribed by law. He must, in the first place, pay all funeral charges, and the expenses of proving the will, or of taking out letters of administration (>»). Secondly, he must pay the debts of the deceased, and in such payment he must be careful to observe the rules of priority ; for, if he pay those of a lower degree first, on a deficiency of assets, he must answer those of a higher out of his own estate C'). But if there be a sufliciency of assets for payment of debts, he may pay simple contract debts not bearing interest before specialty debts bearing interest, if not objected to by the specialty creditors, and the legatees are not at liberty to complain of the order of payment («). Ti>e more [259] clearly to trace the order which the law prescribes for the payment of debts, and which the executor, or administrator, is thus bound at his peril to observe, it is necessary to consider them under a variety of classes. They are distinguished, then, first, into debts due to the crown by record, or specialty : secondly, certain debts created by particular statutes: thirdly, debts of record in general: (») 2 Bl. Com. sn. Off. Ex. 130, 131. (') Turner v. Turner, 1 Jac. & Walk. ('') 2 Bl. Corn. 511. Shep. Touchsl. Rep. 39, CHAP. II.] OF DEBTS DUE TO THE CROWN. 259 fourthly, debts due by specialty : fiftbly, debts due by simple contract, first, to the king ; and, secondly, to a subject. [1] [1] The law on this subject being arbitrary in its character, there prevails, as might be expected, mucli diversity in the established order for the payment of debts, in the several states. But by the Act of Congress of 1797, if the estate of a deceased debtor in the hands of his executors or administrators be insufficient to pay his debts, the debt due to the United States must be first satisfied. In Vermont, New Hampshire, Massachusetts, Rhode Island, and Connecticut, if the estate be insolvent, the only case inwhic^pne order of payment is mate- rial, the following debts have priority, in the order here placed: viz. funeral expenses, — the cliarges of the last sickness, — rates and taxes, — debts due to the state. Other debts are to be paid pro rata. In Rhode Island, Massachusetts, and New Hampshire, debts due to the United States are first preferred. In the five New England states, a judgment against anexecutor or administrator does not affect the real estate. In Massa« chusetts, debts due to a citizen of a foreign country are not recoverable by his executor or administrator for the benefit of his creditors there, to the exclusion of creditors within the state. Da-wes, Judge, &c. v. Boylston, 9 Mass. Rep. 337. And all the effects of a person deceased are liable in the first instance to those of his creditors who are inhabitants of the state where such effects are situated. Stevens's Adm. v. Gaylord, 11 Mass. Rep. 256. In New York, the distribution of the personal estate is according to the English law ; but assets derived from the sale of real estate are distributed by the surrogate as equitable assets in Chancery. In New Jersey, the estate of the insolvent decedent is distributed pro rata, after payment of tlie physician's bill during tlie last sickness, the funeral charges, and judgments entered of record during the life of the decedent. In Pennsylvania, the order of payment is — 1. Physic, funeral expenses, and servants' wages — 2. Rents not exceeding one year — 3. Judgments — 4. Recogni- zances — 5. Bonds and specialties — 6. All other debts, without regard to their quality, except debts due to the commonwealth, which shall be last paid. In case of a deficiency of assets, then payment is to be made pro rata, (but bonds and specialties to be first paid) according to tiie proportions settled and ad- justed by three or more auditors appointed by the Orphan's Court at tlie in- stance of the executor or administrator. Judgments are to be paid pro rata from the personal fund. 1 E4nn. 221. But from the fund derived from the real estate, they are to be paid according to the priority of their dates. 4 Dall. 450. 454. Under the Statute of Pennsylvania, it has been determined, that the United States, when a debt is due to them entitled to preference, may avail themselves of it by a suit on the administration bond, although the Act of 1794, which gives the suit, and fixes the order of payment of debts, does not recognize the 259 OF DEBTS DUE TO THE CROWN. [bOOK III. To all other debts, of whatever nature, as well of a prior as of a subsequent date, such as are due to the crown by record or specialty claim the precedence (=). (-:) 11 Vin. Abr. 295. 5 Bac. Abr. 79. Cro. Eliz. 793. Com. Dig-. Admon. C. Off. Ex. 133. Littleton v. Hibbins, 2. Erby v. Erby, 1 Salk. 80. preference. Commonwealth v. Lewis, 6 Binn. 266. The order of payment of tlie debts of a decedent is according to the nature of the debt at the time of his decease. The nature of aiiebt is not changed, by a judgment against his re- presentatives. JVooteririg v.Wte-nvart cred against him in his lifetime in preference to the bond ("»). So also the arrears of rent due to the crown, whether it be a fee-farm rent, or a rent reserved on a lease for years, shall, it seems, be regarded in the light of a debt by simple contract ("). Such is the law in regard to debts due to the crown, by re- cord, or specialty. Next in order are certain specific debts, which, subsequently to those of which I have been treating, are, by particular sta- tutes, to be preferred to all others; as forfeitui'es for not bury- [262] ing in woollen, by 30 Car. 2. c. 3. : money due for letters to the post office, by 9 Ann. c. 10.: and money due from the overseers of the poor, by 17 Geo. 2. c. 38 (°). Sect. II. Of the debts of record in general. — Of judgments ; and herein of decrees. — Of statutes, and recogniziances. — Of docquetting judg- ments. To these succeed debts of record in general, of which there arc two classes: first, judgments in courts of record ; and se- condly, statutes and recognizances. The former are of a higher nature and of a greater dignity than the latter; for judgments are recovered on judicial proceedings in litigated cases, and in a regular course of justice; and the records of such judgments are entered on public rolls entrusted to the custody of a sworn officer; also judgments confessed by the testator are on the same footing; for though, in point of fact, they are voluntarily acknowledged, yet they, as well as other judgments, are pre- ('") Com. Dig. Admon. C. 2. 11 Vin. (") 3 Bac. Abr. 80. in note. 2 Bl. Com. Abr. 301. Lane, 65. 511. 1 Burn. Eccl. L. 301. (") 3 Bac. Abr. 80. Off. Ex. 135. 262 OF JUDGMENTS, [bOOK III. sumed to liave been given adversely ; the law supposes, quod judicium redditur in invitum (»). [263] Hence judgments, as well such as were recovered against the testator, as those wliich were confessed by him, are in a precedent degree to statutes and recognizances ; for sta- tutes, and recognizances (of the nature of which I shall more fully speak), are entered into by the consent of the parties ; the former, and, till enrolment, the latter, are carried in pockets, or deposited in escritoirs; in short, are in the private keeping of the creditor himself. Nor does priority of the date make any difference in favour of such last-mentioned securities (*>). An executor is obliged to discharge a later judgment, in pre- ference to a statute, or recognizance, prior in point of time(c). Such is the preference to which judgments, as distinguislied from the more private records, are entitled. Nor is this privi- lege confined to judgments in the courts of Westminster-hall, but extends itself to judgments in all other courts of record; that is to say, courts in cities, or towns corporate, having power by charter or prescription to hold plea of debt above forty shillings ; as, in London, Oxford, and other places : for, although in the first instance, such goods only can be taken in execution on those judgments as lie within the jurisdiction of [264] those respective courts; yet, formerly, if tiie record were removed into the chancery by certiorari, and thence by mittimus into one of the superior courts of law, execution might have been had upon the defendant's goods in any county in England(''); and now, by the stat. 19 Geo. 3. c. 70, any of his majesty's courts of record at Westminster may, on a proper application, cause ti-c records of such judgments to be removed thither, and may issue writs of execution against the persons or effects of the defendants, in the same manner as on judgments obtained in those superior courts. So a judgment in a pie 2}0iidre court, which is a court of record incident to every fair and market, (^) 3 Bac. Ahr. 80. Off. Ex. 136. 139. Hob. 195. 11 Vin. Abr. 292. in note Com. Dig-. Admon. C. 2. Roll- Abr. 299. 2 Bl. Com. 160. 341. 926. Littleton v. Hibbins, Cro. Eliz. {^) Off. Ex. 137. Com. Dig. Admon. r93. C. 2. 4 Co. 59, 60. V '") 4 Co. 60. 5 Co. 28. Off. Ex. 137. (J) Off. Ex. 139, Swinb. p. 6. s, 16. CHAP. II.] OF JUDGMENTS. 264 and is tlie lowest couit of justice («=) known to the law of Eng- land, claims the same preference (f); and, hy tlic above statute, its process, after judgment, shall be aided in the same manner. Nor does the priority of a judgment in any degree depend on the original cause of action ; a judgment against the testator on a debt by simple contract is of tlie same nature as a judg- ment on a specialty (s:). So if the testator were bound in a recognizance, on which a scire facias was brought and judgment given against him in his lifetime, although this judgment be not quod recuperet, as in case of actions on debt, but qtiod habeat execiitionem, yet since execution is the fruit and effect of all [265] judgments, this is in substance of the same nature, and may well be classed as a debt by judgment ('»). Nor, as between one judgmejit and another, is priority of time material. The judgment creditor, who first sues out a scire fa- das, must be preferred ; but, before such writ be sued out, the executor has it in his election, where there are two judgment creditors, to pay which of them he pleases first; and if each bring a scire facias on his judgment, yet tiie executor may con- fess either action, at his option, and that although the scire facias were brought by the one creditor before the other ('). So where, after verdict for the plaintiff in assumpsit, and before the day in bank, tlie defendant died, and judgment was entered the next term, pursuant to the stat. 17 Car. 2. c. 8. on scire facias brought against the executor, it was held, that the judgment should by relation be regarded as given in the lifetime of the testator, and be payable accordingly (''). But where the de- fendant in an action on simple contract, after an interlocutory judgment, died, and on scire facias against his administrator, a writ of inquiry issued, and damages assessed, judgment was entered up against the intestate; the court inclined to the opinion, that the judgment, pursuant to the stat. S k 9 W. 3. (<^) 3 Bl. Com. 32. C. 2. Vid. also Gomersal v. Aske, (0 11 Vin. Abr. 297. Searle v. Lane, Yelv. 133. 2 Vern. 89. (■) Off Ex. 138. 11 Vin. Abr. 299.301, (g) Vid. 3 Bl. Com. 158. 11 Vin. Abr. ^ I'onbl. 2d edit 401. 299. Com. Diff. Admon. C. 2. Fitz. 76. <') ^om. D\g. Admon. C. 11 Vin. Abr. 302. Burnett v. Holden, 1 Lev. 277. (J") Off, Ex. 139. Com. Dig. Admon. i jyiojj. g. s, C Hh 266 OF JUDGMENTS. [bOOK III. [266] c. 11. ought to have been entered up, not against the in- testate himself, but against the representative; and was there- fore not pleadable by the administrator to an action brought against him on a bond (•). In like manner, where a defendant died after a writ of inquiry executed, and before the return of it, it was adjudged tliat a scire facias lay against hi;; executor, to show cause why the damages assessed should not be reco- vered (n^) ; nor in such case shall the judgment, if on simple contract, be preferred to a debt by specialty. A judgment signed at any time during the term, or the va- cation immediately subsequent, relates back to the first day of the term, although the defendant died before the judgment was actually signed ; and an execution tested the. first day of the term may be taken out upon it against his goods (°). But, if the writ of execution be not tested till after the defendant's death, it is irregular, and, in such case, it is necessary to revive the judgment by scire facias against his representative (°). If a judgment be kept on foot merely to defraud other credit- ors, or if there be any defeasance of it in force, such judgment shall not avail to preclude them from their debts (p). [267] A judgment quod computet, in the obsolete action of account, is of a nature too incomplete to be privileged like other judgments (i). A judgment in a foreign country is regarded, in our courts, merely as a debt by simple contract (>■). Nor, as we have just seen, are judgments against an executor comprehended within the same class as those which are reco- vered against the testator (^). In case a scire facias be brought on a judgment, after the executor has exhausted the assets in the discharge of such of the king's debts as are above mentioneil, or in the satisfaction (')ll Vin.Abr. 279. Weston u James, (0 3 Bac. Abr. 81. Off. Ex. 137. 1 Salk. 42. Com. Dig. Pleader. 2 D. 9. (<)) 11 Vin. Abr. 297. in note. Searle (<^') Goldsworthy v. Southcott, 1 Wils. v. Lane, 2 Freem. 103. Vid. L. of Ni. 243. Pri. 127. (") Bragner v. Langmead, 7 Term (') 11 Vin. Abr. 291. 2 Fonbl. 460. Rep. 20. Dupleix v. De Roven, 2 Vern. 540. (o) Heapy v. Paris, 6 Term Rep. 368. Walker v. Wiffer, Dougl. 1. Vid. also 7 Term Rep. 24. (») Off. Ex. 138. CHAP. II.] OF JUDGMENTS. 267 of other jiiJgments, the defendant may plead generally, that he hath fully administered ; and on that plea he may give evidence of those facts, and that will he a suHicient defence ('). But if an action be brought against an executor on a specialty, or other debt of an inferior nature, and a judgment against the testator remains unsatisfied, it must be pleaded specially ("). It is held, that an executor, by bringing a writ of error on a judgment, may postpone to a statute, and the satisfaction of [268] the debt on the statute, pending the writ of error, shall be no devastavit, because it was out of his power to withstand the payment of it. The effect of the judgment is by the writ of error totally suspended (^). But if no writ of error be brought on the judgment, and a creditor by statute take out execution, the executor is bound to avail himself of his remedy by audita querela^ in order to secure a fund for the satisfaction of the judgment (^^) : and some autho- rities maintain, that though a writ of error be brought on the judgment, if he fail to resort to an audita querela, and suffer the statute to be executed, it will be a devastavit (^). Nor is an executor bound to take notice of judgments in the Courts of King*s Bench, Common Pleas, and Exchequer, unless they are docquetted, that is, abstracted and entered in a book, pursuant to the stat. of 4 & 5 TV. Sc M. c. 20 (y). According to the true construction of that act, a judgment not docquetted is put on a level with simple contract debts (^). If the executor have notice of the judgment, although not docquetted, he may [269] perhaps be warranted in giving it a preference as a judg- ment, but if he in that case pay other debts first, he is clearly not liable as on a devastavit', thus to charge him it seems that no other than the prescribed notice would be sufficient (=»). And (0 OfF. Ex. 138. vid. also Hickey v. (w) Off. Ex. 137. Hayter, 6 Term. Rep. 388. Sed vid. (x) ibid. 137. in note. vid. Bearblock 3 Bac. Abr. 80. and in note. ^. Read, Cro. Eliz. 822. (<■) Parker v. Atfield, Ld. Raym. 678. ,y, „ gj ^^^ ^,97 S.C. Salk. 311. 2Saund. 50. ^ ' ' ' , . . /'.,\ 1-1 tr- Au ono - ,. -u-j (■«■) Hickey ^■• Kayter, administratrix, (") 11 Vin. Abr. 292. in note. ibid. "< J J J ' ' 298. 299. in note. Bearblock v. Read, ^ '^^™ ^^P' ^^^• Cro. Eliz. 822. L. of Ni. Pri. 142. (») Per LordKenyon, C. J. ibid. Tan- Yelv. 29. ^'^'' v-Freeland, 1 Har. & M'Hen. ."4 269 OF DECREES IN EQUITY. [bOOK 111. a plea of pkne administravit to an action brought on such a judgment will be suppoitcd by evidence of payment of debts by specialty, or by simple contract C*). On the same principle, a judgment not docquetted according to the directions of the statute cannot be pleaded to an action on simple contract ('^). But of such judgments, when docquetted, an executor shall be presumed to have cognisance (''). The provisions of the statute do not extend to judgments in inferior courts of record ; and the executor is still bound to take notice of them at his peril (e), as he was, before that act, of the judgments of the courts at Westminster (<"). A decree in a court of equity is, in respect to the course of administering assets, equivalent to a judgment at law, and shall [270] stand in the same order of payment (s). In general, actual and express notice of a decree is necessary to make it binding on purchasers. Notice by implication in respect to them is effectual only where a suit is depending. It never was the doctrine, that a decree after a cause is ended shall be constructive notice to purchasers ; but it is the pendency of a suit that creates such notice in their case, on the ground that a suit is a transaction in a sovereign court of justice, and every man is presumed to be attentive to what passes there (*>), and also on the policy of preventing the transfer of rights in litigation. But an executor shall be affected with implied no- tice of a decree obtained against the testator; therefore, where an executor paid a debt due by specialty, before a debt due by (b) Hickey v. Hayler, 6 Term Rep. v. Powis, 1 Vez. 496. Bligli v. Earl 387, 388. of Darnley, 2 P. Wms. 621". 3 P. Wm.s. (') Steel V. Roke, Bos. & Pull. 307. 401. note (F.) Morrice v. Bank of (<<) 3 Bac Abr. 83. in note. Littleton England, Ca. Temp. Talb. 217. Peploe V. Hibbins, Cro. Eliz. 793. vid. Har- v. Swinburn, Bunb. 48. 4 Bro. P. C. man v. Harman, 3 Mod. 115. 11 Vin. 287. See also 2 Fonbl. 412 note (')• Abr. 274. 291. v^) g Fonbl. 156. note ("). Sorrell v. (0 11 Vin. Abr. 294. Herbert's Case, Carpenter, 2 P. Wms. 482. Garth v. 3 P. Wms. 117. Off. Ex. 139. ^^^^.^^ 2 ^^^ j^^ ^^^,.^1^^ ^ ^^,.1 (0 Littleton V. Hibbins. Cro. Ehz. 793. ^^ Scarborough, 3 Atk. 392. Walker (0 11 Vin. Abr. 301. 3 Bac. Abr. 81. ^ gmallwood, Ambl. 676. Shafto V. Powel, 3 Lev. 355. Aslley CHAP. II.] OF RECOGNIZANCES. 270 a decree, of which he liad no actual notice, he was decreed to pay it over again out of his own estate (•). Although an executor cannot plead or give in evidence at law (•*) a decree of a court of equity, yet he shall be protected, [271] and indemnified in paying due obedience to such decree, and all legal proceedings against him shall be stayed by injunc- tion ('). But if the decree be not conchisive of the matters in ques- tion, as if it be merely to account, and do not ascertain the sum to be paid, it is analogous to a judgment quod computet at law; and that is no complete judgment till the account be stated. Therefore it has been holden, that, ])ending a bill in equity, and after such decree, an executor may pay any other debt of a higher or an equal nature, in case the assets be legal, although he has no power of so doing as against a final decree (">). Next in rank to judgments are recognizances and statutes ("). A recognizance is an obligation of record ; it may be entered into by the party before a C(nirt of record, or magistrate d»dy authorized, conditioned for the performance of a particular act j as to appear at the assizes, to keep the peace, to pay a debt, or the like. A recognizance is in most respects like another bond. The chief distinction between them is, that the latter is the creation of a new debt, or an obligation de novo; the former [272] is an acknowledgment on record of a prior debt, of which the form is: "That A. B. doth acknowledge to owe to our lord the king, to the plaintiff, to C. D. or the like, the sum of ten pounds," with condition to be void on performance of the thing stipulated. And in such case, the king, the plaintiff, or C. D. is called the cognizee, as he that enters into the recog- nizance is called the cognizor. This instrument being either (0 3 Bac. Abr. 81. Buccle v. Atleo, Bio. P. C. 287. Martin v. Martin, 1 2Vern.37. Searle r. Lane, 88. Sorrell Vez. 214. ■j;. Carpenter, 2 P. Wms. 483. ("") Smith v. Haskins, 2 Atk. 385. Worslev V. Earl of Scarborough, 3 (•<) 11 Vin. Abr. 291. Stasby v. Pow- ^^^ ^^^- ^^^^^^ ^ Williams. 2 Salk ell, Freem. 333, 334. ^^^_ ^^ ^in. Abr. 297. 3 Bac. Abr. 83 (1)3 P. Wms. 401. note (F.) Harding (") Off. Ex. 140. 2 Bl. Com. 511. •<». Edge, IVern. 143. Morrice w. Bank Com. Dig. Admon. C. 2. Philips v. of England, Ca. Temp. Talb. 217. 4 Echard, Cro. Jac. 8. 35 272 OP STATUTES. [bOOK III, certified to, or taken by the officer of some court, is authenti- cated only by the record of such court, and not by the party's seal (°). Of securities by statute there are three species : statutes mer- chant, statutes staple, and recognizances in the nature of sta- tutes staple ; and though they are fallen into disuse, yet as they are frequently alluded to in argument, especially on this sub- ject, it seems necessary to give some explanation of them (p). In order to form a distinct notion of their nature, we must re- cur to different acts of parliament. By stat. 13 ^. 1. called the statute de mercatoribiis, a mer- chant is empowered to cause his debtor to appear before the mayor of London, or before some chief warden of a city, or of any other town which the king shall appoint, or before other sufficient men chosen and sworn thereto, when the mayor or [273] ciiief warden cannot attend, or before one of the clerks, to be appointed by the king, and acknowledge the debt, and the day of payment. And the recognizance, that is such ac- knowledgment, shall be duly entered by a clerk on a double roll, of which one part shall remain with the mayor or chief warden, and the other be deposited with the clerks ; one of whom, with his own hand, shall write an obligation, to which writing the seal of the debtor shall be affixed, with the king's seal provided for that purpose ; which seal shall be of two pieces, of which the greater piece shall remain in the custody of the mayor or the chief warden, and the other piece in the keeping of such clerk ; and, if the debtor do not pay at the day limited, the merchant shall again appear before the mayor and clerk with his obligation ; and if it be found by the roll or writing, that the debt was acknowledged, and the day of pay- ment expired, then Ihe statute prescribes certain steps to be taken for the recovery of the debt. This obligation is called a statute merchant. In regard to the kind of statutes secondly above mentioned, the staple, that is to say, the grand mart for tlie principal commodities and manufactures of England, was by the stat. (•^) 2 Bl. Com. 341. Hist. Eng. L. 160. 393. 4 Reeve's Hist. (P)Vid. 2 Bl, Com. 160. 2 Reeve's Enjj. L. 253, 254. SuU. Lect. 155, 156. CHAP. H.] OF STATUTES. 273 27 E. 3. held in certain trading towns. And in order that contracts made within the same might be more effectually en- forced, that act directs a course similar to a statute merchant, and enacts, that every mayor of the staple shall have power to [274] take recognizances of debts arising on such contracts, in the presence of the constables of the staple, or of one of them ; and, that in every staple there shall be a seal remaining in the custody of the mayor, under the seals of the constables ; and all obligations which shall be made on such recognizances shall be sealed with that seal. Such obligation is denominated a statute staple. The benefit of this mercantile transaction is extended to ail the king's subjects in general, by virtue of the stat. 23 H. 8. c. 6. by which it is enacted, that the chief justice of the king's bench, and the chief justice of the common pleas, and in their absence out of term, the mayor of the staple of Westminster, and the recorder of the city of London, jointly, shall have full power and authority to take recognizances or acknowledgments of the king's subjects for the payment of debts according to a form specified ; and that every obligation so acknowledged shall be sealed with the seal of the cognizor, and also with such seal as the king shall appoint for the same, and with the seal of one of such justices, and be subscribed by him, or with the seals of such mayor and recorder, with their names subscribed. The statute then directs, that such recognizance shall be duly enrolled in a manner similar to the statute merchant, and pro- vides, that in default of payment of the debt contained in such obligation, the cognizee shall have the same advantages in every respect as in the case of an obligation by statute staple. [275] The obligation, pursuant to this act, is styled a recogni- zance in the nature of a statute staple. Such are the three species of statutes. Although recognizances are entered on the rolls of the king's courts, while statutes are consigned to the custody of the party, and hence are called pocket records (i), yet both species of se- curities having been entered into voluntarily and privately, are regarded as equal in their nature, and payable in the same 0) 5 Co. 28 b. 275 RECOGNIZANCES AND STATUTES. [bOOK III. order ('^). Nor is it material, in regard to payment by the ex- ecutor, whicli of tlieni are prior or subsequent in point of date. Tlierefore, where there are many cognizees, he may prefer a subsequent to a prior statute or recognizance, for tliey all equally affect the personal estate ; although, as to lands, the first in point of time shall have the preference ('). If the statute or recognizance be defeasanced for the payment of a sum of mojiey at a day certain, although the day be not arrived, yet it is a debt of the same class with other statutes ; for it is a presetit and immediate duty to be discharged at a future period (»). So, w here a testator acknowledged a recognizance [276] in the nature of a statute staple, of which the defeasance, after reciting that the testator and cognizee as his surety were bound in an obligation to J. S. for the debt of the testator, with a condition for payment of one hundred pounds at a future day, provided that, if the testator, his executors, or assigns, should pay the one hundred pounds to J. S. at the day, the statute should be void ; it was held, that although the day of payment were not yet come, and it were a collateral sum to be paid to a stranger to the statute, and not to the cognizee, and therefore no duty to him, and although the heir of the testator might possibly pay the money at the day, yet, inasmuch as the statute was for the payment of a certain sum of money, with which by intendment the executor would be charged, he might, although before the day of payment, plead the statute in bar to an action of debt on a bond ("). But if the testator in his lifetime enter into a statute for performance of covenants, and none of them are broken, to an action of debt on specialty the executor can- not plead this statute ; for perhaps the covenants may never be broken, and it would be unreasonable to allow him to elude a just debt on a contingency which may never happen (^). So if it be for payment of money when an infant shall come of age, it shall be no bar to other debts, for the infant may die before that time (;■'). (0 off. Ex. 140. (") 11 Vin. Abr. 286. Goldsmith v. l') Off. Ex. 140. 3 Bac. Abr. 81. Roll. Sydnor, Cro. Car. 362. Abr. 925. Com. Dig. Admon. C. 2. (v) 3 gac Abr. 81. 5 Co. 28. Swinb. Swinb. p. 6. s. 16. p. 5. s. 16. (0 11 Vin. Abr. 286. 1 Roll. Rep. 405. .^. ^^^^ j^^^ 925- Vausrh. 104. OHAP. II.] RECOGNIZANCES AND STATUTES. 277 [277] If a statute be joint and several, the cognizee may elect to sue cither the surviving cognizor, or the executor of him who is dead, or both in separate actions. IT it be joint only, the survivor alone is liable (''). Tlie remedy on the statute is more expeditious than on a re- cognizance; since execution may be taken out on a statute without a scire facias, or other suit. But in case of a recog- nizance, if a year pass after the acknowledgment, no execution can be sued out against the party without a scire facias ; and, in case of his death, altliough a year be not elapsed, yet a scire facias must he sued out against his executor (y). If a scire facias be sued out on a recognizance, an executor shall not defeat it by a voluntaj'y payment of a debt by statute: but if, before judgment on the scire facias, execution be sued out against him on the statute, it shall pi-evail (^). A recognizance not enrolled shall be considered as a bond, and payable accordingly ('»), the sealing and acknowledgment of it supplying tlic want of a delivery. So a statute not regulai-ly taken may be good as an obliga- tion C'). [278] Nor are other inferior debts of record to be forgotten ; as issues forfeited; fines imposed by the judges at Westminster, or at the assizes; by the justices at quarter sessions; by com- missioners of sewers, or of bankrupts, or by stewards of ieets, and the like ; for all these are debts of record, and so payable by the executor ('^). Of all of which, as well as those by i-erog- nizance or statute, he is bound to take notice at his peril (d). C) 11 Vin. Abr. 288. Rogers v. Dan- Wms. 334. 2 Vern. 750. S. C. vers, 1 Mod. 165. (b) Cro. Eliz. Holling-worlh v. Ascue, (>') Off. Ex. 140. 355.461.54*4. 2 Roil. Abr. 149. (==) Off. Ex. 140. in note. 11 Vln. Abr. (') 11 Vin. Abr. 278. Off. Ex. 118. 299. 2 Anderson, 157. pi. 87. (d) Bothomly v. Lord Fairfax, vid, 2 ''') Bothomly v. Lord Fairfax^ 1 P. Vern. 750. li 278 OF DEBTS BY SPECIALTY. [bOOK III. Sect. III. Of debts by specialUj,—and herein of rent :—of debts by simple contract. The class of debts next in succession are debts by special contracts ; as for rent, and also on bonds, covenants, and other instruments under the seal of the party. Although, in regard to rent, the lessor has a remedy often more eflicacious in his own hands by distraining; yet, between a debt by obligation, and a debt by covenant for a sum certain, or for damages on a breach of covenant, and a debt for rent, there is no distinction of rank : they arc all debts of the same [279] degree (=*). Nor does it make any difference whether the rent be reserved by lease in writing, or by parol : for in the latter case, the rent arises equally from the profits of the land, and is regarded as a debt by specialty. Nor is the nature of the debt changed by the determination of the lease : the contract remains in the realty, although the right of distress be goneC"). But it is necessai-y to consider rent as distinguished into such as hath been left in arrear by the testator, and such as hath accrued due subsequently to. his deatli. For rent, which was in ai'rear in the testator's lifetime, the executor is liable merely in that cliaracter ; as the testator's debt, he can be sued for it in the detinct only, and to such action may plead that he has fully administered ('^) : Whereas, for the subsequent rent, the executor is in general regarded as person- ally respojisible. He has no riglit, as we have already seen('^), to waive the term, for he must renounce the executorship in toto, or not at all ; and if he enter on the demised premises, as (^) off. Ex. 146. 2 Bl. Com. 465.511. Slonehouse w. Uford, 145. Godfrey r. Com. Dig. Admon. C. 2. Plumtr w. .Newport, Comb. 183. 11 Vin. "Abr. Marchant, 3 Burr, 1384. See also 289. in note. Vid. 3 Bl. Com. 11. Stat. Gage V. .\cton, 1 .Salk 326. 8 Ann. c 14. (•>) 3 Bac. Abr. 82. 96. Newport v. (<) LyddjA v Dunlapp, 1 V.'ills, 4. Godfrey, 3 Lev. 267. S C. 2 Ventr. Com. Dig. Admon. B. I 184. Gage v. Acton, Com. Rep. 67. (<') Supr. 143. CHAP. II.] OF DEBTS BY SPECIALTY. 279 by his office he is bound to do, the lessor may cliarge him as assignee in the debet and detinet for the rent incurred subse- quently to his entry («■). If the profits of the land exceed the amount of the rent, as [280] the law prima fade supposes, such of the profits as arc sufficient to make up the rent shall be appropriated to the pay- ment of the lessor, and cannot be applied to any otiier purpose. Therefore, if in such case the lessor bring an action against the executor for the rent, he cannot plead jjlene administravitf for that plea would confess a misapplication of the profits; since no other payment out of tliem can be justified till the rent be answered (f). On the other hand, the profits of the land may be inadequate to the rent. In a variety of cases, they may be easily supposed insufficient for a given period, although the lease may on the whole be beneficial. As in respect to rent for the occupation of premises from Michaelmas to Lady-day, especially where almost the whole profit is taken in the sum- mer; as in the case of a lease of tithes, or of meadow grounds, which are usually flooded in the winter (?). So the profits for a series of years may be less than the amount of the rent, al- though the lease for the whole term may be of no small value ; as in the case of a lease of woods, which ai'e fellable only once in eight or nine years, and the felling has been very recent (i»). In these and the like instances, the executor is personally liable only to the extent of the profits, and for such proportion of the rent as shall exceed the profits is chargeable merely in the capacity of executor, or, in other words, as far only as he has assets ; and in such case, to an action brought by the lessor against him in the debet and detinet, he must disclose the matter [281] by special pleading, and pray judgment whether he shall be charged, otherwise than in the detinet only, for more than the actual profits ('). Thus the profits of the land are to be applied by the executor, in the first place, to the discharge of the rent ; and if that fund (e) Billinghurst v. Speerman, 1 Salk. (g) Off. Ex. 149. 297. 317. Off. Ex. 147. (i.) ibid. (f) Buckley v. Pirk, 1 Salk. 317. (i) Buckley v. Pirk, 1 Salk. 317. 281 OF DEBTS BY SPECIALTY. [bOOK III. should prove insufficient, the residue of t!ie rent is payable out of tlio j^eneral assets, and stands on the same footing with other debts by specialty. Debts by bond, and other instruments under the seal of the party, are of the same class with debts for rent C^); and an executor is bound to pay a debt on specialty before a debt by simple contract. But in the distribution of separate property of a mari'ied woman as assets after her death, a bond debt is not entitled to priority, for the bond merely as a bond is void (*). If an agreement be entered into under hand and seal for the purchase of an estate, although the estate on the purchaser's death descend to his heir free from all debts by simple contract., and the personal assets be not more than adequate to pay for the estate, the vendor being a candidate by specialty, may at law charge the purchaser's executor on the covenant to the disappointment of all the simple contract creditors ('"), though equity will marshal the assets in their favour ("). An executor is also bound to pay a debt on specialty before a debt by simple contiact, although the bond be not yet due. For the obligation is a present duty, and the condition is but a defeasance of it(''). Hence it hath been adjudged, that if an action be brought against an executor on a simple contract of the testator, he may plead that his testator entered into a bond payable at a future day, and it shall cover assets to the amount of the sum payable by the condition (p). But if the testator die indebted to A in one specialty, and to B in another, and of A's debt the day of payment is past, and of B's debt the day of payment is to come, the executor has no right to pay B in preference to A: [282] Yet if A forbear to demand or sue for his debt till the debt of B become payable, then it is in the election of the exe- cutor to pay which of them he thinks proper (p). By the cus- tom of London, if a citizen of London die indebted to another (k) Off. Ex. 146. . (P) 3 Bac. Abr. 81. Buckland v. (1) Anon. 18 Vez. 258. Brook, Cro. Eliz. 315. Lenuin v. (■») See Bi-ome v. Monck, 10 Ves. jun. '^°'^''^' ^ ^^''^ ^^ Goldsmith v. Syd- g20 621. nar, Cro. Car. 362. Rank of Eng-land , ^ „. , 'V- Morrice, Ca. Temp. H.ard. 228. (n) Vid. supr. 4ir. (,) Off. Ex. 143. Com. Dig. Admor. (°) 11 Vin. Abr. 304. Leon. 18/. C. 2. Swinb. p. 6. s. 16. CHAP. II.] OF DEBTS BY SPECIALTY. 282 citizen by simple contract made w ithin the city, such debt is equal to a debt by specialty, and the payment of it by the exe- cutor shall be binding on the obligor of a bond, though a stran- ger and no citizen (i). In the administration of assets, a contingent security, as for example a bond to save harmless, shall not stand in the way of a debt by simple contract ('). And if, subsequently to the pay- ment of tlie simple contract debt, the contingency should hap- pen, it seems reasonable that evidence of such payment should be admitted on the executor's plea of ^j/ewe administravit to an action by the specialty creditor (*). But where tlie contingency has taken place, although the debt consequent upon it has not yet been paid, it may be pleaded to an action by a simple contract creditor : As, where the testator had executed a bond to A in two thousand eight hundred pounds, conditioned to indemnify him against another bond for eight [283] hundred pounds, which he had executed jointly with the testator to B for the debt of the testator, in whose lifetime the eight hundred pounds had become due, and were still unpaid ; on the executrix's disclosing these facts in a plea to an action of assumpsit, and stating that she had administered all, except so much as would satisfy such indemnity bond, it was held to be a sufficient defence (t). A bond merely voluntary shall be postponed to simple con- tract debts which are bond file owing; but such bond, if not to the prejudice of creditors, must be paid by the executor, and in preference to legacies. For a bond, however voluntary, trans- fers a right in the lifetime of the obligor; whereas legacies arise from the will, which takes effect only from the testator's death, and therefore they ought to be postponed to a right created in his lifetime ("). But an executor has no authority to pay a bond (q) oBac.Abr. 82. Snelling r. Norton, (') Cox t). Joseph, 5 Term Rep. 30T. Cro. Eliz. 409. Noy. 53. Roll. Abr. (") 11 Vin, Abr. 304, 305. 1 Eq. Ca. 557. 5 Co. 82 b. 83. Scudamore v. Abr. 84. 143. 3 Bac. Abr. 81, 82. Hearne, Andrew's Rep. 340. Cray v. Rooke, Ca. Temp. Talbot. 156. (') 11 Vin. Abr. 395. Lancy •«. Faire- Loeffs v. Lewen, I'rec. Ch. 370. Croft child, 2 Vern. 101. Hawkins v. Day, v. Pyke, 3 P. Wms. 182. Lechmere r. Ambl. 160. Eari of Carlisle, ibid. 222. Lady Cox's (5) 11 Vin. Abr. 307. Allen, 40. Sed Case, ibid. 339. Lassels t^. Ld. Cor»- vid. Goldsb. 142. wallis, Finch. Rep. 232. 283 OF DEBTS BY SPECIALTY. [bOOK III. founded on an usurious contrart, or a bond ex turpi causa. Such payment vvilJ amount to a devastavit, as well against lega- tees as against creditors (j). If there be a joint, and several obligation, an executor of a deceased obligor may pay the debt out of the estate of the tes- [284] tator, and plead it to other actions by creditors or spe- cialties. But if the obligatioti be joint only, there the survivor must be charged out of his own estate, and the executors of the deceased obligor are not liable on the instrument (^^). A demand arising from a covenant, as I have before observed, is of the same nature, whether it be for a specific sum, or whether it sound merely in damages (^). Thus the grantor's covenant in a marriage settlement for him and his heirs, that the premises are free from incumbrances, shall rank equally with debts on bond (y). So, to an action on simple contract against an executor, he may plead that the testator entered into certain covenants, and may show the breach of them, and state the amount of the damages incurred, and that he has not assets more than to satisfy them: The plea will be good, although the damages are not liquidated (^). But where the husband by marriage articles having agreed to settle one thousand five hun- dred pounds per annum on the issue, made a deficient settle- ment, and devised all his unsettled estates for payment of debts, it was adjudged in equity, that as the settlement was of less than the stipulated value, the widow and infant were to be com- pensated in damages ; but that as the articles made no mention [285] of any specific land, nor contained any covenant in re- gard to its value, they were to come in after creditors by bond('»). If A covenant to pay a sum of money, and die before pay- ment, it may be recovered against his executors (^) : Whereas it has been held, that if he covenant that his executors shall ('■) 11 Vin. Abr. 307. Brownl. 33. (v) 3 Bac. Abr. 81. 11 Vin. Abr. 292 Winchcombe v. Bp. of Winchester, (z) n yln. Abr. 305. Smith v. Har- Hob. 167. Hobinson v Gee, 1 Ves. 254. man, 6 Mod. 144. (w) U Vin. Abr. 288. Rogers v Dan- ^^^ ^^^.^ ^j^,. ^qq. 305. Whitchurch vers, 1 Mod. 165. S. C. Freem. Uep. ^ j^.^y^v^,,^ 2 Vern. 272. " , ,, , . „„ Y-on (b) Perrot T>. Austin, Cro. Eliz. 232. (") Plamer^.. Marchant, SBurr. I08O. ^ / .•'reemantle v. Dedire. 1 P. Wms. 429, ^heph. Ep.p. 990. CHAP. II.] OF DEBTS BY SPECIALTY. 2S5 pay the money, no action can be maintained against them, on the principle that it could not be a debt of the testator («) ; but this latter case is of ver-y doubtful authority, for there also the testator was himself bound, and the lien falls upon his repre- sentatives, thougli he himself could not ha^e been sued ; and it seems that on either covenant they are equally responsible (''). Of this class also are debts by mortgage, and although there be neither bond nor covenant for the payment of the mortgage money, yet it is payable out of the personal assets («). But if such debt be paid out of those assets, the other cicditors, as well by specialty as on simple contract, and even legatees, are, in case of a deficiency of that fund, entitled in equity to the* advantage of the mortgage, to the extent of what was applied in discharge of it out of the personal estate (J). [286] Last in the order of payment are debts on simple con- tract; as on bills and notes not under seal, and verbal promises(s), or such as are implied in law : Thus where A received with an apprentice the sum of two bundled and fifty pounds, and died about two years afterwards, iiaving employed the appren- tice, during that period, in inferior affairs, the executors were decreed in equity, after jiayment of the debts by specialty, to repay the money as a debt due by simple contract, deducting at the rate of twenty pounds a-year for the maintenance of the apprentice during the time he lived with his master (•>). On contracts of this nature, debts due to the king shall, it seems, be satisfied before debts which are due to subjects (•) ; the wages also of domestic servants and of labourers appear, with great reason, entitled to a preference j but, with the exception of these, (0 11 Vin. Abr. 276. Perot v. Austin, ing, ib. 763. S. C. 10 Mod. 426. Cope Cro. Eliz. 232. vid. Co. Litt. 386. v. Cope, Salk. 449. and vid. infr. (-1) Id. 3 Burr. 183. 1384. (g) 2 Bl. Com. 465, 466. 511. Off. Ex. (=) Vid. Bristol v. Hung-erford, 2 Vern. 155 . 524. PowelonMortg. 813. HowelW. ,, . „ tj j i r 1 iv* on ° (") Soan V. Bowden Sc Eyles, M. 30 Price, 1 P. Wms. 291.294. King t;. ), ^ „ .,, ,, ,,. ,,/ , „„ , „. ' „ „, „ „ ° Car. 2. Ch. Ca. lemp. Inich. 396, 1 Kmg, 3 P. Wms. 358. ., i . o- ° Burn. Just, 80. (f) Com. Dig. Chan. 2 G.4. Fletcher V. Stone. 2 Vern. 273. Wilson v. Fxeld- ('> ^ Bac. Abr, 80. in note. 286 OF DEBTS BY SIMPLE CONTRACT. [bOOK III. the executor has a riglit likewise, in this species of debts, to prefer in payment whichever he pleases C^). But where the testator, though in no respect indebted to his brother, had signed a note by which he acknowledged himself indebted to his brother in 50001. and always kept the will in his own custody, and the brother knew nothing of it at the time it was signed, and at the testator's death it was found among his papers, it w^as held to be a matter merely initiate or intend- ed, and never perfected, and consequently as no debt at all (•). With regard to the interest of debts : On a judgment subse- quent interest cannot be claimed, but it may be recovered in * an action on the judgment (™). [1] Debts by specialty are pay- able with interest ("). And it has been held, that even on de- mands arising from covenant, although not liquidated, and [287] sounding only in damages, interest is allowed ("). But interest cannot be recovered on a bond beyond its penalty (p). Yet to that extent it may be recovered, although not expressly reserved (q). In respect to interest on simple contract debts, the holder of a bill of exchange or of a promissory note is enti- tled to recover the money payable upon it with interest (■") in some cases from the date of the bill or note («) ; but in general, from the time at which it ouglit to have been regularly paid down to the time when the plaintiff will be entitled to final judgment ('), and all incidental" expenses occasioned by non- ('<) 2 Bl. Com. 511. 1 Roll.Abr. 92/. Ch. Rep. 496. Grosvenor v. Cook, 11 Vin. Abr. 274. in note. Sbep. Epit. Dick. Rep. 305. Sed vid. Lord Lons- 986. Sbep. Touchst. 478. dale v. Church, 2 Term Rep. 388. (,') Disher v. Disher, 1 P. Wms. 204. (i) Tidd's Prac. B. R. 484, 485. Far- (™) Creuze ■«. Hunter, 2 Yes. jun. 162. quhar n. Morris, 7 Term Rep 124. 165. But see 1 Bos. & Pull. 337. (") Com. Dig. Chan. 3 S. 1. (') Bailey on Bills of Exch. 90, 91. (") 14 Vin.Abr. Interest. C. 2. Fonbl. Blaney v. Hendricks, Bl. Rep. 761. 424- sed vid. Svveetland v. Squire, 2 Vid. also Bun. 119. Auriol t. Thomas, Salk. 623. 2 Term Rep. 52. (?) Cieuze -y. Hunter, 2 Ves.jun. 168. - (') Bailey on Bills of Exch. 91. Sharpe v. Earl of Scarborougli, 3 Ves. (0 Robinson v. Bland, Burr. Rep. jun. 557. Knight v. Maclean, 3 Bro. 1077. [1] Interest, generally speaking, is a legal incident of every judgment. 4 Dall. 252. CHAP. II.] OF DEBTS BY SIMPLE CONTRACT. 287 acceptance, or non-payment ("). Thus, on a bill or note pay- able on piesentnient, interest may be computed from the pre- sentment (^). And in regard to all other debts of this species, it is the constant practice, either on the contract, or in damages, to give interest for the detention ("). Book debts, indeed, form an exception to this rule : By the common law they do not of course carry interest, but even on them it may be payable in [288] consequence of tiie usage of pai-ticular branches of trade, or in cases of long delay under vexatious and oppressive cir- cumstances, if a jury in their discretion shall think fit to allow it (''). If the testator by the will direct that all his debts shall be paid, or make any provision for the payment of his debts in general, this shall revive a debt barred by the statute of limita- tions, and render it payable by the executor with the others ()). The principle here laid down must not now be considered as the law, as in a late case Sir Thomas Plumer, V. C. in an elaborate judgment, after considering all the authorities, de- cided, that a devise in trust for payment of debts, did not revive a debt, upon which the statute of limitations had taken effect, by the expiration of the time before the testator's death (^). Sect. IV. Of a creditor- s gaining priorihj hij legal or equitable process Of notice to an executor of debts bij specialty, or simple contract. Such is the order which the law prescribes to an executor for the payment of debts ; and although he has a right to pay one creditor in preference to another of the same degree, yet this election may be controlled by legal or equitable proceedings (°) Bailey on Bills of Exch. 91. Auriol (v) Andrews v. Brown, Free. Ch. 385. V. Thomas, 2 Term Rep. 52. Blakeway v. Earl of Strafford, 2 P. (>') Blaney v. Hendricks, Bl. Rep. 761. Wms. 373. (^) Craven v. Tickel, 1 Ves. jun. 63. (^) B^rke ,,. jones, 2 Vez. & Bea. 275. (") Eddowes v. Hopkins, Dougl. 361. Kk 388 CREDITOR GAINING PRIORITY. [bOOK 111. against liim, of wliich he lias due notice (^). Thus, if an action be properly commenced against an executor for any specific debt, it must be preferred by him in paynRMit to others of the same class. Nor, in that case, shall he be warranted in mak- [289] ing any voluntary payment of such other debts, to defeat the party of his remedy (''). Yet although one creditor commence an action, if another creditor in equal degree commence a subsequent action, and first recover Judgment, he must be first satisfied. Hence an executor has it in his election to give a preference by confess- ing judgment in the action of the one, and pleading such judg- ment to the action of the other (<=). But if, for the purpose of favouring the claim of one plaintiff in prejudice to that of an- other, he plead a matter which he knows to be false, the plea shall not be available, as it shall be if the falsity exist not in his own knowledge, as if he plead non est factum testatoris {^). And even after an interlocutory judgment, and before the execution of a writ of inquiry of damages, he may confess a judgment in an action for a debt in equal degree («) ; for he is in no case bound against his will to defend a suit, and expend the assets in costs, where the case is clear (f). According to several adjudged cases (s), the filing of a bill [290] in equity shall equally prevent the alienation of assets as the filing of an original at law. And, theiefore, if a suit in chancery be instituted by a creditor against an executor, he cannot justify a voluntary payment of another creditor of the same order. But a decision to that effect was reversed in the (») Off. Ex. 1.45. Goodfellow v. Burchett, 2 Vern. 300. (t-) 11 Vin. Abr. 296. in note. Good- Swinb. p. 6. s. 16. 2 Fonbl. 411, 412- fellow V. Burchett, 2 Vern. 300 2 Holbird v. Anderson, 5 Term Hep. Fonbl. 412 Com. Dig. Admon. C. 2. 238, 239. 14 Johns. Rep. 446. 3 Bac. Abr 83. Parker v. Dee, 2 (■') 11 Vin. Abr. 296. Parker v. Dee, Chan. Ca. 201. SoUey v. Gower, 2 2 Chan. Ca. 201. Jolly v. Gower, 2 Vern. 62. Off. Ex. 143. 146. 2 Bl. , Vern 62. Com. 512. Riiggles v. Shennan, 14 («) Smith v. Hasklns, 2 Atk. 386. Johns. Hep. 446. (f) Off. Ex. 145. •> («) Off. Ex. 14.5. 11 Vin. Abr. 296. (p) 2 Fonbl. 412. note. S. Joseph v. in note 302. Palmer v. Lawson, 1 Lev. Mott, Free. Chan. 79. Darston v. Earl 206. Waring v. Danvers, 1 P. Wms. of Ortbrd, ib. 188. Wright v. Wood- 295. Mellor v. Overton, Carter, 228. ward, 1 Vern. 369. 3 Bac. Abr. 81. CHAP. 11.3 CREDITOR GAINING PRIORITY. 290 House of Lords, principally on the ground, that a decree can- not be pleaded at law to an action brought against an executor on another debt of equal rank. However, it is now settled, that though a decree in equity cannot be pleaded at law, it is equi- valent, in the administration of assets, to a jiidgmeutj and, therefore, that if a decree have a real priority in point of time, not by fiction and relation to the first day of term, it shall be preferred, in the order of payment, to subsequent judgments; and the executor, as we have seen, shall be protected in his obedience to such decree, and all prrtceedings against him at law stayed by injunction (*>). So, pending a suit in equity by one creditor, an executor may confess a judgment at law in favour of another creditor of the same degree ('). He may also confess a judgment after a deci-ee quod compu- tet, if before a final decree. Such decree quod computet is analogous to an interlocutory judgment at law; it does not [291] pass in rem judicatam until the final decree (k). Nor will equity interpose, where, after an action brought by one creditor, an executor confesses judgment to another credit- or in equal degree (i) ; even although the judgment be given on a quantum meruit, without a writ of inquiry to ascertain the damages, if they be so laid in the declaration as not to exceed the debt which is really due (™). Nor, where a ci'editor sues an executor at law and in equity at the same time for the same demand, will ec{uity compel him to make his election in which of the courts he will proceed, in case the executor be attempting to prefer other creditors before him by confessing judgments to them, but will merely restrain him from taking out execution on the judgment without leave of the court ("). Nor will a mere demand by the creditor divest the executor of his right of (h) Peploe V. Swinburn, Bmib. 48. C*) Smith v. Eyles, 2 Atk. 385. Ca. Darston v. Earl of Orford, 3 P. Wms. Temp. Talb. 217. 401. note F. Forrest, 217. Harding (') 3 Bac. Abr. 83. in note. Waring??. Ti. Edge, 1 Vern. 143 2Vern. Bucele Danvers, 1 P. Wms. 295. 7^. Atleo, 37. Searle "y. Lane, 88. (n,) u yin. Abr. 298. in note. Waring Morrice v. Bank of England, Ca, ,, jy^,, j p. wms. 295. Temp. Talb. 217. 4 Bro. P. C. 287. (0 Waring v. Danvers. 1 P. Wms. 295. C) ^ Bac. Abr. 83. Barker v. Dume- Ca. Temp. Talb. 225. ^•^^' «=^'-"*^^' ^^' ^^- ^'^' 291 CREDITOR GAINING PRIORITY. [bOOK III. giving such preference ; that effect can be produced only by the process of a court of justice (°). Thus the executor is in- vested with large discretionary powers of preferring* one cre- ditor to another of the same class, and in certain cases he may avail liimself of the privilege with great propriety, and on solid reasons (p). But, in general, on a deficiency of assets, it were [292] a more honourable and conscientious discharge of his duty, as far as he has the power of deciding, to pay debts of equal degree in equal proportions (i). Nor is an executor warranted merely in the payment of one debt before another of the same orders he may also pay a debt of an inferior nature before one of a superior, of wliich he has no notice ('), provided a reasonable time has ejapsed after the testator's death ; for such payment, if precipitate, would be evidence of fraud. Of debts of record, supposing, in the case of judgments, they are docquetted, it has been already stated, an executor is bound to take cognisance, as well as of a decree in equity : constructive notice in respect to them is sutl5cient('') ; but of other species of debts there must be actual notice. It has been asserted, that such notice must be by SHit(*); but it is perfectly clear, that an executor, if he be by any means apprized of a debt of a higher degree, would not be justified in exhausting the assets in the discharge of one which is inferior; yet, unless he had some notice of the former, he incurs no risk [293] by the payment, after a competent time, of the latter. Hence it has been held, that an executor may plead a judgment recovered against him on a simple contract to an action of debt on a specialty, if he had no notice of such specialty (") ; and may even voluntarily pay, without notice, such inferior debt in (o) Off. Kx. 145. 88, 89. Sed vid. L. of Ni. Pri. 178. (r) 11 Vin. Abr. 270. 228. Blundiveil Harman v. Harman, 3 Mod. 115. V. Loverdell, Sid. -21. Off. Ex. 260. (0 3 Bac. Abr 83. in note. Brooking- (0) Off. Ex. 260, 261. 3 Bl. Com. 19. " ^'^ Jennings, 1 Mod. 175. Vid. Fitz- ,. . e\h. 77. 0) 3 Bac. Abr. 82. in note. L. or Ni. 7 . o „ . u oo • ^ « *• ''. (") 3 Bac. Abr. 82. in note. Harman ^''^'- ^^^" r. Harman, 2 Show. 492. S. C. 3 0) Dyer, 32. in note. 3 Bac. Abr. 83. Mod. 115. L. of Ni. Pri. 178. Davis in note. Littleton v. Hibbins, Cro. ^^ Monkhonse, Fitzg. 76. Scudamore Eliz. 793. 2 Vern. Searle v. Lane, .„. Hearne, Andrew's Rep. 340. CHAP. II.] NOTICE TO EXECUTOR OF DEBTS. 293 exclusion of the superior, and on a very just principle; for other- wise it mi^^ht be in the power of an obligee to ruin an executor by suppressing a bond until all the assets were expended in the payment of simple contract debts (^^). And, indeed, after a suit is commenced, yet before he has notice of the plaintiff's demand, he is warranted in paying any other creditor {^). On the other hand, an executor is not authorized to confess a judgment for a debt of an inferior nature, if he has notice of the existence of a superior. Thus, where an executor to an action on bond pleaded a judgment confessed by him on the preceding day on a simple contract debt, the plea was disallowed, on the ground of its not averring that the defendant had no notice of the plain- tiff's demand (y). If, ignorant of the existence of a bond, he confess a judgment on a simple contract, and afterwards judgment be given against him on the bond, he is bound, however insufficient the assets, [294] to satisfy both the judgments, for he might have pleaded the first if he had not had assets for both {^). In like manner a judgment must be satisfied, though recovered against one exe- cutor only where there are several (a), or recovered against one executor by the name of an administrator, or vice versa {^).[i'] (^v) 3 Bac. Abr. 82. Off. Ex. 145. 690. Webster v. Hammond, 3 Har. & Bvitton V. Bathurst, 3 Lev. 115. Haw- JWHen. 131. kins V. Day, Ambl. 162. vid. tarn. (z) Com. Dig. Admon. C. 2. Britton Greenwood v. Brudnisli, Free. Ch. v. Bathurst, 3 Lev. 114. 534. (■') Com. Dig. Admon. C. 2. Cro. (X) Off. Ex. 145. Flowd. 279. Finch. ^^''^- '^^^- ^ Sid.404. Parker T^.Amys, L. 79. Harman v. Harman, 3 Mud. * ^^^- ^^^• 11.5. L. of Ni. Pri. 178. (b) Com. Dig. Admon. C. 2. Anon. Cro. Eliz. 646. Parker v. Masters, 1 (y) Sawyer v. Mercer, 1 Term Rep. Sid. 404. Sed vid. Anon. Cro. Eliz. 41. [1] Although in Pennsylvania an executor has no notice of a claim, yet the exhausting of the assets, even afier the expiration of a year, in the payment of legacies or distributive shares, in prejudice of a creditor, (without requir- ing refunding bonds,) would be a devastavit. Swearingen v. Pendleton, 4 Serg, & R. 394. An executor must at his peril take notice of a judgment against his testator, in what court soever it may have been rendered ; and if he exhaust the assets by paying debts of inferior dignity, must satisfy such judgment de bonis pro- priis. J^'immo, Ex'r. v. The Common-wealth, 4 Hen. & Munf 57. [ 295 ] CHAP. in. 0F AN EXECUTOR'S RIGHT TO RETAIN A DEBT DUE TO HIM FROiM THE TESTATOR— UNDER WHAT LIMITATIONS. If a debtor appoint his creditor (a) to the executorship, he is allowed, both at law and in equity, to retain his debt, in pre- ference to all other creditors of an equal degree. This remedy arises from the mere operation of law, on the ground, that it were absurd and incongruous that he should sue himself, or that the same hand should at once pay and receive the same debt. And therefore he may appropriate a sufficient part of the assets in satisfaction of his own demand ; otherwise he would be exposed to the greatest hardship; for, since the cre- ditor who first commences a suit is entitled to a preference in payment, and the executor can commence no suit, he must, in case of an insolvent estate, necessarily lose his debt, unless he has the right of retaining. Thus from the legal principle of the priority of such creditor as first commences an action, the doctrine of retainer is a natural deduction ; but the privilege is accompanied witli this limitation, that he shall not retain his own debt as against those of a higher degree ; for the law places him merely in the same situation as if he had sued himself [296] as executor, and recovered his debt, which there could be no room to suppose, during the existence of those of a superior order (^). As where A, before his marriage, covenanted with B and C to leave them by his will, or that his executors, within (») Supr. 239. Thynn v. Thynn, 1 P. Abr. 922, 923. Plowd. 185. 543. 11 Wms. 296. Vin. Abr. 72.261. Winch. 19. Harg. (b) 2 Bl. Com. 511. 3 Bl. Com. 18,19. Co. Litt. 264. note 1. Vid. infr. 5 Dff". Ex. 32. 142, 143. Com. Dig. Ad- Binn. 167. mon. C. 2. 3 Bac. Abr. 10. 83. Roll. An executor cannot defend himself against the suit of a creditor, by showing that before he had notice of the plaintiff's demand, he had paid over the assets to the legatees of the testator. Kippen^ al. v. Carr's Ex'rs. 4 Munf. 119,120, CHAP. III.] OF executor's RETAINER, &C. 296 six months after l)is death, sliould pay them seven hundred pounds, in trust to pay tiie interest to his wife for )ifc, and, on her deatii, to divide tlie principal among his children, and, in default of children, as he should appoint, and hound himself, his heirs, executois, and administrators, in a penalty for per- formance ; on his dying hefore his wife, without issue and intes- tate, it was held, that B, in the character of administrator, might retain assets to that amount, during the life of the widow, against a bond creditor, who sued before the six months were elapsed {''). So, if A and B he jointly and severally hound in an ohliga- tion, and A appoint the executrix of the obligee his executrix, and die leaving assets, slie is not compelled to resort to an ac- tion against B, but is entitled to retain for the debt ; in case there be not assets, she has a riglit to pursue her remedy on [297] the bond against B (<^). So, if A be indebted to B and C by several bonds, and die, and D take out administration to A, and afterwards B die, having appointed D his executor, he may retain effects, of which he is possessed as administrator of A, to satisfy the debt due to him as the executor of B (f). If A he indebted in a bond to B, and die, having appointed B his executor, who, after having intermeddled with the goods, and before probate also dies ; although, hefore his death, he did not expressly elect in what particular effects he would have the property altered ; yet it must be presumed that it was his intejition to pay his own debt fust, and therefore his executor shall have the same power of retaining as belonged to him (f). So, for a bond executed by the testator to A, conditioned for the payment of money to B, B, it seems, in case he is executor, may retain (^). So, if administration be granted to a creditor, and afterwards repealed at the suit of the next of kin, such creditor may retain against the rigiitful administrator C*). In (<^) Plumer V. Marchant, 3 Burr. 1380. (f) 11 Vin. Abr. 263. Croft v. Pyke, C') Com. Dig-. Admon. C. 1. Fryer v. 3 P. Wms. 183, 184-. and note B. Gildridge, Hob. 10. 3 Bac. Abr. 10. (g) Com. Dig. Admon. C. 2. Semb. 3 Kebl. Rep. 166. Cock v. Cross, 2 Raym. 484. Lev. 73. (!>) 11 Vin. Abr. 265. Blackboroiigh («) 11 Vin. Abr. 261. 2 Brownl. 50. v. Davis, 1 Salk. 38. 297 OF executor's retainer, &C. [book III. short, wherever an executor miglit have heen sued, or might have paid a debt, he has authority to retain ('). But where A and B were joint obligors in a bond, the former as principal, the latter as surety, A died, B took out adminis- tration to him, and on forfeiture of the bond discharged tlie [298] debt; it was held that he could not retain, for, by joining in the bond, the debt became his own {^). Yet in such case, it seems, he might retain for the money paid, as constituting a simple contract debt. A retainer for a debt may either be given in evidence on the plea of plene administravit, or it may be pleaded specially (0- An executor may, as we have seen ('"), retain both at law and in equity, for his whole debt, as against other creditors of the same degree (") : but equity will interpose to restrain him from perverting this privilege to the purposes of fraud (°). Nor will a mere nomination of a creditor to the executorship, if he refuse to act, extinguish his legal remedy for the recovery of his debt (P). Hence if a creditor be appointed executor with others, he may sue them, especially if he hath not administered (i). If there be not personal assets, he may sue the heir, where the heir is bound (■"). [1] (i) Com. Dig. Admon. C 2. Plumer v. (») 3 Bac. Abr. 83- In note. Cock v. Marchant, 3 Burr. 1384. Goodfellow, 10 Mod. 496. (!<) 11 Vin. Abr. 262. Godb. 149. (p) Rawlinson v. Shaw, 3 Term Rep. (') Loane v. Casey, Bl. Rep. 965. 557^ Plumer v. Marchant, 3 Burr. 1383. ^<,j 3 3^^. j^^^ jq^ j„ ^^^^ Off. Ex. 11 Vin. Abr. 266. 1 Brownl. 75. 33. ?'"? flT- ^!u o^^ • . ^xr • (0 Harg. Co. Litt. 264 b. note 1. (■>) 11 Vm. Abr.265. mnote. Wanng ^ ;' J> „, , r- . c^iu ^.n^ ^ ^ , „ „, en- A« Wankford v. Wankford, Salfc. oU4. V. Danvers, 1 P. Wrns. 295. Musson V. May, 3 Ves. & Bea. 194 Off. Ex. 33, 34. [1] In Pennsylvania, under the Act of 1794, an executor or administrator is not entitled to retain the whole amount of his debt; against creditors in equal degree he can only retain pro rata, where there is a deficiency of assets. Ex parte Measoti, 5 Binn. 176. In Maryland, " the executor or administrator may not retain for his own claim against the deceased, unless the same be passed by the Orphan's Court; and every such claim shall stand on equal footing with other claims of tlie same nature." [ 299 3 CHAP. IV. OF THE PAYMENT OF LEGACIES. Sect. I, Legacy what — who may he legatees — ivho not — legacies general, and specific — lapsed, and vested. Having thus discussed the duty of an executor in regard to the payment of debts according to the order described by law, the payment of legacies, in the next place, demands our atten- tion. A legacy is a bequest, or gift of personal property by will. All persons are capable of being legatees, with some special exceptions by common law, and by statute (»). To this disability all traitors are subject C^). By stats. 25 Car, 2. c. 2. and 1 Geo. 1. stat. 2. c. 13, persons required to [300] take the oaths, and otherwise qualify tbemselves for offices, and omitting to do so, shall he incapable of a legacy. By stat. 9 & 10. Wm, 3. c. 32, persons denying the Trinity, or asserting tliat there are more Gods than one, or denying the Christian religion to be true, or the holy scriptures to be of divine authority, shall for the second offence be also incapable of any legacy. Likewise, by stat. 5 Geo. 3. c. 27, if artificers going out of the realm to exercise or teach their trades abroad, or exercising their trades in foreign parts, shall not return within six months next after due warning given them, they shall be subject to the same disqualification. And by stat. 25 Geo, 2. c, 6. all legacies given by will or codicil to witnesses of the same are declared void Q'). And the statute extends to wills disposing of personal property only('=). (') 2 Bl. Com. 512. 4 Burn. Eccl. L. (b) Vid. 2 Bl. Com. 377. and 4 Burn. 313. 4 Eac. Abr. 337. Eccl. L. 78, rh) 2 Bl Com 51'> (') ^^^^ '"■ Sumn^ersgiU, 17 Ves. jun, 508. LI 300 DIFFERENT KINDS OF LEGACIES. [bOOK III, Althougli a man cannot make a grant to his wife, nor enter into a covenant with her, (for such grant would be to suppose her separate existen'^e, and to covenant with her would be to covenant with himself), yet lie niay bequeath any thing to her by will, since that cannot take effect till the coverture is deter- mined by death {^). An infant in ventre sa mere may, as we have seen, be appoint- ed an executor. Ke is also capable of being a legatee («). And a bequest of 2000/. each " to all the children of my sister I. G. whether now born or hereafter to be born," has been held te include all child len born after the testator's death, and an in- quiry was directed, what would be a proper sum to be set apart to answer the legacies to future children (^). If a legatee is sufficiently described in a will, so that he can be identified, a mistake of his christian name will not make the legacy void : as, where a testator gave a legacy unto mij name- sake ThomaSf the second son of my brother John^ John had no son of the name of Thomas, but his second son's name was "William, and he was held entitled {s). And where legacies were given "to the three children of A, the sum of 600l. each," and there were four children all born before the date of the will ; the four were held entitled to 600/. each, for that it was a mere slip in expression, the meaning being, all children; and the court, conceiving the intention to be to give to each child so much, struck out the specified number (•'). Under a bequest by an unmarried man " to my children," parol evidence was allowed to show whom the testator consi- dered iu the character of children : and his illegitimate chil- dren, having obtained a name by reputation, were admitted to take, though not named in the will (■). But a bequest « to such (■i) 1 Bl. Com. 442. Harg. Co. Lilt. (f) Stockdale v. Bushby, Coop. Rep. 112. 229. and 19 Vez. 381. S. C. and see 0) Northey v. Strange, 1 P. Wms. Careless t-. Careless, 1 Mefi. Rep. 384. 342. vid. Ellison v. Airey, 1 Ves. 114. same principle decided, and 19 Vez. Clarke v. Blake, 2 Bro. Ch. Rep. 320. 601. and 1 Cox's Rep. 248. ('') Harvey v. Hebbert, 19 Vez. 125. (') Beachcroft v. Beaclicroft, 1 M?.dd (f)DefflisT). Goldsclimidt, IMer, Rep. „ ^ ^-^A i r j-^r n ^^ ' ' Rep. 4.j0. and see Lord Woodlioiiseiee 417. S.C. 19 Vez. 566. ,\ , , o i»f • r. -im V. Dalrvmple, 2 Men. Rep. 419. CHAP. I\ .] DIFFERENT KINDS OF LEGACIES. 300 child Of children if more than one as A may happen to he en- sient of by me," a natural child of which she was then pregnant, cannot take (y). Grandchildren in a will may he construed to mean great- grandrhildren, unless the intention appeai-s to the contrary ('). The word "relations" in a will means '* next of kin" ('"). And a bequest by a testator in India " to my nearest surviving re- lations in my native country Ireland," was held confined to brothers and sisters, living in Ireland or elsewhere ("). [1] [301] Of legacies there aie two descriptions; a general lega- cy, and a specific legacy («). The former appellation is ex- pressive of such as are pecuniary, or merely of quantity. Un- der the denomination of specific legacies two kinds of gifts are included ; as, first, where a certain chattel is particularly de- scribed, and distinguished from all others of the same species; as, " I give the diamond ring presented to me by A." The second is where a chattel of a certain species is bequeathed without any designation of it as an individual chattel; as, **I give a diamond ring." A bequest in the former mode can be satisfied only by the delivery of the identical subject; and if it be not found among the testator's effects, it fails altogether, unless it be in pawn, when the executor must redeem (p) it for the legatee. But a bequest of the latter description may be (k) Earle v. Wilson, 17 Vcz. 528 and (") Smith v. Campbell, 19 Vez. 400. see Arnold v. Preston, 18 Vez. 288. (°) 4 Bac. Abr. 337. 425. 2 Bl. Com. (1) Husseyr. Berkeley, 2 Eden's Rep. 512. 194. 5 Binn. 601. (p) Ashburnert). M'Guire, 2 Bro. Ch. (">) Pope w. Whitcombe, 3 Meri. Rep. Rep. 113. 4 Bac. Abr. 355. Swinb. 689. part 7. s. 20. [1] A testator, after giving particular legacies to certain nephews and nieces, and to certain of their children, enumerated by name, and inter alias to the widow of one of his nephews, bequeathed all the residue of his estate among " my nephews and nieces of every description mentioned in this will." Held, that the bequest was confined to nephews and nieces, and did not extend to their children, nor to the widow of the deceased nephew. Lewis v. Fishev & al. 2 Yeates, 296. Devise to " the Roman Catholic priest that shall succeed me," and that the said priest shall duly say four masses, &c. Ruled, that such priest must be regularly admitted by the bishop to the discharge of his duties, and must have the pastoral care of his congregation. Broiver's Ex'rs. v. Fromm, Addis. 362. 301 DIFFERENT KINDS OF LEGACIES. [bOOK III. fulfilled by the delivery of any thing of the same kind (i). A legacy of " 50/. for a ring" is a general pecuniary legacy (•^). Although tlie courts are averse from construing legacies to be specific (^), yet, if the words clearly indicate an intention to separate the particular thing bequeathed from the general pro- perty of the testator, they shall have that operation. Hence, nnder some circumstances, even pecuniary legacies arc held to be specific. As a certain sum of money in a certain bag or [302] chest (*), or in navy or India hills ("), or the bequest of a sum of money in the hands of A (v), or of two thousand pounds, the balance due to the testator from his partner on the last set- tlement between them, if the testator did not draw sucli money out of trade before he died (^). So a devise of a rent-charge out of a term for years ('f), and a bequest of a bond, or of the testator's stock in a particular fund, have been thus classed (y), as likewise has a legacy to be paid out of the profits of a farm, whicli the testator directed to be carried on (^). And a bequest of all the testator's personal estate in a certain town has been so considered (='). [2] (q) 2 Fonbl. 374. note O. Purse v. («) Ellis ■«. Walker, 1 Ambl. 310. Snaplin, 1 Atk. 415. Forrest. 227. (x) Long w. Short, 1 P. Wms. 403. Bronsdon r-. Winter, AmbS. 57. ^^^ Ashburner v. M'Guire, 2 Bro. Ch. (r)Apreecet;.Apreece, IVes.&Bea. -^^^^^q Forrest. 152. Avelyn r,. 2^^- Ward, 1 Ves. 425. 1 Eq. Ca. Abr. 298. (.) Ellis V. Walker, Ambl. 310. Uay ^^^^^^ ^ ^^^^^^^ 3 ^ ^^^^ 33^ •wood, 228. 0) Lawson v. Stitch. 1 Atk. 508. (^) ^^^'''' ^- ^'^y«"' ^ Bro. Ch. Rep. u) Pitt V. Ld. Camelford, 3 Bro. Ch. ^^5. Vid. All Souls' College v. Cod- ,/ ,^,. ,,.,, All 1 ir dington, 1 P. Wms. 598. Ilep. 160. GiUaume v. Adderley, 15 » ' Ves. jun. 384. (■*) ^^y^^' ""■ Sayer, Prec. Ch. 392. 1 {^) Hinton V. Pinke, 1 P.Wms. 540. ""«^*- -58. [2] Legacy of the dividends and income of ^8000 government stock, to trus- tees, for the separate use of testator's niece, concluding, " and I also give to the said trustees tlie principal of tlie said §8000, as the same shall be paid off and discharged by the government of the United States, to be held in trust, and applied as before directed." Between the dale of the will and the death of the testator, the stock was reduced by the annual sums paid by the government in extinguishment of the public debt. Held, that the legacy was specific, and that the legatee was only entitled to the stock as it was reduced at the dcatli of the testator. Cuthbert v. Cuthbert, 3 Yeates, 48G, CHAP. IV.] DIFFERENT KINDS OF LEGACIES. 302 III like manner the testator may carve specific legacies out of a specific chattel ; as where he gives part of the debt due to him from A, it will be a specific legacy {^). So a bequest of part of the testator's stock in a certain fund shall bear the same construction («). But a testator reciting tliat he had tSOOL 5 per cents, gave it to A, and then gave to B all other his stocks that he might be possessed of at his death ; the latter bequest is not specific, but is liable to debts in preference to the former (^). So where A devised to his wife all his personal estate at B, this was held to be a specific legacy; and the same as if he had enumerated all the particulars there (e). On the other hand, a mere bequest of qtiantity, whether of money or of any other chattel, is a general legacy ; as of a quantity of stock (f). And where the testator has not such stock at his death, such bequest amounts to a direction to the execu- [303] tor to procure so much stock for the legatee (s). But where a testator being indebted on mortgage, and possessed of 5000^. stock, by his will gave to A and B all the stock he had in the 3 per cents, being about 50001. except 500?. which he gave to C ; and he devised other specific parts of his property to be sold, and the produce to be applied in discharge of the mortgage ; and afterwards the testator sold out 2000?. part of the 5000?. and paid off the mortgage with it : This was lield to have re- deemed the legacy pro tanto, and that the specific legatees could have no relief from the funds by the will appropriated for pay- ment of the mortgage ('•). So the purchase to which a general legacy is to be applied will not alter its nature; as where it is directed to be laid out in land('). Personal annuities given by will arc also general legacies ('*). The same legacies may be specific in one sense, ('') Heath v. Perry, 3 Atk. 103. ringlon, 2 Ves. 562. {'^) Sleech r. Thorington, 2 Ves. 563. (?) Partridge v. Partridge, Ca. Temp See 2 Fonbl. 374. note O. 1 P. Wms. Talbot. 227. Mann v. Copland, 2 540, note 1. Madd. Rep. 223. (<*) Parrott v. Worsfield, 1 Jac. 8c (h) Humphreys t). Humphreys, 2 Cox's Walk. Rep. 594. Rep. 184. (') 2 Fonbl. 376. Sayer v. Sayer, 2 (') Hinton v. Pink, 1 P. Wms. 540. Vern. 688. (k) Hume v. Edwards, 3 Atk. 693. (f) 1 P. Wms. 540, note. Purse v. Lewin v. Lewin, 2 Ves. 417. 2 Fonbl. Snaplin, ' 1 Atk. 414. Sleech v. Tho- 378. :303 DIFFERENT KINDS OF LEGACIES. [bOOK III. and pecuniary in another; specific as given out of a particular fund, and not out of the estate at large; pecuniary, as consist- ing only of definite sums of money, and not amounting to a gift of the fund itself, or any aliquot part of it(i). In a case before Lord Camden C. his lordship took the dis- tinction between a legacy of a certain sum due from a particular person, and a legacy of such debt generally, considering the former as a legacy of quantity, the latter as specific {"'). So, in another case, where, after the following berjuest, <* I give to " A one thousand four hundred pounds, for which I have sold <' my estate this day ;" the testator received the whole of that sum, paid it into his banker's, and drew out one thousand one hundred pounds of the money; this was also held by Lord Ba- thurst C. to be a legacy of quantity ("). But Lord Thurlow C. disallowed that distinction (<*) ; and held a legacy of " the prin- " cipal of A's bond for three thousand five hundred pounds," to be a specific legacy, notwithstanding the sum was named. A legacy to a natural child, of " 5,000/. sterling, or 50,000 " current rupees," afterwards described as <« now vested in the « East India Company's bonds," and sometimes mentioned as " the said sum of 5,000/. sterling," Lord Eldon held not speci- fic but general ; as a demonstrative legacy, with a fund pointed out(P). Such are the different species of legacies. They are next to be considered as lapsed or vested. It is a general rule, that if a legatee die before the testator, the legacy shall be lapsed (i), r304] and sink into the residuum of the testator's personal es- tate ; nor is it an exception that the legacy is left to A, his exe- cutors, administrators, or assigns (••) ; or to A and his heirs. Vnd although in the bequest of a legacy to A, the testator should (1) Smith V. Fitzgerald, 3 Ves. & (p) Gillaumev. Adderley, 15 Ves.jun* Bea. 5. 384. (m) 2 P. Wms. 330, note 1. Attorney- ('0 4 Bac. Abr. 387. Elliot v. Daven- Cieneral v. Parkin, Ambl. 566. P"rt, 1 P- Wms. 83. Hutcheson v. ^ •. J o D Hammond, 3 Bro. C.C. 142. 2 Boot. (n) Carteret V. Carteret, cited 2 Bro. ' rn^cv. mc ^Z 487. 5 liinn. 607. 2 Yeates, 525. Ch. Rep. 114. ^^^ Maybank v. Brooks, 1 Bro. Ch. (o) Ashburner r.M'Guire, 2 Bro.Ch. ^^^ g^ Tidvvell v. Ariel. 3 Madi Rep. 113, 114. Rep. 403. CHAP. IV.] DIFFERENT KINDS OF LEGACIES. 304 express an intention that it should not lapse in case A die be- fore him, this is not sullicient to exclude the next of kin(*). Yet a hcfjuest may he specially framed, so as to prevent its lapse on such previous death of the legatee, as if in case of the death of A before the testator, other persons are named to take, for instance, A's legal representatives (*), or the " heir under this *« will (») ;" or to A, *' and failing him by decease before me to " his heirs," the legacy on A's so dying shall vest in such nomi- nees (v). Nor is a legacy to two or more within the rule; for it is settled, that a legacy to several persons is not extinguished by the death of one of them, hut shall vest in the survivor (''). [3] (») Sibley v. Cook, 3 Atk. 572. {") Sibley v. Cook, 3 Atk. 572. See (0 Bridge v. Abbot, 3 Bro. C. C. 224. also Sibthorp v. Moxam, 3 Atk. 580. (") Rose V. Rose, 17 Ves. jun. 347. Q") Northey v. Burbag'e, Gilb. Rep. Vaux V. Henderson, 1 Jac. & Walk. 137. BufFor v. Bradlbrd, 2 Atk. 220. 388. 1 Bro-wne's Rep. 311. Ryder v. Wager, 2 V. Wms. 331. [3] Where the testator declares his intent that the legacies shall not vest till i^ future time, then all those who were born before the time of distribution shall take, unless there be something in the will to the contrary. Pemberton V. Parke, 5 Binn. 507. Where a legacy, pa3-able at a future time, is charged on personal estate only, if the legatee dies before the day of payment, his per- sonal representative will be entitled to it. Static & al. v. Masseij, 2 Yeates, 369. Under a devise of "all the remainder or residue of my estate, real and per- sonal, whatsoever and wheresoever, to my grandchildren, the children of my son A, deceased, to be equally divided between them, and to be enjoyed by them severally and respectively, and their heirs and assigns forever," a post- humous grandchild in ventre sa mere, at the death of the testator, is entitled to a grandchild's share. Swift v. Duffield, 5 Serg. & R. 38. Devise to the testator's wife, and after her decease to trustees, in trust to sell the estate, and divide the money arising from the same "between my chil- dren hereinafter named, when they shall attain severally to tlie age of twenty- one years, or be married, which shall first happen." A, one of the children, attained the age of twenty-one, married, and died in the lifetime of the widow. After her death, the trustees sold. Held, that this was a vested legacy in A, and that his administrator was entitled to recover a proportionable part of the proceeds. Price v. Watkins, 1 Dall 8. Where it may be clearly gathered from the will, that it is the testator's in- tention that the legacy shall vest, as where he gives the disposal of it to wliom the legatee may think proper in her lifetime, the legacy will not lapse, though the legatee die before the legacy is payable. Stone & al. v. Massey, 2 Yeates, 363— Even though the legacy be charged upon real estate. 304 DIFFERENT KINDS OF LEGACIES. [bOOK III. But where two several legacies were given to A and B, and in case A or B died without lawful issue, then the whole of the said two legacies to go to the survivor, his executors, adminis- trators, or assigns, and A died witliout issue in the testator's lifetime, it was held to have lapsed, the contingency on which it was given over being too remote. Nor does the rule extend to a legacy given over after the death of the first legatee, for in such case the legatee in remainder shall have it immediately (^). Nor will a legacy lapse by the death of the legatee in the tes- tator's lifetime, if he is to take in the character of trustee (y). A bequest by the obligee to one of joint obligors of a debt due on the bond, in these terms — *' I remit ^wA forgive to T. W. « the sum of 500/. which he stands indebted to. me on his bond ; <* and I direct the said bond to he delivered up to him and can- *( celled,'* is merely a personal legacy to T. W., and lapses by his death in the lifetime of the testator ; for, notwithstanding the terms in which it is bequeathed, such a bequest does not operate by way of equitable release, or as an extinguishment of the debt. Therefore the surviving co-obligor, and the re- C) 1 And. 33. pi. 82. Miller v. War- brook, 2 Vern. 378. 2 Fonbl. 368, ren, 9 Vern. 207. Perkins v. Mickle- note G. thwaite, 1 P. Wms. 274. Ryder v. ^^.^ g^^ ^^^ ^ ^^^^j^^ ^ ^.^^ j^p Wager, 2 P. Wms. 331. Willing v. ^^^^^ ^ England, 2 Vern. 468. 2 Baine, 3 P. Wms. 113. Lumley v. ^^^^^ ^^^^ ^^^^ ^ ^^^ ^ ^^^^ ^^ May, Prec. Ch. 37- Hornsby v. Horns- ^^^^^^-^^-^ ^ French, 1 Cox's Rep. 1. by, Moseley,319. Woodward v. Glass- In Rhode Island, New Hampshire, and Massachusetts, it is enacted, that when any child, grandchild, or other relation, having a devise of real, or be- quest of personal estate, shall die before the testator, leaving lineal descend- ants, such descendants shall take the estate, real or personal, in the same way or manner such devisee would have done, in case he had survived the testator. In New Hampshire and Connecticut, the legacy does not lapse, in any case, by the death of a legatee in the life of the testator, if the legatee leave issue. In Pennsylvania, legacies are restrained from lapse by the death of a legatee, only when given to a child, or other lineal descendant of the testator. Ill Soutli Carolina, "If any child die in the lifetime of the father or mother, leaving issue, any legacy given in the last will of such father or mother shall go to such issue, unless such deceased child was equally portioned with the other children by the father or mother when living." CHAP. IV.] LEGACIES LAPSED OR VESTED. 304 presentativcs of the deceased legatee, are not discharged from the payment of the money due on the hond (^). A legacy is also lapsed, if, before the condition on which it is given by the will be performed, the legatee die, or if he die [305] before it is vested in interest (•■'). So where a bequest was to a son of the testator on Iiis ac- complishing his apprenticeship, with the dividends in the mean- time for maintenance, and in case he should die before he ac- complished his apprenticeship, then and in such case to other children, and the legatee died, having accomplished his appren- ticeship in the testator's lifetime, it was held a lapsed legacyC*). And where an estate was devised, charged with two several legacies to A and B, and in case A or B died without lawful issue, then the whole of the said two legacies to go to the sur- vivor, his executors, &c. and A died without issue in the testa- tor's lifetime, the legacy was held to have lapsed, the contin- gency on which it was given over being too remote ("). A legacy given to A to be paid to him, his executors, &c. within twelve months after the death of B, "in case B shall happen to survive my wife,'" and B having died in the life'liie of the testator's wife, the latter words were construed with re- ference only to the time of payment, and not to make void the legacy (<>). We have already seen, that if a legacy be left to A, payable to him at a certain age, it is a vested and transmissible interest in him, debiium in prcesenti, though solvendum infuturo: That it is otherwise, if the legacy be left to him at, or if, or when, he attains such age (*=). The distinction was borrowed from the civil law, and adopted by our courts, not so much from its in- trinsic equity, as from its prevailing in the spiritual courts ; for since the chancery, as will be hereafter shown, has a con- (^) Izon V. Butler, 2 Price Rep. 34. {') Vid. supr. 171,172. 2 Fonbl. 371. and see Toplis v. Baker, 2 Cox's Rep. nole K. Blois v. Blois, 2 Ventr. 347. 118. 2 Ch. 155. Collins v. Metcalf, 1 Vern. {J") 2 Fonbl. 368. 1 Bac. Abr. 410- 462. Gordon v. Raines, 3 P. Wms. (b) Humberstone v. Stanton, 1 Ves. 138. Anon. 2 Vern. 199. Clobberie's & Bea. 385. Case, 2 Ventr. 342. Smell v. Dee, (■:) Massey v. Hudson, 2 Meriv. 130. 2 Salk. 415, Dawson v. Killet, 1 Bro. (■i) Ibid. Ch. Rep. 119. M m 305 LEGACIES LAPSED OR VESTED. [bOOK III. current jurisdiction with them in respect to the recovery of le- gacies, it is reasonable that tliere should be a conformity in their decisions, and that tiic subject should have the same mea- sure of justice, to whatsoever court he may resort. But if such legacies be charged on a real estate, or upon land to be pur- chased w ith the residue of a personal estate (•^), in either case they shall equally lapse for the benefit of the heir ; for with regard to devises affecting lands, the ecclesiastical courts have no concurrent jurisdiction, and therefore the distinction does not extend to them (e). If, as I have before stated, the legacy be made to carry interest, though the words «* to be paid," or « payable," arc omitted, it is vested and transmissible (*"). So [306] if the bequest be to A for life, and after the death of A to B, the bequest to B is vested on the death of the testator, and will not lapse by the death of B in the lifetime of A {s). Where a will recited the probability that the legatee was not living, and gave him a legacy upon express condition that he should return to England, and personally claim of the execu- trix or in the church porch ', and that if he should not so claim wi.hin seven years, he was to be presumed dead, and the legacy to fall into the residue : the legatee not having returned, and dying abroad within seven years. Lord Eldon held that the legacy was not due ; the existence of the legatee, though ap- pearing otherwise, being to be proved by the particular means prescribed, and thei'cfore not within the cases from the civil law, where, the end being obtained, the means were not essen- tial (h). (<*) Harrison v. Naylor, 2 Cox's Rep. sons, 2 Ves. 263. Fonereau v. Fone- 247. 2 Yeates, 369. reau, 3 Atk. 645. («) 4 Bac. Abr. 393. 2 Bl. Coin. 513. (R) 3 Fonbl. 371. note K. Anon. 2 1 Eq. Ca. Abr. 295. Duke of Chandos Ventr. 347. Northey v. Strange, 1 P. V. Talbot, 2 P. Wms. 601. 2 Fonbl. Wms. 342. 566, Darrel v. Molesvvortli, 373. note M. 2 Vern. 378. Tunstall v. Bracken, (f) 2 Fonbl. 371. note K. Clobberie's Ambl. 167. Dawson v. Killet, 1 Bro. Case, 2 Ventr. 342. Pullen v. Ser- Ch Rep. 119. 181. jeant, 2 Chan. Ca. 155. Stapleton v. ('>) Tulk v. Houlditcli, 1 Ves. & Bea. Cheele, 2 Vern. 673. Herbert v. Par- 248. GHAP. IV.] OF TliE EXECUTOll's ASSENT. 306 Sect. II. Of the executor- s assent to a legacy — on what principle necessary — what shall amount to such assent — Assent express or implied — absolute or conditional — has relation to the testator^:^ death — when once made, irrevocable — when incapable of being made. But the bequest of a legacy, whether it be general or spe- cific, transfers only an inchoate property to the legatee. To render it complete and perfect, the assent of the executor is requisite (^). On him all the testator's personal property is devolved, to be applied, in the first place, to the payment of debts ; and, therefore, before he can pay legacies with safety, he is bound to see whether, independently of them, a fund has been left sufficient for the demands of creditors. In case the assets prove inadequate, the legacies must abate or fail altogether, according to the extent of the deficiency. If, [307] on a failure of assets, lie pay legacies, he makes himself per- sonally responsible for the debts to the amount of such legacies. Hence, as a protection to the executor, the law imposes the necessity of his assent to a legacy, before it can be absol.-itely vested ; and such assent, when once giA'en, is considered as evidence of assets, and an admission on the part of the executor that the fund is competent {^). If, without the assent of the executor, the legatee take pons- session of the thing bequeathed, the executor mjiy maintain an action of trespass against him ('=). Nor, even in case of a spe- cific legacy, whether a chattel real or personal be in the cus- tody or possession of the legatee, and the assets be fully adequate to the payment of debts, has he a right to retain it in opposition! to the executor, by whom, in such case an action will lie to re- (■>) 3 Bac. Abr. 84. 2 Bl. Com. 512. IVash. Rep. 308. Ilarg'. Co. Litt. 111. Aleyn. 39. Ab- Q>) Off. Ex. 27. 28. 5 Munf. Rep. 103. ney v. Miller, 2 Atk. 598. Mead v. Ibid. 175. 460. Lord Orrery, 3 Atk. 240. Farrlngton (0 Off. Ex. 27. 223. S Bac. Abr. 84. V. Knightly, 1 P. Wms. 554. Bennet 4 Bac. Abr. 444. Dyer, 254. Keilw. V. Whitehead, 2 P. Wms. 645. 1 128. 307 OF THE EXECUTOR'3 ASSENT [bOOK HI. cover it (''). Nor has such legatee authority to take possession of the legacy without the executor's assent, although the testa- tor by his will expressly direct tliat he shall do so ; for, if this were permitted, a testator might appoint all his effects to be thus taken, in fraud of his creditors ('). Yet, previously to the assent of the executor, a legatee has such an interest in the thing bequeathed, as that, in case of his death before it be paid or [308] delivered, it shall go to his representative (f), or, in case of the outlawry of the legatee, shall be subject to the forfeiture(e). If A release by will a debt due to him from B, it is the better opinion that the assent of the executor is necessary to giv« ef- fect to the testator's intention ; for although on the one hand it may be alleged that the party to whom the debt is bequeathed must necessarily have it by way of retainer, and that such a clause operates rather as an extinguishment than as a donation, and therefore that it needs no such assent as where there is to be a transfer of the property : yet, on the other hand, a debt so released is regarded, with great reason, in the light of a lega- cy, and, like other legacies, not to be sanctioned by the execu- tor, in case the estate be insufficient for the payment of debts. But as soon as the executor assents, and not before, it shall be effectually discharged ('■). With respect to what shall constitute such assent on the part of the executor, the law has for this purpose prescribed no spe- cific form ; a very slight assent is held suflicient (>). It may be either express or implied, absolute or conditional. The executor may not only in direct terms authorize the le- gatee to take possession of the legacy, but his concurrence may [309] be inferred either from indirect expressions or particular acts. And such constructive permission shall be equally avail- able. Thus, for instance, if the executor congratulate the lega- tee on his legacy ; or if a horse is beriueathed to A, and the executor requests him to dispose of it; or if B proposes to ( o J .J 1 rv) Cooper V. Thornlon, 3 Bro. Ch. 300. 1 P.Wms. 285. S.C. Glib Hep. „ n/ ^r- 1 li. 1 1 o, • o -.r,^ r, ^, . „ ^ , . ^^, c ), I^ep. 96. Vid. Maddox t;. Staines, 2 103. S.C. 4 Burn. Eccl. L, 321 S. C. „ '„ ■xr- 1 , T.i •.• ^ « . , Ml P. Wms. 421. A id. also Philips v. Paget, 2 Atk, 81. CHAP. IV.] OF THE PAYMENT OF LEGACIES. 316 will, the decree, doubtless, would have been different (»). So, where A left a legacy of a hundred pounds to each of the three children of B, and appointed C her executor, leaving him the bulk of her estate, provided he paid those three legacies within a year after her death : The defendant within that period paid into tlie children's own hands their several legacies ,• the eldest of whom was then sixteen yeais, the second fourteen, and the youngest only nine : on her coming of age, they filed their bill against the executor to be paid their respective legacies ; sug» gesting, that their father had embezzled tlie money, and was insolvent, and that the paynient was a fraud : The defendant in his answer denied all knowledge of the money's ever having come to the father's hands : The Lord Chancellor held at first, that as the executor paid these legacies to save a forfeiture of what he himself took under the will, he ought not to pay them over again ; but, on farther consideration, conceiving the point to be very doubtful, his lordship recommended a compromise; and the defendant agreeing to pay fifty pounds, to be divided [317] between the three plaintiffs, without costs on either side, they were ordered to release their legacies (y). The rule, however, is not so harsh, as that in all possible cases an executor shall be liable to pay over again legacies of infants, wliich he shall have paid to their parents (^). Thus, where A bequeathed to J. S. a hundred pounds to be equally divided between himself and his family, tlie executrix paid the legacy to J. S. who had a wife and seven children, six of whom were adults, and the seventh an infant : Eleven yeais after the youngest had come of age, and the legacy never having been demanded, they filed their bill against the executrix for the same, insisting that the payment to their father was invalid : It was held, that according to the terms of the will, the legacy was properly paid to J. S. ; and that it belonged to him as trus- tee to divide it: And even on supposition that the payment was w?"'>ng, the great laches, and long acquiescence of the plaintiffs, precluded them from all remedy ("). But where A bequeathed C) Vld. infr. (*) Cooper v. Thornton, 3 Bro. Ch. (y) Philips V. Paget, 2 Atk. 80,81, Rep. 96, (^Ibid. 8L 317 OF THE PAYMENT OF LEGACIES. [bOOK III. his personal estate to ti usteea, in trust to pay six hundred pounds to an infant, and directed that such of his legatees as might be infants at the time of his decease, should receive interest at the rate of five per cent, till their respective legacies should he paid, namely, at their age of twenty-one years ; it was holden, that the executors could not justify paying any part of the principal [318] to the infant, or to his use, before that time, except for absolute necessaries (i»). In case a legacy be too inconsiderable in point of value, to bear the expense of an application to the court of chancery, it seems an executor will be justified in paying it into the hands of the infant, or, which amounts to the same thing, to the fa- ther (•=); but in general, he is not warranted in so doing, unless he he clearly authorized by the will. And if a suit be instituted in the spiritual court for an infant's legacy by the father to have it paid into his hands, an injunction ('^), or prohibition (e), will be granted. But an executor may discharge himself from all responsibility on this head, by virtue of the stat. 36 Geo. 3. c. 52. § 32, by which it is enacted, that where, by reason of the infancy, or absence beyond the seas, of any legatee, the executor cannot pay a legacy chargeable with duty by virtue of that act, (that is to say) given by any will or testamentary instrument of any person who shall die after the passing of that art, it shall be lawful for him to pay such legacy, after deducting the duty chargeable thereon, into the Bank of England, with tlie privity of the accountant-general of the court of chancery, to be placed to the account of the legatee, for payment of which the account- ant-general shall give his certificate, on production of the cer- [319] tificate of the commissioners of stamps, that the duty thereon hatli been duly paid ; and such payment into the bank shall be a sufficient discharge for such legacy, which when paid in shall be laid out by the accountant-general in the purchase ( b) 4 Bac. Abr. 433. Davies v. Austen, Ex. 219, 220. Bilson v. Saunders, 3 Bro Ch. Rep. 178. Bunb. 240. (■:) 4 Burn. Eccl. L. 321. 1 Ch. Ca. ('') Rotheram ■w.Fanshavv, 3Atk.629. 245. Philips v. Paget, 2 Alk. 81. Per Lord Hardwicke, C. arguendo. Com. Dig. Chan. (3 G.6.) Vid. Seton (=) 4 Bac. Abr. 429. in note. Godb. r;. Seton, 2 Bro. Ch, Rep. 613. Off. ^43. CHAP. IV.] OP THE PAYMENT OF LEGACIES. 319 of 3 per cent, consolidated annuities, which, with the dividends thereon, shall be transfencd or paid to the person entitled thereto, or otherwise applied for his benefit, on application to the court of chancery by petition, or motion, in a summary way. But the executor is not hound so to pay tlie les^acy into the bank till the expiration of a year from the testator's death. Where personal property is bequeatlied for life, with remain- der over, and not specifically, it is a general rule that it be converted into 3 per cents, subject in the case of a real security to an inquiry, whether it will be for the benefit of all parties (f). But tliis general rule does not attach upon property of a tes- tator, who makes his will, and dies in India, leaving property and a family there, unless the parties come to this country, and then the person in remainder is entitled to have the fund brought here and invested (&). It lias been decided, that if an executor have a general power to divide a sum of money among children at his discretion, and he make an unreasonable disposition, it will be controlled in a court of equity (••). As, where A, having two daughters, one by a former marriage, and the other by a second, devised his estate to his wife, to be distributed between his daughters as she should think fit, and she gave a thousand pounds to her own daughter, and only a hundred to the other; an equal dis- tribution was decreed ('). In like manner where A having ap- pointed his two daughters his executiices, gave them four hun- dred pounds, to be distributed among themselves and their brothers and sisters, according to their necessity, as the execu- trices, in their discretion, should think fit; the court settled the [320] distribution, and decreed a double share to one of the children, as standing in greater need of it {^). But where the testator left a legacy to his wife, and executrix, to be disposed of among their children in such manner as slje should think fit : it was held that if she make an inequality, the court will not (f) Howe T). Earl of Dartmouth, 7 Ves. Vern. 513. Alexander f. Alexander, jun. 137. 2 Ves. 640. Upton v. Prince, Ca. (?) Holland v. Hughes, 16 Ves. jun. Temp. Talb. 72. 111. (!) Wall V. Thurborne, 1 Vern. 555. (h) 4 Bac. Abr.340. Gibson v. Kinven, (k) Com. Dig. Chan. (4 W. 11.) City 1 Vern. 66. Thomas v. Thomas, 2 of London r. Richmond, 2 Vern. 421- 320 OF THE PAYMENT OF LEGACIES. [bOOK III. enter into the motives of it unless it be illusory, and it she give a mere trifle to one of them ; and even in tiiat case if the child's misbehaviour has been very gross, it shall not be varied. And it seems now settled, that in cases where an executor has such a discretionary power, he may give a larger share to one of the objects than to another, provided tJie share of botii be sub- stantial, and not illusory or merely nominal (i). Where a legacy was given to A, but if the executors after named should think it more for his advantage to have it placed out and to pay him the interest for life, as they in their discre- tion should think fit, and directing that after !)is decease the said sum should be divided among his children, and for default of children over : one of the executors being dead, and the other having renounced, the legacy was held to be al)solute in the legatee ('"). A testator expressed his will and desire, that one third of the principal of his estate and effects should be left entirely to the disposal of his wife, among such of her relations as she might think proper, after the death of his sisters. The wife died without making any disposition, and it was held a trust for her next of kin at the time of her death ("). If a legacy be given to a married woman, it must be paid to the husband. So where a legacy was given to a married wo- man living separate from her husband with no maintenance, and the executor paid it to the wife, and took her receipt for it, yet on a suit instituted by the husband against the executor, he was decreed to pay it over again with interest ("). It hath also been adjudged, that if the husband and wife are divorced a mensd et thorOi and the legacy is left to her, the husband alone [321] may release it(p); and, consequently, to him alone it is (') Maddison v. Andrews, 1 Ves. 57. Burn. Eccl. L. 332. L. of Test. 265. vid. also Alexander v. Alexander, 2 (p) 4 Bac. Abr. 433. 1 Roll. Abr. 343. Ves. 640. Swift v. Gre^son, 1 Term 2 Roll. Abr. 301. S. C. Moore, 665. Rep. 432. Nisbett v. Murray, 5 Ves. " Rye v. Fiiljambe, 683. Stephens v. jun. 149. Longmore T. Broom, 7 Ves. Totty, Cro. Eliz. 908 Stephens r. jun. 124. and Butcher v. Butcher, 9 Totty, Noy. 45. Motam v. Motam, Ves. jun. 382. 1 Roll. Rep. 426. S. C. 3 Buls. 264. ('")Keatesv. Biirton, 14 Ves.jun. 434. Chamberlain v. Hewson, Salk. 115. (") Birch V. Wade, 3 Ves. & Bea. 198. pi. 4. S. G Ld. Raym. 73. S. C 5 Mod. (o) I'almer v. 'I'revor, 1 Vern. 261. 4 69. and 12 Mod. 89. €HAP. IV.] OF THE PAYMENT OF LEGACIES. 321 l)ayable. But the executor, in cases where the husband has made no provision for tlie wife, may decline paying such lega- cy, if it amount to the sum of two hundred pounds, unless he will make an adequate settlement on her (i). Nor will the court of chancery interpose in his favour, but on the same terms (') ; unless the wife appear in court and consent to his re- ceiving it('). And if a woman, who is or has been married, is entitled to a legacy, the court expects a positive affidavit, that the legacy has not been in any manner settled, before it will direct payment to her (*). Nor does the court confine its interposition in favour of the wife, and compel a provision for her against those persons only, who are seeking to obtain her propci-ty by the assistance of the Court; but in extension of the principle of those cases, in which equity restrains the husband from proceeding in the ec- clesiastical court, because that jurisdiction cannot enforce a settlement for the wife, will entertain a bill by a married wo- man against an executor or administrator, and the husband praying for a provision out of a legacy bequeathed to her, or out of a share of an intestate's estate, to whom she is next of kin ("). If a legacy be left to the senior six clerk, to be divided be- tween himself and the other six clerks, it seems that it ought to be paid to the senior, and that it would not be incumbent on the executor to make any inquiry respecting the others ("). Commissioners of Bankrupt may assign a legacy left to a bankrupt before his bankruptcy (") ; and although it be left af- ter his certificate has been signed by the creditors and com- ("5) Lady Elibank v. Montolieu, 5 Ves. (") Lady Elibank v. Montolieu, 5 Ves. jun. 742. in note. Jan. 7o7. See Wright v. Rutter, 2 (j) Milner v. Colmar, 2 P. Wms. 639. Ves. jun. 676. Meales v. Meales, 5 Adams v. Peirce, 3 P. Wms. 11. Ves. jun. 517. in note, and Carr v. Brown v. Elton, ib. 202. Taylor, 10 Ves. jun. 578. and infr. 490. («) Willats v. Cay, 2 Atk, 67. Milner (w) Per M. R. arguendo. Cooper v. V. Colmar, 2 P. Wms. 641. Parsons Thornton, 3 Bro. Cli. Rep. 99. T». Dunne, 2 Ves. 60. Sed vid. ex parte (") Cooke's B. L. 371. Com. Dig. Higham, 2 Ves. 579. Bankrupt (D. 16 ) Toulson v. Grout, (f) Hough V. Ryley, 2 Cox's Rep. 157. 2 Vern. 433. Oo 321 OP THE PAYMENT OF LEGACIES. [bOOK 111. missioners, if before its allowance by the Lord Chancellor (y) ; consequently, in such case the legacy must be paid to the as- signees. Although, as it has been already stated, payment by an exe- cutor of a debt by sim])le contract, before the breach of the con- dition of a bond, is good, and shall not be impeached by it's happening afterwards (^), yet payment of a legacy under the same circumstances shall not be allowed. It was, indeed, for- [322] merly held, that such bond should not hinder the pay- ment of a legacy, because it was uncertain whether the bond would be ever forfeited, but that the executor should pay the legacy coDditionally, and take security of the legatee to refund in the event of a forfeiture of the obligation (^). And in all cases, where a suit was instituted in the spiritual court to com- pel an executor to pay a legacy without a security from the legatee to refund in case of a deficiency of assets, the court of chancery would grant a prohibition ('') ; yet that practice no longer exists. Equity will not now interfere («), but will com- pel a legatee to refund, where the estate proves insufficient, whether security has been given for such a purpose or not (^). A legacy must be paid in the currency of the country in which the testator was resident at the time of making the will. Thus it has been decided, that where a party living in Ireland, or in the West Indies, gives legacies by his will generally, they are payable according to the currency of those respective coun- tries («"). Nor is the case varied by the legatee's residing in England (*■); nor by the testator's having left effects partly [323] here and partly abroad, unless he shall have separated (y) Tredway v. Bourn, 2 Burr. 716. ('') Noel v. Robinson, 1- Vern. 93, 94. (2) Supr. 282. Hawkins v. Day, Ambl. 162. (a) 3 Bac. Abr. 84. 1 Roll. Abr. 928. ^.^ ^^j^;^^,^ ^ ^^.^^^ j ,, ^^^^ ^^^ 4 Burn. Eccl. L. 332. Noel v. Rob.n- ^^^^^ ^ ^ ^ ^^^^ gg^ ^^ ^^^^ ^ son, 2 Venlr. 358. Saunders v. Drake, 2 Atk. 465. Fear. (•>) 4 Burn. Eccl. L. 332, 333. Grove ■ ^^^ ^ ^.^^^^^^^ ^ g^.^ ^^^ j^^p 3g V. Banson, 1 Chan. Ca. 149. Noel v. j^^j^^,^ ^, ,^j^^^.,^^ 3 g_.^ ^,^ ^^^ Kobinson. 2 Venlr. 358. S. C. 1 Vern. ^^ Cockerell v. Barber, 16 Ves. jun 93- 461. (■=) Anon. 1 Atk. 491 • Hawkins v. Day, Ambl 160. ('^) Saunders v. Drake, 2 Atk. 466. CHAP. IV.] OF THE PAYMENT OF INTEREST. 323 the funds, and charged the legacies on his English propcrty(«). If he has given some legacies described as sterling, and otliers without such description, the former are payable in sterling money, the latter in the currency of the country where the tes- tator resided (h). In like manner, if a testator living in Eng- land bequeath a legacy, whether of a single sum of money, or of an annuity charged on lands in another country, it shall be paid in England, and in English money, and without any de- duction for the expenses of its remittance. ('). In regard to the payment of interest on a legacy, it was for- merly held, that in case of a vested legacy charged on lands yielding immediate profits, and no time of payment mentioned in the will, interest should, in respect of such profits, be made payable from the death of the testator {^) ; or that a legacy given out of a personal estate consisting of mortgages bearing interest, or of money in the public funds, the dividends of which are paid half-yearly, should for the same reason carry interest from the same period ('); or that interest on a specific legacy, where it produces interest, should be computed from the time of the testator's death : It being severed from the rest of his estate, and specifically appropiiated for the benefit of the lega- [324] tee, it should therefore carry interest immediately ('"). But if a legacy wei'e given generally out of the personal es- tate, and no time specified by the testator, such legacy should carry interest only from the expiration of the year next after his decease, on the principle that the executor might be rea- sonably allowed that time for the collecting of the effects ("), So it was held, that if a legacy were given, charged on a dry reversion, it should carry interest from a year next after the (?) Ibid. Pearson v. Garnet, 2 Bro. Ch. (') Maxwell v. Wettenhall, 2 P. Wms. Rep 47. 26 and note 2. Lloyd v. AVilliams, CO Saunders v. Drake, 2 Atk. 465. 2 Atk. 1U8. Beckford v. Tobin, 1 Pearson v. Garnet, 2 Bro. Ch. Rep. Ves. 308. Bilson v. Saunders, Bunb. 38. Malcolm v. Martin, 3 Bro. Ch. 240. Stonehouse w. Evelyn, 3 P. Wras. Rep. 50. 253. n\ xnr 11- T» • Ui. HOT. «r C'") Lawson V. Stitch, 1 Atk. 508. (') Wallis V. Briffhtwell, 2 P. Wms. "^ '' Sleech v. Thoringlon, 2 Vez. 563. 88. Holditch v. Mist, 1 P. Wms. 696. ('') 4 Bac. Abr. 439. Maxwell v. Wet- tenhall, ? P. Wms. 26. 2 Bl. Com. 513. Sh.l'e^: Can, 3 Munf. Rep. 10. (n) Maxwell v. Wettenhall, 2 P. Wms. C) 4 Bac. Abr. 439. Maxwell v. Wet- ^e, 27. Lloyd v. W^Jirams. 2 Atk. 108. 324 OF THE PAYMENT OF INTEREST [bOOK III. death of the testator ; inasmuch as a year was a competent time for a sale ("). But the rule that the payment of interest should depend on the fund's heing productive, or barren, is now ex- ploded ; and, generally speaking, interest for a legacy is paya- ble only from a year after the death of the testator : Although he should have left stock ordy, and no other property, yet now no interest would be given upon legacies bequeathed by him till the end of a year next after his death (p). Simple contract debts of another person, charged by the will of a testator upon his real estates, are legacies, and carry in- terest from the death of the testator at 4 per cent{'i). If an annuity be given by the will, it sliall commence imme- diately from the testator's death, and, consequently, the first payment shall be made at the exjjiration of a year next after that event. But if a sum of money be directed by the will to be placed out to produce an annuity, whether that is to be con- sidered as a legacy payable at the end of the year or as an an- nuity payable from the testator's death, seems to be a doubtful point (■■). Although the interest of residue goes with the capital, that of particular legacies docs not, even supposing it be the pay- ment, and not the vesting, that is postponed. Therefore where no direction is given as to surplus interest, and the capital is made payable at a future time, the surplus interest falls into the residue (''). [325] If a legacy, whether vested or not, be payable on a certain day, and the will he silent in respect to interest, it is a general rule, that the interest shall commence only from that time : for it is given for delay of payment, and, consequently, till the day of payment arrives, no interest can accrue to the legatee {^). Hence, as we have seen ("), if a legacy be left to (0) Maxwell x.. Wettenhall, 2 P. Wms. (') Heath v. Perry, 3 Atk. 102. Hearle 26. V- Greenbank, 716. S. C 1 Vez. 307. (P) Gibson v. Bott, 7 Ves. jun. 96, 97. Smell v. Dee, 2 Salk. 415. pi. 2. 2 Swearingham v. StuU, 4 liar. & P. Wms. 481. note 1. Green t. Pigot, M'Hen. 38. 1 Bro. Ch. Rep. 105. Ashburner v. (1) Shirt T-. Westby, 16 Ves. jun. 393. M'Guire, 2 Bro. Ch. Kep. 113. Crick- (0 Gibson V. Bott, 7 Ves. jun. 96,97. ett v. Dolby, 3 Ves. jun. 10. Tyrrell C) Leake v. Robinson, 2 Meriv. Rep. r-. Tyrrell, 4 Ves. jun. 1. 384. (") Supr. 171. 313. CHAP. IV.] ON LEGACIES. 325 A, to be paid at twenty-one, and he die before, his representa- tive shall wait till he would have attained that age, unle^ it were made payable with interest. Nor is it, in such cases, a question of construction, as whether the payment is sus])ended on account of the imbecility of the party, or vvitJia view to the benefit of the estate. The rule I have just stated is technical, established in the ecclesiastical court, and adopted by the court of chancery in numerous adjudications (^ ). If legacies arc given to A and B, each to be paid to them at their respective ages of 23 years, and if they should die before that time, then their respective legacies to sink into the residue of the testa- tor's personal estate, such legacies do not carry interest, and no maintenance can be allowed to the legatees (^). But if a legacy be given to A, to be paid at twenty-one, and if he should die before attaining that age, then to B, and A die before twenty-one, several years after the testator, B is entitled to interest on the legacy from the death of A; for though in such case it were objected that this being as a new substantive le- gacy to B, the executor ought to have a year's time for the payment of it ; yet the court held, that must be intended to be from the death of the testator, whereas in that case the testa- tor had been dead much longer ("). But the principle does not extend to all cases : It does not apply where the legatee was the cliild of the testator : There the court will not postpone the payment of interest, even till a year after the death of the parent, but will order it immediate- ly ; since, by the law of nature, he was obliged to provide not only a future but a present maintenance for his cliild, and shall not be presumed to have meant to leave him destitute (j). But if a father gives a legacy to a child payable at a future day, and makes an express provision for maintenance out of another fund, the legacy shall not carry interest until the time of pay ment(''). (") Tyrrell v. Tyrrell, 4 Ves. jun. 3, (y) Butler r. Butler, 3 Atk. 60. Heath 4, 5. V. Perry, 102. Crickett v. Dolby, 3 (^v) Descrambes v. Tomkins, 1 Cos's Ves. jun. 13. See Ciiambers v. Gold- Rep. 133. win, 11 Ves. jun. 1. (") Laundy v, Williams, 2 P. Wms. (=') Wynch v. Wynch, 1 Cox's Rep. 481. , 433, 325 OF THE PAYMENT OF INTEREST [bOOK III. And where the testator devised estates in Jamaica to trus- tees and their heirs, in trust to maintain and educate his sons during their minority, and his daughter until the age of twen- ty-one years, or day of marriage, which should first happen, and subject thereto, devised the estates to his sons, charged with the payment of 10,000^. to his daughter, in case she should live to attain her age of twenty-one years, the same to carry i)iterest from the time of her attaining such age of twenty-one, at the rate of 6/. per cent, and to be paid by instalments, the first payment to be made when and if she should attain twenty- one ; and the daughter married at the age of eighteen years. Lord Eldon held, that the testator having expressly given in- terest from the period of the daughter's majority to the time when the legacy was to be paid, could not mean that the child should have nothing during the interval between her marriage and her attaining the age of twenty-one years, and therefore decreed her a reasonable maintenance out of the assets for that period («). And where a testator gave a legacy to his daughter, to be paid to her at twenty-one or marriage, without interest for the same in the meantime, but if she died before twenty-one or marriage, then the legacy was not to be raised, but was to sink into the residue of his personal estate, and he directed that out of the interest of the legacy certain sums of money should be applied for the maintenance of his daughter : it was held that the interest of the legacy beyond the maintenance was vested in the daughter, and must accumulate for her benefit C'). [326] Whether a legatee, if a natural child, be also comprised within the exception, is not so clear. Lord Hardwicke, C ex- pressed an opinion in the negative, as well on the principle of law, which recognizes no relationship in sucli child, as also on the general i)()licy of encouraging marriage, and discountenanc- ing immorality ('^). In a recent case, the Master of the Rolls intimated, that illegitimate children were to be admitted to the same benefit ('^). But in a subsequent case, the Court of Ex- (^) Chambers v. Goldwin, 11 Ves. (") Hearle v. Greenbank, 1 Vez. 310. jun 1- ('') Crickett v. Dolby, 3 Ves. jun. 12. (^) Carey v. Askew, 1 Cox's Rep. 243. CHAP. IV.] ON LEGACIES, 326 chequer held that they are not(e). If, however, it can be ap- plied from tlie wording of tlie will that the testator intended^t, interest will be allowed from the testator's death («). Whether a grandchild shall be thus favoured, is a point like- wise on which there has been a difference of opinion : such ad- vantage has been, in several instances, denied to him (s). But his honour, in the case just alluded to, appears to have consi- dered him as on the same footing with a child : And that opinion has been confirmed by subsequent ad judications (•>). The widow of the testator will not be entitled to interest from the time of his death ('). A legacy to a nephew, payable at twenty-one, is clearly comprehended under the general rule, and shall carry interest only from the time of payment {^). And a legacy to the wife of a nephew, expressly given for the maintenance of herself and children, she being separated from her husband, shall only carry interest from the end of the year after the tes- tator's death; and the court considered it would be introducing a new rule, particularly as the legatee was adult, if it were held otherwise (>). But the rule is not applicable to a bequest of a residue, subject to be divested on a contingency ; for it would be absurd to say the testator meant to die intestate as to the produce, when he has given a vested interest in the capital ('"). If a legacy be left to an infant payable at twenty-one, and de- vised over on his dying before he attains that age, and such event happens, the interest accumulated from the death of the [327] testator to that of the infant shall go to his representa- tive, and not to the remainder-man (n). And where legacies (■=) Lowndes r. Lowndes, ISVes-jun. 301. Stent t). Robinson, 12Ves. jun,. 301. 461. (f) Hill V. Hill, 3 Ves. & Bea. 183. C') Crickett v. Dolby, 3 Ves. jun. 12, /,N u u. u ■ o A*i o-^r> (') liaven v. White, 1 Swans. Rep. (g) Ha\i!?nton v. Harrison, 2 Atk. 3o0. ^ '' ' '^ Tj .1 n .1 o 4,1 /to ^ B 553. S. C. 1 AVils. 204. Butler V. Butler, 3 Alk. 59. 4 Bro. ^, „ ..„ . , j„ u («>)Nicliols'y. Osborn, 2P. Wms.420. Ch. Rep. 149. m note, and Descrambes ^ ^ „, ,. 1 r^ , n ir,.-, Vid. Tyrrell t). Tyrrell, 4 Ves. jun. 4. V. Tomknis, 1 Cox's Rep. 133. -^ . [ •' ' (n) Tissen v. Tissen, 1 P. Wms. 500, (h) Crickett V. Dolby, 3 Ves. jun. 12. ^ p. Wms,421. note 1. ibid. 504. Green 5 Ves. jun. 194, 195. in note. Collis ^ ^^.^^^^ ^ ^^j, 4.. chaworth v. V. Blackburn, 9 Ves. jun. 470. and ^^^^^^^ j Bro, Ch. Rep. 82. ibid, 335. see Hill V. Hill, 3 Ves, & Bea, 183. shepherd v. Ingram, Ambl. 448. Vid, C) Lowndes V. Lowndes, 15 Ves. jun. Butler v. Butler, 3 Atk. 59. 327 OF THE PAYMENT OF INTEREST. [bOOK III. were given to infants, payable at twenty-one, with benefit of survivorsliip in the event of death under tliat age, and a power to the executors to apply any part of the legacies towards the maintenance of the legatees, the legacies were held to bear in- terest from the death of the testatrix ; the infants being her cousins, and destitute of other pi'ovision ("). If the father of an infant legatee be living, he is bound by the municipal law, as well as by the ties of nature, to maintain his child. Nor, as it has been frequently held, sliall tlie interest of the legacy be applied to tliat purpose, unless in cases of great necessity, arising from the distressed and embarrassed circum- stances of the parent (p). In cases so pressing, the infant shall be maintained out of the interest of the legacy, whether it be vested or contingent ; and, although the legacy be devised over on the infant's dying before he attains twenty-one (i). Indeed, in some recent instances, where tl»e will has contained an ex- press direction for maintenance of the legatees out of the inter- est of the legacies, and there have been other children, not the objects of the testator's bounty, such maintenance has been or- dered, on the ground of the father's not being of ability to edu- cate the favoured children in a manner suitable to their for- tunes ('). But the court will not make an allowance to a father for the maintenance of a child for the time jmsU although it should appear that he had not been of ability to maintain him, and the will has expressly given the produce to trustees for the child's maintenance ('*). And the court has made a liberal al- lowance of maintenance for an infant, in regard to an illegiti- mate brother unprovided for(t). On occasions extremely urgent, the court will even break in upon the principal ; but this authority is exercised very spa- (") Polt w. Fellows, 1 Swans. 561, (') Hoste v. Pratt, 3 Ves. jun. 753. (p) Butler V. Butler, 3 Atk. 60. Dar- Vid. also Mundy r. Earl Howe, 4 Bro. ley V. Darlcy, 399. Vid. Andrews v. Ch. Rep. 223. Heysham v. Heysham, Partington, 3 Bro.Ch. Rep. 60. Walk- 1 Cox's Rep. 179. er V. Shore, 1.5 Ves. jun. 122. (j) Andrews v. Partington, 2 Cox's ("3) Butler V. Butler, 3 Atk. 60. Har- j^gp 223. vey V. Harvey, 2 P. Wms. 21. But f,\ t, ^ u r. j i i t c •' , • ' , , , ^ , ( ) Bradshaw v. Bradsnaw, 1 Jac. & see Buckworth f . Buckwortn, 1 Cox s -,,r n ca-t ,. rr. Walk. 647. Rep. 80. CHAP. IV.] THE RATE OF SUCH INTEREST. 327 ringly, and with great caution ("). If the legacy be of small amount, and the interest altogether inadequate to the necessities of the infant, the court will order a part of the principal to be [328] immediately paid, and tliat as well for his education, as for his maintenance (j). But if the legacy be devised over In case of the infant's dying before he comes of age, tlic principal, it seems, shall on no account be subject to such diminution {'"). With respect to the quantum of the interest thus payable on a legacy, a distinction formerly prevailed between legacies charg- ed on land, and such as were charged on the ])ersonal estate. It has been held, that as land never produces profit equal to the interest of money, the Court of Chancery will follow the course of things, and give interest, where it arises from land, one per cent, lower than where it arises from personal property (^) ; but this distinction is now exploded : Whether legacies are charged on real or on personal estate, it is become tlie established prac- tice to allow only four j^er cent, where no other rate of interest is specified by the will. And althougli pecuniary legacies imt having the addition of the word " sterling," are to be paid, as I have already stated, according to the currency of the country where the will was made, yet the interest is to be computed, in conformity to the course of the coui't, at four per ceyit.f and not pursuant to the rate of interest in such country (y). [2] (") Harvey v. Harvey, 2 P. Wms. 21. Prec. Ch. 195, Vid. siipr. 318, 319. (x) Hearle v Greenbank, 1 Vez. 308, (") Barlow v. Grant, 1 Vern. 255. 309. Harveyi-. Harvev, 2 P. Wms. 21. Ex ^„v „• r- .on r^u n •' ■ (>) Pierson T'. Garnet, 2 Bro.Ch. Rep. parte Green, 1 Jac.& Walk. Rep. 253. ._ ,, , , ,. ,. ., „ _, ' '47. Malcolm v. Martni, 3 Bro. Ch. (w) 4 Bac. Abr. 442. Leech v. Leech, 1 Ch. Ca. 249. Brewin v. Brewin, Rep. 53. 4 Bac. Abr. 440. in note. [2] The following' decisions have been made relating to interest payable out of the estate of the decedent, and to interest payable by executors and administrators. After an average is struck upon an insolvent estate, no interest can arise upon such average, chargeable against the estate. Fitch v. HTintingdon, Kirby, 38. Where a father died possessed of a large real and personal estate, of which no distribution nor division was made during many years, the mother being appointed administratrix, it was held, that the mother was to be charged with interest^ on tvi^o-thirds of the money she had received in managing the estate, Pp 329 THE RATE OP SUCH INTEREST. [bOOK III. [329] On the payment of a legacy an executor is bound to take a receipt for the same properly stamped according to the value of the legacy, and the relationship of the legatee. and to be allowed interest on the sums expended by her for the education of the children. Wilkes SJ nx. v. Rogers & al. 6 Johns. Rep. 566. In an action on an administration bond to recover the amount of a distribu- tive share decreed by the judge of probate, the Court will allow interest from the time of passing- the decree until the rendition of the judgment. Paine v. M'Intire, 1 Mass. T. R. 69. A vested legacy does not carry interest but from the time when it is payable, except in the case of a legacy bequeathed to a minor, whom the testator was under a moral obligation to supjiort, and for whom no support was provided until the legacy was payable. In this case, the legacy shall carry interest from the death of the testator, because it was presumed his intention was to fulfil a moral obligation. Datues, Judge, v. Siva7i et al. 4 Mass. T. R. 208. Where the failure to bring an executor to settlement appears to have pro- ceeded from neglect of the residuary legatees, without any wilful default on his part, interest ought not to be charged on the balance due from him to the estate, except from the date of the decree: neither, in such case, ought interest to be allowed him on payment to the legatees before the decree, though made in bonds which carried interest. Fitzgerald, Ex. of Jones v. Jones, 1 Munf Rep. 150. An executor or administrator, hiring slaves belonging to the estate of his testator or intestate, ought not to be charged with interest on such hire from the day it became due, (no proof appearing that it was then collected, or that interest from that day was received upon it,) but a reasonable time to collect and apply the money should be allowed before the commencement of interest, JDalliard v. Tomlinson, Ibid. 183. In such case, no interest ought to be charged where the right to the slaves was in dispute, and it was doubtful to whom the money when collected should be paid, no proof appearing that the executor or administrator received any interest or made any profit. Ibid. Whether interest ought to be chai-ged in an administration account, is a question which may depend upon extraneous testimony. Wliite's Ex'rs. v. Johnson & al. 2 Munf Rep. 283. Where a legatee is entitled to the profits of slaves, he is also entitled to in- terest thereon from the time of the receipt thereof by the executor, no good reason appearing for the failure to apply the principal to the use of the legatee. Quarles' Ex'rs. v. Qnarles & al. 2 Munf. Rep. 321. If a testator direct that no interest .shall be demanded on a legacy, but that the executor will pay it off as soon as^money can be raised by selling certain property, no interest is to be demanded until a reasonable time for raising the money shall have elapsed; after which, if the e.xecutor improperly withhold payment, he is cliargeable with interest Patton, Adm. of Page, v. IVilHams U Wife, 3 Munf Uep. 59. CHAP. IV.] THE RATE OF SUCH INTEREST, 329 A testator directing legacies to be paid at the expiration of six months after his death, without deduction, the legatees arc An executor, except as to debts lost by his negligence or improper conduct, is chargeable with interest only on his actual receipts. And an executor is not chargeable with interest on a legacy payable to an infant, before a guardian has been appointed, and he has received notice of such appointment. Cavendish V. Fleming, 3 Munf. Rep. 198. Moneys directed to be invested by executors in government securities should be accounted for as if invested, after a reasonable time, for that purpose : but the executors ought not to be charged with interest during such reasonable time; nor with interest on dividends of stock, if such dividends have not been actually received. Carter's Ex. v. Cutting & Wife, 5 Munf Rep. 224. Where a guardian or executor has been guilty of neglect in putting out money, or where he has made use of it himself, he shall be charged with in- terest. Fox V. Wikocks, 1 Binn. 194. Snifs Ex. v. Barnes, 4 Serg. & R. 116. And a reasonable rule is to strike a balance of the money in the hands of the guardian at the end of every six months, and to charge him with simple interest on that, allowing a reasonable sum for contingent expenses. Ibid. The executor will be allowed interest on his balance. Jones v. Williams, 2 Call's Rep. 102. When interest is charged against an executor or administrator, (in settling his administration account,) on balances due at the end of each year, it ought not to be carried to the account of the succeeding years, so as to convert it into principal, and make it bear interest ; nor to be deducted from the paj'ments made in such succeeding years. Skeppard's Ex. v. Starke & Wife, 3 Munf. Rep. 29. Where a former administrator settles and signs an account, the present ad- ministrator shall be bound and pay interest. Hayiuood's Rep. 104. Where slaves are specifically bequeathed to a child, when he or she shall attain the age of twenty-one years, or shall marry, and no provision is made expressly for maintenance in the meantime, their intermediate profits (if not otherwise disposed of) do not pass by a general residuary clause, but go to the legatee. In such case, the legatee is also entitled to interest on the profits from the time of the receipt tiiereof by the executor ; no good reason appearing for his failure to apply the principal to the use of the legatee. Quarles' Ex'rs. V. Quarles & al. 2 Munf Rep. 321. In general, where a legacy is given, and no time of payment is mentioned, it is not payable till the end of the year from the death of the testator; nor does it carry interest, except in the case of a legacy to a child not otherwise pro- vided for, when interest is allowed from the testator's death. Eyre v. Goldivg, 5 Binn. 475. There is a difference between the legacy of a sum of money to one for term of life, and a bequest of a sum to be paid annually for life. In the first case, the legacy, not being payable till the end of a year from the testator's death. 329 IHE RATE OF SUCH INTEREST. [bOOK 111. entitled to the full amount, and the legacy duty must be paid by the executors (a). An executor paid to a legatee for four years an annuity charged on a real estate, without deducting the legacy duty, which was not in fact paid by him according to the provisions of 45 Geo. 3. c. 28, until after the legatee had assigned all his interest in such annuity ; it was held, that the legatee was lia- ble to repay him the duty, it not being a voluntary payment ; and the executor was only made liable by the act for the bene- fit of government, and not on his own account; he was there* fore no more than surety for the legatee, and the case fell with- in the principles applicable to sureties ('•). Sect. IV. Of the ademjytiori of a legacy, 1 PROCEED now to inquire into the nature of an ademption of a legacy. (^) Barksdale v. Gllliat, 1 Swans. 562. (*>) Hales v. Freeman, 1 Bing. & Brod. and see Waring v. Ward, 5 Vez. 670. Rep. 391. carries no interest for that year : but in the latter case, the first payment of the annuity must be made at the end of the first year. J6id. One bequeathed to his daughter A " the interest of 400/. to be paid her an- nually during her life." Held, that the first payment was to be made to her at the end of a year from the testator's death. Jbid. 2 Browne's R. Append. 89. Where a legacy is given to a child, payable at the age nf fwen/y-07tc, without mention of interest, the general rule is, that interest shall be allowed from the death of the parent. Jlliles v. Wistar, 5 Binn. 479. But where one bequeathed to the four children of his nephew the sum of 400/. each, which sums he directed to be placed out at interest at the expira- lioM of Uvo years after his decease, for the benefit of the said legatees respec- tive iv, and the principal a7id interest to" be paid as they should respectively attain the age of twenty-one ; but if any of thern should die in his minority without issue, the share of such child so dying should be equally divided among his brothers; it was held, that the legatees were not entitled to interest during their minority, but that it must accumulate, and in case of the death of one of the legatees under age, would form part of the share to be divided among the survivors. Ibiil. CHAP. IV.] THE ADEMPTION OF A LEGACY. 329 An ademption of a legacy is the taking away, or revocation of it by the testator. It may be cither express or implied. The testator may not only in terms revoke a legacy he had be- fore given, but such intention may be also indicated by particu- lar acts (^) : As where a father makes a provision for a child by his will, and afterwards gives to such child, if a daughter, a portion in marriage : or if a son, a sum of money to establish him in life, provided such portion, or sum of money be equal to or greater than the legacy, this is an implied ademption of it, for the law will not intend that the father designed two por- [330] tions for the same child (*>). But this implication will not arise if the provision in the will is created by a bequest of the residue («=); nor if the provision in the father's lifetime be subject to a contingency ("i) ,* nor unless it be ejusdcm generis with the legacy («) ; nor if it be expressly in satisfaction of a claim aliunde ; nor if the portion be given absolutely, and the legacy under limitations (*"); nor if the testator were a stran- ger (s) ; nor if the testator be the uncle of the legatee {^) ; nor if the legatee be an illegitimate child, unless the testator placed himself clearly in loco parentis (') ; and the doctrine of ademp- tion of legacies is fully considered as confined to the cases of pa- rents, and persons placing themselves in loco parentis ^ and such implication is always liable to be repelled by evidence {^). But if the testator, by a codicil subsequent to the portioning or ad- vancement of the cliild, ratify and confirm his will, this, al- though a new publication, shall not avail to overturn the pre- {A 2 Fonbl. 353. (0 Grace v. Earl of Salisbury, 1 Bro. (b) 2 Fonbl. 354. note A. Hartop v. Ch. Rep. 425. Whitmore, 1 P. Wms. 680. 2Ch.Ilep. (') Baugh v. Reed, 3 Bro. Ch. Rep. 85. Jenkins t>. Powell, 2 Vern. 115. . 192. Bell w. Coleman, 5 Madd. Rep. 22, Duffield r. Smith, 2 Vern. 257. Ward (e) Shudal v. Jekyll, 2 Atk. 516. '... Lant, Prec. Ch. 183. Farnham v. Powell v. Cleaver, 2 Bro. Ch. Rep. Philips, 2 Atk. 216. Watson v. Earl 499. Lincoln, Ambl. 325. Ellison v. Cook- (!•) Brown v. Peck, 1 Eden's Rep. 140. son, 2 Bro. Ch. Rep. 307. S. C. 3 (') Wetherby v. Dixon, Coop. Rep. Bro. Ch. Rep. 61. Cookson tj. Ellison, 279. S. C. 19 Vez. 407. and see Ex 2 Cox's Rep. 220. Hartop v. Hartop, parte Dubost, 18 Ves. 140. 17 Vez. 184. C') Shudal v. Jekyll, 2 Atk. 516. Dfi. (<=) Farnham v. Philips, 2 Atk. 216. beze v. Mann, 2 Bro. Ch. Rep. 165", 0')SpinksT;. Robins, 2 Atk. 491. 519. S. C. 1 Cox's Rep. 346. 330 THE ADEMPTION OF A LEGACY. [boOK III. sumption, that he meant to adeem the legacy ; for such words are merely formal ('). A gift by a parent in his lifetime to le- gatees, after a will giving them legacies, has been held to be part satisfaction of the legacies, upon evidence of the intention of the testator to that effect. In respect to the ademption of a legacy, all the cases on the subject concur in the principle, that the intention of tlie testa- tor must govern ; but, in the application of that principle, or what shall amount to evidence of such an intention, they are, in many instances, incapable of being reconciled. Thus, in some cases it has been held, that where a sum of money is bequeathed out of a particular fund, such legacy is in [331] it's nature general, a legatum in numeraiis, and if the tes- tator in his lifetime receive it, it must be made good to the le- gatee out of the general assets ; for from that act of the testa- tor no presumption can be raised of his intention to revoke his bounty (m). In other cases it has been decided, that such a le- gacy under the same circumstances is adeemed ("). Some au- thorities distinguish between the bequest of a sum of money to be satisfied out of a particular fund, and, consequently, a gene- ral legacy, and a bequest of a specific debt ; that the former is not adeemed, while the latter is adeemed by payment to the tes- tator (°). But these last-mentioned cases differ in their con- struction of what sliall be the bequest of a general legacy, as opposed to that of a specific debt. Some, as we have already seen (p), adopt a distinction between the bequest of a certain sum of money due from a particular person, as " five hundred pounds due on a bond from A ;" and a bequest of such debt generally, as, " of the bond from A ;" that, in the former in- stance, the legacy is pecuniary, in the latter specific (i). But, (') Irod V. Hurst, 2 Freetn. 224. Thel- (°) Hambling v. Lister, Ambl. 401. luson V. Woodford, 4 Madd Rep. 421. (p) Yi(j, gupr. 303. (-) 4 Bac. Abr. 355. Ashburner v. ^^.^^^ ^ ^^ 2 p ^^^ 33^^ M'Guire. 2Bro.Ch.Rep.l08. Finch, \„d note 1. ibid. Attorney-Generals. 152. Pawlet's Case, Raym. 335. Sa- p^^kin. Ambl. 566. Carteret t>. Lord vile V. Blacket, 1 P. Wms. 777. Carteret, cited 2 Bro. Ch. Rep. 114. (:.) Badrick V. Stephens, 3 Bro. Ch. ^^^ ^^^ ^e Grice v. Finch, 3 Meri, Rep. 431. See also 2 Fonbl. 36r. j^^ ^^ note ('). CHAP. IV.] THE ADEMPTION OF A LEGACY. 331 according to other cases, tliis distinction is too slender to be re- lied on (•■). A difference has also, in some instances, been taken between a compulsory, and a voluntary payment to tlie testa- tor of such debtj in other words, whei'c the testator himself [332] calls in a debt which he has bequeathed, and where the debtor unprovoked, and without application, tiiinks fit to pay it ; that, in the former instance, it is the act of the testator, and, consequently, an ademption ; in the latter he is merely pas- sive, and, therefore, cannot be presumed to have changed his mind (s). But the doctrine of some cases is, that this distinction has no weight (*) ; and of others, that it has no existence ("), and that the case is not varied by the mode of payment. In another class of cases this distinction between a compulsory and a voluntary payment has been recognized as very impor- tant, but not as an absolute rule of decision ; on the princij>le, that the testator's calling for payment is not of itself sufficient evidence of an intention to adeem, but an equivocal act requir- ing explanation {"). It is, however, clear, that if the legacy be of a specific chat- tel, and the testator alter tlie form, so as to alter the specifica- tion of the subject; as if, after having given a gold chain by liis will, he convert it into a cup; or, after he has bequeathed wool, he make it into cloth, or a piece of cloth into a garment ; the most obvious conclusion that can be formed from such an act is, that he has changed the intention he had expressed in his will; therefore, in such instances, the legacy shall be adeemed (*). So, if he bequeath his stock in a particular fund, and sell it out subsequently to the making of the will, this, on the same principle, amounts to an ademption (''). And where a testator bequeathed two policies on a life upon certain trusts, (') Ashburner v. M'Guire, 2 Bro.Ch. 566. Ashburner v. M'Guire, 2 Bro. Rep. 111. 1 Eq. Ca. Abr. 302. Ch. Rep. 109. 4 Bac. Abr. 355. note (s) Crockat v. Crockat, 2 P. Wms. 165. (B). Stanley v. Potter, 2 Cox's Rep 330. note 1. ibid. Bronsdon f. Winter, 180. Ambl. 57. (") Drinkwater v. Falconer, 2 Ves. (0 Earl of Thomond v. Earl of Suffolk, 623. Hambling v. Lister, Ambl. 401. 1 P. Wms. 461. Ashlon v. Ashton, Coleman v. Coleman, 2 A'es. jun. 639. 3 P. Wms. 386. S.C. 2 P. Wms. 469. (^) 3 Bro. Ch. Rep. 110. Ford V. Fluming, 2 Str. 823. (") Ibid. 108. Barker v. Rayner, 5 (») Attorney-General v. Parkin, Ambl Madd. Rep. 208. 333 THE ADEMPTION OF A LEGACY. [bOOK III. and received the amount of the policies in his lifetime, it was held, that the legacies were adeemed. — But if A bequeath so much stock to B, and, alter making his will, sell it out and then buy in again the same fiuantity of stock, this is no ademption : for if the selling of the stock is evidence of his having altered his intention, his buying it in again is evidence, equally strong, that he meant the legatee should have it (y). If the testator, af- ter such bequest of stock, sell out part and die, such sale shall be an ademption pro tanto (z). Thus, where A bequeathed a moiety of two-thirds of the residue of the South Sea Stock, In- dia, Bank, and Orphan Stock, Leases, East India and South Sea Bonds, and other his personal estate to B ; B before he re- ceived this legacy made his will, and devised this moiety to trustees to sell and pay out of the same the sum of two hundred pounds to C and the residue of tlie money to D : Afterwards B and the legatee of the other moiety coming to an account with the executor of A, their respective shares were set out and re- ceived, and the stock and bonds were allotted to B, who sold part of them in his lifetime, but kept no account of the produce : This was decreed to be an ademption of the legacy to D pro tanto: But it was held that B's receipt of his share w^as clear- ly no ademption ; inasmuch as the object both of B and the [334] other was merely to ascertain their moieties, and to pre- vent survivorship (*). So it has been decided, that a bequest of a debt shall not be adeemed by the testator's having received dividends upon it under the bankruptcy of the debtor ('^). But that such legatee is entitled to the dividends not received by the testator, and whatsoever may in future be payable out of the bankrupt's es- tate, in respect of that debt.[l] (y) Partridge v. Partridge, Ca. Temp. (^) Birch v. Baker, Mos. SrS, Talb. 226. (b) Ashburner v. M'Guire, 2 Bro. Ch. (=») Ca. Temp. Talb. 226. JVash v. Rgp. 108. J\rash, 1 Hayto. Rep. 229. [1] The owner of a slave, by his will, declared as follows : "/ manumit and give freedom to my negro woman Mott, and her daughter Nan, immediately after my decease." The testator afterwards sold Nan as a slave toC, and died. Held, that the sale of the slave by the testator was pro tanto a revocation of the will, and that she was not entitled to her freedom after his decease. Matter nfJViin MifM, U .Tohns. Rep. 324. CHAP. IV.] OF CUMULATIVE LEGACIES. 334 Sect. V. Of cumulative legacies. Legacies may be also cumulative : They are contradistin- guished from sucli as are merely repeated. As where a testator has twice bequeathed a legacy to the same peison, it becomes a question whether the legatee be entitled to both, or to one only. And on this point likewise the intention of the testator is the rule of construction ("). On this head there are three classes of cases; first, those cases in which there is no evidence of such intention, either internal or extrinsic, oneway or the other; those cases where there is internal evidence; and also those in which there is extrinsic evidence. [335] In regard to the first, where there is neither internal nor extrinsic evidence, it is necessary to recur to the rule of law {^). There are four instances of this class : Where the same specific thing is bequeatlied to A twice in the same will, or in the will and again in a codicil : in that case he can claim the benefit only of one legacy, because it could be given no more than once(*=). Where the like quantity is bequeathed to him twice by one and the same instrument : there also he shall be entitled to one legacy only (d). So where an unconditional legacy was given by a third testamentary paper, it was held to be a substitution for a conditional legacy to the same amount, giveirby the first testamentary paper {^). Where the bequest to him is of unequal quantities in the same instrument; the one is not merged in the other, but he has a right to them both (f). (») 4 Bac. Abr. 361. Ridges v. Mor- Svvinb. p. 7- s. 21. 1 Bro. Ch. Rep. 20, rison, 1 Bro. Ch. Rep. 389. Coote v. in note. 4 Bac. Abr. 361. Masters v. Boyd, 2 Bro. Ch. Rep. 527. Masters, 1 P. Wms. 424. De^vit v. (b) Hooley v. Hatton, 1 Bro. Ch. Rep. Yates, 10 Joh?is. Hep. 156. 391. in note. (0 Attorney-General v. Harley, 4 (^) 1 Bro. Ch. Rep. 392, in note, and Madd. Rep. 263. ibid. 393. (0 ^ ^'"O- ^'^- ^^^P- ^^^' '" "°^^' ^^^^' C'l) 1 Bro. Ch. Rep. 392, in note. Coote v. Boyd, 2 Bro. Ch, Rep. 521. Qq 335 OF CUMULATIVE LEGACIES. [bOOK III. And, lastly, where the bequest to him is of equal, or unequal, quantities by different instruments : in that case also there shall be an accumulation (s). There are likewise cases in which there is internal evidence of the testator's intention ; as where a latter codicil appears to be merely a copy of tlie former with the addition of a single le- [336] gacy ; or where both legacies are given for the same cause ; tliey sluill not be cumulative, whether given by the same or different instruments, as they shall be where one is given generally, and the other for an express purpose ; or w^here one , reason is assigned for the former, and another for the latter ; or where the legacies are not ejusdem generis, as where au annuity and a sum of money is given (''), or two annuities of the same amount, by different instruments, the one payable quarterly, tlie other half-yearly (') : or two annuities of different amounts, the one given by the will, payable out of real estate, the other by the codicil, payable out of personal estate (•<). In like manner it may be collected from the context, whether the testator meant a duplication, or a mere repetition of the first bequest. And his intention has been inferred from very slight circumstances ('). Extrinsic evidence is also admissible on this subject. Whe- ther the testator by giving two legacies did, or did not, intend the legatee to take both, is a question of presumption, which will let in every species of proof ('"). Hence, if the testator, after the making of the will, and before the date of the codicil, had an incqpase of fortune, that circumstance has been held to prove that he intended an additional bounty («). [1] («) I Bro. Ch. Rep. 391. and 392, in (i)4Bac. Abr.361. Diikeof St. Alban's note. Masters v. Masters, 1 P. Wms. v. Beauclerk, 2 Atk. 640. Ridges v. 423. 1 Ch. Ca. 361. Foy v. Foy, 1 Cox's Morrison, 1 Bro. Ch Rep. 389. Coote Rep. 163. Baillie v. Butterfield, ibid. v. Boyd, 2 Bro. Ch. Rep. 521. 1 P. 392. Benyon r. Benyon, 17 Vcz. 34. Wms. 424, in note 2. Benyon v. Ben- C') Masters v. Masters, 1 P. Wms. 423. yon, \7 Ves. jun. 34. (i) Currie v. Pye, 17 Ves. j(tn 462. ' ('") Coote v. Boyd, 2 Bro. Ch. Rep, (!') Wright V. Lord Cadogan, 2 Eden's 527, 528. 4 Bac. Abr. 361, in note. itep. '239. (") Masters v. Masters, 1 P. Wms. 424. [1] Under the liead of cumulative legacies, may be considered the increase of slaves bequeathed for the life of the legatee. This increase belongs to such legatee, according to the decisions in Scott v. Dobson, 1 Har, & M'licn. 160 and Johnson v. Somervillc, Ibid. 352/ CHAP. IV.] OF A LEGACY TO A CREDITOK. 336 Sect. VI. Of a legacif being in satisfaction uf u debt. Under certain circumstances, a legacy is regarded in the [SST] liglit of a satisfaction of a debt. On this point also, the intention of the testator is the criterion {''). It is a general rule, that a legacy given by a debtor to his creditor, which is equal to, or greater than the debt, shall be considered as a satisfaction of it (b). But tliis is merely a rule of consti-uction, and the courts in a variety of instances have denied the application of it, where they have been able to collect from the will circumstances to repel the presumption (<=) : As where it contains an express di- rection for the payment of debts ('i), or if the legacy be less than the debt, it has been held not to go in discharge, nor even in diminution of it(e). Nor sliall the legacy be a satisfaction if it be conditional, or given on a contingency, for it shall not be supposed, that the testator intended an uncertain recompense in satisfaction of a certain demand (f). Nor is a legacy considered as a satisfac- tion, where it is not equally beneficial with the debt in one re- spect, though it may be more so in another ; as, where the le- gacy is to a greater amount, but the payment of it is postponed (») 4Bac.Abr. 362. Cuthbert w. Pea- cited 1 P. Wms. 409, note 1. and 4 cock, 1 Salk. 155. pi. 5. Cranmer's Bac. Abr. 428. Case, 2 Salk. 508. 2 Fonbl. 332. (e) Cranmer's Case, 2 Salk. 508. Hawes (•.) 1 P. Wms. 409, note 1. Talbot v. ^ ^^^^ner, 2 Vern. 478. Eastwood v. Duke of Shrewsbury, Prec. Ch. 394. yi^^e, 2 P. Wms. 616. Minuel v.S^. Jeffe V. Wood, 2 P. Wms. 132. Fowler ,,,i„^^ j^,„^ 395. V. Fowler, 3 P. Wms. 355. Reech v. ,,, , , _ „ 1 1 ,r ICC -ir-j ^ (f) 2 Fonbl. 331. Talbot ■». Duke of Kennegal, 1 Ves. 126- Vid. Crompion ^ ■' 'J Sale 2 P Wms 555 Shrewsbury, Free. Ch. 394. Cran- (=) 1 P. Wms. 409^ note 1. "'^'"'^ ^^'^' ^ ^'■'^- ^°^' ^^^*'^^°"' ^• ( w„,= 542. Sed vid. 3 P. Wms. 354. (") Blandy v. Wedmove, 1 i . Wms. 524. 409. note 1. Eastward v. Vinke, (") Clark v. Sewell, 3 Alk. 99. CHAP, IV.] OF A LEGACY TO A CREDITOK. 338 debt. So under certain circumstances, money or goods lent or delivered by tlie executor to sucb legatee, was held by the court to be in part payment of the legacy ("). If the testator bequeath to his debtor the debt, this being no more than a release by will, operates, as we have seen ("), only as a legacy ; and is assets, subject to the payment of tiie testa- tor's debts (p). Where a legacy was left to the wife of A, who was largely indebted to the testatrix, and A became a bankrupt, and his wife afterwards died without having asserted any claim in re- spect of the legacy and the assignees claimed it, it was held, that the executors of the testatrix were entitled to retain the legacy in part discharge of the debt due to the testatrix (i). [1] (n) Jeffe V. Wood, 2 P. Wms. 128. (i) Ranking v. Barnard, 5 Madd- (o) Supr. 308. Kep. 32. (p) Rider v. Wager, 2 P. Wms. 332. [1] In an action brought by A against an executor for a legacy, the defendant offered in evidence an account, and certain bonds, which had been paid and cancelled by the testator, on which there was an endorsement by the testator, that by agreement between A and B, they were to be charged to the account of A, and the bonds were for that reason cancelled, which endorsement was prior to the date of the will. It was held, that the account and endorsement on this bond were not sufficient to support a debt set up by the executor against the plaintiff; and that if the debt had been proved, it would not have been released or extinguished by the legacy. Rickets v. Livingston, Ex. 2 John. Cas. 97. Although, generally, a devise of land is not a satisfaction, or part perform- ance of a debt or agreement to settle money, yet, if the contract authorizes such a mode of making satisfaction, it will be so decreed, though it is not stated in the will to be in satisfaction. Sryant v. Hunter & al. C. C. April, 1811. Pennsylvania District. Wharton's Digest, 611. If the devisee- in such case dispose of the land devised, though by a will which cannot pass real estate, yet it is evidence of the acceptance of the land in satisfaction or part perform- ance. Ibid. A testator, who was indebted to his sons, A and B, in a sum equal to about gl400, bequeathed to A some small specific legacies. The will further de- clared, that "whereas my son B is indebted to me in sundry sums advanced for his benefit, my will is, that all his debts to me be cancelled, and I bequeath to him the sum of five hundred dollars, and no more." At the time of the testator's death, B was separately indebted to him in the sum of glOOOO and upwards, and he had previously received from the testator a gift of stock to ;339 THE ABATEMENT OF LEGACIES. [bOOK III. [339] Sect. VII. Of the abatement of legacies,— of the refunding of legacies,— of the residuum. In case the estate be sufficient to answer the debts and speci- fic legacies, but not the general legacies, they are subject to abatement, and that in equal proportions ; but in such case no- thing shall be abated from specific legacies (^). Nor shall a sum of money bequeathed by the testator, in sa- tisfaction or recompense of an injury done by him, abate any more than a specific legacy {^). But a legacy, although devis- ed to be paid in the first place, shall abate, if the fund be insuf- ficient for the legacies («=), unless, perhaps, it be a provision for a wife (d). So a devise of a personal annuity is not, as we have seen (e), a specific legacy, but a legacy of quantity, and liable to abate accordingly (J). If A devise specific and pecuniary legacies, and direct by the will that such pecuniary legacies shall come out of all his per- sonal estate, if there be no other personal estate than the spe- cific legacies, they must be intended to be subject to those which [340] are pecuniary, otherwise the bequest to the pecuniary le- gatees would be altogether nugatory (e). So a legacy in favour of a charity, although pieferred by the civil law, shall by our (^) 2 Fonbl. 374. 2Bl.Com. 513. Clif- (0 Vid. supr. 303. ton V. Burt, 1 P. Wms. 679. (f) Hume v. Edwards, 3 Alk. 693. (b) 2 Fonbl. 377. Lewin^>. Lewin, 2 Vez. 417. Sed vid. (<■) 2 Fonbl. 378. Brown -v. Allen, 1 Peacock v. Monk, 1 Vez. 133. Vern. 31. Beeston v. Booth, 4 Madd. ^^^ g^^^^ ^ g^^^^^ p^^^ ^^^ 3^3 ^ ^<^P- 1^1- Fonbl. 377, 378. /') Lewin v. Lewin, 2 Vez. 417. die value of g6000. The testator left real and personal property to the amount of g255,000. Held, that the bequest did not amount to a satisfaction of the debt due by tlie testator to his sons. Jiyr?ie cf o^ v. Byrne U al. 3 Serg. & R. 54. CHAP. IV.] THE ABATEMENT OF LEGACIES. 340 law abate equally with other general legacies (•>). So a legacy to servants shall abate in the same manner Q). But where a legacy of QOOL was bequeathed for building a monument for the testatrix's mother, from whom the testatrix derived the greatest part of her estate, it was decreed, that be- ing a debt of piety, it should not abate with the other lega- cies C^). So where 3l. were given to the poor of three several parishes, it was considered by the Court as part of the funeral and as doles of the funeral, and therefore held that no abatement ought to be made out of them (i). And where the testator, af- ter giving various legacies, expressed at the end of his will his apprehension tliat there would be a considerable surplus of his personal estate beyond what he had before given away in lega- cies, for which reason he gave several further legacies ,• and af- terwards, by a codicil, he gave several other legacies. It was decreed, that the subsequent legacies given by the will having been given in a presumption that there would be a surplus, ami there happening to be no surplus, the former legacies should have a preference, and the legacies given at the end of the will should be lost. That the same apprehension of a surplus must be intended to have continued in the testator at the time of making his codicil, and, therefore, unless the inference can be repelled, the legacies by the codicil must be lost also ('"). In case of a deficiency of general assets, that is to say, of assets to pay debts, specific legacies, altliough not liable to abate with the general legacies, must abate in proportion among themselves ("). Where the vendor of an estate would have absorbed the per- sonal assets in payment of his purchase money, which was di- rected by the will to be paid by the executor, a rateable contri- C") Jennoi' v. Harper, Prec. Ch. 360. C') Masters v. Masters, 1 P. Wins Tate V. Austen, 1 P. Wms. 265. 423. Masters v. Masters, 422. Earl of (') Attorney-General v. liobins, 2 V Thomond v. Earl of Suffolk, 462. Wms. 25. Attorney-General v. Hudson, 675. ('") Ibid. 23. Attorney-General v. Robins, 2 P. (") 2 P'onbl. 377- note ('i). Duke of AVms. 25. 296. Devon v. Atkyns, 2 P. Wms. 382. (*) Attorney-General v. Robins, 2 P. Long v. Sliort, 1 P. Wms. 403. Webb Wms. 25. ». Webb, 2 Vern. 111. 340 THE ABATEMENT OF LEGACIES. [bOOK III. biition was decreed, as between the devisee of the estate and the legatees and annuitants under the will (°). We have before seen (p) that a testator may carve specific legacies out of a specific chattel ; now, in such case, if the chat- tel so parcelled out prove deficient, such specific legacies must abate proportionally among themselves (i). And in a devise in trust to sell, but not for less than 10,000/., and to pay several sums amounting to 7,800L, and the overplus moneys arising from the sale to A, it was held a specific legacy of 10,000/., and the sale producing less, that A and the others should abate ('). Such is the advantage to which a specific legatee is entitled, that he should not contribute with the other legatees in case of a deficiency. But, on the other hand, he is subject to a risk^ as, for example, if such specific legacy be a lease, and there be an eviction ; or if goods, they be mislaid or burnt ; or if a debt, it be lost by the insolvency of the debtor: in all these instances, such specific legatees shall receive no contribution ('•). [1] (") Headley v. Redhead, Coop. Rep. (j^) Sleech v. Thorington, 2 Vez. 563. 50. (0 Pag-e V. Leapingwell, 18 Vez. 463- (p) Vid. supr. 302. (•) Hinton v. Pinke, 1 P. Wms. 540. [1] Even a specific legacy will under certain circumstances be subjected to aba'iement, as, where a pro rata distribution of the estate of a testator was made to tli^ Icgaiees by order of the Supreme (Jourt of Probate, and A, a lega- tee, accepted the averag-e, it was held, that he could support no claim against the executor, on the ground thai the legacy bequeathed to him was specific for the part of the legacy remaining unpaid, until further estate should be dis- covered. By accepting an average, with knowledge of all the circumstances, he acquiesced in it, and was concluded by the adjustment. Sheple v. Farns- -I'orth, 4 Mass. T. R. 632- Where a legacy is beque.athed under a restriction, in the following words, " It is my will and desire, that if the personal estate, and the produce arising from the real estate, of which I shall die seised and possessed, shall not be sufficient to answer the several annuities and legacies, they shall not abate in proportion, but that the whole of sucli deficiency, if any there be, shall be de- ducted out of the said sum of 1500^. by me hereinbefore bequeathed," &c. if the estate of the testator is sufficient at his death, but becomes insufficient afterwards on account of the insolvency of an executor, the legacy restrictive!/ bequeathed must be applied to make up the deficiency; the woi-ds "the per- soM.-il and real estate of which I shall die possessed" being equipollent to the CHAP. IV.] OF REFUNDING LEGACIES. 341 [341] On the same principle, legatees in certain circum- stances are bound to refund their legacies, or a rateable part of them, as in all cases of a deficiency of assets for the pay- ment of debts ('). If the fund be merely insufficient to pay the legacies, and the executor pay one of the legatees, a distinction is to be remarked between cases, where such payment was voluntary, and where it was compulsoi-y ; and also between cases in which the assets were originally deficieiit, and where they became so by his subsequent misapplication of them. If the executor paid tiie legacy voluntarily, the, law presumes that he has sufficient to pay all the legacies, and the other legatees can resort only against him. The legatee, who has been paid, is subject to no claim on the part of the other legatees (") ; pro- vided, according to some authoi'ities (^), the executor be sol- vent; but if the executor prove insolvent, so that there are no other means of redress, a court of equity will entertain a bill to compel such legatee to refund. In case the assets appear to have been originally deficient, if the executor, either voluntarily or by compulsion, pay one of the legatees, the rest shall make him refund in proportion. And, even if such legatee obtain a decree for his legacy, and be paid, the other legatees may oblige him to refund in the (') 2 Bl.Com. 513. Noel w. Robinson, (") Orr v. Kaines, 2 Vez. 194. New- 1 "Vern. 94. Hodges v. Waddington, man v. Barton, 2 Vern. 205. 2 Ventr. 360. (") Orr v. Kaines, 2 Vez. 194. words "all my real and personal estate," and therefore fixing no time v.hcn the insufficiency is to be tested, that time is when the will is to be carried into execution by an application of the funds to their object. Silsbi/ & ai v. Younff e? Silsbif, 3 Cranch, 264. And where a specific pecuniary legacy is given to the same person to whom the residuum is given, and on the same terms, it assumes the character of a residuary bequest, and the testator cannot be understood as having intended to give it any preference over the residuum. Ibid. It is provided by Act of Assembly in Pennsylvania, and also in New York^ " That, where it shall so happen that there .ire assets in the hands of the exe- cutor to discharge all the debts of the testator, with an overplus not sufficient to discharge all the legacies that may be given, then an abatement shall be made in proportion to the legacies so given, unless it shall be otherwise pro- vided by tlie will." R r 341 OF REFUNDING LEGACIES. [bOOK 111. same manner. But if the executor had at first enough to pay all t.'ie legacies, and, by his subsequent wasting of the assets, [342] they become deficient, in that case such legatee shall not he compelled to refund, hut shall retain the benefit of his legal diligence in preference to the other legatees, who neglected to institute their suit in time ; by which they might have secured to themselves the same advantage ('^). Nor is a legatee bound to refund at the suit of the executor, unless the payment by him were compulsory (") ; or unless the deficiency were created by debts which did not appear till af- ter the payment of the legacy (>) : in either of which cases, the executor, as well as a creditor, may compel the legatee to re- fund the legacy ; for an executor who pays a debt out of his own purse stands in tlie place of a creditor, and has the same equity as against such legatee (^). [2] When the executor has paid all the debts, and all the lega- cies above-mentioned, pecuniary and specific, he must in the last place pay over the surplus or residuum to the residuary legatee ( »). And although the residuary legatee die before pay- ment of the debts, and before the amount of the surplus is as- pertained, yet it shall devolve on his representative (^). The residue, generally speaking, comprehends such legacies as have lapsed {") ; but the testator may hy the terms of the (w) 1 P. Wms. 495. note 1. Edwards (0 4 Bac. Abr. 428. Vin. Abr. tit. V. Freeman, 2 P. Wms. 446. Devise, (Q, d.) , X XT T. * o -ir ort^ (') 2 Bl. Com. 514. 4 Bac. Abr. 428. (") Newman v. Barton, 2 Vern. 205. ;. ' x- i n ^ .i. ^^ ^ ' C*) Brown v. Farndell, Carth. 52. ^y) Nelthrop v. Hill, 1 Ch. Ca. 136. (<:) Jackson •». Kelly, 2 Vez. 285. [2] In New York and Pennsylvania, the leg'atec Is required by statute to give bonds in double the amount nominatecl in the will, or supposed to be demandable under it, with two sureties, to be approved by the executor, con- ditioned, that if any part or the whole of such leg-acy shall at any time after be required to pay the debts of the decedent, the legatee will refund the whole, or such part as shall be necessary. In Virginia, a legatee is not entitled to a decree, but on the terms of giving bond and security (if demanded by the executor) to refund, in case it be needful for the payment of debts. Clay v Williams H al. Munf. Rep. 129, and Stn-oaVs Ex. v. Woodson & Wife, S. P. Ibid. 303. Sheppard's Ex. v. Starhe ^ Wife, 3 Munf. Kep. 29. < HAP. IV.] OF PAYMENT OF RESIDUUM. 343 [343] will SO circumscribe and confine the residue, as that tlie residuary legatee, instead of being a general legatee, shall be a specific legatee and then he shall not be entitled to any benefit accruing from lapses, unless what shall have lapsed constitute a part of the particular residue : as where A on board a ship made his will, and gave to his mother, if alive, his gold rings, buttons, and chest of clothes, and to his execjitor, who was on board with him, his red box, arrack, and all things not before bequeathed ; and at the time of making his will was en- titled to a considerable leasehold estate by the death of his fa- tlier, of his right to which he was ignorant : It was held that A's executor was legatee of a particular residue, namely, of what the testator had on board the ship, and such legacy ex- cluded him from tlte general residue. But that as A's mother died in his lifetime, his rings, buttons, and chest of clothes lapsed into such particular residue, and devolved on his execu- tor, not as executor, but as legatee of such particular resi- due (-i). If the residuary estate be devised to A, B, and C, in joint tenancy, if A die in the lifetime of the testator, or if A die after the testator, but before severance of the joint tenancy in the residue, it shall survive to the two others (f"). But if it be given to A, B, and C, as tenants in common, on the death of one of them in the lifetime of the testator, his share shall not go to the survivors, but shall devolve on the testator's next of kin, according to the statute of distribution, as so much of the per- sonal estate remaining undisposed of by the will (f). So if a third of the residuum be devised to eacli of three per- sons, and one of them die in the testator's lifetime (s) ; or if the devise be revoked as to one of such residuary legatees, the consequence shall be the same (•>). If A bequeath all the surplus of his personal estate after pay- ment of the debts and legacies to J. S., and several creditors, although barred by the statute of limitations, commence actions (<^) Cook V. Oakley, 1 P. Wms. 302. Cray v. Willis, 2 P. Wms. 529. (=) Webster v. Webster, 2 P. Wms. (?) Bagwell v. Dry, 1 P. Wms, 700. 547. Page v Pag-e, 2 P. Wms. 488. r») Bagwell r. Dry, 1 P. Wms. 700. ('') 6 Bro. P. C. 1. 343 OF PAYMENT OF RESIDUUM. [bOOK III. against the executor, on his refusal to plead the statute, equity will not, in favour of such residuary legatee, compel him to plead it ('). It is a general rule, that where a question arises between a legatee, or a party entitled to a portion, and the residuary legatee, the costs shall come out of the residue: yet if no ques- tion arise between such individual and the residuary legatee, but the question relate merely to the nature of the interest of the property severed from tlie general mass of the estate, the costs of originating that question are thrown on the specific property itself: as where the testator directed his executors to purchase 921. per annum Bank Long Annuities, in trust for his sister for life, and after her decease the principal to be dis- tributed among certain persons, and the executors purchased the Long Annuities accordingly, and invested the same in their names, and after a lapse of 17 years the tenant for life died, when a question arose in respect of the nature of the interest, which had been so long separated from the residuary estate. Lord Eldon, C. on appeal from the Rolls, held, that the costs of the suit relative to the trust fund, the right to which was in question in the cause, should be paid out of the same : and that his Honour's decree, directing that the costs should be paid out of the testator's general estate^ should in that particular be varied. {^) [344] If there be no residue, the residuary legatee has a claim to nothing. In no case shall he compel the otiier legatees to abate, for although this consideration might occasionally meet the testator's intention, yet it would, in most instances, lead to ereat confusion and embarrassment ('). But it has been held, that if the executor be guilty of a devastavit, the residuary le- gatee shall not suffer exclusively ; but on a deficiency of assets in consequence of such misconduct, shall come in pari passu (i) 4 Bac. Abr. 429. 1 Eq. Ca. Abr. ■ Mass. T. R. 86. 305. UVin. Abr. 269. Lord Castle- (k) Jenour u Jenour, lOVes. jun. 562. ton V. Lord Fanshaw, Prec. Chan. 100. ^,^ ponnereau v. Poyntz, 1 Bro. Ch. Ex parte Dewdney, 15 Ves. jun 498. ^^^ ^^^ ^ p ^^^^ „^^^ ^^^^ ^ Sed contra, in favour of creditors, Par. ^.^^^ ^ j^ ^ 231. son V. Mills, 1 Mass. T. i2. 431. 2 CHAP. IV.] OP THE executor's ASSENT. 344 with the other legatees. Yet according to that decision, the Court had it not in contemplation to afford the residuary legatee relief in case the testator had spent the residue in his lifetime; for the inquiry directed was not what personal estate the tes- tator had at the time of making his will, but what estate he had at his death (■»). [3] Sect. VIII. Of an executor^ s being legatee : and herein, of his assent to his own legactj. In case of a legacy bequeathed to the executor, if he take possession of it generally, he shall hold it as executor, which is his first and general authority (a). [345] The union of the two characters of executor, and lega- tee, in one and the same person, makes no difference (•»). His assent is as necessary to a legacy vesting in him in the capacity of legatee, as to a legacy's vesting in any other person, and that on the same principle. Till he has examined the state of (■") 1 P. Wms. 305,306. note 1 and 2. Young v. Holmes, Stra. 70. (^) 3 Bac. Abr. 84. 13 Co. 47. Plowd. q>\ Qff. ex. 22. 520. 543. 10 Co. 47 b. Dyer, 277 b. [3] All the residuary legatees or distributees ought to be parties to a suit for division of a residuum. Richardson's Ex, v. Hunt, Munf. Rep. 148. But it is otherwise, where the division of the estate of the testator is not to be made at one and the same time. 3 Munf. Rep. 43. A legal title to land not expressly mentioned in the will, does not pass bv a residuary devise. Shobe's Ex. v. Carr & Wife, 3 Munf. Rep. 10. Nor by a general residuary clause in a will, does the reversion pass after a life estate in the land; there being other property which the testator evidently intended to convey by such clause ; and the life estate in the land being created for the benefit of the same persons to whom the residuum was bequeathed. Philips ^ Wife v. MeUon & al. 3 Munf. Rep. 72. This last case must be considered as decided upon its own circumstances ; as, in Kennon v. M'Robert, 1 Wash. Rep. Ill, 112, it is said, that a testator might devise lands for years " or for life, and limit no particular remainder, and in that case the remainder will pass in the residuary clause " 345 OF THE executor's assent. [book III. the assets, he is incompetent to decide whether they will admit of his taking the thing hequeathed as a legacy ; or whether it must not of necessity be applied in satisfaction of debts ('). His assent to his own legacy may, as well as his assent to that of another legatee, be either express, or implied. He may not only in positive terms announce his election to take it as a bequest, but such election may also be implied from his lan-v guage, or his conduct (•'). As if he say, that he will have it according to the will, that amounts to an assent to have it as legatee {"). So, if a term be devised to A, the executor, for life, and afterwards to B, if he say that B will have it after him, that implies an election to take it as legatee (f). So if by deed reciting that he has a term for years by devise, he grants it over (^) ; or if he take the profits of it to his own use (•') ; or if he repair the tenements devised at his own expense (') j all these acts indicate an assent to the bequest: In like manner, if he perform a condition or trust annexed to the devise j as, if a [346] lessee for years devise his term to his executor, on condi- tion that he shall pay ten pounds to J. S., which he pays accord- ingly : this payment amounts to an election on his part to take the lease as a legacy, and it is in law an execution of the legacy for ever ,• for he who performs the charge of a thing claims the benefit w hich is annexed to it ('^)-. So, if a lease be devised to an executor during the minority of the testator's son, in order that the executor may educate him out of the profits, if he edu- cate him accordingly, this constitutes an assent to take the lease by way of legacy, and not as executor (') ,• or if he excludes a co-executor from a joint occnpancy of the term with him (■"), that is also an agreement to the legacy. An assent to take part as a residuary legatee, is an assent also to take the whole resi- due in the same character ("). But till the executor has made his election, either express or (') Ibid. 27. 2. ■ CO Ibid. 619. ('i) Com. Dig. Admon. C. 6, 7. Garret (i) Semb. Cheney's Case, 1 Leon. 211) V. Lister, 1 Lev. 25. (><) Plowd. 544. (=) Garret v. Lister, 1 Lev. 25. (') Ibid. 539. (') Garret v. Lister, 1 Lev. 25. (■") Dyer, 277 b. fr^) 1 Roll. Abr. 020. («) 2 Roll Rep. 158. CHAP. IV.] OF THE EXECUTOR'S ASSENT. 346 implied, he shall take the legacy as executor, tlioiigh all the debts have been paid, inde[>cndeiitly oi' such becfuest (°). Nor is the entry of an executor, whether before or after pro- bate, on the term devised to him, an election to take it as lega- tee (J'). Nor, if he merely say, that the testator left all to him (i), will so ambiguous an expression have that effect. Yet if an [347] executor, being also devisee of a term, grant a lease of it by the name of executor, that amounts to a claim in such capa- city (■■). If a legacy be left to A, as executor, whether expressly for his care and trouble, or not, he must prove the will (s), and either act, or distinctly show his intention to act, before he shall become entitled to it (^). And although an executor prove the will, yet if he do not appear to have done it with an inten- tion of really acting in the execution of it, he is not entitled to bis legacy ("). Nor has an executor a right to give himself a preference in regard to a legacy, as in the instance of a debt. In the case of a legacy to a trustee, given as a token of re- gard and a recompense for his trouhle, payable within twelve calendar months, after the decease of the testatrix, no refusal or neglect to act where necessary appearing, and the trustee dying nineteen months after the testatrix without having acted, the trustee was held entitled to the legacy (^^). The rules above stated in respect to the abatement and re- funding of legacies, in the case of legatees in general, apply equally to the case where the same person is both executor and legatee (''), and although the bequest were merely as a recom- pense for his executing the trust (y). (") Com. Dig. Admon. C. 5. 1 Leon. Stackpoole t). Howell, 13 Ves. jun.41?'. 216. (") Harford 1). Browning', 1 Cox's l4p (p) Com. Dig. Admon. C. 7. Off". Ex. 302. Freeman v. Fairlie, 3 Meriv. 226. Rep. 31. (q) 1 Roll. Abr. 620. (") Brydges -o. Wotton, 1 Ves. & Bea. (f) 1 Leon. 216. 134. (s) Reed v. Devaynes, 2 Cox's Rep. (") 2 Bl. Com. 502. Plowd. 545. in 285. note. (0 Reed v. Devaynes, 3 Bro. Ch. Rep. (y) 4 Bac. Abr. 417. Fretwell v. Stacy, 95. Abbot V. Massie, 3 Ves, jun. 148. 2 Vern. 434. Attorney-General v. Ro- Harrison v. Rowley, 4 Ves. jun. 212. bins, 2 P. Wms. 25. 347 A debtor's being executor. [book III. Sect. IX. Of the testator's appointing his debtor executor— when the debt shall be regarded as a specific bequest to him — when not. If a creditor appoint the debtor his executor, the effect of such an appointment is to be considered, first at law, and then in equity. In point of law, such nomination shall operate as a [348] release, and extinguishment of the debt; on the principle that a debt is merely a right to recover the amount by way of action, and as an executor cannot maintain an action against himself, his appointment by the creditor to that office dis- charges the action, and, consequently, discharges the legal remedy for the debt (^). Thus, if the obligee of a bond make the obligor executor, this amounts to a release at law of the debt C^) : If several obligors be bound jointly and severally, and the obligee constitute one of them his executor, it is an ex- tinguishment of the debt at law, and the executor is incapable of suing the other obligors («). The debt is in like manner re- leased where only one of several executors is indebted to the testator, for one executor cannot maintain an action against another {^) ; and after the death of such executor, the surviving executors cannot sue his representative for the debt('"). Nor is the case varied by the executor's dying without having proved the will, or having administered (f), or even by his refusal to act with his co-executors (s), unless he formally renounced the office in the spiritual court : such a renunciation, indeed, shall prevent the release of his debt : for he could no more be com- pelled to accept a release, than a deed of grant (•>). Mn all these cases the legal remedy is destroyed by the act (») 3 Bac. Abr. 11. 2 Bl. Com. 511, ('') Ibid. 31. 512. Off: Ex. 31. Wankford t;. Wank- (e) ibid. 32. Plowd. 264 Crosman's ford, Salk. 299. Plowd. 186. Com. case, Leon. 320. Dig. Admon. B. 5. Roll. Abr. 920, wankford v. Wankford, Salk. 300. 921. 5 Co. 30. Harg. Co. Litt. 264 b. pj^^^ jg^. ^^ ^^ „,_ "°* g Co 136 ^^^ Wankford v. Wankford, Salk. 308. (0 Off. Ex. 31. 11 Vin. Abr. 398. C') Ibid. Salk. SOT. CHAP. lY.] A debtor's BEING EXECUTOR. 348 of the party, and, tlicrefoi'c, is for ever g()nc(') ; but the effect [349] is different wlicrc it is suspended merely by the act of law C^) ; as if administration of tlie effects of a creditor b'e com- mitted to the debtor, tliis is only a temporary privation of tiie remedy by the legal operation of the grant (•) : Thus, if the ob- ligor of a bond administer to the obligee, and die, a creditor of the obligee having obtained administration de bonis non may maintain an action for such debt against the executor of the obligor ("^). So, if the executrix of an obligee marry the obli- gor, such marriage is no release of the debt, for the testator has done no act to discharge it, and the husband may pay it to the wife in the character of executrix ; If he do not, the reme- dy is suspended merely by the legal effect of the coverture, and on her death, the administrator de bonis non of the testator will be equally entitled to tliat debt, as to any others outstand- ing ("). It seems also, that the naming of a debtor executor durante minoritate is no discharge of the debt, since he is only executor in trust for the infant till be comes of age (»). In equity, the consequence of the testator's nominating his debtor executor is to be regarded, first, with reference to cre- ditors ; and then, to legatees. As against the testator's creditors, equity will never permit him, by constituting his debtor executor, to disappoint them : Therefore, where the testator has not left a fund sufficient for the payment of his own debts, in that case, the debt of his exe- cutor shall be assets; the duty remaining, although the action at law be gone, and the executor shall be liable to account for such debt in the spiritual court, or in a court of equity. It were highly unreasonable that the claims of creditors should be defeated by a release, which was al)solutely voluntary (p). In respect to legatees, equity will, generally speaking, allow {') Dorchester v. Webb, Cro. Car. 373. v. Wankford, Salk. 306. Wankford v. Wankford, Salk. 302. (o) n yln. Abr. 400. Caweth v. Phi- Abram v. Cunningham, 1 Ventr. 303. Hp^, Lord Raym. 605. (^) Wankford v. Wankford, Salk.303. ^ Wankford t,. Wankford, Salk.302. (0 Off. EX. 32. 8 Co. 136. ^.^ ^^^ ^^ 3, ^ ^^ ^om. 512. («>) Lockier Ti. Snnith, Sid. 79. „, 1,0x^01 rr i ^n-r -.no '■ ' ' Plowd. 186. Shep. Touch. 497, 498. (») Crosman's Case, Leon. 320. Cros- „• r- ». a i->a- nc* ^ -* , ' ,^ Simmons t'.Guttendge, 13 Vez. 264. man v. Reade, Moore, 336. Wankford S"s 349 A debtor's being executor. [book in. the appointment of a debtor executor to operate as a discharge [350] of his debt. For the debt is considered in the light of a specific bequest or legacy to the debtor, for the purpose of dis- charging the debt, and, therefore, though like all other lega- cies, it shall not be paid, or retained till the debts are satisfied, yet the executor has a right to it exclusive of the other lega- tees (i). But this rule with reference to legatees, is subject to a great variety of exceptions : In equity such debt shall not be releas- ed, even as against legatees, if the presumption arising from the appointment of a debtor to the executorship be contradict- ed by the express terms of the will : or by strong inference from its contents. As where a testator leaves a legacy, and directs it to be paid out of a debt due to him from the execu- tor ; such debt shall be assets to pay not merely that specific legacy, but all other legacies ('). In like manner, if he leave the executor a legacy, it is held to be a sufficient indication, that he did not mean to release the debt. And in such case, the executor shall be trustee to the amount of the debt for the residuary legatee, or next of kin ('). So where a testator be- queathed large legacies, and also the residue of his estate, to his executors, one of whom was indebted to him by bond in three thousand pounds, it was decreed that this debt should be added to the surplus, and that both executors were equally en- titled to it (^). So where a debtor to the testator was appointed executor, although without a legacy, yet it appearing by the tenor of the will, that the testator considered him in the light of a mere trustee of his whole property, liis debt was clearly held not to be discharged ("). So where A mortgaged his es- tate to B, who paid no money in consideration of the mortgage, but gave him a bond for ISOl. and then A died, having appoint- ed B his executor, the bond was decreed to be assets in the hands of B, and applicable, after payment of the funeral ex- (. Clark, 15 Ves. jun. 409. ''■ "^"^ury, 3 Men. Rep. 150. 18 Ves iun 247 ^'> ^^''^'^^ "'• ^'Hiams, 3 Ves. & Bea. •' 72. S.C. Coop. Rep. 58. CHAP. IV.] THE RESIDUE UNDISPOSED OF. 352 legacies, not expressly for his care and trouble, upon the evi- dence raising no direct intention in his favour, but mere infer- ence from equivocal declarations, with an intention to make an express residuary disposition, the executor will be a trustee of the residue (s). So the executor shall be excluded where the residuary clause is rased and become illegible ('•). Nor where the testator has regidarly bequeathed the surplus, although the residuary legatee first die, and consequently it be undisposed of at the time of the testator*s death, shall it belong to the exe- cutor ('). Nor shall the executor be entitled to it where the testator has given him a legacy expressly for his care and trou- ble ; for that is a strong case on which to raise a resulting trust, not merely on the absurdity of supposing a testator to give a part of the fund to that person for whom he intended the whole, but as it is evidence that he considered him as a trustee for some other, who should be the object of the care and trouble for which the bequest was meant as a compensation {^). Still, how- ever, the principle, that it shall not be presumed to have been [353] the testator's meaning thus to give part and all te the exe- cutor, has been allowed alone and unaided to operate as an exclusion. Hence it is a settled rule in equity, that a pecunia- ry legacy bequeathed to an executor alone, or to an executor who is also a trustee, affords a sufficient argument to debar him of the residue (i). A direction in a will " to keep accounts," was held upon de- murrer, to afford a presumption that the executrix was not meant to take beneficially ; but parol evidence being admitted on behalf of the executrix, to show that she was intended to (g) Langham v. Sandford, 17 Ves. jiin. less, 2 P. Wms. 158. Cordell v. Noden, 435. and on appeal, 19 Vez. 641. 2 2 Vern. 148. Newstead t^. Johnston, Meri. Rep. 6. 2 Atk. 46. (;'>)-Famngton t;. Knightly, IP. Wms. (') 1 P. Wms. 550, note 1. 2 Fonbl. 549. 131. note (^). Ball v. Smith, 2 Vern. (0 1 P. Wms. 550, note 1. NichoUs n. 676. Joslin v. Brevvitt, Bunb. 112, Crisp, Ambl. 769. Bennet x>. Batche- Farrington v. Knightly, 1 P. Wms, lor, 3 Bro. Ch. Rep. 28. 544. Davers i^. Davers, 3 P. Wms. 40. (i-) 2 Fonbl. 131. note (i<). Bp. of Prec. Ch, 107. Gibbs v. Rumsey, 2 Cloyne v. Young, 2 Vez. 97. Foster v. Ves. & Bea. 294. Bull v. Kingston, 1 Munt, 1 Vern. 473. Rachfield r. Care- Meri. Rep, 314, 353 THE RESIDUE UNDISPOSED OF. [bOOK IH. take the residue for her own benefit ; and such evidence being satisfactory, the bill by the next of kin was dismissed {<^), A bequest, that the whole of the testator's property shall pass by his codicil « according to law," will exclude the executor, and make him a trustee for the next of kin ("). If the legacy to the executor be specific, it shall equally ex- clude him (°). Nor will the rule be varied by the testator's having bequeathed legacies to the next of kin (p). For it is founded rather on an implied intent to bar the executor, than to create a trust for the next of kin ; and, therefore, if the exe- cutor have a legacy, and there be no next of kin, a trust shall result for the crown (i). It is also settled, that in case the wi- dow of the testator be executrix, she is, in respect to the resi- due, precisely in the same situation as any other person ap- pointed to the office {'') ; unless the bequest to her of a specific legacy, consisting of property which was her's before marriage, may vary the rule (»). Executors entitled to the residue undisposed of, will take a legacy to a charity void by the statute 9 Geo. 2. c. 36. for their own benefit, against the claim of the next of kin (»). A general devise and bequest to executors, having equal le- gacies of stock, for mourning, their heirs, executors, &c., on the especial trust to devote all, both real and personal, to debts, legacies, and annuities, is a resulting trust of the residue for the heir at law and next of kin ("). In respect to that class of cases in which the executor shall be entitled to the residue, although he be a legatee, it may be (m) Gladding v. Yapp, 5 Madd. Rep. (■]) Middleton v. Spicer, 1 Bro. Ch. 56. Rep. 201. (") Ld. Cranky v. Hale, 14 Ves. jun. (') Lady Granville v. Duch. of Beau- 307. fort, 1 P. Wms. 115. 550. note 1. 2 (o) Randall v. Bookey, 2 Vern. 425. Fonbl. 130, note 1. Lake v. Lake, Southcot V. Watson, 3 Alk. 226. Mar- Ambl. 126. 2 Eq. Ca. Abr. 444. Martin tin V. Rebow, 1 Bro. Ch. Rep. 154. . v. Rebow, 1 Bro. Ch. Rep. 154. (p) 2 Fonbl. 131. note C'). Bayley v. («) 2 Fonbl. 130, note 1. 7 Bro. P. C. Powell, 2 Vern. 361. Wheeler i). Sheer, 511. See Attorney-General v. Hooker, Moseley, 288. Andrew v. Clark, 2 2 P. Wms. 338. Vez. 162. Kennedy v. Stainsby, 1 Ves. (0 Dawson v. Clark, 15 Ves. jun. 409. jun. 66. in note. Vid. tarn. Attorney- (") Southouse v. Bate, 2 Ves. & Bea. General v. Hooker, 2 P. Wms. 337. 396. CHAP. IV.] THE RESIDUE UNDISPOSED OF. 354 [354] stated as an universal rule, that wherever the legacy is con- sistent with the intent that the executor should take the whole, a court of equity will not disturb his legal right. And there- fore, where a gift to an executor is only an exception out of another legacy ; as if a library be bequeathed to A, out of which the executor is to select ten books for himself; it shall not exclude him from the residue, inasmuch as it was necessary to make an express exception {'"). Nor where a legacy is given by a codicil to one of two executors (»). Nor where the exe^- cutorship is limited to a particular period, or determinable on a contingency, and the legacy to the executor, at the end of such period, or on such contingoicy's taking place, is bequeathed over, shall it defeat his claim to the surplus {^), Nor shall a gift of only a limited interest for the life of the executor have that effect (y). For in these cases the legacy is considered as an exception out of the general gift to the devisee over, and therefore not such a legacy as shall exclude the executor from the residue, since it does not involve the absurdity of giving expressly a part where the whole was intended to be given (^). But the limited executor has an interest in the residue only while his executorship continues, on the determination of which it devolves on the general executor (=»). If the executor be an infant, a legacy bequeathed to him shall not, it seems, exclude him from the residue, beciiuse his infancy renders him unfit to be a trustee, and, therefore, he shall be in- tended to have been named for his own benefit C^). [355] That parol evidence may be received for the purpose of rebutting a resulting trust, is sufficiently established by a series of cases ; but it is admitted with great caution {"), and C") Lamplug-h v. Lamplugh, 1 P. Wms. 112. See also Blinkhorn v. P'east, 2 Vez. 30. (w) 1 p. ^vv^nns, 550, note 1. Griffith v. (^) 1 P. Wms. 116, note 1. Rogers, Prec. Chan. 231. 2 Eq. Ca. (a) yid. Free, in Chan. 264 Abr. 444. pi. 58. Newstead v. John- ston, 2 Atk. 45. Southcot v. Watson, 3 Atk. 229. Vid. also 7 Bro. P. C. 511. (") Pratt V. Sladden, 14 Ves. jun. 193. (X) 2 Fonbl. 131, note (k). Hoskins v. (') ^ Fonbl. 135, note 1. Rochfield v. Iloskins, Prec. in Chan. 263. ^^''^'''' 2 P. Wms. 158. 160. Duke (y) 2 Fonbl. 131, note ('O- Lady Gran- «f ^"^1^"^ ^- O^^'^ess of Rutland, 210. viUe V. Duch. of Beaufort, 1 P. Wms. ^'""^'"^^ ^- ^'*'°°™' ^^^^ blinkhorn v. 114. Jones r. Westcomb, Prec. Chan. ^^^^'' ^ ^^^- ^^- ^^""^ *' ^^"*^^-' 316. Nourse v. Finch, 1 Ves. jun. 356. ^ Ves. jun. 358. 355 THE RESIDUE UNDISPOSED OF. [bOOK 111. although not restricted to what passed at tlie time of making the will (•'), yet must point to the testator's intention at that time only : evidence of his suhsequcnt intention will haA'^e no effect (^). Nor shall parol evidence for such jnirpose be admit- ted, where the execuior is declared by the will to be a trustee; or where the bequest to the executor is expressed in terms equivalent to such declaration, as where the legacy is given to him for his care and trouble in fulfilling the will (f). [l] (<>) Sedvid. Dukeof Rujtland •». Duch. Decree affirmed by Lord Chancellor, of Rutland, 2 P. Wms. 209. Nourse ibid. 644. Walton v. Walton, 14Ves. r. Finch, 1 Ves. jun. 359. jun. 318. (0 Lake v. Lake, 1 Wils. 313 Ambl. (f) Rochfield v. Careless, 2 P. Wms. 126. S. C. Clennel v. Lewlhwaite. 158. Decreed per M. R. 2 Ves. jun. 465. [1] In the following states, the right of the executor to the undisposed re- sidue is taken away by statute : Vermont, Rhode Island, New Hampshire, Mas- sachusetts, Pennsylvania, Delaware, Maryland, Virginia, and North Carolina. Qitcere, whether commissions for the care and trouble of the executor do not in all cases exclude his claim to the undispo«ed residue. An executor has always been considered by the law of Pennsylvania a trustee for the next of kin, as to all the residue of personal property undis- posed of by the testator. Wilson v. Wilson, 3 Binn. 557. And as far back as the testamentary laws, he has always, had a compensation for his services. 3 Binn. .560. Ibid. [ 356 J CHAP. V. OF THE INCOMPETENCY OF AN INFANT EXECUTOR — OF TUB ACTS OF AN EXECUTOR DURANTE MINORITATE — OF A MAR- RIED WOMAN EXECUTRIX OF CO-EXECUTORS OF EXECU- TOR OF EXECUTOR — OF EXECUTOR DE SON TORT. An infant, as it has been already stated (*), is now by the stat. 38 Geo. 3. c. 87. incapable of tlie functions of an executoi", tilJ he shall have attained his full age of twenty-one years. Nor before the passing of tliis statute was an infant competent to act, till he had arrived at the age of seventeen (^) j but at that age he liad a right to assume the executorship. He had authority to sell the testator's effects, to pay and receive debts, to assent to and pay legacies, and, generally, to discharge the duties which belong to the representatives of the deceased (<=). Yet, if an infant executor, after the age of seventeen, and be- fore the age of twenty-one, years, released a debt due to the testator without actually receiving it, such a release was held to be void : or if he received only a part of it, it was void for [357] the remainder; for otherwise he would have been divest- ed of that privilege which the law allows to all infants, of re- scinding their acts when they are manifestly to their disadvan- tage. Nor could a proceeding, prejudicial both to the infant and to the estate, be regarded as pursuant to his office {'^). On the same principle the assent of such infant executor to a lega- cy did not bind him, unless he had assets for the payment of debts (*^). Nor had he a power of committing any other act which might involve him in the consequences of a devastavit {^), (0 Supr. 31. 101. (<^) 3 Ban. Abr. 8 5 Co. 27. Off. Ex. (b) Off. Ex. 214. 1 Roll. Abr. 730. Sed 217, 218. Com. Dig. Admon. E. Rug. vid. Gierke v. Hopkins, Cro. Eliz. 254- sel's Case, Moore, 146. Knot v. Bar- Manning's Case, 3 Leon. 143. Keihv. low, Cro. Eliz 671. Knivcton v. La- 51. Foxwlst V. Tremaine, 2 Saund. lliam, Cro. Car. 490. 212. 1 Bl. Com. 463. (c) off Ex. 217. 225. (c) 3 Bac. Abr. 8. Off Ex. 215. 217, (,>, ^yhitemore v. Weld, 1 Vem. 328. 218. Coin. Dig. Admon. E. Tt 357 OF A LIMITED EXECUTOR. [bOOK 111. Nor, in a late case, would the Court of Cliancery direct money to be paid to an infant executor, although he had attained the age of seventeen ; but referred it to a master to inquire, whe- ther there were any debts or legacies, and to consider of a^ maintenance (e). But these distinctions it is now needless to discuss, the sta- tute having altogether disquiilified an infant executor from ex- ercising the office during his minority, and having directed ad- ministration with the will annexed to be granted to some other person in the in.terim (h). If A appoint B, an infant, his executor, and C executor dur- ing the minority of B, C, thougii only a temporary executor, seems, during the continuance of his office, to be invested with [358] the same powers as belong to an absolute executor; and although he be named in the will administrator only for the benefit of the infant ('). In case a married woman be executrix, the husband, as we have before seen C'), has a right to act in the administration with or without her consent. He is empowered to reduce into possession, or to dispose of the property by way of gift, sale, surrender, or release; to receive and pay debts ; to assent to and pay legacies; and to elect for his wife to take as legatee (•). And his assets are chargeable in equity for waste committed during the coverture ('"). On the contrary, such acts, if per- formed by her without his permission, are of no validity ("). If the husband be abroad, the Court of Cliancery will restrain the executrix from getting in the assets of the testator, and ap- point a receiver for that j)urpose, with ])ower to commence suits for the recovery of debts due to the estate (•'). And this doctrine is founded on the principle, that as he is personally responsible for such acts, the law makes it essential to their validity, that they should be performed by him, or at (g) Campart v. Campart, 3 Bro. Ch. 207, 208. Wankford v. Wankford, 1 Rep 195 S:ilk. 306. CO Vid. supr. 31. 101. ('") Adair v. Shaw, 1 Sch. & I,ef. 243- (*) Off" Ex. 215, 216. Com. Dig-. Ad- (") 3 Bac. Abr. 9. Keilw. 122. Off. mon. F. Ex. 207, 208. Vid. Anders. 117. 1 (><) Supr. 241. HoU. Abr. 924. (') Com. Dig. Admon. D. Off. Ex. (^) Taylor v. Allen, 2 Alk. 213. CHAP, v.] MARRIED WOMAN EXECUTRIX. 358 least with his concurrence : otherwise the misconduct of the wife in the executorship might he extremely prejudicial to the hushand (p). Yet, if an executrix marry, and the husband eloine the goods, or is guilty of any other species of devastavit, it will be a de- [359] vastavit also by the wife, and they will be both answera- ble accordingly ('i). On the other hand, if an executrix commit a devastavit^ and then marry, the husband, as well as the wife, is chargeable for it during the coverture ('). And where an executrix marries, and her husband and she admit assets in answer to a hill filed against them ; the assets become a debt of the husband in resjject of such admission, and maybe proved under a commission of bankruptcy issued against him('). If the testator were indebted to the husband, or, which is the same tiling, to the wife before marriage, the husband may re- tain. If the husband were indebted to the testator, the making of the wife executrix is equally a release of the debt, as if she had been the debtor ; although if an executrix after the death of the testator marry such debtor, it will be a devastavit (^). If specific legacies are left to a hushand and wife jointly, and they are named executors, such legacies shall exclude them from the residue, for they are analogous to a specific legacy to a sole executor ("). Co-executors, we may remember, are regarded in law as an individual person (^^) ; and, by consequence, the acts of any one of them, in respect to the administration of the effects, are deem- ed to be the acts of all : for they have a joint and entire authority over the whole, property ("). Hence a release of a debt by one (p) Off. Ex. 207, 208. 225. 1 Fonbl. (») Matter of M'Williams, 1 Scho. & 84. 86. 5 Co. 27. Lef. 173. (1) Com. Dig. Admon. D. Cro. Car. /t) off, Ex. 207. 5W. Dyer, 210, in marg. Beym.n r. ^ ^^^^^^ ^.^^ ^^^^ ^ ^^ ^^_ Gollins, 2 Bro. Ch. Rep. 323. Adaxr ^^^ ^ ^^^.,^^^.^ g^_ V. Shaw. 1 Sell. Sc Lef 257. (0 Com. Dig-. Baron & Feme, N King (") ^'d. supr. 37. 243. V. Hilton, Cro. Car. 603. Heyward's (") 3 Bac. Abr. 30 Off. Ex. 95. 1 Roll. Case, Moore, 761. Abr. 924. Com. Dig. Admon. B. 12. 360 or CO-EXECUTORS. [book III. [360] of several executors is valid, and shall bind the rest(y). So a grant, or a surrender of a term by one executor shall be equally available (^). It lias been likewise held, that if one confess a judgment, the judgment shall be against all (=>). But, on the contrary, vi^here there were three executors, one of whom gave a warrant of attorney to confess judgment against himself and his co-executors, pursuant to which a judgment was entered against all the executors de bonis testatoris for the debt, and against the executor who gave the warrant de bonis jiropriis for the costs ; it was set aside, on the ground that executors may plead different pleas, and that which is most for the testator's advantage shall be received (^). If one executor grant or re- lease his interest in the testator's estate to the other, nothing shall pass, because each was possessed of the whole before {"). It has been adjudged also, that if one of two executors appointed by the obligee deliver the bond to a stranger in satisfaction of a debt due from himself, and die ; although the debt as a chose in action could not pass by the assignment, yet by this delivery the party had such an interest in the instrument, that he might justify the detention of it as against the surviving executor ("i) j but the law of this case seems very dubious, inasmuch as the debt, not being assignable, could not pass by the delivery of the obligation («). [361] One executor shall not be allowed to retain his own debt in prejudice to that of his co-executor in equal degree, but both shall be discharged in proportion (f). An assent to a legacy by one of several executors is suffi- cient(B). And if there be a devise to all the executors gene- rally, one of them may assent for his partC*). Co-executors, as well as a sole executor, shall be excluded C>) Dyer, 23 b. Jacomb v. Harwood, ('i) 2 Roll. Abr. 46. Dyer, 23 b. Kel- 2 Vez. 267. sock v. Nicholson, Cro. Eliz. 478. S. C. (^) Ibid. 23 b. - 496. (") Ibid. 23 b. in note. (<=) 3 Bac. Abr. in note. (h) F,Uvell t;. Quash, Stra. 20. VId. (f) 2Fonbl. 407, note (')• H Vin. Abr. Baldwin v. Church, 10 Mod. 323. 72. 3B1. Com. 19. Htidson V. Hudson, 1 Atk. 460. Jleis- (k) Com. Dig. Admon, C. 8. Off. Ex. ter V. K iipe, 1 Jh-owne, 319. 225. (0 Godolph. 134. 3 Bac. Abr. 31. ('>) 1 Roll. Abr. 618. CHAP, v.] OF CO-EXECUTORS. 361 from the residue, either in case tlie testator sliall have expressly described them as mere trustees ; or, according to the fair con- struction of the will, appears to have so considered them ; or in case he has made an imperfect disposition of the residue, as where he has inserted a residuary clause without proceeding to specify the residuary legatee; or where he hath bequeathed the surphis to a party, who died before him ('). If a legacy be given to one executor expressly for his care and trouble, and no legacy given to his co-executor, they shall both be barred of the residue C^). For one being a trustee, the other must be a trustee also. Yet if there be two or more exe- cutors, a legacy to one expressed to be a testimony of regard, and immediately following a particular trust imposed upon him by the will, shall not exclude tiiem from the residue (>), nor shall even a simple legacy to one of tliom have that effect ; for the testator may have intended a preference to him to that extent (•"). [362] So, where several executors have tniequal legacies, whe- ther pecuniary, or specific, they sh^.W nevertheless be entitled to the surplus ("). But where equai ;;ecuniary legacies are given to co-executors, a trust shall resuit, for the next of kin (<»). The arguments which have been urged in opposition to this rule, and to show that the giving of equal pecuniary legacies to seve- ral executors, is not absolutely inconsistent with an intention that they should take the surplus, are, that such gift would se- cure to them a proportion of their legacies in the event of a de- ficiency of assets, which applies equally to the case of a sole executor; and that they would take the legacies severally, whereas the residue would belong to them jointly : Yet the rule has long prevailed as above stated (p). No case, however, occurs in the hooks, in which distinct specific legacies of equal (i) 1 P. Wms. Petit V. Smith, 7- & 166, 167. 2 Fonbl. 133, in note. Buf- 550, note 1. 2 Fonbl. 133, in note. far v. Bradford, 2 Atk. 220. (k) 2 Fonbl. 133, in note. White -c-. (■>) 1 P.AVms. 550,note 1. Brasbridge Evans, 4 Ves. jun. 21. v. Woodroffe, 2 Atk. 69. Bowker v. (1) Griffiths V. Hamilton, IJi Ves. juu. Hunter, 1 Bro. Ch. Rep. 328. 2 FonbL 298. 134, in note. Blinkhorn •». Feast, 2 (m) 1 P. Wms. 550, note 1. Coles- Ves. 27- worth V. Brangwin, Free. Chan. 323. (°) Petit r. Smith, IP. Wms. 7. Carey 4 Bro. P. C. 1. Bishop of Cloyne v. v. Goodinge, 3 Bro. Ch. Rep. 110, Young, 2 Ves. 91. Wilson v- !vat, ib. (p) 1 P. Wms. 550, note 1. 362 OF CO-EXECUTORS. [bOOK III. value to several executors have excluded them from the residue. And the argument which supports the rule as to pecuniary, by no means applies with equal force to specific legacies, since it is very probable that a testator may wish to distribute specific quantities of stock, or particular debts, among his executors in some particular manner, although equal in point of value, and consistently with an intention that they should take the sur- plus (-). But this point is of no more importance than that just mentioned, and for the same reason. [1] (y) Com. Dig. Admon. G. Off. Ex. 257, (^) Harg. Co. LItt. 113, note 2. Keihv, 258 Shep. Touch. 464. 44. 2 Brownl. 194. Dyer, 210. 371 b. (^) Off. Ex. 258, 259. [1] In Pennsylvania, by Act of olst March, 1792, where a naked authority only is given to sell lands, the executors shall take and hold the same interest in such lands, and have the same power and authority respecting the same, as if such lands were devised to them to be sold, saving to the testator the right to direct otherwise; and the law was so settled before the passing of the Act of 1792, by the case of LloijcVs Less. v. Taylor, 2 Dall. 223. Prior to the Act of 12th March, 1800, where power had been given to exe- cutors to sell, and they renounced, administrators cum testamento annexo could not sell, although for the payment of debts. Moody & al. v. Vandyke & al. 4 Binn. 31, By that Act, where real estate is devised to be sold, if one or more of the executors die, or refuse, or renounce, or be dismissed, the survivor or survivors, or the acting executor, may bring actions for the recovery thereof, or against trespassers thereon, may sell, and convey, and manage the same, as fully and completely as might have been done, if the deceased executors were living. And in case of the death, or renunciation, or removal, of all the exe- cutors, like powers are given to the administrator with the will annexed. A sale of lands by an executor for the payment o? debts, under a power in the will for the payment of legacies, is not valid against creditors. Hannum v. Spear, 2 Dall. 291. S. C. 2 Yeates, 553. But where a power is given by the will to sell for the payment of debts, and the executor applied the proceeds to the payment of the debts according to their priority and dignity, it seems, the purchaser will hold the land discharged of the debts. Ibid. Though in general a power given to three to sell cannot be executed by less than three, yet, where authority is given to executors virmte officii, a surviving executor may make sale. Zebach v. Smith, 3 Binn, 60. Jenkins v. Stouffev L" 364 OF AN EXECUTOR DE SON TORT. [bOOK III. If an executor who lias not proved, assist Tiis co-executor who has, in writing letters to collect debts, or by writing directly to a debtor of the testator requiring payment, it will not be considered by the court as acting, so as to charge him C^). In respect to an executor de son tort, he may perform a va- riety of acts, which shall be as binding as those of a rightful executor (»). As against creditors, he is justified in paying the debts of the deceased (d), and, indeed, may be compelled to pay [365] them so far as assets come to his hands («) ', and to an ac- (t>) Orr V. Newton, 2 Cox's Rep. 274. ('') Off. Ex. 181, 182. (') 5 Bac. Abr. 25. Off. Ex. 180. (0 2 Bl. Com. 507. Dyer, 166 b. al. 3 Yeates, 103. A power to A, his executors and administrators, to sell, may be executed by the executor of A's execmor. Smith v. Folwell, 1 Blnn. 156. If by a devise executors are directed to sell lands, they cannot convey to a person, to enable such person to bring an ejectment for the lands. Carroll's Less. V. Andrew, 4 Har. & M'Hen. 485. If two executors are authorized by a will to sell and convey lands, and one of them relinquishes the trust after letters granted, and the other sells and conveys the land, the trust is well executed. Diggers Less. v. Jarman, 4 Har. & M'Hen. 485. Sed contra, JVehon v. Carringion, 4 Hen. & Munf. 332. But where a will directs the sale and conveyance of land by executors in general terms, a conveyance by two out of three executors, all of whom are qualified and are living, is not valid in law, and cannot be aided in equity. JPRae V. Harrow, 3 Hen. Si Munf. 444. A purchase of land by an executor, which had been sold by him agreeably to the will of his testator, is valid, if it appear that his conduct in the sale was fair and correct. M'Kay, Ex. o/Fougua v. Toiing, 4 Hen. & Munf. 430. In Vermont, if joint power to execute certain trusts in a will be committed to two or more trustees or executors, if one or more of them shall leave the state, the trust may be executed by the trustees or executors remaining in the state, the survivor or survivors of them. And in case of joint administrators, the removal of one of them from the state, or his death, may be supplied, b\' the judge of probate empowering the remaining or surviving administrator to perform all acts pertaining to such administration. If an executor be authorized by the jvill to sell lands of the testator for the payment of debts, a descent from, or an alienation by devisees, will not take from him the power to sell the lands. Gore v, Brazer, 3 Mass. T. R. 541. But lie cannot convey or release any right or interest which the testator had in lands of which he was not seised at the time of making liis will, or at the time of his decease. Poor £J al. v. JRobinson, 10 Mass. T. R. 131. CHAP, v.] OF AN EXECUTOR DE SON TORT. 365 tion brought against him by a creditor, he may plead plene ad- ministravit C). In case the rightful representative shall think fit to pursue his legal remedy against sucli an intruder, he has no defence; as, if it be by action of trover for the go(»d.s of tlie testator, the executor de son tort cannot plead payment of debts to tlie vaiue, or that he hath given the goods in satisfaction of the debts j for he had no right to interfere. Yet, on the general issue pleaded, he may give in evidence such payments, and they shall be deducted from the dama- ges (s); or, if they amount to the full value, the plaintiff shall be nonsuited (•*). But it may be doubted, whetlier in such action the defendant can give in evidence payment of debts to the va- lue of such goods as are still in his custody, or only of those which he has sold (■). If the action be trespass instead of tro- ver, payment of debts to the value will go only in mitigation of damages C^), and the plaintiff will be entitled to a verdict. The ground of the distinction seems to be this : in trover, his possession is admitted to have been lawful, and the subsequent distribution negatives tlie conversion ; but in trespass, the un- [366] lawful taking is the subject matter of complaint, to which the distribution is not an answer. Nor in any case shall such payments be allowed to nonsuit the plaintiff, or to lessen the damages, if there be a failure of assets, and the lawful executor would by these means be divest- ed of his right of pi'eferring one creditor to another of equal rank, or giving himself the same preference ('). Nor shall an executor de son tort derive any advantage from the wrongful character which he has assumed. He is not en- titled to bring an action in right of the deceased ('") ; nor is he empowered to retain in satisfaction of his own debt: for such a privilege would enable him to profit by his own tortious acts, (f) 3 Bac. Abr. 25. 5 Co. 30. Off. Ex. (h) L. of Ni. Pri. 48. 181. Whitehall t.. Squire, Carth. 104. (') Ibid, [\irker r. Rett, 12 Mod. 471. Sid. 76. (K) L. of Ni. Pii.48.91. Ca. B.R.441. (g) Com. Dig. Admon. C. 3. 3 Bac. (') 2 Bl.Com. 508. Off. Ex. 182. Abr. 25. Carth. 104. Skin. 274. pi. 2. (■") 2 Bl.Com. 507. Bro. Abr. tit.Ad- OfF. Ex. 182. Anon. 1 Ventr. 349, 350. mon. 8. 11 Vin. Abr. 222. 2JVnders. 2 Bl. Com. 508. 39. pi. 25. Uu 366 OF AN EXECUTOR DE SON TORT. [bOOK III. and would tend to encourage a competition of creditors, who shouM first take possession of the testator's effects without any leg-al authority ("). There is, indeed, one exception to this rule ; a party who by stat. 43 Eliz. c. 8. (°) becomes an executor de son tort, in con- sequence of a gift to him of the intestate's effects by an admi- nistrator, who has obtained the grant fraudulently, is by the express provision of that act allowed to retain. But in all other instances, an executor de son tort is excluded from this [367] advantage. Nor shall he retain for his own debt, even against a creditor of inferior degree (p). Nor, after an action brought against him by a creditor, can he avail himself of a delivery over of the effects to the riglitful administrator, though before the filing of the plea; nor of the assent of the administrator to his retainf^r of his debt. Nor is the case va- ried, although in point of fact no administration were granted at the time of the commencement of such suit, and the defend- ant without delay relinquished the property to the grantee Qi). If the executor de son tort deliver the effects to the adminis- trator before such action brought, that is a sufficient defence, an(f he may give it in evidence on the plea ofplene administra- vit ('). The grant of administration to such executor shall legalize his previous acts(^). Thus, where he takes possession of the testator's goods, and sells them, and afterwards is appointed administrator, such subsequent grant sl'.all make the sale effec- tual ('). So if A be ordered by B to sell the effects of the in- testate, and B afterwards take out administration; A, to an ac- tion brought against him by a creditor, may plead plene admu nistravit, and shall be discharged on this evidence ("). An ad- (n) 2 Bl. Com. 511. 5 Co. 30. Moore, 587, affirmed in Exch. Cham. 2 H. Bl. 527. 26. (°) See Com. Dls^. Admon. Co. Off". . (') Anon. 1 Salk. 313- Ex. 182, 183. 2 H. Bl. 26. in note, Sc (•) Com. Dig. Admon. C. 3. Kenrick vid. supr. 39. v. Burgess, Moore, 126. Curtis v. (p) 3 Bac. Abr. 25. 5 Co. 30 Ireland Vernon, 3 Term Rep. 590. 2 H. Bl. 25. •w. Coulter, Cro. Eliz. 630. 1 Roll. Eattoonv.Overacker,SJohns.Jiep.l26. Abr. 922. (0 Moore, 126. (^) Curtis V. Vernon, 3 Term Rep. (") Whylmore r. Porter, Cro. Car. 88. CHAP, v.] OF AN EXECUTOB DE SON TORT. 368 [368] ministration, also, committed to an executor de son tort, and although committed to him pendente lite, shall warrant his retainer of his own debt, on the same principle of necessity on which such right of executors is in general founded, namely, to avoid the inconvenience and absurdity of a party's instituting a suit against himself ("). So, where A, entitled to administra- tion, was opposed in the ecclesiastical court, and, pendente lite, being sued as executor in the Court of King's Bench, pleaded a retainer for a debt due to himself, to wl)ich the plaintiff re- plied, tliat the defendant was executor de son tort; the defend- ant rejoined, that letters of administration had been granted to liim puis darrein continuance ; on demurrer tlie plea was allow- ed, and judgment given for the defendant (>). But if A dispose of an intestate's goods to B, for the payment of the funeral, and afterwards take administration, it has been held, he shall not have an action of trover against B for the goods (■'). (") 2 H. 11. 25. arguendo. Com. Dig. L. of Ni. Pi-1. 143, 144. Admon. C. 3. Pyne v. WooUand, 2 (i) p. per two just. Holt, C. J. contr. Ventr. 180. Sty. 337. Whitehall v. Squire, Salk. 295. S. C. (y) 3 Bac. Abr. 26, in note. Vaughan skin. 274. Vid. S. C. Carth. 104. and r. Browne, 2 Stra. 1106. Andr. 328. supr. 244 S. C. 3 Term Kep. 588, S. C. cited [ 369 ] CHAP. VI. OF DISTRIBUTION. [1] Sect. I. Of distribution wider the statute — and herein of advancement. I AM now to discuss the power and duty of an administrator. His office, so far as it concerns the collecting of the effects, tlie [1] There is much diversiiy in the several states, in the distribution of the property of intestates. AVe shall eiuleavour to give as clea;- a viev/ of the law in each of them, on this important subject, as the limits of a note will admit. It will be proper to premise, that the feudal law of primogeniture does not exist in any of the United States ; that real as well as personal property is subiected to statutory distribution; and that the heir at common law must bring his advancement into hotchpot, as other children. In Vermont, the real and personal estate is divided in equal portions to the male and equal portions to the female children ; but the males take double the portion of the females. But this inequulity of distribution is not preserved where the intestate leaves no children, the estate being distributed equally among the next of kin. The widow takes one-third of the real estate for life, and one-third of the personal estate absolutely. Antinuptial children, recog- nised by the father, are legitimated; and bastards inherit, and transmit inhe- ritances on the part of the mother, as if lawfully begotten. The share of a child dying under age and unmarried, passes to his surviving brothers and sisters, or their legal representatives, the brothers taking double portions. And, if a child die intestate, after attaining full age, living the mother, she takes equally with the sisters. If a person die leaving no issue nor widow, the father takes the whole estate; if he leave a widow, but no issue, she takes one-haLf of the real and personal estate for ever : the other half passes to the father. If the father be dead, and the mother living, she lakes a share equally with the sisters. If the intestate die without heirs, living the wife, she takes the whole of the real and personal estate forever; giving bond to refund, on the appearance of any heir, devisee, or legatee. The surplusage of every estate subject to distribution is charged with the maintenance of the intestate's children, until they attain the age of seven years ; after which, each is to be supported from its particular portion. CHAP. VI.] OP DISTRIBUTION. 369 makin.^of an inventory, and the payment of debts, is altogether the same as that of an executor. But as there is no will to di- In other respects, the statutes regulating' descents and distribution are simi- lar to the Stat. 22 &. 23 Car. 2. In New Hampshire, inheritances in fee simple descend, upon intestacy, in equal shares to the children, and to the representatives of such of them as may be dead ; and if there be no children, then to tlie next of kin in equal degree, or to their representatives ; but no representation is admitted beyond nephews and nieces. If any of the children die in their minority unmarried, their shares go to the other children and their representatives; but if any of them die after majority unmarried, living the mother, she inherits equally with the surviving children. If one die, of full age, without issue, living the father and widow, she takes one-third during life ; tlie remainder goes to the father in fee. But if the father be dead, and mother living, she takes equally with the brothers and sisters, and their representatives. There is no distinction between the half and the whole blood. The surplusage of the personal estate is distributed as the real, except that if there be children, the widow takes one-third, if none, one-half, absolutely. As in Vermont, the surplusage of every intestate estate is chargeable with the maintenance of the children, until they respectively attain the age of seven years. In Massachusetts, inheritances in fee simple, or for the life of another, in case of intestacy, descend in equal shares to the children, and to the lawful issue of any deceased child; if there be no issue, then to the father; if there be no issue nor father, then to the mother, and brothers and sisters, and their representatives, in equal portions. In default of brothers and sisters, and their representatives, then to the mother. If there be no mother, then to the intes- tate's next of kin, in equal degree ; the collateral kindred claiming through the nearest ancestor to be preferred to the collateral kindred claiming through a common ancestor more remote ; the degrees of kindred, in all cases, to be computed according to the rules of the civil law. In default of kindred, escheat to the commonwealth, saving to the widow her dower, and to the husband his curtesy. The half-blood inherit equally with the whole, unless the estate came from the father or mother, in which case the child of the father or mother shall inherit exclusively. If the kindred of the intestate are all related to him in the same degree, they take per capita, or equally; otherwise, per stirpes, according to the right of representation. All gifts or grants of real or personal estate, made by the intestate to a child or grandchild, which shall be expressed in the gift or grant, or charged by the intestate in writing, or acknowledged by the child or grandchild in writing, as 369' OF DISTRIBUTION. [bOOK 111. rect the subsequent disposition of the property, at this point they separate, and must pursue different courses. made for an advancement of such child or grandchild, shall be brought into general distribution at the value expressed in the grant, charge, or acknow- ledgment, or at the value when given. The surplusage of the personal estate is distributed as the real, except that the husband is entitled to the whole of the residue, and the widow to one- third if there be issue, and to one-half if there be none. In the real estate, she is entitled to her dower as at common law, even though she be an alien. If a child die before the age of twenty-one years, unmarried, his share de- scends equally among his surviving brothers and sisters, and such as legally represent them ; if after that age, unmarried, iinestate, and without issue, liv- ing the mother, every brother and sister shall inherit equally with the mother. In Connecticut, real and personal estate are subject to like distribution. The children, or if any be dead, their representatives, take in equal shares ; those who have been advanced bringing the value of their advancement into general distribution ; the male heirs to have their part in real estate, so far as is practicable. If any of the children die before majority and before marriage, or before any legal disposition thereof and before marriage, the portion of such child shall be equally divided among the surviving children, and their legal representatives. If there be no children, nor legal representatives of them, then one moiety of the personal estate goes to the wife for ever, and one-third of the real estate during life ; the residue, real and personal, to the brothers and sisters of the whole blood, and their represeniatives ; in default of such kindred, then to the parent or parents ; if there be no parents, then equally to the brothers and sisters of the half-blood, and their representatives ; in default of these, then equally to the next of kin, in equal degree. Kindred of the whole blood are preferred to those of the lialf-blood, in equal degree ; and representation is not admitted among collaterals, after the representatives of brothers and sisters. Provided that real estate, descended from the part of any ancestor, shall go 1. to the brothers and sisters of the intestate, and their representatives, of the blood of such ancestor; 2. in default of these, to the children or their repre- sentatives of such ancestor ; and 3. in their default, then to the brothers and sisters and their representatives of such ancestor ; and in default of all, then to be divided in the same manner as other real estate. If there be no widow^ the w^hole of the estate is to be divided as above. In Rhode Island, the real estate of the decedent is distributed, subject to the widow's dower, equally among the children, and their representatives if any of them be dead; if there be no children, then equally among the next of kin of equal degree, and their representatives ; but no representation is admitted among collaterals beyond nephews and nieces, CHAP. VI.] OF DISTRIBUTION. 369 After the ordinary was divested of tlie power of administer- ing an intestate's effects, and compelled, in the manner above If any of the children of the intestate die without issue in the lifetime of the motlier, the brothers and sisters, and their representatives, inherit equally with the mother. There is no distinction between the whole and the half-blood, except where the estate has descended ex parte paternd, or ex parte maternd, in which case the estate cannot pass to the half-blood. Personal estate is distributed as real, except that if the intestate die without issue, the widow takes one-half, instead of one-tliird, of the personal estate, for ever. In New York, the real estate of an intestate descends to his issue of the same degree of consanguinity, however remote from the ancestor, in equal parts; if the issue be of different degrees of consanguinity, those nearest take per capita, and the issue of those who are deceased, of the same degree of kindred, take per stirpes, or that share only which their deceased parent would have taken had he been living. If the intestate die without issue, living a father, he takes in fee simple, un- less the estate came on the part of the mother, in^vhich case it descends as if the intestate had survived the father. If there be no father, the brothers and sisters take equally, if any of the bro- thers or sisters be dead, leaving issue, such issue takes equally the share which their parent would have taken had he survived the intestate. No distinction is made between the whole and the half-blood, unless the estate came from an ancestor, in which case those not of the blood of the ancestor are excluded. Posthumous children inherit as if born in the lifetime of the father. In all cases of descent not particularly provided for by the statute, the com- mon law prevails. The widow is entitled to her dower, and one third of the surplusage of the personal estate, if there be children; if no children, then a moiety. The residue of the personalty is distributed equally among the next of kin of equal degree and their representatives, but no representation is admitted among collaterals after brothers' and sisters' children : If there be no wife, the estate is distribut- ed equally among the children ; if no child, then to tlie next of kin in equal degree and their representatives. If after the death of a father, any of his children die intestate without wife or children, living the mother, she takes equally with the brothers and sisters'^ and their representatives. In New Jersey, the intestate's lands, &c. are distributed equally among his children, living at his death, and the representatives of such as may have died before him, in equal parts. If any of the issue of the intestate have been ad- vanced during his life, such issue must bring his advancement into the general distribution, or forego his part thereof; and posthumous children inherit as if they were- born in the lifetime of their respective fathers. 359 OF DISTRIBUTION. [bOOK III. mentioned ("»), to delegate such authority to the relations of the deceased, the spiritual court attempted to enforce a distribution, (») Supr. 80. et seq. In default of issue, the brothers and sisters of the whole blood take as ten- ants in common in equal parts ; if any of them die before the intestate, leav- ing children, such children take the portion their parent would have laken, in equal parts ; and tlie same rule is observed m case of the death of any child of such brother or sister before the intestate. If the intestate die, leaving no issue, nor brother nor sister, nor issue of bro- ther or sister, the inheritance goes to tlie father, unless it came from the part of the mother, in which case it shall descend as if the intestate hud survived his father. If there be no father, but brothers or sisters of the half-blood, the inheri- tance descends to them in equal parts, and to their children, under the rules which regulate the descent to the whole blood. Provided, that the inheri- tance do not come from any ancestor of the intestate ; in such case, none who are not of the blood of such ancestor can inherit. And in default of brothers or sisters of the half blood, if the intestate left several persons, all of equal degree of coitsanguinity to him, his lands descend to such persons as tenants in common in equal parts, however remote from the in- testate the common degree of consanguinity may be, unless the inheritance came to the intestate from his ancestors, in which case those not of the blood of such ancestors are excluded, if there be any person in being of the blood of such an- cestor capable of inheriting. The widow is entitled to one-third of .the real estate (her doiuer) for life, and one-third of the personal estate absolutely, if there be children ; if there be none, then to one-half The residue is distributed to the children and their repre- sentatives, representation among collaterals being admitted as far only as ne- phews and nieces; and in default of children, to the next of kindred of the in- testate who are in equal degree, and those who represent them. If after the death of the father, any of the children (of whatever age) shall die intestate without wife or children in the life of the mother, every brother and sister shall have an equal share with her. In default of heirs, the real and personal estate of an intestate goes to the overseers of the poor of the township in which he died, for the use of the poor of such township. In Pennsylvania, if the intestate leave children only, they take his real ej- tate equally as tenants in common ; if children and the issue of children, such issue represent their parents, and take equally among them what their parents would have taken if living : if the intestate leave grandchildren only, they take equally as tenants in common ; if grandchildren and the issue of grandchil- dren, such issue represent their parents, and so as to lineal descendants to the remotest degree. CHAP. VI.] OF DISTRIBUTION. 369 and took bonds of the administrator for that purpose ; hut such honds were prohibited in the temporal courts, and declared to If there be no issue, but only brothers or sisters, or both, they take equally; and if any be dead, their issue represent them. If there be father or mother, and brothers or sisters, the father takes all during his life ; if no father, the mother all during her life ; and afier his or her death, the brothers and sisters, and the issue of deceased brothers or sisters take as they would have done if the father or mother had not survived the in- testate. If there be no brothers, nor sisters, nor their representatives, the father, if liv- ing, takes the whole in fee; if he be dead, and the mother living, she takes the whole in fee ; but if the estate came on the part of the father, the mother can- not inherit, and so vice versa. If there be no lineal descendants, nor father, mother, sisters nor brothers of the whole blood, nor their issue, then brothers and sisters of tlie half-blood and their issue take in preference to more remote kindred of the whole blood, un- less the estate came to the intestate by descent, devise, or gift of some of his ancestors ; when all not of the blood of the ancestor are excluded. In default of brothers and sisters of the half-blood, and their issue, the in- heritance descends to and is divided among the next of kin of equal degree of the intestate, and if any such kindred be dead, their issue represent them. Posthumous children inherit as if born in the life of the father. If there be a luidoio, she takes, if there be lineal descendants, one-third ; if no lineal descendants, one-half of the estate during life ; not as dower at com- mon law, but under the statute of distribution, and in lien and satisfaction of dower. In all cases of descent not particularly provided for by statute, the common law still governs. Of personal estate, the widow takes one-third, if there be lineal descendants ; one-half if there be not: the residue is distributed in like manner as real es- tate, except that, in the case where the father or mother would take only an estate for life in the real property, they take the personal absolutely ; and bro- thers and sisters of the half-blood take equally with the whole blood. In Delaware, the real estate of an Intestate is distributed equally among the children, or such as legally represent them ; children advanced bringing their advancement into the general distribution, under the penalty of exclusion : one-third to the widow during her life, and of the personal esiate one-thirdab- solutely. If there be no children, nor legal representatives, one-half to the widow for life, and of the personal estate one-half absolutely ; the residue to the brothers and sisters of the intestate in fee, to whom also the remainder, after the death of the widow, descends. If there be no brothers nor sisters, nor their representatives, then to the next Xx 369 OF DISTRIBUTION. [bOOK III. be void in point of law, on the ground, that by the grant of ad- [370] jninistrationthe ecclesiastical authority was executed, and of kin in equal degree, or their representatives; but representation is not ad- mitted among collaterals beyond brothers' and sisters' grandchildren. If a man die intestate, leaving children by different ventres, or a woman leaving children by different fathers, and any of such children shall afterwards die intestate, the real estate of such child, so dying, which came from the common parent, is distributed, one moiety to the widow, if any, during her natural life, and the residue equally among the brothers and sisters of the deceased, or their legal representatives both of the whole and the half-blood, being issue of the same parent from whom the estate came ; and in case there be none such, then amongst all the other brothers and sisters or their le- gal representatives ; and in case there be none such, then the residue shall go equally to the next of kin in equal degree, and their representatives. Real estate acquired in any other manner by an intestate, leaving no chil- dren, &c. is distributed, one moiety to the widow during life, the residue among the brothers and sisters of the whole blood, or their legal representa- tives; if there be none such, then to the brothers and sisters of the half-blood, &c. and if none, then to- kindred in equal degree to the intestate, and their re- presentatives. If one die intestate without known kindred, his personal estate goes abso- lutely to the wife, and his real estate during life. If he leave no kindred nor wife, then the whole escheats to the commonwealth. Posthumous children inherit as if born before the death of the father. Personal estate is distributed as the real, except as it regards the half-blood, who take equally with the whole. I. In Maryland, if the estate of an intestate in fee simple or fee tail general, come to him on the part of the father, it descends to the children of the in- testate and their descendants equally ; if no child or descendant, then to the father ;* if no father, then to the brothers and sisters of the blood of the father, and their descendants ; if no brother nor sister, nor descendant of them, then to the grandfather; and in default of him, to his descendants in equal degree, equally, and so passing lo the next lineal 7nale paternal ancestor ; and if none such, to his descendants in equal degree, equally, without end. If there be no paternal ancestor, nor descendant from such ancestor, then to the mother of the intestate ; if no mother, then to her descendants in equal de- gree, equally ; if no mother, and no descendants from her, then to the maternal ancestors and their descendants, in the same manner as to the paternal ances- tors and their descendants. II. If the estate descended on the part of the mother, it is subjected to the same rules as when it descended on the part of the father, vmtatia mutandis, the paternal line being excluded until the maternal line is exhausted. • This appears to be a strange inconsistency ; unless "on the part of the fa- ther," means " by," "from," or •• through" him. 7 Crunch, 456. CHAP. VI.] OF DISTRIBUTION. 370 ought to interpose no farther {^). Thus the grantee was enti- tled not only to administer, but also exrlusi\ ely to enjoy the ('>) 2 Bl.Com. 515. Edwards v. Freeman, 2 P. Wms. 441. Hughes v. Hughes, 1 Lev. 233. S. C. Cart. 125. ■ ■ — 7 ni. If the estate be vested in the intestate, in any other manner than above- mentioned, and he leave no issue, it descends to his brothers and sisters of the whole blood, and their descendants in equal degree, equally: if no brother nor sister, nor their descendants of ihe whole blood, then to the brothers and sisters of the half-hlood, and their descendants in equal degree, equally. In default of these, to the father; if no father, then to ihe mother; if no mother, then to the grandfather on the part of the fiither, if no such grandfather living, then to his descendants in equal degree, equally. If no such grandfather, nor descendant from him, then to the grandfather on the part of the mother; if no such grandfather, then to his descendants in' equal degree, equally, and so on without end, alternating the next male pater- nal ancestor and his descendants, and the next male maternal ancestor and his descendants, and giving preference to the paternal ancestor and his descend- ants. IV. In default of issue and kindred, the estate goes to the husband or wife, as the case may be : if the husband or wife be dead, then to his or her kindred in the like course, as if such husband or wife had survived the intestate, and then had died, entitled to the estate bi/ pw^cha.ie. If the intestate has had more husbands or wives than one, and all shall die before such intestate, then the estate shall be equally divided among the kin- dred of the several husbands or wives, in equal degree. Any issue of the intestate, born after the intestate's death, may inherit as if born before the intestate's death. No representation is admitted among colla- terals, after brothers' and sisters' children. If there be children, the personal estate is distributed, one-third to the widow, and the residue to the children ; if there be no children, but a father or mother, brother or sister, or the child of a brother or sister, the widow lakes one-half, and the father the other; if there be no father, to the mother, in equal shares with the brothers and sisters, and their representatives ; if there be no mo' her, then to the brothers and sisters of the whole and half blood, and their repre- sentatives, per stirpes, indiscriminately; if no brothers nor sisters, then to the next of kin in equal degree; no representation being admitted among collate- rals, other than brothers and sisters, and no distinction made between the 7ohole and Aa//-blood. If there be no collaterals entitled, a grandfatlier may take ; if there be two grandfathers, they take alike ; and a grandmother, in case of the death of her husband, (the grandfather,) shall take as he might have done. Posthumous children take as if born before the intestate's decease. But no posthumous relation is considered as entitled to distribution in his own right. Antinuptial children are legitimated by the marriage of the parents, and acknowledgment of the father. 370 OF DISTRIBUTION. [bOOK III. residue of the intestate's effects {^). For the purpose, therefore, of aiding the imperfect jurisdiction of the ordinary, and of pre- («) Edwards v. Freeman, 2 P.Wms. 448. In VirgirSa and Kentucky, the real estate of an intestate descends to liis children, and their descendants, equally; if no children, nor their descendants, to the father ; if no father, then to the mother, brothers, and sisters, and the representatives of brothers and sisters; but if an infant die without issue, his real estate, coming from the father, shall not go to the mother, if there be living any brother or sister of such infant, or brother or sister of the father, or lineal descendant of either of them. And, vice versa, where an infant dies, leaving real estate which came on the part of ih, mother. If there be no mother, nor brother nor sister, nor their descendants, then the inheritance shall be divided into two moieties, one of which shall go to the paternal, and the other to the maternal kindred, in the following course: — 1. to the grandfather; 2- if there be no grandfather, then to the grandmother, uncles and aunts on the same side, and to their descendants ; 3. in default of these, then to the greatgrandfathers, or greatgrandfather if there be but one ; 4. in default of these, then to the greatgrandmothers, or greatgrandmother if there be but one, and the brothers and sisters of the grandfathers and grand- mothers, and their descendants ; thus, without end, passing to the nearest lineal male ancestors, and for want of them to the nearest female ancestors in the same degree, and to their descendants ; and if there be no such kindred on the one part, the -whole shall go to the other part. If there be no kindred on the one part nor on the other, the whole shall go to the wife or husband; and if the wife or husband be dead, it shall go to his or her kindred, in like course as if such wife or husband had survived the in= testate, and had died entitled to the estate. In cases where the inheritance is directed to pass to the ascending and col- lateral kindred of the intestate, if part of such collaterals be of the whole blood to the intestate, and the other part of the half-blood only, those of the half- blood shall inherit only half so much as those of the whole blood ; but if all be of the half-blood, they shall have whole portions, only giving to the ascend- ants double portions. Where the children of the intestate, or his mother, brothers or sisters, or bis grandmother, uncles or aimts, or any of his female lineal ancestors living, with the children of his deceased lineal ancestors, male and female, in the same degree, come mto partition ; they shall take per capita ,• and where a pari ot them being dead, and a part of them living, the issue of those dead have a right to partition ; such issue shall take per stirpes. But no right shall accrue to any person whatsoever, (other than the children of the intestate,) unless they are in being, and capable in law to take as heii-s, at the time ot the intestate's death Chap, vi.] of distribution. 370 venting any single hand from sweeping away the whole sur- plus (J), the stat. 22 & 23 Car. 2. c. 10. commonly called the (■3) Petit V. Smith, 1 P. Wms. 8. Bowers v. Littlewood, 594, Carteri;. Crawley, Raym. 496. 4 Burn. Eccl. L. 342, 343. Children, having received from the intestate an advancement in real estate, must bring it into hotchpot. In making title by descent, it shall be no bar to the demandant, that any ancestor, through whom he derives his descent, is or has been an alien. Bastards inherit from the mother, as if lawfully begotten ; and antinuptial children, if recognised by the father, and legitimated ; and the issue also of a marriage null in law are deemed legitimate. The surplusage of the personal estate is distributed, if there be no child, one-half to the widow ; if there be children, one-third. But she takes no more than the use for life of such slaves as shall he in her share. The residue, together with the slaves, after the wife's death, or, if there be no widow, the whole of the surplus, is to be distributed in the same proportions and to the same persons as lands are directed to be distributed to. Children advanced in personal estate must bring it into hotchpot. Cases not prorided for by the Act of Descents, are regulated by the common law. In North Carolina, the real estate of the intestate descends to his issue in equal degree, equally, and to the representatives of such issue. On failure of lineal descendants, if the estate has come on the part of an ancestor to whom the intestate would have been one of the heirs, the inherit- ance shall descend to the next collateral relations in equal degree of the blood of such ancestor, equally. If the estate have not come on the part of an ancestor, or if, being so trans- mltted, the blood of such ancestor is extinct, it shall descend to the next col- lateral relations of the persons last seised, whether of the paternal or maternal line, in equal degree, equally, the collaterals of the half-blood taking equally with those of the whole ; the degrees of relationship to be ascertained by the rules of the common law. If the intestate leave no issue, nor brother nor sister, nor the issue of such, the inheritance vests for life only in the parents of the intestate, or in the sur- viving one, if one be dead ; and on the death of one of the parents, in the sur- vivor, and afterwards is transmitted according to the preceding rules. If any of the children have been advanced by settlement upon them of lands in fee simple by the parent, such advancement must be brought into hotchpot. Illegitimate children, if there be none legitimate, takethe real and personal estate of the mother, as if born in wedlock : and if such illegitimate child die intestate, and without issue, his estate I'eal and personal passes to his brothers and sisters born of the same mother, and to their representatives, in like manner as if they were born in lawful wedlock. 370 OF DISTRIBUTION. [bOOK III. statute of distributions (e), was enacted. That statute, after empowering the ordinary, on the granting of administration, («) Made perpetual by 1 Jac. 2. c. 17- s. 5 Vid. Rex v. Raines, 1 Ld. Raym. 574. With regard to personal estate, the provisions of the stat. 22 & 23 Car 2. c. 10, and the stat. 1 Jac. 2. c 17, are in force, except that if there be no chil- dren, or not more than two, the widow takes a third; if there be more than two, she takes a child's portion. In South Carolina, if there be children, or issue of them, and a widow, she takes one-third of the estate real and personal, and the remainder is divided equally among the children, and their representatives. Lineal descendants represent their respective parents, and divide equally among ihem the share such parents would have been respectively entitled to, had they survived the ancestor. If there be no issue, but a widow and a father, or mother, the widow is enti- tled to a moiety, and the father, or if he be dead the mother, to the other moiety. If the father and mother be dead, and there be brothers and sisters, or brother or sister of the whole blood, or issue of them, the widow takes one moiety„and the brothers and sisters, &c the other moiety, as tenants in common The children of a deceased brother or sister take respectively the share which their respective ancestors would have been entitled to, had they survived the intes- tate. If there be no lineal descendants, father or mother, or brother or sister, of the whole blood, but a widow and a brother or sister of the half-h\oody and a child or children of a brother or sister of the whole blood, the widow takes a moiety of the estate, and the other moiety is divided equally among the bro- thers and sisters or brother or sister of the half-blood, and the child or children of brothers and sisters of the whole blood; the children of every deceased brother or sister of the whole blood taking among them a share equal to the share of the brother or sister of the half-blood : but if there be no brother nor sister of the half-blood, then a moiety to the child or children of deceased bi-o- ther or sister; and if there be no child of a deceased brother or sister, then the said moiety descends to the brothers and sisters of the half-blood. If there be no lineal descendant, father, mother, brother or sister of the whole blood, or their children, or brother or sister of the half-blood, the widow takes one moiety, and the lineal ancestor or ancestors the other moiety. In default of lineal ancestors, the widow takes two-thirds of the estate, and the remainder descends to the next of kin. If there be no widow nor lineal descendant, but a father or mother, and brc thers or sisters, (one or more,) the estate real or personal descends to the father (if he be dead, to the mother) and to the brothers and sisters living at the death of the intestate, equally to be divided among them. But the issue of any deceased brother or sister takes the share the parent would have taken if living, equally among them if more than one, and if only one, the whole to that one. CHAP. VI.] OP DISTRIBUTION. 370 to take a bond of the administi'ator, with two or more sureties, conditioned as 1 have already stated, farther authorizes him to If there be no widow, her share passes as the rest of the estate is directed t9 be distributed, in the several cases in which the widow is provided for. On the death of any married woman, the husband takes the same share of her real estate as is given to the widow out of the real estate of the husband; and the remainder is distributed among her descendants and relations, in the same manner as is directed in tlie case of the intestacy of a married woman. If she leave no husband, her estate is distributed as that of a man intestate, leaving- no wife. The personal estate is distributed as the real. — Children advanced, must bring- their advancement into hotchpot. And, it would seem, that the husband may elect his curtesy, and the wife her dower, but they cannot take such es- tates and a distributive share of the realty. — Degrees of kindred are computed according to the civil law. In Georgia, if there be a widow and children, they take equal shares, unless the widow elects her dower; in which case, she has nothing further of ihe real estate, but takes a child's part of the personalty. If any of the children die before the intestate, their lineal descendants stand in their place. If there be no children, or representatives of them, the widow takes a moiety, and the other moiety goes to the next of kin of the intestate in equal degree, and their representatives, equally. If no widow, the whole goes to the children and their representatives. In defjiult of these, to be distributed to the next of kin of the intestate, and their representatives in equal degree ; but no representation among collaterals is admitted beyond nephews and nieces. If there be a father or mother, such father (or mother in case the father be dead) inherits and takes in distribution as a brother or sister would do. But if the mother have intermarried, the share otherwise allotted to her passes to the next of kin on the father's side : and in case of the death of the last child in- testate and without issue, the mother takes no part of such child's estate, but it passes to the next of kin on the father's side. If a person die intestate and without issue, having brothers and sisters of the whole blood and the half-blood, then the brothers and sisters of the whole blood and the half blood in the paternal line only inherit equally ; but if there be no brother nor sister, nor issue of brother or sister of the whole blood or half-blood in the paternal line, then those of the half-blood and their issue in the maternal line may inherit. The next of kin are investigated by the following rules ; children shall be nearest parents ; brothers and sis'ers shall be equal in respect to distributions, and cousins shall be next to them; the half blood shall be admitted to a dis- tributi»'e share of the real and personal estate, In common with the full blood. Sed vide the clause next above. 370 OF DISTRIBUTION. [boOK III. proceed, and call such administrator to account touching the ffoods of the intestate : and on hearing, and on due considera- The whole estate, real and personal, is vested by marriage absolutely in the husband, and in case he dies intestate, passes to his representatives. No distinction is made in the distribution of real and personal estate, unless in the case of a widow electing' dower. In Alabama and Mississippi, the lands, &c. of the intestate are distributed to the children and their descendants in equal parts, the issue of deceased child or grandchild take the share of the deceased parent, in equal parts among them : if there be no children nor their descendants, then to '.he brothers and sisters of the intestate and their descendants, in equal parts, the descendants of a brother or sister taking in equal parts among them the deceased parent's ihare. In default of these, then to the father, if he be living, if not, to the mother of the intestate. In default of all the foregoing relations, then to the next of kin in equal degree, computing by the civil law : no representation be- ing admitted among collaterals, further than nephews and nieces of the intes. tate, and no distinction being made betv;een kindred of the whole and half- blood, except that the kindred of the whole blood m equal degree are prefer- red to the kindred of the half-blood in the same degree. The widow's right of dower is preserved in all cases, and where there is no issue of the intestate, ahe takes as her doiver one half of the estate of her deceased husband. The personal estate is distributed as real. Antinuptial children are legitimated by marriage of the parents. In Louisiana, legitimate children inherit equally, and the issue of such as are de^d take/>er stirpes: if there be no children or lineal descendants, the estate passes to the father and mother, or other ascendants of the deceased, and is divided, if there be paternal and maternal descendants in the same degree, into two. equal shares, one to the paternal, and the other to the maternal side. If there is only one ascendant, either paternal or maternal, in the same degree in both lines, such ascendant excludes all other ascendants of a more remote de- gree ; no representation being admitted in the ascending line. Collaterals inherit when the intestate has left neither descendants nor as- cendants ; those of the nearest degree of the whole blood having preference. Where there are brothers or sisters of the whole blood, the inheritance is by roots; but the right of representation does not extend to the grandchildren of other brothers or sisters, in competition with brothers and sisters of the de- ceased. These principles apply to inheritance by brothers and sisters of the half-blood ; and grandchildren of collaterals of the whole blood do not exclude collaterals of the half-blood. If there be no brothers nor sisters of the whole blood, but there be both pa- ternal and maternal brothers or sisters, these and their children, by representa- tion, prevail over all other collateral kindred. But the paternal and maternal collaterals, and their children, inherit, />flrrt- ciilarly, that part of the property which has been acquired on the part of the GHAP. VI.] OF DISTRIBUTION. 370 tion thereof, to make equal and just distribution of what re- mains clear after all debts, funeral, and just expenses of every father and mother, respectively, of the deceased, and hold in common such part as was acquired by art or industry, constituting' what is termed the ac- quests and gains ; that is, property acquired by husband and wife, by mutual industry, not falling by inheritance, nor acquired by donation. Among other collaterals, those of the nearest degree exclude all others, and those of equal degree partake equally. If the intestate leave neither lawful descendants nor ascendants, nor collate- teral relations, 1. The surviving husband ov loife, or, 2. Their natural children, or 3 The State, acquire the succession in the order here mentioned. Natural children succeed to their mother, being duly acknowledged by her, and she having left no lawful descendants, to the exclusion of her father and mother, and other ascendants or collaterals of lawful kindred, and of her hus- band; if the mother have legitimate issue, her natural children have only a moderate alimony, and this alimony, though it should have been made inter vives, or mortis causa, cannot exceed one fifth of her property. Natural children are called to the inheritance of their father, being duly ac- knowledged by him, when he has left no descendants nor ascendants, nor col- lateral relations, nor surviving wife. Antinuptial children, acknowledged by the parents, either before marriage or by the contract of marriage, are legitimated: and legitimation may be ex- tended to deceased children, leaving issue, in which case it benefits such issue. The estate of a natural child, dying intestate and without issue, goes to the father or mother who has acknowledged him, or by halves to the father and mother when both have acknowledged him. If the father and mother be dead, his estate passes to his natural brothers or sisters, or to their descendants. If a husband, having no lawful descendants, ascendants, nor collateral ela- tions, leaves a wife not separated d mensa & thoro, the wife takes his estate, to the exclusion of natural children duly acknowledged. The degrees of consanguinity are determined by the civil law. The distribution of the real and personal estate is subject, generally, to the same rules. But to understand the distribution of estates, a few remarks are necessary, upon the relations in regard to property produced by marriage. By marriage, a partnership, or community of gains, is established. This consists of the profits of all the effects, of which the husband has the adminis- tration and enjoyment; of the produce of the mutual labour and industry of husband and wife ; and of the estates they may acquire, during marriage, by donation or by purchase, or in any olhtr similar way. On the dissolution of the marriage, all property possessed by husband and wife is presumed by law to appertain to the partnership, and it lies on the party having the interest to show separate title. The property of the community may be disposed of by the husband in any Yy 370 OF DISTRIBUTION. [BOOK III. sort first allowed and deducted, among tlie wife and children, or children's children, if any such be, or otherwise to the next manner during his life, the wife or her heir acquiring no interest in it until his death: but, on the dissolution of the marriage, it is divided equally between the husband and wife, or their heirs. This estate is liable to the debts of the partnership ; but the wife may discharge herself from liability, by renouncing the community. The property of the wife is dotal or paraphernal. By dotal, is meant the effects which the wife brings to the husband to sup. port the expenses of marriage, and which are settled on her by marriage. The husband has the administration of the dowry; but the wife has a tacit mort- gage on all his estate, into whatever hands it may pass, for a restitution of it By paraphernal property, is meant all the effects of the wife, which have not been settled on her as dowry- In the distribution of estates, therefore, the proper or hereditary effects of the husband, and or. -half the property of the community, are allotted to the husband, or his heirs; the other half of the partnership property, together with the dowry and paraphernal estate, to the wife or her heirs. In Missouri, the real and personal estate goes to the children or theii- descendants ; if none, to the father, mother, brothers and sisters, and their descendants, or such of them as there be, in equal parts. In default of these, then grandfather, grandmother, uncles and aunts, and their descendants, or such of them as there be, in equal parts. In default of these, then to greatgrandfathers, greatgrandmothers, their bro- thers and sisters, and their descendants, or such of them as there be, in equal parts; and so passing to the nearest lineal ancestors, and their children, and their descendants, or such of them as there be, in equal parts. In default of all these, then the whole goes to the wife or Imsband of the intestate; and " if the wife or husband be dead, then to his or her kindred, in like course as if such husband or wife had survived the intestate, and then died entitled to the estate." Posthumous children inherit as if born in the lifetime of the intestate; but no right of inheritance accrues to any person whatever, other than the children of the intestate, unless in being, and capable to take in law as heir, at the time of the intestate's death. In cases where the inheritance passes to the ascending and collateral kins- men of the intestate, if part of such collaterals be of the whole blood, and part of the half-blood only, those of the halfrblood inherit only half as much as those of the whole blood ; but if all the collaterals be of the hall-blood, they sliall have whole portions, only giving to the ascendants, if any there be, double portions. Where several lineal descendants, and all of equal degree of consanguinity to the intestate, however remote, or his or her father, mother, brothers or sis- ters, or his or her grandfather, grandmother, uncles and aunts, or any ancestor CHAP. VI.] OF DISTRIBUTION. 370 of kindred to the deceased, in equal degree, or le2:;ally repre- senting their stocks, pro suo cuiquejurei according to the laws living, and their children, come into partition, they shall take per capita; and the issue of such as are dead, havinj^ right to partition, shall take per stirpes. Children advanced, by gift of real or personal estate, must bring their ad- Tancement into hotchpot. In making title by descent, it is no bar to the demandant, that he claims as an alien. Bastards may inherit, and transmit inheritance, on the part of the mother. Antinuptial children are legitimated by marriage ; and the issue of all mar- riages deemed null in law, or annulled by divorce, are also legitimated. The widow in all cases is entitled to do-wer in the real and personal estate. In Tennessee, the estate of the intestate descends to the children equally, and their descendants ; such descendants taking their parents' share equally among them. If there be no issue, then to the brothers and sisters of the intestate, equally, ss tenants in common, and to their descendants : and if any such brother or sister die before the intestate, leaving children, they take the share of the de- ceased parent, equally, as tenants in common. And the same rule of descent is to apply, where collateral descendants shall be further removed than the children of brothers and sisters. If the estate descends from an ancestor, the half blood cannot take until the blood of such ancestor be exliausted ; if it come by purchase, the half-blood inherit as the whole. Where the intestate leaves no cliildren, nor their issue, nor brother nor sis- ter, nor their issue, the estate vests in fee simple in the parent from whom it was derived. If the estate have been acquired otherwise than by descent, it shall vest in the father in fee ; if he be dead, then in the mother for life ; after the death of the mother, then in the heirs of the intestate on the part of the father, and if none such, then on the part of the inother, forever. Cases not embraced by the statute are governed by the common law. Bastards, in case there are no legitimate children, inherit from the mother, as if legitimately begotten; and incase of death of sucn bastard without issue, his brothers or sisters take his estate. Bastards may be legitimated, for the purpose of inheriting, on petition of the i)arent to the superior or county Court. Aliens are excluded from the inheritance, generally ; but special provisions have been made, from time to time, for relief of aliens related to intestates. The personal estate is distributed, if there be no children, or not more than two children, one third part to the widow; if more than two children, she takes a child's part: the residue, or, if there be no widow, the whole, to the children, or their representatives ; such representatives taking per stirpes- If there be no legal representatives, then to the next of kin in equal degree, and thei;* representatives. No representation is admitted among collaterals, after brO" 370 OF DISTRIBUTION. [bOOK III. in such cases, and the rules and limitation thereafter set down ; and the same distributions to decree and settle, and to compel thers' and sisters' children. If there be only n£phews and nieces of the intes- tate, and their issue, they will take, not by representation of their uncles and aunts, but as next of kin to the intestate. If any of the children be advanced by the intestate, such advancement must be brought into hotchpot. The widow is entitled to dower. In Illinois, the estates real and personal of resident and non-resident propri- etors are distributed among the children, and descendants of a deceased child, ill equal parts. The descendants of a deceased child, or grandchild, take the share of their deceased parent, in equal parts among them. Where there is no issue, then in equal parts to the next of kin in equal de- gree ; and among collaterals, the children of a deceased brother or sister take in equal parts among them their deceased parent's share. There is in no case a distinction between the kindred of the whole and of the half-blood. The widow is entitled to one-third of the real estate for life, and one-third of the personal. estate absolutely- In Indiana, real estate, on intestacy, descends to the children, equally; if no children, nor descendants, to the Either; if no father, to the mother, brothers and sisters, in equal parts; if no f;ii.her, mother, brothers, nor sisters, the estate is divided into moieties, one-half going to the paternal, and the other to the maternal kindred. But the widow of an intestate, having' no issue, and no father, mother, bro- thers nor sisters, is entitled to all his personal, and half his real estate ; and, for want of paternal or maternal kindred, the whole estate goes to the wife. If there be no wife, the estate is to be applied to the support of free schools in the county in which such property is situated. In dividing the estate among heirs, all property received by any of them previously, by way of advancement, shall be taken into view, if such person claim a right of inheritance. Illegitimate children inherit from the mother, as though they were legitimate. Antintiptial children are legitimated by marriage of the parents. The right of the half-blood depends on the common law. The per-sonal estate is distributed among the children equally, and their representatives; if no children, nor representatives of children, one moiety to the wife, and the remainder to the next of kin in equal degree, and to their representatives. No representatives are admitted among collaterals, after brothers' and sisters' children. The wife is entitled to dower. In Ohio, if the real estate come to the intestate by descent, devise, or gift, from an ancestor, it descends in parcenary, in the following manner : 1. to the children of the intestate, or their legal representatives; 2. to his brothers and CHAP. VI.] OF DISTRIBUTION. 370 sucli administrator to observe and pay the same by tlie due course of tlie ecclesiastical laws. The statute then proceeds to pre- scribe the distribution of such surplusage in manner following; [sri] that is to say, one tliird part thereof to the wife of the in- testate, and all the residue by equal portions among his chil- dren, and such persons as legally represent sucli children, in case any of them be then dead, other than such child or chil- dren, not being heir at law, as shall have any estate by the set- tlement from the intestate, or shall be advanced by him in his lifetime by portion, equal to the share which shall by such dis- tribution be allotted to the other children, to whom such distri- bution is to he made ; and in case any child, other than the heir at law, wljo shall have any estate by settlement from the intestate, or shall be advanced by him in his lifetime by por- tion, not equal to the share which will be due to the other chil- dren by the distribution, then so much of the surplusage shall be distributed to such child as shall have any land by settle- ment from the intestate, or was advanced in the lifetime of the sisters of the blood of the ancestor, whether of the whole or half-blood to the intestate ; 3. to the ancestor, if living ; 4. to the brothers and sisters of the ancestor, or their representatives ; 5. to the brothers and sisters of the half- blood, not of the ancestor, or their representatives ; 6. to the next of kin to the intestate, of the blood of the ancestor. If the estate came to the intestate by purchase, it descends, 1. to his chil- dren, and their representatives ; 2. to his brothers and sisters of the whole blood, and their representatives ; 3. to the brothers and sisters of the half- blood, and their representatives ; 4. to the father; 5. to the mother; 6. to the next of kin to, and of the blood of, the intestate. One of the several heirs in the same degree being deceased, his representa- tives take his share; and if all the heirs are in the same degree, they take ■per capita; if not, per stirpes. Inheritance may be derived through an alien, or a bastard, by way of the mother. Antinuptial children are legitimated by the marriage of the parents. Of the personal estate, the widow is allowed a suitable proportion, at the discretion of tlie appraisers, for her support for one year. If there be legitimate children, and the personal estate, after the above al- lowance, and payment of the debts, is over ^400, the widow has one-third as her own property ; if under §400, she has one-half: if there be no legitimate children, she takes all the remaining personal property as her own. In other respects, distribution of personalty is according to the law of de- scents of real estate. 371 OF DISTRIBUTION. [bOOK III- intestate, as shall make the estate of all the children to I.e qua!, as near as can be estimated ; but the heir at law, notwithstand- ing any land that he sliall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of such land. It then directs, that in case there be no children, nor any le- gal representatives of them, one moiety of the estate shall be allotted to the wife of the intestate, and the residue of the same shall be distributed equally among every of his next of kindred who are in equal degree, and those who legally represent them. [372] It also provides, that no representations shall be ad- mitted among collaterals after brothers' and sisters' children ; and in case there be no wife, then that all the estate shall be distributed equally among the children; and in case there be no child, then among the next in kindred to the intestate, in equal degree, and their legal representatives as aforesaid, and in no other manner. And it farther directs, for the benefit of creditors, that no such distribution of the goods of an intestate shall be made, till after the expiration of one year from his death 5 and that every one to whom any distribution and share shall be allotted, shall give bond, with sufficient sureties, in the spiritual court, that if any debt, truly owing by the intestate, shall afterwards be sued for and recovered, or otherwise duly made to appear, that then, and in every such case he shall refund, and pay back to the ad- ministrator, his rateable part of that debt and of the costs of suit, and charges of the administrator by reason of such debt, out of the part and share so allotted to him, thereby to enable the administrator to pay and satisfy the debt so discovered after the distribution made. The statute also contains a proviso, that in all cases where the ordinary hath used heretofore to grant administration cum testamento annexo, he shall continue so to do ; and the will of I he deceased in such testament expressed, shall be performed and observed in such manner as before the passing of the act. [373] It also expressly excepts and reserves the customs of the city of London, of the province of York, and of other places having peculiar customs of distributing an intestate's effects. CHAP. VI.] OF DISTRIBUTION. 373 Doubts having arisen, whetlier the husband's right to admi- nistrafion to his wife was not superseded by force of this sta- tute, and whetlier he was not thereby bound to distribute her personal estate among her next of kin C"); by the stat. 29 Car. 2. c. 3. s. 25. it is provided, that the above act shall not extend to estates of feme coverts who die intestate, but that the hus- band may demand and have administration of their rights, cre- dits, and otiicr personal estates, and recover and enjoy the same as before. And although he die witliout having taken out let- ters of administration to his deceased wife, her next of kin, on taking out such administration, will be a trustee for the hus- band's personal representative ; for the operation of this clause in the statute of frauds is not confined to the life of the hus- band, nor to the circumstance of his having reduced any part of his wife's personal estate into possession, but provides that no part of her estate shall be distributable among her relations af- ter her death (&). On the construction of the statute of distributions, a variety of points have been resolved. After the allotment of the third to the widow, the statute, as we have seen, directs a distribution of the residue by equal portions among the intestate's children, and such persons as le- gally represent such children, in case any of them be dead, that is, their lineal descendants to the remotest degree C*). To attain a clear apprehension of the subject, thiee sorts of [374] cases may be supposed : First, where none of the intes- tate's children are dead. Secondly, where the intestate's chil- dren are all dead, all of them having left children. Thirdly, where some of the intestate's children are living, and some dead, and such as are dead have each of them left children. On the first hypothesis, that is to say, where none of the in- testate's children are dead ; it is sufiiciently obvious, that after the wife has had her third allotted to her, tlie remaining two- thirds shall, pursuant to tiie statute, be equally divided among all the children of the intestate, as in this case they all claim (f) Vid. supr. 85. (h) vid. 4 Burn. Eccl. L. 358. Com. (6) Squib V. Wyn, 1 P.Wms. 381. ^^S- Admon. H. Carter v. Crawley, Kaym. 500. Peti's Case, 1 P. Wms. 27. $74 OF DISTRIBUTION. [bOOK III. in their own right. A brother or sister of the half-blood shall be equally entitled to a share with one of the whole blood, in- asmuch as tliey are both equally near of kin to the intestate ('). Nor shall their being posthumous in either case make any dif- ference (''). For a child en ventre sa mere at the time of the fa- ther's death, being a person in rerum natura, is by the j ules of the common and civil law, to all intents and purposes, a ciiiid, as much as if born in the father's lifetime, and, consequently, is entitled under the statute (i). If the intestate leave oidy one child, such case is not to be considered as omitted by die sta- tute; therefore, in case he also leave a wife, she shall have only a third part, and the other two-thirds shall go to such child ("'). So, where there is only one to claim under the statute, and therefore, literally and strictly speaking, there can be no dis- tribution, yet such individual shall be entitled to theproperty ("). [375] In regard to the second supposition, if A have thi-ee children, B, C, and D, and they all die, B leaving, for instance, two children, C three, and D four, and A afterwards die intes- tate,* in that case all his grand-children shall have an equal share ; for as his children are all dead, tlieir children shall take as next of kin. Such also would be the case with respect to the great grand-children of the intestate, if both his children and grand-children had all died befoi'e him (°). In all the above instances, the parties are said to take per capita, or, in other words, equal shares in their ow^n right (p). (i) 3 Bac. Abr. 74. Com. Dig. Ad- (">) 3 Bac. Abr, 75. Brown v. Farn- men. H. Smith v. Tracy, 1 Mod. 209. dell, Carth. 52. Skin. 212. pi. 5. 219 S. C. 2 Mod. 204. 2 Jones, 93. S. C. pi. 3. 1 Ventr. 316. S. C. 2 Lev. 173. Show. („) 4 gurn. Eccl. L. 343. 3 P. Wms. Pari. Ca. 108. Earl of Winchelsea v. 49^ ^gte ('t). Palmer v. Garrard, Prec. NorclifFe, 1 Vern. 457. Crooke v. jjj qJj 21. (°) 3 Bac. Abr. 75. 1 Eq. Ca. Abr. 249. pi. 7. Walsh V. Walsli, Prec. Chan. 54. (k) Burnet TJ. Man, 1 Ves. 156. 4 Burn. „ . .„, , , « -..^ ^r.,- ^ ■' Bowers r. Littlewood, 1 P. Wms. 595. Watt, 2 Vern. 124. Brown v. Farn dell, Carth. 51. Eccl. L 344. Ball v. Smith, 2 Freem. 230. Edwards v. Freeman, 2 P. Wms. 446. (1) Wallis V. Hodgson, 2 Atk. 117. See also Thellusson n. Woodford, 11 Ves. |u„. J39. (P) 2 Bl. Com. 218. 517. Davers *. Dewes, 3 P. Wms. 50. Lloyd V, Tench, 2 Vez. 213. Durant v. Prestwood, 1 Atk. 454. Janson v- Bury, Bunb. 159. 2 Bl. Com. 517. CHAP. VI.] OF DISTRIBUTION. 375 Thirdly, in tlie event of some of the intestate's children being living, and some dead, and such as are dead having each left children ; the grand-children take per stirpes^ that is to say, not in their own right, but by representation ('i). Thus, for example, if A have three sons, B, C, and D, and B die, leaving four children, and C die, leaving two : on A's dying intestate, one third shall be allotted to D, one third to B's four children, and the remaining tiiird to C's two children ; for these grand- children are entitled as representing their respective parejits (O. After directing the residue to be divided among the children, [376] or their representatives, as above stated, the statute pro- vides, that no child of the intestate, except his heir at law, on whom he settled in his lifetime any estate in lands, or pecuniary- portion, equal to the distributive shares of the other children, shall participate with them of the surplus ; but if the estate so given him by way of advancement be not equivalent to their shares, then that such part of the surplus as will make it so, shall be allotted to him. The statute does not divest the child of any property which has thus been given to him, however unequal it may have been, or how much soever it may exceed the residue: he may, if he pleases, keep it all : if he be not coiitented, but would have more, then he must bring what he has before received, as the law ex- presses it, into hotchpot, that is, into the general mass of the property to be so divided. This is the clear intention of the act, grounded on that prin- ciple of equality («), to which a court of equity is ever inclined. Therefore, before a younger child has any claim to a share of the distribution, he must first bring his advancement into hotchpot. The provision in the statute applies only to the case of actual intestacy ; and where there is an executor, and consequently a complete will, though the executor may be declared a trustee for the next of kin, they take as if the residue had been actually (1) 2 Bl. Com 217. (*) Edwards v. Freeman, 2 P. Wmg. (0 3 Bac. Abr. 75. 1 Eq. Ca. Abr. 249. 443.449 4 tJurn. Eccl. L. 344. 2 Bl. Walsh V Walsh, Prec. Clian. 54. 2 Com. 190. 517. Bl. Com. 517. Z z 376 OF ADVANCEMENT. [bOOK 111. given to them. Therefore a child advanced by her father in his life, cannot be called on to bring her share into hotchpot (*), What shall constitute such advancement, is now to be dis- cussed. If a father purchase for a son an advowson, or any other [377] ecclesiastical benefice, or, if he buy him any office, civil or military, these are held to be such advancements, either par- tial or complete, according to the comparative value of the es- tate to be distributed ("). And although the office be only at will, as a gentleman pensioner's place, or a commission in the army, it is regarded in the same light (*). A provision made for a child by a settlement, either volun- tary, or for a good consideration, as that of marriage, is an ad- vancement 2n*o tanto (''). Nor does the statute extend only to land itself (>), when set- tled on a younger child by the father, but also to a charge on the land, created by him for the benefit of such child; therefore, if a father settle a rent out of his lands on a younger child, this also is such an advancement as is intended by the statute (z)-. Nor is it necessary that tlie provision should take place in the fatlier's lifetime {''). If by deed he settle an annuity, to com- mence after his deatli, on such child, it is of the same descrip- tion (•*). So a reversion settled on a child, as it is capable of being valued, is of the same nature («=). A portion secured to a child, although in Juturo, is also an advancement (^). And [378] were it only contingent, yet when the contingency has happened, it shall be thus considered («). A portion for a daughter, to be raised out of land, on her attaining the age of eighteen, or the day of her marriage, was accordingly held to be an advancement to her when she married, (t) Per Mas. of the Rolls, Walton v. (^) Edwards v. Freeman, 2 P. Wms. Walton, 14 Ves.jun. 324. 441. (») 3 P. Wms. 317. note ("). Sed vid. . {^) Ibid. 2 P. Wms. 440. 445. Swinb. p. 3. s. 18. (b) Ibid. 2 P. Wms. 442. Swinb. p. 5, (w) 3 I*. Wms. 317. note (°). s. 4. (") Edwards v. Freeman, 2 P. Wms. (^) Ibid. 2 P. Wms. 442. 440. 444. Phiney v. Pliiney, 2 ^'ern. (•>) Edwards v. Freeman, 2 P. Wms. 638. 445. (y) 11 Vin. Abr. 192. 2 P. Wms. 441. (^ Ibid. 2 P. Wms. 442. 446. 449- CHAP. VI.] OF ADVANCEMENT. 378 although she were under that age, and unmarried, at the time of the intestate's death (f). A portion, also, while contingent, is capable of a valuation, and may, it seems, be brouglit into hotchpot (c) ; or the court may order, that, in case the contingency should happen, the portion shall be so distributed as to make the rest of the chil- dren equal with the child on whom it was settled (•>). But the contingency must be so limited as necessarily to arise within a reasonable time, as in the above case, where the portion was secured for the daughter, on her attaining the age of eighteen, or on her marriage ('). A child advanced in part shall bring in his advancement only among the other children ; for no be- nefit shall accrue from it to the widow {^). If a child who has received any advancement from his father, shall die in his father's lifetime, leaving children, such children shall not be admitted to their father's distributive share, unless they bring in his advancement; since, as his representatives, they can have no better claim than he would have had if living ('). By this statute, although the heir at law shall not abate in respect of the land which came to him by descent, or otherwise, from the intestate; yet if he hath had an advancement from his father in his lifetime out of the personal estate, he shall abate for it in the same manner as the other children («). And, \vere it merely the use of furniture for his life, it shall be regarded as an advancement pro tanto ("). So, where A on his marriage covenanted, in case of a second marriage, to pay his eldest son by his first wife five hur.dred pounds; she died, leavi))g a son, and other children, and A after a second marriage died intes- tate; it was decreed, that his heir should bring in the money, although he were in the nature of a purchaser, under a marriage settlement («). Co-heiresses shall also, it seems, bring in such advancement, (f) 2P.\Vms. 435. 1 Eq.Ca. Abr. 249. CO 3 Bac. Abr. 77. Ward v. Lant, pi. 10. 2 Eq. Ca. Abr. 446. pi. 3. Free. Chan. 182. 184. (E) Per Sir Jos. Jekyl, M. R. arguendo. (') Proud v Turner, 2 P. Wms. 560. 2 P. Wms. 442. ("") Com. Dig. Admon. H. 4 Burn. (h) Per Ld. Raymond, C. J. arguendo, Eccl. L. 344. Fitzg. 285. 2 P. Wms. 446. (")Com. Dig. Admon. H. Fitzg. 285, (■) 2 P. W;ns. 440.445. 449. (°) Phiney v. Phiney, 2 Vern. 638, 379 OF ADVANCEMENT. [bOOK III. not being land, as they may have respectively received from their father, before they shall be entitled to their distributive shai-es, agreeably to tlie principle of the act, and to the object of a just and impartial father to promote an equality among his children (p). [380] Such is the nature of the advancement which will ex- clude a child from any part of the residue. Many benefits, however, may be conferred upon him by his father, which have been held not to be of this description. Small inconsiderable sums of money given to a child by the father, or mere trivial presents he may make to the child, as of a gold watch or wedding clothes, shall not be deemed an advancement (T) ; nor shall money expended by the father for his maintenance, nor given to bind him an apprentice, nor laid out in his education at school, at the university, or on his tra- vels (i). Nor shall what a child receives out of the mother's estate be so regarded ; for the statute of distributions was grounded on the custom of London, which never affected a widow's personal estate, and seems to include those only within the clause of hotchpot, who are capable of having a wife as well as cliildi-en, which must be husbands ('). Nor shall a pro- vision which a father may make for his child by will, (for a case may occur where a testator may die intestate as to part of his personal estate,) be considered in that light. Nor land given by the father's will to a younger child {}). Such a provision as shall be construed an advancement, must result from a complete act of the intestate in his lifetime("), by which he divested himself of all property in the subject, though, as wc have just seen ('^), it may not take effect in possession [381] till after his death. Still less shall property given or bequeathed to the child by any other person be so denominat- ed(^) : and least of all, sliall a fortune of his own acquisition(y). (p) 4 Burn. Eccl. L. 344. Edwards v. ' (») Holt v. Frederick, 2 P. Wnis 356. Freeman, 2 P.Wms. 440.443. (t) Edwards v. Freeman, 2 P. Wms. (4) 3 P. Wms. 317, note (^). Elliot v. 449. 445. Collier, 1 Vez. 16. Garon v. Trlppit, ^ P. Wms. 440. Ambl. 189. Elliot v. Collier, 3 Atk. -28. 0') Vid. supr. 377. (O S nac. Abr. 76. Swinb. p. 3. s. 18. (") 3 Bac. Abr. 76. Swinb, p. 3. s. 18. Edwards t). Freeman, 2 P. Wms. 449. (>) Swinb. p. 3. s. 18. CHAP. VI.] OF ADVANCEMENT. 381 In respect to borough english lands, which descend to the youngest son, it has been held that he should allow for thendf on the ground, that the statute intended merely to provide for the heir of the family, tiiat is the heir by the common law, and not one who is heir only by custom in some particular places ('). But that decision has been over-ruled, and it is now settled, that such youngest son shall have an equal share of the distri- bution with the other children, without regard to this species of estate : for although the exception in the statute extend only to the eldest son, yet no law exists to oblige the heir in borough english to bring in his lands. The statute contains no such requisition. It speaks merely of such estate as a child hath by settlement, or by advancement of the intestate in his life- time (»). [2] Thus must the surplus be distributed, in case the intestate has left a wife and children, or representative of children. The statute then provides, thjit if there be no children, nor [382] legal representatives of them, in existence, a moiety shall go to the widow, and a moiety to the next of kindred, in equal degree, and their representatives; but no representation among collaterals shall be admitted farther than brothers' and sisters* children. If there be no widow, the whole shall go to the chil- dren. If there be neither widow nor children, then the whole shall be distributed among the next of kin, in equal degree, and their representatives, as above-mentioned. The next of kin referred to by the statute are to be traced by the same rules of consanguinity as those who are entitled to letters of administration (t). Those rules have been already discussed («). (^) Per Sir Jos. Jekyl, M. R. Stra. 935. (^) 2 Bl. Com. 515. Lloyd v. Tench, (3) Per Lord Talbot, C. Lutwyche v. 2 Vez. 214. Lutwyche, Ca. Temp. Talb. 276. 4 (c) yid supr. 8'. Burn Eccl. L. 345. [2] In Vermont, any deed of lands or tenements, made for love and affection ; or any personal estate delivered to a child, charged in writing, by the intestate, or his order, or a memorandum made thereof, or delivered expressly for that purpose, before two witnesses who were requested to take notice thereof, shall be deemed an advancement. 383 Oy ADVANCEMENT. [bOOK III. The mother, thea-efore, as well as the father, succeeded to all the personal eflfects of the children who died intestate with- out wife or issue, in exclusion of the other sons and daughters, the brothers and sisters of the deceased ; and such is the law still with respect to the father (*) ; but by the stat. 1 Jac. 2. c. 17. s. 7, if, after the death of the father, and in the lifetime of the mother, any of the children die intestate, without wife or chil- dren, every brother and sister, and their repiesentatives, shall have an equal share with her. The principle of which provision is this, that otherwise the mother might marry, and transfer all to another husband («). [383] On this last-mentioned statute it has been held, that if A die intestate, and without issue, leaving a Wife, and several brothers and sisters, and his mother living, the mother shall have no more than an equal share of a moiety of the estate with the brothers and sisters. And although there should be no brother or sister, yet if there be children of a deceased brother or sister, they sliall partake with their grandmother to the same extent as their parent would have been entitled (f). But if there be neither brother nor sister, nor representative of a brother or sister, the case is without the statute, and the whole of such intestate's effects shall devolve, as before, to his mo- ther (s). Also, by analogy to the statute of distributions, such representation shall not be carried beyond brotliers* and sis- ters' children (''). A mother-in-law of the intestate, it is clear, can claim no share in the distribution, she not being of his blood ('). To return now to the statute of distributions. That clause of it which expresses that there shall be no representations among collaterals beyond brothers' and sisters' children, must be construed to mean brothers and sisters of the intestate, and not as admitting representation, when the distribution happens (1) 2 Bl. Com. 515,516. Evelyn v. -344. S.C. 1 Stra. 710. S.C. Gilb.Rep. Evelyn, Ambl. 192. 189. Stanley v. Stanley, 1 Atk. 455. (=) Blackboroiigh ■«. Davies, 1 Salk. (e) 4 Burn.Eccl.L. 374. 11 Vin. Abr. 251. pi. 2. S. C. 1 P. VVms. 48, 49. 196. S.C. Lord Raym. 684. Blackborough ('■) Stanley t-. Stanley, 1 Atk. 457, 458. V. Davis, Com. Rep. 26. pi. 95. (') Duke of Rutland v. Duchess of (f) Keylway v. Keylway, 2 P. Wms. Rutland, 2 P. Wms. 216, CHAP. VI.] OF DISTRIBUTION. 383 to fall among brothers and sisters who are remotely related to the intestate ; for the intestate is the subject of the act : it is his estate, his wife, his children, and for the same reason, his bro- thers' and sisters' children, for he is equally correlative to all (k). [384] Therefore it has been held, that if the brother of an in- testate hath a grandson, and a sister has a son, or daughter, the grandson shall not have distribution with the son, or daugh- ter of the sister (i). So it has been decreed, that if an intes- tate leave an uncle, and a deceased aunt's son, the latter shall have no distributive share ('"). Thus though as we have seen («), among lineals representatives ad infinitum shall share in the distribution of an intestate's personal estate, yet among colla- terals, except only in the instance of the intestate's brothers' and sisters' children, proximity of blood shall alone give a ti- tle to it. The children of an intestate's brothers and sisters, who were deceased at his death, shall take per capita. Therefore, if an intestate leave a deceased brother's only son, and ten children of a deceased half-sister, the ten children of the deceased half- sister shall take ten parts in eleven with the son of the deceas- ed brother (°). The words of the statute must be taken together. The ex- pression pro suo cuiquejure will let in any advantage of equa- lity or preference which a person was entitled to by our law^ before the statute. Therefore a grandfather, although he be in an equal degree of consanguinity with the brother of the de- ceased, shall have no share with him in the distribution : for, by the common law, there was but one degree between brother and brother, and it would be unnatural to carry the personal estate up to the grandfather, who must be presumed to have been long before provided for, and to be going out of life (p). (k) Carter v. Crawley, Raym. 496. (') 1 Salk. 250. 1 Ld. Raym. 571. 1 Caldicot t'. Smith, 2 Show. 286. Bee- P. Wms. 25. Com. Rep. 87. ton V. Darkin, 2 Vern. 168. Maw v. (■") Bowers v. Llttlewood, 1 P. Wms. Harding, ibid. 233. Pett v. Pett, 1 594. Salk. 250. S. C. Ld. Raym. 571. S. C. (") Supr. 373. Com. Rep. 87. pi. 56. Pett's Case, 1 (") ibid. 1 P. Wms. 595. P. Wms. 25. Bowers v. Littlewood, (p) Evelyn v. Evelyn, Ambl. 191. vid. ib. 595 _ supr, 90, 91. 384 OF DISTRIBUTION. [bOOK III. So a grandfather shall exclude an uncle ; and, independently of the provisions of the statute, by the common law the former was entitled to a preieience, as being of tiie right line, where- [385] as the latter is only of the collateral line ; in other words, the grandfather is the root of the kindred, and the uncle is only the branch (q). The law, of course, iiSi the same in respect to grandmothers and aunts ('^). Where the next of kin are, a grandfather by the father's side, and a grandmotlier by the mother's, they shall take in equal moieties, as being in equal degree : for, in respect of such claims, as hath formerly been observed (5), dignity of blood makes no difference (t). Uncles and nephews, aunts and nieces, are in equal degree. And where the intestate left two aunts, and a nephew and a niece, children of a deceased brother, Lord Hardwicke C. or- dered the surplus to be divided into four parts equally among them, holding that as they were all in equal degree the chil- dren were to take in their own right and not by representa- tion ; but that if their father had been living, he would have been entitled to the whole ("). The grand-daughter of a sister, and the daughter of an aunt of the intestate are also in equal degree, and entitled to equal distribution {'■''), The next of kin, though collateral, is preferred before a re- lation, though lineal, if he be of the ascending line, and more remote (^). [386] Although the statute direct that no distribution shall be made till a year be elapsed from the death of the intestate, yet, if a person entitled to a distributive share shall die within the year, such interest shall be considered as vested in him, and (q) Blackborough t;. Davis, 1 Salk.38. (•) Supr. 91. 251. S.C. Lcl. Raym. 684. S. C. Com. -*») Blackborough v. Davies, 1 P- Jlep. 96. 108, 109. S.C. 12 Mod. 615. Wms. 53. I.loyd V. Tench, 2 Vez. 215. Black- («) Durant v. Prestwood, 1 Atk. 454. horough Ti. Davies, 1 P. Wms 41. (w) Com. Dig. Admon. H. Thomas w. (r) Com. Dig. Admon. H. 1 Salk. 38. Ketteriche, 1 Vez. 333. 251. Woodiofr V. Wickworth, Free. (") Blackborough v. Davies, 1 P- Ch. 527. Wms. 51. CHAP. VI.] OF DISTRIBUTION. 386 shall go to his personal representative j for this proviso makes no susjjension or condition, prece«lent to the interest of the par- ties, hut was inserted merely with a view to creditors. The statute, also, is in the nature of a will framed by the le- gislature for all such persons as die without having made one for themselves ; and, by consequence, the parties entitled in distribution resemble a residuary legatee : and it has been al- ways held, that if such legatee die before the amount of the sur- plus is ascertained, still his representative shall have the whole residue, and not the representative of the first testator (y). Affinity, or relationship by marriage, except in the Instance of the wife of the intestate, gives no title to a share of his pro- perty : as, if A have a son and daughter, B and C, and they both die, the former leaving a wife, and the latter a husband ; on A's dying afterwards intestate, such husband and wife have neither of them any claim on his estate. Under a will, a wife is not one of the next of kin in the or- dinary sense. Therefore where a testator gave the residue of his property " to be divided amongst my next of kin, as if I had died intestate," the widow was held not to be entitled to any share of such residue («). A-gift of property to my nearest surviving relations has been held to mean tlie testator's brothers and sisters, to the exclu- sion of nephews and nieces (=»). If a bastard, or any other person having no kindred, die in- testate, without wife or child, his effects, as we have seen C*), [387] belong to the king, who, with the exception of a small part, usually grants them by letters patent or otherwise ; and then such grantee seems of course entitled to the administra- tion, and consequently to the sole enjoyment of the property ('). The personal property of an intestate, wlierever situated, must be distributed according to the law of the country where his (y) 3 Bac. Abi-. 75. Brown v. Farn- 3 Atk. 422. Vid. supr. 342. dell, Garth. 51, 52. Freke v. Thomas, (z) Garrick v. Lord Camden, 14 Ves- Comb. 112. Taylor v. Acres, 2 Show. jyjj 272. 285. Palmers. AUicock, Skin. 212. (a) Smith ... Campbell, Coop. Rep. 275, 218. S.C. 3 Mod 58. llVin. Abr. 92. . Wilcocks V. Wilcocks, 2 Vern. 559. ^^^ ^'^- ^"P""- ■'°''- 3 P.WmS; 49, note C). Lee v. Cox, C) 2 Bl. Com. 505. Doug. 542. 3 A 387 OF DISTRIBUTION. [bOOK III. domicil was, and such is privid facie the place of his residence ; but that may be rebutted ; or supported by circumstances (d) ; for although the locality of the party's abode at the time of his death determine the rule of distribution, yet it must be a sta- tionary, not an occasional, residence, in order that the muni- cipal institutions may attach on the property (^). If, therefore, an Englishman be settled, and die in this country, and adminis- tration be taken out to him here, debts due to him, or other of his personal effects in Scotland^ or abroad, shall be distributed according to the law of England (f) : But if an alien resident abroad die intestate, his whole property here is distributable according to the laws of the country where he so resides, other- wise no foreigner could deal in our funds but at the peril of his effects going according to our laws, and not to those of his own country (s). Where a native of England domiciled in Guernsey died in- testate, leaving a widow and infant children, and the widow was appointed guardian of the children by the royal court of Guernsey, and sold the property of the intestate, and invested the produce in the English funds, and afterwards came to Eng- land with her children, and was domiciled there : A question arose on the death of some of the children under age, whether their shares of the property became distributable according to the law of England or of Guernsey ; and it was held, that the law of England was to govern the succession, the domicil of the children being (according to the opinion of foreign jurists, our own law being silent on the subject) to follow the domicil of the surviving parent, where no fraudulent intention can be im- puted. But fraud may be presumed where no reasonable cause appears for the removal (h). ('i) 2 Vcs. jun. 198. See also Sir Chas. (') Tliornc v. Watkins, 2 Vex. 35. Douglas's Case, there cited. .Desne- {?,) 1 VS'^ooddes. 585. Pipon -v. Pipon, bats V. Jievfjuier, 1 liitm. 344. , Ambl. 27- (e) 1 Wooddes. 385. Pipon v. Pipon, (h) Potinger w. Wightman, 3 Meri. Ambl. 25. Burn r, Cole, ib. 415, 416. Rep. 6/. CHAP. VI.] OF DISTRIBUTION. 388 Sect. II. Of distribution by the custom of London. I PROCEED, in the last place, to consider the customs of tlic city of London on this subject, and also of the province of York, and the principality of Wales ; which having peculiar customs of distributing intestates' effects, are expressly except- ed from the operation of the statute. Although the restraints in regard to the power of making wills, which subsisted in those respective districts, are now removed by different statutes; namely, the 4 & 5 TV. & M. c. 2. explained by the 2 & 3 .inn. c. 5. for the province of York ; the 7 k S fF. 3. c. 38. for Wales; and the 11 0.1. c, 18. for London ; by wliich persons residing in those several places, and liable to those customs, are empowered to dispose of all their personal estates by will, and the claims of the widows, children, and other relations to the contrary are totally bar- red ; yet those customs remain in full force with respect to such property of an intestate (»), or where t!ie deceased free- man agreed by writing, in consideration of marriage or other- wise, that his personal estate should be distributed according to the same. Tl»eir nature and incidents tiierefore demand now our attention. [339] In the city of London (•>), and in the province of York i*^), as well as in the kingdom of Scotland (''), and there- fore, probably also in Wales (^). (respecting the latter of « nich, little information is to be collected, except from tlie statute of W. 3.) the effects of the intestate, after payincnt of liis debts, are in general divided according to the ancient doctrine of the pars raiionabilis{^)9 to which I have before alluded (k). (^) 2 Bl. Com. 493. 517, 518. L. of ("<) Tbkl. 421. Test. 194 3 V. Wms 19, in note. (e) ibid. 423. 442. (b) Red-sluw V. Brasier, Ld. Rayna. .f. ^ g, ^.^^ ^^g Qfl. g^ g^ 1329 4 Burn. Eccl. L. 387. (0 4 Bum. Eccl. L. 398. ^'^ ^upr. 81. 389 OF DISTRIBUTION [bOOK III. And first, as to the custom of London ; if a freeman of the city die, leaving a widow and children, his personal property, after deducting her apparel, and the furniture of her bed-cham- ber, is divided into tliree equal parts, one of which belongs to the widow, another to the children, and the third to the ad- ministrator in that character. If only a widow, or only chil- dren, they shall respectively in either case take one moiety, and the administi-ator the other (»»). If neither widow nor child, the administrator shall have the whole ('). The portion of the administrator is styled in law the dead man's part. It is so called, because formerly, as we have seen (k), the ordinary or his grantee was to dispose of it in masses for the deceased's soul. But, after the disuse of this su- [390] perstitious practice, the administrator was wont to apply it to a better purpose, that is to say, for his own benefit (•) ; till the legislature thought it was capable of an application still better ; and accordingly, by the stat. I Jac. 2. c. 17. declared, that it should be subject to the law of distributions. Hence, if a freeman die worth eighteen hundred pounds per- sonal estate, leaving a widow and two children, this estate shall be divided into eighteen parts ; of which the widow shall have eight, six by the custom and two by the statute ; and each of the children five, three by the custom and two by the sta- tute ; if he leave a widow and one child only, she shall still have eight parts as before ; and the child shall have ten, six by the custom, and four by the statute ; if he leave a widow, and no child, the widow sliall have three-fourths of the whole, two by the custom, and one by the statute ,• the remaining fourth shall go by the statute to the next of kin (™). A posthumous child shall come in for his customary share with the other children ("). But the custom extends merely to (i>) Nortliey v. Strange, 1 P. Wms. (k) Supr. 81. 341 Regina v. Rogers, 2 Salk. 426.. (') Anon. 2 Freem. 85. Matthews v Turner tj. Jennings, 2 Vern 612. L. Newby, 1 Vern. 133. of Test. 210, 211. Elliot t). Collier, (>") 2 Bl. Com. 518. L. of Test. 209. 3 Atk 527. (") Walsam v. Skinner, Prec. Chan. (i) Feicival v. Crispe, 2 Show. 175. 499. L. of Test. 203. 11 Vin. Abr. Vid. L. of Test. 192. 200. Gilb. Eq. Rep. 155. CHAP. VI.] BY THE CUSTOM OF LONDON. 390 the wife and children of the freeman, and not to his grand-chil- dren (o). Hence if a freeman die intestate, leaving a wife but no child, yet if there hath been a child, and there be any legal re])resen- [391] tatives, that is, lineal descendants of such child, they are admitted to his distributive share of the dead man's part under the statute, though they are entitled to no part of his share by the custom. In that case, therefore, of the dead man's part by the statute, the wife shall have one third, and the repi'esentatives shall have the other two thirds ; so that, dividing the whole per- sonal estate into six parts, she shall have four, and the repre- sentatives two. If there be neither wife nor child, nor such representative of a child, the whole shall be subject to tlie statute of distribu- tion (P). The custom attaches, although the freeman neither resided, nor died (a), nor left property (>•) within tlie city. In respect to the widow, I have already mentioned that she is entitled to her apparel and the furniture of her chamber, which is called the widow's chamber (^) ; or, in lieu of it, in case the estate shall exceed two thousand pounds, it has been said that she is entitled to fifty pounds (*). The privilege of the widow's chamber is analogous to her right to paraphernalia in general cases, and, like that, shall in no case be exercised to the prejudice of creditors ("). [392] If she be provided for by a jointure before marriage in bar of her customary part, she is put in a state of nonentity (o) Northey v. Strange, 1 P. Wms. ter v. Rutter, 1 Vein. 180. Chomley 341. Fowke v. Hunt, 1 Vern. 297- v. Chomley, 2 Vern. 48. 82. Webb v, Reginaw. Rogers, 2 Salk. 426. L. of Webb, ib 110. Test. 210. (.■) jYiv. Lond. 288. (p) L. of Test. 192. 221,222. 1 Vern. (•) 2 Bl Com. 518. 200- (t) 7 Vin. Abr. 2. tit. Customs, B. 2. (q) L. of Test. 202. 220. Spencer's Briddle v. Briddle, 4 Burn. Ecci. 1. Case, 1 Roll Rep. 316. Wilkinson v. 388. Miles, 1 Sid. 250. Harwood's Case, (") Swinb. p. 6. s. l.'^j.' 1 Ventr. 180. S. C. 1 Mod. 80. Rut- 392 OJf DISTRIBUTION [bOOK III, with regard to the custom only («) ; but she shall still be enti- tled to her share of the dead man's part under- the statute of distributions (*). But if the jointure is expressed to be in bar of her dower, without saying. more, this shall not bar her of her customary share of the personal estate, for land is wji* lly out of the custom (>'). Such also is the case, if the intestate covenant to lay out money in a purchase of land by way of jointure, for the money has in equity all the qualities of land (^). And a fortiori she shall not be excluded from her customary share, if the settlement be so expressed ; as if it contain a pro- viso, that she shall not be barred or deprived of her right to dower, or of taking any other gift, provision, or bequest her husband shall think fit to give, or leave her by deed or will, or any other means whatsoever (a). On the other hand, the set- tlement may be expressly in bar as well of her share of the dead man's part as of her share by the custom, and then she shall be excluded from both {^) : or if it be made in satisfaction of all her demands out of his personal estate by the custom, or [393] otherwise, she shall be barred also of her share under the statute (<=) : or it may thus operate on the evident though only- implied intention of the parties (■'). If the wife be divorced for adultery a mensd et thoro, she for- feits her customary share («). If a freeman leave several children, the share or the orphan- age part of any one of them is not vested in him by the cus- tom till the age of twenty-one, after which period, but not be- (w) Hancock v. Hancock, 2 Vern. 665. v. Greenwood, Free. Chan. 505. L. of Blunden v. Barker, 1 P. Wms. 644. Test. 214. Cleaver v. Spiirling, 2 P. Wms. 527. (^) S. C. 1 P. Wms. 532. Lewin v. Lewin, 3 P. Wms. 16. Pusey (3) Kirkman v. Ku-kman, 2 Bro. Ch. V. Desbouverie, 315. Medcalfe v. Rep 95. Medcalfe, 1 Alk. 64. Morris v. Bur- (}) 1 Eq. Ca. Abr. 153. Atkyns v. roughs, 403. Tomkyns v. Ladbroke, Waterson, Gilb Eq Rep. 95 S. C, 2 Vez. 592. .L- of Test. 214. Babington v. Greeii- (") Benson v. Bellasis, 1 Vern 15. wood, 1 P. Wms. 531. 2 Chan. Rep. 252. Wh ith ill •«. Phelps, (<^) 7 Vin. Abr. 211. Benson •!;. Bel- Prec. Ch. 327. lasis, 1 Vern 15 4 Burn. Eccl. L. 404. (y) 1 Eq. Ca. Abr. 158, 159. Babing- Vid. L. of Test 212, 213 ton V. Greenwood, 1 P. Wms. 531. ('') L. of Test. 212. L. of Lond. 102. Blunden v. Barker, 647. Babington (') Pettifer v. James, Bunb. 16. CHAP. VI.] BV TILE CUSTOM OF LONDON. 393 fore, he may dispose of it by will, or, in case of his dying in- testate, it shall be distributed pursuant to the statute. If he die under that age, whether sole or manied, his share shall survive to the others (<") ; whereas the share by the statute is vested, and therefore such child may devise it at the age of four- teen, if a son, and at twelve, if a daughter (s). But the survi- vorship of the orphanage part holds only as to the orphanage part belonging to the deceased himself, for if he had by survi- vorship the part of any of his brothers or sistersj that shall go according to the statute (h). In case there be only one child, his orphanage part is vested in him, in the same manner as his share by tiie statute, and is devisable by him at the same age ('). [394] If a man marry an orphan under the age of twenty-one, it seems his right is so vested as to prevent his wife's share from surviving, in case of her death, before she attains that age (k). The children of a freeman are entitled to the benefit of the custom, although they were born out of the city(i). If any of the children are advanced to the full extent of the custom by the father in his lifetime, they shall be entitled by the custom to no further dividend ("^). If a freeman have seve- ral children, and fully advance them all, the custom in regard to them is satisfied, and his personal estate, independent of the widow's customary share, shall be distiibuted according to the statute. If he has only one child, and fully advances him, the consequence is the same ("). If the children are advanced only partially, they must bring their portion into hotchpot before they can derive any advantage from the custom ; and in that case their portion must be so brought in with the other brothers and sisters, but not with their mother, for the principle here (f) 2 Bl. Com. 519. Wilcocks v.WW- (') L. of Test. 202. Harwood's Case, cocks, 2 Vern. 558. Jesson v. Essing- 1 Ventr. 180. S C. 1 Mod. 80. ton, Pi-ec Ch. 207. 537. (■") Cleaver v. Spurling, 2 P. Wms. (g) Vid. supr. 8. 527'. (h) Jesson V. Essington, Prec. Ch. 537. (■') L. of Test. 206. 221. Cleaver v. (i) 3 P VVms. 318. note (^). Vid. also Spurling, 2 P. Wms. 527. Goodwin v. Prec Chan 207. Ramsden, 1 Vern. 200, Hancock v. (k) Foiike V. Lewen, 1 Vern. 88. sed Hancock, 2 Vern. 666, Medcalf v, vid. Prec, Ch. 537. Medcalf, 1 Alk. 64. 394 OF ADVANCEMENT [bOOK III. also is to make an equality among the children, and not to bene- fit the widow (°). Nor, where a freeman has in part advanced his only child, shall such child bring in his advancement, for [395] there is none to claim with him of equal degree (p). And where one of several such children is advanced, his advance- ment shall be in satisfaction merely of his orphanage share, but not of his share of the dead man's part, to the whole of which he shall be entitled, without regard to what he shall have received from his father (i). In case such advancement be brought into hotchpot, it must be brought into the orphanage part only (j). If the advancement shall have exceeded the child's share by the custom, whether he must bring in such excess before he is entitled to his share of the part distributable by the statute, is a point on which there are opposite opinions. By some wri- ters it has been held, that he has a claim to his full share by the statute, without any retrospect to his advancement, what- ever might have been its amount. By others it has been main- tained, that he has no right to such distributive share, unless he bring into the same so much of his advancement as exceed- ed his proportion of his customary part ('). To reconcile this variance, a distinction has been suggested between an advance- ment given and accepted expressly in satisfaction of the cus- tomary sliare, and an advancement given generally without any such agreement or stipulation : That, in the former case, in [396] the distribution of the dead man's part, no respect shall be had to the advancement, as it is considered in the light of a purchase by the child, and might' have happened to be less as well as greater in point of value than the customary part. But where there is no such special contract or agreement, and the advancement is general, it shall be applied either to the cus- (0) L. of Test. 204. Annand v Ho- Lord Delaware, lb. 628. Stanton v. neywood, 1 Vern. 345. Beckford v. Piatt, ib. 754. Beckford, 2 Vern. 281. 2 Bl. Com. (q) Hgarne v. Barber, 3 Atk. 214. 519. Bright t;. Smith, 2 Freem. 279. Wood t.. Briant, 2 Atk. 523. 1 Eq. Ca. Abr. 155. Cleaver v. Spur- ,.„,r.j T>irj ^-.r ,• ^ T. ,,r ^^^ ^ r^ ■ (0 Beckford v. Beckford, 1 Vern. hng, 2 P. Wms. 526. Garon v. Trip- ^ /^ pet, Ambl. 189. (p) Regina v. Rogers, 2 Salk. 426. O Vid. 4 Burn. Eccl. L. 406. Gud- Fane v. Bmce, 2 Vern. 234. Dean v. .?eon v. Ramsden, 2 Vern. 274. CHAP. VI.] BY THE CUSTOM OF LONDON. 396 tomary shai'e only, or both to the customary and distributive share, according to the amount of the advancement ('). As to the nature of the advancement, whether complete or ])artial, it must arise exclusively from the personal estate. In the establishment of the custom, the citizens of London had no regard to real property, on supposition that a freeman would not purchase land, but would employ his whole fortune in com- merce ("). If therefore a citizen settle a real estate on a child, it shall be no advancement (*) ; nor, althoug-h it be expressly for that purpose, shall it bar him of his orphanage part(''). Nop if money be given by the father to be laid out in land to be set- tled on the son on his marriage, shall it be deemed personal es- tate, nor any exclusion (y). What has bieen already stated in general cases (') respecting small presents made to the child by the father ; his disburse- ments for the child's maintenance and education, or placing him out apprentice (=*); a legacy left him by the father dying par- [397] tially intestate {^); property given him by any other than his father, as well as a fortune of the child's own raising, is here equally applicable. He is not by any of these means ad- vanced. For that purpose it must be a provision made for him by the father, while living, out of his personal property (<=). In short, there must, in all instances of this nature, be a valuable consideration moving from the father, and an actual benefit ac- cruing to the child ('i). Indeed, it has been made a question whether such provision as shall amount to an advancement should not be made on marriage, or in pursuance of a marriage (0 4 Burn. Eccl. L. 207. (<>) Vid. Car v. Car, 2 Atk. 277. (") 1 Eq. Ca. Abr. 150. Tomkyns v. (') Laws of Lond. 82. Jenks v. Hol- Ladbroke, 2 Vez. 593. ford, 1 Vern. 61. 4 Burn. Eccl. L. 412. (w) 1 Ch. Ca. 160. 235. L. of Test. 415. Vid. Elliot v. Collier, 1 Vez. 17. 194. Tiffin V. Tiffin, 1 Vern. 2. Cox Ilearne v. Barber, 3 Atk. 213. 452. V. Belitha, 2 P. Wms. 274. 3 P. Wms. 317, note (°). Elliot v. C) 2 Ch. Ca. 160. vid. Civil v. Rich, Collier, 1 Wils. 168. 1 Vern. 216. ('') L. of Test. 204. Jenks v. Holford, (y)AnnandT). Honeywood, 1 Vern. 345. 1 Vern. 61. Fowke r. Lewen, 89. (2) Vid. supr. 380. Civil v. Rich, 216. Morris v. Bur- (2) Sed vid. Morris T. Burroughs, 1 roughs, 1 Atk. 403. Elliot t-. Collier, Atk. 403. 3 Atk. 528. 3B 397 Ol^ ADVANCEMENT, &C. [bOOK 111. agreement («). But, it seems, the custom on this head is not so restricted, but extends to any other establishment of the child in life (0- If the child, whether the only one or not, be married in the lifetime of the father with his consent, although such child were not fully advanced, yet, to entitle himself to a further portion, he must produce a writing under his father's hand, expressing the value of the advancement, in order that it may be ascertain- ed what proportion it bore to his share by the custom (e). If no such writing be produced, or if, on the production of such writing, the specific amount does not appear on the face of it, [398] such advancement shall be presumed to have been com- plete, till the contrary be shown (•'). But mere parol declara- tions of the father, that he had fully advanced the child, whether with or without a specification of the value, shall be of no avail ('). TJjus, from what has been stated, it appears, that if a freeman die intestate, leaving no wife, and an only child, whether the child be fully advanced, or partially advanced, or not advanced; in either of these cases the cliild was entitled to the whole per- sonal estate (^). If he be fully advanced, he shall have nothing by the custom, but shall have all as next of kin : If he be par- tially advanced, since he has no brother or sister, with whom to bring his partial advancement into hotchpot, he shall have one half by the custom, and the other half by the statute : If he be hot advanced, he shall have one half by the custom, and the other half by the statute (*). If tlie freeman leave no wife, but several chidren, as for in- stance tliree, one of whom is advanced, another partly advanc- ed, and the third not advanced ; in this case the child partly ad- vanced, and the child not advanced, after the former has brought (=) 1 Vern. 61. 89. Vid. also Hearne Fuwkner v. Watts, 1 Atk. 406. V. Barber, 3 Atk. 213. (h) Cleaver v. Spurling, 2 P. Wms. (0 L. of Test. 204. Morris v. Bur- , 527. 4 Burn. Eccl. L. 408. in note. roughs, 1 Atk. 403. See also Northey Elliot v. Collier, 3 Atk. 527. ti. Strang-e, 1 P. Wms. 342. {') Vid. Blundenf. Barker, 1 P. Wms. (f) Chace r. Box, Ld. Raym. 484. 1 634. Cleaver w. Spurling, 2 P. Wms. Eq.Ca.Abr. 154. 4 Burn. Eccl. L. 393. 527. Fawkner i^. Watts, 1 Atk. 407. L. of Test, 203. Hume v. Edwards, (><) Vid. 4 Burn. Eccl. L. 417. 3 Atk. 451,452. Elliot v. Collier, 527 (') Vid. 4 Burn. Eccl. L. 417. CHAP. VI.] RELEASE OF CUSTOMARY SHARE. 398 in his partial advancement, shall share one half equally between them by the custom ; and the other half, namely the dead man's part, although the first child have been fully advanced, shall, without his bringing his advancement into hotchpot, be distri- buted by the statute equally amongst them all. [399] If such advancement exceeded his orphanage part, then, whether the excess shall go in satisfaction of his distributive share by the statute, or not, seems to depend on the provision being expressly in satisfaction of the orphanage part, or whe- ther it be general, and without any stipulation (™). The interest which a child has in such orphanage part is a mere contingency, and no present right, and therefore a release of it is not valid in point of law ; but, if founded on a valuable consideration, shall operate as an agreement, and be binding in equity (°). Therefore, a freeman's child, if of age, may in consideration of a present fortune, waive all claim to the orphan- age part : as where the father, on the marriage of his daughter who had attained twenty-one years, agreed to give her three thousand pounds, and she covenanted to receive that sum in full of such share : this, as there was no fraud in the transaction, was held in equity to be a good bar of the custom (»). So if A, who is of age, marry a freeman's daughter, who is an infant, he may, on receiving an adequate portion, bar himself of any future right to a customary estate in virtue of the marriage by a release of all future right, or by a covenant to release it when it shall accrue (p). Indeed, if the latter mode be adopt- ed, the wife, if under age, would not be barred by the cove- nant ; and in case of his death before the execution of the re- [400] lease, she would by survivorship be entitled to the share, as a chose in action not recovered or received by her husband ,• but if he be living when the right accrues, as he clearly may release it, and his release will bind her, therefore it is reason- able he should perform his covenant. It is highly expedient that articles of this nature should be carried into execution; and (™) Vid. supr. 395. (°) 2 Eq. Ca. Abr. 272. Lockyer v. (°) Blunden v. Barker, 1 P. Wms. Savage, Stra. 947. 636. 639. Cox v. Belitha, 2 P. Wms. (p) Cox v. Belitha, 2 P. Wms. 272. 273. Ives T'. Medcalf, 1 Atk, 63. 400 OF DISTRIBUTION [bOOK III. that when the father is bountiful to his children in his lifetime, he should have his affaii's settled to his satisfaction at his death(«i). But such release shall be altogether ineffectual if in any manner extorted, or obtained by undue influence ('^), or without con- sideration ('). These points are indeed less likely to occur, in consequence of the authority given to a freeman by the above-mentioned stat. Geo. 1. of disposing by will of his whole personal estate, with^ out regard to tlie custom. Sect. III. Of distribution hy the custom of York — and of Wales, The custom of York, as it regards the widow, varies from that of London only in this respect, that she is allowed to re- serve to her own use not only her apparel and furniture of her [401] chamber, but also a coffer box containing various orna- ments of her person, as jewels, chains, and other articles of the like nature (a). As relative to children, the custom of York differs in two material points from the custom of London. In the city, as we have seen, a child's orphanage part is fully vested till he attains the age of twenty-one. In tlie province it is vested im- mediately on tlie death of the intestate (^'). In the city, we may remember, the advancement of a child cannot arise out of a real estate. In the province the heir at common law, who inherits any land either in fee or in tail, is divested of all claim to any filial portion («=). And, however small in point of value the land (q) Ibid. 1 Atk. 63. (') Off. Ex. Suppl. 61, 62. Swinb. p. 6. (f) Heron v. Heron, 2 Atk. 160. 13lun- -s. 9. den V. Barker, 1 P. Wms. 639. (•') 2 Bl. Com. 519. 4 Burn. Eccl. L. («) Ives V. Mcdcalf, 1 Atk. 63. Morris 398. V. Burroughs, 402. Heron v. Heron, (^) 2 Burn. Eccl. L. 409. L. of Test. 2 Atk. 161. Blunden v. Barker, 1 P. 221. Constable v. Constable, 2 Vern. Wms. 639. Cox v. Belitha, 2 P. Wms. 375. 273. CHAP. VI.] BY THE CUSTOM OF YORK. 401 may be in comparison with the personal estate, he is neverthe- less excluded (J), and even although tjje estate ho inherits be only a reversion (e). He is also barred, though the land devolved upon hiin by settlement made on liis father's marriage (f). Nor, in case lands held by a mortgage in lee descend to him beiore redemption, shall he be entitled to a filial portion ; but on re- demption of the mortgage, and payment of the money to the [402] admin isti-ator, it seems he shall be entitled to such por- tion, because then he has nothing by inheritance, nor in fact has had any preferment (s). The principles established in regard to advancement on the construction of the statute of distributions, apply in general to such as is pursuant to the custom of this district (■') ; but as here land as well as money constitutes an advancement, the heir at law under the custom is excluded by his inheritance of land, either in fee or in tail (') : Whereas such inheritance is no bar by the statute; but, as well under the custom as under the statute, younger children in respect to advancement are on the same footing. It is essential, in order to the custom of York's attaching, that the intestate should be resident, at the time of his death, within the province; but for that purpose, it is immaterial where his estate is situated. In case a freeman of London shall die within the province, the custom of the city for the distribution of his effects shall prevail, and shall control the custom of the province of York, Therefore in that case the heir shall come in for a share of the personal estate ; for the custom of the province is only local, and circumscribed to a certain district; but that of London, as above stated, follows the person, although ever so remote from the city (""). [403] With these distinctions the custom of London and those of York in the main agree, and appear to be substantially the same (>). () 4 Burn. Eccl. L. 424. Off. Ex. 97, (") Supr. 388. fti note. ibid. Suppl. 72. [ 404 ] CHAP. VII. OF THE POWERS AND DUTIES OP LIMITED ADMINISTRATORS— OF JOINT ADMINISTRATORS. There are certain powers and duties which belong in com- mon to all special and limited administrators. Whether the administration be committed durante minoritatef durante absen- tia, or pendente lite, or whether such special and limited admi- nistration be granted with or without a will annexed, or in a general or restrictive form only, as ad usum et commoduvi Infan- tis; they are all invested in some respects with the same autho- rity (=»). They may perform all such acts as cannot be delayed without prejudice or danger to the estate. They may sell bona pcritura, cattle which are fattened, grain, fruit, or any other substance which may be the worse for keeping (^) : They may pay debts which were due from the deceased at the time of his death (<=), or for the payment T)f them they may dispose of effects not perishable (d). They may also in such respective [405] characters receive debts due to the deceased («), or may maintain actions for the recovery of the same (f) : for, in all these and the like instances, the urgency of the case requires them immediately to act. They have also, it seems, the privi- lege of retaining for debts owing to themselves {s). If administration be granted generally during infancy, the grantee has authority to make leases of any term vested in the (») Walker v. Woolaston, 2 P. Wms. («) Com. Dig. Admon. F. Vid. Anon- 576. 3 Leon. 103. (b) 3 Bac. Abr. 13- 11 VIn. Abr. 102, (f) talker v. Woolaston. 2 P. Wms. 103. 1 Roll. Abr. 910. Anon. 3 Leon. ^^g i RoH. Abr. 888. Bearblock r. 278. 2 Anders. 132. pi. 78. Price v. ^^^^^ ^ ^,.^^^.^1 g. slaughter v. Simpson. Cro. Eliz. 718. 5 Co. 9. ^ay, 1 Salk. 42. Ball v. Oliver, 2 Ves, ^^°^^- 104- & Bea. 97. (O Com. Dig. Admon. F. Vid. Briers ^,. Goddard. Hob. 250. 5 Co. 29 b. (') Com. D,g. Admon, F. Semb. ('!) 5 Co. 29 b. 2 Anders. 132. pi. 78. ^*^""' ^^^' 405 OF LIMITED ADMINISTRATORS. [bOOK III. infant executor, wliicii shall be good till he come of age, and, as it lias been also held, till he enter (''). Such administrator has also, it seems, a right, in case the administration were granted with the will annexed, to assent to a legacy ('). But if the administration were committed with special woids of re- straint in the form I have just mentioned, such administrator is incapable of making leases C^), or of assenting to a legacy (i). Nor shall the power of an administrator during infancy, al- though the grant were general, extend to the prejudice of the infant. Therefore such administrator has no authority to trans- fer the property by sale, except in cases of necessity ; nor to sell leases even for the payment of debts, if there be other pro- [406] perty which he may dispose of to more advantage ("^) ; nor to assent to a legacy, unless there be assets for its pay- ment («) ; nor to release a debt without actually receiving it(<») : for although, as we may remember, if A, an infant, be appoint- ed executor, and B be nominated to act in that character dur- ing A*s minority, B seems to be possessed of the same pow- ers as an absolute executor (p) ,• yet a distinction has been taken between him and an administrator diirante minoritate. To B, the property in the effects was confided by the owner himself, though but for a limited time, and in a special man- ner ; whereas such administrator is appointed by the ordinary in consequence of the legal disability of the executor, who by the will is constituted to act immediately (i). Such acts, there- fore, as are performed by such administrator to the injury of tlie infant, shall be altogether ineffectual. By the stat. 38 Geo. 3. c. 87. s. 7. an administrator durante absentia has the same powers vested in him as an administrator during the minority of the next of kin. An admijiistrator pendente lite^ whether the suit relates to a will or the riglit of administration, seems to be on the same footing as an administrator during infancy, to whom the grant (•'-) 6 Co. 67 b. Off. Ex. 215. (") 5 Co. 29 b. (i) Off. Ex. 215. 5 Co. 29 b. (o) i RqU. Abr. 910, 911. (^) 6 Co. 67 b. Off. Ex. 215. ^ ^.j^ 3^^ (1) Off. Ex. 215. ' ... (.n) 2 Anders. 132. pi. 78. (^) ''^' ^^- ^^'> ^^^- ^^ Vm. Abr. 103. CHAP. VII.] OF LIMITED AUMINISTRATORS. 407 [407] is made in the special and limited manner above men> tioned (■■).[ 1] On an infant executor's coming of age, he may sue out a scire facias on a judgment recovered by the administrator du- rante minoritate. In like manner, in case an adnunistrator, pendente lite touching a will, obtain such judgment, the execu- tor, on proving the will, by which the administration will be determined, may take advantage of the judgment by scire fa- cias (*). If an action be brought against a special administrator, and, pending the action, the administration determine, it has been held he ought to retain assets to satisfy the debt, which is at- tached on him by the action (') ; but that is on the supposition the action does not in that event abate ; whereas it seems tliat such would be the consequence ("). If judgment be obtained against such administrator, and afterwards the executor come of age, a scire facias will clearly lie against the executor on the judgment (*). Of co-executors, we have seen (''), the acts of any one in re- spect to the administration of tlie effects are deemed by the law to be the acts of all, inasniucii as they have a joint and en- tire authority over the whole property ; but joint administra- tors have been considered in a different light. Their pov.er arises not from the act of the deceased, but from that ol the or- dinary ; and administration, it has been already stated (y). is in the natuie of an ofTue : Hence it has been held, tliat if giant- ed to several persons, they must all join in the execution of it, nor shall the act of one only be binding on the I'est, and that (0 Vid. 3 Bac. Abr. 56. 11 Vin Abr. (") 11 Vin. Abr. 97. Ford v. Glanville, 1C6. Walker v. Wonlastoii, 2 W Moore, 462. Goldsb. 13. Luiw. 342. Wms. 576. and supr. 74. ("") Spurks v. Crofts, Ld. Raym. 265. (») Ibid. 2 P.Wms. 587. S. C. Carth. 432. (f) 3 Bac. Abr. 14. Sparks v. Crofts-, (") Supr. 359. Comb. 465. (v) Supr. 114. [1] An administrator pendente Hie has no power to make distribution of an estate. But if such administrator have made distribution according u> law, the Court will not compel him to refund, \\w. ibe prchcni adminisintor may pay it again to the same person. Case of Jiradford's Jldm\s. 1 Browne, S?. s C 407 OF JOINT ADMINISTRATORS. [bOOK III. therefore one of several administrators cannot, like one of [408] several co-executors, convey an interest, or release a debt, without the others ('). But this distinction has been over- ruled, and it seems to be now settled that a joint administrator stands on the same footing, and is invested with the same pow- ers, as a co-executor (*). If one of the administrators die, the right of administering will survive without a new grant C'). By the stat. 38 Geo. 3. c. 87. s. 4. in case of the absence of an executor for a year after the testator's death out of the ju- risdiction of his majesty's courts, and a suit be instituted in a court of equity by a creditor, the court in which the suit shall be pending is empowered to appoint persons to collect outstand- ing debts or effects due to the testator's estate, and to give dis- charges for the same, who are to give security in the usual manner duly to account. C'^) 4 Burn. Eccl. L. 272. Ld. Bacon's Willand v. Fenn in B. R. cited ibid. Tracts, 162. Hudson v. Hudson, 1 (*>) Adams v. Buckland, 2 Vern. 514- Atk. 460. Eyre v. Countess of Shaftsbury, 2 P. (0 Jacomb v. Harwood, 2 Vez. 267- Wms. 121. Supr. 114. [ 409 ] CHAP. VIII. OF ASSETS AS DISTINGUISHED INTO REAL AND PERSONAI,, LEGAL AND EQUITABLE— OF MARSHALLING ASSETS. In treating* of debts and legacies, I have hitherto supposed them to be payable out of the personal estate only, and indeed that is the natural fund for their satisfaction ; but the real pro- perty may also be applied to the same purpose. On the subject of such application, it is necessary to consi- sider assets under different denominations. Assets, then, are cither real or personal, legal or equitable (»). Those of which I liave been treating are legal and personal, I proceed now to advert to such as are legal and real. Lands descended to the heir in fee simple are for the benefit of speci- alty creditors of this description ; as is even an advowsou which is so descended C^). These assets are sometimes styled assets by descent, as per- [410] sonal assets are called assets enter muinSf that is, in the hands of the executor («=). Whether an estate j)iir auter vic^ in case it be not devised, shall be real or personal assets, depends on there being or not being a special occupant. The statute of frauds enables the propi'ietor of such estate to devise it, and enacts that, if no de- vise be made, it shall be chargeable in the hands of the heir, if it come to him by reason of special occupancy, as assets by descent, as in the case of lands in fee simple. And if there be no special occupant, it shall go to the executor, and be assets in his hands (''). A term in gross is, as we have seen, personal assets {^). But if the term be vested in a trustee, and attendant on the inheri- (>) Vid. 4 Burn. Eccl. L. 288. {^) 2 Foiibl. 2d edit. 896 note R. b, ('') 3 Wooddes. 483. Robinson v. Wesifaling v We.stfaling, 3 \tkr466. Tonge, 3 P. Wms 401. Atkinson v. Balier, 4 Term Rep. 229, (<=) Terms of .the Law. Shep. Touch. Milncrr Lord Hare wood, 18 Vez.srS. 496. • • CO Supr- 140. 410 REAL AND PERSONAL ASSETS. [bOOK IH. tance, it is real assets C). So a term in trust, attendant on a fee in trust, shall be real assets in the hands of the heir ; for the statute of frauds having made a trust in lee assets in the hands of the heir, the term which follows the inheritance, and which is subject to all charges attending the inheritance, must be so also (s). But we have seen, that, generally speaking, the trust of a term is not made assets by that statute (''). [411] Creditors by specialties, which affected the heir, pro- vided he had assets by descent, had not the same remedy against the devisee of their debtor, and were therefore liable to be defrauded of their securities. To obviate this mischief (>), the stat. 3 TV. and M. c. 14. has enacted, that all devises of real estates by tenants in fee simple, or having power to dispose by will, shall, as against such creditors, be deemed to be fraudu- lent and void ; and that they may maintain their actions jointly against the heir and devisee. But devises for payment of debts, and for raising portions for younger children, in pursuance of an agicement before marriage, are expressly excepted by the statute C^). And thus freehold interests devised for other than the just purposes aforesaid, are become, in favour of specialty creditors, real assets at law, without the assistance of a court of equity : in respect to which such creditors may elect to re- sort in the first instance against the heir and devisee, without suing the personal representative of their deceased debtor ('). If such creditor file a bill in equity on the statute to affect the real assets in the hands of the devisee, the heir must be made a party to the suit; for a bill in equity for that purpose is in the nature of an action at law ; and as the action by express provision of the statute is to be brought jointly against the heir and devisee, so the bill must be filed against them both ("') ; though in such case the heir or devisee shall have this relief — (f)2 Fonbl. 2clcdlt. 114,noteR. Vid. gard tj. Earl of Derby, IBro.Ch.Rep. supr. 5 & 137. 311. Hughes v. Doulben, 2 Bro. Cli. (g) 2 Fonbl. 2(1 edit. 114, note S. Herd. Rep. 614. Com. Dig. Assets, A. 489. Willoughby v. NYilloughby, 1 (i) 3 Wooddes 486. Warren v. Stat- Term Hep. 766. well, 2 Alk. 125. Madox w. Jackson, (h) Supr. 143. 3 Atk. 406 Knight v. Knight, 3 P. (') Vid. 2 Bl. Com. 378. Wins. 333. Vid. Manatoii v. Manaton, (>«) Vid. 2 Atk. 104. 292. Earl of Bath 2 V. Wms. 234. ^ V, Earl of Bradford, 2 Vez. 590. Lin- {'•■') (iawlcr v. Wade, 1 P. Wms, 99 CHAP. VIII.] LEGAL AND EQUITABLE ASSETS. 411 namely, to stand in the place of the specialty cicditor, and re- imburse himself out of the personal estate (»). It seems that an estate pur anter vie, althoui^h no special oc- cupant were named, would, in case it were devised, be consider- ed as real assets (°). But copyhold estates are not assets in the hands of the heir (p), [412] and consequently are not comprehended within the pro- visions of this statute. Between legal and equitable assets the distinction is this : le.^al assets are such as constitute the fund for the payment of debts according to their legal prioi'ity ; whereas equitable as- sets are those which can be reached only by tlie aid of a court of equity, and are subject to distribution on equitable princi- ples, according to which, as equity Oivours equality, they are to be div^idcd pari passu among all the creditors (i). By the stat. 21 H. 8. c. 5. s. 5. it is enacted that if lands are devised to be sold, neither the money produced by the sale, nor the future profits of the land, shall be considered as forming any part of the personal estate of the devisor. But this provision was formerly construed to apply merely to devises of lands to be sold by j)ersons not executors, or by executors in conjunc- tion with other persons ; in which cases it was held, that neither the land nor tlie money was to be regarded as legal assets, but merely subject to an equitable appointment, inasmuch as the parties empowered to sell were not trusted with it in respect of executorsiiip (■■). [413] That in case lands were devised to an executor, to be sold by him in that capacity for the payment of debts and lega- cies, the money arising from the sale should be legal assets as well as the intermediate profits ; for that by the devise the de- (") Clifton V. r.urt, 1 P. Wms. 680. (') 3 Bac. Abr. 58, Roll. Abr. 920. (o) Vid. 2 Foiibl 2(1 edit. 396, note b. PMwards v. Graves, Hob 265 Dyer, (P) 4 Co. 22. Robinson 7^ Tonga, cited 151 b. 264 b. Girliiig- v Lee, 1 Vein. 1 P. Wms. 679, note 1. 63. Anon 2 Vern. 405. 4 Burn. Keel. (•)) 3 Bac. Abr. 59, in note. 2 Fonbl. L. 260. 11 Vin. Abr. 291. Cutierback 402, note (d). 4 Burn. Eccl. L. 288. v. Smith, Prec. Chan. 127. Std vid. 3 Wooddes. 486. 2 P. Wms. 416. Oft". Ex. 74, 73. note 2. 413 LEGAL AND EQUITABLE ASSETS. [bOOK III. scent was broken, and the estate in the land vested in the exe- cutor, qua executor for the purposes directed by the will Q). But the doctrine of equitable assets, in its principle so con- sonant to natural justice, lias been gradually extended ; and this distinction between a devise to a trustee and to an executor has been contijuially qualified, till at length it appears to be alto- gether abolished. In one class of cases; both of an earlier and of a later date, courts of equity recognizing the union of the two characters of trustee and of executor in the devisee, regarded on that ground the real estate as merely a trust fund, and distributable among all the creditors equally (»). And other cases considered it in the same light, although the devise were not to the executor expressly on trust, if, according to the sound construction of the will, he might be converted into a trustee ,• as if tire devise were to him and his heirs ; since the money could never be le- [414] gal assets in the hands of his heir; nor, as against such heir, could an action be maintained by a creditor ("). According to other decisions, if the executor had only a naked power to sell in the capacity of executor, the lands de- scended in the meantime to the heir of the, devisor, and till the sale, be might enter and take the profits (^^); and the money arising from such sale was held to be assets at law ("). But by modern adjudications it seems to be established that a devise to a mere executor shall bear the same construction as a devise to a tiaistce ; that there is no reason to suppose the testator's meaning to be different in the one instance from that in t'le other ; and that, even in the case of a mere power on the p;»rt of the executor to sell, the descent seems to be broken, in- asmuch as the vendee is in by the devisor; but that, whether the descent in such case be broken or not, the assets shall be equally equitable : in short, that if the real estate be by any («) 3 Bac. Abr. 58. 1 Roll. Abr. 920. - Rep. 94. Harg. Co. Litt. 236. (") 1 Bro. Cli Rep. Append. 7. 1 Bro. (f) 2 P. Wnis. 416, note 2. 2 Fonbl. Cli. Rep. Newton v. Bcnnet, 135. 138, 402, 403. Anon 2 Vern. 133. Challis in note. V. Casborn, I'rec. Ch.in. 408. Cham- (") Co. Litt. 236. hers V. Harvest, Mose. 123. Anon. (") Newton tj. Bennet, 1 Bro. Cli. Rep. 328. Lewin v Okeley, 2 Atk. 50. 135. 138, in note. See Tomlinson v. Batson v. Lindcgrccn, 2 Bro. Cii. Dighlon, IP. Wms. 151. CHAP. VIII.] LEGAL AND EQUITABLE ASSETS. 414 means given to the execiitoi', tlie jji-odutc of it, wiien sold, shall not be applied in a course of legal administration, but be dis- tributed as equity prescribes (>). And although it has been held that where the estate descends [415] to the heir charged with the payment of debts, it will be legal assets in him (z) ; yet now it is settled that in this instance also the assets shall be deemed to be equitable ("), But such assets as are clearly legal shall not assume, by be- ing recoverable only in equity, an equitable nature. Hence, if a mere trust estate descend on the heir at law, notwithstanding a necessity of resorting to equity to reduce it into possession, yet it shall be legal assets, since a trust estate is made assets by the statute of frauds. And although an equity of redemption of a mortgage in fee, not being made assets by aiiy legislative pro- vision, has been considered as merely an equitable interest, and has been expressly adjudged to be equitable assets (^) ; yet there are strong opinions to the contrary, and that an equity of re- demption, even in fee, though capable of being reached only in equity, shall be classed among assets at law. And although, from the same inclination of extending the ideas of equitable assets, it has been also held that if any termor for years mort- gage his term, the equity of redemption shall be of that de- scription of assets (c) ; still, according to a variety of antecedent cases, such chattels, whether real or personal, as are mortgag- [416] ed or pledged Jby the testator, and redeemed by the exe- cutor, although capable of being recovered only in equity, shall be assets at law in the hands of the executor for the value be- yond the sum paid for the redemption (^). (y) Newton 1). Bennet, lEro. Ch.Rep, ('') Wilson v. Fielding, 2 Vern. 7'64. 137, 138. 2 Fonbl. 2d edit. 398, in note. Plunket v. Penson, 2 Atk. 294. Deg Vid. Harg. Co. Litt. 113, note 2, and v. Deg, 2 P. Wms. 416. Cox's Case, Walker v. Meager, 2 P. Wms. 552. 3 P. Wms. 342. Hartwell r. ChLtters, JVimmo, Ex'r. v. The CommojnveaUh, Ambl. 308. 3 Bac. Abr. 59, in note. 3 Hen & iMunf. 57. (c) Cox's Case, 3 P. Wms. 342. Hart^ (0 Freemonlt v. Dedire, 1 P. Wms. ^^^w ^,. chitters, Ambl. 308. 430. Plunket v. Penson, 2 Atk. 290. ^,^ . ^^^ ^^^ ^g^ -^ ^^^^ 1 Leon. 2 P. Wms. 416, note 2. j^^ Harcourt v. Wrenham, Moore, (^) 2 Fonbl. 2d edit. 398, In note. 1 g^g ^ jj^jj ^^p 153. Harcourt v. Bro Ch. Rep. Append. 6. Batson v. Wrenham, 1 Brownl. 76. Plunket v. Lindegreen, 2 Bro. Ch. Rep. 94. Ship- p^,^^^^^ ^ Atk. 291. hard v. Lutwidge, 8 Ves. jun. 26. 416 LEGAL AND EQUITABLE ASSETS. [bOOK III. Lands may be devised to an executoK to be sold by him for the payment of debts only, and then they shall he assets mere- ly for that purpose. And so the devise may he expressed to be for payment of legacies, and not of debts ; and then it shall be restricted to the former. For since the lands are not in their own nature assets, but constituted so by the will and dis- position of the devisor, they shall not be assets to a greater ex- tent than he has thought fit to direct («). But in either of these cases, as I shall presently show, the assets may be marshalled. Where money by a marriage agreement is articled to be in- vested in land and settled, such fund should he hound by the ar- ticles, and not be assets, either at law or in equity, for payment of debts (f ). An estate in fee in our American plantations is subject to debts, and considered as a chattel till the creditors are satisfied, when the lands shall descend to the heir(5). By stat. 47 Gf. 3. s. 2. c. 74. it is enacted that a trader dying seised of, or entitled to, any estate, or interest in lands, tene- ments, hereditaments, or other real estate, which before the passing of the act would have been assets for the payment of liis debts due on any specialty in which the heirs were bound, the same should be assets to he-administered in courts of equi- ty, for the payment of all the just debts of such person, as well debts due on simple contracts, as on specialty ,• but specialty debts are to be first paid (•'). [417] By the stat. 5 6?. 2. c. 7. § 4. it is enacted that houses, lands, negroes, and otlier hereditaments, and real estates situ- ate within any of the British plantations in America belonging to any person indebted, shall be liable to and chargeable with all just debts, duties, and demands, of what nature or kind so- (^) off. ILx. 74. (h) The above stat. applies only to (f) I,eclimere v. Earl of Carlisle, 3 persons wlio were traders at the time P. Wnis. 217. of their decease; and not to persons (g) U Vin. Abr. 223. Noel v. Robin- who have left off trade before they son, 2 Ventr. 358. Blankardtt. Galdy, died.— Hitchon v. Bennett, 4 Madd. 4 Mod. 226, 4 Burn. Eccl. L. 195. Rep. 180. Manning' v. Spooner, 3 Ves. jun. 118. CHAP. VIII.] OF MARSHALLING ASSETS. 417 ever, owing by any such person to his Majesty, or any of his subjects, and shall be assets for the satisfaction thereof in like manner as real estates are liable to the satisfaction of debts due by bond, or other specialty, and shall be subject to the like remedies, proceedings, and process in any court of law or equi- ty in any of such plantations respectively, for seizing, extend- ing, selling, or disposing of any such houses, lands, negroes, and otlier hereditaments and real estates, toward the satisfac- tion of any such debts, duties, and demands, and in like man- ner as personal estates in any of the said plantations respec- tively are seized, extended, sold, or disposed of for the satisfac- tion of debts. The marshalling of assets remains now to be considered. The personal assets of the testator shall in all cases be pri- marily applied in dischai'ge of his personal debts or general legacies, unless he exempt thein by express words or manifest intention ('); a declaration plain, or necessary inference, tanta- mount to express words (i<). [418] A devise of all the real estate, subject to the payment of debts, will not alone exonerate the personal estate; and even if the testator direct the real estate to be sold for the payment of debts, the personal estate shall be applied in exoneration of the real (') ; and it shall be thus applied, although the personal debt be secured by mortgage, and whether there be or be not (i) 1 P.Wms. 294, note 1. Heath v. 2 Fonbl. 290, note (0- Reade v. Heaih, 2 P Wms. 366. Walker v. Litcliiield, 3 Ves. jun. 475. Jackson, 1 VVils 24 S. C. 2 Atk 624. (") Bootle v. Blundell, 1 Meri. Rep. Bridgman v. Dove, 3 Atk. 202. Hasle- 193, and 19 Vez. 494. S. C. Greene v. wood t;. Pope, 3 P.Wms 324 1 Bro. Greene, 4 Madd, Rep, 148. Gittins P. C. 192 Bunb. 302. Lord Inchiquin r. Steele, 1 Swans. 24. Tower r Lord V. French, Anibl S2. S. C. 1 Wils 82. Rous, 18 Vez. 132. 1 Ser^. £jf R. 453. SamvvelUi. Wake, 1 Bro. Ch. Rep. 144. (') Fereyes r. Robertson, Bunb. 30L Duke of Ancaster v. Mayer, ib. 454. Bond v. Simmons, 3 Aik. 20. Hasle- Banifie!dv.Wyndham,Prec. inch. 101. wood r. Pope, 3 P. Wms. 322. 2 Eq. WainwrighlT). Bendlowes,2Vern.718. Ca. Abr. 493. 1 Serg. & Ji. 453. B.C. Amb 581. Webb r. Jones, 2 Bro. M'Loml v. Roberts £J al. 4 Hen. U Ch. Reg. 60. Vid. also 3 Bac. Abr. 85. Munf. 443. 3D 418 OF MARSHALLING ASSETS. [bOOK III. a bond or covenant for payment ('"). [1] So lands su!)ject to or devised for payment of debts shall be liable to discharge such moitgaged lands either descended or devised ("), and altliough the mortgaged lands be devised expressly subject to the encum- brance (°). S(» lands descended shall exonerate mortgaged lands devised (i*). So unencumbered lands and mortgaged lands, both being specifically devised, but expressly after payment of all debts, shall contribute to the discharge of the mortgage ('i) : In all these cases the debt is considered as the personal debt of the testator himself, and therefore a charge on the real estate merely collateral. But a diflTercnt rule prevails where the charge is on the real estate principally, and the personal security is only collatc- [419] ral (■■) : As where a husband on his marriage covenants to settle lands, and to raise a term of years out of them for se- curing portions, and also gives a bond for the performance of the covenant ; for in such case the landholder enters into such covenant relying on the land to enable him to discliargc it ; nor does the money raised increase the personal estate, but is to exonerate the rest of his real (*), So where the debt, although personal in its creation, was contracted originally by another(t): ("<) Cope V. Cope, 2 Salk. 449. Howel (i) Carter v. Barnardiston, 1 P. Wms, V. Price, 1 P. Wms. 291. Pockley v. -505. 2 Bro. P.C. 1. Pockley, 1 Vern. 36. 436, King v. (') Edwards v. Freeman, 2 P. Wms. Kin^, 3 P. Wms. 360. Galton v. Han- 437 664, in note. Ward v. Lord Dud- cock, 2 Atk. 436. Robinson v. Gee, ley and Ward, 2 Bro. Ch. Hep. 316. 1 Vez. 251. 6 Bro. P C. 520. Philips Leiiian v. Newnham, 1 Vez. 51. Lewis V. Philips, 2 Bro. Ch. Rep. 273. v. Mantjle, Ambl. 150. (■>) Bartholomew v. May, 1 Atk. 487. (') 2 Fonbl 292. noie b. Edwards v. March, of Twecdale v. Coverley, 1 Freeman, 2 P. Wms. 435. Bro. Ch. Rep. 240. (0 t^"Pe v. Cope, 2 Salk 449. Bagot (o) Serle v. St. Eloy, 2 P. Wms. 386. v. Oughton, 1 P. Wms. 347. Leman (p) Galton V. Hancock, 2 Atk. 424. i:;. Newnham, 1 Vez. 51. Robinson r. £1] Personal estate sliall not go, in case of mortgaged premises, so far as to defeat specific or ascertained pecuniary legacies; an hxrim Jactns stands in this respect on the same footing with a.\-i h.erns 7ialtis, Ruston w. Jtfintovy 2 Dall. 243. S. C. 2 Yeates, 54. Olhcrwisc as to residuary legatees. Ihid. CHAP. VIII.] OF MARSHALLING ASSETS. 419 As where an estate is boiii^ht subject to a mortgage, the personal estate of the ])iii'chaser shall not be applied in exone- ration of the real estate, nnless he appeared to have intended to make the deht his own (") ; but a mere covenant for securing the debt will not be sullicicnt for that purpose (^). With respect to the priority of the ap]>lication of real assets, when the personal estate is either exempt or exhausted, it seonis, that first tlie real estate expressly devised for the purpose shall be applied ; secondly, to the extent of the specialty debts, the [420] real estate descended ; 3dly, the real estate specifically devised subject to a general charge of debts (^^). As it is the object of a court of equity, that every claimant on the assets of the deceased shall be satisfied, so far as that purpose can be effected by any arrangement consistent with the nature of the respective claims of creditors, it has been long set- tled, that where A, a creditor, has more than one fund to resort to, and B, another creditor, only one, A shall resort to that fund on which B has no lien {^). If therefore a specialty creditor whose debt is a lien on the real assets, receive satisfaction out of the personal assets, a simple contract creditor shall stand in the place of such specialty creditor against the real assets, so far as the latter shall iiave exhausted the personal assets in pay- ment of his debt(y). The same marshalling of assets may also take jdace in favour of legatees. As against assets descended, they shall have the Gee, ib. 251. Lacam v. Merlins, ib. ib. 152. Billinghurst v. Walker, ib. 312. Parsons ::;. Freeman, Ambl. 115. 604. 2 P Wms. 664, in note. Lawson v. (w) 1 P. Wms. 294, note 1. Galton v. Hudson, 1 Bro. Ch. Uep. 58. Earl of Hancock, 2 Atk. 424 Doune w. Lewis, Tankerville v. Fawcel, 2 Bro. Ch. 2 Bro. Ch. Kep 257. 261, in note. 259, Rep. 57. TvvcdJle tv TwedcUe, ib. 101. in note. Manning v. Spooner, 3 Ves. 152. Billing-luirst t-. Walker, ib 604. jun 117. (») 2 Fonbl. 202, note b Pocldey v. (") 1 P. Wms. 679, note 1. Lanoy v, Pockley, 1 Vern. 36. 6 Bro P.C.520. Duke of Ailiol, 2 Atk. 446 Lacam v. Eillinghurst v. Walker, 2 Bro. Ch. Mertins, 1 Vez. 312. Mogg v. Hod- Rep. 608. ■ ges, 2 A^ez. 53. (^) Bagot V. Oughton, 1 P. Wms. 347. (y) 2 Ch- Ca. 4. Sagittary v. Hyde, Evelyn v. Evelyn, 2 P. Wms. 664. 1 Vern. 455. 1 Eq.Ca. Abr. 144. Wil- Forrester v. Lord Leigh, Ambl. 171. son v. Fielding, 2 Vern. 763 Galton Earl of Tankerville v. Favvcet, 2 Bro. v. Hancock, 2 Atk. 436. 3 Wooddes. Ch. Rep. '58, Tweddell v. Tweddell, 489. 420 OF MARSHALLING ASSETS. [bOOK III. same equity : Thus where lands are subjected to the payment of all debts, a legatee shall stand in the place of a simple contract creditor, who has been satisfied out of the personal assets C^). [421] So, where legacies by the will are charged on the re-^l es- tate, but not the legacies by the codicil ; the former shall resort to the real assets on a deficiency of such as are personal to pay the whole {^). So, although a specialty creditor may elect to have his debt out of the hands of the heir or of the devisee, yet, as we have seen, the heir or devisee shall in such case stand in the place of such creditor, and reimburse himself out of the per- sonal estate (»•). [2] («) Haslewood v. Pope, 3 P. Wms. 323. ley, 2 P. Wms. .620. (1) 3 Ch. Rep 83. Masters v. Masters, (b) Clifton v. Burt, 1 P. Wms. 680. 1 P. Wms. 422. Bligh'r;. EurlofDarn- [2] If a testator blend his real and personal estate in a general devise of the residue, the legacies are a charge upon the lands. Witman v. JVbrton, 6 Binn. 395. A will began as follows : " It is my will that my just debts and funeral ex- penses be fully paid and satisfied by my executors." The testator then be- queathed a legacy to A, " to be paid lier on the day of her marriage or arrival at lawful age, and meanwhile to be placed out at interest, from one year after my decease" another legacy to B, " to be paid her one year after my decease," and devised certain real estate to C, ancj a legacy of 100/. to be paid at lawful age ; but in case of his death unmarried, the devise and legacy to be void, *' and the whole to sink into my residuai-y estate ." concluding, " the rest and personal, whatsoever and wheresoever, I give to my brothers and sisters, their heirs and assigns, as tenants in common ; provided always that my sister M keep the whole in her possession during her widowhood." Held, that the tes- tator having blended his real and personal estate, the real estate was subjected to the burthen of the legacies, on a deficiency of personal estate. Tucker v. Ilassencleaver & al. 3 Yeates, 294. 2 Binn. Append 525. A, being seised of a tract of land, and having no personal estate, bequeathed several pecuniary legacies, and gave "all the rest and residue of his estate, real and personal," to his son B, wliom he appointed executor The legacies are a charge upon the land, and B takes nothing but what remains after the payment of the legacies. JVkhols v. Pontlethivaite, 2 Dall. 131. On a deficiency of personal assets to pay debts and legacies, the balance of the legacies is payable out of the real estate, before the residuary devisees can take. Case nf Oahford's Est. Orphan's Court, Philada. Dec 1820. MS. Whar- ton's Digest, 614 pi. 137. In New York, if the whole real estate be sold by order of the surrogate, the money becomes equitable assets, and is to be distributed pari passu, and not according- to the rule of the common law. Tappc7i v, Kaiiiy 12 Johns. Rtp. 120. CHAP. VIII.] OF MARSHALLING ASSETS. 421 But the principles of these rules will not admit of their being applied in aid of one claimant, so as to defeat another. And, therefore, a pecuniary legatee shall not stand in the place of a specialty creditor, as against lands devised, though he shall as against lands descended (•=). Yet such legatee shall stand in the place of a mortgagee, who has exhausted the personal as- sets, to be satisfied out of the mortgaged premises, though spe- cifically devised {^) ; for the application of the personal assets in case of the real estate mortgaged (^), does not take place to the defeating of any legacy, either specific or pecuniary (f). A legatee shall also stand in the place of a specialty creditor, who has exhausted the personalty, as against a residuary devisee of the real and personal estate, because he has only the rest and residue (s). Nor do any of the rules above mentioned subject any fund to a claim, to which it was not before liable, but only provide that the election of one claimant shall not prejudice the claims of the [422] others (h). Thus, where A, seised of freehold and copy- hold lands, mortgaged them in his lifetime, and died indebted by mortgage, and on several bonds, the specialty creditors urged the court in marshalling the assets to cast the wliole mort- gage upon the copyhold estate, in order that the specialty cre- ditors might have the benefit of the whole freehold estate : yet the court held, that as copyhold estates were not liable, either at law or in equity, to the testator's debts, farther than he sub- jected them to the same, the copyhold estate should bear its proportion with the freehold estate for payment of the mortgage, but should not be liable to make satisfaction for the specialty debts ('). But this case, as being quite anomalous and irrecon- cilable with all principle, has been lately overruled C'). (<:) Heme w. Meyrick, 1 P.Wms. 201. Gardiner, 2 P. Wms. 190. Rider v. Clifton V. Burt, 678. Haslewood v. Wager, 335. Pope, 3 P. Wms. 324. (?) Handby v. Roberts, Anibl. 129. ('f) Liilkins V. Leigh, Ca. Temp. Talb. (>>) Galton v. Hancock, 2 Atk. 438. 53- Forrester v. Lord Leigh, Ambl. Lacam v. Mertins, 1 Vez. 312. 171. (•) Robinson v.Tonge, cited 1 P. Wms, (e) Vid. Howel v. Price, 1 P. Wms. 679, note 1, and vid. supr. 411. and 2 294. Ves. 271. (f) Oneal v. Mead, 1 P.Wms. 693. (k) Aldrich w. Cooper, 8 Ves. jun. 382. Tipping x). Tipping, ib. 730. Davis t». See also Trimmer v, Bayne, 9^ Ves. 422 OF MAKSHALLING ASSETS. [bOOK III. Where a testator, having both freehold and copyhold estates, charges all his nal estate with payment of his debts, if he has surrendered the copyhold to the use of his will, the freeiiold and copyhold shall be applied rateably ; hut if he has not sur- rendered the copyhold, it shall not be applied until the freehold is exhausted ('). If a legacy be given out of a mixed fund of real and personal estate, payable at a future day, and the legatee die before the day of payment, it is dotibtful whether the court will marshal the assets, so as to turn such legacy on the personal estate : in which case it would be vested and transmissible ; but, as against the real estate, it would sink by the death of the legatee ('"). As against real assets descended, the wife shall stand in the place of specialty creditors for the amount of her parapher- [423] nalia (») ; but, whether she shall be so entitled as against real assets devised, seems to be a point unsettled ("), excepting in the case of a real estate cliarged with payment of debts in aid of the personal estate, in whicii the court deci-eed her para- phernalia to the wife, in prejudice of the charged estate (p). A coui't of equity will not marshal assets in favour of a cha- ritable bequest, so as to give it effect, out of the personal chat- tels, it being void so far as it touches any interest in land (i). Under a devise of real and personal estate in trust to pay debts and legacies, some of which were void under the stat. 9 Geo. 2. c. 36. as a charge of charity legacies ujion the real and leasehold estates and money on mortgage ; on a deficiency of assets the other legatees were preferred to the heir ('). jun. 209. And in Tomlinson v. Lad- (") 2 P. Wms. 554, note 1. Probert v. broke, at the Roll's sittings after Hil. Clifford, Ambl. 6. Incledon v North- T. 1809. Sir Wm. Cirant, M. U held cote, 3 Atk 438. 3 Bac. Abr. 87. Ld. clearly that the assets should be mar- Townshend v. Windham, 2 Vez. 7. shalled as against a copyhold estate. Vid. supr. 231. (r) Boyntun v. Boyntun, 1 Cox's Rep. 106. (^) Mogg V. Hodges, 2 Vez. 52. At- ("-) Prowse V. Abingdon, 1 Atk. 482. torney-General v. Tyndall, Ambl. 614. and Pearce v. Taylor, before Lord p^^^^^^ ^^ Blagden, ib. 704. HiUvard Thurlow, C. Trin. Vac. 1790. cited ^ ■ir.yXov, ib. 713. 3 Wooddes. 489. 1 P. Wms. 679, note 1. ^^^^ (^^ ^^^^ ^ Hodges, 1 Cox's ('')TippingT).Tipping, 1 P.Wms.729. Rep. 7. and other cases in the same Snelson v. Corbet, 3 Atk. 369. Gra- work, ham V. Londonderry, ib. 393. (r) Currie v. Pye, 17 Vcs. jun. 462. (1) Growcock -j. Smith, 2 Cox's Rep. 397. [424 ] CHAP. IX. OF A DEVASTAVIT. Havixg thus discussed what belongs to the discharge of an executor's duty, I am now to consider, what shall amount to such a violation or neglect of it as shall make him personally responsible. This species of misconduct is styled in law a devastavit ; that is, a wasting of the assets (»). And where an executrix in respect of her receipts as such, was considerably indebted to the estate, an annuity to which she was entitled under the will, was ordered, as it became due, to be applied in payment of such debt, and her solicitor was de- clared to have a lien for his taxed costs, upon any payment of the annuity to which she might be entitled, after payment of what was due to the estate (■»). An executor may incur this charge in a variety of modes, not only by plain and palpable acts of abuse, as giving away, embezzling, or consuming the property, without regard to debts or legacies ; but also by misapplying it in extravagant expenses in the funeral (*=) ; in the payment of debts out of their legal or- der, to the prejudice of such as are superior; or by an assent to, or payment of a legacy, when there is not a fund sufficient for ci'editors (''). So if the executor release or cancel a bond due to the testa- [425] tor, or deliver it to the obligor, this shall ciiarge him to the amount of the debt, whether in point of fact he received it or not (^). If he release a cause of action accrued in right of the testator, whether before or subsequently to tiie testator's death, this also will, generally speaking (^), be a devastavit (s). (=■) OflT. Ex. 157. 3 Bac. Abr. 77. Com. (?) Off. Ex. 71. 159. Chandler v. Dig. Admon. I. 1. 11 Yin. Abr. 306. Thompson, Hob. 266. And. 138. ('') Skinner v. Sweet, 3 Madd. Rep. Briglitman v. Knightley, Cro. Eliz. 244. 43. The People v. Fleas, 2 Johns. Cas. (t^) Vid. supr. 246. 376. Be Biemar v. Van JVag'enen, 7 (J) Off. Ex 158. Johns. Rep 404. Datues, &c. v. lioyl- («) Ibid 159. 1 Nels. Abr. 262. ston, 11 Mass. T. R. 337. (f) Sed vid. infr. 429. 425 OF A DEVASTAVIT. [bOOK III. If he submit to arbitration a debt, or any other demand he may be entitled to in right of the testator, and the arbitrator do not award him a recompense to the full value, this, as being his own voluntary act, shall bind him to answer the differ- ence (^'). If an executor take an obligation in his own name for a debt due by simple contract to the testator, he shall be equally chargeable as if he had received the money ; for the new security has extinguished the old right, and is quasi a pay- ment ('). If, in the chuiacter of an executor, he commence an action in which he has a right to recover, and afterwards agiee with tlie defendant to receive a specific sum at a future day as a compensation, and the party fail to pay it, the exe- cutor, in that case, is liable on a devastavit for the value Ci). Thus, where the executor of an obligee took in payment a bill of exchange drawn on a banker for the money, who ac- cepted the bill, and before payment failed ; on the executor's afterwards bringing an action on the bond, and this matter [426] being disclosed in evidence, it was held to be a pay- ment ('). So, if an executor pay money in discharge of an usurious bond, or any other usurious contract entered into by the testator, it shall involve him in the same consequences (f"). Such acts also of negligence and careless administration as tend to defeat the rights of creditors, or legatees, fall under the same denomination. As if the executor delay the pay- ment of a debt payable on demand with interest, and suffer judgment for principal and interest incurred after the testator's death ; unless he can show that the assets were insufficient to discharge the debt immediately ("), he shall be held guilty of a devastavit. If the execcutor lose any of the testator's chattels, he shall be responsible for their vaUie("). And in a case where the exe- (h) Off. Ex. n. 159, 160. Anon. 3 (•") Winchcombe v. Bp. of Winches- Leon. 51. ter, Hob. 167. Noy. 129. (i) Goring V. Goring, Yelv. 10. Nor- („) Seaman v. Everad, 2 Lev. 40. and den V Levit, 2 Lev. 189 Keilw. 52. see Hall v. Hallet, 1 Cox's Rep. 134. (^) Norden t-, Levit, 2 Lev. 189. 2 („) y-^ Goodfellow v. Burdiett, 2 Jon 88. S. C. Barker v. Talcot, 1 yern. 299. Jiut otherwise, if robbed. Vern 474 -r^ Furman v. Coe & al. 1 Caine^s Cas. (') 3 Bac. Abr. 78. in note. Et vid. -g 1 Vern. 474. CHAP. IX.] OP A DEVASTAVIT. 426 ciitor had lost a bond due to the testator, the Court of Chan- cery was inclined to charge liim with the debt : but directed only, that he should prosecute a suit instituted by him against the obligor, with effect, in order to recover the money on the bond, and respited judgment in the meantime (p). If the exe- cutor apply merely by an attorney to the obligor of a bond to pay the debt, but bring no action, he shall be charged with the [427] amount of it(i). He shall, in like manner, be person- ally answerable, if, by delaying to commence an action, he has enabled a creditor of a testator to avail himself of the statute of limitations ('). If an executor appoint an agent to collect the testator's ef- fects, and the agent embezzle them, it shall be a devastavit by the executor (*). If a term be assigned by an executor in trust, to attend an inheritance, it shall in equity follow all the estates created out of such inheritance, and all the incumbrances sub- sisting upon it(t); but as by such assignment tlio term ceases to be assets at law, the executor shall be responsible to the creditors for a devastavit ("). If an executor retain money in his hands for any length of time, which by application to the Court of Chancery, or by vesting in the funds, he might have made productive, he shall be charged witli interest upon it («^). If he permit rent to run in arrear, and it is lost through his neg- ligence, he will be charged with the amount so lost(^). If he lay out the assets on private secui'ities, all the benefit made thereby shall accrue to the estate, yet the executor shall answer ail the deficiency (y). And where an executor sold houses and applied part of the money in payment of debts, &c. and paid the rest into his bank- (P) Ibid. (w) 2 Fonbl. 2d edit. 184, note p. (1) 3 Bac. Abr. 60. Lowson v. Cope- Bird v. l.ockey, 2 Vern. 7'44 Perkins land, 2 Bro. Ch. Rep. 156. v. Baynton, 1 Bio. Ch. Rep. 375. Lit- (') Hayward v. Kinsey, 12 Mod. 573. tlehales v. Gascoyne, 3 Bro. Ch. Rep. 11 Vin. Abr. 309. 73. Franklin v. Frith, 433, et vid, («) Jenkins v. Plombe, 6 Mod. 93. ibid. 107. (f) Supr. 410. (X) Tebbs v. Carpenter, 1 Madd. Rep. (") Charlton v. Lowe, 3 P. Wms. 330. 290. Willoug-hby v. Willoughby, 1 Term (y) Adye t). Feuilleteau, 1 Cox's Rep Rep. 763. 24, 3 E 427 OF A DEVASTAVIT. [bOOK 111. ers, mixin!^ it with his o^vn money, instead of vesting the sarae in stork as directed hy tlie wili, and the bankers failed, he was held liable to pay the moi>ey to the legatees (^). If an executor sell tlie testator's goods at an undervalue, al- though it be an appraised value (=^) j or if he delay disposing of them, by which tiiey are injured, he is personally boun>) Jenkins -v. PlouiLe, 6 Mud. 181, \ id. also Cooper v. Douglas, 2 Bro. 182. Cli. R».p. 231. (') Ibid. {f) Urown v. Litton, 1 P. ■\Vms. 141. (<*) Jenkins v. Plumbe, 6 Mod. 181, ('■) Mafden v. Pursons, 1 Kdtn's Rep. 182. 145. (') Ibid. CHAP. IX.] OF A DEVASTAVIT. 428 in his \vill('). Nor will a power to lend money upon real or personal security, enable trustees to accommodate a trader wit!) a loan upon his bond (^). An executor has an honest dis- cretion to call in a debt bearing interest, if he conceive it to be [429] in hazard (|). If an executor merely give a receipt for so much due on a bond as he in fact receives, he shall not be charged with a devastavit for the residue ('"). Nor is a conver- sion of the goods of the testator to his own use a devastavit, if he pay debts of the testator to the value with his own money (n). Nor is he so liable if he pay a debt of an inferior nature out of his own purse to the amount of the testator's effects in his hands; for they remain equally liable to the claim of the superior credi- tor, and may equally be seized at his suit in execution in spe- cie, as the testator's property (<>). Nor, if the executor com- pound an action of trover for the goods of the testator, and take a bond for the money payable at a future day, does that act necessarily amount to a devastavit, as the money, for which the bond is taken, is assets immediately (p). But he shall be charg- ed, as we have seen (i), in case there be a failure in the pay- ment of it. If there be arrears of rent on a lease, and on the tenant's becoming insolvent, the executor release the arrears, and give liim a sum of money to quit possession ; in case he appear thus to have acted for the benefit of the estate, he shall be allowed both {'^). Nor is an executor, as we have seen ('), bound to plead the statute of limitations to an action commen- ced against him by a creditor of the testator. [1] (i) Wilkes V. Steward, Coop. Rep. 6. (">) Com. Dig. Admon. I. 2. Off. Ex. and 2 Cox's Uep. 1. 159. (") Langston v. Ollivant, Coop. Rep. (") Merchant v. Driver, 1 Saund. 207. nn Vid. supr. 238. (°) Wheallv V. Lane, 1 Saund. 218. (1) 2 Fonbl. 2d edit. 186, note q. (p) Norden'r. Levit, 2 Lev. 189. Newton v. Bennet, 1 Bro. Ch Rep. roth be chargeable. If it commenced subsequently to the maniage, the liusband is liable alone. If an executrix commit a devastavit, and afterwards marry, the husband, we have seen, as well as the wife, is responsible during the coverture ("). A devastavit by one executor shall not charge his compa- nion (^'') ^ and if there be several executors or administrators, each shall be liable only for what he receives (^), provided he hath not intentionally or otherwise contributed to the devasta- vit of the other (>'). But an executor administering, having once received money, assets of his testator, cannot discharge himself under the plea of plene administravit to an action by a bond-creditor of his tes- tator, by showing that he paid the money over to his co-execu- tor, even for the purpose of satisfying the bond-creditor who had applied for payment of such co-executor, if the co-executor afterwards misapplied the money by retaining it to satisfy his own simple contract debt {''■). Formerly, the executor of an executor could not be charged by a devastavit committed by the first executor, although to tlie prejudice of the king, for it was held to be a tort{^), and, therefore, to die with the party. But, by the stat. 4 & 5 W. (^ (') M'hltmarsh's B. L. 2d edit. 269. 3 Bro. Ch. Rep. 74. and vid. infr. (') Geary -y. Beaumont, 3 Meriv. 431. (*) Barnes, 440, (") Beynon v. GoUins, 2 Bro. Ch. Rep. (v) Vid. infr. 323. Vid. supr. 358, 359. (^ Crosse v. Smith, 7 East. 246. (■•■■-) Off. Ex. 161, 162. Dyer, 210. 3 (0 Tucke's Case, 3 Leon. 241. Bey- B:;c. Abr. 31. Litikhales v. Gascoyne, non -:;. GoUins, 2 Bro. Ch- Rep. 324. CHAP. IX.] OF A DEVASTAVIT. 430 J!f. c. 24. s. 12. an executor of an executor shall be liable on a devastavit committed by his testator, in the same manner as he would have been if living. [2] [2] A former judgment by default, and a ^eri facias returned 7iul!a bona, are conclusive evidence oi & devastavit . Piatt v. Smithes Adm'rs. 1 Johns. Cas. 276. The executor must defend himself in the first suit, or he will be pre- cluded from alleging' that he had not assets. Ibid. So, where there is a verdict for the plaintiff, on the plea ofplene administra- vit, the judgment, for all but the costs, is de bonis testatoris. If on such judg- ment a Ji. fa. issue, and no goods of the testator are shown, the sheriff must return a devastavit, which the defendant will be estopped by th^ verdict from denying. 4 Serg. & R. 396, A judgment against an executor or administrator as such, with a return on the execution " that he has removed out of the state," is not a sufficient evi- dence of a devastavit to ground an action on his bond against himself and sureties. Turner, &c. v. Chinn, &c. 1 Hen. & Munf. 33. And a second suit must be brought to establish a devastavit, before a suit can be brought on the administration bond. Gordon's Adm. v. The Justices of Frederic, 1 Munf Rep. 1. But a judgment against an executor or administrator as such, & fieri facias, and a return of nulla bona, will warrant an action against him alone, on his administration bond, without any previous suit suggesting a devastavit. Ibid. Expenses unnecessarily and imprudently incurred, by an executor or admi- nistrator, in prosecuting or defending lawsuits, ought not to be charged against the estate. JDrinkwater v. Drinknuater, 6 Mass. T. R. 620. After confessing judgment in an action for a devastavit, an executor cannot resort to a court of equity, on the ground of his having fully administered. JVorsham v. M'Kensie, 1 Hen. & Munf. 342. [ 431 ] CHAP. X. OF REMEDIES FOR AND AGAINST EXECUTORS AND ADMINIS- TRATORS, AT LAW AND IN EQUITY. Sect. I. Of remedies for executors and administrators at law. Before I conclude, it will be necessary to consider, first, what remedies, either at law or in equity, executors or adminis- trators are entitled to, in right of the deceased j and then, se- condly, what remedies may be had against them. In regard to the first of tliese points, the subject has been in a great measure anticipated by the discussion of the execu- tor's interest in the testator's chases in action (»), the existence of which necessarily supposes a remedy to give it elfect. From what has been already stated it appears, that the exe- cutor represents the testator in respect to all his personal con- tracts : therefore he may maintain such actions to enforce them as miglit have been maintained by the testator himself (t), [432] Thus an executor may have an action on a debt due to the testator by judgment, statute, recognizance, obligation, or other specialty (•=). So he is entitled to an action of debt sug- gesting a devastavit in the lifetime of his testator, on a judg- ment recovered by such testator against an executor ('^). So the executor of the assignee of a bail-bond shall have an ac- tion upon it (^). So an executor may maintain an action on a bond, though conditioned for the performance of an award (f ). He may also have an action on a covenant entered into with the testator to perform a personal thing (*?),• and even on a co- fa) Vid. siipr. 157. ('') Berwick v. Andrews, 1 Salk. 314. (b) 3 Bac. Abr. 59 91. Countess of Mod. Ca. 126. S. C. Ld. Raym. 971. Rutland v. Rutland, Cro. Eliz. 377. 1502. Vid. Erving v. Peters, 3 Term Latch. 167. Roll. Abr. 912. Off. Ex. Rep. 685. 65. (0 t^ort. 367. (=) Com. Dig. Admon. B. 13. Wooster (f) 2 Ventr. 349. V. Bishop, 2 Root's Rep. 230. (g) Latch. 168. CHAP. X.] OF REMEDIES FOR EXECUTORS AT LAW. 432 venant that touches the realty, as for assuring lands, if it were broken in the testator's lifetime ; and in such cases damages shall be recovered by the executor, although he be not expressly nam- ed (•>) ; for since the testator was entitled to an action of covenant for sucli breach, and to recover damages as the principal remedy, and not merely accessary, the law devolves such remedy on the executor ; but if waste be committed by the lessee in the lifetime of the lessor, after his death his heir can have no action for the waste, because he cannot recover treble damages; nor can the [433] executor have it, for he has no right to recover the j)lace wasted, the inheritance of which has descended to the heir (•). [1] The executor may also, in the right of the testator, maintain an action on simple contracts, in writing, or not in wiiting, either express or implied C^); and even on contracts for the benefit of a third person (•). He may likewise have an action for a i-elief due to the testator('"). And pursuant to the stat. 13 Ed. 1. fFest. 2. c. 23. an executor is entitled to an action of account on an ac- count with his testator("); but this species of remedy in the courts of law has fallen into disuse. lie may also, by the express provision of the stat. 4 Ed. 3. c. 7, have an action of trespass (h) Com. Dig-. Admon. B. 13. Cove- (■<) Com. Dig-. Admon. B 13. 3 Bac. nant. B. 1. 3 Bac Abr. 91. Lucy t». Abr. 59.92. Petrie t). Hannay, 3 Term Levington, 2 Lev 26 S. C Venlr. Rep. 660. 175. Off". Ex. 65. (1) Al. 1. C) Off Ex. 65. Com. Dig. Wasl. C. 3. ("") ^"-^ ^^- ^^'^- ^'- •'°''" ^ «'-^"^- 2 Inst. 305. '■'"^' ^'•°- ^''^- ^«3- (") Com. Dig. Admon. B. 13. [1] Where R granted and demised land to P, and to his heirs, executors, and administrators, for ever, reserving an annual rent, which P, for himself, his heirs, executors, and administrators, covenanted lo pay on tlie first da\ of May in each year, it was held, that the executors of R could recover from the executors of P, rent which accrued subsequently to the death of P, though the estate descended to tlie heir, and the executors or personal estate received no benefit fiom it. The llubiliiy rests on the ground of the express covenant. Van Renssalaer' s Ex''rs. v. Platiter's Ex^rs. 2 Johns. Cas. 17. But the executors of R cannot, in such case, recover for rent due after the death of R, the estate being in fee. Ihid. So an action of covenant may be obtained for rent accruing before the death of R, against tiie executors of P, though the land had passed by the act of law out of the liands of the lessee. Ibid. 433 OF REMEDIES FOR [bOOK 111. for the taking of the testator's goods : and although tlie statute speak only of the carrying away of goods, yet its operation is not confined to that specific trespass, which is named merely for an example; but it has been held, as we have seen(°), to comprehend other injuries to the testator's personal estate (p) : therefore on this statute, an action will lie for trespass with cattle on his leasehold premises (a) ; or for cutting corn, though growing on his freehold lands, and carrying it away at the [434] same time('-).[2] So by the like equity of this statute an executor may maintain an action of trover for the conversion of the testator's goods in his lifetime (') ; or, an action of debt on the stat. 2 & 3 Ed. 6. c. 13. for not setting out tithes due to the testator (^) ; or a quare impedit, in case he died within six months after the usurpation (") ; and, it seems, that under this statute an executor may maintain ejectment for an ouster oi the testator, although he were seised in fee, because in such case the executor may proceed in that form of action for damages only (^), in the same manner as a lessee where the lease expires pending the suit(^). By the common law an executor is entitled to an action of (°) Supr. 158. (0 HoU v. Bradford, 1 Sid. 88. Mor- (p) Com. Dig. Admon. B. 13. Semb. ton r Hopkins, 407. WilUams t.. Gary, J^ , j^gg "4 Mod. 404. Eves v. Mocals, 1 Salk. 314. Moreron's Case, 1 Ventr. 30. (<)).Off. Ex. 67, 68. OT, Au ni • / ^ ■' 3 Bac. Abr. 91, in note. (•) Emerson v. Emerson, 1 Ventr. 187. ^^^ gfl. ^^ gg, 67. Sav. 94. Latch. (s) Harris T). Vandridg-e, Moore, 400. i68. Noy. 87- Poph. 189. 4 Leon. 15. Countess of Rutland v. Rutland, Cro. (w) 3 jjac. Abr. 92. Moreron's Case, EHz. 377. Latch. 168. 1 Anders. 242. 1 Ventr. 30. Doe t^. Potter, 3 Term Russell's Case, 1 Leon. 193, 194. Rgp. 13. Moreron's Case, 1 Ventr. 50. Toivle (x) Dqq r,. potter, 3 Term Rep. 16. V. Lovett, 6 Mass. T. R. 294. arguendo. Co. Litt. 285. Stra 1056. [2] The stat. 4 EcI-m. 3. c. 7. is re-enacted in Vermont; and power is given to the executor or administrator to commence and maintain trespass quare dausum /regit, or ejectment, or any other proper action, to recover seizin or possession of any houses, lands, tenements, &c. on the right of the testator or intestate ; or to prosecute any such action commenced by his testator or intes- tate, to the use of the devisee, heir, or creditor, as the case may be. CHAP. X.] EXECUTORS AT LAW. 434 replevin for goods distrained in the testator's lifetime (y) ,• or to an action of detinue for any specific chattel j or to bring ejectment to recover land held for a term of years 5 for in those instances the thing itself is the ohject of the action, and the property continues in the plaintifF('^). [435] He may likewise avow for rent in arrear at the testa- tor's death, as incident to a reversion for years, which devolved upon him as executor (»). An executor shall also have an action against a sheriff for the escape of a party in execution on a judgment obtained by the testator, even where the escape happened in the tes- tator's lifetime (b). So he may have an action against the sheriff for not returning his writ, and paying money levied on 2l fieri facias {<'), or for a false return, stating that he had not levied the debt, when in truth he had {^). So the executor of a landlord may maintain an action against an officer for remov- ing goods taken in execution before the payment of a year's rent (^). So in the character of an executor he may have a writ of error (f). And it has been held, that he may have such writ to reverse the testator's attainder of high treason, inasmuch as the executor is privy to the judgment, and may be damnified by it 5 but, on the other hand, it has been insisted, that though the reversal restore the blood and land, it is of no avail to the executor, since the goods are forfeited by the conviction, and [436] not by the attainder (s). An executor is likewise entitled to remedies by action of deceit, by audita querelUf or identitate nominis {^), (y) Anindell v. Trevill, 1 Sid 82. (^ 1 Roll. Abr. 913- Spurstow v. Latch. 163. Oft^. Ex. 66. Gilb. L. of Prince, Cro Car. 297. Distr 3d edit. 156. (d) wilUarr.s v. Gary, 4 xMod. 4.04 S. C. (^) Latch. 168. Off Ex. 65. 1 yalk. 12. Comb. S. C. 322, 323 S. C. (») «om.l)ii? Disiress, A.2. 1 Roll. ' 1 Ld. Raym. 40 3 Fiac Abr. 98. Abr. 672. Waiikford tj. Wankford, 1 /-.v „ 1 \\t-au„„ c. nnn fe) Paierave v. vv indnani, Slia. 202. Salk. 302. 3U7 lluncomb v. Waller, „ 2 Show. 254. Fan Rensaaluer v. Plat- ^^^ ^^'-c\\ \6i ner. 2 Johns. Ca,. 17. (0 Ki"g v. Ayloif, 2 Salk. 295 pi. L (b) Com Dig-. Admon. B. 13. Spur- ^id. 4 !5l Con; 387. stow v'V-\w.Q, Cro Car. 297. I)>er, {}■) ...Mch. 167. Off. Ex. 71. 3 ^ac. 322. V d Berwick v. Andrews, Ld. Abr. 60, Kaym. 973. p, F 436 OF REMEDIES FOR [bOOK III. He may also sue in that character in a court of conscience ('). And by the stat. 11 Oeo. 2. c. 19. s. 15. above referred to(k), an executor of tenant for life, on whose death any lease deter- mined, shall in an action on the case recover of the lessee a just proportion of rent from the last day of payment to the death of such lessor. But an executor has no right to an action for an injury to the person of the testator j as for a battery, imprisonment, or the like(') : nor for a breach of promise of marriage, where no special damage is alleged (™) : nor for a prejudice to his free- hold ; as for felling his wood, or cutting and carrying away his grass ; for wood and grass growing are parcel of tl>e freeliold ("), and consequently in such case the heir, and not the executor, is the party injured. Yet, if the lord of a manor assess a fine on a copyholder for his admittance, and die, his executor may bring an action for it ; for it does not depend on the inheritance, but is like a fruit fallen ("). [437] The executor may also in right of the testator maintain actions, the cause of which accrued after the testator's death (p) ; as in case a bond given to the testator be forfeited after that event (q) ; or a personal covenant entered into with the testator be broken (j) ; or a debt on any other species of contract made with him become payable (') ; or his goods be taken (^) ; or tres- pass committed on his leasehold premises (") j in all these, and (i) Dougl. 246. (P) Com. Dig-. Pleader, 2 D. 1. Anon. (k) Supr. 208. 3 Leon. 212. (') Com. Dig. Admon. B. 18. Latch. ("5) 3 Bac. Abr. 93. 1 Roll. Abr. 602. 168, 169. 1 Anders. 243. Le Mason (') Off. Ex. 82. 11 Vin. Abr. 231. V. Dixon, Jon. 174. L. of Ni. Pri. 158. ('") Chamberlain v. Williamson, 2 («) King v. Stevenson, 1 Term Rep. Man. & Sel. 408 487. Munt v. Stokes, 4 Term Rep. (n) Emerson t;. Emerson, 1 Ventr. 187. 565. Com. Dig Pleader, 2 D. 1. 3 Le Mason v. Dixon, Jon. 174. OfF. Ex. Bac. Abr. 94. Reg. 140. 5 Co. 31 b. 67, 68. Jieesto7i's Ex^rs. v. Dorsey, 1 Smith v. Norfolk, Cro. Car. 225. Fre- Har. & M'/Ien. 224. vin v. Paynton, 1 Lev. 250. (o) 3 Bac. Abr. 92. Le Mason v. Dix- {') 4 Bac. Abr. 93, in note. 94. 1 Roll. on, Carth.90. Shuttleworth ■v. Garnet, Abr.602. Lane, 80. Jenkins f.Plombe, 3 Mod 239 S. C. 3 Lev. 261. S. C. 6 Mod. 92. Comb. 151. S. C. Show. 35. Evelyn (■■) Com. Dig. Admon. B. 13. Ofl'. Ex. V. Chichester, 3 Burr. 1717. accord. 70. CHAP. X.] EXECUTORS AT LAW. 437 the like instances, the executor, in his representative capacity, is entitled to a remedy by action. So, if the testator died possessed of a term for years in an advowson, it vests, as we have seen (j'), in his executor ; and therefore, in case of his being disturbed, he may maintain a quare impedit^^). So an executor may have an action of re- plevin for goods taken after the death of the testator (>). An executor may also avow for rent accrued due after that time, as incident to a reversion for years, which vested in him in that character (^). [438] If a defendant in execution on a judgment recovered by the testator, escape after the testator's death, the executor shall have an action against the sheriff for the escape (»),• as he shall also in case the defendant were in execution on a judg- ment recovered by him as executor (''). So a bail-bond may be assigned to the executor of a deceased plaintiff, and he may bring an action upon it (=) : or a bill of exchange may be indorsed to A as executor, and he may in that character maintain an action on the bill against the ac- ceptor (•*). And in like manner an executor may bring an ac- tion on any other contract made with him in his representative capacity (e). An executor may hold to bail on an affidavit of his belief of the existence of the debt, for the nature of his situation will not admit of his being more positive (f). Therefore, if an exe- cutor swear to the books of the testator, and that he believes them to contain a true account, and the debt to be still unpaid, it shall be sufficient (s?). But an affidavit by an executor, that the defendant was indebted to his testator in fifty pounds as (w) Vid. supr. 139. Bonafous v. Walker, 2 Term Rep. 128, C) Off. Ex. 36. (0 Fortes. 370. (y) Ibid. (d) King' v. Stevenson, 1 Term Rep. (z) Com. Dig. Admon. B. 9. Wank- 437. ford V. Wankford, 1 Salk. 302. 307. ^,^ ^^^ p;^ Pleader, 2 D. 1. Cro. 11 Vin. Abr. 204. Duncomb v. Wal- ^^^ gg^ ^^H ^^r. 602. 3 Bac Abr. ter, 2 Show. 254. Vid. supr. 434. „<, («) 3 Bac. Abr. 57. Off. Ex. 46. Godb. ^' , . . . . .^ \L ,rj Ac^i: (f) Mackenzie -J. Mackenzie, 1 Term 262. Vid. supr. 435. ^^ ., ,„< /K^ oi- u I u * 1 15 11 r>^.. Rep. 716. 3 Bac. Abr. 101. C") Slingsby v. Lambert, 1 Roll. Rep. ' 276. Wate v. Briggs, 1 Ld. Raym.35. (°) 1 Cromp. Prac. 40. 438 OF REMEDIES FOR [bOOK III. appears by the testator's books, was held defective, and com- mon bail ordered («>). And so was an affidavit by an executor of a debt due to his testator, «* as appears from a statement made from the testator's books, by an accountant employed by the deponent (')." [439] It is a general rule, that an executor, when plaintiff, shall pay no costs, either on a nonsuit, or verdict, for he sues in auter droit, and the law does not presume him to be suffi- ciently cognisant of the nature and foundation of the claims he has to assert ("<). Therefore, if an executor bring an action of trover on a conversion in the testator's lifetime, he shall not be liable to costs ('). Nor shall he be liable if the trover were in the testator's lifetime, and the conversion after his death ('"). Nor shall he pay costs in an action for a debt due to the testator in his lifetime (n). Nor in an action for a debt due on a contract made with the testator, which became payable after his death(°). Nor shall an executor be subject to costs on a writ of error on a judgment recovered against the testator (?) ; for, in all these instances, it is necessai-y for him to sue in his representative character, and expressly to name himself executor. But if he reside abroad and commence an action, the court will require him to give secuiity for costs, although he sue in the capacity of executor (i). Where a plaintiff sued as executor and was nonsuited, upon evidence given at the trial that the supposed testator was still alive : the Court of Kiiig's Bench refused to allow costs to the defendant, it appearing from affidavits on (h) 1 Cromp. Prac. 40. Walrond v. (') Cockerill v. Kynaston, 4 Term Fransham, Stra 1219. Rep. 277. (') RovvnevT'- Dean, 1 Price Rep. 402. (m) ibid. (k) 2 Bac. Abr. 46 3 Bac. Abr. 100. . . ^^.^^ Cro. Jac. 228. Anon. Yelv. 168. 1 < . „, ^^^ „ , „ Zt ^ , T,.„ n ♦! OQ1 (°) Anon. 1 Ventr. 92. 1 H. Bl. 528. Roll. Rep. 63. Gale w. Till, Carth. 281. \^ „.,„ ,.,o « .r, .. ». 1 o^.. o r. o I n^~ Portman r. Cane, 2 Ld Ruvm. 141.>. S. C. 4 Mod. 244. S. C. 3 Lev. 37d. ' • ^, . ,^,, „ „ o., S.C. Stra. 682. Vid. Cockerdl r. Ky- Skin. 400. Portman v. Came, Sti-a. - . ,^ ,. „^o „ ,., ^ Ann T- 1 u r> naston, 4 Term Rep. 2/ o. 682. 3 Bl. Com. 400. Tidd's Prac- ' *^ tlce, B. R. 894. FelhersiontJ Allybon, C'') Gale v. Till, 3 Lev. 375, Vid. Cro. Eliz. 503. 2 Buls<.261. Jenkins Cockerill v. Kynaston, 4 Term Rep. V. Plume, 1 Salk 207. Eaves v. Mo- 280. cato, ib. 314 Hawes v. Sannders, 3 (). Nor where he sues merely in auter droit is he subject to costs on a judgment, as in case of a nonsuit (e). Nor is it necessary for the executor or administrator of an attorney to deliver a bill of costs for business done by the de- ceased before the commencement of an action ; for the stat. 2 Geo. 2. c. 23. § 23. is confined to actions bi-ought by the attor- ney himself, and extends not to his personal representative (f). And the Court of Common Pleas will not suffer such a bill to be taxed (s). But in the Court of King's Bench the practice is different ; for there the bill may be referred to be taxed, on the defendant's undertaking to pay what is due (•»). Yet where an attorney delivered his bill, and after his death application was made to tax it, and above a sixth part was taken off; on motion that the executrix may pay the costs, the court held her not to be liable, since the act imposes them on the attorney or solicit- or only, and an executor is not to blame if he stand on the testator's bill, or make out one from his books (»). Where the plaintiff dies after final judgment, and before exe- [442] cution, his executor or administrator shall sue execution by scire facias i^). If after a fieri facias sued out the plaintiff die, the sheriff, deriving his authority from the writ, may levy the money, and may pay it to the executor ; or in case the plaintiff died intestate, it shall be brought into court, and re- main there until administration be committed, when the admi- nistrator, on producing the grant, shall receive it C^). So if under a fieri facias the goods are seized, and tlie plaintiff die before sale, and then the goods are sold, the executor or admi- ('!) Baynham w. Matthews, 2 Stra. 871. (•>) Tidd's Prac. B. R. 919. Gregg's Barnes, 133. Bennet v. Coker, 4 Burr. Case, 1 Salk. 89. Weston v Poole, 2 1927. Say. Costs. 96, 97- Phcenix v. Stra. 1056. Say. Costs. 324, 325. Imp. Hill, 3 Johns. Rep. 249. K. B 482- (e) Tidd's Prac. B. R. 694. Bennet v. ... ^. , ,, „ „ „ „,„ „,., ^ ^ „ ,„^ (') Tidd's Prac. B. R. 919. Wdson Coker, 4 Burr. 1928. Barnes, 130. ^ ^„ , „„^ ,__ „ ^. ^ „__ . ,. , „ „ „, ^„„ V. Poole, 2 Stra. 1056. Say. Costs. 327. Booth V. Holt, 2 H. Bl. 277. ,,, r, tv r- »• •,> o i * .,„„'„ , „,„ .„ , {'<)Cotn. Die'. Execution, E. 2 Inst. (f) Tidd's Prac. B. R. 919. 1 Barnard. \^ !' n u in^rt ; „ .^^ . , ^^r ^ Ti 295. See Tidd's Prac. B. R. 1056, K. B. 433. Andr. 276. Ca. Prac. Q 3 5g (x) Clerk v. Withers, 6 Mod. 297. (K) Tidd's Prac. B. R. 919. Barnes, ^oy. 73. Dyer, 76 b. Tidd's Prac. 119 l'^"? *^' 9o2j yoj. CHAP. X.] EXECUTORS AT LAW. 442 nistiator sliall have the money ; nor shall it he a sufficient re- turn to state that the ])laintifr is dead, for that is no abatement of the writ ('). At common law, the death of tlic plaintiff at any time before final judgment, abated the suit; but by stat. 17 Car. 2. c. 8, if either party die between verdict and judgment, his death shall not be alleged for error, so as the judgment be entered within two terms after the verdict ("'). In the construction of this statute, it has been holden, that the party's death before the assizes is not remedied ; but if he die after the assizes are commenced, although before the trial, that case is within the [443] act, for being remedial it shall be construed liberally ("). The judgment on this statute is entered as if the party were alive («), and it must be entered, or at least signed (p), within two tei-ms after the verdict. But there must be a scire facias to revive it, before execution can be taken out (i) ; and such scire facias, pursuing the form of the judgment, should be ge- neral, as on a judgment recovered by or against the party himself('). By a subsequent statute (*), if the plaintiff die after interlo- cutory, and before the final judgment, the action shall not abate, if such action might oiiginally have been sued by his executor or administrator; but the executor or administrator may have a scire facias against the defendant ; or, if he die after such interlocutory judgment, against his executor or ad- ministrator. And if the defendant, his executor or administra- tor, appear, and show no cause to arrest the final judgment, or on a scire facias, or two niJdls, make default, a writ of inquiry shall go, and being executed and returned, judgment final shall be given against the defendant, or against his executor or ad- (i) Clerk V. Withers, 6 Mod. 297. (°) Weston v. James, Salk 42. Cleve V. Vere, Cro. Car. 459. Harri- (p) 1 Sid. 385. Barnes, 261. son w. Bowden, 1 Sid. 29. 2Ld.Raym. (4) Earl v. Brown, 1 Wils. 302. 1073. (0 Colebeck v. Peck, 2 Ld. Raym. (™) Tidd's Prac. B. R. 842. 1052, 1053. 1280. (") Tidd's Prac. B. R. 842. Anon. 1 (') Stat. 8 &. 9 W. 3- c. 11. s. 6. Vid. Salk. 8. and vid. 2 Ld. Kaym. 1415. Com. Di^. Admon. (Ci.) and HollingB- in note. Jacobs v. Miniconi, 7 Term head's Case, 1 P. Wms. 744. Rep. 31 443 OF REMEDIES lOR [bOOK III. ministrator. This statute has been held not to extend to cuscs where the party dies before interlocutory judfi^ment, although it be after the expiration of the rule to plead (t). Where either party dies after interlocutory jud.^ment, and before the execution of the writ of inquiry, tlie scire facias on [444] this statute ought to be for tlic defendant, or his executor or administrator, to show cause why the damages should not be assessed, and recovered against him ("), and to hear the judgment of the court thereupon (^^). But where t!ie death hap|)ens after the writ of in(|uiry is executed, and before the return, the scire facias must be to show cause why the damages assessed by the jury should not be adjudged to the plaintiff' or his executor or administrator (''). The judgment on this statute is not entered for or against the party himself, as on the stat. 17 Car. 2, but for or against his executor or administrator (>). And where the defendant dies after interlocutory and before final judgment, two writs of scire facias must be sued out, before he can have execution j one before the final judgment is signed, in order to make the executor or administrator a party to the i-ecord ; t])e other after final judgment is signed, in oi-der to give him an oppor- tunity of pleading no assets, or any other matter of defence ; for it were unreasonable that the situation of the executor or administrator should be worse, where the party deceased died before the final judgment was signed, than it would have been if his death had been subsequent ('^). Whether an executor of a deceased partner must or can join [445] with the survivor in an action for goods carried away, or money had and received in the testator's lifetime, I have al- ready stated to have been a matter of some doubt ; but it seems now settled, that the latter must sue alone, as the remedy sur- vives, although there be no survivorship of the duty (»). Before the stat. 31 Geo. 3. c. 87, an infant of the age of se- venteen was capable of taking out probate, and therefore of (') Ticld's Prac. B. R. 1055. Wallop 243. and vid. Executors of Wright v. V. Irwin, 1 Wils. 315. Nutt, 1 Term Rep. 388- (o) Lil. Entr. 647- (>) Weston v. James, 1 Salk. 42. (w) Smith V. Harman, 6 Mod. 144. (^) Say. Hep 266. («) Goldswonhy v. Southcote, 1 Wils. (") Supr. 155, 156. 163. CHAP. X.] EXECUTORS AT LAW. 445 maintaining an action as executor ', but, during bis minority, he was obliged to sue by guardian, or prochein amij ; and could not sue by attorney. But as, by this statute, probate shall not be granted to hira till be shall have attained the full age of twenty-one years ; he cannot in his representative capacity sustain an action before that period. If a married woman be executrix, the husband cannot sue in right of the testator without the wife i^). An executor named dui'ing the minority of another, has the same right to bring actions as an absolute executor («=). [446] As executors, in their representation of the testator, make but one person, they must all join in the bringing of ac- tions in his right (. Bowles, (d) 3 Bac. Abr. 32. Off. Ex. 42. 95. Carth. 124. 100. Godolph. 134. (g) 3 Bac. Abr. 33. Price v. Pack- (=) Off. Ex.42. Com. Dig. Abatement, hurst, Cro. Car. 420. 2 Roll. Abr. 98. E. 13. Pleader, 2 D. 1. 9 Co, 2,7. Off. Ex. 98, 99. Swallow V. Emberson, 1 Lev. 161. (h) Anon. Cro. Eliz, 652. Co. Litt. 139. Vid. supr. 41. 45. 3 G 446 OF REMEDIES FOR [bOOK 111. live till judgment, can he sue out execution, because the recov- ery is in the name of the other executor alone (■). [1] [447] If a judgment be recovered by two executors, and the one prays a capias, and the other a Jieri facias ; it has been said the capias shall be awarded as most beneficial for the estate (k). By the stat. 25 E. 3. c. 5. the executor of an executor is put on the same footing, in regard to the bringing of actions, as an immediate executor ('). An executor de son tort is not entitled to bring any action in right of the deceased. As he comes in by wrong, he is lia- ble to all the trouble of an executorship, without any of its pri- vileges ("^). An administrator may, in right of his intestate, maintain actions in the same manner as an executor in right of his tes- tator (»). All special and limited administrators likewise may maintain actions in right of their respective intestates. And, indeed, the principle on which the ordinary has the power of granting such administrations, is, that there may be a person capable of recovering property belonging to the estate (»). [448] If an administrator durante minoritate bring an action and recover, and then his administration determine by the exe- cutoi's coming of age, such executor may have a scire facias on the judgment (p). So if such administrator obtain judgment, he may bring a scire facias against the bail, nor can they object that the exe- (i) Off. Ex. 105, 106. (n) Com. Dig. Admon. B. 13. Off. Ex C^) 3 Bac. Abr. 33, in note. Foster v. 259. Jackson, Hob. 61 Vid. Hudson v. (°) Walker v. Woolaston, 2 P. Wms, Hudson, 1 Atk. 460. 576. 6 Co. 67 b. 0) Vid. Off Ex. 257. Godb. 262. C) ^ ^^''- ^^^- ^^- ^ ^°"- ^^^- 888. ^ , „ . 889. Cro. Car. 127. Hatlon v Mascal, (■") 2 Bl Com 507 Walker t;. Wool- ,. ,q, r. i u . , ,. ^ ■' 1 Lev. 181. Coke v. Hodges, 1 Vern. aston, 2 P. Wms. 583. vid. supr. 366. „„ [1] If one of two executors direct an appeal, writ of error, or supersedeas, originally granted to them both, to be dismissed, the other may proceed with- out him ; and since botli are before the court, an order of severance may be made without a summons. Iteiio, Ex. v. Davis & Wife, 4 Hen. St Munf. 288- GHAP. X.] EXECUTORS AT LAW. 448 ciitor has attained the ai^e of twenty-one years ; for the recog- nizance is to the administrator himself by name (i). But it seems to be a question whether in such case he or the execu- tor shall sue out execution on the judgment {''). If there be several administrators, they must, like co-execu- tors, all join in an action («). An administrator de bonis non^ claiming by title paramount, could not at common law have a scire facias, or otherwise pro- ceed on a judgment recovered by an executor, or administra- tor (*) : But now if a judgment after verdict be recovered by an executor or administratoi-, in such case an administrator de bonis non is by stat. 17 Car. 2. c. 8. entitled to sue a scire facias, [449] and take out execution on such judgment. If the execu- tor or administrator die after suing out the writ of execution and before the return of it, the administrator de bonis now is, by the equity of that act, permitted to perfect the execution thus commenced, for the right is devolved upon him ("). And in such case, if the sheriff return a seizure of goods to the va- lue, but that they remain in his hands pro defectii einptorenif the administrator de bonis non may sue out a venditioni exponas^ or distringas nuper vice comitem ("'). If at the time of the execu- tor's or administrator's death, the money be levied, it shall be brought into court, and the administrator de bonis non, on pro- ducing the letters of administration, shall be entitled to receive it(^). But if an executor bring a scire /adas on a judgment, or recognizance, and get judgment quod habeat executionenu and die intestate, the administrator de botiis non must bring a scire facias on the final judgment, and cannot proceed in the judg- (q) 3 Bac. Abr. 18. Eubrin v. Manpes- Tidd's Prac. B. R. 1037. Grout, Adm. son, 2 Lev. 37. v. Chamberlain, 6 Mass. T. Ji. 611. (') Ibid. 2 Lev. 37. (") ^om. Dig. Admoii. G. Clerk v. Withers, 1 Salk. 322. S. C 6 Mod. («) Com. Dig. Abatement, E. 14, Pleader, 2 D. 10. 290. S. C. 2 Ld. Raym. 1072. Vid. 1 Sid. 29. (0 Com. Dig. Admon. G. Levet v. ^,,^ j,,^,.^ ^ Withers, 1 Salk. 323. S. Lewkenor, Moore, 4. Yate v. Goth. ^ g ^^^ 395 gg", 298,- 299. S. C, ib. 680. Cro. Jac. 4. 1 Roll. Abr. 890. ^ ^^ ^^^^^ ^^^^ Norgate v. Snape, Wm. Jones, 214. ^,^ j^j^'g j^,,^^ 399^ 300^ .^^ 2 Ld, Snape v. Norgate. Cro. Car. 167. j^^^.^ jq^^ 1076. 449 OF REMEDIES TOR [bOOK III. ment on the scire facias (y). The statute extends only to judg- ments after verdict (^). On any other judgment obtained by the executor or administrator, the administrator de bonis non shall not have a scire facias for want of privity, but must re- sort to his remedy at common law, by an action of debt de novo for the same demand, as administrator to the first testator or in- [450] testate (a). Yet even on ajudgmentby default, if the execu- tor or administrator sue out execution and die when the goods are in the hands of the sheriff, and consequently the writ is com- pletely executed, the administrator de bonis non shall have the money brought into court, and on showing the grant, it shall be paid over to him {^). Or if the judgment by default be for goods taken out of the executor's or administrator's own possession, his executor or administrator shall have a scire facias upon it, and account for them to the administrator de bonis non («=). In case a party died seised of a rent service, rent charge, rent ^eck, or fee farm, in fee simple, fee tail, or per auter vie in the lifetime of cestui que vie, the common law afforded no remedy to recover the arrears due at the time when the owner of such rents died. It was therefore enacted by the stat. 32 H. 8. c. 37("*), that the executors and administrators of tenants in fee, fee tail, or for life, of such rents, may have an action of debt for all such arrears, or may distrain for the same upon the lands chargeable, so long as they remain in the possession of the tenant who ought to have paid the rents ; or of any other person claiming under him by purchase, gift, or descent. The statute also provides, that a tenant per auter vie, his executors and administrators, may, after the death of cestui que vie, have [451] an action of debt, or may distrain for such arrears incur- red in the lifetime of cestui que vie. Before the passing of this act, the inconvenience did not exist to the same extent, in regard to the executor of tenant for his own life, or to the executor of tenant per auter vie after the (y) Tidd's Prac. B. R. 1058. Treviban Yelv. 33. 5 Co. 9 b. Grout v. Cham. V, Lawrencfe, 2 Ld. Rajm. 1049. berlain, 4 Muss. T.Ji. 611. (») Clerk V. Withers, 6 Mod. 296, 297. Q>) Clerk v. Withers, 6 Mod. 299, 300. (») See Com Dig Admon. G. Levet ('=) Yaites v. Gough, Yelv. 33. v.Lewkenor, Moore, 4. Yates T.Goug'h, (fi) Vid. 3 Bac. Abr. 91. 2 Bac. Abr. 680. Cro. Jac. 4. Yaites v. Gough, 282, in note. 4 Burn. Eccl. L. 268. GHAP. X.] EXECUTORS AT LAW. 451 death of cestui que vie : for by the common law an executor in either of those cases had a remedy, by action of debt, for the ar- rears of rent which had accrued in the lifetime of the testa- tor ('^). But it has been adjudged, that the statute, being reme- dial, applies to the executors of all tenants for life ; not merely to such executors as previously to the statute had no remedy whatever, but also to those who were entitled to an action of debt, to whom, therefore, it gives merely the additional remedy of distress (f). Yet, although the executors of all tenants for life be authorized by the statute to distrain for such arrears (e), it seems that rent reserved on a lease for years is not within its provisions, inasmuch as the landlord is not tenant in fee, fee tail, or for life, of such a rent ; and the executor of such tenants only are mentioned in the act C^). However, in tres- pass, where it appeared the defendant had distrained the plain- tiff's goods for rent due to his testator on a lease for years, Lee, C. J. held it to be comprehended by the statute, and the defendant obtained a verdict (»). Nor does the statute extend to the executor of the grantee of a rent-charge for a term of years, if he so long live {^) ; nor to copyhold rents, but only to rents out of free land ('). But the executor of an executor is held to be within the equi- ty of this statute (■"). An executor may also prove a debt due to the testator under a commission of bankruptcy ("). A commission was taken out by an executor before he had obtained probate. Probate was afterwards obtained on the 5th of March 1817, and the adjudication of the bankruptcy was on the 8th of March following, and the commission was held va- lid (o). (^) Harg. Co. Lltt. 162, note 4. Gilb. M. 25 Geo. 2. L. of Distress, 3d edit. 33. (") L. of Ni. Pri. 5th edit. S7. (f) Harg. Co. Litt. 162 b. note. Hool (') 2 Bac Abr. 282, in note. Apple- V. Bell, 1 Ld. Raym. 172. Cro. Eliz. ton -j. Doily, Yelv. 135. Sed vid. Cartli . 322. L. of Ni. Pri. 5th edit. 55. Gilb. 91. L. of Distress, 3d edit. 33. Sed vid. (">) Off. Ex. 258. Cro. Car. 471. (") Ex parte English, 2 Bro. Ch. Rep, (g) Hool V. Bell, Ld. Raym. 172. 610. (h) L. of Ni. Pri. 5th edit. 57. Gilb. (°) Ex parte Paddy in re Drakely, 3 L. of Distress, 3d edit. 34. Madd. Rep. 241. and see Rogers *. (0 Powel V. Killick, at Westminster, James, 2 Marshall, 425. 452 OF REMEDIES FOR [bOOK III. In case a commisssion has been superseded, the executors of the party, against whom it issued, may take out a commis- sion for a debt due to him ; but if it has not been superseded, they have no such right ; for the debt having vested in his as- signees, the executors are incapable of being the petitioning creditors (p). Executors, in their representative character, may sign a bankrupt's certificate (i). And even where the bankrupt's fa- [453] ther, being principal creditor, chose himself S(de assignee, and dying intestate, the bankrupt, as his representative, chose himself assignee, and signed his own certificate, it was held regular ('■). But an executor, who has also a claim in his own right, cannot sign in both capacities (»). If a bankrupt's estate pay a clear dividend of ten shillings in the pound, and he obtain his certificate under the commis- sion, his representatives are entitled to the allowance (t). By the stat. 19 Geo. 2. c. 37. s. 4, it is enacted, that in case an assurer shall die, his executors or administrators may make re-assurance to the amount before by him assured, provided it be expressed in the policy to be a re-assurance : and thus a fund may be secured to satisfy the insured in case of a loss, without its falling on the estate of the deceased. In case of the death of a person insured against fire, the poli- cy of insurance and interest therein shall continue to his heir, executor, or administrator respectively, to whom the property insured shall belong, provided, before any new payment be made, such heir, executor, or administrator shall procure his right to be indorsed on the policy at the office, or the premium be paid in the name of the heir, executor, or administrator ("). (p) Ex parte Goodwin, 1 Atk. 100. (') Whitmarsh's B. L. 2d edit. 351. (q) Whitmarsh's B. L. 2d edit, 356. Ex parte Calcot, 1 Atk. 208, 209. 1 Atk. 85. S. C. 3 Atk. 814. (f) Ibid. Green, 260. (») Park on Insunince, 449. 5th edit. ^») Ex parte Sausmerez, 1 Atk. 85. CHAP. X.] EXECUTORS IN EQUITY. 454 [454] Sect. II. Of remedies for executors amd administrators in equity. An executor or administrator is also entitled to all the equit- able interests of the deceased, and may, in his representative capacity, enforce tliem in a court of equity ('»). Such interest vested in the testator shall vest in the executor, although he be not named : as if a legacy be given to A, and if he die under age, to B and C, or the survivor of them ; and first B die, then C, and lastly A die under age, the legacy shall be decreed to the executor of C, who survived B (''). Partners in trade are interested in the whole stock and ef- fects, not merely in that particular stock in being at the time of entering the partnership, but continue so through all its changes. In case of the death of one partner, his interest, as we have seen («=), at law vests in his representatives, and shall not survive to the other, although the legal remedy survive : In equity, the survivor is regarded as a trustee for them, on which footing the account shall be taken, nor any thing consi- [455] dered as his share till after it ; inasmuch as the property in the stock continues in such representatives : and they have a specific lien upon it, although the survivor should afterwards die, or become bankrupt (d). The representatives of a deceas- ed partner, or the assignees of a bankrupt partner, are not, strictly speaking, partners with the survivor, or the solvent partner 5 but, in either case, that community of interest still subsists, which is necessary till the aff"airs are wound up, and which requires that what was partnership property before, shall continue so for the purpose of distribution, according to the rights of the partners {^). If, pending a suit, the plaintiff die, his executor may con- tinue it by bill of revivor, and have the full benefit of the pro« ceedings (f). (») Vid. Com, Dig. Chancery, 2 E. 1. (=) Supr. 155, 156. 163. 3 G. 1. (»), or assumpsit for money had and received by the tes- tator to the plaintiff's use ('). So an action may be maintained by a gaoler against an executor for provisions found for the testator in prison Q") : Or against the executor of a sheriff, who levied money on a Jieri facias^ and died before he paid it (») : Or, as it seems, against an executor on a collateral promise by the testator ("'), as where he promised to give A a sum of money in consideration that he would marry B. In short, in ail rases where the cause of action is money due, or a contract to be performed, gain or acquisition of the testator (») 3 Bac. Abr. 95. Off. Ex. 117, 118. Salk. 309. S. C. Ld. Raym. 553. Cro. Car. 187. Morgan v. Greene, («) Com, Dig. Admon. B. 14. Noy. Jon. 223. Howse v. Webster, Yelv. 43, 44. 103 Dyer, 23. C*) Com. Dig. Admon. B. 14. (b) Com! Dig. Admon. E. 14. Off. Ex. (') 9 Co. 89 b. 10 Co. 77 b, Cro. Car. 118. 294. Plowd. 182. (c) Dyer, 322. (") 9 Co. 87 b. {^) Com. Dig. Admon. B. 14. Off. Ex. (') Com. Dig Admon. B. 14. 1 Roll. 118. Abr. 9.11. Jon. 430. Mar. 13. (e) Billingimrst v. Speerman, Saik. ("•) Com. Di^. Admon B. 14. 1 Roll. 297. Sti. 387. 406. Com. Dig. Cove- Rep. 14. Cro. Jac. 404. 3 Bui 2. 6, nant. C. 1. Sti. 158. 0\v. 5&y 57. Palm. 329. Jon. (0 Tilncy v. Norris, Carth. 519. S. C. 16- 460 OF REMEDIES [BOOK III. by the work and labour or property of another, or a promise of the testator, impress or implied; the action survives against the executor. But where the cause of action is a tortf or arises ex delicto supposed to be by force and against the king's peace, there the action dies, as battery, false imprisonment, trespass, slander, nuisance, diverting a watercourse, escape, or on a penal statute, and many other cases of the like kind (»). [461] Such are the species of actions which survive against an executor, or die with the person on account of the cause of action. But there are other species of actions, which survive or die in respect of the form. In some actions the defendant could have waged his law, as in debt on a simple contract, and therefore no action in that form lies against an executor ; but now other actions are sub- stituted in their room, on the very same cause, which survive, and may be maintained against him. No action, where in form the declaration must be, quare vi et armis, et contra pacem, or where the plea must be, that the testator was not guilty, will lie against an executor. On the face of the record the cause of action arises ex delicto, and all private criminal injuries, or wrongs, as well as all pub- lic crimes, are buried with the offender. But in most, if not in all the <'ases, another action may be brought, which will answer the purpose. An action on the custom of the realm, against a common carrier, is for a tort and supposed crime ; the plea is not guilty, and tlierefore an action will not lie against an executor ; but assuvipsit, which is another action for the same cause, is maintainable. So if a man take a horse from another, and bring him back again, [462] an action of trespass will not lie against the executor, though it would have lain against the party himself. But an action for the use and hire of the horse will lie against the ex- ecutor (°). Nor is the executor chargeable for the injury done by his testator in cutting down another man's trees; but for the benefit arising to the testator from the value or sale of the (n) Com. Dig. Admon. B. 15. Off. Ex. Pitkiji, 1 Hoot's Rep 216. 127, 128, 3 Bl. Com. 302. Ilambly (o) i^i^^, Cowp. 375. V. Trott, Cowp. o75. M'Evcrs v. • CHAP. X.] AGAINST EXECUTORS AT LAW. 463 trees, he may be called upon to answer (p). Nor will trover lie against an executor for a conversion by his testator; for in that case the form of tlie plea is, that the testator was not guil- ty, and the issue is to try the guilt of the testator: But if the testator sold the property in his lifetime, his executor shall be charged in an action for money had and received by the testa- tor to the plaintiff's use. The fundamental distinction, then, is this : If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer; as for example, beating or imprisoning a man, there the person injured has only a reparation for the delictum in damages to be assessed by a jury, and therefore the executor is not liable : But where, besides the crime, property is acquired which benefits the testator, there an action for the value of tlVe property shall survive against the representativc(i). The executor is also liable on contracts of the testator, al- [463] though the cause of action accrue not till after his death ; as on a bond which becomes due, or a note payable subsequent- ly to that event (j). The liability of an executor to the payment of rent incurred after the testator's death, has been already considered («). In the cases which I have been enumerating, the executor shall be liable only to the amount of the assets ('). The judg- ment against him is for the debt or damages, to be levied of the goods and chattels of the testator in the hands of the de- fendant, if he have so much thereof in his hands to be adminis- tered (u). But there are cases in which he shall be pei-sonally responsible, de honU propriis; as if he commit any of those acts which constitute a devastavit, on its being duly substantiated, he must answer out of his own estate for the value of what he has wasted (x). An executor may also make himself chargeable in his private capacity to the plaintiff's demand, by pleading a plea the falsehood of which lies in his own knowledge, and (p) Hambly v. Trott, Cowp. 376. («) Vld. Tidd's Prac. B. R. 941. and (q) Ibid. Cowp. 376, :i77. infr. (r) Com Dig. Pleader. 2 D. 2. (x) Com. Dig. Admon. I. 3. 3 Bac (') Vid. supr. 278. et seq. ^^br. 77. Off. Ex. 157. 164. (0 9 Co. 8S b. 463 OF REMEDIES [bOOK III. which, if true, would be a perpetual bar to the actioii(>^); there- fore, if an executor plead nc unques executor^ that he never was executor (^), or plead a release made to himself (^), and it is found against him ; the judgment shall be in the alternative, [464] de bonis testatoreSf et si non, de bonis propriis. An execu- tor may also make himself personally liable by his promise to pay a debt of the testator, or answer damages out ol his own estate ; but, pursuant to the statute of frauds, such promise, or some note or memorandum thereof must be in writing, and signed by him, or some other person by his authority (*>). There must also be a sufficient consideration to support the promise : It must be alleged and proved, that assets were come to his hands; or that in consideration the creditor would for- bear to sue him, he promised to pay the debt(«). [1] Or an admission of assets must be implied from the nature of the pro- raise itself; as where tlie defendant owned the money lay ready (y) Off. Ex. 85. 3 Bac. Abr. 87. 1 ('') Vid. stat. 29 Car. 2. c. 3. s. 4. Roll. Abr. 93. Godolph. 98. 11 Vin. Hawkes v. Saunders, Cowp. 289. and Abr. 388. Howard v. Jemmet, 1 Bl. Rann v. Hughes, 7 Bro. P. C 551. Rep. 400 (") Trevinian v. Howell, Cro. Eliz. 91. (^) 1 Roll. Abr. 930. 933. ^^ech v. Kennegal, 1 Ves. 125. Hawkes v. Saunders, Cowp. 293. Rann (=•) Cro. Jac. 671, 672. V. Hughes, 7 Bro. P.C 551. [1] In Pennsylvania, assumpsit for money had and received will lie against an executor personally, to recover a distributive share of the personal estate of the testator, undisposed of by the will. Wilson v. Wilsofi, 3 Rinn, 557. But an action for money had and received does not lie, by an administrator de bonis non, against the administrator of an executor, to recover the undis- posed surplus. Allen W al. v. Iriuin & at 1 Serg. & R. 549. It seems, a cre- ditor or legatee of the testator may maintain an action against such adminis- trator of the executor. Ibid. Where A, the administrator of B deceased, gave a promissory note to C, by which he "promised to pay C 61 dolls. 72 cts. for value received by B and his heirs, on demand, with interest until paid," the note was held to be void foi* want of consideration. Ten Eyck v. Vanderpool, 8 Jolms. Rep. 120. If the creditor of a decedent take a bond from an executor or administrator, he discharges tlie debt. The calling himself executor or administrator in the bond is surplusage, and he is chargeable only in his own right. The plaintiff, on a judgment against the administrator on such bond, cannot take the estate of the intestate in execution. Geyer v. Smith, 1 Dall. 347. n. CHAP. X.] AGAINST EXECUTORS AT LAW. 464 for the plaintiff whenever he would call for it («') : and where executors gave a note to a creditor whereby they promised " as executors" to pay, &c. with interest («). In all these cases the executor shall be liable to the same species of judgment. For- bearance to sue, although the remedy be only in equity, is a sufficient consideration (f). But, in case there be no assets, a promise by an executor to pay a debt of the testator is nudum pact2im {s). And on a plea of plene administravity proof of an admission by the executor that the debt was just, and should be jiaid as soon as he could, is not evidence to chaige him with assets (s). Nor shall an executor's paying interest on a bond due from the testator be considered as an admission of assets for the prin- [465] cipal (''). Nor shall an executor's merely submitting to an award amount to an admission of assets (■). But if the exe- cutor bind himself by a personal engagement to perform the award ; or if his submission to arbitration be a reference, not only to the cause of action, but also of tlie question, whether he lias or has not assets, and the arbitrator award the executor to pay the amount of the plaintiff's demand, it is equivalent to de- termine, as between the parties, thai the executor had assets to pay the debt. The defendant therefore is concluded by the award, although it will not operate as an admission of assets in any other litigation, and he may be attached for non-pay- ment (k). According to a modern decision, an action may be maintain- ed in a court of common law against an executor, in that cha- racter, on his express promise to pay a legacy in consideration of assets (') . And in another case it was also ruled that on the (<>) Camden v. Turner, cited Cowp. (h) Pearson v. Henry, 5 Term Rep. 8. 293 (i) Ibid. 5 Term Rep. 6. Hoare v. («) Childs V. Monins, 2 Brod. & Bing. Mulloij, 2 Yeates, 161. ^^^ Q") Barry v. Rush, 1 Term Rep. 691. (f) 3 Bac A.br 90 1 Sid. 89. Scott „ „ ^ r^ n ., ^ ' Pearson v. Henry, 5 Term Rep. 7. V. Sieplieo-eon, 1 Lev. 71. 1 Roll. ,,r ... ^ „ t3„„i^.., -r t- n ' Worthniffton v. Barlow, 7 Term Rep, itep. -. ^^2. (?) Pearson v. Henry, 5 Term Rep. 8. (6) Hindsley v. Russell, 12 East, 232. ^'^ ^'^^' "■ "^"' ^°''^' ^^- 465 OF REMEDIES [bOOK III. same promise, grounded on the same consideration, an action will lie against an executor personally in his own right (*") [2] But this doctrine has been exploded by subsequent adjudica- tions. It is true, that in the case on which one of them was [466] founded, the executor had not, as in the two former in- stances, expressly promised to pay the legacy ; yet two of the three learned judges, ^^ho decided it, reasoned on general prin- ciples, and denied the jurisdiction of the courts of common law over the subject of legacy, without reference to any distinction between an express and an implied promise. They held, that policy and convenience forbad the courts of common law to en- tertain this species of action, since they can impose no terms on the party suing : Whereas courts of equity in such suits in- terfere in a manner highly beneficial to private families ; as on a bequest of a legacy to the wife, they require the husband to make an adequate settlement on her, as the condition of his re- covering it(''): But if he might resort to an action, the wife and children would, in a variety of instances, be left destitute of all provision. They also observed, that the only other prece- dent of such an action occurred in the time of the usurpation ; and the reason there assigned for allowing it, was to prevent a failure of justice, as the ecclesiastical courts were at that time abolished, and the court of chancery did not then take cogni- zance of legatory matters, and these principles have been ad- hered to in decisions still more recent. (°). Although an executor be entitled, as we have seen (P),to sue [467] in a court of conscience, he is not liable to be sued there. (•") Hawkes v. Saunders, Cowp. 289. Xi. Pri. Rep. 73. See 4 Bac. Abr. 446, Clark V. Herring, 5 Binn. 33. in note. Rawiinson v. Shaw, 3 Term (n) Vicl. Browne v. Elton, 3 P. Wms. Rep. 557. and Mayor of Southampton 202. and supr. 320, 321. t. Graves, 8 Term Rep. 593, (o) Decks V. Strutt, 5 Term Rep. 690. rp\ Supr. 436. Vid. also Parish v. Wilson, Peake's [2] If the executor promise to pay a legacy as soon as he can sell, 8ic., ac- tion at law lies. JlfJ^/eil & Wife v. Adm. of Quince, 2 Hayw. Rep. 153. In Pennsylvania, an action against the executor for a legacy is given by statute. The recovery of a legacy cannot be barred by the statute of limitations. Ward V. Reeder, 2 Har. & M'Hen. 154. CHAP. X.] AGAINST EXECUTORS AT LAW. 467 The legislature could not intend to give to such a court an au- thoiity to inquire intothe conduct of executors, and to take an account of assets (i). Executors and administrators shall not in general be held to bail, for they are not personally liable, but only in respect of the assets. [3] It were unreasonable to subject them to an ar- rest in their representative capacity ('). But they may be held to bail, if it appear that they have wasted the property ('). Yet a bare suggestion of a devastavit is not sufficient for that pur- pose without the oath of the plaintiff ('). So where on a judg- ment against an executor, execution is sued out, and the sheriff returns a devastavit, in an action to debt on the judgment the executor may be required to put in special bail ("). Where an executor has personally promised to pay, a debt, it seems he may be holden to bail on such promise (w). An executor defendant shall pay costs in case he plead a plea whic^ is false within his own knowledge. And the judgment for the costs is de bonis testatoris si, et si non, de bonis propriis (»). [468] So where a bankrupt who was sued as executor plead- ed a false plea, and it being found against him, the plaintiff had judgment for the covsts de bonis proj)riis, after which the defend- ant obtained his certificate, it was held that the judgment for the costs was not discharged by the certificate (y). But where (1) Stat. 14 G. 2. c. 10. Doug. 263. (") 3 Bac. Abr. 101. Dubray t^. Comb. Tidd's Prac. B. R. 873. 206. Boothsby r-. Butler, 1 Sid. 63. (0 3 Bac. Abr. 101. Cro. Jac. 350. C^) Mackenzie t». Mackenzie, 1 Term Hargrave v. Rogers, Yelv. 53. Sir ^^P- ' ^°' Henry Mildmay's Case, Cro. Car. 59. (") ^ Bac. Abr. 100. Tidd's Prac. Litt. Rep. 2. 1 Crompt. Prac. 29. ^- ^- ^'^^- ^^owd. 183. Hardr. 165. Cro. Eliz. 503. Hutt. 69. 79. Parr v. Newman, 4 Term Rep. 641. Bollard V. Spencer, 7 Term Rep. 359. (y) Tidd's Prac. B. R. 81, 82. 896. C) 3 Bac. Abr. 101. 1 Crompt. Prac. Howard v. Jemmet, 3 Burr. 1368. ^^^- S. C. 1 Bl. Rep. 400. (•) 1 Crompt. Prac. 29. Anon. 1 Lev. 39. Dupratt v. Testard, Carth. 264. Anon. 1 Mod. 16. [3] In Pennsylvania, an executor may be proceeded against by capias, to compel an appearance. Penrose v- Penroie SJ al. cited 2 Cinn. 440. 5 r 468 OF REMEDIES [bOOK III. • an executor pleads plene administravil, and the plaintiff admit- ting the truth of the plea, takes judgtnc^nt of assets infuturOf the defendant is not liahle to costs {^). Nor, as it seems, is he so liable where he pleads plene administravit prcetcr^ and the plaintiff admitting the truth of the i)lca, takes judgnient of the assets admitted in part, and for the residue of assets infuturo (»). So where an executor pleads several pleas to tlie whole declara- tion, as non assumpsit, ne unques executor, and plene adminis- travit, and one of them ik found for him, he is entitled to the postea and costs, although the other plea he found against liim (»>). But if the plainjiff take judgment of assets infuturo on the plea oi' plene admimstravit, and go to trial on the plea of non assumpsit, he will byentitled to costs, if he obtain a ver- dict ; and, therefore, in/such case, unless the defendant have a good ground of defence on non assumpit, it is usual for him to move to withdraw his plea, which the court will permit him to do on payment of costs ('). An executor defendant shall have costs in case of a judgment in his favour (^). [4] [469] If the defendant die after final judgment, and before execution, the plaintiff shall sue out the same by Jieri facias against the personal representatives (<"). But a. fieri facias, if (z) Tidd's Prac. B. R. 896. Imp. Prac . t. Grlmp, 2 Bl. Rep. 1275. Hindsley B. R. 428. V. Russell, 12 East, 232. (») See Rast. Ent. 323. 8 Co. 134. ('') 3 Bac. Abr. 100. Noel V. Nelson, 2 Saund. 226. S. C. (^) Com. Dig. Execution, (F.) Pleader, Sid. 448. 3 L. 7. Dy. 76 b. Tidd's Prac. B. R. (•>) Edwards v. Bethee, 1 Barn. & 1056. Heapy v. Parris, 6 Term Rep. Aid. 254. 268. Bragner v. Langmead, 7 Term (<=) Tidd's Prac. B. R. 896, 897. Dearne Rep. 24. [43 An executor, who qualified under a will which was admitted to probate, though it was afterwards litigated, and a second will established, and who did not refuse to give security as required by the Act of 1791, is to be allowed for payments made by him pendente lite, for the costs and expenses of the litiga- tion, and his commissions. Bradford v. Boudinot, C. C. Oct. 1811. MS. Rep. If the defence made by an administrator be for the promotion of his own private interest, he cannot llirow the costs on the estate of the intestate Hartzel v. Brown, 5 Binn. 138. CHAP. X.] AGAINST EXECUTORS AT LAW, 469 tested before the defendant's death, although not delivered to the sheriff till after it, may without a scire facias be executed on his goods in the hands of his executor or administrator (f). And, as we have seen, (s), a judgment signed at any time dur- ing tlie term, or the vacation next following, relates back to the first day of the term, altbough the defendant died before the judgment was actually signed ; and an execution tested the first day of the term may be taken out upon it against the goods (t»). A judgment recovered against an executor or administrator, is, as we have seen ('), usually for the debt or damages and costs, to be levied of the goods and chattels of the testator or intes- tate in the hands of the defendant, if he hath so much thereof in his hands to be administered ; and if he hath not, then the costs to be levied of his own proper goods (^). In such case the course is for the plaintiff to sue out a scire facias lie bonis testatoris, ^c. et si non, de bonis propriis, according to the judg- ment (>), upon which the sheriff returns either nulla bona gene- [470] rally, or milla bona, and a devastavit by the defendant (">). On the former return, the plaintiff must proceed by scire fieri inquiry ("), or by action of debt on the judgment suggesting a devastavit. On the latter he may have execution immediately against the defendant by capias ad satisfaciendum, or feri fa- cias de bonis propriis {"). So, on a devastavit returned, a writ of elegit will lie against an executor or administrator (p). On execution against an executor or administrator in case of the defendant's death before final judgment, I have already treated ('i). If the plaintiff confess the plea o^ plene administravit, or plene administravit proiter, there shall be judgment in his favour for (f)Coin. Dig. Execution, D. 2. F. Semb. (') Gibson v. Brook, Cro. Eliz. 886. Anon. 2 Ventr. 218. R. Skin. 257. ('") Thes. Brev. 116, 117. (g) Siipr. 266. (") Lil. Ent. 664. (>>) Bragner v. Lang-mead, 7 Term (<')Ti(id's Prac. B.R. 942. Thes. Brev. Rep. 20. 46,47. 122. 125. (i) Supr. 463. (P) Tldd's Prac. B. R. 957. 1 Crompt, (k) Tidd's Prac. B. R..941. Parr v. Prac 346. 2 Leon. 183. Newman, 4 Term Rep. 648. Bollard (s) Supr. 443, 444. w. Spencer, 7 Term Rep. 359. 470 O*' REMEDIES [bOOK III. the debt or damages, and costs, to be levied, as to the whole or in part, of the goods of tlie testator or intestate which shall af- terwards come to the hands of the defendant to be administer- ed. And such judgment is styled a judgment of assets quando acciderint; but in that case execution cannot be had until the defendant shall have goods of the deceased, when the plaintiff may either sue out a scire facias^ or bring an action of debt on the judgment suggesting a devastavit ('). [5] [471] Before the stat. 38 Geo. 3. c. 87. an infant executor, after he had attained the age of seventeen, might have been sued ; in which case he was to appear by guardian, and not by attorney, when the same judgment might have been recovered against him as against any other executor {') ; but in conse- quence of that act, till he comes of age he is neither capable of suing, nor liable to be sued. A limited executor is also subject to be sued during the con- tinuance of his office (t). In an action against a married woman executrix, the husband must be joined ("). On a judgment against husband and wife executrix, if slie survive, an action of debt does not lie suggest- ing a devastavit by the husband ; for, although, in case she married after the testator's death, she is answerable for the wasting by the husband (^^), yet she shall not be charged de bonis propriis for tlie costs recovered against him ("). (') Tidd's Prac. B. R. 1038, 1039. 287, 288. Poph. 130. Cro. Jac. 420. 1041. 8 Co. 134. and vid. Dorchester Westcott v. Cottle, 1 Roll. Rep. 380. V. Webb, Cro. Car. 372. Sed vid. Noel (t) yid. Off. Ex. 215, 216. V. Nelson, 2 Saund. 226. 1 Sid. 448. ^,.j ^^^^ j^;^ Admon. D. Off. Ex. Noel V. Nelson, 1 Lev. 286. Noel v. jos. 207. 3 Bac. Abr. 9. Nelson, 1 Ventr. 94, 95. 2 Keb. 606. „ „ 621. 631. 666. 671. Hob. 199. Gill .. (^) ^'^- ^"P''- ^'^' ^'^■ Scrivens, 7 Term Rep. 29. (") Com. Dig. Admon. I. 3. Horsy v. (s) 3 Bac. Abr. 9. 618. 1 Roll. Abr. Daniel, 2 Lev. 161. [5] On the plea of no assets, the practice of Pennsylvania is, for the jury to find for the defendant, and for the plaintiff to pray judgment de terris, &c. and of assets quando acciderint, which is entered as a matter of course. Wilson v. Hurst's Ex. 1 Peter.?' Rep. 442, in note. CHAP. X.] AGAINST tXECUTORS AT LAW. 4^1 If there be several executors, they must be all sued (y), in case they have all administered. But such as have not admi- nistered may be omitted {^) : for although executors themselves must be conscious how many are named by the will, and must, [472] as we have seen, frame their action accordingly, yet creditors and strangers are bound to take notice of such exe- cutors only as in fact execute the oflice. If one oidy confess a judgment, it seems now settled that it shall not bind nor con- clude the rest(*). If they plead distinct pleas, it is said that shall be received which is best for the estate, or most decisive of the question (^). Of co-executors, if some are of full age, and others infants, the action may be against them all ; but the latter cannot appear with others by attorney, but must appear by guardian («=). It is clearly settled, that one executor shall not he charged with the devastavit of his companion, and shall be liable only to the extent of the assets which came to his hands ("^), if he has not in any manner contributed to the loss. The testator's having misplaced his confidence in one executor shall not ope- rate to the prejudice of the others (e). Nor shall one executor be affected by notice to the other, who conceals it from him, of the existence of a superior demand {^). But if there be notice to one executor, and nothing more appears, he shall, it seems, be presumed to have communicated it to tlie other (s), [473] All executor of an executor shall, as I have already mentioned, pursuant to the stat. 4 k 5 W. 8c M. o. 24. s. 12, be charged on a devastavit committed by his testator, in the same (y) 3 Bac. Abr. 32. Off. Ex. 95. (<>) 2 Bac. Abr. 31. Off. Ex. 161, 162. (2) 3 Bac. Abr. 33. Swallow v. Em- Godolph. 134. Hawkins t>. Day, Ambl. berson, 1 Lev. 161. S. C. 1 Sid. 242. 162. Shep. Touch. 496. Littlehales (a) Off. Ex. 68. Vid. supr. 359, 360. v. Gascoyne, 3 Bro. Ch. Kep. 74. (b) Off. Ex 98. 3 Bac. Abr. 33. Go- Supr. 430. dolph, 136. Hudson v. Hudson, 1 Atk. (e) Hargthorpe v. Milforth, Cro. Eli.'.. . 460. and vid. supr. 359, 360. 313^ (') 3 Bac. Abr. 13. 619. Smith v. ,,. , .^^, , , „ . . , ^ . , ,r 1 ,0^ o. , o,n , ^. () Littlehales v. Gascoyne, Ambl. Smith, Yelv. 130. Styl. 318. vid. Fit z- ^ ^ gerald v. Villiers, 3 Mod. 236. Freji* cobaldl V. Kinaslon, 2 Stra, 784, ^^^ ^^'^" 473 OF RlfiMEDIES [bOOK III. manlier as such testator would have been, if living (''). But ah though, as we have seen ('), an action of debt may be main- tained by A, an executor, suggesting a devastavit in the life- time of his testator, on a judgment .ecovered by such testator against B, also an executor; yet in such case it seems, as against B's executor, a scire facias is requisite, inasmuch as he was not privy to the judgment C^). It is not enough for the executor of an executor sued for breach of covenant made by the original testator, to plead plem administravit of all the goods and chattels of the original tes- tator at the time of his death come to the hands of the defend- ant, &c. without also pleading plene administravit by the first executor; or at least that he, the second executor, had^ no assets of the first ; so as to show that he had no fund out of which any devastavit by the first executor could be made good 0). An executor de son tort is liable to the action of the lawful executor or administrator, or to that of a creditor ; and, in the latter case, may be charged as executor generally ("^). If there be also a lawful executor, they may be joined in an action by a creditor or sued severally (") ; but it is otherwise if there be a lawful administrator ; he cannot be so joined with an executor de son tort (<>). If a creditor take out administration, he may recover his debt against him who before the grant was execu- tor de son tort^ as well as the goods of the intestate taken or converted previously to the same (p). And if a person act under a power of attorney from one of several executors, who has proved the will, although he cannot be charged as executor de son tort during the life of such executor, yet if he continue to act after the death of such executor, he may be charged as exe- (h) Vid. Com. Dig. Admon. I. 3. 3 (') Wells v. Fydell, 10 East, 315. Bac. Abr. 99. Off. Ex. 259. Holcomb („.) com. Dig. Admon. C. 1. Wh'ite- , V. Petit, 3 Mod. 113. Beynon v. Gol- j^^jj ^ Squire, Carth. 104. Off. Ex. lins, 2 Bro. Ch. Rep. 324. Vid. supr. j^-^ 5 ^o. 31. (") Off. Ex. 178. 430. (!) Supr. 431, 432. (k) Berwick v. Andrews, Salk. 314. (°) ^''''^• S. C. Ld, Raym. 971. (f) Com. Dig. Admon. C. 3. Sti. 384. CHAP. X.] AGAINST EXECUTORS AT LAW. 473 cutor de son tort, though he act under the advice of another of the executors who has not proved the will (i). [474] A party, as we have seen {'), may be an executor de son tort of a term, and is chargeable for waste committed by him on the demised premises (*). If an executoi- dc son tort be guilty of that, or any other species of devastavit, or plead ne unques executor, and it be found against him, he shall be charg- ed as anotiier executor de bonis propriis Q) : But in general cases he is liable only to the amount of the assets which come to his hands ("). By the stat. 30 Car. 2. c. 7, made perpetual by the stat. 4 & 5 W. ^'- M. c. 24, above referred to, the executor of an execu- tor in his own wrong is chargeable on a devastavit by his tes- tator, in the same manner as such testator would have been if living ('^). But it seems that an executor de son tort of an executor de son tort is not liable for a devastavit committed by such first executor, either at common law, or by either of the two last- mentioned statutes (''). "What has been stated in regard to actions against executors, is, in the main, applicable to administrators, whether general or limited. If an administrator durante minoritate continue in [475] the possession of the effects after the executor is come of age, he may be sued either by the executor or by a credi- tor (y). But if such administrator administer in part, and de- liver to the executor, on his coming of age, all the residue, he cannot be charged by a stranger (^). If before the exe- cutor attain the age of twenty-one, tlie administrator wasted the assets, he may be charged on the special matter by the executor (=») ; but subsequent to that period, he is not liable for the devastavit at the suit of a creditor. The creditor must re- (^) Cottle V. Aldricli, 4 Mau. & Sel. (") Com. Dig. Admon I. 3. Andr. 252- 175. 3 Bac. Abr. 100, in note. (') S"P''- 38. (y) Com. Dig. Admon. F. 1 Sid. 57. (») Mayor of Norwich v. Johnson, 3 j Anders 34. Lev. 35. Off. Ex. Suppl. 102. ,,„ ,• t • -.7^*11^^ 0) Off. Ex 157 ^'-^ Brooking v. Jeimmgs, 1 Mod. 174, (■^) Dyer, 166 b. note 11. ^^^' (^) Vid. Com. Dig. Admon. I. 3. (') ^^^^^^- ^^^- 475 OF REMEDIES [book 111. sort against the executor, who is entitled to his remedy against the administrator (•>). The executor of a deceased partner and the survivor cannot he jointly sued for a debt due from the partnership, because the former is to be charged de bonis testatoris, the latter de bonis propriis {") y but the creditor may proceed against either, who may claim from the other contribution. But if the executors of a deceased partner continue his share of the partnership property in trade for the benefit of his infant daughter, they are liable upon a bill drawn for the accommo- dation of thepartnersliip, and paid in discharge of a partnership debt, although their names are not added to the firm, but the trade is carried on by the other partners under the same firm as before, and the executors, when they divide the profit ajid loss of the trade, carry the same to tlie account of the infant, and take no part of the profits themselves ('^). By the stat. 8 Ann. c. 14(e), a lessor is empowered to distrain within six calendar months after a lease for life, or for years, or at will, is determined, provided his own title or interest, as well as the tenahc's possession, continue at the time of the [476] distress. In case a lessee die before the expiration of a term, and his executor continue in possession during the re- mainder and after the expiration of it, a distress may be taken for rent due for the whole term(f). An executor, it seems, is hound, provided he have assets, to maintain an apprentice till the term is expired ; for a distinc- tion exists between a covenant to maintain, and a covenant to instruct an apprentice : The former is a lien on the executor, although not named, in respect of the assets ; the latter is a fiduciary trust annexed to the person of the master (s). But justices of the peace have, generally speaking, no authority to (b) 3 Bac. Abr. 14. Latch. 267. 1 An- H. Bl. Rep. 465. ders. 34. 6 Co. 18 b. (8) Corn. Dig Justices of Peace, B. 57. (') ■HhII v. Huffam, 2 Lev. 228. 4 Bac. Abr. 579. 1 Burn. Just. 82. 1 ^d)\vigluman v.Townroe and others. Const's Bott's P. L. 524. Pi. 745. 1 Mau. & Sel. 412. Cro. Eliz. 553. Wadsworth v. Gye, (') Vid. Com. Dig. Distress, A. 2. 3 1 Sid. 216. Rex v. Peck, 1 Salk. 66. Bl. Com. 11. Baxter v. Burfield, Stra. 1266. Vid. ('") Braithwaite v. Cooksey & al. 1 supr. 152. 285. CHAP. X.] AGAINST EXECUTORS AT LAW. 476 order an executor to maintain an apprentice; for such a juris- diction would prevent his insisting, by a plea of plcnc adminis- travit, on a deficiency of assets as an exemption (''). By the custom of London, it is said, the executor is bound to put the apprentice to another master of the same trade ('). In respect to a parish apprentice, on whose binding no larger [477] sum than five pounds shall have been paid, some specific regulations are, in the event of the master's death, prescribed by the stat. 32 Geo. 3. c. 57, which enacts, that if the master of such an apprentice shall die during the term, the covenant in the indenture for his maintenance shall not continue in force longer than three calendar months after the death of such master, during which the apprentice shall continue to live with and serve the executors or administrators, or with such person as they shall appoint : And in all such parish indentures of apprenticeship there shall be annexed to the covenant for main- tejiance a proviso, that such covenant shall not continue longer than three calendar months after the death of the master ; but if such proviso be omitted, the covenant on the part of the master to maintain the apprentice shall continue only for three calendar months after his death, within which period two jus- tices of the peace where the master died shall, on the applica- tion of the widow of such master, or of any son, daughter, brother, or of any executor or administrator of the deceased, by indorsement on tlje indenture, direct the apprentice to serve another master for the remainder of his term. The statute also makes the same provisi«)ns for the death of any subsequent master. It then directs, that if no application be made to two justices within the three months, or if on application tiiey shall not think fit to continue such apprenticeship, the indentures shall be void. It further provides, that the act shall not extend to any parish apprentice not living with nor serving such ori- [478] ginal or subsequent master at the time of his death. And lastly it enacts, that ii" the oiiginal or any subsequent master, or the personal representative of such master, having assets, during the three months shall refuse or neglect to maintain and (h) Pett V. Inhab. of Wingfield, Garth. 66, 231. Rex 7^. Pett, Show. 405. 1 Salk. C) Per Holt, C. J. S. C. 1 Salk. 66. SK 478 OF REMEDIES [bOOK IH. provide for such apprentice accordins; to tlic form of such co- venant, two justices, on complaint of the apprentice, or the parish officers, may levy sufficient for the purpose by distress and sale of the effects or assets of such master. Executors and administrators are within the custom of fo- reign attachment ; and, therefore, if a plaint be entered in the court of the mayor or sheriff of London against an executor or administrator, the plaintiff may attach money or goods belong- ing to the deceased in the hands of another within the city {^). But a debt due to the deceased cannot be attached on a plaint against his personal representative, although he be sued under that description, unless he be sued for a debt due from the de- ceased ('). Nor shall there be an attachment for the debt of a testator of money or goods in the hands of the executor, unless they were due or belonging to the testator at the time of his death, although they be assets; as if an executor sell the goods of the testator, the money cannot be attached in his hands (■»). Nor, if he take a bond for a debt due to the testator, can the money payable on the bond be attached ("). Nor if an executor [479] recover damages in trespass for the testator's goods, or on a covenant made with him, can there be an attachment of the damages (°). Nor, if money be awarded to an executor on a submission by him of controversies between his testator and another person, can the money due by the award be attached (p). Nor can there be an attachment of a legacy ; for creditors have an interest in it, and they are incapable of being warned (n). Sect. IV. Of remedies against executors and administrators in equity. An executor or administrator is also, in his representative character, liable to all equitable demands, with regard to pcr- (i«) Com. Dig. Attachment, A. B. 3 (") S.C. 1 Ventr. 113. Bac. Abr. 258. 1 Roll. Abr. 105. vid. (o) ibid. 112. Dy. 196 b. Fisher v. Lane, 3 Wils. ^^^^^^^ ^ ^ ^^^^^ 297. S C. 2 Bl. Rep. 834. J^ ^^ 1 Lev. 306. (')Com Diet, .\ttacliment, D. Hodges n n T^r Q.- 0) 1 Ch. Ca. 257- 1 Roll. Abr. 551. V. Cox, Cio. Eliz. 843. ^ ^ (-) Horsam v. Turget, 1 Ventr. 113. ^ ^•^^- ^^''- 259- Noy. 115. CHAP. X.] AGAINST EXECUTORS IN EQUITY. 479 sonal property, that existed against the deceased at the time of his death. [I] If, pending a suit, the defendant die, it shall be continued by bill of revivor against his executor (»). Legatees, or persons in distribution, are also entitled to assert in a court of equity their claims against the executor or admi- [480] nistrator, on the principle, that equity considers an execu- tor as a trustee for the legatee in respect to his legacy, and as trustee in certain cases for the next of kin of the undisposed surjdus ('>). It also regards the administrator as trustee for the parties in distribution (*=). And trusts are the peculiar objects of equitable cognizance. Thus a bill lies for a personal legacy ; or for a discovery, and an account of assets ; or for the distri- bution of an intestate's personal estate (''). And an administi*ator cannot avail himself of the length of time as an answer to the plaintiff's bill for an account and application in payment of debts, vvheie he has not pleaded or claimed the benefit of the statute of limitations (<^). So it lies for the discovery of assets, merely for the purpose of enabling the plaintiff to maintain an action at law against an executor (f)j but not till he has denied assets by his plea to the action (s). (») Mitf. 63, 64. 2 Ventr. 362. 2 Ch. Rep. 167. (b) 4 Bac. Abr. 447. Anon. 1 Atk. 491. ('') 1 P. Wms. 287. 2 Fonbl. 321. Farrington r. Knightley, 1 P. Wms. note (<*). ibid 322. Com Dig-. Chan. 544. Wind v. Jekyl, ib. 575. Prac. 3 D. 1. Reg. 2d edit. 209. (*) Cockshutt v. Pollard, 1 Wils. 132. (') 2 Fonbl 322 Matthews i>. Newby, (J) Com. Dig. Chan. 2 G. 3. 1 Vera. 133, 134. 2 Ch. Ca. 95. Anon. (s) Ibid. 3 B. 2. [1] Where a creditor has a remedy against an executor or administrator at common law, he cannot sue in Chancery to establisli his demand. Batchelor v. Elliot's Adm. 1 Hen. & Munf. 10. Nor can a simple contract creditor, having obtained a judgment by default against an executor, maintain a suit in equity, for marshalling assets, agamst devisees of the landed properly, until he has fully presented his claim at law against the executor and his securities. JMason's Devisees v. Peters'' Ex'rs. 1 Munf Rep 437. A judgment by default against executors is prima facie admission of assets. Ibid. 480 . OP REMEDIES [bOOK III. An executor having admitted a large balance of personal es- tate to be in his hands, was ordered to pay the whole into court, although he stated that an action at law was depending against him for a debt to a considerable amount from the testator ; but with liberty, in case the plaintiff in the action should recover, ' to apply to the court to have a sufficient sum paid out again. The plaintiff in the action did recover, and the court ordered the amount to be paid out to him, and not to the executor (h). And where an executor admitted a balance due from him to his testator upon an unsettled account, notwithstanding he by his answer stated there were debts owing from the estate to which he was liable to the extent of assets, including that ba- lance, the testator having died three years before, he was order- ed to pay the balance into court, as all the debts ought to have been paid ('). So where executors having personal estate of the testator given to them by the w ill, upon trust to lay out upon good and sufficient security, for an infant, to be paid on his coming of age, after a decree for an account and notice by the next friend of the infant plaintiff lending a part of such personal estate upon mortgage, they were ordered to pay the same into court; but the motion asking in tlie alternative, that the executors might be ordered to replace the amount by so much stock as the same would have purchased at the time of the investment, was to that extent refused {^). And an executor, by the schedule to his answer, acknowledg- ing that he had received the testator's property, and lent it on a promissory note, was ordered to pay the money into court ('). An executor may be also called upon in equity to account for interest he has made of the testator's estate {""). Aiid he may be charged with interest upon balances, tliough not prayed by the bill ("). And although the rule be not invariable, that an executor in (h) Yare v. Harrison, 2 Cox's Rep. (>") 11 Vin. Abr. 433, In note. Per- 377- kins v. Baynton, 1 Bro. Ch. Rep. 375. (i) Mortlock T. Lcathes, 2Meriv.491. 1 Binn. 194. (k) Wirld.,wson V. Duck, 2 Meriv. 494. („) burner v. Turner, 1 Jac. 8c Wal. (') Vigrass V. Binfield, 3 Madd. Rep. j^gp 39 62. CHAP. X.] AGAINST EXECUTORS IN EQUITY. 480 all cases shall pay interest for money employed in the course of his trade ; yet if, without any reasonable cause, he detain it for any length of time from the persons entitled, and apply it to the purposes of his trade, or even suffer it to lie idle in his [481] hands, he shall be subject to the payment of interest (°). In respect to the rate of interest to which in such cases he shall be liable, if he make use of the money, he ought to pay the interest he has made. He ought not to derive any personal advantage from the trust property. If, therefore, it be esta- blished in evidence that he used the property in his trade, the court takes it for granted that the trade produced 5l. per cent, at the least, and it is incumbent upon him to show that he made less. But in case of mere negligence to lay the money out for the benefit of the estate, although it be true that com- plete indemnity is not attained, unless the executor pay tliat interest which might have been made, yet that is not the prin- ciple on which the court acts. It has laid down a rule in re- gard to the quantum of interest, namely 4 percent., from which it does not depart without some special reason. And mere ne- gligence is not sufficient to produce an exception : Consequently, if there be no evidence of the executor's having employed the fund, but mere neglect to pay it, he cannot be charged with more than 4 per cent, interest. And even when an executor mixed the fund with his own money at his banker's, the benefit derived by him not appearing. Lord Thurlow, C. held him chargeable only with interest at 4 per cent. : Although Lord Loughborough, C. was of opinion, in which Sir William Grant, M. R. in a late case appeared to concur, that if a trader lodge money at his banker's, it answers the purpose of his credit, and it should beheld to be an employment in his trade (p). And Sir John Leach, V. C. in a subsequent case, charged an executor with interest at 5 per cent, who mixed his testator's money at his banker's with his own, receiving only an interest of 3? J)er cent, instead of laying it out for the benefit of the parties entitled (i). But although the court does not usually (o) Newton v. Beniiet, 1 Bro. Ch. Rep. Callaghclh v. Hall, 1 Serg. & B. 241. 359. Seers w. Hind, 1 Ves. jun. 294. (p) Rocke v. Hart, 11 Ves. jun. 58. Ashburnham v. Thompson, 13 Vez. (i) Harris r. Docura, April, 1818. 402. Fox V. micocks, 1 JBinn, 194. MSS. 481 OF REMEDIES [bOOK III. charge an executor witli a greater rate of interest than 4 per cent, where he has called in the money for purposes of the will, yet if it were outstanding on good security, at the time of the testator's death, at 5 per cent, and he call it in without any purpose connected with the trust, and hold the whole in his hands without attempting to lay it out, he shall be charged with interest at the rate of 5 ;;er cent., on the ground of a general dereliction of duty on his part ; and thouglj a small part of the money so called in carried only 4| percent, that will make no difference in his favour {'). But if a will direct the executor to lend at the best interest a sum of money, which at the time of the testator's death is outstanding at four per cent., and the executor suffer it to con- tinue so, he shall be personally liable to pay five (°). And so if executors be directed to lay out the residue in the purchase of land, or upon heritable or personal securities, at such rate of interest as they should think reasonable, and they lend the fund to one of themselves on bond at 4 percent, when 5 per cent, might have been made by heritable or government securities ; the executor borrowing shall pay 5 per cent.; for in contracting with himself, he cannot spare himself (°). If there be an ex- press trust to make improvement of the testator's estate, and the executor will not honestly endeavour to improve it, he shall be considered as having lent the money to himself on the same tei'ms on which he would have lent it to others ; and as often as he ought to have lent it, if it be principal, and as often as he ought to have received it, and lent it to others, if the demand he interest; and consequently he shall be charged with interest upon interest ; but in general, the account shall not be taken against him from the moment of the testator's death upon all sums received and paid by him, but some time is fixed, at which the principal is said to be in his hands, so as that it was capa- ble of being laid out; and he is then to be first charged with the principal and with subsequent interest, and for that purpose annual rests in the taking of such accounts are most usual. (') Motley W.Ward, 11 Ve^ jun. 581. (") Forbes v. Ross, 2 Bro. Ch. Rep. Crackelt v. Bethune, 1 Jac. & Walk. 429. Rep. 686. (o) Forbes v. Ross, 2 Cox's Rep. 113. CHAP. X.] AGAINST EXECUTORS IN EQUITY. 481 But where a testator gave a legacy to his executor in full for his trouble in executing (he will, and declared that he should have no commission, nor derive any advantage from keeping any money in his hands without duly accounting for the legal interest thereof; and after providing for the maintenance and education of his children out of the interest of their respective portions, directed that the surplus ijiterest should accumulate for their benefit, and be laid out in the public funds for that purpose; and the executor kept the fund in his hands for a long period of time, without attempting any accumulation ; he was held liable to interest at 5 per cent, on all the sums of money which came to his hands, from the time he received tliem re- spectively, so long as they continued in his hands ; and in taking the accounts tlie master was ordered to make half-yeai*ly rests, for tiie purpose of charging him with compound interest, (that is to say) by stating the whole amount of the interest which had accrued at the end of each half-year, and adding that to the principal of the next half-year (i'). Nor, in case the executor be expressly directed to improve the e-tate, shall he be permitted to redeem himself by account- ing upon the supposition of tiie money having been laid out in the public funds, if in point of fact it were not so laid out; or if he laid out the property in the public funds, and then sold out the stock at a great advance, if at the close of the trust tiie price be less than he sold at, it is not sufficient for him to offer back the stock, but he shall answer for the amount of the money for which he sold it out(i). Upon the same principles, in case of the bankruptcy of an executor having failed to comply with a direction in the will to accumulate the interest, his estate shall he charged with interest at the rate of 5 per cent, with rests (■■). But an executor shall not be charged w ith interest on a balance in his hands, which he retained under a misapprehension, for which there was some colour, of his having a right to it('). Nor, if an executor compound debts due from the testator, (P) Ilaphacl V. Bochm, 11 Ves. jun. (■•) Dorford v. Dorford, 12, Yes. juii. 92. and 13 Ves. jun. 407. Sai/'s Ex. 127. V. Barnes, 4 Scrff. & H, 116. («) Brucre v. Peniberton, 12 Ves. jiin (q) Ibid. 108. .386. 481 OF REMEDIES [bOOK III. or buy them in for less than their amount, shall he be person- ally entitled to the benefit of the composition : but other credit- ors, or the legatees, or tlie party entitled to the surplus, shall have the advantage of it (*). Yet if an executor lend money on real security, which at that time there was no reason to suspect, and afterwards such secu- rity prove bad, he shall not be accountable for the loss, any more than he would have been entitled to the produce of it if it had been sufficient ("). So where A, an executor, paid the assets into the hands of B, his co-executor, with whom the tes- tator was used to keep cash as his banker ; on the failure of B, the court held, that A ought not to suffer for having trusted him, whom the testator trusted in his lifetime, and at his death appointed one of his executors ('^). So although, generally speaking, if an executor compound [482] or release a debt to the testator, he shall answer for the amount,* still, if he appear to have acted for the benefit of the estate, he shall not be charged ("). Formerly an executor could not be compelled of course to secure a future legacy, on the principle that where the testator had thought fit to repose a trust, unless some breach of it were shown, or a tendency to a breach, the court would continue to confide in the same Imnd : for such a purpose it was necessary to show misconduct on the part of the executor, or his insol- vency (>) : Or, in the case of an executrix, that she had married a person in needy ciicumstances («). But, according to the present practice, where a legacy is payable at a future period, the legatee without any suggestion of an abuse of the trust, or tliat the fund is in danger, has a right to call upon the executor to have it divided from the bulk of the estate, and secured and appropriated for his benefit, as well where it is contingent, as (f) 11 Vin. Abr. 433. Anon. 1 Salk. (") 11 Vin. Abr. 432. Blue v. Mur- 155. pi. 4. shall, 3 P.Wms. 381. Vicl. supr. 429. (") Brown v. Litton, 1 P. Wms. 141. (y) Slanning v. Style, 3 P."\Vms. 336. 4 Burn. Eccl. L. 428, Supr. 423. 11 Vin. Abr. 426, 427, 428. 432. 3 («) 4 Bum. Eccl. L. 428. Churchhill Bac. Abr. 8. 1 Atk. 505. 3 Atk. 101. T.. Uidy Ilobson, 1 P. Wms. 243. (^) Rous v. Noble, 2 Vern. 249. ^' CHAP. X.] AGAINST EXECUTORS IN EQUITY. 482 where it is vested {''). Annuitants are likewise entitled to the same equity, and to compel the executor to set apart a sufficient fund for the regular payment of their annuities ('»). [483] An executor is in general personally bound by an ad- mission of assets, express, or implied, as by the payment of in- terest : but in either case he may be let in to show, why it should not charge him as that the money was deposited in the hands of bankers, who have failed ; or that his admission was grounded on a mistake (=). Such admission is also waived by the plaintiff's proceeding to an account of assets, and procuring a receiver to be appointed (d). In case an executor be decreed to j)ay interest on account of a breach of trust, or because he has neglected to lay money out for the benefit of the estate (e), he is liable to costs of course (f). If an executor have acted fraudulently, the court will decree costs against him(&), although the will direct that his expenses shall be allowed out of the testator's estate (h). He is also subject to costs in equity, as well as at law, if he has misconducted himself by paying simple contract debts in preference to bond-creditors ('). But an executor shall have his costs, although he make a claim, and fail, if it w'ere merely a submission of the point for •the opinion of the court (^). [484] If two executors or administrators j(iin in a receipt, one only of whom receives the money, equity has been stated to adopt this distinctioni that in such case, each is liable for the wiiole(') as to creditors, who are entitled to the full benefit of law, although one of such personal representatives might have (') 4 Bac. Abr. 448. Green v. Pigot, (f) Prac. Reg. 2d edit. 210. Seers v. 1 Bro. Ch. Rep. 103. Cooper v. Uoug- Hind, 1 Ves. jun. 294. Sed vid. Ash. las, 2 Bro. Ch. Rep. 232. Strange v. burnham rt. Thompson, 13 Vez. 402. Harris, 3 Bro Ch. Rep. 365. Ferrand (g) ^^^^^^ ^ Kinnegal, 1 Vez. 126. V. Prentice, Ambl. 273. Prac. Reg. Ho,siey ^. Chaloner, 2 Vez. 85. 2d edit. 270. (h) p,.ac. Reg. 2dedit. 150, 151. Ha- (b) Slanning t;. Style, 3 P. Wms. 335. \ '^ , . " , , „ . , ,^^ Xv w , ^, , o ^7 o^ thornlliwaite v. Russel, 2 Atk. 126. (') Horsley v. Chaloner, 2 Vez. 85. „ ., , ^ ,'A\ Tir 11 D uu ID ou D (') Jefferies v. Hunison, 1 Atk. 468. (•1) Wall V. Bushby, 1 Bro. Ch. Rep. *■ ' 484 C') Prac. Reg. 2d edit. 152. Rashley (e) Newton v. Bennet, 1 Bro. 11. 362. ""■ Masters, 1 Ves. jun. 205. Rocke x). Hart, 11 Ves.jun. 58. (') 3 Bac. Abr. 31. 3 L 484 OF REMEDIES [bOOK III. given an eflTcctiial discharge ; but that with respect to lega- tees, or i)artics claiming distribution, as they have no legal remedy, one executor or administrator shall not be charged merely by joining in the receipt, when the other has received the money : for that the addition of his name is only matter of form, the substanlial part is the act of receiving, and is alone regarded in conscience ('"). But this distinction between lega- tees, or parties in distribution, and creditors, appears to rest on no autiiority (»). The rule is general, that executors, join- ing in a receipt, shall all be answerable (o). It has, indeed, in some instances, been broken in upon (p), and Sir Richard P. Arden, M. R. denied it to be universally applicable (i). It seems an exception, if an executor receive the money without the consent of his co-executoi', and they afteru'ards sign the re- ceipt (■"), for by that act they did not enable him to obtain the [485] payment. So if one executor places the property in the hands of the other, wjio happens to be a banker, or in such a situation tliat the act is not improvident^ he shall not be charg- ed in case of a loss, for if he had been a sole executor, and had under the same circumstances deposited the money with a bank- er, he would not have been liable (^). This, however, is clear from all the cases, that, where by any act done by one executor, any part of the estate comes to the hands of his co-executor, the former w ill be answerable for the latter, in tlie same manner as he would have been for a stranger, whom he had enabled to receive it('). Therefore where executors joined in a transfer of stock to a co-executor, ("<) Churchill v. Hopson, 1 Salk.318. note (1). S. C. 1 P. Wms. 241. 1 Eq. Ca. Abr. (s) Scurfield v. Howes, 3 Bro. Ch. 398. Murrell v Cox, 2 Vern. 570. Kep. 94. Appeal of Bro-wn's Ex. 1 Ball. 311. {') 1 P. Wms. 241, note 1. 83, note 1. (") Sadler v. Hobbs, 2 Bro. Ch. Rep. Read r. Truelove, Ambl. 417. Sadler 117. 1 P. Wms. 243, in note. 3 Bac. v. Hobbs, 2 Bro.Ch.llep. 114. Sciir- Abr. 31, in note. . field v. Howes, 3 Bio. Ch. Rep 90. (°) FoUowes V. Mitchell, 1 P. Wms. 81. Hovey v. Blakeman, 4 Ves. jun. 596. Aplyn V. Brewer, Piec. Ch. 173. Leitfh Westley v. Clarke, 1 Eden's Ucp. 357. V. Barry, 3 Atk. 584. Ex parte Bel- («) Chambers v. Minchin, 7 Ves. jun. chier, Ambl. 219. Sadler v. Hobbs, 197, 198. 2 Bro. Cli. liep. 116. (<) 1 P. Wms. 241, note 1. 3 Bro. Ch. (p) Churchill v. Hopson, 1 Salk. 318. liep. 97- Doyle v. Blake, 2 Scho. &. S. C. 1 P. Wms. 241. 1 P. Wms. 83. Lef. 231. CHAP. X.] AGAINST EXECUTORS IN EQUITY. 485 upon a representation that it was required for debts, and lie wasted part of the produce, they were charged with the whole, that they could not prove the application of to that pui-pose("). Co-trustees are in this respect contradistinguished from co- executors. In the case of co-trustees, as each hath not a pow- er over the whole of the fund, their joining in a receipt is ne- cessary, and, consequently, although they join in such receipt, yet it is a general rule that the trustee, who receives the money, shall be alone chargeable. But in the case of co-executors, each has a power over the fund, and a co-executor joining in a receipt is altogether unnecessary, therefoi-e, if he act without necessity, and join with his co-executor in sucli receipt, he shall in general be responsible for the consequences : He as- [486] sumes a power over the property, and it shall not be afterwards permitted to him to say, that he had no control over it(''). So if executors, confiding in the representation of their co-executor, that stock standing in the testator's name is wanting for tlie payment of debts, do join in a transfer of the stock to him, if he misapply the whole, or any part of it, they are chargeable with him to the extent of such misapplication (j). In like manner, if an executor has been dealing with the as- sets much beyond that period of time, in which, in the ordinary course, debts would be paid, and he applies to his co-executors to have such fund transferred to him alone, and on inquhing, they satisfy themselves, that there are debts urqmid, and his real purpose were to apply the fund in discharge of such debts, if it afterwards appear, that he had in his hands anotiier fund suffi- cient for the payment of those debts, and such apj)lication of the fund was Jiot necessary, nor was it in fact devoted to the payment of debts, they shall be responsible. They are in such case, subject to the imputation of negligence in being too easy with their co-executor j too remiss in not inquiring how, for so long a time, he had been acting in the administration of the as- sets (^). (") Lord Sliiphrook v. Lord Hinchin- 323, 324. brook, 16 Ves. inn. 477. Underwood ..,. , i ou- u i t i n- i • ' ■' (y) Lord Shipbrook 7). Lord Hmchin- 7). Stevens, 1 Meri. Rep. 713. \ DaU. . , ,-. ^r • n>-c, ^^-.r a-,o ^ brook, 11 Ves. jun. 252. 16Vez.478. 311, contra. /■v\ r.u _u' A/i- u- tr \r ' (^) Lord Shipbrook v. Lord Hinchin- C) Chambers ■«. Minchin, 7 Ves. jun. ^^ ^ , IOC T> • o. 1 11 -«- • brook, 11 Ves. jun. 254. 186. Brice v. Stokes, 11 \es. jun, ' •' 486 OF REMEDIES [bOOK III. But within a reasonable time, if executors, after tlie testa- tor's death, join in a t»'ansfer of stock to their co-executor, on his representation, that it is requisite for tiie payment of debts : they are not responsible if they can prove he applied it to that purpose, although he had possessed, if not by their means, other part of tlie assets which he had wasted ("). And though it be a settled rule, that if any executor contribute in any way to enable the other to obtain possession of the assets, he shall be answerable for their misapplication ; yet the rule does not extend to those cases, in which an executor is merely passive, and docs not obstruct the other in receiving the property, for it is not incumbent upon one executor by force to prevent its getting into tiie hands of his co-executor (^). So a co-executor, who proved, but never acted, having re- ceived a bill by the post on account of the estate, and trans- mitted it immediately to the acting executor, was held not to be responsible for the administration of the property (=). So if A, interested in tlie fund, act in authorizing B one executor to part %Yith it to C his co-executor, and it be wasted, B shall not be i-esponsible to the extent of A's interest: But B shall be re- sponsible to the other parties, who may be interested in the fund, in case they did not acquiesce in his transferring it to C (■'). Although one executor admit" assets, an account shall be de- creed against his co-executor, who does not admit them (^). And where an infant legatee filed a bill for an account against two executor's, although one of them in his answer denied hav- ing either proved the will, or received any assets, the account was directed against both (*). If an executor under the express authority of the will carry on trade with the testator's general assets, not only such assets, but even his own property will be subject to his bankiuptcy. If the trade be beneficial, the profits ai-e applicable to the purposes of the will, and the executor derives no personal bene- fit from the success of the trade. If the trade prove a losing (>) Ibid. 254. (0 Com. Dig. Chan. (2 (I. 3 ) Norton C^) Langford v. Gascoigne, 11 Yes. v Turville, 2 P. Wms. 145. Wall v. jun. 383. Rii.shby, 1 Bro. Cli. Hep 488. (<) Balchen t>. Scott, 2 Yes. jun. 678. (f) Price v. Yatighan, 2 Anstr. Rop. ('') Brice v. Stokes, 11 Yes. jun. 319. 524. CHAP. X.] AGAINST EXECUTORS IN EQUITY. 486 concern, the executor, on a failure of the assets, will be per- sonally liable to the loss(f). [487] If an executor, without any authority from the will, take upon himself to trade with the assets, the testator's estate will not be liable in case of his bankiuptcy ; the testator's creditors and legatees will have a right to prove demands for such of the assets as have been wasted by the executor in the trade, in pro- portion to their respective interests : And with respect to such of the assets as can be specifically distinguished to be part of the testator's estate, they will not pass hy the assiginnent of the commissioners ^ the executor holding them alienojure, they will not be liable to his bankruptcy (e). But tlie testator may hy his will ((ualify the power of his ex- ecutor to carry on trade, and may limit it to a specific part of the assets, which he may sever from the general mass of his property for tiiat purpose ; and then, in the event of the bank- ruptcy of the executor,-the rest of the assets will not be affect- ed by the commission, although the whole of the executor's pri- vate property will be subject to its operation (•»). If the executor of a trader only dispose of the stock in trade, it will not make him a trader, or subject to a commission of bankruptcy. Thus, where the executor of a wine-cooper found [488] it necessary to buy wines to refine the stock left by the testator, this was held not to constitute him a trader ('). If an executor become a bankrupt, his bankruptcy does not divest him of his legal right of executoi-shij), nor docs tlie com- missioners' assignment affect the assets, except in regard to such beneficial interest, as the bankrupt himself may be enti- tled to. But, although a bankrupt executor may strictly be the proper hand to receive the assets, if his assignees be pos- sessed of any part of the property, the Court of Chancery will, for the benefit of creditors and legatees, appoint a receiver for the same ; or will direct the bankrupt himself to be admitted a (f) Callaghan v. Hall, 1 Ser^. & R. edit. 268. 241- (ii) Ex parte Garland, 10 Ves. jun. 110. (s) See ex parte Garland, 10 Ves. jun. 110. Supp. 166. & Cooke's B. L. 4th edit. 67. and Wbitmarsh's B. L. 2d (0 Cooke's B. L. 4th edit. 67. and Whitmarsh's B.L. 2d edit. 16. 488 OF REMEDIES [bOOK III, creditor for what he shall be indebted to the estate; nor is this practice incongruous, as he acts in auter droit. Yet to prevent embezzlement, the court, on such proof, will order the divi- dends to be paid into the Bank, subject to the demands on the testator's estate C'). So where A a bankrupt, and also B claim- ed to be executors of a creditor of A, and a suit was pending in the ecclesiastical court in regard to the executorship ; the Lord Chancellor permitted B to prove the debt under the com- [489] mission, and directed the dividends to be paid into the Bank, to abide the event of the litigation ('). And where an executor, in consequence of his bankruptcy becomes destitute, and incapable of exercising his functions, and elects to relin- quish his interest in the testator's property, the court of Chan- cery will permit a creditor of the testator to file a bill for him- self, and to call in the outstanding assets for the purpose of ad- ministering them ('"). And a receiver has been appointed be- fore answer upon an affidavit of misapplication and danger to the property in the hands of an executor, and the co-executor's consenting to the order ("). An executor being out of the jurisdiction in Scotland, a re- ceiver was appointed under the 36 Geo. 5. c. 90, but adminis- tration having been granted, a motion was made on the part of the admiuisti-ator for an itijunction to restrain the receiver from acting. The Lord Chancellor referred it to the master to re- consider the ai)pointment of a receiver, regard being had to the circumstance of administration having been granted ("). (k) Cooke's B. L. 133, 134, 135. 137. (') Ex parte Shakeshaft, 3 Bro. Ch. Sione, 131. Ex parte Ellis, 1 Alk. 101. Rep. 198. Ex parte Butler, ib 213. Builer v. ('") Burroughs v. Elton, 11 Ves. jun. Richardson, Anibl. 74. Ex parte 29. Markland, 2 P. Wms. 546. Ex parte (") Middleton v. Dodswell, 13 Vez. Leek, 2 Bro. Ch. Rep. 596. Vid. also 266. supr. 429. and Whitmarsh's B. 1.. 2d . f^^) Faith v. Dunbar, Coop. Rep. 200. edit. 269. CHAP. X.] IN THE ECCLESIASTICAL COURT. 489 Sect. V. Of remedies against executor's and administrators in the ecdcsias- tical court. Legatees, and tlie next of kin may proceed against the ex- ecutoi* oj* administrator in the ecclesiastical court. Tliat court lius not only jurisdiction over the probate of wills, and the grant- ing of administrations, but has also, as incident to the same, au- thority to enforce the payment of legacies (*); and, according to tlic statute, the distribution of an intestate's effects. In re- spect to legacies, the cognizance of them in former times be- longed exclusively to that judicature. The Court of Chancery, till Lord Nottingham extended the system of equitable jurispru- dence, administered no relief to legatees C*). In regard also to distribution, equity, as the act of pai'liament contains no nega- tive words, has a concurrent jurisdiction with the ordinary, [490] and in both cases, as being armed with larger powers, affords a more effectual relief (•=). As a court of equity, and the spiritual court have in these points a concurrent jurisdiction, whichever of them has first possession of the cause, has a right to proceed (f). But where it appears that the ordinary cannot administer complete jus- tice, equity, without regard to such priority, will interpose. As, where a husband sues in the spiritual court for a legacy bequeathed to the wife, the Court of Chancery will grant an injunction to stay the proceedings, since the ecclesiastical judge has no authority to compel a settlement («). So a legacy given to an infant is more properly cognizable in equity, since that jurisdiction can alone secure the money for the child's benefit (<"). (^) 4 Bac. Abr. 446. 3 Bl. Com 98. («) flill v. Turner, 1 Alk. 516. Jew^ (b) Decks V. Strutt, 5 Term Rep. 692. so" ^- Moulson, 2 Alk. 420. Nicholas See 1 P. Wms. 575. ''• Nicholas, Prec. Chan. 548. 2 Ves. - N , 1 r, r^ ui oi J-. Aiy, . lun. 676. Mciiles t. Meales, 5 Ves. (0 V 1(1. 2 Fonbl. 2d edit. 414, note x . ,.,,„,. /ix »« ..u XT u 1^7 1-^A jun. 517, in note. See also 10 \es. (d). Matthews v. Newby, 1 Vern. lo4. •' iiin. 577. «• supr. 321. (^') 4 Bac. Abr. 447. Toth. 114. Ni- |,^ „^^^^,i ^, ^^^Mvon^ i vern. 26. cholas V. Nicholas, Prec. Ch. 548. j^^^^ j ^^j. ^gj 490 KEMEDIES AGAINST EXECUTORS [bOOK III. The spiritual jurisdiction extends to legacies only of person- al property ; therefore, if land be devised to be sold for the pay- ment of legacies, they can be sued for only in a court of equity, because they arise out of the real estate (?). Equity has also the exclusive cognizance of those cases in which there is a will, and the residue is undisposed of; for then as we have seen (^), [491] the executor is a trustee for the residue, and the ordina- ry cannot compel a distribution of it, because he cannot enforce the execution of a trust ('). Nor has he a powder to compel the debtor of an intestate to pay his debt into court, although such debtor be the person aj)plying for a distribution, for that would be to hold a plea of del)t ; but in that case he may refuse to pro- ceed to a distribution till the party shall bring it in (k). So, it seems, that if a legatee take a bond from the executor for pay- ment of the legacy, and afterwards sue him in the spiritual court for the same, a prohibition will be granted ; for by taking the obligation the nature of the demand is changed, and be- comes a debt recoverable in the temporal courts (•). In case a legatee, or the next of kin elect to sue in the spiri- tual court, the executor or administrator must there exhibit an inventory of the property, if he has not done so before, and bring in an account ("»). Of the nature of an inventory I have already treated ("). It is to contain a full, true, and perfect schedule of the deceased's [492] effects. The account is to state in what manner they have been disposed of («). Neitljer an executor nor an administrator can be cited by the ordinary ex officio to account (p). The executor, we have seen, is bound by his oath to make an inventory of the person- (0 4 Bac. Abr. 446. Dyer, 151. Palm. (•<) Gierke v. Clevke, Ld. Raym. 585. 120. Cro. Jac. 279. 364. Cro. Car. 16. (') Goodwyn v. Goodwyn, Yelv. 38. 2 Roll. Abr. 285. Bastard v. Stock- Luke v. Alderne, 2 Vern. 31. Bed well, 2 Show. 50. Dodderidge, J. contr. 2 Roll. Rep. (!') Siipr. 351 479. 160. vid. Sadler w. Daniel, 10 Mod. 21. (i) 2 Fonbl 2d edit. 414, note (d) ad (■") 4 Burn. Eccl. L. 425. fin. Petit v. Smith, 5 Mod. 247. Hat- (") Vid. supr. 247. et scq. ton w. Hatton, Stra. 865. Petit v. (°) Greerside t). Benson, 3 Atk. 252. Smith, Ld. Uaym. 86. Rex v. Raines, (p) Com. Dig. Admon. C. 3. Archbp. lb. 363. Farrington v. Knightly, 1 of Canterbury v. Wills, 1 Salk. 315, V. Wms. 546, 547. 549. 316. Greerside v. Benson, 3 Atk. 253. CHAP. X.] IN THE ECCLESIASTICAL COURT. 492 al estate, and exhibit the same into the registry of the spiritual court at the time assigned him for that purpose, and render a just account, when lawfully required, that is to say, at the suit of a legatee ; and in such case he is bound not only to produce an account, but also to i)rove the different items of it(*i). The payment of sums under forty shillings shall be proved merely by his oath, if there appear no fraud by dividing great- er sums into less. Of the payment of sums to a higher amount, vouchers must also be exiiibited ('). TIjc adverse party shall be at liberty to disprove such account. If it be false, the execu- tor shall be liable to the penalties of perjury (^). After the death of an executor, sums nndei- forty shillings shall not be allowed on the oath of his representative ; for such pay- ments can be substantiated only by him who made them ('). [493] In regard to the administrator, before tlie statute of distribution, according to the condition of the administration bond, he also was bound to exhibit an inventory, and render an account when required. But pursuant to tlmt statute the ad- ministrator, we may remember, enters into a bond with two or more sureties, conditioned for his exhibiting an inventory of the effects, and an account of the same, at the respective times specified. Therefore, without citation or suit, he ought, in strictness, to appear on the day, and produce his account in court. But, in that case, it is neither verified by oath, nor lia- ble to be examined. If, however, a party in disti'ibution, who is in the nature of legatee by statute, and tljercfore entitled to an account, shall come in and controvert it; it must be sworn to, and is subject to investigation ; when the proceedings shall be the same as in the case of an executor ("). Thus it appears that the stat. 1 Jac. 2. c. 17 (^*^), which pro- vides that no administrator shall be cited according to the sta- tute of distributions to render an account of tlic personal estate of his intestate otherwise than by inventory, unless at the in- stance or prosecution of some person in behalf of a minor, or (q) Archbp. of Canterbury v. Wills, 1 (s) 4 Burn. Eccl. L. 427. Ought. 346. Salk. 316. vid. also Archbp. of Canter- (t) 4 Burn. Eccl. L. 427. Ought. 347. bury V. House, Cowp. 141. («) Archbp. of Canterbury v. Wills, 1 (f) 4 Barn.,Eccl. L. 427. Ought. .347, Salk. 315, 316. 348. (w) Vid. 4 Burn. Eccl. L. 426. 3 M 493 REMEDIES AGAINST EXECUTORS [bOOK III. having a demand out of such personal estate, as a creditor, or next of kin, nor be compellable to account before the ordina- ry ; had, in truth, no operation, as such was the law before ("). [494] All the legatees, or parties in distribution, are to be cited to appear at the making of the account ; for it shall not be conclusive on such as shall be absent, and have not been cited (y). An executor or administrator, therefore, when he is called upon by any one party to account, should cite the lega- tees, or next of kin in special, and all others in general, having, or pretending to have, an interest, to be present, if they think fit, at the passing of the same ; and then, on their appearance, or contumacy in not appearing, the judge shall proceed ('^).[1] (") Archbp. of Canterbury XI. Wills, 1 s. 20. Salk. 315, 316. (0 4 Burn. Eccl. L. 426. Ought. 354, (y) 4 Burn. Eccl. L. 426. Swinb. p. 6. 355, 356. [1] In Pennsylvania, the executor or administrator settles, on oath, his account with the Register, either voluntarily or at the command of the Or- phan's Court. By the Act of April 4th, 1797, it is made the duty of the Re- gister, upon the account being filed in his Office, to give notice to the legatees and creditors, by advertisement put up in at least three of the most public places in the county, and published in two newspapers once a week for four weeks, that the executor or administrator has filed his account, and that it will be presented to the Orphan's Courts on a day certain, (at least thirty days after publication of notice,) for confirmation and allowance. On the day fixed, the accounts are confirmed nisi, unless there be exceptions filed on or before the next stated Orphan's Court day. If exceptions be filed, auditors are ap- pointed, who hear all parties interested, and report to the Court : their report is either excepted or submitted to ; if the former, the exceptions are argued before the Court, from whose judgment thereon an appeal lies to the Supreme Court, where the decision is final. Upon the final settlement of the accounts, the Court may, if the estate be insolvent, appoint auditors to apportion the assets among the creditors, in their legal order ; or if the debts have been paid, the Court may direct distribution among the legal representatives of an intestate ; and their order may be en- forced by attachment, or serve as a foundation for a suit at law. And a party interested in the accounts of an executor or administrator may obtain a lien upon his real estate for the balance appearing due on settlement, by filing a transcript of the amount with the Prolhonotary of the Common Pleas. If the administrator neglect or refuse to file an inventory or settle an account, an action may be brought iii^on his bond. Selectmen of Boston v. Boylston, 6 Mass. Rep. 318 9 Mass. Kep. 337- The administration accouitt of an executor or administrator, in which he has charged himself with the amount of the inventory, is prima facie evidence only CHAP. X.] IN THE ECCLESIASTICAL COURT. 494 Altliougli the spiritual court hsivc, as incident to the jurisdic- tion of wills, the jurisdiction also of legacies ; yet, if a tempo- ral matter be pleaded in bar of an ecclesiastical claim, they must proceed according to the common law {^). Therefore, if payment be pleaded in bar of a legacy, and there be but one witness, whom the ecclesiastical court will not admit, because their law requires two witnesses, a prohibition shall issue (^). But it is not a sufficient ground for a prohibition to suggest, that the plaintiff had only one witness to prove the fact, unless the party allege he offered such proof, and it w as refused for insuf- ficiency ('). If the spiritual court shall attempt a distribution contrary to the rules of the common law, it shall be prevented by a prohi- bition, because it is restricted by the statute of distribution to those rules (•*). (») 4 Bac. Abr. 447. 1 Roll. Abr. 298, Cook v. Licence, 346. Startup v. 299. Hob. 12. 12 Co. 65. Helley, 87. Dodderidge, 2 Ld. Raym. 1161. 1172. 2 Inst. 608. Sid. 161. 1211. Shatter ^. Friend, 2 Salk. 547. (b) Bagnall v. Stokes, Cro. Eliz. 88. S. C. Carth. 142. Blackborough v. 666. Shatter v. Friend, Show. 158. Davis, 1 P. Wms 47. 49. 173. Richardson v. Disborow, Ventr. (<:) Carth. 143, 144. 291. Shatter v. Friend, 3 Mod. 283. (d) Blackborough d. Davis, 1 P. Wms. Breedon v. Gill, 1 Ld. Raym. 220. 49. of assets to that amount ; for if, by any inevitable accident, a part of the arti- cles inventoried should be lost, vi'ithout his default, or if, in a sale at auction, fairly conducted, the real value or proceeds of the property should be found to be less than the appraisement, the loss or difference will be allowed in the ad- justment of the account; or these circumstances may be given in evidence, to repel a charge of waste. Weeks v. Gibbs, 9 Mass Rep. 74. If, by default of the executor or administrator in not collecting the personal estate, or in not applying it to pay debts, the lands be taken from the devisee or heir, the executor or administrator is liable, in an action for waste, to the devisee or heir who is injured by the waste. Mitchel v. Lunt, 6 Mass T. R. 654. But no such action lies against an executor de son tort, for such cause ; for he has no authority to collect the effects of the deceased. Ibid. An executor or administrator of a person who at his death had his home and domicil in a foreign country, is holden, by his administration bond, to account to the judge of probate here (Massachusetts) granting the administration, for all property received by him within the state ; but for a final settlement and distribution of the estate, he is accountable only to the jurisdiction where the deceased dwelt or had his home at the time of his decease. Dawes v. Boylston, 9 Mass. T. R. 337. 4 lb. 318, 2 lb. 384. Stevens v. Gaylord, 11 lb. 256. 495 KEMEDIES AGAINST EXECUTORS [bOOK III. [495] After the investigation of the account, if the ordinary find it true and perfect, he shall pronounce for its validity. And in case all parties interested as ahove mentioned have heen cited, such sentence shall be final, and the executor or adminis- trator shall be subject to no farther suit {''). In case there shall appear assets for the entire, or partial payment of the legacy, or for a distribution, the same shall be decreed .accordingly. An executor or administrator is also bound to exhibit an ac- count upon oath, at the promotion of a creditor ; but a creditor is not permitted to call for vouchers, nor to offer any objections to the account; in respect to him the oath of the party is at once conclusive : For such litigation would be altogether fruit- less, since the spiritual court has no authority to award the payment of a debt(<^). The object of a creditor in suing for an account in the spi- ritual court is to gain some insight into the state of the fund, previously to his proceeding in aji action at common law ; but a bill in equity for a discovery of the assets is the more usual, as it is the more effectual remedy (s). Yet a creditor, as well as the next of kin, has a right ex de- [496] bito justificef to an assignment by tlie ordinary of the ad- ministration bond, and to sue iii the name of the ordinary, as well the sureties as the principal, showing for breach the ad- ministrator's not exhibiting a true inventory, or account C'). But a creditor lias no right in such case to assign for breach the non-payment of his debt, or a devastavitf for the words of the condition, ♦* he is well and truly to administer," are con- strued to apply. merely to the bringing in of a true inventory, and account, and not the payment of the intestate's debts ('). [2] (=) 4 Burn. Eccl. L. 428. Svvinb. p. 6. Cowp. 140. Vid. 2 Fonbl. 414. 2d 6. 21. edit, note (''). 11 JMass. T B. 114. (f) Vid. Noy 78. . (') 4 Burn. Eccl. L. 428. 430. Lutw. (?) Vid. supr. 479 4€9, 490. 882. Arcbbp. of Canterbury v. Wills, ('') Greeiside v. Benson, 3 Atk. 248. 1 Salk. 315, 316. Com. Dig. Admon. Archbp. of Canterbury v. House, C. 3 [2] If an execmor or administrator neglect or refuse to pay a debt after it has been ascertained by a judgment of Court, or by commissioners, it is a breach of the condition of his administration bond. Cojii/ V. Williams ^ al, 11 Mass. Rep. 114, Yard v. Z.eo'« Ex. 3 Yeates,- 345. CHAP. X.] IN THE ECCLESIASTICAL COURT. 496 An executor or administrator shall be allowed in the spiritual court all his reasonable expenses, the rule in respect to which is, that he shall receive no profit, nor incur any lossC^). A party, having an interest, who prays an account, shall not be condemned to costs, unless he make objections to it, which he fails to substantiate ('). A legacy may be recovered in the spiritual court against an executor nf his own wrt)ng (■"). Legatees may file a bill in chancery for an account against the executor, and, at the same time, call upon him in the pre- rogative court to exhibit an inventory ("). [497] So where a suit is pending in the ecclesiastical court in regard to the probate of a will, or right of administration, a bill in chancery will lie by a party interested for an account of the personal estate, on the ground, that the ecclesiastical court has no means of securing the effects in the interim (»). And the court will protect the property "by appointing a receiver (p). The ecclesiastical court cannot entertain a suit for proctors' fees, since they are a temporal duty, for which an action may be maintained in the temporal courts (i). (k) 4 Burn. Eccl. L. 428. Lind. 178. (p) Atkinson v. Henshaw, 2 Ves. &; (1) 4 Burn. Eccl. L. 428. Floy. 38. Bea. 85. Ball v. Oliver, ib. 96. ('") 4 Bac. Abr. 448. 1 Roll. Abr. 919. (i) 2 Burn. Eccl. L. 239. Com. Dig. (") 11 Vin. Abr. 427. 3 Chan. Rep. 72. Prohibition (F.5.) Pollard v. Gerrard, (o) Wright V. Bluck, 1 Vern. 106. Ld. Raym. 703. S. C. 1 Salk. 333. Dulwich College v. Johnson, 2 Vern. Horton v. Wilson, 1 Mod. 167. John- 49. Phipps V. Steward, 1 Atk. 285. son v. Lee, 5 Mod. 238. Skin. 589. 2 Bro. P. C. 476. Morgan v. Harris, Bunb. 70. Pitts v. Evans, 2 Stra. 1108. 2 Bro. Ch. Rep. 121. Dougl. 629. Executors who have given bond with surety to the judge of probate for the faithful performance of their trust, are jointly liable, as principals, to indemnify the surety who has been subjected for the default of one of them. Babcock v. Hubbard & al. 2 Connecticut Rep. 536. A, B, C, and D, being joint executors, the three former signed a probate bond, which E, at the sole request of A, and expecting to look to A only for indemnity, signed as surety. Afterwards, D signed the bond as principal. Held, that the act was a recognition of E as D's surety, and was equivalent to a request. Ibid. INDEX. Page ABATEMENT— of legacies - - - ^29etseq. Absence — beyond sea ----- 93. 104 Account — action of, by executor - - - - 433 stated - - - - - 162 promise to executor thereupon — how it operates ibid. bill in equity against executor or administrator, for, of assets - - ♦ - - - 72.479 how it shall be taken in equity between surviving partner, and the representatives of the deceased 454 executor not admitting assets bound to, in equity, though his co-executor admit them - 486 on a bill to, by infant legatee against two .executors, one of whom in his answer denied proving the will, or receiving any assets, account directed against both - - - - 486 administrators bound to, as executors - 82. 96, 97 — in the spiritual court, at the suit of legatees, or parties in distribution - 491. 494 and JVote 494 proof of, by executor - - - - 492 how controverted - - - ibid, executor subject to the penalties of perjury if false - - _ - ibid. proof of, after the executor's death - - ibid. exhibited by the administrator, when it must be sworn to, when it need not 493 not conclusive against legatees, or parties in distribution, who are absent - 494 citation by executor or administrator of le- gatees, or parties in distribution, on pass- ing his . - - _ 494 at the promotion of a creditor - 495 creditor not permitted to call for vouchers, object to the account . , , - ibid; Action— See Remedies 500 INDEX. Page Ademption — of a legacy . _ - 339, et seq. Jiro tanto - ... - 333 revocation of a will in the nature of - 21 Administration — Origin of - - - ^ 80, e? seq. by whom granted in the several states. JVote 49 effect of, ivhen granted abroad^ A''ote 56 ofhusband's right to 83,84. 125.242, 243.373. JS/'ote 86 how controlled or varied - 85, 86. 218 where the grant to the husband is necessary 217 where not - - - - ibid, where a naturalized citizen dies-intestate J^ote 107 coeterorum - . _ gs. 86 grant of, to widow or next of kin 86. J^'ote 86. 91 of part to widow and part to next of kin 87 order in which kindred are entitled to 90 Mote9\. 93 • half-blood equally admissible to - 91 when committed to feme covert, and how ibid. how granted if wife be next of kin and a minor 92 ceases on her coming of age - - ibid. who incapable of taking - - - 93 person incapable of being an executor ibid. attainted of treaspn - - ibid. of felony - - ibid. outlaw - - - - - ibid. prisoner - _ . _ ibid. persons beyond sea - - . ibid. bankrupt - . . - ibid. non comfios mentis - - 103. 122 feme covert competent to take - 94 alien friend competent to take ibid. Note 93 though only of the half-blood - ibid, analogy of, to probate - - ibid. privilege of granting personal - - ibid. a party generally incapable of acting before grant of - - - - 9 5 may file a bill in chancery before ibid, not commence an action at law before - - ibid. INDEX. 501 Page Administration — penalty for acting, and omitting to take out for six months - - - 96 when letters of issue - ibid. JVote 96 oath in taking out _ . _ ibid. bond and condition thereof 91. 97. 247, 248, 370. 493 when once granted not to be committed to another during the life of grantee - 98 special . - . . ibid. ^ cum testamento annexo 4:3^ 44. 65. 92. 98. 118. 321. 372 not granted till executor renounces or fails to appear - - - 93 or if several executors, till they all re- nounce, or fail to appear - ibid. grant of such to residuary legatee or lega- tees - - - 99. 117 durante minoritate 34. 100. et seq. 123, 124. 357 in a restrictive form - - 404 effect thereof - - 405 when it shall not be granted - - 102^ after such grant of, when receiver appoint- ed - - - - 102, 103 when it ceases - - 100, 101 if granted during the minority of several infants - - - - 101 old distinction between such grant during the minority. of infant executor, and during that of next of kin - - - loO ordinary's power at common law extend- ed only to the former case - 124 pendente lite - - - - 103 not granted till a plea has been given in and admitted ... ibid. receiver not appointed after such grant ibid. during incapacity _ _ . ibid, durante absentia - - - 70. 104 by virtue of the statute - 104,105 when it ceases - - - 104 sN 502 INDEX. Page Administration — to a creditor - - - 104.122.473 where several creditors apply - 106 to a debtor - - - 128. 349 to a legatee - - ' - - 105 to such person as the ordinary shall approve ibid. ordinary's power of granting administration at common law, in what cases - ibid. may in such cases impose terms on grantee . - - 106 limited in regard to time - - ibid. to property - ibid. not to be twice granted in respect to one thing ibid. in case of several grants of, grantees liable to be sued as one person - - 106, 107 . on condition . - - - 107 to appointee of the crown of the effects of a bastard - - - 107. 386, 387 to attorney - - - - 108 grant of, in a foreign court - - ibid. to the effects of seamen and marines 109 on death of administrator or executor intestate 1 14 grant of, to several, survives - 1 14. 407 immediate - - - - 115 on death of executor before probate ibid. of next of kin before grant of administration 1 1 6 in case of death of husband before he takes out administration to wife - - - 116. 224 on death of executor residuary lega- tee before probate intestate 117, 118 on leaving a will - - 118 de bonis non - 116. 124. 349. Mote 116 on death of executor after probate intestate - - - li 8 on death of feme covert executrix 1 18. 242 and residuary legatee - 118 on the death of the acting executor, and renunciation of the survivor ibid. INDEX. 503 Page Administration — immediate on — or such survivor's dying in- testate - 118, 119 or in case of administration during the minority of the executor of an executor 1 19 as well de bonis non^ as immediate, may be granted to residuary legatee - 117 how granted - - - 1 1 9 generally by writing under seal ibid. may be by mere entry in the registry of the spiritual court - ibid. not by pai-ol - - ibid. in the grant the style of jurisdiction, as well as name of the ordinary, to be inserted . - - 120 a party may refuse accepting - ibid. when void - - 46. 120, and JVote. when voidable - 121,an(/ ^Vo^e 130 of repealing the grant of 122, and J^'ote 104 in what cases - 44. 122. 125 in what not 123, 124, 125, 126 J^pte 123 temporal courts, to judge of the cause of 123 of repealing for want of form - 125 effect of - - ibid. or quia imp.ro-vide - ibid. or on account of abuse 125, 126 effect of a second grant of, before repeal of first - - -126 of prohibition when ordinary is proceeding to repeal. in what cases - - 127 in what not - - ibid. how repeal of, affects mesne acts when the grant was void - - 127, 128 or voidable - - ^29. 297 voidable in case of a suit by citation or appeal 129, 130, 131 payment of debt to an administrator under grant of, void or voidable, good - 130 504 INDEX. Page Administration — immediate on — effect of grant of, to executor de son tort - 367 though only fiendente lite 368 special, ceasing, effect of pending an action against the administrator - 407 after judgment obtained against such ad- ministrator - - ibid. bond creditor, as well as next of kin, entitled to an assignment of the administration bond from the ordinary - 495, 496 what breach he may show 496 what not - - ibid. Administrator — derives his authority from the ordinary 95. 100, 101. 114. 131 interest of - 133. 241, .A/bre 133. 159 when it vests - - 133 of special - - - 241 of a married woman - - ibid. of joint - - - 243 survives . - - 114. 243. 408 of c?e bonis non - - - 243 powers of - - 369. 447, J^ote 133 of his p,ur<:hase of the firofiertij of decedent 239 office of, how far the same as that of an exe- cutor - 369, n7id J\l'ote 133 bound to account as an executor 82. 96, 97 J\''otes 155. 493 actions by - 157. 431, Ab^e 159 suits in equity by - - 454 actions against - 458. 474, J\fote 155 suits in equity against - - 479 in the ecclesiastical court against 489 powers of limited - - 404 actions by 349. 405. 447, 448 actions against - 474 powers of actions against— where pending the action, the ad- ministration de- termines 407 after judgment ibid. INDEX. 505 Page Administratoi* — powers oi durante minoritate as distinguished from executor durante minoritate - 406 where he administers in part, and delivers to the executor on his coming of age all the residue - - - - 475 ofhis keeping the goods after executor comes of age - - 103. 474, 47S actions by - - - - 445 actions against - - - - 474 powers of durante absentia - - 406 o{ fiendente lite - - - ibid. of joint - - 114. 407,408 not distinguishable from those of co-executors - 407, 408 actions by - - 448 actions against - - 47 1 death of - - 114 de bonis non - 117. 349. 448 actions by - - 448 actions against - - 474 compensation to _ - - 455 Advancement-— of a child - - 329. 371. 376 et seg. 381 and JVote ibid, pro tanto . - - 377. 379 what shall not be - - 380, 381. 396 by the custom of London - 393 et seq. must arise exclusively from the personal es- tate .... 396 not restricted to a provision made on mar- riage, or in pursuance of a marriage agree- ment - - - by the custom of York may arise out of real estate See Distribution. Advowson— in gross or in fee - term for years in - - after an avoidance purchase for son of, an advancement - 376, 377 descended to the heir in fee simple, real assets 409 Affidavit— of executor on holding to bail - - 438 - 397 - 400 - 401 - 189, 190 139. 151. 161. 437 151. 189, 190. 216 506 INDEX. Page Affinity - - - - - - - 386 Agent — where executor embezzles the property - 427 Alien — will of - - - - - '^^ when may take by devise in the several states - ibid. executor or administrator - - - 34. 94 when incapable of being - - ibid. property of, in our funds . . - - 387 Allowance — executor shall have no, for executing the office 456 unless directed by the will ibid. whether a legacy be left to him as a recompense or • not -,'. - ibid. but in what special cases entitled to a commission 457 Amercements — in the king's courts of record - - 260 in the king's courts baron ^ - - ibid. Annexation of codicil to a will - - - - 31 Annuity — a chattel interest _ _ - - 178. 200 generally descendible to the heir 178. 200. 203 Avhen not - - 178 personal ------ 303 charged on lands - - - - 305 out of a parsonage " - - - - 55 grant by the crown of, out of the four and half per cent. Barbadoes duty, with collateral security 200 to commence after father's death an advancement 377 remedy in equity to secure the payment of - 482 .4tinum.f dieruj et vastum _ - - _ 144, 190 Anvils - - - - - * - - 197 Appeal— in regard to probate - - 73. and JVote 49. 75. 78 to administration - - - 95 probate suspended by . - - 73. 129 administration suspended by - - - 131 ■where prol^ate is affirmed on - - - 75 revoked on - - 75. 78. 131 administration revoked on - - 129 Appointment — of wife in the nature of a will - - 85 of the crown of the effects of a bastard 107, 108 Apportionment of rent in favour of executors of tenant for life - - - - 208, 436 INDEX. 507 Page Appraisement — of deceased's effects - - 250,251 commission of - - - 73. 252, 253 Apprentice — executor has no interest in an - - - 152 how far executor bound to maintain - 476 distinction between covenant to maintain, and co- venant to instruct an - - - ibid. justices of the peace have no authority to order an executor to maintain an -• - ibid. by the custom of London executor bound to put the, to another master of the same trade ibid. Apprentice fee — no advancement - - - . 380 no advancement by the custom of London 396 Apprentice parish regulations— executor bound to observe in regard to - - - - 476 Arbitration— submission to by executor - - - 425 Arrest— by an executor before probate - - 48 executor in general not liable to - - - 467 in what cases he is - - - ibid. Artichokes - - - - - - -150 Artificers, British, going abroad— when incapable of making a . Avill - - - - 13 of being executors - - 36 of any legacy - - - 300 Assent - - - - - - 306. 345 Assets — definition of - - - - - 137 what are, m the several states. See JVote 155 et seq. how made available - - ibid. term of years devised for payment of debts 140 leases _ _ . - - ibid. though executor assent to the devise of them . . - ibid, e^tiXte per auter vie - - - 40 value of lease beyond the rent 141. 166. 239 reversion of a term - - - 141 new lease granted to executor - - ibid. executor chargeable for a term as, where he purchases the reversion in fee - ibid. lease surrendered by executor - - 142 land devised to an executor for a term for pay- ment of debts, where, during the term, the fee descends on him - - ibid. 308 INDEX. Page Assets — what are, term which a feme covert has as executrix, where husband purchases the reversion, though extinct as to her yet, in respect to a stranger - - , ibid. estate in fee in the plantations as to credi- tors - - - - 416, 417 lease granted to executor pursuant to cove- • nant, with the testator - -144.160 rent in arrear at the testator's death 145 debt or damages recovered at law 157, 158, 159, 160, 161. 201 money recovered by decree in equity 160, 161 goods taken out of executor's possession 153 goods delivered to executor pursuant to con- tract with the testator - - 160 chattels resulting to executor on non-per- formance of the condition on which they were granted - - - 164 testator's chattels redeemed out of pawn with his money . . - - ibid. if redeemed with execut9r's money, the surplus - - - 126 a remainder - - - - . 164 arising by increase - - - 166 profits of lands demised - - - ibid. lease granted by a copyholder for one year only - - - - 180 promissory note given to testator's wife 288 money deposited by her to be kept for her separate use ... 229 when debt, due from executor shall be 349, 350 what not, term raised for a particular purpose not 142, 143 lease on condition not, where condition is broken before the lessee's death - 143 trust of a term not - - - ibid. bond assigned by testator not - - 118 goods bailed for a particular purpose not 154 ffoods distrained not - - - ibid. INDEX. 509 Assets—what not— 4ebt or damages recovered by testator not^ till levied or reduced into possession, or released by executor - - 161 162 if recovered by executor they are as- sets immediately - - . 152 presentation where the grantee of the next presentation dies after the church becomes void, and before presentation, not 240 money by marriage agreement articled to be invested in land and settled, not 416 copyhold estates not, either in the hands of heir or devisee - - 411,412 no measure of justice between the heir and executor of mortgagee - - . . 184. 186 application of - . . 258, end JVote 420 where originally deficient, and where they afterwards become so by misapplication - . 341 when aliened by executor cannot be followed by a creditor at law - - . . 255 and in equity only on voluntary alienations by fraud ..... 257 P^o°fof 464 admission of, executor generally bound by 482 iJf JVote 479 express .... ^-^-^^ implied - - . . 464.483 when not - . . ^-^/^^ when the admission is waived - ibid. where executor refers to arbitration the question whe- ther he has or has not - . . ^^^ judgment of, guando acciderint - . 400 how far affected by the assignment of commissioners of bankrupt " - - - 488 bill for a discovery and account of, in what cases 480 legal and personal, or assets enier iiiaijis, what . 409 legal and real, or assets by descent, what - 409 et seg. personal — term in gross - - 410 estate pur outer vie when personal ibid. real, lands descended to the heir in fee simple 409 SO 51@ INDEX. Page Assets — legal and real — advowson so descended - - 409 estate /zur auter -vie when real 410, 411 term vested in trustee to attend the inheritance . - - 410.427 lands devised by tenant in fee simple 411 unless for payment of debts - ibid. or for raising portions for younger children, according to agreement before marriage - - - ibid. estate in fee in our American planta- tions - - - 416,417 equitable what, and how distinguished from legal 412. 416 legal trust estate descended to the heir - - 415 equity of redemption - - - 415, 416. 5em6. equitable estates devised to an executor to sell 414. Semb. estate descended to the heir charged with the payment of debts - - - - 414 term in trust to attend the inheritance - 427 where lands shall be, only for the payment of debts 416 only for the payment of legacies ibid. the marshalling of, in favour of creditors - 417. 420 where the debt is considei'ed as the personal debt of the testator himself, and a collateral charge on the real estate - - - 418 where the charge is on the real estate principally, and the personal security is only collateral - - ibid, priority of the application of real, when the personal estate is either exempt or exhausted - - 419 when, shall not be marshalled in favour of creditors 421,422 the marshalling of, in favour of legatees - - 420 as against lands descended - ibid, devised •- 420, 421 if legacy be given out of real and personal estate, payable at a future day, and legatee die before - 422 INDEX. 511 Page Assets — marshalling of, in favour of wife's claim to para- phernalia as against real assets de- scended - - - 422 devised ... 422, 423 not in favour of a charitable bequest 423 conversion of into the 3 per cents - - - 319 Assignee — in deed - - - - 167, 168. 199 in law - - - - 167, 168 after mesne assignments - - - 169,170 Assignment — executor's interest by - - 169, 170 by executor of a term in trust to attend the inhe- ritance - . _ _ 427 of diebt to the king - - - - 261 of legacy by commissioners of bankrupt 315. 321 of administration bond by the ordinary 495, 496 Attaint— writ of - - - - - 159 Attainted person - . . 34. 93. 103. 134. 213 Attainder — of high treason, writ of error to reverse - 435 property accruing to the crown by - - - 260 Attestation — of a will - - - - - 2. 16 of a codicil - - - - 6. 16 clause of, not filled up - - - 3 Attorney — administration granted to - - - 108 letter of - - - - 114. 221 executor or administrator of, need not deliver a bill of costs before suing for the same - - 441 Avowry— for rent as incident to a reversion for years in arrear at the testator's death - - 434, 435 accrued due after it - - - 437 Audita querela - - 128. 131, 132. 159. 260. 268 Auditors where the king is executor - - - 33 Aunt - - - - - - - 91. 385 Award— executor entitled to the benefit of - - 168 executor's submission to - - - - 425. 465 where he personally engages to perform - - 465 where there is a reference of the question whether he has or has not assets ... ibid. how far he is concluded by an, he has submitted to ibid. may be attached for non-performance of - - ibid. 512 INDEX. Page Award — money due to him by, not subject to foreign attach- ment , . _ - - 479 Bail — executor may hold to ... - 438 executor in general not held to - - - 467 in what cases he may be - - - ibid. Bail-bond — action by executor of assignee of 158. 161. 432. 438 Bank— the registering of probate at the . - - 255, 256 transfer of stock at the ... - 256 of stock specifically bequeathed - ibid. subject to action on refusal to make a transfer - ibid. Bank notes - - - - . - 234, 235 Banker's checks ... - - 235 Bankrupt — next of kin - - ' - - 93. 103, 104 executor - - - 120.486,487,488 commissioners of, cannot seize the effects of testator - - - 134.488 devastavit may be proved under a com- mission of - - - 429. 488 legatee ----- 315. 321 receiver appointed in case an executor becomes 488 executor carrying on trade pursuant to directions in the will may be a- - - - 486 executor defendant at law _ . - 467 and another person both claiming to be executor of a creditor of the bankrupt, order of the court thereupon - 488 an executor may prove a debt under a commission of - - - - - 452 commission of, of testator superseded - ibid* an executor of, incapable of taking out a commis- sion of bankrupt for a debt due to the testator ibid. certificate of, an executor may sign - - 452 where bankrupt was petitioning cre- ditor's executor, chose himself as- signee, and signed his own certifi- cate - . - - 452, 453 certificate of, cannot be signed by executor as such, and also in his own right _ - - - 453 INDEX, 513 Page Bankrupt — estate o., paying ten shillings in the pound, his ex- ecutor entitled to the allowance - - 453 Bargain and sale without enrolment no revocation of a will 20 Bastard . _ . - - 107. 386, 387 Beds fastened to the ceiling - - - - 198 Bees -.-..- 148, 149. 193 Benefice — purchase for son of a, an advancement - ■ 376 Birds ....--- 147 Bill of exchange .... 235.285,286 interest on - - - - 287 indorsed to executor - - - 438 Bishop • - - - - - - - 201 probate of the will of - - - - 53. 67 grant of administration of the effects of - - 94 Bona notabilia - - - 51 eit Jftf^r. 76. 94. 121, 122 fieritura - - - - 96. 247. 404. 427 Bond - - 157.216.234.252.278.281.432.437.463 voluntary - - - - - 283 payable in preference to legacies - - ibid. on an usurious contract . _ - - ibid, ex turpi causa ----- 283 joint and several - - - - 283, 284 joint only - - - - - 284 assignment of, by testator - - - - 154 bequeathed to a feme covert - - . 226 delivery of, by one of two executors of obligee in satis- faction of his own debt - - - - 360 in spiritual court by parties in distribution - 372 money due on, taken by executor not subject to foreign attachment - - - - - 478 loss of, by executor - - - - - 426 interest on, not recoverable beyond the penalty - 287 Book-debt ------ ibid. interest on - - - - - ibid. Borough English lands not to be brought into hotchpot - 381 Brewing vessels - - - - - 198 Brother^ - - - - - 88,89,90.384 of the half-blood - - - - 91 Caroome ___--- 152 514 liSTDEX. Page Carrier— goods delivered to - - - - . 154 Carrots - - - - - - 150. 194 Cattle - - - - - - - 147 young of - - - - - 166 Caveat - - 72, 73. 95. 123. 126, 127, and J^Tote 73 against seamen's wills - - - - 61 Certiorari ------- 264 Chamberlain of London . - - . 202. 221 where executor must give security to, to account upon oath for an outstand- ing debt _ _ - 254 Charity — legacy to - - - - - 340 Chattels — real - - - - - - 139 personal - - - - - 146 changed into chattels real - - 156 and vice versa. _ - - ibid. Child, posthumous .... 374. 390 Children ...... 370 legal representatives of - - - 371. 373 children's children - - - - 370 Chimney-pieces - - - - - - 197 Chose in action - - 106. 157 et seg. 216. 431 et seq. Citation^of executor to prove the will - - 43. 65. 93 of widow or next of kin to contest a nuncupative will - . - . - 59 of next of kin to accept or refuse administration, or show cause why it should not be granted to a cre- ditor ----- 104. 122 to produce an inventory ... 249 suit by ... 78. 129, 130, 131 by executor, or administrator of legatees, or next of kin, on passing his accounts in the spiritual court 494 Clock cases - - - - - - 198 Clover - - - - - - - 149, 150 Coat armour - - - - - -199 Codicil— -definition of - - - - - 6 how annexed . . _ - . ibid. relative to land - - - - 6, 7 to personal estate . - - ibid. written - - - - ~ 57 INDEX. 515 Page Codicil — nuncupative . . - - . 7 how far it operates - - ibid. revocation of will by - - - - 1 5 Co-executors — take a residue as joint-tenants - - 363 power of, of selling land - - . ibid. • whether it may or may not be exer- cised by survivor at law, it shall be enforced in equity - ibid. action by - - - - 445, 446 where an infant is co-executor - - 446 regarded as one person - - 445, 446 Co-heiresses must bring advancement out of personal estate into hotchpot - - - _ 379 Coffin, shroud, &c. " - - - - - 155 Collar of SS. -..-.. 199 Collaterals — among, no representation admitted after intes- tate's brothers' and sisters' children 372. 381, 382 College — head and fellows of - - - - 20 1 of physicians, president of - - - 202 CoZ/jg-ewdwOT— grant of letters ccf - - _ 43, 107 in several states - - - 41 effect thereof - - - - 107 collecting the effects by executor - 254 person appointed by court of equity to collect 408 receiver appointed in case of bankrupt exe- cutor - - - . 488 Commissary - . - - - - 44. 66. 74 Commission — to bishop or archbishop in England - 65, 94 in regard to seamen's wills - - 63 in regard to administration to seamen - 111 of appraisement - - 73.252,253 of review . _ . . 74 in the army, purchase for son of, an advance- ment - _ . . _ 377 Commons - - - - - - 139 Condition — interest vested in executor by - - - 164 Consanguinity — lineal ----- 87 how calculated - - 87, 88. 382 collateral - - - - 88 how calculated - - 89, 90. 382 516 INDEX. Page Contingent interests - - • - -212,313 Contribution-money - - - ■ - 221 Conversion of assets into the 3 per cents - - 319 Coppers 197,198 Copy — of will - - - - - ' "^^ of probate - - - ,- - 77,78 of ledger-book ----- 78 Copyhold - - - -• - - - 215 devise of - - - - - 32 fine for admittance to a - - - - 436 for lives - - - - - 179,180 mortgage of - - - . * 1^6, 187 rents, executor cannot distrain for - - 452 Copyholder, lease granted by - - - - 1 80 Corn growing 150. 159. 194. 203, 204, 205, 206. 218, 219 Cornage — tenure by - - - - - 191 Corodies - - - - - ~ -139 Corporation — aggregate - - - -33.201 sole _ - . - 33.201,202 Costs — in what actions executor plaintiff at law shall not pay 439 when not on a writ of error - - - ibid. not generally on a discontinuance - 440, 441 nor for not proceeding .to trial according to notice ibid. nor on a judgment as in case of a nonsuit - 440 in what actions executor plaintiff at law shall pay 439, 440 when on a writ of error - - - - 440 on a judgment of non-pros - - - ■ ibid. when on a discontinuance - _ _ ibid, when for not proceeding to trial according to notice ibid. effect of defendant's paying money into court in an ac- tion by an executor in regard to the costs - ibid. executor or administrator of an attorney need not de- liver a bill of, before commencing an action for 441 the bill in that case not taxed in C. B. - ibid, may be taxed in B. R. - 44! on above a sixth part of such bill being ta- ken off, executor not liable to the costs ibid. defendant executor when liable to, at law 467, 468 JSToie 468 when not - - - 468 INDEX. 517 Page Costs — defendant executor when bankrupt executor, defend- ant not discharged by his certifi- cate from - - - - 468 when liable to in equity - - 483 when not - - - ibid. executor entitled to, in the spiritual court - - 496 when party praying an account in that court liable to ibid. Covenant . . . . . 278. 284, 285 executor entitled to the benefit of - - 168 to perfoi'm a personal thing - - 158. 432. 437 touching the realty - - 158.163.432 to lay money out in land - - 8. 181. 392 on marriage to settle land - - 418, 419 by mortgagor to pay the mortgage money - 185 where legacy shall be in satisfaction of - 338 interest on demands arising from - - 286, 287 Court — baron - - - - - 50. 80 mayor's - - - - - 50 bishop's -. - - - - -51 prerogative . . _ - _ ibid. of great sessions in Scotland - - - 71 spiritual in Ireland . . - - ibid. in the East or West Indies - - - ibid. of the archdeacon - - - - 73, 74 of arches - - - - - 74, 75 of delegates . . . _ - ibid, oi fiie poudre ----- 264 of conscience - - - _ 436. 466 of orphanage in the city of London - - 234 in cities or towns corporate having power by charter or prescription to hold plea of debt - - - 263 temporal, to judge of the sufficiency of cause of repeal- ing letters of administra.tion - - - - 123 proctor's fees to be sued for in the temporal - 497 Cousin german - - - - ■ - 89 second ------ ibid. Creditor . . - - 104. 1 13. 122. 129. 192. 416 several applying for administration , - - 106 in respect to, several administrators regarded as one ' person 106? 10? 3P 518 INDEX. Page Creditor, marshalling assets in favour ol - - ^^"^ Cucumbers - - - ' ' " Cumulative legacies ----- 3o4 Curtesy — tenant by the - - - - ' ^06 Custom — in regard to probate of wills - - - 50 heir-looms by - - - " ^^^ for corporation sole to take goods and chattels in succession - - - - ''^'* of London - - - - " ^^^ distribution by - - 388 e( seq. in regard to widow's jewels -^ - 230 in regard to simple contract debts - 282 where a freeman dies leaving an orphan within age and unmarried, in regard to an inventory and account - - 254 in regard to apprentices when the master dies - - - - 476 foreign attachment, executors and admi- nistrators within the custom of, in what cases, in Avhat not . - - 478 of York 373 distribution by - - - - 400 of Wales - - . - - - 403 Cyder-mill - - ' - - - - 198 Damages .-..-- 284 recovered by an executor not subject to foreign at- tachment - - . - - 478, 479 Daughter of an aunt - - - - - 385 Dead man's part ------ 389 Dean and chapter - - - - 67. 94. 201 Debts — executor how far liable for - - - 459. 463 payment of, by executor - - - 47. 258 in what order - 258. 262 consequence of his not paying them in order - - 258 due to the crown by record . - - 259, 260 by specialty - - . - 259 ' other due to the crown - - 260 assigned to the king - - - 26 1 INDEX. 319 Page Debts— certain by statute - - - - 261, 262 of record in general - - . 262, 459 judgments as distinguished from statutes and recogni- zances - . . . . 262. 459 judgment against executor - - 265, 266, 267 writ of error by executor on judgment - 267, 268 effect thereof - - - - 268 decree in equity ... 269,270,271 executor protected in his obedience thereto - - 270, 271 recognizance - - - - 271, 272, 459 statute merchant - - _ - 272, 273. 459 statute staple - . . _ 273. 459 recognizance in the nature of a statute staple 274, 275 statute and recognizance not yet due - _ . 275 contingent - - 276 joint and several - - 277 joint only - - - ibid. recognizance not enrolled . - - - ibid. statute not regularly taken _ - . ibid. other inferior of record - - - 278. 459 by specialty - - - - 278.281 rent _ . . - - 278 e( seg. by specialty payable at a future day - - - 281 contingent - - - 282.321,322 voluntary bond - - - - - - -283 bond on an usurious contract - - . 283. 426 ex turfii causd . - - - 283 joint and several - - - - ibid. covenant . . - - - 284, 285 articles of agreement - - - - ibid. simple contract - - - - 285, 286 interest of - - - - - 286 barred by the statute of limitations not revived by the will 288 payment of out of their legal order - - 258. 424 creditor's granting priority by legal process - 288 by equitable process 289, 290 executor's power of preferring one creditor of equal degree to another - - - 289 ef seq. not controlled in the exercise of it in equity 29 1 520 INDEX. Page Debts— executor, his right of giving such preference not di- vested by a mere demand - - 291 how bound in conscience to pay, of equal de- gree - - - - 291, 292 may pay an inferior debt before a superior of which he has no notice, after a reasonable time ... - 292,293 not if he has notice - - - 293 executor paying a, out of his own purse - 238, 239 has the same equity as a creditor against legatees - - - 342 if executor compound, he shall not have. the benefit of 481 appearing after the payment of legacies - - 342 due to executor ... - 238, 239 may be retained by him - - - 295 in what cases - 295 et secj. on what principle - - 295 retainer for, by husband of executrix - - - 359 when the debt was due to him, or to the wife before marriage ... ibid. shall not retain in prejudice of his co-executor 361 devise of lands for payment of - - 411.418 when lands shall be assets only for the payment of ----- 416 payment of, by executor without notice of the revocation of the will - ... 78,79 payment of, by limited admhiistrator - - 404 retainer for, by limiled administrator - - 405 payment of, by administrator under a void administra- tion - - - - - 132 when a legacy is in satisfaction of a, when not 336. 338 action of, on a judgment of assets guando acciderint suggesting a devastavit - . . . 470 executor de son tort as against creditors may pay - 364 as against the rightful representa- tive cannot plead payment of 365 on general issue may give in evi- dence such payment in what cases - . . - ibid. effect thereof - ibid. when it is of no avail 366 INDEX. 521 Page Debts— executor de son tori in genei'al cannot retain ► 366 under the statute may ibid. collectors of, where appointed by court of equity - 408 due to the testator sperate ----- 248 doubtful - - - _ ibid. desperate _ - - . ibid, bona notabilia _ - - 54. 55 by specialty, or simple contract, how distinguished - 55 payment of, to executor, what shall be - - 425 under a forged will - 76, 77 under probate of a supposed will of a living person - 77 to administrator, under a void administra- tion 130 where an executor delays the receipt of - - 425, 426 executor may call in a, though bearing interest, in what case ------ 428 where executor compounds or releases - 47.481,482 release of by one of several co-executors 359, 360 receipt of, by limited administrator - - - 404 release of, by limited administrator - - 406 by one of joint administrators - - - 408 executor's assent to a release by will of - - 308 due from executor when regarded as a specific bequest to him - - - - - 350 where not - - - - 349, 350 due from executor durante minoritate - - 350, 351 from husband of executrix - - - 359 where one of several executors is indebted to testator, and dies, the surviving executors cannot sue his repre- sentatives for the - - - - 348 action of, by executor for arrears of rent - 450 by tenant per auter vie^ his executors and ad- ministrators, after the death of cestui que -vie, for arrears incurred in his lifetime ibid. in what cases executor at common law may have an action of, for arrears of rent - 45 1 by an executor suggesting a devastavit in the lifetime of his testator on a judgment reco- 52% INDEX, Page vered by such testator against an exe- cutor 432. 473 Debts— executor a creditor may sue his co-executors - 298 or the heir, where the heir is bound - - ibid. executor may prove a, under a commission of bank- rupt ... - - 452 due from executor in his private character not payable out of the assets _ _ - 134,135 due to the wife before marriage - - 122 Debtor — executor's interest in the person of - - 151 administration granted to - - - 128 Decree— in equity . - - - 269,270,271 in the administration of assets equivalent to a judg- ment at law - - - - - 270. 290 notice thereof _ - - - 270 merely to account - - - - 271 analogous to judgment quod comfiutet interlocutory judgment at law 27 1 . 290, 29 1 cannot be pleaded, or given in evidence at law - 270 yet executor shall be protected in his obedience thereto ... - 270. 290 Deeds— writings and securities relative to personal estate 154. 254, 255 relative to land - 191,192 to land sold on con- dition - ibid. Deer ----- 141.147.149.192 Delegates — court of - - - - - 74 Descents in the several states - - _ JVote 369 et seq. Detinue — action of, by executor _ _ . - - 434 Devastavit — by acts of abuse - 246. 268. 283, 307. 341. 344 of negligence - A2& et seq. and A''ote 294: effect of - - - . 463. 466 Avhat shall not amount to - 267, 268, 269. 428, 429 by one of several co-executors - - 430. 472 by husband where executrix marries after testator's death - - - 358, 359. 430. 471 by executrix before marriage - - 359. 430 by executrix marrying testator's debtor - 359 INDEX. 5a& Page Devastavit — executor of executor answerable for, by the latter 430, 473 executor de son tort chargeable for - 474 executor of executor de son tort chargeable for the, of the latter _ . . f3j^_ executor de son tort of executor de son tort not for the, of the latter . _ . ibid, administrator durante minoritate liable for, to the executor on his coming of age - - 475 not after that period to a creditor - ibid. executor may be held to bail in case of - 467 may be proved under commission of bankrupt executor .... 429 return of, by the sheriff - - 467 Devise — of lands to be sold - - - - 412 by a person not executor - ibid, by executor in conjunction with other persons _ . . ibid. by an executor for payment of debts and legacies - - 413 Devisee — where lands are devised by tenant in fee simple 411 of estate /ier cMfer x'fe _ _ _ ibid. of copyhold - - - - 411,412 of land, what chattels go to - - - 203 entitled to emblements - - - ibid. of personal estate entitled to emblements in prefer- ence to, of land - - . . 204 specialty creditor may resort against heir, and with- out suing executor of the debtor - - 41 1 Disceit — action of, by executor - - 159. 435, 436 Disseisor — of tenant for life - . , - 206 Distress — goods taken by - - - - - 154 executor's right of, in what cases - - 450 et seg. of executor of executor - - 452 for rent against executor of tenant for life, or for years . _ . . . 475 Distribution — of deceased's effects in pious uses - 81.107 spiritual court formerly attempted to enforce 369 under the statute ... ibid, statute o/y in t/14 several states JVote 369 et seg. 534 INDEX. Page Distribution — under the statute, purview thereof - - 370 provisions of the same - 370. 373 when to be made - - - 372 where intestate left wife and chil- dren, or representatives of chil- dren . - - - 373, 374 where intestate left one child 374 where some of the intestate's chil- dren are living, and some dead, each of whom has left children 375 advancement within the statute 376 of bringing into hotchpot - ibid. what shall not be such advancement 380 borough english lands descended not 381 where widow and no children, nor legal representatives of children 381, 382 where children, and no widow 382 where neither widow nor children ibid. among next of kin - - ibid. where any of the children die intestate without wife or issue leaving a father - - ibid. where any of the children die in- testate without wife or chil- dren, leaving a mother - ibid. where a child dies intestate and without issue, leaving a wife, brothers, and sisters, or chil- dren of a deceased brother or sister, and a mother - 383 where a child dies intestate and without issue, leaving neither brother nor sister, nor children of a brother or sister, but leav- ing a mother - - ibid. how far representation among collaterals is admitted 382, 383 ijfDEX. 525 Page Distribution — under the statute, where there are grandfather and brother . _ - 384i where there are grandfather and uncle - - . ibid. where there are grandfather by the father's side, and grandmother by the mother's - . . 335 where there are uncles and ne- phews, aunts and nieces - ibid. where grand-daughter of a sister, and daughter of an aunt - ■ ibid. disti'ibutive share vested on the death of the intestate - - 386 statute in the nature of a legislative will . - - - ibid. affinity, except in the case of a wife, no title to a - - - - - ibid, of the effects of a bastard intestate, without wife or child - - - . 386, 387 according to the law of the country where intes- tate was resident - - - 387 may be enforced in equity - - - 480 in the spiritual court 489. 495 by the custom of London - - 388 where widow and children - 389, 390 where only widow or only children 389, 390, 39 1 where neither widow, nor child, nor repre- sentative of a child - - 389.391 of dead man's part - - - 389 posthumous child entitled to - - 390 grand-children not - - - 390,391 custom attaches, though freeman neither resided, nor died, nor left effects within the city - - - 391.402 children entitled to, though born out of the city . . - - 394 widow's chamber - - 389,391 when barred of her customary share - - - 392 3Q 536 INDEX. Page Distribution— by the custom of London, where the orphanage share vests, when not - - 39 o when it survives . - - ibid. when not . _ - ibid. orphanage part where there is only one child ----- ibid. advancement by the custom - 394 bringing the same into hotchpot - ibid. in what cases, and how brought in 395 where advancement exceeds the share by the custom - - - ibid. nature of such advancement, complete, or partial - - - 396 must arise from personal estate only - _ - ibid. evidence of the same - - 397 different cases of advancement 398 and JVote 381 nature of the interest in an orphanage part 399 how claim to the same may be waived 399, 400 release thereof by husband of freeman's daughter an infant, on his covenant to release . - - - - 399 effect thereof - - 399, 400 mortgage of an inheritance to a citizen de- viseable accordhig to the custom 187 by the custom of York . _ - 400 widow's chambers and ornaments - 400, 40 1 when child's filial portion is vested - 401 advancement by the custom - ibid. may arise out of the real estate - ibid. heir at common law inheriting land in fee or in tail can claim no filial portion ibid. where intestate leaves a widow and three sons - - - - 403 such custom does not attach where intes- tate not resident in the province at his death - - - - 402 in respect of such custom, immaterial where his estate is situated - - 402 INDEX. 527 Page Distribution — by the custom of York, where custom of Lon- don shall control that of - 402 customs of London*and York in the main agree. 402, 403 by the custom of Wales - - - 403 Distringas — nufier -vice comitem sued out by administrator de bonis non . - - - 449 Divorce for adultery a mensd et thoro, how it operates in re- gard to the custom of London - - 393 Dogs ------- 148 Domicil of intestate ----- 387 Donatio mortis causa, definition of - - - 233 what shall constitute 233. 237 and JVote 234 what not - - - 235, 236 incapable of being bills of exchange 235 promissory notes ibid^ cheeks on bankers ibid, simple contract debts 236 arrears of rent ibid» query whether money due on mortgage can be the subject of - ibid. not proved with the will - ibid. executor's assent to, unnecessary ibid. not good against creditors - 237 Doors 197 Dower, tenant in - - - - - - 217 executor of - - - - 205.207 Duty on legacies ------ 329 Ecclesiastical court — remedies against executor and adminis- trator in - - 489 et seq. what evidence shall be admitted in 494 in what cases it has concurrent jurisdic- tion with the court of chancery 489 in what not - - - 490 cannot compel debtor of intestate to pay his debt into court - - 49 1 Judge of firobate {in Vermont) may en- force his decrees by attachment 41 bond taken for a legacy cannot be en- forced in - - - - 49 1 528 iNDEXc Page Ecclesiastical court — proctor's fees cannot be sued for in 497 Education — money expended for child's, no advancement 380. 496 Ejectment, action of— by execuW - - - 158.234 for an ouster of the testator, though seised in fee . - - 434 by husband for his wife's term - 215 Election— when executor may claim by, when not 174, 175 how a specific chattel may become an executor's own by - - - - - 238 Elegit — estate by ----- 139.212 will lie against an executor on a devastavit returned 470 Emblements — 149, 150. 194. 203, 204, 205. 208. 218, 219 and .Vote 208 advantage of, extended to the parochial clergy 208 Entry — power of, descends to the heir - - - 1 80 Equity — remedies for executors and administrators in 454 et seq. against executors and administrators in 479 et seq. 489, 490 executor cannot plead decree in, yet is protected in his obedience thereto - - 270,271.290 will not interpose in favour of one creditor, where executor has confessed judgment to another 291 in what case will not compel a creditor, suing both at law and in equity, to make his election - 291 executor may retain for his debt both at law and in 298 will not suifer him to prevent such privilege to the purposes of fraud - - - - ibid. where a creditor has more than one fund to resort to, and another only one, what, will require - 420 will not compel the executor to plead the statute of limitations at law in favour of the residuary legatee 343 executor paying a debt out of his own purse has the same, as a creditor against legatees - 342 executor trustee for a . legatee in, and in certain cases for the next of kin 351. 355. 361. 363. 479, 480. 490,491 administrator a trustee in, for the parties in distribu- tion ------ 480 surviving partner in trade trustee in, for the repre- sentatives of the deceased . - - 454,455 INDEX. 529 Page Equity— legacy payable at a future time, or annuity, tnay be secured in - - - - - 482 will secure the assets in case the executor becomes bankrupt _ . - - - 488 ivhere executor's power of dividing a legacy is con- trolled in - - - - - 319 where not . - , - 320 will compel a legatee to refund - - - 522 creditors and legatees entitled to what, where mort- gage has been paid out of the personal estate 285 will compel surviving or mediate executor to execute a power of selling land - - 363, 364 where the interest of husband and wife are treated as distinct in - - - - 225, 226 where wife is entitled to gifts to her separate use in 225, 226, 227 where not - - - - 228 where wife is entitled to gifts from husband in - 227 where not - - - - 227, 228 where husband shall be trustee for wife in - 226 where wife mortgagee in fee is a trustee in - 223 will not decree payment of wife's legacy to husband without a settlement - - - 321 or unless wife consent in court - - ibid. when wife's next of kin trustees for husband's repre- sentatives in - - - - 116.217 when husband's representatives entitled to wife's choses in action in - - - - 222 how far to wife's fortune in chancery - - 223 money covenanted to be laid out in land, has in, all the qualities of land - - - 392 release of orphanage part for valuable consideration binding in - - - - 399, 400 of redemption - - - - 184. 218 foreclosure of - - 185. 187 release of - - - 185 of redemption of mortgage in fee - - 415 whether legal or equitable assets - ibid. . of redemption of a mortgage for a term of years 415, 416 whether legal or equitable assets - - ibid. 530 INDEX. Page Error, writ of— by executor, - - - 267, 268. 435 query whether it lies to reverse testator's at- tainder of high treason - - - 435 costs on - - - - 439, 440 Escape, action for — by executor - 159. 161. 435. 437, 438 against sheriff's executor - - 459 Estovers - - - - - " ^39 Estray 210.221 produce of sale of, within the king's manors or liberties 260 Evidence — in regard to a legacy - - - 315 in regard to cumulative legacies - 334, 335, 336 parol, in regard to residue undisposed of - 355 of advancement by the custom of London - 397 Excommunication - - - - - 41. 65 Excommunicated persons - - - 12. 35. 103 Execution — where land and damages, or a deed relative to land and damages, are I'ecovered - - 201 where on a judgment recovered by two executors they pay different writs of - - 447 after executor is come of age, on a judgment obtained by administrator durante minoritate 447, 448 if executor or administrator die after suing out, but before the return of it, administrator de bo- nis non may perfect the same - 448, 449 where defendant dies before judgment is signed 266. 470 how tested - - - - 266 on a statute . - _ . 277 taken out on a statute, a judgment remaining unsatisfied - - - - 268 wife's term may be taken in, for husband's debt 213 not after his death in case the wife survive 215 testator's effects cannot be taken in, for executor's debt .... 134, 135 \mless he convert them to his own use - 135 or consented to the seizure - - ibid. Executor — definition of -- - - -33 derives his authority from the will 33. 46. 75. 95. 101 mtcst give bond ifi several states ... 58 INDEX. 531 Executor—who may be - . . . ^33 the king - - . . ibid. corporation aggregate - . ibid. sole - . - . ibid. infant - - - _ 34 where one executor is an infant, and his co-executor not - . io2 child or children in ventre sa mere 34 feme covert with husband's consent ibid. of feme covert executrix - - 3 1 although she be an infant - ibid. alien friend - ibid, and JVote 31 outlaw - - . . ibid, person attainted - ibid, and ATote 31 villain 35 party insolvent - - -35.341 what Roman catholics 35 and JVote 33 who not - - . . . .ibid. party excommunicated till absolution ibid. what papists - . . ibjd. denier for the second time of the Holy Trinity - ... 35 of the Scriptures - . ibid. persons not having qualified for offices 36, 37 alien enemy . , _ 35 British artificers going out of the realm to exercise or teach their trades abroad, or so trading, who shall not return within six months after warn- ing - - - - ibid. persons under mental disability - 37 idiocy - . . . ibJd. insanity - - . ibid. age ... . ibid, ag-e at ivhich one 7nay be executor in the several states - - 3 1 disease ... 37 intemperance ... ibid, having been boiVi blind and deaf ibid. appointment of - - . . ibid. 532 INDEX. Executor— appointment of, express 32 implied - ibid. absolute ibid. qualified 38. 100. 350, 351 of joint executors 39 considered as one person 39. 243.359 office of, not assignable 43 may be refused, and how 43,44. 93. 348 refusal of, by a bishop 44 refusal of, in person - ibid. oath thereupon ibid. refusal of, by proxy - ibid. must be entire 44. 143.279 effect of - 44 . 348 J^ote 75, 76 when refusal may be retracted, when not 44. 93 fienalty on not refusing or acce/iting with- in a certain time - - 41 acceptance of the office of - - - 44 effect thereof - - - ibid. what acts are an acceptance - 44, 45 what not - - - - 46 administering an act in pais - - 115,116 refusal of the office by several co-executors 46. 93 by some and not by others 46 effect thereof 46. 69. 351. 446 by sui'viving executor 46. 69. 93 118. 120 death of, intestate - - 114, 115. 135 executor of - - - - - 118 not executor of first testator in some states _ _ _ 68 refusal by - - - - 46 minority of - - - 1 19 executor of deceased co-executor - - 118 executor of surviving co-executor - - 69 surviving co-executor dying intestate 69. 118, 1 19 not ascertained - - - - 120 concealed - . - - . ibid. INDEX. 533 Page Executor — abroad - - - - - 120 of a person domiciled in a foreign country - 457 factor of goods appointed by principal - ibid. becoming bankrupt - - . 120,134 being attainted - - - - 134 interest of, in the property 133 et seq. 488 and J^ote 133 his constructive possession thereof 152, 153 of executrix not transferred by her mar- riage - - - - 136 order in which the different species of such property are treated - - 137, 138 interest of, in chattels real - - - 139 what so denominated - 1 39 e/ seq. when they relate to incorporeal heredi- taments - - - i45j 146 entry of, on corporeal hereditaments necessary 145 possession of, of incorporeal hereditaments con- structive - - 145, 146 in chattels personal - - 146 animate - - 147 vegetable - 149 corn and other emble- ments 149, 150. 194. 204. - 208 trees - - 195 inanimate 150, 151. 198. 200. 211 in property in the public funds - - 151 in the avoidance of a church - - ibid. in the person of a debtor ibid. in a prisoner - ibid. in a negro servant - ibid. in an apprentice 152 in literary property ibid. in a patent for an inven- tion - - ibid. in a share under the sta- tute of distributions 386 R 534 INDEX* Page Executor— possession of, in chattels, in a caroome - 152 allowance to bankrupt survives to his - - 43 when the interest in the property is vested in 152. 386 when not - - 154 interest of, in deeds and writings relative to personal estate - - - - ibid. when in writings relative to land 192 interest of, in the coffin, &c. - - 155 in chattels personal changed in his hands into chattels real and vice versa 156 of executor of deceased tenant in com- mon - - . - - 155 of deceased partner in trade or husbandry - 155 interest of, in choses in action where the cause of action accrued before the testator's death - - - 157 etseq. in equitable claims subsisting before 160 in choses in action, when the cause of action accrued after - - ibid. in equitable claims arising after 161 by condition - - - 164 in things in pledge - - 164.257 by remainder - - - 165 or increase - - - 166 in a trade - - 166,167.487 by assignment - - - 167 by limitations of chattels real - 170 of legacies - 171, 172 of interest arising out of land as portions 172, 173 by election - - - 174 light of, to rent in what cases - - 179 to arrears -oi a. nomi?ie /i(je7ite - 178 to bond for owelty of partition 1 80, 1 8 1 to money covenanted or agreed to be laid out in land - - - ibid. to mortgages - - 140 e; seq. to tithes set out in testator's lifetime 183 INDEX. 535 Page Executor— how effects he takes as such may become his own 238 when he gains a settlement - - - 146 interest of married woman executrix 241 et seg. of joint executors - - - 243 in case of death vests in survivor - - ibid. of limited executors - - 354 of executor of - - 69.243 of executor of surviving co-executor 69 the burial of the deceased by - - 245 the making of an inventory by - - 247 and J^ote may sell perishable articles before making an in- ventory ----- ibid. the collecting of the effects by 164. 254. et seg. powers of, for that purpose - 46. 254, 255 the registering of probate at the bank by, and trans- fer of stock ... - 255,256 sale of the effects by - - - 256,257 mortgage of term of years by - - 256 assignment of mortgaged terms by - - ibid. of term in trust to attend the inheritance by ... - 427 recovering the property by, by action or suit ibid. redeeming pledges by - - 164,165.257 carrying on trade by - 166. 480. 486, 487, 488 disposal of testator's stock in trade by - 487 where he shall present to a church - - 190 payment of debts by 258 e; seg. and Mote 259 et seg. may retain his own debt - - - 295 contra - - - J^ote 239, 298 compounding debts due from the testator - 481 paying such debt out of his own purse 342. 449 where he so pays an inferior debt before a^ supe- rior debt - - - - 429 where he delays payment of a debt due from tes- tator _ - - - - 426 not bound to plead the statute of limitations 343 compounding or releasing debts due to the testa- tor 481,482 536 INDEX. Page Executor — how far liable where he gives a receipt for part of a debt .... 428,429 where he compounds an action of trover for testator's goods by tak- ing a bond payable at a future day ... 429 where he takes a bond in his own , name for a debt due to the testa- tor - - - - 425 release of a chose in action by - - 424, 425 where he delays bringing an action so as not to save the statute of limitations - - 426,427 executor and trustee, former distinction between, when devisees of land to sell - 412, 413 naked power of, to sell land, effect thereof, 412,413, 414 and JVote 364 general ponoer of to tell land - - Note 364 has a discretion of acting for the benefit of the es- tate ----- 428, 429 may call in a debt though bearing interest, in what case ------ 428 submission to arbitration by - - - 425 cannot bequeath the assets - - 135 cannot waive a term for years - - - 143 unless where there are not assets to pay the rent - - - - 143, 144 what he is to do where there are assets to pay rent, but not for the whole term - - - 144 where he loses the effects - - - 426 where he sells goods at an undervalue - - 427 where he suffers money to lie dead in his hands ibid, where he delays disposing of goods, by which they are injured ----- ibid, responsible only for the damages he recovers for goods taken out of his possession - 428 not answerable for a loss by the fall of stocks ibid. nor for money lent on a real security not suspi- cious at the time - - - - ibid. shall have no allowance for executing the office, unless directed by the will - - 456 INDEX. 537 Page Executor — whether a legacy be left him as a recompense or not _ - - - 456 in what special cases entitled to a commission 457 effect of grant by, of all his property - - 134 to what actions liable . - - 458 et seg. not liable to actions for a tort - 460, 461, 462 nor where defendant could have waged his law - - - - - 461 when personally liable on his promise 463, 464 what acts shall constitute an, a trader, what not 486, 487,488 executor debtor - - 347 and JVote 350 one of several executors debtor - - 348 when he shall be trustee to the amount of the debt for the residuary legatee or next of kin 350 executor legatee ... - 344. 350. 352 liis assent to his own legacy - 345 express - - ibid. ^ implied - - 345, 346 where not implied - 346 till he has made his election shall take his legacy as executor _ . - ibid. m must act, or show his intention to do so, to entitle himself to a legacy for his trouble 347 cannot give himself a preference in regard to a legacy - - - ibid. reversioner in fee, of a tenant for years - - 134 interest of, of tenant in common - - - 155 infant, incompetent to act - . 34. 101. 356. 445 formerly might have acted in many respects at the age of seventeen - - 34. 356 not liable to be sued - - - - 471 executor durante minoritate - - 36, 37, 38 executor durante minoritate debtor - 350, 351 acts of, durante minoritate - - - 357, 358 distinguished from an ad- ministrator durante mi- noritate ' - 406 executor durante minoritate, action by - - 445 538 INDEX. Page Executor— executor coming of age after the filing of a bill by administrator durante minoritate - - 458 executor durante absentia. « - - - 38 acts of a married woman executrix - - 358 how restrained where the husband is abroad ibid. in case she survive, not liable to an action sug- gesting a devastavit by the husband - 471 acts of co-executors 359, 360. 430. 447. 457. 472. 483, 484, 485, 486 not distinguishable from those of joint ad- ministrators - - - - - 408 must be all sued in case they have all ad- ministered - - - - - 471 where one shall not be affected by notice to the other ibid. limited executor liable to be sued - - ibid. power of a surviving co-executor - - - 363 of a mediate executor - 364. 430. 447. 452 chargeable m what case for the act of his testator - 430. 473 when residue undisposed of shall go to, when not 351 et seq. 361 when to co-executors,, when not - ^■ - 361 i,cis guando acciderint ... 470 confessed bv one of several co-executors r^GO. 472 i^DEX, 549 Page Judgments — on simple contract confessed by an executor being ignorant of a bond, on which judgment is after- wards given - - - 293,294 against husband and wife executrix, if she survive, not liable to an action of debt suggesting a de- vastavit by the husband - - 47 1 form of, against an executor - - 463. 469 form of, in the alternative - - 463,464 for the costs 467, 468 interest on a - - - - 286 Justices of the peace have no authority to order an executor to maintain an apprentice - - . - - 476 King — may be executor - - - - 33 entitled to effects of intestate in what cases 107, 108 debts due to - - - 259 et seg. 285 debtor of, outlawed on a mesne process - 261 assignment of debt to - - - - ibid. property accruing to, by outlawry - - - 260 Land — settlement of, on child _ . . 371.376 Leads 197 Lease — for years - 56. 86. 140, 141. 176 el seq. 212. 252 determinable on lives - - 140. 176 of a rectory - - - - - 146 by parol ----- 278, 279 made by administrator durante minoritate how far good ------ 405 sale of, by limited administrator - - ibid. Leets — profits of- ~ - - - -139 Legacy — upon condition - - - - 314 definition of - - - - - 299 general - - - 301,302,303 specific - - ibid. JVote 302 to a nvitnesa of will - - - - 58 lapsed or vested, in what cases 171, 172. 303. 306. 357. 454 and jYote 304 , shall lapse, though left to legatee, his exe- cutors, administrators, and as- ■signs - - - 304 3 T 550 INDEX. Page Legacy— shall lapse, though testator express an intention to the contrary - - - 304 if legatee die before the condition on which it is given be performed - 238 or before it is vested - 304, 305 may be so framed as to prevent its lapse - - 304 to several persons not extinguished by the death of one of them . . _ . ibid. nor to remainder-man by the death of the first legatee - - - - - ibid, nor to remainder-man by his death in the life- time of the first legatee -. - 305,306 nor if the legatee take in the character of trus- tee - - - - - 304 nor if made to carry interest - 305.313 distinction between such as is vested, and such as is not - - - - 171, 172. 305. 313 charged on land, when vested, when not 172, 173, 174 to be laid out in land _ _ - 303 executor's assent to - 44. 46. 140. 306. 308 why necessary - 306, 307 effect of - - - 307 legatee cannot take possession of, before such assent - 39. 307 legatee's interest in, before 307, 308 such assent express - - - 309 implied - - 308. 310 absolute - - 310 may be on condition precedent ibid. not subsequent - 310,311 shall confirm an intermediate grant by legatee of his legacy 311 to a release of debt by will 308 good before probate - 312 not before executor has attained twenty-one - - ibid. has relation to testator's death 3 1 1 once given, irrevocable - ibid. when it cannot be given 311, 312 one of several co-executors mav assent to - 36 ) INDEX. 551 Page Legacy — assent to, by limited administrator, with the will an- nexed . _ - . . 405 payment of . . - . 312.424 when to be paid - 312, 313 and Abre 314 to whom - 312,313.321.323.327,328 voluntary bond payable in preference to 283 payment of, when legatee is an infant - 314 executor has no right to pay it to the father - - - 314 et seq, unless very small, when he may, into the hands of the infant, or to the fa- ther - - - - 318 payment of infant's, into court, under the stat. 36 Geo. 3. c. 52 - - - - ibid. payment of, to an infant by an executor, to save a forfeiture of his own - - - - 316 payment of, to the father of an adult child - 314 illusory payment of - - . - 320 payment of, to be divided at executor's discretion 319, 320 where the legacy is left to one lega- tee, to be divided among himself and others - - - 321 payment of, where legatee is a married woman 320 living separate from her husband ibid. divorced a mensd et thoro - 320, 321 executor may decline paying her legacy where no provision has been made for her, unless the husband will make a settlement - - - V^SI nor will chancery compel such paymenf^V. but on the same terms, unless the wife appear in court, and consent - ibid. payment of, where legatee is a bankrupt - ibid. where the legacy was left after signing, but before allowance of his certifi- cate . . - - ibid. conditional payment of, and security to refund, an obsolete practice , . - - 323 552 INDEX. rage Legacy— payment of, bequeathed to legatee conditionally 313, 314 without notice of the revocation of the will - - - - 79 distinction between a voluntary and a compulsory payment of - - - 341 where the assets were originally deficient, and where they afterwards became so by misapplication - - - ibid. payment of interest on - - 171,172.323 from what period to commence 323. 327 when specific - - 323 where legatees are infants 325 where infant legatees die before twenty-one - - ibid. where the infant is the child of testator - - - ibid. where a natural child - 326 where a grandchild - - ibid. where a nephew - - ibid. on a bequest of a residue to be divested on a contingency ibid. where left to infant, payable at twenty-one, and devised over on his dying before, and he so dies - - 326, 327 where father of infant legatee is living - . _ 327 where the principal of a, left to an infant, shall be broken in upon - - 317,318.327,328 where not - - . _ 317,318.328 rate of interest payable on - - - 328 must be paid in the currency of the country in which testator resided when he made his will' 322 interest to be computed according to the course of the court - - - . 328 how paid where testator left effects partly here, and partly abroad - - _ . 322 where some legacies are described as ster- ling, and others not - - 325 INDEX. 55^ Pagf I>egacy — how paid, where legacy is charged on lands in an- other country - - - 323 payment of, by administrator under a void adminis- tration - - - - - 112 out of a mixed fund of real and personal estate, pay- able on a future day, and legatee dies before the day - - - - - - 422 receipt for - - - - - 329 limitation of - - - - - 170 ademption of ... - 329 express . - _ - ibid. implied - - ibid, et seg. pro tanto . . . 333 when cumulative, when not 334. 336 and Note 334 when in satisfaction of a debt, when not -, 336.338 and Note 338 abatement of,'generaI or specific 306. 339, 340. 347 and Note 340 et seq. of specific legacies out of a specific chat- tel - - - - 340 of legacy to a charity - - - ibid. refunding of, in what cases, in what not 341, 342. 347 and Note 341 payment of, to residuary legatee - - 342 left to executor - - - - -347 pecuniary or specific unequal to co-executors 361, 362 equal pecuniary legacies to co-executors - 362 equal specific legacies to co-executors - ibid. executor's assent to his own _ - - 345 express - - - ibid. implied - - - ibid. cannot give himself a preference in regard to a - - 347 on a bequest to executors general- ly, one may assent for his part 361 effect of one executor's taking his legacy without the assent of the other - - - 45 to executor for his trouble - - 3*7. 352. 456 554 INDEX, Page I-,egacy — to executor for his trouble, must act, or show his in- tention to act, to entitle himself to such a 347 to one of two executors for his care and trouble 361 specific, to executor, no bar of money due to him on mortgage . . - - 185, 185 when debt of executor a specific bequest to him, when not - - - - - 347.351 specific, to husband and wife, joint-executors 359. 362, 363 interpolation of a - - - - 70 where lands shall be assets only for the payment of legacies -- - - -416 payable at a future time may be secured, and appro- priated in equity - - - - 482 whether vested or contingent - - ibid. out of personal property may be sued for in the ec- clesiastical court - - - - 489 in a court of equity . - - - 479 out of land only in a court of equity - - 490 bond for, cannot be enforced in the ecclesiastical court - - - - - 491 no action at law lies against an executor 465, 466 contra . - - J^fote 465 in the hands of an executor not subject to foreign at- tachment - - - - - 479 Legatee-— who may be - - - - - 299 wife ----- 300 infant in ventre sa mere - ibid. who not - - - - - - 299 traitors _ . - - ibid. persons not having qualified for offices 299, 300 persons denying the Trinity, for the second offence . _ . . 300 or the scriptures - - - ibid. artificers going out of the kingdom to exer- cise or teach their trades abroad, and not returning within six months after due notice • - .» - ibid. INDEX, 555 Page Leg;atee — who not, witnesses to the will or codicil 300 J^ote 58 description of legatees - - ibid, and JVote 300 mistake in the christian name - - ibid. specific, cannot retain the legacy in his possession, though there be assets - - 307 nor although testator direct that the legatee shall take the legacy without the execu- tor's assent . - - 307 advantage of - - - - 340 disadvantage of - - - ibid. where executor is - . - - 344 residuary - - 99. 117, 118. 122 and JVote 334 legatees, several residuary - - 99.117 executor and residuary - - - 117 feme covert executrix and residuary - - 118 marshalling assets in favour of - - 420 may sue in chancery, and in the ecclesiastical court at the same time - - - - 49 6 Letters private, written by testator enjoined from being pub- lished without executor's consent - - - 455 Libeller - - - - - - 13 Limitation — executor's interest by - - - - 170 of a legacy - - - - 171 Limitations — stat. of, executor, not bound to plead to an ac- tion by testator's creditor - - 343. 429 contra - - JVote 428 \. executor's suffering testator's creditor to avail himself of - - - - 426,427 Lis fiendea^ _ . . . - 66. 94. 103 Literary gjfoperty . - - - London — custom of the city of - - where it shall control that of York custom of, and York, in the main agree Looking-glasses - - - - Loss — of probate . - - - of letters of administration of the effects by the executor's negligence Locks and keys - - -• - Lunatic~committee of - - 152 388 ee seg. hat of 402 402, 403 197 - 77 95 - 426 - 197 182. , 183 55^ INDEX. Page Lunatic — estate of - - - - --191 chancery will change the nature of, for the benefit of the owner - - ibid. Maintenance, money expended for child's, no advancement 380. 396 Mandamus - - - - 57. 66. 86. 94. 105 Manure - - - - - - - 150 Marines , . . - - 5. 60. 109 Marriage settlement - - - - - 284 articles ----- ibid. settlement, operation of, in regard to the custom of London _ . - . 392,393 of female orphan of the city of London under twenty- one - - - - - . 393,394 Mayor and commonalty - - - - 201 aldermen of London - - - - 254 Melons --..-- 150 Memorial of wills affecting lands in Yorkshire or Middlesex 246 Merchandise - - - - - - 150 Merger of a term - - - - -141,142 Millstones - - - - - - -197 Minor distinguished from an infant - - - 100 Money - - - - - - 150.224 covenanted, or agreed to be laid out in land - 8.181 cannot be followed when invested in a purchase 182 where land had been sold by fraud, refunded after the a death of vendee _ - . - T88 collected on briefs for rebuilding a copyhold tenement 0^ 200,201 of testator intermixed with executor's - - 238 Monument in a church - > > - 199 Mortgages - - . . 139. 164. 183. 222 of freehold and copyhold lands - - 422 in general personal contracts, and the mortgage- money belongs to the executor - 183. 187 where not - - - - 185 when the condition mentions neither heirs, nor executors - - - - 183 if it appoint the money to be paid to the heir or executor - - 183.185 INDEX, 557 Page Mortgages— mortgagor's failing to redeem, effect of - 186 forfeiture of, and mortgagor's releasing to the heir of mortgagee in fee - - - 187 devise of, as real estate by mortgagee ' - 188 devise of, as real estate after a decree of foreclo- sure, nisi - - - . 189 where it will not pass as land under a general de- scription of locality - - . ibid. ancient - - - . , 137 in fee to a citizen of London - . . ibid, money secured by, articled to be laid out in land, and settled - - - - 189 mortgaged lands descended - - - 418 devised - - 418.421 estate bought subject to - - - 419 in fee, lands held by, descending before redemp- tion to the heir within the province of York 401 debts by, as they affect the personal assets 285 how far a revocation of a will - - 26 legacy given out of - - - . 323 to wife in fee - - _ . 222 223 for a term of years - - . _ ibid. by husband and wife of the wife's term 216. 218 of terms of years by executor - - 256 mortgaged terms, assignment of, by executor ibid, executor not barred of money due on, by a spe- cific legacy - - . -185,186 Mortgagee, fraudulent sale by - _ , - 188 Mother ----.. go relations by her side - - - -91 what a child receives out of the estate of the, no ad- vancement - - - - _ 380 Negro servants - - _ - _ 151 Nephew - - - - - - 90. 385 son of the -.---, gQ Niece ---..-. 335 Nomine poenae - - - - . 178 Nominees when the king is executor » - - 33 558 INDEX, Pagfe Notice of judgments docquetted - . . 269. 29S not docquetted . » - 268, 269 in inferior courts of record - - 269 of a decree in equity - - - - 270 express ----- 270. 292 implied ----- ibid. of recognizances, statutes, and other inferior debts of record ------ 278 of debts by specialty - - - - 293 one executor shall not be affected by, to the other, who conceals it from him - . - - 472 where, to one shall be presumed notice to the other ibid. Nuncupative will - - - - 2. 16. 37. 59 executor may be appointed by - 37 codicil . - - - - 6 Oath on renunciation of executorship - - - 44 on taking out probate - - - 58. 250. 492 administration - - - 96.250 special, on exhibiting an inventory - - 250. 252 Office, civil or military, purchase for son of, an advancement 377 Official - - - - - - 66. 74 Orphan's portion - • • - - - 221 Orphanage money . , - ■ - 202 part by the custom of London - - - 393 nature of the interest in - - 399 release of, for a valuable consideration, binding in equity - - . 399, 400 Ovens ------- 198 Overseers of the poor, money due from - - - 262 Outlaw .... 12,34.93.154.213 Outlawry, property accruing to the crown by - - 260,261 of the king's debtor on mesne process - - 261 legacy forfeited by, of legatee, though before exe- cutor's assent - - - - 308 Owelty of partition, bond for - - - 180,181 Pales ------- 197 Papists - - - - - . - 35 INDEX. 659 Page Paraphernalia of the wife - „ . . 229 necessary apparel ... - ibid, bed . . _ - - iiid. pearls - - - - -ibid. diamonds . - - - ibid, plate boug;ht with wife's pin-money - - 230 cloth delivered to wife for her apparel - 230 jewels presented by husband to wife for the ex- press purpose of wearing them - 230,231 husband may sell or give away in his lifetime wife's ornaments - - - 231 cannot bequeath them - - ibid. wife not entitled to such ornaments where the assets are deficient at husband's death ibid wife's ornaments preferable to legacies - ibid. if pawned by husband in his lifetime, shall be redeemed out of his personal estate 231, 232 where wife is excluded from, by her own agree- ment _ _ - - - 232 her necessary apparel protected even against creditors - - - ibid. when husband bequeaths to wife her jew- els and then over, and she makes no elec- tion to have them as - - - ibid. marshalling assets in favour of - 422, 423 Parents ....-- 90 Parish apprentice ------ 476 Parrots - - - - - - 148 Pars rationabilis - - - - - 81. 389. 403 Parsnips - - - - - - 150. 194 Parson - - - - - --201 Partner — on the death of one, his interest at law vests in his representatives - - - - ibid. but the remedy at law survives - - ibid. surviving, regarded in equity as a trustee for the re- presentatives of the deceased . - - ibid. interest of the executor of a deceased, in choses in action - - - - 163 560 INDEX. Page Partner — -how the action in such case brought - 163 executor of a deceased, and the survivor, cannot be jointly sued for a debt due from the partnership 475 Partners in trade _ . - , - 454 Partnership in trade - - - - 155, 166 Partridges - - - - - 147, 148. 192 Patent— granted to testator - - - - 152 grant by letters, of effects of a bastard dying intestate and without issue - - 107, 108. 386, 387 Pawn— goods in - . _ - - 154. 164 executor's power to redeem them - - 257 executor redeeming goods with his own money in, shall be indemnified out ofthe effects 164, 165 executor so redeeming goods in, to the amount of their value is regarded as a purchaser of them in his own right - - - 165 effect of such redemption of goods in, where the time specified for redemption is past - ibid. wife's paraphernalia in - - 231,232 writings of an estate in - . - 192 Pearls - - - - - - - 229 Peculiar - - - - - 50,51, 52 Pews - - - . - - - 199, 200' Pheasants . - . . . 147, 143. 192 Pictures - - - - - - 150. 197 Pigeons .... 141. 147. 149. 193 Pin-money _...__ 228 arrears of, at husband's death - > ibid. Plantations, judge of probate in the - - 71,72 how bound by grant of pro- bate here - ibid. estate in fee in - - - - 4 1 6 Plants - - - - - - - 149 Plea puis darrein continuance , , . _ 353 Plea, false, pleaded by executor - - 289. 463. 467 Pleas, distinct, pleaded by co-executors _ - _ 472 Plene administravit, plea of - 267. 279, 280. 365. 367. 470 evidence thereof - 267. 282. 298. 367 Policy of insurance, re-assurance by executor - - 453 411 INDEX. o61 Page Portion 172.329.371.376 in futuro, an advancement ... 377 contingent, an advancement - - 377, 378 charged on land, when vested, when not - 172, 173 may be vested, but not raisable imme- diately - - - 173 devise for raising, pursuant to an agreement before mar- riage _----- filial, by the custom of York - - - 40 1 Portraits ancient - - - - - 19^ Possibility 170.212,213,214 tenant after, of issue extinct - - - 207 Post-office, money due for letters to the - - 262 Posts and rails - - - - - - 197 Ponkry - - - - ' - ^47 Power of executor to sell land - = - 412,413.416 Presentation to a church - - 139. 144. 189, 190 when the grantee of the next, dies after the church becomes void, and be- fore presentation - - 190 Presents by a father to his child - - - 380. 396 Priority of date, when not material - - 263. 265. 275 Prisoner - - - - - 10. 93. 151 Probate — acts of an executor before - - 46. 245. 312 what actions he may commence before 46. 445, 446 what actions he may maintain before - - 47 executors liable to be sued before - - 48, 49 relation of - - - - - 46, 47 shall not prejudice a third person - 47 death of executor before - - - 49.115 after taking the oath, but before the passing of the grant - - 49 effect of, by limited executor in regard to subsequent executor - ;- - - 49.457,458 jurisdiction of granting - - - - 49 in the several states - - 49. 70 effect of probate when made abroad 56 by courts-baron - - - 50 by mayors of boroughs - - ibid. by the ordinary or metropolitan - ibid. 562 INDEX, rage Probate — jurisdiction of granting, bona notabilia^ what shall be - - - i\'et seq. of the amount of - - 53 debts bona notabilia - - 54 how considered when by specialty 55 when by simple contract ibid, bona notabilia in England and Ire- land - - . 53 what shall not be bona notabilia 52. 56 privilege of granting, personal - - - 66 when void, when voidable - - - 53. 73 of will, when proved in the common form, and when per testes^ and how - - - 56, 57 how will and codicil in testator's hand-writing proved 57 in another's hand-writing - 58 oath on taking . - - - ibid. what is styled so - - - - ibid. of nuncupative wills - - - - 59 of the wills of seamen and marines - - 60 Avhere executor is infirm, or at a distance in England or foreign parts - - - - 65 of citing executor to prove - - - ibid. effect of his failure to appear - . - ibid. penalty for his acting and neglecting to prove within six months - _ . . 43. 55 ordinary bound to grant - - _ gg compellable by mandamus - - ibid. what he may return . - - ibid. may act by his official - - - - ibid. when granted by the dean and chapter - 67 of a bishop's will . _ . 53. 67 double - ... - 67 where several executors with distinct powers ibid. of will of a married woman - - - 68 when limited ----- 68, 69 new, by executor of executor not necessary - ibid. by surviving executor having refused during the lives of his co-executors - - - - 86 ©f wills of personal estate only - - 69 of a mixed nature - - - - 70 INDEX. 563 Page Probate— not to be granted of wills respecting lands merely 69, 70 of a will with reservation as to a legacy - 70 of a will of a party long absent - - ibid. of will lost . _ - . - 71 of will illegible by accident ... ibid. how a will proved in Scotland is proved here - ibid. how if in Ireland . - - ibid. how if in East or West Indies - ibid. grant of, by judge of probate in the plantations after such grant here - - - 71, 72 of a will made abroad disposing of effects here - 72 of effects abroad according to the custom of the country sufficient . _ _ ibid. of will in a foreign language - - - ibid. of will annexed to an administration - - 98 revocation of - - - - 73. 75. 78 revoked for fraud - - - 73 ©n proof of revocation of the will ' ibid. of making a subse- quent will - ibid, ©f appeals in regard to - - - 73. 75 when affirmed on appeal, cause sent back - 75 granted de novo by court of appeal when sentence reversed ----- ibid. effect of - - - - 75. 115 death of executor before - - 115.140 effect of - - - - . - ibid. death of executor residuary legatee intestate before 1 18 effect of - - - - - ibid. death of executor residuary legatee leaving a will before ----- ibid. effect of - - - ibid. ATole 59. 70 death of executor residuary legatee intestate after, effect of ----- ibid. within what time will be proved in the common form may be disputed - - - - 76 within what time a will formally proved - ibid. ilnrevoked, not to be contradicted - - ibid. 564 INDEX. Page Probate— seal of ordinary may be shown to be forged - 76 or that there were bona notabilia - - ibid. payment of debt to an executor under, of a forged will, good - - - - 76, 77 practice not to try forgery of a will while litigating in the spiritual court _ - - 77 payment of money under, of will of a living person void . - - - - ibid. loss of - - ibid. how probate may be proved 77, 78 issue taken on, triable by a jury 78 effect of revocation of - - . ibid. J\rote 468 not revocable . > - - 78 of registering at the bank 255,256 Prohibition . . - - 70. 127. 318. 491. 494 Promise — memorandum in writing of - - - 464 consideration of - - - - ibid. what is sufficient - ibid. Promissory note - - - - 157 . 235.286 interest on . . _ - 287 Pumps ...... 197 Per auter vie tenant . - - - - 208 estate - - . - 410,411 Quaker ...... 43 Quare imjiedit - - - - 158.161.240. 434. 437 Queen - - - - - - 12 Rabbits - - - - - 141. 147 Rails ..-.,. - 197 Receiver .---._ 102, 103 jiendente lite . . . . - 103 may be appointed by chancery in case an executor becomes bankrupt - 488 when husband of executrix is abroad . . - 353 Receipts— for a legacy - - . _ 329 executors joining in a - . - 483, 484 effect of - - 484 INDEX. 565 Page Recognizance . . _ - - 56. 263. 432 definition - - - - 271,272 distinction between, and a bond - - ibid. how authenticated . _ . 272 in the nature of a statute staple 272, 274, 275 description of - - - 274, 275 recognizance and statutes payable in the same order ----- 275 not yet due - - - - 275, 276 contingent - _ - - 276 not enrolled, how considered - - 277 Rectory, lease of - - - - - 146 Refunding of legacies - - - - - 341 Refusal of the office of executor - 43. 92, 93. 120, 121. 128 of administrator _ - - 120 Registry of the spiritual court - - 58. 96, 97. 119. 492 Register's book in the spiritual court - - 78. 95 Registering probate at the bank _ _ - 255, 256 seamen's wills - - - - 60 Registry of wills affecting lands in Yorkshire or Middlesex 246 Relations — description of, under a will - - 300. 386 Release of debts by will . _ - - 308 of debts by executor - _ . - 424 ■by husband of executrix, or administratrix 242 by one executor - _ . 359,360 by one executor of his interest to his co-exe- cutor - - - - 360 Relief — due to testator, action for - - - - 433 due from testator, action for - - - 459 Remainder - - - - - - 214. 165 interest vested in executor by - - 165, 166 when not - - - 166 Remainder-man — what chattels go to - - 203 et seq. not entitled to emblements - 204 et seq. right of, to heir-looms - - 211 Remedies — for executor or administrator at law 254, 255, 256. 431 and JVote 433 action by, where cause of, ai'ose in tes- tator's lifetime - 157.431 3X 666 INDEX. rage Remedies— in what cases not maintain- able - - 160. 436 ■where cause of, arose after testator's death 162. 437 executor may sue in a court of conscience - 436 may hold to bail, on what affidavit 438 legal remedy of creditor executor refusing to act not extinguished - - - — 298 action not maintainable by infant executor - 445 formerly maintainable by infant executor after the age of seventeen - . - ibid. husband of executrix cannot sue without her ibid. action by executor durante minoritate - ibid. co-executors must all join in an action 445, 446 of their joining where infant is co-ex- ecutor _ - - 446 in action by co-executor of summons and seve- rance ----- ibid. when on judgment recovered by two executors they pray different writs of execution - 447 where co-executors re/use to join in writ of er- ror^ tfc. - ... - 446 action by executor of executor - - ibid. action by administrator _ - - ibid. by special administrator - - ibid. by joint administrators _ . - 448 where either party dies between verdict and judg- ment - - 442 after the assizes com- menced but before the trial - - ibid. judgment in such cases how and when en- tered - - 443 revived by scire facias in what form ibid. where either party dies before the assizes, the suit is abated . . _ - 44^^ scire facias by executor on his coming of age on INDEX. 567 Page juflsnient recovered by administrator f/z/r«nfe mi' noritate . . - . 447, 448 Remedies— -sczr<^ facias by administrator in such case against the bail ----- 448 execution in such case on the judgment - ibid. scire facias by administrator de bonis non,, on judg- ment recovered by executor - - ibid. if executor or administrator die after suing out ex- ecution, but before the return of it, administra- tor de bonift non may perfect the same 448, 449 and where the execution was on a judgment by de- fault - - - - - 450 where in such case sheriff returns a seizure of goods, but that they remain in his hands firo defectu emfitoriim . . - - 449 where at the time of the executor's or administra- tor's death the money is levied - - ibid. if executor bring a scij-e facias on a judgment or recognizance, and after judgment die, adminis- trator de bonis non must bring a scire facias on the final judgment - - - ibid. on judgment by default for goods taken out of the executor's or administrator's own possession, his administrator shall have a scire facias on it, and account to administrator de bonis non - 450 right of executor to distrain, in what cases 450 et seq. right of executor of executor to distrain - 452 executor as such may prove a debt under a com- mission of bankruptcy - - - ibid, when executor may take out a commission for a debt due to the testator, when not - - ibid. executor may sign bankrupt's certificate - ibid. but not both as executor and in his own right 453 executor before probate may commence an action 46 may arrest a debtor - - - - 47 party before grant of administration cannot com- mence an action - - - " ^^ may file a bill in equity - " " ibid. for executor or administrator in equity 160. 454 et seq. for executors of a deceased partner - 454 568 INDEX. Page Remedies — for executors in i-egard to testator's letters - 455 when executor may institute a suit against credi- tors to have their claims ascertained by a decree of the court ... - ibid. Avhen executor is entitled to an injunction to re- strain a creditor from proceeding against him at law ----- 455, 456 entitled in general to no allowance for his trouble 456 contra - - 456 when entitled to commission - - 457 ^"0(6 456 when fraudulent assignment of a term by a former administrator, shall be avoided in equity by a subsequent - - - - 458 bill of revivor by executor - _ - - 455 by subsequent administrator 458 where one of two executors plaintiffs in equity may be severed - - - - 457 suit not abated by the death of a co-executor ibid. after executorship of temporary executor, a subse-' quent one may maintain a suit without another probate . - - - 457, 458 executor come of age may continue the suit of administrator durarxte triinoritate, by a supple- mental bill - - - - 458 at law against executor or administrator where cause of action arose before testator's death 459 for distributive share JVote 463 for legacy - Kote 465 where exist, where not - 285. 460 et seq. against executor or administrator where cause of action arose subsequent to testator's death 462 for rent due before, and after that event 278. 281 to what action executor not liable on account of the cause . . - 450, 461, 462 on account of the form - - - 461 hy scire facias - , - 265,266,267.277 capias - - - - - 467 against an executor come of age, by scire facias on judgment recovered against the administrator durante minoritatc ... 407 INDEX. 569 Page RemeditS'— scire facias against executor, when defendant dies after final judgment, and before execution 469 when writ of Jieri facias is tested before defend- ant's death, but not delivered to sheriff till after it - - - - - ibid, scire facias on a judgment against an executor or administrator - - ^ - - ibid. return nulla bona., or nulla bona and a devastavit 469, 470 proceeding on either of such returns - 470 judgment of assets quando acciderint 479 and JVote 470 scire facias on a judgment of assets quando acci- derint . - _ . _ ibid. action of debt on a judgment of assets quando ac- ciderint suggesting a devastavit - ibid. against administrator on administration bond 495, 496 how executor may make himself personally re- sponsible - - - 463, 464 cannot be sued at law for a legacy 465, 466 contra - - . - 455 not liable to be sued in a court of conscience - - 466, 467 not in general held to bail - 467 in what case he may be - ibid. infant executor not liable to be sued 47 1 limited executor may be sued ibid. in action against wife executrix, husband must be joined - ibid. on judgment against husband and wife executrix, if she survive, not liable to action of debt sug- gesting a devastavit by the hus- band - - - ' - ibid. where co-executors are defendants - - 471, 472 where some of them are infants ... 472 how they must appear ibid. one executor not liable for the devastavit of co- executor . . _ . ibid. 570 INDEX. Page Remedies — against executor of executor on a devastavit by the latter - - - - - 473 actions against limited administrator - 474, 475 administrator durante minoritate having wasted the assets, liable to the executor on his coming of age, but not after that period to a creditor 475 executor^ of a deceased partner and the survivor cannot be jointly sued for a debt due from the partnership _ . . - ibid. distress against executor of tenant for life, or for years ibid. remedy for the assets in case of a .bankrupt exe- cutor . _ - - - 488 by apprentice against executor of the master for a debt where destroyed by the act of the party 348 where suspended only by the act of the party - - - 349 where obligor of bond administers to obligee and dies, creditor and admi- nistrator (/(? bonis non of obligee may sue executor of obligor - - ibid. foreign attachment, executors and administrators within the custom of, in what cases - - 478 in what not - - 478, 479 against executor or administrator in equity - 479 and JVote 479 bill of I'evivor against executor _ _ - ibid. bill by legatees or parties in distribution - 479, 480 executor liable for interest, in what cases - 480,481 if he compound debts due from testator, shall not be entitled to the benefit - 481 in what cases not liable in consequence of lending or paying money - ibid. generally liable for compounding or re- leasing a debt, when not - 481, 482 may be called upon in equity to secure a legacy payable at a future time - 482 to secure an annuity - - ibid. against executors joining in a receipt - 483, 484 INDEX. 571 Page Remedies — an executor not admitting assets liable to account, though co-executor admit them - - 486 when co-executor not liable for the administration of the property - - - - ibid. against executor or administrator in the ecclesias- tical court ... 489 at the suit of legatees, or parties in distri- bution _ - _ 489 et seq. at the promotion of a creditor - 495 when legatees may sue executor in chan- cery and in the prerogative court at the same time _ - . 49$ if temporal matter be pleaded, spiritual court must proceed according to com- mon law - - - - 494 specialty creditor may resort against heir and devisee, without suing the executor of debtor - - - - 411 against executor de son tort - - 473 may be sued with a lawful executor, but not with a lawful administrator - ibid. how far liable - - - 473, 474 executor of, liable for the devastavit of the latter - - - 474 executor de son tort of not liable for the devastavit of the latter - - ibid. may be sued for a legacy in the ec- clesiastical court - - 496 Rent - 140. 143, 144, 145. 157. 159. 217, 224, 236. 239 service ___--- 450 charge - - - - - - ibid. seek ------- ibid. fee -farm ------ ibid. due to the crown - - - - - 261 to what, heir is entitled - - - 176,177,178 where heir is entitled to - - - 13S to what, executor is entitled - - - 136 where executor is entitled - - - 179 apportionment of, in favour of executor of tenant for life 208, 209. 436 572 INDEX. Page Rent— a debt due by specialty - - 278. 281. 459 reserved by parol lease . - - - 279. 460 after determination of the lease _ - - 279 left in arrear by testator ... ibid. accruing after his death ... - ibid. when the profits of the land exceed the amount of 279, 280 when the profits are less than the - - 280 avowry for ----- 48. 424 as incident to a reversion for years - - 437 reserved on a lease for years, query whether executor can distrain for - - - - 451,452 Rent-charge — executor of grantee of, for term of years, if he so long live, cannot distrain for the same 452 an advancement - - - 377 Replevin, action of - - - - 159. 161. 437 Representation, not admitted among collaterals after intes- tate's brothers' and sisters' children 372. 382, 383 Republication of a former will - - -' - 28 Requisition— in regard to seamen's wills - - 63 in regard to administration to seamen - 112 to bishop or archbishop in England - 65. 94 to the magistrates in Scotland - - 65 in the West Indies - ibid. Resftdue ------ 342 undisposed of - - - 351 and A''ote 355 / parol evidence respecting - - 355 interest of executor in - - - 351 et seq. of widow executrix in - - - 353 of limited executor in - - 354 where husband and wife executors shall be excluded from --_.-. 359 when co-executors shall be entitled to, when not 359. 363 co-executors take as joint-tenants - - 363 Residuary legatee ------ 342 where there is no present residue 100. 117. 122 death of, before the surplus is ascertained 342 shall not compel the other legatees to abate 344 INDEX. 573 Page Residuary legatee — shall not suffer alone in case of a devasta- vit - - . , - 344 infant executor - - - 124 bankrupt executor - - 488 Retainer— by executor of a debt due to him - 295 et seq. by husband of executrix - - - 359 by one of two executors how far allowable - 361 for his debt not in general allowed to executor de son tort . _ - - - 366 when entitled thereto under the statute - ibid. for debt by limited administrator - - 405 Reversion _._--- 377 legacy charged on - - - - 324 Reversioner ------ 206.211 Review, commission of - - - - 74, 75 Revocation of will - _ _ - ..\Aetseq. Roman catholics - - - - - - 35 Saffron - 150. 194 Saintfoin - - - - - - - 150 Sale of the deceased's effects _ . - - 40 by grantee of letters ad colligen- ' dum - - - 107 by executor - - 256,257 by expcutor -void if the executor be not quaUJied - - 46 though specifically bequeath- ed - - - 256 in satisfaction of his own debt 296 by administrator where adminis- tration is void - - 128 where voidable - - 96. 129 to executor by shei'iffmider a^Jenyacias - - 239 of perishable articles - - 40. 247. 404. 428 of leases by limited administrator - - - 405 of goods at an undervalue . - - - 427 of land ------ 364 of land devised to executor for that purpose - - 413 Satisfaction ------ 336 3 Y 574 INDEX. Pagie Scire facias • - - - 220. 265, 266, 267 on a judgment - - - 202. 265. 407 on a recognizance - - - - 277 execution by, whei'C testator plaintiff died after final judgment, and before execution 44 \, 442 effect of testator's or intestate's death after a fieri facias sued out . - - - 442 after the goods are seized - - ibid. where either party dies after interlocutory judg- ment, and before execution of the writ of in- quiry - - ~ - - 443, 444 the form of the scire facias in such case - 444 judgment in such case, how entered - - ibid. by executor on his coming of age on a judgment recovered by administrator durante ininoritate 447, 448 by administrator in such case against the bail 448 by administrator de bo7iis non - - 480 when it lies > - - ibid. when not - - - 449 on judgment recovered by executor or administra- tor . _ - - - ibid. by administrator of executor or administrator on a judgment by default for goods taken out of the possession of the latter . . _ 450 where defendant dies after interlocutory and before final judgment, two writs of scire facias must be sued out _ _ . - - 444 when respectively _ - - ibid. against executor where defendant dies after final judgment, and before execution - - 469 on a judgment against executor or administrator ibid. return nulla bona; or nulla bona and a devasta- vit .... - 469,470 proceeding on either' of such returns - - 470 on a judgment of assets quando accidcrint ibid. against, executor of an executor on a judgment against the latter, in an action of debt suggest- ing a devastavit on a judgment committed by l\im in the lifetime of plaintiff's testator - 473 INDEX. 575 Page Scire facias— -on a judgment where necessary against an exe- cutor of an executor ... 473 Scire fieri^ inquiry ----- 470 Scotland, leasehold estate in - - - - 144 Scriptures, denial of - - - - - 36 Seal of the ordinary _ _ - . 46.58.76 Seaman - - - - - - 4, 5 Seamen's wages - - - - - - 60 will of - - - - - ibid. administration to - - - - 109 See, vacancy of , _ . . - 67. 94 Sequestration of the deceased's effects - - - 65 Servant - - - - - -151, 152 Settlement gained by executor - - - - 146 Settlement on a child, either voluntary or for a good consider- ation, an advancement pro tanto - 377 Sheriff, action against - - 159. 161. 435. 437, 438 action against executor for money levied by testator as 460 Sheep, wool of - - - - - 166 Ship at sea - - - - - - 153 delivery of, by bill of sale - - - 234i Signature of a will - - - - 2. 15 of a codicil _ . - - 6 Simple contract, debts by 157. 219. 261. 267. 285, 286. 433. 437. 459, 460. 462, 463 bills - - - 286. 460 notes - - - ibid. verbal promises - - - ibid, promises express - - ibid. implied - - ibid. collateral - - 460 due to the king - - 259. 286 wages of servants - - 286 of labourers _ . _ ibid. apprentice fee received by testator ibid, where by the custom of London equal to a debt by specialty 282 judgment not docquetted on a level with - - - 268 interest on - - - 286 576 INDEX. Page Sister of the half-blood - - - . - - 91 Skirrets - - - - - - 194 . Slave — his right to a legacy _ . - _ 233 Soldiers in actual service, will of - - - 4 Son .--.--- 87 of intestate's sister _ _ . _ 383 of intestate's aunt _ _ _ - - 384 Special occupant - . _ . _ 140. 179 plea by executor - 267. 280, 281, 282, 283, 298 when necessary - - 267. 280, 281 Specialty — debts by - - - - 278 et seqJ4:S9 not yet due - - - - 281 contingent . _ . 282 where the contingency has taken place . _ - ibid. interest on - 286,287 Squirrels ------ - 248 Statute 20 Hen. 3. c. 2. 205 13 Ed. 1. c. 19 82 13 Ed. 1, Westminster 2, c. 23 433 de mercatoribus, 13 Ed. 1. - 272 4 Ed. 3. c. 7 - 433 25 Ed. 3. c. 5 - .• - - 44/ 27 Ed. 3 273 21 Hen. 8. c. 5 20. 41. 65. 73. 83, 84. 97. 123. 247.249. 253.412 23 Hen. 8. c. 6 - - 274 24 Hen. 8. c. 12 73 25 Hen. 8. c. 19 - 74 26 Men. 8. c. 1 75 28 Hen. 8. c. 11 - - - - - 208 32 Hen. 8. c. 1 - - - 2 32 Hen. 8. c. 6 - 13 32 Hen. 8. c. 37 - - - 217. 224. 450 33 Hen. 8. c. 39 - - 259 34 &: 35 Hen. 8. c. 5 - 9, 10 2 8c 3 Ed. 6. c. 13 - 434 1 Eliz, c. 1 - 75 43 Eliz. c. 8 39 92 canon, Jac. 1 - - _ _ 51, 52 INDEX. 577 Page Statute 3 Jac. I. c. 5 - - - - - 33 3 Car. 1. c. 2 - - - - - ibid. 17 Car. 2. c. 8 - - - 265; 442. 448 22 & 23 Car. 2. c. 10 - - - 85.97.247.370 25 Car. 2. c. 2 - - - - - 33 29 Car. 2; c. 3 2. 4. 38. 59. 85. 140. 143. 169, 373. 410. 415. 464 30 Car. 2. Stat. 2. c. 1 - - - - 33 30 Car. 2. c. 3 - - - - 262 30 Car. 2. c. 7 - - - - - 474 1 Jac. 2. c. 17 - - 370. 382. 390. 493 3 W. & M. c. 14 - - - - - 411 4 8c 5 W. & M. c. 2 - - - - 388 4 8c 5 W. & M. c. 20 - - - - 268 4 Sc 5 W. 8c M. c. 24 - - - 430. 473, 474 5 W. 8c M. c. 20 - - - - - 256 5 W. 3. c. 21 - - - - - 4 7 8c 8 W. 3. c. 38 - - - 388. 403 8 8c 9 W. 3. c. 11 - - - - 265.443 9 8c 10 W. 3. c. 32 - - - - 33 13 W. 3. c. 6 - - - - - ibid. 2 8c 3 Ann. c. 5 - - - - - 388 4 Sc 5 Ann. c. 16 - - - - 4. 54. 56 8 Ann. c. 14 - - - - - 475 9 Ann. c. 10 - - - - - 262 1 Geo. 1. Stat. 2. c. 13 - - - - 33 5 Geo. 1. c. 27 - - - - 13. 34 11 Geo. 1. c. 18 - - - - 388. 400 2 Geo. 2. c. 23 - - - - 441 5 Geo. 2. c. 7 - - - - - 417 5 Geo. 2. c. 30 - - - - 221 11 Geo. 2. c. 19 - - - - 208.436 14 Geo. 2. c. 20 - - - - 140 17 Geo. 2. c. 38 - - - - - 262 19 Geo. 2. c. 37 - - - - 453 19 Geo. 3. c. 70 - - - - - 264 26 Geo. 3. c. 63 - - - - 5. 60 31 Geo. 3. c. 32 - - - - - 33 32Geo. 3. c. 34 - - - 5.60.109 578 INDEX. Page Statute 32 Geo. 3. c. 67 - 64. 113 36 Geo. 3. c. 52 - 318 37 Geo. 3. c. 90 - 43. 66. 96. 246 38 Geo. 3. c. 87 31. 100, 101. 104. 121 . 312. 356. 406. 408. 445. 471 45 Geo. 3. c. 28 - - 56.263.432 47 Geo. 3. c. 74 - 417 55 Geo. 3. c. 60 - - 6. 60. 109 Statute merchant - 134.260. 272 description of - - 272 estate by - - 139.212 Statute staple . . 134. 260. 273 description of - 273 estate by - 139.212 not yet due - 275 contingent - 275,276 Successor — what chattels go to - 201 what not - - ibid. Summons and severance in an action in the names of co-exe- cutors ----- 446 writ not abated by the death of the party se- vered ----- ibid. nor if he live till judgment, can he sue out execution - - - - ibid. Supplemental bill by executor come of age after administra- tion committed durante minoritate - - 358 Surrender of lease by executor - - - - 142 by husband of executrix or administratrix . 242 Survivorship, right of - . - - 155.163.454 exists not in regard to partners in trade, or husbandry - 155. 163.454 Surviving executor . » . - 114.363 administrator - _ _ - 114.408 Suspension of bishop or ai'chbishop - - 67.94 Swans ..---.- 192 Syndics, where a corporation is executor - - - 33 Tables and benches long fixed - - - - 197 Tables modern, and fixed - - - - 198 INDEX. 579 Page Tapestry .--.--- 198 Tenancy from year to year - - - - 141 Tenant for life, executor of , . . - 206 Terms for years . - - - 140. 179.410 vested in executor by his entry before probate 140 cannot be waived by executor - 143. 279 unless where there are not assets to pay the rent - - - 143, 144 what he is to do where there are assets to pay rent, but not for the whole term - 144 in an advowson - - - - 1 6 1 in trust to pay debts, and then to attend the inheritance - - - - 178 vested in a trustee to attend the inheritance, 410. 427 grant or surrender of, by one of several exe- cutors - - - - 360 reversion of - - - - 141 Timber - - . - . . 193 Tithes 158. 190 where executor is considered as possessed of 145, 146 action for not setting out - _ . 158.434 Tombstone - - - - - - 199 Trade— not generally transmissible to executor - 166 where he may carry it on - 166. 486 where the testator directs the residue of his estate to be employed in carrying on his - - 166. 486 where the testator directs part of his assets to be so employed - - - - 166. 487 Trader — what acts an executor of, may perform without mak- ing himself one - - - - 487, 488 real estate liable to debts - - - 417 Traitor ..-.-- 12.35.93 Transmutation of the property In favour of the executor 238. 240 Trees - - 149. 160. 193, 194, 195, 196. 206, 207. 436 branches of, lopped - - - - 149 timber ' - - - 145. 193. 195, 196. 207 not timber ... - 145. 193. 206 Trespass, action of - - - - 158.433.437 580 INDEX. Page Trespass, action of, by executor lies not for injmy to testator's person, or freehold - - 160.436 distinction between, and that of trover brought against executor de son tort 365, 366 Trinity, denial of . - _ - - 36 Trover, action of - - - - - 365, 434 Trust — shall never fail for want of a trustee - - 363 wliether executor of an executor may or not execute at law a power of selling land given to the first exe- cutor, he is bound in equity to execute it - ibid. bond given to testator in - - - 153, 154 Trust-term - - - - - - 218 Trust estate descended to heir - - - - 415 Trustee — where executor is, of the residue - - 351,352 where co-executor shall be - - 2&\ et seq. where wife's representative is, for husband's repre- sentative - - -.- - 116 and executor, devisees to sell land, former distinc- tion between - . - 412,413,414 or guardian shall not change the nature of the estate 182, 183 may by a decree in equity - - 183 Turnips - - - " - - - 150. 194 Vats for dyers - - - - - 198 Venditioni eocfionas^ writ of, sued out by administrator de bonis non - - - - - -- 449 Vejitre sa ?nere, child in _ . - - 34. 30O Vicar - - - - - - - 201 Uncle - - - r - - - 90 of intestate ------ 334 Usurer - - - - - - 13 Wages of servants - - " - - - - 286 of labourers ----- ibid. Wainscots - - - - - - -197 Wales, cusiom of - - - - - 403 Waste — tenant for life, or years without impeachment of 207 no action lies for, either by heir or executor 432, 433 liJDEX. 581 Page Widow — grant of administration to - .. . 83.86 when not one of the next of kin under a will - 386 Widow's chamber — by the custom of London - 391 compensation for, to what amount ibid. analogous to her right in paraphernalia ibid. cannot be claimed to the prejudice of creditors . _ - ibid. and ornaments by the custom of York 400, 40 1 Will — definition of ----- i of lands freehold - - - 1,2.28.69,70 /low ?nade in the several states - - 2. 57 of lands copyhold - - - - 31 of customary freehold . - - - 7 of personal property - - - - 2, 3. 69 of terms for years - - 7 in gross . - - ibid. in trust to attend the inheritance ibid. of transmitting terms by - . . - ibid. of creating terms by - - - - ibid, of money out of land - , - - ibid. of money covenanted to be laid out in land - ibid. of a mixed nature - ^ - - - 70 written ------ 2 nuncupative - - - - 3, 4. 59 in the several states ~ - 4. 59 of soldiers in actual service - - 4 not permitted to sailors or marines - 5 of English seamen and marines - - -5.60 of Irish seamen and marines - - - 64 avoided by incapacity of the party - 9 ajid JVote mental disability . , - ibid. infancy, within what age in males - ibid. in females _ - - - ibid. madness - - - ibid, and A'ote idiocy ----- ibid. a^e - - - ibid, and jVote distemper . - - - ibid. drunkenness - - ibid, and J\'ote having been born blind and deaf - ibid. 3Z 582 INDEX. Page "Will— avoided by imprisonment or captivity, how far - 9 coverture - 9, 10, 242 and JVote 10 where partially avoided by 242, 243 crimes - - - - 12 ti'eason from conviction and attainder, or outlawry _ . - - ibid. felony from conviction and attainder, or out- lawry - , - - ibid. crimes, as it respects personal estate only ibid. treason after conviction - - ibid. felony after conviction - ibid, and A''ote 1 1 felo de se - - ' ibid, and JVote 1 1 felony not capital - - - 12 outlawry in civil cases - - ibid. by cancelling - - 14 and JVotes 13. 19 by revocation - - ibid, and JVotes 13. 19 by another will - - 15. 17 and JVote 19 by a codicil - - - - 15 where either relates to real property ibid. by other writing - - - ibid. relative to real property - - ibid. express - - - ' - ibid. implied - - - - 18 marriage of man, and birth of a child ibid, marriage alone of man - - 19 marriage alone of woman - - ibid, by birth of child merely - - ibid. not by the birth of a child merely - ibid. such presumption may be rebutted 18 in the nature of ademption - - \9 et seq. revocation in equity - - - - 26 not avoided by the testator's subsequent insanity 9 by coverture, if made v/ith the husband's license, and such license extends to the produce, as well as the principal 8. 10 how it operates - •■ 10. 85, 86 if he be banished - - - 10 if property, to the wife's separate use 1 1 as executrix . . _ 11.242 of the queen - - - - 1 1 INDEX. 583 Page Will— in respect to gavelkind land by felony - - 12 persons capable of making, usurers ----- ibid. libellers . . - - ibid. persons excommunicated, semb. - ibid. alien friend of chattels personal, and of certain chattels _ - - ibid. alien enemy of the same, if resident here with the king's license - - ibid. express - - ibid. implied - ibid. incapable of making, British artificers going out of the realm to exercise or teach their trades abroad, or so trading, who shall not return with- in six months after warning - 13 alien enemy - - - - 12 cannot be repealed or altered by parol, or will nuncupa- tive - - - - - - 16. 59 omission in a, may be supplied by nuncupative codicil 6 cannot be made irrevocable - - 13, 14 republication of a former, shall re-establish it - 28 what shall be - , 28, 29 of a woman afterwards marrying, not revived by hus- band's death - - - - - 21 lost - - - - - - 71. 77 illegible by accident - - - - 7 1 suppressed - - - - - 120. 128 unknown - - - - - - 120 of a party who has been long absent - - 70 transmission of a copy of, from Scotland - - ibid. from Ireland - 71 from East or West Indies ibid. of property in the plantations - - - 71,72 made in a foreign country - - - - 72 in a foreign language . _ - ibid. memorial and registry of, affecting lands in Yorkshire or Middlesex - - - - - 246 j-icles of co7zstruc(ion of - - - - 71 584 INDEX. Pag-e Windows - - - - - - 197 Window shutters -.---- ibid. . Witness to a nvill disqualijied by legacy - - 58 Woollen, forfeiture for not burying in - - 261,262 York, custom of the province of - - 400 et secj. where it shall be controlled by that of London 402 custom of, and of London in the main agree 402, 403 THE END. ^JA LAW'T,TT»KARY riisn Y < > CALIFORNIS LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 821 990 9 ^5