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The distinguished Professor SilJiman, speaking of this edition, observes, "lam as much gratified by the elegance and fine taste of your edition, as by the noble tribute of genius and moral excellence which these delightful authors have left for all future gene- rations ; and Cowper especially, i^ not less conspicuous as a true Christian moralist and teacher, than as a poet of great power and exquisite taste." GOLDSMITH'S ANIMATED NATURE, in 4 vols. 8vo., illustrated with eighty-five copperplates. " Goldsmith can never be made obsolete, while delicate genius, exquisite feeling, fine invention, the most harmonious metre, and the happiest diction are at all valued." This is a work that should be in the Library of every family, being written by one of the most talented authors in the English language. THE LAW OF EXECUTORS ADMINISTRATORS. By Sir SAMUEL TOLLER, Knight, LATE ADVOCATE GENERAL AT MADRAS. WITH CONSIDERABLE ADDITIONS, By FRANCIS WHITMARSH, Esq. OF ghat's inn, BAIIRISTEU AT LAW. Soi'te suprema Permutat Dominos, et cedit in altera jura. — Hon. FOURTH AMERICAN, FROM THE LAST LONDON EDITION: WITH IlEFIiUENCJiS TO THE STATUTES OF PENNSYLVANIA, AND THE PKINCIPAL AMERICAN KECISIONS. BY EDWARD D. INGRAHAM. PUBLISHED BY GRIGG & ELLIOTT, No. 'J NORTH roUKTH STUEET. 1834. Entered according to the Act of Congress, in the year 1834, by John Gkigg, in the Clerk's Oftice of the District Court of the Eastern District of Pennsylvania. v6^' w^-/ IMIILADELI'UIA .' K. Collins &. Co. Printer!- 49, Prune Street. i ADVERTISEMENT SIXTH LONDON EDITION In this edition of "The Law of Executors and Ad- ministrators," the same plan has been pursued as in the preceding editions, viz. to make no alteration in the lan- guage of the original work, and to introduce the va- riation in the law by way of addition or explanation. Lincoln's Inn, May, 1827. PREFACE FIRST LONDON EDITION The subject of the following treatise comprehends 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 exer- cise the office of a personal representative, or to transact business with such as are invested with it. An attempt, therefore, 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 regarded with favour. The book of the most distinguished nieriton this subject, is that which is entitled, " The Office, and Duty of Execu- tors;" and which, although it bear the name of Thomas Wentworth, is now generally ascribed to Mr. Justice Dod- deridge. It was first published anonymously in the year 1641: to the third edition, printed in the same year, was I)refixcd, for the first time, the fictitious name I have just Vi PREFACE TO THE FIRST LONDON EDITION. mentioned. The eighth edition appeared in 1G89, to wliich Chief Baron Comyns, in his Digest, constantly refers. In 1703, the ninth edition was pubhshed, with a supplement by IT. Curzon: the twelfth edition was published in 1762, with references by a Gentleman of the Inner Temple; and in 1774, the thirteenth and last edition, by Mr. Serjeant Wilson. Of the original work it is no undue praise to assert, that it is worthy the pen of so learned an author. It is calculated to engage the attention of the reader, and contains very sound principles, and authentic 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 administrator. Nor is it much indebted to its several editors. The supplement, as it is called, is a mere collection of cases, without order, and without precision. 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 w hich has hitherto been adopted. Such arrangement I have en- deavoured to form, and to preserve. It has also been my object to comprise the multifarious matter of which I have PREFACE TO THE FIRST LONDON EDITION. VU been treating, within as narrow limits as it would admit j and to express myself at once with brevity and with clear- ness. The authorities I have stated very fully in the margin, with a view of facilitating farther researches into points of a nature so interesting, and of so perpetual a recurrence. And it will afford me much satisfaction, if I shall have con- tributed to extend so useful a species of knowledge. TABLE OF CONTENTS. 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 republished 1 CHAP. II. Of the appointment of executors. Sect. i. Who may be an executor — who not — how may be appointed - - - - 33 Sect. ii. Of an executor de son tort — how a party be- comes so - - - - 39 Sect. iii. Of the renunciation or acceptance of an execu- torship - - - - 43 Sect. iv. Of an executor before the probate of the will - 46 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 ma- rines - - - - 60 Sect. viii. Of the probate under special circumstances - 65 Sect. ix. Of caveats, revocation of probates, and appeals - 72 Sect. x. The effect of a probate — loss of the same — what is evidence of probate — effect of its revocation - 75 B TABLE OF CONTENTS. CHAP. III. Of the cqipointment of 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 administrations to intestate seamen and ma- rines * - - - - 101 .Sect. vii. Of administrations in case of the death of the administrator, or of the executor, intestate - 114 Sect. viii. How administration shall be granted — when void — when voidable — of repealing the same — how a repeal affects mesne acts - - 1 1 9 BOOK II. Of the riojhts and interests of executors and adminis- trators. CHAP. I. Of the general nature of an executor^ s or administrators interest — Distribution of the subject with reference to the different species of the deceased's property - - 133 f 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 TABLE OP CONTENTS. XI Sect. ii. Of his interest in -the chattels personal, animate, vegetable and inanimate - - 146 CHAP. HI. Of the iyiterest 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^e^ in action - - 157 Sect. ii. Of interests vested in him by condition, by re- mainder, or increase, by assignment, by limi- tation, and by election - - - 164 CHAP. IV. 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 _ . _ _ 175 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 Sect. iv. Of chattels which go to a devisee, or remainder- 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 belong to the surviving husband - - 212 Sect. ii. Of the chattels personal which go to the widow; — and herein of such personal chattels of the wife as go to the surviving husband - 216 Sect. iii. Of tbe wife's paraphernalia - - 229 Ml TABLE OP CONTENTS. CHAP. VI. Of the interest of a donee mortis causa - - - 233 CHAP. VH. Hoiu effects, which an executor takes in that character, may become his own - - - - - 238 CHAP. VHI. Of the interest of an adm,inistrator, general and special — of a married looman 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 executor or administrator _ _ . 247 Sect. iii. Of his collecting the effects - - 254 TABLE OF CONTENTS. Xlll CHAP. II. Of his payment of debts in their legal order. Sect. i. Of debts due to the crown by record, or speci- al ty-^of certain debts by particular statutes - 258 Sect. ii. Of debts of record in general — of judgments; — and herein of decrees — of statutes and recogni- zances — of docquetting judgments - 262 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 equit- able 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 principal necessary — what shall amount to such assent — assent express, or implied — absolute or conditional — has relation to the testator's death — when once made, irrevocable — when incapable of being made - - 306 Sect. iii. When a legacy is to be paid — to whom — of pay- ment in the case of infant legatees — of a con- ditional payment of- a legacy — of payment of interest on legacies — of such payment where the legatees are infants — of the rate of interest payable on legacies - . . 312 MV TABLE OF CONTENTS. Sect. iv. Of the ademption of a legacy - - 329 Sect. V. Of Qpmulative legacies _ _ _ 334 Sect. vi. Of a legacy's bein^ in satisfaction of a debt - 336 Sect. vii. Of the abatement of legacies — of the refunding of legacies — of the residuum - - 339 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 executor — 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 £0 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 ivoman exe- cutrix — of co-executors — of executor of executor — of exe- cutor 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. VH. Of the powers and duties of limited administrators — of joint administrators - - - - - 404 CHAP. VHI. Of assets as distinguished into real and personal, legal and equitable — of marshalling assets _ _ - 409 TABLE OF CONTENTS. XV CHAP. IX. Of a devastavit - .- - - - 424 CHAP. X. Of remedies for and against executors and administrators at law, and in equity, SfC. 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 admin- istrators - - _ 458 Sect. iv. Of remedies against executors and administrators in equity _ _ _ - 479 Sect. V. Of remedies against executors and administrators in the ecclesiastical court - - 489 APPENDIX. Duty on probates and administrations * - - 498 Duty on legacies - - - - - 505 TABLE OF CASES CITED. Abury v. Miller Abney v. Miller Abramv. Cunningham 19 2-2. 27. 306 120.127,128. 347 102 347 55 114. 407 358 308. 320 427 222 Abbott V. Abbott Abbott V. Massie Adams v. Savage Adams v. Buckland Adair v. Shaw- Adams V. Peirce Adye v. Feuilleteau Adams v. Cole All Souls' Coll. V. Codrington 2. 301 Allen V. Dundas 76, 77. 128, 129 Allison V. Dickenson 120 Aliens V. Andrews 122 Alexander v. Alexander 318, 319 Aldrich v. Cooper 421 Annandale, Marchioness of, ex parte 190 Angerstein v. Martin 324 Ankerstein v. Clarke • 241 Andrews v. Brown 287 Andrew* v. Partington 326, 327 Andrew v. Clark 352 Annand v. Honeywood 394, 395 Ancaster, Duke of, v. Mayer 417 Apreece v. Apreece 301 Appleton V. Doily 452 Aplyn V. Brewer, 484 Ards V. Watkin 179 Arnold v. Preston 300 Arandell v. Trevill 434 Ashburne v. M'Guire 172. 300, 301. 303. 324. 330, 331. 334 Astley V. Powis 269 Ashton V. Ashton 301. 331 Ashburnliam v. Thompson 480. 483 Attorney-General v. Barnes 6 V. Vigor . 21 V. Downing 22. 27 V. Baines 27 c Attorney-Gen. v. Hooker 117. 352, 353 V. Milner 172 V. Parkin 303. 331 V. Harley 335 V. Beatson 328 V. Cockerell 328 V. Hudson 339 V. Robins 339, 340. 347 Atcherly v. Vernon Atkins V. Hill 25, 26 49 Atkinson, adm. V. Baker 140. 178. 190. 490 Atkinson v. Lady Barnard 99 Atkins V. Hiccocks 171 Atkinson v. Webb 337 Atkyns v. Waterston 391 Atkins V. Hill 464 Atkinson v. Henshaw 496 Audley v. Audley 182. 186 Aubin V. Daly 200 Auriol V. Thomas 287 Avelyn v. Ward 301 Ayliflfe V. Ayliffe 122 B. Baillie v. 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 Baxter v. Burfield 151. 475 Barker v. Parker 167 Barlow V. Grant 171.327 Barnes v. Allen 171 Baker v. Baker 183 Bates V. Dandy 223 Barclay v. Marshall 253 Bank of England v. Moffat 255 Bank of England v. Morrice 281 Barker v. Dumeres 290 Barksdale v. Gilliat 328 Baugh V. Reed 329 .will TABLE OF CASES CITED. Hadrirk v. Stephens 330 HaiUcr V. Hayiifr 333 Baillio V, IJuttrrfiold 335 Hairet v. Becklord 337 Ha. 21 22 454 39. 342 191, 192 191 48 G8 109. 447 109 103 114 159. 161 162 172 197. 224 Gregg's Case Guidot V. Guidot Gudgeon v. Ramsden H. Haig V. Swiney Harris v. Bedford Harirs v. Ligledew Harwood v. Goodright Harkness v. Bailey Hawes v. Wyatt Harrison v. Beccles Harrison v. Rowley Harrison v. Michell Harrison v. Weldon Harris v Hanna Habergham v. Vincent Hatton V. IMascal Havers v. Havers Harrison v. All Persons Hayton v. Wolfe Harecourt v. Wrenham Hall V. Huffam Hall V. Terry Harvey v. Harvey Hardwick, Lord, in Lawton v. Lau-ton 197 Hay V. Palmer 208. 210 Hastings, Lord, v. Sir A. Douglas 228. 230 Hassell v. Tynte 236 Harman v. Harman 269. 299 Harding v. Edge 270. 289 Hales V. Freeman 398 Hall V. Bradford 157. 433 Hall V. Hallet 425 Hall V. Huffam 474 Hambling v. Lister 330, 331 Hambly v. Trott 460. 462 Hancock v. Hancock 391. 394 Handby v. Roberts 421 Harcourt v. Wrenham 415 Harden v. Parsons 428 Harford v. Browning '347 Hargrave v. Rogers 466 Hargthrope v. Milforth ' 472 Harris v. Docura 481 Harris v. Jones 440 Harris v. Vandridge 433 Harrison v. Bowden 442 Harrison v. Naylor 305 Harrison v. Buckle 312 Hartop V. Whitmore 329 Hartop V. Hartop 329 Hartwell v. Chitters 415 Harvey v. Harvey 326, 327 Harwood's Case 390. 393 Haslewood v. Pope 417. 420 Hathornthwaite v. Russel 483 Hatton v. Hatton 490 TABLE OF CASES CITED. XXlll Kaughton v. Harrison Hawes v. Saunders Hawes v. Warner Hawkes v. Saunders Hawkins v. Day 281 Hayes v. Mico Haywood v. Kinsey Headley v. Redhead Heapy v. Paris Hearle v. Greenbank Hearne v. Barber Heath v. Heath Heath v. Perry Hedges v. Hedges Helier v. Casbert Henslor's Case Herbert v. Torball Herbert v. Herbert Herbert's Case Heme v. Meyricke Heron v. Heron Hewitt V, Wright Hewitt V. Morris Heylyn v. Heylyn Heysham v. Heysham Heywood's Case Hibben v. Calemberg Hickey v. Hayter Higgs V. Warry Highman, ex parte Hill V. Chapman Hill V. Hill Hill V. Mills Hill V. Turner Hilliard v. Cox Hillyard v. Taylor 326 438,439,440 336, 337 463, 464 , 292. 322. 471 337 426 340 266. 468 312. 324, 325. 327 394. 396 417 301. 324, 325 232 142 74 8.27 9 269 420 399 180 324 26 326 358 124 267 439 320 234 326 31,32 490 52 422 266 Hinchinbrooke, Lord, v. Seymour 173 464. 468 253 301, 302. 340 17 Hindsley v. Russel Hinton v. Parker Hinton v. Pinke Hitchins v. Basset \ Hitchon v. Bennett 416 Hockley v. Bantock 481 Hodges V. Beverley 228 Hodges V. Cox 477 Hodges V. W'oddington 340 Hodgson V. Rawson 172 Hodsden v. Lloyd 19 Hoe V. Nathorpe 77 Hog V. Lashley 57 Hogan V. Jackson ' 22 Holbird v. Anderson 288 Holcomb V. Pettit 472 Holditch V. Mist 322 Holderness, Countess of, v. Mar- quis of Carmarthen 178. 200 Holland v. Hughes 318 Hollingshead's Case 442 Hollinirsworth v. Ascue 276 Hollis V. Smith HoUoway v. Collins Holloway v. Clarke Holt V. Frederick Holt V. Bishop of W^inchester Hone V. Medcraft Hoole V. Bell Hooley v. Hatton Hooper v. Summerset Horay v. Daniel Hornsby v. Hornsby Hornsby v. Finch Horsam v. Turget Horsley v. Chaloner Horton v. Wilson Hortop V. Hortop Hoskins v. Hoskins Hoste V. Pratt Hough V. Ryley Houghton V. Franklin House V. Ld. Petre 44, Hovey v. Blakeman Howard v. Jemmet 134. Howe V. Earl of Dartmouth Howe V. Howe Howe V. Whitebanck Howell V. Barnes Howell V. Hanforth Howell V. Maine Howell V. Price 284. Howell V. Waldron Howse V. Webster Hubert V. Parsons Hudson V. Hudson 74. Hughes V, Hughes V Hulbert v. Hulme V. Hughes Doulben Hart Heygate 114. 407. Humberstone v. Stanton Humble v. Bill Hume V. Edwards 302, Humphreys v. Ingledon Humphreys v. Humphreys Hunt V. Hunt Huntingdon v. Huntingdon Huntley v. Griffiths Husband v. Pollard Hussey v. Berkeley Hutchens v. Fitzwatcr Hutcheson v. Hammond Hutchins v. Foy Hutchinson v. Savage Hutton V. Simpson Hyde v. Hyde Hyde v. Skinner I. Ilchestcr, Earl of, ex parte 18, 19 Inchiquin, Earl of, v. French 304.417 439 314 19 380 189 22 450 334 37 471 304 352 478 483 496 329 354 326 320 324 . 76. 118 484 463. 467 318 179 169 363 210 219 417. 421 490 457 172. 305 241. 359 446. 471 368 410 180 26 304 956 339. 396 46 46. 302 152 2 220 161 30O 172 303. 427 171 134 27 13. 17 144 XXIV TABLE OF CASES CITED. Inolcdon V. Norlhcote 4-22 Ireland v. Coulter 3G5 Irod V. Hurst 330 Irvinn^ V. Peters 455 Istcd V. Stanley- 114. 117 Ives V. Medcalf 399 Izon V. liutler 304 Jackson v. Hurlock Jackson v. Kelly Jackson v. Leaf Jacobs V. IMiniconi Jacomb v. Harwood 241, 242. 359 James v. Dean Janson v. Bury Jaunccy v. Sealey Jeacock v. Falkener Jeffe V. Wood 33G Jeffereys v. Small Jefferies v. Harrison Jemmot v. Cooly Jenison v. Ld. Lexington Jenkins v. Whitehouse Jenkins v. Plombe 152. 426, 427 Jenkins in re Jenkins v. Plume 161, 162, Jenkins v. Powell Jennings v. Looks Jenks V. Halford Jenner v. Morgan Jennor v. Harper Jenour v. Jenour Jesson V. Essington Jevons V. Harridge Jevons V. Livemore Jewson V. Moulson 217 Johns V. Rowe Johnson v. Lee Johnson's Case Johnston v. Johnston Jolly V. Uower Jones V. Earl of Stafford Jones V. Goodchild Jones V. Waller Jones V. Jones Jones V. Selby Jones V. Westcomb Jones V. Wilson Joslin V, Brewit Joseph V. Mott 21 341 455 442 256. , 407 141 374 71 337 , 338 155 483 179 140 9 ,436 131 438 329 172 396 208 339 343 393 12 ib. . 490 84 496 118 19 289 101 106 129 154 234 354 439 352 289 Keates v. Burton 319 Kelsock V. Nicholson 360 Kemp V. Andrews 155. 162 Kendal v. Micfield 140 Kendar v. Milward 182 Kendrick v. Burges 243. 367 Kennedy v. Stainsby 352 Kenyon v. Worthington 455 Ket V. Life 131 Keylway v. Keylway 382 King V. King 284. 417 King V. Ayloffe 434 King V. Stevenson 436, 437 Kirkman v. Kirkman 391 Knight V. Duplessis 102 Knight V. Maclean 287 Knight V. Knight 410 Kniveton v. Latham 357 Knot V. Barlow 357 L. Lacam v. Mertins 419, 420, 421 Lake v. Craddock 155 Lake v. Lake 353, 354 Lampenv. Clowbery 171, 172 Lamplugh v. Lamplugh 354 Lancashire v. Lancashire 18 Lancy v. Duke of Athol 420 Lancy v. Fairchild 281 Langham v. Sand ford 352 Langford v. Gascoigne 486 Langston v. Ollifant 428 Lassels v. Lord Cornwallis 283 Laundy v. Williams 313. 325 Lawson v. Hudson 419 Lawson v. Stitch 301. 323 Lawson v. Lawson 232. 234, 235, 236 Lawton v. Lawton 197. 210 Leake v. Robinson Lechmere v. Earl of Carlisle 189. 283. Lee V. Cox Leech v. Leech Leek, ex parte Lees V. Summersgill Le Grice v. Finch Leigh V. Barry Leman v. Newnhapa Lemanv. Tooke ^-— ' Le Mason v. Dixon Levet V. Lewkenor 447, Levet V. Needhara Lewin v. Lewin 302. 339, Lewis V. Lewis Lewis V. Mangle Lewin v. Okeley Ljmberg v. Mason 2. 1' Liramer v. Every Linofard v. Earl of Derby 324 180. 415 386 327 488 300 331 484 419 281 436 449 178 391 314 119 412 '. 57 118 410 Lingen v. Sowray 7. 180, 181 Lister v. Lister 222 Littleton's, Sir Thomas, Case 185 Littleton v. Hibbins 259, 260. 269. 292 Littlehales v. Gascoyne 426. 429. 471, 472 TABLE OF CASES CITED. XXV Lloyd V. William 323 Lloyd V. Tench 374.381.384 Loame v. Casey 297 Lockier v. Smith 349 Lockyer v. Simpson 350 Lockyer v. Savage 399 LoefFs V. Lewin 283 Logan V. Fairlie 328 Lonquet v. Scavven 178 Lonsdale, Lord, v. Church 287 Long V. Short 301. 340 London, City of, V. Richmond 319 Longmore v. Broom ih. Lord V. Wormleighton 455 Lowther v. Cavendish 314 Lowther v. Condon 171, 172 Lowndes v. Lowndes 326 Lowson V. Copeland 426 Lucy V. Levington 158. 431 Lucas v. Lucas 226 Luck's Case 253 Lugg V. Lugg 18 Luke V. Alderne 312. 491 Lumley v. May 304 Lutwyche v. Lutwyche 381 Lutkins v. Leigh 421 Lyndall v. Dunlapp 279 Lynn v. Beaver 355 M. Macclesfield, Earl of, v. Davis 199 Mackenzie v. Mackenzie 437. 467 Maddox v. Staines 315 Madox v. Jackson 410 Maddison v. Andrews 319 Maltby v. Russell 288 Malcomb v. Martin 332. 328 Manaton v. Manaton 410 Mann v. Copeland 302 Manning v. Napp 106 Mann V. Bishop of Bristol 144 Mannering v. Herbert 172 Manning's Case 355 Manning v. Spooner 416. 419 Martin v. Mowlin 187. 189 Marlborough, Duke of, v. Lord Godolphin 9 Marshall v. Frank 85 Mario w v. Smith 134 Martin v. Crump 155. 162 Marshall v. Frank 179 Martin v. Rebow 352, 353 Marwood v. Turner 22. 25 Martwick v. Taylor 57 Marriot v. Marriot 65. 76 Martin v. Martin 270 Markland, ex- parte 488 Mason v. Williams 270 Massey v. Iludbou 301 D Masters V. Masters 334, 335, 336. 339. 420 Mason v. Limberry 14 Mason v. Dixon 159 Mathews v. Mathews 337 Mathews v. Warner 2. 74 Mathews v. Weston 179 Matthews v. Newby 389. 480. 489 M' Williams, matter of 358 Maw V. Harding 382 Maxwell v. Wettenhall 323 Mayott V. Mayott 301 Maybank v. Brooks 303 May V. Wood 171 Mead v. Lord Orrery 44. 256. 306. 307. 311 Meales v. Meales 321. 490 Medcalfe v. Medcalfe 391.394 Mellor V. Overton 288 Mence v. Mence 14 Mentney v. Petty 88 Merchant v. Driver 428 Methuen v. Methuen 17 Middleton v. Dodswell 489 Middleton v. Spicer 353 Miles's Case 224 Miller v. Miller 3 Mildmay's, Sir Henry, Case 466 Milner v. Lord Harewood 140. 409 Miller v. Miller 232. 234. 236 Miller v. Warren 304 Milner V. Coleman 320 Minnel v. Sarazine 336 Mitchinson v. Hewson 219 M'Leod v. Drummond 256 Mogg V. Hodges 420. 422 Monkhouse v. Holme 171 Moore v. Godfrey 313 Moore v. Moore 17 Moore v. Moore 242 Mordaunt v. Hussey 352 Moreton's Case 157. 433 Morrice v. Bank of England 269, 270. 289 Morris v. Burroughs 391. 396. 399 Morrison v. Turner 2 Morley v. Ward 481 Morgan v. Greene 257 Morgan v. Harris 496 Mortlock V, Loathes 480 Morton V.Hopkins 433 Motam V. Motam 320 Mountford v. Gibson 257 Munday v. Earl Howe 326 Munt v. Stokes 152. 436 Murray v. Jones 70 Murrel v. Cox 484 Musson V. May 297 Myddleton v. Rushoul 219 XXVI TABLE OF CASES CITED. N. Nanney v. Martin Napier, Charles James, in re Neale v. Willis Neeve v. Hccke Nelthorj) v. Hill Netter v. Bret Newport v. Godfrey Newman v. Barton Newman v. Hodgson Newstead v. Johnston Newton v. Bennet 412. 414. 340, 342, 428. 32G. 4(37, Nicholas v. Kelligrew Nicholas v. Nicholas Nichols V. Osborne Nicholls V. Judson Nicholls V. Crisp Nisbelt V. Murray Noel V. Nelson Noel V. Robinson 308. 321, 322. Norden v. Levit Norgate v. Snape Norton v. Turville Norwich, Mayor of, v. Johnson 39. Northey v. Northey Northey v. Strange 300. 305 389, Northey v. Burbaore Northumberland, Earl of, v. Mar- quis of (Jranby North, Lord, v. Purdon Nourse v. Finch Noys V. Mordant Nugent V. Gilford 223 73 171 172 341 G8 278 311 55 343 480. 483 48 490 354 337 352 319 470 340. 416 425 447 486 .473 230 390 396 304 314 352 354 187 256 O. Offley V. Best 71. 121, 122. 125. 127 Offley V. Offley 230. 245 Oke V. Heath 1, 2. 304 Oldfield V. Oldfield 172 Onions v. Tyrer 0. 13, 14, 15. 17 Oneal v. Meade 421 Openheimer v. Levy 34 Orr V. Kains 340 Orr V. Newton 364 Owen V. Curzon 457 Oxenden v. Lord Compton 190 Packer V. Wyndham 222,223 Paddy, ex parte in re Drakely 452 Padget V. Priest 38. 41 Page V, Leapingwell 340 Page V. Pager 343 Paget V. Gee 208 Paset V. Hoskins 256 Paine v. Teap Palgrave v. Windham Palmer v. Trevor Palmer v. Dawson Palmer v. Garrard Palmer v. AUicock Pannel v. Taylor Papworth v. Moore Parsons v. Dunne Parsons v. Freeman Parsons v. Freeman Parker v. BiScoe Parker v. Kitt Parker v. Atfield Parker v. Dee Parker v. Amys Parker v. Masters Parrot v. Worsfield Partridge v. Partridge Partridge's Case Patten, executrix, v. Panton Pawlet's, Lord, Case Peach V. Phillips Peacock v. Monk Peanlie's Case Pearce v. Chamberlain Pearce v. Taylor Pearley v. Smith Pearson v. Garnet Pearson v. Henry Pease v. Mead Peck V. Parrot Penticost v. Ley Peploe V. Swinburn Percival v. Crispe Perrot v. Austin Perkins v. Baynton Perkins v. Micklethwaitc Perkins v. Thornton Perkes v. Perkes Petre, Lord, v. Heneage Petrie v. Hannay Pett v. Pett Pett's Case Pett V. Inhab. of Whigfield Pettifer v. James Petit v. Smith 247, 360, 361 Pheasant v. Pheasant Phillips V. Phillips Phipps v. Pitcher Phipps v. Earl of Anglesea Phillips V. Bignell Phillips V. Echard Phillips V. Paget Phiney v. Phiney Phipps V. Steward Pickering v. Towers Pierson v. Garnet 158. 224. 11 434 320 288 374 386 489 313 320 19.21 419 21 243. 364 266 288, 289 293 293 302 302. 333 68 46 171. 330 19 227. 239 94 165. 167 422 210 322 463, 464 . 168 169 302 269. 289 389 284 426.480 304 223 14 196 431 382 3. 82. 373 475 393 370. 490 220 140. 417 2 17 249 270 314, 315. 317 377, 378 496 35 328 Pitrot and Gascoigne's Case 102 TABLE OF CASES CITED. XXVll Pilkington v. Peach 12 Pinbury v. Elkin 169 Pipon V. Pipon 387 Pitfield's Case 172 Pitt V. Hunt 217 Pitt V. Lord Camelford 301 Pitts V.Evans 490 Plume V. Beale 70 Plumer v. Marchant 278. 283. 296, 297 Plunket V. Penson 414, 415 Pockley v. Pockley ■ 417. 419 Pollard V. Gerrard ' 496 Poole's Case 196 Pope V. Whitcombe 300 Portland, Countess of, v. Progers 11 Portman v. Cane 438 Potts V. Layton 455 Potter V. Potter 26, 27 Potinger v. Wightman 387 Pott V. Fellows 320 Pouletv. Poulet 172 Powley and Sear's Case 60 Powell V. Coleaver 329 Powell v. Hankey 227 Powell V. Killick 452 Pratt V. Stocke 125 Pratt V. Sladden • 352, 353 Prattle v. King 141 Price V. Packhurst 446 Price V. Simpson 403 Price V. Vaughan 486 Pring V. Pring 300 Prowse V. Abingdon 172. 422 Proud V. Turner 378 Probert v. Clifford 423 PuUen V. Serjeant 305 Pulkney v. Earl of Darlington 180 Purse v. Snaplin 301, 302 Pusey V. Pusey 190 Pusey V. Desbouverie 391 Pynchyn v. Harris 139 Pyne v. WooUand 243. 367 Quick V. Staines Quincy, ex parte Q. 134, 135 197 R. -Rachfield v. Careless 118. 350. 352. 354 Raine's, Sir Richard, Case 65 Raine v. Coniiu. of JJioc. ol' Cau- terb. 74 Randall v. Bookey 352 Ranking v. Barnard < 338 \l<\\\i\ V. Hughes 46:J Kapliail V. Bochm 4H1 Rashleigh v. Master Rashley v. Masters Ratcliff V. Graves Ravenscroft v. Ravenscroft Raven v. White Rawlins v. Burgis Rawlins v. Powel Rawliuson v. Shaw Ray v. Ray Read v. Phillips Read v. Litchfield Read v. Truelove Redshaw v. Brasier Reech v. Kinnegal Reed v. Desvaynes Reeves v. Freeling Regina v. Rogers Rex V. Bettesworth Rex V. Raines 31. 41 Rex V. Simpson Rex V. Hay Rex V. Netherseal Rex V. Vincent Rex V. Rhodes Rex V. Inhab. of Horsley Rex V. Willet Rex V. Inhab. of Stone Rex V. Stockland Rex V. Withers Rex V. Hilton Rex V. Peck Rex V. Pett Richards v. Mumford Richardson v. Disborow Richardson v. Greese Richfield v. Udall Richmond v. Butcher Rid out v. Lewis Rider v. Wager 25. 304. Ridges v. Morrison Ridler v. Punter Ridout V. Earl of Plymouth Rigden v. Vallier Rightston v. Overton Ripley v. Waterworth Rivers, Earl, v. Earl Derby Ross V. Ewer Rowley v. Eyton Robinson v. Pett Rose V. Bartlett Robin's Case Rockingham, Lord, v. Oxenden Roper V. Radclille Rook V. Warlh Rolfc V. Budder Rogers V. Dan vers RobiuKon v. Gee 283. Itobinson v. Bland 208 483 159 lai 326 23 337 297. 466 135 2 417 484 388 336. 463. 493 347 249 389, 390. 394 9. 71. 85. 105 . 65. 370. 490 44 65 74 76 76 87 141 145 157 172 358 457 ib. 14 494 172. 336 34 176 227 307. 331. 338. 421 334, 335 135 230 57 185 3 173 9 26 44. 455, 450 106 120 176 199 201 226 283 419 287 276, 417, XXVlll TABLE OF CASES CITED. Robinson V. Tonge 409.411. Rose V. Rose Roden v. Smith Rotherani v. Fanshaw Rowiiey v. Dean Rogers v. James Rocive V. Hart 481. Rous V. Noble Rndstone v. Anderson Rutland v. Rutland Rutland, Duke of, v. Dutchess of Rutland 354. Rutland, Countess of, v. Rutland Rutler V. Rutler Russel'^ Case Rush V. Higgs Rye V. Fuljambe 357, 421 304 31-2 317 438 453 483 481 22 133 382 431. 433 390 433 455 320 S. Sand's Case Sadler v. Daniel Sacheveral v. Frogate Salwey v. Salwey Sawyer v. Mercer Sayer v. Sayer 301, Saunders v. Drake Saville v. Blacket Samwell v. Wake Sagittary v. Hyde Sausmerez, ex parte Sadler v. Hobbs Scott V. Rhodes Scudaniore v Hearne Scattergood v. Harrison Scott V. Stephenson Scurfield v. Howes Semine v. Howes Searle v. Law Searle v. Lane 263. Seton V. Lane Serle v. St. Eloy Seaman v. Everald Seers v. Hind Shaw V. Cutteris Sheath v. York Shaw V. Stoughton Shergold v. Stoughton Shepherd v. Shorthose Shore v. Porter Shore, Lady, v. Billingsby Sherman v. Collins Sherrard v. Collins Shaugley v. Harvey Shilleg's Case Shafts V. Powel Sharp V. Fiarl of Srarhro' Shirt V. Wcstby 122. 124 124.491 176. 179 222 293 302. 339 322 330 417 420 452 484 57 281. 292 455, 456 403 484 229 263 266. 269 317 417 425 483 12 19 50 57 77 140 154 172 210 232 245 269 287 324 Shepherd v. Ingram 326 Shudall V. Jekyll 329 Shiphard v. Lutwidge 414 Shuttlcworth v. Garnet 436 Shipbrook, Lord, v. Lord Hinchin- brook Shakeshaft, ex parte Shatter v. Friend Silberschild v. Schiott Sibley V. Cooke Sibthorp v. Moxam Sikes V. Snaith Simmons v. Gutteridge Skinner v. Sweet Slaughter v. May Slanning v. Style Sleech v. Thorington 102 Slingsley v. Lambert Smell V. Dee 171. 305 Smith's Case Smith V. Milles Smith V. Barrow Smith V. Tracey Smith V. Smith Smith V. Gould Smith V. Partridge Smith V. Haskins Smith V. Harman Smith V. Eyles Smith V. Campbell Smith V. Fitzgerald Smith V. Norfolk Smithley v. Chomely Snape v. Norgate Snelling v. Norton Snelson v. Corbet Soan v. Bowden and Eyles Solley V. Gower Sorrell v. Carpenter Southby V. Stonehouse South V. Watson 485, 486 488 494 189 304 304. 307 2 349 424 404 481 323. 340 437 312. 324 105 45. 74 48. 162. 439 91. 137 172. 103 227 301, 302. 471 151 172 270. 289 283. 443 300. 290 386 303 436 40 447 281 230, 231. 422 286 288 209 9 18. 352, 353 329. Southampton, Mayor of, v. Graves 466 Southouse V. Bate 353 Sparrow v. Hardcastle 21, 22 Sparks V. Crofts 406,407 Spencer's Case 390 Spinks V. Robins Sprange v. Stone Spurstow V. Prince Squib V. Wyn Squier v. Mayer Stackpoole v. Howell Stafford, Earl, v. Buckley Stanley v. Stanley Stanley v. Potter Stanton v. Polatt Staplcton V. (-heales Staplelon v. Chcele 337 18 434 372 197 347 200 382 331 394 171, 172 171. 305 158, 115 178 91 TABLE OP CASeS OITED. XXIX St. Alban's, Duke of, v. Beauclerk 335 Startup V. Dodderidge 494 Stasby v. Powell 270 Steadman v. Palling 171 Steel V. Roke 269 Stephens v. Totty 320 Stent V. Robinson ■ 326 Stirling v. Lidiard 22 St. John, Lord, v. Brandring 433 St. John's, Lord, Case 134 St. Legar v. Adams 77 Stockdale v. Bushby 300 Stodden v. Harvey 255 Stokes V. Porter 38 Stone V. Forsyth 9 Stonehouse v. Ilford 278 Stonehouse v. Evelyn 2. 323 Strathmore, Countess of, v. Bowes 26. 217 Strata, Case of Abbot of, ib. Strange v. Harris 481 Stukely v. Butler 190 Sudgrove v. Bailey 234 Sutton V. Sharp 483 Sutton V. Sutton 14 Swallow V. Emberson 444. 471 Sweetland v. Squire 286 Swift V. Gregson 319 Swift V. Roberts 1. 21, 22. 28 Sympson v. Hornsby 27 Syms V. Syms 129 Syms's Case 155 Talbot V. Duke of Shrewsbury Tankerville, Earl of, v. Fawcet Tappenden v. Walsh Targus v. Puget Tasker v. Burr Tate v. Hibbert Tate V. Austen Tattersall v. Howell Taylor v. Acres Taylor v. Allen Taylor v. Shore Tebbs v. Carpenter Terrewest v. Featherby Teynham, Lord, v. Webb Thellusson v. Woodford Thomas v. Davies Thomas v. Butler Thomas v. Kemish Thomas v. Bennett Thomas v. Thomas Thomas v. Kettcriche Thomson v. Butler 336, 337 419 11 172 141 234, 235, 236 339 314 386 358 99. 124 426 455 173 330. 373 55 82. 98. 105. 117 125. 127.129 182 227. 337 319 385 99. 121 Thomson v. Dowe 173 Thompson v. Stanhope 454 Thorald v. Thorald 57 Thornard, Earl of, v. Earl of Suf- folk 331. 339 Thome v. Watkins 387 Thornborough v. Baker 187 Thrustout v. Coppin 91. 241 Thynn v. Thynn 295 Tidwell V. Ariel 303 Tiffin V. Tiffin • 396 Tilney v. Norris 456 Tipping V. Tipping 230, 231. 421, 422 Tissen v. Tissen 326 Tomkyns v. Ladbroke 391. 395 Tomlinson v. Dighton 414 Tomlinson v. Ladbroke 421 Toplis v. Baker 304 Toulson V. Grout 321 Tourton v. Flower 94. 108 Tourney v. Tourney 172 Townshend, Lord, v. Windham 227. 231.422 Tower v. Lord Rous 417 Trevelyan v. Trevelyan 14 Tredway v. Fotherly 186 Tredway v. Bourn 321 Treviban v. Lawrence 429 Trevinian v. Howell 463 Trimmer v. Bayne 421 Trower v. Butts 300 Tucker v. Thurston 21 Tudor V. Samayne 217 Tuffnall V. Page ' 6 Tulk V. Houlditch 306 Tunstal v. Bracken 172. 305 Turner v. Davies 131 Turner v. Crane 187 Turner v. Turner 258. 480 Turner v. Jennings 389 Turner's Case 185 Turner's, Sir Edward, Case 217 Twaites v. Smith 56 Tweedle v. Coverley 417 Tweddle v. Tweddle 419 Tynt v. Tynt 230, 231 Tyrrell v. Tyrrell 324, 325, 326 U. Underwood v. Stephens 485 Upton v. Prince 318 Urquhart v. King 352 Ulterson v. Utterson 28 V. Vaa V.Clark 171,172 Vanthicuson v. Vanthieuson 118 XXX TABLE OF CASES CITED. Vaux V. Ilenclerson Vawson v. .Teft'ery Vernon v. Vernon Vernon v. Beth el I Viofrass v. Binfield Villiers v. Villiers Villa V. Dimock 304 21 280 314 408 7 34 W. Wadsworth v. Gye 475 Wainvvright v. Bendlowes 417 Walcot V. Hall 171 Walker v. Woollaston 31. 98, 102. 105. 257. 403, 404. 40G. 447 Walker v. Wiffer 266 Walker v. Smallwood 269 Walker v. Shore -326 Walker v. Meager 414 Walker v. Jackson 417 Walker v. Walker 2 Wall V. Buchby 483. 486 Wall V. Thurborne 319 Wallace v. Pomfret 337 Wallis V. Hodgson 373 Wallis V. Bright 322 Wallop V. Irwin 443 Walrond v. Fransham 438 Walsh V. Walsh _ 374 Walsam v. Skinner 3 Walter v. Hodge 232 Walton V. Walton 354. 376 Wankford v. Wankford 42. 44, 45. 48. 91. 95, 114, 115. 241. 297. 347. 349. 357. 434. 437 W^arde v. Warde 6 Ward V. Moore 21 Ward V. Turner 234, 235, 236 Ward V. Lord Dudley and Ward 419 Ward V. Lant 329. 378 Waring v. Ward 328 Waring v. Danvers 183. 288, 289. 290. 297 Warr v. Warr 173 Warren v. Statwell 410 Warwick v. Greville 90 Wate V. Briggs 437 Watford v. Masham 34 Watkins v. Cheek 173 Watson V. Earl of Lincoln 329 Watt V. Watt 84 Webb V. Webb 340. 390 Webb V. Jones 417 Webster v. Vv'ebster 343 Wells V. Fydell 472 Wells V. Williams 12. 31. 34 West V. Skip 454 Westbeech v. Kennedy 2 Westfaling v. Westfalinsr 409 Weston V. Poole Weston V. James Westcot V. Gottle Westley v. Clarke Wetherby v. Dixon Whale V. Booth Wheeler v. Sheer • Wheatley v. Lane 440 2G5. 442, 443 470 484 329 134. 256 350. 352 428 Whitchurch v. Whitcliurch 6 Whitchurch v. Baynton 284 White V. Driver 8 White V. Barford 18 White V. Evans 360 White V. Williams " 352 Whitehall v. Squire 154. 472 Whithill V. Phelps 391 Whitman v. Wild 173. 375 Whytmore v. Porter 367 Widdowson v. Duck 480 Wightman v. Townroe and others 474 Wilcocks V. Wilcocks 386. 393 Wilford, Chamberlain of London 201 Wilkinson v. Miles 390 Wilks V. Steward 428 Willand v. Fenn 407 Willats V. Cay 320 Williams v. Owen 25 Williams v. Crey 158 Williams v. Gary 433, 434 Williams, tx parte 454 Willing V. Baine 304 Willis V. Brady 359. 361 Willoughby v. Willoughby 410. 426 Wilson V. Pateman 121 Wilson V. Spencer 173 Wilson V. JJarman 210 Wilson V. Fielding 284. 415. 420 Wilson V. Ivat 361 Wilson V. Poole 440 Winchelsea, Earl of, v. Norcliffe 91. 115. 182. 373 Winchcombe v. Bishop of Winches- ter 283. 425 Wind V. Jekyl 1, 2. 478 Winn V. Littleton 187 Winsor v. Pratt 14 Witter v. Witter 182 Wood V. Briant 394 Woodhouselee, Lord, v. Dal- rymple 300 Woodward v. Glasbrook 302 Woodward v. Parry . 219 Woodroffe v. Wickworth 385 Worsley v. Earl of Scarborough 269, 270 Worthington v. Barlow 464 Worthington v. Evans 313 Wriglit V. Woodward 289 Wright V. llutter 321 TABLE OF CASES CITED. XXXI Wright V. Lord Cadogan 337 Yaites v. Gough Wright V. Bluck 495 Yate V. Goth Wright, executors of, v. Nutt 443 Yates V. Gough Wyllet V. Sanford 17 Yates V. Phittiplace Wynch v. Wynch 325 Young V. Case Young V. Holmes Young V. Radford Y. Yard V. Eland 241 Yard v. Ellard 341 Z Yare v. Harrison 480 Zachariah v. Page 449 447 449 173 67 344 317 439 INDEX TO THE CASES CITED OR INTRODUCED BY THE AMERICAN EDITOR. Note. — " V." follows the name of the plaintiff, — " a?ic?" the name of the defendant. A. Adams anrf Hutchins (3 Greenl. Rep. 174) - - - Page 437 Adams and Sword's Lessee (3 Yeates 34) - - - - 303 Adcock and Campbell, Register, &c. (8 Serg. & Rawle, 132) - - 249 Alexander and Dade (1 Wash. Rep. 30) - - - - _ 223 Albright ant/ Simon (12 Serg. & Rawle, 429) - - - -444 Allison V. Wilson's Ex. (13 Serg. & Rawle, 330) - - - 412 Anderson V. Neff (11 Serg. & Rawle, 208) - - - -456 Andrew v. Gallison (15 Mass. Rep. 325) ----- 242 Andrews and Hunneman (6 Pick. Rep. 126) - - . - 306 Anonymous (1 Hayw. Rep. 355) - - - - - - 108 Anonymous (1 Hayw. Rep. 243) - . - - - -287 Ansart and Coburn (3 Mass. Rep. 318) - - - - - 48 Archer anrf Hood (1 M'Cord's Rep. 225.477) - - - - 10 Armstrong v. Simonton (2 Tayl. Rep. 266) ... - 219 Arndt V. Ardnt (1 Serg. & Rawle, 256) - - . . -2 Arnold V. Nussear (13 Serg. & Rawle, 323) - - - . 8 Ash and Legare (1 Bay, 464) - - - - - - 14 Ash and Patton (7 Serg, & Rawle, 116) ----- 456 Austen one? Trecothick (4 Mason's Rep. 16) -. - - - 72 Austin V. Gage (9 Mass. Rep. 395) - - - - - -416 Ayr'e oirf Fitch (2 Conn. Rep. 143) - - - - -225 Ayres and Toland (7 Harr. & Johns. 3) - - - - - 437 B. Bacon'sAdm. cnrf Giles (4 Harr. & Gill. 164) - - - -463 Bacon's Legatees and Lewis's Ex. 3 Hen. & Munf. 89) - ^^ - 287 Bainbridge and Perkin (3 Phill. Rep. 322) - - - - 15 Baker a7id Johnson (2 Carr. & Payne, 207) - - . . 245 Baker and Williams (2 Car. Law Rep. 599) - - - - 8 Ballard a/u/ Henry (2 Car. Law Rep. 595) - - - - 1 Ballard V. Parker (5 Pick. Rep. 112) - - - - - 22 Banks V. Marksbery (3 Litt. Rep. 281) - - - - -219 Barclay and M'Neilledge (11 Serg. & Rawle, 103 - - - - 300 E XXXIV TABLE OF AMERICAN CASES. BarkerffH^iSluilt (12 Ser) - - - - -350 Battles V. lioUey ((i Crcenl.]{ep. 115) - - - - -US' Bayard and Gratz (11 Serg. & Rawle, 41) - - - - 1G6 Beach c;?f/IIiiist (5 Madd. Rep. 351) - - - - -334 Beach V. Lee (2 Dall. 257) - - - - - -219 Bean v. Farnam (G Pick. Rep. 209) - - - - - 425 Bell V. Newman (5 Serg-. S: Rawle, 78) - - - - - 455 Belt V. Belt (1 Ilarr. k IM'IIen. 409) - - - - - IG Bennett V. .Jackson (2 Phill. Rep. 190) - - - - - 4 Benson v. Leroy (3 Johns. Cha. Rep. C51) - " - , - - 413 Benson ««r/M'Whorter (1 llopk. Cha. Rep. 28) - - - - 456 Benson, Adm V. ]{ice (2 Nott^M'Cord, 577) - - - -129 Bernard a/K/. let, Kx. (3 Call's Rep. 11) -. - - - " - 339 Bevan v. Taylor (7 Serir. k Rawle,"397) - - - - - 382 Bevans V. Briscoe (4 Harr. & Johns. 139) - - - - -204 Bickle,Adm. V. Yonno- (3 Serg. & Rawle, 235) - - - - 146 Biddle and Powell (2 Dall. Rep. 85) - - - - - 300 Biddle v, Wilkins (1 Peters' S. C. Rep. G86) - - - - 437 Bitzer's Ex. v. Halm (14 Serg. & Rawle, 23^) - - - - 324 Black's Ex. and Pringle (2 Uall. 97) - - - - - 477 Blane ««rf Watson's Adm. (12 Serg. <& Rawle, 131) - - -158 Blatchford f/wr/ Murray (1 Wend. 583) - - - - -3^9 Blewit«7»/M'Caw (2 M'Cord's Cha. Rep. 102) - - - -380 Blount «7iri M'Callnp (Cam. & Norw. 9G) - - - - -219 Bohn V. Headley (7 Harr. 8c Johns. 257) - - - - ■ - 219 Boileau «?k/ Vansant(l Binn. 444) - - - - - 2 Boiling and Fleming (3 Call. 75) - - - - - - 350 Bonsall and Lehman (1 Addam's Rep. 389) - - - - 4 Bordeu v. Bordeu (4 Mass. Rep. G7) - - - - - 108 Borland o/i£/ Reed (14 Mass. Rep. 208) - - - - - 16 Bostwick, matter of (4 Johns. Cha. Rep. 102)- - - - -327 Boston, selectmen of, v. Boylston (2 Mass. Rep. 384) . - . 108 Boudinotv. Bradford (2 Yeates, 170. 2 Dall. Rep. 2GG) - - 2.14.355 Boudinot and Bradford (3 Wash. C. C. Rep. 122) - . - - 131 Boylston and Selectmen of Boston (2 Mass. Rep. 384) - - - 108 Boylston flHfZ Dawes (9 Mass. Rep. 337) . - - .- - -108 Bradford's Administrators, Case of (P. A. Browne's Rep. 87) - - 129 Bradford and Boudinot (2 Yeates, 170. 2 Dall. Rep. 2GG) - 2. 14. 355 Bradford v. Boudinot (3 Wash. C. C. Rep. 122) - - - . 131 Bradley V. Overhoudt (13 Johns. Rep. 404) ■: - - -198 Brady and Jamison (G Serg. & Rawle, 4G6) - - - - 225 Brailsford owfZ Johnson (2 iVott 8c M'Cord, 272) - .- - - 12 Brattle V. Gustin (1 Root. 425) - - - '- - . - 116 Brattle v. Converse (1 Root. 174) - - - - - ' - 116 Bray «??(/ Hall (Cox's N. J. Rep. 212) - - ' - - - 25 Bray V. Dudgeon (GMunf. Rep. 132) - - ' ' - - - 85 Bray field v. Brayfield (3 Harr. 8c Johns. 208) - - - - 2 Breed «Hf7 Osgood (12 Mass. Rep. 532) - - - - - 9 Brehman «/jr/ Weishaupt (5 Binn. 118) - - - , - . -303 Brent V. Dodd (Gilm. Rep. 211) - - - - - - 14 Brewster v. Hill (1 New Hamp. Rep. 350) - - - - 6 Briscoe and Bevans (4 Harr. 8c Johns. 139) - - . - 203 Bronson and Hammick (5 Day's Rop. 294) - - - - 220 Brooks V. Floyd (2 M'Cord's Rep. 3G4) - - - - - 437 Brough and Moritz (IG Serg. 8c Rawle, 403) - - - - 15 Brown, Ex, of Edgar's Appeal (1 Dall. 311) -. - - -484 Brown, Ex. V. Lambert (IG Johns. Rep. 148) - - - -440 TABLE OF AMERICAN CASES. XXXV Brown's Ex. v. Tilden (5 Harr. & Johns. 371) - - - - 2 Brown'sAdm.v. Griffith (GMunf. 450) 287 Brown and llylton (1 Wash. C. C. Rep. 299) - - - - 2 Brown a??fZ Hawley (1 Root's Rep. 494) - ' - - - - 2 Brush V. Wilkins (4 Johns. Cha. Rep. 506) - - - - 17 Bryan (mrf The Commonwealth of Pennsylvania (8 Serg. & Rawle, 128 - 249 Bryan v. M'Gee (2 Wash. C. C. Rep. 337 - - - - 108 Briickv. Lantz (2Rawle, 392) - -. - - - -145 Bnckner v. Smith (4 Desaus. Rep. 371) ----- 219 Bull an^Malin (13 Serg. & Rawle, 441) 462 Burch and Scott (6 Harr, & Johns. 67) - - - - - 129 Burgwin v. Hostler's Adm. (Tayl. Rep. 124) - - - - 474 Burley and Carlisle (3 Greenl, Rep. 250) - - - - - 437 Burns v. Burns (4 Serg. & Rawle, 297) - - - - 12. 14 Butts' Adm. V. Price (Cam. & Norw. 68) - - - - - 108 Byrne's Adm. v. Stewart (3 Desaus. Rep. 135) - - - - 219 Byrne v. Byrne (3 Serg. & Rawle 54) - - - - - 337 c. Callaghan's Adm. and Hall (1 -Serg. & Rawle, 241) - - - 486 Call V. Hardy (16 Mass. Rep. 530) - - - - -440 Campbell's Register, kc. v. Adcock (8 Serg. & Rawle, 132) - . - 249 Campbell's Ex. v. Sullivan (Hard. Rep. 17) . - - - - 287 Carlisle v. Burley (3 Greenl. Rep. 250) - - - - - 437 Carrington and Nelson (4 Munf. 332) ----- 362 Carroll flHcZCassell (11 Wheat. Rep. 134) 219 Carson's Ex. and Stuart (1 Desaus. Rep. 501) - - - 301. 339 Cassell V.Carroll (11 Wheat. Rep. 134) 219 Chamberlin c«fZ Grout, Adm. (4 Mass. Rep. 611) - - - -448 Champlin V. Tilley (3 Day's Rep. 303) 108 Chandler's Ex. v. Neal's Ex. (2 Hen. & Munf. 121) .- - - 287 Chapel and Talmadge (16 Mass. Rep. 71) - - - - 108 Chapman v. Gray (15 Mass. Rep. 439) - - - - - G Chew's Ex. and Griffith (8 Serg. & Rawle, 29) - - - - 296 Cheek and Watkins (2 Sim. & Stu. Rep. 205) - - - - 256 Cist and Reed (7 Serg. & Rawle, 183) - - - - - 158 Clark Grtc/Hogeboom (17 Johns. 268) - - -. - -440 Clark and Gleason (1 Wend. Rep. 303) - - - . - 440 Clark and Kirby (1 Root, 389) - - - - - - 432 Clark V. Herring (5 Binn. 33) - - ' - - - - 464 Clarkson and Loocock (1' Desaus. Rep. 471) - - . - 301 Class and Hawkins (1 Bibb's Rep. 246) - . - - - 460 Clemson and Pusey (9 Serg. & Rawle, 208) - - - - 347 Coates V. Hughes (3 Binn. 498) - - - - - - 17 Coburn t. Ansart (3 Mass. Rep. 318) - - - - - 48 Cochran's Will, Case of (3 Bibb's Rep. 491) - - - - 2 Coffbill V. Coffbill (2 Hen. & Munf. 467) - . - - - - 15 Coo-dell's Ex. V. Codgell's Heirs (3 Desaus. Rep. 387) - ' - - 323 . Collins V. Weiser (12^ Serg. & Rawle, 97) - . - . 463 Collin's Ex. and Woodbury (1 Desaus. Rep. 425 - - - - 299 Coleman, Adm. v. M'Murdo (5 Rand. Rep. 51) - - - - 450 Cplgin a?2f/Hendren (4 Munf. Rep. 231) - - - - - 84 Commonwealth (of Virginia) and Nimmo's Ex. (4 Hen. & Munf. 57) 139. 413 Commonwealth (of Pennsylvania) v. Rahm (2 Serg. & Rawle, 375) - 146 Commonwealth (of Pennsylvania) v. Shelby (13 Sorg. & Rawle, 348) 301. 418 Commonwealth (of Pennsylvania) v. Bryan (8 Serg. fe liavvlc 128) - 219 ,Commonwealth (of Pennsylvania) v. Kintr (4 Serg. &Rawle, 109) - 470 Cooke and Lee's Ex. ((Jilm. Rep. 331) - - - r - 460 Cooper V. Remscn (3 .Johns, ('ha. Rep. 382) - - - -311 XXXVl TABLE OF AMERICAN CASES. Corbin «?2J nurwell (1 Rand. Rep. 131) - - - - - 2 Cornell V. Green (10 Serg. & Ravvle, 14) - - - . .158 Cox mnt jMiniise (5 Johns. Clui. Rep. 150) - - - - 22 Cradock and The State of Maryland (7 Ilarr. & Johns. 40) - - 405 Craighead v. Given, Adm. (10 Ser^. & Rawle, 351) - - - 342 Crane «/?r/ Ford (1 Cow. Rep. 71) - -. - -. -• -467 Crary a»f/ Williams (8 Covv. Rep. 24G) - - - -' -336 Crot'ton V. Ilsley (4(;reenl. Rep. 134) - - - -" - 72 Cross V. Gibbons (2 Addam's Rep. 455) - - - - - 17 Crozier V. Gano (1 Bibb's Rep. 257) - - - - -219 Cruger v. Heyward (2 Uesaus. Rep. 84) - - - . - 326 Cummin and Sheble (1 P. A. Browh's Rep. 253) ... - 219 Cnnlifffmf/MTherson (11 wSerg. & Ravvle, 422) - - - - 14G Curtis V. The Bank of Somerset (7 llarr. i>i Johns. 25) - . - 403 Cutehin v. Wilkinson (1 Call's Rep. 3) - - - - - 85 Cuthbert and Heyvi'ard (4 Desaus. Rep. 445) - - - . 320 Cuthbert V. Cuthbert (3 Yeates 486) - - - - -301 D. Dade V. Alexander (1 Wash. Rep. 30) - - _ - -223 Dale v. Roosevelt (8 Cow. Rep. 333.) - - - - -448 Damon «"^^ Stone (12 Mass. -Rep. 488) - - - _ . 9 Dandridge v. Minge (4 Rand. Rep. 397) - - - - - - 284 ' Darrah v. M'Nair (Ashm. Rep. 230) - - - - - 386 Davenport and Lawrason (2 Call's Rep. 95) . - . . 341 Davis v. Davis' Ex. (3 Binn. 566, cited) - - - - -355 Davis and Havard (2 Binn. 406) - - - - - - 14 Davis fl«f/ Peters (7 Mass. Rep. 257) - - r - -162 Davoue v. Fanning (2 Johns. Cha. Rep. 252) .... 362 Dawes, Judge, Sic. v. Boylston (9 Mass. Rep. 337) - - - 108 Dawes v. Swan (4 Mass. Rep. 215) . . •. . . . 324 Dean, Ex. v. Littlefield (1 Pick. Rep. 239) - - - - '8 De Besse v. Napier (1 M'Cord's Rep. 107) - - - - 39 Den v. De Hart (1 Halst. Rep. 450) . . - . . 464 De Hart and Den (1 Halst. Rep. 450) ..... 464 Deklyne and Krider (13 Serg. «fc Rawle, 147) .... 441 Delavan«?!rf Pope (1 Wend. Rep. 68) ^ - . . -467 Dewit and Green (1 Root, 183) ...... 242 Dewit V. Yates (10 Johns. Rep. 156) - - . - - - 334 Dickey a?2fZ Morrell (1 Johns. Cha. Rep. 153) - , - - 1. 108. 314 Dickinson V. M'Craw (4 Rand. Rep. 158) - - . j -108 Dickinson V. Purvis (8 Serg. & Rawle, 81) - - - -303 Dieser, Adm. v. Sterling (10 Serg. & Ravvle, 119) - - - 441 Dietrick v. Dietrick (5 Serg. & Rawle^ 20'7) - - - ■ - 8 Digges' Lessee v. Jarman (4 Harr. k M'Hen. 485) - - - 362 Dillingham and Scars (12 Mass. Rep. 358) - - - - 2 Dixon's Ex. v. Ramsay's Ex. (3 Cranch, 319) . - - -'108 Dodd ««rf Brent (Gilm. Rep. '211) - - - - - - 14 Doe V. Teague (5 Barn, and Cresw. 335) - - - - - 2 • Doolittle V. Lewis (7 Johns. Cha. Rep. 45) - - -, -108 Dornick V. Riechenback (10 Serg. k Rawle, 84) - - - - 9 Dorsey V, Smithson (0 Harr. & Johns. 61) - . . - 39 Dougherty v. Snyder (15 Serg. & Rawle, 84) - - . - . - 227 Douglass and Stanet (2 Yeates, 48) . ^ . . . 9 Draper V. Jackson (16 Mass. Rep. 480) -- - - - -220 Drayton v. Drayton (2 Desaus. Rep. 250) - - - - - 362 Drayton v. Shoolbred (2 Desaus. Rep. 216) .... 362 Drum's Lessee v. Simpson (6 Binn. 478) - - - - - 2 Duffield andiSw'ih (5 Serg. & Rawle, 40) - - - - 30. 300 TABLE OF AMERICAN CASES. XXXVll Dukehart's Ex. v. The State (4 Harr. & Johns. 50G) - - - 140 Dumoiid V. M'Gee, (4 Johns. Cha. Rep. 31-8) - - - - 220 Duncan V. Walker (2 Dall. 205) - - - - - "386 Dunch and M'Comb (2 Dall. 73) 477 Dunham a«fZ Mason (1 Munf.45G) - - - - - - 4 Dunlap V. Dunhap (4 Desaus. Rep. 305) - - - - 2. 2j Durant V. Starr (11 Mass. Rep. 227) - .. - - - - 2 Dykes v. Woodhouse's Adm. (3 Rand. Rep. 288) - - - - 352 E. Eckart a«t?Grasser (1 Binn. 575) - .... -352 Edelen v. Hardy's Lessee (7 Harr. & Johns. Gl) - - - - 2 Elbeck V. Cranberry (2 Hay w. Rep. 232) - - - - - 2 Elms, Ex parte (3 Desaus. Rep. 155) ----- 219 Elton a«cZ Nicholson (13 Serg.&Rawle, 416) - - - -461 Emerson and Union Bank (15 Mass. Rep. 159) . - - - 198 Eppes and Royal (2 Munf. 479) 1^ Evans, Adm. v. Pierson (1 Wend. Rep. 30). - - ' - - 463 Evans awZFritez (13 Serg. &Rawle, 1) - - - - -410 Evans v. Kino-sbury (2 Rand. Rep. 120) - . - - - - 213 Evans V. Tatem (9 Serg. &Rawle, 252) - Z - - - -108 Eyre v. Goldihg (5 Binn. 475) ------ 324 Eyster V.Young (3 Yeates, 511) - ^ -, - ' - - " ^ F. - 31 - 362 Fabre's Ex. and Higginson (3 Desaus. Rep. 93) - . Fannino- and Davoue (2 Johns. Cha. Rep. 252) - - - Y-d-xmrnand Bean (G Pick. 209) - - . - : '" " ^25 Fenwickv. Scars (1 Cranch»259) - - -, - - •- -108 Ferris and Jackson (15 Johns. Rep. 348) ----- 362 Finley flnrfM'Lean(2Penns. Rep. 97) 494 Fisher and the U. States (2 Cranch, 358) - - - - - 259 •Fisher and W'are's Lessee (2 Yeates, 578) ... - 386 Fishwick's Adm. v. Sewell (4 Harr. & Johns. 393) - - - 432 Fitch v. Ayre (2 Conn. Rep. 143) - - - - r - 225 Fitzsimoris a?i(/ Wallace (1 Dall. 162) 162 Fleminirv. Boiling (3 Call. 75) - - - - - -350 Flintham's Appeal (11 Serg. &Rmvle, 16) - - - 245.480 Floyd a«fZ Brooks (2 M'Cord's Rep. 364) 437 Fonda OH^ Van Home (5 Johns. Cha. Rep. 388) - - - - 42 Ford V. Gardner (1 Hen. & Munf. 72) - - - . - 77 Forbes v. Pierie (1 Harr. & Johns. 109) - - - - - 463. Frazierunrf Griffith (8 Cranch, 9) - - - - - - 104 Frazier v. Tunis (1 Binn. 254) - - - - - - 283 Frink v. Luyten (2 Bay, IGG) 440 Fritz, Ex. V. Evans (13 Serg; & Rawle, 1) - . - - - 410 Fry, In the goods of (iHagg. Rep. 80) - - - - .--35 G. G?ige an(i Austen (9 Mass. 395) - - - - - "416 Gage V. Johnson's Adm. (1 M'Cord's Rep. 492) - - - - 407 Games v. Gaines (2 Marsh. Rep. 190) - - - -. - IG Galbraith and M'Neilledge (8 Serg. & Rawle, 41) - - - - 300 Gale V. Ward (14 Mass. Rep. 352) - - - " - - 1^^ Gallison«m/ Andrew (15 Mass. Rep. 325) - r - - -242 Gano«HcZCrozier (I Bibb's Rep. 257) - - - - -219 Gardner and Ford (I Hen. & Munf. 72) - - ' .- - - 77 XXXVlll TABLE OF AMERICAN CASES. Gardner v, Parker (3 Made], Rep. 184) - - • - - - 234 Gay, Ex parte (5 Mass. Kep. Hi)) - - - - - & Gaylord «»f/ Stephens (11 Mass. Rep. 369) - - - 108.317 Geer v. Winds (4 Desaus. Rep. 85) - - - - - 300 Gel back's Appeal (8 Serg. & Rawle, 205) - - - - - 182 Genet V. Tal!madp. 97) - - - - -242 Read and Walmesley (1 Ycates, 87) - - - - - 2 Reed et ux v. Borland (14 Mass. Rep. 208) - - - - 16 Reed v. Cist (7 Serg. & Ravvle, 183) - - - - - 158 Reichenbaek o»rf Dornick (10 Serg. & Rawle, 84) - - - r 9 Remsen «/k/ Cooper (3 Johns. Cha. Rep. 382) - - -' -314 Reynolds v. Reynolds (IG Serg. & Rawle, 82) - - - - 2 Rice «»rf Benson (2 Nott & M'Cord, 577) - - - - -129 Richards rwjrf Harvey (1 Mason's Kep. 381) . . - -386 Riley v. Riley (3 Day's Rep. 74) - - - - - - 108 Rine anrf Wilson (1 Harr. & Johns. 139) - - ' - - -306 Robinson v. Martin (2 Yeates, 525) - - . - . - 303 Rootes a??f/ Wilcox (1 Wash. Rep. 140) - - - - - 17 Rootes V. Webb (4 Munf. 77) - - - - - - 341 Roosevelt and Dale (8 Cow. Rep. 333) - - - - , - 448 Roosevelt V. Mark (6 Johns. Cha. Rep. 266) - - - -287 Rossiter and Simmons (6 Serg. & Rawle, 452) - - - . - 2 Rothmaler's Adm.' v. Myers (4 Desaus. Rep. 215) - . - 346 Rothwell V. Rothwell (2 Sim. & Stu. Rep. 48) • - - - - 348 Rowan and Harrison (3 Wash. C. C. Rep. 580) - - - - 2 Royal V. P^ppes (2 Munf. 479) - - - ' - - - 122 Rudd ff«rf Long (4 Johns. Rep. 190) - - - - -440 Rutledge v. Rutledge's Creditors (1 M'Cord's Cha. Rep. 460) - - 412 s. Sabin V. Oilman (Adams' Rep. 198) - - - - " - . ]08 Sampson and Harrison (2 Wash. Rep. 155) - - _ . 459 Savage and Kennedy (2 P. A. Browne's Rep. 178) - - - 152 Scheiffelin v. Stewart (1 Johns. Ch. Rep. 620) . - - . 48O Scott G?irf Jones (1 Russ. & Mylne, 255) - - . - -287 Scott V. Burch (6 Harr. & Johns, 67) - - - - - 129 Sears ant? Fenwick (1 Cranch, 259) - . - - -108 Sears v. Dillingham (12 Mass. Rep. 358) - - - • - - 2 Seaver a?2f/ Hayes (7 Greenl. Rep. 237) - - - - -339 Seaver v. Lewis (14 Mass. Rep. 83) ..... 413 Sedgwick and Lee (1 Root's Rep. 52) - - - - - 89 Semmes v. Semmes (7 Harr. & Johns. 388) - - - " - .12 Sewell and Fishwick's Adm. (4 Harr. & Johns. 393)- . - . 433 Sexman and Kerns (16 Serg. & Rawle, 315) -• - - - 2 Shauffler v. Stoever, Adm. (4 Serg. &,Rawle, 202) - - -121 Sheble and Cummin (1 P. A. Browne's Rep. 253) - - - 219 Shelby and The Commonwealth of Pennsylvania (13 Serg. & Rawle, 348) 301 Shelton v. Shelton (1 Wash. Rep, 53) - - - - - 352 Shields v. Irwin (3 Yeates, 389) - - - - - - 1 Shields v. Owens (1 Rawle, 72) - - - . - • - ' - 463 Shillaber v. Wyman (15 Mass. Rep. 322) ----- 242 Shoolbred and Drayton (2 Desaus. Rep. 246) - - • - - 362 Shultv. Barker (12 Serg. & Rawle, 272) - - . . -206 Shutz's Appeal (11 Serg. & Rawle, 182) - - - - -286 Siglar V. Haywood (8 Wheat. 675) - - . . . 45G Silver v. Williams (17 Serg. & Rawle, 292) - - - - 258 Simmons a/z^/ Lattimore (13 Serg. &. Rawle, 185) ... 462 Simmons and Rossiter (6 Serg. & Rawle, 452) - - - - 2 Simon, Adm. V. Albright (12 Serg.- & Rawle, 429) - - -444 TABLE OF AMERICAN CASES. xlv Simonton a?if7 Armstrong (2 Tayl. Rep. 266) - - - -219 Simpson and Drum's Lessee (6 Binn. 478) - - " • .2 Sinclair V. Wilson (3 Penns. Rep. 167) - - - - -465 Somerset Bank and Curtis (7 Harr. & Johns. 25) - - - - 436 Small V. Small (4 Greenl. Hep. 220) - - - - - 8 Smart c?i(Z Stephens (1 Car. Law Rep. 471) - -. - - 108 Smart a«(Z Williamson (Tayl. Rep. 219) - - - -. -386 Smith V. Porter (1 Binn. 209) 287 Smith a«rf Montague (13 Mass. Rep. 396) - -" - - - 6 Smith 07i^ Howell's Adm. (2 M'Cord's Rep. 516) - - - - 37 Smith and Geyer (1 Dall. 347, n.) 463 Smithfm^Graff (1 Dall. 141) - - - - - -145 Smith and Morris's Lessee (1 Yeates, 238) - . - - - 145 Smith a«f/ Bruckner (4 Desaus. Rep. 371) ^ - - - -219 Smith and Glenn (2 Gill & Johns. 494) - ~ - - - - 39 Smith V. Johnson (1 Penns. Rep. 471) ----- 150 Smith and Johnson (3 Penns. Rep. 496) - - - - - 150 Smith and Zebach's Lessee (3 Binn. 69) ----- 362 Smith's Adm. and Tazewell (1 Rand. Rep. 313) - - - - 173 Smith's Case (2 Desaus. Rep, 123, n.) - - .. - - - -300 Smithson a?ic? Dorsey (6 Harr. and Johns. 61) - - - - 39 Snelgrove y. Snelgrove (4 Desaus. 274) - - - - - 2 Snyder and Dougherty (15 Serg. & Rawle, 84) - - - - 227 Snyder's Lessee v. Snyder (6 Binn. 483) - - - - - 146 Southwick V. Jordan (15 Mass. Rep. 113) - - - - - 22 Sperry's Estate (1 Ashm. Rep. 347) ----- 455 Stambaugh ami Penn. Ag. Sank (13 Serg. & Rawle, 303) - - 468 Stammers a??rf Weston (1 Dall. 2) - - - - - - 2 Stanet v. Douglass (2 Yeates, 48) - - - - - - 9 Stanley and Nailer's Ex. (10 Serg. & Rawle, 450) - - - 146 Stark and Sheppard's Ex. (3 Munf. Rep. 29) - - - - 341 Starr anrf Durant (11 Mass. Rep. 527) - ■ - - - - 2 State (of Maryland) v. Cradock (-7 Harr. & Johns. 40) - - - 405 State (of Maryland) and Dukehart's Ex. (4 Harr. & Johns. 506) - - 140 State (of Maryland) v. Krebs (6 Harr. & Johns. 31) - - - 219 State Bank of N. Carolina and The U. States (6 Peters' Sup. C. Rep. 29) 259 Stein V. North (3 Yeates, 324) 1 Stephen v. Smart (1 Carol. Law Rep. 471) - - - - 108 Stephens V. Gaylord (11 Mass. Rep. 369) - - - - 108.347 Steuart ant/Tilghman (4 Harr. & Johns. 156) - - - - 3 Stevens and Thomas (4 Johns. Cha. Rep. 607) - - - - 300 Stewart and Byrne's Adm. (3 Desaus. Rep. 135) - - - - 219 Stewart and Scheiffelin (1 Johns. Cha. Rep. 620) - - - - 480 Stewart V. Carson's Ex. (1 Desaus. Rep. 501) . - - - 301 Stewart v. Stewaft (7 Johns. Cha. Rep. 244) - - ' - - 84 Stewart's Will, case of, (stated 4 Harr. & Johns. 162) - - - 3 Stockton V. Wilson (3 Penns. Rep. 129) - - " - - - 37 Stoever, Adm. and Shauffler (4 Serg. & Rawle, 202) . - - 121 Stoever V. Ludwig (4 Serg. & Rawle, 201) - - - - 90 Stone and Greave (1 Harr. & Johns. 405) - - - - - 464 Stone V. Damon (12 Mass. Rep. 488) - - - - - 9 Stone V. Massey (2 Yeates, 369) - - - - - - 305 Storrs and Williams (0 Johns. Cha. Rep, 353) - - . - 108 Stout V. Hart (2 Halst. Rep. 414) - - - - - -303 Stout and Miller (2 P. A. Browne's Rep. 294) - - - - 145 Stovall's Ex. V. Woodson (2 Munf. 303) - - - - - 341 Strong V. Williams (12 Mass. Rep. 391) - - -' - -337 Sullivan and Campbell's Ex. (Hard. Rep. 17) - - - - 287 Swan and Dawes (4 Mass. Rep. 215) - - r • - 324 Sw^n and Picquet (3 Mason's Rep. 469) - - - - - 108 Xlvi TABLE OF AMERICAN CASES. Swann f/«f/ Gnaqrc (1 Ilayvv. 3) ..... -223 Svvcariiigen v. Pendleton's Ex. (4 Serg. & Rawle, 389) - - . 459 Swicard and Wilson (2 Rep. Const. Ct. So. CaroliRa, 208) - - 464 Swift V. Duffield (5 Serg. & Rawle, 40) - - - - - 30 Sword's Lessee v. Adams (3 Yeates, 34) . . - - - 303 Taggart a«c? Toner (5 Binn. 491) - - - - - - 1 Tallnian and Woodward's Ex. and Wooer (Coxe's N. J. Rep. 153) - 348- Tallmadge V. Chapel (IG Mass. Rep. 71) - - - - -108 Tallmadge and Genet (I .Johns. Cha. Rep. 3) - - - - 314 Tatem and Evans (9 Serg. and Rawle, 252) .... 108 Taylor ««c? Bevan (7 Serg-. and Rawle, 397) - - \ -' -382 Taylor and Lloyd's Lessee (2 Ball. 223) - - - - - 363 Taylor v. Taylor (2 Nott & M'Cord, 485) - - - - - 16 Tazewell v. Smith's Adm. (1 Rand. Rep. 313) - - - - 173 Temple v. Temple (1 Hen. & Munf. 476) - - - - - 9 Thomas and Stevens (4 Johns. Cha. Rep. 607) ... - 300 Thomas v. Thompson (2 Johns. Rep. 471) - - - ' - 296 Thompson ««c? Thomas (2 Johns. Rep. 471) - - , - - 296 Thompson's Adm. v. Thompson's Ex, (6 Munf. 514) - - . - 150 Tilden e security -by him ordered as aforesaid: Provided, That no such exception shall be so made, or proceedings thereunto be had before the Register, after one year elapsed from the time of the filing, of a full and perfect inventory by such executor or' administrator of the whole of the estate in question. Sect. 29. Every Register, before he shall allow the accounts of any executor or administrator, shall carefully examine the same, and require the production of the ne- cessary vouchers, or other satisfactory evidence of the several items contained in it. Sect. 30. Every Register having allowed and filed any account in his office, shall prepare and present a cer- tified copy thereof to the Orphans' Court of the respective county, at its next stated meeting, being not less than thirty days distant from the time of such filing and allow- ance, of all which he shall give notice to all persons con- cerned, in the following manner, viz? by an advertise- ment enumerating all the accounts to be presented at any one time to the said court, in at least two newspapers (if there be two,) published in the respective county, or if there be but one newspaper published in such county, then in that one, or if there be none, then in one printed nearest to the said county, at least once a week during the four weeks immediately preceding the meeting of the court at which such account shall be presented, setting forth in substance that the accountants, (naming them and the character in which they respectively act,) have set- tled their accounts in the office of the said Register, and that the same will be presented to the Orphans' Court for confirmation, at a certain tin;>e and place, (mentioning the same,) and also by setting up conspicuously iii his office, and in at least six other of the most public places in the county, at least four weeks before the time appointed for the presentation of such accounts as aforesaid, fairly writ- ten or printed copies of such advertisements; and the actual expense of such advertisement, according to the usual rates of advertising in such newspapers, and of the setting up of such notices, shall be divided among all the accounts presented at the same court, and the proper pro- portion thereof only shall be charged in any of the said accounts, and allowed to the Register as the cost of such advertisement and notices; Sect. 31, From all the judicial acts and decisions of the several Registers, appeals may be taken to a Regis- ter's Court of the respective county, to be appointed and called by the respective Register in the manner prescribed REGISTERS AND REGISTERS' COURTS. llX by this act: Provided, That such appeals be made within Proviso. the term of three years. Sect. 32. It shall be the duty of every Register to ^^^^^^ ^°^ make and certify, under the seal of his office, true copies "rproceed-' of all bonds, inventories, accounts, actings and proceed- ingsinhis ings whatsoever, remaining in his office, being thereunto °*'^*=^' required by any person having an interest therein, and to deliver the same within a reasonable time to such per- son applying therefor, on receiving the fee allowed to Y&e%. ' him by law for such copy or copies, and if any Register shall refuse, after the tender of his lawful fees, to make Refusal a mis- er deliver such copy or copies as aforesaid, he shall be demeanor, deemed guilty of a misdemeanor in office. Sect. 33. Whenever any receipt given by the trea- To transmit surer of any county for moneys paid to him by any exe- county*tr°easu- cutor or administrator for the use of the commonwealth, rertotheau- under the provisions of the laws relating to collateral in- ditor general, heritances, shall be lodged by such executor or adminis- trator with the Register having jurisdiction of his account, such Register shall without delay record such receipt, and immediately thereupon transmit the same to the Auditor General of this commonwealth. Sect. 34. Every Register shall annually, in the month To account of September, account for, under oath or affirmation, to annuaily'afl the Auditor General, and pay into the treasury of the moneys re- commonwealth, all moneys which may have been received ^qJ^^^j^J" *^^ by him for the use of the commonwealth during the year wealth, immediately preceding the first day of the said month, deducting therefrom such sum only as shall be allowed to him by law for receiving and paying the same. Sect. 35. Every Register shall annually, in the month "To settle an rf* • Recount 01 of October, render an account, under oath or affirmation, f^gg annually, to the Auditor General, of all fees which shall have been and pay, &c. received by him, or by any person employed by him for official acts and services performed in his office, and when- ever the amount thereof, as allowed by the Auditor Ge- neral, shall exceed the sum of fifteen hundred dollars, he shall pay one half of the excess into the treasury of the commonwealth. Sect. 36. On the probate of any will, and the granting To demand of letters testamentary thereon, also on the grantmg ot ^^^^^^ p^^_ any letters of administration, every Register shall demand ceedings. and receive for the use of the commonwealth in each case, the sum of fifty cents. Sect. 37. The fees to be received by the several Re- Fees of the gisters shall be as follows, viz: For the probate of a will <^g'^^"- and letters testamentary thereon, one dollar; for register- ing the same, for every ten words one cent; for letters o( administration seventy-five cents; for bonds taken of exe- Ix REGISTERS AND REGISTERS' COURTS. Proviso. How collect- ed. Register's Court how constituted. cutors or administrators one dollar and fifty cents; for filing and entering the renunciation of an executor or ad- ministrator, fifty cents; for annexing a will, for every ten words, one cent; for issuing a citation or attachment with seal, fifty cents; for entering a caveat, twenty-five cents; for issuing a commission to take the testimony of wit- nesses, seventy-five cents; for issuing a precept for an issue, thirty-seven and a half cents; for administering an oath or affirmation, six cents.; for filing a list of articles appraised, twenty-five cents; for filing a list of articles sold at vendue, twenty-five cents; for examining, passing and filing the account of an executor or administrator, two dollars and fifty cents ; for advertising executor's or administrator's accounts, two dollars; for advertising guardian's accounts, one dollar; for every copy if de- manded, of such accoui>t, not exceeding seventy-five items, with certificate and seal, one dollar, and for every additional item one cent; for entering exceptions to an executor's or administrator's bond, and hearing the same, fifty cents; for holding Register's Court, per day, two dol- lars; for every search where no other service is.performed for which fees are allowed, twelve and a half cents; for certificate and seal fifty cents; for the copy of any bond filed in his office, fifty cents; for commissions on taxes received by him for the use of the commonwealth, on proceedings in his office, three cents on every dollar: Provided, That in all cases where the value of the whole' estate of the decedent shall not exceed the sum of two hundred and fifty dollars, the Register shall receive in lieu of all fees for official acts hereinbefore specified, to be performed after the letters testamentary or of admin- istration have been granted, the sum of two dollars, and no more. Sect. 38, Whenever any proceedings before a Regis- ter or Register's Court shall be wholly ended, and the fees and costs accrued thereon shall remain during the space of thirty days thereafter due and unpaid, such Register may file a bill thereof, under his hand and the seal of his office, in the Court of Common Pleas of the county, and upon the docketing thereof, an execution may be issued, in the name of the commonwealth, to levy the amount of the said bill, in like nianner as executions may issue to levy costs accrued in the courts of common law, and subject in like manner to control and taxation by the said court. Sect. 39. The Register of Wills and the judges of the Court of Common Pleas of any county, or any two of the said judges, shall compose and hold, from time to time, as occasion may require, the. Register's Court of such REGISTERS AND REGISTERS' COURTS. Lxi county, and when convened according to law, shall have all and suigular the powers and jurisdictions belonging to Its jui-isdic- such courts, and may and shall do all such judicial acts in '^'°''- all matters lawfully brought before them, as belong and of right ought to belong to the office of said Register, and it shall be the duty of said Register to keep a record of ^'"^ records. the proceedings of such courts, in a book to be provided by him for the purpose, with a sufficient index thereto, which book shall remain in the Register's office. Sect. 40. The testimony of all witnesses examined in Testimony any cause litigated before any Register's Court, shall be therein to be taken in writing, and made a part of the proceedings ^i^^. therein, upon which testimony the court having jurisdic- tion of such cause by appeal may affirm, reverse, alter or modify the decree of the Register's Court. Sect. 41. Whenever a dispute upon a matter of fact t \ h arises before any Register's Court the said court shall, at issued for the the request of either party, direct a precept for an issue trial of facts to the Court of Common Pleas of the county for the trial '" ^i^P*^^^- thereof, in the form hereinbefore prescribed for the direc- tion of Registers, changing such parts thereof as should be changed, according to the circumstances of the case; and the facts established by the verdict returned shall not be re-examined on any appeal. Sect. 42. Any party aggrieved by the final sentence or decree of any Register's Court, or his legal representa- tives, in any case where the sum mentioned in such sen- tence or decree, or the sum or matter in controversy shall exceed one hundred and fifty dollars in value, may ap- Appeals from peal therefrom to the Supreme Court, but no appeal from ^^}^ Register's any decree of such court, concerning the validity of a Supreme will, or the right to administer, shall suspend the power Court. or prejudice the acts of any administrator, nor,^ of any executor who shall have given sufficient security to the Register for the faithful administration of his trust; and in case of the refusal of such executor to give such se- curity, the said Register shall grant letters of administra- tion during the dispute, which shall suspend the power of such executor during that time: Provided always, Proviso. That such appeal be made within the term of one year from the time of pronouncing such final sentence or decree. Sect. 43. No immaterial variation from the forms Slight dlscre- given and prescribed in and by this act shall vitiate or P^ncies not to render void any proceedings in which said forms shall Leding's?" be used. tj , * i o ^ ^ T-< 1 r 1 r 1 • n i>o"ds to be bECT. 44. trom and alter the passage ot this act all given and held bonds given or hereafter to be given, by executors, ad- "J}^'^'' the act ministrators and guardians, shall he held in trust for the igos. ^^'^ ' Ixii REGISTERS AND REGISTERS' COURTS, use of the commonwealth, and such person or persons as may be interested therein, and suits may be brought thereon from time to time, by all persons interested therein, in the same manner and with like effect as is now allowed in the case of sheriff's bonds, by the fourth section of the act, entitled "An act directing sheriffs and coroners to give sufficient sureties for the faithful execu- tion of their official duties, and for other purposes," pass- ed the twenty-eighth day of March, eighteen hundred and three. Time of ope- Sect. 45. This act shall take effect on the first Mon- ration jgy Qf August ncxt, and so much of any law as is hereby clause. altered or supplied, is hereby repealed from that period. JOHN LAPORTE, Speaker of the House of Representatives. WM.-G. HAWKINS, Speaker of the Senate. Approved — The fifteenth day of March, Anno Domini, eighteen hundred and thirty-two. GEO. WOLF. AN ACT RELATING TO ORPHANS' COURTS. Sect. 1. It is enacted hy the Senate and House of Representatives of the Commonwealth of Pennsylva- nia, in General Assembly met. That the judges of the court consti- Court of Common Pleas of each county, or any two of tuted. them, shall compose the Orphans' Court of such county: Provided, That in case of the absence of the president, if Proviso, any person interested in the business before the court ^^^^^^^^^1 shall request the same to be continued until the president shall attend, such business shall be continued accordingly. Sect. 2, The Orphans' Court is hereby declared to be Declared to a Court of Record, with all the qualities and incidents of ^^^^^Court of a Court of Record at common law; its proceedings and decrees, in all matters within its jurisdiction, shall not be Conclusive- reversed or avoided collaterally in any other court, but ^^^^o*" '*' '^^" they shall be liable to reversal, modification, or alteration, on appeal to the Supreme Court, as hereinafter directed. Sect. 3. The Orphans' Court of the city and county Periods of of Philadelphia, shall be held during every term of the Jj°J^^{^Sthe Court of Coinmon Pleas of the said city and county, at ''°"* such times and as often as the judges thereof shall think necessary or proper; and the Orphans' Court of every othter county of this commonwealth, shall beheld during the first week of each term of the Court of Common Pleas of the respective county, and at such other times as the judges thereof shall think necessary or proper. Sect. 4. The jurisdiction of the several Orphans' Courts jurisdiction of this commonwealth shall extend to and embrace the of court, appointment, control, removal and discharge of guardians, the settlement of their .accounts, the removal and dis- charge of executors and administrators deriving their authority from the Register of the respective county, the settlement of the accounts of such executors and adminis- trators, and the distribution of the assetts or surplusage of the estates of decedents, after such' settlements among creditors or others interested in the sale or partition ol Ixiv OKPHANS' COURTS. Care of mi- nors anil aj)- ])oiiitmc'nl of guardians. Executors or administra- tors ma.v not be a])pointed guardians, No foreig^n !»uardian to havcaulliority in this state. Guardians to •rive sccm-itv. Form of hoiid the real estate of decedents among the heirs, and generally to all cases within their respective counties, wherein exe- cutors, administrators, guardians or trustees are or may he possessed of, or undertake the care and management of, or are in any way accoiuitable for any real or personal estate of a decedent, and s\ich jurisdictions shall be exer- cised in the manner hereinafter provided. Sect. 5. The Orphans' Court of each county shall have the care of the persons of minors resident within such county, and of their estates, and shall have power to ad- mit such minors when and as often as there shall be oc- casion to make choice of guardians, and to appoint guar- dians for such as they shall judge too young or otherwise incompetent to make choice for themselves: Provided, That persons of the same religious persuasion as the parents of the minors shall, in all cases, be preferred by the court in their appointment, and such appointment or admission of a guardian by the Orphans' Court of the county in which the minor resides shall have the like effect in every other county of this commonwealth as in that by the Orphans' Court of which he shall have been so admitted or appointed. Sect. 6. No executor or administrator shall he admit- ted or appointed by the Orphans' Court guardian of a minor, having an interest in the estate under the care of such executor or administrator: Provided, That nothing herein contained shall be constfued to extend to the case of a testamentary guardian. Sect. 7. No appointment of a guardian, made or granted by any authority out of this state, shall authorize the person so appointed to interfere with the estate, or control the person of a minor in this state: Provided, That such foreign guardian may, at the discretion of the court, be appointed by the Orphans' Court having juris- diction, on giving security for the due performance of his trust. Sect. 8. The Orphans' Court, having jurisdiction, whenever they may deem it proper, may require a- bond with good and sufficient security, from every guardian of a minor, whether admitted or appointed by the court, or created by will, which bond shall be fded in the office of the cferk'of the court, and be considered in trust for all persons interested; the bonds shall be taken to the com- monwealth in such penalties as the court shall direct, and the condition shall be in the following form: " The con- dition of this obligation is such, that if the above bounden A. E., guardian of C. D., a minor child of E. F., late of deceased, shall, at least once in every three' years, and at any other time when required by the ORPHANS' COURTS. Ixv Orphans' Court for the county of render a just and true account of the management of the property and estate of the said minor, under his care, and shall also deliver up the said property, agreeahly to the order and decree of the said court, or the directions of law, and shall, in all respects, faithfully perform the duties of guar- dian of the said C. D., then the above obligation shall be void, otherwise it shall be and ^remain in full force and virtue:" Provided, That nothing in this act contained shall be construed to deprive a minor of any- action or remedy to which he may be entitled at the common law against his guardian, for any cause whatever. Sect. 9. Every such guardian shall,- within thirty days Guardians to after any property of his ward shall have come into his f^'e^.^n inven- hauds or possession, or into the hands and possession of '' any person for him, file in the office of the clerk of the court a just and true inventory and statement on oath or affirmation of all such property or estate. Sect. 10. Every such guardian, whether required by Guardians to the court to give security or not, shall, at least, once in ^^^^^3/''" every three years, and at any other time when so re- quired by the court, render an account of the manage- ment of the minor's property, under his care, which ac- counts shall be filed in the office of the clerk of the Orphans' Court for the information of the court and the inspection of all parties concerned; and every such guar- dian, unless previously discharged or removed, shall, on the arrival of his ward at full age, settle in the Register's office a full and complete account of his management of the minor's property under his care, including all the items embraced in each partial settlement, and the decree of the Orphans' Court upon such final accounts shall, like other decrees of the court, be conclusive, upon all par- ties, unless reversed, modified or altered, on appeal. Sect. 11. The Orphans' Court shall have power, upon Guardians the petition of any such guardian, to discharge him from "J^'^.J'g'jj'^'"' the duties of his appointment: Provided, That no guar- ^^^^-^^^ dian shall be discharged from his liability for the estate of his ward, until he shall have rendered to the court an Final setUe- account of the management of his trust, nor until the "^'^" ' same shall have been submitted to competent persons as auditors, for examination, and their report thereon be confirmed by the court, unless such account shall have been examined by the said court and the appointment of auditors be found necessary; nor until such guardian shall have surrendered the residue of the estate standing upon . his account, settled and confirmed as^aforesaid, to a sub- sequent guardian of such ward or to such other person as the court shall appoint to receive such estate. Jindpro- 1 Ixvi ORPHANS' COURTS. '2,1 proviso. vidcd further, That in every such case it shall be the rouit ti. :tii- duty of the court to appoint some suitable person to ap- trapV'tai'i'oi- p(^«i' 'A^^^ '^^t for tlie ward, in respect to the settlement of ward. such account. Power of Sect. 12, The Orphans' Court shall have power to re- court to move any guardian, whether testamentary or otherwise, remove guar- JO'. ^ r xi • > >. *. dians. on due proof of his mismanagement ot the minor s estate, or misconducting himself .in respect to the maintenance, education, or moral interests of the minor; in any such case the court shall have power to order the offending guardian to deliver up, assign, transfer and pay over to the successor in the guardianship, or to such persons as the court shall appoint, all and every the goods, chattels, rights, credits, title, deeds, evidences, and securities what- soever, belonging to the minor, and in the hands or un- der the power of the guardians, and to make such other order and decree, touching the premises, as the interest of the minor may require. The Orphans' Sect. 13. When any one shall die, leaving an infant Cnmt may child Or children, without having made an adequate pro- nant^c of'an vision for the support and education of such child or chil- iiiiant. dren, during their minority, the Orphans' Court may direct a suitable periodical allowance, out of the minor's estate, for the support and education of such minor, ac- cording to the circumstances of each case, which order may, from time to time, be varied by the court, accord- ing to the age of the minor and the circumstances of the case. The Orphans' Sect. 14. When an executor, administrator, guardian Court may di- or trustcc shall havc in his hands any moneys, the princi- vestmcnt'of P^'^ ^"^ Capital whcreof is to remain for a time in his pos- trust moneys, session, or Under his control, and the interest, profits or income thereof are to be paid away, or to accumulate, or when the income of a real estate shall be more than suf- ficient for the purposes of the trust, such executor, ad- ministrator, guardian, or trustee may present a petition to the Orphans' Court of the proper county, stating the circumstances of the case, and the amount or sum of money which he is desirous of investing; whereupon, it shall be lawful for the court, upon due proof, to make an order directing the investment of such moneys in the stocks or public debt of the United States, or in the public debt of this commonwealth, or in the public debt of the city of Philadelphia, or on real securities, at such prices or on such rates of interest and terms of payment respec- tively as the court shall think fit; and in case the said moneys shall be invested conformably to such directions, the said executor, administrator, guardian or trustee, shall be exempted from all liability for loss on the same in like ORPHANS' COURTS. IXVll manner as if such investments had been made in pursu- ance of directions in the will or other instrument creating the trust: Provided, That nothing herein contained shall Proviso, authorize the court to make an order contrary to the Not to act direction contained in any will or other instrument in ^°."|™'y *° regard to the investment of such moneys. Sect. 15. No account of an executor, administrator or Accounts of guardian shall be confirmed and allowed by the Orphans' norto'bL'con- Court, except in the cases herein specially provided for, firmed unless unless it shall appear on the presentation of such account "°have''beeu that notice of such presentation has been given, conform- given, &c. ably to the directions of the act, entitled, « An act relating to Registers and Registers' Courts." ,Sect. 16. All accounts presented to the Orphans' Court by executors, administrators, guardians or trustees, ex- cept partial accounts rendered by guardians in pursuance Accounts of of section the tenth of this act, shall, unless it be other- ^^ beTxamin- wise agreed by all parties interested, be examined by the edbythecourt court or referred to suitable persons, not exceeding three "JjJitors!'"^ ^° in number, to be appointed by the said court, or by the parties where they are all present or duly represented, and competent to agree; and the persons so appointed shall be sworn or affirmed to perform their duties with fidelity, and shall have power to administer oaths and affirmations to parties and witnesses, in all cases referred to them. Sect. 17. No executors or £^dministrator shall be lia- Execut,ors,&c. ble to pay interest but for the surplusage -of the estate re- pay "nt'erest. " maining in his hands or power when his accounts are or ought to be settled and adjusted in the Register's office: Provided, That nothing herein contained shall be con- Proviso, strued to exempt an executor or administrator from lia- bility to pay interest where he may have made use of the funds of the estate for his own purposes, previously to the time when his accounts are or ought to be settled as aforesaid. Sect. 18. The amount of interest to be paid in all Amount of cases by executors, administrators and guardians, shall be ;j^\";!;2ned'^ determined by the Orphans' Court, under all the circum- by the court, stances of the case, but shall not, in any instance exceed the legal rate of interest for the time being. Sect. 19. Whenever there shall not be sufficientassets Auditorstobe to pay all the debts of a decedent, it shall be the duty of "I'l'";"?;;;; ;;° the Orphans' Court having jurisdiction, upon the appUca- sets among tion of the executor or administrator, to appoint auditors ci-editoi-s. to settle and adjust the rates and proportions of the assets to and among the respective creditors, according to the order established by law: Provided nevertheless, 'Th^i Proviso. no creditor who shall neglect or refuse to exhibit his ac- I.WIII ORPHANS' COURTS. Further no- tice may be givfu of the settlement of accounts. Executor or administrator may be dis- charged. Dellnqueat executors, &c. may be re- quired to give security. count to the executor or administrator within twelve months after public notice e;iveu in one or more of the newspapers published in the county in which letters tes- tamentary or of administration may have been granted, or if there be none in such county, then in one or more newspapers published in an adjoining county, and con- tinued in such newspaper for four -consecutive weeks, shall be entitled to receive any dividend of such remain- ing assets. Sect. 20. When any of the heirs, legatees, distributees or creditors of a decedent reside out of this state, or out of the United Slates, or from other circumstances it may be expedient that additional or further notice should be given of the settlement of the account of an executor, ad- ministrator, guardian or trustee, or of the distribution of the assets or sm-plusage of the estate, it shall be in the discretion of the Orphans' Court to require such further or additional notice to be given by such accountant, as they may think proper, to appear in court, or before the auditors by them appointed, as the case may be, at such times as shall be lixed for the examination of such ac- count, or for the distribution of the assets or the sur- plusage of ^:he estate. Sect. 21.' An executor or administrator may, with the leave of the Orphans' Court having jurisdiction, make a settlement of his accounts, so far as he shall have ad- ministered the estate committed to him, and the same being confirmed by the court, he may be discharged from the duties of his appointment, and surrender the remain- der of the property in his hands, to sucli person as the court may direct. ' Sect. 22. Whenever it shall be made to appear to the Orphans' Court having jurisdiction of the accounts of any executor, administrator or guardian, or to any judge thereof, when such court shall not be in any session, on the oath or affirmation of any person interested, that such executor, administrator or guardian is wasting or mis- managing the estate or property under his charge, or is like to prove insolvent, or has neglected or refused to exhibit true and perfect inventories, or render full and just accounts of such estate or property, come to his hands or knowledge, then and in every such case it shall be lawful for such court, or for such judge thereof, to is- sue a citation to such executor, administrator or guardian, requiring him to appear, on a day certain, before an Or- phans' Court to be convened for such purpose, if the said court shall not then be in session, and the case shall re- quire despatch, and upon the return of such citation, the said court may require such security of such executor, or ORPHANS' COURTS. Ixix such other and further security of such administrator or guardian as they may think reasonable, conditioned for the performance of their respective trusts, which security shall be taken in the name of the commonwealth of Penn- sylvania and filed in the said Orphans' Court, and shall be deemed and considered in trust for the benefit of all persons interested in such estate: Provided, That if, in Proviso. the cases above mentioned, it shall be made to appear to the said court or any judge thereof, on oath or affirma- tion as aforesaid, that such executor, administrator or guardian is about to remove from this commonwealth, or that the property under his charge may be wasted or materially injured before he can be reached by the ordi- nary process of the court, it shall be lawful for such court, or such judge thereof, to issue a writ of attach- ment, under which the same proceedings may take place as in other casea of attachment on mesne process in the Orphans' Court; and on the return of such attachment, the court may proceed as on the return to the citation above mentioned. Sect. 23. If such executor, administrator or guardian. On failure to shall neglect or refuse to give such security or such fur- S'^*^ secuntv, O Til -1 111 excculors, tec, ther security so ordered, then the said court shall vacate niay be re- such letters testamentary or of administration, or remove moved, such guardian, and award new letters, to be granted in such form as the case may require, by the Register hav- ing jurisdiction, upon ■ such security as the court shall think proper; and in the case of a guardian, the court shall proceed to the admission or the appointment of a new guardian, according to the circumstances of the case; and the said court shall moreover order the first execu- tor, administrator or guardian to deliver over and pay to his successor all and every the goods, chattels and estates in his hands, of the decedent or minor, as the case may be. Sect. 24. If such superseded executor, administrator ^iow the or- or guardian, shall neglect or refuse to comply with the derofthe order of the court in the premises, the court may proceed ^"Xroed^ ''° against him by attachment, with or without sequestra- .igainst a s\i- tion, or may issue process for the delivery, of the trust, persededexe property and effects, as is hereinafter pro^'ided, or the successor may proceed at law against him and his sure- ties, if any there be, or against any other person who may be possessed of any, goods or chattels belonging to the estate of the decedent or minor, as the case may be, or be indebted to him, or the remedies by execution and suit at law may be pursued at the same time, if the case so re- quire, until the end be fully attained. Sect. 25. Whenever it shall be made to appear to the Proceedings satisfaction of the Orphans' .Court, having jurisdiction as '*'''^'"'-' *" Ixx ORPHANS' counrs. excciilrix marries w itii out si'curitig till' minors' jiortion, Ike. Proceedings ■where an exe- cutor is a lu- natic or liabit- ual drunkard. Proceedinsjs ■where an exe- cutor, &c. lias removed IVom the state, &c. aforesaid, br of any judge thereof, when such court shall not be in session, that an executrix, having minors of her own, or being concerned for others, is married, or like to be espoused to another husband without securing the minors' portions, or real estates, it shall be lawful for such court, or for such judge thereof, to issue a citation to such executrix, or if she shall have been married to an- other husband, then to her and sfich husband, requiring her or them, as the case may be, to appear on a day cer- tain, before an Orjihans' Court, to be convened for such purpose, if the said court shall not th(?n be in session, as is herein before provided for in the case of delinquent executors, administrators, or guardians, and on the return of such citation, the said court may require such security to be given by such executrix, or by her huslwnd, if she shall have been married again, as the circumstances of the case may require; and if such execn,trix, or her hus- band, as aforesaid, shall fail or refuse to give such se- curity, it shall be lawful for the said court to vacate the letters testamentary, and to award new letters, to be granted by the Register having jurisdiction, on such se- curity as they may think proper. Sect, 26. When any executor, administrator or guar- dian shall have been duly declared a lunatic, or an ha- bitual drunkard, it shall be lawful for the Orphans' Court having jurisdiction over the accounts of such executor, administrator, or guardian, to vacate the letters testamen- tary or of administration granted to such executor or ad- ministrator, and to remove such guardian, and to award new letters, to be granted in such form as the case may require, by the Register, having jurisdiction upon such security as the court shall tliink proper; and in the case of a guardian, the court shall proceed to the admission or appointment of a new guardian accordingly; and the court shall also make such order, for the security of the trust property, and for its delivery to the successor of such executor, administrator or guardian, as the circum- stances of the case may require. Sect. 27. When any executor, administrator, or guar- dian shall have removed from this state, or shall have ceased to have any known place of residence therein, during the period of one year or more, the Orphans' Court, having jurisdiction of the account of such execu- tor, administrator or guardian, may, on the application af any person interested, and after a citation shall have been returned, served, or published, as is hereinafter provided, make a decree vacating such letters testamentary or of administration, and remove such guardian, and award new letters, to be granted in such form as the case may ORPHANS' COURTS. Ixxi require, by the Register, having jurisdiction, upon such security, as the court shall think proper; and in the case of a guardian, the court shall proceed to the admission or appointment of another guardian accordingly: Provided, Proviso. That no decree, as aforesaid, shall suspend the power, or prejudice the acts of any person who may be joined with such executor, administrator or guardian in the trust. Sect. 28. Application may be made to the Orphans' Relief may be Court, or any judge thereof, in the cases mentioned, in given in the the twenty-third section of this act, by any surety in the case of a sure- bond of such executor, administrator or guardian, and upon such surety making oath or affirmation, as required in that section, the like proceedings may be had for the purpose of compelling such executor, administrator or guardian to give securfty, and thereupon the court may order such executor, administrator or guardian to give such counteir securities as they shall judge necessary to indemnify him against loss by reason of his suretyship; and if such executor, administrator, or guardian shall re- fuse or fail to give such security, within such reasonable" time as the court shall order, it shall be lawful for the court to direct such executor, administrator or guardian, to pay, or deliver over forthwith to such surety, or to some other person for him, all goods, chattels, effects and securities whatsoever, for which such surety may be ac- countable: Provided, That such surety shall first give, to proviso, the satisfaction of the court, sufficient security, faithfully to preserve and account therefor, and deliver and dispose of the same according to the order of the said court. Sect. 29. It shall be the duty of the prothonotary of Balances due the Courts of Common Pleas of the respective counties, H executors, to file and docket, whenever the same shall be furnished to the'com-'^ by any parties interested, certified transcripts or extracts, mow Pleas to of the amount appearing to be due from or in the hands J^"."^*""^*^ * of any executor, administrator, guardian, or other ac- countant, on the settlement of their respective accounts in the Orphans' Court, which transcripts or extracts, so filed, shall constitute liens on the real estate of such exe- cutor, administrator, guardian, or other accountant, from the time of such entry until payment, distribution, or satisfaction; and actions of debt or scire facias may be instituted thereon, by any person or persons interested, for the recovery of so much as may be due to them re- spectively: Provided, however. That the liens thereby Proviso, created shall cease at the expiration of five years from the time of the entry aforesaid, unless revived by scire facias in the jnanner by law directed, in the cases of judgments in the courts of comiAon law: ^nd provided further, 9,A[no\\so. That in case of an appeal from the Orphans' Court, the 1 \- \ j i OR PI I ANS- COURTS. liens shall be for no niore than for the' amount finally found clue and decreed in the Supreme Court, and it shall be the duty of the prothonotary of the Common Pleas, on such decree of the Supreme Court being certified to him, to enter on his docket the amount so found due and de- creed by the Supreme Court, and if such amount be greater than that decreed by the Orphans' Court, the lien for such excess shall take effect only from the time of entering the decree of the Supreme Court; but if the amount be reduced by the final decree of the Supreme Court, the prothonotary shall reduce the amount origi- nally entered on his judgment docket and index accord- ingly, and such final decree, upon appeal being certified and filed in the said Court of Common Pleas, the said term of five years sliall be counted from the time of such entry. Satisfaction to Sect. 30. When the executor, administrator, guardian, fed-tHror o^' o*^^^^^ accountant shall have fully paid and discharged sucFilieii. ■ the amount of such lien, the parties who have received ■payment shall acknowledge satisfaction thereof, to the extent of what they have received, on the record of the Court of Common Pleas; and in case of neglect or refusal so to do, for the space of thirty days after request in wri- ting and tender of all the cost, such party shall forfeit and pay to the party aggrieved the sum of fifty dollars, abso- . lutely, and any further sum not exceeding the amount by such person received, as shall be assessed by a jury on a trial at law; or the Orphans' Court, on due proof to them made, that the entire amount due from such executor, administrator, guardian, or other accountant, according to the final settlement of the said account, has been fully paid and discharged, may make an order for their relief from such recorded lien, which order, being certified to the Court of Common Pleas, shall be entered on their re- cords, and shall enure and be received as a full satisfac- tion and discharge of such lien. Power of tl.e Sect; 31. The Orphans' Court which possesses' juris- Orplians' tion of the accounts of an executor, administrator, or t^orizea^'saie guardian, shall have power to authorize a sale or mort- 01- mortgage gage of real estate by such executor, administrator or of real estate. gugrJian, in the following cases, viz: 1st case. I- On the application of the executor or administrator, setting forth that the personal estate of the decedent is insuflicient for the payment of debts and maintenance and education of his minor children, or for the purpose of paying the debts alone. 2j case. il- 0^ the application of such executor or administra- tor, or of any person interested, setting forth, that on the final settlement of the administration account, it appears ORPHANS' COURTS. kxiii that there are not sufficient personal assets to pay the balance appearing to be due from the estate of such dece- dent, either to the accountant or others. III. On the application of a guardian, setting forth that 3d case, the personal estate of the minor is insufficient for his maintenance and education, or for the improvement and repair of other parts of his real estate, or that the estate of said minor is in such a state of dilapidation and decay, or so unproductive and expensive, that it would be to the interest and benefit of said minor, in the judgment of said court, that the said estate should be sold, and the Or- phans' Court of the county wherein any such real estate may be situate, shall have the same authority to direct a sale in this latter case, as in the cases particularly men- tioned in the thirty-second section of this act. Sect. 32. When the real estate, with respect to which Manner of application shall be made to the Orphans' Court, in the ^JpUeS "^ cases mentioned in the preceding section, is situated in for sale of the same county, the said court may order the sale or i^"'^- mortgage of such part, or so much of such real estate as to them shall appear necessary, .when the real estate is situated in another county or counties, or in the same and another county or counties, and the Orphans' Court which possesses jurisdiction over the accounts of such executor, administrator or guardian, shall be satisfied of the propriety of a sale or mortgage of some portion of such real estate not within their- jurisdiction, it shall be lawful for such court to make a decree, authorizing such executor, administrator or guardian, to raise so much money as the said court may think necessary, from real estate situated in such county or counties as they may designate; and thereupon, it shall be the duty of the Or- phans' Court of the county wherein the real estate so designated is situated, upon the petition of such executor, administrator or guardian, to make an order for the sale or mortgage, as they shall think expedient, of so much, and such parts of such real estate, as shall, in their opi- nion, be necessary to raise the specified sum; and such executor, administrator or guardian, shall in all cases make return of his proceedings in relation to such sale or mortgage, to the Orphans' Court of the county in which the real estate so sold or mortgaged lies, when, if the same be approved by the court, it shall be confirmed. Sect. 33. That no authority for the sale or mortgage inventory to of real estate, lying in the same or another county or be filed before counties, shall be granted, until the executor, administra- can be grant- tor or guardian, as the case may be, shall have exhibited ed. to the said court, a true and perfect inventory and con- scionable appraisement of all the personal estate whatso- K Ixxiv ORPHANS' COURTS. Proviso. The Orphans' Court may ap- point auditors on a])plication for sale of land. Widow's election of dower or otherwise. Partition, power of the court to au- thorize. ever of the decedent or mihor, as the case may be, to- gether with a full and correct statement of all the real estate of such decedent or minor, wherever situated, which has come to his knowledge; and also, in the case of an executor or administrator, a just and true account upon oath or affn'mation, of all the debts of the decedent which have come to his knowledge; nor in any case shall such authority be granted, until such executor, adminis- trator or guardian, shall have filed in the office of the clerk of the said court, a bond, with sufficient security, to be approved of by the court, conditioned for the faith- ful appropriation of the proceeds of such sale or mort- gage, according to their respective duties: And provided further, That no real estate contained in any marriage settlement, shall, by virtue of this act, be sold or disposed of contrary to the form and effect of such settlement, and tliat the mansion-house or most profitable part of the estate, shall be reserved to the last. Sect. 34. In all cases where an application shall be made to any Orphans' Court, for a decree authorizing the sale or mortgage ofxeal estate, under any of the pro- visions contained in this act, the court may appoint suita- ble persons to investigate the facts of the case, and to re- port upon the expediency of granting the application, and the amount to be raised by such sale or mortgage; and upon such report being made, the court may decree ac- cordingly. Sect. 35. In every case of a devise or bequest to a widow, which by force of any last will and testament, or by operation of law, will bar such widow of dower, sub- ject to her right of election of dower, or of the property devised or bequeathed, it shall be lawful for. the Orphans' Court, on the application of any person interested in the estate of the decedent, to issue a citation at any time after twelve months from the death of the testator, to any such widow, to appear at a certain time not less than one month thereafter, in the said court, to make her election, either to accept such devise or bequest in lieu of dower, or to waive such devise or bequest and take her dower, of which election a record shall be made, which shall be conclusive on all parties: if the widow shall neglect or refuse to appear upon such citation, then upon due proof to the court of the service thereof, the said neglect or re- fusal shall be deemed an acceptance of the devise or be- quest, and a bar of dower, of which a record shall be made, which shall be conclusive on all parties concerned. Sect. 36. The Orphans' Court of the county where the real estate of a decedent is situate, shall have power, on the application of the widow or any lineal descendant ORPHANS' COURTS. Ixxv of the decedent having an interest in such real estate, if of full age, or if under age on the application of his guar- dian, to appoint seven or more disinterested persons, chosen on behalf and with consent of the parties, or when the parties cannot so agree to award an inquest, to make partition of the real estate of such decedent; and upon the return made by the persons so appointed, or of the in- quisition taken, to give judgment that the partition there- by made be firm and stable forever, and that the costs thereof be paid by the parties concerned. Sect. 37. When any such estate cannot- be divided Partition pro- among the lineal descendants as aforesaid, or the widow Xre'^the es- and such lineal descendants, without prejudice to or spoil- tate cannot be ing the whole, the said seven or more persons, or the fHvided. said inquest, as. the case may be, shall make and return a just appraisement thereof to the Orphans' Court, and thereupon, but not otherwise, the said court may order the same. I. To the eldest son, if he be living; but if he be dead, to his children, if any, in the order of their birth, and preferring males to females; and in like manner to his other lineal descendants in the same order. II. If the eldest son, or his lineal descendants, do not accept the same, then to the second and other sons, or their lineal descendants successively, in the order of birth, in like manner as is provided for the eldest son and his descendants. III. If the second or other sons, or their descendants, do not accept the same as aforesaid, then to the eldest daughter or her lineal descendants; in like manner as is provided in the case of the eldest son. IV. If the eldest daughter, or her lineal descendants, do not accept the same, then to the second and other daughters, or their lineal descendants successively, in like manner as is provided for the second and other sons. In every such case, the party accepting the same, or some one on his behalf paying to the other parties in- . terested their proportionable parts of the value of such estate, according to the just appraisement thereof, made in manner aforesaid, or giving good security by recog- nizance or otherwise, to the satisfaction of the court, for tlie payment thereof, with legal interest in some reasona- ble time, not exceeding twelve months, as the court may direct; and the persons to whom or for whose use pay- ment or satisfaction shall be so made, in any of the cases aforesaid, for their respective parts or shares of such real estate, shall be for ever barred of all right or title to the same. IxXVi ORPHANS' COURTS. Partition pro- Sect. 38, When equal partition in value cannot be c.-cilii)(,'3 to made by the seven men appointed as aforesaid, or by the of "imrii'ti'on!*'^ Said inquest, they shall make a just appraisement of the respective purparts or shares in which they may divide the estate, and thereupon the court may order the said purparts or shares successively to the persons entitled to make choice therefrom, in the order and according to the rules enacted in the preceding section, \Yhcre the estate cannot conveniently he divided; and they shall award that one or more purparts or shares shall be subject to the payment of such sum or sums of money as shall be necessary to equalize the value of the said purparts, ac- cording to the said appraisement thereof; which sum or sums of money shall be paid, or secured to be paid, by the several persons accepting such purparts, in the man- ner prescribed in the foregoing section. „ .... Sect. 39. When such estate cannot conveniently be 1 artition pro- • • i j ceedings divided luto as many shares as there are parties entitled, where the cs- ^Y\e scvcn men appointed as aforesaid, or the said inquest, tate cannot be ,111 • . • x r ii t- i« divided into shall make a just appraisement ot the respective purparts as many parts or shares, into wliich they may divide the estate, and as heirs. thereupon the court may order the shares successively to the parties entitled, to make choice therefrom, in the order and according to the rules hereinbefore provided for the case where the estate cannot conveniently be divided, they or some one in their behalf, paying or se- curing to be paid to the other parties interested, their respective parts of the value thereof, in the manner pre- scribed as aforesaid. Partition, the Sect. 40. In all cascs of appraisement or partition court to grant mentioned in the preceding section, the Orphans' Court heirs to accept shall, on application, grant a rule on all persons interested, or refuse their to come into court at a certain day by them to be fixed, shares. ^.^ J^(,(.gp^ qj. refuse the estate'or a share or portion thereof, as the case may be, and in case the party entitled to a choice, do not come into court in person or by guardian or attorney duly constituted, or in case he shall refuse the same, a record shall be made thereof and the court may and shall direct the same to be offered to the next in succession, according to the rules hereinbefore provided. p .. Sect. 41. Should the widow of the decedent be living widow's share st the time of the partition, she shall not be entitled to to remain a payment of the sum at which her purpart or share of the ^^^' estate shall be valued, but the same, together with interest thereof, shall be and remain charged upon the premises, if the whole be taken by one child or other descendant of the deceased, or upon the respective shares if divided as hereinbefore mentioned, and the legal interest thereof shall be annually and regularly paid by the persons to ORPHANS' COURTS. Ixxvii whom such real estate shall he adjudged, their heirs or assigns holding the same according to their respective portions to the said widow during her natural life, in lieu and full satisfaction of her dower at common law, and the same may be recovered by the widow by distress, or otherwise, as rents in this commonwealth are recoverable; on the death of the widow the said principal sum shall be paid by the children, or other lineal descendants to whom the said real estate shall have been adjudged, their heirs or assigns holding the premises to the persons there- unto legally entitled. Sect, 42. Upon an appraisement or valuation of real Partition, the estate made as is hereinbefore provided, should all the *^^| j^"*?/ ?'' heirs neglect after due notice, or refuse to take the same iieirs refuse or at the valuation, the court shall on the application of any neglect to one of the heirs, grant a rule upon the other heirs and ^^ ^' others interested to show cause why the estate so ap- praised should not be sold, which rule shall be returnable at the next regular session of the court, or at such subse- quent period as the court having respect to the circum- stances of the case may direct, and notice of such rule shall be given in the manner provided in this act for other notices to heirs; on the return of such rule, the court may on due proof of notice to all persons interested, make a decree authorizing and requiring the executor or administrator, as the case may be, to expose such real estate to public sale at such time and place and on such terms as -the court may decree: Provided, That the rule Proviso, to show cause herein directed may be dispensed with by the court on the application of all the heirs, if of full age, and of the guardians of such as are minors for such de- cree, and notice of such sale shall be given by the execu- tor or administrator, in the manner provided in this act for other notices of sale. Sect. 43. Where a decree for the sale of real estate Partition, the shall be made by the Orphans' Court, in the event pro- widow's share vided for in the preceding section, the court shall direct chase money that the share of the widow, if there be one, of the pur- to remain a chase money, shall remain in the hands of the purchaser *^ ^^^^^' ' during the natural life of the widow, and the interest thereof shall be annually and regularly paid to her by the purchaser, his heirs and assigns, holding the premises, to be recovered by distress or otherwise as rents are re- coverable in this commonwealth, which the said widow shall accept, in full satisfaction of her dower in such pre- mises, and at her decease, her share of the purchase mo- ney shall be paid to the persons legally entitled thereto. Sect. 44. When the lands, in respect to which ap- partition, plication for partition shall be made to the Orphans' i«n«is lying in IXXVlll ORPHANS' COURTS. (lifVii-ont count ii-s. Partition,, lieirs not en- titled to elec- tion in more than one county. Partition, col- lateral heirs entitled to partition. Court as aforesaid lie in one or more adjoining tracts, in difl'crcnt counties, it sliall be lawful for the Orphans' Court of the county in which the principal mansion is situate, or if there be no mansion or building on the lands, then the court of the county in which the greatest part of the land lies, on the application of any person in- terested, either to proceed by the appointment of seven or more men agreed on by the parties, or to issue tlicir writ to the sheriff of the county within the jurisdiction of the court, specifying the lands of which a partition or valuation is to be made, and thereupon the said sheriff shall summon an inquest to divide or value the said lands in the same manner as if tlie wliole were witliin his pro- per bailiwick; and upon tlie return thereof, or upon the retin-n of the seven or more men appointed by consent, as aforesaid, the court may further proceed therein, in all respects, as if all the said lands were in the proper county, and any recognizance taken in pursuance of such proceedings, shall be as effectual, to all intents and pur- poses, as if the lands bound by it were wholly within the county where such recognizance is taken: Provided, That an exemplification of the proceedings which may be had shall, within twenty days after the final decree therein, be delivered to the clerk of the Orphans' Court of each county in which the application shall not have been made, and in which any part of the said lands are situate, which shall be entered on the records of such court at the joint expense of all parties concerned. Sect. 45. In any case where one of the heirs of a de- cedent has elected to take the real estate of such dece- dent in one county, or any share thereof, if divided into shares, such heir shall not have the right of preference or election to take the real estate or any share thereof in any other county, or any other share in the same county, until all the other heirs shall have neglected, after due notice, or refused to take the same at such valuation. Sect. 46. When the decedent leaves no lineal de- scendants, the like proceedings shall be had in all re- spects on the application of the persons in whom the estate shall vest in possession: Provided, That if there be a life estate or life estates witli remainders over, such remainder-men shall be made parties to the proceedings in partition, and shall have the right to accept or refuse the premises, at any valuation that may be made by seven men, appointed as aforesaid, or by an inquest in the same manner as the lineal descendants of a decedent, such re- mainder-men being bound by recognizance or other suf- ficient security, according to the direction of the court, for the payment of the annual interest to the tenant or ORPHANS' COURTS. Ixxix tenants for life, and tliereupon the court shall give judg- ment, that the partition so made between them be and remain fa-m and stable for ever, and that the costs thereof be paid by the parties concerned. Sect. 47. In all cases where a sale shall be made by Executors,&c. an executor, administrator or guardian, under an order of jeg^^i^^o/ the Orphans' Court, and such executor, administrator or property sold guardian, shall be removed by the court, or shall die, or J^'^P'"'''^'''''''' become insane, or otherwise incapable, before a convey- ance is made to the purchaser, it shall be lawful for the succeeding administrator of the decedent, or for the suc- cessor in the guardianship, as the case may be, such suc- ceeding administrator or guardian having given security, to be approved of by the said court, for the faithful ap- propriation of the proceeds of such sale, to execute and deliver to the purchaser a deed of conveyance for the es-' fate so sold, on the purchaser's full compliance with the terms and conditions of sale; but if, within three months after such sale, there shall be no such succeeding admin- istrator or guardian having given security as aforesaid, it shall be the duty of the Orphans' Court, on petition of Or clerk of the purchaser, to direct the clerk of the court to execute ^^"^^™{|;^' and deliver to the purchaser the necessary deed of con- cemin cases, veyance, on his full compliance with the terms and con- ditions of sale, paying into court the moneys payable, and delivering to the clerk the securities required by the said terms and conditions, which moneys and securities shall remain subject to the disposition of the court; every deed made in pursuance of, and agreeably to the pro- visions of this act, shall vest the property therein de- scribed in the grantee, as fully and effectually as if the same had been made by the persons who may have sold any such estate, circumstanced as aforesaid; the like pro- ceedings may be had where an executor, administrator or guardian, shall neglect or refuse to execute and deliver such deed for the space of thirty days, after due notice of an order of the court, requiring him to execute the same. Sect. 4S. When, upon any proceedings in the Or- interest of a phans' Court, a sum of money shall be awarded by the married wo- court for the share or portion to which a married woman "ec",.e\*J7 may be entitled, such money shall not be paid to her husband until he shall' have given security, to the satis- faction of the court, that the amount thereof, or so much thereof as the court shall deem proper, be paid after his death, to his wife, or, if she shall not survive him, to her heirs, as if the same were real estate; or, if the husband shall be unable, or refuse to give security as aforesaid, the same may be vested in trustees, to be approved by the court, for the same purposes, but reserving to the Lvxx OIirUANS' COURTS. Proviso. Form of de- claration. husband the interest thereof during liis life, unless the husband shall desire the same to be settled for the sepa- rate use of the wife: Provided always, That if the wife, being of full age, on a separate examination, the husband not being present, shall declare before one of the judges of the same court, or, if not resident in the county, before a judge of a Court of Record in the county or place where she may reside, that she does not require such moneys to be so secured, and that she makes this declaration freely and voluntarily, without any threats or compulsion on the part of her husband, the full contents and legal effects of such declaration being first made known to her by the judge, and the said declaration and acknowledgment be certified by the same judge, and filed of record in the said Orphans' Court, then and in such case, the husband shall not be required to secure the said moneys in man- ner aforesaid: The form of such declaration shall be as follows: Whereas, I, A. B., the wife of C. B., am en- titled to the sum of proceeding from the sale (or partition) of the real estate of D. E., in the county of . Now, I do certify and declare, that I consent and agree that the same be paid to my husband, the said C. B., without any condition or security what- ever. Witness my hand, this day of &c. The form of the certificate to be given by the judges, shall be as follows: On the day of A. D. personally appeared before me, one of the judges of the (Orphans' Court) for the county of A. B., the wife of C. B,, of [Aere insert his residence and occiijjatioji] who, being of full age, and by me examined, separate and apart from her said hus- band, and the contents and legal effect of the foregoing instrument by me fully explained and made known to her, declared that she executed the same freely and voluntarily, without any threats or compulsion on the part of her husband or any other person. Witness my hand and seal, the day and year above written. Sect. 49. In all cases where, in consequence of pro- ceedings in partition, the share or any part thereof of an the purpa'rts'" ^^^^ ^^ ^^^^ estate, shall be converted into money, either of heirs. by reason of the impracticability or inequality of parti- tion, or by virtue of a sale or otherwise, the Orphans' Court, before making a final decree confirming the par- tition or sale as aforesaid, may appoint a suitable person as auditor, to ascertain whether there are any liens or other incumbrances on such real estate, affecting the in- terests of the parties; and if it shall appear by the report of such auditor or otherwise, that there are such liens, the said court may order the amount of money which may be Proceedings where there ORPHANS' COURTS. kxxi payable to any of the parties against whom liens exist, to be paid into the court, and shall have the like power as to the distribution thereof among lien creditors or others, as is now exercised by the courts of common law where money is paid into court by sheriflfs or coroners; and where recognizances or other security shall be given for the payment of money, the court may make an order on the party giving such recognizances or other security, to pay the amount thereof into court, when the same shall become due, to be distributed in like manner among the persons holding liens at the time of the partition. Sect. 50. Where a recognizance hath heretofore been, Satisfaction to or shall hereafter be taken in any Orphans' Court, on the fj^^^^^Xna acceptance of the real estate of a decedent at the valua- recognizance tion or appraisement thereof, as herein before provided is discharged, for, and the same, or any part thereof, shall be satisfied or paid to the person or persons interested therein, his, her or their agent or attorneys,' any such persons so hav- ing received satisfaction of the amount coming to him, shall enter an acknowledgment thereof upon the record of such court, which shall be satisfaction and discharge of the said recognizance, to the amount acknowledged to be paid; and the recognizance shall cease to be a lien on the real estate of the conusor to a greater amount than the principal and interest actually remaining due. Sect. 51. If any person who shall have received satis- Penalty for faction as aforesaid, for his claim or lien, secured by such ""is^facUon! recognizance, shall neglect or refuse to enter upon the record his acknowledgment thereof, upon the written re- quest of the owner of the premises, bound by such recog- nizance or of any part thereof, or of his legal representa- tives or otlier person interested therein, on tender of all the costs for entering such acknowledgment within sixty days after such request and tender as aforesaid, such per- son, for every such default, shall forfeit and pay to the party aggrieved the sum of fifty dollars, absolutely, and any further sum not exceeding the amount by such per- son received, as shall be assessed by a jury on a trial at law; or the Orphans' Court, on due proof to them made that the entire amount due to any heir, legatee, or dis,- tributee, shall have been fully paid and discharged, may make an order for the relief of such person from any re- cognizance or other recorded lien; which order, being certified to the proper court where such lien may appear, shall be entered on their records, and shall enure and be receiyed as a full satisfaction and discharge of the game. Sect. 52. In all cases in which heirs, legatees, or dis- Notices to ti-ibutees are interested, and in consequence of such in- 1*^^^"^;^,^,^;. terest notice shall be required to be given to them, or ipiijuices, L IxXXii ORPHANS' COURTS. any of them, of any proceedings in the Orphans' Court, such notice shall in all cases be given in the manner fol- lowing, except in the case of the accounts of executors or administrators, and other cases specially provided for, viz: To all persons resident within the county in which the court has jurisdiction, notice shall be given person- ally, or by writing left at their place of abode; to all per- sons resident without the county, personal notice as afore- said shall be given, if in the opinion of the court such notice be reasonably practicable; if otherwise, by publica- tion in such one or more newspapers as, in the opinion of the court, will be most likely to meet the eye of those entitled to notice. Notices inthe Sect. 53. In all cases in which proceedings maybe case of mi- \^^^ [^ i\^q Orphans' Court, affecting the interest of any minor, notice of such proceedings shall be given to the guardian of such minor, if such guardian be resident within the county, or within forty miles of the seat of justice of the county, in the same manner as is herein provided for ii* the case of resident persons of full age; but if such minor have no guardian, it shall be the duty of the party making application to the Orphans' Court, to cause notice of such application to be given to the minor, if above the age of fourteen years, or if under that Proviso. age, to the next of kin Of full age: Provided such minor, or next of kin, be resident within the county, or within forty miles of the seat of justice thereof; and if, at the next session of the Orphans' Court, application shall not have been made on the part of such minor, praying for the appointment of a guardian, it shall be the duty of the court to appoint a suitable person as guardian, on whom notice shall be served in all cases in which notice shall be requisite. . ; Notice of the Sect. 54. Whenever, by the provisions of this act, it sale of real shall be lawfijl fof the Orphans' Court to order the sale estate. Qf j.gjjj estate, public notice of such sale shall be given by the executor, administrator or guardian, as the case may be, at least twenty days before the day appointed there- for, by advertisement in at least one newspaper published in the county, if there be one, or if there be none, then in an adjoining county; and in all cases, notice shall also be given by handbills, affixed in at least three of the mpst public places in the vicinity of such estate. Power to send Sect. 55. The Orphans' Court shall have power to an issue to ti»e send an issue to the Court of Common Pleas of the samel Pleas. county, for the trial of facts by a jury, whenever. they shall deem it expedient so to do. Powtt-toex- Sect. 56. The Orphans' Court' or any auditors ap- amine ac- pointed by them, shall have power to examine on oath or ORPHANS' COURTS. IxXXlii affirmation, any of the parties to any proceedings insti- countants, &c. tuted in sucli court, respecting any matter in dispute in ^"^ °^^'^' 'J"'* such proceedings, and the said court shall have power to production of compel the production of any books, papers, or other books and documents, necessary to a just decision of the question l**?*^^*- before them, or before auditors. Sect. 57. The mannfer'of proceeding in the Orphans' Process of the Court, to obtain the appearance of a person amenable to Oi"pha»s' its jurisdiction, and to compel obedience to its orders and decrees, shall be as follows: §1. On the petition to the court, of any person inter- ested, whether such interest be immediate or remote, set-, ting forth facts necessary to give the court jurisdiction, the specific cause of complaint, and the relief desired and supported by oath or affirmation, the Orphans' Court, or any judge thereof in vacation, may award a citation re- turnable at a day certain, not less than ten days after the issuing thereof. §11. Such citation may lie served by the party obtain- ing the same, or by any authorized agent, or if required by the party, it shall be served by the sheriff or coroner, as the case may require, of the proper county. §111. The manner of service shall be by giving a copy thereof to the defendant personally, or'by leaving such copy with some member of his family, at his last place of abode. §IV. If the defendant be not found, and have no known dwelling-place within the county, such citation may be served in like manner upon the person or per- sons, who may be the surety or sureties of such party, in any bond or recognizance given by him for the perform- ance of any trust or duty in respect to which such cita- tion may have issued. §V. The return to a citation, if made by the. party on whose petition it issued, or his agent as aforesaid, shall be on oath or affirmation, and in all cases of service, the re- turn shall state how such citation was served. § VI. If the party to be cited cannot be found, and have no known dwelling-place within this commonwealth, and there is no surety on whom service of the citation can be made as aforesaid, and the facts shall be so stated in the return on oath or affirmation by the party complaining, or by some one competent to make affidavit in that be- • half, the Orphans' Court may award another citation, re- turnable in like manner with the first. §VI1. At the time of awarding such second citation, the court may make an order for publication of the same in two or more newspapers, to be designated by the court in such place or places and for such length of time as the IxXXiv ORPHANS' COURTS. court, having regard to the supposed place of residence of the defendant, and other circumstances, shall direct. §VIII. At the time apj)ointed for the appearance of the defendant, should he not appear, according to the requisition of the citation, and if due proof be made of the service thereof, or when service cannot be made, of the publication thereof, as hereinbefore prescribed, the court* may, with or without another citation, as justice may require, proceed to make such order or decree in * respect to the subject matter as may be just and necessary. §1X. It shall be lawful for the court, on such proof, to £)rder that the petition of the complainant be taken a& confessed, and to direct a reference to an auditor or audi- tors to take pVoof of the facts and circumstances set forth in the petition, and to report thereon, and also to report an account against such defendant if necessary. §X. On the report of the auditor or auditors, the court shall make such order or decree thereon as may be just and necessary. §XI. Compliance with an order or decree of the court may be enforced by attachment or sequestration, ol:* in case of a decree for the payment of money, against a party who has appeared, the complainant may have a writ of execution in fhe nature of a writ of fieri facias, which writs may be allowed by the court or by any judge thereof, in vacation. §XII. Writs of attachment and sequestration shall be directed to and executed by the sheriff or coroner, as the case may require, of the proper county. §XIII. Writs of sequestration shall be in the follow- ing form: The Commonwealth of Pennsylvania, To the sheriff of the county of Greeting: Form of writ. Whcreois, A. B. (here set out the decree, or so much thereof as is material to explain the duty to be per- formed.) Therefore we command you that you do, at proper and convenient hours in the day time, go to and enter upon all the messuages, lands, tenements, and real estate of the said A. 13., and that you do collect, take, and get into your hands, not only the rents, issues, and profits of all his said real estates, but also all his goods, chattels, and personal estate, and detain and keep the same under sequestration in your hands; and also that you attach all stocks held by him in incorporated com- panies, and keep the same under attachment until our said Orphans' Court shall make other order to the con- trary; and you are to return with this writ an inventory or schedule of the property you have sequestrated or at- tached, and a certificate under your hand of the manner ORPHANS' COURTS Ixxxv in which you shall have executed this writ, to our said court, on the day of next. Witness, &c. §XIV. A sequestration shall not abate by the death of the complainant or defendant. §XV. It shall be the duty of the sheriff or coroner, as the case may be, immediately after receiving any such writ of sequestration, to file a copy thereof in the office of the prothonotary of the Court of Common Pleas of the same county, who shall, forthwith, enter the substance thereof on his docket, with the names of the parties, and the entry thereof shall thenceforward operate to charge the real estate of the defendant, according to the form and effect of such writ, and shall bind the same in the hands of all purchasers and mortgagees, subsequently to such entry, without other notice: Provided, That if such sequestration shall be dissolved by the order of the Or- phans' Court, the defendant, or any person interested in such real estate, may have a certificate of the same from the clerk of the said court, which it shall be the duty of such clerk to furnish, on application, and which, being entered on the docket, shall have the effect of a satisfac- tion of such lien. §XVL Writs of fieri facias shall be directed to, and executed by the sheriff or coroner, as the case may re- quire, "of the proper county, and the proceedings thereon shall be the same as on writs of fieri facias issued by the Court of Common Pleas of the same county. §XVII. When proof shall be made on oath or affirma- tion, to the satisfaction of the court, if in session, or to any judge thereof in vacation, at the time of filing a petition as aforesaid, that the defendant has absconded, or is about to abscond or depart from his usual place of abode, to the prejudice of the complainant, it shall be lawful for the court or for such judge to allow the issuing of a writ of attachment, or a writ of sequestration, or both in the first instance, against such defendant, and on the return there- of, the like proceedings may be had as are authorized on the return of a citation. §XVIII. If such attachment or sequestration, issued in the first instance, be executed, the court, or any judge thereof in vacation, may dissolve the same, on the de- fendant giving security, to the satisfaction of the court, or of such judge, to appear on a day certain, to answer to the petition and to abide the orders and decrees of the . court in the premises. §XIX. When proof shall be made on oath or affirma- tion, to the satisfaction of the court, or of any judge thereof in vacation,. at the time of presenting a petition. I.VXXVl ORPHANS' COURTS. or at any stage of the cause, that the defendant therein named has hi his possession, trust, property or eflccts, which he is wasting, or otherwise disposing of contrary to his duty and trust, or that he is about to abscond, and carry such trust, property or effects, out of the jurisdic- tion of the court, it shall be lawful for the court, or such judge in vacation, to award a writ in the name of the commonwealth, to the sheriff' or coroner, as the case may require, of the proper county, returnable on a day cer- tain, to an Orphans' Court, to be convened for the pur- pose, if the said court shall not then be in session, com- manding him to take possession of all such trust, property and effects specified in such writ, and to hold the same subject to the order of the court; and also, to attach all debts due to such trust, whether by bond, mortgage or otherwise, and all stocks in incorporated companies, and serve a copy of such writ upon each debtor, and upon each company in which stock may be held, belonging to the trust as aforesaid: Provided, That before the execu- tion of such writ, the sheriff or coroner, as the case may be, may require of the party at whose instance such writ may have been issued, sufficient security to indemnify him against any damages arising from the execution thereof: Jind provided also, That if the party, against whom such writ may issue, shall give sufficient security to such sheriff' or coroner, that the trust, property or effects specified in such writ, shall be forthcoming at the return thereof, then such sheriff or coroner shall not execute the same, but shall make return of the facts to the court. §XX. The like proceedings may be had, where the court has made a final order and decree, for the delivery of the trust, property and effects by the defendant to any persons, who may be designated by law, or by the order of the court, to receive them. §XXI. On the return of such writ, the court may take such order respecting the disposition of such trust, pro- perty and effects, as may be necessary and proper, accord- ing to the principles of justice and equity. . §XXII. When a decree shall have been had against' any defendant, who shall not have appeared according to the requisitions of the citation, and a sequestration shall have issued against the real or personal estate of such de- fendant, the court may order the decree to be satisfied out of the estate, and effects sequestrated: Provided, Thai such order shall not be carried into execution, until the. complainant shall have given security to the satisfaction of the court to abide the order of the court, touching the restitution of what he may have received, in case the de- ORPHANS' COURTS. IxXXVll fendant shall appear, and be admitted to defend the suit; but if such security shall not be given, the estate and effects sequestered, or the proceeds thereof, shall remain subject to the directions of the court, to abide its further order. §XXIII. If the defendant against whom such decree shall have been made, or his representatives, shall, within one year after personal notice of such decree, and within five years after the entry thereof, when no such notice shall have been given, present a petition to the same court praying to be admitted to be heard, and shall pay such costs as the court shall adjudge, the party so petitioning shall be admitted to a defence, and the case shall then proceed in like manner as if such defendant had appeared in due season, and no decree had been made. §XXIV. If such defendant or his representatives, shall not within such period present a petition as aforesaid, the court may make such final order and decree, both in re- spect to any estate or effects that may have been seques- tered, and in respect to the matters in controversy in the case, as may be according to justice and equity, and may, if necessary, award a writ in the nature of a fieri facias, in the manner herein before provided, as in the case where the defendant appears. §XXV. When any executor, administrator or guar- dian, shall reside or move out of the county in which his appointment shall have taken place, or shall not possess real or personal estate in such county, sufiicient to satisfy any decree or order of the Orphans' Court of such county, it shall be lawful for the Orphans' Court of such county to issue process to the county in which such executor, administrator or guardian may be, or in which he may have any real or personal estate, amenable to such pro- cess, and such process shall be executed by the sheriff or coroner, as the case may require, of the county in which such executor, administrator or guardian may be, or may possess real or personal estate as aforesaid. Sect. 58. The several Orphans' Courts shall have Practice of power to fix the return days of all processes issuing out of ^^^ Orphans' the respective courts, whenever such return days are not otherwise provided for by law, and from time to time to make rules for the regulation of the practice of such courts, not inconsistent with this act. Sect. 59. Any person aggrieved by a definitive sen- Appeal to the tence or decree 6f the Orphans' Court, may appeal from Supreme the same to the Supreme Court: Provided, That the proviso. party appealing shall give security by recognizance with Security to be sufficient surety, in the Orphans' Court, or before one of ^'^'^"' '^' the judges thereof, conditioned to prosecute such appeal IxXXviii ORPHANS' COURTS. with effect, and to pay all costs that may "be adjudged against him, and shall make oath or affirmation that the appeal is not intended for delay: which appeal, thence- forth, shall stay all proceedings in the Orphans' Court, until the same be determined in the Supreme Court, and the record be remitted to the Orphans' Court: no appeal shall be allowed, unless the same be entered and security given within three years after the final decree of the Or- 2d proviso, phans' Court: Jind- provided, That no reversal or modi- fication of any decree or proceedings of the Orphans' Court for the sale of real estate, shall have the effect of divesting any estate or interest acquired under such de- cree or proceedings, by persons not party thereto, where the Orphans' Court had jurisdiction of the case. Fees of Sect. 60. The fees to be taken by the sheriffs of each dutiefre uir- ^ounty, for the services enjoined by this act, shall be the ed by this act Same as those already allowed for like services; and for executing a writ of sequestration the same fees shall be allowed as upon a writ of foreign attachment, together with reasonable costs and expenses, according to tbe dis- cretion of the court; on all writs and process sent from another county, no mileage shall be allowed, except for the distance actually travelled, but an allowance shall be made for the transmission of such writs and process, to the clerk of the court from which they may have issued, at the common rates of postage. Time of ope- Sect. 6l. This act shall take effect on the first Mon- ration of act. ^^^ jj^ August next, and so much of any law as is altered by this act, is hereby repealed from that period. JOHNLAPORTE, Speaker of the House of Representatives. WM. G. HAWKINS, Speaker of the Senate. Approved — The twenty-ninth day of March, Anno Domini, eighteen hundred and thirty-two. GEO. WOLF. AN ACT RELATING TO LAST WILLS AND TESTAMENTS. Sect. 1. Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylva- nia in General Assembly met. That every person of General right sound mind, married women excepted, may dispose by wili,'^^°^^ ^ will of his or her real estate, whether such estate be held in fee simple, or for the life or lives of any other person or persons, and whether in severalty, joint tenancy, or common, and also of his or her personal estate. Sect. 2. Provided, That a married woman may. Disposal of under a power legally created for the purpose, dispose of ^^'^^^'^ ^i her real or personal estate by will or appointment, in na- men. ture of a will, and that any married woman may, with the assent or licence of her husband, dispose of her per- sonal estate by will. Sect. 3. Jind provided also, That no will shall be Age of testa- effectual unless the testator were at the time of making °'" the same, of the age of twenty-one years, or upwards, at which age the testator may dispose of real as well as per- sonal or mixed property, if in other respects competent to make a will. Sect. 4. Every person competent to make a will as Guardianship aforesaid, being the father of any minor child unmarried, ci,iij|.e°'^ may devise the custody of such child during his or her minority, or for any shorter period. Sect. 5. The emblements or crops growing on lands Disposal of held by a widow in dower, or by any other tenant for |™ps"fs pg^. life, may be disposed of by will as other personal estate; sonai estate. also rents and other periodical payments accruing to any such tenant for life, or to any other person entitled under the laws of this Commonwealth regulating the descent and partition of real estate, may, so far as the same may have accrued on the day of the deatii of such tenant, for life, or other person, be disposed of by will in like manner. M xc LAST WILLS AND TESTAMENTS. ^X ills to be vritti'ii and provi'd on oath, &c. nvinciipative wills. Place of mak insr will. Sect. 6. That every will shall be in writing, and un- less the person makinji; tlie same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction, and in all cases shall be proved by the oaths or affirmations of two or more com- petent witnesses, otherwise such will shall be of no effect. Of the dispo- Sect. 7. Provided, That personal estate may be be- sal of person- Queathcd bv a nuncupative will, under the following re- al estate by » . . •' strictions: I. Such will shall in all cases be made during the last sickness of the testator, and in the liouse of his haljitation or dwelling, or where he has resided for the space of ten days or more, next before the making of such will, ex- cept where such person shall be surprised by sickness, being from his own house, and shall die before returning thereto, II. Where the sum or value bequeathed shall exceed one hundred dollars, it shall be proved that the testator, at the time of pronouncing the bequest, did bid the per- sons present, or some of them, to bear witness that such was his will, or to that effect; and in all cases the fore- going requisites shall be proved by two or more wit- nesses who were present at the making of such will. This act not Sect. 8, ProfiV/ec/, That notwithstanding this act, any to aftect ma- mariner being at sea, or any soldier being in actual mili- or"soidkrsTn tary service, may dispose of his moveables, wages and service, personal estate as he might have done before the making of this act. Sect. 9. That all devices of real estate shall pass the whole estate of the testator in the premises devised, al- though there be no words of inheritance or of perpetuity, dTof per- unless it appear by a devise over or by words of limita- Witnesses bequests. Devise of real estate to pass the whole without petuity. tion or otherwise, in the will, that the testator intended to devise a less estate. Sect. 10. That the real estate acquired by a testator after making his will, shall pass by a general devise, unless a contrary intention be manifest on the face of the will. Sect. 11. That a devise or bequest by a husband to his wife of any portion of his estate or property, shall be deemed and taken to be in lieu and bar of her dower in the estate of such testator, in like manner as if it were so expressed in the will, unless such testator shall in his will declare otherwise: Provided, That nothing herein con- tained shall deprive the widow of her choice either of dower or be- dower, or of the estate or property so devised or be- l*^*^*'- queathed. Estate ac- quired after luakinrr will. Devise to wife to bar dower unless otherwise declared. Proviso. No bar to choice of LAST WILLS AND TESTAMENTS. XCl Sect. 12. That no devise or legacy in favour of a child Death of ^^^ or other lineal descendent of any testator, shall be deem- il^^^ffedl^of ed or held to lapse, or become void, by reason of the de- testator not to cease of such devisee or legatee, in the life time of the fs'sue of bl-"^ testator, if such devisee or legatee shall leave issue sur- quest, viving the testator, but such devise or legacy shall be good and available in favour of such surviving issue, with like effect as if such devisee or legatee had survived the testator, saving always to every testator the right to direct otherwise. Sect. 13. That no will in writing concerning any real Of repeals estate shall be repealed, nor shall any devise or direction *" '^° '^^ ^' therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same executed, and proved in the same manner as is herein- before provided, or by burning, cancelling, or obliterating or destroying the same by the testator himself, or by some one in his presence, and by his express direction. Sect. 14. That no will in writing concerning any per- Nuncupative sonal estate shall be repealed, nor shall any bequest or ^rUten^^wms, direction therein be altered, otherwise than as is herein unless com- before provided in the case of real estate, except by a ^^"'^Jead^ai- nuncupative will, made under the circumstances afore- lowed and said, and also committed to writing in the life-time of the proved, testator, and after the writing thereof read to or by him, and allowed by him, and proved to be so done by two or more witnesses. Sect. 15. That when any person shall make his last Widow and will and testament, and afterwards shall marry or have a testator"niar- child or children not provided for in such will, and die ried and bom leaving a widow and child, or either. a widower child or ^^^^i^t^f^herit children, although such child or children be born after as of an intes- the death of their father, every such person, so far as tate. shall regard the widow, or child or children after born, shall be deemed and construed to die intestate, and such widow, child or children, shall be entitled to such pur- parts, shares, and dividends of the estate, real and per- sonal, of the deceased, as if he had actually died without any will. Sect. 16. That a will executed by a single woman J^/^^J^^ ^j,. shall be deemed revoked by her subsequent marriage, nui'iwrby "' and shall not be revived by the death of her husband. marriage. Sect. 17. Provided, That nothing in this act contain- Testators, ed shall be construed to apply to the disposition of per- "°" residents, sonal estate by a testator whose domicil is out of this Commonwealth. Sect. 18. That this act shall take effect from and after Time of ope- the first day of October next, and so much of any act or '"''"""• XCll LAST WILLS AND TESTAMENTS. Rftpcaling acts of Assembly as is hereby altered or supplied, is re- c ause, c. pQ^le^l fj-om and after the said day, except so far as may be necessary to complete any proceeding commenced be- fore that time. SAM'L. ANDERSON. Speaker of the House of Representatives. ' THO'S. RINGLAND. Speaker of the Senate. Approved — The eighth day of April, Anno Domini, eighteen hundred and thirty-three. GEO. WOLF. THE LAW OF EXECUTORS ADMINISTRATORS. BOOK I. OF THE APPOINTMENT OF EXECUTORS AND ADMINISTRATORS. CHAR I. OF WILLS AND CODICILS WHO MAY MAKE THEM WHO NOT HOW THEY ARE ANNULLED OR REVOKED HOW REPUBLISHED. Betore 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) 2 Bl. Com. 499, 500. (1) Per Johnson J. 1 M'Cords Rep. 522. 2 Al'Coi-d's Rep. 522. Per Jhmcan J. 4 Serg. & Rawle, 54G. And it is not indispensahje that tlic testator should originally have executed a paper as and for a will, provided he afterwards adopts it as such; therefore if it be executed as, or called a deed in the body of it, yet if made with a view to the disposi- tion of a man's estate upon his death, it will enure as a \vill. Lyles v. J^yles, 2 Nott is. M'Cord, 531. Henry v. Ballard, 2 Car. Law Rep. 595. See AliUedge v. Lamar, 4 Desaus. Rep. 62.3. Wiicn a testiment;iry disposition of the writer's estate is inteiuled to be made by it, a letter (JMorrell v. Dickei/, 1 Johns. Cha. Rep. 153) or memorandum may be a will; but there must be an advised purpose shown by the paper to make a present testamentary disposition, and not the intention to do some future act. Stein v. JVorth, 3 Yeates, 324. M' Gee r. M' Cants, 1 M'Cord, 517. Plumstead's .'1ppeal,i Serg. k Rawle, 545. Shiekk v. Irwin, et. al. 3 Yeates, 389. Toner v. Tngg-art, 5 Binn. 490. 1 1 OF WILLS AND CODICILS. [bOOK I. A will may relate cither 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, altliough fluctua- ting till the testator's death, and will pass only such estate as he was seised of at the time of making it (A); 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 Cur. 2. c. 3.(1) it shall not only he in writing, (2) but signed by (i) 4 Bac. Abr. 2 12. 2 Bl. Com. .378, Heath, I Ves. 141. Brydges v. Duch. 501. Wind V. Jekyl, 1 P. Wms. 575. of Chandos,2 Ves. Jun. 427. Swift V. Roberts, Amb. 619. Okf r. (1) Passed in 1676, to take effect from and after June 24tli, 1677. (2) In Pennsylvania, by the Act of Assembly of 1705, (Purd. Dig. 800., 1 Dall. Laws, 53., 1 Sm. Laws, 33.) sect. 1. it is provided " tliat all wills in writing wherein or whereby any lands, tenements, or hereditaments, within this province, have been, are, or shall be devised, being proved by two or more credible witnesses, upon their solemn affirmation, or by other legal proof in this province, or being proved in tlie Chancery in England, and tlie bill, answer, and depositions transmitted hither, under the seal of that Court, or being proved in the hustings, or Mayor's Court in London, or in some manor Court, or before such as shall have power in England, or elsewhere, to t:ike probates of wills, and grant letters of administration, and a copy of such will with the probate thereof annexed or indorsed, being transmitted hither, under the public or common seal of the Courts or of- fices where the same have been or shall be taken or granted, and recorded or entered in the Ren-ister-general's office in this province, shall be good and .available in law, for the granting, conveying and assuring of the lands or hereditaments thereby given or devised, as well as of the goods and chattels thereby betjueathed; and the copies of all wills, and probates, under the public seals of the CoiU'ts or offices where the same have been or shall be taken or granted respectively, other th.in copies or probates of such wills as shall ap- pear to be annulled, disapproved, or revoked, shall be judged and deemed, and are here- by enacted to be matter of record, and shall be good evidence to prove the gift or devise tlicreby made; and all such probates, as well as all letters of administration granted out of lids province, being produced here, under tlie seals of the Courts or offices granting the same, shall be as sufficient to enable tlie executors or administi-ators, by themselves or attorneys, to bring tlieir actions in any court w itliin this province, as if die same probates or letters testamentary or administrations were granted here, and produced under the seal, of the Register-general's office of this province." Previous to the passage of the act of 1705, it was enacted by the first Assembly, held at Chester, in December 1682, in pursuance of the laws agreed upon in England in March of the same year, "that all wills in writing, attested by two sufficient witnesses, shall be of the same force to lands as to other conveyances, being legally proved within forty days, either within or without die province." (Prov. Laws. App. 7.) The earliest will upon record in the office of the Register of Wills at Philadelphia, is that of William Clarke^ dated 12th of May, 1681, in Book A. page 5, which is executed in the pi-esence of tw'O witnesses; but the wills on record in the same book, bearing date in 1682, 1683, are gene- rally executed in the presence of three or four witnesses. It has been decided that since the passage of the act of 1705, it is not necessary to con- stitute a will, even of lands, that it should be sealed, or subscribed by witnesses, nor that the proof of the will should be made by those who subscribed as witnesses, nor that all the subscribing witnesses should prove die will. Might v. Wilson, 1 Dall. Rep. 94. Ardnt v. Arilnt, 1 Serg. & Rawle, 256. It is only necessary th.-^t it should be reduced to writing, in pursuance of his direction or insti'uctions, dm-ing tlie testator's lifetime, and CHAP. I.] OF WILLS AND CODICILS. 2 the testator, or some other person in his presence, and by his express these facts proved by two witnesses; signing by the testator, foumal publication, and at- testation by subscribing witnesses, being unnecessary. 16 Serg. &; Rawle, 316- Rossiter V. Simmons, 6 Serg. & Rawle, 452. JValmesley v. Read, 1 Yeates, 87. But it is not ne- cessary that the will should be read to the testator, [Rossiter v. Simmons. Lewis T. Lexvis, 6 Serg. k Rawle, 489,) unless some reasonable gi-ound be laid for considering the circumstance, that it was not read, as a badge of fraud. Harrison \. Rowan, 3 Wash. C. C. Rep. 580. This last mentioned decision, it is to be observed, however, was not made with a reference to the act of Assembly, but upon a will of lands in New Jersey, where the decision took place. Of the two witnesses to a will, each must depose sepa- rately to all facts necessary to complete the chain of evidence, so that no link of it may depend upon the credibility of but one, and if the act of Assembly were out of the ques- tion, the case would be well made out by the evidence of either; and circumstantial proof cannot, therefore, be made by two or more witnesses alternating with each other, as to tlie different parts of the aggregate of circumstances which are necessary to make up the sum of proof, the evidence of each not going to the whole. Hock v. Hock, 6 Serg. & Rawle, 47. Reynolds v. Reijnolds, 16 Serg. k Rawle, 82. Lexms v. JMaris, 1 Dall. Rep. 278. But where verbal instructions were given by A. to B. to draw his will, and B. procured a will to be drawn by C. exactly conformable to the instructions, which will B. brought to the testator, who was too unwell to sign it, and died about two hours afterwards without executing it, and witliout having it read to him, and the testator com- plained to a witness on the day he died, (but whether before or after the will was brought to him does not appear by the report, though it would seem from what he said that it was before,) that he was uneasy that his will Mas not perfected, mentioned his earnest de- sire that B. should draw his will, and that he had given him special instructions for that purpose, which he repeated to him, which express instructions given to B. by the deceased^ as related by him on the day. he died, at different times of the day, were proved by two witnesses, and the testator's recognition on the day of his death, that he had given B. di- rections to draw his will, was proved by three witnesses, it was held, in a J\'isi Prins case, that the will drawn by C. being conformable to the testator's verbal instructions, was a good will in writing under the act of Assembly of 1705. Walmesley v. Read, 1 Yeates, 87. One witness, thei-efore, according to this last mentioned case, if it be law, may prove, that the testator's will was reduced to writing by the witness's procurement, and its conformity with the instructions of the testator; and other witnesses may prove the testator's instructions as derived from himself, and their identity and conformity with the contents of the written will proved by the first witness, though the declarations of the tes- tator, as to what the instructions for his will were, do not refer to, or recognize the fact, that to his knowledge a will had been reduced to writing in conformity with his instruc- tions, but merely show what his will is. Two recent decisions of the Supreme Court, however, have settled the law to be, that where one witness swears to the preparation or publication of a paper as a last will, proof by other witnesses of declarations by the testa- tor, that he had made a will, must, in order to establish the will, be of declarations made in reference to that particular paper. Hock v. Hock, 6 Serg. 8i Rawle, 47. Reynolds v. Reynolds, 16 Serg. & Rawle, 82, It is said in the marginal note of Eyster v. Young, 3 Yeates, 5.11, that " though a will of lands must be proved regularly by two witnesses, yet circumstances may supply the want of one witness, where they go directly to the imme- diate act of disposition," This, however, is taken from a dictum of the Court in charging the jury, and there v/as no necessity in that case for havir% recourse to such doctrine, — which is not very intelligible, — for the instructions of the testator were reduced to wri- ting, afterwards read to him in the presence of two witnesses, and were established as his will in preference to a more formal will prepared for tliem by the witness wlio had writ- ten down the testator's Instructions, but which differed from them in some particulars, the witness who took the instructions having trusted for some things to his memory. The 2 OF WILLS AND CODICILS. [bOOK 1. directions; and be subscribed in his presence by three or four credi- ble witnesses (rt).(l) But the actual signature of the testator in the presence of the three subscribing witnesses, is not required, if he recognise it to be his signature before them. (2) Nor is it necessary that the three subscri- bing witnesses sJiould be togetlier present, at the time of the execution. And the attestation of each witness separately is suiricicnt(6).(3.) (rt) Vide Ellis v. Smith, 1 Ves. Jun. (i) Westbeech v. Kennedy, 1 Ves. II. 13roderick v. Eroderick, 1 P. Wins. & Bea. 3(32. 23'J. and Stonehouse v. Evelyn, 3 P. Wms. 251. same docU-ine is stated also in the marginal note of anotlicr Alus Priiis case, Boiulinni v. Bradford, 2 Yeates, iro. 2 DaU. Kep. 2CC. The real question however involved iu this last case, the reports of whicli are very unsatisfactory, was tlie sanity of Uie testator, and his intention in desti-oying a will; which one witness, his nephew, who was a lawyer, and had read it to the testator a few days before his death, with tlie view to take his instructions for preparing another will, swore was in tlic testator's liandwriting, and which another •witness, tiie testator's sister, swore was signed by him, tliough she tliought the body of it ■was not in his handwriting. This will the last mentioned witness burned, by the testator's directions, after he had torn it in pieces; and he stated to his physician that he had de- stroyed it, and made use of expressions, and did certain acts evincing his determination to die intestate. In addition to tlie proof by the nephew and sister of the testator, the re- port of Judge Te.ates states tlie determination of the testator to republish tliis will, and make an alteration in one of tlie devises, by a codicil annexed thereto, which codicil he subscribed, and published in the presence oifonr witnesses, but which he destroyed with the will to which it was annexed. The will was therefore in point of fact proved by two •witnesses, and its destruction being proved by one witness who saw tlie fiict, and another to whom the testator stated the fact, and made certain declarations evincing his intention in so doing, all tiiese circumstances were left to the jury, who found that the desU-uction of the will, with the view to die intestate, did not set up a former will, as to the execution of which there was no doubt. See also Reynolds \. Reynohk, 16 Serg. & Rawle, 82. The words, " or by other legal proof in this province," do not mean less proof than by two •witnesses, but is put in opposition to solemn affirmalion^ in order to admit the attestation of an oath. Wesfs Case, before the Register General (Mr. Chetv, afterwards Ch. Jus- tice) in 1773, cited 1 Dall. Rep. 281. Lexvis v. Maris, 1 Dall. Rep! 2*8. And notwith- standing it is stated in JVestons \ Stammers, 1 Dall. Rep. 2, that "an exemplification of a will, made in England, and certified generally to have been proved in the Prerogative Court of Canterbury, under the seal of tliat Court, was allowed to be readin evidence," the constant understanding and practice of this state has been, that no matter where a will is made and proved, if it concern lands in Pennsylvania, it must be proved by two wit- nesses; and therefore tlie copy of a will of land lying in Pennsylvania, made in New York, proved before the surrogate of New York, by one of the subscribing witnesses, who also proved, that Uie other two witnesses attested the same in tlie presence of the testator, tlie copy being authenticated under tlie seal of the surrogate's office, and entered in the Regis- ter General's office in Pennsylvania, is not admissible in evidence in tlie Courts of Penn- sjlvania. llylton v. Brovin, \ Wash. C. C. Rep. 299. (1) Case of Cochraii's Will, 3 Bibb's Rep. 491. Bw-ivell v. Corbin, 1 Rand. Rep. 131. (2) Le-cvis V. Ltnvis, 6 Serg! & Rawle, 496. Case of Cochran's Tf'ill. Elbeck v. Gran- berry, 2 Hayw. Rep. 232. (3) Jicc. (in Pennsylvania) Reynolds v. Reynolds, Ifi Scrg. & Rawle, 85- Aliter in So. ' Carolina, Snelgrove v. Snelgrove, Dunlap v. Dunlup, 4 Dessaus. Rep. 274- 305. Turnip- CHAP. I.] OF WILLS AND CODICILS. 2 «I, A. B., do make this my will," is equivalent to signature, and if acknowledged before three witnesses, is a good execution within the statu te(c).(l) If the witnesses to a will attest the execution of it by the testator in an adjoining room, and the testator, from his situation, can see them attest it, it is a good attestation within the. statute. (2) But if the testator be not so situated that he can see them attest the will, it is not J good attestation thereof (^). (3) The wife of an acting executor taking no beneficial interest under the will, is a competent attesting witness to prove the execution of it, within the description of a credible witness (e). (4) 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 beneficial interest under the will, is a good attesting witness to it(y).(5.) A will, as it respects personal property, is an indefinite disposition of all the testator may be possessed of at his death(^), inclusive of chattel leases, whether tliey were his at the time of making his will or not(//), and is of two species, written, or nuncupative: if of the former, it may be committed to writing either by the testator him- self, or by his directions(e); nor is the affixing of his seal to the in- (r) Morrison V. Tumour, 18 Ves. 1S3. (g) Oke v. Heath, 1 Ves. 141. All (e?) Forrester v. Pigou, 1 Maul. & Souls' Coll. v. Codrington, 1 P. Sel. 9. • Wms. 598. Brydges v. Duch. of (e) Bettison v. Bromley, 12 East, Chaudos, 2 Tes. jun. 427. 250. (/<) Wind v. Jekyl, 1 P. Wms. 575. (/) Phipps V. Pitcher, 6 Taunt. Rep. («) Huntingdon v. Huntingdon, 2 220. 1 Madd. Rep. 144. Phill. Rep. 213. Sikes v. Snaith, ib, 356. seedY. Hawkiiis, 1 ISI'Cord's Rep. 272. See Oie note to C?'2«seV Digest, vol. vi. page 63, 2fd Aip. edition, for the law on this subject in the several states; and tlie editor's note to IVestbeech v. Kennedy, 1 Ves. & Beam. 362. Ara. edit. (1) Pearson v. Wightman, 2 Rep. Const. Court, (So. Carolina) 343. The 6th section of the Act of 8th April, 1833, " i-elating to last wills and testaments (Pampli. Laws, 249), pro- vides, " that every will shall be in writing, and unless the same shall be prevented by the extremity of liis last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction, and in all cases shall be proved by the oaths or affirmations of two or more competent witnesses; othei-wise such will shall be of no effect. " (2) JMason v. JIamson, et al. 5 Harr. h Johns. 480. (3) Duntap'y. Dunlap, iVcsaus. 311. Edelen v.Jfardif's Lessee, 7 Harr. & Johns. 61. (4) Haivley v. Broivn, 1 Root's Rep. 494. See 16 Scrg. & Rawle, 8.5. (5) Though the general practice of the English Chancery, to admit a trustee as a wit- ness, has been uniformly adopted in Penns) Ivahia (IJriwi''s Lessee y. S/ni/ison, 6 B'lnn. 478,) an executor who is plaintiff in a feigned issue to try the validity of a will, is not a competent witness in support of the will, being liable for costs. Vansant \. Jioilean, 1 Hum. 444. ■ A devisee, not a party to the issue, who attested tlie will, is a good witness to prove it, if before the trial she and her husband transfer their interest, and receive a re- lease to the husl)and of all actions from the. ti'ansferee. A'enis v. Sexman, 16 Sei-g. and Rawle, 315. Aad the wife of a legatee, or the husband of a devisee, .is a competent m it- ness on the pro[icr release being executed, tlioiigh it be not accepted. Bray field v- Bray- « 1. , • 2 OP WILLS AND CODICILS. [bOOK I. strumcnt, nor the presence of witnesses at its publication, essential to its validity ;(1) 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 witncsses(j). Butaltbough the testator's seal, and the attestation to the will, and, under certain circumstances, even his signature, may be omitted, and still it may operate as an available dis[3]position of personal estate(A;); (2) yet if, on the omission of either of those solemnities, a fair pre- sumption may be raised of an abandonment of intention on the part of tlie deceased, or that his intention was merely ambulatory, the in- strument 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 inference and decision were the same.(3) In these and the like cases, the framer of the instru- ment appears evidently to have contemplated a farther solemnity, as essential to its perfection; and such solemnity not having been super- added, and the instrument being left inchoate and imperfect, a change of intention may reasonably be presumed(/). But such presump- tion 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 proving his recognition of it m extremis^ or by circumstances showing he in- tended it to operate in that form, for the presumption from such an {]) 2 Bl. Com. 501, 502. GodOlph. cited in Mathews v. Warner, and in ex- p, 1. c. 21. s. 2. Vide Limberg v. parte Fearon, 5 Ves. jun. 644. and Mason, Com. Rep. 451. Coles v. Trecothick, 9 Ves. jun. 249. (A) Read V. Phillips, 2 Phill. Rep. and see Walker v. Walker, 1 Meri. Rep. 122. 503. (/) Mathews v. Warner, 4 Ves. jun. (??t) Baillie v. Mitchell, in Prerog. 180. and 5 Ves. jun. 23. Griffin's case, Court, 1805. field, 3 Han-. & Johns. 208, which was the case of a nuncupative will. Shaffer's Lessee V. Corbett, 3 Harr. and M'Hen. 513. Iii AlassachuseUs an executor, who is a mere trus- tee, and takes no beneficial interest under the will, is an incompetent witness to prove the execution of the will, or tlie sanity of the testator; and the circumstance of his not being a party to the record, or not a subscribing; witness to the will, makes no difFercnce. Du- rant v. Starr, 11 Mass- Rep. 527. Sears v. DlUhiq-hctm, 12 Mass. Rep. 358. But in England, in ejectment against a devisee, where the question tui'ns upon tlie sanity of the testator, an executor, who takes a pecuniary interest under the will, is a competent wit- ness to support it; inasmuch as the verdict would only have the effect of establishing the will as to the land, and would, in any proceeding to establish the will as to the personalty, be treated as res inter alios acta. Doe v. Teage, 5 Barn. & Cressw. 335. (1) Ace. (So. Carolina,) White v. /felines, 1 M'Cord's Rep. 430. (2) Broxvii's Ex. v. Tihlen, 5 Ilarr. and Jolms. 371. (3) Tilghmaii's v. Steiiart, 4 Harr. and Johns 156. Case of A. Stewart's Will, (stated) 4 llarr. & Johns- 162. • See lVitherspoon''s Heirs v. Witherspooii's EiX'rs:- 2M«Cord, 520. CHAP. 1.] OP WILLS AND CODICILS. 3 omission that he intended doing something more, is slight, and may be repelled by slight circumstances(7i). 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 ad- judged 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(o). With regard to nuncupative wills, the unqualified allowance of them was found ]3roductive of the greatest frauds, [4] and it became necessary to subject them to very strict regulatioiis. Accordingly by the stat 29 Car. 2. above-mentioned, it is enacted, that no such will shall be good,(l) where the estate thereby bequeathed shall ex- (n) Harris v. Bedford, 2 Phill. Rep. (o) Ripley v. Waterworth, 7 Ves. 177. jun. 452. (1) The 7th section of the act of April 8th, 1833, (Pamph. Laws, 249) "relating to last wills and testaments," provides, tliat "personal estate may be bequeathed by a nuncupa- tive will under the following restrictions: 1. Such will shall, in all cases, be made during the last sickness of the testator, and in the house of his habitation or dwelling, or where he has resided for the space often days or more, next before the making of such will, except where such person shall be sur- prised by sickness, being from his own house, and shall die before returning thereto. 2. Where the sum in value shall exceed one hundred dollars, it shall be proved that the testator, at the time of pronouncing the bequest, did bid the persons present, or some of them, to bear witness, that such was his will, or to that effect; and in all cases the fore- going requisites shall be proved by two or more witnesses who were present at the mak- ing of such will." By the luth and 11th sections of the act of 15th March, 1832, "relating to Registers and Registers' Courts," (Pamph. Laws, 135), it is provided that, "No nuncupative will shall be admitted to probate, nor shall letters testamentary thereon be issued till fourteen days, at the least, after the death of the testator be fully expired; nor shall any nuncupative will be at any time admitted to probate, unless process shall have first issued to call in the widow, if any, and such of his relations or next of kin as would be entitled to the administration of his estate in case of intestacy, to contest the same, if they please." (Sect. 10). "No testimony shall be received to prove any nuncupative will after six months elapsed from the speaking of the pretended testamentary words, unless tlie said testimony, or the substance thereof, were committed to writing within six days after the making of such will." (Sect. 11). It has been previously provided, by the 3d and 4th sections of the act of 1705, which are almost transcripts from the stat. 20 Car. 2. (Purd. Dig. 801. 1 Dall. Laws, 5^. 1 Sm. Laws, 33), that ' No nuncupative will [shall] be good, where the estate thereby bequeathed shall exceed the value of thirty pounds, that is not proved by two or more witnesses, who were present at tlic making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, bear witness that such was liis will, or to that effect; nor unless sucli nuncupative will be made in the time of the last sickness of tlie deceased, and in the house of his or theii- habitation or dwelling, or where he or she hatli been resident for the space often days oi- more, next before the making of sncli will, except where such person was surprised or taken sick, being from his own house, and died before he returned to tlie place of his or her dwelling." 4 OF WILLS AND CODICILS. [bOOK 1. ceed llic value of tliirty pouncls,(l) that is not proved by the oaths of three witnesses at the least, who were present at the making thereof, (who, by Stat. 4 S,' 5 Ann. c. 16, must be such as are admissible on trials at common law), (2) nor unless it be proved, that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, bear witness that such was his will, or to that effect;(3) nor, unless 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 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 testamentary 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(/;). Soldiers in actual military service, and mariners, or seamen at sea, are exempted from the provisions of this act. (4) The former may at this day make nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms and solemni- ties which the law requires in other cases((7). [5] But, with respect to the latter, this licence no longerexists. The perpetual impositions practised on this meritorious and urisuspect- (j9)See Miller V. Miller, 3 P. Wms. (y) 1 Bl. Com. 417. Stat. 29 Car. 356. 2. c. 3. s. 23. 5 W. 3. c. 21. s. 6. "After six months past, after speaking of the pretended testamentary words, no testi- mony shall be received to prove any will nuncupative, except tlie said testimony, or the substance thereof, were committed to writing within six days after making of the said will." (1) IVeeden \. JBarilett,C) Munf. 123. Thirty dollars is the amount in Virginia. The amount of propei'ty in the case ai Jirayfieldx. Brayjield, 3 Harr. Jk Johns. 208, where tlie nuncupative will was regularly proved, was 3236 dollars 48 cents. (2) A legatee who releases his interest is admissible, though the release be not accepted. Urayfield v. Brayjield, 3 Harr. &c Johns. 208. A free negro is incompetent in South Carolina in any case where the rights of white persons are concerned. Jl'hite v. Helmes, \ M 'Cord, 430. (3) Beimett v. Jackson, 2 Phill. Rep. 190. M'Gee v. M' Cants, 1 M'Cord, 518. See JVIason V. Dimnian, 1 Munf. 456, where notes dictated animo testandi to a person by the decedent, with the view to have a luritten will prepared, were established (in Virginia) as a good mmcupative will, tliough a written one was prepareil from them, which the tes- tator was unable to execute, being delirious. The fachim of a nuncupative will requires to be proved by evidence more strict anil stringent than that of a written one, in addition to all the several requisites to its validity, under the statute of frauds, being proved, to entitle it to probate. Lemann \ . Bonsall , 1 Addam's Rep. 389. See the Case oi Pris- cillu E. YarnaWs Will, 4 Rawle, 46. (4) Provided always, tliat notwitlistanding tliis act, any mariner or person being at sea, or soldier being in actual military service, may dispose of his moveables, wages and personal estate, as he or they might have done before this act." Act of 1705, sect. 7. Puid. Dig. 801. 1 Dall. Laws, 53. I Sm. Laws, 33. The 8th sect, of the act of April, lS.).i (Panipli. Laws, 250), is the same as the 7lh sect, of the act of 1705, except that the privilege is to " any mariners being at sea," not to " any mariner ov person being at sea." CHAP. I.] OF WILLS AND CODICILS. 5 ing 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 salutaiy 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 probate of the wills of petty officers and seamen in the king's service, and of non-commissioned officers of marines, and marines serving on board a ship in the king's service, since however repealed, and other regulations 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 testator, and to be taken as part of the same, either for the purpose of ex- plaining, or altering, or of adding to, or subtracting from, his former dispositions(r). A codicil may be annexed to the will, either actually or construc- tively. It may not only be written on the same paper, 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 [6] must 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 iox^r 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 ef- fects by his will in writing, may dispose of the residue by a nuncu- pative codicil(/). But by the same statute, as we shall presently see, such codicil shall not operate to repeal or alter a will. A written codicil respecting personal estate is authenticated in the same man- ner 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 sur- render 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, be observed, it is sufficient without any wit- ness; and till that statute required all declarations 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(?^). (r) 2 Bl. Com. 500. Swinb. Part («) Harg. Co. Litt. 114 b. note 3. 1. s. 5. TulTiiell V. Page, 2 Atk. 37. S. C. 2 (s) Onions v. Tyrer, 1 P. Wms. 311. Barnard, Ch. Kep. 9. Attorney-General & note 1. ibid. vid.Dougl. 241. note 2. v. Barnes, 2 Veni. 5!)H. Dormer v. Ellis V. Smith, 1 Ves. jim. 11, and infr. Thnrland, 2 P. Wms. 510. Harris v. 15. Ingledrew, 3 P. Wms. 90. Carey v. (0 Com. Dig. Devise (C.) Raym. As^).(2) But where a feme convert, 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(5'.)(3) If the husband be banished for life by act of parliament, the wife is entitled to make a will(r).(4) So where personal [11] property is given in trust for the sole and separate use of a married 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 aut7'e droit, in a representative capacity; 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 felons, without benefit of clergy, from the time of their conviction and at- tainder, or outlawry, which amounts to the same; for then their property is no longer at their own disposal, but is altogether for- feited(i>). 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 («) Dr. & Stud. D. 1. c. 7. 4 Bac. Stonehouse, ib. 612. 2 Bl. Com. 498. Abr. 244. Vide Rex v. Bettesworth, Rex v. BeUesworth, Stra. 891. Stra. 891. (?•) 4 Bac. Abr. 244. Countess of (o) 4 Bac. Abr. 244. in note. Fet- Portland v. Progers, 2 Vern. 104. tiplace V. Gorges, 3 Bro. Ch. Rep. 8. (s) Fettiplace v. Gorges, 3 Bro. Ch. S. C. 1 Ves. jun. 46. Rep. 8. S. C. 1 Ves.jun. 46. Tappen- (n) Gore v. Knight, 2 Vern. 535. den v. Walsh, 1 Phill. Rep. 352. Herbert v. Herbert, Prec. Ch. 44. 355. {t) Off. Ex. 87. Godolph. 1. 10, 11. {q) Ross V. Ewer, 3 Atk. 156. Jen- Vin Abr. 141. kin V. Whitehouse, 1 Burr. 431. Co- (u) Harg. Co. Litt. 133. thay V. Sydenham, 2 Bro. Ch. Rep. {v) 2 Bl. Com. 499. 4 Bl. Com. 380, 392. Stone v. Forsyth, Dougl. 707. 381.387. Bac. Abr. tit. Outlawry. 2 Vide also Cotter v. Layer, 2 P. Wms. Hale, P. C. 205. Godolph. p. 1. c. 12. 624. Duke of Marlborough v. Lord s. 8. Godolphin, 2 Ves. 75. Southby v. by a feme covert of her personal property or cHoses in act/or. in favnni- of her husband is void, thoijgh made with his consent. Hood v. Archer, 1 M'Cord's llep. 2'i5. 477. Case of Sarah A. JVewelt, 2 M'Cord's Rep. 433. (1) 1 M'Cord's Rep. 2'2G. 1 Yeates, 225. (2) 1 M'Cord's Rep. 226. (3) 4 Mason's Rep. 461, 462. (4) If'riifht V. fVright's Ex., 2 Desaus- Rep. 11 OF WILLS AND CODICILS. [bOOK I. not his goods and chattels ; for the former are forfeited only on at- tainder, llic latter on conviction(«').(l) Nor shall the will of a felo dc se, so far as it respects goods and chattels, have any operation ; for they are forfeited by [12] the act and manner of his death ; but a devise of his lands shall be effectual, for of them no forfeiture is incurred(.'r). A^ is also that of a party guilty of felony, not punishal)le with death, for he forfeits only his goods and chattels(?y). And a felon of every description may de- vise lands held in gavelkind ; for lands of this tenure are not for- feited by felony(r). Outlaws also, though merely in civil cases, arc intestable, in res- pect 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 usu- rers, and libellers, they are not precluded from making testa- ments(6) ; nor, as it seems, is a party excommunicatcd(c). An alien, with whose country we are at war, if he have not the king's licence to reside here, express, or implied, is, by our law, in- capable of making a will ; but if he have such licence, he, as well as an alien friend, may bequeath his personal estate(^).(2) They can neither of them acquire any permanent property in land. They (iv) 4 Bl. Com. 387. (a) Fitzh. Abr. tit. Descent, 16. (a-) Plowd. 261. Swimb. 106. 4 Paine v. Teap, 1 Salk. 109. Sod vid. J3ac. Abr. 247. 4B1. Com. 386. 3 Inst. Shaw v. Cuttcris, Cro. Eliz. 851. 55. (i) Godolph, p. I.e. 12. (y) 4 Bl. Com. 97. Co. Litt. 391. (c) Off. Ex. 17. (z) 2 Bl. Com. 84. 4 Bl. Com. (rf) 1 Bl. Com. 372. Wells v. Wil- 386. Lamb. Peramb. 634. Hams, I Lutw. 34. 1 Wooddes. 374. (1) By the 19th section of the 19tli Article of the Constitution of the State of Pennsylva- nia, it is provided, "tliat no attainder shall work corruption of blood, nor, except during the life of the offender, forfeiture of estate to the Commonwealth ; the estates of such per- sons as shall destroy their own lives shall descend or vest as in case of natural death, kc. " (2) By the 3d section of the Act of 23d Feb. 1791, entitled "A supplement to tlie Act entitled ' An act to declare and regulate escheats,' "it is provided that " all such persons [citizens or subjects of foreign states] shall be able and capable in law to dispose of any goods and effects to which they may be entitled witliin this state, either by testament, donation or otherwise," kc. (Purd. Dig. 8. 3 Dall. Laws, 8. 3 Sra. Laws, 4.) Acts of Assembly have been passed at different periods giving to aliens in Pennsylvania a more or less restricted right to acquire land, and to dispose of it by deed or will, (Act of 31 ^u'ff. UTS, Purd. Dig. 7. 1 Dall. Laws, 774. 1 Sm. Laws, 4G1; Act of 23d Feb. 1791; lOlh Feb. 1807, Purd. Dig. 8. 4 Sm. Laws. 3C2 ; Act of 20th March 1811, Purd. Dig. 9. 5 Sm. Laws, 211 ; Act of 22d March 1814, Purd. Dig. 9. 1 Reed's Laws, 178 ;) and by the Act of the 24th March 18iS(Purd. Dig. 9. 2 Reed's Laws, 133,) sect. 1. it is provi- ded tliat "from and after the passing of this act, it shall and may be lawful for all and every foreigner and foreigners, alien or aliens, not being the sulyect or subjects of some foreign state or power, which is or sliall be at the time or times of such purchase or pur- chases, at war with the United States of America, to purchase lands, tenements, and here- diUiments, within this Commonwealth, not exceeding five thousand acres, and to have and to hold the siimc to them, their heirs and assigns, forever, as fully to all intents and pur- poses as any natural born citizen or citizens may or can do." CHAP. I.] OF WILLS AND CODICILS. 12 may, indeed, hire, or take leases for years of houses for habitation{e), which chattel [13] interests, it seems, they may dispose of by will (/) : But the stat. 33 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 commerce, is still in force ; but in favour of aliens it has been construed very strictly(^). By Stat. 5 Geo. I. 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 warn- ing given them, shall be deemed aliens, and incapable of taking any lands, and shall forfeit all their real and personal estates; consequent- ly, 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,(l) or in his presence, and by his direction and consent(A). And a will of either species may be annulled by an express or implied revocation 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(^).(2) (e) IBI. Com. 371, 372. TCo.Rep. Jevons v. Harridge, 1 Sid. 309. Jevons 17. Harg. Co. Litt. 2 b. v. Livemere, 1 Saund. 7. Pilkington (/) Harg. Co. Litt. 2 b. note 8. v. Peach, 2 Show. 135. Bridgham v. Harg. Co. Litt. 1 Anders. 25. Frontee, 3 Mod. 94. Wells v. Wil- N. Bendl. 36. vid. liams,. 1 Salk. 46. also, Caroon's case, Cro. Car. 8. Sed {h) Stat. 29 Car. 2. c. 3. s. 6. vid. Co. Litt. 2 b. (/) 8 Co. 82. {g) Harg. Co. Litt. 2 b. note 7. vid. (1) 'Johnson v Braikford, 2 Nott Sc M'Cord, 272. Tlie word " destroying" is used in the Act of Assembij' (of South Carolina) instead of the words "burning, cancelling, and tearing" in the statute of frauds ; but the construction is the same. In Pennsylvania, im- plied, constructive, or legal revocations, among which were cancelling, obliterating, or destroying the will, subsisted as before the Act of Assembly (of 17G5) or the statute of frauds, Laivson v. Morrison, 2 Ball. Rep. 289. ; and the Act of Assembly being silent as to such revocations in law, they were proved as other matters of fact, witliout regard to the form prescribed by the act for the probate of a will. Bums v. Biams, 4 Serg. & Rawle, 297. But by the 13th and I4th sect, of the Act of 8lh April 1 SS.?, (Pamjih. Laws, 250,) it is provided, " that no will in writing concerning any real estate shall be repealed, nor shall any devise or direction therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same executed and proved in the same manner as is hereinbefore provided [sect. 6], or by burning, cancelling, or obliterat- ing or destroying the same by the testator himself, or by some one in his presence, and by his express direction," and "that no will in writing concerning any personal estate shall be repealed, nor shall any bequest or direction therein be altered, oUierwise than as hereinbefore provided in the case of real estate, except by a nuncupative will, made under the circumstances aforesaid, and also committed to writing in the lifetime of the testator, and after the writing thereof read to him, and allowed by him, and proved to be so done by two or more witnesses." (2) See Jfatlei' of J\^an jWckle, 14 Johns. Rep. 324. The case of an implied revocation. 14 OF WILLS AND CODICILS. [bOOK I. With respect to tlic revocation of a will by the act of cancelling, it is in itself an equivocal act ; and in order to make it a revocation, it must be shown quo aniino it was cancelled ; for, unless that ap- pear, it will be no revocation.(l) As, if A. were to throw the ink upon his will instead of the sand, although it might be a complete delacing of the instrument, it would be no cancellation : or, suppose A., having two wills of different 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, sup- pose A. having a will consisting of two parts, throws one uninten- tionally into the fire, where it is burnt, it would be no revocation of the devises contained in such part(A'):(2) or if A., upon a supposi- tion that he had executed a second will, according to the statute of frauds, containing 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(/).(3) And where a testator being angry with one of the devises in his will, begaii to tear it with the intention of de- stroying it; and having torn it into four pieces was prevented from proceeding further, partly by the efforts of a by-stander, who seized his arms, and partly by the entreaties of the devisee, and upon that •became calm; and having put by the several pieces, he expressed his satisfaction that no material part of the writing had been injured, and that it is no worse; upon the facts, the verdict of a jury in favour of the will was supported(7?i).(4) It is the intention, therefore, that must govern in such cases, and parol evidence is admissible to ex- plain it(7i).(5) If a will be destroyed during the lifetime of the testator, but with- out his knowledge, it will be sul)stantiated upon satisfactory proof thereof, and of its contents (o).(5) (k) Hyde v. Hyde, 1 Eq. Ca. Abr. (m) Perkes v. Perkes, 3 Barn. & 401>. 3 Cha. Rep. 155. S. C. Burten- Aid. 489. shaw V. Gilbert, Cowp. 49. 8 Vin. Abr. {ri) Burtenshaw v. Gilbert, Cowp. 146. pi. 17. 53. (0 Onions v. Tyrer, 1 P. Wms. 343. (o) Trevelyan v. Trevelyan, 1 Phill. 345. Burtenshaw v. Gilbert, Cowp. Rep. 149. 52. (1) 2 Yeates, 171. 7 Johns. Rep. 399. Semmes v. Seinmes, 7 Harr. & Johns. 388. (2) Burns v. Bums, 4 Serg. & Rawle, 295. (3) Se/nmes v. Semmes, 7 Harr. & Johns. 388. (4) See Gileses Heirs v. Giles''s Ex., Cam. & Norw. Rep. 174. (5) Burns V. Burns, \ Serg. & Rawle, 295. Havard v. Davis, 2 Binn. 406. Gileses Heirs V. Gileses Ex. Boudinot v. Bradford, 2 Yeates, 1 70. Bates v. Holman, 3 Hen. & Munf. 502. (6)2 Yeates, 171. Wilmot's Lessee v. Talbot,3ll:irr. kM'Hen.2. Or lost, Ze^-are v. .Ash, 1 Bay, 464.: and an issue will be directed, on satisfactory proof adduced, to try whether a will said to be lost, was ever in fact executed, and what were its provisions. Brent v. Dodd, (iWm. Rep. 211. GHAP. I.] OF WILLS AND GODICILS. 15 [15] In case there be duplicates of a will, one in the custody of the testator, the other not; and the testator, with an intention to re- voke his will, cancels that which is in his custody, it is an effectual cancellation of both(o). 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 relates to the dispo- sition of White Acre, the devise of Black Acre shall not be revoked by such obliteration(7;).(l) A residuary bequest was held to be cancelled by striking through with a pencil all the disposing part, leaving only the general descrip- tion, with notes in pencil in the margin, indicating alteration and a different disposition of certain articles(5').(2) Alterations. in pencil of a will, are not therefore to be taken as merely deliberative, but are to be considered as equally valid r.s if made in ink, provided it appear that the deceased intended them to take efrect(r).(3) A will may be expressly revoked by another will, or by a codicil in writing; either of which, in case it relate to land, must be exe- cuted pursuant to the statute of frauds as above 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 presence 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 declar- ing the same, is according 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 revo[16]cation should be exe- cuted in one mode, and a will or codicil originally disposing of lands should be executed in another(,s). These provisions of the statute in regard to revocation do not ex- tend to personal estate. A will of personal estate may be revoked by another will, or by a codicil, or other writing authenticated in the same manner as a will of such property(^). But by the same sta- (o) Burtenshaw v. Gilbert, Cowp. (?) Mence v. Mence, 18 Ves. jun. 54. Onions v.Tyrer, 1 P. Wms. 346. 348. S. C. 2 Vern. 742. Mason v. Lim- (r) Dickenson v. Dickenson, 2 Phill. berry, 4 Burr. 2515. S. C. Cora. Rep. Rep. 173. 451. Rickards v. Mumford, 2 Phill. (s) Ellis v. Smith, 1 Ves. jun. 11. Rep. 123. (0 Vid. Brady v. Cubitt, Dougl. 35. (n) See Sutton v. Sutton. Cowp. Doe v. Pott, ib. 690. n. 2. Onions v. 812. and Winsor v. Pratt, 2 Brod. & Tyrer, 1 P. Wms. 343. Elhsv.Sraith. Bing. 650. 1 Ves. jun. 11. (1) Pringle V. Mucpherson's Ex., 2 Desaus. Rep. 524. Jackson v. Jlollo-tvay, 7 Johns. Rep. 394. ('2) See Cogbill v. Cogbill, 2 Hen. k Munf. 467. (3) Such alterations, however, are more e(iuivocal as to intention, as persons are apt to make pencil marks for memoranda. Parkin v. Bainbridge, 3 Phill. Rep. 322. 3 16 OF WILLS AND CODICILS. [bOOK I. tutc(l) no will in writing of personal estate shall be repealed, or altered by parol, or will nunaipative, unless 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(,s).(2) Devises of customary freeholds, or of terms vested in trustees to attend the inheritance, or of sums of money primarily charged on lands, must, as we have seen, be executed pursuant to the solemni- ties required by the statute, and, consequently, fall within its pro- visions in regard to revocation(/). If a testator, in consequence of fraud, or misinformation, or mis- take in regard to a fact, as, for example, the death of a devisee, or legatee, who is living, make a new will, the former instrument shall not be revoked by the latter(?<). (3) [17] It is essential that the second will should expressly revoke, or be clearly inconsistent with the first, in respect to the subject matter of such will; for no subsequent disposition shall revoke a prior, unless it apply to the same subject(t'). It is also necessary that the second will should be subsiding 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(t6').(4) So, if the second will be effectually cancelled in the lifetime of the testator, the first will shall operate as if no other had existed; for it is the only will sub- sisting at the testator's death (a-). But the paiiicular circumstances of the cancellation and the case must be looked to, for in a late case. (s) Vid. infr. in note. Harwood v. Goodwright, (0 Brudenell v. Bough ton, 2 Atk. Cowp. 87. S. C. 7 Bro. P. C. 3-14. 272. (lu) Hyde v. Hyde, 3 Ch. Rep. 155. (w) Campbell V. Frerich, 3 Ves. jun. Lirabery v. Mason, Com. Rep. 451. 321. ■ (x) Goodright v. Glazier, 4 Burr. («) Onions v. Tyrer, 1 P. Wms. 345, 2512. (1) The 6th section of the act of assembly of 1705, is copied verbatim from the 12th section of the statute of frauds, with the exception of the number of witnesses required. By the act tlie witnesses are to be "two or more." Purd. Dig. 801. 1 Dall. Laws, 53. 1 Sm. Laws, 33. And by the sixth section of the act of 8th April, 1833, " relating to last wills and testaments," (Pamph. Laws, 249.) a will must " in all cases be proved by tlie oaths or affirmations of t). By stat. 5 Geo. 1. c. 27, British artificers going out df 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 tliem, shall be deemed aliens out of his majesty's pro- tection, and are expressly disqualified for executors. Idiots, and those \\\\o are visited with insanity, or whose intellects arc 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 oirice(t^;).(^) [35] The authority of an executor, as appears by the definition, is grounded on the will, and may be either express or implied; abso7 lute or qualified; exclusive or in common with others. He may be expressly nominated, either by a written, or by a nun- cupative will(a:). He may be constructively appointed merely by the testator's re- commending or committing to him the charge of those duties, which it is the province of an executor to perform, or by conferring on him those rights which properly belong to the oiBce, or by any other means from which 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 property after his death, and, after pay- ing his debts, shall dispose of it at his own pleasure; or declare that A. shall have the administration of the testator's goods; this alone constitutes A. an executor according to the tenor. So, where the testator, after giving various legacies, appointed that, his debts and legacies being paid, his wife should have the residue of his goods, on condition that she gave security for the performance of his will; this was held to be sufficient to make her executrix. And so where an in- fant was nominated executor, and A. and B. overseers, with this di- (u) 3 Bac. Abr. 6. 1 Bac. Abr. (i-) Wells v. Williams, Lord Raym. 5. Brocks V. Phillips, Cro. Eliz. 684. 282. Openheimerv.Levy,Stra. 1082. Watford v. Masham, Moore 431. Brandon v. Nesbett, 6 Term. Rep. 23. Richfield V. Udall, Carter, 49. 191. Bristow v. Towers, ib. 35. Villa V. Dimock, Skinner, 370. Mol- {w) 3 Bac. Abr. 7. lay, lib. 3. c. 2. s. 10. Off. Ex. 15. {x) Off. Ex. 7. 3 Bac. Abr. 28. Anon. Cro. Eliz. 142. 11 Vin. Abr. 136. '(1) In Pennsylvania, an executor or admhiistratoi- " who shall have removed from tlie state, or shall have ceased to have any known place of residence therein during tlie period of a year or more," may be removed by the Orphan's Court, on the application of any person interested. Act of 29th March 1S32, sect. 27. (Pamph. Laws, 197.) (2) The Orphan's Courts in Pennsylvania have power to remove an executor or admin- istrator who shall have been duly declared a lunatic or habitual drunkard, and to award new letters, .let of 29th March 1 832, sect. 26. ( Pamph. Laws, 1 96. ) CHAP. 11.] OP AN EXECUTOR DB SON TORT. 3o rection, that they should have the controul and disposition of the tes- tator's effects, [36] and should pay and receive debts till the infant came of age, they were held to be executors in the mean time(y).(l) His appointment may be either absolute or qualified. It is abso- lute when he is constituted certainly, immediately, and without any restriction in regard to the testator's effects, or limitation in point of time. It may be qualified, as where A. is appointed to be executor at. a given period after the testator's death; or where he is appointed executor on his coming of age, or during the absence of J. S.; or where A. and B. are made executors, and B. is restricted from act- ing 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 house- hold goods, B. in respect of 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 va[37]rious countries. So he may nominate his wife executrix during the minority of his son, or so long as she continues a widow(z). Lastly, an executor may be appointed solely, or in conjunction with others: but, in the latter case, they are all considered by the law in the light of an individual person(«). Sect. II. Of an executor de son tort — how a jmrty becomes so. Having thus treated of executors regularly constituted, I proceed 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(6). Various are the acts which constitute an executor of this descrip- tion(c), such as his taking possession of, and converting the assets to (y) 2 Bl. Com. 503. Off. Ex. 8, 9. Carte v. Carte, 3 Atk. 180. Clictham 3 Bac. Abr. 27. 11 Vin. Abr. 130. v. Lord Audley, 4 Vcs. jun. 72. Ciodolph. 83. Com. Dig. Administra- («) 3 Bac. Abr. 30. 01!. Ex. 95. tion (B.) Cro. Eliz. 48. Pickering {b) Off. Ex. 172. 3 Bac. Abr. 20. V. Towers, Ambl. 3G4. Swinb. p. 4. Swinb. 6. s. 22. No. 2. 2 Bl. Com. s. 4. 507. 11 Vin. Abr. 210. • (z) Off. Ex. 10. 12. 3 Bac. Abrl (c) 3 Bac. Abr. 21. 11 Vin. Abr. 28. 30. 11 Vin. Abr. 130, 138, 139. 205. (I) //I thcgoock of II. S. Fvij, 1 liiigK- lii'P- ^^- 37 OF AN EXECUTOR DE SON TORT. [bOOK 1. his own use(d); livino; in the house, and carrying on the trade of the dcccased(c); paying the deceased's mortgages, or' [38] other debts(l) or legacies out of them; suing for, receiving, or releasing the debts ckie to the estate{/); seizing a specific legacy without the assent of the lawful executor(,^'-);(2) entering on a lease or term for years(/i), or an estate pur autre vie{i), (which is made assets by stat. 29. Car. 2. c. 3.) especially 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 ah ex- ecutor to any action brought against him, or pleading any other plea than ne nnqiies 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(?i), were held suffi- cient, inasmuch as they are the indicia of the person so interfering being the representative of the deceased. So if J. S. be appointed by the ordinary to collect the efi'ects, and he exceed his authority, and sell any of them, even such as are perishable(o), or if he had the express direction of the ordinary for such sale, the same being ille- gal, he becomes an executor de son tort{ p). [39] So where A. the servant of B. sold goods of C, an intestate, both before and after C.'s death, in consequence of orders given by him in his lifetime, and paid tlie 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 dis- charged themselves by payment of the money which they had re- spectively received to the rightful administrator at the time when the action was commenced, or even when they pleaded, were both ad- judged liable as executors of their own wrong(y). 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 {d) 5 Co. 33 b. Off. Ex. 172. 11 (Jc) Off. Ex. 175. Vin. Abr. 210, 211. (/) 3 J3ac. Abr. 21. Godolph. 92. (e) Hooper v. Summerset, 1 Wight- (m) Padget v. Priest, 2 Terra Rep. wick, 16. 100. Stokes v. Porter, Dyer, 166 b. (/) Swinb. 6. s. 22. No. 2. Fleice 11 Vin. Abr. 212. V. Southcot, Dyer, 105. Roll. Abr. (n) 3 Bac. Abr. 24. Noy. 69. 918. (o) Off. Ex. 174. (g) 3 Bac. Abr. 21. Godolph. 91. (p) Off. Ex. 175. 11 Vin. Abr. (A) Swinb. 6. s. 22. No 2. 3 Bac. 209. Abr. 22. {q) Padget v. Priest et al., 2 Term (/) Carth. 166. Rep. 97. (1) HoiveWs Adm.y. Smith,2 M'Cord's Rep. 51G. See Stocktoji\. lVilson,3 Penns. Rep. 129. (2) Or by buying at sheriff's sale goods of the intestate, sold under an execution issued upon a judgment fraudulenUy confessed to him by the intestate, with the view to defeat creditors. Osborne v. Jlloss, 7 Johns. Rep. 161. CHAP. II.] OF AN EXECUTOR DE SON TORT. 39 time, before the expiration of which the debtor died, and the cre- ditor 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 W-(l) So by stat, 43 Eliz. c. 8, if administration by fraud be granted 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(s). [40] But there are many acts which a stranger may perform with- out incurring the hazard of being involved in such an executorship(/) ; such as locking up the goods ;(2) directing the funeral in a manner suitable to the estate which is left, and defrajj-ing the expenses of such funeral himself, or out of the deceased's eirects( ?.;) ; making an inven- tory of his property ( r;) ; advancing money to pay his debts or lega- cies(iv); feeding his cattle; repairing his houses; providing neces- saries for his children(a?); for these are offices merely of kindness and charit}^. And although, as I have stated, a party may be executor de 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).{o) Nor can there, generally speak- ing, be such an executor, when 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 pro- (r) Edwards v. Harben, 2 Term 216. Rep. 587. {v) Swinb. ibid. (s) Vin. Off. Ex. 182, 183. {w) 3 Bac. Abr. 22. Godolph. 92. {t) 3 Bac. Abr. 22. Godolph, 93, {x) Swinb. ibid. 94. ly) 3 Bac. Abr. 23, 24. Mayor of (u) Off. Ex. 174. Swinb. 6, s. 22. Norwich v. Johnson, 3 Lev. 35. S. C. No. 2. 2 Bl. Com. 507. 11 Vin. Abr. 3 Mod. 90, and 2 Show. 457. 207. Harrison v. Rowley, 4 Ves. jun. (1) Horsey v. Sinithson, 6 Ilarr. k Johns, 61. See, however. King v. Li/mmi,! Root. Rep. 104, where it was held that intermeddling with the goods of a deceased person, held by a bill of sale from the decedent, although it be fraudulent, will not make a man an executor de son tort. Wliere a person drew an order iipon his agent, who was in possess- ion of property for the purpose of selling, upon whicii the agent himself had a lien, and the order was accepted, and the drawer then died, tlie Court held, that such order was essentially an assignment for valuable consideration, and that the agcMit might sell the property, retain his debt,, and pay the order, without making himself responsible as ex- ecutor de son tort. De Jiesse v. JSTapiev et al., Exrs, 1 M'Cord's Rep. 107; by tliree judges against two. (2) Glmn v. Smith, 2 Gill k Johns. 494. (3) No intermeddling with the lands of the deceased will charge a person as executor de son tort, it being merely a wrong done to the heir or devisee. Mitclicl v. Ijiint, 4 Mass. Rep. O.'iiO. Nor can lands of an intestate be sold under a Judgment ohtaincd against an executor d<: son tori. JVIilclwt v. Jji/ul, jYass v. VnvH-wrarivgm, 7 Serg. k Rawlc, 1"J2. 40 OF THE RENUNCIATION OR [bOOK 1. perty, he may be sued as a Irospnssor by the executor or administra- tor; "but it is otherwise if, after taking such [41] possession, he claim to be executor, pay or receive debts, or pay legacies, or otherwise intermeddle in that character(z) ; for in all those cases he becomes an executor of his own wrong. Whether a man has made himself such an executor, is a question not to be left to a jnry, but is a conclusion of law resulting from the facts established in evidcncc(«). •Sect. III. Of the renunciation or acceptance of an executorship. An executor may, if he please, decline to act, biit he has no power to assign the office(Z>). On liis being cited by the ordinary, pursuant to Stat. 21 H. 8. c. 5, to come in and prove the will, if he neglect to appear, he is punishable by excommunication for a contempt(c). 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(f/): If he refuse, he cannot be compelled to [42] accept the executorship, and his renunciation is entered and recorded in the spir- itual court before the ordinary. A refusal, by any act in pais, as a mere verbal declaration to that effect, is not sufficient; but, to give it validity, it must be thus solemnly entered and recorded, and then administration with the will annexed will be granted to another(e). If the executor refuse to take the usual oath, or, being a quaker, to make the affirmation, this amounts to a refusal of the office, and shall be so recoi'ded(y ). In case the ordinary himself is nominated executor, he may re- nounce before the commissary(o-). If a party renounce in person, he takes an oath that he has not in- termeddled in the effects of the deceased, and will not intermeddle therein with any view of defrauding the creditors. But he may re- nounce by proxy, and then the oath is dispensed with. An executor cannot in part refuse; he must refuse entirely, or not at all(A.). After such refusal, and administrations granted, the party is inca- pable of assuming the executorship(/) during the lifetime of (2) 3 Bac. Abr. 22. 5 Co. 33 b. 198. Swinb. C. s. 12. Roll. Abr. 907. Anon. Salk.313.pl. 19. ll.Vin. Abr. (/) 4 Burn. Eccl. L. 213. Rex v. 212. Raines, Ltl. Rayra. 363. (a) Padget v. Priest, 2 T. Rep. 99. (g) Ibid. 38. (6) 3 Bac. Abr. 42. (A) H Vin. Abr. 1.39. Anon. Brownl. (c) Off. Ex. 37. Vid. infr. 82. Fooler v. Cooke, 1 Salk. 297. Id) Broker v. Charter, Cro. Eliz. 92. (/) Swinb. 6. s. 12. 3 Bac. Abr. 42, (e) Off Ex. 38. 4 Burn. Eccl. L. 43. Off. Ex. .39. CHAP. II.] ACCEPTANCE ON AN EXECUTORSHIP. 43 [43] such administrator; l)ut, after the death of the administrator, the executor may retract his renunciation, however formally made; but if administration be committed in consequence merely of his failure to appear on the above-mentioned process, he has a right, at any future time, even in the administrator's lifetime, to come in and prove the will(i?:). ^ , 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(77i); 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(n). The acts which amount to an administration are all such as indi- cate an election of the executorship(o), and within this class all such acts as constitute an executor de son tort are of course comprehend- ed (;?). Hence, it hath been adjudged, that if he take the [44] goods of a stranger, under an idea that they belonged 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 intending to administer them, this was held to be an elec- tion of the office(g). (1 ) But it is otherwise if theexecutor take the testator's goods on a claim of property in them himself, although it afterwards appear that he had no right, since such claim is expressive of a different purpose from that of administering as executor(r). So, if an executor sequester goods in the character of a commissary, that is no assent to the executorship (5). But if there be two executors, and one of them have a specific lega- cy bequeathed to him, and take possession of it without the consent of his co-executor, such act amounts to an administration(^). So, if an executor have refused before the ordinary, 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 enforced to prove(?i). (k') Off. Ex. ibid. Com. Dig. Admon. 11 Vin. Abr. 205. (B. 4.) irifr. (/?) 3 Bac. Abr. 44. Roll. Abr. 917. (V) Swiub. 6. s. 12. 1 Ventr. 335. Swinb. p. 6. s. 22. 11 Vin. Abr. 207. (7) Holl. Abr. 917. 11 Vin. Abr. 20G. (m) 4 Burn's Eccl. L. 198. Swinb. (r) 3 Bac. Abr. 44. Roll. Abr. 917. 6. s. 12. Wankford v. Wankford, (s) Roll. Abr. 917. U Vin. Abr. Salk. 301. 304. 307. 20G. (n)Vid. infr. (<) Roll, Abr. 917. 11 Vin.Abr.20G. (0) 3 Bac. Abr. 44. Roll. Abr. 917. (<0 ^^- K-^- -10. (1) So taking possession and selling part of the personal estate of the testator, and pay- ing some of Ilia debts, arc proof of election to act as executor, and render a person chargeable as such. Van Home v. Fonda, 5 Johns. Cha. Kep. 388. 44 OF EXECUTOR BEFORE PROBATE. [bOOK I. If there be several executors, they must all duly renounce, before the administration with the will annexed can be granted(w). [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 administer, and although they never acted during the lives, they may assume the execution of the will after death, of their co-executors, and shall be preferred before any executor appointed by ihcm(w). And if administration be committed before a refusal by the surviving executor, such ad- ministration will be void(.r). If an executor of an executor intermeddle in the administration of the effects of the first testator, he cannot refuse the administration of the effects of the latter; but he may take upon himself the latter, and refuse the formcr(3/). Sect. IV. Of an executor before probate of the will. As a consequence of the principle that an executor derives all [46] his title from the will, his interest is completely vested at the instant of the testator's death; and therefore before probate, that is, before the will is authenticated in the spiritual court, and a copy of it de- livered to him, certified under the seal of the ordinary, he may law- fully perform almost every act which is incident to the ofiicc(r). Not to mention the funeral, he may make an inventory, and possess himself of the testator's effects(«): he may enter peaceably into the house of the heir, and take specialties, and other securities for the debts due to the deceased (6), or remove his goods(c): he may pay or take releases 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 of the testator(e): he may assent to or pay legacies(/): he may enter on the testator's term for years(^): 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 (f) Roll. Abr. 907. Com. 280. Smith v. Milles, 1 Term \w) 5 Co. 28. 9 Co. 36 b. Anon. Rep. 480. 3 Bac. Abr. 52. Off. Ex. Dyer, IGO. House v. Lord Petre, 2 34. 11 Vin. Abr. 202. Wankford v. Saik. 311. Mead v. Lord Orrery, 3 Wankford, 1 Salk. 299. Atk. 239. Robinson v. Pett, 3 P. (a) Off. Ex. 34. Wms. 251. vid. also Rex v. Simpson, (i) Ibid. 34. Burr. 14G3. S. C. 1 Bl. Rep. 45G. 11 (c) Ibid. 92. Vid. infr. Vin. Abr. 55. 66. \(l) Ibid. 35. (x) Wankford v. Wankford, Salk. (e) Ibid. 35. 308. (/) Ibid. 35. 11 Vin. Abr. 201. (y) Shep. Touchst. 464. (i,0 11 Vin. Abr. 203. \z) Com. Dig. Admon. B, 9. Plowd. CHAP. II.l OF EXECUTOR BEFORE PROBATE. 46 before probate, since,, in order to assert such claims in a court of jus- tice, he must produce the copy of the will, certified under seal as above-mentioned, or as it is sometimes styled, the letters testamen- tary;, but when produced, [47] they shall have relation to the time of suing out the writ(A). So, if in the same right he file a bill in equity, a subsequent probate shall be equally available(z); and, ac- cording to a late case, it seems sufficient if it be obtained at anytime before the hearing(A'). So, an executor may before probate arrest a debtor to the estate, and shall be justified in that act by the relation of the subsequent grant(/). But such relation 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(m). An executor may also maintain actions on his own possession, as trespass, detinue, or replevin, for goods or cattle of the testator taken after the testator's death(n): so, if he be entitled as executor to the next presentation to a living, and it become void, he, or his grantee, may maintain a qiiare impedit for it before probate(o). [48] So he may maintain actions, as trespass or trover, for sdch of the effects as never came into his actual possession, taken or convert- ed after the testator's decease(/?). 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(y), or for money due to the testator, received by the defendant after the testator's death(r). In all such cases, the causes of action arise subsequent to the attaching of the plaintiff" 's right, and therefore he need not describe himself as executor(;s), and consequently no profert of the letters testamentary is requisite. (1) So, where a re- version for years is vested in him in that character, he may avow (h) 11 Vin. Abr. 202, et seq. Com. (n) 11 Vin. Abr. 203. Off. Ex. 36. Dig. Admon. B. 9. Off. Ex. 3G. 3 (o) 3 Bac. Abr. 53. Off. Ex. 36. Bac. Abr. 53. 9 Co. 38. Harg. Co. Com. Dig. Pleader, O. 14. Smithley Litt. 292 b. V. Chomeley, Dyer, 135. (i) Humphreys v. Ingledon, 1 P. {p) 3 Bac. Abr. 53. Frederick v. Wras. 752. Hmnphreys v. Hum- Hook, Carth. 154. phreys, 3 P. Wms. 351. {q) Off. Ex. 36, 37, in note 1. Anon. {k) Patten, executrix, v. Panton, Ventr. 109. Bollard v. Spenser, 7 1793, cited 3 Bac. Abr. 53. Term Rep. 358. Harris v. Hanna, Ca. (/) Off. Ex. Suppl. 103. Roll. Abr. Temp. Hardwicke, 204. Cockerill v. 917. Kynaston, 4 Term Rep. 277. (m) 1 1 Vin. Abr. 204. 3. Bac. Abr. (r) Nicholas v. Killigrew, Lord Ray. 53. Com. Dig. Admon. B. 9. Dun- 436. comb V. Walker, 3 Lev.. 57. Skinn. (.s) Smith v. Barrow, 2 Term Rep. 22. 87. Cook's Bank. L. 4th edit. 94. 477. (1) In all cases of promises, express or implied, made to or by an executor or administra- tor after the death of the testator or intestate, an action lies by or against the executor or administrutor personally. Grier v. Huston, 8 Serg. & Rawle, 402. See Cobum V. Amarl, 3Mass. ilep. 318, SMass. llcp. I'JO. . ' 48 OF THE PROBATE. [bOOK I. without probate for the rent which accrued after the testator's death, but not for such as accrued beforc(/). Such arc the acts which an executor, although the will has not received the sanction of the spiritual court, is warranted in perform- ing, 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 he sued at law, or in equity, by the deceased's creditors, whose rights shall not be impeded by his delay, and to whom, as executor dejure or cU facto, he has made himself res])on- sible(t'). If an executor die before probate, he is considered in point of law as intestate in regard to the executorship(i6'), although he have made a will and appointed executoi's; 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 execu- tor for the time subsequent, and A. prove the will; after the time is expired, B. may sue without another probate(a.'). Sect. V. Of the probate. — Jurisdiction of granting the same — of bona notabilia. I PROCEED now to consider the probate of a will. The jurisdic- tion of proving wills consequent, as will be hereafter shown, [50] on the power of granting administrations, regularly belongs to the bishop of the diocese, or the metropolitan of the province, in which the par- ties resided at the time of their death(3/). But if a testator die with- in some peculiar jurisdiction, which is either regal, archiepiscopal, episcopal, or archidiaconal: in each of these the owner hath of com- mon right the power of granting probate. This privilege is founded on the notionof an original composition between such owner and the ordinary of the diocese for that purpose(z). Courts baron, which have had the probate of wills from time im- memorial, and have always continued that usage, are also entitled to this species of jurisdiction; but they can claim it only by prescrip- tion, (c) (0 Wankford v. Wankford, 1 Salk. Vin. Abr. 68. 90. 302. 307. Bollard v. Spenser, 7 Term {x) Com. Dig. Admon. B. 9. Ca. Rep. 359. Ch. 265. 11 Vin. Abr. 56. {u) Off. Ex. 35. 11 Vin. Abr. 204. {y) 3 Bac. Abr. 34. 39. Com. Dig. Anon. Dyer, 367. Wankford v. Wank- Admon. B. 6. 4 Burn's Eccl. L. 188. ford, 1 Salk. 306, 307. {z) 3 Bac. Abr. 39. Denham v. (y) Com. Dig. Admon. B. 9. Plowd. Stephenson, Salk. 40, 41. 11 Vin. Com. 280 b. fl Vin. Abr. 205. Dul- Abr. 77. wich College v. Johnson, 2 Vern. 49. (o) 3 Bac. Abr. 39. Off. Ex. 44. Q/r. Ex. 37. Denham V.Stephenson, Salk. 41. At. («;) Off. Ex. Suppl. 74, 75. 182. IT kins v. Hill, Cowp. 286. CHAP. II.] OF THE PROBATE. 50 By custom also the probate of wills of burgesses belongs to the mayors of some boroughs in respect of lands devisable within the same; yet, as to personal property, the will must be proved before the ordinary(6). But in general a probate can be granted only in the court of the or- dinary, 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 before the bishop, or his surrogate, and prove the will. But if the testator hath left bona notabilia, or effects to the value established by 92 canon Jac. 1. namely, a hundred shillings, in two distinct dioceses, or in several peculiars within the same province; then the will must be proved before the metropolitan, 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 prerogative office, of the provinces of Can- terbury and Yoi'k(^). So if there be bona notabilia in those seve- ral 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 dio- ceses of one province, and in one diocese only of the other; in re- spect to the former, tfie archbishop shall have the probate; in respect to the latter, the particular bishop(y). [52] So if the testator, not in itinere, die in one diocese, not hav- ing any goods there, but having bona notabilia in another diocese, the archbishop shall grant the probate(5-). • 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 metropoli- tan, inasmuch as peculiars are exempt from ordinary jurisdiction(A). But whei-e the testator dies possessed of goods in the diocese of an archbishop, and in a peculiar of the same diocese, there must be seve- ral probates: the archbishop 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 notabiHa[k); but if a- man have two houses in different dioceses, and resides chiefly at one, but sometimes goes to the other, and being there for a day or two, dies, {b) 3 Bac. Abr. 40. Off. Ex. 45. 15. Off. Ex. 48. Off'. Ex. Suppl. 10. (/) Off. Ex. 48. (c) Bl. Com. 509. 3 Bac. Abr. 3G. (o-) 3 Bac. Abr. 36. Roll. Abr. 909. Com. Ui(T. Admon. B. 3. Off. Ex. 45. 4 Burn. Eccl. L. 189. 11 Vin. Abr. 48. 4Burn. Eccl. L. 191. Roll. Abr. 80. 909. 11 Vin. Abr. 79. Swinb. p. G. (Ji) 4 Burn. Eccl. L. 191. 11 Vin. s. 11. Abr. 80. Gibs. Cod. 472. Swinb. p. {d) 2 Bl. Com. 509. 11 Vin. Abr. 6. s. 11. 56. pi. 7. Vin. Harg. Co. Litt. 94. (0 4 Burn Eccl. L. 191. Gibs. (e) 3 Bac. Abr. 30. Burston v. Cod. 472. Cro. El. 719. Vid. 1 Bl. Ridfcy, 1 Salk. 39. Shaw v. Slou<>h- Coin. 3K0. ton, 2 Lev. 80. 11 Vin. Abr. 70. pi. (A) Vid. Off. Ex. 45 & Suppl. 27. G 52 OF THE PROBATE. [bOOK I. leaving no hnna notahUia in the first mentioned house, probate shall be granted by the bishop of the diocese in whicli the testator died, for he was commorant there, and not there as a travel]cr(/). [53] If there be bona nolahilla in England and Ireland, several probates shall be granted by the archbishop or bishop in England, and the archbishop or bishop in Ireland, as the case may require(??i). The probate of a bishop's will, although he had goods only in his own jurisdiction, belongs to the arch])ishop of the province(?i). If the testator died beyond sea, although the goods be in one diocese only, the archbishop is to grant tlie ])robate(o). If the probate be granted by a bishoj), or inferior jutlge, when it does not belong to him, it is void; l)ut if it be granted by the metropolitan when it does not belong to him, it is only voidable, and is of force till rever- sed by sentence, for he hath jurisdiction over all the dioceses within his province(7;). 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 notabilia are rated at a greater sum, as in London, where by composition they are to amount to ten pounds(•) I^i 59 OF THE PROBATE OF THE [bOOK I. proved, unless process have first issued to call in the widow, or next of kindred to the. deceased," to the end they may coptest the same if they plcase(.?-). (1) And (as we may(?y) remember) no will in wri- ting concerning any goods or chattels, or personal estates, shall be re- pealed, nor shall any clause, devise, or bequest therein be altered or changed by any words, or will by word of mouth only; except the samebe in the life of the testator committed to writing, and after the writing thereof read to the testator, and allowed by him, and proved to be so done by three witnesses at the least. [60] Sect. VII. Of the prohate of the loills of seamen and marines. In regard to the making and probate of the wills of petty officers and seamen in the king's service, and of non-commissioned officers of marines, and marines serving on board a ship in the king's ser- vice, by the statute 55 Geo. 3. c. 60, above referred to(r), no will made by any petty officer or seamen, non-commissioned officer of marines or marifie, before his entry into his majesty's service, shall be valid to pass or bequeath any wages, pay, prize-money, bounty- money, or other allowances of money, to accrue due for or in respect of the service of any such petty officer or seaman, non-commissioned officer of marines or marine, in his majesty's navy; nor shall any will made or to be made by any such petty officer or seaman, non- commissioned officer of marines or marine, who shall be or shall have been in the service of his majesty, his heirs or successors, or at any time since, be good, valid, or sufficient to bequeath any such wages, &c. due or to grow due to any such petty officer, &c. unless' such will shall contain the name of the ship to which the person executing the same belonged at the time, or to which he last belonged; and also a full description of the degree of relationship or residence of the person or persons to whom or in whose favour, as executor or exe- cutors, the same shall be granted or made; and also the day of the month and year, and the name of the place when and where the same shall have been executed; nor shall any such will be good, valid, or sufficient for the purposes aforesaid, unless the same shall, in the several cases hereinafter specified, be executed and attested in the manner hereinafter mentioned; that is to say, in ca^e any such will shall be made by any such petty officer, &c. at any time or times (x) Vid. supr. 4. • {-) Vid. supr. 5. («/) Vid. supr. 16. (1) The act of 170:), sect. 5, contitins the same provision, T-erZ-flr/w, (Pui-d. Dig. 801. 1 Dall. Laws, 5,?. 1 Sm. Laws, 3.3), and the act of 8th April, 1833, (Pamph. Laws, 249), lias made no alteration therein. CHAP. II.] WILLS OF SEAMEN. 60 whilst they shall respectively belong to and be on board of any ship or vessel belonging to his majesty, his heirs or successors, as part of the complement thereof, or be borne on the books of any such ship or vessel as a supernumerary, or as an invalid, or for victuals only, un- less such will shall be executed in the presence of and attested by the captain or other officer having the command of such ship or vessel, or (during the absence of such captain or other officer on leave or on separate service) by the commanding officer of such ship or vessel for the time being; and who, in that case, shall state at the foot of such attestation the absence of such captain or other commanding of- ficer from such ship or vessel, at the time of the execution of such will, and the occasion thereof; or in case of the inability of such captain or commanding officer by reason of wounds or sickness, to attest any such will, then, unless such will shall be executed in the presence of and attested by the first lieutenant or other officer next in command of such ship or vessel, who shall state at the foot of such attestation the inability of such captain or commanding officer to attest the same: in case any such will shall be made by any such petty officer, &c. in any of his majesty's hospitals, or on board of any of his majesty's hospital ships, or in any military or merchant hospital, or at any sick quarters either at home or abroad, unless such will shall be exe- cuted in the presence of and attested by the governor, physician, surgeon, assistant-surgeon, agent, or chaplain of any such hospital or sick quarters of his majesty, or by the commanding officer, agent, physician, surgeon, assistant-surgeon, or chaj^lain, for the time being of any such hospital ship, or by the physician, surgeon, assistant-sur- geon, agent, chaplain, or chief officer of such military or merchant hospital, or other sick quarters, or one of them: in case any such will shall be made by any such petty officer, &c. on board of any ship or vessel in the transport service, or in any merchant ship or vessel, unless the same shall be executed in the presence of and attested by some commission or warrant officer, or chaplain in his majesty's navy, or some commission officer, or chaplain belonging to his majes- ty's land forces or royal marines, or the governor, physician, sur- geon, assistant-surgeon, or agent of any hospital in his majesty's naval or military service, who may happen to be then on board of such transport or merchant vessel, or by the master or first mate of such transport or merchant vessel, or one of them: in case any such will shall be made by any such petty officer, &c. after he shall have been discharged from his majesty's service; unless the same (if the party making such will shall then reside in London or Westminster, or within the bills of mortality) sliall be executed in the presence of and attested by the inspector for the time being of seamen's wills, or his assistant or clerk; or unless the same (if the party making such will shall then reside at or within the distance of seven miles from any port oi' place where the wages of seamen in his majesty's ser- vice are paid) shall be executed in the presence of and attested by one of the clerks in the office of the treasurer of the navy resident at such port or place; or unless the same (if the party making such will 60 OP THE, PROBATE OP TflE [pOOK I. shall then reside at any other place in Great Britain or Ireland, or in the islands of Guernsey, Jersey* Alderney, Sark, or Man) shall be executed in the presence of and attested by one of his majesty's jus- tices of the peace, or by the minister or officiating minister or curate of the parish or place in wliich such will shall be executed; or unless the saipe (if the party making such will shall then reside in any other part of his majesty's dominions, or any colony, plantation, set- tlement, fort, factory, or any other foreign possession or dependency of his majesty, his heirs or successors, or any settlement within the charter of the East India Company) shall be executed in the pres- ence of and attested by some commission or warrant officer or chap- lain of his majesty's navy, or commission officer of royal marines, or the commissioner of the navy, or naval storekeeper at one of his majesty's naval yards, or a minister .of the church of England or Scotland, or a magistrate or principal officer, residing in any such island, colony, plantation,' settlement, fort, factory, or other possess- ion or dependency of his majesty, or settlement within the charter of the East India Company; or (if the party making such will shall then reside at any place not within his majesty's dominions, or any settlement, fort, factory, or other foreign possession or depend- ency of his majesty, his Iieirs or successors, or any settlement within the charter of the East India Company), unless the same shall be executed in the presence of and attested by the British consul or vice-consul, or some officer having a public appointment or commis- sion, civil, naval, or military under his majesty's government, or by a magistrate or notary -public, of or near the place where such will shall be executed. Every will, which hath been, or which at any time or times here- after shall be made by any such petty officer, &c. at any time or times Avhilst they were or shall be respectively prisoners of war in parts beyond the seas, are and shall be good, valid, and sufficient; provided such will shall have been executed in the presence of and attested by some commission or warrant officer of his majesty's navy, commis- sion officer of royal marines, physician, surgeon, assistant-surgeon, agent or chaplain to some naval hospital, or some commission officer, physician, surgeon, assistant-surgeon, or chaplain of the army, or any notary-public. But no will of any seaman, contained, printed, or written in the same instrument, paper, or parchment, with a letter of attorney, shall be good or available in law, to any intent or purpose whatever. And all captains and commanders of ships shall, upon their monthly muster books or returns, specify which of the persons mentioned in the said returns have made or granted any will during that month or other space of time from the preceding return, by inserting the date thereof opposite the party's name, under the head of "Will." But before any such will shall be attempted to be acted upon or put in force, the same shall be sent to the treasurer of the navy, at the navy -pay office, London, in order that the same may be examined by the inspector of seamen's wills, who, or his assistants, shall imme- CHAP. II.] WILLS OP SEAMEN. 60 diately on receipt of every such will, duly register the same, in a numerical and alphabetic manner, in books to be kept for that pur- pose, specifying the date of such will, the place where executed, and the name and addition, names and additions of the person or persons to whom or in whose favour, as executor or executors, the same shall have been granted or made; and also the names and additions of the witnesses attesting the same, and shall mark the said wills, with numbers corresponding with the numbers made on the entries thereof in the said books; and the said inspector sha:ll take all due and pro- per means to ascertain the authenticity of every such will; and in case it shall appear to him, or he shall have reason to suspect that any such will is not authentic, he shall forthwith give notice in wri- ting to the person or persons to whom or in whose favour such will shall have been made, as executor or executors, that the same is stopped, and the reason thereof, and shall also report the same to the treasurer or paymaster of the navy, and shall enter his caveat against such will, which shall prevent any money from being had and re- ceived thereon, until the same shall be authenticated to the satisfaction of the said treasurer or paymaster; but if upon such examination and inquiry it shall appear to the said treasurer, paymaster or inspector, that such will is authentic, the said inspector, or hiS' assistant, shall sign his name to such will, and also pat a stamp thereon in token of his approbation thereof. When any petty officer, &c. who shall have belonged to any ship or vessel of his majesty, his heirs or successors, has died, or shall hereafter die, having left a will or testament appointing any execu- tor or executors therein, no pay, &c. which may have been due or owing to such testator at the time of his death, shall be paid over to or recovered by such executor or executors, except upon the probate of such will, to be obtained in the following manner; videlicet, after such will shall have been so transmitted, registered, inspected and approved, as hereinbefore directed, the inspector of seamen's wills shall issue, or cause to be issued, to the person named and described as executor or executrix of such will, a check in lieu thereof, contain- ing directions to return the same, upon the testator's death, to the treasurer or paymaster of his majesty's navy; the form of which check is set forth in the act. And in the event of the testator's death, the minister, officiating minister, or curate of the parish in which the executor or executrix may then reside, shall, upon being applied to for his signature to the certificate at the foot of the check, examine such executor or execu- trix, and such two inhabitant householders of the parish, as may be disposed to sign the first certificate on the check, touching the claim of the executor or executrix; and being satisfied of his or her being the person described as executor or executrix in the check, the execu- tor or executrix shall subscribe the a])i)lication subjoined to the check (the blank therein being first filled up agreeably to the truth), in the presence of the said minister, oificialing iniiiistcr, or curate; and the said two inhabitant householders shall also subscribe the said first cer- 7 60 OF THE PROBATE OF THE [bOOK I. tificatc on the check (the blanks therein being first filled up agreeably to tlic truth) in the like presence; for which res])ective purposes the executor or executrix, and the householders, shall attend at such time and place, times and places, as the minister, ofllciating minister, or curate shall appoint; and the minister, ofliciating minister, or curate shall sign the second certificate on the check (Ihe blanks therein, and in the description thereunto subjoined, being fi''st filled up agreeably to the truth); and the executor or executrix shall, before his or her examination, or his or her signing the said application, pay to the minister, officiating minister, or curate, a fee of two shillings and six pence for his trouble on the occasion; and the application and certifi- cates, being completed according to the directions therein given, shall be transmitted by the minister, ofiiciating minister, or curate, by the general post, addressed to the treasurer orto the paymaster of the navy, London; aod the original will having been stamped and passed in the manner directed by the act, the inspector of seamen's wills, or his as- sistant, shall note thereon the amount of wages due to the deceased, as calculated pn the search sent to the inspector from the navy office, and shall forward such will to a proctor in Doctors' Commons, in order to his obtaining probate thereof: And in case the executor or executrix shall not reside within the bills of mortality, the inspector shall also forward to such proctor, a letter addressed to the minister, in the form or to the eflect stated in the act. And such proctor having received the will and the letter so writ- ten by the inspector (in case such letter shall be necessary), shall im- mediately sue out the previous commission or requisition, or take such other proper and legal steps as may be necessary towards en- abling the executor or executrix, so applying for probate of the will, to obtain the same; and shall enclose in the letter such previous com- mission or requisition, or other legal or necessary instrument, with instructions for executing the same, and also a copy of the will; and the letter and enclosures shall be forwarded to the minister by the general post, agreeably to the address put thereon by the inspector of seamen's wills. The minister immediately upon the receipt of such previous com- mission or requisition, or other instrument, is to take such steps as to him may seem proper or necessary for procuring the execution of such previous commission or requisition, or other instrument, direct- ed by the proctor employed in Doctors' Commons to be executed, and the same being so executed, he is to transmit the same to the treasurer or to the paymaster of his majesty's navy, London; and if the person applying for such probate of will, shall be and reside at a distance from the place where wages, prize-money, or other allow- ances of money due to the deceased are payable, he is to specify and describe tlie receiver general of the land tax, collector of the customs, collector of the excise, or clerk of the cheque, who may be most con- venient or nearest to the person applying for such probate; and the said treasurer, paymaster, or inspector, shall, immediately upon re- ceipt thereof, send the said previous commission or requisition, or CHAP. II.] # AVILLS OF SEAMEN. 60 64 other legal instrument, executed by the person applying for the pro- bate as aforesaid, to the aforesaid proctor in Doctors^ Commons, who, in pursuance thereof, is forthwith to sue out and procure such probate. And if any proctor or officer of the ecclesiastical court, shall take more for his charges than the sums by the act directed to be taken in the different events therein specified, he shall forfeit fifty pounds; or if he shall be aiding or assisting in procuring probate of a will, or letters of administration, for the purpose of enabling any person to receive such wages, prize-money, or allowance of money, otherwise than in the manner prescribed by these' acts, such proctor or other officer shall forfeit five hundred pounds, and for ever after be inca- pable of acting in any capacity in any ecclesiastical court in Great Britain. . [65] Sect. VIII. Of the probate under sj)ecial circumstances. If the executor be infirm, or live at a distance, it is usual to grant a commission or requisition to the archbishop, or bishop, in England or Ireland (as the case may be), or if in Scotland, the West Indies, or other foreign parts, to the magistrates or other competent autho- rity, to administer the oath to be taken previous to granting probate of the will(«). Otherwise, if the executor do not within a reasonable time appear voluntary, he may, as 1 have already mentioned, pursuant to the statute 21 H. S. c. 5, \b) be cited by the ordinary ex officio to prove or refuse the testament. In case of non-appearance on the process, he may be excommunicated, and the goods of the deceased sequestered until the probate(c); or administration with the will an- nexed may be granted, in pain of his contumacy, provided an inti- mation to that efiect be contained in the process. But the practice of issuing such citations is now become obsolete, unless at the suit of the parties interested: if, however, the [66] execu- tor act, and neglect to take probate within six months after the death of the testator(f/), by the above-mentioned statute of 37 G. 3. c. 90, he incurs the penalty of fifty pounds. On the other hand, the ordinary is bound to grant probate of the will: and if the executor accept the office, and claim the probate, in case of the ordinary's refusal to grant it, a writ of mandamus may issue from the court of King's Bench to compel him(e): for although the spiritual court is to determine whether there be a will or not, yet, if there be a will, the executor has a temporal right, nor siiall any (c) Vide 4 Burn. Eccl. L. 208. {d) Supr. 43. lb) Supr. 41. (e) 4 Uurn. Ecel. L.204. (c) Vide i Burn. Eccl. L. 204. 06 OF THE PROBATE UNDEIB [bOOK I. terms be imposed on him except such «is the will prcscribes(/'). But if the will be litigated, the Ijishop may, in his return to the writ, state that a suit is depending bgfore him in regai-d to the same, and not3-et determined. And such return will be suflicient(^). This jurisdiction the metropolitan or ordinary may exercise either himself, or by his official; for it is merely a ministerial act, and con- cerns him not in his spiritual oapacity(A). The power of granting probates is not local, but is annexed to the person of the archbishop or bisliop; and therefore a bishop, or the commissary of a bishop, while absent from his diocese, may [67]. grant probate of wills respecting property within the same; or if an archbishop or bishop of a province or see in Ireland happen to be in England, he may grant probate of wills relative to effects within his province or diocese(/). If the see be vacant, or in case of the suspension of the bishop or arc]il)ishop, the dean and chapter are to grant the probate(^). The proving of a bishop's will, although he left goods only within his own jurisdiction, belongs to the archbishop(/). If there be several executors, and one take probate, he takes it with a reservation to the rest. If another apply for that purpose, an engrossment of the original will is to be annexed to the second pro- bate in the same manner as to the first, and in the second grant the first grant is to be recited. And so of the rest. And this is styled a double ])robate(7;«). Where several executors are appointed, as formerly mentioned(n), with separate and distinct powers, yet, as there is but one will, one probate shall be sufficient(o). [68] Where probate of the will of a married woman is granted to her executor, if he be not her husband, it is limited to the property over which she had a disposing power: and the instrument from which such power is derived must be produced; unless the husband, either in person or by proxy, consent to a general probate's being granted to her executor. If a will be limited to any specific efiects of a testator, the pro- bate shall also be limited, and an administration cseteroriim granted. The interest vested by the will of the deceased in the executor may, if he take out probate^ be continued and kept alive by the will of the same executor, so that the executor of A. 's executor is to all intents and purposes the executor and representative of A. himself(/?), (/) Rax V. Raines, Ld. Raym. 361. Case, Lutw. 30. Marriott v. ^larriott, Stra. 672. (/) 1 1 Vin. Abr. 74. 4 Inst. 335. {<^) Sir Richd. Raine's Case, Lord Supr. 53. Raym. 202. Rex v. Hay, Burr. 2295. (w) 4 Burn. Eccl. L. 201. 4 Burn. Eccl. Law, 205. («) Vid. supr. 36. (A) 3 Bac. Abr. 39. Archbishop of (o) 3 Bac. Abr. 30. Off. Ex. 13. Canterbury V. House, Cowp. 140. (/>) 2 Bl. Com. 500. Com. Dig. (0 3 Bac. Abr. 39. 11 Vin. Abr. Admon.B.G. 11 Vin. Abr. 63. 90. 107. 78. Cro. Car. 53. Off. Ex. Suppl. 140. Plow. 525. {k) 3 Bac. Abr. 39. Roll. Abr. 908. Shep. Touch. 464. II Vin. Abr. 74, 75. 77. Young v. CHAP. II.] SPECIAL CIRCUMSTANCES. 68 and may bedirectly so named in legal proceedings(y). For the power of an executor is founded on the special confidence and actual ap- pointment of the deceased. vSuch executor, therefore, may transmit that power to another in whom he has equal confidence. And, so long as the chain of representation is unbroken by any intestacy, the ultimate executor is the representative of every preceding testator,in however numerous a succession. Nor is a [69] new probate of the original will in any of the subsequent stages requisite(r). If there be several co-executors, and they all prove, the interest goes only to the executor of the last survivor; and although such sur- vivor refused to prove in the lifetime of the other executors, he may take out probate after their death; and in that case the interest will be equally transmitted to his executor. But if such surviving executor renounce after their death, administration shall be granted, and then his executor will have no title to the original executorship(5). If A. appoint B. and C. his executors, and die, and B. make J. S. his executor, and die, and afterwards C. dies intestate; the executor of B. shall not be the executor of A., because the executorship vested solely in C. as survivor; and as he died intestatCj administration must be taken out to A.(/). Wills which concern the personal estate only, are subject to the jurisdiction of the ecclesiastical courts(t<). Where the will respects lands merely, the spiritual court ought [70] not to grant probate; and if there be a suit to compel it, a pi'ohibition will lie(y). But when the will is of a mixed nature, that is, relates both to real and jDersonal property, the probate of it shall be entire in the spiritual court(^^;). A will may be proved with a reservation as to a particular lega- cy. 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(a:). The will of a party who has been long absent from this country may be proved, if he be generally understood to be dead, and the executor will take upon himself to swear that he believes him to be so(y). If the executor named in the will be unknown or concealed, ad- ministration may, after due process, be granted till he appear and claim the probate(z). (y) Com. Dig. Admon. G. 1. Pow- Bret, Cro. Car. 396. Habergham v. ley and Sear's Case, Leon. 275. Vincent, 2 Ves. jun. 230. (r) Wankfordv. Wankford, 1 Salk. (w) Nctter v. Bret, Cro. Car. 396. 309. 11 Vin, Abr. 57.60. 117. Partridge's CO II Vin. Abr. 68, 69. 114. Wank- Case, 2 Salk. 552. 3 Salk. 22. ford V. Wankford, 1 Salk. 307. House (x) 1 Burn. Eccl. L. 209. Plume V. V. Lord Petre, 311. Pawletv. Freak, Beale, 1 P. Wms. 388. Hard. 111. Com. Dig. Admon. B. 1. (y) Off. Ex. Supp. 63. Swinb. (0 U Vin. Abr. 88. Off. Ex. 101. part 6. s. 13. (w) 4 Burn. Eccl. L. 195. (z) 4 Burn. Eccl. "L. 202. Roll. (v) 4 Burn. Eccl. L. 195. Netter v. Abr. 907, and vide infr. 71 OF TTIE PROBATE, 6iC» [rOOK I. [71] If the will be lost, two witnesses, superior to all exception, who read the will, jirovc its existence after the testator's death, re- member its contents, and depose to its tenor, are sufficient to estab- lish it(«). 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(Z»). A will is to be construed by the court without regard to the in- structions given for preparing it(c). If the testator resided in Scotland, and left effects there and in England, the will is proved in the first instance in the court of great sessions in Scotland, and a copy duly authenticated being transmit- ted hither, it is proved in the prerogative court, and deposited as if it were an original will. So in such case, if the testator resided in Ireland, the will is proved in the spiritual court of that country; or if in the East or West In- dies, in the probate court there, and a copy transmitted, proved, and deposited in the same manner. Where the testator was resident in England, not merely as a vis- itor, and has left property in the plantations, the judge of probate [72] in the plantations is bound by a grant of probate by the pre- rogative 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(e).(l) But if the effects were all abroad, and the will be proved according to the custom of the coun- try 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(/). If a will be in a foreign language, the probate is granted of a trans- lation of the same by a notary public. (a) 4 Burn. Eccl. L. 200. (d) Burn v. Cole, Arab. 415. (b) Off. Ex. Supp. 215. 7 Bac. (e) 11 Vin. Abr. 58. Vid. infr. Abr. 320, in note. ( /) 11 Vin. Abr. 59. G9. Jauncy \c) Murray v. Jones, 2 Ves. & Bea. v. Sealey, 1 Vern. 397. 318. (1) Sec a7iie, page 2, note (2). See Crofton v. Iklei/, 4 Greenl. Rep. 134. TrecotMck V. Austin, 4 Mason's Rep. 16. CHAP. II.] OF APPEALS. 72 Sect. IX. Of caveats J revocation of probates, dnd ajypeals. When the will is opposed, it is the practice to enter a caveat in the spiritual court to prevent the prohatc. 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 be granted; [73] but whether the law recognizes a caveat and allows it so to operate, or whether it does not regard it as a mere cautionary act by a stranger to prevent the ordinary from committing a wrong, is a point on which the judges of the temporal courts have differed(^). Probate of a will is suspended by appeal,(l) but it cannot be stayed at the suit of a creditor, till a commission of appraisement issued be returned(A); for by the statute 21 i:/] 8. c. 5, the probate is to be granted with convenient speed, without any frustratory delay. If a probate have been granted by the wrong jurisdiction, it is cause of reversal, or. nullity, according to the distinction before stated (z). So if the will be fraudulently proved, either in the common form, that is to say, by the oath of the executor, or more solemnly by the examination of witnesses, on such fraud being shown, the spiritual court will revoke the probate. So also it may be vacated on proof of a revocation of the will on which it was granted, or of the mak- ing of one subsequent(A;). And where probate has been granted of the will of a person supposed to be deceased, upon application to the executor by motion, the judge will by interlocutory decree revoke the probate so granted in error, and upon petition of the party will decree the will and cancelled probate to be delivered out tohim(/). An appeal (7?i) in regard to probates, by statute 24 H. 8. c. 12, [74] lies from the court of the archdeacon, or his official (if the matter be there commenced), to the bishop of the diocese; and by virtue of the same statute, from the bishop diocesan, or his commis- sary, to the archbishop of the province, within fifteen days next after sentence. When the cause is commenced before the archdeacon of the archbishop, or his commissary, by the same statute there may be (/?•) 3 Bac. Abr. 41. Offlcy v. Best, {I) Off. Ex. 48. Vid. supr. 53. 1 Lev. 186. Ik) Ibid. 48. (A) 11 Vin. Abr. G3. 4 Burn. Eccl. (/) In re Charles James Napier, 1 L. 230. Rex v. Bettesworth, Stra. Phill. Rep. 83. 857. (/«.) Cora. Dig. Prerogative. (1)4 Mason's Kc'i). 25. 74 OF APPEALS. [book 1. an appeal within the same period to the court of arches or audience of the archbishop; and from the court of arches or audience, within fifteen days next after sentence given to tlie archbishop himself; and in case the king himself be a party in such suits, the appeal shall be, . within fifteen days next after sentence given to all the bishops of the realm, in the upper house of convocation assembled. By that statute, and also by statute 25 H. 8. c. 19, appeals to the pope are prohibited, and by the latter statute are given from the archbishop's court to the king in chancery," where a commission shall be awarded under the great seal, to certain persons to be named by the king for the determination of the appeals; and those commissioners are called delegates, inasmuch as they are delegated by the king's commis^on. And further, although this last cited statute declares the sentence of the delegates definitive, the king, on complaint, to him made, may grant a commission of review to revise the sentence of the dele- gates(w); because the pope, as supreme head by the canon law, used to grant [75] such commission; and such authority, as the pope heretofore exercised, is now annexed to the crown by statute 26 H. 8. c. 1, and 1 Eliz. c. 1. But it is not matter of right, which the subject may demand ex d'ehiio jusiUiie, but merely a matter of fa- vour, which is never granted but under special circumstances(o). Before revocation of a probate, the court will not grant a new onc{p). Where probate granted by the special court is affirmed on an ap- peal to the arches or delegates, the usage is to send the cause back. But when the first sentence is reversed, the court below ■shall be ousted of its jurisdiction, and the court which reverses it shall grant probate dc novo{q). Sect. X. The effect of a probate. — Loss of the smne. — What is evidence of probate. — Effect of its revocation. The probate thus passed, although it does not confer, yet authen- ticates 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(?'). [76] If the will be proved in common form, it may at any time (?0 Off. Ex. Suppl. 127. 129. 3 Admon. B. 2. 2 Roll. Abr. 233. Bl. Com. 64—67. (?•) 11 Vin. Abr. 205. Off. Ex. 49. {<>') 3 Bl. Com. 67. Matthews v. Henslor's Case, 9 Co. 38. Comber's Warner, 4 Ves. jun. 205. Case, 1 P. Wms. 767. Hudson v. (;)) 4 Burn, Eccl. L. 193. Rains Hudson, 1 Atk. 461. Ca. in Ch; 2 V. Com. of Dioe. of Canterb., 7 Mod. pi. 56. Smith v. Milles, 1 T. Rep. 146. 480. Rex v. Netherseal, 4 T. Rep. (y) 11 Vin. Abr. 76. Com. Dig. 260. CHAP. II.] EFFECT OF A PROBATE. 76 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 pro- ceedings within the time limited for appeals, it is liable to no future controversy (5). So long as the probate remains unrevoked, tlie seal of the ordinary cannot be contradicted, for the temporal court cannot pass a judg- ment respecting a will in opposition 'to that of the ecclesiastical court(^); 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 non 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 notabilia, for such evidence is no contradiction to the seal, but admits, and avoids it(w). , Such then being the nature of a probate, inasmuch as it is a judi- cial 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 oppo[77]sition to some old decisions(z?), that payment of money to an executor who had obtained probate of a forged will, was a discharge to the debtor of the intestate, although the probate were afterwards revoked, and administration granted to the next of kin(^^7).(l) And on the same principle it is holden, that pending a suit in the spiritual court respecting the validity of a will, an indictment for forging it ought not to be tried; and it is the practice to postpone the trial till that court has given sentence(a'). But a payment of money under probate of a supposed will of a living person would be void, because in such case the ecclesiastical court has no jurisdiction: and the probate can have no effect. (2) The power of the ordinary extends only to the proving of wills of persons deceased(y). Where the probate is lost, the spiritual court never grants a se- cond, but merely an exemplification of the probate from its own records, and such exemplification is evidence of the will having been proved(2'). The copy of the probate of a will of a personal property is cvi- (*) 4 Burn. Eccl. L. 207. Godolph. {to) Allen v. Dundas, 3 Terra Rep. 62. 125. (0 House V. Lord Petre, 1 Salk. {x) 3 Bac. Abr. 34. Rex v. Vin- 311. Griffiths v. Hamilton, 12 Vcs. cent, 1 Stra. 481. Rex v. Rhodes, 2 jun. 298. Sec also 1 P. VVms. 388. Stra. 703. 548, in note. («/) Allen v. Dundas, 3 Term Rep. (m) Marriott v. Marriott, Stra. 671, 130. 672. 4 Burn. Eccl. L. 196. (z) Shepherd v. Shorthose, Stra. {v) 1 Roll. Abr. 919. Anori. Com. 412. 4 Burn. Eccl. L. 219. Rep. 152. Vid. 11 Vin. Abr. 89. (1)15 Serg. H Kawlc, 42. (2) 15 Serf, iic Kawlc, 42, contm. S 78 EVIDENCE OF A PROBATE. [bOOK I. [78]clence, inasmuch as the probate is an original taken by authority, and of a public naturc(a). 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(Z'). 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 there- fore a copy of it is not a copy of a copy, as hath been erroneously supposed(c). If issue be taken on a probate of a will, it shall be tried by a The probate, or, as it is sometimes called, the letters testamentary, may be revoked cither on a suit by citation, or on appeal to reverse a sentence by which they are granted; and, in case of revocation, all the intermediate acts of the executors shall be void.(l) But where a widow possessed herself of the personal estate as, executrix under a revoked will, and paid debts and legacies with- [79]out notice of the revocation, she was allowed those payments in equity; but leases which she had granted \fere ordered to be set asid€(e). Where B., a married woman, who was the sole executrix of fier late husband A., made a will merely executing a power given to her by a marriage settlement, but appointed C. executrix generally, and the ecclesiastical court granted probate of her will in the gene- ral iorm-, it was held, that the general probate of the will of B. transmitted to C. the representation of A. without an administration be bonis non{J). (a) 3 Salk. 154. Hoe v. Nathorpe, {d) Off. Ex. Suppl. 9. Case of Ab- Ld. Raym. 154. Law of Ni. Pri. 245, bot of Strata, 9 Co. Rep. 31. 246. 4 Burn. Eccl. L. 219. (e) 3 Bac. Abr. 50. 1 Chan. Ca. {b) 4 Burn. Eccl. L. 218. St. Le- 126. gar V. Adams, Lord Raym. 731. (/) Barr v. Carter, 2 Cox's Rep. (c) Law of Ni. Pri. 246. 429. (1) Contra, Appeal of i?. Peebles, 15 Serg. & Rawle,39, where the doctrine in the text is denied. See Ford v. Gardner, 1 Hen. h Munf. 72, as to the right in Virginia of any- one having an interest, and who did not appear to contest it before the ordinary, to im- pugn, within seven years, the validity- of a probate by bill in equitj'. Appearance and contesting the probate will not bar the "right to file a bill, if there be any ground of fraud unknown to tlie party at the time of the probate. Ibid. 80 CHAP. HI.] OF GRANTING ADMINISTRATION. [80] CHAPTER III. OP THE JVPPOINTMENT OF ADMINISTRATORS. Sect. I. Of general administrations, — origin thereof, — who entitled. — Of consanguinity. In case a party makes no testamentary disposition of his personal property, he is said to die intestate(o); the consequences of which 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 jiarens patrise, 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(6). This prerogative was most probably 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 other courts, or as we have seen(c), to grant [81] probate of their wills, in case they have made any disposition(fl?). This power was afterwards vested by the crown in the prelates, who, on a notion of their superior sanctity, were, by the supersti- tion of the times, conceived capable of disposing of the property most for the benefit of the deceased's soul(e). The effects were therefore committed to the ordinary, and he might seize and keep them without wasting, and after the partes rationabiles, or two thirds belonging to the wife and children were deducted(/), might give, alien, or sell the remainder at his pleasure, and dispose of the money in pious uses. If he did otherwise, he violated the trust re- posed 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 reasonal^le that they should be proved to the satisfaction of him whose right of distribution they cilcctually su- perseded(/i). But his conduct did not justify the prcsumptioo which had been (a) 2 Bl. Com. 494. Co. 38 b. {b) 2 Bl. Corn. 494. 9 Co. 38 b. (/) 2 Bl. Com. 491. 495. 51G. 2 (c) Vid. supr. 50. Inst. 33. Id) 2 Bl. Com. 494. 9 Co. 37 1). {g) Plowd. 277. (e) Perkins, sect. 486. Plowd. 277. (//) 2 Bl. Com. 494. 81 OF GRANTING ADMINISTRATION. [bOOK I. thus formed in his favour. The trust so confided to him, he did not very faithfully cxccutc(/). He converted to his own use, under the name of church and poor, the whole of such residue, [82] without even paying the deceased's dehts. To redress such palpahlc injust- ice, the statute of Westminster 2, or the 13 E. 1. e. 19, was passed; hy which it is enacted, that the ordinary is hound to pay the dehts . of the intestate, so far as his goods will extend, in the same manner as executors are hound, in case the deceased haH left a will; an use, as Mr. Justice Blackstone styled it, more truly pious than any re- quium, or mass for his sou^A*). Although the ordinary were now become liable to the intestate's creditors, yet the residue, after payment of debts, continued in his hands, to be applied to whatever purposes his conscience might ap- prove. But as he was not sulHciently scrupulous to prevent the perpetual misapplication of the fund, the legislature again inter- posed, iii order to divest him and his dependents of the administra- tion. The Stat. 31 E. B.C. 11, therefore prpvides, that in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods, and they are there- by put on the same footing in regard to suits; and to accounting, as executors appointed by will(/). Such is the origin of administrators. They are the officers of the ordinary, appointed by him in pursuance of the statute, which selects the next and most lawful friends of the intestate. But the [83] stat 21 H. 8. c. 5,(1) allows the ecclesiastical judge a little more latitude, and empowers him to grant administration either to the widow or next of Idn, or to both of them, at his own discretion; and where two or more persons are in the same degree of kindred, in case they apply, gives him his election to accept whichever he pleases.(2) {{) 2 Bl. Corn. 491. 495. (Z) 2 Bl. Cora. 495, 49G. 3 Bac. Ik) Ibid. 495. Abr. 54. Raym. 498. (1) That part of this statute only was reported as in force (in Pennsylvania) which re- lates to the persons to whom administration is granted. Report of the Judges, 3 Binn. 618. Roberts' Dig. Brit. Statutes, 254. But it seems no longer in force since tlie pass- age of the act of 15th March, 1832, " relating to Registers and Register's coui-ts. " (Pamph. Laws, 135.) (2) In Pennsylvania, by the provisions of the 24th section of the act of 15th March 1 832, entitled "An act relating to Registers andllegister's coui ts," (Paraph. Laws, 135,) " it shall be tlie duty of eyevy register, upon his granting letters of administration of tlie goods and chattels of any persons dying intestate, to take a bond or bonds with two or more sufficient sureties, respect being had to the value of the estate, in the name of the commonwealth, with a condition in the following form, viz. — ' The condition of this obligation is such, that if the widiin bounden A. B. administrator of all and singular the goods, chattels and credits of C. D. deceased, do make, or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowledge of him the said A. B. or into the hands and possession of any other person or persons for him, and the same so made, do exhibit or cause to be exhibited, into the register's office in the county of , within thirty days from the date hereof, and the same goods, chattels and credits, and all other the goods. CHAP. III.] OF GRANTING ADMINISTRATION. " 83 Letters of administration, then, must be granted by .the ordinary to such persons, as the statutes 31 E. 3. & 21 H. S. point out(m); that is, according to. the former statute, to the next and most lawful friends of the intestate; /iccording to the latter, to the widow, and next of kin, or both, or either of them. What parties fall within the first description, it was the province of the courts of common law to determine(?2); and they have inter- preted such friends to mean in the first place the husband, if he were not entitled at common law, and secondly, the next of blood, under no legal disabilities(o). First, the ordinary is bound to grant administration of the effects of the wife to the husband(/?).(l) Various opinions have indeed been held with regard to the hus- band's title to administer. Some have maintained that he has no [84] such exclusive right, either 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(§'). (m) 2 Bl. Com. 504. (/?) 11 Vin. Abr. 86. Blackborough In) 3 Bac. Abr. 54. 11 Vin. Abr. v. Davis, 1 P. Wms. 44. 93. Thomas v. Butler, 1 Ventr. 218. {q) Johns v. Rowe, Cro. Car. 106. (o) 2 Bl. Com, 496. 9 Co. 39 b. chattels and ci'edits of the said deceased at the time of his dcatli, which at any time after shall come to the hands or possession of the said A. B. or into the hands and possession of any other person or persons for him, do well and truly administer, according to law, and fm-ther, do make or cause to be made, a true and just account of his said administra- tion, within one year from the date hereof, or when thereunto legally required, and all the rest and residue of the said goods, chattels and credits, which shall be found remain- ing upon the said administrator's account, the same being first examined and allowed of by the orphan's court of the county having jurisdiction, shall deliver and pay unto such person or persons respectively, as the said orphan's court, by their decree or sentence, pursuant to law, shall limit and appoint; and shall well and truly comply with the laws of this commonwealth relating to collateral inheritances; and if it shall hereafter appear that any last will and testament was made by the said deceased, if the said A. B. within bounden, being thereunto required, do render and deliver the said letters of administra- tion into the said register's office, then this obligation to be void, otherwise to remain in full force and virtue. " ' Provided, that in every case of special administration, the form of the foregoing con- dition shall be modified so as to suit the circumstances of such case.' " (1) '^Whenever letters of administration are by law necessary, theregister having juris- diction shall grant them, in such form as the case shall require, to the widow, if any, of the decedent, or to such of his relations or kindred as by law may be entitled to the residue of his personal estate, or to a sliare or shares therein after payment of his debts; or he may join with the widow in such administration, such relation or kindred, or such one or more of them, as he shall judge will best administer the estate, preferring always, oCtliose so entiUed, such as are in the nearest degree of consanguinity with the decedent, and.also preferring males to females; and in case of the refusal or incompetency of every such person, to one or more of the principal creditors of the decedent applying therefor, or to any fit person at his discretion: Provided, tliat if such decedent were a married woman, her husl)and shall be entitled to tlic administration in preference to all other persons. Act of March 15th 1832, Sect. 22." (Pamph. Laws, 140.) 84 ' OF GRANTING ADMINISTRATION. [bOOK I. By others it has been asserted, that he is entitled under the equity of tlic Stat, of the 21 II. 8. whereby the ordinary is directed to grant administration of the husband's effects to the wife, or next of kin, or to either(r). By a third class, it has boen 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 tlic next and most lawful friend of the intestate; and that thus he supports his claim, not on the com- mon law, nor, as described eo nomiiie, by the statute, but as compre- hended within its general provision(.?). By a fourth, it is alleged, and the doctrine is recognized, in a recent case, by Lord ]x)ugh- borough, C.(/), that he is entitled at common law, Jure mariti, 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 pur- pose, since the husband's right [85] to administer, on whatever foun- dation, is now beyond all question establishcd.(l) The stat. 29 Car. 2. c. 3, contains a clause, that the statute of dis- tributions, the 22 & 23 Car. 2. c. 10, hereafter to be discussed, shall not prejudice such title of the husband, under an apprehension that it miglit be considered to be thereby affected. And though a mar- riage was voidable as being within the prohibited degrees, but not declared void in the lifetime of the parties, the marriage is valid for all civil purposes, and the husband is entitled as a civil right to ad- ministration of her effccts(«). 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(t;). If the husband part with all his interest in his wife's fortune, he shall not be entitled to the administration; 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 appoint- ment capable of operating only in equity, the court held that it was (r) 11 Vin. Abr. 84, in note. 247. Vid. also Com. Dig. Admon. B. {s-) Faw-try v. Fawtry, 1 Salk. 36. 6. 282. 2 Bl. Com. 515. 4 Co. 51 11 Vin. Abr. 73. 84, in note. 116. b. Roll. Abr. 910. 4 Burn. Eecl. L. Blackborough v. Davis, 1 P. Wms. 264. 44. 4 Burn. Eccl. Law, 235. Vid. (u) Elliot v. Gurr, 2 Phill. Rep. 16, Fettiplace v. Gorges, 1 Ves. jun. 49. {v) 3 Bac. Abr. 55, in note. Com. {t) Watt V. Watt, 3 Ves. jun. 246, Dig. Admon. B. 6. vid. infr. • (1) Upon the death of a husband who has survived his wife, and administered upon her estate, his executor (or it seems his administrator) is entitled to be administi-ator de bo- nis 7ion of the wife, in preference to her next of kin, or (it would seem) to the husband's residuary legatee. Hmdrenx. Co/§-7n, 4 Munf. Rep. 231 . So if the Imsband survive the wife, and die without administering on lier property, or before he had completed the' ad- ministration, and the wife's next of kin administer, such administrator becomes trustee for the rcpreseiiljitives of the husband. Stewart v. Slnvart, 7 Johns. Cha. Rep. 244. Jf'/iitaher v. fl'/iitaker, G Johns. Rep. 117. CHAP. 11.]. OF GRANTING ADMINISTRATION. 85 for the spiritual jurisdiction to determine to whom to grant adminis- tration, and refused 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 Avas granted to the devisee(a:).(l). [86] On the other hand, where the return to a ^nandamus to grant administration to a husband stated that, by articles before marriage, it was agreed that the wife should have power to make a will, and dispose of a leasehold estate, and pursuant to this power she had made a will, and appointed her mother executrix, who had duly proved the same, it was objected, that she might have things in ac- tion 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 peremptory inandamus[y). In case of a limited probate, granted to the executor of a married woman as above mentioned(r), the husband is entitled to administra- tion of the other part of her property, which is called an administra- tion cseterorum. Secondly, 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 either, or both, at his discretion(«).(2) If the widow renounce ad- ministration, it shall be granted to the children or other next of kin of the intestate, in preference to creditors. [87] The ordinary may grant administration quoad part to the wife, and as to the other part, to the next of kin; for in such case there can be no groyind to complain, as the ordinary is not bound to grant it exclusively to either(6). But the administration 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(c). (w) 4 Burn. Eccl. L. 232. Rex v. (a) Vid. 11 Vin. Abr. 92. Anon. Bettesworth, Stra. 1111. Stra, 552. (x) 11 Vin. Abr. 87. Marshall v. \h) 11 Vin. Abr. 71. 3 Bac. Abr. Frank, Prec. Chan. 480. Gilb. Eq. 55. Com. Dig. Admon. B. 6. Fawtry Rep. 143. S. C. V. Fawtry, 1. Salk. 36. Vid. infr. {y) 4 Burn. Eccl. L. 232. Rex v. (c) Rex v. Inhabitants of Horsley, Bettesworth, Stra. 891.1 8 East, 408. (2) Vid. supr. 68. ' (1) In Virginia, the person entitled to the estate is entitled to the administration also, as well lie bonis non as originally, Ciitchin v. WUhi7iSoti, 1 Call's Rep. 3; and tlierefore where the personal property of the wife was so settled by deed, before marriage, that upon her decease intestate in her husband's lifetime, her trustee was to convey the same to her legal heirs, it was held, that her nearest blood relation was, in such event, en- titled to the administration of her estate in preference to her husband. Bray v. Dudgeon, 6 Munf. 132. (2) And in Maryland, natural children, who were residuary legatees, have been pre- ferred to the widow, in a case where the executors named in the will refused to act. Govane v. Gova7ie, 1 Harr. W M'Hen. 346. See also the " Act relating to Registers and Registers' Courts," Sect. 22, (Pamph. Laws, 140, 141,) as to the right, in Pennsylvania, to .idministrution with the will annexed, in cases where there is a general residue of the es- tate bequeathed. 87 OF GRANTING ADMINISTRATION. • [bOOK I. It now becomes necessary to inquire who are such next of kin as shall be thus entitled. Consanguinity or kindred is defined to he vmcuhtm personarinn ah eoclem stipUe descendentium, the connexion or relation of per- sons descended from the same stock or common ancestor. This con- sanguinity is either lineal or collateral(^/). Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other, asbetween J. S. ihc propositus in the table of consanguinit}-, and his father, grandfa- ther, great-grand-father, antl 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 consanguinity constitutes a different degree, reckoning cither 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 grand- son in the second; his great grandsire and great [88] grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains as well in the civil and canon as in the common law. Thus the lineal consanguinity falls strictly within the definition of vinculum personainim ah eodem stijnte descendentium, since li- neal relations are such as descend one from the other, and both of course from the same common ancestor(e). Collateral kindred answers to the same description; collateral re- lations agreeing with the lineal in this, that they descend from the same stock or ancestor, but differing in this, that they do not descend the one from the other. Collateral kinsmen are, then, such as lineally spring from one and the same ancestor, who is the stirps or root, stipes or common stock from which these relations arc 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 ancestor, and they are collateral kinsmen to each other, because they are all descended from one common an- cestor, and all have a portion of his blood in their veins, which de- nominates them consunguineos. [89] Thus the very being of collateral consanguinity consists in this descent from one and the same common ancestor, A. and his brother arc 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-grand- father. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen are derived. And as from one couple of ancestors the whole race of mankind is descended, it necessarily follows that all men are in some degree related to each other(/). (rf) 2 Bl. Com. 202. (/) 2 Bl. Com. 204, 205. 504. (e) Ibid. 203, 204. I ^^• W Great m Grand- I father's |) i Father. I III. I I V. I I- Great | | Great | I Grand- || | Great | I father. | | Uncle. | I Grand. | I oVe^t I father. I | Uncle. 3 TUS. ^ I Son. I I I 1 II. 1 |l Grandson. |l i I f III ^ f Great | X Grandson. | VI. I Second | Cousin. I I I f ^- t I III. I I Son of the | I Nephew. | | Cousin | i I i German. | 1 I I IV. I I Son of the I I Nephew (I I or Brother's! I Grandson. I ^«>gl CHAP. III.] OF GRANTING ADMINISTRATION. 89 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, but 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(^); or in other words, to take the sum of the degrees in both lines to the common ancestor(A). Thus, for example, the propositus and his cousin-german are re- lated in the fourth degree. We ascend first to the father(2), which [90] is one degree, and from him to the common ancestor, the grandfather, which is the second degree; from the grandfather we descend to the uncle, which 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 brother's grandson, we ascend to the father, which is one degree; from the father we descend to the bro- ther, which is the second degree; from the brother we descend to the nephew, which is the third degree; and from the nephew to the son of the nephew, which is the fourth degree(Ar). Of the kindred, those, we must recollect, are to be preferred, who are the nearest in degree to the intestate;(l) but from among persons of equal degree, in case they apply, the ordinary has the power of making his election(/).(2) The court never forces a joint administration; and where the op- tion was between two persons in equal degree of relationship, one of whom had been twice a bankrupt, the court rejected 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,(3) puts the ad- ministration into the hands of the person with whom the majority of interests are desirous of entrusting the estate(n). 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(4) is entitled to administration: the parents indeed, as well as the children, are of the first degree, but the children are allowed the preference(o) ; then follow brothers(/j) ; hut primogeniture gives no [91] right to apre- {g) Ibid. 207. 504. Mentney v. (/) 11 Vin. Abr. 114, 115. Com. Petty, Pre. in Ch. 593. Dig. Admon. B. 6. (A) Ibid. 12th edit, note (4). (m) Bell v. Timiswood, 2 Phill. (i) iSee the table of consanguinity Rep. 22. prefixed, in which the degrees of col- («) Budd v. Silver, 2 Phill. Rep. 1^^. lateral consanguinity are computed as {<>) 11 Vin. Abr. 91, 92. 2 Bl. Com. far as the sixth. 504. (A) 4 Burn. Eccl. L, 355. Black. {p) 11 Vin. Abr. 93. Desc. 41, 42. (1) The daughter is to be preferred, in g^-anting administi-ation, to the son of the eldest son of the intestate. Lee v. Sedgivick, 1 Root's Rep. 51. (2) Taylor v. Delaney, 2 Caine's Ca'Ses in ?>rror, 143. (3) See JVeaw's Case, 9 Serg. &c Rawle, 186. (4) Sloerier v. Luehvic^, 4 Serg. 8t Rawle, 201. 01 OF GRANTING ADMINISTRATION. [rOOK I. fercncc((7); then granclfathers(r), and altliousj;h they are both of the second degree, yet the former are first entitled; next in order are uncles or nephe\vs(6'), and lastly cousins, and the females of each class respcctively(/). 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(i<). So the half blood is admit- ted to the administration as well as the wholc(t»), for they are the kindred of the intestate, and excluded from inheritances of land only on feudal reasons(?^); therefore the brother of the half blood shall ex- clude the uncle of the whole blood(.r); and the ordinary may grant administration to the sister of the half, or the brother of the whole blood, at his discretion(y). If a feme covert be entitled, she cannot administer unless with the husband's permission(z), 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 ai)road, or otherwise in- competent, a stranger may join in such security in [92] his stead. In either case the administration 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(6). If it were committed to them jointly during coverture only, it might perhaps be good, because, if commited to the wife alone, the husband for such i)eriod may act in the administration with or with- out her assent; and therefore the effect of the grant seems in either case the same(c). 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 committed to her. The Stat. 21 //. 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 administra- tion cum testamento annexo, with the will annexed, and the duty of such grantee differs but little from that of an executor [93] (e). He is equally bound to act according to the tenor of the will. {q) Warwick v. Greville, 1 Phill. {x) 11 Vin. Abr. 85. Rep. 123. 0/) 2 Bl. Com. 505. (r) 11 Vin. Abr. 93, and in note. (2) Thrustout v. Coppin, Bl. Rep. ftord Raym. 684. Com. Dig. Admon. 801. H. 6. Blackborough v. Davis, 1 Salk. (a) 11 Vin. Abr. 85. 4 Burn. Eccl. 38. L. 241. Com. Dig. Admon. D. Sty. (.s) 2 Bl. Com. 505. Stanley v. 75. Stanley, 1 Atk. 455. (i) 3. Salk. 21. (/) 2 Bl. Com. 505. {r) 11 Vin. Abr. 85. 4 Burn. Eccl. (») Blackborough v. Davis, 1. P. L.241. Com. Dig. Admon. D. Wank- Wms. 53. ford v. Wankford, 1 Salk. 305. Vid. (i) 11 Vin. Abr. 91. Smith, v. Thrustout v. Coppin, Bl. Rep. 801. Tracey, 1 Ventr. 323. 424. Earl of (f/) 4 Burn. Eccl. L. 228. 11 Vin. Wincliclsea v. Norclifle, 1 Vern. 437. Abr. 78. 2 Inst. 397. {w) 2 Bl. Com. 505. (0 2 Bl. Com. 504. CHAP. III.] • OF GRANTING ADMINISTRATION. 93 So, if one of two executors prove the will and die, and then the other refuse, such administration shall he granted(/). The ordinary cannot grant administration with the will annexed in which an executor is named, until he has either formally 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 administration the executor cannot retract his refusal during the lifetime of the administrator, but he may do so after the grant has ceased by the administrator's death(5-). A party, although otherwise entitled, may be incapable of the of- fice 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 executors, but comprise attain- der of treason, or felony, outlawry, imprisonment, absence beyond sea, bankruptcy (A), and, in short, almost every [94] species of legal disability; for, by the express requisition of the statute, the ordmary is bound to grant administration to the next and most lawful friends of the intestate(i). But coverture is no incapacity, nor Is alienage, if qualified, as in the case of executors(A;). Even an alien of the half blood may be ap- pointed an administrator(/). Sect. II. Of the analogy of administrations to probates. 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 probate being personal, and not local(m); of its devolving on the archbishop where the party de- ceased was a bishop, and on the dean and chapter in case of the death or suspension of the metropolitan or ordinary; of his being compelled by mandamus to grant [95] probate, unless he return a lis pen- dens{n); of caveats and appeals; of the power of the court of appeal to grant probate where the sentence isreversed(o); of probates being (/) Vid. supr. G9. Brownl. 31. (g) Vid. supr. 45. (/) H Vin, Abr. 91. Crooke v. (A) Co. 39. b. Com. Dig. Admon. Watt, 2 Vern. I'iG. B. 6. 4 Burn. Eccl. L. 233. 3 Bac. (m) 4 Bum Eccl. L. 241. Abr. 5G, in note. («) 4 Burn Eccl. L. 230. Com. Dig. (i) Com. Dig. Admon. B. G. Faw- Admon. B. 7. 11 Vin. Abr. 74. 202. try V. Fawtry, 1 Salic. 3G. 4 Inst. 335. (k) Com. Dig. Admon. B. G. Ca- {o) U Vin. Al)r. 7G. Com. Dig. roon's case, Cro. Car. 9. Anoii. 1 Admon. B. 2. 2 Itoll. Abr. 233. 95 PRACTICE IN REGARD " [bOOK I. of unquestionable validity in courts of common law(7;); of the regis- ter's book in the spiritual court being evidence where the probate is lost(<7); and, if issue be taken thereon, of its being triable by a jury; applies equally to letters of administration. Sect. III. In regard to the acts ofajjarty entitled previous to the grant. Although an executor may perform many acts before he proves, yet a party can do nothing as administrator till letters of administra- tion are issued, because the former derives his authority from the will, and not from the probate;(l) the latter owes his entirely to the appointment of the ordinary(r). It has indeed been held that a party before administration may file a bill in chancery, although he cannot commence an action at law(.s). [96] But by stat, 37 Geo. 3. c. 90. s. 10, if a party administer, and omit to take out letters of administration within six months after the intestate's death, he incurs the penalty of lift}- pounds(/). Sect. IV. Practice in regard to administrations. Letters of administration do not issue till after the expiration of 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^).(2) On taking out letters of administration, the party swears that the deceased made no will, as far as the deponent knows or believes, and (jt>) Tourton v. Flower, 3 P. Wms. Salk. 301. 369. («) 4 Burn. Eccl. L. 242. Fell v. (y) 4 Burn. Eccl. L. 248. Peau- Lutwido^e, Barnardist, 320. lie's Case, 1 Lev. 101. (/) Vid. supr. 43. G6. (r) 11 Vin. Abr. 202. 4 Burn. Eccl. (w) 4 Burn. Eccl. L. 242. Law, 211, Wankford v. Wankford, (1) See 15 Serg. &Rawle,42. (2) The practice in Pennsylvania is, unless a caveat be filed, to grant letters of admin- istration immediately upon the decease of the intestate, if applied for. The register, however, will revoke tlie gi'ant, if any person having a i)aramount right make application within fourteen days from the death of the intestate. CHAP. III.] TO ADMINISTRATIONS. 96 that he will truly administer the goods, chattels, and credits, by pay- ing the deceased's debts, as far as the same will extend, and the law charge him ; and that he will make a true and perfect inventory of all the goods, chattels, and credits, and exhibit the same into the registry of the spiritual court at the time assigned him by the court, and to render a just account of his administration when lawfully re- quired. [97] And, pursuant to the stat. 21 H. 3. c. 5, and the 22 & 23 Car. 2. c. 10, he enters into a bond with two or more sureties, con- ditioned for the making or causing to be made a true and perfect inventory of all and singular the goods, chattels, and credits of the deceased, which have or shall come to the hands, possession or knowledge of the administrator, or into the hands or possession of any other person or persons for him; and for exhibiting the same into the registry of the spiritual court at or before the end of six months; and for well and truly administering, according to law, such goods and chattels; and further, for the making a true and just account of his administration at or before the end of twelve months; and for delivering and paying all the rest and residue of the goods, chattels, and credits which shall be found remaining on his accounts (the same being first examined and allowed of by the judge of the court), unto such person or pei'sons respectively as the judge by his decree or sentence, pursuant to the statute of distribution, shall limit and appoint; and if it shall thereafter appear that any will was made by the deceased, and the executor therein named exhibit the same into the court, making request to have it allowed and approved ac- cordingly, for the administrator's rendering and delivering; on be- ing thereunto required (approbation of such testament being first had and made), the letters of administration in the court.(l) [98] When administration has been once committed to any of the next of kin, others, even in the same degree of kindred, have, during the life of the administrator, no title to a similar grant; so different is this case from that of an executor, who has a right to probate, though it has been already taken out by his co-executor. The max- im, " qui prior est tempore, potior estjure^^ applies in the former but not in the latter instance(6). Sect. V. Of special and limited administrations. TiiEUE are also various classes of administrations, wliicli, although not founded on the letter of any of the above-mentioned statutes, (i) 41 Vin. Abr. IIG. Thomas v. Butler, 1 Vciitr. 218. (1) See the act oi" IStli March, 183'2, (I'amph. Laws, 135,) ante, jjage 82, note (2). 98 OP SPECIAL AND [bOOK 1. fall within their spirit and intcndmcnt(c). As, if no executor be named in tlic will, the clause of such appointment being wholly omitted, or wliere a blank is left for his name, administration shall be granted with the will annexed, when it shall be proved in the same manner as in the case of an exccutor(c?). Or if the executor die in the lifetime of the testator(e), or if the [99] testator name the executor of B. to be his executor, and die in the lifetime of B., for till B.'s death he is in effect intestate(/). Or if he name an executor to have authority after a year from his death, for during the year there is no cxecutor(,g-); and in such cases administration shall be granted in the interval. So if the executor be incapable of the office, the party is said to die quasi intestatus, and the ordinary must grant administration. So if an executor is afterwards disabled from acting, as if he be- come lunatic, then, on the same principle of necessity, there shall be a grant of a temporary administration with the will annexed(/i). So, in all the above-mentioned instances, if there be a residuary legatee, administration is in general granted to him in exclusion of the next of kin, because in that case the next of kin hath no interest in the property, and the presumption of the statute, that the testator would have given it to him, cannot exist where such a legatee is appointed(?').(l) And even where there is no prospect of a residue, a residuary legatee is entitled to an administration de bonis, in pre- ference to legatees and annuitants(/i;). If several persons arc entitled to the residue, it may be granted to any of them(/); and if it be thus granted, the other residuary legatees have no claim to a subsequent grant in the lifetime of the grantee. [100] Such administration may be also granted, although it be uncertain whether there will eventually be a residue or not(m). Of this species also is an administration durante minoritate, or during the infancy or minority of an executor, or a party entitled to administration(?i). A distinction exists in the spiritual court between an infant and a mimor. The former is so denominated if under seven years of age, (c) Burn. Eccl. L. 237. 11 Vin. (/) 11 Vin. Abr. 90. 94. Abr. 91. Plowd. 279. Walker v. (A) Atkinson v. Lady Barnard, 2 Woollaston, 2 P. Wms. 582. 589. 590. Phillimore, 316. ((/) 11 Vin. Abr. 09. Com. Dig. (/) Com. Dig. Admon. (B. 6.) Tay- Admon. B. 1. 2 Bl. Com. 503, 501. lor v. Shore, 2 Jon. 1G2. 11 Vin Abr. 508. 94. (e) 11 Vin Abr. 85. Sty. 147. {m) Com. Dig. Admon. (B. G.) (/) Com. Dior. Admon. Thomson v. Butler, 2 Lev. 56. 1 (,?) Plowd. 279. 281 b. Ventr. 219. S. C. (K) Fawtry v. Fawtry, 1 Salk. 36. {n) Com. Dig. Admon. (F.) 11 Cited Walker v. Woollaston, 2 P. Vin. Abr. 105. Wms. 582. (1) Govune v. Govarie, 1 Ilarr. &c M'llen. 346. CHAP. III.] LIMITED ADMINISTRATIONS. 100 the latter from seven to twenty-one. The ordinary ex officio as- signs a guardian to an infant. The minor himself nominates his guardian, who then is admitted in that character by the judge. , Ac- cording to the practice of the court, the guardianship in either, case is granted to the next of kin of the child, unless sufficient objectioij to him be shown, and administration i*s committed to such appointee for the use and benefit of the infant or minor. Although, as we have seen(7i), an administration during the mi- nority of an infant executor was, antecedently to the stat. 38 Geo. 3. c. 87, determined on his attaining the age of seventeen, yet adminis- tration during the minority of an infant next of kin was always of force until his age of twenty-one; on the principle that the [101] 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 legal age of twenty-one before he is compe- tent; 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(o). And also, which was the more forcible reason, because the statute of distribu- tions requires administrators to give a bond, which an infant is inca- pable of doing(/;). But now by the above-mentioned stat. 38 Geo. 3. c. 87, reciting, that inconveniences arose from granting probate to infants under the age of twenty-one, it is enacted, that where an infant is sole execu- tor, 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 guardiaft for the use and bene- fit of several infants, it ceases on the eldest attaining twenty-one. If there be several infant executors, he who first attains the age [102] of twenty-one years shall prove the will, and die administra- tion shall cease(§'); but administration granted during the minority of several children will not expire on the marriage of one of them to a husband of full agc(r). 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(.y). If administration be granted jyendente minore xtate, and the minor coming of age takes upon himself the administration, he must give security to the same amount that the administrator did in the first instance(^). (n) Supr. 31. Test. 473, 474. (o) 4 Burn. Eccl. L. 238, 239. (r) Jones v. Earl of Stafford, 3 P. Freke v. Thomas, Ld. Raynn. G67. Wins. 79. Com. Dig. Admon. (F.) (.s) Jones v. Earl of Stafford, 3 P. (/;) 11 Vin. Abr. 100, 101. 3 Bae. Wuis. 70. Sed.vido Com. Dig. Ad- Abr. 13. llarg. Co. Litt. 89 b. note G. mon. (F.) and 5 -Co. 29 b. {q) 4 Burn. Eccl. L. 210. L. of (/) Abl)olt v. Abbott, 2 Phill. 578. 10 102 OF SPECIAL AND [bOOK I. If there be two executors, one of whom has attained the age of twenty-one years, and the other not, administration shall not be granted during the minority of him that is under age, because the former may execute the \vill(/). According to other authorities(M), administration shall in such case be granted to the one executor during tiic minority of the other; but they are not warranted by modern j)ractice. Tliis administration ought not to be committed to a party who is very poor, or in distressed circumstances, though the guardian or next of kin to the infant. When the court of chancery sees reason to think that such administrator will waste or misapply the etiects of the intestate to the prejudice of the infant, for whom he is merely a trustee, that court will ai)point a receiver of the per[103]sonal estate, notwithstanding the grant of administration(y). It has been held by some, that if such administrator continues the possession of the goods after the full age of the executor, he becomes an executor de son tort; but this is denied by others; and their opinion seems to be more correct, because he came to the possession of the goods lawfully(?f>). * In this class is also to be ranked administration pendente lite, while the suit is pcnding(.x-); and it may be granted, whether the suit respects a will or the right of administration(y). But it is never granted till a plea in the cause has been given in, and ad- mitted. Nor will the court of chancery, generally speaking, in such case interfere, and appoint a receiver during tlie litigation (z). Of the same species also is administration grounded on the inca- pacity of the next of kin at the time of the intestate's death, arising, for instance, from attaint or excommunication, madness, [104] or bankruptcy. If such incapacity be afterwards removed, such ad- ministration may be avoided(«). To tliis description also must be referred administration granted at common law durante absentia, during the absence of the execu- tor or next of kin from the kingdom; and it of course ceases on the appearance of the executor or next of kin, and his taking out pro- bate or administration(6). Under this head is also comprised administration granted to a creditor: such administration in general is warranted only by cus- (0 4 Hum. Eccl. L. 240. Pigot {x) 4 Burn. Eccl. L. 237. and Gascoigne's case, 1 Brownl. 46. (?/) 3 Bac. Abr. 56. Walker v. 11 Vin. Abr. 99. Foxwist v. Tre- Woollaston, 2 P. Wms. 575. 11 Vin. maine, 1 Mod. 17. Hatton v. Mascal, Abr. 105. 1 Lev. 181. (2) 4 Burn. Eccl. L. 238. Knight (u) 11 Vin. Abr. 97, 98, 99. 3 Bac. v. Duplessis, 1 Ves. 325. Abr. 13. Colborne v. Wright, 2 Lev. («) Com. Dig. Admon. B. 1. Faw- 239, 240. S. C. 2 Jo. 119. Smith v. try v. Fawtry, iSalk. 36. Smith, Yclv. 130. (/>) Roll. Abr. 907. Lutw. 842. (r) 11 Vin. Abr. 100. Havers v. Slaughter v. May, Salk. 42, and vid. Havers, Barnard. 23, 24. supr. 70. {w) 11 Vin. Abr. 98. 1 Sid. 57. CHAP. III.] LIMITED ADMINISTRATIONS. 104 torn, and not by any express law, and may be granted where it is visible tlic next of kin cannot derive any benefit from the estate; but that is to be understood only where they 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 general, to accept or refuse letters of ad- ministration, or show cause why the same should not be granted to a creditor(c). And by the aforesaid stat. 33 Geo. c. 87, if, after the expiration of twelve calendar months from the testator's death, the exe[105]cutor to whom probate had been granted shall be residing out of the juris- diction of his majesty's courts, on application of any creditor, next of kin, or legatee, grounded on an affidavit, in the form therein spe- cified, 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 ordinary, in default of all the above-mentioned parties, to such discreet person as he shall approve(t/). The jurisdiction of granting these administrations results from the ordinary's original power at common law, by which he may make the 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(e). 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(y).(2) [106] So, where a grandfather move for a mandamus to such judge to grant him administration of the etFects of his deceased son during the minority of his grandson, the court refused the applica- tion (_^). On the same principle, where, on the renunciation of the next of kin, several creditors apply for administration, though the court may prefer any one of them(/i), yet, on the petition of the others, it will (c) 4 Burn, Eccl, L. 230. 2 Bl. Com. v. Butler, 1 Ventr. 219. Smith's case, 505. Blackborough v. Davis, Salk. Stra. 892. Rex v, Bettesworth, ib. 956. 38. Com. Dig. Adraon. B. 6. (/) 4 Burn. Eccl. L. 231. Rex v. {d) 2 Bl. Com. 505. Bettesworth, Slra. .950. Com. Dig. (c) 4 Burn. Eccl. L. 237. 3 Bac. Admon. B. 0. Abr. 13. Ld. Grandison V. Countess {g) 4 Burn. Eccl. L. 231. Smith's of Dover, Skin. 155. Walker v. case, Stra. 892. Woollaston, 2 P. Wms. 582, 589, 590. (/t) Harrison v. All Persons, 2 Phill. Briersv. Goddard, Hob,250. Thomas Rep. 249. (1) The proceedings to remove an executor who removes from the State of Pennsji- vania, or has ceased to have any known place of residence therein, (hiring tlin i)ciiod of a year or more, are provided by the 27tli sect. of the act of 'iOtli Marcli, 18.12, "relating- to Orphan's Courts," (Panipii. Laws, p. 197.) See firiffilh v. Fnidev, 8 Cr;u)cii, 9, for the law of limited administrations. (2) JsTeave^a Case, 9 Serg. &c Rawle, 1 80. lOG OF SPECIAL AND [bOOK I. conijiel him to enter into articles to pay debts of equal degree in equal |)roporUons, without any preference of his own. 'rhcrc may be also a limited or special administration committed 1o the party's care, namely of certain specific cflccts, 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(/i). But seve- ral administrations cannot be granted in respect of one and the same thing; as a house, or a bond, or any other debt. For it would be ab- surd that two persons should have a distinct right to an individual chattel, or chose in actlon{l). In respect however to creditors, such several administrators are all considered [107] as one person, and may be sued accordingly(A'). Administration also may be granted on condition, as wliere a for- mer grantee is outlawed, and in prison beyond sea, it may be com- mitted to another, but so as, if the first grantee shall return, he shall be entitled to administer(/). ' • The ordinary also, in default of persons entitled to the adminis- tration, may gVant letters ad colUgendtnn bona defuncti, and thereby take the goods of the deceased into his own hands, and thus assume tlie office of an executor or administrator in respect to the collecting of them; but the grantee of such letters cannot sell the effects with- out making himself an executor de son tort. The ordinary has no such authority, and therefore he cannot confer it on another(m). If a bastard, who, as nullius Jilius, 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 ulthnus lucres; yet in [108] such case it is the practice to transfer the royal claim by letters patent, or other 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(n).(l) It has indeed been asserted that such letters patent are merely in the nature of a recommendation; and tiiat 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(o). (h) Com. Dio-. Admon. B. 7. Roll. (w) 4 Burn. Eccl. L. 241. 11 Vin. Ab. 908. Vid. supr. 87. Abr. 87. Off. Ex. 174, 175. 2 Bl. (0 3 Bac. Abr; 57. Roll. Abr. 908. Com. 505. Fawtry v. Fawtry, Salk. 36. Vid. (n) Com. Dig. Admon. A. 11 Vin. supr. 98. Abr. 88. .lones v. Goodchild, 3 P. (/■■) 11 Vin. Abr. 139. Rose. v. Wms. 33. 1 Wooddes. 398. Dougl. BartleU, Cro. Car. 293. 548. (/) Com. Dig. Admon. B. 7. Roll. . (o) U Vin. Abr. 86. Manning v. Abr. 908. 11 Vin. Abr. 70. Napp, 1. Salk. 37. (1) For the several Acts of Assembly in relation to Esc/wats in Pennsylvania, see Piir- don's Digest, 270. (Eilit. 1S;51.) CHAP. III.] LIMITED ADMINISTRATIONS. 108 Administration may also be granted to the attorney of all execu- tors, or of all the next of kin, provided they reside out of the pro- vince: but if the effects are under twenty pounds, such administra- tion may be granted, whether they are so resident 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(7;).(l) [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 officers, 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. 3. c. 60, it is enacted, that the party claim- ing 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 ( jo) Tourton v. Flower, 3 P. Wms. 371. Vid. supr. 72. (1) Until the passage of the act of 15th March, 1832, " relating to Registers and Re- gisters' Courts," by the 6th section of which (Pamph. Laws, 136) it is provided, "that no letter testamentary or of administration, or otherwise, purporting to authorize any per- son to intermeddle with the estate of a decedent, which may be granted out of this com- monwealth, shall confer upon such person any of the powers and authorities possessed by an executor or administrator, under letters granted within this state," letters of adminis- tration granted in a sister state, wer£ a sufficient authority to maintain an action in Penn- sylvania; and such has been the practice without regard to the particidar intestate laws of the state where they have been granted. Af Cullovgh v. Young, 1 Binn. 63. 4 Ball. 292. The provisions of the act of 1705, in relation to letters of administration granted out of the province, have uniformly, however, been considered not to extend further than to the provinces of this country at the time the act was passed; and hence in Grxme v. Harris 1 Ball. 456, it was held tliat letters of adrainistx-atioa granted by the Archbishop of York were not a sufficient authority to maintain an action in this state. The courts of Vivginia and New York do not take notice of letters testamentary, or of administration granted abroad, or out of the state, Dickinson, adm. v. J\TCra-w, 4 Rand. Rep. 158. JMorrellw Dickey, 1 Johns. Cha. Rep. 153. Doolittle v. Lewis, 7 Johns. Cha. Rep. 45. Nor do the courts of New Hampshire, {Sabin\. Gilman, Adams's Rep. 198,) Connecticut, [Perkim\. Wil- Uams, 2 Root's Rep. 462. Riley v. Itiley, Champtiri v. Tilley, 3 Day's Rep. 74. 303. See however JVico// v. JMumford, Kirby's Rep. 274.) Massachusetts, {Good-winy. Jones, 3 Mass. Rep. 514. Stephens v. Gaylord, Laugdon v. Poller, 11 Mass. Rep. 369. Picquet v. S-wa7i, 3 Mason's Rep. 469.) Kentucky, [Jackson v. Jeffries, 1 Marsh. Rep. 88.) Oliio, {Kerr v. Moon, 9 Wheat. Rep. 565.) or the District of Columbia, [Femvick v. Sears, 1 Cranch, 259. Dixon's Ex. v. Ramsey's Ex. 3 Cranch, 319.) Letters of administration grunted in a sister state are not sufficient authority to maiiitain an action in Nortli Caro- lina, [Butts's Adm. v. Price, Cam. & Norw. 68. Anon. 1 Ilayw. Rep. 355,) tliougli pro- bate and letters testamentary granted in another state, will enable executors to sue, if the testator was an inhabitant of *tlie state where such probate was granted. Stephen v. Smart, 1 Carol. Lav/. Rep. 471. But the objection, that the pluintifl" was appointed administrator by the authority of another state, must be pleaded in bar or abatement, and cannot be 109 OF ADMINISTRATION [bOOK I. in which tlic same is situate, the name of the deceased, the name of the ship or shijis to which he helongcd, and that he has heen informed of liis death, and requesting the inspector to give such directions as may cnahle liim to procure letters of administration to the deceased; u|)on receipt whereof the inspector shall send or cause to be sent, by course gf post, under cover to the minister, officiating-minister or curate of the parish, wherein the claimant shall reside, a petition or paper containing a list of the degrees. of kindred to the tenth degree inclusive, with lilanks for the time and place of the intestate's birth, and the sJiip he belonged to, and that the party had obtained infor- mation of his death, with blanks for the 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 ins])ector for a certificate, to enable such party to obtain letters of administratit)n to the de- ceased's effects, with also a blank of his degree of kindred; and [1 10] stating 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 wliich to insert whether) bachelor or widower; to which form shall be sul)joined a blank certificate, to be signed by two repu- table 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 church-wardens 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, she must forward with such certificate an extract from the parish register, or some other authen- tic proof of her marriage, and containing also the same directions as annexed to the second jcertiflcate subjoined to the above-mentioned check(a), in regard to proof of the deceased's death, if he died after (a) Supr. 92. taken after an issue on the merits. Langdonx. Potter, Champlin v. Tilley. And an ad- ministrator appointed in another state may maintain an action on a judgment recovered by him in the courts of that state, because he may sue upon it in his own name. Tal- maclge\. Chapel, 15 Mass. Rep. 71. So an executor or administrator of a creditor in another state, having possession of a bond and mortgage on lands situate in New York, may lawfully, it seems, receive payment of the debt, and give an acquittance, DooUttle v. LeTvis, 7 Johns. Cha. Rep. 45, as, it also seems, he may for any voluntary payment to him. Williams v. Stoivs, G Johns. Cha. Rep. 353. Stephens v. Gaylord. And where an administrator cum testamento annexo of a person who was domiciled in England at the time of his death, comes into Massachusetts, and takes out administt-ation from the pro- bate office, according to the statute, he cannot be cited before the judge of probate to ac- count for assets received by him in England. Selectmen of Bosto7i v. Boylston, 2 Mass. Rep. 384. Daives, Judge, &c. v, Jioylston, 9 Mass. Rep. 337. Nor will he be liable to any action brought against him in that state, so as to subject the real estate of liis intes- tate to be tiken in execution. Jiovden v. Jiorden, 4 Mass. Rep. 6". Where administration is taken out in one state, the administrator may be called upon, in rr|uity, in any other state, to account for the assets, by a creditor. Fk-ans v. Tatem, 9 Serg. k Rawle, 252. Bryam. jWGee, 2 AVash. C. C. Rep. 337. CHAP. III.] TO SEAMEN. 110 he had left the naval service, in regard to mentioning the name of a proctor to be employed in obtaining the administration: and that the application, when filled up and attested, shall be sent by the gene- ral post under cover, directed to the treasure!- 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 CU' rate, 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 forwarding of the petition or paper under cover,- to such minister, officiating-minis- ter or curate, and directing him to take such steps as are directed, for the purpose of substantiating his claim to the satisfaction of the in- spector; 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 inhabi- tant householders of the parish as may be disposed to sign the first certificate on the paper, touching the right of such claimant to the ad- ministration to the effects of the intestate, according to the degree of relationship stated in such petition, and being satisfied 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 subscribe the same in the presence of the minister, officiating-minister or curate, and the two inhabitant house- holders 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-minister or curate shall appoint; and the minister, officiating-minister 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 exami- nation, or his signing the petition or application, pay to the minister, officiating-minister or curate, a fee of two shillings and sixpence for his trouble on the occasion; and the said paper being in all things completed according to the directions therein and hereby given, the same shall be returned by the minister, officiating-minister or curate, by the general post, addressed to the treasurer or paymas[lll]ter of his Majesty's navy, London; and he on receiving the same shall di- rect 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 application 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, the original place of residence of the deceased, and whether seaman or marine, and the name of the ship he belonged to, and that he died intestate, and whether bachelor or widower, together with the time of his death; and that it appearing that no will of the deceased has been lodged in the office, he therefore grants such abstract of the application, and certifies that lie believes what is stated to be true; and that such party Ill OF ADMINISTRATION [bOOK I. mav obtain letters of administration to the effects of the deceased, which appear not to exceed a sum specified, provided such party is otherwise entitled thereto by law: to which certificate there shall he subjoined a notice, that the j)revious commission or reciuisition is to be addressed agreeably to the superscription of the within cover, in which the same is to be enclosed and forwarded by the proctor; and when the commis[ll2]sion or requisition shall be returned to the of- fice, it will be forwarded to him, and he is then to sue out letters of administration, 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 churchward- ens, or elders (as the case may be), of the parish within which the party then resides, franked by the treasurer, paymaster, or inspector, in which the previous commission or requisition is to be enclosed, in- forming him of the application attested by him and the two church- wardens or elders, and requiring him to swear the party accordingly, provided he answers the description contained in such commission or requisition; and when the same is executed, to return it to the treasurer 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 excise, or the clerk of the cheque, whose abode is nearest to the party applying, wiien such person will be directed tp pay him the wages due to the deceased; and the proctor shall, im- mediately on receipt of such certificate enclosed in such letter, sue out the previous commission or requisition, and enclose it, with in- structions for executing the same, in such letter, and shall transmit the letter by the general post to the minister [113] 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 peti- tion or paper for want of proof to his satisfaction of the claimant being the person entitled to letters of administration of the deceas- ed's effects, such minister, officiating-minister or curate, shall state his reasons for such rejection on the petition or paper, and return the same, addressed to the treasurer or to the paymaster of the navy; and in case no application shall be made to the minister, officiating-min- ister or curate, by theclaimant, or no effectual steps shall be taken by such claimant, so as to complete the petition or paper, and the certificates 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 expiration 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 en- closed therein, take such steps as to him may seem proper or neces- sary for procuring the execution of such previous commission or re- CHAP. III.] TO SEAMEN. 113 quisitidn, or other instrument transmitted by the proctor to be exe- cuted; and being executed, he shall transmit the same to the treasu- rer or to the paymaster of his Majesty's navy, London; who shall, immediately upon the receipt thereof, send the previous commission or requisition, or other legal instrument executed by the per- son applying for the administration, to the proctor employed in Doc- tors' Commons, who shall forthwith sue out and procure letters of administration in favour of the person so applying for the same, in the manner and form above mentioned, to the estate and effects of the in- testate. As soon as any letters of administration, or probates of wills, or letters of administration with will annexed, have been obtained, and passed the seal of the proper court in the manner dii-ected, the proc- tor wlio 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 account 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 Majes- •ty's navy, upon receiving such letters of admiriistration, or probates of wills, or letters of administration with will annexed, shall direct the inspector of seamen's wills to issue a check containing the heads thereof; and the inspector shall note thereon the amount of the proc- tor's charges and expences, provided the same 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 re- siding 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 ad- ministrator or executor, together with the copy of the will transmit- ted to him by the proctor, the copy being first stamped by the in- spector, if the administrator, or the administrator with will annexed, or the executor, shall be present or-demand the same in person; but if he shall not be present, but be and reside at a distance, then the in- spector shall deliver such check and such copy of will to the deputy- paymaster. 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 inspector of seamen's wills, under a penalty of one hundred pounds. For further penalties upon a proctor acting contrary to the provis- ions 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. U 1 11 OF ADMINISTRATION ON DEATH [bOOK I. [11 IJ Sect. VII. Of adminislrat ions in case of the death of the administrator, or of the executor intestate. I AM now to consider Ihc effect of tlie death of an executor or ad- ministrator with regard to the administration. Wliere administration is granted to two, and one dies, the survi- ver shall be sole administrator(«); for it is not like a letter of attor- ney to two, where by the death of one, the authority ceases, but it is an office analogous to that of an executor, which survives(6). ' An administrator is merely the officer of the ordinary, prescribed to him by act of parliament, in whom the deceased has reposed no trust; and therefore on the death of that officer, it results to the ordi- nary to appoint another. And if A.'s executor die intestate, the ad- ministrator of such executor has clearly no privity or relation to A., since he is commissioned to administer the effects only of the [115] intestate executor, and not of the original testator. In both these cases, therefore, it is necessary for the ordinary to commit another administration(c). But, with regard to the species of administration to be thus granted, a distinction arises between the case where the executor or next of kin liad before his death taken out probate or letters of administra- tion, 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 testator, be- cause he is not thereby named executor to such testator. He only can prove the will who by the will is constituted executor. The omission of the first executor to'prove the same on his death deter- mines, althougb it does not avoid the executorship, 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 [116] admin- ister, or not; because administering is an act in pais, of which the spiritual court cannot take notice. The ordinary must commit ad- ministration; as it appears to him judicially; and it can thus appear only by the probate(e). («) 4 Burn. Eccl. L. 241. Hudson (f/) 11 Vin. Abr. 67. 90. HI. V. Hudson, Ca. Temp. Talb. 127. Wankford v. Wankford, 1 Salk. 308, {h) 3 Bac. Abr. 56. Adams v. 309. Hayton v. Wolfe, Cro. Jac. 614. Bucklaud, 2 Vern. 514. 11 Vin. Abr. pi. 4. Shep. Touch. 464. Isled v. 69. Com. Dio-, Admon. B. 7. Stanley, Dyer, 372. Comber's Case, (c) Com. Dlff. Admon. B. 6. 4 1 P. V\ ms. 767. Burn. Eccles. L. 241. 1 Roll. Abr. (t) Wankford v. Wankford, 1 Salk. 907. 2 Bl. Com. 506. 308. 3 Bac. Abr. 19. CHAP. 111.] OF ADMINISTRATOR. 116 In like manner, if A. die intestate, and B. be entitled to administer, and die before he take out administration, an immediate administra- tion shall be committed: in such case it shall be granted to the re- presentatives 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 representa- tives(/); and so it has been held, in case the wife die intestate, and the husband die before he takes out administration, it shall be grant- ed 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 representatives(^). If the deceased executor had taken out probate, or the de- [117]ceased's next of kin administration, then another species of ad- ministration, which hath not hitherto been mentioned, becomes neces- sary, namely, an administration de bonis non, that is, of the goods of the deceased left unadminlstered by the former executor or ad- ministrator, by the grant of which, such administrator de bonis non becomes the only personal representative of the party originally de- ceased(A).(l) Administration of either species is, generally speaking, granted to the next of kin of such party. But in case there be a residuary le- gatee, it shall be granted to him in preference to such next of kin on the principle above stj.ted, because the next of kin has then no inte- rest in the property (i). Thus where A. made C. executor and resi- duary legatee, and B. made C. executor without giving him the sur- plus, and C. afterwards died intestate, it was held, that the adminis- trator 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 V).{k). If the residue be bequeathed to several persons, such administration (/) 11 Vin. Abr. 88. pi. 25. Squib (//) 11 Vin. Abr. 111. Attorney- V. Wyn, 1 P. Wms. 381. Vid. also General v. Hooker, 2 P. Wms. 340. Com. Dig. Admon. B. 6. Vid. Earl of Com. Dig. Admon. B. 1. Plowd. 279. W inchelsea v. Norcliffe, 1 Vern. 103. 3 Bao. Abr. 19. {g) Elliott V. Collier, 3 Atk. 526. {i) Com. Dig. Admon, B. 6. Thomas S. C. 1 Ves. 16, and 1 Wils, 169. 4 v. Butler, 1 Ventr. 219. S. C. 2 Lev. Burn. Eccl. L. 235. 11 Vin. Abr. 88. 56. 3 Bac. Abr. 19. pi. 27. Squib v. Wyn, 1 P. Wms. (/.:) U Vin. Abr. 87. Farringtonv. 382, note 1. Vid. infr. 217. Knightly, Prec. Chan. 567. (1) In Brattle v. Gustin, 1 Root, 425, letters of administration were revoked at the in- stance of a creditor, who all(^ed there was estate suflicient to pay his debt (a jiiili^ment) and administration de honin non granted. And tlie distribution of the estate is no objec- tion to its being granted upon the application of a creditor. JiviUlk v. Convernc, 1 Itoot, 174. 117 ADMINISTRATION, HOW GRANTED. [bOOK 1. niav he o-rantcd to all or cither of them, as in the case of an oricinal administrator, although there he no present residue(/). But for such jjurpose there must he a com])lete [US] disposition of the property(w). If the executor he himself residuary legatee, although lie refused, or, before he proved the will, died intestate, an imme- diate administration with the will annexed shall be granted to his administrator(7?). If an executor be residuary legatee, although he refused, or died before proliate, leaving a luill, his executor will be entitled to sucii administration(o). If an executor and residuary lega- tee, after probate, die intestate, administration dc bonis nan, with the will annexed of the testator, shall be granted to the administra- tor of such executor. If a feme covert executrix Hie 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 testator. If she were herself residuary legatee, it shall be granted to her husband (^;). Where there are two executors, of whom only one proves and dies, and then the other renounces, the executors of the acting ex- ecutor have no concern with tlie administration of the goods unad- ministered, but the same shall he granted to the next of kin, or resi- duary legatee of the first testator(<7). [119] So, if there be two executors, one of whom appoints an ex- ecutor, 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 execu- torship 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 autliority to intermeddle 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(r). (/) Cora. Dig. Admon. B. 6. Vid. Burn. Eccl. L. 236. 3 Salk. 21. 11 Thomas v. Butler, 2 Lev. 56. Vin. Abr. 90. 91. 95. 108. Vanthieu- (m) 11 Vin. Abr. 89. Jo. 225. son v. Vanthieuson, Fitzgibb. 203. (n) 11 Vin. Abr. 88.92. 2 Roll. Johnson's case, Poph. 106. Rep. 158. {q) Com. Dig. Admon. B. 1. House («) Com. Dig. Admon. B. 6. Isted v. Lord Petre, Salk. 311. V. Stanley, Dy. 372. (;•) 11 Vin. Abr. 67, in note 89. Off. (/») 11 Vin. Abr.89.91.111. Rach- Ex. 101. Limmer v. Every, Cro. Eliz. field V. Careless, 2 P. Wms. 161. 4 211. 3 Bac. Abr. 13. CHAP, in.] WHEN VOIDABLE. 119 Sect. VIII. Hoio 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, without letters sub sigillo;[\) but it cannot be granted by parol(.s).(2) [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 \i{ii). Where administration is improperly granted, a distinction occurs between administrations which are void, and such as are only void- ' able. If there be an executor, and administration be granted before pro- bate and refusal, it shall be void on the will's being afterwards proved, although the will were suppressed, or its existence were unknown(y)(3), or it were dubious who was executor(z^;), or he were concealed or abroad(a:) 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 ex- ecutor, although he afterwards refuse(^), such administration shall be (s) 11 Vin. Abr. 70. Anon. 1 Show. (i<;) Com. Dig. Admon. B. 1. Robin's 408, 409. Godolph. 231. Com. Dig. Case, Moore, 636. Admon. B. 7. {x) 11 Vin. Abr. 68. Abram v. (/) 4 Burn. Eccl. L. 273. Cunningham, 2 Lev. 182. \u) Id. 233. {y) Com. Dig. Admon. B. 2. B. 10. (?;) Com. Dig. Admon. B. 1. Plowd. Abram v. Cunningham, 2 Lev. 182. 279. 282. Vid. Anon. 1 Show. 411. (1) As to the manner of granting administration in Pennsylvania, see ajite, page 83, note (2). (2) After a lapse of more than thirty years, the aiitliority and qualification of an ad- ministrator were presumed, from the existence of an inventory and schedule of claims in the probate office, attested by his oath; and a petition preferred by him to the Court of Common Pleas for licence to sell tlie'real estate of his intestate, with the original certifi- cate of the judge of probate thereon, recognizing him as administrator; the probate records and files of that period appearing to have been loosely kept; and no otljcr vestige of his appointment being discoverable. Battles v. Ilolley, G Greenl. Rep. 143. (3) It is part of the condition of the bond given by an administrator in Pennsylvania, "that he will surrender the letters of administration into the register's office, if it shall hereafter appear that any last will and testament was made by the deceased." Act of 15th March 1832, Sect. 24. (Pamph. Laws, 142.) 120 WHEN VOIDABLE. [bOOK I. void(l). It sliall also be void if 2;rantcd on the o;round of the ex- ecutor's becoming a bankrupt, as it was before the stat. [121] 38 Geo. 3. c. 87, if committed durante ininnriiate, where the infant execu- tor had attained the age of scventeen(z).(2) It shall also be void if granted by an incompetent authority, as by a bishop, where the in- testate had bona notabilia[a), or by an archbishop, of eifects in an- other province(6). In all these instances the administration is a mere nullity. The executor's interest the ordinary is inca])able of divesting. But there is another description of cases, where administration is not void, but voidable only by the act of the spiritual court, as if administration be granted to a party not next of kin(c), or to one of kin together with one not of kin, as to a sister and her husband(f/); or to the wife's next of kin instead of the husband(e); or if it be granted on the refusal of an executor who had before administered(y'); or if it be granted, non vocatisjure vocandis, without citing the necessary parties(^); or to a stranger(/i); or by fraud and misrepresentation, though otherwise duly granted (^),( 3) as where the grantee by false suggestions prevented a party in equal degree from applying; or in case administration be granted in con[122]sequcnce of the incapacity of the next of kin, and the incapacity be removed(A'); or if the gran- tee shall become no7i compos mentis, or otherwise incapable(/); or (2) 11 Viii. Abr. 09. 5 Co. 29 b. Ex. 40, 41. (a) 3 Bac. Abr. 36. Com. Dig. Ad- (g) 11 Vin. Abr. 115. Com. Dig. mon.B.3. Blackl)orough v. Davis, 1 Admon. B. 8. Ravenscroft v. Ravens- Salk. 39. 1 P. Wins. 44. 7G7. S. C. croft. 1 Lev. 305. (Z/) Allison V. Dickenson, Hard. 216. (/OH ^'in- ^^^r- J^^. Wilson v. (c) Com. Dig. Adnion. B. 6. Black- Pateman, INIoore, 396. borough V. Davis, Salk. 38. 1 P. Wms. (/) 11 Vin. Abr. 114. 117. Har- 43. S. C. rison v. Mitchell, Fitzgibb. 303. ((Z) Com. Dig. Admon. B. 8. Al. 30. (A) 11 Vin. Abr. 115. Offley v. (e) 11 Vin. Abr. 85. Anon. 1 Sid. Best, 1 Sid. 373. 409. (/) 11 Vin. Abr. 115, 116. (/) Com. Dig. Admon. B. 8. Off. (1) In Pennsylvania, by the 21st sect, of the act of 15th March, 1832, « relating to Registers and Register's Courts," no letters of administration shall, in any case, be origi- nally granted upon the estate of any decedent, after the expiration of twenty-one years from the day of his decease, except on die order of the Register's Court, upon due cause shown." (Pamph. Laws, 141.) In Massachusetts, by the 10th sect, of the Act of 9th March, 1784, administration originally granted upon the estate of any deceased person, af- ter the expiration of twenty years from the death of sucli person, is ipso facto void; and the defendant in an action brought by any one to whom administration has been granted after such period of tw'enty years, may plead, that the plaintiff is not, nor ever was administrator. Wales \. Willard, 2 Mass. Rep. 121. (2) Twenty-one years in Pennsylvania, Act of 15th March, 1832, sect. 23. (Pampli. Laws, 141.) (3) See the cases in which grants of administration arc void in Pennsylvania, Act of 15lh March, 1832, sect. 27. (Pamph. Laws, 142.) Shauffler v. Stoever, Adm. 4 Serg. k Raw le, 202. Observe tlie facts of tlie case. CHAP. III.] OF REPEALING THE GRANT. 122 if it be granted to a creditor before renunciation of the next of kin(m) ; it is not void, but voidable, and may be repealed.(l) If there be 4 residuary legatee, and administration be granted to the next of kin, though not void, it may also be repealed, whether there be any present residue or noi{n). Although a feme covert die entitled to several debts due to her before marriage, which by law do not belong to the husband, and her next of kin appear, and take out administration, it shall be repealed, and administration granted to the husband(o). . If there be two grants of administration, one by the metropolitan, and the other by the bishop, when there are not bona not abilia, the prerogative administration may be repealed(jo).(2) At common law the ordinary might repeal an administration at his pleasure, but now, since the stat 21 H. 8.,if administration be [123] 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 of its sufficiency(5'). Thus it was held that where the ordinary had elected to grant ad- ministration to the father, he had no power of repealing the admin- istration at the suit of a party alleging herself to be the widow(r). 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(5). And where administration was granted to the younger brother, 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 administra- tion had been granted pending a caveat(if). Nor, if administration be granted to a creditor, and afterwards a creditor to a larger amount appear, shall it be revoked for him(?/). So where administration during the infancy of the intestate's sister was eom[124]raitted to the great-grandmother, and though the grandfather, the plaintifi" in prohibition, suggested that the administration was granted by sur- (w) Com. Dig. Admon. B. 6. Eccl. L. 248, 349. Com. Dig. Ad- Blackborough v. Davis, 1 Salk. 38. mon. B. 8. Blackborough v. Davis, 1 4 Burn. Eccl. L. 249. Harrison v. P. Wms. 42. sed vid. Skinner, 156. Weldon, Stra. 911. ' (r) Sand's case, Raym. 93. S. C.3 (n) Com. Dig. Admon. B. 8. Salk. 22. 11 Vin. Abr. 115. vS. C. 1 Thomson v. Butler, 2 Lev. 56. 1 Ventr. Kebl. 667. 683. S. C. 1 Sid. 179. 219. S.C. (*) 11 Vin. Abr. 115. Offley v. {o) 11 Vin. Abr. 92 in note 116. Best, 1 Lev. 186. Dubois V. Trant, 12 Mod. 438. (<) H Vin. Abr. 116. Ayliffc v. {p) 11 Vin. Abr. 114. Aliens v. AylilTe, 2 Kebl. 812. Harrison v. Andrews, Cro. Eliz, 283. Com. Dig. Mitchell, Fitzgibb. 303. Admon. B. 8. {u) U Vin. Abr. 116. Dubois v. {q) 11 Vin. Abr. 114. 4 Burn. Trant, 12 Mod. 438. (1) See Frazier v. Griffith, 8 Cranch, 9. Iloijal v. Eppes, 2 Munf. Ucp. 479. (2) In Pennsylvania, the act of any Register in any matter whereof anotlier Register has the exclusive jurisdiction, shall be void and of no eflect. Act of 15th March, 1832, sect. 5. (Pamiih. Laws, 130.) 124 OF REPEALING THE GRANT. [bOOK 1. prise, and that, as he was nearer of kin, it ought to be granted to Iiim; the court thought, in this instance, propinquity to be no ground of jireference, and, since the ordinary had no power irt common h^w to grant such administration in the case of an infant next of kin, but only in that of an infant executor, having once executed his authority, the grant ought not to be repealed(e). So where A., an infant, was made executor and residuary legatee, and if he died under age, then B., another inHint, was appointed residuary legatee, and on the like contingency, the residue was bequeathed to C; administration during the minority of A. was granted to M. his mother; A. died intestate under age, B. was still an infant; and on the question "whether 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 administration during the in- fancy of B.(/). 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 (_§•). [125] But, in general, if administration be granted to a wrong party, in such case the ordinary may repeal it, and grant it to an- other, for he has not executed his authority, and it is a power inci- dent to every court to rectify its errors(A).(l) 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 husband, because the ordinary had no power or election to grant it to any other than to him(z). A person in possession of an administration, is not bound to pro- pound 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, although there be others in equal degree(/). If administration be repealed quia improvide, that is, where, on a false suggestion in respect to the time of the intestate's death, it (e) 11 Yin, Abr. 100. 116. Ld. Gran- L. 248, 249. Com. Dig. Admon. B. 8. dison V. Countess of Dover, 3 Mod. Blackburn v. Davis, 1 P. Wms. 42. 23. 25. Ld. Grandison v. Countess of sed vid. Skinner, 156. Devon, Skin. 155. Vid. Sadler v. (;) 11 Vin. Abr. 116. 4 Burn. EccL Daniel, 10 Mod. 21. L. 248. Sand's Case, 3 Salk. 22. (/) 11 Vin. Abr. 116. Dubois v. (A) Dabbs v. Chisman, 1 Phill.Rep. Trant, 12 Mod. 436. 438. 155. Hibben v. Calember^, lb. 166. {g) 11 V^in. Abr. 116. Taylor v. (/) 11 Vin. Abr. 115. Offleyv.Besl, Shore, 2 Jo. 161. 1 Sid. 293. (A) 11 Vin. Abr. 114. 4 Burn. Eccl. (1) The Register's Court has a right to revoke letters of administration where they have issued improperly, and direct new letters to issue to the proper person. Stoever v. Lud- ■wi^, 4 Serg. & Rawle, 201. See sections 22 and 25 of the act of 15th March, 1832. (P.imph. Laws, 140.. 142.) CHAP. III.] OF REPEALING THE GRANT. 125 issued before the expiration of a fortnight from that event; or where the court on committing it took security inadequate to the value of the property, it shall be granted to the same person (w). Nor can the ordinary revoke the grant on account of abuse, al- [126] though the letters were issued after a caveat entered, for he ought to take sufficient, caution in the first instance to prevent mal- .administration(w). Nor can he revoke it on the administrator's omission to bring in an inventory and account(o). If the grant regularly issue, and subsequent letters of administra- tion be obtained by collusion, such subsequent letters are void, and shall not repeal the former administration(/j). Some authorities maintain, that if the ordinary comrnit adminis- tration to the wrong party, and then commit it to the right, the se- cond grant is a repeal of the first without any sentence of revoca- tion(^); but in other cases it is held, that the first is not avoided except by judicial sentence(r). And the practice is, to call in and revoke the first administration before the second is granted. But after an administration by an archbishop, if tlie bishop to whom it belongs grant administration and then the first administration be re- pealed, the administration granted by the bishop before the repeal shall stand good (5). So in all cases where the first administration is repealed, the se- [127] cond shall be valid, though committed after the grant of the first, and before the repeal of it(^). If the ecclesiastical courts, in the granting or repealing of admin- istrations, shall transgress th^ bounds which the law prescribes to them, a prohibition from the temporal courts shall be awarded, as in the case above-mentioned, where the ordinary has granted a regular administration, and is proceeding to repeal it on insufficient grounds, such as mal-administration(w), or that the letters issued after a caveat entered(z;): but no prohibition to the ecclesiastical courts shall issue on suggestion, that they are about to repeal an administration grant- ed by surprise, or that they refused to commit the administration to the intestate's next of kin, but were proceeding to grant it to another, for the point, who is in fact next of kin, is of spiritual cognizance, and must be contested before the spiritual jurisdic- tion(i^;). How far the repeal of an administration aiFects the intermediate acts of the former administrator, remains now to be considered. (m) Com: Dig. Admon. B. 3. Offley 135 b. V. Best, 1 Sid. 293. (t) Com. Dig. Admon. B. 3. Vid. 2 (n) 11 Vin. Abr. 115. Com. Dig. Brownl. 119. Admon. B. 8. Thomas v. Butler, 1 (u) Thomas v. Bailor, 1 Ventr. 219. Ventr. 219. Al. 56. (0) 11 Vin. Abr. 116. Stv. 102. (v) Offley v. Best, 1 Lev. 186. Dub. (/^) 11 Vin. Abr. 114. 3 Co. 78 b. S. C. 1 Sid. 371., 1 Lev. 187. & (7) 11 Vin. Abr. 114. 4 Burn. Eccl. vid. supr. L. 249. (w) Blackboroiioh v. Davis, 1 P. (r) 11 Vin. Abr. 115, in note. PraU Wms. 43. 2 Bl. Com. 112. 11 Vin. V. Stocke, Cro. Eliz. 315. Abr. 92. 115. Com. Dig. Admon. B. (5) Com. Dig. Admon. B. 3, 8. Co. 7, 8. 12 127 OF PROHIBITION. [bOOK I. And here we must again recur to the distinction between such ri2S] administrations as are void, and such as are only voidable. If the grant be of the former description, the mesne acts of such ad- ministration shall be of no validity; as, if administration be com- milted on the concealment of a will, and afterwards a will appear; inasmuch as the grant was void from its co/nmencement, all acts performed by the administration in that character shall be equally void(.r). Or if administration be granted before the refusal of the executor, a sale by the administrator of the testator's effects shall be void, although the executor 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, and then sue the administrator for the debt, which is not extinguished by the adminish-ation(2:). So where an administratrix sued a debtor of the intestate, and, pending the suit, another by fraud procured a second administration to himself jointly with her, and after judg- ment released to the debtor, on which he brought an audita querela, and in the mean time the second administration was revoked, the release was held to be of no avail(a). Thus in all other cases the acts of the administrator are of no effect, where the administration is unlawful ab initio. [129] If the grant were only voidable, then another distinction 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(6). In case of an appeal, such intermediate acts of the administrator shall l)e ineffectual; because, as we have before seen, the appeal sus- pends the former sentence, and on its reversal it is as if it had never existed(c). But if administration be only voidable, and the suit be by cita- tion, 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 intestate; and such gift shall be available, even if it were with intent to defeat the second administrator, or were yc\^Aq pendente lite, on the citation; although by the stat. 13 Eliz. c. 5, it be void as to a creditor(fi^). So if ad- ministration 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 administrator; and his disposal of the goods pending the cause, and before sentence of repeal, shall be effect- ual(e).(l) If an administrator assign a term, and, on a subsequent (x) Com. Dig. Admon. B. 10. Abram (6) G Co. 18 b. V. Cunningham, 2 Lev. 182. 3 Bac. (c) Allen v. Dundas, 3 Term Rep. Abr. 50. 129. 11 Vin. Abr. 117. {_y) 11 Yin. Abr. 95. Abram v. {d) Com. Dig. Admon. B. 9. 1 Cunningham, 2 Mod. 146. Salk. 38. 6 Co. 18. b. 11 Vin. Abr. (2) Com. Dig. Admon. B. 10. Bax- 95. ter and Bale's Case, 1 Leon. 90. 11 (e) Blackborough v. Davis, 1 Salk. Vin. Abr. 94. 38. 11 Vin. Abr. 117. Thomas v. (a) Com. Diff. Admon. B. 10. Anon. Butler, 1 Ventr. 219. Dyer, 339. 6 Co. 19. (I) Benson, adm. v. liice et al. 2 Nott & M'Cord, 577. CHAP. III.] HOV/ A REPEAL. 129 citation to repeal the administration, it is confirmed, and on appeal the sentence is reversed, the assignment shall [130] 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 appeal had been brought in the first instance(/). But where an administrator sold a term in trust for himself, al- though the administration were revoked on a suit by citation, and not on an appeal, the assignment was decreed to be set aside(iO-j.(l) Whether the administration be void or voidable, a bond fide payment to the administrator of a debt due to the estate shall be a legal discharge to the debtor, by analogy to the case before stated in regard to such payment under probate of a forged will(/i).(2) In a case as early as the time of Charles the Second, where the ad- ministrator of the lessee paid rent to the administrator 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 adminis- trator of the lessor, as for rent which accrued due subsequently to the repeal, and obtained a verdict and judgment for the same, the defendant was relieved in equity in regard to the rent he [131] had paid, inasmuch as he had paid it to the visible administrator(i). This, however, is to be understood only where the grant is re- voked on citation; if it be reversed on appeal, the administrator's authority was suspended by the appeal, and of course such payments shall be void.(3) 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 committed to another, the writ shall be abated (A'). (/) Syms V. Syms, Raym. 224. 125, supr. Semine v. Semine, 2 Lev. 90. U (/) 11 Vin. Abr. 117. Finch Rep. Vin. Abr. 118. 40. {g) 11 Vin. Abr. 95. Jones v. (/,-) 11 Vin. Abr. 118. Bro. Admon. Waller, 2 Ch. Ca. 129. pi. 3. (A) Allen v. Dundas, 3 Term Rep. (1) Though the law is too well established now to be drawn in question, that an admin- istrator cannot, at either public or private sale, purchase in the goods of an intestate for his own use, yet if the goods are bona fide purchased by a tiiird person for his own use and benefit, without colhision between him and the administrator, neither the principles of law nor equity preclude the administi-ator from afterwards acquiring a right in the goods by a subsequent contract with sucli purchaser. Scott v. Bnrch, f) Ilarr. & Johns. 67; see the close of the judgment. (2) Peeble's Appeal, 15 Serg. & Rawle, 39. And where an administi-ator pendente lite, who has no power to make distribution of the estate, has made distribution according to law, the court will not compel liim to refund to the general administrator, in order that he may pay it over again to tlie same persons. Case of Bradford's Adrrdmstrators, P. A. Browne's Rep. 87. (3) In Pennsylvania, by the 42d sect of the act of 15tli March, 1832, (Pamph. Laws, 146,) " No appeal from the decree of the Register's Court concerning the validity of a 131 HOW A REPEAL AFFECTS MESNE ACTS. [bOOK I. Or if the administratoi", before the repeal, obtain a judgment for a debt due to the intcstjitc, he is not entitled to take out execution, but the defendant may avoid the judgment by an audita querela{l). So, if the defendant be actually in execution, the judgment shall be vacated in the same manner, and the execution set aside(m): for in such cases the plaintiff had no authority but by virtue of a commis- sion from the ordinary, and when that is determined, his authority is determined with it. But on affidavit to stay execution oa a judg- ment recovered by an administrator, on the ground that [132] the letters of administration were repealed before the judgment entered, it was held that tlie matter did not come legally in question before the court, and that the party ought to bring an audita querela{n). If administration be granted, and afterwards an executor appear, if the administrator have paid debts, legacies, or funeral expenses, he shall be allowed to deduct such payments in the damages recovered against him in an action by the executor(o),(l) If administration have been granted to a creditor, he has a right to maintain it against the executor of a will afterwards produced, or 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 (/>). But if administration be granted to a creditor, and he settles his own debt and goes away, it will be revoked, and a nevv administra- tion granted(§'). (/) 11 Vin. Abr. 102. 117. Com. («) 11 Vin. Abr. 117. Styl. 417. Dig. Admon. B. 10. Turner v. Da- (o) 3 Bac. Abr. 50. Plow. 282. vies, 2 Sand. 149. S. C. 1 Mod. 62. {p) Elme v. Da Costa, 1 Phill. Lut. 343. Rep. 173. (w) 11 Vin. Abr. 117. Ket v. Life, (y) In re Jenkins, 2 Phill. Rep. 33. Yelv. 125. 3 Bac. Abr. 51. will, or the right to administer, shall suspend the power, or prejudice the acts of any ad- ministrator or executor vho shall have given sufficient security to the register for the faithful execution of his ti'ust, and in case of the refusal of such executor to give such security, the said i-egister shall grant letters of administration dui-ing the dispute, which shall suspend the power of such executor during that time." Where a defendant has received letters testamentary on a will duly proved, he is au- thorized to perform every act proper for an executor to do, notwithstanding the pendency of the question relative to the validity of tlie will. Bradford v. Boudinot, 3 Wash. C. C. Rep. 122. A decree of the Register's Court revoking letters of administration, and directing them to issue to another person, which decree has been appealed from by the administrator, does not, while such appeal is pending and undetermined in the Supreme Court, suspend his power of proceeding to recover the debts due to his intestate. Shauffier v. Stoever, 4 Serg. & Rawle, 202. (1) An executor obtained letters on a will duly proved, which was afterwards caveated, and finally adjudged not to be the will of the deceased. Held, that it was his duty to sup- port the first probate, believing it genuine, and that he was entitled to retain out of the estate the amount of the funeral expenses, the expenses incurred in litigating the ques- tion of the validitj- of the will, and also tlie usual commissions for managing the estate while in his hands. Bradford v. Boudinot, .3 Wash. C. C. Rep. 122. BOOK I. OF THE RIGHTS AND INTERESTS OF EXECUTORS AND ADMINISTRATORS. CHAR I. op 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. An executor or administrator represents the person of the testa- tor or intestate in respect to his personal estate, the whole of which, generally speaking, vests in the executor immediately on the testa- tor's death: in the administrator, on the grant of letters of adminis- tration(«); and such grant hath relation to the time of the intestate's decease(6). The interest which such representative takes in the deceased's property is very different from that which belongs to him in regard to his own. Instead of being an absolute interest, it is only tempo- rary and qualified. He is not entitled in his own right, but [134] in aider droit, in right of the deceased. He is intrusted merely with the custody and distribution of the efrects(c). Hence, if a tenant for years die, having appointed him who has the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge, for he has the fee in his own right, and the term of years in right of the testator, and subject to his debts and legacies(r/). So if an executor be attainted of felony or treason, he incurs a forfeiture of all his own goods and chattels, but those of which he is possessed as executor sliall not be forfeit- ed(e). If he grant all his property, such as belongs to him in the charac- (a) Com. Dig. Admon. B. 10, 11. 525. 11 Vin. Abr. 54, 9 Co. 88 b. Co. Litt. 209. 3 Bac. Abr. 57. Off. Rutland v. Rutland, 2 P. Wms. 212. Ex. Suppl. 47. {d) 2 Bl. Com. 177. (i) Com. Dig. Admon. B. 1. 2 (e) Marlow v. Smith, 2 P. Wms. Roll. Abr. 554, 200. (c) Off. Ex. 85. 88. Plowd. 182. 134 OF THE NATURE OF [bOOK II. ter of executor shall not pass, unless he he so named in the grant(y), or unless he have no other property(^). If he become bankrupt, the commissioners cannot seize the spe- cific effects of the testator, not even in money, which specifically can be distinguished and ascertained to belong to the deceased, and not to the bankrupt himself(A). Nor can the testator's goods be taken in execution for the executor's debt, either on a recog[135]ni zance, statute, judgment, or for his debts of whatever nature(/), unless there be sufficient evidence, either direct or presumptive, of the executor's having converted the goods to his own use(A'), or un- less 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., where- by he was the less able to pay a debt due from 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 plain- tiff in that capacity(?7^). And where a creditor laid by for six or seven years, permitting the executor to remain in possession of the testator's property, the court refused to restrain by injunction a creditor of the executor from taking in execution the goods of the testator for the executor's own debt(;i). Nor can an executor bequeath the effects which he holds in that right(o). And if he die without a will, his administrator 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 [136] liable in the hands of the executor's representative, to the payment of the executor's debts(7j). So, if an executrix marry, all the personal chattels of which she is possessed of her own right, are of course absolutely vested in the husband. But in respect of the goods of the testator, they are not transferred by the marriage(5'). Nor if the husband of an executrix sue jointly with 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; (/) Off. Ex. 86. Vid. 2 Roll. Abr. ler J. contra. See also Whale v. 58. pi. 8. Ld. St. John's Case, 1 Leon. Booth, ibid. 625, in note, and 632. 263. Shep. Touch. 94. Marlow v. (k) Vid. Farr v. Newman, and also Smith, 2 P. Wms. 200. Quick v. Staines, 1 Bos. & Pull. 293. (g) Hutchinson v. Savage, Ld. (/) Per Lord Mansfield in Whale v. Raym. 1307. Booth. (A) Copeman v. Gallant, 1 P. Wms. (m) Off. Ex. 87. 319. Howard v. Jemmett, 3 Burr. (71) Ray v. Ray, Coop. Rep. 264. 1369. Bourne v. Dodson, 1 Atk. 158. (0) 11 Vin. Abr. 421. Plowd. 525. li) 11 Vin. Abr. 272. Com. Dig. Off. Ex. 86. Admon. B. 10. Off. Ex. 86. R. Farr. (p) Off. Ex. 86. V. Newman, 4 Term Rep. 621. I5ul- (7) Off. Ex. 87. CHAP. I.] AN executor's INTEREST. 136 for although he were privy to the judgment, yet he shall not re- cover the debt, because it belongs to the testator's representative(r). Nor shall a term in the hands of the husband in right of his wife as administratrix be extendible for his debt(.y). But where A. appointed his widow executrix, who continued in possession of his goods during threie months after his death, and at the end of that time married B., and, for half a year after the mar- riage, 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 admin- [137] istrator is entitled in that right, and so distinguishable is it from that which pertains to him in his own. The personal property, in which they are thus respectively in- terested, that is of a saleable nature, and may be converted into ready money, is called assets in the hands of the executor, or ad- ministrator, that is, sufficient, from the French assez, to make him chargeable to a creditor, and legatee, or party in distribution, so far as such goods and chattels extend(tf). The personal effects comprehend so wide a circle, that in order to view them with any distinctness, it is necessary they should be ar- ranged 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 vest [138] in the executor, or administrator, by condition, by remainder, or increase, by assignment, by limitation, and by election. I shall next inquire what chattels go to the heir, successor, de- visee, or remainder-man. Then show to what 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 adminis- trator takes in that character, may become his own. (r) 1 Roll. Abr. 889. tit. Execution. 293. (s) Ridlerv. Punter, Cro.Eliz. 291. (u) 1 Bl. Com. 510. Off. Ex. \t) Quick V. Staines, 2 Bos. & Pull. Suppl. 53. Shep. Touchst. 496. 139 OF THE executor's INTEREST. [bOOK II. • CHAPTER II. OF THE INTEREST OF AN EXECUTOK OR ADMINISTRATOR 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 im- moveajile goods, and, inasmuch as they are interests issuing out of, or annexed to real estates, in the immobility of which they partici- pate, by our law they are described as real. And also, as the ut- most period of their existence is fixed and limited, either for such a space of time certain, or till such a particular sum be raised out of such a particular income, and consequently are distinguishable from the lowest estate of freehold, the duration of which is necessarily indeterminate, they are denominated chattels(a). [140] Lands devised to an executor for a term of years for pay- ment of debts are assets in his hands(6).(l) Leases are likewise assets to pay debts, although the executor assent to the devise of them(c). And in case a term be devised to the executor, and he enter, and die before probate, the term shall be deemed to be legally vested in him by his entry, and the devise executed without the probate(c?). So a lease for years determinable on lives is a chattel interest, and shall vest in the personal represent- ative of such lessee(e). If an estate be granted to A. pur aider 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 there is no special occupant, the heir not (a) 2 Bl. Com. 386. 3Bac. Abr. 57, (c) 11 Vin. Abr. 233. Chamberlain 58. 60, 61. Off. Ex. 53, 54. 73. 11 v. Chamberlain, 1 Chan. Ca. 257. Vin. Abr. 173. 227. Pynchyn v. Har- ((/)Dyer, 367, a. ris, Cro. Jac. 371. Off. Ex. Suppl. 59. (e) Off. Ex. 54. (b) 1 1 Vin. Abr. 240. 2 Brownl. 47. (1) J\'immo''s H^. v. Tlie CommouweaHh,^ Hen. k Munf. 57. CHAP. II.] OF THE EXECUTOr's INTEREST. 140 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, the surplus of such estate, by the stat, 14 Geo. 2. c. 20, shall go in a course of distribution like a chat- tel interest(/). These statutes operate equally on grants of estates pur aider vie in incorporeal hereditamenfs; asif rent be granted to A. during the life of another, the rent by virtue of these [141] provi- sions has been holden to continue in the representatives of the gran- tee dying in the lifetime of tlie cestui que vic[g). Where A., tenant for three lives to him and his heirs, assigned over his whole estate in the premises by lease and release to B. and his heirs, reserving rent to A., his executors, administrators, 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 executors and administrators; the rent was held payable to A.'s executor, and not to his heir, on the ground that there was no reverson to the assignor, and the rent was expressly 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-entry would be a trustee for him (A). In case of a tenancy fi'om year to year as long as both parties please, if the tenant die intestate, the same interest as the deceased had shall devolve on his administrator(/). If the testator were lessee for years, fish, rabbits, deer, and pi- geons, shall belong to his executor as accessory chattels, partaking of the nature of their respective principals, namely, the pond, the war- ren, the park, and the dove-house(A;). If an executor hath a lease for years of land of the annual value of twenty pounds, rendering a rent of ten pounds a-year, it shall be assets only for the ten pounds over and above the rent(/). 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(m).(l) If an executor renew, the new lease as well as the old (/) 2 B], Com. 120. 258, 259, 260. (0 Doe on dem. Shore v. Porter, 3 Phillips V. Phillips, Prec. in Ch. 167. Term Rep. 13. Vid. also Gulliver on S. C. 1 P. Wms. 39. Duke of Devon, dem. Tasker v. Burr, 1 Black. Rep. V. Atkins, 2 P. Wms. 380. Vid. At- 596. Rex v. Willet, 6 Term Rep. kinson, Admx. v. Baker, 4 Term Rep. 295. James v. Dean, 11 Ves.jun.383, 229, and 6 Term Rep. 291. Milner and 15 Ves. jun. 236. V. Lord Harewood, 18 Ves. 273. (/.) Off. Ex. 53. 11 Vin. Abr. 166. (g-) Ilarg. Co. Lit. 41 b. Fearne's Harg-. Co. Litt. 8, note 10. Conting. Rem. 23^, 233. 3 P. Wms. (/) 3 Bac. Abr. 57. U Vin. Abr. 264, in note. Kendal v. Micfield, Bar- 230, pi. 42. S. C. 5 Co. 31. Off. Ex. nard, 46. Vid. also Stat. 5 Geo. 3. c. 8uppl. 55. Shep. Touchst. 498. Body 17. Sed. vid. 2 Bl.Com.260. Vaugh. v. llargrave, Cro. Eliz. 712. Sed.vid. 201. Cro. Jac, 545. (A) Jenison v. Lord Lexington, 1 P. (m) 11 Vin. Abr. 240. Prattle v. Wms. 555. • King, 2 Jo. 170. {\) DukcharVii Ex. v. 'Vhc SliUc, '\ ILirr. k Johns. 5O0. 13 141 OF THE executor's INTEREST [bOOK II. shall be assfets(7i). If A. be possessed of a term as executor, and [112] he purcliase the reversoii in fee, he is still chargeable for the assets in respect of the term, although it be extinguished, so that it shall be incapal)le of vesting in his executor(o). So if the executor of the lessee surrender the lease, it shall be considered as assets, al- tliough the term be extinct(7;). 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, dur- ing the term, the fee descended on B. ; it was adjudged, that, al- though by the descent of the inheritance, the term was inerged as to him, yet that it was in esse as to creditors, and legatees, and should be assets in his hands()Hydev. Rkinner,2P. Wms. lOG. b. y. 90 b. 1 Roll. IJnp. 181. 145 OF THE executor's interest [book II. chattels as relate to incorporeal hereditaments, as leases of [H6] tithes, tlic possession of the excaitor is necessarily constructive, be- cause 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 pos- sessed of tliem in contemplation of lavv(^^). 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, ui'iless he enter upon the lands(A). The executor of tenant from year to year, of an estate under the annual value of ten pounds, may gain a settlement by residing on it for forty days('/).(l) (g) Off. Ex. 108, 109. 11 Vin. Abr. (Q The King v. the Inhabitants of 210. StoTIe, G Term Rep. 29. (/O Off. Ex. 109. (1) By the laws agreed upon in England, it was provided " tiiat all lands and goods shall be liable to pay debts, except where there is legal issue, and then all the goods and one-tliird of the land only.'' (Prov. Laws, App. 4th edit. 1775. 5 Sm. Law's, 41G.) The act of 1700 (Purd. Dig-. 26'2, 1 Dall. Laws, 12) and 1705 (Purd. Dig. 264; 1 Dall. Laws, 267, 1 Sm. Laws, 57) subjected all lands, teiu;ments, hereditaments whatsoever, of a de- cedent to be sold for his debts, upon a deficiency of the personal estjite. And this liability has been held to extend to lands in the hands of a Z»o?!a_/!) Off. Ex. 56. (a) 11 Vin. Abr. 151. Com. Dig. (w) Baxter v. Buriield, Stra. 1115, Biens. B. Hunt v. Hunt, 2 Vern. 83. 1266. Rex v. Stockland, Dougl. 70. (c) Off. Ex. 108,109. 3Bac. Abr. 1 Burn. Just. 82 et seq. 2 Ves. 35. 57. Roll. Abr. 921. sed. vid. Off. Ex. 53, 56. ( 1 ) In Pennsylvania, executors and administrators, upon the death of any master or mis- tress Ijefore the expiration of the term of any apprenticesliip, may, provided the term of the indenture extend to executors or administrators, assign over the remainder of the term of such apprenticeship to sucli suitable person of the same trade or calling men- tioned in the indenture, as shall be approved of by the Court of Quarter Sessions of the county where the master or mistress lived. Act of 11th April, 1799. (Purd. Dig. 12. 4 Dall. Laws, 475. 3 Sm. Laws, 385.) Keimechj v. Savugc, 2 P. A. Browne's Rep. 178. (2) Act of Congress of 3(1 Feb. 1831 (Pampb. Laws, 11), re])ealing tlie acts of Congress of3Ist May, 1700, and 2'Jtb April, 1802. Ingersoll's Dig. (.aws U. S. 14). So where a copyhold 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.(w). So a lease granted by a copyholder for one year only shall 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 les- see(,r). If A. grant a rent in fee to J. S., with a proviso that, if it be in ar- rear, 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(2). So, a bond given by one parcener to pay the other, her execu- tors or administrators, an annual sum during the life of J. S. for [181] 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: be- cause in such case there is no grant of a relit, but a mere contract, and therefore the obligor had an election, either to pay the same, or to forfeit her bond(a). Money covenanted to be laid out in land, we have seen(6) shall descend to the heir. Nor is the case varied by the covenants being voluntary; as, if A. without any consideration covenant to lay out money in a purchase of land to be settled ©n 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 be- tween an executor and an heir, the latter shall in equity have the prefererice^c). But in such cases, if there be proof that the party ab- (0 Sacheverel v. Frogate, 1 Vent. W. Jo. 249. Litt. Rep. 233. 161, (y) 11 Vin. Abr. 147. Jemmot v. (u) 11 Vin. Abr. 155. Davis v. Cooly, 1 Lev. 171. Errincrton v. Gibbs, 3 P. Wms. 29. Hirst, Raym. 125. 158. 1 Sid. 223. {v) 11 Vin. Abr. 145. Dyer 5 b. 262. 344. ; note 1. ibid. Ards v. Watkins, Cro. (2) U Vin. Abr. 147. Lit. Rep. 59. Eliz. 637. 651. Moore, 549. S. C. (a) 11 Vin. Abr. 150. Hulbert v. (w) U Vin. Abr. 151, in note. Howe Hart, 1 Vern. 133. V. Howe, 1 Vern. 415. (/>) Supr. 8. (x) II Vin. Abr. 146. Poph. 188. (c) Edwards v. Countess of War- Harg. Co. Litt. 59, note 4. 4 Co. 26. wick, 2 P. Wms. 176. 9 Co. 75 b. Matthewes v. Weston, 16 181 OF CHATTELS REAL [bOOK II. solutcly, 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 he evidence of such intention, and if not, whether the heir has any equity against the j)ersonal repre- sentative in this respect, are points in which the cases seem in some measure to differ. But they all agree that even slender proof of the intention will decide the question(f/). Tluis, hy articles hefore marriage, securities for moneys amount- ing to the sum of £1400 were assigned to trustees, and agreed to be invested in land to he settled on the husband for life, remainder to the wife for life, remainder to the issue of the marriage, remain- der to the right heirs of the husband, some of the securities were continued unaltered, but part of the money settled was invested on other securities expressly in tnist for the husband, his executors and administrators. The husband died without issue, having made his will, by which he devised som.eof 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 securities for money to his wife, whom he appointed executrix. It was held that so much of the £1400 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 differ- ent trust, should be taken to be personal estate; upon the princii)le, 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 de- claring the trust to his executors seemed equivalent to his declaring that it should not go to his heir(e). But where A. executed articles of agreement for the purchase of land of B. and paid B. six hundred pounds; but B. paid A. Interest 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 entitled to the six [182] hundred pounds, as part of his personal estate(/). On the other hand, where A. died intestate, leaving two daughters, and after his decease the widow laid out the sum 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 ad- ministrators of the daughters claimed from the heir at law of the widow two-thirds as personal estate, and it was proved that the same four hundred pounds were applied in the purchase: although the {d) Edwards v. Countess of War- C. 269. Bradish v. Gee, Ambl. 229. wick, 2 P. Wms. 175, and note 1. Hewitt v. Wright, 1 Bro. Ch. Rep. 86. Chichester v. Bickerstaff, 2 Vera. 295. Pulkney v. Earl Darlington, 223. Lingen v. Sowray, 1 P. Wms. 172. (e) Lingen v. Sowray, 1 P. Wms. Lechmerc v. Earl' of Carlisle, 3 P. 172.- Wms. 2I1.S. C. Ca. Tcmp.Talb.80. (/) 11 Vin. Abr. 149. 2 Chan. Guidot V. Guidot, 3 Atk. 254. ib. Rep. 138. Crabtree v. Bramble, 680. 5 Bro. P ' CHAP. IV.] WHICH GO TO THE HEIR. 182 Master of the Rolls decreed for the administrators, yet on appeal 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 i. lease for ninety-nine years determinable on three lives, on the lord's refusal to renew but for lives absolutely, complied with his requisi- tion, and changed the years into lives; on the infant's dying under twenty-one, this was held to be a trust for his administi'ator, and not for his heir(/i). 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 pers-^nal 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 pro- perty, decreed an account, the land to be sold, and the money 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(l). But it appears, that if in such case the trustees obtain a decree in equity for the purchase, the court will maintain 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 general held to be part of the personal estate, and to belong to the executor of the mortgagee. But, under special circumstances, it shall be regarded in the light of real property, and shall go to the heir(/). At law, if the condition or defeasance of a mortgage of inheritance make no mention either of heirs or executors, to wl^om the money shall be paid, the money ought to go to the executors, for, being originally derived out of the personal estate, in natural justice, it ought to return thither. If the defeasance appoint the money, to be paid either to. the heir or executors, and the mortgagor pay the [184] money at or before the day, he may elect to pay it either 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 (g) 11 Vin. Abr. 153. Kendar v. (/.:) 11 Vin. Abr. 51. Awdley v. Milward, 2 Vern. 440. Awdley, 2 Vern. 192. Thomas v. Ke- (h) 11 Vin. Abr. 155. WiUer v. niisli, 2 Freem. 209. Earl of Winchel- Witter, 3 P. Wms. 99. sea v. Norcliffe, 1 Vern. 435. (i) 11 Vin. Abr. 151. 2 Chan. Rep. (/) Powell on Mortgages, 2d vol. 377. 682—698. (1 ) If the guardian of a minor child of an intestate accept for liis ward a purpart of the real estate of tlie iiilesUitc, adjudged to the minor by tlie Orphans' Court under proceed- ings in /)am7?). 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 un- less severed during the life of the ancestors, are the property of the heir(c). So, likevvise, 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 with the land to the heir; for these are either natural, or permanent profits of the earth(^). He is also entitled to such hedges and bushes as are standing at that time(e). [194] But, as I have already stated(/), 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 lands, and for the encouragement of husbandry, which is of so public a con- cern (,§•). The same law, on a similar principle, extends to other emblements, as hops, saffron, hemp, and the like(A). It has been asserted by a learned writer(i), that roots of all kinds, (z) 3 Bac. Abr. 65. Noy. Max. 50. Abr. G4. Off. Ex. 59. Swinb. 934, (a) Haro-. Co. Litt. 8. Com. Dig. 935, p. 7, s. 10. Biens, B. "l Roll. Abr. 916. Off. Ex. {d) Swinb. 934, 935, p. 7, s. 10. 53. 11 V^in. Abr. 166. 2 Burn. Just. (e) Off. Ex. 59. 3 Bac. Abr. 64. 369. 7 Co. 15 b. 3 Bac. Abr. 64. 2 (/) Supr. 150. Bl. Com. 427. {g) Off. Ex. 59. 3 Bac. Abr. 64. Qi) Harg. Co. Litt. 8, note 10. Vid. {h) Ibid, supr. 141. 148. (0 Off. Ex. 62, 63. Vid. also. Gilb. (c) Com. Dig. Biens. H. 3 Bac. L. ofEv. 249. CHAP. IV.] WHICH GO TO THE HEIR. 194 such as parsnips, carrots, turnips, and skirrets, shall go to the heir, since they cannot he taken without digging and hreaking the earth, which must of necessity be a detriment to the inheritance. It seems, however, perfectly clear, that these articles, as requiring an annual cultivation, fall within the like reasoning, which the law has adopt- ed in regard to corn, and consequently shall belong to the execu- tor(>t). But things whicli produce no annual profit are not comprehended under the name of emblements; therefore, although the testator himself hath sown the land v/ith acorns, or planted it with oaks, [195] alders, elms, or other trees, they shall not be classed as em- blements, 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 pro- perty in the natural produce, and in such instances that which was artificial cannot be distinguished from it(m). Wall fruit also, though greatly improved b}- culture, seem to fall within the same principle and to be the property of the heir. But the executor, we have seen, is entitled to hops, though growing on ancient roots, for they are produced by manurance and industry(?i). Although timber trees originally belong to the soil, yet, if A. seised in fee, sell the timber trees on his land to B. and B. died be- fore they are felled, they shall belong to his executor(o). 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 construction of law, they are abstracted from the earth, although they are not actually severed by the axe(/'). 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 actuall}^ felled in the lifetime of such tenant, otherwise they will [196] descend with the land-to the issue(<7). 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(r). 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 in- heritance they were re-uliited to the land(.s'). (/O Harg. Co. Lilt. 55 b. 2131. Com. (o) .3 ]}ac. Abr. Gl. IT. Ex. 51), GO. 123. Ip) :i Uac. Abr. Gl. OlF. Ex. GO. (/) 2 Bl. Com. 123. Com. Dig. (y) ll)id. Stukeloy v. Biillcr, Hob. Bieris. G. 1 Harg. Co. Litt. 55 b, 173. II Co. 50. (m) Com. Dig. Bicns. G. 1 Gilb. (?) Com. Dig. Biens. 11. llCo.50. L. of Ev. 219. Harg. Co. Litt. 5G. 4 Co. G3 b. (n) Harg. Co. Litt. 55 b. Cro. Car. (.v) II Vin. Abr. 168. Ow. 49. 515. Vid. siipr. 150. 17 190 OF IIETR-LOOMS. [bOOK II. Such personal chattels inanimate, as go to the heir with Ihe in- heritance, and not to the executor, arc, for the most part, denomi- nated heir-looms. The termination loom, in tlie Saxon language, signiiies 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 dismembering the freehold. Whatever, therefore, is strongly affixed to the inheritance, and cannot be severed from it without violence or damage, quod ah [197] mdihxis non facilh revellltur, is a meml)cr of tlie same, and shall pass to the heir, as cliimney-pieces, pumps, tables, and benches which have been long fixed(/). 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, millstones fixed to a mill, anvils, and the like. They are annexed to the freehold, and are held to form part of it(w). xVlthough pictures and looking-glasses generally go to the execu- tor, 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(.r). But at so remote a period as that of Henry the Seventh, it was adjudged, that if the 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 conse- quence his executor, may take it down during the term, if it can be removed without injury to the inheritance; that while the term [198] continues, he is the owner both of the floor and of the furnace, but tliat 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(r). Thus, modern tables, although fastened to the floor, grates, irons, ovens, jacks, clock-cases, in whatever mode annexed to the freehold, have by more recent cases been held to belong to the executor(a). So also have hangings, tapestry, beds fastened to the ceiling, and iron backs to chimneys(6). So, like- (0 2 Bl. Com. 427, 428. Ld. Petre Salk. 368. L. of Test. 380. V. Heneage, 12 Mod. 520. (z) 3 Eac. Abr. G3, in note. Lord (w) 4 Burn. Eccl. L. 25fi. 3 Bac. Dudley v. Lord Warde, Ambl. 113. Abr. f)3. Off. Ex. G2. 4 Co. 63, 64. Harvey v. Harvey, 2 Str. 1141. Swinb. p. 6, s. 7. («) 4 Burn. Eccl. L. 257. (x) L. of Test. 380, 381. Cave v. {b) 4 Burn. Eccl. L. 256. 259. L. of Cave, 2 Vern. 508. Ni. Pr. 34. Harvey v. Harvey, 2 Str. (jr) 3 Bac. Abr. 63. Keilw. 88. Ow. 1141. Ex parte Quincy, 1 Atk. 477. 70, 71. Off. Ex. 60, 61. Ex parte Beck v. Rebow, 1 P. Wms. 94. Quincy, 1 Atk. 477. Poole's Case, CHAP. IV.] OF HEIR-LOOMS. 198 wise in favour of trade, brewing vessels, vats for dyers, and soap- boilers' coppers.(l) So also furnaces, though fixed to the freehold, and purchased with the house(c). It has also been ruled, tliat a cyder mill(2) erected, on the land should go to the executor, and not to the heir. And in a case where the litigating parties were the executor of the tenant for life, and the remainder-man, the Lord [199] Chancellor 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(f/). Such latitude encourages improvements, and is beneficial to trade. But if the sub- ject 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 essentiel to its support, it shall not be taken away by the executor(e). The ancient jewels of the crown are also held to be heir-looms, for they are necessary to maintain the state, and to support the dig- nity of the existing sovereign(y). So, also the collar of S. S. is an heir-loom, and shall go to the heir(^). 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 wall, a monument or tombstone in a church, or the coat of armour of his ancestor there hung up, with the pennons and other ensigns of* honour suited to his degree(A). And the court will order an inspection of articles claimed by the plaintiff as heir-looms, in a chest at the bankers of the defendant, who insists by his answer that he has a lien on the contents of the chest(/). Pews also in a church may immemorially [200] descend from the ancestor to the heir, as appurtenant to his house(k). By the special custom of some places, carriages, and also various articles of household furniture and implements may be heir-looms. But such custom must be strictly proved (/). (c) Poole's case, Salk, 368. L. of 25G. 11 Vin. Abr. 1G6. Ni. Pr. 31. Ex parte Quincy, 1 Atk. (/) 2 Bl. Com. 428. Harg. Co. 477. Lawton v. Lawton, 3 Atk. 14. Litt. 18 b. 16. 11 Vin. Abr. 167. 172. Squier (g) 11 Vin. Abr. 167. Ow. 124. V. Mayer, 2 Freem. 249. Harg. Co. (A) 2 J31. Com.429. Harg. Co. Litt. Litt. 53, note 5. 18 b. (f/) Lard Hardvvicke in Lawton v. (i) Earl of Macclesfield v. Davis, 3 Lawton, 3 Atk. 15. See also Elwes Vcs. & Bea. 16. V. Maw, 3 East T. Hep. 38. (/.) 2 Bl. Clora. 529< 12 Co. 105. (e) Off. Ex. 61. 4 Burn. Eccl. L. (/) ibid. 428. Harg. Co. Litt. 18 b. (1) Gale V. Ward, 14 Mass. Rep. 352. But as between mortgagor and mortgagee who has taken possession, a kettle in a fulling mill used for dying clolh, being set in brick work, i>assed to the mortgagee. Union Jiank v. Emerson, 15 Muss. licp. 15'J. (2) llolmiiH V. Trcmper, 2>) .lohns. Hop. 29. See Hermance v. Vcrnoi/, G Jolins. Kcp. 5, and Jiiatllcij v. Overhoudt, 13 Johns. lii.[i. 40i, JMil/cr v. I'lainb, G Cow. Rep. 66.'., where llie question was Ijetweeii the vendor and vendee ol land. 200 OF HEIR-LOOMS. [bOOK 11. On the other hand, a granary built on pillars in Hampshire is by custom a cliattcl, and l^elongs to the exccutor(?n). The heir is likewise entitled to other personal chattels, inanimate, to which this appellation of heir-looms does not belong. An an- nuity, although only a chattel interest, is, as we have seen(n), descendible to the heir(o). 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, al- though a mere personal chattel, having no relation to lands or te- nements, nor partaking of the nature of a rent, was adjudged to the heir(yj). But such an annuity is personal property, and will pass under a will attested by two witnesses, by a residuary clause, be- queathing all the rest, residue and remainder of the personal estate to the executor(9). 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 parliament, 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 entitled to the land, and if the annuities should be redeemed by parliament, the money should be invested in the land, to be settled 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(7'). On the other hand, a per- petual annuity of 4000/. 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 pur- chase of lands to be settled in manner there mentioned, was not con- sidered as money to be laid out in land, but merely as a perpetual annuity, inasmuch as there was no certainty of the redemption(^). Where a copyhold tenement was burnt down, and money col- lected on briefs for rebuilding it was lodged in the hands of a guar- [201] dian of the tenant in tail, who died under age; it was held that the money should go to his heir, both because of the intail, and because it was copyhold; but 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 before execution, his heir shall have execution for the land or deed, and the executor for the damages(w). im) 11 Vin. Abr. 154. (r) Disher v. Disher, 1 P. Wms. In) Vid. supr. 118. 204. (o) Vin. Abr. 153. Argdo. Roper v. (a) Countess of Holderness v. Mar- Radcliif, 10 Mod. 237. vid also 11 Vin. quis of Carmarthen, 1 Bro. C. Rep. 377, Abr. 146, pi. 25. Dr. & Stud. 90. and 1 P. Wms. 206, in note. S. C. (p) Com. Dig. Bic'.is, A. 2. Earl (/) Com. Dig. Eiens, B. Rook v. of iStaflbrd v. Buckley, 2 Ves. 170. Warth, 1 Ves. 460. (/7)Aubin V.Daly, 4 Barn. & Aid. 59. {u) 11 Vin. Abr. 145. 169. Bea- CHAP. IV.] OF CHATTELS. 201 Sect. III. Of chattels which go in succession. Chattels given to corporation aggregate, as the dean and chap- ter of a cathedral church, the mayor and commonalty of a city, the head and fellows of a college, shall go in succession; but in case of a sole corporation, whether created by charter or prescription, as a bishop, parson, vicar, master of a hospital, and the like, chat- tels real and personal in possession, and in action, belong to their [202] respective executors. Such property shall no more go to their successors than it shall go to the heir; for succession in a body politic is inheritance in case of a private person(a). 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(6). So if an obligation or other specialty- be executed to him and his successors, he can take it only as a pri- vate individual, and not in his corporate capacity (c). But by custom a corporation sole may take goods and chattels in succession, as in London, where the chamberlain is a special corpo- ration for taking bonds for orphanage money. And such custom has been frequently adjudged good(cff). Also in some instances, particularly of chattels in action, the law is the same without a cus- tom(e). As if the president of the college of physicians recover in debt against a party for practising without a licence, 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(y). So, if the master of an hospital recover in that character the ar- [203] rears of an annuity due to the hospital, and die, they go to his successor, and not to his executor(^). mond V. Long, Cro. Car. 227. Off. {d) Harg. Co. Litt. 9 a. note 1. 4 Ex. 93. Com. Dig. Execution, E. Co. 64 b. Wilford, Chamberlain of 1 Roll. Abr. 889. London, Cro. Eliz. 4G4. 682. (a) Com. Dig. Biens, C. Franchises (e) Harg. Co. Litt. 9 a. note 1. Vin F. 16. 4 Co. G5. Harg. Co. Litt. 9 a. Abr. tit. Corporation, L. {h) 1 Roll. Abr. 515. (/) 1 Roll. Abr. 515. (c) 4 Co. 65. Dy.48a. 2B1. Com. (aO II^'^- 430, 431. 203 OF CHATTELS WHICH GO [bOOK H. Sect. IV. Of chattels which go to a devisee or remainder-man: and herein of emblements, and heir-looms. A DEVISEE of the lands is entitled to all those chattel interests which have been stated to belong to the heir(a); and in one re- spect he has an advantage to which the heir is not entitled. Such devisee, and not the executor of the devisor, shall have the emble- ments. Thus it has been held, that if A., seised in fee of land, sow, and devise it to 13. 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 tliem, but they shall go to him in remainder: Or that if the devisee be only to B,, and B. die before severance, there his executor shall have them, although 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 will(6). This distinction, how[204]ever, seems not very reasonable(c): It appears strange, that the corn should pass lo the 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 to the rights of the executor of tenant for life, as opposed to those of the remaintler-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 the corn that is sown, and the other emblements on the land, though the property of the soil be altered(e).(l) With the view of giving all possible encouragement to agriculture, the law has created a property in the emblements distinct and separate from (a) 2 Bl. Com. 428. {d) Winch. 51. Cox v. Godsalve, (6) Winch. 51. Gilb. L. of Ev. 248. Holt's MSS. 157. L. of N. Pri. 34. Vid. Grantham v. Hawley, Hob. 132. Swinb. 933, 934, p. 7, s. 10. (c) Harg. Co. Litt. 55 b. note 2. (e) Gilb. L. of Ev. 240. (1) So, if tenant for life make a lease for years, and die before the expiration of the term, the under tenant, or tenant for years, if he has sown the lands, is entitled to tlie crop. Bevaiis v. Briscoe, 4 Harr. k Johns. 139. In Pennsylvania, " tlie emblements or crops growing on lands held by a widow, widower, or by any other tenant for life, may be disposed of by will as other personal cstiite; also rents ai>d other periodical payments accruing to any such tenant for life, or to any other person entitled under the laws of this commonwealth, regulating the descent and partition of real estate, may, so far as the same have accrued on the day of the death of such tenant for life, or other person, be disposed of in like mamier. " Act of 8lh April, 1833, sect. 5, "relating to last wills and testaments." (Pamph. Laws, 249.) CHAP. IV.] TO A DEVISEE. 204 that of the soil, and has provided that such property shall be at the entire disposal of the owner, that he may not decline cultivation, lest the harvest should be reaped by a stranger. Tvloreover, the tenant who has sovv^n has acquired a property in the corn by his expense and labour. It was his own in its original state, and before 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 raising it(/). [205] On these principles the doctrine of emblements in respect to the executor of tenant for life is founded. Therefore, if such ten- ant 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 remain- der-man(^). 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 affirmation of the common law(^). If A. seised iti fee of land sow, and then convey it to B., and die before severance, the corn shall belong to B., and not to the execu- tors 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(A'). If A. seised in fee of land sow, and then convey it to B. for life, with re- mainder 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 donation, by which B. had a [206] right to the corn, C. is. entitled to it after the death of B.(/). If A. seised in fee sow land, and give it to B. for life, remainder 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(ni). If a disseissor of tenant for life sow the land, and such tenant die before severance, his executor, and neither the dis- seisor 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 executor, as emblements, or as distinct from the soil; for they are parcel of the inheritance, and are planted for the benefit of future 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(jo). If, (/) Gilb. L. of Ev. 241. v. Hawley, Hob. 132. Roll. Abr. 727. (g) Gilb. L.of Ev.242. Harg. Co. (m) Gilb. L. of Ev.248. Grantham Litt. 55 b. 6 Co. 116. Roll. Abr. 726. v. Hawley, Hob. 132. 727. (w) 2 IJac. Abr. 64. Goirlds. 143. (A) 20 Hen. 3. c. 2. (o) Gilb. L. of Kv. 242. 3.B1. Com. (/) Gilb. L.of Ev. 245. Harjr. Co. 123. Co. LiU. 55 b. Litt. 55 b. (/>) Gilb. L. of Ev.2l9. Com. Dijr. (A-) Gilb. L. of Ev. 247. Bicns, G. 1. H. Harg. Co. Litt. 55 b. (/) Gilb. L. of Ev.247. Grantham Lat. 270. 20G OF CHATTELS WHICH GO [bOOK H. aswc htivc seen, tlie tenant in fee make a lease excepting the trees, and afterwards grant the trees to the lessee, they arc not re-annexed to the inheritance, but the lessee has an absolute property in them, and they shall go to his executor(<7). 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 ex- ecutor, but to the remainder-man, or reversioner(r). So if A. ten- ant for life, with remainder to B. for life, cut down trees, they shall belong to him in reversion(A'). Yet, if there be a lessee for life, or years, without impeachment 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(i<).(l) But a lessee, though without impeachment of waste, has not an ab- solute property in the trees; for if they are not cut down in his life- time, 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, ex- cepting the trees, and died before they are cut, the trees are re-an- nexed, and shall not be severed by his executor(a?). [208] A tenant pur autervie 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 tlie corn be sown, the tenant pur aider vie, and in case of his death, his executor shall have the emblements(3/). The advantages of emblements are also extended to the parochial clergy by the stat. 28 H. S.c. \\{z). The lessees of tenants for life at common law, on the death of the lessors, exercised the unreasonable privileges of quitting the premises, and paying rent to nobody for the occupation of the land subsequent to the last quarter-day, orother day assigned for the payment of rent. For the representative of the tenant for life could maintain no ac- tion for the use and occupation, much less in case there were a lease; nor had the remainder-man such a right because the rent had not ac- crued due in his time(«). Nor could equity relieve by apportion- (y) Com. Dio-. Biens, H. 4 Co. G3 b. (») Lat. 163. (r) Com. Dig. Biens, H. 4 Co. G3. {y) 2 Bl. Com. 123. 11 Co. 82. (r) 2 Bl. Com. 123. vid. 1 Roll. (a) Com. Dig. Biens, II. A1.81. Abr.G55. (/) Com. Dig. Biens, H. Ilarg. Co. («) 2 Bl. Com. 124. 1 Fonbl. 2d Liu. 220. Moore, 327. 11 Co. 82 b. edit. 381. Jenner v. Morgan, 1 P. (u) 11 Co. 84. 1 Roll. Rep. 183. Wms. 392. Paget v. Gee,Ambl. 199. \w) 1 Roll. Rep. 182. Lat. 270. (1) Sec Shult V. Jiarker, 12 Ser-. Sc Rawle, 2-2. CHAP. IV.] TO THE REMAINDER MAN. 208 ing it(6). To remedy which hardsjiip it is now enacted by stat. 11 Geo. 2. c. 19, s. 15,(1) that the executors of tenant for life, on whose death any lease deter[209]mined, shall, in an action on the case, re- cover 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 construction, been extended also to the case of tenants in tail, where leases are de- termined by their deaths(c). Equity, however, will not in general apportion dividends of stock(c^); but where the money is laid out in a mortgage till a pur- chase can be made, the interest is capable of being apportioned(e), and the distinction seems to turn on this point, that the interest on a mortgage is in fact due from day to day, and, therefore, not properly an apportionment; whereas the dividends accruing from the public funds are made payable on certain days, and, consequently, cannot be apportioned(y). On the principle of this distinction, dividends of money directed to be laid out in land, and in the mean time to be in- vested in government securities, and the interest and dividends to be applied as the rents and profits would in case it were laid out in land, were held not to be apportionable, [210] though the tenant for life died in the middle of the half year(^). 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 secu- rities(A). But where, by a marriage settlement, maintenance for daughters was made payable half-yearly at Lady-day and Michaelmas, 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 estate, or by sale, mortgage, or lease of the premises, and one of the daughters attained the age of eighteen on the 16th of August, she was decreed to have mainte- nance^^ro 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 specified in every instance where it could happen, and where that could not be, it was a case notdirectly provided for by the setlement as to the time (J) Jenner v. Morgan, 1 P. Wms. wick, 2 P. Wms. 176. 392. Hay v. Palmer, 2. P. Wms. 502. (/) 1 Fonbl. 2d edit. 385. Hay v. sed vid. Anon. Bunb. 294. Palmer, 2 P. Wms. 501, and 503, note 1. (c) Paget V. Gee, Ambl. 198. Ver- (^z-) Com. Dig. Chancery (4. N. 5.) non V. Vernon, 2 Bro. Ch. Rep. 659. Sherrard v. Sherrard, 3 Atk.502. Wil- (d) Rashleigh v. Master, 3 Bro. Ch. son v. Harman, Ambl. 279. S.C. 2 Ves. Rep. 99. G72. sed vid. 3 Vin. Abr. 18. pi. 3. (e) Edwards v. Countess of War- (/t) Pearly v. Smith, 3 Atk. 260. (1) Tlie I4lli and 15lli sections of this statute are in force in Pennsylvania, 3 Biuii. 626. Roberts's Dig. 236. Sec Bevans v. Uiscoe, 4 llarr. ik Jolins. 140. 18 210 OF CHATTELS, &C. [bOOK II. of payment, but within the general provision of the maintenance it- self, which was expressed to continue till the portions should become payable (/). And even dividends of money in the funds directed to be applied to the maintenance of an infimt, or secured by the husband as a sepa- rate provision for his wife, would perhaps be apportioned in equity; inasmuch as it would be difficult for them to find credit for neces- saries, if the payment depended on their living to the end of the quarter(;t). And on this principle an apportionment of an annuity, being for the separate maintenance of a feme covert, has been allowed at law(/). Yet if the quarterly payments were originally prospec- tive payments by way of maintenance for the ensuing quarter, and not payable at the end of each quarter, in order to discharge the ex- pences incurred in the three preceding months, that circumstance might make a difference(wi). 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(n). [211] In regard to heir-looms, I have already stated, that the strict- ness of the ancient rule has in later time been relaxed, as between the executor and the heir(o). But it has been still more so, as between the executors of tenant for life, or in tail, and the reversioner(7>>). 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 considered as his personal estate, and shall go to his executor, and not to the remain- der-man. And indeed reasons of public convenience operate more strongly as between such parties, than even as between heir and ex- ecutor. A tenant for life would be discouraged from making im- provements, if the benefits of them might devolve, not on his per- sonal representatives, but on a remote remainder-man, -perhaps the next day after the improvements were effected (^). (i) Hay V. Palmer, 2 P. Wms. 501. - (n) 11 Vin. Abr. 145. Moore, 11. (k) Vid. 1 Fonbl. 2d edit. 386, and (o) Supr. 198. 2 Bl. Rep. 1017. (/;) L. of Ni. Pri. 34. (/) Howell V. Hanforth, 2 Bl. Rep. (rj) Lawton v. Lawton, 3 Atk. 13. 1016. Lord Dudley v. Lord Warde, Ambl. (m) Per De Grey C. J. 2 Bl. Rep; 198. 1017. CHAP, v.] CHATTELS REAL, &C. . 212 CHAPTER V. OP THE CHATTELS WHICH GO TO THE WIDOW. Sect. 1. 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 be- tween the husband and wife. As long as the relation continues, 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 principle, whatever personal property belonged to her when sole, is invested in the husband by the mar- riage(«). 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 distinguished into such [213] as are called possibilities, and such as are 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 ex- ecutory 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 devise, but as a remainder, and therefore is considered as a contingent interest.(6). In the chattels real of the wife present and vested, an interest of the nature of the joint tenantcy of the husband and wife is created by the marriage, and is a consequence of their legal unity, but subject to alienation by the husband in his lifetime(c); 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; but he may during the coverture alienate it, either directly or consequen- tially, by such acts as shall induce an alienation. He may sell, sur- render, or dispose of it in his lifetime at his pleasure. On his attain- (a) 2 Bl. Com. 433. Cora. Dig. {h) Harg. Co. Litt. 351, note 1. Baron & Feme, D. I. (c) Plowd. 418. 2 Bl. Com. 435. 213 . OP CHATTELS REAL [bOOK II. der or outlawry, it shall be forfeited to tlie king, or it may be taken in execution for his debts(f/). He has also during coverture a right to assign such possible and [214] contingent interests as have been just mentioned, unless, per- haps, in those cases where the possibility or contingency is of such a nature that it cannot happen during liis life. As where a lease is granted to the husband and wife for their lives, with remainder to the executors of the survivor(c). Or, unless, in equity at least, the future or executory interest in a term, or other chattel, were provided for the wife with the consent of the husband before marriage, for in that case his disposition of it would be a breach of his own agree- ment(y). If the husband dispose not of the chattels real of the wife in his lifetime, and die before her, they shall not pass by bis 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 possession(§-).(l) But, if the husband grant the term, on 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 disposition of the term, and the wife is barred of it, for the whole interest was passed away(/i). [215] If the husband and wife be ejected of the term, and the hus- band bring an ejectment in his own name only, and recover, this also is an alteration of the term, and vests it in the husband(^); for his suing alone is expressive of his intention to divest the wife of her in- terest, and to treat the term as exclusively 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(/t). So, the husband may make a lease of the term to commence after his death, and it shall be good, although the wife survive(/); but he can- not 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 survivorship she is remitted to the term, of which the coverture did not divest her{m). Nor if there be judgment against him, can execution be sued out after his death against the term(n); nor shall it after his death be ex- (d) 2 Bl. Com. 434. Harg. Co. (i) 1 Roll. Rep. 359. Harg. Co. Liu. 46 b. Plowd. 263. Litt. 46b. sed vid. note 6. ibid. (e) 10 Co. 51. Harg. Co. Litt. 4Gb. (k) Dyer, 183. Com. Dig. Baron and Feme, E. 2. (/) Grute v. Locroft, Cro. Eliz, 287. (/) Harg. Co. Litt. 351, note 1. Poph. 5. Ig) 2B1. Com. 434. Plowd. 418. (w) Harg. Co. Litt. 351. Plowd. (A) Com. Dig. Baron and Feme, E. 418. 2. Harg. Co. Litt. 46 b. («) 1 Roll. 344. 346. (1) A conveyance by a husbanil will pass the entire interest of his wife, entitled to a life estate in lands, in the event of his surviving; but if she survives him, it passes ordy an interest during liis life. Evam v. Kingshury, 2 Rand. Rep. 1'20. CHAP, v.] WHICH GO TO THE WIDOW. 215 tended on a statute or recognizance acknowledged byhim(o); nor, as it seems, for a debt due from him to the king(jy); Nor [216] 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 inci- dent to the reversion, inasmuch as the wife was not party to the lease, yet she shall have the residue of the ierm{q). If the term be ex- tended, the wife shall have the term after the extent is satisfied(r). If the husband and wife mortgage the term, and the husband pay the money, and enter and die, the wife shall have it{s). 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 ar- rears incurred inhis lifeT;ime(t^). Or if the husband be entitled to an advowson in right of his wife, and after an avoidance, but before pre- sentation 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, be- come absolutely and entirely his own by survivorship(.r), [217] and that without taking out administration to her(i/). To entitle himself to her chattels real, which are not so vested, he must make himself her representative by becoming her administrator. It seems formerly to have been doubted, whether, if, having survived his wife, he died during the suspense of the contingency on which any part of his wife's property 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 en- titled as well to this species of the wife's property(z), as to any other, which devolved to him either as survivor, or by virtue of the grant of administration. And although the husband's right to such grant be personal ©nly, 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 gran- tee is regarded in equity as a mere trustee for the representative of the husband(A). If the tenant in dower grant a lease for years, and marry, and die, the husband shall have the rent in arrcar in his wife's lifetime(c). (o) 1 Roll. Abr. 346. (x) Co. Litt. 300. Com. Dig. Baron (p) 2 Roll. Abr. 157. 1 Roll. Abr. and Feme, E. 2. 346. {y) Com. Di^. Baron and Feme,E. (o) Harcr. Co. Litt. 46 b. 2 Roll. Abr. 345. (r) I Roll. Abr. 344. (z) Hartr. Co. Litt. 351, note 1. («) Ibid. («) Supr. 116. It) 1 Roll. Abr. 350. Dembyn v. (b) Sed. vid. Harg. Co. LiU. 351, Brown, Moore, 887. . note 1. 1 Harg. Law. Tr. 475, in (u) Ibid. 350. note. (lo) Com. Dig. Baron and Feme, E. (c) Moore, 7. 3. Co. Lilt. 351. 217 OF CHATTELS PERSONAL • [bOOK II. And by the stal. 32 Hen. 8. c. 37, arrears of rent clue 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 the husband [218] be entitled to an advowson in right of his wife, and he survive, he shall have an avoidance which happened during the coverture(rf). If a wife were possessed at her marriage of a trust term to her separate use, the surviving huslnmd shall be entitled to it, except in special cases(e); as if, before "marriage, it were settled on her with the assent of the husband (/). If the husband and wife mortgage a term of the wife, and the husband survive, he shall have the equity of redemi)tion(^,^'-). If the husband sow the land of- which he is seised in right of his wife, and she die, he shall have the profits(/i). Or if he die before the wifeiind before severance, his executors shall be entitled 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 comifiitted to the ground be- longs 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(z). 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 the corn, and not the executors [219] of the hus- band; 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(A'). 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 tiie 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(/). Sect. II. • Of the chattels personal which go to the widow: and herein, of such personal chattels of the wife as go to the surviving husband. Chattels personal, or chases in action, as debts on bond, simple contracts, and the like, do not vest in the husband, until he receives (d) Com. Dior. Baron and Feme, E. {g) Young v. Radford, Hob. 3. 3. Harg. Co. Litt.351. (A) Gilb. L. ofEv. 245. Harg. Co. (e) Com. Dig. Baron and Feme, E. Litt. 55 b. 2: 1 Fonbl. 98. Sir Edward Turner's («) Gilb. L. of Ev, 246. Harg. Co, case, 1 Vern. 7. Pitt. v. Hunt, ib. 18. Litt. 55 b. note 5. Roll. Abr. 727. Tudor V. Samayne, 2 Vern. 270. Jew- {k) Roll. Abr. 727. son V. Moulson, 2 Atk. 421. Sed vid. (/) Gilb L. of Ev. 245. Roll. Abr. Countess Strathmore V. Bowes, 2 Bro. 727. 8ed vid. Harg. Co. Litt, 55 b. Chan. Rep. 345. et note 7. Vin. Abr. tit. Emblements, (/) Com. Dig. Chancery, 2 M. 9. pi. 16. Com. Dig. Biens, G. 2. L. of Harg. Co. Litt. 351, note 1. Test. 380. CHAP, v.] WHICH GO TO THE WIDOW. 219 or recovers them at law. When he has thus reduced them into pos- session, they become absolutely his own, and at his death, [220] shall go to his representatives, or as he shall appoint by his will, and shall not revest in his wife(a).(l) In respect to such choscs in action as vested in the wife before her marriage, the husband must sue jointly with her to recover them(6), (2) as to such of the wife's choses inaction, as accrued subsequent to the coverture, he may sue either in their joint names, or alone, at his pleasure(c).(3) (a) 2 Bl. Com. 434, Harg. Co. Litt. (c) Blackborn v. Greaves, 2 Lev. 351. 107. Howell v. Maine, 3 Lev. 403. {b) Com. Dig. Baron and Feme, V. Al. 36. Cappin v. , 2 P. Wms. 1 Roll. Abr, 347. Ow. 82. Wood- 497. Vid. Mitchinson v. Hewson, 7 ward v. Parry, Cro. Eliz. 537. Gar- Term Rep. 349. forth V. Bradley, 2 Ves. 676. 1 Sid. 25. (1) Lodge V. Hamilton, 2 Serg. & Rawle, 493. And the same rule prevails where the husband and wife jointly during the coverture become entitled to a chose in action. Ibid. But in Wliitaker v. JVhitaker, 6 Johns. Rep. 112, it was decided, that a husband who sur- vives his wife is entitled to all her choses m action, whether reduced into his possession in her lifetime or not. See also 5 Johns. Cha. Rep. 206. 'See, however. Roper's Law of Husb. and Wife, vol. i. p. 202. Udallv. Kenneij, 3 Cow. Rep. 590.. Bohn v. Headley, 7 Harr. &; Johns. 257. Hynes \. Lewis, 1 Tayl. Rep. 44. 5 Day's Rep. 294. As to re- versionary interests of the wife in personal property, she is entitled by survivorship to them against both the general and particular assignee of the husband, if he dies without having reduced them to possession. Hornsby v. Lee, 2 Madd. Rep. 16. Pur- de~M v. Jackson, 1 Russ. Rep. 1. In the last case, which was most elaborately argued, and all the cases referred to, the Master of the Rolls (Sir 1'. Plumer) asked the counsel who argued in support of the claim of the assignee of the husband (Mr. Sudgen and Mr. Shad- well) "if there was any case in which the husband having assigned the wife's present chose in action, and having died before the assignee obtained possession of it, the assignee prevailed over the surviving wife;" to which they replied, "that they believed that such a case had not occurred." He further observed in giving judgment, " that the act of the husband cannot take away or abridge the wife's right, unless he reduces the chose in ac- tion into possession — it is in vain for him to stipulate, that, though he is unable or unwill- ing to reduce it into possession, and (hough after his death it should continue to be a chose in action, his surviving wife shall not be entitled to recover it for her own benefit." As to present interests in personal i)roperty, the husband's assignment boyia fide, for a valuable consideration, divests in equity the title of the wife. Cassell v. Carroll, 11 Wheat. Rep. 134. See also jyVCallop v. Blount, Johnst(m\. Pasteur, Cam. & Norw. 90, 404. Byrne's Adin. v. Stewart, Ex parte Elmes, 3 Dcsaus. Rep. 135,155. When the husband obtains possession of the wife's personal property, he is entitled absolutely to it; and, in the absence of any contract or assumption on hispart, is not bound to pay lier debts, contracted before marriage, with it, if the wife die before payment of tliem. Beach v. Lee, 2 IJall. Rep. 257. Buckner v. Smith, 4 Desaus. Rep. 371. (2) Crazier v. Gano, 1 Bibb's Rep. 257. And where a bond and warrant of attorney are given to a feme dum .lola, who afterwards marries, the court upon affidavit of tiie facts, will ); 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(<7); 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 wi- dow, when the end and design of the widow's wearing her bona para- phernalia in memory of her husband could not have been answered, and therefore it is reasonable that in such case it should l)e reduced to a certainty, namely, that if there should not be assets real or per- sonal 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, thougli 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(/'). If the husband pawn the wife's paraphernalia, and die, leaving a fund sufficient to pay all his debts, and to redeem the pledges, she is entitled to have them redeemed out of his personal estate(*). [232] So where a husband pledged a diamond necklace of the wife, (A) Offley V. Offley, Prec. Chan. 27. Moore, 216. 3 Bro. P. C. 187. (0 Northey v. Northey, 2 Atk. 77. (p) Ridout v. Earl of Plymouth, 2 (/■•) 11 Vni. Abr. 180. Nels. Chan. Atk. 104. Rep, 179. (y) Burton v. Pierepoint, 2 P. Wms. (/) 1 Roll. Abr. 911. 80. (m) Barley v. Darley, 3 Atk. 398. (r) 2 P. Wms. 80, note 1. Tipping («) 2 Bl. Com. 436. Graham v. v. Tipping, 1 P. Wms. 729. Tynt v. Londonderry, 3 Atk. 394. Tynt, 2 P. Wms. 542, Lord Towns- {()) 2 Bl. Com. 436. Tipping v. hend v. Windham, 2 Ves. 7. Snelson Tipping, 1 P. Wms. 730. Tynt v. v. Corbet, 3 Atk. 369. Tynt, 2 P, Wms, 511. Snolson v. (.s) (•rahain v. Londonderry, 3 Atk. Corbet, 3 Atk. 309. Bindon's case, 395. CHAP, v.] OF PARAPHERNALIA. 232 as a collateral security for money borrowed on a bond, and autho- rised 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 only of the effects of the husband as he shall give her by his will, she is ex- cluded from her paraphernalia(w). But her necessary apparel shall, in all cases, be protected, as decency and humanity require, even against the claims of creditors(z^).(l) If the husband bequeath to the widow her jewels for her life, and then over, and she make no election to have them as her parapher- nalia, her executor shall have no title to demand them{w). (0 Ibid. 3 Atk. 393. («)2Bl.Com.436. 2Roll.Abr.911. (m) 3 Bac. Abr. 66. Com. Dig. (w) Clarges v. Albemarle, 2 Vern. Baron and Ferae, F. 3. Comely v. 246. Comely, 2 .Vern. 49. S. C. 83. (1) By the 3d section of the act of 10th April, 1828, entitled " An act for the relief of the Poor," (Pamph. Laws, 286. • Purd. Dig. 296, Ed. 1831,) if any person die after the first day of September, .1828, leaving a widow, and not leaving estate sufficient to pay his debts, exclusive of the articles enumerated in the first section, vi^;. household utensils not exceeding in value twenty dollars, the necessary tools of a tradesman, not exceeding in value twenty dollars, all wearing apparel, two beds and the necessary bedding, one cow, two hogs, six sheep, with the wool thereof, and the yarn and cloth manu- factured therefrom, and feed for the said cow, hogs, and sheep from the first of Novem- ber to the last of May, a stove with the pipe of the same and necessary fuel, a spinning wheel and reel, and any quantity of meat not exceeding one hundred pounds, six bushels of potatoes, six bushels of grain and the meal made therefrom, and any quantity of flax not exceeding ten pounds, the thread or linen made therefrom, and all bibles and school books in the use of the family, his widow shall be allowed to retain the said articles for her own use, and that of her family. 233 OF A DONATION MORTIS CAUSA. [bOOK 11. CHAPTER VI. OF THE INTERESTS OF A DONEE MORTIS CAUSA. Another species of interest in the personal property of the de- ceased remains to be considered. Such as vests neither in his ex- ecutor, nor his heir, nor his widow, in those respective characters. It is created by a gift under the following circumstances. 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(«).(l) A party's wife is as capable of such gift-as any other person(5).(2) And so is a negro brought to England as a slave, for the moment he set foot on English ground he was free(c). To substantiate the gift, there must be an actual tradition or de- livery of the thing. The possession of it must be transferred in point of fact, and established by evidence beyond suspicion(^).(3) [234] The purse, the ring, the jewel, or the watch must be given into the hands of the donee, either by the donor himself or by his or- der(e).(4) But there are cases in which 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 (a) 2B1. Com. 514. 11 Vin. Abr. {d) Walter v. Hodge, 2 Swans. 176. Hedges v. Hedges, Prec. in Ch. Rep. 92. 269. Drury V. Smith, 1 P. Wins. 404. (e) Ward v. Turner, 2 Ves. 431. (Z») Lawson V. Lawson, 1 P. Wms. Tate v. Hilbert, 2 Ves. jun. 111. 441. Miller v. Miller, 3 P. Wms. 356. Drury v. Smith, 1 P. Wms. 404. Law- (c) Shanley v. Harvey, 2 Eden's son v. Lawson, 441. Rep. 126. (1) Wella V. Tticker, 3 Binn. 370. (2) So a delivery to Uie wife of the donor, for the use of a third person, is a sufficient de- livery to make a good donatio mortis causa. Wells v. Tucker, 3 Binn. 366. , (3) To this principle is to be referred the decision in Windoivs v. tMitcJiell, 1 Murphy's Rep. 127, and upon this ground it may be sustained. (4) There is no difference in the delivery required in cases of donatio caiisa mortis, and other cases of parol gifts; in all such cases, the only question is, whether tlie donor has parted with his dominion over the property or not; and Iience if the possession pass from the donor to the donee in his presence, and with his consent, whether it be delivered by his hand or only by his direction is immaterial. JSt'Doiuell v. JMurdock, 1 Nott &c M'Cord's Rep. 237. CHAP. VI.] OF A DONATION MORTIS CAUSA. 234 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 dona- tion might be effected by deed or writing(y). The delivery also of the key of a wai'ehouse, in which goods of bulk were deposited, has been determined to be a valid delivery of the goods for such a purpose(^). So the delivery of the key of a trunk has been decided to amount to a delivery of the trunk, and its contents(^). 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 property (z). So a bond(l) given in prospect of death, although a chose in action, is a good donation mortis causa, for a property is conveyed by the delivery(_y). Such, likewise, have been the decisions in [235] regard to bank notes(^'). In all these cases, the donor delivers as complete a possession as the subject matter will permit. But bills of exchange, promissory notes,(2) and checks on bank- ers, 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 de- struction of which destroys the demand; whereas the bills and notes are only evidence of the contract(w). Nor shall a delivery merely symbolical have such operation. As, where on a deed of gift not to take place till after the grantor's death, a sixpence was delivered by way of putting the grantee in posses- sion; the ecclesiastical court held such delivery to be insufficient for the purpose, and pronounced for the instrument as a will(?i). 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(o). Least of all shall such donation be effectuated by parol, as, merely saying, " I give," without any act to transfer the property(/)). 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 con- (/) Tate V. Hilbert, 2 Ves. jun. 120. Miller v. Miller, 3 P. Wms. 356. Hill Ig) Ward V. Turner, 2 Ves. 434. v. Chapman, 2 13ro. Ch, Rep. 612. (A) Jones v. Selby, Free, in Chan. (/) Miller v. Miller,3 P. Wms. 356. 300. Ward v. Turner, 2 Ves. 441. Ward v. Turner, 2 Ves. 442. Tate v. Vide also Tate v. Hilbert, 2 Ves. jun. Hilbert, 4 Bro. Ch. Rep. 291. 116. {rii) Ward v. Turner, 2 Ves. 442. (/) Ward V. Turner, 2 Ves. 443. ('/) Ibib. 2 Ves. 440. ( j) Sudgrove v. Baily, 3 Atk. 214. ^0 I^id. 2 Ves. 431. Ward V. Turner, 2 Ves. 441. Blount (y>) Ibid. 2 Ves. 444. Tate v. Hil- V. Burrow, 4 Bro. Ch. Rep. 72. bert, 2 Ves. jun. 120. (Jc) Drury v. Smith, 1 P. Wms. 404. (1) Wells V. Tucker, 3 Binn. 366. Gardner v. Parker, 3 Madd. Rep. 184. And see Hurst V. Beach, 5 Madd. Rep. 351, which was the case of mortgage deeds and of a bond. (2) Contra, frriffht v.' Wri^'ht, I Cowen'slicp. 598. 20 235 OF A DONATION MORTIS CAUSA. [bOOK II. tainino- it, and declared it to be his intention that they should have such proi)orty upon his death, and then returned it to the chest and kept the keys in liis own possession, never having made an actual delivery thereof to the parties or to trustees for thcm(<7). Nor shall a present absolute [236] gift be considered as of .this denomination. To bring it within the class, it must be made to take etiect only on the death of the donor(;-). Therefore, the gift of a check on a banker, <*Pay to self or bearer, two hundred pounds," and also of a promis- sory note, being absolute and immediate, was held clearly on that ground, to be no donatio 77io)'t2S c(nisd{s). But where the donor gave a bill on his banker with an indorsement expressing that it was for the donee's mourning, and giving directions respecting it, the bill was decided to be an appointment in the nature of such dona- tion, since it was for a purpose necessarily supposing death(/). Simple contract debts and arrears of rent are incapable of this species of disposition, because there can be no delivery of them(?;). Whether the delivery of a mortgage deed will amount to such gift of the money due on the security, seems to have been an undecided point(i'), until very lately, but it has been recently held, that a mort- gage, or a bond given as a collateral security for money due on mortgage, cannot be made the subject of a donatio mortis causu{w). If the donor die, the interest of the donee is completely vested; nor is it necessary that the gift should be proved as part of the will, it operating on the executor as a declaration of trust, and his assent [237] to it is not requisite, as in the case of a legacy(ar). But the gift, however regularly Inade, shall not prevail against creditors(y). Such is the interest which the executor, the heir, the successor, the devisee, the remainder-man, the widow, and the donee mortis cau- sa of the testator resjiectively take in the personal effects. (^) Bunn V. Markham, Holt's Rep. C. 2 Ves. 436. Hassell v, Tynte, 352. 7 Taunt Rep. 224. Ambl, 318. 11 Vin. Abr. 178. Law- (r) Tate v. Hilbert, 2 Ves. jun. 120. son v. Lawson, 1 P. Wins. 441. Mil- (s) Tate V. Hilbert, 2 Ves. jun. HI. ler v. Miller, 3 P. Wins. 357. 4 Bro. Ch. Rep. 286, S. C. {w) DufBeld v. Elwes, 1 Sim. & (/) Lawson v. Lawson, 1 P. Wins. Stu. 239. 441, et vide Tate v. Hilbert, 2 Ves. {x) 2 Bl. Com. 514. Tate v. Hil- jun. 111. bert, 2 Ves. jun. 120. (u) Ward V.Turner, 2 Ves. 436. 442. {y) 2 Bl. Com. 514. Tate v. Hil- («) Vid. 3 P. Wms. 358, in note. S. bert, 2 Ves. jun. 120. CHAP. VII.] EFFECTS OF EXECUTORS. • 238 CHAPTER VII. HOW EFFECTS WHICH AN EXECUTOR TAKES IN THAT CHARACTER MAY BECOME HIS OWN. The property which an executor takes in his representative ca- pacity may, in certain instances, be converted into his own. As, first, in regard to the ready money left by the testator. On its coming into the hands of the executor, the property in the specific coin nuist of necessity be altered ; for when it is intermixed with the executor's own money, it is incapable of being distinguished from it, although he shall be accountable for its value; and therefore a creditor of the testator cannot by fieri facias on a judgment recov- ered against the executor, take such money as de bonis testaroris in execution(«). So, if the testator died indebted to the executor, or the executor not having ready money of the testator, or for any other good reason, shall pay a debt of the testator's with his own money, he may elect to take any specific chattel as a compensation; and if it be not more than adequate, the chattel by such election shall become his own(6):(]) consequently, if by such election he acquire the absolute ownership of the chattel, and die, his executor may de- fend himself in an action of de[239]tinue brought for the same by the surviving executor of the first testator. But if the debt due to him from the testator amount to the full value of all his effects in the executor's hands, there is a complete transmutation of the property in favour of the executor, by the mere act and operation of law: in the former case his election, and in the latter the mere operation of law, shall be equivalent to a judgment and execution, for he is incapable of suing himself(c).(2) So in the case of a lease of the testator devolved on the executor, such profits only as exceed the yearly value shall, as it has been al- ready stated, be held to be assets; it therefore follows, that if the ex- ecutor pay the rent out of his own purse, the profits to the same (c) Off. Ex. 89. 185. infr. (i) Off. Ex. 89. Dy. 187 b. Plowd. (c) Plowd. 185. (1) lAvingston v. J^erwkirk, 3 Johns. Cha. Rep. 312. But he cannot make the property of the testator his own by paying debts out of his own moneys to the value of the appraise- ment. Hally. Gr(^s of the deceased, which have or shall come to his bands, possession or know- ledge, with two or more sufficient sureties. And by the second section ot" the act ot '27th March, 1713 (Purd. Dig. Gl 1. I Ball. Laws, 98. 1 Sm. Laws, 81 ), " Where ) Vid. 2 Bl. Com. IGO. 2 Reeve's (rft) Smith V. Haskins, 3 Atk. 385. Hist. Eng. L. IGO. 393. 4 Reeve's Worsley v. Earl of Scarbro', 3 Atk. Hist. Eng. L. 253, 254. Sull. Lect. 392. Mason v. Williams, 2 Salk. 507. 155,156. 11 Vin. Abr. 297. 3 Bac. Abr. 83. 23 273 OF STATUTES. [bOOK III. with the mayor or chief warden, and the other be deposited with the clerks, one of whom, with his own hand, shall write an obliga- tion, 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 payment expired, then the statute prescribes certain steps to be taken for the recovery of the debt. This obligation is called the statute merchant. In regard to the kind of statutes secondly above mentioned, the staple, that is to say, the grand mart for the principal commodities and manufactures of England, was by the stat. 27 E. 3. held in certain trading towns. And in order that contracts made within the same might be more effectually enforced, that act directs a course similar to a statute merchant, and enacts, that every mayor [274] of the staple shall have power to 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 all the king's subjects in general, by virtue of the stat. 23 // 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 cog- nizor, 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 sub- scribed. 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 ol^i- gation, the cognizee shall have the same advantages in every respect as in the case of an obligation by statute staple. The obligation [275] pursuant to this act is styled a recognizance 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(y), yet both species of securities (y) 5 Co. 28 b. CHAP. II.] RECOGNIZANCES AND STATUTES. 275 having been entered into voluntarily and privately, are regarded as equal in their nature, and payable in the same order(/'). Nor is it material in regard to payment by the executor, which of them are prior or subsequent in point of date. Therefore, where there are many cognizees, he may prefer a subsequent to a prior statute or re- cognizance, for they all equally affect the personal estate; although, as to lands, the first in point of time shall have the preference(5). If the statute or recognizance be defeasanced for the payment of a sum of money 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 present and immediate duty to be discharged at a future period(/). So, where a testator acknowledged a recognizance in the nature of [276] 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 a 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 intend- ment 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(M). 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 cannot plead this statute; for per- haps the covenants may never be broken, and it would be unreason- able to allow him to elude a just debt on a contingency which may never happen(v). 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 iime(w). [277] If a statute be joint and several, the cognizee may elect to sue either the surviving cognizor, or the executor of him who is dead, or both in separate actions. If it be joint only, the survivor alone is liabie(a:). The remedy on the statute is more expeditious than on a recog- nizance; since execution may be taken out on a statute without a scire facias, or other suit. But in case of a recognizance, 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, aUhough (r) Off. Ex. 140. V. SydnoT, Cro. Car. 362. (5) Off. Ex. 140.' 3 Bac. Abr. 81. (v) 3Bac. Abr.81. 5 Co. 28. Swinb. Roll. Abr. 925. Com. Dig. Admon. C. p. 6, s. 16. 2 Swinb. p. 6, s. 16. {w) Roll. Abr. 925. (0 11 Vin. Abr. 286. 1 Roll. Rep. (x) U Vin. Abr. 288. Rogers v. 405. Vaugh. 104. Danvers, 1 Mod. 165. (u) 11 Vin. Abr. 286. Goldsmith 277 OF DEBTS BY SPECIALTY. [bOOK III. a year be not elapsed, yet a scire facias must be sued out against his executor(y). If a scire facias be sued out on a recognizance, an executor shall not defeat it by a voluntary payment of a debt by statute: but if, be- fore judgment on the scire facias, execution be sued out against him on the statute, it shall prevail(r). A recognizance not enrolled shall be considered as a bond, and payable accor(lingly(<'/), the sealing and acknowledgment of it sup- plying the want of a delivery. So a statute not regularly taken may be good as an obligation(/;). [278] Nor are other inferior dci)ts of record to i)e forgotten; as issues forfeited; fines imposed by the judges at Westminster, or at the assizes; by the justices at quarter sessions; by commissioners of sewers, or of bankrupts, or by stewards of leets, and the like; for all these are debts of record, and so payable by the executor(c). Of all of which, as well as those by recognizance or statute, he is bound to take notice at his peril(6/). Sect. III. Of debts by specialty^ and herein of rent: — of debts by simple contract. The class of debts next in succession are debts by special con- tracts; as for rent, and also on bonds, covenants, and other instru- ments under the seal of the party. Although, in regard to rent, the lessor has a remedy often more efficacious in his own hands by distraining; yet, between a debt by obligation, and a debt by covenant for a sum certain, or for dama- ges on a breach of covenant, and a debt for rent, there is no dis- tinction of rank: they are all debts of the same degree(a). Nor [279] 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 determina- tion of the lease: the contract remains in the realty, although the right of distress be gone(6). {y) Off. Ex. 140. 511. Com. Dig. Admon. C. 2. Plu- (z) Off. Ex. 140, in note. 11 Vin. mer v. Marchant, 3 Burr. 1384. See Ahr. 299. 2 Anderson, 157, pi. 87. also Gage v. Acton, 1 Salk. 320. (a) Bothomly v. Lord Fairfox, 1 P. {b) 3 Bac. Abr. 82. 96. Newport v. Wms. 334. 2 Vern. 750. S. C. Godfrey, 3 Lev. ^67. S. C. 2 Ventr. (6) Cro. Eliz. Hollingworth v. As- 184. Gage v. Acton, Com. Rep. 67. cue, 355, 461. 544. 2 Roll. Abr. 149. Stonehouse v. Ilford, 145. Godfrey v. (c) 11 Vin. Abr. 278. Off. Ex. 118. Newport. Comb. 183. 11 Vin. Abr. (d) Bothomly V. Lord Fairfax. Vid. 289, in note. Vid. 3 Bl. Com. II 2 Vern. 750. Stat. 8 Ann. c. 14. (a) Off. Ex. 146. 2 Bl. Com. 465. CHAP. II.] OF DEBTS BY SPECIALTY. 279 But it is necessary 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 death. For rent, which was in arrear in the testator's lifetime, the exe- cutor is liable merely in that character; as the testator's debt, he can be sued for it in the detinet only, and to such action may plead that he has fully administered(c): whereas, for the subsequent rent, the executor is in general regarded as personally responsible. He has no right, as we have already seen((/), to waive the term, for he must renounce the executorship in tofo, or not at all; and if he entered on the demised premises, as by his office he is bound to do, the lessor may charge him as assignee in the debet and detinet for the rent in- curred subsequently to his entry(e). If the profits of the land exceed the amount of the rent, as the [2S0] \diW 2Jrimd facie supposes, such of the profits as are sufficient to make up the rent shall be appropriated to the payment of the lessor, and cannot be applied to any other purpose. Therefore, if in such case the lessor bring an action against the executor for the rent, he cannot plead jjlene administravit, for that plea would confess a misapplication of the profits; since no other payment out of them can be justified till the rent be answered(/). 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 summer; 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, although the lease for the whole term may be of no small value; as in the case of a lease of woods, which are fellable only once in eight or nine years, and the felling has been very recent(A). 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 [281] and detinet, he must disclose the matter by special pleading, and pray judgment whether he shall be charged, otherwise than in the detinet only, for more than the actual profits(2). 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 should prove insufficient, the residue of the rent is payable out of the gene- (c) Lyddall v. Dunlapp, 1 Wills. 4. (/) nuckley v. Pirk, 1 Salk. 317. Com. Dirr. Adrnon. 13. 14. (aO OO". Ex. Hi). (d) Supr. 143. (A) Ibid. (e) JJillin^hurst v. Speerman, 1 («) Buckley v. Pirk, 1 Salk. 317. Salk. 2^7. 317. Off. Ex. 147. 281 OF DEBTS BY SPECIALTY. [bOOK III. ral assets, and stands on the same footing with other dehts by specialty. Debts by bond, and other instruments under the seal of the party, are of the same class with debts for rent(^); 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 married 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 sim- ple 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 disap- pointment of all the simple contract creditors(7/i.), though equity will marshal the assets in their favour(?i). An executor is also bound to pay a debt on specialty before a debt by simple contract, although the bond be not yet due. For the obligation is a present duty, and the condition is but a defeasance of it(o). 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(/?). 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 prefer- ence [282] to A.: 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 executor to pay which of them he thinks proper{q). By the cus- tom of London, if a citizen of London die indebted to another citi- zen by simple contract made within the city, such debt is equal to a debt by specialty, and the payment of it by the executor shall be binding on the obligor of a bond, though a stranger and no citizen(r). In the administration of assets, a contingent security, as for exam- ple a bond to save harmless, shall not stand in the way of a debt by simple contract(5). And if, subsequently to the payment of the simple contract debt, the contingency should happen, it seems rea- sonable that evidence of such payment should be admitted on the (k) Off. Ex. 146. . V. Morrice, Ca. Temp. Hard. 228. (/) Anon. 18 Ves. 258. (7) Off. Ex. 143. Com. Dig.Admon. (/w) See Brome v. Monck, 10 Ves. C. 2. Swinb. p. 6, s. 16. jun. 620, 621. {r) 3 Bac. Abr. 82. Snellingv. Nor- (n) Vid. supr. 417. ton, Cro. Eliz. 409. Noy. 53. Roll. (0) 11 Vin. Abr. 304. Leon. 187. Abr. 557. 5 Co. 82 b. 83. Scudamore (/)) 3 Bac. Abr. 81. Buckland v. v. Hearne, Andrew's Rep. 340. Brook, Cro. Eliz. 315. Lemun v. («) 11 Vin. Abr. 395. Lancy v. Tooke, 3 Lev. 57. Goldsmith v. Syd- Fairechild, 2 Vern. 101. Hawkins v. nar, Cro. Car. 362. Bank of England Day, Ambl. 160. CHAP. II.] OF DEBTS BY SPECIALTY. 282 executor's plea oi plene administravit to an action by the specialty creditor(5). But where the 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 exe- cuted a bond to A. in two thousand eight hundred pounds, condi- tioned to indemnify him against another bond for eight hundred [283] 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(^), A bond merely voluntary shall be postponed to simple contract debts which are bona fide owing; but such bond, if not to the pre- judice of creditors, must be paid by the executor, and in preference to legacies. For a bond, however voluntary, transfers 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(w). But an execu- tor has no authority to pay a bond founded on an usurious contract, or a bond ex turpi caiisd. Such payment will amount to a devas- tavit, as well against legatees as against creditors(t'). If there be a joint and several obligation, an executor of a de- ceased obligor may pay the debt out of the estate of the testator, [284] and plead it to other actions by creditors or specialties. But if the obligation 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(w;). 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(:c((l). 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 (s) 11 Vin. Abr. 307. Allen, 40. {v) 11 Vin. Abr. 307. Brownl. 33. Sed vid. Goldsb. 142. Winchcombe v. Bisliopof Winchester, {t) Cox V. Joseph, 5 Term Rep. Hob. 1G7. Robinson v. Gee, 1 Ves. 307 254. (u) 11 Vin. Abr. 304, 305. 1 Eq. {w) 11 Vin. Abr. 288. Rogers v. Ca. Abr. 84. 143. 3 Bac. Abr. 81, 82. Danvers, 1 Mod. 1(35. S. C. Freem. Cray v. Rooke, Ca. Temp. Talb. 156. Rep. 127. Loeffs V. Lewen, Prec. Ch. 370. Croft (x) Plumer v. Marchant, 3 Burr. V. Pyke, 3 P. Wms. 182. Lechmere 1380. Freemoult v. Dedire, 1 P. V. Earl of Carlisle, ibid. 222. Lady Wms. 429. Cox's case, ibid. 339. Lasselsv. Lord (y) 3 Bac. Abr. 81. 11 Vin. Abr. Cornwallis, Finch. Rep. 232. 292. (1) Frazcr v. Tunis, 1 Binn. 254. 284 OF DKBTS BY SPECIALTY. [bOOK III. 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 oood, although the damages are not liquiclated(z). But where the hushand by marriage articles having agreed to settle one thousand five hundred j)oundsy;er annum on the issue, made a deficient set- tlement, 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 compensated in damages; but that as the articles made no mention [285] of any specific land, nor contained any covenant in regard to its value, they were to come in after creditors by bond(f/). If A. covenant to pay a sum of money, and die before payment, it may be recovered against his cxecutors(6): whereas it has been held, that if he covenant that his executors shall pay the money, no action can be maintained against them, on the principle that it could not be a debt of the testator(c); but this latter case is of very doubtful authority, for there also the testator was himself bound, and the lien falls upon his representatives, though he himself could not have been sued ; and it seems that on either covenant they are equally responsible(r/). 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(e).(l) But if such debt be paid out of those assets, the other creditors, 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(y). [286] Last in the order of payment are debts on simple contract; as on bills and notes not under seal, and verbal promises(^), or such as are implied in law: thus where A. received with an apprentice the sum of two hundred and fifty pounds, and died about two years afterwards, having employed the apprentice, during that period, in inferior affairs, the executors were decreed in equity, after payment of the debts by specialty, to repay the money as a debt due by sim- ple contract, deducting at the rate of twenty pounds a year for the maintenance of the apprentice during the time he lived with his (z) 11 Vin. Abr. 305. Smith v. Vern. 524. Powel on Mortgages, 813. Harman, 6. Mod. 144. Howell v. Price, 1 P. Wms. 291. 294. (a) 11 Vin, Abr. 290, 305. Whit- King v. King, 3 P, Wms. 358. church V. Bayntan, 2 Vern. 272. (/) Com. Dig. Chancery, 2 G. 4. {h) Perrot v. Austin, Cro. Eliz. 232. Fletcher v. Stone, 3 Vern. 273. Wil- Sheph. Epit. 990. son v. Fielding, ib. 763. S. C. 10 (c) 11 Vin. Abr. 276. Perrot v. Aus- Mod. 426. Cope v. Cope, Salk. 449. tin, Cro. Eliz. 232. Vid. Co. Litt. 386. and vid. infr. {d) Ibid. 3 Burr. 183, 1384. ( g) 2 Bl. Com. 465, 466. 511. Off. (e) Vid. Bristol v. Hungerford, 2 Ex. 155. (1) Dandridge v. Minge, 4 Rand. Rep. 39". CHAP. II.] OF DEBTS BY SBIPLE CONTRACT. 286 master(A). On contracts of this nature, debts due to the king shall, it seems, be satisfied before debts which are due to subjects(e); the wages also of domestic servants and of labourers appear, with great reason, entitled to a preference; but, with the exception of these, the executor has a right likewise, in this species of debts, to prefer in payment whichever he pleases(/t). But where the testator, though in no respect indebted to his bro- ther, had signed a note by which he acknowledged himself indebted to his brother in 5000/., and always kept the note in his own cus- tody, 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 was held to be a matter merely initiate or intended, and never perfected, and consequently as no debt at all(/). With regard to the interest of debts: on a judgment subsequent interest cannot be claimed, but it may be recovered in an action on the judgment(m). Debts by specialty are payable with inter- est(7i).(l) And it has been held, that even on demands arising from covenant, although not liquidated, and sounding only in da- [287] mages, interest is allowed (o). But interest cannot be re- covered on a bond beyond its penalty(7j). Yet to that extent it may be recovered, although not expressly reserved (§'). In respect to interest on simple contract debts, the holder of a bill of exchange or of a promissory note is entitled to recover the money payable upon it with interest(r) in some cases from the date of the bill or note(5); but in general from the time at which it ought 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- acceptance, or non-payment(?^). Thus, on a bill or note payable on presentment, interest may be computed from the presentment(t;). 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 (A) Soan V. Bowden & Eyles, M. Bro. Ch. Rep. 496. Grosvenor v. 30 Car. 2. Ch. Ca. Temp. Finch. Cook, Dig. Rep. 305. Sed vid. Lord 396. 1 Bum. Just. 85. Lonsdale v. Church, 2 Term Rep. 388. (i) 3 Bac. Abr. 80, in note. {q) Tidd's Prac. B. R. 484, 485. \k) 2 Bl. Com. 511. 1 Roll. Abr. Farquhar v. Morris, 7 Term Rep. 124. 927. 11 Vin. Abr. 274, in note. Shep. But see 1 Bos. & Pul. 337. Epit. 986. Shep. Touchst. 478. (r) Bailey on Bills of Exch. 90, 91. (/) Disher v. Disher, 1 P. Wms. Blaney v. Hendricks, Bl. Rep. 761. 204. Vid. also Bun. 119. Auriol v. Thomas, (to) Creuze v. Hunter, 2 Ves. jun. 2 Term Rep. 52. 162, 165. (,s) Bailey on Bills of Exch. 91. (n) Com. Dig. Chancery, 3 S. 1. (<) Robinson v. Bland, Burr. Rep. {o) 14 Vin. Abr. Interest, C. 2. 1077. Fonbl. 424. Sed vid. Sweetland v. («) Bailey on Bills of p]xch. 91. Squire, 2 Salk. 623. Auriol v. Thomas, 2 Term Rep. 52. {p) Creuze v. Hunter, 2 Ves. jun. {v) Blaney v. Hendricks, Bl. Rep. 168. Sharpe v. Earl of Scarbro', 3 761. Ves. jun. 557. Knight v. Maclean, 3 (1) SImUz's Jpjjcal, 11 Sfi-^'. k Kawle, 18'i. 24 287 CREDITOR GAINING PRIORITY. [bOOK III. the detention(i). Thus the executor is invested with large discretionary powers of preferring one creditor to another of the same class, and in certain cases he may avail himself of the privilege with great propriety, and on solid reasons(7). But, in ge- neral, 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 de- ciding, to pay debts of equal degree in equal proportions(r). Nor is an executor warranted merely in the payment of one debt before another of the same order; he may also pay a debt of an infe- rior nature before one of a superior, of which he has no notice(5), provided a reasonable time has elapsed after tlie 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 docketed, it has been already stated, an executor is bound to take cognizance, as well as of a decree in equity: constructive notice in respect to them is sufficient(^); but of other species of debts there must be actual notice. It has been asserted, that such notice must be by suit(w) ; 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 as- sets in the discharge of one which is inferior; yet unless he had some notice of the former, he incurs no risk by the payment, after a (Z) Smith V. Eyles, 2 Atk. 385. Ca. (r) Off. Ex. 260, 261. 3 Bl. Com. Temp. Talb. 217. 19. {in) 3 Bac. Abr. 83, in note. War- (s) 3 Bac. Abr. 82, in note. L. of ing V. Danvers, 1 P. Wms. 295. Ni. Pri. 178. (n) 11 Vin. Abr. 298, in note. War- (/) Dyer, 32, in note. 3 Bac. Abr. ing V. Danvers, 1 P. Wms. 295. 83, in note. Littleton v. Hibbins, Cr. (o) 3 Bac. Abr. 83. Barker v. Du- Eliz. 793. Searle v. Lane, 2 Vern. 88, meres, Barnard. Ch. Ca. 277. 89. Sed vid. L. of Ni. Pri. 178. Har- (p) Off. Ex. 145. man v. Harman, 3 Mod. 115. (o) 11 Vin. Abr, 270. 228. Blundi- (m) 3 Bac. Abr. 83, in note. Brook- veil v. Loverdell, Sid. 21. Off. Ex. ing v. Jennings, 1 Mod. 175. Vid. 260. Fitzgibb. 77. CHAP. II.] NOTICE TO EXECUTOR OF DEBTS. 293 [293] 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(i'); and may even voluntarily pay, without notice, such m- ferior debt in exclusion of the superior, and a very just principle; for otherwise it might be in the power of an obligee to ruin an executor by suppressing a bond until all the assets were expended in the pay- ment of simple contract debts(z^;). And, indeed, after a suit is corn- menced, yet before he has notice of the plaintiff's demand, he is warranted in paying any other creditor(a:). On the other hand, an executor is not authorised to confess a judgment for a debt of an in- ferior nature, if he has notice of the existence of a superior. Thus, where an executor to an action on bond pleaded a judgment confess- ed 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 plaintiff'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, to [294] satisfy both the judgments, for he might have pleaded the first, if he had not had assets for both(r). In like manner, a judg- ment must be satisfied, though recovered against one executor only where there are several(«), or recovered against one executor by the name of an administrator, or vice versd{b). (r) 3 Bac. Abr. 82, in note. Har- Mod. 115. L. of Ni. Pr. 178. man v. Harman, 2 Show. 492. S. C. {y) Sawyer v. Mercer, 1 Term Rep. 3 Mod. 115. L. ofNi. Pri. 178. Da- 690. vis V. Monkhouse, Fitzg. 76. Scuda- (2) Com. Dig. Admon. C. 2. Brit- more V. Hearne, Andrew's Rep. 340. ton v. Bathurst, 3 Lev. 114, (w) 3 Bac. Abr. 82. Off. Ex. 145. (a) Com. Dig. Admon. C. 2. Cro. Britton V. Bathurst, 3 Lev. 115. Haw- Eliz. 471. 1 Sid. 404. Parker v. kins V. Day, Ambl. 162. Vid. tam. Amys, 1 Lev. 261. Greenwood v. Brudnish,Prec. Ch. 534. {b) Com. Dig. Admon. C. 2. Anon. (x) Off. Ex. 145. Plowd. 279. Cro. Eliz. 646. Parker v. Masters, I Finch. L. 79. Harman v. Harman, 3 Sid.404. Sed vid. Anon. Cro.Eliz.41. 295 OF executor's retainer [book III. CHAPTER III. OP AN executor's RIGHT TO RETAIN A DEBT DUE TO HIM FROM THE TESTATOR UNDER WHAT LIMITATIONS. If a debtor appoint his creditor(a) to the executorship, he is al- lowed, both at law and in equity, to retain his debt, in preference 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 in- congruous that lie should sue himself, or that the same hand should at once pay and receive the same debt. And therefore he may ap- propriate a sufficient part of the assets in satisfaction of his own de- mand; otherwise he would be exposed to the greatest hardship; for, since the creditor who first commences a suit is entitled to a prefer- ence 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 retain- er is a natural deduction; but the privilege is accompanied with this limitation, that he shall not retain his own debt as against those of a higher degree; for the law places him [296] merely in the same situ- ation as if he had sued himself as executor, and recovered his debt, which there could be no room to suppose, during the existence of those of a superior order(6). As where A., before his marriage, co- venanted with B. and C. to leave them by his will, or that his ex- ecutors within six months after his death should pay them seven hundred pounds, in trust to pay the interest to his wife for life, and, on her death, to divide the principal among his children, and, in de- fault of children, as he should appoint, and bound himself, his heirs, executors, and administrators, in a penalty for performance, on his dying before his wife, without issue, and intestate, 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(c). So if A. and B. be jointly and severally bound in an obligation, and A. appoint the executrix of the obligee his executrix, and die leaving assets, she is not compelled to resort to an action against B., (a) Supr. 239, Thynn v. Thynn, 1 543. 11 Vin. Abr. 72. 261. Winch. P. \Vms. 296. 19- Harg. Co. Litt. 264, note 1. Vid. \b) 2 Bl. Com. 511. 3 Bl. Com. 18, infr. 19 Off Ex. 32. 142, 143. Com. Dig. (c) Plumer v. Marchant, 3 Burr. Adraon. C. 2. 3 Bac. Abr. 10. 83. 1380. Roll. Abr. 922, 923. Plowd. 185. CHAP. III.] FOR HIS DEBTS. 296 but is entitled to retain for the debt; in case there be no assets, she has a right to pursue her remedy on the bond against [297] B.{d). 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 appoint- ed 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.(e).(l) If A. be indebted in a bond to B., and die, having appoint- ed B. his executor, who, after having intermeddled with the goods, and before probate, also dies; although, before 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 intention to pay his own debt first, and therefore his executor shall have the same power of retaining as belonged to him(/).(2) 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 rightful adminis- trator(A). In short, wherever an executor might have been sued, or might have paid a debt, he has authority to retain(/). But where A. and B. were joint obligors in a bond, the foriner as principal, the latter as surety, A. died, B. took out administration to him, and on forfeiture of the bond, discharged the debt, [298] it was held that he could not retain, for, by joining in the bond, the debt became his own(i^). 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 plea of ple?ie administravit, or it may be pleaded specially(/). An executor may, as we have seen(m), retain both at law and in equity for his whole debt, as against other creditors of the same de- gree(7i): but equity will interpose to restrain him from perverting this privilege to the purposes of fraud(o). Nor will a mere nomi- nation of a creditor to the executorship, if he refuse to act, extinguish his legal remedy for the recovery of his debt. (7?). Hence if a cre- (d) Com. Dig. Admon. C. 1. Fryer mer v. Marchant, 3 Burr. 1384. v.Gndridge,Hob.lO. 3Bac.Abr. 10. {k) 11 Vin. Abr. 262. Godby, 149. 3 Kebl. Rep. 166. Cock v. Cross, 2 (/) Loane v. Casey, Bl. Rep. 965. Lev. 73. Plumerv. Marchant, 3 Burr. 1383. 11 (e) 11 Vin. Abr. 261. 2 Brownl. 50. Vin. Abr. 266. 1 Brownl. 75. (/) 11 Vin. Abr. 563. Croft v. (m) Supr. 295. Pyke, 3 P. Wms. 183, 184, and note («) 11 Vin. Abr. 265, in note. War- B. ing V. Danvcrs, 1 P. Wms. 295. Mus- (g) Com. Dig. Admon. C. 2. Semb. son v. May, 3 Ves. & Bea. 194. Raym. 484. ° (o) 3 Bac. Abr. 83, in note. Cock (/«) 11 Vin. Abr. 265. Blackborough v. Goodfellow, 10 Mod. 496. V. Davis, 1 Salk. 38. {p) Rawlinson v. Shaw, 3 Term (i) Com. Dig. Admon. C. 2. Plu- Rep. 557. (1 ) Thomas v. Thompson, 2 Johns. Rep. 471. (2) Griffith V. C'/it-w's Ex. 8 Serg. &c Rawlc, 29. 298 OF executor's retainer for his debts, [book III. ditor be appointed executor with others, he may sue them, especially if he hath not administered (7). If there be not personal assets, he may sue the heir, where the heir is bound(r). (7) 3 Bac. Abr. 10, in note. Off. Wankford v. Wankford, Salk. 301. Ex. 33. Off. Ex. 33, 34. (r) Harg. Co. Litt. 264 b, note 1. CHAP. IV.] DIFFERENT KINDS OF LEGACIES. 299 CHAPTER IV. OP THE PAYMENT OP J.EGACIES. Sect. I. Legacy what — who may he legatees — who not — legacies gene- ral, 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 pay ment of legacies, in the next place, demands his attention. A legacy is a bequest, or gift of personal property by will. All persons are capable of being legatees, with some special excep lions by common law, and by statute(«). To this disability all traitors are subject(Z»). By stats. 25 Car. 2. c. 2, and 1 Geo. 1. stat. 2, c. 13, persons required to take the oaths [300] and otherwise qualify themselves for offices, and omitting to do so, shall be incapable of a legacy. By stat. 9 & 10 fVm. 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 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(c).(l) And the statute extends to wills disposing of personal property only(^). Although a man cannot make a grant to his wife, nor enter into a covenant with her, (for such grant would be to suppose Jier separate (a) Bl. Com. 512. 4 Burn. Eccl. Burn. Eccl. L. 78. L. 313. 4 Bac. Abr. 337. (d) Lees v. Summersgill, 17 Ves. (i) 2 Bl. Com. 512. jun. 508. (c) Vid. 2 Bl. Com. 377, and 4 (1) A legacy given to a feme covert during her own life and that of her liushand, and to the lieirs of her body, but if she had none, tiien over, and the husband was a subscrib- ing witness to the will, but died before it was proved, and another subscribing witness proved it, it was held that lie (the husband) did not take such an interest in the legacy as •would make it void under the sUitute, on account of his being a subscribing wittiess, and that the wife surviving was entitled to the legacy. WoodOerri/ v. Colli/is's Jix. 1 Desaus. Rep. 425. 25 300 DIFFERENT KINDS OF LEGACIES. [bOOK III. existence, and to covenant with her would be to covenoint with him- self,) yet he may bequeath any thing to her by will, since tliat can- not take effect till the coverture is determined by dcath(f/). An infant in ventre sa mere may, as we have seen, be appointed an executor. He is also capable of being a lcgatec(e). And a be- quest of 2000/. each "to all the children of my sister I. G. whether now born or hereafter to be born," has been held to include all chil- dren born after the testator's death, and an inquiry was directed, what would be a proper sum to be set apart to answer the legacies to future cluldren(/). And a bequest in trust for all the children of the testatrix's nephew R., horn in the lifetime of the testatrix, was held to include a child, of which the wife of R. was cnciente at the time of the testatrix's death, although not born until several months afterwards(^).(l) 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 m,y namesukeThomas, 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(A).(2) And where legacies were given "to the three chil- dren of A. the sum of 600/. 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(/).(3) Under a bequest by an unmarried man " to my children," parol evidence was allowed to show whom the testator considered in the character of children: and his illegitimate children, having obtained a name by reputation, were admitted to take, though not named in the will(y). But a bequest " to such child or children, if more than one, {d) 1 Bl. Com. 442. Harg. Co. {h) Stockdale v. Bushby, Coop. Litt. 112. Rep. 229, and 10 Ves. 381, S. C. and (e) Northey v. Strange, 1 P. Wms. see Careless v. Careless, 1 Meri. Rep. 342. vid. Ellison V. Airey, 1 Ves. 114. 384, same principle decided, and 19 Clarke v. Blake, 2 Bro. Ch. Rep. 320, Ves. 601. and 1 Cox's Rep. 248. {i) Garvey v. Hebbert, 19 Ves. 125. (/) Defflis V. Goldschmidt, 1 Mer. ( j) Beachcroft v. Beachcroft, 1 Mad. Rep. 417. S. C. 19 Ves. 566. Rep. 430, and see Lord Woodhouselee (^) Trower v. Butts, 1 Sim. &;Stu. v. Dalryraple, 2 Meri. Rep. 419. 181. (1 ) So where the testator, after directing the payment of his debts and funeral expen- ces, and giving legacies to and making provision for his wife, and giving legacies to seve- ral of his grandchildren, proceeded as follows, " I will and devise unto my grandchildren, the children of my son Edward, deceased, all the remainder and residue of my estate, both real and personal, whatsoever and wheresoever to be found;" it was held that a post- humous grandchild, in ventre sa mere at the making of the will, and death of the testa- tor, was entitled to a grandchild's share under the will. Swift v. Duffield, 5 Serg. & Rawle, 38. (2) Powell V. Biddle, 2 Dall. Rep. 70. Thomas v. Stevem, 4 Johns. Cha. Rep. 607. (3) Geer et iix. v. Winds, 4 Desaus. Rep. 85. [chap. IV. DIFFERENT KINDS OF LEGACIES. 300 as A. may happen to be encient of by me," a natural child of which she was then pregnant, cannot take(A;). Grand-children in a will may be construed to mean great-grand- children, unless the intention appears to the contrary (/).(!) The word "relations" in a will means " next of kin(m).(2) And a be- quest by a testator in India "to my nearest surviving relations in my native country Ireland," was held confined to brothers and sisters, living in Ireland or elsewhere(?i). [301] Of legacies there are two descriptions; a general legacy, and a specific legacy(o). The former appellation is expressive of such as are pecuniary, or merely of quantity. Under the denomination of specific legacies two kinds of gifts are included; as, first, where a cer- tain chattel is particularly described 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(jo) it for the legatee. But a bequest of the latter description may be fulfilled by the delivery of any thing of the same kind(^).(3) A legacy of " 50/. for a ring" is a general pecuniary legacy (r). Although the courts are averse from construing legacies to be spe- cific(5), yet, if the words clearly indicate an intention to separate the particular thing bequeathed from the general property of the testa- tor, they shall have that operation. (4) Hence, under some circum- stances, even pecuniary legacies are held to be specific. As a certain sum of money in a certain bag or chest(/), or in navy [302] or India (/f) Earle V. Wilson, 17 Ves. 528; Ch. Rep. 113. 4 Bac. Abr. 355. and see Arnold v. Preston, 18 Ves. 288. Swinb. part 7, s. 20. (I) Husseyv. Berkeley, 2 Eden's (7) 2 Fonbl. 374, note O. Purse v. Rep. 194. Snaplin, 1 Atk. 416. Forrest. 227. (m) Pope V. Whitcomb, 3 Meri. Bronsdon v. Winter, Ambl. 57. Rep. 689. {r) Apreece v. Apreece, 1 Ves. and (n) Smith V. Campbell, 19 Ves. 400. Bea. 364. (o) 4 Bac. Abr. 337. 425. 2 Bl. (s) Ellis v. Walker, Ambl. 310. Com. 512. (0 Lawson v. Stitch, 1 Atk. 508. (p) Ashburner v. M'Guire, 2 Bro. (1) Pemherton v. Parke, 5 Binn. 601. And sons and daughters in a will, will extend to grandcluldren, to prevent their being cut off. Smith's Case, '2 Desaus. Rep. 123, n. But the word cliildren will not be hold to mean grandcluldren, unless there be some am- biguity in the testator's will rendering it necessary, or without such construction his in- tent could not be satisfied. Jzard v. Izard, 2 Desaus. Rep. .308. {-i) MWeilledge v. Galbraiih, 8 Serg. k Rawle, 41. M'JVeilUidge v. Barclarj, 11 Serg. hi. Rawle, 103. (3) A bequest of " twenty negroes" is specific only in the second degree. Warren v. Wigfall, 3 Desaus. Rc]). 47. (4) 3 Desaus. Rep. 373. 302 DIFFERENT KINDS OF LEGACIES. [kOOK III. bills(?0> or the bequest of a sum of money in the hands of A.(y), or of two thousand pounds, the l)alance due to the testator from his part- ner on tlie hist settlement between them, if the testator did not draw such money out of trade before he died(io). So a devise of a rent- charge out of a term for years(a,*), and a bequest of a bond, or of the testator's stock (1) in a particular fund, have been thus classed(^), as likewise has a legacy to be paid out of the profits of a farm, which the testator directed to be carried on(r). And a bequest of all the testator's personal estate in a certain town has been so considered(a). In 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 (6). So a bequest of part of the testa- tor's stock in a certain fund shall bear the same construction(c). But a testator reciting that he had 1500/. five 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.,(2) this was held to be a specific legacy; and the same as if he had enu- merated all the particulars there(e). On the other hand, a mere bequest of quantity, whether of mo- ney or of any other chattel(3), is a general legacy; as of a quantity of stock(/). And where the testator has not such stock at his death, such bequest amounts to a direction to the executor to procure so [303] much stock for the legatce(^'-). (m) Pitt V. Lord Camelford, 3 Bro. (/y) Heath v. Perry, 3 Atk. 103. Ch. Rep. 160. Gillaume v. Adderley, (c) Sleech v.Thorington, 2 Ves. 563. 15 Ves. jun. 384. See 2 Fonbl. 371, note O. 1 P. Wms. (?') Hinton v. Pinke, 1 P. Wms. 540. 540, note 1. \io) Ellis V. Walker, Ambl. 310. (rf) Parrot v. Worsfield, 1 Jac. and \x) Long V. Short, 1 P. Wms. 403. Walk. Rep. 594. (//) Ashburner V. Macguire, 2 Bro. (e) 2 Fonbl. 376. Sayer v. Sayer, 2 Ch. Rep. 108. Forrest, 152. Avelyn Vern. 688. V. Ward, 1 Ves. 425. 1 Eq. Ca. Abr. (/) 1 P. Wms. 540, note. Purse 298. Ashton v. Ashton, 3 P. Wms. v. Snaplin, 1 Atk. 414. Sleech v. 384. Thorington, 2 Ves. 562. (z) Mayott v. Mayott, 2 Bro. Ch. (^g) Partridge v. Partridge, Ca. Rep. 125. Vid. All-Souls' College V. Temp. Talbot, 227. Mann v. Cop- Coddington, 1 P. Wms. 598. land, 2 Madd. Rep. 223. (a) Sayer v. Sayer, Prec. Ch. 392. (1) A bequest of all the testator's right, interest, and property, in thirty shares in the Bank of the United States of America, is a specific legacy. Walton v. Walton, 7 Johns. Clia. Rep. 258. See also Cuthbert v. Cuthbert, 3 Yeates, 486. (2) So, " I leave to ray beloved wife C. the whole property tliat she brought me, ex- cept two negro slaves John and Maurice," is a specific legacy. Wan^en v. IVifffall, 3 Desaus. Rep. 47. So, "I give and devise unto my beloved wife B. S. two cows, she to have the choice out of all my cattle; and also to have my bed and bedstead, with all be- longing to it, and as much of my house and furniture as she thinks proper." Comm. v. Shelby, \^ Serg. &; Rawle, 348. See also Loocock v. Clarkson, Stuart v. Carsoii's Ex. 1 Desaus. Rep. 471. 501. (3) Walker's Appeal, 3 Rawle, 229. CHAP. IV.] DIFFERENT KINDS OF LEGACIES. 303 On a bequest of 1000/. long annuities "now standing in my name or in trust for me," where at the date of the will, the testatrix had no long annuities, but had 1000/. three per cent reduced annuities, it was held, that that sum passed by the bequest(A). But if a testator gives a sum in stock, standing in his name, and has not the stock described, nor any other stock, the legacy fails(z). And 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 three per cents, being about 5000/. 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 af- terwards the testator sold out 2000/., part of the 5000/., and paid off the mortgage with it: this was held to have redeemed the legacy pro tanto, and that the specific legatees could have no relief from the funds by the will appropriated for payment of the mortgage(A;). 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 are also general legacies(7w). The same legacies may be specific in one sense, and pecuniary in another; specific as given out of a particular fund, and not out of the estate at large; pecuniary, as consisting only of definite sums of money, and not amounting to a gift of the fund itself, or any aliquot part of il(w). In a case before Lord Camden, C, his lordship took the distinction between a legacy of a certain sum due from a particular person, and a leg-acy of such debt generally, considering the former as a legacy of quantity, the latter as specific(o). So, in another case, where, after the following bequest, " I give to A. one thousand four hun- dred pounds, for which I have sold my estate this day;" the testa- tor 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 Bathurst, C. to be a legacy of quantity(/)). But Lord Thurlow, C. disallowed that distinction(y) ; and held a legacy of " the principal of A.'s bond for three thousand five hun- dred pounds," to be a specific legacy, notwithstanding the sum was named.(l) A legacy to a natural child, of " 5000/. sterling, or 50,000 current Qi) Penticost v. Ley, 2 Jac. & Walk. {n) Smith v. Fitzgerald, 3 Ves. and 207. Bea. 5. (t) Evans v. Trip, 6 Madd. Rep. 91. (o) 2 P. Wms. 330, note 1. Attor- {k) Humphreys v. Humphreys, 2 ney-Gencral v. Parkin, Ambl. 566. Cox's Rep. 184. {p) Carteret v. Carteret, cited 2 (/) Hinton v. Pink, 1 P. Wms. 540. Bro. Ch. Rep. 114. \rn) Hume V. Edwards, 3 Atk. 693. («/) Ashburner v. Macguire, 2 Bro. Lewin v. Lewin, 2 Ves. 417. 2 Fonbl. Ch. Rep. 113, 114. 378. fic (1) So a bequest of "all the money due on a bond against P. P. and J. P." is a speci- : legacy. Stout v. Itart, 2 llalst. Rep. 414. 303 LEGACIES LAPSED OR VESTED. [bOOK 111. rupees," afterwards described as "now vested in the East India Company's bonds," and sometimes mentioned as " the said sum of 5000/. sterling," Lord Eldon held not specific but general; as a demonstrative legacy, with a fund pointed out(r). 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 lega- tee die before the testator, the legacy shall be lapsed(s),(l) and sink [304] into the residuum of the testator's personal estate; nor is it an exception that the legacy is left to A., his executors, administra- tors, or assigns(/); or to A. and his heirs.(2) And although in the bequest of a legacy to A. the testator should express an intention that it should not lapse in case A. die before him, this is not suffi- cient to exclude the next of kin(i/). Yet a bequest may be specially framed, so as to prevent its lapse on such previous death of the le- gatee, as if in case of the death of A. before the testator, other per- sons are named to take, for instance, A.'s legal representatives(v), or the " heir under this \yi\V'(w); or to A. "and failing him by de- cease before me to his heirs," the legacy on A.'s so dying shall vest in such nominees(a^). Nor is a legacy to two or more within the rule; for it is settled, that a legacy to several persons is not extin- guished by the death of one of them, but shall vest in the survivor(y). So where a legacy was given to a daughter for life, with a power to appoint the principal, to take effect after her death, and if no appoint- ment, then to A. and 13., and the daughter died in the lifetime of the testator, the court held, that A. and B. took immediately upon the testator's death; that their interest was postponed only for the sake of the daughter, and that it made no difference that she might have defeated the gift by appointment, if she had survived the testator, (r) Gillaume v. Adderley, 15 Ves. 221. jun. 384. (to) Rose v. Rose, 17 Ves. jun. 347. (s) 4 Bac. Abr. 387. Elliott v. Da- Vaux v. Henderson, 1 Jac. & Walk, venport, 1 P. Wms. 83. Hutchinson 388. V. Hammond, 3 Bro. C. C. 142. (x) Sibley v. Cook, 3 Atk. 572. {t) Maybank v. Brooks, 1 Bro. Ch. See also Sibthorp v. Moxan, 3 Atk. Rep. 84. Tidwell v. Ariel, 3 Madd. 580. Rep. 403. ( y) Northey v. Burbage, Gilb. Rep. («) Sibley v. Cook, 3 Atk. 572. 137. Buffer v. Bradford, 2 Atk. 220. {v) Bridge v. Abbott, 3 Bro. C. C. Ryder v. Wager, 2 P. Wms. 331. (1) TVeishaupt v. Brehman, 5 Binn. 118. Robinso?i v. Martin, 2 Yeates, 525. By tlie 12th section of the act of 8th April, 183.3, " relatiug to last wills and testaments," it is pro- vided, that " no devise or legacy in favour of a child, or other lineal descendant of any testator, shall be deemed or held to lapse or become void, by reason of the decease of such devisee or legatee in the lifetime of the testator, if such devisee or legatee shall leave is- sue surviving the testator, but such devise or legacy shall be good and available in favour of such surviving issue, with like effect, as if such devisee or legatee had survived the testator: saving always to every testator the right to directotherwise." (Pamph. Laws, 250.) (2) Dickinson v. Pw-vis, 8 Serg. Sc Rawle, '1. Sword's Lessee v, Ailams, 3 Yeates, 34, a devise to a granddaughter before the act of 19ll» March, 1810. CHAP. IV.] LEGACIES LAPSED OR VESTED. 304 since A. and B. were to take if no appointment(i<;). 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 lega- cies to go to the survivor, his executors, administrators, or assigns, and A. died without 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(a;). Nor will a legacy lapse by the death of the legatee in the testator'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 ^.n& forgive to T. W. the sum of 500/. which he stands indebted to me on his bond; and 1 direct the said bond to be delivered up to him and cancelled^'' 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 be- queathed, such a bequest does not operate by way of equitable re- lease, or as an extinguishment of the debt. Therefore the surviving co-obligor, and the representatives of the deceased legatee, are not discharged from the payment of the money due on the bond(z). 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 before [305] it is vested in interest(a). So where a bequest was to a son of the testator on his accomplish- ing his apprenticeship, with the dividends in the meantime for maintenance, and in case he should die before he accomplished his apprenticeship, then and in such case to other children, and the legatee died, having accomplished his apprenticeship in the testa- tor's lifetime, it was held a lapsed legacy(6). 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 survivor, his executors, &c. and A. died without issue in the testator's lifetime, the legacy was held to have lapsed, the contingency on which it was given over being too remote(c). 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 lifetime of the testator's (w) Chatteris v. Young, 6 Madd. (y) See Oke v. Heath, 1 Ves. 140. Rep. 30. Eeles v. England, 2 Vern. 468. 2 (x) 1 And. 33, pi. 82. Miller v. Fonbl. 399, note G. and H. Earl of Warren, 2 Vern. 207. Perkins v. Inchiquin v. French, 1 Cox's Rep. 1, Micklethwaite, 1 P. Wms. 274. Ry- (z) Ison v. Butler, 2 Price Rep, 34; der V. Wager, 2 P. Wms. 331. Wil- and see Toplis v. Baker, 2 Cox's Rep. ling V. Baine, 3 P. Wms. 113. Liim- 118, ley'v. May, Prec. Ch. 37. Hornsby v. (a) 2 Fonbl. 368. 1 Bac. Abr. 410. Homsby, Moseley, 319. Woodward (//) llumberstone v. .Stanton, 1 Ves. V. Glassbrook, 2 Vern. 378. 2 Fonbl, & Boa. 385. 368, note G. (c) Massey v. Hudson, 2 Meriv. 130. 305 LEGACIES LAPSED OR VESTED. [bOOK III. wife, the latter words were construed with reference only to the time of payment, and not to make void the legacy(Z>). We have already seen that if a legacy he left to A., payable to him at a certain age, it is a vested and transmissihle interest in him, debitum in p7'xsc7iti though solvcndum in futuro: That it is otherwise, if the legacy be left to him at, or if, or when he attains such age(c).(l) The distinction was borrowed from the civil law, and adopted by our courts, not so much from its intrinsic equity, as from its prevailing in the spiritual courts; for since the chancery, as will be hereafter shown, has a concurrent jurisdiction with them in respect to the recovery of legacies, it is reasonable that there should be a conformity in their decisions, and that the subject should have the same measure of justice, to whatsoever court he may resort. But if such legacies be charged on a real estate, or upon land to be purchased with the residue of a personal estate(o^), in either case they shall equally lapse for the benefit of the heir;(2) for with re- gard to devises affecting lands, the ecclesiastical courts have no con- current 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" are omitted, it is vested and transmissible(/). So if the [306] bequest be to A. for life, and after the death of A. to B., the bequest of B. is vested on the death of the testator, and will not lapse by the death of B. in the lifetime of A.(^). 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 executrix or in the church porch; and that if he should not so claim within 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 appearing otherwise, being to be proved by the particular means prescribed, and therefore not within the cases (&) Massey v. Hudson, 2 Meriv. 130. 373, note M. (c) Vid. supr. 171, 172. 2 Fonbl, (/) 2 Fonbl. 371, note K. Clob- 371, note K. Blois v. Blois, 2 Ventr. berie's case, 2 Ventr. 342. Pullen v. 347. 2 Ch. 155. Collins v. Metcalfe, Serjeant, 2 Chan. Ca. 155. Stapleton 1 Vern. 462. Gordon v. Raines, 3 P. v. Cheele, 2 Vern. 673. Herbert v. Wms. 138. Anon. 2 Vern. 199. Glob- Parsons, 2 Ves. 263. Fonereau v. Fo- berie's case, 2 Ventr. 342. Smell v. nereau, 3 Atk. 645. Dee, 2 Salk. 415. Dawson v. Killet, (g) 2 Fonbl. 371, note K. Anon. 1 Bro. Ch. Rep. 119. 2 Ventr. 347. Northey v. Strange, 1 P. ((f) Harrison v. Naylor, 2 Cox's Wms. 342. 566. Darrel v. Molesworth, Rep. 247. 2 Vern. 378. Tunstall v. Bracken, (e) 4 Bac. Abr. 393. 2 Bl. Com. 513. Ambl. 167. Dawson v. Killet, 1 Bro. 1 Eq. Ca. Abr. 295. Duke of Chandos Ch. Rep. 119. 181. V. Talbot, 2 P. Wms. 601. 2 Fonbl. (1) Patterson v. Haivthom, 12 Serg. & Rawle, 113. Stone v. Massey, 2 Yeates, 3fi9. (2) Stone v. Massey, 2 Yeates, 369. Patterson v. Haivthom, 12 Serg. & Rawle, 114. CHAP. IV.] OF THE EXECUTOr's ASSENT TO A LEGACY. 306 from the civil law, where, the end being obtained, the means were not essential(A). Sect. II. Of the executor'' s assent to a legacy — on what principle neces- sary — what shall amount to such assent — Assent express or implied — absolute or conditional — has relation to the testa- tor^ s death — when once made, irremeable — when incapable of being made. But the bequest of a legacy, whether it be general or specific, transfers only an inchoate property to the legatee. To render it complete and perfect, the assent of the executor is requisite(«).(l) On him all the testator's personal property is devolved, to be ap- plied in the first place, to the payment of debts; and, therefore, be- fore he can pay legacies with safety, he is bound to see whether, in- dependently of them, a fund has been left sufiicient 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, on a fail- [307] ure of assets, he pay legacies, he makes himself personally 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 absolutely vested; and such assent when once given, is considered as evidence of assets, and an admis- sion on the part of the executor that the fund is competent(6). If, without the assent of the executor, the legatee take possession of the thing bequeathed, the executor may maintain an action of trespass against him(c).(2) Nor, even in case of a specific legacy, whether a chattel real or personal be in the custody 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 recover it(^/)?(3) Nor has such legatee authority to take possession of the legacy without the executor's assent, although the testator by his will expressly direct that he [K) Tulk V. Houldilch, 1 Ves. & v. Whitehead, 2 P. Wms. 645. Bea. 248. {]>) Off. Ex. 27, 28. (a) 3 Bac. Abr. 84. 2 Bl. Com. 512. (c) Off. Ex. 27. 223. 3 Bac. Abr. 84. Ilarg. Co. Liu. 111. Aleyn. 39. Ab- 4 Bac. Abr. 444. Dyer, 254. Keilw. ney v. Miller, 2 Atk. 598. Mead v. 128. Lord Orrery, 3 Atk. 240. Farrington (J) Mead v. Ld. Orrery, 3 Atk. 240. V. Knifrhtly, 1 P. VVras. 554. Bennet Off. Ex. 222, 223. (1) Wihon V. nine, 1 Harr. & Johns. 139. llaivston v. Hall, 3 Call, 1S8. (2) 3 Call, 189. Or trover, fVikon's Ex. v. Jli?ie, 1 Harr. k Johns. 138. (3) Sec, however, Andrews v. Jlunneman, I'ick. Ucp. I'iO. 26 307 OF THE executor's assent to a legacy, [book III. shall do so; for, if this were permitted, a testator might appoint all his effects to be thus taken in fraud of his creditors(e). Yet, previ- ously 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 delivered, it shall go to his [;30S] representative(y'), or, in case of the outlawry of the legatee, shall be subject to the forfeiture(,^). 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 give effect to the testator's intention; for although on the one hand it may be al- leged that the party to whom the debt is bequeathed must neces- sarily 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 pro- perty: yet, on the other hand, a debt so released is regarded, with great reason, in the light of a legacy, and, like other legacies, not to be sanctioned by the executor, in case the estate be insufiicient for the payment of debts. But as soon as the executor assents, and not before, it shall be effectually discharged(/i). With respect to what shall constitute such assent on the part of the executor, the law has for this purpose prescribed no specific form; a very slight assent is held suflicient(/). It may be either ex- press or implied, absolute or conditional. The executor may not only in direct terms authorize the legatee to take possession of the legacy, but his concurrence may be infer- [309] red either from indirect expressions or particular acts. And such constructive permission shall be equally available.(l) Thus, for instance, if the executor congratulate the legatee on his legacy; or if a horse is bequeathed to A., and the executor requests him to dis- pose of it; or if B. proposes to purchase the horse of the executor, and he directs B. to buy it of A.; or if the executor himself pur- chase the horse of A., or merely offer him money for it; this in either case amounts to an assent by implication to the legacy(A^). So where A., the devisee of a term, granted it to the executor, his acceptance of the grant from A. was held to be an implied permis- sion that the term should be A.'s to grant(/). So where J. S. seised in fee of a foreign plantation, devised it to A., and the executor granted a lease of it for years, reserving rent in trust for A., this was adjudged a suflicient assent(w). If a term be devised to A. for life, remainder to B. the assent of (e) Ofr. Ex. 223. S. C. 460. S. C. 2 Ventr. 358. 4 (/) Ofr. Ex. 28. Bac. Abr. 445. (g-) Vid. Off. Ex. 20. (Z-) 4 Bac. Abr. 445. Off. Ex. 226. (A) Off. Ex. 29, 30. Rider v. Wa- Com. Dig. Admon. C. G. Stiep. ger, 2 P. Wms. 332. Vid. Fellowes Touchs. 456. V. Mitchefl, 1 P. Wms. 83. Siblhorp (/) Off. Ex. 226. V. Moxam, 3 Atk. 580. (m) Noel v. Robinson, 2 Ventr. 358. (j) Noel V. Robinson, 1 Vern. 94. (1) Sec Jliulrervs v. JIuniicman, 6 Pick. Itcp. 126. CHAP. IV.] OF THE EXECUTOr's ASSENT TO A LEGACY. 309 the executor to the devise to A. shall operate as an assent of the devise over to B,, and vest an interest in him accordingly(?j). So an assent to such estate in remainder is an assent to the present es- tate(o): For the particular estate and the remainder constitute but one estate(jo). But if a lessee for years bequeath a rent to A., and [310] the land to B., the executor's assent that A. should have the rent, is no assent that B. should have the land, because the rent and the land are distinct legacies; but, under special circumstances, an executor's assent to one legacy may enure to another, as if the case last-mentioned be reversed: The executor's assent that B. should have the land seems to imply his assent that A. should have the rent;' for the necessity of the executor's assent is established with a view to creditors; now to them the land is equally unproductive, whether it passes to B. charged with the rent, or not; and also, as it was the testator's intention that B. should hold the land subject to the rent to A., the executor's assent to B.'s having the land shall, in con- formity to the will, be construed an assent to the legacy to A. (q). So an assent to a devise of a lease for years is an assent to a condi- tion or contingency annexed to it: As, if there be a devise of a term to the testator's widow, so long as she continues unmarried; and if she marry, then of a rent payable out of the land; the executor's as- sent to the devise of the term is an assent to that of the rent in case of the devisee's marriage(r). An assent may also be absolute or conditional. If it be of the latter description, the condition must be precedent: As, where the executor assents to the devise of a term, if the devisee will pay the rent in arrear at the testator's death. In that case, if the condition be not performed, there is no assent; but if the assent be on a con- [311] dition subsequent, as provided the legatee will pay the execu- tor a certain sum annually: such condition is void, and a failure in performing it shall not divest the legatee of his legacy(.y). The state of the fund may require the executor to impose a condition precedent to his payment of the legacy; but if he once part with it, he has no right to clog it with future stipulations, and make that legacy con- ditional which the testator gave absolutely(/). The assent of an executor shall have relation to the time of the testator's death. Hence, if A. devise to B. his term of years in tithes, in an advowson, or in a house or land, and after the testator's death, and before the executor's assent, tithes are set out, the church becomes void, or rent from the under tenant I'ecomes payable, the assent by relation shall perfect the legatee's title to these several in- terests( w). So such assent shall by relation confirm an intermediate grant by the legatee of his legacy(/>). («) Com. Dirr. Admoii. C. G. 10 Co. Abr. 620. 47 b. 1 lioll. Abr. G20. Plowd. 545, (.s) Com. Dirr. Admon. C. 8. OIT. in note. Adams v. Price, 3 P. Wms. 12. Ex. 238. 4 13ac. Abr. 445. Leon, (o) Com. Dig. Admon. C. G. 130, 131. (/j) Oir. Ex. 236. (0 0(T. Ex. 238. (y) OtT. Ex. 237. (^0 <>'I"- '''>^- 2'13- (r) Com. Dig. Admon. C. G. 1 lioll. (c) Ibid. 250. 311 OF THE PAYMENT OF LEGACIES. [nOOK III. If an executor once assent to a legacy, he can never afterwards retract, and, notwithstanding a subsequent dissent, a specific legatee has a right to take tlic legacy(/), and has a lien on the assets for that specific part and may follow Ihem. And an action at law lies against an executor to recover a specific chattel bequeathed, after his assent to the bequest(i^). If a term is devised to A., and the executor, before he assents to [312] the devise, take a new lease of the same land to himself for a larger term in possession, or to commence immediately, the term devised is merged, so that it cannot pass to A., although the execu- tor should afterwards assent(?)). An assent to a void legacy is also void(?^). Such is the nature of an executor's assent to a legacy. We have already seen that he is competent to give it before probate(a;). But if he has not attained the age of twenty-one years, he is incapable by the above-mentioned stat. 38 Geo. 3. c. ^l{y), of the functions of an executor, and therefore his assent is of no validity(r). Sect. III. When a legacy is to be paid — to tvhom — of payment in the case of infant legatees — of a Tnarricd looman — of a conditional payment of a legacy — of payment of interest on legacies — of such payment where the legatees are infants — of the rate of interest payable on legacies. On the same principle that the assent of an executor to a legacy is necessary, he cannot, before a competent time has elapsed, be [313] compelled to pay it. The period fixed by the civil law for that purpose, which our courts have also prescribed, and which is analogous to the statute of distribution, (as will be hereafter seen,) is a year from the testator's death, during which it is presumed he may fully inform himself of the state of the property («). Legacies to C. " and to the heir of his body," to M. " to be secured to her and the heirs of her body," to F. " and to her issue," are ab- solute legacies: but a legacy to S. "and to her heirs (say children), S. is only entitled for life(Z>). If a legacy to an infant be payable at twenty-one, and he die be- fore, his representative cannot claim it till, in case he had lived, he would have come of age(c); unless it be payable with interest, and (/) Off. Ex. 227. 4 Bac. Abr. 445. {a) 4 Bac. Abr. 434. Smell v. Dee, Mead v. Lord Orrery, 3 Atk. 238. 2 Salk. 415, pi. 2. (w) Doe V. Guy, 3 East, 120. {b) Crawford v. Trotter, 4 Madd. (r) Off. Ex. 228. Rep. 361. {w) Plowd. 526. (c) Luke v. Alderne, 2 Vern. 31. (jx) Vid. supr. 46. Anon. ib. 199. Papworth v. Moore, \y^ Supr. 31. 283. Chester v. Painter, 2 V. Wms. (=j Vid.Com.Dig.Admon. E. Off. 33G. Ex. 224. CHAP. IV.] OF THE PAYMENT OF LEGACIES. ' 313 then, as we have seen, such representative has a right immediately to receive it(c). If a legacy be payable out of land at a future day, although given with interest in the meantime, if the legatee die be- fore the day of payment, the court will not direct the legacy to be raised until the time for payment arrives, although it will secure a personal fund for a future or contingent legatee(of). But where a will directed that certain legacies " were to be paid on the land," but expressed neither the time nor the manner in which they should be raised; nor did it appear, as the fact was, that the estate was a reversion: the court held, that as a reversion was as capable of being sold or mortgaged as any other estate, the legacies should be raised and paid with interest from the testator's death, and not from the tinie of the estate falling in. In case a legacy be left to A. at twenty- one, and if he die before twenty-one, then to B. ; and A. die before he attains that age, B. shall be entitled to the legacy immediately; for he does not claim under A., but the devise over is a distinct, sub- stantive bequest, to take effect on the contingency of A.'s dying during his minority (e). But where legacies were given to A. B. and C, the three co- heiresses of the testator, to be paid at their respective marriages, and if either of them should die, her legacy to go to the suvivors, and one of them died unmarried; it was held, that the survivors should not receive the legacy of the deceased before their respec- tive marriages: for the condition, though not repeated, was annex- [314] ed to the whole, whether it accrued by survivorship, or by the original devise(y). A bequest of stock to trustees, upon trust to pay the dividends from time to time to a married woman, for her separate use, is an un- limited gift of the dividends, and consequently passes the capital(^). Wtere a legacy was given on condition to be void in case the legatee should succeed to an estate in the event of the death of A. without issue of her body, payment was decreed in the lifetime of A., and without security for refunding(/i). And where 30,000/. South Sea annuities were given to trustees in trust to pay the divi- dends to A., until an exchange of certain lands should be made be- tween him and B., and then the capital to be equally divided between them, and B. died before the time limited by the will for making the exchange expired, A. was held to be absolutely entitled to the whole Iegacy(^). A legacy was given upon condition " that the legatee should " change the course of life he had too long followed, and give up low (c) 4 Bac. Abr. 434, in note. Har- (e) 1 Eq. Ca. Abr. 299,300. Laundy rison v. liuckle, 1 Stra. 238. 480. Ko- v. Williams, 2 P. Wms. 478. den V. Smith, Ambl. 588. Forinereau (/) Moore v. Godfrey, 2 Vern. G20. V. Fonnereau, 1 Ves. 118. Green v. (,^) Haig v. Swiney, 1 Sim. & Stu. Pigot, 1 Bro. Oil. Rep. 105. Hearle v. 487. Greenbank, 1 Ves. 307. Crickett v. (//) Fawkcs v. Gray, 18 Ves. 131. Dolby, 3 Ves. jiin. 10. Vid. siipr. 171. («) I-owtlier v. (/avendish, 1 Eden's ((i) Gawler V. Standerwick, 2 Cox's Hep. 99. Rep. 15. 314 OF THE PAYMENT OF LEOACIES. [nOOK III. company, frequenting public houses," &c. The court held that it was such a condition as it would cany into effect; and the evidence not being conclusive, an inquiry was directed, following the words of the bequest(/i'). But where an allow^ance was bc([ueathed to a feme covert, on condition that she lived apart from her husband, the court held the bequest to be good, and the condition void, as contra bonos 'mores{l).(\) A legacy was given to three persons, to be paid as soon as the legatees should arrive in England, or claim the same, provided they should arrive or claim the same within three years after the testa- tor's death; and if they should not, part of the amount of the legacies to go over. The legatee over claiming the legacy, a reference was directed to the Master, to inquire whether the three persons had ar- rived in England, or claimed the legacy within the three years(7/i). Afterwards, one of the legatees arrived in England, and made his claim after the time specified: it was held, the condition was not per- formed, although the legatee was ignorant till then of the will, or of the testator's death, and no advertisement had been made for lega- tees(7z). Where a legacy was given on condition, that the legatee married with the consent in writing of the executors, and he afterwards mar- ried with their approbation, but it was not expressed in writing: it was held, that the legatee was entitled to the legacy, and that the consent of an executor who had not acted was not necessary(o). A legacy was given upon condition that the legatee notified to the executor of the testator his willingness to release certain claims, and he filed his bill. The court held that he had forfeited his right to the legacy(7;). But where a testator gave to his son for life the interest of a mortgage upon an estate of which he was tenant for life in remainder at the testator's death, and also the furniture in certain houses, upon condition of his executing a release of all claims he might have upon the testator's estate, and of his not contesting the will, though the son lived fourteen months after the testator's death (/f) Tattersall v. Howell, 2 Mcri. («) Burgess v. Robinson, 3 Meri. Rep. 2G. Rep. 7. (/) Brown v. Reck, 1 Eden's Rep. (o) Worthington v. Evans, 1 Sim. 140. & Stu. 1G5. (m) Burgess v. Robinson, 1 Madd. (p) Vernon v. Bethell, 2 Eden's 172, and see Careless v. Careless, 1 Rep. 110. Meri. Rep. 384, and S. C. 19 Ves. 601. (1) A testator, by his will dated September !25tb, 1815, gave to his daughter, " during her separation from W. C. her husband, one thousand dollars a year," wbicli he charged on his real estate. AV. C. and his wife were living separate when the will was made, but cohabited together in February, 1 SI 5, when the testator made a codicil to his will (chang- ing only the executors), and also at his death, but separated immediately after his de- cease, and continued to live separate until within a short time previous to filing the bill by W. C. and his wife, against the executors for the legacy. Held, that the plaintiffs •were not entitled to the legacy. Cooper et ux. v. Remsen, 3 Johns. Cha. Rep. 382. 521. S. C. 5 Johns. Cha. Rep. 459. CHAP. IV.] OF THE. PAYMENT OF LEGACIES. 314 without executing a release, and, upon his first hearing the will, had expressed his dissatisfaction, and an intention of filing a bill; yet the circumstance of his never having paid any part of the interest of the mortgage, his having entered into possession of the furniture, and exercised acts of ownership, together with certain expressions of as- sent in his letters, were held to be evidence of his acceptance(5'). A testator authorised his executors, at any time before T. L. at- tained the age of twenty-six years, to raise, by sale of a sufficient part of certain stock, any sum of money not exceeding 600/., and to pay and apply the same towards the preferment or advancement in life, or other the occasions of T, L. as the said executors should think proper; and at the age of twenty-six he gave the 600/. to T. L. absolutely. The executors declined to act, and the court refused to give the 600/. to T. L. before twenty-six, without referring it to the Master to inquire whether T. L.'s situation required the 600/. or any part thereof to be advanced(r). The next object of inquiry is, to whom a legacy shall be paid. And here the executor must be careful to pay it into that hand which has authority to receive it. It is a general rule, that he has no right to pay it to the father, or any other relation of an infant, without the sanction of a court of equity(5);(l) and even in the case of an adult child, such payment is not good, unless it be made by the consent of the child, or be con- firmed by his subsequent ratification(/). Cases occur where an executor has, with the most honest inten- tions, paid the legacy to the father of the infant, and has been held liable to pay it over again to the legatee on his coming of age. And although such cases have been attended with many circumstances of hardship in respect to the executor, yet he has been held responsible, on the policy of obviating a practice so dangerous to the interest of infants, and so naturally productive of domestic discord. The child must in case of such payment either acquiesce, or resort to the fa- ther; or, which is in effect the same, [315] institute a suit against the executor, who will of course require the father to refund(i;). Thus legacies of one hundred pounds a-piece were bequeathed to four in- fants; the executor paid the legacies to the father, and took his re- ceipt for them: when one of the legatees came of age, who was about ten years old at the time of payment, the father told him, that he had such a legacy of his in his hands, but could not pay it imme- diately, and requested him not to apply to tiie executor, at the same time promising that he would himself pay it. The son acquiesced (y) Earl of Northumberland V. Mar- (/) 4 Bac. Abr. 431. Cooper v. quis of Granby, 1 Eden's Rep. 489. Thornton, 3 Bro. Ch. Rep. 97. (r) Lewis V. Lewis, 1 Cox's Rep. (w) 1 Kq. Ca. Abr. 300. Cooper v. 1C2. Thornton, 3 Bro. Ch. Rep. 9G. 18(i. 4 (s) 4 Bac. Abr. 429. 1 Chan. Ca. Burn. Eccl. L. 321. Ilolknvay v. Col- 245. lins, Chan. Ca. 215. 3 Ch. Ca. 1G8. (1 ) Genet V. 'J'ullmad^^e, JlJorrcll v. Dickey, 1 Jolnis. Cliii. Ucp. 3, 153. 315 OF THE PAYMENT OF LEGACIES. [iJOOK III. for fourteen or fifteen years, during which period his father and he carried on a joint trade, and then became bankrupts. On a commis- sion taken out against the son, this legacy, among other things, was assigned for the benefit of his creditors; and the assignee fded a bill against the executor, for an account and payment of the legacy, when it was decreed accordingly by the Master of the Rolls, but without interest; and the decree affirmed by the Lord Chancellor on an ap- peal. His lordship, however, on the hardship of the case, ordered the deposit to be divided(/). It appears from the registrar's book, that in the above case evidence was read, that the testator on his death-bed gave direction, that the executor should pay the legacies to the father of the infants, that he might improve the money for their [31G] benefit(?<). But although that circumstance, if true, ren- dered the case still harder, yet it could not influence the decision, since the evidence ought not to have been received. It were dan- gerous to admit proof, that a legacy given to one person was ordered to be paid to another(?^J). If the direction had appeared on the face of the will, the decree, doubtless, would have been different(a:?). 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 the chil- dren's own hands their several legacies; the eldest of whom was then sixteen years, the second fourteen, and the youngest only nine: on her coming of age, they filed a bill against the executor to be paid their respective legacies; suggesting that their father had embezzled the money, and was insolvent, and that the payment 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 defend- ant agreeing to [317] pay fifty pounds, to be divided between the three plaintiffs, without costs on either side, they were ordered to release their legacies(?/). 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, which 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, the executrix paid the legacy to J. S. who had a wife and seven children, six of whom are adults, and the seventh an infant: (0 Dagley v. Tolferry, 1 Eq. Ca. Ab. v. Thornton, 3 Bro. Ch. Rep. 90. 300. IP. Wms. 285. S. C. Gilb. (iw) Cooper v. Thornton, 3 Bro. Ch. Rep. 103. S. C. 4 Burn. Eccl. L. 321. Rep. 1)6. Vid. Maddox v. Staines, 2 S. C. Vid. also PhiUps v. Paget, 2 Atk. P. Wms. 421. 81, and Cooper v. Thornton, 2 Bro. (.c) Vid. infr. Ch. Rep. 1)6. Cv) I'liilips v. Paget, 2 Atk. 80, 81. (u) 1 P. Wms. 286, in note. Cooper (z) Ibid. 81. CHAP. IV.] OF THE PAYMENT OF LEGACIES. 317 Eleven years after the youngest had come of age, and the legacy never having been demanded, tliey filed their bill against the execu- trix for the same, insisting that thfe payment to their father was in- valid: 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 trustee to divide it: And even on supposition, that the payment was wrong, the great laches, and long acquiescence of the plaintiffs precluded them from all remedy(ff). But where A. bequeathed his personal estate to trustees, 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 ^jer cent till their respective legacies should be paid, namely, at their age of twenty-one years; it was holden, that the executors could not justify paying any part [318] of the principal to the infant, or to his use, before that time, except for absolute necessaries(6). In case a legacy be too inconsiderable in point of value, to bear the expence of an application to the court of cliancery, 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 father(c); but in general he is not warranted in so doing, unless he be 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 it into his hands, an injunction(c^), 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 pass- ing of that act, it shall be lawful for him to pay sucli legacy, after deducting the duty chargeable thereon, into the Bank of England, with the privity of the accountant-general of the court of chancery, to be placed to the account of the legatee, for payment of wiiich the accountant-general shall give his [319] certificate, on production of the certificate of the commissioners of stamps that the duty thereon hath been duly paid; and such payment into the bank shall be a suf- ficient discharge for such legacy, which, when paid in, shall be laid out by the accountant-general in the purchase of i\\vcc per cent con- solidated annuities, which, with the dividends thereon, shall be trans- ferred 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. (a) Cooper v. Thornton, 3 Bro. Ch. Seton v. Seton, 2 Bro. Ch. Rep. 613. Rep. 96. Off. Ex. 219, 220. Bilson v. Saun- {b) 4 Bac. Abr. 433. Davies v. ders, Biinb. 210. Austen, 3 Bro. Ch. Rep. 178. {d) Rotlicram v. Fanshaw, 3 Atk. (c) 4 Burn. Eccl. L. 321. 1 Ch. 629. Per Ld. Hardwicko, C. arguendo. Ca. 215. Philips v. Paget, 2 Atk. HI. (c) 4 Bac. Abr. 42'J, in note. Goilb. Com. Dig. Chancery, (3 G. G.) Vid. 243. 27 319 OF THE PAYMENT OF LEGACIES. [rOOK III. But the executor is not bound so to pay the legacy into the bank till the expiration of a year from the testator's death. Where personal ])roperty is bequeathed for life, with remainder over, and not specifically, it is a general rule that it be converted into three per cents, subject in the case of a real security to an inquiry, whether it will be for the benefit of all parties(y ). But this general rule does not attach upon property of a testator, 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 has 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 lit, and she gave a thousand pounds to her own daughter, and only a hundred to the other, an equal distribution was decreed(/). In like manner where A. having appointed his two daughters his executrices, gave them four hundred 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 dis- tribution, and decreed a double share to one [320] of the children, as standing in greater need of it(A:). But where the testator left a le- gacy to his wife, and executrix, to be disposed of among their chil- dren in such manner as she should think lit; it was held that if she make an inequality, the court will not enter into the motives of it unless it be illusory, and if she give a mere trifle to one of them; and even in that 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 the share of both be substantial, and not illusory or merely nominal(/). 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 discretion should think fit, and directing that after his decease the said sum should be divided among his children, and for default of children over: one of the ex- ecutors being dead, and the other having renounced, the legacy was held to be absolute in the legatee(7w). (/) Howe V. Earl of Dartmouth, 7 City of London v. Richmond, 2 Vern. Ves. jun. 137. 421. {g) Holland v. Hughes, 16 Ve§. (/) Maddison v. Andrews, 1 Ves. 57. jun. 111. Vid. also Alexander v. Alexander, 2 (A) 4 Bac. Abr. 340. Gibson v. Kin- Ves. 640. Swift v. Gregson, 1 Term ven, 1 Vern. 66. Thomas v. Thomas, Rep. 432. Nisbett v. Murray, 5 Ves. 2 Vern. 513. Alexander v. Alexander, jun. 149. Longmore v. Broom, 7 Ves. 2 Ves. 640. Upton v. Prince, Ca. jun. 124, and Butcher v. Butcher, 9 Temp. Talb. 72. Ves. jun. 382. (/) Wall V. Tlmrborne, 1 Vern. 355. (m) Keates v. Burton, 14 Ves. jun. (/,) Com. Dig. Chan. (4 W. 11.) 434. CHAP. IV.] OF THE PAYMENT OF LEGACIES. 320 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 the next of kin at the time of her death(/z). 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 woman 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(o). It hath also been adjudged, that if the hus- band and wife are divorced u mensd et thoro and the legacy is left [321] to her, the husband alone may release \i{p); and, consequently, to him alone it is payable. But the executor, in cases where the husband has made no provision for the wife, may decline paying such legacy, if it amount to the sum of two hundred pounds, unless he will make an adequate settlement on her(y). Nor will the court of chancery interpose in his favour, but on the same terms(r); unless the wife appear in court and consent to his receiving it(6'). And if a woman, who is, or has been married, i-s 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 property 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 ecclesiastical court, because that jurisdiction cannot enforce a settlement for the wife, will entertain a bill by a married woman 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 between himself and the other six clerks, it seems that it ought to be paid to (n) Birch v. Wade, 3 Ves. & Bea. (r) Milner v. Cohitiar, 2 P. Wms. 198. G3y. Adams V. Peirce, 3P. Wins. 11. (o) Palmer v. Trevor, 1 Vern. 201. Brown v. Elton, ib. 202. 4 Burn. Eccl. L. 332. L. of Test. 205. (s) Willats v. Cay, 2 Atk. 67. Mil- (p) 4 Bac. Abr. 433. 1 Roll. Abr. ner v. Calmer, 2 P. Wins. 641. Par- 313. 2Roll. Abr. 301. S.C.Moore, sons v. Dunne, 2 Ves. 60. Sod vid. 665. Rye v. Fuljambe, 683. Ste- ex parte Higharn, 2 Ves. 579. phens V. Totty, Cro. Eliz. 908. Ste- (/) HoKgh v. Ryley, 2 Cox's Rep. phens V. Totty, Noy, 45. Motam v. 157. Motam, 1 Roll. Rep. 426. S. C. 5 (w) Lady Elibank v. Montolieu, 5 Buls. 264. (Chamberlain v. Hewson, Ves. jun. 737. See Wright v. Rutter, Salk. 115,pl. 4. S. C.Ld.Raym.73. 2 Ves. jun. 276. Meales v. .Meales, 5 S. C. 5 Mod. 69, and 12 Mod. 89. Ves. jun. 517, in note, and Carr. v. {q) Lady Elibank v. Montolieu, 5 Taylor, 10 Ves. jun. 578, and infr. 490. Ves. jun. 742, in note. 321 OF THE PAYMENT OF LEGACIES. [bOOK III. 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 (.t); and although it be left after his certificate has been signed by the creditors and commissioners, if before its al- lowance by the Lord Chancellor(_?y); consequently, in such case the legacy must be paid to the assignees. Although, as it has been already stated, payment by an executor of a debt by simple contract, before the breacli of the condition of a bond, is good, and shall not be impeached by its happening after- wards(r), yet payment of a legacy under the same circumstances [322] shall not be allowed. It was, indeed, formerly held, that such bond should not hinder the payment of a legacy, because it was un- certain whether the bond would be ever forfeited, but that the ex- ecutor should pay the legacy conditional!}*, and take security of the legatee to I'efund in the event of a forfeiture of the obligation(«). And in all cases, where a suit was instituted in the spiritual court to compel an executor to pay a legacy without a security from the lega- tee to refund in case of a deficiency of assets, the court of chancery would grant a prohibition(6): yet that practice no longer exists. Equity will not now interfere(c), but will compel a legatee to refund, where the estate proves insufficient, whether security has been given for such a purpose or not(f/). 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 accord- ing to the currency of those respective countries(e). Nor is the case varied by the legatee's residing in England(/); nor by [323] the testator's having left effects partly here and partly abroad, unless he shall have separated the funds, and charged the legacies on his Eng- lish property (;§•). If he has given some legacies described as sterling, and others without such description, the former are payable in ster- ling money, the latter in the currency of the country where the tes- tator resided (A). In like manner, if a testator living in England, be- (z«) Per M. R. arguendo, Cooper v. Day, Ambl. 160. Thornton, 3 Bro. Ch. Rep. 99. (f/) Noel v. Robinson, 1 Vern. 93, (x) Cooke's B. L. 371. Com. Dig. 94. Hawkins v. Day, Ambl. 162. Bankrupt (D. 16.) Toulson v. Grout, (e) Holditch v. jMist, 1 P. Wms. 2 Vern. 433. C96, note 2. 2 P. Wms. 88, 89, note (y) Tredway V. Bourn, 2 Burr. 716. 1. Saunders v. Drake, 2 Atk. 465. {z) Supr. 282. Pearson v. Garnet, 2 Bro. Ch. Rep. 38. (a) 3 Bac. Abr. 84. 1 Roll. Abr. Malcolm v. Martin, 3 Bro. Ch. Rep. 50. 928. 4 Burn. Eccl. L. 332. Noel v. Cockerell v. Barber, 16 Ves. jnn. 461. Robinson, 2 Ventr. 358. (/) Saunders v. Drake, 2 Atk. 466. (6) 4 Burn. Eccl. L. 332, 333. {g) Ibid. Pearson v. Garnet, 2 Grove v. Banson, 1 Chan. Ca. 149. Bro. Ch. Rep. 47. Noel V. Robinson, 2 Ventr. 358. S. (//) Saunders v. Drake, 2 Atk. 465. C. 1 Vern. 93. Pearson v. Garnet, 2 Bro. Ch. Rep. 38. (c) Anon. 1 Atk. 491. Hawkins v. Malcolm v. Martin, 3 Bro. Ch. Rep. 50. CHAP. IV.] OF THE PAYMENT OF INTEREST. 323 queath a legacy, whether of a single sum of monej^, or of an annuity charged on lands in another country, it shall he paid in England, and in English money, and without any deduction for the expences of its remittance(z). In regard to the payment of interest on a legacy, it was formerly held, that in case of a vested legacy charged on lands yielding im- mediate profits, and no time of payment mentioned in the will, in- terest should, in respect of such profits, be made payable from the death of the testator(^) ; or that a legacy given out of a personal es- tate consisting of mortgages bearing interest, or of money in the pub- lic 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 specially appropriated for the [324] benefit of the legatee, it should therefore carry interest immediately(wi). But if a legacy were given generally out of a personal estate, and no time specified by the testator, such legacy should carry interest only, from the expiration of the year next after his decease,(l) on the princi- ple that the executor might be reasonably 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 death of the testator: inasmuch as a year was a competent time'for a sale(o). But the rule that the payment of in- terest should depend on the fund's being productive or barren, is now exploded: and, generally speaking, interest for a legacy is payable only from a year after the death of the testator:(2) Although he should have left stock only, 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(/;). Simple contract debts of another person, charged by the will of a testator upon, his real estates, are legacies, and carry interest from the death of the testator at four/?er cenf{q). If an annuity be given by the will, it shall commence immediately from the testator's death, and, consequently, the first payment shall (i) Wallisv. Brightwell, 2P. Wms. (m) Lawson v. Stitch, 1 Atk. 508. 88. Holditch V. Mist, 1 P. VVms. 696. Sleechv. Thorington, 2 Ves, 563. (A-) 4 iiac, Abr. 439. Maxwell v. {n) Maxwell v. VVettenl.all, 2 P. Wettenhall, 2 P. Wms. 26. 2 Bl. Wins. 26, 27. Lloyd v. Williams, 2 Com. 513. Atk. 108. (/) Maxwell v. Wettenhall, 2 P. («) Maxwell v. Wettenhall, 2 P. Wms. 26, and note 2. Lloyd v. Wil- Wms. 26. liams, 2 Atk. 108. Becktbrd v. To- {p) Gibson v. Bott, 7 Ves. jun. 96, bin, 1 Ves. 308. Bilson v. Saunders, 97. Bunb, 210. Stonehouse v. Evelyn, 3 (7) Shirt v. Westby, 16 Ves. jun. P. Wms. 253. 393. (1) 1 Binn. 475. l4Serg. & Kawle, 238. (2) See CogdelVs Ex. v. CogdcWs Heirs, 3 Di-sans. Itep. 387. Ingyaham v. PosieWs Ex., OilUm V. Tumlmll, I M'Cord's Cha. liei). 04, 14S. 324 ON LEGACIES. [rOOK III. be made at the expiration 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 considered as a legacy payable at the end of the year as an annuity payable from the testator's death, seems to be a doubtful point(r). An annuity, however, given by will, with a direction that it shall be paid monthly, the first payment is to be made at the end of a month after the testator's death(6').(l) If a portion of the testator's estate not required for the payment of debts and legacies be invested at the time of his death upon securi- ties carrying interest, the tenant for life of the residue is entitled to such interest from the time of the death of the tcstator(^). Although the interest of residue goes with the capital, that of par- ticular legacies does not, even supposing it to be the payment, 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 fu- ture time, the surplus interest falls into the residue(«). [3^5] If a legacy, whether vested or not, be payable on a certain day, and the will be 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(i').(2) Hence, as we have seen{iv), if a legacy be left to A. to be paid at twenty-one, and he die before, his representative shall wait till he- would have at- tained that age, unless it were made payable with interest. Nor is it, in such cases, a question of construction, as whether the payment is suspended on account of the imbecility of the party, or with a view to the benefit of the estate. The rule I have just stated is tech- nical, established in the ecclesiastical court, and adopted by the court of chancery in numerous adjudications(a;). If legacies are given to A. and B., each to be paid to them at their respective ages of twenty-three years, and if they should die before that time, then their respective legacies to sink into the residue of the testator's personal estate, such legacies do not carry interest, and no maintenance can be al- (r) Gibson v. Bott, 7 Ves. jun 96, Ves. 307. Smell v. Dee, 2Salk.415. 97. pi- 2. 2 P. Wms. 481, note 1. Green (s) Houghton V. Franklin, 1 Sim. & v. Pigot, 1 Bro. Ch. Rep. 105. Ash- Stu. 390. burner v. M'Guire, 2 Bro. Ch. Rep. (/) Angerstein v. Martin, 1 Turn. 113. Crickett v. Dolby, 3 Ves. jun. 232. Hewitt V. Morris, ib. 211. 10. Tyrrell v. Tyrrell, 4 Ves. jun. 1. (m) Leake v. Robinson, 2 Meriv. (w) Supr. 171. 313. Rep. 384. (x) Tyrrell v. Tyrrell, 4 Ves. jun. (r) Heath v. Perry, 3 Atk. 102. 3, 4, 5. Hearle v. Greenbank, 716. S. C. 1 (1) So where one bequeathed to his daughter A. "the interest of 400/. to be paid to her annually during her natural life, it was held tliat the first payment was to be made at the end of a year from the testator's deatli. Eyre v. Gohling, 5 Binn. 475. (2) Bitzer'a Ex. v. Jfah7i et Jix. 14 Serg. 8c llawle, '232. Lupton v. Liipton, 2 Johns. Cha. Rep. 628. Daives v. Sivan, 4 Mass. Rajf. 215, CHAP. IV.] OF THE PAYMENT OF INTEREST. 325 lowed to the legatees(y). 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 tliis 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 testator had been dead much longer(z). But the principle does not extend to all cases: It does not apply where the legatee was the child 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 immediately ; since, by the law of na- ture, he was obliged to provide not only a future but a present main- tenance for his child, and shall not be presumed to have meant to leave him destitute(«).(l) But if a father gives a legacy to a child payable at a future day, and makes an express provision for mainte- nance out of another fund, the legacy shall not carry interest until the time of payment(6). So where a testator directed his executors, as soon as they should think proper after his decease to sell as much stock as would pro- duce 12,000/., and invest the same in land, upon trust to receive the rents of the land when purchased, and the interest and dividend of the 12,000/. until the estate was purchased, and pay the same in equal moieties between his two daughters for their lives, with remainder over; the court held, that the daughters were not to take the interest until the 12,000/. was raised by a sale of the stock, and that this being to be done, "as soon as the executors should think proper after his decease," amounted to the same thing as a direction to raise and pay a legacy as soon as the executors should find it convenient. That the court adopted a year as the rule of convenience, and that the legacy therefore could not be raised till the end of the year(c). And where the testator devised estates in Jamaica to trustees and their heirs, in trust to maintain and educate his sons during their mi- nority, and his daughter until the age of twenty-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 interest from the time of her attaining such age of twenty-one, at the rate of 61. per cent, and to be paid by in- stalments, the first payment to be made when and if she should at- (y) Descrambes v. Tomkins, 1 by, 3 Vcs. jun. 13. See Chambers v. Cox's Rep. 133. • Goldwin, 11 Ves. jun. 1. (2) Laundy V. Williams, 2 P Wms. (h) Wynch v. Wynch, 1 Cox's 481. Rep. 433. («) Butler V. J3utler, 3 Atk. 60. (c) licnson v. Maude, 6 Madd. Rep. Heath V. Perry, 102. Crickettv. Dol- 15. (1) 1 Binn. 475. 14 Serg. & Ilawle, 238. 325 ON LEGACIES. [bOOK III. tain twenty-one; and the daiiglitcr married at the age of eighteen years. Lord Eldon lield, tliat the testator having expressly given interest from the period of the daughter's majority to the time when' the legacy was to he paid, could not mean that the child should have nothing during the interval between her marriage and her attaining the age of twentj-one years, and therefore decreed her a reasonable maintenance out of the assets for that period(f/). 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 tiie 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(6). [326] Whether a legatee, if a natural child, be also comprised v^rithin the exception, is not so clear. Lord Harwicke, C. expressed an opinion in the negative, as well in the principle of law, which recognizes no relationship in such child, as also on the general po- licy of. encouraging marriage, and discountenanchig immorality(c). In a recent case, the Master of the Rolls intimated, that illegitimate children were to be admitted to the same benefit(^/). But in a sub- sequent case, the Court of Exchequer held that they are not(e). If, however, it can be implied from the wording of the will that the testator intended it, interest will be allowed from the testator's death(/). Whether a grandchild shall be thus favoured, is a point likewise on which there has been a difference of opinion: such advantage has been, in several instances, denied to him(^).(l) But his Ho- nour, in the case just alluded to, appears to have considered him as on the same footing with a child: And that opinion has been con- firmed by subsequent adjudications(A). 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 (a) Chambers v. Goldwin, 11 Ves. 330. Butler v. Butler, 3 Atk. 59. 4 jun. 1. Bro. Ch. Rep. 149, in note, and Des- (b) Carey v. Askew, 1 Cox's Rep. crambes v. Tomkins, 1 Cox's Rep. 133. 243. ' {h) Crickett V. Dolby, 3 Ves. jun. (c) Hearle v.Greenbank, 1 Ves. 310. 12. 5 Ves. jun. 194, 195, in note. l4) Crickett v. Dolby, 3 Ves. jun. Collins v. Blackburn, 9 Ves. jun. 470, 12. and see Hill v. Hill, 3 Ves. & Bea. (e) Lowndes v. Lowndes, 15 Ves. 183. jun. 301. (?) Lowndes v. Lowndes, 15 Ves. (/) Hill V. Hill, 3 Ves. & Bea. 183. jun. 301. Stent v. Robinson, 12 Ves. Ig) Haughton v. Harrison, 2 Atk. jun. 461. (1) See Johns. Cha. Rep. 628. Van Bramer v. Iloffnuni'a Ex. 2 Johns. Ca. 200. CHAP. IV.] OF INTEREST ON LEGACIES. 326 of payment(A^). And a legacy to the wife of a nephew, expressly given for the maintenance of herself and children, she being sepa- rated from her husband, shall only carry interest from the end of the year after the testator'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 pro- duce, when he has given a vested interest in the capital(?w). If a legacy be left to an infant payable at twenty-one, and devised over on his dying before he attains that age, and such event happens, the [327] interest accumulated from the death of the testator to that of the infant shall go to his representative, and not to the remainder- •man(??.). And where legacies were given to infants, payable at twen- ty-one, with benefit of survivorship in the event of death under that 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 interest from the death of the testatrix; the infants being her cousins, and destitute of other provision(o). 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.(l) Nor, as it has been frequently held, shall the interest of the legacy be applied to that purpose, unless in cases of great ne- cessity, arising from the distressed and embarrassed circumstances of the parent(/?).(2) In eases so pressing the infant shall be main- tained out of the interest of the legacy, whether it be vested or con- tingent; and, although the legacy be devised over on the infant's dying before he attains twenty-one( 9). Indeed, in some recent instances, where the will has contained an express direction for maintenance of the legatees out of the interest of the legacies, and there have been other children, not the objects of the testator's bounty, such maintenance has been ordered, on the ground of the father's not being of ability to educate the favoured children in a manner suitable to their fortunes(r). But the court wdll not make (k) Crickett v. Dolby, 3 Ves. jun. (0) Pott v. Fellows, 1 Swans. 561, 12. Ip) Butler v. Butler, 3 Atk. GO. (A Raven v. White, 1 Swans. Rep. Darley v. Darley, 399. Vid. Andrews 553. S. C. I Wils. 204. v, Partington, 3 Bro. Ch. Rep. GO. (m) Nichols v. Osborn, 2 P. Wms. Walker v. Shore, 15 Ves. jun. 122. 420. Vid. Tyrrell v. Tyrrell, 4 Ves. (q) Butler v. Butler, 3 Atk. GO. jun. 4. Harvey v. Harvey, 2 P. Wms. 21. (n)Tissenv.Tissen,l P.Wms. 500. But see Buckworlh v. Buckworth, 1 2 P. Wms. 421, note 1. Ibid. 504. Cox's Rep. 80. Green v. Ekins, 2 Atk. 473. Cha- (/•) Hoste v. Pratt, 3 Ves. jun. 733. worth v. Hooper, 1 Bro. Ch. Rep. 82. Vid. also Mundy v. Earl Howe, 4 Bro. Ibid. 335. Shepherd v. Ingram, Amb.l. Ch. Rep. 223. Heysham v, Heysham, 448. Vid. Butler v. Butler, 3 Atk. 59. 1 Coxs Rep. 179. (1) Crtiger v. Jli-ij-ward, '2 Dc-saus. Kcp. 84. (2) See Iletjward v. Culhbcri, 4 Dcsaus. Rep. 4-15. Mijers v. Mi/cn; 'Z M'Cord's Cha. Rep. 255. 28 327 THE RATE OF 8UCH INTEREST. [bOOK III. an allowance to a father for the maintenance of a child for the time past, although it should appear that he had not been of ability to maintain him, and the will has expressly given the produce to trus- tees for the child's maintenance(5). And the court has made a liberal allowance of maintenance for an infant, in regard to an illegitimate brother unprovided for(/). On occasions extremely urgent, the court will even break in upon the principal; but this authority is exercised very sparingly, and with great caution(?/). If the legacy be of small amount, and the interest altogether inadequate to the necessities of the infant, the [328] court will order a part of the principal to be immediately paid, and that as well for his education, as for his maintenance(zj).(l) But if the legacy be devised over in case of the infant's dying before he comes of age, the principal, it seems, shall on no account be subject to such diminution(ii').(2) With respect to the quantum of the interest thus payable on a legacy, a distinction formerly prevailed between legacies charged on land, and such as were charged on the personal 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 (a'); but this distinction is now exploded: Whether legacies are charged on real or on per- sonal estate, it is become the established practice to allow only four per cent, where no other rate of interest is specified by the will. And although pecuniary legacies not 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 court, at four per cent, and not pursuant to the rate of interest in such country(y). [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(r). A testator directing legacies to be paid at the expiration of six (s) Andrews v. Partington, 2 Cox's {w) 4 Bac. Abr. 442. Leech v. Rep. 223. Leech, 1 Ch. Ca. 249. Brewin v. {t) Bradshawv. Bradshaw, 1 Jac. & Brewin, Prec. Ch. 195. Walk. 647. ' {x) Hearle v. Greenbank, I Ves. (w) Harvey v. Harvey, 2 P. Wms. 308, 309. 21. Vid. supr. 318, 319. {y) Pierson v. Garnet, 2 Bro. Ch. (i.) Barlow v. Grant, 1 Vern. 255. Rep. 47. Malcolm v. Martin, 3 Bro. Harvey v. Harvey, 2 P. Wms. 21. Ch. Rep. 53. 4 Bac. Abr. 440, in note. Ex parte Green, 1 Jac. & Walk. Rep. (2) Vid. Append. 253. (1 ) Matter ofjiostwick, 4 Johns. Ch. Rep. 102. (2) Nor will the interest be applied lor maintenance and education, in such a case. Jililes V. Winter, 5 Binn. iT7. CHAP. IV.] THE RATE OF SUCH INTEREST. 329 months after his death, without deduction, the legatees are entitled to the full amount, and the legacy duty must be paid by the execu- tors(a). If a testator die in India, and his personal estate be wholly in In- dia, and his executor be resident there, and the will be proved there, and the executor remit to a legatee in England, or to some other person in England for the specific use of the legatee, the amount of his legacy, the legacy duty is not payable upon such remittance, inasmuch as the whole estate is administered in India, and the re- mittance is in respect of a demand which is to be considered as es- tablished there. But if a part of the assets of the testator is found in England, in the hands of the agent of such executor, without any specific appropriation, and a legatee in England institute a suit here for the payment of his legacy out of such unappropriated assets, then such assets are to be considered as administered in England, and the legacy duty is payable in respect of them (6). 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 liable to repay him the duty, it not being a voluntary payment; and the executor was only made liable by the act for the benefit of government, and not on his own account; he was therefore no more than surety for the legatee, and the case fell within the principles applicable to sureties(c). Sect. IV. Of the ademption of a legacy. I PROCEED now to inquire into the nature of an ademption of a legacy. An ademption of a legacy is the taking away, or revocation of it by the testator. It may be either express or implied. The tes- tator may not only in terms revoke a legacy he had before given, but such intention may be also indicated by particular acts(c/): As where a father makes a provision for a child by his will, and after- wards 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 (a) Barksdale v. Gilliat, 1 Swans. Cockerell, 1 Price, IG5; and Attor- 562, and see Waring v. Ward, 5 Ves. ney-Gcncrul and Kcatson, 7 Price, 500. C70. (r) Hales V. Freeman, 1 liin^. & (i) Logan V. Fairlie, 2 Sim. & Stu. Brod. Rep. .391 . 284; and sec Attorney-General v. (rf) 2 I'onbl. 353. 329 THE ADEMPTION OF A LEGACY. [p.OOK III. the father designed two portions for the same chi]d(6), ]?ut this [330] implication will not arise if the provision in the will is created by bequest of the residue(c); nor if the provision in the father's life- time be subject to a contingency(G?); nor unless it be ejusdem ge- ne7'is \\\{\\ the legacy(e); nor if it be expressly in satisfaction of a claim aliunde; nor if the portion be given absolutely, and the legacy under limitations(y); nor if the testator were a stranger(,:»); nor if the testator be the uncle of the legatee(A); nor if the legatee be an illegitimate child, unless the testator placed himself clearly in loco par-en 'l.i(i); and the doctrine of ademption of legacies is fully considered as confined to the cases of parents, and persons placing themselves i)i loco jiarentis; and such imj)lication is always liable to be repelled by evidcnce(A'). But if the testator, by a codi- cil subsequent to the jjortioning or advancement of the child, ratify and confirm his will, this, altbough a new publication, shall not avail to overturn the presum])tion, that he meant to adeem the legacy; for such words are merely formal(/). A gift by a parent in his lifetime to legatees, after a will giving them legacies, has been held to be part satisfaction of the legacies, upon evidence of the intention of the tes- tator to that effect. In respect to the ademption of a legacy, all the cases on the sub- ject concur in the principle, that the intention of the testator must govern; but, in the application of that principle, or what shall amount to evidence of such an intention, they are, in many instances, inca- pable of being reconciled. Thus, in some cases it has been held, tliat where a sum of money is bequeathed out of a particular fund, such legacy is in its nature [331] general, a legation in numeratis, and if the testator in his lifetime receive it, it must be made good to the legatee out of the general assets; for from that act of the testator no presumption can be raised of his intention to revoke his bounty(m).(l). In other (i) 2 Fonbl. 354, note A. Hartop v. ( s;) Sliudall v. Jekyll, 2 Atk. 516. Whitmore, 1 P. Wms. 680. 2 Ch. Powell v. Cleaver, 2 Bro. Ch. Rep. Rep. 85. Jenkins v. Powell, 2 Vern. 499. 115. Duffield V. Smith, 2 Vern, 257. {h) Brown v. Peck, 1 Eden's Rep. Ward V. Lant, Prec. Ch, 183, Farn- 140. ham V, Phillips, 2 Atk. 216, Watson {>) Wetherby v. Dixon, Coop. Rep. V. Earl Lincoln, Ambl. 325. Ellison 279, S, C, 19 Ves. 407, and see Ex V. Cookson, 2 Bro. Ch. Rep, 307, S, parte Dubost, 18 Ves, 140, C, 3 Bro, Ch, Rep, 61, Cookson v. (/.•) Shudall v, .Tekyll, 2 Atk. 516. Ellison, 2 Cox's Rep. 220. Hartop Debeze v, Mann, 2 Bro, Ch, Rep, 165. V. Hartop, 17 Ves. 184. 519, S, C. 1 Cox's Rep, 346, (c) Farnhamv, Phillips, 2 Atk. 216. (/) Irod v. Hurst, 2 Freem. 224. \d) Spinks v, Robins, 2 Atk, 491. Thelluson v. Woodford, 4 Madd. Rep. (e) Grace v. Earl of Salisbury, 1 421, Bro, Ch. Rep, 425, {m) 4 Bac, Abr, 355. Ashbnrner v. (/)Bauahv, Reed,3Bro, Ch, Rep. Macguire, 2 Bro. Ch, Rep, 108. Finch. 192. Bell V. Coleman, 5 Madd. Rep. 152, Pawlet's case, Raym, 335. Sa- 22. vile V. Blacket, 1 P. Wms. 777. (1) Walton V. ] Fulton, 7 Jolins. Clia. Rep. 2C'i. CHAP. IV.] THE ADEMPTION OF A LEGACY. 331 cases it has been decided, that such a legacy under the same circum- stances is adeemed(w). Some authorities distinguish between the bequest of a sum of money to be satisfied out of a particular fund, and, consequently, a general legacy, and a bequest of a sjDCcific debt; that the former is not adeemed, while the latter is adeemed by pay- ment to the testator(o). But these last mentioned cases differ in their construction of what shall be the bequest of a general legacy, as opposed to that of a specific debt. Some, as we have already seenlp), 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 instance, the legacy is pecu- niary, in the latter is specilic(5'). But, according to other cases, this distinction is too slender to be relied on(/'). A difference has also, in some instances, been taken between a compulsory, and a volun- tary payment to the testator of such debt; in [332] other words, where the testator himself calls in a debt which he has bequeathed, and where the debtor unprovoked, and without application, thinks 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 passive, and therefore cannot be presumed to have changed his mind(5). 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 dis- tinction between a compulsory and a voluntary payment has been recognized as very important, but not as an absolute rule of deci- sion; on the principle, that the testator's calling lor payment is not of itself sufficient evidence of an intention to adeem, but an equivocal act requiring explanation(y). It is, however, clear that if the legacy be of a specific chattel, and the testator alter the form, so as to alter the specification of the sub- ject; as if, after having given a gold chain by his 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 conclu- sion that can be formed from such an act is, that he has changed the intention he had expressed in his will; therefore, in such in- (n) Badrickv. Stephens, 3 Bro.Ch. 1G5. 330, note 1, ibid. Bronson v. Rep. 431. See also 2 Fonbl. 3G7. Winter, Arnbl. 57. note (f ). (0 Karl of Thomond v. Earl of Suf- (o) Hambling v. Lister, Ambl. 401. folk,' 1 P. Wms. 4G1. Ashton v. Ash- (/;) Vid. supr. 303. ton, 3 P. Wms. 386. S. C. 2 P. Wms. (y) Rider v. Wager, 2 P. Wms. 330, 409. Ford v. Pluming, 2 Str, 823. and note 1, ibid. Attorney-General v. (u) Attorney-.General v. Parkin, Parkin, Ambl. 5GG. Carteret v. JiOrd Ambl. 5GG. Ashburner v. Macguire, Carteret, cited 2 Bro. Ch. Rep. 114, 2 Bro. Ch. Rep. lO'J. 4 Bac. Abr.355, and see Le Grice v. Finch, 3 Meri. note (B). Stanley v. Potter, 2 Cox's Rep. 50. Rep. 180. (r) Ashburner v. Maguire, 2 Bro. (r) Drinkwatcr v. Falconer, 2 Ves. Ch. Rep. 111. 1 Kq. Ca. Abr. 302. C23. JIamblingv. Lister, Ambl. 401. (s) Crockat v. Crockat, 2 P. Wms. Coleman v. Coleman, 2 Ves. jun. G39. 33!2 THE ADEMPTION OF A LEGACY. [bOOK III. stances, the legacy shall be acleemed(iw).(l) So, if he bequeath his stock in a particular fund, and sell it out subsequently to the mak- ing of the will, this, on the same principle, amounts to an ademp- tion(.r). And where a testator bequeathed two policies on a life upon certain trusts, and received the amount of the policies in his lifetime, it was held that the legacies were adeemcd(a^). But if A. bequeath so much stock to B., and, after making his will, sell it out and then buy in again the same quantity of stock, this is no ademp- tion: 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).(2) If the testator, after such bequest of stock, sell out part and die, such sale shall be an ademption pro tanto[z). Thus, wliere A. bequeathed a moiety of two-thirds of the residue of the South Sea Stock, India, Bank, and Orphan Stock, Leases, East India and South Sea Bonds, and other his personal estate to B.: B. before he received 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 the 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 '^eceived, 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 was clearly no ademption; inasmuch as the [334] object both of B. and the other was merely to ascertain their moieties, and to prevent 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(6). 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 estate, in respect of that debt. {w) 3 Bro. Ch. Rep. 110. (z) Ca. Temp. Talb. 226. \x) 3 Bro. Ch. Rep. 108. Barker (c) Birch v. Baker, Mos. 373. V. Rayner, 5 Madd. Rep. 208. (i) Ashburner v. Macguire, 2 Bro. (?/) Partridge v. Partridge, Ca. Ch. Rep. 108. Temp. Talb. 226. (1) Walton V. Walton, 7 Johns. Cha. Rep. 262. (2) So where a bequest was made of " all the money due on a bond agahist P. P. and J. P.," and after such bequest tlie testator, at the request of one of the obligees, accepted another bond in lieu of the first, it was held not to be an ademption of Uie legacy, which was specific. Stoxit v. Hart, 2 Halst. Rep. 414. CHAP. IV.] OF CUMULATIVE LEGACIES. 334 Sect. V. Of cumulative legacies. Legacies may be also cumulative: they are contradistinguished from such as are merely repeated. As where a testator has twice bequeathed a legacy to the same person, it becomes a question whe- ther the legatee be entitled to both, or to one only. And on this point likewise the intention of the testator is the rule of construc- tion(a).(l) On this head there are three classes of cases; first, those cases in which there is no evidence of such intention, either internal or ex- trinsic, one way 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 or ex- . trinsic evidence, it is necessary to recur to the rule of law(6). There are four instances of this class: Where the same specific thing is bequeathed to A, twice in the same will, or in the will and again in the codicil: in that case he can claim the benefit only of one legacy, because it could be given no more than once(c). 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(c?). 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, given by the first testamentary paper(e). 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(y). 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(^). There are likewise cases in which there is internal evidence of the (a) 4 Bac. Abr. 361. Ridges v. Madd. Rep. 263; and see Gillespie v. Morrison, I Bro. Ch.Rcp. 389. Coote Alexander, 2 Sim. & Stu. 145. V. Boyd, 2 Bro. Ch. Rep. 527. (/) 1 Bro. Ch. Rep. 392, in note. (6) Hooley v. Hatton, 1 Bro. Ch. Vid. Coote v. Boyd, 2 Bro. Ch. Rep. Rep. 391, in note. 521. (c) 1 Bro. Ch. Rep. 392, in note, and {g) 1 Bro. Ch. Rep. 391, and 392, ibid. 393. in iiotc. Masters v. Masters, 1 P. {(l) 1 Bro. Ch. Rep. 392, in note. Wms. 423. 1 Ch. Ca. 361. Foy v. Swinb. p. 7, s. 21. 1 Bro. Ch. Rep. Foy, 1 Cox's Rep. 163. Baillio v. 30, in note. 3 Bac. Abr. 361. Mas- Butterfield, ibid. 392. Benyon v. Ben- ters V. Masters, 1 P. Wms. 424. yon, 17 Ves. 34. (e) Attorney-General v. Ilarley, 4 (1) Sec the doctrine fully stated, Dc fVitt v. Yutea, 10 Johns. Hep. 156. 335 OF CUMULATIVE LEGACIES. [bOOK III. testator's intention; as where a latter codicil appears to be merely a [336] copy of the former with the addition of a single legacy; or where both legacies are given for the same cause; they shall 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 ex- press purpose; or where one reason is assigned for the former, and another for the latter; or where the legacies are not ejusdcrn generis, as where an annuity and a sum of money is givcn(A), or two annui- ties of the same amount, by different instruments, the one payable quarterly, the 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(A'). In like man- ner it may be collected from the context, whether the testator meant a duplication, or a mere repetition of the first bequest. And his in- tention has been inferred from very slight circumstances(/). Extrinsic evidence is also admissible on this subject. Whether 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(wz). Hence, if the testator, after the making of the will, and before the date of the codicil, had an increase of fortune, that circumstance has been held to prove that he intended an addi- tional bounty(?i). Sect. VI. Of a legacy being in satisfaction of a debt. Under certain circumstances, a legacy is regarded in the light of [337] 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(6).(l) (7() Masters V. Masters, 1 P. Wms. (m) Cootev. Boyd, 2 Bro. Ch.Rep. 423. 527, 528. 4 Bac. Abr. 361, in note. (t) Currie v. Pye, 17 Ves, jun. 462. (n) Masters v. Masters, 1 P. Wms. {k) Wrio-ht V. Lord Cadogan, 2 424. Eden's Rep. 239. («) 4 Bac. Abr. 362. Cuthbert v. (/) 4 Bac. Abr. 361. Duke of St. Peacock, 1 Salk. 155, pi. 5. Cranraer's Albans v. Beauclerk, 2 Atk. 640. Rid- case, 2 Salk. 508. 2 Fonbl. 332. ges V. Morrison, 1 Bro. Ch. Rep. 389. {b) 1 P. Wms. 409, note 1. Talbot Coote V. Boyd, 2 Bro. Ch. Rep. 521. v. Duke of Shrewsbury, Prec. Ch. 394. 1 P. Wms. 424, in note 2. Benyon v. Jeffe v. Wooff, 2 P. Wms. 132. Fow- Benyon, 17 Ves. jun. 34. ler v. Fowler, 3 P. Wms. 353. Reech (1) WiUiams\. Crary^ 8 Cow. Rep. 246. But a devise of lands to a creditor, though it'be greater in value tlian the amount of the debt, does not extinguish a debt or claim which he has against the testator. Partridge's Adm. v. Partridge, 2 Harr. &c Johns. 63. CHAP. IV.] OF A LEGACY TO A CREDITOR. 337 But this is merely a rule of construction, 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 presump- tion(c): As where it contains an express direction for the payment of debts(t^),(l) 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).(2) Nor shall the legacy be a satisfaction if it be conditional, or given on a contingency, for it shall not be supposed, that the testator in- tendedan uncertain recompence insatisfactionof a certain demand(y). Nor is a legacy considered as a satisfaction, where it is not equally beneficial with the debt in one respect, though it may be more so in another; as, where the legacy is to a greater amount [338] but the payment of it is postponed for however short a period(,;0-): nor shall a legacy be held to be in satisfaction of a covenant, unless it be equally beneficial in amount, certainty, and time of enjoyment, with the thing contracted for(/i). Nor if the debt were on an open or running account, so that the testator could not tell whether the balance was in favour of the lega- tee or not(/).(3) Nor if the debt were contracted after the making of the will in which the legacy is given, shall he be supposed to have had it in contemplation to satisfy a debt which was not then in existence(^). Parol declarations by the testator are admissible in evidpnce, to repel the presumption of the satisfaction of a debt, by the bequest of a legacy of greater amount, even where such declarations were not contemporaneous with, but subsequent to the making of tlie will(4); V. Kennegal, 1 Ves. 126. Vid. Cromp- 555. Barrett v. Beckford, 1 Ves. 519. ton V, Sale, 2 P. Wms. 555. (g) Atkinson v. Webb, Prec. Ch. (c) 1 P Wms. 409, note 1. 236. Hawes v. Warner, 2 Vern. 478. (d) Chancey'scase, 1 P. Wms. 410. NichoUs v. Judson, 2 Atk. 300. Clark Richardson v. Greese, 3 Atk. 66. 68. v. Sewell, 3 Atk. 96. Hayes v. Mico, Sed vid. Gaynorv. Wood, at the Rolls, 1 Bro. Ch. Rep. 129. Jeacock v. cited 1 P. Wms. 409, note 1, and 4 Falkener, ib. 295. 2 Fonbl. 331, note Bac. Abr. 428. M. Matthews v. Mathews, 2 Ves. 635. (t) Cranmer's case, 2 Salk. 508. 1 P. Wms. 409, note 1. Hawes v. Warner, 2 Vern, 478! East- (h) Blandy v. Wedmore, 1 P. Wms. wood V. Vinke, 2 P. Wms. 616. Mi- 324. 409, note 1. Eastwood v.Vinke,2 nuel V. .Sazarine, Mos. 295. P. Wms. 614. 2 Fonbl. 332, note O. (/) 2 Fonbl. 331. Talbot v. Duke (/) Rawlins v.Powel, 1 P. Wms. 299. of Shrewsbury, Prec. Ch. 394. Cran- (/«•) 2 Fonbl. 331, 332. 2 Salk. 598. mer'scase, 2 Salk. 508. Nicholls v. Chancey's case, 1 P. Wms. 409. Tlio- Judson, 2 Atk. 300. Spinks v. Robins, mas v. Bennet, 2 P. Wms. 343. Fow- ib. 491. Crompton v. Sale, 2 P. Wms. ler v. Fowler, 3 P. Wms. 353. (1) Such express direction is of no moment in Pennsylvania. 3 Serg. &. Rawle, 61. (2) Strong \. Williams, 12 Mass. Rep. .391. Jiyrne v. JSyime, 3 Serg. & Rawle, 54. Owings^s Ex. v. Oivings, 1 Harr. k Gill's Rep. 484. (3) WilUamn v. Cvary, 5 Cow. Rep. 368. Rut it was subsequently ruled in this case, that where the legacy appears, either from the face of the will? or by evidence aliunde, io be intended by the testator as a satisfaction, it will so operate, Ihougli the sum be(iuuathed stand in an unliquidated account. Williams y. Crary, 8 Cow. Rep. 246. (4) Williams v. Crary, 8 Cow. Rep. 246. 29 338 OP A LEGACY TO A CREDITOR. [bOOK III. and altlioLigli the expressions in the will may afford an inference in favour of the prcsumption(/). But in all cases the legacy shall be construed as a satisfaction, in case there be a deficiency of assets. Where a legacy is decreed to be in satisfliction of a debt, the court always gives interest from the testator's death(wi). On the other hand, if a legacy be left to the testator's debtor, the debt shall be deducted from the legacy, for the legatee's demand is in respect of the testator's assets, without which the executor is not liable, and therefore the legatee in such case is considered by a court of equity to have so much of the assets already in his hands as the debt amounts to, and consequently to be satisfied pro tanto; for there can be no pretence to say, that because the testator gives a legacy to his debtor, that this is an argument to evidence that the testator meant to remit the debt. So under certain circumstances, money or goods lent or delivered by the executor to such legatee, was held by the court to be in part payment of the legacy (w). If the testator bequeath to his debtor the debt, this being no more than a release by will, operates, as we have seen(o), only as a legacy; and is assets, subject to the payment of the testator's debts(/»). Where a legacy was left to the wife of A. who was largely in- debted to the testatrix, and A. became a bankrupt, and his wife after- wards died without having asserted any claim in respect of the lega- cy, and the as^igIlcc^ claimed it, it w.is held, that the executors of the testatrix were entitled to retain the legacy in part discharge of the debt due to the testatrix (^r). [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 specific legacies, but not the general legacies, they are subject to abatement, and that in equal proportions; but in such case nothing shall be abated from specific legacies(a). Nor shall a sum of money bequeathed by the testator, in satisfac- tion or recompence of an injury done by him, abate any more than a specific legacy(6). But a legacy, although devised to be paid in the first place, shall abate, if the fund be insufficient for the legacies(c), (V) Wallace v. Pomfret, 1 1 Ves. jun. Rep. 32. 542. Sed vid. 3 P. Wms. 351. («) 2 Fonbl. 374. 2 Bl. Com. 513. (w) Clark V. Sewell, 3 Atk. 99. Clifton v. Burt, 1 P. Wras. 679. (») Jeffs V. Wood, 2 P. Wms. 128. (6) 2 Fonbl. 377. ((-) Supr. 308. (c) 2 Fonbl. 378. Brown v. Allen, (jo)Riderv. Wager,2P.Wms. 332. 1 Yern.Sl. Beestonv. Booth,4 Madd. {q) Ranking v. Barnard, 5 Madd. Rep. IGl. CHAP. IV.] THE ABATEMENT OF LEGACIES. 339 unless, perhaps, it be a provision for a wife(^).(l) 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(/).(2) If A. devise specific and pecuniary legacies, and direct by the will that such pecuniary legacies shall come out of all his personal es- tate, if there be no other personal estate than the specific legacies, [340] they must be intended to be subject to those which are pecu- niary, otherwise the bequest to the pecuniary legatees would be al- together nugatory(^).(3) So a legacy in favour of a charity, al- though preferred by the civil law, shall by our law abate equally with other general legacies(A). So a legacy to servants shall abate in the same manner(^). But where a legacy of 200/. was bequeathed for building a monu- ment for the testatrix's mother, from whom the testatrix derived the greatest part of her estate, it was decreed, that being a debt of piety, it should not abate with the other legacies(A;). So where 3/. were given to thepoor of the 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(/). And where the testator, after giving various legacies, expressed at the end of his will his apprehension that 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 after- wards, 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 tli'ere would be a surplus, and 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 tlie inference can be repelled, the legacies by the codicil must be lost also(m). {d) Lewin v. Lewin, 2 Ves. 417. v. Earl of Suffolk, 462. Attorney-Ge- (e) Vid. supr. 303. neral v. Hudson, 675. Attorney-Ge- (/) Hume V. Edwards, 3 Atk. 693. neral v. Robins, 2 P. Wms. 25. 296. Lewin v. Lewin, 2 Ves. 417. Sed vid. (/) Attorney-General v. Robins, 2 Peacock v. Monk, 1 Ves. 133. P. Wms. 25. (g) Sayer v. Sayer, Prec. Ch. 393. (k) Masters v. Masters, 1 P. V^ms. 2 Fonbl. 377, 378. 423. (A) Jenuor V.Harper, Prec. Ch. 360. (/) Attorney-General v. Robins, 2 Tate V. Austen, 1 P. Wms. 265. Mas- P. Wms. 25. ters V. Masters, 422. Earl ofThomond (m) Ibid. 23. (1) Sluart V. Carson's Ex. I Dcsaus. Rep. 500. Sec, liowcver, Jatt, Ex. v. Bernard, 3 Call's Rep. 11. (2) A bequest of " twenty negroes," not designated by name, is a specific legacy of the second description, and liable to abate wilb pecuniary legacies. Warren v. fVigfall, 3 Desaus. Rep. 47. (3) Real estate devised is not lial)le to con1ril)iile to Ibc payment of Icgacit^s, on a defi- ciency of personal assets, unless specially charged. Jlatjcs v. Seuvcr, 7 Grccnl. Rep. 237. 340 THE ABATEMENT OF LEGACIES. [bOOK III. Ill case ol'a deficiency of general assets, that is to say, of assets to pay debts, specific legacies, althougli not liable to abate with the ge- neral legacies, must abate in proportion among themselves(?i). Where the vendor of an estate would have absorbed the personal assets in payment of his purchase-money, which was directed by the will to be paid by the executor, a rateable contribution was decreed, as between the devisee of the estate and the legatees and annuitants under the will(o). We have before seen{p) that a testator may carve specific legacies out of a specific chattel; now, in such case, if the chattel so parcelled out ])rove deficient, such specific legacies must abate proportionally amongst themselves. (ortional part of the said legacies. And if the said executors or administrators sliall not think proper to accept of such bond, then the said legatee shall file the same with the clerk of the court, before obtaining any process against the executor or executors, administrator or administrators; otherwise, and in default thereof, tlie process issued sball abate." See JValden's Ex. v. Payne, 2 Wash. Rep. 1. iM-wvason v. Davenport, 2 Call's Rep. 9.'). StwaWs Ex. V. Woodson, 2 Munf. 303. Sheppard's Ex. v. Stark, 3 Munf. Rep. 2U. Rootea v. Webb, 4 Munf, 77. 343 OF PAYMENT OF RESIDUUM. [hOOK III. [313] circumscribe and confine the residue, as that the residuary le- gatee, 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 resi- due: as where A. on board a slii]) made his will, and gave to his mother, if alive, his gold rings, Inittons, and chests of clothes, and to his executor, 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 entitled to a considerable leasehold estate by the death of his father, of his right to which he was ignorant: It was held that A. 's executor was legatee of a ])articular residue, namely, of what the testator had on board the siiip, and such legacy excluded him from the general residue. But that as A.'s mother died in hislifetime, his rings, but- tons, and chests of clotlies lapsed into such particular residue, and devolved on his executor, not as executor, but as legatee of such par- ticular residue(^). If the residuary estate be devised to A. B. and C. in joint-tenan- cy, if A. die in the lifetime of the testator, or if A. die after the tes- tator, but before severance of the joint tenancy in the residue, it shall survive to the two others(e). 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 de- volve on the testator's next of kin, according to the statute of dis- tribution, as so much of the personal estate remaining undisposed of by the will(/). So if a third of the residuum be devised to each of three persons, and one of them die in the testator's lifetime(^);(l) or if the devise be revoked as to one of such residuary legatees, the consequence shall be the same(/<). If A. bequeath all the sur])lus of his personal estate, afterpayment of the debts and legacies, to J. S., and several creditors, although barred by the statute of limitations, commence actions against the executor, on his refusal to plead the statute, equity will not, in fa- vour of such residuary legatee, compel him to plead it(z). It is a general rule, that where a question arises between a lega- tee, or a party entitled to a portion, and the residuary legatee, the costs shall come out of the residue; yet if no question arise between such individual and the residuary legatee, but the question relate merely to the nature of the interest of the property severed from the general mass of the estate, the costs of originating that question are (rf) Cook V. Oakley, 1 P. Wms. 302. (h) 6 Bro. P. C. 1. (e) Webster V. Webster, 2 P. Wms. (/) 4 Bac. Abr. 429. 1 Eq. Ca. 347. Abr. 309. 11 Vin. Abr, 269. Lord (/) Bagwell V. Dry, 1 P. Wms. Castleton v. Lord Fansbaw, Prec. 700. Cray V. WilUs,2 P. Wms. 529. Chan. 100. Ex parte Dewdncy, 15 (g) Bagwell V. Dry, 1 P. Wms. 700. Ves. jun. 498. Page V. Page, 2 P. Wms. 488. (I) Craighead et Ux. V. Given, .fl dm. 10 Soi-f;. k llavic, 351. CHAP. IV.] OF PAYMENT OF RESIDUUM. 343 thrown on the specific property itself: as where the testator directed his executors to purchase 92/. per annum Bank Long Annuities, in trust for his sister for life, and after her decease, the principal to be distributed among certain persons, and the executors purchased the long annuities accordingly, and invested the same in their names, and after a lapse of seventeen 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 par- ticular be varied (A;). [344] If there be no residue, the residuary legatee has a claim to nothing. In no case shall he compel the other legatees to abate, for although this consideration might occasionally meet the testator's intention, yet it would in most instances lead to great confusion and embarrassment(/). But it has been held, that if the executor be guilty of a devastavit, the residuary legatee shall not suffer ex- clusively; but on a deficiency of assets, in consequence of such mis- conduct, shall come in pari jicissu 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 per- sonal estate the testator had at the time of making his will, but what estate he had at his death(w). Sect. VIIL Of an executor's being legatee; and herein of his assent to his own legacy. In case of a legacy bequeathed to the executor, if he take possess- ion of it generally, he shall hold it as executor, which is his first, and general authority(«). [345] The union of the two characters of executor and legatee, in one and the same person, makes no differencc(i^). 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 princi- ple. Till he has examined the state of the assets, he is incompetent to decide whether they will admit of his taking the thing bequeathed {k) Jenour v. Jenour, 10 Ves. jun. and 2, 562. (a) 3 Bac. Abr. 81. 1.3 Co. 47. (/) Fonnereau v. Poyntz, 1 Bro. Ch. Plowd. 520. 543. 10 Uo. 47 b. Dyer, Rep. 478. 1 P. Wms. 30G, note 2. 277 b. Young v. Holmes, iStra. 70. (m) 1 P. Wms. 305 & 306, note 1 (6) Off. Ex. 22. 345 OF AN executor's being legatee. [book hi. as a legacy; or whether it must not of necessity be applied in satls- faclion of debts(c). 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 language, 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 legatec(e). 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(y). So if by deed reciting that he has a term for years by devise, he grants it over(jg-); or if he take the profits of it to his own use(A); or if he repair the tenements devised at his own cxpense(i); all these acts indicate an assent to the bequest: in like manner, if he perform a condition or trust annexed to the devise; as, if a lessee [346] for years devise his term to his executor, on condition that he shall pay ten pounds to J. S., which he pays accordingly: 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 which is an- nexed to it(A'). So, if a lease be devised to an executor during the minority of the testator's son, in order that the executor may edu- cate him out of the profits, if he educate him accordingly, this con- stitutes an assent to take the lease by way of legacy, and not as ex- ecutor(/); or if he excludes a co-executor from a joint occupancy of the term with him(m), 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 residue in the same character(7i). But till the executor has made his election, either express or im- plied, he shall take the legacy as executor, though all the debts have been paid, independently of such bequest(o). Nor is the entry of an executor, whether before or after probate, on the term devised to him, an election to take it as legatee(/?). Nor, if he merely say, that the testator left all to him(q), will so ambiguous an expression have that effect. Yet if an executor being [347] also devisee of a term, grant a lease of it by the name of ex- ecutor, that amounts to a claim in such capacity(/*). If a legacy be left to A. as executor, whether expressly for his (c) Ibid. 27. 2. (/) Ibid. 539. (d) Com. Dig. Admon. C. 6, 7. (m) Dyer, 277 b. Garrett v. Lister, 1 Lev. 25. («) 2 Roll. Rep. 158. (e) Garrett v. Lister, 1 Lev. 25. (o) Com. Dig. Admon. C. 5. 1 Leon. (/) Ibid. 21G. (?) 1 Roll. Abr. 920. {p) Com. Dig. Admon. C. 7. Off. (A) Ibid. 619. Ex. 226. (0 Semb. Cheney's case, 1 Leon. (y) 1 Roll. Abr. 620. 216. (r) 1 Leon. 216. (A) Plowd. 544. CHAP. IV.] OF AN executor's BEING LEGATEE. 347 care and trouble, or not, he must prove the will(.s),(l) 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 intenlion of really actmg in the execution of it, he is not entitled to his legacy(t/). Where however a testator named two persons to he his executors, and gave them 50/. each, upon condition of their taking upon them- selves a certain trust, and afterwards used these words, " I give to my cousin J, K. 50/. whom I appoint joint executor," and the tes- tator also gave to J. K.'s sisters, legacies of 50/. each: it was held, that the legacy to J. K. was not annexed to the office of executor, and that he was entitled to it, although he had declined to act in the trusts of the will(i;).(2) 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 ti^ustee, given as a token of regard and recompence for his trouble, 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{iv). The. rules above stated in respect to the abatement and refunding of legacies, in the case of legatees in general, apply equally to the case where the same person is both executor and legatee (ar), and although the bequest was merely as a recompence for his executing the tru3t(y). (s) Reed v.Devaynes, 3 Cox's Rep. Rep. 31. 285. (r,) Dix V. Reed, 1 Sim. & Stu. 237. (0 Reed V. Devaynes, 3 Bro. Ch. [w) Brydges v. Wotton, 1 Ves. and Rep. 95. Abbott v. Massie, 3 Ves. Bea. 134. jun. 148. Harrison V. Rowley, 4 Ves. (a;) 2 Bl. Com. 502. Plowd. 545, iun. 212. Stackpoole v. Howell, 13 in note. Ves jun. 417. (y) 4 Bac. Abr. 417. Fretwell v. (u) Harford v. Browning, 1 Cox's Stacy, 2 Vern. 434. Attorney-General Rep. 302. Freeman v. Fairlie, 3 Meriv. v. Robbins, 2 P. Wms. 25. (1) Rothnmler's Mm. v. Myers, Ex. 4 Desaus. Rep. '215. (2) So a legacy given to an executor as nephe-w of the testator— he .is entitled to the legacy though he renounce the executorship. Granberry v. Granberrijs, 1 Wash. Rep. 246. 30 347 A debtor's being executor. [book III. Sect. IX. Of the. testator^s appointing his debtor executor — ivhen 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. \\\ point of law, such nomination shall operate as a release, and ex- tinguishment of the debt;(l) on the principle that a debt is merely [348] 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 discharges the action, and, consequent- ly, discharges the legal remedy for the debt(«). Thus, if the obli- gee of a bond make the obligor executor, this amounts to a release at law of the debt(/j): If several obligors be bound jointly and se- verally, and the obligee constitute one of them his executor, it is an extinguishment of the debt at law, and the executor is incapable of suing the other obligors(c). The debt is in like manner released where only one of several executors is indebted to the testator, for one executor cannot maintain an action against another(6f); and after the death of such executor, the surviving executors cannot sue his representative for the debt(e).(2) Nor is the case varied by the executor's dying without having proved the will, or having admin- istered(/), or even by his refusal to act with his co-executors(^), unless he formally renounced the office in the spiritual court: such (tr)3Bac. Abr. 11. 2B1. Com. 511, (^/) Ibid. 31. 512. Off. Ex. 31. Wankford v.Wank- (e) Ibid. 32. Plowd. 261. Cross- ford, Salk. 299. Plowd. 186. Com. man's case, Leon. 320. Dig. Admon. B. 5. Roll. Abr. 920, (/) Wankford v. Wankford, Salk. 921. 5 Co. 30. Harg. Co. Litt. 264 300. Plowd. 184. Off. Ex. 31. b, note 1. (g) Wankford v. Wankford, Salk. (6) 8 Co. 136. 3087 (c) Off. Ex. 31. II Vin. Abr. 398. (\)Puseij V. Ckmson, 9 Serg. &Rawlp,208. Stevens, Adm. v. Gaylord, 11 Mass, Rep. 266. (2) By the second section of the act of April 3, 1829 (Pamph. Laws, 122), it is pro- vided, " that in all cases where a creditor hath appointed or shall appoint his judgment debtor his executor, and the said judgment is a lien on the real estiate of such executor, and the same is bequeathed specifically to a legatee, or generally in the residuary clause of such testator's will; or where any testator, having a judgment situate as aforesaid, shall have creditors interested in preserving the lien of such judgment, that such legatee or creditors so interested in such judgment, may suggest their interest in the same upon the record thereof, and issue a writ of .v«>e /a d«.s against the defendant to revive the same, and continue the lien thereof at any time when such proceedings shall be necessary under the laws of this commonwealth, which judgment so revived shall remain a lien for the use of all persons interested therein." CHAP. IV.] A debtor's BEING EXECUTOR. 348 a renunciation, indeed, shall prevent the release of his debt: for he could no more be compelled to accept a release, than a deed of grant(//). In all these cases the legal remedy is destroyed by the act of the party, and therefore, is for ever gone(/); but the effect is different [349] where it is suspended merely by the act of lavv(Ar); as if ad- ministration of the effects of a creditor be committed to the debtor, this is only a temporary privation of the remedy by the legal ope- ration of the grant(/): Thus, if the obligor of a bond administer to the obligee, and die, a creditor of the obligee having obtained ad- ministration de bonis non, may maintain an« action for such debt against the executor of the obligor(wi). So, if the executrix of an obligee marry the obligor, 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 remedy 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 that debt, as to any others outstanding(n). 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 he comes of age(o). In equity, the consequence of the testator's nominating his debtor executor is to be regarded, first, with reference to creditors; and then, to legatees. As against the testator's creditors,(l) equity will never permit him by constituting his debtor executor to disappoint them: There- fore, where the testator has not left a fund sufficient for the payment of his own debts, in that case, the debt of his executor shall be as- sets; 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 abso- lutely voluntary (7;). (2) In respect to legatees, equity will, generally speaking, allow the appointment of a debtor executor [350] to ope- (Ji) Waukford v. Wankford, Salk. («) Grossman's Case, Leon. 320. 307. Grossman v. Reade, Moore, 236. (0 Dorchester v. Webb, Cro. Gar. Wankford v. Wankford, Salk. 306. 373. Wankford v. Wankford, Salk. (0) 11 Viner's Abr. 100. Gaweth 302. Abram v. Cunningham, 1 Ventr. v. Pliilips, Lord Raym. G05. 303. {])) Wankford v. Wankford, Salk. {k) Wankford v. Wankford, Salk. 302. 306. Off. Ex. 31. 2 Bl. Com. 303. 512. Plowd. 186. Shep. Touchs. (/) Off. Ex. 32. 8 Co. 136. 497, 498. Simmons v. Gutteridge, 13 (w) Lockier v. Smith, Sid. 79. Ves. 264. (1) Pmey v. Clenwon, 9 Serg. & Rawlc, 204. Wood v. Tallmun and Woodward'' s Ex- ecutors, Cox's N. .J. Rep. 153. Stevem, Adm. v. (iaylord, 11 M;iss. \ic\u 'ifiG. (2) An executor admitting himself to be a debtor to ,the testator at his death, will be ordered to pay the debt into court. Rotlrwdl v. Uoth-well, 2 Sim. &c Stu. Rep. 218. 350 A debtor's being executor. [nooK ni. rate as a discharge of his dcht. For the (lcl)t is considered in the light, of a specific hequest or legacy to the dehtor, for the purpose of discharging the debt, and therefore, though like all other legacies, it shall not be paid, or retained till the debts are satisfied, yet the ex- ecutor has a right to it exclusive of the other legatees(5'). Euttliis rule, with reference to legatees, is subject to a great va- riety of exceptions. In equity such debt shall not be released, even as against legatees,(l) if the presumption arising from the appoint- ment of a debtor to the executorship be contradicted 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 executor; such debt shall be assets to pay not merely that specific legacy, but all other legacies(r). 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 re- siduary legatee, or next of kin(5). So where a testator bequeathed 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 entitled to it(/).(2) So where a debtor to the testator was appointed executor, altliough 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, his debt was clearly held not to be discharged(^<). So where A. mortgaged his estate to B. who i)aid no money in consideration of the mortgage, but gave him a bond for 130/. and then A. died, having appointed B. his executor, the bond was decreed to be assets in the hands of B., and applicable, after payment of the funeral expences and legacies, to the exoneration of the real estate in favour of the heir[w). (q) 2 Bl. Com. 512. Harg. Co. (0 Brown v. Selwyn, Ca. Temp. Lht. 261 b. note 1. Talbot, 210. 4 Bro. P. C. 180. 3 Bac. (r) 3 Bac. Abr. II. Flud v. Rum- Abr. 12. cey, Yelv. 160. (m) Berry v. Usher, 11 Ves. jun. 87. (s) Carey v. Goodinge, 3 Bro. Ch. (w) Fox v. Fox, 1 Atk. 463. Rep. 110. (1) Woodv. Tallman's Ex. et al, Coxe's N. J. Rep. 158. ('2) Pusey V. Clemso7i, 9 Serg. & llawle, 204. See also Flemingv. Boiling, 3 Call, 75; Hall V Hall, 2 M'Cord's Cha. Rep. 304; Winship v. Bass, 12 Mass. Rep. 199; cases in which the rule did not prevail as against residuary legatees, the debt due by the executor being held assets for their payment. CHAP. IV.] THE RESIDUE UNDISPOSED OF. 351 [351] Sect. X. Of the, residue undisposed of by the loill, when it shall go to the executor — when not. If the testator make no disposition of the residue, a question arises, to whom it shall belong, and this is a subject which involves in it a great variety of distinctions(«). The result of the numerous cases on this subject appears to be this: The whole personal estate of the testator is, in point of law, de- volved on the executor; and if after payment of the funeral expences, testamentary charges, debts and legacies, there shall be any surplus, it shall vest in him beneficially. If it shall appear on the face of the will, either expressly, or by sufficient implication, that the testator meant to confer upon him merely the office, and not the beneficial interest, equity will con- vert the executor into a trustee for those on whom the law [352] would have cast the residue in case of a complete intestacy; that is to say, the next of kin. As, where the testator has styled him in his will an executor in trust, or has used other expressions of the same import((^). But an executor being called a trustee as to specific trusts imposed upon him distinct from his appointment as executor, will be entitled to the residue, as no inferpnce can be drawn therefrom of the testator's intention to make him a trustee of the resi- due. And executors taking the residue, take it precisely in the same plight as residuary legatees would take it(c). Where the testator ap- pointed the American ambassador his executor, or such other person as should be the American ambassador at the time of the testator's death. Sir William Grant, M. R. held that to be a circumstance con- nected with others indicative of an intention to confer upon him the office only, he being appointed not in his individual character, and as a friend, but in the capacity of ministcr(<:/). So, where the testator has begun to make a disposition of the surplus, but has not proceeded to complete it, there also the executor shall be excluded. As where a residuary clause is inserted in the will, and the testator has omitted to name the residuary legatee(e). But a blank space between the last line of a will and the signature raises no presumption of an intention (a) 1 P. Wms,550,notel. SFonhl. ((•) Pratt v. Sladden, 14 Ves. jun. 13I,noto(k). 3Bac. Abr. 67. II Vin. 1!)3. Dawson v. Clark, 15 Ves. jun. Abr. 407. 409. IH Ves. jun. 217. (/») 1 P. Wms. 550, note 1. Pring {d) Urquhart v. King, 7 Ves. jun. V. Pring, 2 Vern. 99. Rachfield v. 230. See also Grillitlis v. Hamilton, Careless, 2 P. Wms. I5B. Graydon 12 Ves. jun. 309. V. Hicks, 2 Atk. IB. Dean v. Dallon, (e) 1 P. Wms. 550, note I. Wheel- 2 Bro. Ch. Rep. 034. Bennct v. er v. Sheer, Moseley, 2H8. JHsliop of Batchelor,3Bro.Ch. Rep. 28. Wheel- (Moyne v. Young, 2 Ves. 91. Lord er V. Sheer, Moseley, 28H. Loc-kyer v. NortI) v. Purdon, 495. Hornshy v. Simpson, 301 . Bennett v. Batciielor, Fineh, 2 Ves. jun. 78. Vid. also Mor- 1 Ves. jun. tJ3. daunt v. Hussey, 4 Ves. jun. 117, and 352 THE RESIDUE UNDISPOSED OF. [bOOK III. to dispose of the residue against tlie legal right of the cxecutov{f). Wlicre an executor lias general and specific legacies, not expressly for his care and trouble, upon the evidence raising no direct intention in his favour, but mere inference from equivocal declarations, with an intention to make an express residuary disposition, the executor will be a trustee of the residue(,§-). So the executor shall be excluded where the residuary clause is rased and become illegible(A). Nor where the testator has regularly bequeathed tl)e 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 executor(/). Nor shall the executor be entitled to it where the testator has given him a legacy expressly for his care and trouble; 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(A'). Still, however, the principle, that it shall not be presumed to have been the testator's meaning thus to give part and [353] all to the ex- ecutor, has been allowed alone and unaided to operate as an exclu- sion. Hence it is a settled rule in equity, that a pecuniary legacy bequeathed to an executor alone, or to an executor who is also a trus- tee, affords a sufficient argument to debar him of the residue(/).(l) A direction in a will " to keep accounts," was held upon demurrer, to aSbrd a presumption that the executrix was not meant to take be- neficially; but parol evidence being admitted oil behalf of the execu- trix, to show that she was intended to take the residue for her own benefit, and such evidence being satisfactory, the bill by the next oi kin was dismissed(?;z). 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(/i).(2) Giraud v. Hanbury, 3 Meri. Rep. 150. Careless, 2 P. Wms. 158. Cordell v. (/) White V. Williams, 3 Ves. and Noden, 2 Yern. 148. Newstead v. Bea. 72. S. C. Coop. Rep. 58. Johnston, 2 Atk. 46. ( if) Langham v. Sandford, 17 Ves. (/) 1 P. Wms. 550, note 1. 2 Fonbl. jun.''435, and on appeal, 19 Ves. 641. 131, note (k). Ball v. Smith, 2 Vern. 2 Meri. Rep. 6. 676. Joslin v. Brewitt, Bunb. 112. (/z) Farrington v. Knightly, 1 P. Farrington v. Knightly, 1 P.Wms. 544. Wms. 549. Davers v. Davers, 3 P. Wms. 40. ((•) 1 P. Wms. 550, note 1. NichoUs Prec. Ch. 107. Gibbs v. Ramsey, 2 V. Crisp, Ambl. 769. Bennet v. Ves. and Bea. 294. Bull v. Kingston, Batchelor, 3 Bro. Ch. Rep. 28. 1 Meri. Rep. 314. (A-) 2 Fonbl. 131, note (k). Bp. of (m) Gladding v. Yapp, 5 Mad. R. 56. Cloyne v. Y'oung, 2 Ves. 97. Foster (n) Ld. Cranley v. Hale, 14 Ves. V. Munt. 1 Vern. 473. Rachfield v. jun. 307. (1) Where there are several executors, and unequal legacies are given to tliem, they wcre not excluded from the residue in Yirginia before the act of 1785, c. 61. Shelton v. SheUoii's, Granhernfs Ex. v. Granberrij, 1 Wash. Rep. 53. 246. Dykes v. Woodhome^s Mm. r> Rand. Rep. 288. (2) So where the testator ordered all the residue and remainder of his personal estate CHAP. IV.] THE RESIDUE UNDISPOSED OF. 353 If the legacy to the executor be specific, it shall equally exclude him(o). Nor will the rule be varied by the testator's having be- queathed legacies to the next of kin(7;). 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 executor have a legacy, and there be no next of kin, a trust shall result for the cro\vn(^). It is also settled, that in case the widow of the testator be executrix, she is, in respect to the residue, precisely in the same situation as any other person appointed to the office(r); unless the bequest to her of a spe- cific legacy, consisting of property which was hers before marriage, may vary the rule(5). 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 legacies 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 k'm[ic). 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 stated as [354] an universal rule, that wherever the legacy is consistent with the intent that the executor should take the whole, a court of equity will not disturb his legal right. And therefore, 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(y). Nor where a legacy is given by a codicil to one of two executors(2^;). Nor where the executorship is limited to a particular period, or determinable on a contingency, and the legacy to the executor, at the end of such pe- riod, or on such contingency's taking place, is bequeathed over, shall (o) Randall v. Bookey, 2 Vern. 425. Ambl. 12G. 2 Eq. Ca. Abr. 444. Mar- Southcot V. Watson, 3 Atk. 226. Mar- tin v. Rebow, 1 Bro. Ch. Rep. 154. tin V. Rebow, 1 Bro. Ch. Rep. 154. (s) 2 Fonbl. 130, note 1. 7 Bro. P. (/?) 2 Fonbl. 131, note (k). Bay- C. 511. See Attorney-General v. Hoo- ley V, Powell, 2 Vern. 361. Wheeler ker, 2 P. Wms. 338. V. Sheer, Moseley, 288. Andrew v. (/) Dawson v. Clark, 15 Ves.jun. 409. Clark, 2 Ves. 162. Kennedy v. Stains- (u) Southouse v. Bate, 2 Ves. and by, 1 Ves. jun. 66, in note. Vid. tarn. Bea. 396. Attorney-General V.Hooker, 2 P. Wms. (?») 1 P. Wms. 550, note 1. GrilTith 337. V. Rogers, Prec. Chan. 231. 2 Eq. (rj) Middlcton v. Spicer, 1 Bro. Ch. Ca. Abr. 444, pi. 58. Newstead v. Rep. 201. .Johnston, 2 Atk. 45. Sonthcot v. (r) Lady Granville v. Duchess of Watson, 3 Atk. 229. Vid. also 7 Bro. Beaufort, 1 P. Wms. 115. 550, note 1. P. C. 511. 2 Fonbl. 130, note 1. Lake v. Lake, {lu) Prattv.Sladden, 14 Ves.jun.193. (except his (liiiinj,'-t!ible and two stoves) to be sold liy [niblii; sale l)y his executors, or the survivor of them, us soon as niif^htbe after liis decease, Co the best advantage, it washehl that this direction made tliem trustees for the next of kin. Grouser v. Eckarl, 1 Binn. 575. 354 THE RESIDUE UNDISPOSED OF. [hOOK III. it defeat his claim to the surplus(.r). Nor shall a gift of only a lim- ited interest for the life of tlie executor have that eflect(?/). For in these cases the legacy is considered as an exception out of the general gift to tlie 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(z). But the limited executor has an interest in the resi- due 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, because his infancy renders him unfit to be a trustee, and, therefore, he shall be intended to have been named for his own benefit(6). [355] That parol evidence may be received for the purpose of re- butting a resulting trust, is sufficiently established by a series of cases; but it is admitted with great caution(c), and although not restricted to what passed at the time of making the will(^), yet must point to the testator's intention at that time only: evidence of his subsequent intention will have no effect(e). Nor shall parol evidence for such purpose be admitted, where the executor is declared by the will to be a trustee; or where the bequest to an executor is expressed in terms equivalent to such a declaration, as where the legacy is given to him for his care and trouble in fulfilling the will(y). An executor taking a contingent interest under the will, was held not precluded from giving evidence of the testator's intention, that he should have tlie residue beneficially, nothing upon the face of the will indicating that he was to take the office merely (^').(l) (a;)2Fonbl. 131,note(k). Hoskin land, 210. Nichols v. Osborn, 420. V. Hoskins, Prec. in Clian. 263. Blinkhornv. Feast, 2 Ves. 28. Nourse {y) 2 Fonbl, 131, note (k). Lady v. Finch, 1 Ves. jun. 358. Granville v. Duchess of Beaufort, 1 P. (fZ) Sed vid. Duke of Rutland v. Du- "Wms. 114. Jones V. Westcorab, Prec. chess of Rutland, 2 P. Wms. 209. Chan. 316. Nourse v. Finch, 1 Ves. Nourse v. Finch, 1 Ves. jun. 359. jun. 356. (f) Lake v. Lake, 1 Wils. 313. (z) 1 P. Wms. 116, note 1. Ambl. 126. S. C. Clennel v. Lewth- (a) Vid. Prec. in Chan. 264. waite. Decreed per M. R. 2 Ves. jun. {b) Lamplugh v. Lamplup:h, 1 P. 465. Decree affirmed by Lord Chan- Wms. 112. See also Blinkhorn v. ccllor, ibid. 644. Walton v. Walton, Feast, 2 Ves. 30. 14 Ves. jun. 318. (c) 2 Fonbl. 135, note 1. Rochfield (/) Rochfield v.Careless,2 P.Wms. V. Careless, 2 P. Wms. 158. 160. 158. Duke of Rutland V. Duchess of Rut- (d-) Lynn v. Beaver, 1 Turn. 63. (1) By the 11th section of the act of 7th April, 1807 (Purd. Dig. 802. 4 Sm. Laws, 402), it is provided, that " where any person or persons shall hereafter die, having made and executed any testament and last -nill, and sliall not therein have disposed of the resi- due of his or her personal estate, the executor or executors therein named shall distribute such undisposed of residue to and among tlie next of kin, agi-eeably to the intestate laws of this commonwealth; but nothuig in tliis section contained shall be construed to affirm or deny the right of any executor or executors to such undisposed of residue prior to the passing of this act." There had been previous to the passage of tliis act much diversity CHAP. IV.] THE RESIDUE UNDISPOSED OF. 355 of opinion upon the question, whether in Pennsylvania the executor was a trustee for the next of kin of undisposed of personal property, or took it beneficially. The uncontradicted dictum of Chief Justice M'Kean in Boudinot v. Bradford ('2 Ball. 268), the decision of President Wilson in Davis v. Davis's Ex. (C. Pleas of Delaware county, April, 1806, cited 3 Binn. 566), and the dissent of Judge Yeates in Wilson v. JfHso?i (3 Binn. 562), show the then prevailing impression that the law was the same as the English law. The case of Grosser v. Eckart (1 Binn. 575), was decided upon the intention of the testator, as exhibited in that particular will, "taking for granted," to use the words of Chief Justice Tilghman (1 Binn. 584), " that our law was the same (as the English law) when that will was made;" but in the case of Wilson v. Wilson (3 Binn. 566), the Supreme Court (two judges against one) decided, that an executor was and had always been trustee for the next of kin in all cases in Pennsylvania; and that opinion was repeated in a subsequent case between tlie same parties {Wikonv. Wilson, 9 Serg. & Rawle, 428). Where, how- ever, a testator devised all his estate, both real and personal, to his executors and their heirs, gave directions as to the manner of paying his debts, and then gave the residue, if any, to the discretion of his executors, to distribute in such manner as they may think proper, it seems that the executors take beneficially. Case of J^Teave's Estate, 9 Serg. & Rawle, 186. In Massachusetts, since the statute of 1783, cap. 32, sect. 1 & 7, the executor is in all cases trustee for the next of kin of the undisposed of residue. Hays, Ex. v. Jaclo son, 6 Mass. Rep. 153. So also in North Carolina, since the act of 1716. HHIm. Hill, 2 Hayw. Rep. 298. See 1 Penn. Rep. 44. 31 356 INCOMPETENCY OF INFANT EXECUTOR. [bOOK III. CHAPTER V. OF THE INCOMPETENCY OF AN INFANT EXECUTOR — OF THE ACTS OF AN EXECUTOR DURANTE MINORITATE OF A MARRIED WOMAN EX- ECUTRIX OF CO-EXECUTORS OF EXECUTOR OP 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 the functions of an executor, till he shall have attained his full age of twenty-one years. Nor before the passing of this statute was an infant competent to act, till he had arrived at the age of seventeen(5); but at that age he had a right to assume the executorship. He had authority to sell the testator's etfects, to pay and receive debts, to assent to and pay legacies, and, generally, to discharge the duties which belong to the representatives of the de- ceased(c). Yet, if an infant executor, after the age of seventeen, and before 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 [357] for the remainder; for otherwise he would have been divested of that privilege which the law allows to all infants, of rescinding their acts when they are manifestly to their disadvantage. Nor could a proceeding, preju- dicial both to the infant and to the estate, be regarded as pursuant to his office(c?). On the same principle the assent of such infant execu- tor to a legacy did not bind him, unless he had assets for the payment of debts(e). Nor had he a power of committing any other act which might involve him in the consequences of a devastavit^/). Nor, in a late case, would the Court of Chancery 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 whether there were any debts or legacies, and to consider of a maintenance(^). But these distinctions it is now needless to discuss, the statute having altogether disqualified an infant executor from exercising the ofl&ce during his minority, and having directed administration with the will annexed to be granted to some other person in the interim(A). (a) Supr. 31. 101. Russell's case, Moore, 146. Knot v. (6) Off. Ex. 214. 1 Roll. Abr. 730. Barlow, Cro. Eliz. 671. Kniveton v. Sed vid. Gierke v. Hopkins, Cro. Eliz. Latham, Cro. Car. 490. 254. Manning's case, 3 Leon. 143. (e) Off. Ex. 217. 225. Keilw. 51. Foxwist v. Tremaine, 2 (/) Whitemore v. Wheld, 1 Vera. Saund. 212. 1 Bl. Com. 463. 328. (c) 3 Bac. Abr. 8. Off. Ex.215, (;?) Campartv. Campart,3Bro. Ch. 217, 218. Com. Dig. Admon. E. Rep. 195. {d) 3 Bac. Abr. 8. 5 Co. 27. Off. (A) Vid. supr. 31. 101. Ex. 217, 218. Com. Dig. Admon. E. CHAP, v.] MARRIED WOMAN EXECUTRIX. 357 If A. appoint B., an infant, his executor, and C. executor during the minority of B., C, though only a temporary executor, seems, during the continuance of his office, to be invested with the same [35S] powers as belong to an absolute executor; and although he be named in the will administrator only for the benefit of the infant(e). In case a married woman be executrix, the husband, as we have before seen{k), has a right to act in the administration with or with- out 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(w2). On the con- trary, such acts, if performed by her without his permission, are of no validity(n). If the husband be abroad, the Court of Chancery will restrain the executrix from getting in the assets of the testator, and appoint a receiver for that purpose, with power to commence suits for the recovery of debts due to the estate(o). And this doctrine is founded on the principle, that as he is person- ally responsible for such acts, the law makes it essential to their va- lidity, that they should be performed by him, or at least with his concurrence: otherwise the misconduct of the wife in the executor- ship might be extremely prejudicial to the husband( jo). Yet, if an executrix marry, and the husband eloine the goods, or is guilty of any other species of devastavit, it will be a devastavit [359] also by the wife, and they will be both answerable according- ly(^). On the other hand, if an executrix commit a devastavit, and then marry, the husband, as well as the wife, is chargeable for it du- ring the coverture(r)(l). And where an executrix marries, and her husband and she admit assets in answer to a bill filed against them, the assets become a debt of the husband in respect of such admission, and may be proved under a commission of bankruptcy issued against \iim(s). If the testator were indebted to the husband, or, which is the same thing, to the wife before marriage, the husband may retain. 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 (0 Off. Ex. 215, 216. Com. Dig. (7^) Off. Ex. 207, 208. 225. 1 Admon. F. Fonbl. 84. 86. 5 Co. 27. {k) Supr. 241. (ry) Com. Dig. Admon. D. Cro. (/) Cora. Dig. Admon. D. Off. Ex. Car. 510. Dyer, 210, in marg. Bey- 207, 208. Wankford v. Wankford, 1 non v. Collins, 2 Bro. Ch. Rep. 323. Salk. 306. Adair v. Shaw, 1 Sch. & Lef. 257. (m) Adair V. Shaw, 1 Sch. and Lef. (r) Com. Dig. Baron & Feme, N. 243. Kingv. Hilton, Cro. Car. 603. Hey- (n) 3 Bac. Abr. 9. Keilw. 122. Off. ward's case, Moore, 761. Ex. 207, 208. Vid. Anders. 117. 1 (s) Matter of M' Williams, 1 Scho. Roll. Abr. 924. & Lef. 173. (0) Taylor v. Allen, 2 Atk. 213. (1) Knox V. Picket, 4 Deaaiis. Rep. 92. 359 OF CO-EXECUTORS. [bOOK III. debtor; althougli if an executrix after the death of the testator marry such debtor, it will be a dcv(tstavit{t). If specific legacies are left to a husband and wife jointly, and they are named executors, such legacies shall exclude them from the resi- due, for they are analogous to a specific legacy to a sole executor(M). Co-executors, we may remember, are regarded in law as an indi- vidual person(z^;); and, by consequence, the acts of any one of them, in respect to the administration of the effects, are deemed to be the acts of all: for they have a joint and entire authority over the [360] whole property(ar). Hence a release of a debt by one of several executors is valid, and shall bind the rest(y).(l) So a grant, or a surrender of a term hy one executor shall be equally available(z). It has been likewise held, that if one confess a judg- ment, the judgment shall be against all(a). But, on the contrary, where 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 propriis for the costs; it was set aside, on the ground that executors may plead different pleas,(2) and that which is most for the testator's advantage shall be received(6). If one executor grant, or release his interest in the testator's estate to the other, nothing shall pass, because each was possessed of the whole before(c). It has been adjudged also that if one of two executors appointed by the obligee deliver the bond to a stranger in satisfac- tion 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 deliv- ery the party had such an interest in the instrument, that he might justify the detention of it as against the surviving executor((/); 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(e). [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(/). (/■) OfF. Ex. 207. (i) Elwellv. Quash, Stra. 20. Vid. (ji) 1 P. Wms. 550, note 1, ad fin. Baldwin v. Church, 10 Mod. 323. Willis V. Brady, Barnard. 64. Hudson v. Hudson, 1 Atk. 460. (w) Vid. supr. 37. 243. (c) Godolph. 134. 3 Bac. Abr. 31. \x) 3 Bac. Abr. 30. Off. Ex. 95. {d) 2 Roll. Abr. 46. Dyer, 23 b. 1 Roll. Abr. 924. Com. Dig. Adraon. Kelsock v. Nicholson, Cro. Eliz. 478. B 12. S. C. 496. (v) Dyer, 23 b. Jacomb. v. Har- (e) 3 Bac. Abr. in note, wood, 2 Ves. 267. (/) 2 Fonbl. 407, note (1). 11 Vin. (2) Ibid. 23 b. Abr. 72. 3 Bl. Com. 19. (a) Ibid. 23 b, in note. (1) 3 Johns. Rep. 70. 11 Johns. Rep. 21. Murray v. Blatchford, 1 Wend. Rep. 58.1. (2) Heisler v. Knipe, 1 P. A. Browne's Rep. 319. CHAP, v.] , OF CO-EXECUTORS. 361 An assent to a legacy by one of several executors is sufficient(^). And if there be a devise to all the executors generally, one of them may assent for his part(A). Co-executors, as well as a sole executor, shall be excluded from the residue, either in case the testator shall have expressly described them as mere trustees, or, according to the fair construction 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 re- siduary clause without proceeding to specify the residuary legatee, or where he hath bequeathed the surplus to a party, who died before him(^}. If a legacy be given to one executor, expressly for his care and trouble, and no legacy be given to his co-executor, they shall both be barred of the residue(A'). For one being a trustee, the other must be a trustee also. Yet if there be two or more executors, 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 them from the residue(/), nor shall even a simple legacy to one of them have that effect; for the testator may have intended a preference to him to that extent(m). So, where several execu- [362] tors have unequal legacies, whether pecuniary, or specific, they shall nevertheless be entitled to the surplus(n).(l) But where equal pe«uniary legacies are given to co-executors, a trust shall re- sult for the next of kin(o). The ai-guments which have been urged in opposition to this rule, and to show that the giving of equal pe- cuniary legacies to several executors, is not absolutely inconsistent with an intention that they should take the surplus, are that such gift would secure to them a proportion of their legacies in the event of a deficiency 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(^). No case, however, occurs in the books, in which distinct specific legacies of equal value to several executors have excluded them from the residue. And the argu- ment, which supports the rule as to pecuniary, by no means applies {g) Com. Dig. Admon. C. 8. Off. Young, 2 Ves. 91. Wilson v. Ivat, Ex.225. ib. 166, 167. 2 Fonbl. 133, in note. (A) 1 Roll. Abr. 618. Buffar v. Bradford, 2 Atk. 220. (0 1 P. Wms. Petit V. Smith, 7 («) 1 P. Wms. 550, note 1. Bras- & 550, note 1. 2 Fonbl. 133, in note, bridge v. Woodroffe, 2 Atk. 69. Bow- (^) 2 Fonbl. 133, in note. White v. ker v. Hunter, 1 Bro. Ch. Rep. 328. Evans, 4 Ves. jun. 21. 2 Fonbl. 134, in note. Blinkhoru v. (/) Griffiths V. Hamilton, 12 Ves. Feast, 2 Ves. 27. jun. 298. (o) Petit v. Smith, 1 P. Wms. 7. (m) 1 P. Wms. 550, notel. Coles- Carey v. Goodinge, 3 Bro. Ch. Rep. worth V. Brangwin, Prec. Chan. 323. 110. 4 Bro. P. C. 1. Bishop of Cloyne v. (/?) 1 P. Wms. 550, note 1 . (1) See ante, page .352, note (1). 362 OF CO-EXECUTORS. [bOOK III. with equal force to specific legacies, since it is very probable that a testator may wish to distribute specific quantities of stock, or par- ticular debts, among his executors in some particular manner, although equal in point of value, and consistently with an intention that they should take the surplus(5'). Nor does the case just mentioned(r), of specific legacies bequeathed [36.3] jointly to a husband and wife, who are named executors, bear upon the point; for, as it was before observed, it is similar to that of a specific legacy to a sole executor(j'). Co-executors taking a residue in that character take as joint ten- ants; therefore, if one of them die before severance, his share shall survive(/). The power of an executor is not determined by the death of his co-executor, but survives to him; and, therefore, it is held he may assent to a legacy(M). Whether a power of selling land, of which I shall presently speak, given to co-executors, is in strictness of law capable of being exercised by the survivor, is a point on which there are opposite authorities(i^).(l) Nor is it now material to resolve it, as such power, although extinct at law, would certainly be en- forced in equity, which considers the application directed by the testator of the money arising from the sale to be the substantial part of the devise, and the persons named to execute the power of selling to be mere trustees, in conformity to the rule that a trust shall never fail of execution for want of a trustee; and that if there be one want- ing, the court will execute the office. The relief is administered by (?) Ibid. 2 Fonbl. 134, in note. ders v. Clarke, 3 Atk. 509. S. C. 1 (r) Supr. 359. Ves. 9. (*) 1 P. Wms 550, note 1. ad fin. (w) Harg. Co. Litt. 113, and note 2. Willis V. Brady, Barnard. 64, 1 Dy. 177. Moore, 61. Perk. S. 550. (0 Frewin v. Rolfs, 2 Bro. Ch. Rep. Bro. Abr. Devise, 50. Howell v. 220. Griffith v. Hamilton, 12 Ves. Barnes, Cro. Car. 382. Barnes's case, jun. 298. W. Jones, 352. (u) Com. Dig. Admon. B. 12. Flan- (1) Where the authority to sell is given to executors virtute officii, a surviving executor may sell; and an acting executor has the same power, upon the renunciation of the other executors, on their declining to act. Lessee of Zebach v. Smith, 3 Binn. 69. Jackson y. Ferris, 15 Johns. Rep. 348. JVelso7i \. Carrington, i M.un{. 332. Digges^ Lessee \. Jarman, 4 Harr. & M'Hen. 485. In Pennsylvania, by the provisions of the act of 12tli March, 1800 (Purd. Dig. 277; 4 Dall. Laws, 593; 3 Sm. Laws, 433), express power is given to a surviving executor or surviving executors, an acting executor or acting execu- tors, where others renounce or are dismissed from the trust, to administrators with the will annexed, and administrators de bonis non, to execute all powers and authorities to sell lands contained in any last will and testament, as fully and amply as if all the execu- tors named had joined therein. Where lands are devised to be sold, but the testator does not direct his executors to sell them, they have the power by necessary implication [Davoue v. Fanning, 2 Johns. Cha. Rep. 252), and such power may be executed by a surviving executor. Lloyd's Lessee v. Taylor, 2 Dall. Rep. 223. See, however, Drayton \. Drayton, 2 Desaus. Rep. 250, n. Shoolbred v. Drayton, 2 Desaus. Rep. 246. CHAP, v.] OF AN EXECUTOR DE SON TORT. 363 regarding the land, in whatever person vested, as bound by [364] the trust, and compelling the heir, or other person having the legal estate, to perform it(j:"). As a mediate or remote executor has the same interest in the ef- fects of the original testator as the immediate executor, he is invested with the same authority and privileges, and is bound to administer such effects in the same roanner(y). But in cases of special trust confided to the executor without the ordinary limits of his duty; as to sell land, and the like; if it be not performed by the original ex- ecutor, some books allege that no successive executor, as such, shall have authority for that purpose(2r). On the other hand, it has been held that such a power of selling given to an executor is transmissi- ble in the way of succession in infinitum, till executed(a). But this point is of no more importance than that just mentioned, and for the same reason. If an executor who has not proved, assist his 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(6). In respect to an executor de son tort, he may perform a variety of acts, which'shall be as binding as those of a rightful executor(c). As against creditors, he is justified in paying the debts of the de- ceased{d ), and, indeed, may be compelled to pay them so far as assets [365] come to his hands(e); and to an action brought against him by a creditor, he may plead jjle?!^ administravit{f). In case the rightful representative shall think fit to pursue his legal remedy against such an intruder, he has no defence; as, if it be by action of trover for the goods of the testator, the executor de son tort cannot plead payment of debts to the value, or that he hath given the goods in satisfaction of the debts; 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 damages(^); or, if they amount to the full value, the plaintiff shall be nonsuited(A). But it may be doubted, whether in such action the defendant can give in evidence payment of debts to the value of such goods as are still in his custody, or only of those which he has sold(z). If the action be trespass instead of trover, payment of debts to the value ix') HariT. Co. Litt. 113, note 2. (f) 2 Bl. Com. 507. Dyer, 166 b, (y) Com. Dig. Admon. G. Off. Ex. (/) 3 Bac. Abr. 25. 5 Co. 30. Off. 257, 258. Shep. Touchs. 464. Ex. 181. Whitehall v. Squire, Garth. (z) Off. Ex. 258, 259. 104. Sed. 76. (a) Harg. Co. Litt. 113, note 2. {g) Com. Dig. Admon. C. 3. 3 Keilw. 44. 2Brownl. 194. Dyer, 210. Bac. Abr. 25, Carth. 104. Skm. 371 b 274, pi. 2. Off. Ex. 182. Anon. 1 (h\On V. Newton, 2 Cox's Rep. Ventr. 349, 350. 2 Bl. Com. 508. 274 (A) L. of Ni. Pri. 48. (c) 3 Bac. Abr. 25. Off. Ex. 180. (t) Ibid. Parker v. Kett, 12 Mod. (d) Off. Ex. 181, 182. 471. 365 OF AN EXECUTOR DE SON TORT. [bOOK III. will go only in mitigation of damages(A"), and the plaintiff will be entitled to a verdict. The ground of the distinction seems to be this: in trover, his pos- session is admitted to have been lawful, and the subsequent distribu- tion negatives the conversion; but in trespass, the unlawful taking [366] 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 divested of his right of preferring 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 entitled to bring an action in right of the deceased(7re.);(l) nor is he empow- ered to retain in satisfaction of his own debt: for such a privilege would enable him to profit by his own tortious acts, and would tend to encourage a competition of creditors, who should first take pos- session of the testator's effects without any legal authority(n). There is, indeed, one exception to this rule; a party who by stat. 43 Eliz. c. S(o) becomes an executor de S07i tort, in consequence of a gift to him of the intestate's effects by an administrator, 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 [367] son tort is excluded from this advantage. Nor shall he retain for his own debt, even against a creditor of inferior degree(/;). Nor, after an action brought against him by a creditor, can he avail himself of a delivery over of the effects to the rightful administrator, though before the filing of the plea; nor of the assent of the admin- istrator to his retainer of his debt. Nor is the case varied, although in point of fact no administration were granted at the time of the commencement of such suit, and the defendant without delay relin- quished the property to the grantee(9'). If the executor de son tort deliver the effect to the administrator before such action brought, that is a sulScient defence, and he may give it in evidence on the plea oiplenh administravit{r). The grant of administration to such executor shall legalize his pre- (A) L. of Ni. Pri. 48. 91. Ca. B. Ex. 182, 183. 2 H. Bl. 26, in note, R. 441. and vid. supr. 39. (/) 2 Bl. Com. 508. Off. Ex. 182. (p) 3 Bac. Abr. 25. 5 Co. 30. Ire- Cm) 2 Bl. Com. 507. Bro. Abr. tit. land v. Coulter, Cro. Eliz. 630. 1 Admon. 8. 11 Vin. Abr. 222. 2 An- Roll. Abr. 922. ders. 39, pi. 25. (q) Curtis v. Vernon, 3 Term Rep. (rj) 2 Bl. Com. 511. 5 Co. 30. 587, affirmed in Exch. Chan. 2 H. Moore, 527. Bl. 26. (o) See Com. Dig. Admon.C. 3. Off. (r) Anon. 1 Salk. 313. (1) iee V. Wright, 1 Hawk's Rep. 151. CHAP, v.] OF AN EXECUTOR DE SON TORT. 367 vious acts(*).(l) Thus, where he takes possession of the testator's goods, and sells them, and afterwards is appointed administrator, such subsequent grant shall make the sale effectual(^). So if A. be or- dered by B. to sell the effects of the intestate, and B, afterwards takes out administration; A., to an action brought against him by a credi- tor, may plead jo/en^ administravit, and shall be discharged on this [368] evidence(w). An administration, also, committed to an ex- ecutor 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 insti- tuting a suit against himself(a;). So, where A. entitled to adminis- tration 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 which the plaintiff replied, that the defendant was executor de son tort; the defendant rejoined, that letters of administration had been granted to him. puis darrein con- tinuance; on demurrer the plea was allowed, and judgment given for the defendant(y). 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(z). (5) Com. Dig. Admon. C. 3. Ken- Ventr. 180. Sty. 337. rick V. Burgess, Moore, 126. Curtis (y) 3Bac. Abr. 26,innote. Vaughan V. Vernon, 3 Term Rep. 590. 2 H. v. Browne, 2 Stra. 1106. AndrJ 328. Bl. 25. S. C. 3 Term Rep. 588. S. C. cited (0 Moore, 126. L. of Ni. Pri. 143, 144. (u) Whytmore v. Porter, Cro. Car. (z) P. per two just. Holt, C. J. 88. contr. Whitehall v. Squire, Salk. 295. (x) 2 H. 11. 25. argdo. Com. Dig. S. C. Skin. 274. Vid. S. C. Carth. Admon. C. 3. Pyne v. Woolland, 2 104, and supr. 244. (1) See ante 243, note (2). 32 369 OF DISTRIBUTION. [bOOK III. CHAPTER VI. OF DISTRIBUTION. Sect. I. Of distribution under 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, the making of an inventory, and the payment of debts, is altogether the same as that of an executor. But as there is no will to direct the subsequent disposition of the property, at this point they separate, and must pursue different courses. After the ordinary was divested of the power of administering an intestate's effects, and compelled, in the manner above-mention- ed(o), to delegate such authority to the relations of the deceased, the spiritual court attempted to enforce a distribution, and took bonds of the administrator for that purpose; but such bonds were prohibited in the temporal courts, and declared to be void in point of law, on the ground, that by the grant of administration the ec- [370] clesiastical authority was executed, and ought to interpose no farther(6). Thus the grantee was entitled not only to adminis- ter, but also, exclusively to enjoy the residue of the intestate's ef- fects(c). For the purpose, therefore, of aiding the imperfect juris- diction of the ordinary, and of preventing any single hand from sweeping away the whole surplus(of), the stat. 22 & 23 Car. 2. c. 10, commonly called the statute of distributions(e) was enacted.(l) (a) Supr. 80, et seq. Bowers v. Littlewood, 594. Carter (6) 2 Bl. Com. 515. Edwards v. v. Crawley, Raym. 496. 4 Burn. Freeman, 2 P. Wms. 441. Hughes v. Eccl. L. 342, 343. Hughes, 1 Lev. 233. S. C. Cart. 125. (e) Made perpetual by 1 Jac.2. c. 17, (c) Edwards V. Freeman, 2 P. Wms. s. 5. Vid.Rex v. Raines, 1 Ld. Raym. 448. 574. Id) Petit V. Smith, 1 P. Wms. 8. (1) In Pennsylvania provision was made for the descent of the real and distribution of the personal estate of persons d3-ing intestate, previous to the first day of October, 1833, by the act of 19th April, 1794 (Purd. Dig. 373; 3 Dall. Laws, 521; 3 Sm. Laws. 135), and by the act of 4th April, 1797 (Purd. 382). On the first day of October 1833, the act of 8th April, 1833, " relating to the descent and distribution of the estates of intestates" (Pamph. Laws, 315) went into operation. The provisions are as follows: — CHAP. VI.] OF DISTRIBUTION. 370 Sect. I. That the real and personal estate of a decedent, whether male or female, re- maining after payment of all just debts and legal charges, which shall not have been sold or disposed of by will, or otherwise limited by marriage settlement, shall be divided, and enjoined as follows, viz: Article 1. Where such intestate shall leave a widow and issue, the widow shall be entitled to one third part of the real estate for the term of her life, and to one third part of the personal estate absolutely. Article 2. Where such intestate shall leave a widow and collateral heirs, or other kindred, but no issue, the widow shall be entitled to one half part of the real estate, includ- ing the mansion-house and buildings appurtenant thereto, for the term of her life, and to one half part of the personal estate absolutely. Article 3. Where such intestate shall leave a husband, he shall take the whole per- sonal estate, and the real estate shall descend and pass as is hereinbefore provided, sav- ing to the husband his right as tenant, by the courtesy which shall take place, although there be no issue of the marriage, in all cases where the issue, if any, would have inhei-ited. Sect. II. That subject to the estates and interests herein before given to the widow or surviving husband, if any, the real estate of such intestate shall descend to, and the per- sonal estate not otherwise herein before disposed of, shall be distributed among his issue, accoi'ding to the following rules and order of succession, viz: Article 1. If such intestate shall leave children, but no other descendant being the issue of a deceased child, the estate shall descend to and be distributed among such chil- dren. Article 2. If such intestate shall leave grand-children, but no child or other descendant being the issue of a deceased grand-child, the estate shall descend to and be distributed among such grand-children. Article 3. If such intestate shall leave descendants in any other degree of consanguin- ity, however remote from him, and all in the same degree of consanguinity to him, the estate shall descend to and be distributed among such descendants. Article 4. If such intestate shall leave descendants in different degrees of consanguin- ity to him, the more remote of them being the issue of a deceased child, grand-child, or other descendant, the estate shall descend to and be distributed among tliem as follows, viz: A. Each of the children of such intestate shall receive such share as such child would have received, if all the children of the intestate who shall then be dead, leaving issue, had been living at the death of the intestate. B. Each of the grand-children, if there shall be no children, in like manner shall re- ceive such share as he or she would Iiave received, if all the other grand-children who shall then be dead, leaving issue, had been living at the death of the intestate, and so in like manner to the remotest degree. C. In every such case, the issue of such deceased child, grand-cliild or other descend- ant, shall take, by representation of their parents respectively, such share only as would have descended to such parent, if they had been living at the death of the intestate. Sect. III. In default of issue as aforesaid, and subject also as aforesaid to the estates and interests herein before given to the widow or surviving liusband, if any, the real es- tate shall go to the father and mollier of such intestate, during their joint lives, and the life of tlie survivor of them; and the personal estate not otherwise herein before disposed of, shall be vested in them absolutely; or if either tlie father or mother be dead at the time of the death of the intestate, the parent siu'viving such intestate siiall enjoy such real estate during his or her life, and sucli personal estate absolutely. Sect. IV. In default of issue as aforesaid, and sulyect to the estates and interests herein before given to the widow or surviving husl)and, father and mother, of the intes- tate, if any, the real estate shall descend to, and the personal estate not otherwise herein before disposed of, shall be distril)Uted among the collateral heirs and kindred of such intestate, according to the following rules and order of succession, viz: I. If such intestate shall leave brothers and sisters, or eiliier, of tlie wiiole l)lood, and 370 OF DISTRIBUTION. [bOOK III. That statute, after empowering the ordinary, on the granting of ad- ministration, to take a bond of the administrator, with two or more sureties, conditioned as I have already stated, further authorizes him to proceed, and call such administrator to account touching the goods no nephew or niece being tlie issue of a deceased brother or sister of the whole blood, the real estjite shall descend to and vest in such brothers and sisters. IT. If such intestate shall leave neitlicr brother nor sister of the whole blood, but nephews or nieces beii)g the children of such deceased brother or sister, the real estate shall descend to and vest in such nephews and nieces. III. If such intestate sliall leave brothers or sisters of the whole blood, and also ne- phews or nieces being the children of any such deceased brother or sister, the real estate shall descend to and vest in such brothers and sisters and nephews and nieces, as follows, viz: Every such brollier and sister shall receive such share as he or she would have re- ceived, if all the brothers and sisters who shall then be dead, leaving children, had been living at the death of the intestate, and such nephews and tiieces, shall take by representa- tion of their parents respectively, such share only as would have descended to such pa- rents if they had been living, at the deatii of the intestate. IV. If such intestate shall leave neither brother nor sister of the whole blood, nor any nephew or niece, being the child of such deceased brotlier or sister, the real estate shall descend to and vest in the next of kin of such intestate, being the descendants of his bro- thers and sisters of the whole blood. V. The personal estate of such intestate not otherwise herein before disposed of, shall in the several cases mentioned in this section, be distributed among the brothers and sis- ters of the intestate, and their issue, in like manner in each of the said cases as is provided for the descent and division of the real estate of the intestate, but without any distinction of blood. ' Sect. V. In default of issue, and brothers and sisters of the whole blood and their descendants as aforesaid, and subject to the estates and interests herein before given to the widow or surviving husband, if any, the real estate shall go to and be vested in the father or mother of the iiitestiite, or if both be living at the time of his death, in the father and mother for such estate as the said intestate had therein. Sect. VI. In default of issue and brothers and sisters of the whole blood and their descendants, and also of fatlier and mother, competent by this act to take an estate of inheritance therein, the real estate of such intestate, subject to the life estates herein be- fore given, if any, shall descend to, and be vested in the brothers and sisters of the half blood of the intestate and their issue, in like manner respectively as is hereinbefore pro- vided for the cases of brothers and sisters of the whole blood and their issue. Sect. VII. In default of all persons herein before described, the real and personal estate of the intestate shall descend to and be distributed among the next of kin to such intestate. Sect. VIII. Provided, That there shall be no representation admitted amongst collate- rals after brothers' and sisters' children. Sect. IX. Provided also. That no person who is not of the blood of the ancestors or other relations from whom any real estate descended, or by whom it was given or devised to the intestate, shall in any of the cases before mentioned, take any estate of inheritance therein; but such real estate, subject to sucli life estates as may be in existence hy virtue of this act, shall pass to and vest in such otjier persons as would be entitled by this act, if the persons not of the blood of such ancestor or other relation had never existed, or were dead at the decease of the intestate. Sect. X. In default of known heirs or kindred competent as aforesaid, the real estate of such intestate shall be vested in his widow, or if such intestate were a married woman, in her surviving husband, for such estate as the intestate had therein, and in such case the widow shall be entitled to the whole of the personal estate absolutely. Sect. XI. Jlnd -whereas it is the true intent and meaning of this act, that the heir at CHAP. VI.] OF DISTRIBUTION. 370 of the intestate; and on hearing, and on due consideration thereof, to make equal and just distribution of what remains clear after all debts, funeral, and just expenses of every sort first allowed and deducted, among the wife and children, or children's children, if any such be, common law shall not take in any case to the exclusion of other heirs and kindred stand- ing in the same degree of consanguinity with him to the intestate, it is hereby declared that in every case which may arise, not expressly provided for by this act, the real as well as the personal estate of an intestate shall pass to, and be enjoyed by, the next of kin of such intestate, without regard to the ancestor or otlier relation from whom such estate may have come. Sect. XII. In default of all such known heirs, or kindred, widow or surviving hus- band as aforesaid, the real and personal estate of such intestate shall go to and be vested in the commonwealth by esclieat. Sect. XIII. Descendants and relatives of an intestate, begotten before his death and born thereafter, s^all in all cases inJierit and take in like manner as if they had been born in the lifetime of such intestate. Sect. XIV. Wherever, by the provisions of this act, it is directed that real or personal estate shall descend to, or be distributed among several persons, whether lineal or collat- eral heirs or kindred, standing in the same degree of consanguinity to the intestate, if there shall be only one of such degree, he shall take the whole of such estate, and if there be more than one, they shall take in equal shares, and if real estate, shall hold the same as tenants in common. Sect. XV. The shares of the estate directed by this act to be allotted to the widow, shall be in lieu and full satisfaction of her dower at common law. Sect. XVI. If any child of an intestate shall have any estate by settlement of such in- testate, or shall have been advanced by him in his lifetime, either in real or personal es- tate, to an amount or value equal to the share which shall be allotted to each of the other children of such intestate, such child shall have no share of the real or personal estate of such intestate, and if such settlement or advancement be to an amount or value less than the share to which he would otherwise be entitled, if no such advancement had been made, then so much only of the real and personal estate of such intestate shall be allotted to such child, as shall make the estate of all the said children to be equal as near as can be estimated. Sect. XVII. The provisions of this act relative to the descent and distribution of real and personal estate among the descendants and collateral relations of intestates, shall be construed to mean such persons only as may have been born in lawful wedlock. Sect. XVIII. The residue of the proceeds of the sale of any real estate of an intestate made by authority of law for the payment of debts, shall vest in the persons entitled by this act to such real estate in such proportions, and for the like interests respectively as they may have had in such real estate. Sect. XIX. All such of the intestate's relations and persons concerned, who shall not lay legal claim to their respective shares, within seven years after tlie decease of the in- testate, shall be debarred from the same forever: Provided, That if any such relation or person shall, at the time of the decease of the intestate, be within the age of twenty-one years, or a married woman, he or she sliall be entitled to receive and recover the same, if he or she shall lay legal claim thereto, within seven years after coming to full age or discoverture. Sect. XX. Nothing in this act contained relative to a distribution of personal estate among kindred, shall be construed to extend to the personal estate of an intestate, whose domicil at the time of his death was out of this commonwealth. Sect. XXI. This act sliall take effeet from and after the first day of October next, and so much of any act of Assembly as is hereby altered oi- suj)plied, is repealed from and after said day, except so far as may be necessary to com])lete the settlement and disposi- tion of the estate of any person who may have died before that time. 371 OF DISTRIBUTION. [bOOK III. or otherwise to the next of kindred to the deceased, in equal degree, or legally representing their stocks, pro siio cuiqiie Jvre, according to the laws in such cases, and the rules and limitation thereafter set down; and the same distrilnitions to decree and settle, and to compel such administrator to ohserve and pay the same by the due course of the ecclesiastical laws. The statute then proceeds to prescrilje the distribution of such surplusage [371] in manner following; that is to say, one third part thereof to the wife of the intestate, and all the residue by equal portions among his children, and such persons as legally represent such children, in case any of them be then dead, other than such child or children, not being heir at law, as shall have any estate by the settlement from tlie intestate, or sliall be advanced by him in his lifetime by portion, equal to the share which shall by such distribution be allotted to the other children, to whom such dis- tribution is to be made; and in case any child, other than the heir at law, who shall have any estate by settlement from the intestate, or shall be advanced by him in his lifetime by portion, not equal to the share which will be due to the other children by the distribution, then so much of the surplusage shall be distributed to such child as shall have any land by settlement from the intestate, or was advanced in the lifetime of the intestate, as shall make the estate of all the children to be equal, as near as can be estimated; but the heir at law, notwithstanding any land that he shall have by descent or oth- erwise 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 legal 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 distrib- uted 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 admitted 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 re- presentatives as aforesaid, and in no other manner. And it further directs, for the benefit of creditors, that no such distribution of the goods of the intestate shall be made, till after the expiration of one year from his death ; 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 oth- erwise duly made to appear, that then, and in every such case, he shall refund, and pay back to the administrator, 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. CHAP, VI.] OP DISTRIBUTION. 372 The statute also contains a proviso, that in all cases where the or- dinary hath used heretofore to grant administration cum testamento annexo, he shall continue so to do : and the will of the 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. Doubts having arisen whether the husband's right to administra- tion to his wife was not superseded by force of this statute, and whe- ther he was not thereby bound to distribute her personal estate among her next of kin (/); by the stat. 29 Car. 2. c. 3, s. 25, it is provi- ded, that the above act shall not extend to estates of feme coverts who die intestate, but that the husband may demand and have ad- ministration of their rights, credits, and other personal estates, and recover and enjoy the same as before. And although he die without having taken out letters of administration to his deceased wife, her next of kin, on taking out such administration, will be a trustee for the husband's personal representative; for the operation of this clause in the statute of frauds is not confined to the life of the husband, nor to the circumstances 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 ^ler relations after her death(^). On the construction of the statute of distributions, a vai'iety 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 legally represent such children, in case any of them be dead, that is, their lineal de- scendants to the remotest degree(A). To attain a clear apprehension of the subject, three sorts of cases [374] may be supposed : First, where none of the intestate's chil- dren are dead. Secondly, where the intestate's children are all dead, all of them having left children. Thirdly, where some of the intestate's children arc 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 intestate's children are dead; it is sufficiently obvious that after the wife has had her third allotted to her, the remaining two-thirds shall, pursu- ant to the statute, be equally divided among all the children of the intestate, as in this case they all claim 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, inasmuch as they arc both equally near of kin to the intestate(e). Nor shall their being posthumous in either (/) Vid. supr. 85. ley, Raym. 500. Pelt's Case, 1 P. (g) Squib V. Wyn, I P. Wms. .381. Wms. 27. (A) Vid. i Burn. Eccl. L. .358. (/) .3 IJac. Abr. 71. Com. Dig. Ad- Com. Dig. Admon. H. Carter v. Craw- mon. II. Smitli v. Tracy, 1 Mod. 209. 374 OF DISTRIBUTION. [bOOK III. case make any difference(^). For a child en ventre sa mere at the time of the father's death, beino; a person in rerum natura, is by the rules of the common and civil law, to all intents and purposes, a child, as much as if born in the father's lifetime, and, consequently, is entitled under the statute(/). If the intestate leave only one child, such case is not to be considered as omitted by the statute; there- fore, in case he also leave a wife, she shall have only a third part, and the other two-thirds shall go to such child(m). So, where there is only one to claim under the statute, and therefore, literally and strictly speaking, there can be no distribution, yet such individual shall be entitled to the property (n). [375] In regard to the second supposition, if A. have three chil- dren B. C. and D., and they all die, B. leaving, for instance, two children, C. three, and D. four, and A. afterwards die intestate; in that case all his grand-children shall have an equal share; for as his children are all dead, their 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 before him(o). In all the above instances, the parties are said to take per capita^ or, in other words, equal shares in their own right(jo). Thirdly, in the event of some of the intestate's children being living, and some dead, and such as ar(| dead having each left chil- dren; the grand-children \z\q per stirpes, that is to say, not in their own right, but by represcntation(9). 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 third to C.'s two children; for these gi*and-children are entitled as representing their respective parents(/'). After directing the residue to be divided among the children, or [376] their representatives, as above stated, the statute provides, 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 S. C. 2 Mod. 204. 2 Jones, 93. S. C. («) 4 Burn. Eccl. L. 343. 3 P. 1 VentT. 316. S. C. 2 Lev. 173. Show. Wms. 49, note (d). Palmer v. Garrard, Pari. Ca. 108. Earl of Winch el sea v. Prec. in Ch. 21. Norcliffe, 1 Vern. 437. Crooke v. (o) 3 Bac. Abr. 75. 1 Eq. Ca. Abr. Watt, 2 Vern. 124. Brown v. Farn- 249, pi. 7. Walsh v. Walsh, Prec. dell, Carth. 51. Chan. 54. Bowers v. Littlewood, 1 {k) Burnet v. Man, 1 Ves. 156. 4 P. Wms. 595. Davers v. Dewes, 3 Burn. Eccl. L. 344. Ball v. Smith, 2 P. Wms. 50. Lloyd v. Tench, 2 Ves. Freem. 230. Edwards v. Freeman, 2 213. Dnrantv. Prestwood, 1 Atk. 454. P. Wms. 446. .Tanson v. Bury, Bunb. 159. 2 Bl. (/) Wallis V. Hodgson, 2 Atk, 117. Com. 517. See also Thellusson v. Woodford, 11 (/>) 2 Bl. Com. 218. 517. Ves.jun. 139. (7) 2 Bl. Com. 217. (ot) 3 Bac. Abr. 75. Brown v. Farn- (r) 3 Bac. Abr. 75. 1 Eq. Ca. Abr. dell, Carth. 52. Skin. 212, pi. 5. 219, 249. Walsh v. Walsh, Prec. Chan. pl. 3. 54. 2 Bl. Com. 517. CHAP. VI.] OF ADVANCEMENT. 376 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 ad- vancement 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 contented, but would have more, then he must bring what he has before received, as the law expresses it, into hotch- pot, that is, into the general mass of the property to be so divided. This is the clear intention of the act, grounded on that principle of equality(.y), 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 in- testacy; 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 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 discussed. If a father purchase for a son an advowson, or any other ecclesi- [377] astical benefice, or, if he buy him any office, civil or military, these are held to be such advancements either partial or complete, according to the comparative value of the estate to be distributed(?f). 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(i^). A provision made for a child by settlement, either voluntary or for a good consideration, as that of a marriage, is an advancement pro tanto{x). JNor does the statute extend only to land itself(y), when settled on a younger child by the father, but also to a charge on the land, crea- ted 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 aVi ad- vancement as is intended by the statute(z). Nor is it necessary that the provision should take place in the father's lifetime(«). If by deed he settle an annuity, to commence after his death, on such child, it is of the same description(6). So a reversion settled on a child, as (.s) Edwards V. Freeman, 2 P. Wtns. 440. 444. Pliiney v. Phiney, 2 Vern. 443. 449. 4 Burn Eccl. L. 344. 2 Bl. G38, Com. 190. 517. (?/) 11 Vin. Abr. 192. 2 P. Wms. (/) Per Master of the Rolls, Walton 441. V. Walton, 14 Ves. jun. 324. (z) Edwards v. Freeman, 2 P. Wms. (w) 3 P. Wms. 317, note (o). Sed 441. vid. Swinb. p. 3, s. 18. {a) Ibid. 2 P. Wms. 440. 1 15. (it-) 3 P. Wms. 317, note (o). {b) Ibid. 2 P. Wms. 442. Swinb. p. (x) Edwardsv. Freeman,2P. Wms. 3, s. 4. 33 377 OF ADVANCEMENT. [bOOK III. it is capable of being valued, is of the same nature(c). A portion secured to a child, although //i y?/7i/ro, is also an advancemcnt(c?). [378] And were it only contingent, yet when the contingency has happened, it shall be thus considered (e). 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, although she were under that age, and unmarried, at the time of the intestate's death(y). A portion, also, while contingent, is capable of a valuation, and may, it seems, be brought into hotchpot(,§-); 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 children equal with the child on whom it was settled(/i). 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(z). A child advanced in part shall bring in his advancement only among the other children ; for no benefit shall accrue from it to the widow(/i?). 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 advance- ment; since, as his representatives, they can [379] have no better claim than he would have had if living(/). By this statute, although the heir at law shall not abate in respect to 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(7/^). And, were it merely the use of furniture for his life, it shall be regarded as an advancement pro tanto{n). So, where A. on his marriage covenanted, in case of a second marriage, to pay his eldest son by his first wife five hundred pounds; she died, leaving a son, and other children, and A. after a second marriage died intestate; it was decreed, that his heir should bring in the money, although he were in the nature of a purchaser, under a marriage settlement(o). Co-heiresses shall also, it seems, bring in such advancement, not being land, as they may have respectively received from their father, before they shall be entitled to their distributive shares, agreeably to (c) Edwards v. Freeman, 2 P. Wms. endo. 2 P. Wms. 446. 442. (i) 2 P. Wms. 440. 445. 449. (d) lb. 2 P. Wms. 445. {k) 3 Eac. Abr. 77. Ward v. Lant, (e) lb. 2 P. Wms. 442. 446. 449. Prec. Chan. 182. 184. (/) 2 P. Wms. 435. 1 Eq. Ca. (/) Proud v. Turner, 2 P. Wms. 560. Abr. 249, pi. 10. 2 Eq. Ca. Abr. 446, (m) Com, Dig. Admon. H. 4 Burn, pi. 3. Eccl. L. 344. Fitzg. 285. (g) Per Sir Jos. Jekyl, M.R. argu- (?i) Com. Dig. Admon. H. Fitzg. endo. 2 P. Wms. 442. 285. (A) Per Lord Raymond, C. J. argu- (o) Phiney v. Pt.iney, 2 Vern. 638. CHAP. VI.] OF ADVANCEMENT. 379 the principle of the act, and to the object of a just and impartial father to promote an equality among his children(^). [380] Such is the nature of the advancement which will exclude 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(^);(l) nor , shall money expended by the father for his maintenance, nor given to bind him apprentice, nor laid out in his education at school, at the university, or on his travels(r). Nor shall what a child receives out of the mother'' s estate be so regarded; for the statute of distribu- tions 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 children, which must be husbands(5). Nor shall a provision 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 con- sidered 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 re- sult from a complete act of the intestate in his lifetime(w), by which he divested himself of all property in the subject, though, as we have just seen(z^j), it may not take effect in possession till after his death. Still less shall property given or bequeathed to the child [381] by any other person be so denominated(a:) ; and, least of all, shall a fortune of his own acquisition(y). In respect to Borough English lands, which descend to the youngest son, it has been held that he should allow for them, on the ground, that the statute intended merely to provide for the heir of the family, that is the heir by the common law, and not one who is heir only by custom, in some particular places(2'). But that decision has been over-ruled, and it is now settled, that such young- est son shall have an equal share of the distribution 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 (p)4Burn. Eccl. L.341. Edwards 35G. V. Freeman, 2 P. Wms. 440. 443. (/) Edwards v. Freeman, 2 P. Wms, (-7) 3 P. Wms. 317, note (o). El- 440. 446. liott V. Collier, 1 Ves. 16. Garon v. (u) 2 P. Wms. 440. Trippit, Ambl. 189. Elliott v. Collier, (w) Vid. supr. 377. 3 Atk. 528. \x) 3 Bac. Abr. 76. Swinb. p. 3, s. (r) 3 Bac. Abr. 76. Swinb. p. 3, s. 18. 18. Edwards v. Freeman, 2 P. Wms. (y) Swinb. p. 3, s. 18. 449. (z) Per Sir Jos. Jekyl, M. R. Stra. («) Holt V. Frederick, 2 P. Wms. 935. (1) AfCa-w V. Ble-wit, 2 M'Cord's Cha. Rep. 102. 381 OF ADVANCEMENT. [l500K 111. exists to oblige the lieir 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 in- testate in his lifetime(«). Thus must the surplus be distributed in case the intestate has left a wife and children, or rej)rcscntative of children. The statute then provides, that if there be no children or legal [382] 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 ad- mitted farther than brothers' and sisters' children. If there be no widow, the whole shall go to the children. 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.(l ) 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(Z»). Those rules have been already discussed(c). The mother, therefore, as well as the father, succeeded to all the personal effects of the children who died intestate without 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 children, every brother and sister, and their representatives, 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(e). [3S3] 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 the 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 shall partake with their grandmother to the same extent as their parent would have been entitled (/"). But if there be neither brother nor sister, nor re- presentative of a brother or sister, the case is without the statute, and («) Per Lord Talbot, C. Lutwyche (e) Blackborough v. Davis, 1 Salk. V. Lutwyche, Ca. Temp. Talb. 276. 251, pi. 2. S. C. 1 P. Wms. 48, 49. 4 Burn. Eccl. L. 345. S. C. Lord Raym. 684. Blackborough [b) 2 Bl. Com. 515. Lloyd v. v. Davis, Com. Rep. 26, pi. 95. Tench, 2 Ves. 214. (/) Keylway v. Keyhvay, 2 P. (c) Vid. supr. 87. Wms. 344. S. C. 1 Stra. 710. S. C. {d) 2 Bl. Com. 513. 516. Evelyn Gilb. Rep. 189. Stanley v. Stanley, V. Evelyn, Ambl. 192. 1 Atk. 455. (1) Under the intestate laws of Pennsylvania, if a man die intestate, leaving neither wi- dow nor lawful issue, nor father, brother nor sister, but leaving a mother, real estate ac- quired by his father, and descending to him, goes to his relations on the part of the father, in exclusion of the relations on the part of the mother, in equal degree. Jievaii v. Tay- lor, 7 Serg. 8t Rawle, 397, overruling Walker^s Adm. v. Smith, 3 Yeates, 480. CHAP. VI.] OF DISTRIBUTION. 383 the whole of such intestate's effects shall devolve, as hefore, to his inother(,o-). Also, by analogy to the statute of distributions, such representation shall not be carried beyond brothers' and sisters' chil- dren (/?). A mother-in-law of the intestate, it is clear, can claim no share in the distribution, she not being of his blood(i). To return now to the statute of distributions. That clause of it which expresses that there shall be no representations among collate- rals beyond brothers' and sisters' children, must be construed to mean brothers and sisters of the intestate, and not as admitting repre- sentation, when the distribution happens 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 brothers' and sisters' children, for [384] he is equally correlative to all(A'). Therefore it has been held, that if the brother of an intestate hath a grandson, and a sister has a son, or daughter, the grandson shall not have distribution with the son or daughter of the sister(/). So it has been decreed, that if an intestate leave an uncle, and a deceased aunt's son, the latter shall have no dis- tributive share(m). Thus though, as we have seen(/z), among lineals, representatives adinfinitum shall share in the distribution of an in- testate's personal estate, yet among collaterals, except only in the in- stance of the intestate's brothers' and sisters' children, proximity of blood shall alone give a title to it. The children of an intestate's brothers and sisters, who were de- ceased at his death, shall id\^Q 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 deceased brother(o). The words of the statute must be taken together. The expression pro sico cuique jure will let in any advantage of equality or prefer- ence to which a person was entitled by our law before the statute. Therefore a grandfather, although he be in an equal degree of con- sanguinity with the brother of the deceased, 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(jo). So a grandfather shall exclude an uncle; and, independently of the provisions of the statute, by the common law the former was entitled {g) 4 Burn.Eccl. L. 374. 11 Vin. C. Com. Rep.87.pl. 56. Pett's case, Abr. 196. IP. Wms. 25. Bowers v. Littlewood, (/t) Stanley V. Stanley, 1 Atk.457, ib. 595. 458. (/) 1 Salk. 250. 1 Ld. Raym. 571. {i) Duke of Rutland v. Duchess of 1 P.' Wms. 25. Com. Rep. 87. Rutland, 2 P. Wms. 216. (m) Bowers v. Littlewood, 1 P. {k) Carter v. Crawley, Raym. 496. Wms. 594. Caldicot V. Smith, 2 Show. 286. Bee- {n) Supr. 373. ton V. Darkin, 2 Vern. 168. Maw v. {o) Ibid. 1 P. Wms. 595. tlarding, ibid. 233. Pett v. Pett, 1 {p) Evelyn v. Evelyn, Ambl. 191, Salk. 250. S. C. Lord Raym. 571. S. vid. supr. 90 and 91. 384 OF DISTRIBUTION. [bOOK III. to a preference, as being of the right line, whereas the latter is only of the collateral line; in other words, the grandfather is [385] the root of the kindred, and the uncle is only the branch(9). The law, of course, is the same in respect to grandmothers and aunts(r). Where the next of kin are, a grandfather by the father's side, and a grandmother by the mother's, they shall take in equal moieties, as being in equal degree: for, in respect of such claims, as hath for- merly been observed(5), dignity of blood makes no diflerence(^). Uncles and nephews, aunts and nieces, are in equal degree. And where the intestate left two aunts, and a nephew and a niece, chil- dren of a deceased brother, Lord Hardwicke, C. ordered the surplus to be divided into four parts equally among them, holding that as they were all in equal degree, the children were to take in their own right, and not by representation; but that if their father had been living, he would have been entitled to the whole(M). 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(t:;). The next of kin, though collateral, is preferred before a relation, though lineal, if he be of the ascending line, and more remote(a:). [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 shall go to his per- sonal representative; for this proviso makes no suspension or con- dition, precedent to the interest of the parties, but was inserted merely with a view to creditors. The statute, also, is in the nature of a will framed by the legisla- ture for all such persons as die without having made one for them- selves; and, by consequence, the parties entitled in distribution re- semble a residuary legatee: and it has been always held, that if such legatee die before the amount of the surplus is ascertained, still his representative shall have the whole residue, and not the representa- tive of the first testator(y).(l) (y) Blackborough V. Davis, 1 Salk. Wms. 53. 38. 251. S. C. Ld. Raym. 684. S. (u) Durant v. Prestwood, 1 Atk. C. Com. Rep. 96. 108, 109. S. C. 12. 454. Mod. 615. Lloyd v. Tench, 2 Ves. (tt-) Com. Dig. Admon. H. Thomas 215. Blackborough v. Davis, 1 P. v. Ketteriche, 1 V^es. 333. Wms. 41. {x) Blackborough v. Davis, 1 P. (r) Com. Dig. Admon. H. 1 Salk. \Vms. 51. 38*. 251. "Woodroff v. Wickworth, (y) 3 Bac. Abr. 75. Brown v. Prec. Ch. 527. Farndell, Carth. 51, 52. Freke v. (s) Supr. 91. Thomas, Comb. 112. Taylor v. Acres, {f) Blackborough v. Davis, 1 P. 2 Show. 285. Palmer v. Aliicock, (1) As to the meaning of " legal representatives" under a devise^ see Ware^s Lessee v. Fisher, 2 Yeates, 578. And as to the meaning of the same words in the act of 29th March, 1813, " for the relief of sundrj- landholders in the manor of Springettsbury in the county of York" (Pamph. Laws, 205), and the act of 21st December, 1784, sect. 9, giving the CHAP. VI.] OF DISTRIBUTION. 386 Affinity, or relationship by marriage, except in the instance of the wife of the intestate, gives no title to a share of his property: as, if A. have a son and a daughter, B. and C, and they both die, the for- mer leaving a wife, and the latter a husband; on A.'s dying after- wards 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 ordinary 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 resi- due(z).(l) A gift of property to my nearest surviving relations has been held to mean the testator's brothers and sisters, to the exclusion of nephews and nieces(a). If a bastard, or any other person having no kindred, die intestate, [387] without wife or child, his effects, as we have seen(6), 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 administration, and consequently to the sole enjoy- ment of the property(c). The personal property of an intestate, wherever situated, must be distributed according to the law of the country where his domicil was,(2) and such is prima Jacie the place of his residence; but that may be rebutted; or supported by circumstances(c?); 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 stationary, not an occasional, resi- dence, in order that the municipal institutions may attach on the property(e). If, therefore, an Englishman be settled, and die in this country, and administration 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(/): But if an alien resi- dent abroad die intestate, his whole property here is distributable according to the laws of the country where he so resides, otherwise Skin. 212. 218. S. C. 3 Mod. 58. 11 (i) Vid. sup. 107. Vin. Abr. 92. Wilcocks v. Wilcocks, (c) 2 Bl. Com. 505. Doug. 542. 2 Vern. 559. 3 P. Wms. 49, note (d). {d ) 2 Ves. jun. 198. See also Sir Lee V. Cox, 3 Alk. 422. Vid. supr. Chas. Douglas's case there cited. 342. (e) 1 Wooddes. 385. Pipon v. Pi- (z) Garrick v. Lord Camden, 14 pon, Ambl.25. Burn v. Cole, ib. 415, Ves. jun. 372. 416. (a) Smith V. Campbell, Coop. Rep. (/) Thorne v. Watkins, 2 Ves. 35. 275. right of pre-emption, to certain lands on the west branch of Susquehanna river to settlers and their legal representatives (Carey &i Biorcn's Laws, vol. 3, p. 519.); see Comm. v. Bryan, C Serg. k Rawle, 81; Duncan v. Walker, 2 Uall. liep. 205. (1) See, however, as to Pennsylvania, JJarrah et. al. v. M^jYair, Ashm. Rep. 236. (2) Gider v. O'Baniel, 1 Binn. 349. JIarrwy \. Jiichards, 1 Mason's Rep. 381; and the cases there cited by Judge Storj-. Williamson \. Smart, Tayl. Rep. 219. Cam. & Norw. 146. 387 OF DISTRIBUTION. [bOOK III. no foreigner could deal in our funtls but at tlie peril of his effects going according to our laws, and not to those of his own country(^). Where a native of England domiciled in Guernsey died intes- tate, leaving a widow and infant children, and the widow was ap- pointed guardian of the children by the royal court of Guernsey, and [3S8] sold the property of the intestate, and invested the produce in tJje English funds, and afterwards came to England with her chil- dren, and was domiciled there: A question arose on the death of some of the children under age, whether their shares of the property be- came distributable according to the law of England ov of Guernsey; and it was held that the law of E?igland was to govern the succession, the domicil of the children being (according to the opinion of for- eign jurists, our own law being silent on the subject) to follow the domicil of the surviving parent, where no fraudulent intention can be imputed. But fraud may be presumed where no reasonable cause appears for the removal(/i). Sect. IL Of distribution by the custom of London. I PROCEED, in the last place, to consider the customs of the city of London, on this subject, and also of the province of York, and the principality of Wales; which having peculiar customs of distributing intestate's effects, are expressly excepted 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 fV. 6,^ M. c. 2, explained by the 2 & 3 »dnn. c. 5, for the province of York; the 7 & S W.o.c. 38, for Wales; and the 11 6r. 1. c. IS, for London; by which 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 barred; yet those customs remain in full force with respect to such property of an intestate(«), or where the deceased freeman agreed by writing, in consideration of marriage or otherwise, that his personal estate should be distributed according to the same. Their nature and inci- dents therefore demand now our attention. [389] In the city of London(Z>), and in the province of York(c), as well as in the kingdom of Scotland(^), and therefore, probably (g-) 1 Wooddes. 585. Pipon v. Pi- Test. 194. 3 P. Wms. 19, in note, pon, Ambl. 27. (6) Redshaw v. Brasier, Ld. Raym. {h) Potinger v. Wightman, 3 Meri. 1329. 4 Burn. Eccl. L. 387. Rep. 67. (c) 4 Burn. Eccl. L. 398. (a) 2 Bl. Com. 493. 517, 518. L. of {d) Ibid. 421. CHAP. VI.] BY THE CUSTOM OF LONDON. 389 also in Wales(e), (respecting the latter of which, little information is to be collected, except from the statute of W. 3.) the effects of the intestate, after payment of his debts, are in general divided according to the ancient doctrine of the pars rationabilis{f), to which I have before alluded(^). 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-chamber, is divided into three equal parts, one of which belongs to the widow, another to the children, and the third to the administrator in that character. If only a widow, or only children, they shall respectively in either case take one moiety, and the administrator the other(A). If neither wi- dow 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 (A"), the or- dinary or his gi'antee was to dispose of it in masses for the deceased's [390] soul. But, after the disuse of this superstitious 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. 1 Jac. 2. c. 17, it was declared, that it should be subject to the law of distributions. Hence, if a freeman die worth eighteen hundred pounds personal 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 statute; 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 shall have three-fourths of the whole, two by the custom and one by the statute; and the remaining fourth shall go by the statute to the next of kin(//i). A posthumous child shall come in for his customary share with the other children(n). But the custom extends merely to the wife and children of the freeman, and not to his grandchildrcn(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 representatives, [391] 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 (e) Bum.Eccl. L. 423. 442. (/) Anon. 2 Freem. 85. Mathews (/) 2 Bl. Com. 518. Off. Ex. 97. v. Newby, 1 Vern. 133. (g) Supr. 81. (m) 2 Bl. Com. 518. L. of Test. (h) Northey v. Strange, 1 P. Wms. 20'J. 341. Kegina v. Rogers, 2 Salk. 420. (n) Walsam v. Skinner, Prcc. Chan. Turner V. Jennings, 2 Vern. 612. L. 49'J. L. of Test. 203. 11 Vin. Abr. of Test. 210, 211. Elliott v. Collier, 200. Gilb. Eq. liop. 155. 3 Atk. 527. (o) Northey v. Strange, 1 P. Wms. (?) Pcrcival V. Crispc,2Show. 175. 341. Fowko v. Hunt, 1 Vern, 397. Vid. L. of Test. 192. Regina v. Rogers, 2 Salk. 42G. L. of (/,•) Supr. 81. Test. 210. 34 391 DISTRIBUTION BY CUSTOM OF LONDON. [bOOK III. that case, therefore, of the dead man's part by the statute, the wife shall have one-third, and the representatives shall have the other two-thirds; so that, dividing the whole personal estate into six parts, she shall have four, and the representatives two. If there be neither wife nor child, nor such representative of a child, the whole shall be subject to the statute of distribution( /?). The custom attaches, although the freeman neither resided, nor died(<7), nor left property(r) within the 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(.5') ; or, in lieu of it, in case the estate shall exceed two thousand pounds, it has been said that she is enti- tled 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(w). [392] If she be provided for by a jointure before n'larriage in bar of her customary part, she is put in a state of nonentity with regard to the custom only(?^>); but she shall slill be entitled to her share of the dead man's part under the statute of distributions(a^). 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 wholly out of the custom(y). 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(z). And CL fortiori, she shall not be excluded from her customary share, if the settlement be so expressed; as if it contain a proviso, 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 whatso- ever(a). On the other hand, the settlement 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(6): or if it be {p) L. of Test. 192. 221, 222. 1 16. Pusey v.Desbouverie, 315. Med- Vern. 200. calfe v. Medcalfe, 1 Atk. 64. Morris {q) L. of Test. 202. 220. Spencer's v. Burroughs, 403. Tomkyns v. Lad- case, 1 Roll. Rep. 316. Wilkinson v. broke, 2 Ves. 592. Miles, 1 Sid. 250. Harwood's case {x) Benson v. Bellasis, 1 Vern. 15. 1 Ventr. 180. S. C. 1 Mod. 80. Rut- 2 Chan. Rep. 252. Withill v. Phelps, ter V. Rutter, 1 Vern. 180. Choraley v. Prec. Ch. 327. Chomley, 2 Vern. 48. 82. Webb. v. {y) 1 Ca. Abr. 158, 159. Babinatonv. Webb, ib. 110. Greenwood, 1 P. Wms. 531. Blunder (r) Priv. Lond. 288. v. Barker, 647. Babino-ton v. Green- es) 2 Bl. Com. 518. wood, Pr. Chan. 505. L. of Test. 214. (0 7 Vin. Abr. 2, tit. Customs, B.2. {z) S. C. 1 P. Wms. 532. Briddlev. Briddle, 4Burn. Ec. L. 388. {n) Kirkman v. Kirkman, 2 Bro. (u) Swinb. p. 0, s. 13. Ch. Rep. 95. (u-) Hancock v. Hancock, 2. Vern. (i) 1 Eq. Ca. Abr. 153. Atkyns v. 665. Blunder v. Barker, 1 P. Wms. Waterson, Gilb. Eq. Rep. 95, S. C. 644. Cleaver v. Spurling, 2 P. Wms. L. of Tost. 214. Babington v. Green- 527. Lcwin v. Lewin, 3 P. Wms. wood, 1 P. Wms. 531. CHAP. VI.] ADVANCEMENT BY CUSTOM OF LONDON. 392 made in satisfaction of all her demands out of his personal estate by the custom, or otherwise, she shall be barred also of her share under [393] the statute(c): or it may thus operate on the evident though only implied intention of the parties(^). If the wife be divorced for adultery u mensd et tlioro, she for- feits her customary share(e). If a freeman leave several children, the share or the orphanage part of any one of them is not vested in him by the custom till the age of twenty-one, after which period, but not before, he may dis- pose of it by will, or, in case of his dying intestate, it shall be dis- tributed pursuant to the statute. If he die under that age, whether sole or married, his share shall survive to the others(y") ; whereas the share by tlie statute is vested, and therefore such child may de- vise it at the age of fourteen, if a son, and at twelve if a daughter(^). But the survivorship of the orphanage part holds only as to the or- phanage part belonging to the deceased himself, for if he had by sur- vivorship the part of any of his brothers or sisters, that shall go ac- cording to the statute(/0. In case there be only one child, his orphanage part is vested in him, in the same manner as his share by the statute, and is devisable by him at the same age(/). If a man [394] 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(A;). The children of a freeman are entitled to the benefit of the custom, although they were born out of the city(/). 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(m). If a freeman have several 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 distributed according to the statute. If he has only one child, and fully advances him, the consequence is the same(n). If the children are advanced only partially, they must bring their por- tion 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 princii)le here also is to make an equality among the children, and not to benefit the widow(o). Nor, where a freeman has in part ad- (c) 7 Vin. Abr. 211. Benson v. Bel- (/.•) Fouke v. Lewen, 1 Vern. 88. lasis, 1 Vern. 15. 4 Burn. Eccl. L. Sed. vid. Prec. Ch. 537. 404. Vid. L. of Test. 212, -213. (/) L. of Test. 202. Harwood's (rf) L. of Test. 212. L.of Lond. 102. case, 1 Vcntr. 180. S. C. 1 Mod. 80. (e) Pettifer v. James, Bumb. IG. (w) Cleaver v. Spuriing, 2 P. Wms. (/) 2 Bl. Com. 510. Wilcocks v. 527. "Wilcocks, 2 Vern. 558. Jesson v. Es- (h) L. of Test. 206. 221. Cleaver sington, Prec. Ch. 207. 537. v. Spiirling, 2 P. Wms. 527. Good- (^r) Vid. supr. 8. win v. Ramsden, I Vern, 200. llan- (k) Jesson V. Essington, Free. Ch. cock v. Hancock, 2 Vern. GG6. . IMed- 537. calf V. Medcalf, 1 Alk. 04. (t) 3 P. Wms. 318, note (q). Vid. (o) L. of Tost. 201. Annand v. Ho- also Prec. Chan. 207. neywood, 1 Vern. 345. Beckford v. 394 OF ADVANCRMENT [bOOK III. vanccd his only child, shall such child hring in his advancement, [395] for there is none to claim with him of equal degree(^;). And where one of several such children is advanced, his advancement 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 sliall l)e entitled, without regard to what he shall have received from his father(^). In case such advancement be brought into hotchpot, it must be brought into tlie orphanage part only(/'). 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 ])art distributable by the statute, is a point on which there are opposite opinions. By some writers it has been held, that he has a claim to his full share by the statute, witliout any retrospect to his advancement, whatever might have been its amount. By others it has been maintained, that he has 'no right to such distributive share, unless he bring into the same so much of his advancement as exceeded his proportion of his customary part(5). To reconcile this variance, a distinction has been suggested between an advancement given and accepted expressly in satisfaction of the customary share, and an advancement given generally without any such agreement or stipulation: That, in the former case, in the distribution of the dead man's part, no repect shall be had to the [396] 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 customary share only, or both to the customary and distriluitive share, according to the amount of the advancement(/). As to the nature of the advancement, whether complete or par- tial, it must arise exclusively from the personal estate. In the cs tablishment 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 commerce(t^). If therefore a citizen settle a real estate on a child, it shall be no ad- vancement(zo); nor, although it be expressly for that purpo,se, shall it bar him of his orphanage part(.T). Nor if money be given by Beckford, 2 Vern. 281. 2 Bl. Com. 345. 519. Bright v. Smith, 2 Freem. 279. (s) Vid. 4 Burn. Eccl. L. 40G. 1 Eq. Ca. Abr. 155. Cleaver v. Spur- Gudgeon v. Ramsden, 2 Vern. 274. ling, 2 P. Wms. 526. Garron v. Trip- (/) 1 i3urn. Eccl. L. 207. pet, Ambl. 189. (u) I Eq. Ca. Abr. 150. Tomkyns (p) Regina v. Rogers, 2 Salk. 426. v. Ladbroke, 2 Ves. 593. Fane v. Sence, 2 Vern. 234. Dean (w) 1 Ch. Ca. 160. 235. L. of V. Lord Delaware, ib. C28. Stanton Test. 194. Tiffin v. Tiffin, 1 Vern. 2. V. Platl, ib. 754. Cox. v. Belitha, 2 P. Wms. 274. (fy).Hcarne v. Barber, 3 Atk. 214. (x) 2 Ch. Ca. 160. Vid. Civil v. Wood V. Briant, 2 Atk. 523. Rich, 1 Vern. 216." (r) Beckford v. Beckford, 1 Vern. CHAP. VI.] BY THE CUSTOM OF LONDON. 39G the father to be laid out in land to be settled on the son on his mar- riage, shall it be deemed personal estate, nor any exclusion(?/). What has been already stated in general cases(z) respecting small presents made to the child by the father; his disbursements for the child's maintenance and education, or placing him out appren- tice(a); a legacy left him by the father dying partially intestate(6); [397] 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 advanced. For that purpose it must be a provision made for him by the father, while living, out of his personal property(c). In short, there must, in all instances of this nature, be a valuable consideration moving from the father, and an actual benefit accruing to the child(f/). Indeed, it has been made a question whether such provision as shall amount to an ad- vancement should not be made on marriage, or in pursuance of a marriage agreement(e). But it seems, the custom on this head is not so restricted, but extends to any other establishment of the child in life(/). If the child, whether the only one or not, be married in the life- time of the father, with his consent, although such child were not fully advanced, yet, to entitle himself to further portion, he must produce a writing under his father's hand, expressing the value of the advancement, in order that it may be ascertained what propor- tion it bore to his share by the custom(^). 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, such advancement shall [398] be presumed to have been complete, till the contrary be shown(A). But mere parol declarations of the father, that he had fully advanced the child, whether with or without a specification of the value, shall be of no avail (^). Thus, 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 (y) Annand v. Honeywood, 1 Vern. v. Barber, 3 Adv. 213. 345. (/) L. of Test. 201. Morris v. Bur- (r) Vid. supr. 380. roughs, 1 Atk. 40.>. See also Nor- (a) Sed vid. Morris v. Burroughs, 1 they v. .Strange, 1 P. Wms. 312. Atk. 403. (g) Chace v. Box, Ld. Ilaym. 484. (i) Vid. Car v. Car, 2 Atk. 227. 1 Eq. Ca. Abr. 154. 4 Burn. Eccl. (c) Laws of Lond. 82. .Tenks v. L. 393. L. of Test. 203. Hume v. Holford, 1 Vern. 01. 4 Burn. Eccl. L. Edwards, 3 Atk. 451, 452. Elliot v. 412. 415. Vid. Elliot v. Collier, 1. Collier, 527. Fawkncr v. Watts, 1 Ves. 17. Hearne v. Barber, 3 Atk. Atk. 400. 213. 452. 3 P. Wms. 317, note (o). (//) Cleaver v. Spurling, 2 P. Wms. Elliot V. Collier, 1 Wils. 1G8. 527. 4 Burn. Eccl. L. 408, in note. {d) L. of Test, 204. .Tenks v. Hoi- Elliot v. (Oilier, 3 Atk. 527. ford, 1 Vern. (il. Fowke v. Lewen, (t) Vid. Bhniden v. Barker, 1 P. 89. Civil V. Rich, 21G. Morris v. Wms. C.34. Cleaver v. Spurling, 2 Burroughs, 1 Atk. 403. Elliot v. P. Wms. 527. Fawkuer v. Watts, 1 Colliitr, 3 Atk. 528. Atk. 407. (e) 1 Vern. Gl. 89. Vid. also Hearne 398 ADVANCEMENT BY CUSTOM OF LONDON. [bOOK III. the cases the child was entitled to the whole personal estatc(A'). If he be fully advanced, he shall have nothing by the custom, but shall have all as next of kin: If he be partially 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 tlie other half by the statute: If he be not advanced, he shall have one half by the custom, and the other half by the statutc(/). If the freeman leave no wife, but several children, as for instance three, one of whom is advanced, another partly advanced, and the third not advanced; in this case the cliild partly advanced, and the child not advanced, after the former has brought in his partial ad- vancement, shall sliare one-half equally between them by the cus- tom; and tlie other half, namely the dead man's part, although the first child have been fully advanced, shall, without his bringing his ad- vancement into hotchpot, be distributed by thestatutc 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 whether it be general, and without any stipulation(w). 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(n). There- fore, a freeman's child, if of age, may in consideration of a present fortune, waive all claim to the orphanage 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(o). So, if A., who is of age, marry a freeman's daughter, who is an in- fant, he may, on receiving an adequate portion, bar himself of any future right to a customary estate in virtue of the marriage by a re- lease of all future right, or by a covenant to release it when it shall accrue(^). Indeed, if the latter mode be adopted, the wife, if under age, would not be barred by the covenant; and in case of his death before the execution of the release, she would by [400] 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 reasonable he should perform his covenant. It is highly expedient that articles of this nature should be carried into execution; and that, when the father is bountiful to his children in his lifetime, he should {k) Vid. 4 Burn. Eccl. L. 417. 273. (/) Vid. 4 Burn. Eccl. L. 417. (o) 2 Eq. Ca. Abr. 272. Lockyer \m) Vid. supr. 395. v. Savage, Stra. 947. («) Blundeu v. Barker, 1 P. Wms. (;;) Cox v. Belitha, 2 P. Wms. 272. 636. 639. Cox v. Belitha, 2 P. Wms, Ives v. Medcalf, 1 Atk. 63. CHAP. VI.] RELEASE OF CUSTOMARY SHARE. 400 have his affairs settled to his satisfaction at his death(5'). But such release shall be altogether ineffectual if in any manner extorted, or obtained by undue influence(r), or without consideration(s). 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, without regard to the custom. Sect. III. Of distribution by 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 reserve to her own use not only her apparel and furniture of her chamber, but also [401] a coffer box containing various ornaments 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 the province it is vested immediately on the death of the intestate(6). 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 divest- ed of all claim to any filial portion(c). And, however small in point of value the land may be in comparison with the personal estate, he is nevertheless excluded(c?), and even although the estate he inherits be only a reversion(e). He is also barred, though the land devolved upon him by settlement made on his father's marriage(/). Nor, in case lands held by a mortgage in fee descend to him before re- demption, shall he be entitled to a filial portion; but on redemption of the mortgage, and payment of the [402] money to the administra- tor, it seems he shall be entitled to such portion, because then he has nothing by inheritance, nor in fact has had any prefcrment(^). The principles established in regard to advancement on the con- struction of the statute of distributions apply in general to such as is pursuant to the custom of this district(A) ; but as here land as well as (7) Ibid. 1 Atk. 63. L. 398. (r) Heron v. Heron, 2 Atk. 160. (c) 2 Burn. Eccl. L. 409. L. of Blunden v. Barker, 1 P. Wms. 639. Test. 221. Constable v. Constable, 2 (s) Ives V. Medcalf, 1 Atk. 63. Vern.375. i.Iorris V. Burroughs, 402. Heron v. (aman,Adm. 3 Penns. liep. 185. See Hooker V. Oimitead, Pick. llep. 481. (2) Shel/jif V. The Commoii-ivcullh, 13 Serg-. k Rawle, 348. Todd v. Todd's Ex. 1 Serg. h Kawle, 453. '2 Dall. Rep.. 244. ' J lull v. Hall, 2 M'Cord's Cha. Rep. 302. M'Kuy V. Green, Livingston \.J\l'ev)kirk, 3 Johns. Cha. Rep. 57. 312. Seaverv. I^e-wis, 14 Mass. Rep. 83. 3G 418 OF MARSHALLING ASSETS. [rOOK III. paymcnt(w2). So lands subject to or devised for payment of .debts shall be liable to discharge such mortgaged lands eilher descended or devised(«), and although the mortgaged lands be devised expressly subject to the incumbrance(o). So lands descended shall exonerate mortgaged lands devised (/?). So unincumbered lands and mort- gaged lands, both specifically devised, but expressly after payment of a//del)ts, shall contribute to the discharge of the mortgage(<7).(l) 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 col- lateral. But a diflcrent rule prevails where the charge is on the real es- tate principally, and the personal security is only collateral(r); [419] As where a husband on his marriage covenants to settle lands and to raise a term of years out of them for securing portions, and also gives a bond for the performance of the covenant; for in such case the land-holder enters into such covenant relying on the land to enable him to discharge it; nor does the money raised increase the personal estate, but is to exonerate the rest of his real(5). So where the debt, although personal in its creation, was contracted originally by another(/): As where an estate is bought subject to a mortgage, the personal estate of the purchaser shall not be applied in exonera- tion of the real estate, unless he appeared to have intended to make the debt his o\vn[u);(2) but a mere covenant for securing the debt will not be sufficient for that purpose(y).(3) (m) Cope V. Cope, 2 Salk. 449. v. Mangle, Ambl. L50. Howelv. Price, 1 P.Wrns.-29l. Pock- (*) 2 Fonbl. '292, note b. Edwards ley V, Pocklcy, 1 Vern. 36. 43G. King v. Freeman, 2 P. Wras. 435. V. King, 3 P. Wras. 360. Gallon v. (i) Cope v. Cope, 2 Salk. 449. Hancock, 2 Atk. 436. Robinson v. Bagot v. Oiighton, 1 P. Wms. 347. Gee, 1 Ves. 251. 6 Bro. P. C. 520. Leman v. Newnham, 1 Ves. 51. Ro- Philips V. Philips, 2 Bro. Ch. Rep. binson v. Gee, ib. 251. Lacam v. 273. Merlins, ib. 312. Parsons v. Free- (n) Bartholomew V. May, 1 Atk. 487. man, Ambl. 115. 2 P. Wms. 664, in March, of Tweedale v. Coverley, 1 note. Lawson v. Hudson, 1 Bro. Ch. Bro. Ch. Rep. 240. Rep. 58. Earlof Tankerville, v. Faw- (0) Serle v. St. Eloy, 2 P. Wms. cet, 2 Bro. Ch. Rep. 57. Tweddle v. 386. Tweddle, ib. 101. 152. Billinghurst {p) Gallon V. Hancock, 2 Atk. 424. v. Walker, ib. 604. (fj) Carter v. Barnardislon, 1 P. (;/) 2 Fonbl. 202, note b. Pockley Wms. 505. 2 Bro. P. C. 1. v. Pockley, 1 Aern. 36. 6 Bro. P. C. (r) Edwards V. Freeman, 2 P. Wms. 520. Billinghurst v. Walker, 2 Bro. 437. 664, in note. Ward v. Lord Dud- Ch. Rep. 608. ley and Ward, 2 Bro. Ch. Rep. 316. (r) Bagot v. Oughton, 1 P. Wms. Leman V. Newuham, 1 Ves. 51. Lewis 347. Evelyn v. Evelyn, 2 P. Wms. (1) The order of marshalling assets towards payment of debts is, 1. The personal es- tate; 2. Lands descended; 3. Lands devised. Livijigston v. JVe-uikirk, 3 Johns. Ch. Rep. 313. Hall V. Hall, 2 Al'Cord's Ch. Rep. 303. Slielby v. The Commoivwealih, 13 Serg. & Rawle, 348. Hays v. Jackson, 6 Mass. Rep. 151. JFalker's Estate, case of, 3 Rawie, 239. (2) 9 Serg. k Rawle, 73. The devisee of unpatented lands belonging to the testator, has no right to call upon the personal estate of the testator to pay the purchase-money and fees of patenting the land. Case of John Keyset], Ex. of Keysey, 9 Serg. k R. 71. (3) Cumberland {Duke of ) v. Codrington, 3 Johns. Cha. Rep. 229. CHAP. VIII.] OF MARSHALLING ASSETS. 419 With respect to the priority of the application of real assets, when the personal estate is either exempt or exhausted, it seems that first the real estate expressly devised for the purpose shall be applied; secondly, to the extent of the specialty debts, the real [420] estate descended; thirdly, 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 re- spective claims of creditors, it has been long settled, 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(:r).(l) If therefore a specialty creditor, whose debt is a lien on the real as- sets, 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 have exhausted the personal as- sets in payment of his debt(y).(2) The same marshalling of assets may also take place in favour of legatees. As against assets descended they shall have the 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(z). So, where legacies [421] by the will are charged on the real estate, but not the legacies by the codicil; the former shall resoi't 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 personal estate(Z)).(3) But the principles of these rules will not admit of their being ap- 661. Forrester v. Lord Leigh, Ambl. Hodges, 9 Ves. 53. 171. Earl of Tankerville v. Fawcelt, {y) 2 Ch. Ca, 4. Sagittary v. Hyde, 2 Bro. Ch. Rep. 58. Tweddell v. 1 Vern. 455. 1 Eq. Ca. Abr. 144. Tweddell, ib. 152. Billinghurst v. Wilson v. Fielding, 2 Vern. 763. Gal- Walker, ib. G04. ton v. Hancock, 2 Atk. 436, 3 Wood- {w) 1 P. Wms. 294, note 1. Gal- des. 489. ton V. Hancock, 2 Atk. 424. Doune v. (z) Haslewood v. Pope, 3 P. Wms. Lewis, 2 Bro. Ch. Rep. 257. 261, in 323. note, 259, in note. Manning v. Spoo- (a) 3 Ch. Rep. 83. Masters, v. ner, 3 Ves. jun. 117. Masters, 1 P. Wms. 422. Bligh v. (a) 1 P. Wms. 679, note 1. Lanoy Earl of Darnley, 2 P. Wms. 620. V. Duke of Athol, 2 Atk. 446. Lacam {b) Chfton v. Burt, 1 P. Wms. 680. V. Merlins, 1 Ves. 312. Mogg v. (1) Cheeseborough v. Millard,! Johns. Cha. Rep. 409. Greenwood\. Jiocrjjiet^s Ex. 2 Bay's Rep. 87. Fowler v. Barksdale, Harp. Eq. Rep. 104. (2) Ilaydon v. Good, 4 Hen. 8c Munf. 460. So a surety who pays a specialty debt, due by the intestate, has a right to stand in. the place of the specialty creditor, and be paid such portion of the assets as the specialty creditor would have been entitled to. Dors/ici- mer v. Jiucher, Adtn., 7 Serg. be Ilawle, 9. (3) Sec ante, page 411, note n. (1). 421 OF MARSHALLING ASSETS. [bOOK 111. plied in aid of one claimant so as to defeat another. And, therefore, a pecuniary legatee shall not stand in the place of a specialty credi- tor, as against lands devised, though he shall as against lands de- scendcd(c). Yet such legatee shall stand in the place of a mort- gagee,-who has exhausted the personal assets, to he satisfied out of the mortgaged premises, though specifically dcvised(^); for the applica- tion of the personal assets in case of the real estate mortgaged(e), does not take place to the defeating of any legacy, either specific or pccuniary(/). A legatee shall also stand in the place of a specialty- creditor, who has exhausted the personalty, as against aresiduary.de- visee of the real and personal estate, because he has only the rest and residue(^). Nor do any of the rules above mentioned subject any fund to a claim to which it was not before lialjlc, but only provide that the election of one claimant shall not prejudice the claims of the [422] others(/i). Thus, where A., seised of freehold and copyhold lands, mortgaged them in his lifetime, and died indebted by mort- gage, and on several bonds, the specialty creditors urged the court, in marshalling the assets, to cast the whole mortgage upon the copy- hold estate, in order that the specialty creditors might have the benefit of the whole freehold estate: yet the court held, that as copyhold es- tates were not liable, either at law or in equity, to the testator's debts, fitrther than he subjected them to the same, the copyhold estate should bear its proportion with the freehold estate for payment of the mortgage, buishould not be liable to make satisfaction for the specialty debts(e). But this case, as being quite anomalous and irreconcilable with all principle, has been lately overruled(>t). Where a testator, having both freehold and copyhold estates, charges all his real estate with payment of his debts, if he has surrendered the copyhold to the use of his will, the freehold and copyhold shall be applied rateably; but if he has not surrendered 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 es- tate, payable at a future day, and the legatee die before the day of payment, it is doubtful whether the court will marshal the assets, so as to turn such legacy on the personal estate: in which case it would (c) Heme v. Meyrick, 1 P. Wms. Lacanv. Martins, 1 Ves. 312. 201. CUfton V. Burt, 678. Hasle- (J) Robinson v. Tonga, cited 1 P. wood V. Pope, 3 P. Wms. 324. Wms. 679, note 1, and vid. supr. 411, (r/) Lutkins v. Leigh, Ca. Temp, and 2 Ves. 271. Talb. 53. Forrester v. Lord Leigli, {k) Aldrich v. Cooper, 8 Ves. jun. Ambl. 171. 382. See also Trimmer v. Bayne, 9 (e) Vid. Howel v. Price, 1 P. Wms. Ves. jun. 209. And in Tomlinson v. 294. Ladbroke, at the Roll's sittings after (/) Oneal v. Mead, 1 P. Wms. 693. Hil. T. 1809, Sir Wm. Grant, M. R. Tippingv. Tipping, ib. 730. Davisv. held clearly that the assets should be Gardiner, 2 P. Wms. 190. Rider v. marshalled as against a copyhold estate. Wager, ib. 335. (/) Growcock v. Smith, 2 Cox's {g) Handby v. Roberts, Ambl. 129. Rep. 397. (A) Gallon v. Hancock, 2 Atk. 438. CHAP. VIII.] OF MARSHALLING ASSETS. 422 be vested and transmissible; but, as against the real estate, it would sink by the death of the legatee(7r<.). As against real assets descended, the wife shall stand in the place of specialty creditors for the amount of her paraphernalia(?i); but, [423] whether she shall be so entitled as against real assets devised, seems to be a point unsettled(o), excepting in the case of a real es- tate charged with payment of debts in aid of the personal estate, in which the court decreed her paraphernalia to the wife, in prejudice of the charged estate(7j). A court of equity will not marshal assets in favour of a charitable bequest, so as to give it effect, out of the personal chattels, it being void so far as it touches any interest in land(§'). Under a devise of real and personal estate in trust to pay debts and legacies, some of which were void under thestat. 9 Geo. 2. c. 36, as a charge of charity legacies upon the real and leasehold estates and money on mortgage; on a deficiency of assets the other legatees were preferred to the heir(r). (/«) Prowse V. Abingdon, 1 Atk. Ves. 7. Vid. supr. 231. 482, and Pearce V.Taylor, before Lord {p) Boyntun v. Boyntun, 1 Cox's Thurlow, C. Trin. Vac. 1790, cited 1 Rep. 106. P. V^^ms. 679, note 1. {q) ^logrg v. Hodges, 2 Ves. 52. (n) Tipping V, Tipping, 1 P.Wms. Attorney-General v. Tyndall, Ambl. 729. Snelson v. Corbett, 3 Atk. 369. 614. Foster v. Blagden, ib.704. Hill- Graham V. Londonderry, ib. 393. yard v. Taylor, ib. 713. 3 Wooddes. (o) 2 P. Wms. 554, note 1. Probert 489, note (g). Mogg v. Hodges, 1 V. Clifford, Ambl. 6. Incledon v. Cox's Rep. 7, and other cases in the Northcote, 3 Atk. 438. 3 Bac. Abr. same work. 87. Lord Townsend v. Windham, 2 {r) Currie v. Pye, 17 Ves. jun.463. 424 OF A DEVASTAVIT. [bOOK III. CHAPTER IX. OF A DEVASTAVIT. Having thus discussed what belongs to the discharge of an exe- cutor's duty, I am now to consider, what shall amount to such a vio- lation or neglect of it as shall niake him personally responsible. This species of misconduct is styled in law a devastavit; that is, a wasting of the assets(a). And where an executrix in respect of her receipts as such, was considerably indebted to the estate, an annuity to which she was en- titled under the will, was ordered as it became due, to be applied in payment of such debt, and her solicitor was declared 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(6). 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 expences in the funeral(c); in the payment of debts out of their legal order, 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 creditors(^/). Or by disbursements in the schooling, feeding, or clothing of an intestate's children subsequently to his decease(e). So if the executor release or cancel a bond due to the testator, or [425] deliver it to the obligor, this shall charge 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 the testator's death, this also will, generally speaking(^), be a devustaviiiji). 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 recompence to the full value, this, as being his own voluntary act, shall bind him to answer the difl'erence(?').(l) If an executor take an obligation in his own name for a debt due by simple contract to the testator, he shall be equally (a) Off. Ex. 157. 3 Bac. Abr. 77. (/) Off. Ex. 159. 1 Nels. Abr. 262. Com. Dig. Admon. 1. 1. 11 Vin. Abr. {g) Sed vid. inf. 429. 306. (/OOff. Ex. 71. 159. Chandler v. (6) Skinner V. Sweet, 3 Madd. Rep. Thompson, Hob. 266. And. 138. 244. Brightraan v. Knightley, Cr. Eliz. 43. (c) Vid. supr. 246. (») Off. Ex. 71.159, 160. Anon. 3 \d) Off. Ex. 158. Leon. 51. (e) Giles V. Dyson, 1 Starkie, 32. (1) The award, however, will be good. Bean v. Farnam, 6 Pick. Rep. 209. CHAP. IX.] OF A DEVASTAVIT. 425 chargeable as if he had received the money; for the new security has extinguished the old right, and is quasi a payment(j). If, in the character of an executor, he commence an action in which he has a right to recover, and afterwards agree with the defendant to receive a specific sum at a future day as a compensation, and the party fail to pay it, the executor in that cape, is liable on a devastavit for the value(A,'). Thus, where the executor of an obligee took in payment a bill of exchange drawn on a banker for the money, who accepted the bill, and before payment, failed; on the executor's afterwards bringing an action on the bond, and this matter being disclosed ia evidence, it was held to be a payment(/). So, if an [426] 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(m). Such acts also of negligence and careless administration as tend to defeat the rights of creditors, or legatees, fall under the same denomi- nation. As if the executor delay the payment 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 as- sets were insufficient to discharge the debt immediately(7i), he shall be held guilty of a devastavit. If the executor lose any of the testator's chattels, he shall be re- sponsible for their value(o). And in a case where the executor had lost a bond due to the testator, the Court of Chancery was inclined to charge him with the debt: but directed only that he should prose- cute 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(^). If the executor 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 amount of it(^). He shall in like manner, [427] be personally answerable, if, by delaying to commence an action, he has enabled a creditor of a testator to avail himself of the statute of limitations(r). If an executor appoint an agent to collect the testator's effects, and the agent embezzle them, it shall be a devastavit by the executor(5). If a term be assigned by an executor in trust, to attend an inherit- ance, it shall in equity follow all the estates created out of such in- heritance, and all the incumbrances, subsisting upon it(/); but as by such assignment the term ceases to be assets at law, the executor shall (_;■) Goring v. Goring, Yelv. 10. and see Ilall v. Hallet, 1 Cox's Rep. Norden V. Levit, 2 Lev.'l89. Keilw. 134. 52. (o) Vid. Goodfellow v. Burchett, 2 • (/c) Norden v. Levit,'2 Lev. 189. 2 Vern. 2!)9. Jon. 88. S. C. Barker v. Talcot, 1 {p) ibid. Vern. 474. (y) 3 Bac. Abr. GO. Lowson v. (/) 3 Bac. Abr. 78, in note; et vid. Copoland, 2 ]}ro. Ch. Rep. 15G. 1 Vern. 474. (?•) ITayward v. Kinsoy, 12 Mod. (m) Winchcoinbc v. Bp. of Win- 573. 11 Vin. Abr. 30!>, Chester, Hob. 107. Noy, 12!). (.s) .K'ukins v. IMombe, C Mod. 93. (n) Seaman v. Everad, 2 licv. 40; (/) Suj)r. 410. 427 OF A DEVASTAVIT. [bOOK III. be responsible to the creditors for a dci'astnvit{ii). If an executor retain money in his hands for any length of time, which by applica- tion to the Court of Chancery, or by vesting in the funds, he might have made productive, he shall be charged with interest upon \i[w). If he permit rent to run in arrcar, and it is lost through his negli- gence, he will be charged with the amount so lost(.r). If he lay out the assets on private securities, all the benefit made thereby shall accrue to the estate, yet the executor shall answer all 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 bankers, mixing it with his own money, instead of vesting the same in stock as di- rected by the will, and the bankers failed, he was held liable to pay the money to the legatees(*). If an executor sell the testator's goods at an undervalue, although it be an appraised value(a); or if he delay disposing of them, by which they are injured, he is personally bound to make a compen- sation(i). If he omit to sell the goods at their full price, and after- wards they are taken out of his hands, he shall be liable to the [428] extent of the value of the goods, and not merely to what he recovers in damages; for there was a default on hispart(c). But if, without any imputation on him, the goods are taken out of his pos- session, although he recover not such damages as the good were really worth, he shall be responsible for no more than he recovers(^/). If the goods be perishable, and on his part there has been neither neglect in keeping them, nor delay in selling them; in case they are impaired, he shall not answer for their first value, but only for what they were worth at the time of the sale. Yet, if the goods be taken out of his possession, he must sue the party taking them, that he may exempt himself from any greater claim than the damages he shall recover(e). In case of an executor's investing money in the funds, and appro- priating the same, he shall not be answerable for a loss by the fall of stocks(/). Nor, as it seems, shall he be so liable, although, without the indemnity of a decree, he lend money on a real security, which at the time there was no reason to suspect(^). It has been held that (m) Charlton v. Lowe, 3 P. Wms. Rep. 73. 330. Willoughby v. Willoughby, 1 (a) Off. Ex. 158. Term Rep. 763. {h) Jenkins v. Plombe, 6 Mod. 181, {w) 2 Fonbl. 2d edit. 184, note p. 182. Bird V. Lockey, 2 Vern. 744. Perkins (c) Ibid. V. Baynton, 1 Bro. Ch. Rep. 375. {d) Ibid. Littlehales v. Gascoyne, 3 Bro. Ch. (e) Ibid. Rep. 73. Franklin v. Frith, 433, et (/) 2 Fonbl. 2d edit. 181, note p. vid. ibid. 107. Hutchinson v. Hammond, 3 Bro. Ch. (x) Tebbs v. Carpenter, 1 Madd. Rep. 147. Franklin v. Frith, ib. 433. Rep. 290. Vid, also Cooper v. Do»^las, 2 Bro. {y) Adye v. Feuilleteau, 1 Cox's Ch. Rep. 231. Rep. 24. {g) Brown v. Litton, 1 P. Wms. (z) Fletcher v. Walker, 3 Madd. 141. CHAP. IX.] OF A DEVASTAVIT. 428 trustees lending money on personal security, is not of itself such gross neglect as to amount to a breach of trust(A). But it has since been decided that an executor cannot lend money on personal se- curity, though words which may imply a discretion so to do are used by the testator in his will(e). Nor will a power to lend money upon real or personal security, enable trustees to accommodate a trader with a loan upon his bond(-t). An executor has an honest discretion to call in a debt bearing interest, if he conceive it to be in hazard(/). If an executor merely give a receipt [429] for so much due on a bond as he in fact receives, he shall not be charged with a devastavit for the residue(m). Nor is a conversion 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 li- able 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 creditor, and may equally be seized at his suit in execution in specie, as the testator's proper- ty(o). Nor, if the executor compound 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 (7?). But he shall be charged, as we have seen(5'), in case there be a failure in the payment 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 him 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(r). Nor is an executor, as we have seen(5), bound to plead the statute of limitations to an action commenced against him by a cre- ditor of the testator. If an executor become bankrupt, having wasted the assets, the devastavit may be proved under the commisslon(^). Where a spe- cific legacy was given to an executor, who afterwards became bank- rupt and committed a devastavit, and the subject of the specific bequest was sold by his assignees, it was held, that the produce in their hands was not specifically liable to make good the devastavit, in favour of the parties beneficially entitled under the will, but that such parties were only entitled to prove under the commission to the amount of the devastavit{u). [430] If the husband of an executrix commit a devastavit, in (A) Harden v. Parsons, 1 Eden's (n) Merchant v. Driver, 1 Saund. Rep. 145. 307. Vid. supr. 238. («■) Wilkes V. Steward, Coop. Rep. (0) Wheatly v. Lane, 1 Saund. 218. 6, and 2 Cox's Rep. 1. {p) Norden v. Levit, 2 Lev. 189. (A) Langston v. OUivant, Coop. (S. C. Ventr. 314. Mod. Ca. 126. S. C.Ld. Raym. 175. Oil'. Ex. 65. 971. 1502. Vid. Erving v. Peters, 3 (1) Watson, Mm. v. JilaTie, Ex. 12 Serg. & Rawlc, 131. 432 OF REMEDIES FOR [bOOK III. thet estator was entitled to an action of covenant for such breach, and to recover damages as to the principal remedy, and not merely ac- cessary, 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 executor have it, for he has no [433] right to recover the place wasted, the inheritance of which has descended to the heir(z). The executor may also, in the right of the testator, maintain an action on simple contracts, in writing, or not in writing, either ex- press or implied (^'); and even on contracts for the benefit of a third person(/). He may likewise have an action for a relief due to the testator(w). And pursuant to the stat. 13 Ed. 1. West. 2, c. 23,(1) an executor is entitled to an action of account on account witli his. testator(/i); but this species of remedy in the courts of law has fallen into disuse. He may also, by the express provision of the stat. 4 Ed. 3. c. 7,(2) have an action of trespass for the taking of the tes- tator's goods: and although the statute speaks 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(o), to comprehend other injuries to the testa- tor's personal estate(/j): therefore on this statute, an action will lie for trespass with cattle on his leasehold premises(^); or for cutting corn, though growing on his freehold lands, and carrying it away at the same time(r). So by the like equity of this statute [434] an ex- ecutor may maintain an action of trover for the conversion of the testator's goods in his lifetime(5);(3) or an action of debt on the stat. 2 & 3 Ed. 6. c. 13, for not setting out tithes due to the testa- tor(/); or a qicare impedit, in case he died within six months after (t) Off. Ex. 65. Com. Dig. Wast. (r) Emerson v. Emerson, 1 Ventr. C. 3. 2 Inst. 305. 187. (Ji) Com. Dig. Admon. B. 13. 3 (s) Harris v. Vandridge, Moore, Bac. Abr. 59. 92. Petrie v. Hannay, 400, Countess of Rutland v. Rutland, 3 Term Rep. 660. Cro. Eliz. 377. Latch 168. 1 Anders. (/) Al. 1. 242. Russell's case, 1 Leon, 193, 194. (m) Noy. 43. Ld. St. John v. Morercn's case, 1 Ventr. 30. Brandring, Cro. Eliz. 883. (/) Holl v. Bradford, 1 Sid. 88. (n) Com. Dig. Admon. B. 13. Morton v. Hopkins, 407. Williams (0) Supr. 158. V. Cary, 4 Mod. 404. Eaves v. Mo- (jo) Com. Dig. Admon. B. 13. cato, 1 Salk. 314. Moreron's case, 1 Semb. Latch. 168. Ventr. 30. 3 Bac. Abr. 91, in note, (y) Off. Ex. 67, 68. (1) In force in Pennsylvania, 3 Binn. 604. Roberts'" Dig. 14. (2) In force in Pennsylvania, 3 Binn. 610. Roberts' pig. 248. (3) See 2 Johns. Rep. 229. Kirby v. Clark, 1 Root. 389. Toivle v. Lovett, 6 Maiss. Rep. 394. And the statute of limitations is no bar in an action of trover, where the con- version of the property of a deceased person was before letters of administration were granted to the plaintiff, but at a time when there was no person to assert the rights of the creditors and legatees of the deceased — the statute begins to operate only from the time a right to demand the property vests in some one. HasletVs Adm. v. Glenn, 7 Harr. 8c Johns. Rep. 17. Fishiuick's Adm. v. Sewell, 4 Harr. h Johns. 393. CHAP. X.] EXECUTORS AT LAW. 434 the usurpation (w); and, it seems, that under this statute an executor may maintain ejectment for an ouster of the testator, although he were seised in fee, because in such case the executor may pro- ceed in that form of action for damages only(i^), in the same manner as a lessee where the lease expires pending the suit(a:). By the common law an executor is entitled to an action of re- plevin for goods distrained in the testator's lifetime(y); or to an action of detinue for any specific chattel; or to bring ejectment to recover land held for a term of years; for in those instances the thing itself is the object of the action, and the property continues in the plaintiff(~). [435] He may likewise avow for rent in arrear at the testator's death, as incident to a reversion for years, which devolved upon him as executor(a). An executor shall also have an action against a sheriff for the es- cape of a party in execution on a judgment obtained by the testator, even where the escape happened in the testator's lifetime(6),(l) So he may have an action against the sheriff for not returning his writ, and paying money levied on a fieri facias{c),(2) or for a false re- turn, stating that he had not levied the debt, when in truth he had(c^). So the executor of a landlord may maintain an action against an officer for removing goods taken in execution before the payment of a year's rent(e). So in the character of an executor he may have a writ of error(/"). 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; 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 not by [436] the attain- (u) Off. Ex. 66, 67. Sav. 94. Latch. Salk. 302. 307. Duncombe v. Wal- 168. Noy. 87. Poph. 189, 4 Leon, ter, 2 Show. 254. 15. (b) Cora. D\g. Admon. B. 13. (ty) 3 Bac. Abr. 92. Moreron's case, Spurstow v. Prince, Cro. Car. 297. 1 Ventr. 30. Doe v. Potter, 3 Term Dyer, 322. Vid. Berwick v. Andrews, Rep. 13. Ld. Raym. 973. (x) Doe V. Potter, 3 Term Rep. 16, (c) 1 Roll. Abr. 913, Spurstow v. argdo. Co. Litt, 285, Slra, 1056, Prince, Cro. Car. 297. (y) Arundell v, Trevill, 1 Sid, 82, (); for, in all these instances, it is necessary for him to sue in his repre- sentative character, and expressly to name himself executor. But if he reside abroad and commence an action, the court will require him to give security for costs, although he sue in the capacity of ■ executor(^). Where a plaintifisued as executor and was nonsuited, upon evidence given at the trial that the supposed testator was still alive: the Court of King's Bench refused to allow costs to the de- fendant, it appearing from affidavits on both sides to be still at least doubtful whether the supposed testator were living or not(r). But if he may bring the action in his private capacity, there, if he fail, he shall be liable to costs; as in an action for trover and conversion subsequent to the testator's death(.s): [440] Or if he bring an action for money belonging to the testator's estate, had and received by the defendant after the death of the testator(/) : Or if he bring an action (Ji) 1 Cromp. Prac. 40. Walrond 528. Portman v. Cane, 2 Ld. Raym. V. Fransham, Sitra. 1219. 1413. S. C. Stra. 682. Vid. Cock- (i) Rowney v. Dean, 1 Price Rep. erill v. Kynaston, 4 Terra Rep. 278. 402. {p) Gale v. Till, 3 Lev. 375. Vid. (A) 2 Bae. Abr. 46. 3Bac. Abr. 100. Cockerill v. Kynaston, 4 Term Rep. Cro. Jac. 228. Anon. Yelv. 168. 1 280. Roll. Rep. 63. Gale v. Till, Garth. {q) Chevalier v. Finnis, 3 Moore's 281. S. C. 4 Mod. 244. S. C. 3 Lev. Rep. 602. 375. Skinn. 400. Portman v. Came, (r) Zachariah v. Page, 1 Barn, and Stra. 682. 3 Bl. Com. 400. Tidd's Aid. 386. Practice, B. R. 894. Fetherston v. (s) 3 Bac. Abr. 100. Savil. 134. AUybon, Cro. Eliz. 503. 2Bulst. 261. Latch. 220. Anon. 1 Ventr. 92. Hutt. Jenkins V. Plumbe, 1 Salk. 207. Eaves 78. Salk. 3,4. Bollard v. Spencer, v. Mocato, ib. 314. Hawes v. Saun- 7 Term Rep. 358. Vid. Cockerill v. ders, 3 Burr. 1586. Say. Costs. 97. Kynaston, 4 Term Rep. 279. Hollis (/) Cockerill v. Kynaston, 4 Term v. Smith, 10 East. 293. Rep. 277. (0 Goldthwayte v. Petrie, 5 Term (m) Ibid. Rep. 234. Vid. also Smith v. Barrow, (n) Ibid. 2 Term Rep. 477. (o) Anon, 1 Ventf* 92. 1 H. BI. CHAP. X.] EXECUTORS AT LAW. 440 on a bond executed to him by the defendant, for securing a debt due to the testator by simple contract(i^): Or if he fail by his own mispleading(2i'): Or if he bring a writ of error where he was liable to costs in the original action(a^):(l) In all these cases the cause of action accrues to him personally; and, therefore, like every other plaintiff, he shall be subject to costs. Nor shall he be exempt by naming himself executor in an action, when there is no necessity to do so: otherwise he may in all cases indiscriminately evade the pay- ment of costs(;y). If in an action at the suit of the executor, the de- fendant pay money into court, the effect of it will not be to make the plaintiff liable to pay, but only to lose his costs, in case he pro- ceed, and fail to recover a farther sum(z). An executor is subject to costs on a judgment of non p7'Os[a).{2) And where he has knoivingly hvou^t a wrong action, or otherwise been guilty of a wdlful default, he shall pay costs on a discontinu- ance(6): or for not proceeding to trial according to notice(c);(3) but generally he is not liable to costs in either of those two cases(^).(4) [441] Nor -where he sues merely in aider 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 done by the deceased before the commence- ment of an action: for the stat. 2 Geo. 2. c. 23, § 23, is confined to ac- tions brought by the attorney himself, and extends not to his personal representative(/'). And the Court of Common Pleas will not suffer such a bill to be taxed(,§-). But in the Court of King's Bench the (w) Vid. Cockerill v. Kynaston, 4 Jones, 3 Burr. 1151. S. C. iBI.Rep. Term Rep. 280. 451. (t«) Higgsv. Warry, 6T. Rep. 654. (c) Ca. Prac. C. B. 158. Hawes v. (x) 1 H. Bl. Rep. 566. Saunders, 3 Burr. 1585. 1 H. Bl. 217. («/) 3 Bac. Abr. 100. Jones v. {d) Baynham v. Matthews, 2 Stni. Wilson, 11 Mod. 256. Vid. Cockerill 871. Barnes, 133. Bennet v. Coker, V. Kynaston, 4 Term Rep. 280. 4 Burr. 1927. Say. Costs, 96, 97. (z) 3 Bac. Abr. 100. Gregg's case, (e) Tidd's Prac. B. R. 694. Bennet 2 Salk. 596. Cruchfield v. Scott, 2 v. Coker, 4 Burn. 1928. Barnes, 130. Stra. 796. Booth v. Holt, 2 H. Bl. 277. (a) Tidd's Prac. B. R. 379, 380. (/) Tidd's Prac. B. R.919. 1 Bar- 895. Ca. Pr. C. B. 14. 157, 158. nard. K. B. 433. Andr. 276. Ca. Hawes v. Saunders, 3 Burr. 1584. Prac. C. B. 58. Hio-o-s V. Warry, 6 Term Rep. 654. (g) Tidd's Prac. B. R. 919. Barnes, (T) Tidd's Prac. B. R. 606, 607. 119. 122. 895. Ca. Pr. C. B. 79. Harris v. (1) An executor or administrator is liable for costs in error only in cases where he would be subject to costs in the court below. Gleason v. Clark, Adm. 1 Wend. llep. .'503. (2) Rudd et al. Ex. v. Long, 4 Johns. Rep. 190, 'id edit.; and the reporter's note. Con- tra, Fiink V. Luyten, VanderoWs Ex. v. iVMlner, 2 Bay, IGC. 3'J'J. (3) Per Curiam, 2 Bay, 400. Broimi, Ex. v. Lambert, 10 Jolms. Rep. 148. So also in the case of a scire facias to revive a jud};ment obtained by tiie testator, an executor is liable to tlie costs of a non pros for not proceeding to trial, llogcboom, Ex. v. Clark, 17 Johns. Rep. 268. So also the costs of an unsupported action. Jlardij v. Call, 10 Mass. Rep. 530. (4) J^Iusser, Jldm. v. Good, 1 1 Scrg. k Rawle, '247. 38 441 OF REMEDIES FOR [iJOOK III. practice is different; for tlierc tlie bill may he referred to be taxed, on the defendant's undertaking to pay what is duc(/i). Yet where an attorney delivered his bill, and ai'ter 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 solicitor 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 plaintiffdies after final judgment, and before execution, [442] his executor or administrator shall sue execution by scir-e fa- cias{k).{\ ) If after a fieri facias sued out the plaintiff die, the she- riff 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 remain there until administration be committed, when the administrator, on producing the grant, shall re- ceive it(/). So if under ii feri facias the goods are seized, and the plaintiff die before sale, and then the goods are sold, the executor or administrator shall have the money; nor shall it be a sufficient return to state that the plaintiff is dead, for that is no abatement of the writ(wz).(2) At common law the death of the plaintiff at any time before final judgment abated the suit; but by stat. 17 Car. 2. c. 8,(3) if either party die between verdict and judgment, his death shall not be al- leged for error, so as the judgment be entered within two terms after the verdict(?i). 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 [443] case is within the act, for being remedial it shall be construed liberally (o). The judgment on this statute is entered as if the party were alive(/?), and it must be entered, or at least signed(§'), within {h) Tidd's Prac. B. R. 919. Gregg's (m) Clerk v. Withers, 6 Mod. 297. case, 1 Salk. 89. Weston v. Poole, 2 Cleve v. Vere, Cro. Car. 459. Harri- Stra. 1056. Say. Costs. 321, 325. son v. Bowden, 1 Sid. 29. 2 Lord Imp. K. B. 482. Raym. 1073. (0 Tidd's Prac. B. R. 919. Wil- (n) Tidd's Prac. B. R. 842. 1052, son V. Poole, 2 Stra. 1056. Say. 1053. Costs. 327. (o) Tidd's Prac. B. R. 8 12. Anon. {k) Conn. Dig. Execution, E. 2 1 Salk. 8; and vid. 2 Ld. Raym. 1415, Inst. 295. See Tidd's Prac. B. R. 1056, in note. Jacobs v. Miniconi, 7 Term (Z) Clerk V. Withers, 6 Mod. 297. Rep. 31. Noy, 73. Dyer, 76 b. Tidd's Prac. (/;) Weston v. James, Salk. 42. B. R. 932, 933. (ry) 1 Sid. 385. Barnes, 261. (1) In Pennsylvania, on the death of the plaintiff after judgment, and the suggestion thereof on the record, his executor or administrator may issue execution without scire facias. Deiser, Adm. v. Sterling, \Q Serg. & Kawle, 119. (2) In Pennsylvania, it is the universal practice to issue a venditioni exponas after ex- ecution levied on land, though both parties, plaintiff and defendants, are dead, without calling in tlieir representatives. Kriderx. Dcklune, Sup. Court, Dec, Term, 18iU, sta- ted 13 Serg. 8c Rawle, 147. (.3) In force in Pennsylvania, o Binn. 624. Roberts' Dig. 39. CHAP. X.] EXECUTORS AT LAW. 443 two terms after the verdict. But there must be a scire facias to revive it, before execution can be taken out(?*); and such scire facias, pursuing the form of the judgment, should be general, as on a judg- ment recovered by or against the party himself(5). By a subsequent statute(^) if the plaintitf die after interlocutory, and before the final judgment, the action shall not abate, if such action might originally have been sued by his executor or administrator; but the executor or administrator may have a scire facias ^'goCm'S.iihQ defendant; oi', if he die after such interlocutory judgment, against his executor or administrator. And if the defendant, his executor, or administrator, appear, and show no cause to arrest the final judgment, or on a scire facias or two nihils, 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 administrator. This statute has been held not to extend to cases where the party dies before interlocutory judgment, although it be after the expiration of the rule to plead(w). Where either party dies after interlocutory judgment, and before the execution of the writ of inquiry, the scire Jacias on this statute [444] ought to be for the defendant, or his executor or administrator, to show cause why the damages should not be assessed, and recovered against him(i'), and to hear the judgment of the court thereupon('io). But where the death happens after the writ of inquiry 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 plaintiflf or his executor or administrator(.r). 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(y). And where the defendant dies after interlocutory and before final judgment, two writs of scii^e facias must be sued out, before he can have an execution; one before the final judgment is signed, in order to make the executor or administrator a party to the record: the other after final judgment is signed, in order to give him an opportunity of pleading no assets, or any other matter of de- fence; for it were unreasonable that the situation of the executor or administrator should be worse, where the party deceased die before the final judgment was signed, than it would have been if his death had been subsequent(2'). Whether an executor of a deceased partner must or can join with [445] the survivor in an action for goods carried away, or money had and I'oceived in the testator's lifetime, I have already stated to have been a matter of some doubt; but it seems now settled that the ('/•) Karl V. Brown, 1 Wils. 302. (r) Lil. Kiitr. 617. (*) Colebeck v. Peck, 2Ld.Kuym. (w) iSniilli v. Harman,G Mod. 111. 1280. (x) Goltisvvortliy v. Soiitlieote, 1 (/) Stat. 8&'JW. 3. c. 11, e.G. Wils. 213; and vid. Executors of Vid. Com. Dig. Admon. (G.) and Wri^rUt v. Nutt, 1 Term Rc\>. 388. Hollingshuad's case, 1 P. Wms. 711. (y) Weston v. Jame.s, 1 Salk. ]-2. (u) Tidd's Prac. B. II. 1055. Wal- (:) Say. Uep. 2(Ui. \<>l> V. Irwin, 1 Wils. 315. 445 OF REMEDIES FOR [bOOK III. latter must sue alone, as the remedy survives, although there be no survivorship of the duty(«). Before the stat. 31 Geo. 3. c. S7, an infant of tlic age of seventeen was capable of taking out probnte, and therefore of maintaining an action as executor; but, during his minority, he was obliged to sue by guardian, or prochcin amy; and could not sue by attorney. But as, by this statute, probate shall not be granted to him till he 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(6). An executor named during the minority of another, has the same right to bring actions as an absolute executor (c.) [44G] As executors, in tlieir representation of the testator, make but one person, they must all join in the bringing of actions in his right(c?);(l) although some have omitted to prove the will, or have even refused before the ordinary(e). If an infant be co-executor with other persons of full age, he must, I apprehend, join with them in an action, and they shall all together sue by attorney; for such was the law before the statute with regard to an infant under the age of seventeen(y). If A. and B. be appointed executors, and A. refuse to join in such action, B. may commence the action in the names of them both; and then, on summoning A., there shall be judgment of severance; that is to say, that B. shall sue alone; or on A.'s default on the summons, there shall be the same judgment; and B. then may proceed in the action, and recover in his own name only: otherwise, a co-executor by collusion with the debtor might prevent his being sued for the debt(^).(2) By the death of the party severed, the writ shall not abate(A). Nor, if he live till judgment, can he sue out execution, because the recovery is in the name of the other executor alone(i). (a) Supr. 155, 156. 163. (/) 3 Bac. Abr. 618. 1 Roll. Abr. {b) Com. Dig. Admon. D. Off. Ex. 288. Cro. Eliz. 278. 2 Saund. Fox- 207, 208. wist v. Tremaine, 212, 213. S. C. 1 (c) Cora. Dig. Admon. F. Semb. Ventr. 102. S. C. 1 Sid.449. Coan Ofl: Ex. 215, 216. V. Bowles, Carth. 124. {d) 3 Bac. Abr. 32. Off. Ex. 42. (g) 3 Bac. Abr. 33. Pricev. Pack- 95.100. Godolph. 134. hurst, Cro. Car. 420. 2 Roll. Abr. 98. (e) Off. Ex. 42. Com. Dig. Abate- Off. Ex. 98, 99. meat, E. 13. Pleader, 2 D. 1. 9 Co. (/«) Anon. Cro. Eliz. 652. Co.Litt. 37. Swallow V. Emberson, i Lev. 161. 139. Vid supr. 41. 45. («) Off. Ex. 105. 106. (1) And one administrator cannot sue his co-administrator, on a bond executed by the latter to the intestate; uor will it enable him to sue if he assign the bond to a creditor of the intestate, and obtain from him a re-assignment to himself. Siino7i, Jidm. v. Albright, 12 Serg. k Rawle, 429. (2) If one of two co-executors direct an appeal, writ of error, or supersedeas, origi- nally granted to them both, to be dismissed, tlie other may proceed without him; and since both are before the court, awarder of severance may be made without a summons. Reno, Hi: V. Davis, 4 Hen k Munf, 388. CHAP. X.] EXECUTORS AT LAW. 447 [447] If a judgment be recovered hy two executors, and the one prays a capias, and the other a Jieri facias; it has been said the ca- jnas shall be awarded as most beneficial for the estate(A'). By the stat. 25 E. 3. c. 5,(1) the executor of an executor is put on the same footing, in regard to the bringing of actions, as an imme- diate 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 liable to all the trouble of an executorship without any of its priyileges(?n).(2) An administrator may, in right of his intestate, maintain actions in the same manner as an executor in right of his testator(?i). All special and limited administrators likewise may maintain ac- tions in right of their respective intestates. And, indeed, the prin- ciple on which the ordinary has the power of granting such adminis- trations, is, that there may be a person capable of recovering property belonging to the estate(o). [448] If an administrator durante, minoritate bring an action and recover, and then his administration determine by the executor's coming of age, such executor may have a scire facias on the judg- ment(7;). So if such administrator obtain judgment, he may bring a scire facias against the bail, nor can they object that the executor has at- tained the age of twenty-one years; for the recognizance is to the administrator himself by name(§'). But it seems to be a question whether in such case he or the executor shall sue out execution on the judgment(r). If there be several administrators, they must, like co-executors, all join in an action(5'). An administrator de bonis non, claiming, by title paramount, could not at common law have a scire facias, or otherwise proceed on a judgment recovered by an executor, or administrator(^).(3) But now if a judgment after verdict be recovered by an executor or (A-) 3 Bac.Abr. 33, in note. Foster Mascal, 1 Lev. 181. Coke v. Hodges, V. Jackson, Hob. 61. Vid. Hudson v. 1 Vern. 25. Hudson, 1 Atk. 460. (7) 3 Bac. Abr. 18. Eubrin v. (/) Vid. Off. Ex. 257. Godb. 262. Manpesson, 2 Lev. 37. \m) 2 Bl. Com. 507. Walker v. {r) lb. 2 Lev. 37. Woolaston, 2 P. Wms. 583;vid. supr. (s) Coin. Dig. Abatement, E. 14. 366. Pleader, 2 D. 10. {n) Com. Dig. Admon. B. 13. Off. (/) Com. Dig. Admon. G. Levetv. Ex. 259. Lewkenor, Moore 4. Yate v. Goth, (0) Walker v. Woolaston, 2 P. ib. 680. Cro. Jac. 4. 1 Roll. Abr. Wms. 576. 6 Co. 67 b. 890, Norgate v. Snape, Wm, Jones, {p) 3 Bac. Abr. 18. 1 Roll. Abr. 214. Snape v. Norgate, Cro. Car. 167. 888, 889. Cro. Car. 127. HaUon v. Tidd's Prac. B. R. 1057. (1) In force in Pennsylvania. 3 Binn. 611. Roberts' Di,;,'. 249. (2) Jjee V. Wright, 1 llawlc, 151. Nor can he be cited to account before tlie Register. Peefjle'i Jppeal, 15 Serg. k Rawle, 41. (3) Grout, JJdtn. v. Chamberlain, 4 Mass. Rep. Oil. act: 448 OP REMEDIES FOR [j?OOK III. administrator, in such case an administrator de bonis non is by stat. 17 Car. 2. c. 8,(1) entitled to sue a scire facias, and take outexecu- [•119] tion on such judgincnt.(2) If the executor or administrator die after suing out the writ of execution and before the return of it, the administrator de boJiis non is, by the equity of that act, permit- ted to perfect the execution thus commenced, for the right is de- volved upon him(t^).(3) And in such case, if the sheriff return a seizure of goods to the value, but that they remain in liis hands pro dcfectu C7nptorem, the administrator de bo?iis non may sue out a vendiiioni exponas, or distringas nuper vice comifcm[tv). If at the time of tbe executor's or administrator's death the money be levied, it shall be brought into court, and the administrator de bonis non, on producing the letters of administration, shall be entitled to receive it(a,'). But if an executor bring a scire facias on a judgment, or recognizance, and get judgment yiro ra/a. Jiell, Ex. v. J\'ewman, Jldm. 5 Herg. h liawle, 78. See Sperry''8 Estate, 1 Ashm. Rep. 347. In such a case in Soutli Carolina, co-partnership funds are first applicable to co-partnership debts, and private funds to private debts. Woddrop v. Ward, Ex. 3 Desaus. Rep. 203. Hall v. Jlall, 2 M'Coril's Cha. Rep. 302. 39 455 OF REMEDIES FOR [bOOK III. may maintain a bill in equity to restrain J. S. or his representatives from publishing them without the leave of the plaintifr(,ii-). If the executor find the affairs of the testator so complicated, as to render the administering of the estate unsafe, he may institute a suit against the creditors, for the purpose of liaving their several claims adjusted by the decree of the court(A.) But such bill will not entitle him to an injunction to restrain any creditor from proceeding against him at law: for that purpose, it is necessary that there be a suit and decree, by and on behalf of the creditors of the testator(2). A decree against him in such suit to account is, however, suffi- cient to ground such an application; and therefore, if after such de- cree a creditor of the testator proceed at law, the executor may [456] move that the creditor rnay be restrained from thus proceed- ing, and be directed to come in under the decree, and prove his debt before the master with the other creditors of the testator: but an af- fidavit by the executor, that he had paid all the assets into court, is in- dispensably necessary to support the motion, and such creditor shall be allowed the costs of his proceedings at law before actual notice of the decree(A^). If he proceed at law after such notice, he shall be sub- ject to the costs of the subsequent proceedings(/). If the creditor proceeding at law has recovered a judgment de bonis testatoris, the court will restrain him from taking out execution; but if he has ob- tained a verdict which will entitle him to a judgment de bonis pro- priis against the executor, the court will not restrain him from pro- ceeding at law(?w). However, in a later case, where after a decree for the administra- tion of assets, an executor pleaded a false plea to an action brought against him by a creditor of the testator, in order that he might have an opportunity to apply for an injunction to restrain the action, Sir J. Leach, V. C. granted the injunction, and said, he considered the law to be settled according to the doctrine laid down by Lord Mans- field in Harrison v. Beccles, cited in Irving v. Peters, 3 T. R. 688, that an executor who pleaded plenl. administravit, was liable only to the extent of assets of the testator come to his hands(w).(l) It is a general principle, that an executor shall have no allowance (g-) Thompson v. Stanhope, Ambl. William Grant, M. R. sitting for Lord 737. Eldon, C. and afterwards in the same (A) Com. Dig. Chancery, 3 G. 6. 2 term before Lord Eldon, C. See also Fonbl. 2d edit. 408, note (t). Bucele Kenyon v. Worthington, Dick. Rep. v. Atleo, 2 Vern. 67. C68. (i) 2 Fonbl. ibid. Rush v. Higgs, (m) Terrewest v. Featherby, 2 Meri. 4 Ves. jun. 638. Rep. 480, and Brook v. Skinner, in (A;) Gilpin v. Lady Southampton, note. 18 Ves. 469, and see Jackson v. Leaf, (n) Fielden v. Flelden, 1 Sim. & 1 Jac. & Walk. 229. Stu. 255, and see Dyer v. Kearsley, 2 (/) Potts V. Layton, Extx. Mich. Menv. 482, in note, and Lord v. T. 1802, at Westminster, before Sir Wormleighton, 1 Jacob, 148. (1) Siglar et al. J)dni. v. Jftiijivood, 8 Wheal. Hep. C75. CHAP. X.] EXECUTORS IN EQUITY. 456 in equity for his trouble in the execution of the trust reposed in him, unless directed by the will(n);(l) and least of all where a le- gacy is expressly left him as a recompence. Nor is the case altered by his renunciation of the executorship, and his afterwards assisting in it; nor although it appear that he has deserved more, and has benefitted the estate to the prejudice of his own affairs(o). And even where an executor in trust, who had no legacy, in a case in which the execution of the office was likely to be attended with trou- ble, at first declined, but afterwards agreed with the residuary lega- tee, in consideration of a hundred guineas, to act in the executorship; and on his dying before the execution of the trust was completed, [457] his executors filed a bill to be allowed that sum out of the trust money in their hands, the court refused the claim, observing, that independently of the executor's having died before the trust was executed, such bargains ought to be discouraged, as tending to dissi- pate the property(jo). But an executor in India of a party domi- ciled in that country, not having a legacy, was held, on passing his accounts in the Court of Chancery here, to be entitled to a commis- sion at the rate of five joer cent on receipts and payments, according (ji) 11 Vin. Abr. 433. Robinson v. (o) Robinson v. Pett, 3 P. Wms. Pett, 3 P. Wms. 251. Ellison v. 249. Airey, 1 Ves, 115. Scattergood v. (jo) Gould v. Fleetwood, Mich.1732, Harrison, Mosel. 128. Vid. Barwell at the Rolls, cited 3 P. Wms. 251, V. Parker, 1 Ves. 365. note {a). (1) In Pennsylvania, so far back as the testamentary law can be traced, executors have had a compensatioa for services (3 Binn. 560). The act of March 27th, 1713 (Purd. Dig. 610; 1 Dall. Laws, 98; 1 Sm. Laws, 81), establishing Orphans' Courts, provides that the Orphans' Court may "order__the payment of such reasonable fees for copies [of bonds, inventories, accounts, actings and proceedings whatsoever of guardians, trustees, tutors, executors and administrators] and for all other charges, trouble and attendance, which any officer, or other person, shall necessarily be put to in the execution of this act, as they shall think equitable and just." This act has always been construed as allowing com- missions to executors and administrators {Prevost v. Gratz, 3 Wash. C. C. Rep. 434), whose right to commissions is so well established, that they must release them in order to become witnesses. Anderson \. JVef, 11 Serg. & Rawle, 208. Gebhardv. SM7idle,\5 Serg. & Rawle, 235. Patton v. Mi, 7 Serg. & Rawle, 1 16. The amount of commissions is a matter in the discretion of the court [Pusey v. Clemson, 9 Serg. 8;; Rawle, 204), and the number of the executors does not make any difference in the rate: if tlieir ti-ouble be unequal, a share of the commissions ought to be assigned to each, proportioned to his trou- ble. Case of Walker's Estate, 9 Serg. & Rawle, 223. In Maryland, by statute, the commission to be allowed to an executor or administrator is submitted to the discretion of the Orphans' Court, and is not to be under five per cent nor exceeding'ten per cent on the amount of the inventory. JVichok v. Hodges, 1 Peters' S. C. Rep. 562. In New York, previous to the act of 15th April, 1817, an executor was not entitled to any compensation for his services: that act authorizes the Court of Chancery to make an allowance to executors and administrators for their services according to a fixed rat6, and to fix that rate; but does not authorize the court to make a siKxial allowance without re- gard to a fixed rate. M'Whorter v. Benson, 1 Hopk. Cha. Rep. 28. 7 Johns. Cha. Rep. page 266 of the Index. 457 OF REMEDIES AGAINST [bOOK III. to the practice in lnd\a.(q). So where, after goods were consigned to a factor, the principal died, having appointed him executor, and then the goods came to his hands, it was decreed that he should be allowed factorage and commission for them(r). If, however, an executor in India has a legacy for his trouble, he will not be entitled to commission, either on his receipts or payments as executor; nor will he be allowed in passing his accounts, after a series of years, to renounce his legacy, and charge commission on such receipts and payments(5). If two executors are plaintiffs in equity, and one of them is ex- communicated, the other may be severed, and the defendant shall answer him(^). One executor may sue his co-executor in equity(ti). In case of a suit by co-executors, the proceedings do not abate by the death of one of them(y). If a temporary executor prove the will, and afterwards his execu- [458]torship determine, the subsequent executor may maintain a suit without another probate(?fj). An administrator shall be relieved in chancery against a fraud to his administration: as if the grant be wrongfully obtained, and after- wards repealed on citation, an assignment of a term by the grantee in trust for himself shall be revoked, and avoided by the subsequent administrator(a:). If a bill be brought by an administrator durante minoritate, and pending the suit the executor come of age, he may continue the suit by a supplemental bill(y). In case an administration be determined by death, a bill of revivor by a subsequent administrator has been admitted (z). Sect. III. Of remedies at law against executors and administrators. I AM now, in the last place, to treat of the remedies against execu- [459]tors and administrators, or the means which the law prescribes to enforce the performance of their various duties. As representatives of the deceased they are answerable, whether expressly named or not, as far as they have assets, for all his debts, (7) Chetham v. Lord Audley, 4 Ves. {v) Hinde's Prac. in Chan. 47. jun. 72. Iw) Pract, Reg. 2d edit. 209. 1 Ch. (r) Scattergood v. Harrison, Mosel. Ca. 265. 128. (x) 2 Ch. Ca. 129. Com. Dig. (s) Freeman v. Fairlie, 3 Meri. Rep. Chan. 2 B. 1. 124. (3/) Mitf. 61. {{) Prac. Reg. in Chancery, 2d edit. (r) Mitf. 61, in note. Owen v. Cur- 209. zan, 2 Vera. 237. 2 Eq. Ca. Abr. (u) Ibid. Vid. 11 Vin. Abr. 363. 3,4. 365. 3 Bac. Abr. 32. CHAP. X.] EXECUTORS AT LAW. 459 covenants(l), and other contracts(a). An executor is thus liable for all debts due from the testator by judgment, statute, recognizance, obligation, or other debts by record or specialty(6). So an action of debt lies against the executor of a sheriff, on a judg- ment recovered against the testator, for an escape(c). So an action may be maintained against an executor on other infe- rior debts of record, as issues forfeited, fines imposed at the assizes, quarter sessions, by commissioners of sewers, or bankrupts, by stew- ards in leets, or the ]ike[d). He is also subject to an action on the testator's obligation: or on his covenant, as to pay rent(e), or to repair premises(y). An ex- ecutor may, likewise, be sued by the lord of the manor for a relief due from the testator(^). So an action lies against an executor on [460] simple contract of the testator, either in writing or by parol, either express or implied; as on bills of exchange and promissory notes, debt for rent on a parol lease(A), or assumpsit for money had and received by the testator 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(A;): or against the executor of a she- riff, who levied money on z. fieri facias^ and died before he paid it(/): or, as it seems, against an executor on a collateral promise by the testator(7/i), as where he promised to give A. a sum of money in consideration that he would marry B. In short, in all cases where the cause of action is money due, or a contract to be performed, gain or acquisition of the testator by the work and labour or property of another, or a promise of the testator, express or implied; the action survives against the executor. But where the cause of action is a tort, or arises ex delicto supposed to be by force and against the king's peace, there the action dies, as battery,(2) false imprisonment, trespass,(3) slander, nuisance,(4) di- (a) 3 Bac. Abr. 95. Off. Ex. 117. 553. 118. Cro. Car. 187. Morgan v. (^) Com. Dig. Adraon. B. 14. Noy, Greene, Jon. 223. Howse v. Web- 43, 44. ster, Yelv. 103. Dyer, 23. {K) Cora. Dig. Admon. B. 14. (i) Com. Dig. Admon. B. 14. Off. (0 9 Co. 89 b. 10 Co. 77 b. Cro. Ex.118. Car. 294. Plowd. 182. (c) Dyer, 322. {k) 9 Co. 87 b. \d) Cora. Dig. Admon. B. 14. Off. (/) Cora. Dig. Adraon. B. 14. 1 Ex. 118. Roll. Abr. 921. Jon. 430. Mar. 13. (e) Billinghurst v. Spearman, Salk. (to) Com. Dig. Admon. B. 14. 1 297. Sti. 387. 406. Com. Dig. Cove- Roll. Rep. 14. Cro. Jac. 404. 3 nant, C. 1. Bui. 2. G. Sti. 158. Ow. 56, 57. (/) Tilney v. Norris, Carth. 519. Palm. 329. Jon. 16. S. C. Salk. 309. S. C. Ld. Raym. (1) Harrison, Ex. v. Sampson, 2 Wash. Rep. 1.55. (2) Miller v. Umbelmwer, 10 Surg, k Rawlc, 31. (.3) Mchohon v. Elion, Adm. 1.3 Serg. k llawle, 415. (4) Hawkins v. Class, 1 Bibb's Rep. 246. 460 OF REMEDIES AGAINST [bOOK III. verting a watercourse, escape, or on a penal statute, and many other cases of the like kintl(w). [4(jl] 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 res- pect oi 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 substituted 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 el ar- mis, et contra jjacem, or where the plea must be, that the testator was not guilty, will lie against an executor.(l) On the face of the record the cause of action arises ex delicto, and all private criminal injuries, or wrongs, as well as all public crimes, are buried with tlie offender. But in most, if not in all the cases, 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 therefore an action will not lie against an executor; but assu7npsit, which is another action for the same cause, is maintainable. So if a man take a horse from another, and bring him back again, an action of trespass will not lie against the [462] executor, though it would have lain against the party him- self.(2) But an action for the use and hire of tlie horse will lie against the executor(o). 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 trees, he may be called upon to answer(7j). Nor will trover lie against an executor for a conversion by his testator;(3) for in that case the form of the plea is, that the testator was not guilty, 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 testator 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 expence 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 (n) Com. Dig. Adraon. B. 15. Off. (o) Hambly v. Trott, Cowp. 375. Ex. 127, 128. 3 JBl. Com. 302. Ham- {j)) lb. Cowp. 376. bly V. Trott, Cowp. 375. (1) JVicholson V. Elton, Adm. 13 Serg. & Rawle, 416. (2) Trespass for mesne profits of laiul recovered in ejectment lies against an executor in Virginia. Lee v. Cookers Ex. Gilm. Rep. 331. (3) Hench v. Meizer, Ex. 6 Serg. & Rawle, 272. CHAP. X.] EXECUTORS AT LAAV. 462 be assessed by a jury, and therefore the executor is not liable: But where, besides the crime, property is acquired which benefits the testator, an action for the value of the property shall survive against the representative(§').(l) The executor is also liable on contracts of the testator, although [463] the cause of action accrue not tiJl after his death: as on a bond which becomes due: or a note payable subsequently to thatevent(r). The liability of an executor to the payment of rent incurred after the testator's death, has been already considered(.s). In the cases which I have been enumerating, the executor shall be liable only to the amount of the assets(/).(2) The judgment against him is for the debt or damages, to be levied on the goods and chattels of the testator in the hands of the defendant, if he have so much thereof in his hands to be administered(?^). But there are cases in which he shall be personally responsible, de bonis 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 (a^).( 3) An executor may also make himself chargeable in his private capacity to the plaintiff's de- mands, by pleading a plea, the falsehood of which lies in his own knowledge, and which, if true, would be a perpetual bar to the ac- tion(y);(4) therefore if an executor plead ne ungues executor, that he never was executor(r), or plead a release made to himself («), and it is found against him; the judgment shall be in [464] the alterna- tive, de bonis testatoris, et si nan, de bonis propriis. An execu- {q) Ibid. Cowp. 376, 377. Abr. 77. Off. Ex. 157. 164. (r) Com. Dig. Pleader, 2 D. 2. {y) Off. Ex. 85. 3 Bac. Abr. 87. \s) Vid. supr. 278, et seq. 1 Roll. Abr. 93. Godolph. 98. 11 (0 9 Co. 88 b. Vin. Abr. 388. Howard v. Jemraet, (m) Vid. Tidd's Prac. B. R. 941, 1 Bl. Rep. 400. and infr. (=) 1 Roll. Abr. 930. 933. {x) Com. Dig. Admon.1. 3. 3 Bac. (a) Cro. Jac. 671, 672. (1) Latlimore v. Simmons, 13 Serg. & Rawle, 185. (2) Iti assumpsit against executors, founded upon their assumption as executors, on a consideration ejiistiiig in the lifetime of the testator, the declaration need not aver assets. Malin v. Bull, 13 Serg. &c Rawle, 441. (3) Wilson V. Long, 12 Serg. & Rawle, 58. But no contract arises upon a de^jastavit, which will suppose an action against the executor personally, nor is a devastavit a tres- pass within the meaning of the act of 22 March, 1814 (Puril. Dig. 4^0), giving jurisdic- tion to justices of the peace, in cases of trespass for injuries committed on real or per- sonal estate. Ibid. (4) Siglar v. HayTuood, 8 AAHieat. G75. The plea of plene admimstravit, tliough not sus- tained, is not necessarily a false plea within his own knowledge; an).(4) But if the plaintiff take judgment of assets infuturo on the plea oi plene administravit, and go to trial on the plea of 7ion assumpsit, he will be entitled to costs, if he obtain a verdict; and, therefore, in such case, unless the defendant have a good ground of defence on non asswmpsit, it is usual for him to move to withdraw his plea, which the court will permit him to do on pay- ment of costs(c). An executor defendant shall have costs in case of a judgment in his favour(fl?). [469] If the defendant die after final judgment, and before ex- ecution, the plaintiff shall sue out the same by sci7'e facias against the personal representatives(g). But a fieri facias, if tested before the defendant's death, although not delivered to the sheriflf till after {w) Mackenzie v. Mackenzie, 1 Noel v. Nelson, 2 Sauntl. 22G. S. C. Term Rep. 716. Sid. 448. {x) SBac.Abr. 100. Tidd's Prac. {b) Edwards v. Bethee, 1 Barn, B. R. 896. Plowd. 183. Hardr. 165. and Aid. 254. Cro. Eliz. 503. Hutt. 61). 79. Farrv. (c) Tidd's Prac. B. R. 896, 897. Newman, 4 Term Rep. 641. Bollard Dearne v. Grimp, 2 Bl. Rep. 1275. V. Spencer 7 Term Rep. 359. Hindsley v. Russel, 12 East, 232. (?/) Tidd's Prac. B.R. 81, 82. 896. {d) 3 Bac. Abr. 100. Howard v. Jemmet, 3 Burr. 1368. S. (e) Com. Dig. Execution, (F.) C. 1 Bl. Rep. 400. Pleader, 3 L. 7. Dy. 76 b. Tidd's (z) Tidd's Prac. B. R. 896. Imp. Prac. B. R. 1056. Heapy v. Parrts, 6 Prac. B. R. 428. Term Rep. 268. Bragner v. Laiig- (a) See Rast. Ent. 323. 8 Co. 134. mead, 7 Term Rep. 24. (1) Sifflarv. Haywood, 8 Wheat Rep. 675. As to wliat pleas are false pleas, see nn/e, 40.3, note (4). (2) Pope, Adm. v. Ddavan, etui. 1 Weird. Rep. C8. JVMorn v. Gnvdon, 1 Mui-pli. 103 (3) Ford\. Crane, Cow. Rep. 71. (4) Oustcrhout v. Ilardenbevgh, 19 .Johns. Rep. 200. 469 OF REMEDIES AGAINST [bOOK III. it, may, without a scire facias, be executed on his goods in the hands of his executor or administrator(y). (1) And, as we have scen(,i,'-), a ju(lp;mcnt signed at any time during the term, or the vacation next following, relates hack to the first day of the term, although the de- fendant died before the judgment was actually signed; and an execu- tion tested the first day of the term may be taken out upon it against the goods(A).(2) 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 intestate 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(A;). In such case the course is for the plaintiff to sue out a fiei^i facias de bonis testatoris, <5'C. et si non, de bonis propriis, according to the judgment(/), upon which the sheriff" [470] returns either mi/la boiia generally, or nulla bona, and a devastavit by the defendant(m). On the former return, the plain- tiff" must proceed by scire fieri inquiry(n), 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 satisfa- ciendum, or fieri facias de bonis propriis{o).{3) So, on a devas- tavit returned, a writ of elegit will lie against an executor or admin- istrator(/;). Of execution against an executor or administrator in case of the defendant's death before final judgment, I have already treated(5'). If the plaintiflf confess the plea of plenr. administravit, or plenl administravit pneter, there shall be judgment in his favour for the debt or damages, and costs to be levied as to the whole or in part, of the goods of the testator or intestate which shall afterwards come to the hands of the defendant to be administered. And such judgment is styled a judgment of assets cjuando 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 (/) Com. Dig. Execution, D. 2. F. (Z) Gibson v. Brook, Cro. Eliz. Semb. Anon. 2 Ventr. 218. R. Skin. 886. 257. (m) Thes. Brev. 116, 117. (g) Supr. 266. («) Lit. Ent. 664. (h) Bragner v. Langmead, 7 Term (o) Tidd's Prac. B. R. 942. Thes. Rep. 20. Brev. 46, 47. 122. 125. (0 Supr.463. (p) Tidd's Prac. B. R. 957. 1 lie) Tidd's Prac. B. R. 941. Farr Crompt. Prac. 346. 2 Leon. 188. V. Newman, 4 Term Rep. 648. Bol- (y) Supr. 443, 444. lard V. Spencer, 7 Term Rep. 359. (1) Leiper v. Levis, Advi. 15 Serg. & Rawle, 108. (2) Leiper v. Levis, Adm. 15 Serg. & Rawle, 108; but a judgment creditor obtains no priority over other judgment creditors by le>7ing under an execution so taken out. (.3) Sivearivgeii's Ex. v. Pciidleton^s 7ir, 4 Serg. k U:iwle, 3S9. CHAP. X.] EXECUTORS AT LAW. 470 facia!^, or bring an action of debt on the judgment suggesting a de- vastavit{r).[\) [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(5); but in consequence 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 continu- ance of his office(/). In an action against a married woman executrix, the husband must be joined(w). On a judgment against husband and wife executrix, if she survive, an action of debt does not lie suggesting a devastavit by the husband; for, although, in case she married after the testa- tor's death, she is answerable for the wasting by the husband(i^), yet she shall not be charged de bonis propriis for the costs recov- ered against him(a^). If there be several executors, they must all be sued(y), in case they have all administered. But such as have not administered may be omitted(2'): for although executors themselves must be conscious how many are named by the will, and must, as we have seen^ frame [472] their action accordingly, yet creditors and strangers are bound to take notice of such executors only as in fact execute the ofiice. If one only confess a judgment, it seems now settled that it shall not bind nor conclude the rest(«). If they plead distinct pleas, it is said that shall be received which is best for the estate, or most deci- sive of the question(6). Of co-executors, if some are of full age, and others infants, the action may be against them all; but the latter can- not appear with others by attorney, but must appear by guardian(c). (r) Tidd's Prac. B. R. 1033, 1039. (w) Vid. supr. 358, 359. 1041. 8 Co. 134; and vid. Dorchester {x) Com. Dig. Admon. I. 3. Horsy V. Webb, Cro. Car. 372. Sed. vid. v. Daniel, 2 Lev. 161. Noel v. Nelson, 2 Saund. 226. 1 Sid. {y) 3 Bac. Abr. 32. Off. Ex. 95. 448. Noel v. Nelson, 1 Lev. 286. (z) 3 Bac. Ab.33. Swallow v. Em- Noel V. Nelson, 1 Ventr. 94, 95. 2 berson, 1 Lev. 161. S. C. 1 Sid. 242. Keb. 606. 621. 631. 666. 671. Hob. (a) Off. Ex. 68. Vid. sup. 359, 360. 199. Gill V. Scrivens, 7 T. Rep. 29. {h) Off. Ex. 98. 3 Bac. Abr. 33. (s) 3 Bac. Abr. 9. 618. 1 Roll. Abr. Godolph. 136. Hudson v. Hudson, 1 287,288. Poph. 130. Cro. . lac. 420. Atk. 4G0; and vid. supr. 359, 360. Westcott v. Cotde, 1 Roll. Rep. 380. (c) 3 Bac. Abr. 13. 619. Smith v. (0 Vid. Off. Ex.215, 216. Smith, Yelv. 130. Styl. 318. Vid. (w) Cora. Dia. Admon. D. Off. Ex. Fitzgerald v. Villiers, 3 Mod. 236. 203. 207. 3 Bac. Abr. 9. Frescobaldi v. Kinaston, 2 Stra. 784. (I) In Pennsylvania, if the executor or administrator has no personal assets, lie may plead the want of assets ag;«inst an action by a creditor; and, if the jury find in his favour, no judgment can go against liim; but in such case the plaintift"may praj' judgment de ter- ris, he. and of assets quando acciderint, which is entered of course. IVUhou v. Jlurst^s Ex. 1 Peters' C. C. Ilep. 441 . The Pemmylvurua Jl^icuHurul, &c. JJank v. Slambaugli'x Adm. 13 Serg. fee Ilawle, 300, Mitore v. Ken; Ex. 10 Scrg. 'bi. Kawle, 348. 472 OP REMEDIES AGAINST [nOOK III. It is clearly settled, that one executor shall not he charged with the devastavit of his companion, and shall be liable only to the ex- tent 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 operate to tlie ])rejudice 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 de- mand(/). But if there be notice to one executor, and nothing more appears, he shall, it seems, be presumed to have communicated it to the other(^'-). [473] An executor of an executor shall, as I have already men- tioned, pursuant to the stat. 4 & 5 W. k. M. c. 24, s. 12, be charged on a devastavit committed by his testator, in the same manner as such testator would have been, if living(/<). But, although, as we have seen(/), an action of debt may be maintained by A. an execu- tor, suggesting a devastavit in the lifetime of his testator, on a judg- ment recovered 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(A^). It is not enough for the executor of an executor sued for breach of covenant made by the original testator, to plead plenl adniinistra- vit of all the goods and chattels of the original testator at the time of his death come to the hands of the defendant, &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(/). An executor de son tort is liable to the action of the lawful ex- ecutor or administrator, or to that of a creditor; and, in the latter case, may be charged as executor generally(77i).(l) If there be also {d) 2 Bac. Abr. 31. Off. Ex. 161, Bac. Abr. 99. Off. Ex. 259. Hol- 162. Godolph. 134. Hawkins v. Day, comb v. Petit, 3 Mod. 113. Beynon Ambl. 162. Shep. Touchs. 496. Lit- v. Gollins, 2 Bro. Ch. Rep. 324. Vid. tlehales v. Gascoyne, 3 Bro. Ch. Rep. supr. 430. 74. Supr. 430. (/) Supr. 431, 432. (f) Hargthorpe v. Milforth, Cro. (A:) Berwick v. Andrews, Salk, 314. Eliz. 318. S. C. Ld. Raym. 971. (/) Littlehales v. Gascoyne, Ambl. (/) Wells v. Fydell, 10 East, 815. 162. (m) Com. Dig. Admon. C. 1. (iO Ibid. Whitehall v. Squire, Carth. 104. Off. (A) Vid. Com. Dig. Admon. I. 3. 3 Ex. 177. 5 Co. 31. (1) Stockton V. Wilson, 3 Penns, Rep. 129. Ho-weWs Adm. v. Smth, 2 M'Cord's Rep. 517. On the death of a defendant in an action of debt, a summons may issue to an execu- tor de son tort (there being no legal executor or administrator of the deceased) to appear and defend the action. Where an executor de son tort, being summoned, appeared to an action of debt brought against the deceased, and confessed the action, and admitted tlie debt was due to tlie plaintift'. An auditor was then appointed to ascertain the sum for which judgment should be rendered, regard being had to the assets, &c. according to the CHAP. X.] EXECUTORS AT LAW. 473 a lawful executor, they may be joined in an action by a creditor or sued severally(w);(l) but it is otherwise if there be a lawful admin- istrator; he cannot be so joined with an executor de son tort{o). If a creditor take out administration, he may recover his debt against him who before the grant was executor/«^e son tort, as well as the goods of the intestate taken or converted previously to the same(jo).(2) 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 executor de son tort, though he act under the advice of another of the executors who has not proved the will(§'). [474] A party, as we have seen(r) may be an executor de son tort of a term, and is chargeable for waste committed by him on the de- mised premises(^). If an executor de 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 charged as another executor de honis j)Topriis{t) : but in general cases he is liable only to the amount of the assets which come to his hands(w). By the stat. 30 Car. 2. c. 7,(3) made perpetual by the stat. 4 & 5 W. & M. c. 24, above referred to, the executor of an executor in his own wrong is chargeable on a devastavit by his testator, in the same manner as such testator would have been if \\v'mg{w). 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 sta- tutes(ir). 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 7ninoritate continue in the possession [475] of the effects after the executor is come of age, he may be sued either by the executor or by a creditor(y). But if such administra- (ti) Off. Ex. 178. Lev. 35. Off. Ex. Suppl. 102. (o) Ibid. (0 Off. Ex. 157. (p) Com. Dig. Admon. C. 3. Sti. (w) Dyer, 166 b. note 11. 384. \w) Vid. Com. Dig. Admon. I. 3. (r/) Cottle V. Aldrich, 4 Mau. & Sel. \x) Com. Dig. Admon. I. 3. Andr. 175. 252. 3 Bac. Abr. 100, in note. (r) Supr. 38. {y) Com. Dig. Admon. F. 1 Sid. (s) Mayor of Norwich v. Jolinson,3 57. 1 Anders. 34. act of 1798, c/t. 101, sub-ch. 8, s. 9. The appointment of llic audilor was altei-wards stricken out by the court, and a judgment rendered on the confession of the executor de son tort, for the debt and costs, (k bonis tcstatoris, si non de bo?us propriis, us to cosls. Error being brought, the judgment was reversed. JVorfolk^s Ex. v. Gantl, 2 Harr. & Johns. 435. (1) Stockton V. Wilson, ."? Penns. Rep. 129. (2) Osboi-nc V. Moss, 7 Johns. Rep. ICO. (3) In force in Pennsylvania. 3 Biun. f)24. Jiobcrtj^ Dig. 2a8. 475 OF REMliMIES AGAINST [bOOK 111. tor administer in part, and deliver to the executor, on his coming of age, all the residue, he cannot be charged by a stranger(z). If be- fore the executor attain the age of twenty-one, the 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 resort against the executoi-, who is entitled to his remedy against the administra- tor(6). The executor of a deceased partner and the survivor cannot be jointly sued for a debt due from the partnership, because the former is to be charged de bonis testutoris, the latter de bonis propriis{c); but the creditor may proceed against either, who may claim from the other contribution. (1) But if the executors of a deceased partner continue his share of the partnership property in trade for the benefit of his infant daugh- ter, they are liable upon a bill drawn for the accommodation of the partnership, and paid in discharge of a partnership debt, although their names are not added to the iirm, but the trade is carried on by the other partners under the same firm as before, and the executors, when they divide the profit and loss of the trade, carry the same to the account of the infant, and take no part of the profits themselves(c^). By the stat 8 */in7i. 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 tenant's possession, continue at the time of the distress. In case a [47G] lessee die before the expiration of a term, and his executor continue in possession during the remainder and after the expiration of it, a distress may be taken for rent due for the whole term(/). (2) Brooking v. Jennings, 1 Mod. {d) Wiglitman v. Townroe and 174, 175. others, 1 Mau. & Sel. 412. (a) Latch. 160. (e) Vid. Com. Dig. Distress, A. 2. (i) 3 Bac. Abr. 14. Latch. 2G7. 3 Bl. Com. 11. 1 Anders. 34. 6 Co. 18 b. (/) Braithwaite v. Cooksey et al. (c) Hall V. Huffam, 2 Lev. 228. 1 H. Bl. Rep. 465. (1) WTiere one of two or more joint contractors dies, subsequently to making the con- tract, the survivors alone continue responsible at law, the personal representatives of the deceased partner being discharged from liability. G'ow on Partnership, 208, Am. edit. 1 Caines' Ca. 123. Kirby's Rep. 86, 87. If the executor or administrator therefore be sued, he may either plead the survivorship in bar, or give it in evidence under the general issue. Go'm, ibid. Burgwin v. Hostler^s Adm. Tayl. Rep. 124. S. C. Hayw. Rep. 104. In Pennsylvania, however, in order to reach the estate of a deceased partner, an action of as^impsit will be sustained against his executor, if the surviving partner be a certificated bankrupt before action brought; for tliere being no Court of Chancery in the state, a cre- ditor could not come at the fund wliich in equity is bound for his debt, unless such action were sustained; and in such a case a plea in abatement would be ill, for tlie defendant could not, by such plea, give the plaintiff another person liable to suit. Lan^ v, Keppele, Ex. 1 Binn. 123. CHAP. X.] EXECUTORS AT LAW. 476 An executor, it seems, is bound, provided he have assets, to main- tain an apprentice till the term is expired : for a distinction exists between a covenant to maintain, and a covenant to instruct an ap- prentice: The former is a lien on the executor, although not named, in respect of the assets; the latter is a judiciary trust annexed to the person of the master(^).(l) But justices of the peace have, gene- rally speaking, no authority to order an executor to maintain art ap- prentice, for such a jurisdiction would prevent his insisting by a plea of plenh administravit on a deficiency of assets as an exemption(A). By the custom of London, it is said, the executor is bound to put the apprentice to another master of the same trade(i). In respect to a parish apprentice, on whose binding no larger [477] sum than five pounds shall have been paid, some specific regu- lations 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 appren- tice 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 in- dentures of apprenticeship there shall be annexed to the covenant for maintenance 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 ot the master to main- tain the apprentice shall continue only for three calendar months after his death, within which period two justices of the peace where the master died shall, on the application of the widow of such master, or of any son, daughter, brother, or of any executor or administrator of the deceased, by indorsement on the indenture, direct the apprentice to serve another master for the remainder of his term. The statute also makes the same provisions for the death of any subsequent master. It then directs, that if no application be made to two jus- tices within the three months, or if on application they 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 appren- tice not living with or serving such original or subsequent master at [478] the time of his death. And lastly, it enacts, that if the origi- nal or any subsequent master, or the personal representative of such master, having assets during the three months, shall refuse or neglect to maintain and provide for such apprentice according to the form of {g) Com. Big. Justices of Peace, B. 12G6. Vid. supr. 152. 285. 57. 4 Bac. Abr. 579. 1 Burn. Just. (A) Pett v. Inhabitants of Wingfield, 82. 1 Const's Bott's P. L. 524. PI. Carth, 231. Rex v. Pctt, Show. 405. 745. Cro. Eliz. 553. Wadsworlhv. 1 8alk. G6. Gye, 1 Sid. 216. Rex v. Peck, 1 (/) Per Holt, C.J. S. C. 1 Salk. 66. Salk. 66. Baxter v. Burfield, Stra. (I) See, however, Tlie Common-wealthy. Kinff, 4Serg. fecltuwlc, IO'JjuikJ tlieieinarks of (jh. Justice Tilglimun ujton tlic cuscs contained in note (i^). 41 478 OF REMEDIES AGAINST [bOOK III. such covenant, two justices, on complaint of the apprentice, or the parish officer, 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 foreign at- tachment; and, therefore, if a plaint be entered in the court of the mayor or sheriti" of London against an executor or administrator, the plaintiff may attach money or goods belonging 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, al- though he be sued under that description, unless he be sued for a debt due from the deceased(/).(l) Nor shall there be an attachment for the debt of a testator of money or goods in the hands of the ex- ecutor, 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(m). Nor, if he take a bond for a debt due to the testator, can the money payable on the bond be attached(w). Nor if an executor recover damages in trespass for [479] the testator's goods, or on a covenant made with him, can there be an attachment of the damages(o). 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(7;). Nor can there be an attachment of a legacy; for creditors have an interest in it, and they are incapable of being warned(^). Sect. IV. Of remedies against executors and administrators in equity. An executor or administrator is also, in his representative charac- ter, liable to all equitable demands, with regard to personal property, that existed against the deceased at the time of his death. 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 administrator, [480] on the principle, that equity considers an executor as a trustee (A-) Com. Dig. Attachment, A. B. 3 (n) S. C. 1 Ventr. 113. Bac. Abr. 258. 1 Roll. Abr. 105. Vid. (o) Ibid. 112. Dy. 196 b. Fisher v. Lane, 3 Wils. (p) Horsam v. Target, 1 Ventr. 297. S. C. 2 Bl. Rep. 834. 112,113. S. C. 1 Lev. 306. (A Com.Dig. Attachment, D. Hod- (ry) 1 Ch. Ca. 257. 1 Roll. Abr. ges V. Cox, Cro. Eliz. 843. 551. 3 Bac. Abr. 259. Noy. 115. (m) Horsam v. Turget, 1 Ventr. 113. (a) Mitf. 63, 64. (1) la Pennsylvania a foreign attachment will not lie against executors. JSTCombe v. Bunch, Pringle v. Black's Ex. 2 Ball. Rep. 73. 97. CHAP. X.] EXECUTORS AT LAW. 480 for the legatee in respect to his legacy, and as trustee in certain cases for the next of kin of the undisposed surplus(6). It also regards the administrator as trustee for the parties in distribution(c). 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 distribution of an intestate's personal estate(^). And an ad- ministrator 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, where he has not pleaded or claimed the benefit of the statute of limitations(e). 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(/"); but not till he has denied assets by his plea to the action(^). An executor having admitted a large balance of personal estate 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 (A). And where an executor admitted a balance due from him to his testator upon an unsettled account, notwithstanding Ije by his answer stated there were debts owing from the estate to which he was liable to the extent of assets, including that balance, the testator hav- ing died three years before, he was ordered 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 will, upon trust to lay out upon good and sufficient se- curity, 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 or- dered to pay the same into court; but the motion asking in the alter- native, 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 (A^). And an executor, by the schedule to his answer, acknowledging that he had received the testator's property, and lent it on a promis- sory note, was ordered to pay the money into court(/). An executor may be also called upon in equity to account for (i) 4 Bac. Abr. 447. Anon. 1 Atk. 132. 491. Farrington v. Knightley, 1 P. (/) Com. Dig. Chancery, 2 G. 3. Wms. 544. Wind v. Jekyl, ib. 575. (.i,--) Il)id. 3 B. 2. Prac. Reg. 2d edit. 209. (h) Yare v. Harrison, 2 Cox's Rep. (c) 2 Fonbl. 322. Matthews v. 377. Newby, 1 Vern. 133, 134. 2 Ch. Ca. (t) Mortlock v. Leathes, 2 Meriv. 95. Anon. 2 Ventr, 3G2. 2 Ch. R. 1G7. 491. (d) 1 P.Wins. 287. 2 Fonbl. 321. (k) Widdowson v. Duck, 2 Meriv. note (d). ibid. 322. Conn. Dig. Clian. 494. 3 D. 1. (/) Vigrass v. Binficld, 3 Madd. (e) Cockshutt v. Pollard, 1 W ils. Rep. G2. 480 OF REMEDIES AGAINST [bOOK III. interest he has made of Ihc testator's estatcfwz). And he may be charged with interest upon hahmces, though not prayed by tlic bill(72). And although the rule be not invariable, that an executor in 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 pur- poses of his trade, or even suJSer it to lie idle in his hands, he shall [481] be subject to the payment of intercst(o).(l) Ordinarily, tlie court on a bill filed for a legacy of stock, does not inquire, whether the stock legacy could have been invested at an earlier period; but where the executor is a trustee also, and retains the legacy without investing it, he is liable for any loss, occasioned by the non-invcstment(/?). And if an executor is directed to invest money in the funds, or to lay it out upon mortgage at 51. per cent interest, and he has from time to time balances in his hands, and neglects to do so, inquiries will be directed at the original hearing concerning the balances re- tained by him, and the prices of the funds at the times when such balances were in his hands(5'). 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 established in evidence that he used the property in his trade, the court takes it for granted that the trade produced 5/. 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 that interest which might have been made, yet that is not the principle on which the court acts. It has laid down a rule in regard to the quan- tum of interest, namely four^;er cent, from which it does not depart withoutsome special reason. And, mere negligence is not sufiicient to produce an exception: Consequently, if there be no evidence of the executor's having employed the fund, l)ut mere neglect to pay it, he cannot be charged with more than four jjer 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 four per cent: Al- though 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 (m) II Vin. Abr. 433, innote. Per- 294. Ashburnham v. Thompson, 13 kins V. Baynton, 1 Bro. Ch. Kep. 375. Ves. 402. (rt) Turner v. Turner, 1 Jac. and (/>) Byrchall v. Bradford, G Madd. Walk. Rep. 39. Rep. 13. (0) Newton v. Bennet, 1 Bro. Ch. (y) Hockley v. Bantock, 1 Russ. Rep. 359. Seers v. Hind, 1 Ves. jun. Rep. 141. (1) Case of FUnthani' a Appeal, 11 Serg. k Rawle, 16. Scheiffelin v. Stewart, 1 Johns. Cha. Rep. 620. CHAP. X.] EXECUTORS IN EQUITY. 481 should be held to be an employment in his trade(r). And Sir John Leach, V. C. in a subsequent case, charged an executor with interest at five per cent, who mixed his testator's money at his banker's with his own, receiving only an interest of three and a half pe?' cent, in- stead of laying it out for the benefit of the parties entitled (5). But although the court does not usually charge an executor with a greater rate of interest than four^^er cenf, 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 five ])er 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 five^er cent, on the ground of a general dere- liction of duty on his part; and though a small part of the money so called in carried only four and a half ^cr cent, that will make no dif- ference 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 continue so, he shall be personally liable to pay five(z/). And so if executors be directed to lay out the residue in the purchase of land, or upon heritable or per- sonal securities, at such rate of interest as they should think reason- able, and they lend the fund to one of themselves on bond at four percent, when fiwe per cent might have been made by heritable or government securities; the executor borrowing shall pay five per cent; for in contracting Avith himself he cannot spare himself(?;). If there be an express trust to make improvement of the testator's es- tate, and the executor will not honestly endeavour to improve it, he shall be considered as having lent the money to himself on the same terms 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 be 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 capable 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. But where a testator gave a legacy to his executor in full for his trouble in executing the 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 interest should accumulate for their benefit, and be laid out on the public funds for that purpose; and the executor kept the fund in his (r) Rocke v. Hart, 11 Ves. jun. 58. Crackclt v. Bctliune, 1 Jac. & Walk. Sutton V. Sharpe, 1 Russ. Rep. 14(j. Rep. OHO. (i) Harris V. Uocura, April 1818, MS. (u) Forbes v. Ross, 2 Br. Ch.R. 429 (<) Mcrley v. Ward, UVes. juu. 581. (??) Forbes v. Ross, 2 Cox's R. 113. d81 OF REMEDIES AGAINST [rOOK III. hands for a long period of time, without attempting any accumula- tion; he was held liable to interest at five 7;er ce?z/, on all the sums of money which came to his hands, from the time he received them re- spectively so long as they continued in his hands: and in taking the accounts the Master w^as ordered to make half-yearly rests, for the 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(;;).(l) Nor, in case the executor be expressly directed to improve the es- tate, shall he be permitted to redeem himself by accounting upon the supposition of the 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 the price be less than he sold at, it is not suf- ficient for him to offer back the stock, but he shall answer for the amount of the money for which he sold it out{q). 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 be charged with interest at the rate of five per cent, with rests(7'). But an executor shall not be charged with 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 h{s). Nor, if an executor compound debts due from the testator, or buy them in for less than their amount, shall he be personally entitled to the benefit of the composition: but other creditors, or the legatees, or the party entitled to the surplus, shall have the advantage of it(^).(2) Yet if an executor lend money on real security, which at that time there was no reason to suspect, and afterwards such security prove bad, he shall not be accountable for the loss, any more than he {p) Raphael V. Boehm, 11 Ves.jun. (s) Bruere v. Pemberton, 12 Ves. 92, and 13 Ves. jun. 407. jun. 386. (q) Ibid. 108. (/) 11 Vin. Abr. 433. Anon. 1 (r) Dorford v. Dorford, 12 Ves.jun. Salk 155, pi. 4. 127. (1) By the 17th and 18tii sections of the act of 29th March, 1832, " relating to Or- phan's Courts," (Pamph. Laws, 194), it is provided, that "no executors or administra- tor shall be liable to pay interest but for the surplusage of die estate remaining in his hands or power when his accounts are, or ought to be, settled and adjusted in the Regis- ter's office: Provided, that nothing herein contained shall be construed to exempt an ex- ecutor or administrator from liability to pay interest where he may have made use of the funds of his estate for his own purposes, previously to die time when his accounts are, or ought to be, settled as aforesaid." (Sect. 17.) " The amount of interest to be paid in all cases by executors, adminlsti-ators, or guardians, shall be determined by the Orphan's Court, imder all the circumstances of the case, but shall not, in any instance, exceed the legal rate of interest for the time being." (Sect. 18). See, for tlie doctrine in Pennsyl- vania in relation to interest in cases of executors and administrators, before the act of As- sembly, the case of The Matter of the Estate of Peter M'Call, 1 Ashm. Rep. 357, where the American cases, and the late English cases are cited. See also Merrick's Estate, 1 Ashm. Rep. 305. (2) Case of Ueager''s Executors, 15 Serg. is. Rawle, 05. CHAP. X.] EXECUTORS IN EQUITY. 481 would have been entitled to the produce of it if it had been suffi- cient(M). So where A. an executor, paid the assets into the hands of B., his co-executor, with whom the testator 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(t^). So, although, generally speajiing, if an executor compound or re- [482]lease 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(ar).(2) 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 ten- dency to a breach, the court would continue to confide in the same hand; for such a purpose it was necessary to show misconduct on the part of the executor, or his insolvency(y): Or, in the case of an executrix, that she had married a person in needy circumstances(r). 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 that 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 where it is vested(fl!). 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(6). [483] An executor is in general personally bound by an admission of assets express, or implied, as by the payment of interest: 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(c). Such admission is also waived by the plaintiff's proceeding to an account of assets, and procuring a receiver to be appointed((/). In case an executor be decreed to pay 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(/). If an executor have acted fraudulently, the court will decree costs against («) Brown v. Litton, 1 P. Wms. 141. v. Harris, 3 Bro. Ch. Rep. 365. Fer- 4 Burn. Eccl. L. 428. Supr. 428. rand v. Prentice, Ambl. 273. Prac. {w) 4 Burn. Eccl. L. 428, Church- Reg. 2d edit. 270. ill V. Lady Hobson, 1 P. Wms. 243. (6 )Slanning v. Style, 3 P. Wms. (z) 1 1 Vin. Abr. 432. Blue v. Mar- 335. shall, 3 P. Wms, 381, Vid, supr. 429. (c) Horsley v. Chaloner, 2 Ves. 85. (y) Slanning v. Style, 3 P. Wms. (d) Wall v. Bushby, 1 Bro, Ch, Rep. 336. 1 1 Vin. Abr. 42G, 427, 428. 432. 484. 3Bac. Abr.8, 1 Atk. 505, 3 Atk, 101. (c) Newton v. Bennet, 1 Bro. 11. (z) Rous V, Noble, 2 Vern. 249. 3G2. Rocke v. Hart, 11 Ves. jun. 58. (a) 4 Bac. Abr. 448. Green v. Pi- (/) Prac, Reg. 2d edit. 210. Seers got, 1 Bro, Ch, Rep, 103, Cooper v. v. Hind, 1 Ves, jun, 294. Sed vide Douglas, 2 Bro, Ch. Rep, 232. Strange Ashburnham v,Thonipson,13 Vos. 402, (1) l-'usc'i/ V. Clcmson, 9 Scrg. &. Kawlc, iiU4, 483 OF REMEDIES AGAINST [bOOK III. him(i}"), altliough the will direct that his expenses shall be allowed out of the testator's estate(A). 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 were merely a submission of the point for the opinion of the court(A'). [484] If two executors or administrators join in a receipt, one only of whom receives the money, equity has been stated to adopt this distinction, that in such case, each is liable for the whole(/) as to creditors, who are entitled to the full benefit of law, although one of such personal representatives might have given an efl'ectual dis- charge; but that with respect to legatees, or parties claiming distri- bution, as they have no legal remed)'^, one executor or administrator shall not be charged merely by joining in the receipt, wlien the other has received the money; for that the addition of his name is only matter of form, the substantial part is the act of receiving, and is alone regarded in conscience(7rt).(l ) But this distinction between legatees or parties in distribution, and creditors, appears to rest on no authority (^?,). The rule is general, that executors, joining in a receipt, shall all be answerable(o). It has, indeed, in some instances been broken in upon(;j), and Sir Richard P. Arden, M. R. denied it to be universally applicable((7). It seems an exception, if an ex- ecutor receive the money without the consent of his co-executor, and they afterwards sign the receipt(r), [485] for by that act they did not enable him to obtain the payment. So if one executor places the property in the hands of the other, who happens to be a banker, or in such a situation that the act is not improvident; he shall not be charged in case of a loss, for if he had been a sole ex- ecutor, and had under the same circumstances deposited the money with a banker, he would not have been liable(5). This, however, is clear from all the cases, that, where by any act done by one executor, anj^ part of the estate comes to the hands of (g-) Reech v. Kinnegal, 1 Ves. 126. Leigh v. Barry, 3 Atk. 584. Ex parte Horsley v. Chaloner, 2 Ves. 85. Belchier, Ambl. 219. Saddler v. (/;) Prac. Reg. 2d edit. 150, 151. Hobbs, 2 Bro. Ch. Rep. 116. Hathornthwaite V. Russel, 2 Atk. 126. (p) Churchill v. Hopson, 1 Salk. (t) Jeffries v. Harrison, 1 Atk. 468. 318. S. C. 1 P. Wms. 241. 1 P. (A-) Prac. Reg. 2d edit. 152. Rash- Wms. 83, note (1). ley V. Masters, 1 Ves. jun. 205. (y) Scurfield v. Howes, 3 Bro. Ch. (/) 3 Bac. Abr. 31. Rep. 94. (ot) Churchill v. Hopson, 1 Salk. (r) 1 P. Wms. 241, note 1. 83, note 318. S. C. 1 P. Wms. 241. 1 Eq. 1. Read v. Truelove, Ambl. 417. Ca. Abr. 398. Murrell v. Cox, 2 Vern. Sadler v. Hobbs, 2 Bro. Ch. Rep. 570. 114. Scurfield V. Howes, 3 Bro. Ch. («) Sadler v. Hobbs, 2 Bro. Ch. Rep. 90. Hovey v. Blakeman, 4 Ves. Rep. 117. 1 P. Wms. 243, in note. 3 jun. 596. Westley v. Clarke, 1 Eden's Bac. Abr. 31, in note. Rep. 357. (o) Fellowes V. Mitchell, 1 P. Wms. (s) Chambers v. Minchin, 7 Ves. 81. Aplyn v. Brewer, Prec. Ch. 173. jun. 197, 198. (1) Ace. Jlpptal ofBroxvn, Ex. of Edgar, 1 Dull. Rep. 311. CHAP. X.] EXECUTORS IN EQ,UITY. 485 his co-executor, the former will be answerable for the latter, in the 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, upon a representation that it was required for debts, and he wasted part of the produce, they were charged with the whole that they could not prove the application of to that purpose(w). Co-trustees are in this respect contradistinguished from co-execu- tors. In the case of co-trustees, as each hath not a power over the whole of the fund, their joining in a receipt is necessary, and, con- sequently, 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; there- fore, if he act without necessity, and join with his co-executor in such receipt, he shall in general be responsible for the consequences: He assumes a power over the property, and it shall [486] not be afterwards permitted to him to say, that he had no control over it(x). So, if executors confiding in the representation of their co- executor, that stock standing in the testator's name is wanting for the 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(y). In like manner, if an ex- ecutor has been dealing with the assets 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 inquiring, they satisfy themselves that there are debts unpaid, and his real purpose was to apply the fund in discharge of such debts, if it afterwards appear that he had in his hands another fund sufficient for the payment of thosfe debts, and such application of the fund was not necessary, nor was it in fact devoted to the pay- ment 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; too remiss in not inquiring how for so a longtime he had been acting in the administration of the assets(2^). But within a reasonable time, if executors, after the testator's death, join in a transfer of stock to their co-executor, on his repre- sentation, that it is requisite for the payment of debts: they are not responsible if they can prove he applied it to that purpose, al- though he had possessed, if not by their means, other part of the assets, which he had wasted(a). And though it be a settled rule, (0 1 P. Wms. 241, note 1. 3 Bro. jun. 323, 324. Ch. Rep. 97. Doyle v. Blake, 2 Scho. (,y) Lord Shipbrook v. Lord Hni- & Lef. 231. chiiibrook, 11 Ves jun. 252. 16 Ves. (M)Lord Shipbrook v. Lord Hin- 47H. chinbrook, 1« Ves. jun. 477. Under- (z) Lord Shipbrook v. Lord Hiu- wood V. Stevens, 1 Meri. Rep. 713. chinbrook, 11 Ves. jun. 254. (x) Chambers v. Minchin, 7 Ves. («) Ibid. 251. jun. 186. Brice v. Stokes, 11 Ves. 42 486 OF REMEDIES AGAINST [bOOK III. that if an executor contribute in any way to enable the other to obtain ])OSsession of the assets, he shall be answerable for their mis- application; yet the rule does not extend to those cases, in which an executor is merely passive, and does not obstruct the other in re- ceiving the property, for it is not incumbent upon one executor by force to prevent its getting into the hands of his co-executor(6). So a co-executor, who proved, but never acted, having received a bill by the post on account of the estate, and transmitted it im- mediately to the acting executor, was held not to be responsible for the administration of the property(c). So if A., interested in the fund, act in authorizing B., one executor, to part with it to C, his co- executor, and it be wasted, B. shall not be responsible to the extent of A.'s interest: But B. shall be responsible to the other parties, who may be interested in the fund, in case they did not acquiesce in his transferring it to C.(d). Although one executor admit assets, an account shall be decreed against his co-executor, who does not admit them(e). And where an infant legatee filed a bill for an account against two executors, al- though one of them in his answer denied having 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 bankruptcy. If the trade be beneficial, the profits are applicable to the purposes of the will, and the executor derives no personal benefit from the success of the trade. If the trade prove a losing concern, the execu- tor, on a failure of the assets, will be personally liable to the loss. [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 bankruptcy ;(1) the testator's creditors and legatees will have aright to prove demands for such of the assets as have been wasted by the executor in the trade, in proportion 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 by the assignment of the commissioners; the executor hold- ing them alie)io jure, they will not be liable to his bankruptcy(^). But the testator may by his will qualify the power of his execu- tor to carry on trade, and may limit it to a specific part of the as- (6) Langford v. Gascoigne, 11 Ves. Wall v. Bushby, 1 Bro. Ch. Rep. 488. jun. 383. (/) Price v. Vaughan, 2 Anstr. Rep. (c) Balchen v. Scott, 2 Ves. jun. 524. 678. (g) See Ex parte Garland, 10 Ves. (rf) Brice v. Stokes, 11 Ves. jun. jun. 110. Sup. 166, & Cooke's B. L. 319. 4th edit, 67; and Whitmarsli's B. L. (e) Com. Dig. Chancery (2 G. 3.) 2d edit. 268. Norton v. Turville, 2 P. Wms. 145. (I) Nor to any loss occasioned by such unauthorized trading. Ball v. Callaghaji's Adm. 1 Sersr. & Rawk% 241. CHAP. X.] EXECUTORS IN EQUITY. 487 sets, which he may sever from the general mass of his property for that purpose; and then, in the event of the bankruptcy of the execu- tor, the rest of the assets will not be affected by the commission, although the whole of the executor's private property will be subject to its operation(A). 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 bank- ruptcy. Thus, where the executor of a wine-cooper found it neces- [488] sary 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 executorship, nor does the commissioner's assignment affect the assets, except in regard to such beneficial interest as thebankrupt himself maybe entitled to. But, although a bankrupt executor may strictly be the proper hand to receive the assets, if his assignees be possessed of any part of the property, the Court of Chancery will, for the benefit of creditors and legatees, appoint a re- ceiver for the same; or will direct the bankrupt himself to be admit- ted a creditor for what he shall be indebted to the estate; nor is this practice incongruous, as he acts in auter droit. Yet to prevent em- bezzlement, the court, on such proof, will order the dividends to be paid into the bank, subject to the demands on the testator's estate(A). So where A., a bankrupt, and also B. claimed to be executors of a creditor of A,, and a suit was pending in the ecclesiastical court in re- gard to the executorship, the Lord Chancellor permitted B. to prove tlie debt [489] under the commission, and directed the dividends to be paid into the bank, to abide the event of the litigation(/). And where an executor, inconsequence of his bankruptcy, becomes destitute, and incapable of exercising his functions, and elects to relinquish his in- terest in the testator's property, the Court of Chancery will permit a creditor of the testator to file a bill for himself, and to call in the out- standing assets for the purpose of administering them(m). And a receiver has been appointed before answer upon an affidavit of mis- application and danger to the property in the hands of an executor, and the co-executors consenting to the order(w). An executor being out of the jurisdiction in Scotland, a receiver was appointed under the 36 Geo. 3. c. 90, but administration having been granted, a motion was made on the part of the administrator for an injunction to restrain the receiver froin acting. The Lord Chan- cellor referred it to the Master to reconsider the appointment of a (Ji) Ex parte Garland, 10 Ves. jun. parte Leek, 2Bro. Cli. Rep. 596. Vid. 110. also supr. 429, and Whitmarsh's B. L. m Cooke's B. L. 4th edit. C7, and 2d edit. 269. Whitmarsh's B. L. 2d edit. 16. (/) Ex parte Shakeshaft, 3 Bro. Ch. (A:) Cooke's B. L. 133, 134, 135. Rep. 198. 137. Stone, 131. Ex parte Ellis, 1 (/«) Burroughs v. Elton, 11 Ves. Atk. 101. Ex parte Butler, ib. 213. jun. 29. Butler V. Richardson, Ambl. 74. Ex (n) Middleton v. Dodswell, 13 Ves, parte Marklaiid, 2 P. Wins. 546. Ex 266. 489 REMEDIES AGAINST EXECUTORS [bOOK III. receiver, regard being had to the circumstance of administration hav- ing been granted(o). A writ of ne exeat regno against a feme covert administratrix, cannot be sustaincd(jy). Sect. V. Of remedies against executors and administrators in the Eccle- siastical Court. Legatees, and the next of kin, may proceed against the executor or administrator in the ecclesiastical court. That court has not only jurisdiction over the probate of wills, and the granting of adminis- trations, but has also, as incident to the same, authority to enforce the payment of legacies(a); and, according to the statute, the distri- bution of an intestate's eflrects.(l) In respect to legacies, the cogni- zance of them in former times belonged exclusively to that judicature. The Court of Chancery, till Lord Nottingham extended the system of equitable jurisprudence, administered no relief to legatees(Z>), In regard also to distribution, equity, as the act of parliament contains no negative words, has a concurrent jurisdiction with the ordinary, and in both cases as being armed with [490] larger powers, affords a more effectual relief(c). As a court of equity, and the spiritual court has in these points a concurrent jurisdiction, wliicliever of them has first possession of the cause has a right to proceed(^/).(2) But where it appears that the ordinary cannot administer complete justice, equity, without re- gard 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(e). So a (0) Faith V. Dunbar, Coop. Rep. 134. 200. {d) 4 Bac. 447. Toth. 114. Nicho- Ip) Pannel v. Tayler, 1 Turn. 96. las v. Nicholas, Prec. Ch. 548. (a) 4 Bac. Abr. 446. 3 Bl. Com. (e) Hill v. Turner, 1 Atk. 516. 98. .Tewson v. Moulson, 2 Atk, 420. Ni- (i) Deeks v. Strutt, 5 Term Rep. cholas v. Nicholas, Prec, Chan. 548. 692. See 1 P. Wms. 575. 2 Ves. jun, 67G. Meales v. Meales, 5 (c) Vid, 2 Fonbl. 2d edit, 414, note Ves. jun. 517, in note. Ses also 10 (d). Matthews v. Newby, 1 Vern. Ves. jun. 577, and supr. 321. (1) See an instance in which Gov. Bull (of South Carolina) in the year 1765, in his character of Ordinary, summoned an administrator, at the instance of the {guardians of the intestate's children, to account for his administration, and upon his non-compliance, pass- ed sentence of the greater excommunication against him. Grimke onExecutors, preface, page vii. (2) See 1 Hagg. Rep. 540. CHAP. X.] IN THE ECCLESIASTICAL COURT. 490 legacy given to an infant is more properly cognizable in equity, since that jurisdiction can alone secure the money for the child's benefit(y). The spiritual jurisdiction extends to legacies only of personal pro- perty; therefore, if land be devised to be sold for the payment of le- gacies, 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 [491] residue is undis- posed of; for then, as we have seen (A), the executor is a trustee for the residue, and the ordinary cannot compel a distribution of it, because he cannot enforce the execution of a trust(/). Nor has he a power to compel the debtor of an intestate to pay his debt into court, although such debtor be the person applying for a distribution, for that would be to hold a plea of debt; but in that case he may refuse to proceed to a distribution till the party shall bring it in(A'). So, it seems, that if a legatee take a bond from the executor for payment 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 becomes a debt recoverable in the tem- poral courts(/). In case a legatee or the next of kin elect to sue in the spiritual court, the executor or administrator must there exhibit an inventory of the property, if he has not done so before, and bring in an ac- count(m). Of the nature of an inventory 1 have already treated(w). It is to contain a full, true, and pefect schedule of the deceased's effects. [492] The account is to state in what manner they have been dis- posed of(o). Neither an executor nor an administrator can be cited by the ordi- nary ex officioio account(/;). The executor, we have seen, is bound by his oath to make an inventory of the personal 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 prove the difli'erent items of it(5r). The payment of sums under forty shillings shall be proved merely (/) Howell V. Waldron, 1 Vern. (/) Goodwyn v. Goodvvyn, Yelv. 38. 26. Anon. 1 Atk. 491. Luke v. Alderne, 2 Vern. 31. Sed {g) 4 Bac. Abr. 446. Dyer, 151. Dodderidge, J. contr. 2 Roll. Rep. Palm. 120. Cro. Jac. 279. 364. Cro. 160, Vid. Sadler v. Daniel, 10 Mod. 21. Car. 16. 2 Roll. Abr. 285. Bastard {m) 4 Burn. Eccl. L. 445. V. Stockweil, 2 Show. 50. (?/) Vid supr. 247, et scq. {h) Supr. 351. 479. {<,) (Ircerside v. Benson, 3 Atk. 252. (t) 2 Fonbl. 2d edit. 414, note (d) {p) Com. Dig. Admon. C. 3. Arch- ad lin. Petit V. Smith, 5 Mod. 247. bishop of Canterbury v. Wills, 1 Salk. Hatton V. Hatton, Stra. 865. Petit v. 315,316. Greerside v. Benson, 3 Atk. Smith, Ld. Raym. 86. Rex v. Itaiiies, 253. ib. 363. Farringtonv. Knightly, 1 J*. (y) Archbishop of (Canterbury v. Wms. 546, 547. 519. Wills, 1 Salk. 316. Vid. also Archbp. (J() Gierke v. Gierke, Ld. Raym. of Canterbury v. IJouse, Gowp. 141. 585. 492 REMEDIES AGAINST EXECUTORS [bOOK III. by his oatli, if there appear no fraud by dividing greater sums into less. Of the payment of sums to a higher amount vouchers must also be exhibited (r). The adverse party shall be at liberty to disprove such account. If it be false, the executor shall be liable to the pen- alties of perjury(.9). After the death of an executor sums under forty shillings shall not be allowed on the oath of his representative; for such payments can be substantiated only by him who made thcm(/). [493] In regard to the administrator, before the statute of distri- bution, 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 that statute the administrator, we may remember, enters into a bond with two or more sureties, conditioned for his exhibiting an inventory of the efibcts, and an account of the same, at the respective times specified. Tiierefore, 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 liable to be examined. If, however, a party in distribution, who is in the nature of legatee by statute, and therefore entitled to an ac- count, 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 cf an executor(w). Thus it appears that the stat. 1 Jac. 2. c. 17 (to), which provides that no administrator shall be cited according to the statute of dis- tributions to render an account of the personal estate of his intestate otherwise tlian by inventory, unless at the instance or prosecution of some person in behalf of a minor, or having a demand out of such personal estate, as a creditor, or next of kin, nor be compellable to account before the ordinary; had, in truth, no operation, as such was the law before(a.'). [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 conclu- sive 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 legatees, or next of kin in spe- cial,andall 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(2'). Although the spiritual court have, as incident to the jurisdiction of wills, the jurisdiction also of legacies; yet, if a temporal matter be pleaded in bar of an ecclesiastical claim, they must proceed ac- (?•) 4 Burn. Eccl. L. 427. Ought. (ib) Vid. 4 Burn. Eccl, L. 426. 347, 348. (x) Archbp. of Canterbury v. Wills, (s) 4 Burn. Eccl. L. 427. Ought. Salk. 315, 316. 34G. (.V) 4 Burn. Eccl. L. 426. Swinb. (/) 4 Burn. Eccl. L. 427. Ought, p. 6, s. 20. 347. {=) 4 Burn. Eccl. L. 426. Ought. (u) Archbp. of Canterbury v. Wills, 354, 355, 356. 1 Salk. 315,316. CHAP. X.] IN THE ECCLESIASTICAL COURT. 494 cording to the common lavv(«). Therefore, if payment be pleaded in bar of a legacy, and there be but one witness, whom the ecclesi- astical court will not admit, because their law requires two witnesses, a prohibition shall issue(6). But it is not a sufficient ground for a prohibition to suggest, that the plaintiff had onl}^ one witness to prove the fact, unless the party allege he offered such proof, and it was refused for insufficiency(c). If the spiritual court shall attempt a distribution contrary to the rules of the common law, it shall be prevented by a pi'ohibition, be- cause it is restricted by the statute of distribution to those rules(^). [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 above-mentioned have been cited, such sen- tence shall be final, and the executor or administrator shall be subject to no farther suit(e). In case there shall appear assets for the entire, or partial payment of the legacy, or for a distribution, the same shall be decreed accord- ingly. An executor or administrator is also bound to exhibit an account upon oath, at the promotion of a creditor; but a creditor is not per- mitted 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 fruitless, 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 spiritual court is to gain some insight into the state of the fund, previously to his proceeding in an action at common law; but a bill in equity for a discovery of the assets is the more usual, as it is the more effect- ual remedy(^). Yet a creditor, as well as the next of kin, has a right ex debito [496] justitix, to an assignment by the ordinary of the administra- tion bond, and to sue in the name of the ordinary, as well the sure- ties as the principal, showing for breach the administrator's not ex- hibiting a true inventory, or accoant(A).(l) But a creditor has no (a) 4 Bac. Abr. 447. 1 Roll. Abr. Davis, 1 P. Wms. 47. 49. 298, 299. Hob. 12. 12 Co. 65. Het- (c) Carth. 143, 144. ley, 87. 2 Inst. 608. Sid. 161. {d) Blackborough v. Davis, 1 P. (Jb) Bagnall v. Stokes, Cro. Eliz. 88. Wms. 49. 666. Shatter v. Friend, Show, 158. (e) 4 Burn. Eccl. L. 428. Swinb. 173. Richardson v. Disborow, Ventr. p. 6, s. 21. 291. Shatter v. Friend, 3 Mod. 283. (/) Vid. Noy. 78. Breedon v. Gill, 1 Ld. Raym. 220. (^) Vid. Supr. 479. 489, 490. Cooke v. Licence, 346. Startup v. (A) Greerside v. Benson, 3 Atk. 248. Dodderidge, 2 Ld. Raym. 1161. 1172. Archljp. of Canterbury v. House, 1211. Shatter v. Friend, 2 Salk. 547. Cowp. 140. Vid. 2 Fonbl. 414, 2d S. C. Carth. 142. Blackborough v. edit, note (d). (I) The presumption of satisfaction wliicli arises as to a bond, contlitioned for llic pay- ment of money, after llie lapse of twenty years, is equally applicable to an administration bond. Jl/'C'/ean v. Finley, '2 Penns. Rep. 97. 496 OF REMEDIES, &IC. [bOOK 111. right in such case to assign for breach the nonpayment of his debt, or a devastavit, for the words of the condition, "he is well and truly to administer," are construed to apply merely to the bringing in of a true inventory, and account, and not the payment of the in- testate's debts(/). An executor or administrator shall be allowed in the spiritual court all his reasonable expenses, the rule in respecf to which is, that he shall receive no profit, nor incur any loss(^). 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 execu- tor of his own wrong(wi). Legatees may file a bill in chancery for an account against the ex- ecutor, and at the same time, call upon him in the prerogative court to exhibit an inventory(?z). [497] So where a suit is pending in the ecclesiastical court in re- gard 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(o). And the court will protect the property by appointing a receiver(^). The ecclesiastical court cannot entertain a suit for proctors' fees, since they are a temporal duty, for which an action may be main- tained in the temporal courts((2). (j)4Burn.Eccl. L.428.430. Lutw. 49. Phipps v. Steward, 1 Atk. 285. 882. Archbp. of Canterbury v. Wills, 2 I3ro. P. C. 47G. Morgan v. Harris, 1 Salk. 315, 316. Com. Dig. Admon. 2 Bro. Ch. Rep. 121. C. 3. {p) Atkinson v. Henshaw, 2 Ves. {k) 4 Burn. Eccl. L. 428. Lind. 178. and Bea. 85. Ball v, Oliver, ib. 96. (/) 4 Burn. Eccl. L.428. Floy. 38. {q) 2 Burn. Eccl. L. 239. Cora. (m) 4 Bac. Abr. 448. 1 Roll. Abr. Dig. Prohibition (F. 5.) Pollard v. 919. Gerrard, Ld. Raym. 703. S. C. 1 (n)llVin. Abr. 427. 3 Chan.Rep. Salk. 333. Horton v. Wilson, 1 Mod. 72. 167. Johnson v. Lee, 5 Mod. 238. (o) Wright V. Bluck, 1 Vern. 106. Skin. 589. Bunb. 70. Pitts v. Evans, Dulwich College v. Johnson, 2 Vern. 2 Stra. 1108. Dougl. 629. APPENDIX OF STAMP DUTIES. By the Statute 55 Geo. 3. c. 184. the Stamp Duties imposed by the 48. Geo. 3. c. 149. the a Geo. 3. c. 98. and the 45 Geo. 3. c. 28. are repealed, and the follow- ing Stamp Duties are Imposed.- PROBATE of a Will, and Letters of Administration with a Will Dut)'. annexed, to be granted in England: ■ CONFIRMATION ofany Testament testamentary, or Eik thereto, L. s. d. to be expeded in any Commissary Court in Scotland, where the Deceased shall have died before or upon the 10th Day of Oc- tober 1808, and subsequent to the 10th Day of October, 1804; INVENTORY to be exhibited and recorded in any Commissary Court in Scotland, of the Estate and Effects ofany Person de- ceased, who shall have died after the 10th Day of October, 1808, and have left any Testament or testamentary Disposi- tion of his or her Personal or Moveable Estate and Effects, or any Part thereof; Where the Estate and Effects for or in respect of which such Probate, Letters of Administration, Confirmation or Eik re- spectively, shall be granted or expeded, or whereof such in- ventory shall be exhibited and recorded, exclusive of what the Deceased shall have been possessed of or entitled to as a Trustee for any other Person or Persons, and not beneficially, shall be above the value of 20/. and under the value of 100/., - - •- - - - of the value of 100/. and under the value of 200/. - 2 .0 of the value of 200/. and under the value of 300/. - 5 of the value of 300/. and under the value of 450/. - 8 of the value of 450/. and under the value of GOO/. - II of the value of 000/. and under the value of 800/. - 15 of the value of 800/. and under the value of 1000/. - 22 of the value of 1,000/. and under the value of 1,500/. - 30 of the value of 1,500/. and under the value of 2,000/. - 40 of the value of 2,000/. and under the value of 3,000/, - 50 A 10 498 APPENDIX. INYENTORY— continued. Duty. L. s, d. of the value of 3,000/. and under the value of 4,000/. - GO of the value of 4,000/. and under the value of 5,000/. - 80 of the value of 5,000/. and under the value of 6,000/. - 100 [499] of the value of 6,000/. and under the value of 7,000/. - 120 of the value of 7,000/. and under the value of 8,000/. - 140 of the value of 8,000/. and under the value of 9,000/. - 160 of the value of 9,000/. and under the value of 10,000/. - 180 • ■ of the value of 10,000/. and under the value of 12,000/. 200 of the value of 12,000/. and under the value of 14,000/. 220 of the value of 14,000/. and under the value of 16,000/. 250 of the value of 16,000/. and under the value of 18,000/. 280 . of the value of 18,000/. and under the value of 20,000/. 310 of the value of 20,000/. and under the value of 25,000/. 350 of the value of 25,000/. and under the value of 30,000/. 400 of the value of 30,000/. and under the value of 35,000/. 450 of the value of 35,000/. and under the value of 40,000/. 525 of the value of 40,000/. and under the value' of 45,000/. 600 ofthe value of 45,000/. and under the value of 50,000/. 675 of the value of 50,000/. and under the value of 60,000/. 750 of the value of 60,000/. and under the value of 70,000/. 900 of the value of 70,000/. and under the value of 80,000/. 1,050 [500] ofthe value of 80,000/. and under the value of 90,000/. 1,200 of the value of 90,000/. and under the value of 100,000/. -...-. 1,350 of the value of 100,000/. and under the value of 120,000/. .-..-. 1,500 of the value of 120,000/. and under the value of 140,000/. ..-..- 1,800 of the value of 140,000/. and under the value of 160,000/. -..--. 2,100 of the value of 160,000/. and under the value of 180,000/. -.--.. 2,400 of the value of 180,000/. and under the value of 200,000/. -...-. 2,700 of the value of 200,000/. and under the value of 250,000/. .-...- 3,000 of the value of 250,000/. and under the value of 300,000/. - - - - - - 3,750 of the value of 300,000/. and under the value of 350,000/. ...... 4,500 of the value of 350,000/. and under the value of 400,000/. ...... 5,250 of the value of 400,000/. and under the value of 500,000/. ...... 6,000 of the value of 500,000/. and under the value of 600,000/. ... . . 7,500 APPENDIX. 500 IN VE NTORY—co7itinued. of the value of 600,000/. and under the 700,000/. .... of the value of 700,000/. and under 800,000/. .... of the value of 800,000/. and under 900,000/. of the value of 900,000/. and under 1,000,000/. .... of the value of 1,000,000/. and upwards - [501] LETTERS OF ADMINISTRATION, without a Will annexed, to be granted in England : CONFIRMATION of any TESTAMENT dative, to be expe- ded in any Commissary Court in Scotland, where the Deceased shall have died before or upon the 10th Day of October 1808, and subsequent to the 10th Day of Oc- tober 1804; INVENTORY to be exhibited and recorded in any Commissary Court in Scotland, of the Estate and Effects of any Person deceased who shall have died after the 10th Day of October 1808, without leaving any Testament or testamentary Dispo- sition of his or her Personal or Moveable Estate or Effects, or any- part thereof; Where the Estate and Effects for or in respect of which such Letters of Administration or Confirmation respec- tively shall be granted or expeded, or whereof such In- ventory shall be exhibited and recorded, exclusive of what the Deceased shall have been possessed of or enti- tled to as a Trustee for any other Person or Persons, and- not beneficially, shall be above the value of 20/. and under the value of 50/. - of the value of 50/. and under the value of 100/. of the value of 100/. and under the value of 200/. of the value of 200/. and under the value of 300/. of the value of 300/. and under the value of 450/. [502] of the value of 450/. and under the value, of 600/. of the value of 600/. and under the value of 800/. of the value of 800/. and under the value of 1,000/. - of the value of 1,000/. and under the value of 1,500/. of the value of 1,500/. and under the value of 2,000/. of the value of 2,000/. and under the value of 3,000/. • of the value of 3,000/. and under the value of 4,000/. of the value of 5,000/. and under the value of 5,000/. of the value of 5,000/. and under the value of 6,000/. of the value of 6,000/. and under the value of 7,000/. of the value of 7,000/. and under the value of 8,000/. Duty. L. s. d. the value of . - 9,000 the value of - - 10,500 the value of - - 12,000 the value of - - 18,500 - - 15,000 10 1 3 8 11 15 22. 30 45 60 75 90 120 150 180 210 502 APPENDIX. INVENTORY— COTi^muerf. Duty. L, s. d. of the value of 8,000/. and under the value of 9,000/. 240 of the value of 9,000/. and under the value of 10,000/. 270 of the value of 10,000/. and under the value of 12,000/. - - - - - - 300 of the value of 12,000/. and under the value of 14,000/. 330 of the value of 14,000/. and under the value of 1G,000/. - - - - - - 375 of the value of 10,000/. and under the value of 18,000/. - - - - - - 420 of the value of 18,000/. and under the value of 20,000/. 4G5 [503] of the value of 20,000/. and under the value of 25,000/. - ' - - - - - 525 of the value of 25,000/. and under the value of 30,000/. - - . - - - COO of the value of 30,000/. and under the value of 35,000/. 675 of the value of 35,000/. and under the value of 40,000/. 785 of the value of 40,000/. and under the value of 45,000/. - - - - - - 900 of the value of 45,000/. and under the value of 50,000/. 1,010 of the value of 50,000/. and under the value of 60,000/. - - - - - - 1,125 of the value of 60,000/. and under the value of 70,000/. 1,350 of the value of 70,000/. and under t.ie value of 80,000/. 1,575 of the value of 80,000/. and under the value of 90,000/. 1,800 of the value of 90,000/. and under the value of 100,000/. .--.-- 2,025 of the value of 100,000/. and under the value of 120,000/. - - . . - - 2,250 of the value of 120,000/. and under the value of 140,000/. 2,700 of the value of 140,000/. and under the value of 160,000/. - 3,150 of the value of 160,000/. and under the value of 180,000/. 3,600 of the value of 180,000/. and under the value of 200,000/. 4,050 of the value of 200,000/. and under the value of 250,000/. - ... . . - 4,500 APPENDIX. 503 INVENTORY— continued. Duty. L. s. d. of the value of 250,000/. and under the value of 300,000/. ---..- 5,625 [504] of the value of 300,000/. and under the value of 350,000/. 6,750 of the value of 350,000/. and under the value of 400,000/. --..-- 7,875 of the value of 400,000/. and under the value of 500,000/. .--..- 9,000 of the value of 500,000/. and under the value of .. 600,000/. 11,250 of the value of 600,000/. and under the value of 700,000/. .-.-.- 13,500 of the value of 700,000/. and under the value of 800,000/. .-.--. 15,750 of the value of 800,000/. and under the value of 900,000/. - 18,000 of the value of 900,000/. and under the value of 1,000,000/. - - - - - - 20,250 ofthe value of 1,000,000/. and upwards - - 22,500 . : Exemptim from all Stamp Duties. Probate of Will, Letters of Administration, Confirmation of Testament, and Eik thereto, and Inventory of the effects of any Common Seaman, Marine, or Soldier, who shall be slain or die in the Service of His Majesty, His Heirs or Successors: Additional Inventory to be exliibited and recorded in any Commissary Court in Scotland; where the same shall not be liable to a Duty of greater Amount than the Duty already paid upon any former Inventory exhibited, and recorded of the Estate and Effects of the same Person. [505] LEGACIES and SUCCESSIONS to Personal or Move- able Estate upon Intestacy. 1. Where the Testator, Testatrix, or Intestate died lefore or upon the 5th Day of April, 1805. For every Legacy, specific or pecuniary, or of any other Description, of the Amount or Value of 20/. or upwards, given by any Will or Testamentary Instrument of any Person who died before or upon the 5th Day of April 1805, out of his or her Personal or Moveable Estate, and which shall be paid, delivered, retained, satisfied or discharged, after the 31st Day of August 1815: Also for the clear Residue (when devolving to one Per- son) and for every SharO'of the clear Residue (when de- 505 APPENDIX. LEGACIES and SUCCESSIONS— con/mued. Duty. L. s. d. volving to two or more Persons) of the personal or Moveable Estate of any Person who died before or upon the 5th Day of April 1805 (after deducting Debts, Funeral Expenses, Legacies, and other Charges first payable thereout), whether the Title to such Residue, or any Share thereof, shall accrue by virtue of any Testamentary Disposition, or upon a partial or total In- testacy; where such Residue, or Shareof Residue, shall be of the Amount or Value of 20/. or upwards, and where the same shall be paid, delivered, retained, satis- fied or discharged, after the Thirty-first Day of August 1815: Where any such Legacy, or Residue, or Share of such Re- [506] sidue, shall have been given or have devolved to or for the Benefit of a Brother or Sister of the Deceased, or any Descendant of a Brother or Sister of the Deceased ; a Duty at and after the Rate of Two Pounds and Ten per Cent. Shillings j5er Centum, on the amount or value thereof 2 10 Where any such Legacy, or Residue, or Share of such Re-? sidue, shall have been given, or have devolved, to or for the Benefit of a Brother or Sister of the Father or Mother of the Deceased, or any Descendant of a Brother or Sis- ter of the Father or Mother of the Deceased ; a Duty at and after the Rate of Four Pounds per Centum, on the per Cent. amount or value thereof - - - - 4 Where any such Legacy, or Residue, or Share of such Residue, shall have been given, or have devolved, to or for the Benefit of a Brother or Sister of a Grandfather or Grandmother of the deceased, or any Descendant of a Brother or Sister of a Grandfather or Grandmother of the Deceased ; a Duty at and after the rate of Five per Cent. pounds per Centum, on the amount or value thereof 5 And where any such Legacy, or Residue or Share of such Residue, shall have been given, or have devolved, to or for the Benefit of any Person in any other Degree of Collateral Consanguinity to the Deceased than is above described, or to or for the Benefit of any Stranger in ' blood to the Deceased ; a Duty at and after the Rate of Eight Pounds per Centum on the amount or value per Cent. thereof - - - . - - - 8 [507] 11. Where the Testator, Testatrix, or Intestate, shall have died after the bthday of Jlpril 1805. For every Legacy, specific or pecuniary, or of any other Description, of the amount or value of 30/. or upwards, given by any W'ill or Testamentary Instrument, of any APPENDIX. 507 LEGACIES and SUCCESSIONS— cow^mwec/. Duty. L. s. d. Person, who shall have died after the 5th Day of April 1805, either out of his or her Personal or Moveable Es- tate, or out of or charged upon his or her Real or Heri- table Estate, or out of any Moneys to arise by the Sale, Mortgage or other Disposition of his or her Real or Heritable Estate, or any Part thereof, and which shall be paid, delivered, retained, satisfied or discharged after the 31st Day of August 1815: Also, for the clear Residue (when devolving to one Person) and for every Share of the clear Residue (when devolving to two or more Persons) of the Per- sonal or Moveable Estate of any Person who shall have died after the 5th Day of April 1805, (after deducring Debts, Funeral Expences, Legacies and other Charges first payable thereout), whether the Title to such Resi- due, or any share thereof, shall accrue by virtue of any Testamentary Disposition, or upon a partial or total In- testacy ; where such Residue, or share of Residue, shall [508] be of the amount or value of 20/. or upwards, and where the same shall be paid, delivered, retained, satisfied or discharged after the 31st day of August 1815: And also for the clear Residue (when given to one Per- son) and for every Share of the clear Residue (when given to two or more Persons) of the Moneys to arise from the Sale, Mortgage or other Disposition of any Real or Heritable Estate, directed to be sold, mortgaged, or otherwise disposed of, by any Will or Testamentary Instrument, of any Person, who shall have died after the 5th Day of April 1805 (after deducting Debts, Fu- neral Expences, Legacies and other Charges first made payable thereout, if any) where such Residue, or Share of Residue shall amount to 20/. or upwards, and where the same shall be pilid, retained, or dis- charged after the 21st Day of August 1815: Where any such Legacy, or Residue, or any Share of such Residue, shall have been given, or have devolved, to or for the Benefit of a Child of the Deceased, or any Descendant of a Child of the Deceased, or to or for the Benefit of the Father or Mother, or any lineal Ancestor of the Deceased ; a Duty at and after the Rate of One per Cent. Pound />er C'e«/j