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The copious notes added to this edition by the American editor, render it preferable to any pre vious edition. Verplanck on Contracts Woodfall's Landlord and Tenant Washington's Reports, 2 vols. Yeates's Pennsylvania Reports, 4 vols. Velverton's Reports, by Metcalfe. Ml the new Law 'fjp&ts for sflJ as soon as published. THE LAW OF EXECUTORS AND ADMINISTRATORS. By Sir SAMUEL TOLLER, Knight, III LATE ADVOCATE GENERAL AT MADRAS. WITH CONSIDERABLE ADDITIONS, By FRANCIS WHITMARSH, Esq. op unit's IMS, BAKHISTEB AT LAW. ■—(JO—»» Sorte suprema Permutat Dominos, et cedit in altera jura. Hon. — -OtH- THIRD AMERICAN, FROM THE SIXTH LONDON EDITION WITH REFERENCES TO THE STATUTES OF PENNSYLVANIA, AND THE PRINCIPAL AMERICAN DECISIONS. BY EDWARD D. INGRAHAM. PUBLISHED BY JOHN GRIGG, No. 9, North Fourth Street. 1829. T rr?g7e. Eastern District of Pennsylvania, to wit ? BE IT REMEMBERED, That on the fourteenth day of August, in the fifty-fourth year of the Independence of the United States of America, A. D. 1829, John Grigg, of the said district, hath deposited in this office the title of a book, the right whereof he claims as Proprietor, in the words following, to wit : " The Law of Executors and Administrators. By Sir Samuel Toller, Knight, late Advocate General at Madras. With-considerable Additions, by Fran- cis Whitmarsh, Esq. of Gray's Inn, Barrister at Law. Sorte suprema Permutat Dominos, et cedit in altera jura. Hon. Third American, from the Sixth London edition: with References to the Statutes of Pennsylvania, and the principal American Decisions. By Edward D. Ingraham." In conformity to the Act of the Congress of the United States, entitled, " An Act for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies during - the times therein mentioned:" and also to the Act, entitled, "An Act supple- mentary to an Act, entitled, ' An Act for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and propri- etors of such copies during the times therein mentioned,' and extending the benefits thereof to the arts of designing, engraving, and etching histo- rical and other prints." D. CALDWELL, Clerk of the Eastern District of Pennsylvania Printed by Mifflin & Tarry, — Locust Street '- ADVERTISEMENT SIXTH EDITION. In this Edition of 6i The Law of Executors and Administrators/' the same plan has been pursued as in the preceding Editions, viz. to make no alteration in the language of the original Work, and to introduce the variation in the law by way of addition or expla- nation. Lincoln 's Inn, May 1S27. 4 GG9725 PREFACE TO THE FIRST 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 exercise 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 merit on this subject, is that which is entitled, " : Thc Office, and vi PREFACE TO THE FIRST EDITION. Duty of Executors ;" and which, although it bear the name of Thomas Wentworth, is now generally ascribed to. Mr. Justice Dodderidge. It was first published anonymously in the year 1641 : to the third edition, printed in the same year, was prefixed, for the first time, the fictitious name I have just mentioned. The eighth edition appeared in 1689, to which Chief Baron Comyns, in his Digest, con- stantly refers. In 1703, the ninth edition was publish- ed, with a supplement by H. 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 luthentic information. At the same time it must be confessed, that it- is often uncouth, and some- times obscure in its language: altogether inarti- ficial 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 pal editors. The supplement, as i( is called, is PREFACE TO THE FIKST EDITION. Vll a mere collection of cases, without order,' and with out precision. Under these circumstances I was induced to com- pile the present treatise. The subject appeared to me capable of an arrangement more natural and distinct than any which has hitherto been adopted. Such arrangement I have endeavoured to form, and to preserve. It has also been my object to com- prise the multifarious matter, of which I have been treating, within as narrow limits as it would admit ; and to express myself at once with brevity and with clearness. The authorities I have stated very fully in the margin, with a view of facilitating farther re- searches into points of a nature so interesting, and of so perpetual a recurrence. And it will afford me much satisfaction, if I shall have contributed to ex- tend so useful a species of knowledge. TABLE OF THE CONTENTS. BOOK I. Of the appointment of executors and administrators. CHAP. I. Page Of wills and codicils — who may make them — who not — how they are annulled — or revoked — how repub- lished - - - - - f 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 becomes so - - - o9 Sect. III. Of the renunciation or acceptance of an exe- cutorship - - - 43 b A TABLE OF THE CONTENTS. Page 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 marines - - - 60 Sect. viii. Of the probate under special circumstances 65 Sect. ix. Of caveats, revocation of probates, and ap- peals ' - - - 72 Sect. x. The effect of a probate — loss of the same — what is evidence of probate — effect of its revocation - - 75 CHAP. III. Of the appointment of administrators. Sect. i. Of general administrations — origin thereof — who entitled — of consanguinity Sect. ii. Of the analogy of administrations to pro- bates - ' - - 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 marines - - - 109 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 repeal- t ing the same — how a repeal affects • mesne acts - - 1 19 A TABLE Ol' THE CONTENTS. Xl BOOK II. Of the rights and interests of executors and adminis- trators. CHAP. I. Page Of the general nature of an executor's or administra- tor's interest— Distribution of the subject with re- ference to the different species of the deceased's pro- perty - - - -133 CHAP. II. Of the interest of an executor or administrator in the chattels real and personal. Sect. i. Of his interest in the chattels real - 139 Sect. ii. Of his interest in the chattels personal, ani- mate, vegetable and inanimate - 146 CHAP. III. Of the interest of the executor or administrator in such of the chattels as were not in the deceased's pos- session at the time of his death. Sect. i. Of his interest in chosen in action - 157 Sect. ii. Of interests vested in him by condition, by remainder, or increase, by assignment, by limitation, and by election - ' 61 Xli A TABLE OF THE CONTENTS. 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 - - 176 Sect. ii. Of chattels personal which go to the heir ; — and herein of heir-looms - 192 Sect. iii. Of chattels which go in succession - 201 Sect. iv. Of chattels which go to a devisee, or re- mainder-man; — and herein of emble- ments, 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 wi- dow; — and herein of such personal chat- tels of the wife as go to the surviving husband - * -216 Sect. iii. Of the wife's paraphernalia - 229 CHAP. VI. Of the interest of a donee mortis causa - - 233 CHAP. VII. How effects, ivhich an executor lakes in that character, may become his own - - 23t> A TABLE OF THE CONTENTS. Xlll CHAP. VIII. Page Of the interest of an administrator, general and special — of a married woman executrix, or administra- i r ix — of several executors or administrators — of the executor of an executor — of an administrator tie bonis non — of an executor de son tort. 241 BOOK III. Of the powers and duties of executors and admi- nistrators. CHAP. I. Of the funeral — of making an inventory — of collecting the effects. Sect. i. Of the funeral - - - 245 Sect. ii. Of the making of an inventory by the exe- cutor or administrator - - 247 Sect. iii. Of his collecting the effects - 254 CHAP. II. Of his payment of debts in their legal order- Sect. i. Of debts clue to the crown by record, or specialty — of certain debts by particular statutes ... 258 Sect. ii. Of debts of record in general — of judgments ; — and herein of decrees — of statutes and recognizances — of docquctting judgments 262 XIV A TABLE OF THE CONTENTS. Page Sect.iii. Of debts by specialty; — and herein of rent — of debts due by simple contract - 278 Sect. iv. Of a creditor's gaining priority by legal or ecmitable process — of notice to an execu- tor of debts by specialty or simple con- tract - - - 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 alegacy — on what principle necessary — what shall amount to such assent— assent express, or implied . — absolute or conditional — has relation to the testator's death — when once made, irrevocable — when incapable of being made ... 306 Sect. iiL When 68 Partridge's Case Patleu, executrix, v. Panton 4(i Pawlct's, Lord, Case 171. 330 Peach v. Phillips 19 Peacock v. Monk 227. 239 Pe'anlie's Case 94 Pearcev.Chamherlain 1G5. 167 Pearce v. Taylor 422 Pearly v. Smith 210 Pearson v. Garnet 322 Pearson V. Henry 463, 464 Pease v. Mead 168 Peck v. Parrot 169 Penticost v. Ley 302 Peploe v. Swinburn 269. 289 Percival v- Crispe 38"9 Page Pcrrot v. Austin 2«4 Perkins v. Bay n ton 426 Perkins v. Baynton 480 Perkins v. Micklethwaite 304 Perkins v. Thornton 223 Pcrkcs v. Perkes 14 Petre, Lord, v. Ilcneagc 196 Pelrie v.llannay 431 Pctl v. Pett 382 Pett's Case 3. 82. 373 Pett v. Inhah. of Wing- field 475 Pcttifer v. James 393 Petit v. Smith 247. 360, 361. 370. 490 Pheasant v. Pheasant 220 Phillips V. Phillips 140. 417 Phipps v. Pitcher 2 Phipps v. Earl of Angle- sea 17 Phillips v. Bignell 249 _ v. Echard 2 70 _ y. Paget 314, 315. 317 Phiney v. Phiney 377, 378 Phipps v. Steward 496 Pickering v. Towers . 35 Piersoh v. Garnet 328 Pigot and Gascoigne's Case 102 Pilkiugton v. Peach 12 Pinhury v. Elkin 169 Pipon v. Pipon 387 PilfiekPa Case 172 Pitt v. Hunt 217 v. Lord Camclford 301 Pitts v. Evans 490 Plume v. Beale 70 Plume* v. Marchant 278. 283. 296, 297 Plunketv.Penson 414,415 Pockley v. Poekley 417.419 Pollard" v. Gerrard 496 Poole's Case 196 Pu|>e v. Whitcomhe 300 Portland, Countess of, v. Progers 11 Portman v. Cane TABLE OF CASES CITED, XXXI Wightman Potts v. Layton Potter v. Potter Potingcr v Pott v. Fellows Poulet v. Poulet Powley and Sear's Case Powell v. Coleaver Powell v. Han key Powell v. Killick Pratt v. Stocke Pratt v. .Sladden Prattle v. King Price v. Packhurst Price v. SimpsOn v. Vaughan Pring v. Pring Prowse v. Abingdon Page I 455 26, 27 3S7 '326 172 60 329 227 452 125 352,353 141 446 403 4S6 300 172. 422 Proud v. Turner 378 Probert v. Clifford 422 Pullen v. Serjeant 305 Pulkney v. Earl of Dar- lington ISO Purse v. Snaplin 301, 302 Pusey v. Pusey 190 Pusey v. Desbouverie 391 Pynchyn v. Harris - 139 Pyne v. Woolland 243.367 Q. Quick v. Staines 134, 135 Quincy, ex p arte 197 R. Rachfield v. Careless .118. 350. 352. 354 Raine's, Sir Richard, Case 65 Raine v. Comin. of Dioc. ofCanterb. 74 Randall v. Bookey 352 Ranking v. Barnard 338 Rann v. Hughes 463 Raphael v. Boehm 4S1 Rashleigh v. Master 2 OS Rashley v. Masters 483 Ratcliff v. Graves 159 Ravenscroft v croft Raven v. White Rawlins v. Burgis Rawlins v. Powel Ravens- Page 121 326 23 337 Rawlinson v. Shaw 297. 466 Ray v.Ray 135 Read v. Phillips 2 Read v. Litchfield 417 Read v. Truelovc 484 Redshaw v. Brasier 38S Reech v. Kinncgal 336 463.483 Reed v. Desvayncs 347 Reeves v. Freeling 249 Regina v. Rogers 3S9, 390. 394 Rex v. Bettesworth 9. 71. 85. 105 v. Raines 31. 41. 65. 370. 490 v. Simpson 44 v. Hay 65 - v. Netherseal 74 v. Vincent 76 V.Rhodes 76 v. Inhab. of Horsley S7 v. Willet 141 v. Inhab. of Stone 145 v. Stockland 157 v. Withers 172 v. Hilton 35S v. Peck 457 v. Pett ib. Rickards v. Mum ford 14 Richardson v. Disborow 494 Richardson V; Greese 172. 336 Richfield v. Udall 34 Richmond v. Butcher 176 Ridout v. Lewis 227 Rider v. Wager 25. 304. 307. 331. 338. 421 Ridges v. Morrison 334, 335 Ridler v. Punter 135 Ridout v. Earl of Ply- mouth 230 Rigdcn v. Vallier 57 xxxn TABLE OF CASES CITED. Page Rigbtston v. Overton 185 Ripley v. Waterworth 3 Rivers, Earl, v. Earl Der- by 173 Ross v. Ewer 9 Rowley v. Eyton 26 Robinson v. Pett 44. 455, 456 Rose v. Bartlctt 106 Robin's Case 120 Rockingham, Lord, v. Oxenden 176 Roper v. Radcliffe 199 Rook v. Warth 201 Rolfe v. B'udder 226 Rogers v. Danvers 276. 283 Robinson v. Gee 283.417.419 v. Bland 287 v. Tonge 409. 411. 421 Rose v. Rose 304 Roden v. Smith 312 Rotheram v. Fanshaw 317 Rowney v. Dean 438. Rogers v. James 453 Rocke v. Hart 481. 483 Rous v. Noble 481 Rudstone v. Anderson 22 Rutland v. Rutland 133 Rutland, Duke of, v. Ducbcss of Rutland 354. 382 , Countess of, v. Rutland 431. 433 Rutler v. Rutler 390 RussePs Case 357. 433 Rush v. Higgs 455 Rye v. Fuljambe 320 Sand's Case 122. 124 Sadler v. Daniel 124.491 Sacheverel v. Frogate 176. 179 Salwey v. Salwey 222 Sawyer v. Mercer 293 Sayer v. Sayer 301, 302. 339 Saunders v. Drake 322 Page Saville v. Blackct 330' Sam well v. Wake 417 Sagittary v. Hyde 420 Sausmerez, ex parte 452 Sadler v. Hobbs 484 Scott v. Rhodes 57 Scudamorev. Hearne281. 292 Scattergood v. Harrison 455, 456 Scott v. Stephenson 463 Scurfield v. Howes 484 Semi ne v. Howes 229 Searle v. Law 263 v. Lane 263. 266. 269 Seton v. Lane 317 Serle v. St. Eloy 417 Seaman v. Everald 425 Seers v. Hind 483 Shaw v. Cutteris 12 Sheath v. York 19 Shawv. Stoughton 50 Shergold v. Stoughton 57 Shepherd v. Shorthose 77 Shore v. Porter 140 , Lady, v. Billingsby 154 Sherman v. Collins 172 Sherrard v. Collins 210 Shaugley v. Harvey 232 Shilleg's Case 245 Shafts v. Povvel 269 Sharp v. Earl of Scarbro' 287 Shirt v. Westby 324 Shepherd v. Ingram 326 Shudall v. Jekyll 329 Shiphard v. Lutwidge 414 Shuttleworth v. Garnet 436 Shipbrook, Lord, v. Lord Hinchinbrook 485, 486 Shakeshaft, ex parte 488 Shatter v. Friend 494 Silberschild v. Schiott 189 Sibley v. Cooke 304 Sibthorp v. Moxam 304. 307 Sikes v. Snaith 2 Simmons v. Gutteridge 349 Skinner v. Sweet 424 Slaughter v. May 103. 404 Slanning v. Style 227. 481 TAUEE OF CASES CITED. XXXI 11 Page Sleech v. Thorington 301, 302. 323. 340 Slingsley v. Lambert 437 Smell v. Dee 171.305.312. 324 Smith's Case 105 Smith v. Milles 45. 74 v. Barrow 48. 162. 439 v. Tracey 91. 137 v. Smith 102. 172. 471 V.Gould 151 v. Partridge 172 v. Haskins 270. 289 v. Harman 283. 443 v. Eyles 290 v. Campbell 300. 386 v. Fitzgerald 303 v. Norfolk 436 Smithley v. Chomeley 46 Snape v. Norgate 447 Snelling v. Norton 281 Snelson v. Corbet . 2S0, 231. 422 Soan v. Bowden and Eyles 286 Solley v. Govver 288 Sorrell v. Carpenter 269 Southby v. Storehouse 9 Southcot v. Watson 18. 352, 353 Southampton, Mayor of, v. Graves 466 Southouse v. Bate 353 Sparrow v. Hardcastle 21, 22 Sparks v. Crofts 406, 407 Spencer's Case 390 Spinksv. Robins 329. 337 Sprange v. Stone 18 Spurstow v. Prince 158.434 Squib v. Wyn . 115. 372 Squier v. Mayer 197 Stackpoole v. Howell 347 Stafford, Earl, v. Buckley 178. 200 Stanley v. Stanley 91. 382 Stanley v. Potter 331 Stanton v. Polatt 394 Stapleton v. Cbeales 171,172 Stapleton v. Cheele 171. 305 Page St. Alban's, Duke of, V. Bcauclerk 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. Brand- ring 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. Uford 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 ICO 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 \s Case 155 T. Talbot v. Duke of Shrews- Tankerville, Earl of, v. Fawcet 419 Tappenden v. Walsh 11 Targus v. Pugot 172 Tasker v. Burr 141 Tate v. Hibbert 234, 235,236 Tate v. Austen 339 Tattersall v. Howell 314 bury 336, 337 Taylor v. Acres 386 v. Allen 358 XXXIV TAULE OF CASES CITED. Page Taylor v. Shore 99. 124 Tebbs v. Carpenter 426 Ten-ewes! v. Featherby 455 Teynham, Lord, v. Webb 173 Thcllusson v. Woodford 330. 373 Thomas v. Davies 55 v. Butler 82. 98. 105. 117. 125. 127. 129 v. Kemish 182 v. Bennett 227. 337 v. Thomas 319 ■ v. Ketteriche 385 Thomson v. Butler 99. 121 v. Dovve 173 Thompson v. Stanhope 454 Thorald v. Thorald 57 Thornard, Earl of, v. Earl of Suffolk 331.339 Thorne v. Watkins 387 Thorn borough v. Baker 187 Thrustoutv. Coppin 91.241 Thynn v. Thynn Tidwell v. Ariel Tiffin v. Tiffin Tilney v. Norris Tipping v. Tipping 230, 231. 421,422 Tissen v. Tissen 326 Tomkyns v. Ladbroke 391. 295 303 396 456 Tomlinson v. Dighton v. Ladbroke 395 414 421 304 321 94. 108 172 Toplis v. Baker Toulson v. Grout Tourton v. Flower Tourney v. Tourney Townshend, Lord, v. Windham 227. 231. 422 Tower v. Lord Rous 417 Trevelyan v. Trevelyan 14 Tredway v. Fotherly 186 v. Bourn 321 Tie vi ban v. Lawrence 429 Trevinian v. Howell 463 Trimmer v. Bayne 421 Trower v. Butts 300 Tucker v. Thurston 21 Page Tudor v. Samayne 217 Tuff'nell v. Page 6 Tulk v. Houlditch 306 Tunstal v. Bracken 172. 305 Turner v. Davies 131 v. Crane 187 v. Turner 258. 480 v.Jennings 339 Turner's Case 185 Turner's, Sir Edward, Case ' 217 Twaites v. Smith 56 Tweedle v. Coverley 417 Tweddle v. Tweddle 419 Tyntv. Tynt 230,231 Tyrrell v. Tyrrell 324, 325, 326 U. Underwood v. Stephens 485 Upton v. Prince 318 Urquhart v. King 352 Utterson v. Utterson 28 Van v. Clark 171, 172 Vanthieuson v. Vanthieu- son 118 Vaux v. Henderson 304 Vavvson v. Jeffery 21 Vernon v. Vernon 208 v. Bethell 314 Vigrass v. Binfield 480 Villiers v. Villiers Villa v. Dimock 34 W. 475 Wads worth v. Gye Wainwright v. Bend- lowes 417 Walcot v. Hall 171 Walker v. Woollaston 31. 98. 102. 105.257. 403, 404. 406. 447 Walker v. Wiffer 266 v. Smallwood 269 v. Shore 326 v. Meager 414 v. Jackson 417 TA14LK OF CASKS CITED. XXXV Page Walker v. Walker 2 Wall v. Bushby 483. 486 Wall v. Thurbornc 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 Warde 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. 297 173 410 90 437 34 173 Warr v. Warr Warren v. Statwell Warwick v. Greville Wate v. Briggs Watford v. Masham Watkins v. Cheek Watson v. Earl of Lin coin Watt v. Watt W T ebb v. Webb Webb v. Jones Webster v. Webster Wells v. Fydell Wells v. Williams 329 84 340. 390 417 343 472 12. 31. 34 454 2 West v. Skip Westbeech v. Kennedy Westfaling v. Westfal- ing 409 Weston v. Poole 440 Weston v. James 265. 442, 443 Page West cot v. Gottle 470 Westley v. Clarke 484 Wetherby v. Dixon 329 Whale v. Booth 134. 256 Wheeler v. Sheer 350. 352 Wheatley v. Lane • 428 Whitchurch v. Whit- church 6 Whitchurch v. Baynton 284 White v. Driver 8 v. Barford 18 v. Evans 360 v. Williams 352 Whitehall v. Squire 154. 472 Whithill v. Phelps 391 Whitman v. Wild 173. 357 Whytmore v. Porter 367 Widdowson v. Duck 480 Wishtman 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 v. Crey 158 v. Cary 433,434 ex parte 454 Willing v. Baine 304 Willis v. Brady 359. 361 Willoughby v. Willough- by 410. 426 Wilson v. Pateman 121 v. Spencer 173 v. Harman 210 v. Fielding 284. 415. 420 v. Ivat 361 v. Poole 440 Wirichelseaj Earl of, v. Norcliffe 91. 115.182. 373 Winchcombe v. Bishop of Winchester 283. 425 Wind v. Jekyl 1. 2. 478 XXXV I TABLE Ol' CASES CITED. Page 187 14 182 394 Winn v. Littleton Winsor v. Pratt Witter v. Witter Wood v. Briant Woodhouselee, Lord, v. Dalrymple Woodward v. Glas- brook Woodward v. Parry Woodroffe v. Wickworth 385 Worsley v. Earl of Scar- borough 269, 270 Wortbington v. Barlow 464 Worthington v. Evans Wright v. Woodward v. R utter 3C0 302 219 v. Lord Cadogan v. Bluck 313 289 321 337 495 Wright, executors of, 'Nutt Wyllet v. Sanford Wynch v. Wynch Y Yard v. Eland v. Ellard Yare.v. Harrison Yaites v. Gough Yate v. Goth Yates v. Gough , v. Phittiplace Young v. Case v. Holmes _ — — v. Radford Z Zachariah v. Page Page 443 17 325 241 241 480 449 447 449 172 67 344 217 439 INDEX TO THE CASES CITED OR INTRODUCED BY THE AMERICAN EDITOR. Note. — "v." follows the name of the plaintiff, — "and" the name of (lie defendant. A. Page Adams and Hutchins (3 Greenl. Rep. 174) - . . 437 and Sword's Lessee (3 Yeates, 34) .... 30." Adcock and Campbell, Register &c. (8 Serg. &. Rawle, 132) . - 249 Alexander and Dade (1 Wash. Rep. 30) - . . 223 Albright and Simon (12 Serg. & Rawle, 429) - . - 444 Allison V. Wilson's Ex. (13 Serg. &. Rawle, 330) - . 413 Anderson v. Neff (11 Serg. & Rawle, 208) - ... 456 Andrew v. Gallison (15 Mass. Rep. 325) - 242 Anonymous (1 Hayw. Rep. 355) - . . 108 Anonymous (1 Hayw. 243) - - . 287 Ansart and Cob urn (3 Mass. Rep. 318) - - . - 48 Archer and Hood (1 M 'Cord's Rep. 225, 477) - - - 10 Armstrong v. Si monton (2 Tayl. Rep. 266) - - - 219 Arndtv. Arndt (1 Serg. 8c Rawle, 256) - - - - 2 Arnold v. Nussear (13 Serg. & Rawle, 323) - - - 8 Ash and Legare (1 Bay, 464) - - . - 14 and Patton (7 Serg. &. Rawle, 116) - . . 456 Austen and Trecothick (4 Mason's Rep. 16) - • - .72 Austin v. Gage (9 Mass. Rep. 395) - 416 Ayre and Fitch (2 Conn. Rep. 143) - . . 225 Ayres and Toland (7 Harr. & Johns. 3) . 437 B. Bacon's Adm. and 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 and Johnson (2 Carr. & Payne, 207) - - 245 and Williams (2 Car. Law Rep. 599) - - - 8 Ballard and Henry (2 Car. Law Rep. 595) XXXV111 . TABLE OF Page Banks v. Marksbery (3 Litt. Rep. 281) - - - - 219 Barclay and M'Neilledge (11 Serg. &. Rawle, 103) - - 300 Barker and Shult (12 Serg\ & Rawle, 272) - - 206 Bartlett and Weeden (1 Munf. 123) - - -4 Barrett v. Barrett (4 Desaus. Rep. 452) - - 225 Bass and Winship (12 Mass. Rep. 199) - - - 350 Bayard and Gratz (11 Serg. & Rawle, 41) - . 166 Beach and Hurst (5-Madd. Rep. 351) - - -234 Beach v. Lee (2 Dall. 257) - - - - 219 Bell v. Newman (5 Serg. & Rawle, 78) - - 455 Beltv. Belt (1 Harr. & MTIen. 409) - - - 16 Bennett v. Jackson (2 Phill. Rep. 190) - - 4 Benson v. Le Roy (3 Johns. Cha. Rep. 651) - - 413 and M'Whorter (1 Hopk. Cha. Rep. 28) 456 Benson, Adm. v. Rice (2 Nott & M'Cord, 577) - - 129 Bernard and Jet, Ex. (3 Call's Rep. 11) - -339 Beyan v. Taylor (7 Serg. & Rawle, 397) - - - 382 Bevans v. Briscoe (4 Harr. &. Johns. 139) - - 204 Bickle, Adm. v. Young (3 Serg. &, Rawle, 235) - - 146 Biddle and Powell (2 Dall. Rep. 85) - - - 300 v. Wilkins (1 Peters' S. C. Rep. 686) - - - 437 Bitzer's Ex. v. Hahn (14 Serg. & Rawle, 232) - - - 324 Black's Ex. and Pringle (2 Dall. 97) - - - 477 Blane and AVatson's Adm. (12 Serg. & Rawle, 131) - -158 Blatchford and Murray (1 Wend. 583) - - - - 359 Blewit and M'Caw (2 M'Cord's Cha. Rep. 102) - - - 380 Blount and M'Callup (Cam. & Norw. 96) - - -219 Bohn v. Headley (7 Harr. &. Johns. 257) - - 219 Boileau and Vansant (1 Binn. 444) - - - 2 Boiling and Fleming (3 Call. 75) - - - - 350 Bonsall and Lehman (1 Addam's Rep. 389) - - 4 Bordeu v. Borden (4 Mass. Rep. 67) - - - 108 Borland and 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. 266) 2. 14. 355 and Bradford (3 Wash. C. C. Rep. 122) - 131 Boylston and Selectmen of Boston (2 Mass. Rep. 384) - - 108 and 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. 266) 2. 14. 355' v. Boudinot (3 Wash. C. C. Rep. 122) - - 131 Bradley v. Overhoudt (13 Johns. Rep. 404) - - - 198 Brady and Jamison (6 Serg. &. Rawle, 466) - - . 225 Brailsford and Johnson (2 Nott & M'Cord, 272) - - 1 2 Brattle v. Gustin (1 Root. 425). - - - .116 v. Converse (1 Root. 174) - - - - 116 Bray and Hall (Cox's N. J. Rep. 212) . . 25 Bray v. Dudgeon (6 Munf. Rep. 132) - . - 85 Brayfield v. Brayfield (3 Harr. h Johns. 208) - - 2 AMERICAN CASES. XXXIX Page Breed and Osgood (12 Muss. Rep. 532) Brehman and Weishaupt (5 Binn. 118) - 303 Brent v. Dodd (Gilm. Hep. 211) - - - 14 Brewster v. Hill (1 New llamp. Rep. 350) - 6 Briscoe arad Bevans (4 Harr. & Johns. 139) - -203 Bronson and llammick (5 Day's Rep. 294) - - 220 Brooks v. Floyd (2 M'Cord's Rep. 364) - - 437 Brough and Moritz (16 Serg. & Rawle, 403) - - 15 Brown, Ex. of Edgar's Appeal (1 Dall. 311) - - 484 Brown, Ex. v. Lambert (16 Johns. Rep. 148) - - 440 Brown's Ex. v. Tilden (5 Harr. & Johns. 371) - - -. 2 Brown's Adm. v. Griffith (6 Munf. 450) - - - 287 Brown and Hylton (1 Wash. C. C. Rep. 299) - 2 and Hawley (1 Root's Rep. 494) - - - 2 Brush v. Wilkins (4 Johns. Cha. Rep. 506) - - - 17 Bryan and The Commonwealth of Pennsylvania (8 Serg. & Rawle, 128) 249 v. M'Gee (2 Wash. C. C. Rep. 337) 108 Bull and Malin (13 Serg. & Rawle, 441) - 462 Burch and Scott (6 Harr. 8c 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. 8c Norw. 68) - - 108 Byrne's Adm. v. Stewart (3 Desaus. Rep. 135) - - 219 Byrne v. Byrne (3 Serg. 8c Rawle, 54) - - 337 c. Callaghan's Adm. and Hall (1 Serg. &. Rawle, 241) - - - 486 Call v. Hardy (16 Mass. Rep. 530) - - - 440 Campbell, Register 8cc. v. Adcock (8 Serg. 8c 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 Carson's Ex. and Stuart (1 Desaus. Rep. 501) - - 301.339 Chamberlin and 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. 8c Munf. 124) - - 287 Chapel and Talmadge (16 Mass. Rep. 71) - - 108 Chapman v. Gray (15 Mass. Rep. 439) - - 6 Chew's Ex. and Griffith (8 Serg. 8c Rawle, 29) - - - 296 Cist and Reed (7 Serg. 8c Rawle, 183) - - 158 Clark and Hogeboom (17 Johns. 268) - •- -440 and Gleason (1 Wend. Rep. 303) - - - 440 and Kirby (1 Root, 389) - - 432 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. 8c Rawle, 208) - 347 Coates v. Hughes (3 Binn. 498) - - l7 xl Stable of. Page Coburn v. Ansart (3 Mass. Rep. 318) - . * 48 ( 'or bran's Will, Case of, (3 Bibb's Rep. 491) - . 2 Cog-bill v. Cogbill (2 Hen. St Munf. 467) - - 15 Cog-dell's Ex. v. Cog-dell's Heirs (3 Desaus. Rep. 387) .- - 32jJ Collins v. Weiser (12 Serg\ & Rawle, 97) - - 463 Collins's Ex. and Woodbury (1 Desaus. Rep. 425) - . 299 Coleman, Adm. v. M'Murdo (5 Rand. Rep. 51) - - 450 Colg-in and Hendren (4 Munf. Rep. 231) - - - 84 Commonwealth (of Virginia) «nc?Nimmo's Ex. (4 Hen. &. Munf. 57) 139.413 (of Pennsylvania) v. Rahm, (2 Serg. & Rawle, 375) 146 : v. Shelby (13 Serg. & Rawle, 348) 301. 418 v. Bryan (8 Serg. & Rawle, 128) - 249 v. King (4 Serg. & Rawle, 109) - 470 Cooke and Eee's Ex. (Gilm. Rep. 331) - ... 460 Cooper v. Remsen (3 Johns. Cha. Rep. 382) - - 314 Corbin and Burwell (1 Rand. Rep. 131) - 2 Cornell v. Green (10 Serg. & Rawle, 14) - 158 Cox and Minuse (5 Johns. Cha. Rep. 450) - - - 22 Cradock and The State of Maryland (7 Harr. & Johns. 40) - - 405 Craighead v. Given, Adm. (10 Serg. h Rawle, 351) - - 342 Crane and Ford (1 Cow. Rep. 71) - - - 467 Crary and Williams (8 Cow. Rep. 246) - - - 336 Crofton v. Ilsley (4 Greenl. 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 Desaus. -Rep. 84) - - 326 Cummin and Sheble (1 P.A.Browne's Rep. 253) - - 219 Cunliff and M'Pherson (11 Serg. & Rawle, 422) - - 146 Curtis v. The Bank of Somerset (7 Harr. & Johns. 25) - - 463 Cutchin v. Wilkinson (1 Call's Rep. 3) - ... 85 Cuthbert and Heyward (4 Desaus. Rep. 445) - - 326 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 and Stone (12 Mass. Rep. 488) - - -9 Dandridge v. Minge (4 Rand. Rep. 397) - - 284 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 and Peters (7 Mass. Rep. 257) - - - 162 Davoue v. Fanning (2 Johns. Cha. Rep. 252) - - 362 Dawes, Judge, &c. 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 AMERICAN CASES. xll Page I)e Hart and Den (1 Halst. Rep. 450) - ■ - 464 Deklyne and Krider (13 Serg. and Rawle, 147) - - 441 Delavan and Pope (1 Wend. Rep. 68.) - - - 467 Dewitararf Green (1 Root, 183) - - - 242 v. Yates (10 Johns. Rep. 156) - - - 334 Dickey and Morrell (1 Johns. Cha. Rep. 153) - 1. 108. 314 Dickinson v. M'Craw (4 Rand. Rep. 158) - 108 v. Purvis (8 Serg. & Rawle, 81) - - 303 Dieser, Adm. v. Sterling (10 Serg. & Rawle, 119) - - 441 Dietrick v. Dietrick (5 Serg. & Rawle, 207) - - 8 Digges' Lessee v. Jarman, (4 Harr. Sc M'Hen. 485) - - 362 Dillingham and Sears (12 Mass. Rep. 358) - 2 Dixon's Ex. v. Ramsay's Ex. (3 Cranch, 319) - - - 108 Dodd and Brent (Gilm. Rep. 211) - - - - 14 Doe v. Teage (5 Barn, and Cresw. 335) - - 2 Doolittle v. Lewis (7 Johns. Cha. Rep. 45) - - . 108 Dornick v. Riechenback (10 Serg. and Rawle, 84) - 9 Dorsey v. Smithson (6 Harr. and Johns. 61) - - 39 Dougherty v. Snyder (15 Serg. and 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 v. Shoolbred (2 Desaus. Rep. 246) - - 362 Drum's Lessee v. Simpson (6 Binn. 478) • - 2 Duffield and Swift (5 Serg. and Rawle, 40) - - 30.300 Dukehart's Ex. v. The State (4 Harr. and Johns. 506) - - 140 Dumond v. M'Gee, (4 Johns. Cha. Rep.318) - - .220 Duncan v. Walker (2 Dall. 205) - - - 386 Dunch and M'Comb (2 Dall. 73) - - -477 Dunham and Mason (1 Munf. 456) - - 4 Dunlap v. Dunlap (4 Desaus. Rep. 305) - - ' 2. 25 Durant v. Starr (11 Mass. Rep. 227) - - . - 2 Dyke's v. Woodhouse's Adm. (3 Rand. Rep. 288) - - 352 E. Eckart and Grasser (1 Binn. 575) - - • - 352 Edelen v. Hardy's Lessee (7 Harr. and Johns. 61) - 2 Elbeck v. Cranberry (2 Hayw. Rep. 232) - - 2 Elms, Ex parte (3 Desaus. Rep. 155) - - - 219 Elton and Nicholson (13 Serg - . and Rawle, 416) - - 461 Emerson and Union Bank (15 Mass. Rep. 159) - - 198 Eppes and Royal (2 Munf. 479) ' - - - - 122 Evans, Adm. v. Pierson (1 Wend. Rep. 30) - - 463 and Eritez (13 Serg. and Rawle, 1) 410 v. Kingsbury (2 Rand. Rep. 120) - - 213 v. Tatem (9 Serg. jpdtlawle, 252) - - - 108 Eyre v. Golding (5 Binn. 475) - - - 324 Eyster v. Young (3 Yeates, 511) - - - 2 Xlll TABLE Ul F, Page Fabre'sEx. and Higginson ( 3 Desaus. Rep. 93) - .31 Fanning and Davoue (2 Johns. Cha. Rep. 252) - - 362 Fenwickv. Sears (1 Cranch, 259) - -108 Ferris and Jackson (15 Johns. Rep. 348) - - 362 Fisher and Ware's Lessee (2 Yeates, 578) - 386 Fishvvick's Adm.v. Sewell (4 Harr. and Johns. 39S) -432 Fitch v. Ayre (2 Conn. Rep. 143) - - -225 Fitzsimons and "Wallace (1 Dall. 162) - - 162 Fleming v. Boiling (3 Call. 75) - - 350 Flintham's Appeal (11 Serg. and Ravvle, 16) 245. 480 Floyd an d Brooks (2 M'Cord's Rep. 364) - 437 I^onda and Van Home (5 Johns. Cha. Rep. 388) - 42 Ford v. Gardner (1 Hen. and Munf. 72) Forbes v. Pierie (1 Harr. and Johns. 109) - - 463 Frazier and Griffith (8 Cranch, 9) - 104 v. Tunis (1 Binn. 254) - - 283 Frink v. Luyten (2 Bay, 166) - - 440 Fritz, Ex. v. Evans (13 Serg. and Rawle, 1) - 410 G. Gage and Austen (9 Mass. 395) - - - 416 Gage v. Johnson's Adm. (1 M'Cord's Rep. 492) - 407 Gaines v. Gaines (2 Marsh. Rep. 190) - - 16 Galbraith arid M'Neilledge (8 Serg. and Rawlc, 41) - 300 Gale v. Ward (14 Mass. Rep. 352) - - . - 198 Gallison and Andrew (15 Mass. Rep. 325) - - - 242 Gano and Crozier (1 Bibb's Rep. 257) - - - 219 Gardner and Ford (1 Hen. and Munf. 72) - - 77 v. Parker (3 Madd. Rep. 184) - - 234 Cay, Ex parte (5 Mass. Rep. 419) - - 6 Gaylord and Stephens (11 Mass. Rep. 369) - 108. 347 Geer v. Winds (4 Desaus. Rep. 85) - 300 Gelback's Appeal (8 Serg. and Rawle, 205) - 182 Genet v. Tallmadge (1 Johns. Cha. Rep. 3) - 314 Geyer v. Smith, (1 Dall. Rep. 347) - - - 463 Gibbons v. Cross (2 Addam's Rep. 455) - - 17 Giles v. Bacon's Adm. (1 Harr. and Gill. 164) - - 463 Giles's Heirs v. Giles's Ex. (Cam. and Now. Rep. 174) - 14 Gihnan and Sabin (Adams' Rep. 198) - - - - 10S Gillon v. Turnbull (1 M'Cord's Cha. Hep. 148) - 323 Girard v. M'Dermott (6 Serg. and Rawle, 128) - - 146 Given, Adm. and Craighead (1 Serg. and Rawle, 351) - - 342 Gleason v. Clark, Adm. (1 Wend Rep. 303) # - - 440 Glen and Ilaslett's Adm. (7 Harr. and Johns, lfj - 238. 4^2 Golding and Eyre (5 Binn, 475) - - 324 AMERICAN CASES. xliii Page GoM and Musscr (11 Scrg. and Rawle, 247) - 440 Goodwin v. Jones (3 Mass. Rep. .514) - - - 103 Gordon and Wellborn (1 Murphy, 103) - - - 467 Govane v. Govane (1 Harr. and M'Hen. 346) - - - 8.5 Graeme v. Harris, (1 Dall. 456) - - 108 Graff v. Smith's Adm.(l Ball. 481) - - - 145 Granberry and Elbeck (2 Hayw. 232) - - 2 Granberry v. Granberry (1 Wash. Rep. 246) - 346 Gratz v. Bayard (11 Serg. and Rawle, 41) - - 166 Gratz and Prevost (3 Wash. C. C. Rep. 434) - 456 Gray and Chapman (15 Mass. Rep. 439) - - 6 Green and M'Kay (3 Johns. Cha. Rep. 57) - - 418 and Cornell (10 Serg. and Rawle. 14) . - 158 v. Dewit (1 Root, 183) - - 242 Greene v. Stone (1 Harr. and Johns. 405) - - 464 Grier v. Huston (8 Serg. and Rawle, 402) ■ 48 Griffith v. Frazier (8 Cranch, 9) - - - 104 and Hall (2 Harr. and Johns. 283) - - 238 and Brown (6 Munf. 450) - - - 287 v. Chew's Ex. (8 Serg. and Rawle, 29) 296. 464 Grimke v. Grimke (1 Desaus. Rep. 366) - - 10 Griswold v. Penniman (2 Conn. Rep. 564) ' - - 220 Groff and President of Orphan's Court (14 Serg and Rawle, 181) - 146 Grout, Adm. v. Chamberlin (4 Mass. 611.) - 448 Guage and Swann (1 Hayw. 3) - 223 Guier v. Kelley (2 Binn. 298) - - - 146 Guierv. O'Daniel, (lBinn. 349) - - - -386 H. Hahn and Bitzer's Ex. (14 Scrg. and Rawle, 232) - 324 Hall v. Bray (Coxe's N. J. Rep. 212) - - 25 v. Callaghan's Adm. (1 Serg. and Rawle, 241) # ' . . 486 v. Griffith (2 Harr. and Johns. 483) - - 238 v. Hall (2 M'Cord's Cha. Rep. 304) - 350 Hamilton and Lodge (2 Serg. and Rawle^ 493) _- - 219 Hammick v. Bronson (5 Day's Rep. 294) . - - - 220 Hardenburg and Ousterhoudt (19 Johns. Rep. 267) - 463 Hardy v. Call (16 Mass. Rep. 530) - 440 Hardy's Lessee and Edelen (7 Harr. and Johns. 61) ' - 2 Harris and Grame (1 Dall. 456) - -108 Harrison v. Rowan (3 Wash. C. C. Rep. 580) - 2 Hart and Stout (2 Halst. Rep. 414) 303 Hartnessv. Purcell (1 Wend. Rep. 303) - 466 Harvey v. Richards (1 Mason's Rep. 381) - 38v> Haslctt'sAdm. v. Glenn (7 Harr. and Johns. 17) 132 Havard v. Davis (2 Binn. 406) 1 { Hawkins v. Class (1 Bibb's Rep. 216) - 460 • * xliv TABLE OF Page Hawkins and Turnipseed (1 M'Cord's Re]). 272) - . 2 Haw ley v. Brown (1 Root's Rep. 494) - . - 2 Hawthorne and Patterson (12 Serg. and Rawle, 112) - 1/0. 305 Hays v. Jackson (6 Mass. Rep. 153) .... 355 Haywood and Siglar (8 Wheat. 675) - - . 456 Headley and Bohn (7 Harr. and Johns. 257) - - 219 Heager's Ex. Case of (15 Serg. and Rawle, 65) - . 480 HelmesoW White (1 M'Cord's Rep. 430) , -2 Hendren v. Colgin, (4 Munf. Rep. 231) - . - 84 Henry v. Ballard (2 Car. Law Rep. 595) - - ,1 Hermance v. Vernoy (6 Johns. Rep. 5) - - -198 Herring and Clark (5 Binn. 33) - - -464 Hey ward and Cruger (2 Desaus. Rep. 84) ... 326 ' v. Cuthbert (4 Desaus. Rep. 445) - - • . 326 Hiesler v. Knipe (1 P. A. Browne's Rep. 319) - - - 359 Higginson v. Fabre's Ex. (3 Desaus. Rep. 93) - - 31 Hight v. Wilson (1 Dall. Rep. 94) - - - 2 Hill v. Hill (2 Hayw. Rep. 298) - - - - 355 and Brewster (1 NewHamp. Rep. 350) - - 6 Hoare v. Mulay (2 Yeates, 161) - - - 464 Hock v. Hock (6 Serg. and Rawle, 47) - - - 2 Hodges and Nicholls (1 Peters' S. C. Rep. 562) - - 456 Hoffman's Ex. and Van Bramer (2 Johns. Ca. 200) - - 325 Hogeboom v. Clark (17 Johns. 268) , - - 440 Holloway and Jackson (7 Johns. Rep. 394) - - 15 Holmes v. Tremper (2 Johns. Rep. 29) , - - 198 Hood v. Archer (1 M'Cord's Rep . 225. 477) - - 10 Hornsby v. Lee (2Madd. Rep. 16) - -• -219 Hostler's Adm. one? Burgwin (Tayl. Rep. 124)' - -474 Howell's Adm. v. Smith (2 M'Cord's Rep. 516) - - 37 Hoyle and Schuyler (5 Johns. Cha. Rep. 196) - - -220 Hughes v. Hughes, Ex. (2 Munf. 209) - - 9 Hunter and^ T an Alst (5 Johns. Cha. Rep. 158). - - 9 Hurst v. Beafh (5 Madd. Rep. 351) - - -234 Hurst's Ex. and Wilson (1 Peters' C. C. Rep. 441) - - 470 Huston and Grier (8 Serg. and Rawle, 402) - - - 48 Hutchins v. Adams (3 Greenl. Rep. 174) - - - 437 Hylton v. Brown (1 Wash. C. C. Rep. 299) - - - 2 Hynes v. Lewis (1 Tayl. Rep. 44) - - - 219 I- Irwin and Larimer's Lessee (4 Binn. 104) - 146 and Shields (3 Yeates, 389) - - - 1 llsly ourfCrofton (4 ■Greenl. Rep. 134) - - -72 Ingraham v. Postell's Ex. (1 M'Cord's Cha. Rep. 94) - -323 Izard v. Izard (2 Desaus. Rep. 123) - . - 300 \MER1CAN CASES. \|\ Page Jackson v. Ferris (15 Johns. Rep. 348) - - . 362 and Hays (6 Mass. Rep. 153) - ooo and Bennet (2 Thill. Rep. 190) - . .4 v. Holloway (7 Johns. Rep. 394) - - -14 v. Jeffries (1 Marsh. Rep. 88) - . . 108 • and Purdew (1 Russ. Rep. 1) - - . 219 and Draper (16 Mass. Rep. 480) - - -220 Jamison v. Brady (1 Yeates, 432) - . 225 Jaques and Methodist Episc. Church (3 Johns. Cha. Rep. 77) 227 Jarman and Digges's Lessee (4 Hair, and M'Hcn. 485) - - 362 Jet, Ex. v. Bernard (3 Call's Rep. 11) - . . S3'J Johnson v. Baker (2 Carr. and Payne, 207) - - 246 v. Brailsford (2 Nott and M'Cord, 272) - - 12 Johnson's Adm. and Gage (1 M'Cord's Rep. 492) - - 407 Johnston and Pasteur (Cam. and Norw. 464) - - 219 Jones and Goodwin (3 Mass. Rep. 514) - . . 108 Jordan and Southwick (13 Mass. Rep. 113) - -* f22 K. Kain, Ex. v. Ostrander (8 Johns. Rep. 159) - - - 434 Kelly and Guier (2 Binn. 298) - - - -146 Kendall v. Kendall's Ex. (5 Munf. Rep. 272) - 27 Kennedy v. Savage (2 P. A. Browne's Rep. 178) - - 152 v. Wachsmuth (12 Serg. & Rawle, 171) - - 146 Kenney and Udall (3 Cow. Rep. 590) - - - 219 Keppele and Long (1 Binn. 123) - - - - 474 Kerns v. Sexman (16 Serg. & Rawle, 315) - ., 2 Kerr, Ex. and Moore (10 Serg. & Rawle, 348) ... 470 Ken- v. Moon (9 Wheat. Rep. 565) - % - . 108 King v. Lyman (1 Root's Rep. 104) - - . . ' 39 King and The Commonwealth of Pennsylvania (4 Serg. & Rawle, 109) 475 Kingsbury and Evans (2 Rand Rep. 120) - - - 213 Kintner and Messenger (4 Binn. 97) ... 146 Kirby v. Clark (1 Root. 389) .... 4.32 Knipe and Hiesler (1 P. A. Browne's Rep. 319) '- - 359 Knorr v. Picket (4 Desaus. Rep. 92) - . , 357 Kvebsand The State (6 Harr. & Johns. 31) - - ' -219 Krider v. Deklyne (13 Serg. & Rawle, 147) - - 441 L. Lamar and Milledge (4 Desaus. Rep. 623) - . -1 Lambert and Brown, Ex. (16 Johns. Rep. 148) - - 440 Landis v. Urie (10 Serg. & Rawle, 316) - - 4ic? Hartness (1 Wend. Rep. 303) - - 466 Furdew v. Jackson (1 Russ. Rep. 1) ' - - - 219 Purvis and Dickinson (8 Serg. & Rawle, 71) - - 303 Pusey v. Clemson (9 Serg. & Rawle, 208) - - - 347 Q. Quince and M'Nicll (2 Hayw. Rop. 153) . «- .. A 4^4, R. Rahm and The Commonwealth (2 Serg. 8c Rawle, 375) - - 146 Rambler v. Tryon (7 Serg. St Rawle, 90) - , .9 Ramsay's Ex. and Dixon's Ex. (3 C ranch, 319) - . . 108 Rathbone and Pelletreau (18 Johns. Rep. 429) .... 455 Rattoon v. Overacker (8 Johns. Rep. 97) - - . 242 Read and Walmesley (1 Yeates, 87) „ - 2 Reed et ux. v. Borland (14 Mass. Rep. 208) . - . - 16 v. Cist (7 Serg. & Rawle, 183) . . .153 Reichenback and Dornick (10 Serg. & Rawle, 84) 9 Remsen and Cooper (3 Johns. Cha. Rep. 382) - . 314 Reynolds v. Reynolds (16 Serg. & Rawle, 82) - - .0 Rice and Benson (2 Nott & M'Cord, 577) - . . 129 Richards and Harvey (1 Mason's Rep. 581) . . 386 Riley v. Riley (3 Day's Rep. 74) - ... 10s Rine and Wilson (1 Harr. & Johns. 139) - ... 306 Robinson v. Martin (2 Yeates, 525) - . . . 303 Rootes and Wilcox (1 Wash. Rep. 140) - - - 17 1 TABLE OF Page Rootes v. Webb (4 Munf. 77) • . . 341 Roosevelt and Dale (8 Cow. Rep. 3.33) - . . 448 v. Mark (& Johns. Cha. Repi 266) - - - 28? Rossiter and Simmons (6 Serg. & Rawle, 452) - . - 2 Rothmalcr's Adm. v. Myers (4 Desaus. Rep. 215) - . 346 Rowan and Harrison (3 Wash' C. C. Rep. 580) . 2 Royal v. Eppes (2 Munf. 479) - - - - 122 Riidd and Long (4 Johns. Rep. 190) - - - 440 Rutledge v. Rutledge's Creditors (1 M'Cord's Cha, Rep. 460) - 412 S. Sabin v. Gilraan (Adams' Rep. 198) - - - 108 Savage and Kennedy (2 P. A. Browne's Rep. 178) - - -152 ScheifTelin v. Stewart (1 Johns. Ch. Rep. 620) - - 480 Scott v. Burch (6 Han-. & Johns. 67) ... 129 Sears and Fenwick (1 Cranch, 259) - - - 108 v. Dillingham (12 Mass. Rep. 358) - 2~ Seaver v. Lewis (14 Mass. Rep. 83) - - » - 418 Sedgwick and Lee (1 Root's Rep. 52) ' - - - - 89 Semmes v. Semmes (7 Harr. and Johns. 388) - - 12 Sewell and Fishwick's Adm. (4 Harr. & Johns. 393) - - 432 Sexman and Kerns (16 Serg. Sc Rawle, 315) - - 2 Shauffler v. Stoever, Adm. (4*Serg. & Rawle, 202) - - 121 Sheblearce? 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 v.Owens (1 Rawle, 72) . - - - -463 Shillaber v. Wyman (15 Mass. Rep. 322) - - - 242 Shoolbred and Drayton (2 Desaus. Rep. 246) - - - 362 Shult v. Barker (12 Serg. & Rawle, 272) - - - 206 Shutz's Appeal (11 Serg. & Rawle, 182) - - - 286 Siglar v. Haywood (8 Wheat. 675) - - - 456 Simmons and Lattimore (13 Serg. & Rawle, 185) - - - 462 and Rossiter (6 Serg. & Rawle, 452) - - - 2 Simon, Adm. v. Albright (12 Serg. and Rawle, 429) - - 444 Simonton and Armstrong (2 Tayl. Rep. 266) - - - 219 Simpson and Drum's Lessee (6 Binn. 478) - - - 2 Somerset Baaik and Curtis (7 Harr. & Johns. 25) - - - 463 Small v. Small (4 Grcenl. Rep. 220) - ' - . 8 Smart an d Stephens (1 Car. Law Rep. 471) - - - 108 and Williamson (Tayl. R^p. 219) - - - 386 Smith v. Porter (1 Binn. 209) - - - - 287 and Montague (13 Mass. Rep. 396) - - - 6 and Howell's Adm. (2 M'Cord's Rep. 516) - - 37 and Geyer (1 Dall. 347, n.) ■ - - - 463 and Graft' (1 Dall. 141) - - - -145 — und Morris's Lessee (1 Yeates, 238) - 145 AMERICAN CASES. H Page Smith and Zebach's Lessee (3 Binn. 69) - - - 362 Smith's Aclm. and Tazewell (1 Rand. Rep. 313) - - 173 Smith's Case (2 Desaus. Rep. 123, n.) - - - 300 Smithson and Dorse)' (6 Harr. andJohns. 61) - - 39 Snelgrove v. Snelgrove (4 Desaus. 274) - -. 2 Snyder and Dougherty (15 Serg. 8c Rawle, 84) - -227 Snyder's Lessee v. Snyder (6 Binn. 483) - - -146 Southwick v. Jordan (15 Mass. Rep. 113) - - - 22 •Stambaugh and Penn. Ag. Bank (13 Serg. 8c Rawle, 303) - 468 Stammers and Weston (IDall. 2) - - - - 2 Stanet v. Douglass (2 Yeates, 48) - - - -• y Stanley and Nailer's Ex. (10 Serg. 8c Rawle, 450) - 146 Stark ana? Sheppard's Ex. (3 Munf. Rep. 29) - -341 Starr cue? Durant (11 Mass. Rep. 527) - - 2 State (of Maryland) v. Cradock, (7 Harr. 8c Johns. 40) - - 405 and Dukehart's Ex. (4 Harr. 8c Johns. 506) 140 i v. Krebs (6 Harr. 8c Johns. 31) - - 219 Stein v. North (3 Yeates, 324) - - - - 1 Stephen v. Smart (1 Carol. Law Rep. 471) ' - - - 108 Stephens v. Gaylord (11 Mass. Rep. 369) - 108. 317 Steuart and Tilghman (4 Harr. 8c Johns. 156) - 3 Stevens and Thomas (4 Johns. Cha. Rep. 607) - - 300 Stewart and Byrne's Adm. (3 Desaus. Rep. 135) - - 219 and Scheiffelin (1 Johns. Cha. Rep. 620) - 480 v. Carson's Ex. (1 Desaus. Rep. 501) - - - 301 v. Stewart (7 Johns. Cha. Rep. 244) - - - 84 Stewart's Will, case of, (stated 4 Harr. 8c Johns. 162) - - 3 Stoever, Adm. and Shauffler (4 Serg. 8c Rawle, 202) - 121 v. Ludwig (4 Serg. 8c Rawle, 20l) - - - 90 Stone and Greave (1 Harr. 8c Johns. 405) - - - 464 v. Damon (12 Mass. Rep. 488) • - - 9 v. Massey (2 Yeates, 369) - - - - 305 Storrs and Williams (6 Johns. Cha. Rep. 353) - - 108 Stout v. Hart (2 Halst. Rep. 414) - - - 303 and Miller (2 P. A. Browne's Rep. 294) - - - 145 StovalFs 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) - - - 324 and Picquet (3 Mason's Rep. 469) - - -108 S wann and Guage (1 Hayw. 3) - - - 223 Swearingen v. Pendleton's Ex. (4 Serg. &. Rawle, 389) - - 469 Swicard and Wilson (2 Rep. Const. Ct. So. Carolina, 208) - - 464 Swift v. Duffield (5 Serg. & Rawle, 40) - - 3D Sword's Lessee v. Adams (3 Yeates, 34) - - - 303 • T. Taggart and Toner (5 Binn. 491) - - - 1 Tallman and Woodward's E\. and Wood (Coxe's N. J. Rep. 153) - 348 TABLE OF U. Page - 108 - 314 - 173 - 9 -300 Tallmftdge v. Chapel (16 Mass. Rep. 71) and Genet (1 Johns. Cha. Rep. 3) - Tatem and Evans (9 Serg. & Rawle, 252) - - 1° 8 Taylor and Bevan (7 Serg. and>Rawle, 397) - 3 . 82 and Lloyd's Lessee (2 Dall. 223) v. Taylor (2 Nott & M'Cord, 485) Tazewell v. Smith's Adm. (1 Rand. Rep. 313) Temple v. Temple (1 Hen. & Munf. 476) Thomas and Stevens (4 Johns. Cha. Rep. 607) V.Thompson (2 Johns. Rep. 471) Thompson and Thomas (2 Johns. Rep. 471) Thompson's Adm. v. Thompson's Ex. (6 Munf. 514) Tilden and Brown's Ex. (5'Harr. & Johns 371) Tilghman v. Stewart (4 Harr. and Johns. 156) - - - 3 Tilley and Champl'm (3 Day's Rep. 303) Todd v. Todd's Ex. (1 Serg. & Rawle, 453) Toner v. taggart (5 Binn. 490) Torbert v. Twining (1 Yeates, 432) - - „ Towle v. Lovctt (6 Mass. Rep. 294) - - *3 2 Trecothick v. Austen (4 Mason's Rep. 16) Tremper and Holmes (2 Johns. Rep. 29) - 19S Tryon and Rambler (7 Serg. and Rawle, 90) 7 - 9 Tucker and Wells (3 Binn. 370) . - " 233 Tunis and Frazier (1 Binn. 254) Turnbull and Gillon (1 M'Cord's Cha. Rep. 148) - -323 Tumipseed v. Hawkins (1 M'Cord's Rep. 272) Twining and Torbert (1 Yeates, 432) - - - 225 19 Udall v. Kenney (5 Cow. Rep. 590) Clmer and Paine (7 Mass. Rep. 317) - - - *34 Umbehower and Miller (10 Serg. & Rawle, 51) - 43 j Union Bank v. Emerson (15 Mass. Rep. 159) . - Urie cmtZLandis (10 Serg. &. Rawle, 316) - - -464 Vanderost's Ex. v. Whitner (2 Bay, 399) - 440 Yan Alst v. Hunter (5 Johns. Cha. Rep. 158) - 9 Van Bramer v. Hoffman's Ex. (2 Johns. Ca. 200) Yan Home v. Fonda (5 Johns. Cha. Rep. 38S) - - 42 Van Swear'mgen and Nass (7 Serg. &. Rawle, 192) •i ) Vaughan v. Wilson (4 Hen. and Munf. 152) Vernoy and Hcrnaance (6 Johns. Rep. 5) - 198 w. Wachsmuth and Kennedy (12 Serg. and Pawle, 171) - 146 AYagner v. M'Donald (2 Harr. and Johns. J U>) - - 58 AMERICAN CASES. liii Page Walden's Ex. v. Payne (2 Wash. Rep. 1) 341 Wales v. Willard (2 Mass. Hep. 121) - - - 120 Walker and Duncan (2 Dall. 20*5 - -386 "Walker's Adm. v. Smith (3 Yeates, 480) - - 382 Walker's Estate (9 Serg\ & Ravvle, 223) - - 456 Wallace v. Pitzsimons (1 Dall. 248) - - - 162 Walmesleyv. Read (1 Yeates, 87) - - - 2 Walton v. Walton (7 Johns. Cha. Rep. 264) - 22. 301 Ward and Gale (14 Mass. Rep. 352) - - - l l ->8 and Woodrop (■> Desaus Rep. 203) - - • 455 Ware's Lessee v. Fisher (2 Yeates, 578) - - - 386 Warren v. Wig-fall (3 Desaus Rep. 47) - - - 300 Watson, Adm. v. Plane (12 Serg\ and Rawle, 131) - 158. 432 and Wilson (1 Peters' C. C. Rep. 269) - - 145 Webb and Rootes (4 Munf. 77) - 341 Weeden v. Bartlett (6 Munf. 123) - . . 4 Weishaup v. Brehman (5 Binn. 118.) - - - 303 Wellborn v. Gordon (1 Murph. 103) - - - 467 Wells v. Tucker (3 Binn. 370) - - - 233 West's Case (cited 1 Dall. Rep. 281) .- - - 2 West v. West (10 Serg\ and Rawle, 446) - - 8 Weston v. Stammers (1 Dall. Rep. 2) # - - - 2 Whitaker v. Whitaker (6 Johns. Rep. 117) - 81. 219. 463 White v. Helmes (1 M* Cord's Rep. 430) - - - 2 Whitncr and Vanderost's Ex. (2 Bay, 399) - - 440 Wieser and Collins (12 Serg. & Rawle, 97) - - -463 AVigfall and Warren (3 Desaus. Rep. 47) - - 300, 301 Wightman and Pearson (2 Rep. Const. Court, 343) - - 2 Wilcox v. Rootes (1 Wasli. Rep. 140) - - - 17 Wilkins and Riddle (1 Peters' Sup. C. Rep. 686) - - 437 and Brush (4 Johns. Cha. Rep. 506) - 17 Wilkinson and Cutchin (1 Call's Rep. 2) - - 85 Willard and Wales (2 Mass. Rep. 121) - - - 120 Williams and Perkins (2 Root's Rep. 462) - - 108 and Strong (12 Mass. 391) - . - -337 v. Crary (8 Cow. Rep. 246) - - - 336 v. Storrs (6 Johns. Cha. -Rep. 353) - - 108 Williamson v. Smart (Tayl. Rep. 219) - - - 386 Wilson and Hight (1 Dall. Rep. 94) 2. 9 v. Hurst's Ex. (1 Peters' C. C. Rep. 441) - 468 v. Long (12 Serg. & Rawle, 58) ... 462 v. Rine (1 Harr. & Johns. 139) - - 306 and Swicard (2 Rep. Const. Ct. So. Carolina, 208) - 464 and Vaughan (2 Hen. and Munf. 452) - - - 222 v. Watson (1 Peters' C. C. Rep. 269) - - 145 v. Wilson (3 Binn. 562. 9 Serg. & Rawle, 428) - 355 Wilson's Ex. and Allison (13 Serg. and Rawle, 330) - - 412 Windows v. Mitchell (1 Murphy's Rep. 127)' Winds and Geer (4 Desaus. Rep. 85) 00 llV TABLE OF AMERICAN CASES. Page Winship v. Bass (12 Mass. Bep. 199.) . . . 350 Wister and Miles (5 Binn. 477) - . . - 327 Withcrspoon's Heirs v. Withcrspoon's Ex. (2 M 'Cord's Bep. 520) - 3 Woiklrop v. Ward (3 Desaus. Bep. 203) - - - 455 Wood v. Tallman and Woodward's Ex. (Coxe's N. J. Bep. 153) 3 13 Woodberry v. Collins' Ex. (1 Desaus. Bep. 425) - ' . 299 Woodhouse's Adm. and Dykes (3 Band. Bep. 288) - - 352 Woodson and Stovall's Ex. (2 Munf. 303) • - - - 341 Wright and Lee (1 Bawle's Bep. 151) - - 242. 364 v. Wright (1 Cow. Bep. 598) - - - 234 v. Wright's Ex. (2 Desaus. Bep. 244) - • - 10 Wyman and Shillaber (15 Mass. Bep. 322) - - - 242 Y. Yates 'and Dewitt (10 Johns. Bep. 156.) - . 334 Yerby v. Yerby (3 Call's Bep. 334) • - - - 13 Young and Eyster (3 Yeatcs, 511) - - -2 and Bickle, Adm. (3 Serg. and Bawle, 235) - - 146 and M'Culiough (IB-inn. 63) - - - 108 z. Zebach's Lessee v. Smith (3 Binn. 69) - ' - 362 ERRATA. Page 4, note (3), after White v. Ilelmcs, add "and in Maryland. Rush v. Soweywine, 3 Harr. & Johns. 97." Page 14, note (5), after 2 Yeates, 171, add " Wilmofs Lessee v. Talbot, 3 Harr. & M'Hen. 2." Page 90, for the paragraph in the text, " but from among persons in equal degree, in case they apply, the ordinary has the power of making his elec- tion" — refer to Taylor v. Dclaney, 2 Cainc's Cases in Error, 143. Page 146, 10th line from the bottom, instead of Girard v. M'Dermatt, 6 Serg. & Kawle, 128, read 5 Serg. Sc Rawle, 128. Page 444, to end of note (2) add " Reno, Ex. v. Davis, 4 Hen. &. Mtinf. THE LAW OF EXECUTORS AND ADMINISTRATORS. BOOK I. OF THE APPOINTMENT OF EXECUTORS AND ADMINISTRATORS. CHAP. I. OF WILLS AND CODICILS WHO MAY MAKE THEM WHO NOT— - HOW THEY ARE ANNULLED OR REVOKED — HOW REPUBLISHED. Before I enter on the subject of this treatise, I shall state some general propositions in regard to wills. A will, or testament, is defined to be the legal declaration of a party's intentions, which he directs to be performed after his death (a). (1) A will may relate either to real, or to personal property. In the former case, it is denominated a devise, which is an appoint- ment of a person to take in the nature of a convey [2]ance, although fluctuating till the testator's death, and will pass only such estate as he was seised of at the time of making it(5); the right to devise (a) 2 Bl. Com. 499, 500. Swift v. Roberts, Amb. 619. Oke v. (b) 4 Bac. Abr. 242. 2 Bl. Com. 378. Heath, 1 Ves. 141. Brydges v. Duch. of 501. Wind v. Jekyl, 1 P. Wms, 575. Chandos, 2 Ves. Jun. 427. (1) Per Joknso?i J. 1 M'Cord's Rep. 522. 2 M'Cord's Rep. 522. Per Duncan J. 4 Serg. &. Rawle, 546. And it is not indispensable that the 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 disposition of a man's estate upon his death, it will enure as a will. Lyles v. Lyles, 2 Nott & M'Cord, 531. Henry v. Ballard, 2 Car. Law Rep. 595. See Mi Hedge x. Lamar, 4 Desaus. Rep. 623. When a testamentary disposition of the writer's estate is intended to be made by it, a letter (Morrell v. Dickey, 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 dispo- sition, and not the intention to do some future act. Stein v. North, o Yeates, 324. M'Gee v. M'Cants, 1 M'Cord, 517. Plumstead's Appeal, 4 Serg. & Rawle, 545. Shields v. Trtvin cf at. 3 Yeates, 3S9. Toner v. Taggart, 5 Binn. 490. 1 2 OF WILLS AND CODICILS, (_BOOK I. arising from the stat. 32 Hen. 8. c. 1. which enacts, that persons /taring lands may devise the same. By the statute of frauds and perjuries, 29 Car. 2. c. 3, (1) it shall not only be in writing,(2) but (1) Passed in 1676, to take effect from and after June 24th, 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, "that all wills in writing wherein or whereby any lands, tenements, or hereditaments, within tliis province, have been, are, or shall be devised, being proved by two or more credible wit- nesses, upon their solemn affirmation, or by other legal proof in this province, or being proved in the Chancery in England, and the bill, answer, and depositions transmitted luther, 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 take probates of wills, and grant letters of ad- ministration, 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 en- tered in the Register 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 bequeathed; and the copies of all wills, and probates, under the public seals of the Courts or offices where the same have been or shall be taken or granted respectively, other than copies or probates of such wills as shall appear to be annulled, disproved, or revoked, shall be judged and deemed, and are hereby enacted to be matter of record, and shall be good evidence to prove the gift or devise thereby made; and all such probates, as well as all letters of administration granted out of this pro- vince, being produced here, under the seals of the Courts or offices granting the same, shall be as sufficient to enable the executors or administrators, hy themselves or attorneys, to bring their actions in any court within this province, as if the 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 Eng land in March of the same year, "that all wills in writing, attested by two suffi- cient witnesses, shall be of the same force to lands as to other conveyances, being legally proved within forty days, cither within or without the province." (Prov. Laws, App. 7.) The earliest will upon record in the office of the Register of Wills at Philadelphia, is that of William Clar/ce, dated 12th of May, 1681, in Book A. page 5, which is executed in the presence of two witnesses ; but the wills on record in the same book, bearing date in 1682, 1683, are generally exe cuted 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 constitute a will, even of lands, that it should be sealed, or subscribed by wit- nesses, nor that the proof of the will should be made by those who subscribed as witnesses, nor that all the subscribing witnesses should prove the will. Hight \. Wilson, 1 Dall. Rep. 94. JLrdnt v. 'jlrdnt, 1 Serg. & Rawle, 256. It is only ne- cessary that it should be reduced to writing, in pursuance of his direction or in- structions, during the testator's lifetime, and these facts proved by two witnesses; signing by the testator, formal publication, and attestation by subscribing- wit- nesses, being unnecessary. 16 Serg. & Rawle, 316. Rossiter v. Simmons, 6 Serg. &. Rawle, 452. Walmcsley v. Read, 1 Yeates, 87. But it is not necessary that the will should be read to the testator, {Rossiter v. Simmons. Lewis v. Lewis, 6 Serg. & Rawle, 489,) unless some reasonable ground be laid for considering the circumstance, that it was not read, as a badge of fraud. Harrison v. Rowan, 3 Wash. C.C. Rep. 580. This. last mentioned decision, it is to be observed, however, was not made with 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 separately to all facts necessary to complete the chain of CHAP. I.] OF WILLS AND CODICILS. 2 signed by the testator, or some other person in his presence, anil by evidence, so that no link of it may depend upon the credibility of hut one, and if the act of Assembly were out of the question, the case would be well made out by the evidence of cither ; and circumstantial proof cannot, therefore, be made by two or more witnesses alternating with each other, as to the different parts of the aggregate of circumstances which are necessary to make up the necessary sum of proof, the evidence of each not going to the whole. Hock v. Hock, 6 Serg. & Kawle, 47. Reynolds v. Reynolds, 16 Serg. & Rawle, 82. Lewis v. Marls, 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 without having it read to him, and the testator complained 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 was not perfected, mentioned his earnest desire 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 direc- tions to draw his will, was proved by three witnesses, it was held, in a Nisi I'riics case, that the will drawn by C being conformable to tbe testator's verbal instruc- tions, was a good will in writing under the act of Assembly of 1705. Wulmcslcy v. Read, 1 Yeates, 87. One witness, therefore, 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 testa- tor; and other witnesses may prove the testator's instructions as derived from him- self, and their identity and conformity with the contents of the written will proved by the'first witness, though the declarations of the testator, as to what the in- structions for his will were, do not refer to, or recognise the fact, that to his knowledge a will had been reduced to writing in conformity with his instructions, but merely shew what his will is. Two recent decisions of the Supreme Com-t, however, have settled the law to be, that where one witness swears to the pre- paration or publication of a paper as a last will, proof by other witnesses of decla- rations by the testator, that he had made a will, must, in order to establish the will, be of declarations made in reference to that particular paper. Hockv. Hock, 6 Serg. St Rawle, 47. Reynolds v. Reynolds, 16 Serg. 8c Rawle, 82. It is said in the marginal note of Eyster v. Young, 3 Yeates, 511, 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 immediate act of disposition." This, however, is taken from a dictum of the Court in charging the jury, and there was no necessity in that case for having recourse to such doctrine, which is not very intelligible, for the instructions of the testator were reduced to writing, afterwards read to him in the presence of two witnesses, and were I'stablfshed as his will in preference to a more formal will prepared from them by flic witness who had written down the testator's instructions, but which dif- fered from them in some particulars, the witness who took the instructions hav iag trusted for some things to his memory. The same doctrine is stated also in the marginal note of another Nisi Prius case, Boudinot v. Bradford, 2 Yeates, 170. 2 Dall. Rep. 266. The real question however involved in this case, the reports of which are very unsatisfactory, was the sanity of the testator, and his intention in destroying a will; which one witness, his nephew, who was a lawyer, and had nad it to the testator a few days before his death with the view to take his in- structions for preparing another will, swore was in the testator's handwriting, and which another witness, the testator's sister, swore was signed by him, though she thought 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 I to his physician that he had destroyed it, and made use of expressions, and lid certain icts eVinchjg his determination to die intestate. In addition to the 2 OF WILLS AND CODICILS. [BOOK I. his express directions; and be subscribed in his presence by threu or four credible witnesses («).(1) 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 subscribing witnesses should be together present, at the time of the execution. And the attestation of each witness separately is suffi- cient^).^) "I A. B. do make this my will," is equivalent to signature, and if acknowledged before three witnesses, is a good execution within the statute (c).(4) If the witnesses to a will attest the execution of it by the testa- tor in an adjoining room, and the testator, from his situation, can («) Vide Ellis v. Smith, 1 Ves. Jim. (ft) Westbeech v. Kennedy, 1 Ves. 1 1. Broderick v. Broderick, 1 P. Wms. &. Bea. 362. 239. and Stonehouse v. Evelyn, 3 P. (c) Morrison v. Tumour, 18 Ves. 183. Wms. 254. proof by the nephew and sister of the testator, the report of Judge Ycates states the determination of the testator to republish this will, and make an alteration in one of the devises, by a codicil annexed thereto, which codicil he subscribed, and published in the presence of four 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 1 proved by one witness who saw the fact, and another to whom the testator stated the fact, and made certain declarations eviri cing his intention in so doing, all these circumstances were left to the jury, who found that the destruction 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 v. Reynolds, 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 affirmation, in order to admit the attestation of an oath. West's Case, before the Register General (Mr. Chew, afterwards Ch. Justice) in 1773, cited 1 Dall. Rep. 281. Lewis v. Maris, 1 Dall. Rep. 278. And notwith- standing it is stated in Westons v. Stammers, 1 Dall. ltep.2, that "an exemplifi- cation of a will, made in England, and certified generally to have been proved in the Prerogative Court of Canterbury, under the seal of that Court, was allowed to be read in 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 Penn sylvania, it must be proved by two witnesses; and therefore the 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 tin? otlui two witnesses attested the same in the presence of the testator, the copy b*ing authenticated under the seal of the surrogate's oflicc, and entered in the Register General's office in Pennsylvania, is not admissible in evidence in the Courts ol Pennsylvania, //////on v. Brown, 1 Wash. C. C. Rep. 299. (1) Case of Cochran's Witt, 3 Bibb's liep. 491. Burwcll v. Corbin, 1 Rand Rep. 131. (2) Lewis v. Lewis, 6 Serg; & Rawle, 496. Case of Cochran's Witt. EibecA -». Granberry, 2 Hayw. liep. 252. (3) .///•<■. (in Pennsylvania) Reynoldsw. Reynolds, 16 Serg. & Rawle, 85.' l/i ter in So. Carelina, Snelgrove v. Snelgrove, Dunlap v. Tktnlap, 1 Desaus. Rep 27 1 305. Tuniijirnd v Hawkins, 1 M'Cord's Rip. 272. See the note to Cruise > & Digest, vol. vi. page 63, 2d Am. edition, for the law on this subject in the several States; and the note to Weslbeech \ funned//, 1 Ves $ Beam 362 Am edil (4) Pearson v. Wight man, 2 Rep. Const. Court, {So. Carolma) : 1 ; CHAP. I.] OF WILLS AND CODICILS. 2 see them attest it, it is a good attestation within the statute, (lj But if the testator be not so situated that he can see them attest the will, it is not a good attestation thereof (d). (2) The wife of an acting executor taking no beneficial interest un- der the will, is a competent attesting witness to prove the execu lion of it, within the description of a credible witness (e). (3) 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 pow- er to sell freehold lands in fee, but taking no beneficial interest un- der the will, is a good attesting witness to it (/)-(4) A will, as it respects personal property, is an indefinite disposi- tion of all the testator may be possessed of at his death (g), inclu- sive of chattel leases, whether they were his at the time of making his will or not (A), and is of two species, written, or nuncupative: if of the former, it may be committed to writing either by the tes- tator himself, or by his directions (/); nor is the affixing of his seal to the instrument, nor the presence of witnesses at its publication, essential* to its validity; (5) yet it is safer, and more prudent, and leaves less in the breast of the ecclesiastical judge, if it be not only (d) Forrester v. Figou, 1 Maul. 8t Sel. Souls' Coll; v. Codrington, 1 P. Wms. 9. 598. Brydges v. Duch. of Chandos, 2 (c) Bettison v. Bromley, 12 East. 250. Tes. jun. 427. (/) Fhipps v. Pitcher, 6 Taunt. Rep. (//) Wind v. Jekyl, 1 P. Wms. 575, 220. l.Madd. Rep. 144. (i) Huntingdon v. Huntingdon; 2 (g) Okev. Heath, 1 Yes. 141. All Phill. Rep.213. Sikes v. Snaith, ib. 356, (1) Mason v. Harrison et al. 5 Harr. & Johns. 480. (2) Dunlap v. Dunlap, 4 Desaus. 311. Edelen v. Hardy's Lessee, 7 Harr. & Johns. 61. (3) Hawley v. Brown, 1 Root's Rep. 494. (4) Though the general practice of the English Chancery, to admit a trus tee as a witness, has been uniformly adopted in Pennsylvania, (Drum's Lessee v. Simpson, 6 Binn. 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. Vansanl v. Boileau, 1 Binn. 444. A devisee, not a party to the issue who attested the will, is a good witness to prove it, if before the trial she and her husband transfer their interest, and receive a release to the husband of all actions from the transferee. Kerns v. Sexman, 16 Serg. &. Rawle, 315. And the wife of a legatee, or the husband of a devisee, is a competent witness on the proper release being executed, though it be not accepted. Brayfield v. Brayfield, 3 Harr & Johns. 208, which was the case of a nuncupative will. Shaffer's Lessee v. Corbet f, 3 Harr. &. M'Hen. 513. In Massachusetts an executor, who is a mere trustee, and takes no beneficial interest under the will, is an incompetent witness to prove the execution of the will, or the 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 difference. Durant v. Starr, 11 Mass. Rep. 527. Scars v. Dillingham, 12 Mass Rep. 358. But in England, in ejectment against a devisee, where the question turns upon the sanity of the testator, an executor, who takes a pecuniary inl cr- est under the will, is a competent witness to support it; inasmuch as the verdict would only have the effect of establishing the will as to the lane!, and would, in any proceeding to establish the will as to the personalty, be treated as re tit!'* alios acta. Doc v. Teage, 5 Darn & CressNj 335 (5) Ace. (So. Carolina,) White \ mimes, 1 M 'Cord's Rep L3< 2 OF WILLS AND CODICILS. [BOOK I, signed by the testator, but also published in tbc presence of wit- nesses (i). But although the testator's seal, and the attestation to the will, and, under certain circumstances, even his signature, may be omit- ted, and still it may operate as an available dis[3]position of per- sonal estate ( k); (1) yet if, on the omission of either of those solem- nities, a fair presumption may be raised of an abandonment of in- tention on the part of the deceased, or that his intention was mere- ly ambulatory, the instrument shall have no effect. Thus, where the party wrote a paper purporting to be a testamentary disposi- tion 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 pa- per propounded for a will without signing it, from the omission of the signature, the inference and decision were the same. (2 J In these and the like cases, the framer of the instrument appears evi- dently to have contemplated a farther solemnity, as essential to its perfection; and such solemnity not having been superadded, and the instrument being left inchoate and imperfect, a change of inten- tion may reasonably be presumed (I). But such presumption may be repelled by evidence, as by shewing that the party was suddenly arrested by death, or incapacitated by illness, before the instrument could be conveniently perfected (m), or by proving his recognition of it in extremis, or by circumstances shewing he intended it to operate in that form, for the presumption from such an omission that he intended doing something morcj is slight, and may be re- pelled by slight circumstances (n). 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 writ- ing, attested by two or more credible witnesses. But it has been adjudged that although the same should not be so bequeathed, yet it devolves on the executor in trust for those who are entitled to the personal estate (o). With regard to nuncupative wills, the unqualified allowance ol (/') 2 61. Com. 501, 502. Godolph. and see Walker v. Walker, 1 Mcri. Rep p. 1. c.21. s. 2. Vide Limbers' v. Ma- 503. son, Com. Hep. 451. (m) Baillie v. Mitchell, in Prerog, (/.) Read v. Phillips, 2 Phill. Rep. 122. Court, 1805. (/) Mathews v. Warner, 4 Ves. jun. (n) Harris v. Bedford, 2 Phill. Rep lo6. and 5 Ves. jun. 2.3. Griffin's case, 177. cited in Mathews v. Warner, and in ex- («) Ripley v. Watcrworth, 7 Ves. jun parte Fearon, 5 Ves. jun. 644. and 452. Coles v. Trccolhick, 9 Ves. juii. 249. (1) Brown's Ea \ Tilden, 5 Ilarr. & Johns. 371. (2) Tilgkmanv. Sleuart,'4 Han 8tiJohns 156, Case of A. Stewart's Will, (stated) 4 II in : Fohra 162 See Witlurspoon'^tHdrs^v, fVithcrspooi E mi ord, i f0 CHAP. 1.] OT' WILLS AND CODICILS. 4 them was found productive of the greatest frauds, [4] and it he came necessary to subject them to very strict regulations. Accord ingly 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 exceed the value of thirty pounds,(2J that is not proved by the oaths of three witnesses at the least, who were present at the making thereof ( who, by stat. 4 & 5 Jinn. c. 16., must be such as are admissible on trials at common law), (3) nor unless it be proved, that the testator, at the time of pronouncing the same, did bid the per sons present, or some of them, bear witness that such was his will, or to that eflect;(4) 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 oi more, next before the making of such will, except where such per- son was taken sick from home, and died before his return; nor, after six months past after the speaking of the pretended testamen- tary words, shall any testimony be received to prove any will (1) In Pennsylvania, by the 3d and 4th sections of the act of 1705, which are almost transcripts from the stat. 29 Cur. 2. (Purd. Dig. 801. 1 Dall. Laws, 53. 1 Sm. Caws, 33.) "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 the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons pre- sent or some of them, bear witness that such was his will, or to that effect; nor unless such nuncupative will be made in the time of the last sickness of the de ceased, and in the house of his or their habitation or dwelling, or where he or she hath been resident for the space of ten days or more, next before the making of such will, except where such person was surprised or taken sick, being from his own house, and died before he returned to the place of his or her dwelling." "After six months past, after speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said tes- timony, or the substance thereof, were committed to writing within six days after making of the said will." And by the 5th section, " No letters testamentary or probate of any nuncupa- tive will, shall pass the seal of the Register general's office, in the respective coun- ties of this province, till fourteen days, at the least, after the death of the testator be fully expired ; nor shall any nuncupative will be at any time received to be proved, unless process shall have first issued to call in the widow or next of kin- dred to the deceased, to the end that they may contest the same, if they please." (2) Wecden v. Bartlctt, 6 Munf. 123. Thirty dollars is the amount in Virginia. The amount of property in the case of Brayfield v. Brayfield, 3 Harr. & Johns. 208, where the nuncupative will was regularly proved, was 3236 Dollars 48 cents, (3) A legatee who releases his interest is admissible, though the release be not accepted. Brayfield v. Brayfield, 3 Ilarr. & Johns. 208. A free negro is incom- petent in Smith Carolina in any case where the rights of white persons are con- cerned. White v. Helmes, 1 M'Cord, 430. (4) Bennett v. Jackson, 2 Phill. Hep. 190. M'Gee v. M'Cunts, 1 M'Cord, 518. See Mason v. Dunman, 1 Munf. 456, where notes dictated animo lestandi to a per- son by the decedent, with the view to have a written will prepared, were estab- lished (in Virginia) as a good Jiuncuputive will, though a written one was pre- pared from them, which the testator was unable to execute, being delirious. The f factum of a nuncupative will requires to be proved by evidence more strict and 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, he- mann v. Bonsull, 1 Addam's Rep. 389, 4 OF WILLS AND CODICILS. [BOOK I. nuncupative, except the testimony, or the substance thereof, wen committed to writing within six days after the making of the said will (o). Soldiers in actual military service, and mariners, or seamen at sea, are exempted from the provisions of this act.(l) The former may at this day make nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms and so- lemnities which the law requires in other cases (p). [5] But, with respect to the latter, this licence no longer exists. The perpetual impositions practised on this meritorious and un- suspecting body of men induced the legislature to adopt a new po- licy, and to divest them of a privilege, which, instead of being beneficial to them, was perverted to purposes the most injurious. Many salutary regulations were accordingly prescribed by the statutes 26 Geo. 3. c. 63., 32 Geo. 3. c. 34., and 49 Geo. 3. c. 10S., 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, 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 testa- tor, and to be taken as part of the same, either for the purpose of explaining, or altering, or of adding to, or subtracting from, his former dispositions (iff. A codicil may be annexed to the will, either actually or con- structively. 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 four credible witnes- ses (r). To a will of personal estate it may be either written or nuncupative, provided in case of its being the latter, it merely sup- ply an omission in the instrument. Therefore A. having disposed of part of his effects by his will in writing, may dispose of the re- sidue by a nuncupative codicil (s). But by the same statute, as (o) Sec Miller v. Miller, 3 P. Wms. (>•") Onions v. Tyrer, 1 P. Wms. 344. 356. & note 1. ibid. vid. Dougl. 244. note 2. (p) 1 Bl. Com. 417. Stat. 29 Car. 2. Ellis v. Smith, 1 Ves. jan. 11, and infr. c. 3. 8.23. 5 W.3. c. 21. s. 6. 15. 0/) 2 Bl. Com. 500. Swinb. Part 1. (s) Com. Dig. Devise (C.) Raym.334. (1) " Provided always, that notwithstanding this act, any mariner or person be- ing at sea, or soldier being in actual military service, may dispose ol'his moveables, wages and personal estate, as he or they might have done before this act." Act of 1705, sect. 7. Purd. Dig. 804. 1 Dall. Laws, 53. 1 Sm. Laws, 33. CHAP. I.] OF WILLS AND CODICILS. 6 we shall presently see, such codicil shall not operate to repeal, ov alter a will. A written codicil respecting personal estate is au thenticated in the same manner as a will of such property. In respect to copyholds, they are not within the statute of frauds A devise of them operates only as a declaration of uses on the 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 witness; and till that statute required all declarations of trusts to be in writing, even a nuncupative will of copyholds was an effect- ual declaration of the uses, where the surrender was silent as to the form (/). [7] But a devise of customary freeholds, where there is no cus- tom to surrender to the use of the will, must be pursuant to the statute (w). An estate - pur auter vie, being freehold, will pass by such a will only as is so executed (v). In regard to terms for years, as they fall within the description of personal estate, (1) they may be disposed of by will according- ly, withlhis distinction; If they are terms not in gross, but vested in trustees to attend the inheritance, they so partake of its nature, that if the owner devise the land generally, the trust of the term will not pass, unless the will be so attested as to pass the inherit- ance (w). If they are terms in gross of which the testator is pos- sessed, he may transmit them by the same kind of will as any other personalty; yet he cannot create them by will without ob- serving all the forms essential to a devise of real estate; because the interest, in right of which the testator creates the term, is real property, and the creation of the term is a partial devise of it (x). If a will give a sum of money originally, and primarily out of land, the instrument is considered as a devise of real estate, and must be executed with the same solemnities, because the charge is regarded in equity as part of the land, since it can be'raised only by sale, or disposition of part of it (y). [8] Although money covenanted to be laid out in land shall descend as a real estate, and may be devised accordingly, yet he, (/) Ilarg Co. Lilt. 114 b. note 3. and Stat. 29 Car. 2. c. 3. s. 12. and 14 Tutfnell it. Page, 2 Atk. 37. S.C. 2 Bar- Geo. 2. c. 20. nard, Ch. Rep. 9. Attorney General v. (h>) Harg. Co. Litt. 114 b. note 3 Barnes, 2 Vein. 598. Dormer v. Tlnir- Whitchurch v. Whitchurch, Gilb. Ca. in land,2 P. Wins. 510. Harris v. Ingle- Eq. 168. S. C. 2 P. Wins. 236. S.C dew, 3 P. Wms. 96. Carey v. Askew, 9 Mod. 127. Villiers v. Villiers, 2 Atk 2 Bro. Ch. Hep. 58. Church v Mundy. 72. Goodright v. Sales, 2 Wils. 329. 12 Ves. jun. 429. Vid. inf'r. («) Warde v. Warde, Amb. 299. (x) Harg. Co. Lit. 114 b. note 3. (*>) See Watk. Princ. Convey. 22. (y) Brudenell v. Boughton, 2 Atk •272. (1) Ex parte Gay, 5 Mass. Bop. 419. Montague v . Smith, 13 Mass. Rep. 39G. Ghaprrtan \ ■ Uray, 15 Mass. Rep. 439. Brewster v. Hill, 1 New Hump. Rep. 350. 2 8 01- WILLS AND CODICILS, [BOOK J. who is entitled to the fee of -the land when purchased, may dis pose of it as personal property, under the description of so much money to he laid out in land, by a will which is not attested by Ihree witnesses (z). The statute of frauds has been held not to be applicable to the • case of a devise of land in Barbadoes («), because acts of parliament passed in England without naming the foreign plantations will not hind them. A will may be void from the incapacity of the party making it, and secondly, it may be annulled by cancelling, or revoking it (b). There are .three grounds of incapacity; the want of sufficient legal discretion; the want of liberty or free will; and the criminal conduct of the party (c). (1) To the first are subject, by the express provision of the stat. 34 & 35 Hen. 8 c. 5. all infants under the age of twenty-one years in regard to lands (d). (2) In respect to personal estate,- infants un- der the age of fourteen years, if males, (3) and of twelve years, il females, are incompetent to bequeath the same (e): After that pe- riod their incapacity ceases: although, on the one hand it has been strangely asserted, that an infant of any age, even of four years old, may make a testament of per[9]sonal property {/); and on the other, he has been denied before eighteen, to be competent ( g); yet this, as a matter of ecclesiastical cognizance, must be determined by the ecclesiastical law, which has prescribed the rule as above stated (h). But, if the testator, of whatever age, were not of sufficient capa- city, that will invalidate his testament. By the above-mentioned . statute of the 34th and 35th Hen. S. a will of lands made by an idiot, or by any person of nonsane memory, is declared void. Persons afflicted with madness, or any other mental disability, idi- (z) Lingenv. Sowray, lP.Wms. 172. (e) Off. Ex. 213, 214. Harg. Co. Litt. 291. Edwards v. Countess of Warwick, 89 b. note 6. 2 P. Wms. 17*1. S. C. 3 P. Wins. 221. (/) Perkins, s. 503 ; but that seems note. S. C. 2 Eq. Ca. Abr. 298. an error of the press for 14. Vide Harg. (a) Anon. 2 P. Wms. 75. Co. Litt. 89 b. note 6. {b) 2 Bl. Com. 502. ( g) Harg. Co. Litt. 89 b. (c) 2 Bl. Com. 496, 497. (k) 2 Bl. Com. 497. Harg. Co. Litt. (rf) Herbert v. Torball, 1 Sid. 162. 89 b. note 6. Stat. 34 & 35 H. 8. c. 5, s. 14. (1) 4 Greenl. Rep. 223. Dietrich v. Dietrich, 5 Serg. & Rawle, 207. Kussear v. Arnold, 13 Serg. & Rawle, 323. But any one has a right by fair argument and persuasion, or by virtuous influence, to induce another to make a will in his favour. Miller v. Miller, 3 Serg. &. Rawle, 267. Small v. Small, 4 dreenl. Rep. 220. (2) Although the Act of Assembly (of 1705) does not mention the common law disabilities, of coverture, infancy, ideocy, &c, yet these disqualifications exist in Pennsylvania as well as in England. "West v. West, 10 Serg. h Rawle, 446. (3) Dean, Ex. v. Li tilt field, 1 Pick. Rep. 239. In North Carolina, an infant under the age of eighteen years cannot dispose of his personal estate by will Williams v. Baker, 2 Car. Law Rep. 599. UHAP. I.J' OF WILLS AND CODICILS. 9 ots, (1) or natural fools, or those whose intellects are' destroyed by .age, (2) distemper, or drunkenness, (3) are all incapable of ma king a will of personal estate, during the existence of such disabili- ty. In this class also may be ranked those persons, who, having been born deaf, and blind, have ever wanted the common sources of understanding (*'). But a will is not affected by the subsequent insanity of the testator (k). (4) And if a* testator be subject to in- sanity, a will made during a clear lucid interval will be estab- lished (I). (5) In respect to the incapacity arising from the want of liberty, or freedom of will, prisoners, captives, and the like, are not by the law of England absolutely disabled to make a testament; but the court has a discretion of judging, whether from the special circum- stances of duress, such act shall be construed involuntary. A married woman is also precluded, by the aforesaid stat. 34 and 35 Hen. 8. from devising lands. (6) Nor has she the [10] power of bequeathing personal estate. Her personal chattels be- long absolutely to the husband. He may also dispose of her chat- tels real, and he shall have them to himself in case he survive; an interest which necessarily precludes her from such an alicnation(w): yet by the licence of the husband, (7) she may make a testament, (i) 2 Bl. Com. 497. Dow's Rep. 178. (k) 4 Co. 60. (w) 2 Bf Com. 497, 498. 4 Co. 51 (/) Clerke v. Cartwright, 1 Phill. 34 &. 35 Hen. 8. c. 5. s. 14. Rep. 90. White v. Driver, ib. 84. 1 (1) See Rambler v. Tryon, 7 Serg. &. Rawl. 90. Mere feebleness of intellect. ,li(nl of what might l.v many be supposed to amount to idiocy, is insufficient to render a will void. Dorhick v. Rcichenback, 10 Serg. & Rawle, 84. Heister v. Lynch, 1 feateS, 108. (2) But extreme old age does not of itself disqualify a person from making a will. Van Msl v. Hunter, 5 Johns. Cha. Rep. 158, in which case the testator was between 90 and 100 years old. (3) But drunkenness merely of itself is no legal exception to the validity of a will; but where a man's senses are besotted by habitual intoxication, and his un- derstanding gone, he can make no will. Stand v. Douglas, 2 Yeates, 48. Higlit v. Wilson, 1 Dall. 94— the facts of the case. Temple v. Temple, 1 Hen. h Munf. 476. In Pennsylvania, the Act of 25th Feb. 1819, relative to habitual drunkards, provides, that like proceedings shall be had to determine whether a person be an habitual drunkard as in the cases of persons non compotes mentis, and upon the return of an incpiisition finding that a person by reason of habitual drunkenness has become incapable of managing his estate, the Court of Common Pleas shall appoint two guardians or trustees, who shall have the care and management of his estate, and apply so much of the same as shall be necessary to his maintenance and that of his family. (Purd. Dig. 190.) No case, it is believed, has occurred, in which the effect of such an imposition, upon the right of the habitual drunkard to make a will, has been determined. (4) Hughes v. Hughes's E.v. 2 Munf. 209. (5) And if a person who has been placed, under guardianship a.-, non compos mentis, be restored to his reason, he is capable of making a will, although the 1(1 ers of guardianship remain unrevoked. Stone v. Damon, 12 Mass. Rep. 488. (6) See Ante, p. 8, note (2) Cooper's Justinian, 494. (7) Osgood \ Brcah 12 Mass. Rep 532 The testament being in the hush- 10 OF WILLS AND CODICILS. [BOOK I. and, on marriage, he frequently covenants with her friends to al- low her that privilege (n). So, where he stipulates that personal property shall be enjoyed by the wife separately, it must be so en- joyed with all its incidents, one of which is the power of disposi- tion by a testamentary instrument (o). (I) And where she has such power over the principal, it extends also to its produce and accretions (p). (2) But where a feme covert, in consequence of such a contract on the part of the husband, makes a writing in the nature of a will, it seems not in a strict legal sense to operate, as a will, but as an ap- pointment; yet it is so far testamentary, that it must be proved in the spiritual court, before her legatee shall be entitled (q). (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] pro- perty 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 as- sent (s). A feme covert may also make a will of effects, of which she is in possession in autre 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 person- al estate by will, without the consent of her lord (u). Persons incompetent by their crimes are all traitors, and felons without benefit of clergy, from the time of their conviction ami attainder, or outlawry, which amounts to the same; for then their property is no longer at their own disposal, but is altogether for fcitcd (v). (») Dr. h Stud. D. 1. c. 7. 4 Bac ib. 612. 2 Bl. Com. 498. Rex v. Bet Abr. 244. Vide Rex v. Bettesworth, tesworth, Stra. 891. Stra. 891. (r) 4 Bac. Abr. 214. Countess of (o) 4 Bac. Abr. 244. in note. Fetti- Portland v. Probers, 2 Vern. 104. place 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- . (jo) Gore v. Knight, 2 Vern. 535. den v. Walsh, 1 Phil]. Bep. 352. Herbert v. Herbert, Prec. Ch. 44. 355. (/) Oil". Ex. 87. Godolph. 1. 10, 11. ( (4) Wright v. W&gkl's E* 2 Desaus Rep CHAP. I.] OF WILLS AND CODICILS. 1 1 In case a traitor, or felon without benefit of clergy, shall die af- ter conviction, ami before attainder, his lands shall pass by his will, but not his goods and chattels; for the former are forfeited only on attainder, the latter on conviction (w). (1) Nor shall the will of afeio de 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 effectu- al, for of them no forfeiture is incurred (x). As is also that of a party guilty of felony, not punishable with death, for he forfeits only his goods and chattels {y). And a felon of every description may devise lands held in gavelkind; for lands of this tenure arc not forfeited by felony (z). Outlaws also, though merely in civil cases, are intestable, in * respect to their personal property, while their outlawry subsists: for their goods and chattels are forfeited during that time (a). As* for persons, guilty of other crimes inferior to felony, as usu- rers, and libellers, they are not precluded from making testa- ments (b) ; nor, as it seems, is a party excommunicated (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, incapable of making a will; but if he have such licence, he, as well as an alien friend, may bequeath his personal estate (d). (2) They («>) 4B1. Com. 387. Paine v. Teap, 1 Salk. 109. Seel fid. (x) Plowd. 261. Swinb. 106. 4 Bac Shaw v. Culteris, Cro. Eliss. 851. Abr. 247. 4 Bl. Com. 386. 3 Inst. 55. ' (b) tiodotph. p. 1. c. 12. (.y) 4 Bl. Com. 97. Co. Litt. 391. (c) Off. Ex. 17. . (z) 2 Bl. Com. 84. 4 Bl. Com. 386. (d) 1 Bl. Com. 372. Wells v. Wil Lamb. Peramb. 634. • bams, 1 Lutw. 34. 1 Wooddes. 374. («) Fitzh. Abr. tit. Descent, 16. 2 . (1) By the 19th section of the 19th article of the Constitution of the state of Pennsylvania, it is provided, "that no attainder shall work corruption of blood, nor, except during' the life of the offender, forfeiture of estate to the Common- wealth; the estates of such persons as shall destroy their own lives shall descend or vest as in case of natural death, Sic. '* (2) By the 3d section of the Act of 23d Feb. 1791, entitled "a supple- ment to the act entitled ' an act to declare and regulate echeats,' " 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 within this state, either by testament, donation or otherwise," he. (Purd. Dig. 8, 3 Dall. Laws, 8. 3 Sm. Laws, 4.) Acts of assembly have been passed at different periods giving to aliens in Pennsylvania a more or less restricted right to acquhc hnd, and to dispose of it by deed or will, (Act of 31 Aug;. 1778, l'urd. Dig. 7 1 Dall. Laws. 774. 1 Sm. Laws, 461 ; Act of 23d Feb. 1791 ; 10th Feb. 1807, l'urd. Dig. 8. 4 Sm. Laws. 362; Act of 20th March 1811, Purd. Dig. 9. 5 Sm. Laws, 211; Act of 22d March 1814, Purd. Dig. 9. 1 Heed's Laws, 178;) and by tlie act of the 21th March 1818 (Purd. Dig. 9.^2 Reed's Laws, 133,) sect. 1. it is provided that "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 subject or ■ subjects of some foreign stale or power, which is or shall be at the time or times of such purchase or purchases, at war with the United Slates of America, to purchase lands, tenements, and hereditament's, within this. Commonwealth, not exceeding live thousand acres, and to have and to hold the same to lliein, theil heirs and.assigns, forever, as fully to all intents and purposes as any natural tlorn citizen or citizens may or can do," 12 OF WILLS AND CODICILS. [BOOK 1 can neither of them acquire any permanent property in land. They may, indeed, hire, or take leases for years of houses for habitation (e), which chattel [13] interests, it seems, they may dispose of by will (/) : But the stat. 32 Hen. 3. c. 6. s. 13. makes void all leases of houses or shops to an alien artificer, or handicraftsman. And this law, however contrary it may appear to sound policy, and the spirit of commerce, is still in force; but in favour of aliens it has been construed very strictly (g). By stat. 5 Geo. 1. c. 27., British artificers going out of the realm to exercise, or teach their trades abroad, or exercising their trades in foreign parts, who shall not return within six months, af- ter due warning given them, shall be deemed aliens, and incapable pf taking any lands, and shall forfeit all their real and personal estates; consequently, their wills can have no operation here. Secondly, a will of personal estate, and by the statute of frauds a will of lands, may be annulled by burning, cancelling, teasing, or obliterating the same, by the testator, (1) or in his presence, and by his direction and consent (h). And a will of either spe cies 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 irjevocable, which is of an opposite nature (i). (2) With respect to the revocation of a will by the act of cancelling, it is in itself an equivocal act; and in order to make it a revoca- tion, it must be shewn quo anirno it was cancelled; for, unless that appear, it will be no revocation. (3) As, if A. were to throw the ink upon his will instead of the sand, although it might be a complete defacing of the instrument, it would be no cancellation : (e) 1 Bl. Com. 371, 372. 7 Co. Rep. vid. Jevons v. Harridge, 1 Sid. 309 17. Harg. Co. Litt. 2 b. Jevons v. Livemere, 1 Saund. 7. Pil (f) Harg. Co. Lilt. 2 b. note 8. kington v. Peach, 2 Show. 135. Bridg- Harg. Co. Litt. 1 Anders. 25. ham v. Frontee, 3 Mod. 94. Wells v. N. Bendl. 36. vid. Williams, 1 Salic. 46. also, Caroon's case, Cro. Car. 8. Sed fhj Stat. 29 Car. 2. c. 3. s. 6. vid. Co. Litt. 2 b. (ij 8 Co. 82. fgj Harg. Co. Litt. 2 b. note 7. « (1) Johnson v. Brailsford, 2 Nott & M'Cord, 272. The word "destroying" is used in the Act of Assembly (of South Carolina) instead of the words " burn ing, cancelling, and tearing" in the statute of frauds; but the construction is the same. In Pennsylvania, implied, constructive, or legal revocations, among which arc cancelling, obliterating, or destroying the will, still subsist as they were he fore the Act of Assembly (of 1765) or the statute of frauds, Lawson v. Morri .son, 2 Dall. Rep. 289.; and the Act of Assembly being silent as to such reyoc_- 'tions in law, they may be proved as other matters of fact, without regard to the form prescribed by the act fur the probate of a will, Burns v. Burns, 4 Serg. S- Rawle, 297. (2) See Matter of Nan Miekle, 14 Johns. Rep. 321. The case of an implied revocation. 0) 2 Yeates, 171 7 Johns Rep 3'.'" X(.uun) Onions v. Tyrer, 1 P. Wms. 345. 375 and 406. in note. Harwood v. Goodwright, (z) Phipps v. Earl of Anglesea, 5 Cowp. 87. S..C..7 Bro. P. C. 344. Bro. P. C. 45. Onions v. Tyrer, 1 P. (w) Hyde v. Hyde, 3 Ch. Rep. 155. Wms. 344. note 1. ■ extend to wills of land, which must be revoked by writing, accompanied with the same solemnities as a will of personal estate. Luwson v. Morrison, 2 Dall. Rep. 289. Boudinot v. Bradford, 2 Yeates, 170. But the parol republication of a former will in writing will revoke a will of lands. Havard v. Davis, 2 Binn. 406. (1) Though a devisee who by force or fraud prevents a testator from cancel- ling his will becomes a trustee for those who would be entitled to the property in case the revocation had taken place, the will is not thereby revoked. Gains v. (•niiis, 2 Marsh. Rep. (Kentucky) 190. (.2) Taylor v. Taylor, 2 Nott & M 'Cord, 485. (So. Carolina.) Beid ct ux. v. Borland, 14 Mass. Rep. 208. Belt v. Belt, 1 Harr. & M'Hen. 409. 17 of' wills and codicils. [book I. merous, may be all effectual (a). But a codicil may be virtually revoked by another codicil of a subsequent date, although there are no express words of revocation in the latter instrument (b). [IS] There are also other species of revocations which I have not mentioned. The statute of frauds extends not to implied re- vocations, or to such as are in the nature of ademptions. With respect to implied revocations, they depend altogether on the supposed intention of the party. The law will presume such intention, and allow it to prevail, in case the circumstances of the testator's situation be materially altered. Hence, if, after the mak- ing of his will, he marry, and have a child, this is a constructive revocation of the will which he made in a state of celibacy (c); (1) so marriage, and the birth of a posthumous child, afford the same inference ; or rather in such cases a tacit condition is annexed to the will at the time of making it, that the party did not then in- tend that it should take effect, if a total change should happen in the situation of the family (d). But the presumption, like all others, may be rebutted by every sort of evidence (e). (2) Yet it seems there is no case in which marriage and the birth of a child have been held to raise an implied revocation, unless there has been a total disposition of the whole estate. (3) In cases of per- (a) Swinb. Part 1. s. 5. Hitchins v. Spraage v. Stone, Ambl. 721. and vid. Basset, 1 Show. 549. Willet v. Sand- Christopher v. Christopher, 4 Burr. ford, 1 Ves. 187. 2182. note. (6) Methuen v. Methuen, 2 Phill. (d) Lancashire v. Lancashire, 5 Term 416. Rep. 49. (c) Lugg v. Lugg, Ld. Raym. 441. (e) Brady v. Cubitt, Dougl. 31. See Cook v. Oakley, 1 P. Wms. 304. 1 P. Wms. 304. note 4. — _ _ - (1) Per M'Kean C. J., in Lawson v. Morrison, 2 Dall. Rep. 289, decided in 1792. Wilcox v. Rootes, 1 Wash. Rep. 140. See a case mentioned by Carring- to?i, J. 3 Call's Rep. 341. Brush v. Wilkins, 4 Johns. Cha. Rep. 506. (2) Brush v. Wilkins. The presumption, however, (the strength of which varies according to circumstances,) may be rebutted by evidence (strong in pro- portion) to show that the testator meant it to operate notwithstanding his marriage, and the birth of issue; but such evidence to be effectual, must satisfy the Court unequivocally. Gibbons v. Cross, 2 Addam's Rep. 455. In Pennsylvania it is provided by the 23d section of the act of 19th April 1794, "that where any per- son, from and after the passing of this act, shall make his or her last will and tes- tament, and shall afterwards many or have a child or children not provided for in any such will, and die leaving a widow and child, or either widow or child, al- though such child or children be born after the death of their father, ever} 7 such person so far as shall regard the widow, or child, or children after born, shall be deemed and construed to die intestate, and such child or children shall be enti- tled to such purparts, shares, and dividends of the estate real and personal of the deceased, as if he had actually died without any will." (Purd. Dig. 802. 3 Dall. Laws, 521. 3 Sm. Laws, 152.) Marriage, and the birth of posthumous or other issue, since the passage of this act, do not amount to a total revocation of a will made by a single man, even where the subsequent issue is the testator's only child. They amount to a revocation pro tanto only, namely, so far as regards the widow and child; but as respects provisions not interfering with their interests, such as the appointment of executors, or a power to sell lands for the payment of debts. &c. the will remains in force. Coates v. Hughes, 3 Binn. 498. (.1) Per Room .!. 3 GalPs Rep. 337. CHAP. I.] OF WILLS AND CODICILS. IS sonal property it is always a total disposition, because by the ap- pointment of an executor, the whole is vested in him (e). [19] To raise this presumption of a revocation, both the circum- stances of a man's marriage and of the birth of a child must con- spire (f): neither the subsequent marriage of a man, nor the sub- sequent birth of a child, shall of itself have that effect, (g) (1). But a will made in favour of children of n first marriage shall not be revoked by a subsequent marriage, and the birth of chil- dren of such subsequent marriage, the second wife and her chil- dren being provided for by settlement (h). (2) In case where a testator, a widower, having a son and two daugh- ters, by will gave all his real and personal estates in trust, subject to debts, for those children, and in case of their deaths over, and afterwards married, had a daughter and died; the general principles of this branch of the law are so clearly defined by the Master of the Rolls, that it is thought most useful to introduce his judgment verbatim. "Long after it had been settled by decisions of the ec- " clesiastical court, with the concurrence of common law Judges " sitting in the Court of Delegates, that marriage and the birth of "a child would amount to a revocation of a will of personal pro- perty, it remained a doubt whether such an alteration of circum- " stances would have the same effect with regard to a will of real " estate: but it is -now settled, that even a devise of land may be "revoked by what Lord Kenyon, in the case of Doe on the de- " mise of Lancashire v. Lancashire, 5 T. Rep. 5S., calls 'a total "change in the situation of the testator's family.' What may be "deemed such a total change may be matter of controversy in " each new case; but all the cases, in which hitherto wills of land "have been set aside upon this doctrine, have been very simple in u their circumstances; and such as, when the doctrine was once re- " ceived, could admit of no doubt with respect to its application. " In all of them the will has been that of a person, who, having " no children at the time of making it, has afterwards married, " and had an heir born to him. The effect has been to let in such " after-born heir to take an estate, disposed of by a will, made be- " fore his birth. The condition, implied in those cases, was, that (e) Brady v. Cubitt, Dougl. 39. in note. Southcot v. Watson, 3 Atk. 228. (g) Lancashire v. Lancashire, 5 (/) Woocles. 373. vid. Goodtitle v. Term Rep. 51. in note. White v. Bar- Newman, 3 Wils. 516. and 2 Fonbl. 2d ford, 4 Maul, and Sel. 10. edit. 350. note (b). Sed vid. Lan- (h) Ex-parte the Earl of llchester, cashire v. Lancashire, 5 Term Rep. 52. 7 Ves. jun. 348. (1) Brush v. Wilkins, 4 Johns. Cha. Rep. 506. fsemble.J Mousey v. Massey's Lessee, 4 Harr. & Johns, 141. See 3 Mass. Rep. 21. In North Carolina, before the act of 1808, the birth of a child after the making of a will, did not amount to a revocation. M'Cay v. M'Cay, 1 Murphy's Rep. 447. (2) Yerby v. Yerby, 3 Call's Rep. 334, in which there was no settlement, and the children of the subsequent marriage were totally unprovided for. 19 OF WILLS AND CODICILS. [BOOK I. " the testator, when he made his will in favour of a stranger or "some more remote relation, intended that it should not operate if " he should have an heir of his own body. In this case there is " no room for the operation of such a condition; as this testator had • " children at the date of the will, of whom one was his heir appa- " rent, who was alive at the time of the second marriage, of the " birth of the children by that marriage, and of the testator's death. " Upon no rational principle therefore can this testator be supposed "to have intended to revoke his will on account of the birth of " other children ; those children not deriving any benefit whatsoever " from the revocation; which would have operated only to let in " the eldest son to the whole of that estate, which he had by the "will divided between that eldest son and the other children of "the first marriage. It is true, the ecclesiastical court has decid- " ed, that the will was revoked as to the personal estate ; that is, " in opposition to their decision in Thompson v. Sheppard in " 1779 ; where, under circumstances precisely the same, the will " was held not revoked even as to the personal estate. There was " in that case an appeal to the Delegates, but it was not prosecuted. " The revocation however as to the personal estate had an effect, " which might perhaps have been intended by the testator — that "of letting in the after-born children with those of the first mar- "riage : but the principle of the decision has no bearing whatso- " ever upon the devise of the real estate; which, according to my "opinion, stands unrevoked {i)." In a late most important case, where a man made a will, provid- ing for all his children then living, and with which his wife was ensient, the birth of other children, combined with circumstances of large increase of property, and declarations of the testator, were held to revoke his will (k). If a single woman make a will, her subsequent marriage shall alone revoke it (/); nor shall it be revived by the death of her hus- band (m). (1) ;» There are also revocations (n) in the nature of ademptions. If the testator do any act inconsistent with the operation of the will, such act shall amount to a revocation of it. To render a cancella- (i) Sheath v. York, 1 Ves. & Bea. (/) 4 Co. 60. .Cotter v. Layer, 2 P. 390. and see Holloway v. Clarke, 1 Phill. Wms. 624. Hodsden v. Lloyd, 2 Bro, Rep. 339. Emerson v. Boville, ibid. C. Ca. 534. 342. (m) Doe v. Staple, 2 Term. Rep. 695. (k) Johnston v. Johnston, 1 Phill. (■«) Brudenell v. Boughton, 2 Atk. Rep. 445. 272. • • (1) Mr. Cruise, in his Digest of the Law of Real Property, (2d Am. edit. p. IIS. vol. 2.) states the law to be, that " in a case of this kind if the wife survive her hus- band, her will is revived, and takes effect as if she had never been married." See- also ReevrSs Dorn. Relations, 161. It will be found upon examination that the case of Doev. Staph by no means establishes the doctrine of the text, though some of the dicta of Lord Kan/on support it, when the facts of the case, with re ference to which he spoke'in giving judgment, arc not taken into consideration CHAP. I.] OF WILLS. AND CODICILS. 19 tion effectual, we have seen, the intention of the testator must in all cases concur, and an implied revocation is founded entirely on the intention: but the species of revocation I have just mentioned is altogether independent of intention (o), and may prevail even in opposition to it. It is true that before the statute of frauds the in- [20] tention was the criterion. It was therefore held, that where A. having devised lands to 13. -in fee, granted to B. a lease of the same lands, to commence after A. 's death, such act revoked the disposition of the will, on the ground that the lease clearly implied an alteration of intention, namely, to give the devisee a less estate (p). (1) But since the statute I conceive such a case would be dif- ferently decided : The lease effectuating no alienation of the sub- ject matter of the devise, would not be held to defeat the opera- tion of the* will; nor if A. were to devise lands to B. in fee, and afterwards mortgage to him the same lands for a term of years, would the devise be revoked (q). On the same principle, since the statute of frauds, the subsequent act of the devisor must be complete to produce such effect. Before the statute, a deed of feoffment without livery, a bargain and sale without enrolment, a grant of reversion without attornment, were held to revoke a will of lands, on the ground, that although these acts were themselves imperfect, yet they equally indicated a change of the devisor's in- tention ; but since the statute, I apprehend that acts thus incom- plete, not amounting to an alienation of the estate inconsistent with such will, would not be more effectual to revoke it than a subse- quent will imperfectly executed (r). And altogether to defeat the disposition by the will, there must [21] be a subsequent conveyance of the whole estate. It must be commensurate with the appointment which the will has made. Ii the inconsistency between the disposition by the will, and the sub- sequent disposition, be merely partial, the revocation shall not ex- tend beyond such inconsistency. As, where A. devises an abso- lute estate in fee to B., and afterwards, by a subsequent devise, gives him only an estate tail in the same land, it is a revocation merely to the extent of the difference between an estate tail, and an estate in fee (s). So, if A. devise all his real estate to B., and afterwards, on B.'s marriage, settle upon her a part of such estate, in respect to the remaining part of it the will shall operate (£). So, if A. devise lands in fee to B., and afterwards grant a lease to C. for a term of years to commence after A.'s death, or mort- * (o) Abury v. Miller, 2 Atk. 598. Par- ibid. 664. sons v. Freeman, 3 Atk. 745. (r) Seel vid. ex-parte the Earl of II (p) Coke v. Bullock, Cro. Jac. 49. Chester, 7 Ves. jun. 378. (7) As to the subsequent case of Hark- (s) Harwood v. Goodright, Cowp. 90 ncss v. Bailey, Prec. in Ch. 514. it is (/) Clarke v. Berkeley, 1 Eq. Ca. inaccurate; and see Baxter v. Dyer, 5 Abr. 412. S. C. 2 Vern. 720. Ves. jun. 656. and Peach v. Phillips, • —^ • (1) Per M'Kcan, C. J. 2 Dall. Rep. 289 21 OF WILLS AND CODICILS. [BOOK I. gage the lands to C. for a term of years or in fee, the devise of the fee, subject to the lease (t) or mortgage (ic), either of which is merely the introduction of an incumbrance, shall continue good. If the owner of an unqualified equitable fee devise it by his will, and afterwards the unqualified legal fee be conveyed to him, the will is not thereby revoked, because such conveyance was incident to the equitable fee devised. But If he afterwards take a qualified conveyance of the legal fee, for the purpose of preventing dower, it is a revocation of the will, being a change in the quality of the estate, and not incident to the equitable fee (v). A surrender made by a testator of copyholds to the uses of his marriage settlement, is not a total revocation of a surrender made to the use of his will, and a devise of such copyholds, by the de- visee, takes the copyhold subject to the charge created by the mar- riage settlement (to). Where a testator devised real and personal estate to certain uses, and afterwards by deed conveyed it to the same uses until marriage, and then to new uses, providing for his intended wife and the issue of the marriage, and after the deed, and before marriage, by codi- cil duly attested, and directed to be annexed to his will, he impos- ed a forfeiture in case of his wife being disturbed, and after the codicil married : it was held that the settlement revoked the will, and that the will was republished by the codicil; that the new uses springing on the marriage did not revoke the codicil, nor did the marriage, and birth of children, as being contemplated by the will (x). I have already stated that this apecies of revocation may operate even in opposition to the devisor's intention (y). Hence, if A., after making his will, suffer recovery, levy a fine, or convey his estate by lease or release, the devise will be revoked, although the use result, or be limited to A. himself (z). So, if A. devise lands, [22] and afterwards make a feoffment to the use of his will (a), or if A. covenant to levy a fine to the use of such person as he shall name .by his will, then makes his will and devises his land, and af- terwards levies a fine in performance of his covenant (b): or if A., seised in fee, devise an estate in - fee to B., and by a conveyance takes back an estate from B. in fee (c) ; or, if A. seised in fee, thinking he has only an estate tail, suffer a recovery in order to (t) Coke v. Bullock, Cro. Jac. 49. Ambl. 618. Darley v. Darley, ib. 653. Roll. Abr. 616. • g and Dick. Rep. 397. S. C (u) Harkness v. Bailey, Free, in Ch. \z) Parsons v. Freeman, 3 Atk. 741. 515. Tucker v. Thurston, 17 Ves. 134. Darley v. Darley, Ambl. 653. Parker (jo) Ward v. Moore, 4 Mad. Rep. 368. v. Biscoe, 3 Moore, 24. \w) Vawser v. Jeffery, 3 Barn.& Aid. (a) Sparrow v. Hardcastle, 3 Atk. 462. and 2 Swans. Rep. 268. 804. Swift v. Roberts, Ambl. 618. (x) Jackson v. Hurlock, 2 Eden's (b) Swift v. Roberts, Ambl. 610. # Rep. 263. (f) Parsons v. Freeman, 3 Atk. 71-2. (y) Banks v. Sutton, 2 P. Wms. 718. Bridges v. Duchess of Chandos, 2 Vc> Sparrow v. Hardcastle, 3 Atk. 803. jun. 431. 1 Roll. Abr. 614. Swift v. Roberts, CHAP. I.] OF WILLS AND CODICILS. 22 confirm his will (c), all these cases amount to a revocation. So, if A. be disseised, after making his will, and die before re-entry, the disseisin will have the same effect (d). These are the necessary consequences flowing from the nature of a devise of lands as before defined. It is not an institution of an heir : It is in the nature of a conveyance : It is an appointment of the specific estate, to be completed by a subsequent event, name- ly, the death of the devisor. The devisor must, therefore, continue to have it unaltered, and without any new modification, to the time of his death, when the devise is to take effect. If, therefore, any new disposition be made subsequently to the will, or, in other words, any new conveyance of that which had been conveyed by the will, it shall defeat the will. It implies an alteration, and the rule, that the estate must pass by the first complete conveyance, becomes applicable (e).(l) [23] On the same principle, where A., seised of a lease for lives, devisfs it, and afterwards renews, the renewal of the lease is a revocation of the will as to this particular; for by the surrender of the former lease, the testator puts it out of him, divests himself of the whole interest, and it is gone, so that there be nothing left for the devise to work upon, the will must fail (f). And the law is the same in regard to chattel leases, if specially bequeathed (g) ; but not otherwise (h). So, if A. specifically bequeath to B. a gold cup, under a parti- cular description, and afterwards sell or give it away, and then buy another gold cup, such newly purchased cup shall not pass to B. by the will, inasmuch as the identical subject is gone (a*). (2) If the subsequent conveyance be procured by fraud, it shall have no effect (k). (3) Such are the principles of law in regard to revocations.. Equity also proceeds on the same principles; and, following the law, ad- mits no revocation that would not be a revocation on legal grounds, • (c) Sparrow v. Hardcastle, 3 Atk. Lidiarcl, 3 Atk. 199. Iludstone v. An- 803. See also Darley v. Darley, Ambl. derson, 9 Ves. 418. Attorney-General 653. and Dick. Rep. 397. S. C. v. Downing-, Ambl. 571. Hone v. Med- (rf) 1 Roll. Abr. 616. Attorney-Ge- craft, 1 Bro. C. C. 261. Coppin v. Fer- neral v. Vigor, 8 Ves. jun. 282. " nyhough, 2 Bro. C. C. 291. See 1 P (e) Swift v. Roberts, Ambl. 618. Wms. 597. Bridges v. Ducbess of Chandos, 2 Ves. (A) Bowers v. Littlewood, 1 P. Wms. jun. 426. Sparrow v. Hardcastle, 3 Atk. 595. 803. Harwoodv. Goodright, Cowp.90. (0 Off. Ex. 23. Vid. Abney v. Mil- Hogan v. Jackson, ib. 305. ler, 2 Atk. 599. (/) Marwood v. Turner, 3 P. Wms. ' (k) Clymer v. Littler, 3 Burr. 1244. 170, 171. Hawes v. Wyatt, 3 Bro. C. C. 156. S. Q. (g) Abney v. Miller, 2 Atk. 527. 2 Cox. Rep. 263. Carte v. Carte, 3 Atk. 174. Stirling v. (1) Minuse v. Cox, 5 Johns. Cha. Rep. 450. Walton v. Walton, 7 Johns. Cha. Rep. 267. (2) Walton x. Walton, 7 Johns. Cha. Rep. 264. (3) Smithwick v. Jordan, 15 Muss. Rep. 113. 23 OF WI#LS AND CODICILS. [BOOK I. Therefore if A., having an equitable estate, make his will, and then execute a conveyance, and dispose of it, or declare the uses [24] to himself, that will be a revocation, in case it would so ope- rate at law on a legal estate (/). (1) But still this revocation is bounded by the rule of law ; and therefore, if the conveyance be of part only, and for a partial pur- pose, it shall be a revocation only pro tanto (m). (2) ' In cases of mortgage, if, as I have already stated, A. devise to B. in fee, and afterwards mortgage to C. for a term of years, that at law is no revocation of the fee. If it be a mortgage in fee, a court of law has no concern with the disposition of the equity of redemption. It takes no notice of such an interest, but consider- ing the land only as a pledge for a debt, which is the personal es- tate of the mortgagee, of necessity holds, that the land to all other purposes remains unaltered in the mortgagor. It merely decrees the redemption to that person, who would have been entitled if the mortgage had never existed, that is, the devisee. Being dis- charged, it is as if it had never existed. As, in cases at law, if the mortgage be for a term of years, it is no revocation, it would be incongruous that it should be so in equity in the case of a mort- gage in fee, where the act done gives as at law nothing more than a pledge for a debt to the mortgagee, which is personal estate, and would devolve upon his executors (n). So, in the case of a con- veyance for payment of debts, the surplus resulting or being ex- [25] pressly reserved to the party making it, and- his heirs, it is precisely the same case as that of a mortgage. There is no distinc- tion between a general charge for debts, and a charge for a particu- lar debt. The alteration of the estate in substance extends no fur- ther than to let in the particular purpose ; and whether definite for a particular debt, or indefinite for all debts, makes no difference (o). Therefore these cases have been determined in strict analogy to the law. In like manner, if A. have an equitable interest in fee in an es- tate, and afterwards take a conveyance of the legal estate to the same uses; as, where A- enters into articles of agreement with B. to buy lands of him, and afterwards devises those lands, and then B. conveys the same pursuant to the articles, this is no revocation in equity ; for the equitable right which A. has to the lands to be purchased shall pass by the will, and his heir at law be a trustee for the devisee (p). , (/) Brydges v. Duchess of Chandos, ' (o) Brydges v. Duchess of Chandos, 2 Ves. jun. 428. Rawlins v. Burgis, 2 2 Ves. jun. 428. See also Williams v. Yes. &. Bea. 381. Owen, ibid. 595. and Cave v. Holford, (m) Brydges v. Duchess of Chandos, ibid. 603. in note, and 3 Ves. jun. 650. 2 Ves. jun. 428. (p) Marwood v. Turner, 3 P. Wins. (?i) 2 Ves. jun. 428. Ambl. 31. 169, Greenhill v.Greenhill,2Vern. 679. (1) Wulton v. Walton, 7 Johns. Cha. Rep. 270. (2) Livingston v. Livingston, 3 Johns. Cha. Rep. 148. Hughes v. Hughes, 2 Munf. 209. Matter of Nan Mkkk, 14 Johns. Rep. 324. CHAP. I.] OF WILLS AND CODICILS. 25 In the case of a recovery after a will, though in terms shewing clearly no intention to revoke, a recovery suffered after a will is as much a revocation in a court of equity, as it is in a court of law (q). So, if A., after making his will, covenant for a valuable con- sideration to convey the devised estate to B. ; although A. die be- [26] fore the contract is executed, yet the covenant shall revoke the will, on the equitable principle, that what ought to be done is supposed to be done: therefore, as at law, if the covenant had been performed in the testator's lifetime, it would have amounted to a revocation, the covenant by analogy shall have the same effect in equity (r); (1) or rather it constitutes the devisee a trustee to per- form the contract for the benefit of the executor. In regard to the republication of wills, since the statute no de- vise of lands can be republished, unless it be re-executed by the devisor with the same solemnities with which it was executed at first; or by a codicil executed in the same manner, in terms ratify- ing, confirming, or republishing the will (s), or expressive without being restricted to any precise form of words (/), of his intention that the will should be considered as bearing the same date with the codicil (n). A codicil so executed, although it relate merely to personal estate, yet, if it contain a general clause of confirma- tion of the will, or sufficiently indicate an intention that the will shall be deemed of the same date with the codicil, shall have the same effect (v). (2) In case the will be republished by a codicil, the will and codicil are considered in point of law as constituting [27] but one instrument (iv). Therefore, in all these instances, lands purchased after the date of the will, and before its re-execution, or before the date of the codicil, or lands contracted for before the date of the will, but conveyed between the date of the will and codicil (.r), shall pass under the will, if the terms of the will be sufficiently comprehensive to include them. For, when a will is republished, the effect is, that the terms and words of the will shall be construed to speak with regard to the property the testator is seised of at the date of the republication, just the same as if he (q) Darlcy v. Darley, 3 Wils. 6. • (t) Potter v. Potter, 1 Yes. 442. Rrydg-es v. Duchess of'Chandos, 2 Yes. (u) Barnes v. Crowe, 1 Ves. jun, 486. jun. 430. 4 Bro. C. C. 2. S. C (r) Cotter v. Layer, 2 P. Wms. 624. (v) Gibson v. Ld. Montfort, 1 Ves. Rider v. Wagx-r, ib. 329. Edwards v. 493. Freeman, ib. 436. Bennett v. Lord (w) Atcherley v. A^emon, Com. Rep. Tankerville, 19 Ves. 170. 382. Barnes r. Crowe, 1 Yes. jun. 496. (s) Atcher.ly v. Vernon, Com. Rep. (x) Goodtitle v. Meredith, 2 Maul. &. 381. Gibson v. Lord Montfort, 1 Ves. Sel. 5. Hulme v. Heyerate, 1 Men. Rep. 492. 285. (1) An agreement to sell land, made subsequent to the execution of his will, in pursuance of which articles were prepared, and bonds for the payment of the purchase money taken by the testator, was held not to be a revocation of the will at km. Mallei ax. v. Bray, Coxe's N. J. Rep. 212. (2) Diudap v. thinlap', 4 Desaus. Rep. 321. 4 27 OF WILLS AND CODICILS. [BOOK I. had such additional property at the time of making his will. Hence, if A. devise lands by the name of B., C, and D., and purchase new lands, and republish his will, the republication does not con- cern such new lands, because the will speaks only of the particu- lar lands B., C, and D. (1) But if the testator in his will say, I give all my real estate, a republication will affect such newly pur- chased lands, because it is then the same as if the testator had made a new will (y). So, where a testator charged all his estates with payment of debts, and made his son residuary legatee, and after- wards purchased copyholds, which were duly surrendered to the use of his will, and by codicil devised those copyholds to his son in fee, the codicil was held a republication of the will, so as to sub- ject the copyholds to the payment of debts (z). Nor is an actual annexation of the codicil to the will, essential to its republication (a). Whether a mere annexation to the will of the codicil so ex- ecuted, but silent in respect to any intention of republishing the will, shall have such operation, is a point on which different opini- ons have prevailed. Lord Camden C. thought that annexation would of itself demonstrate that intention (6); but by other autho- rities it has been held that annexation alone would not be thus ef- fectual (c). [28] If a will of lands be not executed pursuant to the statute, although a codicil reciting the will be (d) thus executed, yet it has been held that the codicil shall not effectuate the will. An infant, we have seen, is by the stat. 34 & 35 Hen. 8. c. 5. disabled from devising land; but if, after attaining the age of twenty-one years, he re-execute, pursuant to the statute, a will of lands made by him before, it shall be effectual (e). A will of personal estate may be expressly republished by a co- dicil, or other writing, authenticated in the same manner as a' will of such property; or by a codicil, or such other writing, from the contents of which such an intention may be fairly inferred; or merely by annexing a codicil, or other writing to such will (f), whether it expressly refer to the will or not; or such will may be revived by the mere parol declarations of the testator (,§•). (2) (y)*Heylyn v. Heylyn, Cowp. 132. v. Crowe, 1 Ves. jun. 497. S. C. 4 Bro. Rolls. Abr. 618. Beckford v. Parnecott^ C. C. 9. Vid. also Coppin v. Ferny- Cro. Eliz. 493. Countess of Strathmore hough, 2 Bro. C. C. 296. v. Bowes, 7 Term Rep. 482. (d) Attorney-General v. Baines, Prec. (z) Rowley v. Eyton, 2 Meri. Rep. 128. Ch. 270. (a) Potter v. Potter, 1 Ves. 442. (e) Herbert v. Torball, 1 Sid. 162. (b) Attorney-General v. Downing 1 , (/) Coppin v. Fernyhough, 2 Bro. Ambl. 571. C- C. 291. (c) Sympson v. Hornsby, Prec. Ch. (g) Off. Ex. 25. Beckford v. Parne- 439. Hutton v. Sympson, 2 Vern. 722. cott, Cro. Ehz. 493. and Vid. Abney v. Gibson v. Montfort, 1 Yes. 493. Barnes Miller, 2 Atk. 599. (1) Kendall's Ex. v Kendal!, 5 Munf. Rep. 272. (2) In Pennsylvania a will of lands maybe republibhed by parol, Havnrd v Duvis, 3 Binn. 406. CHAP. I.] OF WILLS AND CODICILS. 28 • In a case where copyhold and personal estates were given by will, and so much of the will was revoked by an interlineation, and a codicil to the same effect, and the codicil was afterwards cancelled; it was held that the cancelling the codicil was effectual to set up the original will, notwithstanding the interlineation was left in the will, upon the evidence of intention (h). The statutes of the 32d & 34th of Hen. 8. give the power of de- vising to all having estates in fee-simple, except in joint-tenan- cy (i), (1) over the whole of their socage lands. Persons seised [29] in fee-simple in coparcenary, or in common, in reversion, or remainder, are expressly comprised by the last-mentioned sta- tute (Ar). Copyhold lands are not within these statutes, since they require that the tenure should be socage, which copyholds are not(/); but they are devisable by an application of the doctrine of uses as above stated (m). (h) Utterson v. Utterson, 3 Ves. 8c (k) Sect. 4. and 7. Bea. 122. (I) Harg. Co. Lit. Ill b. note 1. (i) Swift v. Roberts, Ambl. 617. (m) Supr. 6. (1) In Pennsylvania, by the act of 31st March 1812, " if partition be not made between joint tenants, whether they be such as might have been compelled to make partition or not, or of whatever kind the estate or thing- holden or possessed be, the parts of those who die first shall not accrue to the survivors, but shall de- scend or pass by devise, and shall be subject to debts, charges, curtesy, or dow- er, or transmissible to executors or administrators, and be considered to every other intent and purpose in the same manner as if .such deceased joint tenants had been tenants in common. Provided always, that nothing in this act shall be taken to affect any trust estate." (Purd. Dig. 388. 5 Sm. Laws, 395.) [ so ] CHAP. II. OF THE APPOINTMENT OF EXECUTORS. Sect. I. Who may be an executor — who not — how he may be appointed. An executor is he, to whom the execution of a last will and testament of personal estate is by the testator's appointment con- fided (a). In general, all persons are capable of sustaining this character ; but there are some exceptions, which I shall presently mention. The king, it seems, may be appointed an executor, but in that case, as he is presumed to be so engaged in public affairs as to have no leisure to attend to the private concerns of individuals, he has a right to nominate persons to execute the trust for him, as well as auditors to whom such nominees shall account (b). It was formerly a doubt, whether corporations aggregate could [31] be constituted executors, inasmuch as they cannot take an oath for the due execution of the office (c); but it now seems set- tled in the affirmative (of), and that, on their being so named, they may appoint persons, styled syndics, to receive administration with the will annexed, who are sworn like all other administra- tors (e). Such corporations as can take the oath of an executor are clearly competent (f). An infant may be appointed an executor (§•), and even a child in venire sa mere; (I) and then if the mother be delivered of two or more children at the birth, they shall all be entitled (A). But an infant, although appointed, is by stat. 3S Geo. 3. c. 87. s. 6. disqualified from acting in the executorship till he attains the full age of twenty-one years, and an administrator is substituted to act for him in the interval. Before the passing of this act, the law deemed him capable of executing the trust at the age of seven- teen (i). (a) Off. Ex. 2. 2 Bl. Com. 503. Far- (e) 1 Bl. Com. 28. n. 2 Bac. Abr. 5. rington v. Knightlv, 1 P. Wms. 548. (/) Godolph. 85. 3 Bac. Abr. 5. 553. 576. (g) Off. Ex. 214. 3 Bac Abr. 8. • (£) 3 Bac. Abr. 5. 11 Vin. Abr. 54. 2 Bl. Com. 503. 4 Inst. 335. (h) Godolph. 102. 3 Bac. Abr. 8. (c) Off. Ex. 17. 1 Bl. Com. 477. {i) Off Ex. 214. 11 Vin. Abr. 99. (d) 1 Roll. Abr. 915. Swinb. 5. s, 1. 5 Co. 29. 3 Bac. Abr. 5. 11 Vin. Abr. 140. (1) Per Duncan J. Swift v. Dujffield, 5 Serg. £c Rawlc, 40. CHAP. II.] OF APPOINTING EXECUTORS. 31 A feme covert is also capable of the office of an executrix, but [32] not without the consent and concurrence of her husband (/c) ; and although she be an infant, if her husband be of age and assent, lie shall have the executionof the will (/). An alien friend may be an executor (ra), and so also may an alien enemy, who came here with a safe-conduct, or is commorant here by the king's licence, and under his protection, although he came without a safe-conduct (n). Neither outlawry nor attainder incapacitates a party, for he acts in aider droit, and for the bene- fit of the deceased (p). Nor had villeinage, during its existence in this country, that effect (/?). Nor is poverty, nor even insolvency, a disqualification of him in whom the testator has chosen to repose so great a confidence M-M ... \ ., r A disability, however, may arise in various modes, either from the party's being guilty of certain offences against the established religion; or from his being the subject of an enemy's country, and resident within it, or resident here without the king's licence; or, under certain circumstances, from going or residing abroad; or from a? defect of understanding. [33] A person excommunicated is suspended from acting till absolution {r). By stat. 3 Jac. 1. c. 5. s. 22. a popish recusant, convicted at the time of the testator's death, is altogether incom- petent (s). By stat. 3 Car. 1. c. 2. s. 1. if any person send another abroad to be educated in the popish religion, or to reside in any religious (A-) 3 Bac. Abr. 9. Off. Ex. 203. Salk. 36. Rex v. Raines, Lord Raym. 2 Bl. Com. 503. Sed vide 1 Fonbl. 86. 361. S. C. Salk. 299. 11 Tin. Abr. 143. (/) Off. YM . Il5. Walker v. Woolaston, 2 P. Wms. 562. (m) Off. Ex. 15. 3 Bac. Abr. 6. 3 P. Wms. 388. note b. Anon. 12 Ves. (n) 1 Bac. Abr. 5. 137. Co. Litt. jun. 4. 129 b. Wells v. Williams, Salk. 46. pi. (r) Off. Ex. 17. 107. 3 Bac. Abr. 6. 1. Ld. Raym. 282. S. C. Lutw.34. 2 Burn's Eccl. Law, 222. (0) Off. Ex. 16. 3 Bac. Abr. 5. Co. (s) Hill v. Mills, 1 Show. 293. 11 Litt. 128. Yin. Abr. 142. 144. See 4 Bl. Com. (p) Swinb. 5. s. 1. 3 Bac. Abr. 5. 56. and stat. 3 Jac. 1. c. 5. s. 10. andoO Roll. Abr. 915. 11 Vin. Abr. 141. Car. 2. s. 2. c. 1. (/) 3 Bac. Ahr. 2.1, 24. Mayor of (c) Off. Ex. 37. Vid. iilfr. Norwich v. Jphnson, 3 Lev. 35. S. C. (d) Broker v. Charter, Cro. Eliz.92. 3 Mod. 90. and 2 Show. 457. (e) Oft'. Ex. 38. 4 Burn. Eccl. L. (z) 3 Bac. Abr. 22. 5 Co. 33 b. Anon.' 198. Swinb. 6. s. 12. Roll. Abr- 907. Salk. 313. pi. 19: 11 Yin. Abr. 212. (/) 4 Burn. Eccl. L. 213. Rex v. .(«) Padget v. Priest, 2 Term. Rep. Raines, Ld. Ravm. 99. (g) Ibid. 38.* 17/) 3 feac. Abr (1) 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. Mitch- 7 v. Lu.nl, 4 Mass. I{rp. 659. Nor can lands of an intestate be sold underajtidg- on ort, fflttchely. Lunt, Nass v. Van* Rawle, 192. CHAP. 11.] ACCEPTANCE' OF AN EXECUTORSHIP. 42 If a party renounce in person, be takes an oath that he has not intermeddled in the effects of the deceased, and will not intermed- dle therein with any view of defrauding the creditors. But he may renounce by proxy, and then the oath is dispensed with. An executor cannot in part refuse; he must refuse entirely, or not at all (h). After such refusal, and administration granted, the party "is in- capable of assuming the executorship (/) during the lifetime of [43] such administrator ; but, 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 (k). If he appear, and take the usual oath before the surrogate, he has made his election, and cannot afterwards divest himself of the office, but may be compelled to perform it (/). So, if he once administer, he is absolutely bound (m); and by stat. 37 Geo. 3. c. 90. s. 10. if he administer, and omit to take probate within six months after the death of the deceased, he is li- able 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 com- prehended (/?). 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 suffi- cient to charge him; as, where the testator was tenant at will of cer- tain 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 election of the office (<7). (1) But it is otherwise if the executor 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 admin- istering as executor (r). So, if an executor sequester goods in the character of a commissary, that is no assent to the executorship (s). (h) 11 Vin. Abr. 139. Anon. Brownl. 301. 304. 307. 82. Fooler v. Cooke, 1 Salk. 297. (n) Vid. infr. (/) Swinb. 6."s. 12. 3 Bac. Abr. 42, (o) 3 Bac. Abr. 44, Boll. Abr.917. 43. Off. Ex. 39. 1 1 Vin. Abr. 205. (ft) Off. Ex. ibid. Com. Dig. Admon. (p) 3 Bac. Abr. 44. Roll. Abr. 917. (B. 4.) infr. Swinb. p. 6. si 22. (/) Swinb. 6. s. 12. 1 Ventr..335. (?) Roll. Abr. 917. 11 Vin. Abr. 206. 11 Vin. Abr. 207. (>•) 3 Bac. Abr. 44. Roll. Abr. 917. (m) 4 Burn's Eccl. L. 198. Swinb. (s) Roll. Abr.917. 11 Vin. Abr. 206. 6. s. 12. Wankford v. Wankford, Salk. (1) So taking possession and selling part of the personal estate of the testator, and paying some of his debts, are proof of election to act as executor, and ren- ier a person chargeable as such. Van Home v. Fonda, 5 Johns. Cha. Rej ooc 44 OF EXECUTOR BEFORE PROBATE. [BOOK I. But if there be two executors, and one of them have a specific legacy 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 ad- ministration hath been granted, if it appear he had administered before, and thus determined his election, the letters of administra- tion may be revoked, and he may be enforced to prove (u). If there be several executors, they must all duly renounce, be- fore the administration with the will annexed can be granted (v). [45] If some of them renounce before the ordinary, and the rest prove the will, the renunciation is not peremptory; such as refused may, at any subsequent time, come in and 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 them (to). And if administration be committed before a refusal by the surviving exe- cutor, such administration will be void (x). If an executor of an executor intermeddle in the administration of the effects of the first testator, he cannot refuse the administra- tion of the effects of the latter ; but he may take upon himself the latter, and refuse the former ($). Sect. IV. Of an executor before probate of the mill. As a consequence of the principle that an executor derives all [4G] 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 delivered to him, certified under the seal of the ordinary, he may lawfully perform almost every act which is incident to the office (r). Not to mention the funeral, he may make an inventory, and possess himself of the testator's effects (a): he may enter peace- ably into the house of the heir, and take specialties, and other se- curities for the debts due to the deceased (Z>), 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 (d): ho may (/) Roll. Ahr.917. 11 Vin. Abr. 206. (y) Shep. Touchst. 464. (u) Off. Ex. 40. (z) Com. Dig 1 . Admon. B. 9. Flowd, (v) Roll. Abr. 907. Com. 280. Smith v. Milles, 1 Term (to) 5 Co. 28. 9 Co. 36 b. Anon. Rep. 480. 3 Bac. Abr. 52. Off Ex Dyer, 160. House v. Lord Fetre, 2 34. 11 Vin. Abr. 202. Wankibrd v Salk. 311. Mead v. Lord Orrery, 3 Wankford, 1 Salk. 299. Alk. 239. Robinson v. Pett, 3 I'.Wms. (o) Off. Ex. 34. 251. vid. also Rex v. Simpson, Burr. (6) Off. Ex.34. 1463. S. C. 1 Bl, Rep. 456. 11 Vin. (c) Ibid. 92. Vid. infr. Abr. 55. 66. (,/) ibid. 35. G) Wankford v. Wankford, Salk.308. CHAP. II.] OF EXECUTOR BEFORE PROBATE. 46 sell, give away, or otherwise dispose, al his discretion, of the goods and chattels of the testator (e) : he may assent to or pay le- gacies (/) : he may enter on the testator's term for years (q) : he may commence actions in right of the testator, as for trespass com- mitted, or goods taken, or on a contract made in the testator's life- time, although he cannot declare before probate, since, in order to assert such claims in a court of justice, he must produce the copy of the will, certified under seal as above-mentioned, or as it is sometimes styled, the letters testamentar)^; 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 (i); and, according to a late case, it seems sufficient if it be obtained at any time before the hearing (&). 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 (I). But such relation shall not prejudice a third person; and there- fore 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 execu- tor to the next presentation to a living, and it become void, he, or his grantee, may maintain a quare impedit for it before probate (o). [4S] So he may maintain actions, as trespass or trover, for such of the effects as never came into his actual possession, taken or converted after the testator's decease (/>). So he may maintain ac- tions on contracts either actually made with him subsequent to that event, or arising by legal implication, as assumpsit for the goods sold by him ( ) Nicholas v. Killigrew, Lord Ray. (/«) 11 Vin. Abr. 204. 3 Bac. Abr. 436. 53. Com. Dig. Admon. B. 9 Dun (s) Smith v. Burrow, «2 Term Rep comb v. Walker, 3 Lev. 57, Skinn. 477. 48 OF EXECUTOR BEFORE PROBATE. [BOOK I. consequently no profert of the letters testamentary is requisite* (1) So, where a reversion for years is vested in him in that character, he may avow without probate for the rent which accrued after the testator's death, but not for such as accrued before (7). Such are the acts, which an executor, although the will has not received the sanction of the spiritual court, is warranted in per- forming, and which his death before probate will not annul (w). On the other hand, if he have elected to administer, he may [49] also before probate be sued at law, or in equity, by the de- ceased's creditors, whose rights shall not be impeded by his delay, and to whom, as executor dejure or de facto, he has made him- self responsible (v). If an executor die before probate, he is considered in point of law as intestate in regard to the executorship (id), although lie have made a will and appointed executors ; and although he die after taking the oath, if before the passing of the grant. If A. be executor for a certain period, and 13. be nominated executor for the time subsequent, and A. prove the will ; after the time is expired, B. may sue without another probate (x). Sect. V. Of the probate. — Jurisdiction of granting the same — of bona notabilia. I proceed now to consider the probate of a will. The juris- diction of proving wills consequent, as will be hereafter shewn, [50] on the power of granting administrations, regularly belongs to the bishop of the diocese, or the metropolitan of the province, in which the parties resided at the time of -their death (y). But if a testator die within some peculiar jurisdiction, which is either re- gal, archiepiscopal, episcopal, or archidiaconal: in each of these the owner hath of common right the power of granting probate. This privilege is founded on the notion of an original composition be- tween such owner and the ordinary of the diocese for* that pur- pose (2). (/) Wankford v. Wankford, 1 Salk. Off. Ex. 37. 302. 307. Bollard v. Spenser, 7 Term (u>) Off. Ex. Suppl. 74, 75. 182. 1 1 Hep. 359. Vin. Abr. 68. 90. (u) Off. Ex. 35. 11 Vin. Abr. 204 (x) Com. Dig. Admon. B. 9. fa. Anon. Dyer, 367. Wankford v. Wank- Ch. 265. 11 Vin. Abr. 56. ford, l"Salk. 306, 307. (y) 3 Bac. Abr. 34. 39. Com. Dig. O) Com. Dig. Admon. B. 9. Plowd. Admon. B. 6. 4 Burn's Eccl. L. 1S8. Com. 280 b. 11 Vin. Abr. 205. Did- (z) 3 Bac. Abr! 39. Denham v.Ste- wich College v. Johnson, 2 Vcrn. 49. phcrison, Salk. 40, 41. 11 Vin. Abr. 77. (1) In all casts of promises express or implied made to or by an executor or idministrator after the death of the testator or intestate, an action lids by or against the executor or administrator personally, (iiiir \. Huston, 8'Serg. ?; Uawle, 402. See Coburn v. Jlnsarl, 3 Mass. Rep. J 18, 8 Mass. Rep. 190. CHAP. II.] OF THE PROBATE. 50 Courts baron, which have had the probate of wills from time immemorial, and have always continued that usage, are also en- titled to this species of jurisdiction; but they can claim it only by prescription (a). 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 ordinary, or of the metropolitan,. [51] If all the eflects 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 va- lue 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 va- lidity 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 Canterbury and York (d). So if there be bona nota- bilia in those several provinces, the archbishops shall in each of them grant a probate according to the bona notabilia in their re- spective provinces. Each of them has supreme jurisdiction, and neither can act within the province of the other (e). If there be bona notabilia in different dioceses of one province, and in one diocese only of the other; in respect to the former, the archbishop shall have the probate ; in respect to the latter, the particular bishop (/). [52] So if the testator, not in itinere, die in one diocese, not having any goods there, but having bona notabilia in another dio- cese, the archbishop shall grant the probate (g). So if the goods be in sevefal peculiars of a bishop's diocese, in that Case probate shall not be granted by him, but by the metropo- litan, inasmuch as peculiars are exempt from ordinary jurisdic- tion \h). But where the testator dies possessed of goods in the diocese of an archbishop, and in a peculiar of the same diocese, 'there must be several probates : the archbishop shall have no pre- rogative, because the peculiar was derived out of his episcopal ju- (a) 3 Bac. Abr. 39. Off. Ex. 44. 56. pi. 7. Vin. Harg\ Co. Litt. 94. Denham v. Stephenson, Salk. 41. At- (e) 3 Bac. Abr. 36. Burston v. Kid- kins v. Hill, Cowp. 286. . lev, 1 Salk. 39. Shaw v. Stougrhton, (b) 3 Bac. Abr. 40. Off. Ex. 45. . 2 Lev. 86. 11 Vin. Abr. 76. pi. 15. Off. Ex. Suppl. 10. Off. Ex. 48. (c) 2 Bl. Com. 509. 3 Bac. Abr. 36. (/) Off. Ex. 48. Com. Dig. Admon. B. 3. Off. Ex. 45. (g) 3 Bac. Abr. 3'6. Roll. Abr. 909-. 48. • 4 Burn. Eccl. L. 191. Roll. Abr. 4 Burn. Eccl. L. 189. 11 Vin. Abr. 80. 909. 11 Vin. Abr. 79. Swinb. p. 6. (A) 4 Burn. Eccl. L. 191. 11 Viw. 9.11. Abv. SO. Gibs. Cod. 472. Swinb. p. 6. (d) 2 Bl. Com. -509. 11 Vin. Abr. s. 11, 52 OF THE PRORATE, [ROOK I. risdiction (a). By the canon 92 Jac. 1. above referred to, goods which a man has with him, who dies in ilinere, shall not make bona notabilia (k); but if a man have two houses in different dio- ceses, and resides chiefly at one, but. sometimes goes to the other, and being there for a day or two, dies, leaving no bona notabilia in the first mentioned house, probate shall be granted by the bishop of the diocese in which the testator died, for he was commorant there, and not there as a traveller (/). [53] If there be bona notabilia in England and Ireland, several probates shall be granted by the archbishop or bishop in England, and the archbishop or bishop in Ireland, as the case may require (m). The probate of a bishop's will, although he had goods only in his own jurisdiction, belongs to the archbishop of the province (;?). If the testator died beyond sea, although the goods be in one dio- cese only, the archbishop is to grant the probate (o). If the pro- bate be granted by a bishop, or inferior judge, when it does not belong to him, it is void; but if it be granted by the metropolitan when it does not belong to him, it is only voidable, and is of force till reversed by sentence, for he hath jurisdiction over all the dio- ceses within his province (p). In the above-mentioned canon, Jac. 1. there is a provision, that the jurisdiction of those dioceses shall not be prejudiced where, by composition or custom, bona notabilia are rated at a greater sum, as in London, where by composition they are to amount to ten pounds (q). Nor is it necessary that the deceased should have left effects to the value of five pounds in each of the several dioceses where they are dispersed; if there be effects in any one diocese, other than that [54] in which he died, to the amount of five pounds, they consti- tute bona notabilia (r). But if the goods in the diocese where he died be of the value of ten pounds or upwards, and he have not left goods amounting to five pounds in another diocese, they shall not .be denominated bona notabilia (.s). If goods be left in two dioceses to the amount of five pounds in the whole, they shall be bona notabilia, and consequently subject to the archbishop's ju- risdiction (/), for in that case neither of the bishops has an exclu- sive authority. Bona notabilia may consist of goods to the value of five pounds in one diocese, and a lease or term for years of that value in another, in which the lands lie (w). ' (!) 4 Rum. Eccl. I,. 191. Gibs. Cod. f;jj lb. lb. 36. 4 Burn. Eccl. I,. 472. Cro. El. 719. Vid. 1 Rl. Com. 380. 193. Off. Ex. Suppl. 27. 11 Vin. Abr. (k) Vid. Off. Ex. 45. & Suppl. 27. 75. 80. Gibs. Cod. 472. (/) 4 Burn. Eccl. L. 191. Milliard v. (rj) 3 Bac. Abr. 37. Ofi. Ex. 45. Cox, 1 Salk. 37. (r) Ibid. 87*. Godolpb. 69. (///) 3 Bac. Abr. 3G. Daniel v. Lu- (s) Ibid. 37. Ibid. 09. ker, Over, 305. Roll. Abr. 908. Gibs. (/) 4 Rum. Eccl. L. 189. Roll. Abr, Cod. 472. 908, 909. (n) 3 Bac. Abr. 37. 4 Inst. 335 (u) 3 Rac. Abr. 37. Com, Dig (o) lb. lb. 35. Roll. Abr. 908. Admon. B.4. CHAP. II.] OF THE PROBATE. 54 Debts due to the deceased, however difficult to be collected, or however desperate, may make bona notabilia (v). So, it seems, a debt due from the king, for which there is no remedy but by petition, may fall within the same description (w). But if there be a bond in the penalty of five pounds to secure the payment of a less sum, and the same be forfeited, it shall not be classed among bona notabilia {x) . And it was so held even ante- [55] cedently to the statute 4 & 5 Ann. c. 16. s. 13., whereby the penalty is saved on bringing principal, interest, and costs into court. Nor shall lands devised to executors for payment of debts and legacies, although they become assets, be considered as such goods (y). On this point the law makes a distinction between debts by spe- cialty and debts by simple contract. It regards debts by specialty as the deceased's goods in that diocese where the securities are found at the time of his death, although they were entered into in another, or the debtor or creditor, at the time when they were exe- cuted, lived in a different diocese (z). But debts by simple con- tract follow the person of the debtor, and therefore are esteemed the deceased's effects in that diocese where the debtor resided at the creditor's death («). On this principle it hath been holden, that a judgment obtainedin one of the courts at Westminster, al- though in an action laid in Dorsetshire, made bona notabilia, because the record was at Westminster; but that a debt on a bill of exchange followed the parson of the debtor (b). An annuity out of a parsonage shall be reputed to be property in the diocese where the parsonage lies(c). [56] And leases for years where the land lies, not where the lease is merely found (d). Debts on recognizances, statutes, or judgments, shall be bona notabilia, where they were acknowledged or given (e). And by statute 4 & 5 Ann. c. 16. s. 26. salary, wages, or pay due to persons for work in any of her majesty's yards or docks, shall not be taken or deemed to be bona notabilia, whereby to found the jurisdiction of the prerogative courts. But to obtain an order of the Court of Chancery for the payment of money out of court, however small the amount, a prerogative probate is held to be indispensable {/). (v) 3 Bac. Abr. 47. Com. Dig'. Ad- ams v. Savage, Lord Raym. 854. HVin. mon. B. 4. Abr. 77. 80. O) Oft". Ex. 46. 11 Yin. Abr. 80. (<•) Com. Dig. Admon. B. 4. Daniel (x) Oft". Ex.46. v. Luker, Dyer, 305. in note. 11 Yin. (.//) 3 Bac. Abr. 37. Off. Ex. 47. 11 Abr. 80. Vin. Abr. 80. («?)• Com. Dig". Admon. B. 4. (r) 3 Bac. Abr. 37. Off. Ex. 46. (?) Com. Dig. Admon. B. 4. Daniel v. Roll. Abr. 909. Shep. Touchst. 463. Luker, Dyer, 305. in note. (a) 3 Bac. Abr. 38. Off. Ex. 47. ' (/) Newman v. Hodgson, 7 Yes. Jim, (A) Gota v. Strode, Carth. 149. Den- 409'. Tbomas v. Davics, 12 Yes jun, ham \ Stephenson, 1 Salk. 40. A.l- 417. 6 56 OF THE PROBATE. [BOOK I. If the will he not contested, the executor may prove it in the common form by his own oath, and in some of the dioceses of York, with the additional oath of one witness; or in case its validi- ty is called in question, he will be required to substantiate it more solemnly per testes, by the examination of witnesses in the pre- sence of the parties interested, as the widow and next of kin (g). This latter mode of proving a will is seldom resorted to, unless at the instance of a party whose object is to oppose it (h) ; but the executor himself may, for greater safety, if he have an interest in the will, elect to have it sanctioned by this more decisive species of evidence, and call on the next of kin to see it propounded (*). [57] When a will is to be thus solemnly proved, two witnesses are indispensable; for generally, by the civil law, the testimony of two persons is requisite, and, therefore, if in the probate of a will that of one witness be disallowed in the ecclesiastical court, no mandamus will lie ; for inasmuch as that court has jurisdiction of the subject matter, it has also jurisdiction of the mode of proof, and the proceedings respecting it (k). It is not necessary that such witnesses should have read the will, or heard it read, if they can depose that the testator declared that the writing produced was his last will and testament (/), or that he duly executed the same in their presence. If the will or codicil be written in the testator's hand-writing, although it have neither his name subscribed, nor his seal affixed to it, nor had witnesses present at its publication, yet if the omis- sion of these solemnities afford no presumption of a change of in- tention (m), it is of sufficient validity on proof of the hand-writing (?i), by the evidence of two persons acquainted with the character of it from having seen him write; if, however, there be a differ- ence of opinion in witnesses as to hand-writing, the ecclesiastical court will receive the evidence of persons skilled in hand-writing by comparison, who had not seen him write (o); but in case there be a single subscribing witness to the will, and who appears to at- test it, the testimony of one other person only to the above-men- tioned effect is requisite. [58] So, although written by another hand, nor even signed by the testator, if it can be shewn to be according to his instructions, and read over and approved by him, it is equally effectual (/?). And so where interrogatories were put to a testator who was in extrcyilis, but in full exercise of his testamentary powers, and such interrogatories and his answers were committed to writing, (g) 3 Bac. Ahr. 39. 2 Bl. Com. 508. (/) 4 Burn. Eccl. L. 205. Godolph. 4 Burn. Eccl. L. 205, 207. Godolph. 66. 65. 1 Ought 20. Swinb. b. 6. s. 14. (m) Supr. 3. (/*) 4 Burn. Eccl. L. 207. («) 2 Bl. Com. 501. (i) 4 Burn. Eccl. L. 208. 1 Ought. (o) Beaumont v. Perkins, 1 Phill. 20. Rep. 78. (/,) 4 Burn. Eccl. L. 206. Roll. Abr. (/>) 2 Bl. Com. 501. Yicl. Limber}' 300. Twaites v. Smith, 1 P. Wins. 12. v. Mason, Com. Rep. 451. CHAP. II.] OF THE PROBATE. 58 and read over to and approved by him, it was held good (q). But the instructions, to be effectual, must he complete, and not left in an unfinished state, and subject to the further consideration of the testator (r). In granting probate, the form of the instrument is not looked to by the ecclesiastical court, it is the intention of the party, and whether the instrument appears to be testamentary; as a paper ex- pressed to be a deed of gift, and -declaring " !• do hereby give (af- ter my death)" (s), and other cases of the like nature, where the anioias testandl is clearly shewn (/). (1) If a testamentary paper be in the hand-writing of the deceased, although unfinished and unexecuted, if prevented by the act of Gi#d, it will be admitted to probate (m). An executor on taking probate swears that the writing contains the true last will and testament of the deceased, as far as the de- ponent knows or believes, and that he will truly perform the same by paying first the testator's debts, and then the legacies therein contained, as far as the goods, chattels, and credits will thereto ex- tend, and the law charge him; and that he will make a true and . perfect inventory of all the goods, chattels, and credits, and ex- hibit the same into the registry of the spiritual court at the time assigned by the court, and render a just account thereof when law- fully required. When the will is proved, the original is deposited in the registry of the ordinary or metropolitan, and a copy thereof in parchment is made out under his seal, and delivered to the execulor, together with a certificate of its having been proved before him ; and such copy and certificate are usually styled the probate (v). ((/) Green v. Skipworth, 1 Plull. v. Corp, Prerog. Court. 1793. Hog v. Rep. 53. Lashley, ib. 1789. Marwick v. Taylor, (>•) Devereux v. Bullock, 1 Phill. ib. 1722. Shergold v. Shergold, ib. Rep. 00. 1714. (s) Thorold v. Thorold, 1 Phill. Rep. (u) Scott v. Rhodes, 1 Phill. Rep. 12. 1. (v) 2 Bl. Com. 508. 4 Burn. Eccl. (/) Green v. Proude, 1 Mod. 117. L. 215. 11 Vin. Abr. 56. pi. 7. Bac. Rigden v. Vallier, 2 Ves. 252. Corp Use of the" Law, 67. (1) A paper somewhat in the form of a letter, beginning', "In the name of God, Amen. If I should not come to you again, my son M. shall pa}', &c." was held not to be admissible to record as the will of the writer of it, evidence being given that he went to Kentucky, and returned, and lived several weeks after. Wagner v. M' Donald, 2 Harr. & Johns. 346. 59 OF THE PROBATE OF THE [BOOK I. [59] Sect. VI. Of the probate of nuncupative wills. A nuncupative will is also capable of being proved («). But by the statute of frauds, after six months from the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the testimony, or the substance thereof, were committed to writing within six days after the mak- ing of such will. And no letters testamentary, or probate of any nuncupative will, shall pass the seal of any court till fourteen days at the least after the decease of the testator be fully expired. Nor shall any nuncupative will be at any time received*to be proved, unless process have first issued to call in the widow, or next of kindred to the deceased, to the end they may contest the same if they please (o). (1) And (as we may (c) remember) no will in writing concerning any goods or chattels, or personal es- tates, shall be repealed, nor shall any clause, devise, or bequest •therein be altered or changed by any words, or will by word of mouth only; except the same be in the life of the testator commit- ted 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 probate of the ivills of seamen and marines. In regard to the making and probate of the wills of petty of- ficers 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, by the statute 55 Geo. 3. c. 60. above referred to (d), ! no will made by any petty officer or seamen, non-commission- ed officer of marines or marine, 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 ma- jesty'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 ma- jesty, his heirs or successors, of at any time since, be good, valid, (a) 2 Bl. Com. 500. (c) Vid. supr. 16. (6) Vid. supr. 4. (d) Vid; supr. 5. (1) The Act of 1705, sect. 5. contains the sumc provision, verbatim. (Purd. Dig. 801. 1 Dall. Laws, 53. 1 Sm. Laws, 33.) CHAP. 11. J WILLS OE SEAMEN. 60 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 belong- ed at the time, or to which he last belonged; and also a full descrip- tion of the degree of relationship or residence of the person or persons to whom or in whose favour, as executor or executors, 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 suf- ficient for the purposes aforesaid, unless the same shall, in the se- veral cases hereinafter specified, be executed and attested in the manner hereinafter mentioned; that is to say, in case any such will shall be made by any such petty officer, &c. at any time or times 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, unless such will shall be executed in the presence of and at- tested by the captain or other officer having the command of such ship or vessel, or (during the absence of such captain or other of- ficer 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 officer 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 lieu- tenant 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 quar- ters either at home or abroad, unless such will shall be executed 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, phy- sician, surgeon, assistant-surgeon, or chaplain, 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, &ct 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 at- tested by some commission or warrant officer, or chaplain in his majesty's navy, or some commission officer, or chaplain belonging to his majesty's land forces or royal marines, or the governor, phy- sician, surgeon, assistant-surgeon, or agent of any hospital in his GO OF THE PROBATE OF THE [BOOK I. majesty's naval or miRtary 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) shall 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 dis- tance of seven miles from any port or place where the wages of seamen in his majesty's service 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 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 justices of the peace, or by the minister or officiating minister or curate of the parish or place in which such will shall be executed; or unless the same (if the party making such will shall then reside in any other part of his majesty's dominions, or any colony, plantation, settlement, fort, factory, or any other foreign possession or dependency of his ma- jesty, his heirs or successors, or any settlement within the charter of the East India Company) shall be executed in the presence of and attested by some commission or warrant officer or chaplain of his majesty's navy, or commission officer of royal marines, or the commissioner of the navy, or naval storekeeper at one of his ma- jesty'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 pos- session 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 domin- ions, or any settlement, fort, factory, or other foreign possession or dependency of his majesty, his heirs or successors, or any settle- ment 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 ap- pointment or commission, civil, naval, or military under his majes- ty'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 hereafter shall be made by any such petty officer, 7 Where several executors are appointed, as formerly mentioned («), with separate and distinct powers, yet, as there is hut one will, one prohate shall he sufficient (o). [oS] Where prohate of the will of a married woman is granted to her executor, if he he not her husband, it is limited to the pro- perty, over which she had a disposing power : and the instrument from which such power is derived must he produced ; unless the husband, cither id person or by proxy, consent to a general pro- bale's being granted to her executor. If a will be limited to any specific effe'ets of a testator, the pro- bate shall also be limited, and an administration cxterorum 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 (/?), and may be directly so named in legal proceedings (q). For the power of an executor is founded on the special confidence, and actual appointment of the deceased. Such executor, therefore, may transmit that power to another in whom he has equal confi- dence. 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 survivor refused to prove in the lifetime of the other executors, he may take out prohate 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 executor- ship (s). 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 ex- ecutor of B. shall not be the executor of A., because the executor- ship vested solely in C. as survivor; and as he died intestate, ad- ministration must be taken out to A. (/). Wills which concern the personal estate only, are subject to the jurisdiction of the ecclesiastical courts (u). Where the will respects lands merely, the spiritual court ought (n) Vid. supr. 36. 0) Wankford v. Waukibrd, 1 Salk. (o) 3 Bac. Abr. 30. Off. Ex. 13. 309. (/)) 2 Bl. Com. 506. Com. 1%. Ad- (s) 11 Vin. Abr. 68, 69. 111. Wank- mon. B. 6. 11 Vin. Abr. 63. 90. 107. ford v. Wankford, 1 Salk. 307. House nil'. I'.x. Suppl. 1-10. Plow- 525. Shcp. v. Lord Pelre, 311. Paw let v. Freak, Touch. 161, Hard. 111. Com. Dig. Admou. B. 1. (7) Com. Dig. Admon. G.l. Powley (I) 11 Vin. Abr. 88. Off. Ex. 101. and Sear'* Case, Leon. 275. (w) 4 Burn. Eccl L 195, 70 OF THE PROBATE UNDER [BOOK I. [70] not to grant probate ; and if there be a suit to compel it, a prohibition will lie (v). But when the will is of a mixed nature, that is, relates both to real and personal property, the probate of it shall be entire in the spiritual court (10). A will may be proved with a reservation as to a particular le- gacy. 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 (x). 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). [71] If the will be lost, two witnesses, superior to all exception, who read the will, prove its existence after the testator's death, remember its contents, and depose to its tenor, are sufficient to es- tablish it (a). 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 sub- stance of the will by the joining of the pieces, and the memory of witnesses, the probate was granted (b). 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 transmitted hither, it is proved in the prerogative court, and de- posited 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 Indies, in the probate court there, and a copy transmitted, proved, and deposited in the same manrier. Where the testator was resident in England, not merely as a visit- or, 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 (d). (v) 4 Burn. Eccl. L. 195. Netter v. 6. s. 13. Brett, Cro. Car. 396. Habergbam v. (z) 4 Burn. Eccl. L. 202. Roll. Abr. Vincent, 2 Yes. jun. 230. 9o7. and vide infr. (w) Netter v. Brett, Cro. Car.396'. («) 4 Bu*n. Eccl. L. 209. 11 V.in. Abr. 57. 60. 117. Partridge's (b) Off. Ex. Supp. 215. 7 Bac. Abi. Case, 2 Salk. 552. 3 Salk. J J. 350. in note. (x) 4 Mum. Eccl. L. 209. l'lumcv. (c) Murray v. Jones, 2 Ves. & Bea. Beale, 1 P. Wins. 388. 318. (y) Off. Ex. Supp. 63. Swinb. Part (r/) Burn Y.Cole, Anib. 115 CHAP. II.] SPECIAL CIRCUMSTANCES. 72 If a will be made in a foreign country, disposing of goods in England, it must be proved berc (e).(l) But if tbe effects were al_ abroad, and tbe will be proved according to tbe custom of tbe coun- try where the testator died, it is sufficient: And tbe 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 translation of the same by a notary public. Sect. IX. Of caveats, revocation of probates, and appeals. When the will is opposed, it is the practice to enter a caveat in the spiritual court to prevent the probate. And it is said that, by the rules of that court, the caveat shall stand in force for three months, and that, while it is pending, probate cannot 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 (g). Probate of a will is suspended by appeal, (2) 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 H. 8. c. 5. the pro- bate is to be granted with convenient speed, without any frustra- tory delay. If a probate have been granted by the wrong jurisdiction, it is cause of reversal, or nullity, according to the distinction before stated (i). 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 tbe examination of witnesses, on such fraud being shewn, 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 tbe probate so granted in error, and upon petition of the party will decree the will and cancelled probate to be delivered out to him (/). (e) 11 Vin. Abr. 58. Vid. infr. L. 230. Rex v. Bettesworth, Stra. 857, (/) 11 Vin. Abr. 59. 69. Jauncy v. (*) Off. Ex.48. Vid. supr. 53. Sealey, 1 Vern. 397. (/••) Ibid. 48. (g) 3 Bac. Abr. 41. Offley v. Best, (/) In re Charles James Napier, I 1 Lev. 186. Pliill. Rep. 83. (h) 11 Vin. Abr. 63. 4 Burn. Eccl. (1) See Ante, page 2, note (2). See Viofton v. Jlsln/, 4 Grecnl. Rep. 134, Trecoihick v. Austin, '1 Mason's Rep. 16. (2) 4 Mason's Rep. 25. 74 OF APPEALS. [BOOK 1. An appeal (m) in regard to probates, by statute 24 //. 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 com- missary, 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 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 the archbishop himself; and incase 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. S. 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, fo certain persons to be named by the king for the determina- tion of the appeals; and those commissioners are called delegates, inasmuch as they are delegated by the king's commission. 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 delegates («); because the pope, as supreme head by the cannon law, used to grant [75] such commission; and such authority, as the pope heretofore exercised, is now annexed to the crown by statute 26' //. 8. c. !. and 1 Eliz. c. 1. But it is not matter of right, which the sub- ject may demand ex debitojustilix, but merely a matter of favour, which is never granted but under special circumstances (o). • Before revocation of a probate, the court will not grant a new one (p). Where probate granted by the special court is affirmed on an appeal to the arches or delegates, the usage is to send the cause back. But when the first sentence is reversed, the court below shall be ousted of its jurisdiction, and the court which reverses it shall grant probate de novo {q). Sect. X. The effect of a probate. — Loss of the same — What is evi- dence of probate. — Effect of its revocation. The probate thus passed, although it docs not confer, yet au- thenticates the right of the executor, for courts of law or equity (w) Com. Dig. Prerogative. (/;) 4 Hum. Eccl. L. 193. IJains v. («) Off". Ex. Suppl. 127. 129. 3 El. Com. ofDioc. of Caiferb., 7 Mod. 146. Com. 64— 67. {q) 11 Vin. Ahr. 76. Com. Dig. Ad (o) 3 Bl.Com. 67. Matthew;, v. War- mon. B. 2. 2 lioll. Abr. 233. ner, 4 Vcs. jun. 205. CHAP. II.] EFFECT OF A PROBATE. 75 take no judicial notice of any executor until he has proved the will, Hut it shall- have relation to the time of the testator's death (r). [76] If the will he proved in common form, it may at any time within thirty years be disputed; if in the more formal mode, and all persons interested are made parties to the suit, and there be no proceedings within the time limited for appeals, it is liable to no future controversy (S). So long as the probate remains unrevoked, the seal of the ordi- nary cannot be contradicted, for the temporal court cannot pass a judgment respecting a will in opposition to that of the ecclesiasti- cal court (t); and therefore if a probate under seal be shewn, evi- dence 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 shewn 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 (u). Such then being the nature of a probate, inasmuch as it is a ju- dicial act of the court having competent authority; and is conclu- sive 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 (v), 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 (iv).(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 (x). 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 0) 11 Vin. Abr. 205. Off. Ex. 49. (n) Marriott v. Marriott, Stra. 671, Henslor's case, 9 Co. 38. Comber's 672. 4 Burn. Eccl. L. 196. case, 1 P. Wins. 767. Hudson v. Hud- .(v) 1 Roll. Abr. 919. Anon. Com. son, 1 Atk. 461. Ca. in Ch. 2 pi. 56. Rep. 152. Vid. 11 Vin. Abr. 89. Smith v. Milles, 1 T. Rep. 480. Rex (w) Allen v. Dundas, 3 Term Rep. v. Netherseal, 4 T. Rep. 260. 125. (s) 4 Burn. Eccl. L. 207. Godolph. ' (x) 3 Bac. Abr. 34. Rex v. Vincent, G2. 1 Stra. 481. Rex v. Rhodes, 2 Stra. (/) House v. Lord Petre, 1 Salk. 311. 703. Griffith*! v. Hamilton, 12 Ves. jun. 298. (y) Allen v. Dundas, 3 Term Rep. See also 1 P. Wms. 388. 548. in note. 130. (1) 15 Scrs. & Rawle, 42. (2) 15 Sen;. & Rawle, 42, contra 77 EVIDENCE OF PROBATE. [BOOK I. records, and such exemplification is evidence of the will having been proved (r). The copy of the probate of a will of a personal property is evi- [7S]dence, inasmuch as the probate is an original taken by authori- ty, and of a public nature (a). The register's book, or, as it is sometimes styled, the ledger- book, in the spiritual court, is evidence thatlhere was such will, in case of its being lost (b). 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 Iherefore a copy of it is not a copy of a copy, as hath been errone- ously 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 testament- ary, may be revoked either on a suit by citation, or on appeal to reverse a sentence by which they are granted; and, in case of revo- cation, 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 were ordered to be set aside (e). Where B., a married woman, who was the sole executrix of her 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 form; it was held, that the general probate of the will of B. transmitted to C. the representation of A. without an administra- tion be bonis own {/). (z) Sheplierdv. Shorthose, Stra.412. (c) Law of Ni. Pri. 246. 4 Burn. Eccl. L. 219. (d) Off'. Ex. Suppl. 9. Case of Abbot (a) 3 Salk. 154. Hoe v. Nathorpe, of Strata, 9 Co. Rep. 31. I.d. Raym. 154. Law of Ni. Pri. 245, (e) 3 Bac. Abr. 50. 1 Chan. Ca. 126. 246. 4 Burn. Eccl. L. 219, (/) Barr v. Carter, 2 Cox's Rep. (6) 4 Burn. Eccl. L. 218. St. Legar 429. v. Adams, Lord Raym. 731. (1) Contra, Appeal of R. Peebles, 15 Serg. & Rawle, 39, where the doctrine in the text is denied. .See Ford v. Gardner, 1 Hen. & 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 impugn, within seven years, the validity of a probate by bill in equity. Appearance ami contesting the probate will not bar the right to file a bill, if there be any ground of fraud unknown to the party at the time of the probate* Rid, C1IA1'. III. | OF GRANTING ADMINISTRATION. 80 [SO] CHAP. III. OP THE APPOINTMENT OF ADMINISTRATORS. Sect. I, Of general administrations, — origin thereof, — who entitled. — Of consanguinity. In case a party makes no testamentary disposition of his person- al property, he is said to die intestate (a) ; 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 parens 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 (b). This prerogative was most probably exercised in the county court ; it was also delegated as a franchise to many rords 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 disposi- tion {d). 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 paries rationabiles, or two thirds belonging to the wife and children were deducted (f), might give, alien, or sell the remainder at his pleasure, and dis- pose of the money in pious uses. If he did otherwise, he violated the trust reposed in him as the king's almoner within his dio- cese (g). The jurisdiction of proving wills of course fell into the same channel, since it was thought reasonable that they should be proved to the satisfaction of him whose right of distribution they effectually superseded (h). But his conduct did not justify the presumption which had been thus formed in his favour. The trust so confided to him, he did (a) 2 Bl. Com. 494. 9 Co. 38 b. (b) 2 Bl. Com. 494. 9 Co. 38 b. (/) 2 Bl. Com. 491. 495. 516. 2 (c) Vid supr. 50. Inst. 33. (d) 2 Bl. Com. 494. 9 Co. 37 b. (#) Plowd. 277. (<-) Perkins, sect. 486, Plowd. 277. (A) 2 Bl. Com. 494, S 82 OF GRANTING ADMINISTRATION. [BOOK II. not very faithfully execute {i). He converted to his own use, un- der the name of 'church and poor, the whole of such residue, [S2] without even paying the deceased's debts. To redress such pal- pable injustice, the statute of Westminster 2. or the 13 E. 1. c. 19. was passed; by which it is enacted, that the ordinary is bound to pay the debts of the intestate, so far as his goods will extend, in the same manner as executors are bound, in case the deceased has left a will ; an use, as Mr. Justice Blackstone styles it, more truly pious than any requiem, or mass for his soul (k). 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 approve. But as he was not sufficiently scrupulous to prevent the perpetual misapplication of the fund, the legislature again inter- posed, in order to divest him and his dependents of the adminis- tration. The stat. 31 E. 3. c. 11. therefore provides, 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 kin, or to both of them, at his own discretion; and where two or more persons are in the same degree of kin- dred, in case they apply, gives him his election to accept which- ever he pleases. (2) (i) Ibid. 491. 495. (/) 2 Bl. Com. 495, 496. 3 Bac. Abr. (h) Ibid. 495. 54. Raym. 498. • (1) That part of this statute only is in foree (in Pennsylvania) which relates to the persons to whom administration is granted. Report of the Judges, 3 Binn. 618. Roberts' Dig. Brit.' Statutes, 254. (2) In Pennsylvania, by the provisions of the first section of the Act of 19th April 1794, entitled " An act directing the descent of intestates' real estates, and distribution of their personal estates, and for other purposes therein mentioned," (Purd. Dig. 372, 3 Dall. Laws, 521, 3 Sm. Laws, 143,) " The Register for the probate of wills, and granting letters of administration for the city and county of Philadelphia, and of the several counties of this state, respectively, and their de- puties, having power to grant letters of administration of the goods and chattels of persons dying intestate, within tbis commonwealth, shall, upon their granting let- ters of administration, take bonds with two or more sufficient sureties (respect being had to the value of the estate) in the name of the register, [to be taken in the name of The Commonwealth, by the 11th sect of the act of 4th April, 1797, Purd. Dig. 382,] with the conditions in manner and form following, viz. 'The condition of this ' obligation is such, that if the within 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 1 of him the said A. B. or into the hands and possession of any other person or per- '• sons for him, and the same so made, do exhibit or cause to be exhibited, into the 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 //. 8. point out (m); that is, according; to the former statute, to the next and most law- ful friends of the intestate; according 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 (?i); and they have in- terpreted 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 ef- fects of the wife to the husband (p). 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 (m) 2 Bl. Com. 504. (o) 2 Bl. Com. 496. 9 Co. 39 b. («) 3 Bac. Abr. 54. 11 Yin. Abr. 93. (joj 11 Vin. Abr. 86. Blackborough Thomas v. Butler, 1 Ventr. 218. v. Davis, 1 P. VVms. 44. ' register's office in the county of , at or before the day of next * ensuing, and the same goods," chattels and credits, and all other the goods, chat- < tels and credits of the said deceased at the time of his death, 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 admin- ' ister, according to law; and further, do make or cause to be made, a true and . 'just account of his said administration, at or before the day of , and ' all the rest and residue of the said goods, chattels and credits, which shall be ' found remaining upon the said administrator's account, the same being first exa- ' mined and allowed of by the orphan's court of the county, where the said ad- ' ministration is granted, shall deliver and pay unto such person or persons res- ' pectively, as the said orphan's court, by their decree or sentence, pursuant to ' the true intent and meaning of this act, shall limit and appoint; and if it shall e hereafter appear that any last will and testament was made by the said deceased, ' and the executor or executors therein named do exhibit the same into the said ' register's office, making request to have it allowed and approved accordingly, if ' the said A. B. within bounden, being thereunto required, do render and deliver ' the said letters of administration, approbation of such testament being first had ' and made in the said register's office, then this obligation to be void and of none * effect, or else to remain in full force and virtue.' Which bonds are hereby de- clared to be good to all intents and purposes, and pleadable in any courts of jus- tice; and the said orphan's court in the respective counties shall and may, and are hereby enabled to proceed and call such administrators to account, for and touch- ing the goods of any person dying intestate, and upon hearing and due considera- tion thereof, to order and make just and equal distribution of what remaineth clear, after all debts and funeral and just expenses of every sort first allowed and deducted, amongst the wife and children, or children's children, if any such be, or otherwise to the next kindred to the person deceased, in equal degree, or le- gally representing their stocks, to every one his right, according to the rules and limitations hereafter set down, and the same distributions to decree and settle, and to compel such administrators to observe and pay the same by the-due course of the laws of tjiis commonwealth, saving to every person or persons, supposing him or themselves aggrieved, their right to appeal: Provided, That the administrators be bound to furnish the inventory within one month, and to adjust and settle" his accounts within one year." 84 OF GRANTING ADMINISTRATION. [BOOK II. him; and may elect to grant it to the next of kin of the wife (q). By others, it has been asserted, that he is entitled under the equi- ty of the stat. of the 21 H. 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 been insisted, that although the husband have not been expressly named in the stat. 31 E. 3. nor does he answer the description of next of kin to the wife, yet he is included under the denomination of the next and most lawful friend of the intestate; and that thus he supports his claim, not on the common law, nor, as described eo nomine, by the statute, but as comprehended within its general provision (s). By a fourth, it is alleged, and the doctrine is recognised, an a re- eent case, by Lord Loughborough, C. (t), 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 purpose, since the husband's right [85] to administer, on whatever foundation, is now beyond all question established. (1) The stat. 29 Car. 2. c. 3. contains a clause, that the statute of distributions, the 22&23 Car. 2. c. 10. hereafter to be discussed, shall not prejudice such title of the husband, under an apprehension that it might be considered to be thereby affected. And though a marriage was voidable as being within the prohibited degrees, but not declared void in the lifetime of the parties, the marriage is val- id for all civil purposes, and the husband is entitled as a civil right to administration of her effects (v). (q) Johns v. Rowe, Cro. Car. 106. v. Gorges, 1 Ves. jun. 49. (»•) 11 Vin. Abr. 84. in note. (t) Watt v. Watt, 3 Ves. jun. 246, (s) Fawtry v. Fawtrv, 1 Salk. 36. 247. Vid. also Com. Dig. Admon. B. 11 Vin. Abr. 73. 84. in note. 116. Black- 6. 282. 2 Bl. Com. 515. 4 Co. 51 b. borough v. Davis, 1 P. Wms. 44. 4 Roll. Abr. 910. 4 Burn. Eccl. I,. 264. Burn. Eccl. Law, 235. Vid. Fettiplace (v) Elliott v. Gurr, 2 Phill. Rep. 16. (1) By the 5th section of the Act of 21st March, 1772, entitled "An Act for preventing frauds and perjuries," (Purd. Dig. 371, 1 Dall. Laws, 641, 1 Sm. Laws, 390) it is provided, "that the Act entitled 'An Act for better settling of intes- tates' estates,' passed &c. shall not be construed to extend to the estates of feme- coverts that shall die intestate, but their husbands may demand and have adminis- tration of their rights, credits and other personal estates, and recover and enjoy the same, as they might have done before the making of the said Act." The Act "for better settling intestates' estates" was repealed by the act of 19th April, 1794. (Purd. Dig. 372. 3 Dall. Laws, 521. 3 Sm. Laws, 143.) And upon the deatli of a husband who has survived his wife, and adminis- tered upon her estate, his executor (or it seems his administrator) is entitled to be administrator dc bonis non of the wife, in preference to her next of kin, or (it would seem) to the husband's residuary legatee. Hendren v. Co/gin, 4 Munf. Kep. 231. So if the husband survive the wife, and die without administering on her property, or before he had completed the administration, and the wife's next of kiu administer, such administrator becomes trustee for the representatives pi" the husband. Stevmrt v. Stewart, 7 Johns. Cha. Rep. 244. Whitaher v. Whita- kcr, 6 Johns, Rep. 117. CHAP. III.] OF GRANTING ADMINISTRATION. 85 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 (u). 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 appointment capable of operating only in equity, the court held that it was for the spiritual jurisdiction to determine to whom to grant administration, and refused to interpose in favour of the husband (iv). So where a feme covert, by virtue of her power to dispose of her estate, devised a term for years to J. S., administration was granted to the devisee (x). (1) [86] On the other hand, where the return to a mandamus to grant administration to a husband stated that, by articles before marriage, it was agreed that the wife should have power to 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 action not covered by the deed, and that the husband was at all events entitled to an administration in respect to them, though equity would control it in respect -to the lease; the court allowed the objection, and granted a peremptory mandamus (y). In case of a limited probate, granted to the executor of a marri- ed woman as above mentioned (z ), the husband is entitled to ad- ministration of the other part of her property, which is called an administration costerorum. 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 {a ). (2) If the widow renounce administration, 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 (u) 3 Bac. Abr. 55. in note. Com. Rep. 143. S. C. Dig. Admon. B. 6. vid. infr. {y) 4 Burn. Eccl. L. 232. Rex v. {w) 4 Burn. Eccl. L. 232. Rex v. Bettesworth, Stra. 891. Bettesworth, Stra. 1111. (z) Vid. supr. 68. (x) 11 Tin. Abr. 87. Marshall v. (a) Vid. 11 Vin. Abr. 92. Anon. Frank, Prec. Chan. 480. Gilb. Eq. Stra. 552. (1) The person entitled to the estate is entitled to the administration also, as well de bonis nun as originally, Cutchin v. Wilkimon, 1 Call's Rep. 3; and therefore 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 con- vey the same to her legal heirs, it was held, that her nearest blood relation was, in such event, entitled to the administration of her estate in preference to her hus- band. Bray v. Dudgeon, 6 Munf. 132. (2) And natural children, who were residuary legatees, have been preferred to the widow, in a case where the executors named in the will refused to act. Govane v. Govanc, 1 Harr. 5c M'llen. 346. 87 OF GRANTING ADMINISTRATION. [iJOOK II. there can be no ground to complain, as the ordinary is not bound to grant it exclusively to either (b). 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). It now becomes necessary to inquire who are such next of kin as shall be thus entitled. Consanguinity or kindred is defined to be vinculum persQnarum ab eodem stipitc descendeniium, the connexion or relation of per- sons descended from the same stock or common ancestor. This consanguinity is either lineal or collateral (d). Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other, as between J. S. the propositus in the table of consanguinity, and his father, grandfather, great-grandfather, and so upwards in the ascending line; or between J. S. and his son, grandson, and great-grandson, and so downwards in the direct descending line. Every genera- tion in this lineal direct consanguinity constitutes a different de- gree, reckoning either upwards or downwards. The father of J. S. is related to him in the first degree, and so likewise is his son ; his grandsire and grandson in the second; his great gfandsirc and great [SS] grandson in the third. This is the only natural way of reck- oning the degrees in the direct line, and therefore universally ob- tains as well in the civil and canon as in the common law. Thus this lineal consanguinity falls strictly within the definition of vinculum per son arum ab eodem stipite descendentium, since lineal 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 de- scend 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 com- mon stock, from which these relations are branched out. As if J. S. have two sons who have each issue; both of these issues are lineally descended from J. S. as their common ancestor, and they are collateral kinsmen to each other, because they are all descend- ed from one common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos. [S9] 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 consanguin- ity is this, that they are both derived from one and the same great- er) 11 Vin. Abr. 71. 3 Bac. Abr. 55. 8 East. 408. Com. 1%. Admon. B. 6. Fawtry v. (d) 2 Bl. Com. 202. Fawtiy, 1 Salk. 66. Vid. infr. (e) Ibid. 203, 204. (') Rex v. Inhabitants of HorsIeVj r IV. Great • Grand- father's Father. i i 1 7> 1 I i I III. >H V. Great Great Grand- Great father. Uncle. L _ -1^ L , J 1 i- -| r T II. IV. | Grand- Great father. Uncle. i ! A ~ i zi V. I. III. Great Father. Uncle. Uncle's j L . L_ I Son. 1 i - 1 1 i- , 1 r x " ' ' i THE PROPOSI- TUS. II. Brother. IV. Cousin German. VI. Second j Cousin. i _i_ i 1 1 v. 1 X i— i r V. I. III. Son of the Son. Nephew. i _^ Cousin German. 1 p J A. ., 1 T 1 ve- 1 r - L - IV. II. Grand- j son. Son of the Nephew, or Broth- I J er's J Grandson l" III. Great | Grand- son. i Jl CHAP. III.] OF GRANTING ADMINISTRATION. 89 grandfather. 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 (f). 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 (g) ; or in other words, .to take the sum of the degrees in both lines to the common ancestor (h). Thus, for example, the propositus and his cousin-german are re- lated in the fourth degree. We ascend first to the father (i), 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 un- cle to the cousin-german, which is the fourth degree. So, in reck- oning 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 brother, which is the second degree; from the brother we de- scend to the nephew which is the third degree; and from the nephew to the son of the nephew, which is the fourth degree (k). Of the- kindred, those, we must recollect, are to be preferred, who are the nearest in degree to the intestate; (1) but from among persons of equal degree, in case they apply, the ordinary has the power of making his election (/). • The court never forces a joint administration ; and where the option was between two persons in equal degree of 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 it's discretion, (2) 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 (/) 2 Bl; Com. 204, 205. 504. (k) 4 Burn. Eccl. L. 355. Black. (g) Ibid. 207. 504. Mentney v. Desc. 41, 42. Petty, Pre. in Ch. 593. (0 n vin - Abr - 114 > 115 - Com - (h) Ibid. 12th edit, note (4). Dig. Admon. B. 6. (/) See the table of consanguinity (m) Bell v. Timiswood, 2 PhUl. Rep. prefixed, in which the degrees of col- 22. .lateral consanguinity are computed as (n) Budd v. Silver, 2 Phill. Rep. 115. far as the sixth. (1) The daughter is to be preferred, in granting administration, to /) 2 Bl. Com. 505. (r) 11 Vin. Abr. 9;". and in note (z) Thrnstout v. Coppin, Bl. Rep. Lord llaym. 684. Com. Dig-. Admon. 801. B. 6. Blackborough v. Davis, 1 Salk. («) 11 A'in. Abr. ^5. 4 Burn. Eccl. 38. L. 241. Com. Dig. Admon. D. Sty. 75. (s) 2 Bl. Com. 505. Stanley v. (//) 3 Salk. 21. Stanley, 1 Atk. 455. (c) 11 Vin. Abr. 85. 4 Burn. Eccl. (f.) 2 Bl. Com. 505. L. 241. Com. Dig. Admon. D. Wank- (u) Blackborough v. Davis, 1 P. ford v. Wankford, 1 Salk. 305. Yid. "VVms. 53. Thrustoui v. Coppin, Bl. Rep. 801. U Vin. Abr- 11 Smith v. Tra- , (1) ■ Ludwig, 1 S< rg. iRav CHAP. III.] OF .GRANTING ADMINISTRATION. 92 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 (b), in such an event the ordinary must grant ad- ministration cum testamenlo annexo, with the will annexed, and the duty of such grantee differs but little from that of an executor [ ~93](c). He is equally bound to act according to the tenor of the will. So, if one of two executors prove the will and die, and then the other refuse, such administration shall be granted (d). The ordinary cannot grant administration with the will annexed in which an executor is named, until he has either formally re- nounced 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 ci- tation previous to the grant. After such administration the execu- tor cannot retract his refusal during the lifetime of the administra- tor, but he may do so after the grant has ceased by the administra- tor's death (e). A party, although otherwise entitled, may be incapable of the office of administrator- on account of some disqualification in point of law. The incapacities of an administrator are not confined to such as have been enumerated in respect of executors, but com- prise attainder of treason, or felony, outlawry, imprisonment, ab- sence beyond sea, bankruptcy (/"), and, in short, almost every [94] species of legal disability; for, by the express requisition of the statute, the ordinary is bound to grant administration to the next and most lawful friends of the intestate (g). 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 appointed an administrator (i). Sect. II. Of the analogy of administrations to probates. What has been stated respecting the different jurisdictions re- la'tive 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 bo- na notabilia ; of the ecclesiastical privilege of granting probate being personal, and not local (a) ; of its devolving -on the arch- bishop where the party deceased was a bishop, and on the dean (b) 4 Burn. Eccl. L. 228. 11-Vin. (g) Com.- Dig. Admon. B. 6. Fa\r- Abr. 78. 2 Inst. 397. try v. Fawtrv, 1 Salk. 36. (c) 2 Bl. Com. 504. "(/') Com. "Dig. Admon. B. 6. Ca- (il) Vid. supr. 69. roon's case, Cro. Car. 9. Anon. 1 (?) \ id. supr. 45. Brownl. 31. ( / ) Co. 39 1). Com, Dig. Admon. (/') 11 Yin. Abr. 94. Crooke v. B. 6. 1 'Burn. Eccl, L. 233, 3 Bac, Watt, 2 Vern. 126. 6, in note. [a) l Burn. Eccl. L, 241, 94 PRACTICE IN REGARD [BOOK I. and chapter in case of the death or suspension of the metropoli- tan or ordinary; of his being compelled by mandamus to grant [95~\ probate, unless he return a lis pendens (6); of caveats and appeals; of the power of the court of appeal to grant probate where the sentence is reversed (c); of probates being of unquestionable validity in courts of common law (d) ; of the register's book in the spiritual court being evidence where the probate is lost (e); 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 of a party 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 adminis- tration are issued, because the former derives his authority from the will, and not from the probate; (1) the latter owes his entirely to the appointment of the ordinary (f). It has indeed been held that a party before administration may file a bill in chancery^although he cannot commence an action at law (g). ' [96] But by stat. 37 Geo. 3. c. 90. s. 10. if a party adminis- ter, and omit to take out letters of administration within six months after the intestate's death, he incurs the penalty of fifty pounds (A). 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 (a). (2) On taking out letters of administration, the party swears that the deceased made no will, as far as the deponent knows or be- ib) 4 Burn. Eccl. L. 230. Com. Dig. Case, 1 Lev. 101. Admon. B. 7. 11 Vin. Abr. 74. 202. (/) 11 Vin. Abr. 202. 4 Burn. Eccl. 4 Inst. 335. L. 241. Wankford v. Wankford, Salk. (c) 11 Vin. Abr. 76. Com. Dig. 301. Admon, B. 2. 2 Roll. Abr. 233. («•) 4 Burn. Eccl. L. 242. Fell v. (d) Tourton v. Flower, 3 P. Wms. Lutwidge, Barnardist. 320. 369. (h) Vid. supr. 43. 66. (e) 4 Burn. Eccl. L. 248. Peaulie's (a) 4 Burn. Eccl. L. 242. (1) See 15 Serg. & Kawle, 42. (2) The practice in Pennsylvania is, unless a caveat be filed, to grant letters of administration immediately upon the decease of the intestate, if applied for. The Register, however, w'ril revoke the grant, if any person having a paramount righi make application within fourteen days from the death of the intestate. CHAP. HI.] TO ADMINISTRATIONS. G ( J lieves, and that he will truly administer the goods, chattels, and credits, by paying the deceased's debts, as far as the same wdl ex- tend, and the law charge him ; and that he will make a true and perfect inventory of all the goods, chattels, and credits, and ex- hibit 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 ad- ministration when lawfully required. [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 conditioned for the making or causing to be made a true and per- fect 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 persons respectively as the judge by his decree or sentence, pursuant to the statute of distri- bution, shall limit and appoint; and if it shall thereafter appear that any will was made by the deceased, and the executor therein nam- ed exhibit the same into the court, making request to have it al- lowed and approved accordingly, for the administrator's rendering and delivering, on being thereunto required (approbation of such testament being first had and made), the letters of administration in the court. (1) [9S] 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 pro- bate, though it has been already taken out by his co-executor. The maxim, " qui prior est tempore, potior est jure" applies in the former but not in the latter instance (b). Sect. V. Of sjyecial and limited administrations. There are also various classes of administrations, which, al- though not founded on the letter of any of the above mentioned (6) 11 V'm. Abr. 116. Thomas v. Butler, 1 Veritr. 218. (1) Sec the Act of \9th JJpri I, 1794, (I'urd. Dig. 372, 3 Dall. Laws, 521, ' 3 Sm. Laws, 1 13,) Ant , page 82, note (2), OF SPECIAL AND [BOOK I. statutes, fall within their spirit and intendment fc). As, if no ex- ecutor, be named in the will, the clause for such appointment L wholly omitted, 01 where a blank is left for his name, administra- tion shall he granted with the will annexed, when it shall be proved in the same manner as in the case of an executor Or if the executor die in the lifetime of the testator (e), or if the 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 executor (g) : and in such < administration shall be granted in the interval. So, if the executor b« incapable of the office, the party is said to die quasi infestatus. and the ordinary must grant administration. So, if an executor is afterwards disabled from a if he be- come lunatic, then, on the same principle of necessity, there ; be a g^ant off a temporary administration with the will annexed (A). SoT in all the above-mentioned instances, if there be a residuary legatee, administration .ted to him in exclusion of the next of kin, because in that case the ne%t of kin hath no inte- in the joroperty, and the presumpyon-of the statute, that the :or would have given it to him, cannot : ore sueh a le- gatee is appointed [i . 1 And even where there is no prospect of .due, a residuary legatee is entitled to an administration de bo7u$. in preference to legatees and annuita: If several persons are entitled to the residue, it may be to a: ad if it be thus granted, the other residuary legatees have no claim to a subsequent grant in the lifetime of the itee. [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 (;}). A distinction exists in the spiritual court between an infant and a minor. The former is so denominated if under seven years of age, the latter from seven to twenty-one. The ordinary ex c : _~s a guardian to an infant. The minor himself nominate - (c) Bum.Ec r. (»"> 11 Vin. Abr. 90. « I cllis- {k) Atkinson v.l - Phil- ton, 2 T. v 590. limore. 516. :. > A : . ".- (/, Com. Diir. Admon. (B. 6.) raon.'B. 1. lor r. Shore, 2 Jon. 162. 11 Vin. Abr. (e) 11 Via. Abr. (/ on." (m) Com. Dig. Admon. (B. 6.) Thom- 0^) Plo- 1 b. ■ ' CHAP. III.] LIMITED ADMINISTRATIONS. 100 guardian, who then is admitted in that character hy the judge. Ac- cording to the practice of the court, the guardianship in cither case is granted to the next of kin of the child, unless sufficient objection to him be shewn, and administration is committed to such appointee for the use and benefit of the infant or minor. Although, as we have seen (n), an administration during the mi- nority of an infant executor was, antecedently to the stat. 3S Geo. 3. c. 87., determined on his attaining the age of seventeen, yet ad- ministration during the minority of an infant next of kin was al- ways 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 there- fore it was held he must be of the legal age of twenty-one before he is competent; and the executor comes in by the act of the party, and that he should be capable of the executorship at the age of se- venteen was in conformity to other provisions of the spiritual law^j. And also, which was the more forcible reason, because the statute of distributions requires administrators to give a bond, which an infant is incapable of doing (p). But now by the. above-mentioned stat. 3S 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 executor, administration with the will annexed shall be granted to the guardian of such infant, or to such other person as the spiri- tual court shall think fit, until such infant shall have attained the full age of twenty-one years, at which period, and not before,* pro- bate of the will shall be granted to him. If administration be granted to such guardian for the use and benefit of several infants, it ceases on the eldest attaining twenty- one. If there be several infant executors, he who first attains the age [102] oftwenty-oneyears shall prove the will, and the administration shall cease {q); but administration' granted during the minority of several children will not expire on the marriage of one of them to a husband of full age (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 (s). If administration be granted pendente minore celate, 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 (t). If there be two executors, one of whom has attained the age of twenty-one years, and the other not, administration shall not be (//) Supr. 31. 473, 474. (o) 4 Burn. Eccl. L. 238, 239. Freke (t) Jones v. Earl of Stafford, 3 P. v. Thomas, Ld. Raym. 667- Com. Dig. Wins. 79. Admon. (F.) (.s) Jones v. Earl of Stafford, 3 P. O) 11 Vin. Abr. 100, 101. 3 P.ac. Wms. 79. Scd vide Com. Dig. Ad- Abr. 13. Harg. Co. Litl. 89 b. note 6. mon. (F.) and 5 Co. 29 b. 17) 4-Buvn. Eccl. L. 240 L ifTest. (/) Abbott \ Abbott, 2 Phill. 57$. 102 OF SPECIAL AND [BOOK I. granted during the minority of him that is under age, because the former may execute the will (/). According to other authorities (u), administration shall in such case be granted to the one executor during- the minority of the other; but they are not warranted by modern practice. This 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 effects of the intestate to the prejudice of the infant, for whom he is merely a trustee, that court will appoint a receiver of the per- [103] sonal estate, notwithstanding the grant of administration (v). 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 (w). In this class is also to be ranked administration pendente lite, while the suit is pending (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 the litigation (z). Of the same speeies also is administration grounded on the in- capacity 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 administration may be avoided («). To this description also must be referred administration granted at common law durante absentia, during the absence of the exe- cutor 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 probate or administration (b). Under this head is also comprised administration granted to a creditor: such administration in general is warranted only by cus- tom, and not by any express law, and may be granted where it is visible the next of kin cannot derive any benefit from the estate; but that is to be understood only where they refuse the grant, and (/) 4 Burn. Eccl. L. 240. Pigot and (x) 4 Burn. Eccl. L. 237. Gascoigne's case, 1 Brovvnl. 46. 11 V'm. (y) 3 Bac. Abr. 56. Walker v. Wool- Abr. 99. Foxwist v. Tremaine, 1 Mod. laston, 2 P. Wms. 575. 11 Vin. Abr. 47. Hatton v. Mascal, 1 Lev. 181. 105. 00 11 Vin. Abr. 97, 98, 99. 3 Bac. (z) 4 Burn. Eccl. L. 238. Knight v. Abr. 13. Colborne v. Wright, 2 Lev. Duplessis, 1 Ves. 325. 239, 240. S. C. 2 Jo. 119. Smith v. (a) Com. Dig. Admon. B. 1. Faw- Smith, Yelv. 130. try v. Fawtry, Salk. 36. (v) 1 1 Vin. Abr. 100. Havers v. Ha- (i) Roll. Abr. 907. Lutw. 842. Slaugh- vcrs, Barnard. 23, 24. tor v. Mar, Salk. 42. :"id vid. supr. 70. (»•) 11 Vin. Abr. 98. 1 Sid. 57. CHAP. III.] LIMITED ADMINISTRATIONS. 101 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 administration, or shew cause why the same should not he granted. to a creditor (c). And by the aforesaid stat. 33 Geo. 3. c. S7., if, after the expira- tion 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 jurisdiction of his majesty's courts, on application of any cre- ditor, next of kin, or legatee, grounded on an affidavit, in the form therein specified, stating the nature of his demand and absence of the executor, such administration shall be granted. (1) Of the same nature is administration committed by the ordinary, in default of all the above-mentioned parties, to such discreet per- son as he shall approve (d). 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 lega- tee moved for a mandamus to the ecclesiastical judge to be admit- ted to prove the will, and have administration with the will annex- ed, on shewing cause the court held that the matter was left to the election of the ordinary, and discharged the rule (/). (2) [106] So, where a grandfather moved for a mandamus to such judge to grant him administration of the effects of his deceased son during the minority of his grandson, the court refused the ap- plication (»•). 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 (A), yet, on the petition of the others, it will compel him to enter into articles to pay debts of equal de- gree in equal proportions, without any preference of his own. There may. be also a limited or special administration commit- ted to the party's care, namely of certain specific effects, as of a term for years and the like, and the rest may be committed to others, or for effects of the intestate in this country or place to one, (c) 4 Burn. Eccl. L. 230. 2 Bl. Com. ler, 1 Ventr. 219. Smith's case, Stra. 505. Blackborough v. Davis, Salk. 892. Rex v. Bettesworth, ib. 956. 38. Com. Dig-. Admon. B. 6. (/) 4. Burn. Eccl. L. 231. Rex v. (d) 2 Bl. Com. 505. Bettesworth, Stra. 956. Com. Dig-. (e) 4 Burn. Eccl. L. 237. 3 Bac. Abr. Admon. B. 6. 13. Ld. Grandison v. Countess of Do- (g) 4 Burn. Eccl. L. 231. Smith's ver, Skin. 155. Walker v. Woollaston, case, Stra. 892. 2 P. Wms. 582, 589, 590. Briers v. (A) Harrison v. All Persons, 2 Phill. Goddard, Hob. 250. Thomas v. But- Rep. 249. (1) Sec Griffith v. Frazier, 8 Cranch. 9. for the law of limited administrations. (2) Neave's Case, 9 Serg\ &. Rawle, 186. 10 106 OF SPECIAL AND [HOOK I. and for effects in that country or place to another ; and as well in general cases, as in the case ahove stated, of the wife, and next of kin (h). But several 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 absurd that two persons should have a distinct right to an individual chattel, or chose in action {i). 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 where a former grantee is outlawed, and in prison beyond sea, it may be committed to another, but so as, if the first grantee shall return, he shall be entitled to administer (/). The ordinary also, in default of persons entitled to the adminis- tration, may grant letters ad colligendum bona defuncti, and thereby take the goods of the deceased into his own hands, and thus assume the office of an executor or administrator in respect to the collecting of them ; but the grantee of such letters cannot sell the effects without making himself an executor de son tort. The ordinary has no such authority, and therefore he cannot confer it on another (in). 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 set- tled that the king is entitled to them as ultimus hceres ; yet in [10S] such case it is the practice to transfer the royal claim by let- ters 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 ad- ministration (n). (1) It has indeed been asserted that such letters patent are merely in the nature of a recommendation; and that though it be usual for the ordinary to admit such patentee, yet it is rather out of respect to the king than strictly of right (o). Administration may also be granted to the attorney of all exe- cutors, or of all the next of kin, provided they reside out of the province : but if the effects are under twenty pounds, such ad- ministration may be granted, whether they are so resident A' not. {h) Com. Dig. Admon. B. 7. Roll. (»i) 4 Burn. Eccl. L. 241. 11 Yin. Ah. 908. Vid. supr. 87. Abr. 87. Off. Ex. 174, 175. 2 Bl. (i) 3 Bac. Abr. 57. Roll. Abr. 908. Com. 505. Fawtry v. Fawtry, Salk. 36. Vid. («) Com. Dig. Admon. A. 11 Vin. supr. 98. Abr. 88. Jones v. Goodchild, 3 P. (/c) 11 Vin. Abr. 139. Rose v. Bart- Wms. 33. 1 Wooddes. 398. Dougl. lett, Cro. Car. 293. 548. (/) Com. Dig. Admon. B. 7. Roll. (o) 11 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 Escheats in Permsylvanu see Purdon's Digest, '.54 CHAP. III.] LIMITED ADMINISTRATIONS. 108 A grant of administration in a foreign court, as for example at Paris, is not taken notice of in our courts of justice (p ). (1). [109] Sect. VI. Of Administrations to iiitestate seamen and marines. With regard to the administration of the wages, pay, prize- money, bounty-money, or allowance of money of such petty ofii- (/>) Tom-ton v. Flower, 3 P. Wins. 371. Vid. supr. 72. (1) Letters of administration granted in a sister state are a sufficient authority to maintain an action in Pennsylvania; and suck has been the practice without regard to the particular intestate laws of the state where they have been grant- ed. . MCullough v. Young, 1 Binn. 63. 4 Dall. 292. The provisions of the Act of 1705, in relation to letters of administration granted out of the province, has uniformly been considered not to extend farther than to the provinces of this country at tlie time the act was passed ; and hence in Graeme v. Harris, 1 Dall. 456, it was held that letters of administration granted by the Archbishop of York were not a sufficient authority to maintain an action in this state. The courts of Virginia and Neiv York do not take notice of letters testamentary, or of admin- istration granted abroad, or out of the state, Dickinson, adm. v. M'Craw, 4 Rand. Rep. 1.58. Morrellv. Dickey, 1 Johns. Cha. Rep. 153. Doolittle v. Lewis, 7 Johns. Cha. Rep. 45. Nor do the courts of New Hampshire, (Sabin v. Oilman, Adams's Rep. 198,) Connecticut, (Perkins v. Williams, 2 Root's Rep. 462. Riley v. Mi- ley, ChampUn v. Tdley, 3 Day's Rep. 74. 303. See however Nicholl v. Mum- ford, Kirby's Rep. 274.) Massachusetts, (Goodwin v. Jones, 3 Mass. Rep. 514. Stephens v. Gaylord, Langdon v. Potkr, 11 Mass. Rep. 369. Picquet v. Swan, 3 Mason's Rep. 469.) Kentucky, (Jackson v. Jeffries, 1 Marsh. Rep. 88.) Ohio, (Kerr v. Moon, 9 Wheat. Rep. 565.) or the District of Columbia, (Fenwickv. Sears, 1 Cranch, 259. Dixon's Ex. v. Ramsey's Ex. 3 Cranch, 319.) Letters of administration granted in a sister state are not sufficient authority to maintain an action in North Carolina, (Butts' Mm. v. Price, Cam. & Now. 68. _ Anon. 1 Hayw. Rep. 355.) though probate and letters testamentary granted in ano- ther state will enable executors to sue, if the testator was an inhabitant of the state where such probate was granted. Stephen v. Smart, 1 Carol. Law. Rep. 471. But the objection, that the plaintiff was appointed administrator by the authority of another state, must be pleaded in bar or abatement, and cannot be taken after an issue on the merits. Langdon v. Potter, ChampUn v. Tdley. And an administrator 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. Talmadge v. Chapel, 16 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, Doolittle v. Lewis, 7 Johns. Cha. Rep. 45, as, it also seems, he may for any voluntary payment to him. Williams v. Starrs, 6 Johns. Cha. Rep. 353. Stephens v. Gaylord. And where an administrator rum testaments annexo of a person who was domiciled in England at the time of his death, comes into Massachusetts, and takes out administration from the probate office, according to the statute, he cannot be cited before the judge of probate to account for assets received by him in England. Selectmen of Boston v. Boy/s- lun, 2 Mass. Rep. 384. Dawes, Judge, &c. v. Boylston, 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 his intestate to be taken in execution. Borden v. Borden, ■1 Mass. Rep, 67. Where administration is taken out in one slate, the administrator may lie called upon, in equity, in any other state, to account for the assets, by a creditor. Evans v. Uatem,9 Serg-le llawle, 252. {Bryan v. M'Oee, 2 Wash. C. C. Rep. 337. 109 OF ADMINISTRATION [BOOK i cers, and seamen, non-commissioned officers of marines, and ma- rines, as are above-mentioned, in respect of services in his Ma- jesty's navy by the before-cited stat. 55 Geo. 3. c. GO., it is en- acted, that the party claiming such administration shall send or give in a note or letter to the inspector of seamen's wills, stating his place of abode, and the parish in which the same is situate, the name of the deceased, the name of the ship or ships to which he belonged, and that he has been informed of his death, and request- ing the inspector to give such directions as may enable him to procure letters of administration to the deceased ; upon receipt whereof the inspector shall send or cause to be sent, by course of 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 in- clusive, with blanks for the time and place of the intestate's birth., and the ship 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 inspector for a certifi- cate, to enable such party to obtain letters of administration to the deceased's effects, with also a blank of his degree of kindred ; and [110] 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 which to insert whether) bachelor or widow- er ; to which form shall be subjoined a blank certificate, to be signed by two reputable housekeepers of the parish where the party applying is resident, of their knowledge of him, and of their belief that what he states is true : and. also another certificate to be signed by the minister of the parish, and two of the 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 authentic proof of her marriage, and containing also the same directions as annexed to the second certificate subjoined to the above-mentioned check («), in regard to proof of the deceased's death, if he died after he had left the naval service, in regard to mentioning the name of a proctor to be employed in obtaining the administration.: and that the applica- tion, when filled up and attested, shall be sent by the general post under cover, directed to the treasurer or paymaster of his Majes- ty's navy, London. And the inspector shall at the same time send or cause to be sent to such minister, officiating minister, or curate, a letter, acquainting him with the nature of the claim and the steps to be taken thereon; and also send or cause to be sent, in like man- ner, to the claimant a letter, advising him, of the forwarding of the petition or paper under cover, to such minister, officiating O) Supr. 92. CHAP. 111.] TO SEAMEN. 110 minister or curate, and directing him to take such steps as are di- rected, for the purpose of substantiating his claim to the satisfac- tion of the inspector; and upon receipt of the said petition or pa- per and letter, the minister, officiating-minister or curate, shall, on being applied to for his signature to the paper, examine the clai- mant, and also two inhabitant householders of the parish as may be disposed to sign the first certificate on the paper, touching the right of such claimant to the administration to the effects of the intestate, according to the degree of relationship stated in such petition, and being 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-min- ister or curate, and tl?e two inhabitant householders shall also sub- scribe 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 examination, or his signing the petition or application, pay to the minister, officiat- ing-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- [111] ter of his Majesty's navy, London ; and he on receiving the same shall direct the inspector to examine it, and make such inqui- ry 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 slating 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 de- ceased has been lodged in the office, he therefore grants such ab- stract of the application, and certifies that he believes what is stated to be true ; and that such party may obtain letters of administra- tion 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 be subjoined a notice, that the previous commission or requisition is to be addressed agreeably to the superscription of the within cover, in which the same is to be enclosed and forwarded by the proctor ; and when the commis- [112] sion or requisition shall be returned to the office, it will be forwarded to him, and he is then to sue out letters of administra- J 12 OF ADMINISTRATION [BOOK I. tion, and send them to the inspector, with his charges noted there- on ; and then this certificate the inspector .shall sign, and address to a proctor in Doctors' Commons, and shall at the same time en- close therein a letter addressed to the ministers and churchwardens, or ciders (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 accord- ingly, provided he answers the description contained in such com- mission or requisition; and when the same is executed, to return it to the treasurer or paymaster of his Majesty's navy, London, and to specify 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, when such person will be directed to pay him the wages due to the deceased; and the proctor shall, immediately on receipt of such certificate enclosed in such letter, sue out the previous commission or requisition, and en- close it, with instructions 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 pay- master of the navy, or the inspector. If the minister, officiating-minister or curate, shall reject the pe- tition or paper for want of proof to his satisfaction of the claimant being the person entitled to letters of administration of the de- ceased'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-minister or curate, by the claimant, 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 calen- dar 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 enclosed therein, take such steps as to him may seem proper or necessary for procuring the execution of such previous commission or requisition, or other instrument transmitted by the proctor to he executed; and being executed, he shall transmit the same to the treasurer or to the paymaster of his Majesty's navy, London; who shall, immediately upon the receipt thereof, send the previous com- mission or requisition, or other legal instrument executed by the person applying for the administration, to the proctor employed in Doctors' Commons, who shall forthwith sue out and procure letters of administration in favour ol the person so applying for the samc ? CHAP. 1 1 I.J TO SEAMEN. 113 iii the manner and form above-mentioned, to the estate and effects of the intestate. As soon as any letters of administration, or probates of wills, or letters of administration with will annexed, have been obtained, and passed the seal of the proper court in the manner directed, the proctor who sued them out shall immediately send the same, ad- dressed 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 Majesty's navy, upon receiving such letters of administra- tion, 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 proctor'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 residing nearest to the administrator or executor, so to be named in such check, if such communication shall have been made to him; which check so prepared, shall be delivered over by him to the administrator or executor, together with the. copy of the will transmitted to him by the proctor, the copy being first stamped by the inspector, if the administrator, or the administrator with will annexed, or the executor, shall be pre- sent or demand the same in person; but if he shall not be present, but be and reside at a distance, then the inspector 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 pro- visions of the act, vid. supr. 64. The statute also prescribes similar regulations in regard to the grant of administration to a creditor of- such intestate. [114] Sect. VII. Of administrations in case of the death of the administrator ; , or of the executor intestate. I am now to consider the effect of the death of an executor or administrator with regard to the administration. Where administration is granted to two, and one dies, the sur- vivor shall be sole administrator («) ; for it is not like a letter of attorney to two, where by the death of one, the authority ceases, {u) 4 Burn. Keel. L. 241, Hudson v. Hudson, Ca. Temp. Talb. 127. Hi OF ADMINISTRATION ON DEATH [BOOK I. hut it is an oflice analogous to that of an executor, which sur- vives (b). An administrator is merely the officer of the ordinary, prescrib- ed 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 ordinary to appoint another. . And if A.'s executor die intestate, the administrator 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 grant- ed, a distinction arises between the case where the executor or next of kin had before his death taken out probate or letters of admin- istration, 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, because 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 determines, although it does not avoid the executorship, or vacate the acts which he has performed in such character (d). • . 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 [11G] administer, or not; because administering is an act in j)ais, of which the spiritual court cannot take notice. The ordinary must commit administration, as it appears to him judicially; and it can thus appear only by the probate (e). In like manner, if A. die intestate, and B. be entitled to admi- nister, and die before he takeout administration, an immediate ad- ministration shall be committed : in such case it shall be granted to the representatives of B. if the only party in distribution, in preference to the representatives of A., because by the statute of distributions B. had a vested interest, and in such grant the eccle- siastical court regards the property; and therefore if a son die in- testate without wife or child, leaving a father, and the father shall himself die before he takes out administration, it shall he commit- ted to his representatives (f); and so it has been held, in case the wife die intestate, and the husband die before he takes out admi- (/;) 3 Bac. Abr. 56. Adams v. Buck- pi. 4. Shep. Touch. 464. Istcd v. land, 2 Vern. 514. 11 Vin. Abr. 69. Stanley, Dyer, 372. Comber's Case, Com. Dig-. Admon. B. 7. 1 P. Wms. 767. (c) Com. Dig. Admon. B. 6. 4 (e) Wankford v. Wankford, 1 Salk. Burn. Eccles. L. 241. 1 Roll. Abr. 308. 3 Bac. Abr. 19. 907. 2 Bl. Com. 506. (f) 11 Vin. Abr. 88. pi. 25. Squib ((f) 11 Vin. Abr. 67. 90. 111. v. Wyn, 1 P. Wms. 381. Yid. also Wankford v. Wankford, 1 Salk. 308, Com. Dig-. Admon. B. 6. Yid. Earl of 309. Ilayton v. Wolfe, Cro. Jac, 614. Winchelsea v. Norcliflc, 1 Vern. 403. CHAP. III.] OF ADMINISTRATOR. 116 nistration, it shall be granted to the representatives of the husband; but it is now settled that the court is in the latter instance bound by stat. 31 E. Q. 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 (g). If the deceased executor had taken out probate, or the de- [117] ceased's next of kin administration, then another species of administration, which hath not hitherto been mentioned, becomes necessary, namely,' an administration de bonis -non, that is, of the goods of the deceased left unad ministered by the former executor or administrator, by the grant of which, such administrator de bo- nis non becomes the only personal representative of the party ori- ginally deceased (A). (1) Administration of either species is, generally speaking, granted to the next of kin of such party. But in case there be a residua- ry legatee, it shall be granted to him in preference to such next of kin on the principle above stated, because the next of kin has then no interest in the property (i). Thus where A. made C. execu- tor and residuary legatee, and B. made C. executor without giv- ing him the surplus, and C. afterwards died intestate, it was held, that the administrator of C. should be administrator de bonis non of A., but that the next of kin of B. should be administrator de bonis non of B. (k). If the residue be bequeathed to several per- sons, such administration may be granted to all or either of them, as in the case of an original administrator, although there be no present residue (/). But for such purpose there must be a complete [118] disposition of the property (m). If the executor be him- self residuary legatee, although he refused, o~, before he proved the will, died intestate, an immediate administration with the will annexed shall be granted to his administrator (n). If an ex- ecutor be residuary legatee, although he refused, or died be/ore probate, leaving a ivill, his executor will be entitled to such ad- ministration (o). If an executor and residuary legatee, after pro- (g) Elliot v. Collier, 3 Atk. 526. 56. 3 Bac. Abr. 19. S. C. 1 Ves. 16. and 1 Wils. 169. 4 (Jt) 11 Vin. Abr. 87. Farrington v. Bum. Keel. L. 235. 11 Vin. Abr. 88, Knightly, Free. Chan. 567. pi. 27. Squib v. Wvn, 1 P. Wins. 382. (/) Com. Dig. Admon. B. 6. Vid. note 1. Vid. infr. 217. Thomas v. Butler, 3 Lev. 56. (h) 11 Vin. Abr. 111. Attorney- (w) 11 Vin. Abr. 89. Jo. 225. General v. Hooker,' 2 P. Wmp. 340. (ra) 11 Vin. Abr. 88. 92. 2 Roll. Com. Dig. Admon. B. 1. Plovd. 279. Rep. 158. 3 Bac. Abr. 19.- (o) Com. Dig. Admon. B. 6. Isted (/) Com. Dig. Admon B. 6. Thomas v. Stanley, Dy. 372. v. Butler, 1 Ventr. 219. S. C 2 Lev. (1) in Brattle v. Gustin, 1 Root, 425, letters of administration were revoked at the instance of a creditor, who alleged there was estate sufficient to pay his debt (a judgment), and administration 'de bonis non granted. And the distribution of the estate is no objection to its being granted upon the application of a creditor. Brattle v. Converse, 1 Root, 174. • 11 118 ADMINISTRATION, HOW GRANTED. [BOOK I. bate, die intestate, administration de bonis noti, with the will an- nexed of the testator, shall be granted to the administrator of such executor. If a feme covert executrix die intestate, then as to the effects which she had in that capacity, administration shall be grant- ed to the residuary legatee if any, or to the next of kin of the tes- tator. If she were herself residuary legatee, it shall be granted to her husband {p). Where there are two executors, of whom o.nly one proves and dies, and then the other renounces, the executors of the acting ex- ecutor have no concern with the administration of the goods unad- ministered, but the same shall be granted to the next of kin, or residuary legatee of the first testator {q). [119] So, if there be two executors, one of whom appoints an executor, and dies, and the survivor dies intestate, the executor of the executor shall not intermeddle with the first testator's effects ; for the power of his testator was determined by his death, and the executorship vested solely in the other executor as survivor. So where an administrator is appointed during the minority of the executor of an executor, he has no authority to 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). Sect. VIII. How administration shall be granted — when void — when void- able — of repealing the same — how a repeal affects mesne acts. Administration is generally granted by writing under seal ; it may also be committed by entry in the registry, without letters sub sigillo ; but it cannot be granted by parol (a). (1) [120] In letters of administration the style of jurisdiction, as well as the name of the ordinary, shall be inserted [b). A party may refuse the office, nor can the ordinary compel him to accept it (c). Where administration is improperly granted, a distinction oc- (p) 11 Vin. Abr. 89. 91. 111. Rach- (r) 11 Vin. Abr. 67. in note 89. Off. field v. Careless, 2 P. Wms. 161. 4 Ex. 101. Limmer v* Every, Cro. Eliz. Burn. Eccl. L. 236. 3 Salk. 21. 11 211. 3 Bac. Abr. 13. Vin. Abr. 90,91. 95. 108. Vanthieu- (a) 11 Vin Abr. 70. Anon. 1 Show, son v. Vanthieuson, Fitzgibb. 203. 408, 409. Godolph. 231. Com. Dig-. Johnson's case, Poph. 106. Admon. B. 7. (q) Com. Dig. Admon. B. 1. House (6) 4 Burn. Eccl. L. 273. v. Lord Petre, Salk. 311. (c) Id. 233. (1) As to the manner of granting- administration in Pennsylvania, see ante, page 83, note (2). CHAP. III.] WHEN VOIDABLE. 120 curs between administrations which are void, and such as are only voidable. If there be an executor, and administration be granted before probate and refusal, it shall be void on the will's being afterwards proved, although the will were suppressed, or its existence were unknown (d), or it were dubious who was executor (e), or he were concealed or abroad (/*) at the time of granting the administration. Or, if there be two executors, one of whom proves the will, and the other refuses, and he who proved the will dies, and adminis- tration is granted before the refusal of the survivor, subsequently to the death of his co-executor; or if granted before the refusal of the executor, although he afterwards refuse (g), such administra- tion shall be void. (1) It shall also be void if granted on the ground of the executor's becoming a bankrupt, as it was before the stat. [121] 38 Geo. 3. c. S7., if committed durante minorit ate, where the infant executor had attained the age of seventeen (A). It shall also be void if granted by an incompetent authority, as by a bish- op, where the intestate had bona notabilia {i), or by an archbish- op, of effects in another province (k). In all these instances the administration is a mere nullity. The executor's interest the ordinary is incapable of divesting. But there is another description of cases, where administration is not void, but voidable only by the act of the spiritual court, as if ad- ministration be granted to a party not next of kin (/), or to one of kin together with one not of kin, as to a sister and her husband (m) ; or to the wife's next of kin instead of the husband (n) ; or if it be granted on the' refusal of an executor who had before administer- ed (o) ; or if it be granted, non vocatis jure vocandis, without citing the necessary parties (p) ; or to a stranger (q) ; or by fraud (rf) Com. Dig. Admon. B. 1. Plowd. (/) Com. Dig. Admon. B. 6. Black- 279. 262. borough v. Davis, Salk. 38. 1 P. (e) Com. Dig. Admon. B. 1. Robin's Wms. 43. S. C. Case, Moore, 636. (m) Com. Dig. Admon. B. 8. Al. 36. (/) 11 Vin. Ahr. 68. Abram. v. (n) 11 Vin. Abr. 85. Anon. 1 Sid. Cunningham, 2 Lev. 182. 409. (g) Com. Dig. Admon. B. 2. B. 10. (o) Com. Dig. Admon. B. 8. Off. Abram' v. Cunningham, 2 Lev. 182. Ex. 40, 41. Aid. Anon. 1 Show. 411. (p) 11 Vin. Abr. 115. Com. Dig. (h) 11 Vin. Abr. 99. 5 Co. 29 b. Admon. B. 8. Ravenscroft v. Ravens- (i) 3 Bac. Abr. 36. Com. Dig. Ad- croft, 1 Lev. 305. mon. B. 3. Blackborough v. Davis, (q) 11 Vin. Abr. 95. Wilson v. Pate- 1 Salk. 39. 1 P. Wms. 44. 767. S. C. man, Moore 396. (&) Allison v. Dickenson, Hard. 216. (1) In Massachusetts, by the 10th sect, of the Act of 9th March, 1784, admin- istration originally granted upon the estate of any deceased person, after the ex- piration of twenty years from the death of such 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 twenty years, may plead, that the plaintiff is not, nor t-ver wns administrator, Wales v. Willard, 2 Mass. Rep. 121. 121 WHEN VOIDABLE. [BOOK I. and misrepresentation, though otherwise duly granted (r), (1) as where the grantee by false suggestions prevented a party in equal decree from applying; of in case administration be granted in con- [122] sequence of the incapacity of the next of kin, and the incapaci- ty be removed (s); or if the grantee shall become non compos men- tis, or otherwise incapable (t) ; or if it be granted to a creditor be- fore renunciation of the next of kin (u) ; it is not void, but void- able, and may be repealed. (2) If there be a 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 not (w). 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 re- pealed, and administration granted to the husband (x). If there be two grants of administration, one by the metropoli- tan, and the other by the bishop, when there are not bona nota- bilia, the prerogative administration may be repealed (y). 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 pro- visions of the same, the ordinary has no such discretion. If he as- sign a cause for a repeal, the temporal courts are to judge of its sufficiency (z). Thus it was held, that where the ordinary had elected to grant administration to the father, he had no power of repealing the administration at the suit of a party alleging herself to be the widow («). So where administration was granted to a sister, a married wo- man, pending a caveat entered by the brother, on appeal it was adjudged that the administration should not be revoked at his suit (b). 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 dif^rent if the ad- (>•) 11 Vin. Abr. 114. 117. Harrison Dubois v. Trant, 12 Mod. 433. v. Mitchell, Fitzgibb. 303. (y) 11 Vin. Abr. 114. Aliens v. An- (s) 11 Vin. Abr. 115. Offley v. Best, drews, Cro. Eliz. 283. Cora. Dig. Ad- 1 Sid. 373. mon. B. 8. (/) 11 Vin. Abr. 115, 116. (z) 11 Vin. Abr. 114. 4 Burn. Eccl. (u) Com. Dig. Admon. B. 6. Black- L. 248, 249. Com. Dig. Admon. B. 8. borough v. Davis, 1 Salk. 38. 4 Burn. Blackborough v. Davis, 1 P. Wms. 42. Eccl. L. 249. Harrison v. Weldon, sed vid. Skinner, 156. Stra. 911. (a) Sand's case, Raym. 93. S. C. 3 (u>) Com. Dig. Admon. B. 8. Thorn- Salk. 22. 11 Vin. Abr. 115. S. C. 1 son v. Butler, 2 Lev. 56% 1 Ventr. 219. Kebl. 667. 6S3. S. C. 1 Sid. 179. S. C. (b) 11 Vin. Abr. 115. Offlev v. Best, O; 11 Vin. Abr. 92. in nrfte 116. 1 Lev. 186. (1) Shaufflcr v. Sloever, Mm. 4 Serg. & Rawle, 202. Observe the facts of the case. (2) See Frazier v. Griffith, 8 Cranch, 9. Royal v. Ej>]>es, 2 Munf. Kep. 479. CHAT. III.] OF REPEALING THE GRANT. 123 ministration had been granted pending a caveat (c). Nor, it admi- nistration be granted to a creditor, and afterwards a creditor to a larger amount appear, shall it be revoked for him (d). So where administration during the infancy of the intestate's sister was com- [124] mitted to the great-grandmother, and though the grandfather, the plaintiff in prohibition, suggested that the administration was granted by surprise, and that, as he was nearer of kin, it ought to be granted to him; the court thought, inthis instance, propinquity to be no ground of preference, and, since the ordinary had no power at common law to grant such administration in the case of an infant next of kin, but only in that of an infant executor, having once 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 infant, was appointed resi- duary legatee, and on the like contingency, the residue was be- queathed 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 infancy of B. (/). So also administration de bonis no?i, with the will annexed, granted to one, where two had equal right, is good, and shall not be revoked (g). [125] But, in general, if administration be granted to a wrong party, in such case the ordinary may repeal it, and grant it to ano- ther, for he has not executed his authority, and it is a power inci- dent to every court to rectify its errors (h). (1) 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 (i).: A person in possession of an administration, is not bound to propound his interest till the party calling in question the grant ljas first propounded and proved his (&). (c) 11 Yin. Abr. 116. Ayliffe V. Ay- Trant, 12 Mod. 436, 438. lifte, 2 Kcbl. 812. Harrison v. Mitchell, (g) 11 Yin. Abr. 116. Taylor v. Fitzg-ib. 303, Shore, 2 Jo. 161. (d) 11 Yin. Abr. 116. Dubois v. (A) 11 Yin. Abr. 114. 4 Burn. Eccl. Trant, 12 Mod. 438. L. 248, 249. Com. Dig-. Admon. B. 8. (e) 11 Yin. Abr. 100, 116. Ld. Gran- Blackburn v. Davis, 1 P. Wms. 42. dison v.. Countess of Dover, 3 Mod. sed vid. Skinner, 156. 23, 25. ' Ld. Grandison v. Countess of (/) 11 Yin. Abr. 116. 4 Burn. Eccl. Devon, Skin. 155. Yid. Sadler v. L. 248. Sand's Case, 3 Salk. 22. Daniel, 10 Mod. 21. (&) Dabbs v. Chisman, 1 Phill. Rep. • (/) 11 Yin. Abr. 116. Dubois v. 155. Hibben v. Calemberg 1 , ib. 166. (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. Stocver \. T^tdwig, 4 Sehr 8c Rawlc, 201. 125 OF REPEALING THE GRANT. [BOOK I. If the administration be repealed for want of form in the grant, in such case the ordinary must regrant it to the same party, al- though 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 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 (m). 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 [n). Nor can he revoke it on the administrator's omission to bring in an inventory and account (0). . If the grant regularly issue, and subsequent letters of adminis- tration be obtained by collusion, such subsequent letters are void, and shall not repeal the former administration (p). Some authorities maintain, that if the ordinary commit 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 (q); 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 the bishop to whom it belongs grant administration and then the first administration be repealed, the administration granted by the bishop before the re- peal shall stand good (.?). 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 (t). If the ecclesiastical courts, in the granting or repealing of admi- nistrations, shall transgress the 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 regu- lar administration, and is proceeding to repeal it on insufficient grounds, such as mal-administration (w), or that the letters issued after a caveat entered (v): but no prohibition to the ecclesiastical courts shall issue on suggestion, that they are about to repeal an ad- ministration granted by surprise, or that they refused to commit the administration to the intestate's next of kin, but were proceed- CZ) 11 Yin. Abr. 115. Offley v. Best, (/•) 11 Vin. Abr. 115. in note. Pratt 1 Sid. 293. v. Stocke, Cro. Eliz. 315. (m) Com. Dig. Admon. B. 3. Offley (s) Com. Dig. Admon. B. 3, 8. Co. v. Best, 1 Sid. 293. 135 1). (n) 11 Vin. Abr. 115. Com. Dig. Ad- (t) Com. Dig. Admon. B. 3. Vid. 2 mon. B. 8. Thomas v. Butler, 1 Ventr. Brownl. 119. J 19. (u) Thomas v. Butler, 1 Ventr. 219. (0) 11 Vin. Abr. 116. Sty. 102. Al. 56". O) 11 Vin. Abr. 114. 3 Co. 78 b. (v) Offley v. Best, 1 Lev. 186. Dub. {(j) 11 Vin. Abr. 114. 4 Burn Eccl. S. C. 1 Sid. 371. 1 Lev. 187. & vid. L. 249. sujir. CHAP. III.] OF PROHIBITION. 127 ing to grant it to another, for the point, who is in fact next of kin, is of spiritual cognisance, and must be contested before the spiritual jurisdiction (w). How far the repeal of an administration affects the intermediate acts of the former administrator, remains now to be considered. And here we must again recur to the distinction between such [128] admininistrations 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- mitted on the concealment of a will, and afterwards a will appear; inasmuch as the grant was void from its commencement, all acts performed by the administration in that character shall be equally void (x). 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). Orjfthe 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 administration (z). 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 judgment 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 ef- fect, 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 (b). In case of an appeal, such intermediate acts of the administrator shall be ineffectual; because, as we have before seen, the appeal suspends 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 made pendente lite, on the cita- tion; although by the stat. 13 Eliz. c. 5. it be void as to a credi- Ciw) Blackborough v. Davis, 1 P. (z) Com. Dig-. Admon. B. 10. Bax- Wms. 43. 2 Bl. Com. 112. 11 Vin. ter and Bale's Case, 1 Leon. 90. 11 Abr. 92, 115. Com. Dig-. Admon. B. Vin. Abr. 94.- 7, 8. (a) Com. Dig-. Admon. B. 10. Anon. (x) Com. Dig. Admon. B. 10. Abram Dyer, 339. 6 Co. 19. v. Cunningham, 2 Lev. 182. 3 Bac. (b) 6 Co. 18 b. Abr. 50. 1 (c) Allen v. Dundas, 3 Term Rep. (y) 11 Vin. Abr. 95. Abram v. 129. 11 Vin. Abr. 117. Cunning-ham, 2 Mod. 146. 129 HOW A REPEAL. [liOOK I. tor (d). So if administration be committed to a creditor, and afterwards repealed on citation at the suit of the next of kin, such creditor shall retain against the rightful administrator; and his dis- posal of the goods pending the cause, and before sentence of repeal, shall be effectual (e). (1) If an administrator assign a term, and, on a subsequent citation to repeal the administration, it is confirm- ed, 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 (f). 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 (g). (2) Whether the administration be void or voidable, a bond fide payment to the administrator of a debt due to the estate shall be a le"-al discharge to the debtor, by analogy to the case before stated in regard to such payment under probate of a forged will (//.). (3) 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 ad- ministrator of 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 j had paid, inasmuch as he had paid it to the visible adminis- trator (/). This, however, is to be understood only where the grant is re- voked on citation; if it be reversed on appeal, the administrator's (d) Com. Dip:. Admon. B. 9. 1 Abr. 118. Salk. 38. 6 Co. i8. b. 11 Yin. Abr. 95. (g) 11 Vin. Abr. 95. Jones v. "Wal- (e) Blackborough v. Davis, 1 Salk. ler, 2 Ch. Ca. 129. . 38. 11 Vin. Abr. 117. Thomas v. But- (A) Allen v. Dundas, 3 Term Hep. ler, 1 Ventr. 219. 125. supr. (/) 'Syms v. Syms, Rayirf. 224. Se- (/) 11 Vin. Abr. 117. Finch. Rep. 40. mine Semine, 2 Lev. 90. 11 Vin. (1) Benson, adm. v. Riceet al. 2 Nott 5c VT'Cord, 577. (2) Though the law is too well established now to be drawn in question, that an administrator 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 third person for his own use and benefit, without collusion between him and the admi- nistrator, neither the principles of law nor equity preclude the administrator from afterwards acquiring a right in the goods by a subsequent contract with such pur- chaser. Scott v. Burch, 6 Harr. & Johns. 67; see the close of the judgment. (3) Pecble's Appeal, 15 Serg. & Rawle, o9. And where an administrator pen- dente lite, who has no power to make distribution of the estate, has made distribu- tion according to law, the court will not compel him to refund to the general ad- ministrator, in order that he may pay it over again to the same persons. Cat? aj Bradford's Administrators, P. A. Browne's Rep. 87. CHAP. IIT.] HOW A REPEAL AFFECTS MESNE ACTS. 131. authority was suspended by the appeal, and of course such pay- ments shall he void. (1) But whether the administration he void or voidable, or he re- voked on citation or appeal, if an action be brought by the admi- nistrator, and, while it is pending, administration is committed to another, the writ shall be abated (&).. Or if the administrator, before the repeal, obtain a judgment for a debt due to the intestate he is not entitled to take out execution, but the defendant may avoid the judgment by an audita quere- la (I). So, if the defendant be actually in execution, the judgment shall be vacated in the same manner, and the execution set aside(w) : for in such cases the plaintiff had no authority but by virtue of a commission from the ordinary, and when that is determined, his authority is determined with it. But on affidavit to stay execution on a judgment recovered by an -administrator, on the ground that [132] the letters of administration were repealed before the judg- ment entered, it was held that the matter did not come legally in question before the court, and that the party ought to bring an audita querela (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 reco- vered against him in an action by the executor (o). (2) (&) 11 Yin. Abr. 118. Bro. Admon. 343. pi. 3. O) 11 Vin. Abr. 117. Ket v. Life, (/) 11 Vin. Abr. 102. 117. Com. Yelv. 125. 3 Bac. Abr. 51. Dig-. Admon. B. 10. Turner v. Davies, (n) 11 Vin Abr. 117. Styl. 417. 2 Sand. 149. S. C. 1 Mod. 62. Lut. (o) 3 Bac. Abr. 50. Flow. 282. (1) In Pennsylvania, by the 18th sect, of the Act of 13th April, 1791, (Purd. Dig. 703, 3 Dull. 93, 3 Sm. Laws, 30,) "No appeal from the decree of the Re- gister's court concerning the validity of a will, or the right to administer, shall stay the proceedings, or prejudice the acts of any executor or administrator pend- ing- the same, provided the executor shall give sufficient security for the faithful •execution of the will and testament, to the Register: but in case of refusal, the said Register is directed to grant letters of administration pending 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 authorized to perform every act proper for an executor to do, notwithstand- ing the pendency of the question relative to the validity of the will. Bradford v. Boudinot, 3 Wash. C. C. Rep. 122. A decree of the Register's court revoking letters of administration, and direct- ing 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. Shaujjkr v. Stoever, 4 Serg-. & Rawle, 202. (2) An executor obtained letters on a will duly proved, which was afterwards raveated, and finally adjudged not to be the will of the deceased. Held, that it was his duty to support the first probate, believing- it genuine, and that he was entitled to retain out of the estate the amount of the funeral expenses, the ex- penses incurred in litigating the question of the validity of the will, and also the usual commissions for managing the estate while in his hands. Bradford v. BoU' dinot, 3 Wash, c! C. Rep. 122. 12 132 HOW A REPEAL AFFECTS MESNE ACTS. [BOOK I. 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 (p). But if administration be granted to a creditor, and he settles his own debt and goes away, it will be revoked, and a new adminis- tration granted (g). • (p) Elme v. Da Costa, 1 Phill. Rep. 173. (?) In re Jenkins, 2 Phill. Rep. 33. [ 133 ] BOOK II. OF THE RIGHTS AND INTERESTS OF EXECUTORS AND ADMINISTRATORS . CHAP I. OF THE GENERAL NATURE OP AN EXECUTOR'S OR ADMINISTRA- TOR'S INTEREST DISTRIBUTION OF THE SUBJECT WITH REFER- ENCE TO THE DIFFERENT SPECIES OF THE DECEASED'S PRO- PERTY. 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 tes- tator's death: in the administrator, on the grant of letters of ad- ministration (a); and such grant hath relation to the time of the intestate's decease (b). The interest which such representative takes in the deceased's property is very different from that which helongs to him in re- gard to his own. Instead of being an absolute interest, it is only temporary and qualified. He is not entitled in. his own right, but [134] in aute?' droit, in right of the deceased. He is intrusted merely with the custody and distribution of the effects (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 (d). 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 shall not be for- feited (e). If he grant all his property, such as belongs to him in the cha- racter of executor shall not pass, unless he be so named in the grant (/), or unless he have no other property (5-). (a) Com. Dig. Admon. B. 10, 11. (f) Marlow v. Smith, 2 P. Wms. Co. Litt. 209. 3 Bac. Abr. 57. Off. 200. Ex. Suppl. 47. (/) Off. Ex. 86. Vid. 2 Roll. Abr. (b) Com. Dig. Admon. B. 1. 2 58. pi. 8. Ld. St! John's Case, 1 Leon. Roll. Abr. 554. 263. Shep. Touch. 94. Marlow v. (c) Off. Ex. 85. 88. Plowd. 182. Smith, 2 P. Wms. 200. 525. 11 Vin. Abr. 54. 9 Co. 88 b. (g) Hutchinson v. Savage, Ld. Rutland v. Rutland, 2 P. Wms. 212. Raym. 1307. (./) 2 Bl. Com. 177. 134 OF THE NATURE OF [BOOK II. 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 recogni- [135] zance, statute, judgment, or for his debts of whatever nature (e), unless there be sufficient evidence, either direct or presump- tive, of the executor's having converted the goods to his own use (k), or unless he consent to such seizure, and then it differs not from any other alienation; an execution acquiesced in being fcqui- valent to a conveyance (/). ' Therefore, where an executor brought an action in the court of exchequer, suggesting that the defendant detained from him one hundred pounds, which he owed to him as executor of J. S. , whereby he was the less able to pay a debt due 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 plaintiff in that capacity (jri). And where a creditor laid by for six or seven years, permitting the executor to remain in possession of the testator's propert)*, the court refused to restrain- by injunction a creditor of"the executor from taking in execution the goods of the testator for the execu- tor's own debt (n). 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 (p). So, if an executrix marry, all the personal chattels of which she is possessed in 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 (q). 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: for although he were privy to the judgment, yet he shall not re- cover the debt, because it belongs to the testator's representa- tive (r). Nor shall a term in the hands of the husband in right of his wife as administratrix be extendible for his debt (.9). (A) Copeman v. Gallant, 1 P. Wms. (7) Per Lord Mansfield in Whale v. M'J. Howard v. .lemnjett, 3 Burr. Booth. 1369. Bourne v. Dodson, 1 Atk. 158. (m) Oft'. Ex. 87. (i) 11 Yin. Abr. 272. Com. Dig-. (/') Ray v. Ray, Coop. Kep. 264. Admon. B. 10. OfT. Ex. 86. R. Fan- v. (o) 11 "vin. Abr. 421. Plowd. 525. Newman, 4 Term Rep. 621: Boiler -J. Oft'. Ex. 86. contra. See also Whale v. Booth, ibid. (p) Oft". Ex. 86. 625. in note, and 632. (rj) OIK Ex. 87. (/.-) \ id. Farr v. Newman, and also (/■) 1 Roll. Abr. 8b? tit. Execution Quick v. Staines, 1 Bos & Pull. 293 (s) Ridler v. Punter, Cro Eliz. 291 CHAP. I.] AN EXECUTOlt's INTEREST. 136 But where A. appointed his widow executrix, who continued in possession of his goods during three months after his death, and at the end of that time married B., and, for half a year after the marriage, the goods were treated by them both as the goods of B., it was held, that they might be taken in execution at the suit of B.'s creditor (I). Such is the nature of the interest to which an executor or admi- [137] nistrator 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 (u). The personal effects comprehend so wide a circle, that in order to view them with any distinctness, it is necessary they should be arranged in a variety of classes. I shall therefore first consider them as distinguished into chattels real, and chattels personal, in the deceased's possession at the time of his death. I shall then treat of such as were not in his possession. And, Among such as were not in his possession, of things in action, as well those where the cause of action accrued in his lifetime, as those where it accrued after his death. I shall then proceed to the examination of such chattels as vest [138] in the executor, or administrator, by condition, by remain- der, or increase, by assignment, by limitation, and by election. 1 shall next enquire what chattels go to the heir, successor, de visce, or remainder-man. Then shew 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 admi- nistrator takes in that character, may become his own. (0 Quick v. Staines, 2 Bos. & Pull. («) 1 M. Com. 510. Oft*. Ex. Suppl. 093. . 53. Shep. Touchst. .496. [ 139 ] CHAP. II. 0¥ THE INTEREST OF AN EXECUTOR OK AD.MIMSTEATOE IN THE CHATTELS KEAL 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 hy statute merchant, statute staple, or elegit, interests for years in adowsons, commons, fairs, corodies, estovers, profits of leets, and the like. This species of chattels is styled hy the civil law immoveable goods, and, inasmuch as they are interests issuing out of, or annexed to real estates, in the immobility of which they participate, by our law they are described as real. And also, as the utmost 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 distinguish- able from the lowest estate of freehold, the duration of which is -sarily indeterminate, they are denominated chattels [140] Lands devised to an executor fer a term of years for pay- ment of debts are assets in his hands [b). '\j 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 {d). So a lease for years de- terminable on lives is a chattel interest, and shall vest in the per- sonal representative of such lessee (e). If an estate be granted to A. pur aulervie, 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 being named in the grant, it shall by the stat. 2!) Car. 2. c. 3. go to the executor, and be assets in his hands for payment of dc (a)2Bl. Com 9ac.Abt.ST, (e) 11 Via < .. ;\.l ,. 11 Yin. v. Chamberlain, 1 Clian. Ca. 257 Abr. 17... 227. Pynchyn v. Harris, (d) Dyer, 367, a. -71. Off. Ex. SuppL J. :A. (b) 11 Via Abr. :iW). U Uiov.i.l. 47. _ . , (1) Nimnid J.j.. . Tht Commonwealth, Hie blunf. 'SI. CHAP. II.] OF THE EXECUTOR ? S INTEREST. 140 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 chattel interest (/). These statutes operate equally on grants of estates pur aider vie in incorporeal hereditaments; as if rent be granted to A. during the life of another, the rent by virtue of these [141] provisions has been holden to continue in the representatives of the grantee dying in the lifetime of the cestui que vie (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 reversion 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 from 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 (i). 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 warren, the park, and the dove-house (&). If an executor hath a lease for years of land of the annual va- lue 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). (1) If an executor renew, the new lease as well as the old shall be assets (n). If A. be possessed of a term as executor, and [142] he purchase the reversion in fee, he is still chargeable for the (/) 2 Bl. Com. 120, 258, 259, 260. dem. Tasker v. Burr, 1 Black. Rep. Phillips v. Phillips, Prec. in Ch. 167. 596. Rex ▼. Willet, 6 Term Rep. S. C. 1 P. Wms. 39. Duke of Devon. 295. James v. Dean, 11 Ves. jun. 383. v. Atkins, 2 P. Wms. 380. Vid. At- and 15 Ves. jun. 236. kinson admx. v. Baker, 4 Term Rep. (A-) Off. Ex. 53. 11 Vin. Abr. 166. 229. and 6 Term Rep. 291. Milner Harg. Co. Litt. 8. note 10. v. Lord Harewood, 18 Ves. 273. (/) 3 Bac. Abr. 57. 11 Vin. Abr. (g) Harg. Co. Lit. 41 b. Fearne's 230. pi. 42. S. C. 5 Co. 31. Off. Ex. Conting. Rem. 232, 233. 3 P. Wms. Suppl. 55. Shep. Touchst. 498. Body 264. in note. Kendal v. Micfield, Bar- v. Hargrave, Cro. Eliz. 712. Sed vid. nard, 46. Vid. also Stat. 5 Geo. 3. c. 17. Ci'O. Jac. 545. Sed vid. 2 Bl. Com. 260. Vaugh. 201. (hi) 11 Vin. Abr. 240. Prattle v. (h) Jenison v. Lord Lexington, 1 P. King, 2 Jo. 170. Wms. 555. (n) 3 Bac Abr. -58. Anon. 2 Chan. (;') Doe on dem. Shore v. Porter, 3 Ca. 208. Term Rep. 13. Vid. also Gulliver on (1) DuMart's Ex. v. Tht State, 4 Ilarr. Sc Johns. 506. 142 OF THE EXECUTOR'S INTEREST [BOOK II. assets in respect of the term, although it be extinguished, so that it shall be incapable of vesting in his executor (o). So if the exe- cutor of the lessee surrender the lease, it shall be considered as as- sets, although the term be extinct (p). So, where A. seised of land in fee devised it to B. for thirty- one years, for payment of debts, and appointed B. his executor, and, during the term, the fee descended on B. ; it was adjudged, that, although by the descent of the inheritance, the term was merged as to him, yet that it was in esse as to creditors, and lega- tees, and should be assets in his hands (q). (1) If A. have a term in right of his wife, as executrix, and he pur- chase the reversion, the term is extinct as to her, though she sur- vive, but, in regard to a stranger, it shall be considered as assets in her hands (r). But, where A. on his marriage, demised lands to B., and B. re-demised them to A. for a shorter term, subject to a pepper-corn rent, during the life of A., and after his death, to an annual sum for the life of his wife, as her jointure, and a pepper- corn rent for the remainder of the term, and A. died, it was held, [143] that the re-demised term should not be assets to pay any of his debts, except such as affected the inheritance, inasmuch as such term was raised for a particular purpose (•) 11 Vin. Abr. 173. Off. Ex. 54, 75. Eccl.L. 255. Com. Dig. Biens. G. 1. (s) 3 Bac. Abr. 57. Off. Ex. 56. Harg. Co. Litt. 55 b. Anon. 2 Freem. (/) Off. Ex. 56. 2 Bl. Com. 402. 210. Bro. Abr. tit. Propertie 18. L. of (??) 4 Burn. Eccl. L. 254. 2 Bl. Test. 378. Com. 123. Roll. Abr. 728. (u) 2 Bl. Com. 403. Chamberlain v. (o) Harg. Co. Litt. 55 b. note 1. Harvey, Cartli. 396. Ld. Raym. 147- Cro. Car. 515. Smith v. Gould, Salk. 667. (/?) 11 Vin. Abr. 175. Sty. 66. (v) Off. Ex. 56. (1) Thompson's Mm. v. Thompson's Ex. 6 Munf. 514. (2) In Pennsylvania, executors and administrators, upon the deatb of any mas- ter or mistress before tlie expiration of the term of any apprenticeship, may, pro- vided the term of the indenture extend to executors or administrators, assign CHAP. II.] IN CHATTELS PERSONAL. 152 bound to the testator. The contract, in regard to instruction, is in its nature merely personal, and dies with the master. Yet although an apprentice be not strictly transmissible, if, with the consent of all parties, and his own, he continue with the executor, it is a con- tinuation of the apprenticeship (w); provided, in the case of a trade, it be of the same species (x). An interest in the testator's literary property may devolve on the executor pursuant to several statutes (y). (1) An interest may, likewise, vest in him by virtue of a patent granted to the testator, for the invention of a new manufacture within the realm (z). (2) It seems, also, that a caroome, or a license by the mayor of London to keep a cart, is a chattel interest, and belongs to the ex- ecutor (a). The interest in all these chattels is, at the instant of the tes- tator's death, vested in the executor; and from the death of the {153] intestate, by relation, in the administrator, whether he has reduced them into his actual possession, or not, and however widely dispersed, or remotely situated, they are regarded in law as assets in his hands (c). Therefore, where the jury found assets in Ireland, the stating of them on the special verdict to be in Ireland, was holden surplusage (d). So, if an executor live in Lon- don and have left goods in Bristol, he hath such an immediate possession of the goods, that he may maintain trover for them in his own name (e). In like manner he shall be deemed to be in possession of a ship at sea. In short, in whatever part of the world the testator hath left effects, the executor, whether in the manual occupation of them, or not, is deemed to all intents and purposes the possessor in point of law (f). And, even if goods be, in fact, taken out of his possession, after he has administered, legally he (w) Baxter v. Burfield, Stra. 1115, (c) Off. Ex. 108, 109. 3 Bac. Abr. 1266. Rex v. Stockland, Doug-1. 70. 57. Roll. Abr. 921. 1 Burn. Just. 82. et seq. 2 Ves. 35. (d) 6 Co. 46 b. 11 Vin. Abr. 230. sed vid. Off. Ex. 53, 56. (e) 3 Bac. Abr. 58. in note. Jenkins (x) Vid. stat. 5 Eliz. c. 4. 1 Bl. Com. v. Plombe, 6 Mod. 181. R. in evi- 427, 428. et infr. dence by Holt, C J. Bolland et Ux. (y) Stat. 8 Ann. c. 10. 15 Geo. 3. Admx. v. Spencer, 7 Term Rep. 358. c. 53. 8 Geo. 2. c. 13. 7 Geo. 3. c. Munt v. Stokes, 4 Term Rep. 563, 38. 17 Geo. 3. c. 57. Sed vid. Cockerill et Ux. extx. v. (z) Stat. 21 Jac. 1. c. 3. Kynaston, 4 Term Rep. 277. (a) 11 Vin. Abr. 151. Com. Dig-. (/) 3 Bac. 57. 11 Vin. Abr. 230, Biens. B. Hunt v. Hunt, 2 Vern. 83. 240. Shep. Touchst. 496. over tbe remainder of the term of such apprenticeship to such suitable person of the same trade or calling mentioned 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.) Kennedy v. Savage, 2 P. A. Browne's Rep. 178. (1) Acts of Congress of 31st May, 1790, and 29th April, 1802. Ingersoll's Dig-. Laws U. S. 149, 151. (2) Acts of Congress of 21st Feb. 1793, and April 17th, 1800. Ingersoll's Dig-. 656, 660, |53 OF THE F.XECUTOR ? S INTEREST [BOOK II. is not divested of them; they are still esteemed assets in his hands (g). But, to give the executor a title, or to constitute assets, the ab- solute property of such chattels must have been vested in the tes- tator; and, therefore, if A. take a bond in trust for B. and die, it [154] shall form no part of the assets of A. (h). So, if the obligee assign a bond^and covenant not to revoke the assignment, the bond shall not be included among his assets (i). Nor shall goods, bailed or delivered for a particular purpose, as to a carrier to convey to London, or to an inn-keeper to secure in his inn, be assets in the hands of their respective executors. Nor, till the time for redemption is past (k), shall goods pledged or pawned in the hands of the executor of the pawnee, nor goods dis- trained for rent or other lawful cause, be regarded as the assets of the party distraining. Nor, if the testator were outlawed at the time of his death, shall his effects be so considered (/). If A. consent to a disposition of the goods of the intestate, and afterwards take out administration, he shall be bound by the ante- cedent gift (m): but, if the executor make a fraudulent gift of them, they shall continue assets (n). Such deeds and writings as relate to terms for years, or other chattels, or are securities for debts, belong to the executor (o). [155] Also the property in the coffin, shroud, and other apparel of the dead body, remains in the executor (p). Chattels, whether real or personal, may be held not only in se- veralty, but also in joint-tenancy. Thus, if a lease for years be granted, or a horse be given, to two or more persons absolutely, they are joint-tenants of it; and unless the jointure be severed, it shall be the exclusive property of the survivor (q). If the jointure be severed, as by either of them assigning his interest, or selling his share, the assignee or vendee, and the remaining lessee or part owner, shall be tenants in common without any jus accrescendi, or right of survivorship (r). So if a sum of money be given by will to two or more, equally to be divided between them, they shall be tenants in common (■?). On the principle also of encou- raging husbandry, and commerce, stock on a farm, although oc- cupied jointly, or stock of a partnership in trade, shall always, in- dependently of any express contract to that effect, be considered as (g) Off. Ex. 113. Off. Ex. Suppl. Skin. 274. S. C. 3 Mod. 276. vid. infr. 56. 5 Co. 33 b. 11 Vin. Abr. 230. (a) 3 Bac. Abr. 58. Cro. Eliz. 405. (h) 3 Bac. Abr. 58. Deering v. Tor- (o) 3 Bac. Abr. 65. Off. Ex. 63. rin°lon, Salk. 79. Jones v. Jones, 3 Bro. Ch. Rep. 80.. (i) Ibid. (p) 2 Bl. Com. 429. (It) Vid. Shep. Touchst. 496. (?) Bl. Com. 399. Com. Dig. Estates. (/) 2 Bl. Com. 395, 396. 3 Bac. Abr. K. Litt. S. 281. Harg. Co. Litt. 46 58. Shep. Touchst. 498. b. and 182. note 1. Lady Shore v. (m) Com. Dig. Admon. B. 10. Per Billing-sly, 1 Vern. 482. two Just. Holt, C. J. contr. Whitehall (r) Litt. S. 321. Com. Dig. Estates. v. Squire, 1 Salk. 295. S. C. S K. 5. Svm's Case, Cro. Eliz. 33. Salk. 161. S. C. Carth. 103. S. C. . O) 1 Eq. Ca. Abr. 292. CHAP. II.] IN CHATTELS PERSONAL. 155 common, and not as joint property; and therefore in these in- stances there shall be no survivorship, but the interest of the party- dying shall vest in his executor (t). At law, it is true, the remedy [156] survives, yet the duty does not survive; and, therefore, if one of two joint merchants die, the action for money due to them survives for the survivor, and the executor of the deceased cannot join in an action. But the survivor, on recovery, is liable to an action of account by the executor (u). Such actions, however, are in a great measure superseded, by the more effectual jurisdic- tion of a court of equity in matters of account. Chattels personal in the hands of an executor may, in certain cases, be changed into chattels real, and so vice versa; as, if a debt he due to J. S. as executor, on statute, recognizance, or judgment, and he sue out execution, and take the lands of the debtor in ex- tent, the personal duty is, in that case, converted into a chattel real: on the other hand, if such estate by extent, or a mortgaged term, devolve on an executor, and the debtor or mortgagor pay the money due, such chattels real are turned into chattels per- sonal (x). (i!) 2 Bl. Com. 399. Com. Dig-. Mer- Craddock, 3 P. Wins! 161. chant D. Harg. Co. Litt: 182. and (u) Martin v. Crump, Salk. 444. note 4. 2 Brownl. 99. Nov. 55. Jef- Kemp v. Andrews, Show. 188. fereys v. Small, 1 Vern. 217. Kemp (x) Off. Ex. 75. 3 Bl. Com. 420. v. Andrews, Carth. 170. See Lake v. 14 ( 157 j CHAP. III. OF THE INTEREST OF THE EXECUTOR OR ADMINISTRATOR IN SUCH OF THE CHATTELS AS WERE NOT IN THE DECEASED'S POSSESSION AT THE TIME OF HIS DEATH.' Sect. I. Of his interest in choses in action. I proceed now to treat of such of the testator's effects as were not in his possession at the time of his death; and in this class I am first to consider choses, or things in action, as well those where the cause of action accrued in the testator's lifetime, as those where it accrued after his death. In regard to the first, the executor is entitled to the testator's debts of every description, either debts of record, as judgments, statutes, and recognizances; or debts due on special contracts, as for rent; or on bonds, covenants, and the like under seal; or debts on simple contracts, as notes unsealed, and promises not in writing, either express or implied; and all such debts, when received by the executor, shall be assets in his hands («). [15SJ An executor is also entitled, pursuant to stat. 4 Ed. 3. c. 7. (1) to a compensation in damages for a trespass committed on the testator's goods in his lifetime; and by the equity of that sta- tute, for a conversion of the same, or for trespass with cattle in his close (b); or for cutting his growing corn, which is a chattel, and carrying it away at tbe same time (c); and by the same liberal construction of the above-mentioned statute, the executor is also entitled to a debt accrued to the testator under the stat. of 2 & 3 Ed. G. c. 13. for not setting out tithes (d); to a quare impedit, for a disturbance of his patronage (e); to ejectment, for ejecting him(y); and, in short, to every other injury done to his personal estate previous to his death. An executor shall also have damages for the breach of a coven- ant to do a personal thing («■) ; and although the covenant sound in (a) Off. Ex. 65. 3 Bac. Abr. 59. (d) Holl v. Bradford, 1 Sid. 88. Com. Dig. Admon. B. 13. 407. Moreton's case, 1 Ventr. 30. (w) 3 Bac. Abr. 59. Com. Dig. Ad- Poph. 189. nion B. 13. Off. Ex. 70. Lat. 168. (e) Off. Ex. 66, 67. (c) Emerson v. Emerson, 1 Ventr. (/) Poph. 189. 187. (g) Lat. 168. 3 Bac. Abr. 59. I 1 ) In force in Pennsylvania., Roberts' Digt.248. 3 Binn. 7 Sergf. 8c Rawle, 184j CHAP. III.] OF THE EXECUTORS INTEREST; &C. 158 the realty, as for not assuring lands, yet if it be broken in the tes- tator's lifetime, the executor shall be entitled to damages (A) ; (1) and the damages in any of these cases, when recovered, shall be re- garded as assets. So the executor of the assignee of a bail-bond shall recover on [159] that instrument, inasmuch as it is a vested interest (i). So an executor is entitled to damages against a sheriff for per- mitting a party in execution on a judgment recovered by the testa- tor to escape ; even although the escape happened in the testator's lifetime (/»■). An executor may also demand damages of a sheriff for not returning his Writ, and paying money levied on a fiere. fa- cias (I) ; or for a false 'return stating that he had not levied the whole debt, when in fact he had {in). So if the testator in his lifetime were entitled to a writ of error, or audita querela,, or to the antiquated remedies of attaint, deceit or identitate nominis, the executor has a right to recover such compensation as the testa- tor might have claimed ; and whatever he so recovers shall be as- sets in his hands (n). So, an executor is entitled to replevy goods of the testator (o) ; or to recover damages of an officer for remov- ing goods taken in execution before the testator, who was the land- lord, had been paid a year's rent (p). And, in general, an execu- tor has a right to a compensation, whenever the testator's personal estate has been damnified, and the wrong remains unredressed at the time of his death. [160] But an executor has no right to an action for an injury done to the person of the testator {q) ; nor for a prejudice to his freehold; as for felling trees, or cutting the grass, for the trees and grass are parcel of the same (r). (2) An executor shall also have the benefit of any equitable title of the testator in respect to personal property ; and money recovered by the executor by decree in a court of equity shall be assets (s). (h) Com. Dig. Admon. B. 13. Com. (m) Williams v. Crey, 1 Salk. 12. Dig. Covenant. B. 1. Lucy v. Leving- (») 3 Bac Abr. 60. Off. Ex. 71. ton, 1 Ventr. 176. lb. Cooke v. Foun- (o) 1 Sid. 82. Off. Ex. 66. tain, 347. Lucy v. Levington, 2 Lev. (p) Com. Dig. Admon. B. 13. Pal- 26. Off. Ex. 65. grave v. Windham, Stra. 212. (i) Com. Dig. Admon. B. 13. For- {q) Lat. 168,169. 1 And. 243. Ma- tes. 367. son v. Dixon, Jon. 174. (k) Com. Dig. Admon. B. 13. Spur- (r) Emerson v. Emerson, 1 Ventr. stow v. Prince, Cro. Car. 297. Mod. 187. Off. Ex. 68. Ca. 126. (s) 3 Bac. Abr. 59. Harecourt v. (/) Com. Dig. Admon. B. 13. Spur- Wrenham, Moore, 858. Ratcliff v. stow v. Prince, Cro. Car. 297. Graves, 2 Chan. Ca. 152. Brownl. 76. (1) Watson, adm. v. Blane et al. 12 Serg. & Rawle, 131. And an administrator cum Ustamento annexo may, by virtue of the Act of 12th March, 1800, (Purd. Dig. 277, 278.) maintain ejectment on the non-payment by the vendee of the purchase money of lands sold by the former executor, under the authority of the will. Cornell v. Green, 10 Serg. & Rawle, 14. (2) Nor an action of debt for the penalty, under the Act of 28th March, 1814, | Purd. Dig. 223,) establishing the fee bill. Rccd v. Cist, 7 Serg. & Rawle, 183, 160 OF THE EXECUTOR'S INTEREST [BOOK II. In all the above-mentioned cases, I suppose the cause of action to have accrued before the death of the testator. But where it accrues after that event, the executor is equally entitled to the debt or damages. Therefore, if A. contract to deliver certain goods to B. on a certain day, and they are not delivered in the lifetime of B., but after his death to his executor, he shall be possessed of them in that character, and they shall be assets in his hands; as in case the contract had not been performed, damages recovered for the non- performance would have been so considered (7). So if A. cove- nant with B. to grant him a lease of certain land by a certain day, and B. die before the day, and before the grant of the lease, A. is bound to grant it to the executor of B., and it shall be vested in [161] him as executor and consequently be assets (u). Or, if A. refuse to grant the lease, he is liable to make a compensation to the executor of B. in damages, which shall also be assets (v). So where a father possessed of a term for years held of the church, renewable every seven years, assigned the lease to his son in trust for himself for life, remainder in trust for the son, his executors, administrators, and assigns ; and the father covenanted to renew the lease every seven years as long as he should live. The son died and the seven years elapsed, when the executors of the son filed a bill to. compel the father to renew the lease at his own ex- pence. It was decreed accordingly (w). A bail-bond may also be assigned to a deceased plaintiff's execu- tor, and he shall be equally entitled to recover u^on it, as if it had been assigned to the testator in his lifetime (#). If a defendant in execution at the testator's suit escape after the testator's death, the executor shall recover damages for the escape, and the damages so recovered shall be assets (y). So an executor is entitled to replevy goods taken after the death of the testator (z). So, if A. die possessed of a term for years in an advowson, such term shall vest in his executors; and in case of their being disturb- ed, they shall recover damages in a quare impedit, and such dama- ges shall be assets (a). If an executor have an equitable title to property in that charac- ter, and he institute a suit for the same, and it be decreed to him in a court of equity, it shall also be assets (b). Where the cause of action accrued before the testator's death, [162] neither debts nor damages shall be assets, till they are actu- ally recovered by judgment, and levied by execution, or otherwise reduced into possession (c). tt) Off. Ex. 82. O) Off. Ex. 36. (u) Off. Ex. 82. 11 Vin. Abr. 231. (a) Ibid. L. of Ni. Pri. 158. supr. 144. (b) Com. Dig. Assets C. Roll. Abr. (u) Plowd. 286. 920. Ilarcourt v. Wrenham, Moore, (w) Husband v. Pollard, Feb., IT. 858. 18, 19, cited 2 P. Wms. 467. (c) 11 Vin. Abr. 239, 240. 3 Bac (x) Forres. 370. Abr. 60. Jenkins v. Plume, 1 Salk. (,y) Com. Dig. Admon. B. 13'. 207. Shep, Touchst. 497. Gcdb. 262. Vid. 1 Roll. Rep. 276. CHAP. III.] IN CHOSES IN ACTION. 162 Nor shall the balance of an account stated with the executor subsequently to the testator's death be assets, unless he has reco- vered the same, and has it actually in his hands, for the promise to the executor on the account stated, creates no new cause of ac- tion, but ascertains merely the old cause of action which existed in the testator's lifetime (d). But such debts or damages recover- ed may be assets, although never, in point of fact, received, as if they be released by the executor. For the release, in contempla- tion of law, shall amount to a receipt (e). Where the cause of action accrues after the testator's death, the debt or damages shall be assets immediately. As where money was had and received by the defendant to the use of the plaintiff as executor, it was held, that if the defendant received the money by the consent or appointment of the plaintiff, it was assets in his hands immediately ; if without his consent, yet the bringing of the action was such a consent, as that on judgment obtained it should be assets immediately without execution (/"). [163] If a covenant affect the realty, and the breach be subse- quent to the testator's death, the heir, and not the executor, as is hereafter shewn, shall be entitled to the damages. If a joint merchant die, his interest in the choses in action be- longing to the partnership devolves on his executor in the same manner as the other joint property («•). It has been even held that the executor of the deceased shall join with the surviving mer- chant in an action for goods carried away, or money had and re- ceived in the testator's lifetime (h). But it has been doubted whe- ther the executor and surviving partner must, or can join in such action (i), and it has been adjudged to the contrary, and such ad- judication seems now to be established, on the ground 'that al- though the duty survive not, the remedy does survive, and there- fore must be enforced by the latter alone (k), (1) who will still be accountable to the executor as above stated (/). (d) 11 Vin. Ab. 240. Jenkins v. v. Huffam, 2 Lev. 188., and 228. S. C. Plume, 1 Salk. 207. 1 Freem. 468. (e) 3 Bac. Abr. 60. Cooke v. Jen- (i) Kemp v. Andrews, Show. 189, nor, Hob. 66. Brightman v. Keighley, S. C. 3 Lev. 290, 291. Cro. Eliz. 43. (k) Kemp v. Andrews, Carth. 170. (/) Jenkins v. Plume, 1 Salk. 207. Martin v. Crump,- Salk. 444. Vid. (g) Harg. Co. Litt. 182. Com. Dig. S. C. 1 Ld. Raym. 340., and Smith v. Merchant. D. Barrow, 2 Term Rep. 476. (k) Com. Dig. Merchant. D. Hall (/) Supr. 155. (1) 5 Serg. & Rawle, 86. Wallace v. Fitzsimons, 1 Dall. Rep. 248. M'Carty v. Nixon, 2 Dall. Rep. 65, n. Peters v. Davis, 7 Mass. Rep. 257. 164 OF THK EXIiCUTOM's INHERES! | BOOK II. [164] Sect. II. Of interests vested in him by condition, by remainder or in- crease, by assignment, by limitation, and by election. An executor may become entitled in such character to chattels real or personal by condition. As if a lease for years, or other chattel, has been granted by the testator to A., on condition that if A. do not pay a certain sum of money, or perform some other specific act, within a limited time, the grant shall be void, and the condition is not performed, such chattel shall result to the execu- tor, and be assets (a). So, where the condition is, that the testa- tor, or his executors, shall pay a sum of money to avoid the grant, and the executor shall pay it accordingly: As if A. mortgage a lease, or pledge a jewel, or piece of plate, and before the day limited for redemption or payment die, his executor is entitled to redeem at the day and place appointed (Z>). If he redeem with the testator's money, such chattels shall be assets (c). If he redeem with his own money, Tie shall be indemnified in respect to the sum he has disbursed out of the effects of the testator, or, if necessary, by the [165] sale of the chattel itself; and in that case the surplus over and above such indemnity shall be assets (d). In case he have no fund as executor, and he advance the money out of his own purse for the redemption, and it be fully equivalent to the value of the chattel, the property is altered by such payment, and shall be vested in the executor as a purchaser in his own right (e). But if the executor disbursed his own money to redeem, after the time specified for redemption is elapsed, then it is said that the chattel, without any distinction in respect to its value,. shall at law belong to the executor in his own right ; since in such case it must be deemed to be sold to him by the mortgagee or pawnee, who after the forfeiture is incurred, has a legal right to dispose of it at his pleasure to him, or to any other person. But in equity, the excess in the value of the thing beyond the money paid for the redemp- tion shall be regarded as assets in the hands of the executor (/). Chattels which were never vested in the testator in possession, may accrue to an executor by remainder, or increase. As, if a lease be granted to A. for life, remainder to his executors for years, such remainder shall be assets in the hands of his executor, though it could never come into the possession of the testator. In like manner, where a lease for years is given by will to A. for life, and [166] on his death to B., and B. dies before A., although the term were never in B., yet it shall devolve on his executor, and (a) Off. Ex. 76. Ex. 79. 2'l'onbl. 404, n. f. \b) Ibid. 76, 77- (') 3 Bac. Abr. .58. Kellw. 63. (r) Ibid. 81. (/) Ofl'. Ex. 81. (d) 3 Bac. Abr. 58, SO. in flote. Oil. CHAP. IH.] Bf CONDITION OK REMAINDER. 166 be assets. So a remainder in a term for years, though it never vested in the testator's possession, and though it continue a re- mainder, shall go to the executor, and shall be assets, for it bears a present value, and is capable of being sold (g). So the young of cattle, or the wool of sheep produced after the testator's death, shall be assets (A). So if an executor of a lessee for years enter on the lands demised, the profits over and above the rent shall be so regarded (i). A trade, generally speaking, is determined by the death of the trader. Articles of partnership in trade subsist not for the benefit of executors of a deceased partner, unless they contain a proviso to that effect (k) : They may contain such proviso : (1) Or the tes- tator may by his will direct his executors to carry on his trade af- ter his death, either with his general assets, or appoint a specific fund to be severed from the general mass of his property for that purpose (/). Executors may also carry on their trade in their re- [167] presentative character under the direction of the Court of Chancery (?n). In all these instances, and a fortiori in case the executor shall take upon himself to carry on the testator's trade, the profits of such trade shall be assets for which he shall be ac- countable. An executor may also take under the description of an as- signee. Assignees are such persons as the party who has a power of as- signment actually assigns to receive the chattel; as if A. contract to deliver a horse on a given day to B. or his assigns, then if B. ap- point J. S. to receive the horse, J. S. is an assignee in deed (n). But an executor is an assignee in law, because by law he is the representative of the testator, and is entitled to all his goods and chattels, and the benefit of all personal contracts entered into with him; and therefore in the case just mentioned, if B. die before the day limited for the delivery of the horse, it ought to be delivered to his executor; for by law he is the assignee of B. for such a pur- pose (o). So, if a legacy is bequeathed to A. and his assigns, and A. die before payment, it shall go to his executor or administrator, as as- [168] signee (/?). So, if A. be bound to deliver a true rental to J. S. or his assignee at the end of twenty years, and he die before that time has elapsed, A. is bound to deliver a true rental to his (g) Off. Ex. 83. Vid. 2 Fonbl. 371, 110. note (k). (m) Pearce v. Chamberlain, 2 Vez. (A) Off. Ex. 83. 33. Barker v. Parker, 1 Term Rep. (!) Com. Dig'. Assets. C. Buckley v. 295. Aid. Off. Ex. 83. and 3 Bro. C. C. Pirk, 1 Salk. 79. Vid. Off Ex. 84,"85. 552. and supr. 143. O) Plowd. 288. (A-) Pearce v. Chamberlain, 2 Vez. (o) Ibid (/) Ex parte Garland, 10 Yes. jun. (p) 11 Yin. Abr. 15(5. (1) Gitettzv. Bayard', 11 S^hj. *& Ea^'Te, 41'. 168 OF THE EXECUTOR'S INTEREST [BOOK II. executor, for he is assignee in point of law (q). So, if A. be bound to abide by the award of two arbitrators, and they award that he shall pay to B. or his assigns two hundred pounds before a day li- mited for that purpose, and B. die before the day, the money shall be paid to his executor as assignee (r). Or, if A. covenant to grant a lease to J. S. and his assigns by Christmas, and J. S. die before that time, and before the grant of the lease, it must be made to his executors as his assigns (s). So, if a lessor covenant to build anew house for the lessee and his assigns, the executor of the lessee shall have the benefit of the covenant as assignee (/). But where a bond was conditioned for the obligor's paying twenty pounds to such person as the obligee should by his will appoint, and he nominated J. S. his executor, but made no other appointment, it was resolved, that the executor should not have the twenty, pounds, for he is only an assignee in law, and takes to the use of the testator, but that in that case the condition was in favour of an actual assignee, who takes to his own use («). [169] So, it has been held, that if A. be bound to pay ten pounds to the assignee of B. the obligee, B.'s executor shall not have the ten pounds: But that if A. be bound to pa) T ten pounds to B. or his assignee, then the executor of B. shall be entitled, because it was a right vested in the obligee himself (v). So, before the provisions of the statute of frauds in regard to estates pur auter vie (w), if a lease were granted to A. and his assigns during the life of B. it could go only to A.'s assignee in deed, and not to his executors (x). And, on his failure to appoint such assignee, it was, in case of his death, open to be appropriated by the first occupant that could enter upon ft during the life of cestui que vie. But where on a fine the use of land was limited to A. for eighty years, with a power to A. and his assigns to make leases for three lives, to commence after the expiration of the term: A. assigned over to B.; B.tlied, having made his will and appointed C. his ex- ecutor: C. assigned over to D. ; and D. in pursuance of the power, made a lease for life: The question was, whether D. was such an assignee of A. as to have a power to make this lease, or whether it should extend only to the immediate assignees of A.; a point the more doubtful, as there had been a descent on an executor. On its being objected, that an executor should not in some cases be said to [170] be a special assignee, the court seemed inclined to the con- trary; and that D. should be considered as an assignee for the pur- pose of making the leases in question, as well as any person that should come to the estate under the first lessee, though there should (//) 11 Vin. Abr. 156. 1'rver v. Gild- Hob. 9. Godb. 192. Harg 1 . Co. I.itt. rid^e, Mob. 10. 2l0. note 1. (r) 11 Vin. Abr. 157. 1 Leon. 316. (r) 11 Vin. Abr. 161. Godb. 192. (.9) 11 Vin. Abr. 158. Off. Ex. 101. (V) Vid. supr. 140. (7) 11 Vin. Abr. 158. La*. 261. (.,■) 11 Vin. Abr. 15S. Off Ex. fOl {it) 11 Yin. Abr. 156. Pease v. \li-ml, CHAP. 111.] BY CONDITION AND REMAINDER. 170 be twenty mesne assignments; and on a subsequent day judgment was given accordingly (y). An executor may also be entitled in respect of limitation. A contingent or executory interest, whether in real or personal estate, is transmissible to the representative of the devisee when such de- visee dies before the contingency happens, and, if not before dis- posed of, will vest in such representative when the contingency takes place. Thus where the testator, in case his wife should die without issue by him, after her decease, which was taken to mean immediately after her decease, gave eighty pounds to his brother; and after the testator's death the brother died in the lifetime of the widow, and she afterwards died without leaving any issue: It was held that the possibility devolved to the executors of the brother, although he died before the contingency happened, and the legacy was decreed accordingly with interest from the widow's death (z). So where B., in consideration of natural love and affection for her niece, and to secure to her separate use her personal estate to trus- [171] tees in trust for herself during her life, and after her decease, and payment of her debts and funeral expenses, in trust for the sole and separate use of her niece alone, and not for her husband, or for such persons as she should appoint, and the niece died in the life- time of B. : It was decided that the contingent interest belonged to the representative of the niece (a). And in like manner, where legacies were bequeathed to children, to be transferred to them at their respective ages of twenty-one years, or days of marriage, and that in case any of them should die under that age, or marry with- out consent, his or her share should go to others at their age of twen* ty-one years, Lord Hardwicke C. decreed that a share accruing by the forfeiture of a child's marrying without consent vested in ano- ther child who attained twenty-one, but died before such forfeiture, so as to entitle the personal representative of such deceased child to an equal share thereof with the other surviving children {b). If a legacy out of the personal estate is bequeathed to A., to be paid when he is of the age of twenty-one years, and he dies before that time, his executors are entitled to the legacy; immediately, if it be payable with interest; if not, when A. would have come of age (c). But if such legacy be bequeathed to A. at his age of twenty-one merely, or if he shall attain the age of twenty-one, [172] and he die before that period, his executors have no ti- tle (e/). (1) (,y) Harg. Co. Litt, 210. note 1. Howe Farndell. Carth. 52. Com. Dig-. Chan, v Whitebank, 1 Freem. 476. 11 Yin. 3 Y. 8 Chan. R. 112. Clobberie'scase, Abr. 158. 2 Ventr. 342. Lord Pawlet's case, 366. (z) Pinbury v. Elkin, 1 P. Wms. 553. Anon. 2 Vera. 199. l'earne's Conting. Rem. 444. (d) Com. Dig. Chancery, 3 Y. 8. (a) Peck v. Parrot, 1 Yez. 236. Clobbevie's case, 2 Ventr. 342. Hut- (b) Chauncy v. Gravdon, 2 Atk. 616. chins v. Foy, Com. Rep. 2d ed. 719. (c) 11 Yin. Abr. 160. Brown v. l See Patterson v. Hawthorn, 12 Serg. 8c Rawlfc, 112. 1") 172 Of THE EXECUTOR^ INTEREST [BOOK II. This distinction with respect to interests arising out of personal property, as far at least as they are of a legatory nature, although it be explained, and in some degree corrected by the more modern cases, is in substance established by a series of authorities (e); but although the legacy out of the personal property be left to A. at twenty -one, yet if interest is given before the time of payment, that circumstance is held to be evidence of an intention to vest the le- gacy (f). But such presumption does not appear to be formed from that circumstance in respect to any interests but those of a legator)* nature, although the fund be merely personal: for it hath not been admitted in cases of portions for younger children to be raised out of such fund at twenty-one, with interest in the mean time for maintenance and education (g). So with respect to all interests arising out of land, the rules on [173] the subject are totally different: for whether the land be the primary or auxiliary fund, whether the charge be made by deed or will, as a portion or a general legacy for a child or a stranger, with or without interest, the general rule is, that charges on land paya- ble on a future day shall not be raised where the party dies before the day of payment (h). (1) This rule however is subject to many exceptions-, as, where the time of payment is postponed from the cir- cumstances, not of the person but of the fund. As, where a term was created for daughters' portions, commencing after the death of the father and mother, on trust to raise the portions from and af- ter the commencement of the term., and the father died leaving a daughter, the portion was decreed to be vested, but not raisable during the life of the mother (i). (e) 2 P. Wins. 612. Mr. Cox's note 1. Lampen v. Clowbery, 2 Ch. Ca. 155. Smell v. Dee, 2 Salk. 415. 1 Eq. Ca. Abr. 295. Barlow v. Grant, 1 Vern. 255. Stapleton v. Cheales, Prec. Chan. 318. 3 Bro. P. C. 337. 2 Eq. Ca. Abr. 548. Lowther v. Condon, Barnard. 329. Steadman v. Palling-, 3 Atk. 427. (joss v. Nelson, 1 Burr. 227. Barnes v. Allen, 1 Bro. Ch. Rep. 181. Monk- house v. Holme, ib. 298. Benyon v. Maddison, 2 Bro. Ch. Rep. 75. May v. Yv'ood, 3 Bro. Ch. Rep. 471. (/) 2 P. Wms. 612. note 1. Collins v. Metcalfe, 1 Yern. 462. Stapleton v. Cheele, 2 Vern. 673. S. C. Prec. Ch. 318. Atkins v. Hiccocks, 1 Atk. 501. Van v. Clark, 1 Atk. 512. Neale v. Willis, Barnard. 43. Foncrean v. Foncrean, 3 Atk. 645. S. C. 1 Vez. 118. Walcot v. Hall, 2 Bro. Ch. Rep. 305. (g) 2 P. Wms. 612. note 1. Targiis v. PugeX, 2 Vez. 207. Hubert v. Par- sons, ib. 262; Goss v. Nelson, 1 Burr. 227. (h) Pitfield's case, 2 P. Wms. 515. 612. note 1. Lampen v. Clowbery, 2 Ch. Ca. 155. Poulet v.Poulet, 1 Vern. 204. 321. Smith v. Smith, 2 Vern. 92. Yates v. Phittiplace, ib. 416. Carter v. Bletsoe, Prec. Ch. 267. Tournay v. Tournay, ib. 290. Stapleton v. Cheales, ib. 318. Jennings v. Looks, 2 P. Wms. 276. Anon. Mosel. 68. Neeve v. Kecke, 9 Mod. 106. Gordon v. Raynes, 3 P. Wms. 134. Bradley v. Powell. Ca. Temp. Talb. 193. Prowse v. Abingdon, 1 Atk. 482. Hall v. Ter- ry, ib. 502. Van v. Clark, ib. 512. Boycot v. Cotton, ib. 555. Richardson v. Greese, 3 Atk. 69. Attorney-General v. Milner, ib. 112. Oldfield v. Oldfield, 1 Bro. Ch. Rep. 106. in note, 124. in note. Ashburne y. M'Guire, 2 Bro. Ch. Rep. 108. (i) 2 P. Wms. 612, note 1. Lowther v. Condon, 2 Atk. 127. 130. S. C. Bar- O) 12 Serg-. & Ruwle, 114. CHAP. III.] BY LIMITATION AND ELECTION. 173 And where a legacy was charged upon real estate, to vest im- mediately on the testator's death, but to be paid to the legatee on attaining 21, and the interest to be applied in the mean time for maintenance, and the legatee died before attaining 21: it was held, that the express direction that the legacy should vest on the death of the testator, prevented its sinking for the benefit of the devisee, and that the personal representative of the legatee was entitled to the legacy (i). In respect to those cases where portions have been given out of land, and no time of payment expressed, it seems difficult to re- concile the determinations. According to one class, their interest is vested immediately, and transmissible: according to another, [174] such portions shall not vest, if the children die before they want them (A"). But if lands be devised for payment of portions, and one of the children entitled to a portion die after it becomes due, though be- fore the lands are sold, the personal representative of such child will clearly be entitled to the money (I). In those cases, in which both the real and personal estates are charged with a legacy, as far as the executor claims out of the lat- ter he shall succeed according to the rule of the spiritual e^ourt where such, claim is determinable, though the infant legatee die before the time of payment, and consequently the legacy, so far as it is charged upon the land, shall sink (m). (1) An executor may also claim by election; as where the testator- at the time of his death was entitled out of several chattels to take his choice of one or more to his own use. If nothing passes to the grantee of a chattel before his election, it ought to be made in his nard. 327. Ernes v. Hancock, 2 Atk. Stu. 199. 507. Butler v. Duncomb, 1 P. Wms. (k) Cowper v. Scott, 3 P. Wms. 119. 457. Pitfield's case, 2 P. Wms. 513. Wilson v. Spencer, ib. 172. 2 P. Wms. Ca. Temp. Talb. 117. King' v. With- 612. -note 1. Brewin v. Brewin, Prec. ers, 3 P. Wms. 414. Sherman v. Col- Ch. 195. Warr v. Warr, ib. 213. Ld. lins, 3 Atk. 319. Hutchins v. Fitzwa- Teynham v. Webb, 2 Vez.209. 1 Bro. ter, Com. Rep. 716. Hodgson v. Raw- Ch. Rep. 124. in note. Lord Hinchin- son, 1 Vez. 44. Dawson v. Killet, 1 broke v. Sevmour, ib. 395. and vid. 2 Bro. Ch. Rep. 119. 124, in note. Tun- Atk. 133. and 11 Yin. Abr. 163, 164. stal v.Bracken, Amb. 167. Embreyv. Whitmore v. Wild, 1 Vern. 326, 347. Martin, ib. 230. Smith v. Partridge, Cifibrd v. Goldsey, 2 Vern. 35. Earl ib- 266. Mannering v. Herbert, ib. 575. Rivers v. Earl Derby, ib. 72. Fawsey v. Edgar, 1 Bro. Ch. Rep. in (/) 11 Yin. Abr. 163. Bartholomew note. Thomson v. Dowe, ib. 193. in v. Meredith, 1 Vern. 276. note. (m) Duke of Chandos v. Talbot, 2 (i) Watkins v. Cheek, 2 Sim. and P. Wms. 613. (1) See 12 Serg-. & Rawle, 114. But where a testator directed that all the rest and residue of his estate, " of what kind or nature soever, whether in posses- sion, remainder or reversion," should be sold by his executors "at any time, and in any manner he or they shall think proper," and the moneys arising- from such sales to be paid to particular persons (his sons), the interest of the legatees was held to be a vested one, which their deaths before the sale did not defeat. Taze- well y. Smith's adm., 1 Uand. Rep. 313. X74 of the executor's interest. cVc. [book II. lifetime (n). As if A. give to B. such of his horses as B. and C. shall choose, the election ought to be made in the lifetime of B. (o). But where an interest vests immediately by the grant, the election may be made by the executor, as well as by the party himself (p). As, if a fine be levied of a hundred acres, and the conusee grant fifty to the conusor for a term of years, his executor may choose which fifty he will have. So if A. gives one of his horses to B. and C, B. may elect after the death of C, which he will take, for an [175] interest vested in them immediately by the gift (q). So if the election determine only the manner or degree in which the thing shall be taken, the executor, as well as the grantee himself, may make it; for in such case also there is an immediate inte- rest (r). As, if a lease be granted to A. for ten or twenty years, as he shall elect, the executor is entitled to the election. (n) Com. Dig. Election B. Harg. (jo) Harg. Co. Litt. 145. Co. Litt. 145. (?) 1 Roll. Abr. 725. (o) 1 Roll. Abr. 726. (r) Harg. Co. Litt. 144 b. ( 176 ) chap. iv. OF CHATTEL INTERESTS WHICH DO NOT VEST IN THE EXECUTOR OK ADMINISTRATOR. Sect. I. Of chattels real which go to the heir; and also toudiing money considered as land, and land as money. I proceed now to inquire under what special circumstance? chattel interests shall go to the heir of the last proprietor. The principle which generally pervades the cases in which the heir, as distinguished from the executor, shall be entitled to chat- tels, is this — that they are so annexed to and consolidated with the inheritance, that they shall accompany it wherever it vests (a). And, first in regard to chattels real: if A. seised in fee grant an estate tail, or a lease for life or years, reserving rent, such rent a? accrues after his death, being incident to the reversion, shall go to his heir, and not to his executors (Z»), although they are expressly named in the covenant (c). ' If A. seised in fee make a lease, re- [177] serving rent to him, his executors and assigns, and die, the rent is determined, for the executors are not entitled to it, inas- much as they are strangers to the reversion, which is an inherit- ance, nor shall it go to the heir, because he is not named (d). But if A. seised in fee make a lease for years, reserving rent to him and his assigns, or to him, his executor and assigns, during the term, although there be decisions to the contrary (e), the words, " during the term," shall be sufficient to carry the rent to the heir. Where the rent is so reserved, the intention of the parties is clearly ex- pressed, that the lessee is to pay the same during .the continuance of the demise {/). In case the lease reserve rent at Michaelmas, or ten days after; it the rent be not paid at Michaelmas, and, before the ten days are ex- pired, the lessor dies, his heir, and not his executor, shall receive (a) 2 HI. Com. 427, 428. (r)- See Noy. 96. 12 Co. 3fi. Rich- ly) 3 Hac. Ahr. 62. H:ug\ Co. Litt. . ruond v. Butcher, Ceo. Eliz. 217". 47. 3 Bac. Abr. 63. in note. (c) Harg-. Co. LiU. 17. note 9. Drake (/) Harg\ Co. Litt. 47. note 8. ibid. v. Munday, Cro. Car. 207. 202'. 3 Bac. Abr. 62. Sacheverel v. (d) Harg. Co. Litt. 47. 2 Roll. Abr. Frog-ate, 2 Saund. 367. S. C. 1 Vent. 450. Sacheverel v. Frog-ate, 1 Ventr. 148,161. Sacheverel v. Frogate, Rftym. J61. 213. 2 Lev. 13. S. C. # 177 01 CHATTELS REAL [BOOK II. the rent: lor although it were in the election of the lessee to pay it at Michaelmas, yet the ten days after are the true legal term, and consequently the rent was not legally due before that period of time, and therefore is no chattel (g). So if the lessor die on the day on which the rent is payable, after sunset, and before midnight, the heir, and not the executor, may demand the rent, for it is not in strictness due till the last minute of the natural day, although it [178] may be more convenient to pay it before (A). So where rent is granted to A. and his heirs for life, and the lives of B. and C, the heir shall have the rent as a party specially nominated, and as heir by descent (i). So, although, for the arrears of a nomine poetise, or penalty from non-payment of rent, the grantee himself, and there- fore his executors, may have an action of debt, yet such penalty, as an incident to the rent, shall descend to the heir (k). So a term for years in trust to pay debts, afterwards to attend the inheritance, shall go to the heir, and not to the executor (/). So if a term be raised for a certain purpose, and that purpose be answered, the heir shall have the beneficial interest in the same, whether it be so ex- pressed or not (m); but he shall take it as a term, and consequently as a chattel (n). So an annuity, although a chattel interest, is de- scendible to the heir (o). So where A., the cestui/ que trust of a term in Blackacre, afterwards purchased the fee in his own name, and devised Blackacre in fee to B., his heir, whom he made his executor and residuary legatee, it was held that on the death of B. the term should go with the fee to B.'s heir, and not to his per- [179] sonal representative (/;). So if an estate pur auler vie be limited to A., his heirs, executors, administrators, and assigns, and be not devised, it shall descend to the heir as a special oc- cupant (q). But if a debt be owing to A., and, in satisfaction of it, the debtor grants him an annuity, charged on lands for the grantor's own life, and redeemable, such annuity shall be part of'A.'s personal es- tate (r). So a term conveyed as a fee by lease and release to J. S. and his heirs by the word " grant," although it cannot operate as a fee to vest in the heirs of J. S., yet shall go to his personal re- ts-) 3 Bac. Abr. 63. 10 Co. 127. Vent. 359. (A) 3 Bac. Abr. 63. Harg. Co. Litt. (») 11 Vin. Abr! 171. Levetv. Need- 202. note 1. Duppa v. Mayo, 1 Saund. ham, 2 Vern. 139. 287. Ld. Rockingham v. OSenden, (o) 11 Vin. Abr. 153. Arg. 10. Mod. Salk. 578. and vid. 1 P. Wms. 177. S. C. 237. Vide also 11 Vin. Abr. 146. pi. (?) 11 Yin. Abr. 168. Bowles v. 25. Co. Litt. 374 b. Earl Stafford v. Poore, Cro. Jac. 282. Vid. 2 Bl. Com. Buckley, 2 Vez. 170. Countess of Hol- 259. derness v. Marq. of Carmarthen, 1 Bro. (k) 11 Vin. Abr. 168. Harg. Co. C. Rep. 377. 2 Bl. Com. 40. Litt. 162 b. (p) Goodright v. Saks, 2 Wils. 329. (/) 11 Vin. Abr. 172. Countess of vid. supr. 7. Bristol v. Nungerford, 2 Vern. 645. (7) Atkinson Admx. v. Baker, 4 Com. Dig. Biens. B. 2 Ca. Ch. v. Term Rep. 229. Vid. supr. 140. Langton, 156, 160. (;•) Com. Dig. Biens. C. Longuet V. (wj) 11 Vin. Abr. 169. Anon. 2- Scawen, 1 Vez. 402. CHAP. IV.] WHICH GO TO THE HEIR. 179 preservative (s). So if a lessee for twenty years make a lease for ten years, reserving a rent during the last-mentioned term to him and his heirs, it shall he void as to his heir, and shall belong to his executors (/). So if A. possessed of a term for years devise it to B, for life, remainder to the heirs of B., it seems that on B.'s death it shall go to his executor, and not to his heir (it). So if A. seised in fee make a lease for years, reserving rent, and devise the rent to B.; B.'s executor, and not his heir, shall he entitled to the rent, because B. had no more than a chattel interest (v). So [ISO] where a copyhold estate was granted to A. for the lives of A. B. and C, and A. died intestate, it was held that hisadminis-, trator 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 lessee (x). If A. grant a rent in fee to J. S., with a proviso that, if it be in arrear, the grantee may enter the lands, and retain till he be satis- fied; the power of entry is an inheritance, and descends to the heir: but wheji entry is made, the party has merely a chattel interest in the -lands, which, with the arrears, shall go to his execu- tor (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 (z). 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 [1S1] 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 rent, 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 (b), 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 on him and his heirs, a court of equity will compel the execution of such contract, though merely voluntary; for in all cases where it is a measuring cast between an executor and an heir, the latter shall in equity have the preference (c). But in such cases, if there be proof that the (a) 11 Vin. Abr. 153. Marshall v. Harg. Co. Lift. 59. note 4. 4 Co. 26. Frank, Chan. Free. 480. 9 Co. 75 b. Matthewes v. Weston, W. (/) Sacheverel v. Frogate, 1 Vent. Jo. 249. Litt. Rep. 233. 161. (y) 11 Vin. Abr. 147. Jemmot v. (u) 11 Vin. Abr. 155. Davis v. Gibbs, Cooly, 1 Lev. 171. Errington v. Hirst, 3 F. Wms. 29. Raym. 125. 158. 1 Sid. 223. 262. 344. 0) 11 Vin. Abr. 145. Dyer 5 b. (z) 11 Vin. Abr. 147. Lit. Rep. 59. note 1. ibid. Ards v. Watkin, Cro. («) 11 Vin. Abr. 150. Hulbert v. Eliz. 637. 651. Moore, 549. S. C Hart, 1 Vera. 133. (it>) 11 Vin. Abr. 151. in note. Howe (6) Supr. '8. v. Howe, 1 Vern. 415. (c) Edwards v. Countess of War- O) 11 Vin. Abr. 146. Poph. 188. wick, 2 V. Wms. 176. 181 OP CHATTELS REAL [BOOK II. party absolutely, and in all events entitled to the money, intended to give it the quality of a personal estate, then it shall go to his ex- ecutor. Whether the mere circumstance of the fund remaining in his hands in the shape of money shall of itself be evidence of such intention, and if not, whether the heir has any equity against the personal representative 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 (d). Thus, by articles before marriage, securities for moneys amount- ing to the sum of 1,400/. were assigned to trustees, and agreed to be invested in land to be settled on the husband for life, remainder to the wife for life, remainder to the issue of 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 trust for the husband, his executors and administrators. The husband died without issue, having made his will, by which he devised some of his lands to his wife, and the rest of his real estate in Yorkshire and elsewhere to J. S., and all his personal estate and all his securities for money to his wife, whom he appointed executrix. It was held that so much, of the 1,400/. as was subsisting upon the securities on which it was*origi- nally placed, or on any other securities where no new trust had been declared, ought to be considered as real estate; but that such part as was called in by the testator, and afterwards placed out upon securities upon a different trust, should betaken to be personal estate; upon the principle, that as there was no issue of the marriage, it was in the power of the husband to alter and dispose of the settled property as against the heir at law, though not against the wife, and vet the placing it out upon different trusts was an alteration of the nature of it, and his declaring the trust to his executors seemed equivalent to his declaring that it should not go to his heir (e). But where A. executed articlesofagreementforthepurchase 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 [1S2] 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 administrators of the daughters claimed from the heir at law of the widow two-thirds as personal estate, and it was proved {l' CHATTELS REAL [BOOK I!. payment, be past, and the mortgage be forfeited, all election is gone; for at law there exists no right of redemption. There can be a redemption only in equity, and equity will not revive the election; but considers the case the same as if neither heir nor ex- ecutor had been named. And as in that case the law will give it to the executor; equity, which ought to follow the law, will de- cree it to the same person. Hence, therefore, when the security descends to the heir of the mortgagee attended with an equity of redemption, as soon as the mortgagor pays the money, the land shall "belong to him, and the money only to the mortgagee, which is merely personal, and so accrues, and is payable to his execu- tor (?/*). Nor will it appear inequitable that the heir should be decreed to make a reconveyance without having the money which comes in lieu of the land, if it be considered that the land was no more than a security, and that, after payment of the money, a trust results for the mortgagor, which the heir of the mortgagee is bound to execute. Nor is it material that the executor of the mortgagee has assets without such money. Assets shajl not be the measure of justice between the parties. The heir either ought to have the money if there were no assets, or ought not to have it although there were. Nor is the principle varied by there being no personal covenant on [185] the part of the mortgagor to pay the money : for although the claim of the mortgagee's executor would be strengthened by such a covenant, yet it shall avail him without it (n). And al- though a mortgage in fee be conditioned that the mortgagor shall pay the money to the mortgagee, his heirs, executors, administra- tors, or assigns, and the mortgagee die before the forfeiture of the mortgage, whereby the mortgagor has his election at law to pay the money to either, yet in equity it shall belong to the executor ; for, in mortgages in fee, the mortgagee's heirs are trustees for his personal representatives (o). In short, mortgages are deemed in equity to be mere chattel interests, and to belong to the executor of the mortgagee, unless his intention to the contrary be declared in express terms by the contract (p), or by his will, or be evident- ly implied by his conduct : As, if he foreclose, or procure a re- lease of the equity of redemption, and obtain actual possession of the premises. So, where a mortgage in fee descended on the heir at law of the mortgagee, and the personal representative of the mortgagee ten years after the money had been paid to such heir, filed a bill for the same, it was decreed to him, but without in- terest (q). Nor shall a legacy to' the executor, although expressed to be pay- (m) Waring' v. Danvers, 1 P. "VVms. Ventr. 351. Barnard. 50. Rightson v. 295. See also Fonbl. 255. Overton, 2 Freem. 20. Harg. Co. Litt. (n) 11 Vin. Abr. 148. and in note. 208 b. note 1. Baker v. Baker, 2 Freem. 143. See (p) Off. Ex. Suppl. 47. Harg. Co. also 2 P. Wms. 455. Litt. 210. (o) Sir Thomas Littleton's case, 2 (r/) Turner's case, 2 Ventr. 348. CHAP. IV.] WHICH GO TO THE IIEIR. 185 able after debts, and the other legacies, affect his title to money [186] due to the testator on mortgage. Thus where a mortgage in fee, after bequeathing several legacies, gave one hundred pounds to his executor, with a direction that his legacy should not be paid till the testator's debts and other legacies were discharged, and there was no deficiency of assets, yet the court decreed, in favour of the executor against the heir (p). So, if the mortgagor shall fail to redeem, the heir of the mortgagee shall convey the land to the executor : As where the mortgage was forfeited, though the heir of the mortgagee were in possession by descent, and there were no- deficiency of assets, on the mortgagor's not offering to redeem, the heir of the mortgagee was decreed to make such con- veyance : for since the money, as part of the personal estate, would have gone to the executor, he was held entitled to the land as a recompence (g). So, where a copyhold was mortgaged by sur- render to A., who was admitted tenant, and died, leaving B. his son, and heir, and executor : B. entered, and was also admit- ted, and afterwards by his will, but without any surrender to the use of the same, devised it to C. : on B.'s death, C. became the personal representative of A., and exhibited his bill against D., who was heir at law of A.' and B. , and who claimed this as a real estate on a variety of grounds : that the forfeiture had been so long incurred ; that two descents had been cast; that more was due on the estate than its value ; that the mortgagor had by his [1S7] answer refused to redeem ; and submitted to be foreclosed ; and that the devise by B. to the plaintiff was void at law for want of a surrender to the use of the will : Yet it was decreed to C, as the personal representative of A., inasmuch as there wag no foreclosure, nor release of the equity of redemption in the life- time of the mortgagee, and on appeal the decree was affirmed (r). If on a mortgage being forfeited, the mortgagor release to the heir of the mortgagee in fee, 3'et the executor of the mortgagee shall have the benefit of the estate, although there be no debts. So, in the case of a foreclosure of a mortgage, or that the mortgage be of so ancient a date, as in the ordinary course of the court it is not redeemable, it shall belong to the personal representative of the mortgagee ; for unless the mortgagee were actually in posses- sion, it shall be considered as personal estate (s). So, where a wife had a mortgage in fee of a copyhold, and died leaving issue, and the issue was admitted, and died, and then the husband, as admin- istrator to his wife, claimed the copyhold as a mortgage, and con- sequently part of the wife's personal estate; it was decreed to him against the heir at law, although the latter had been admitted (t). So, a mortgage of an inheritance to a citizen of London hath been (/)) Canning v. Hicks, 2 Ca. Cha. 367. 1 Eq. Ca. Abr. 273. 328. Vid. 187. S. C. 1 Vern. 412. Awdley v. Awdlev, 2 Vern. 193. (7) Ellis y- Guavas, 2 Chan. Ca. 50. 0) Awdley v, Awdley, 2 Vern. 193. Canning v. Hicks, 187. (7) Turner v. Crane, 1 Vern. 170, (r) Tredway v. fotherley, 2 Vern. 188 OF CHATTELS HEAL TbOOK II. held to be part of his personal estate, and divisible according to the custom (u). [188] But if the possessor of the estate conceive himself to hold it in fee, his interest will not be considered as personal against his evident intention ; as if an absolute sale of an estate in mortgage be fraudulently made by the mortgagee to a third person, the pur- chase money, on its being refunded by the vendor after the death of the vendee, will go to his heir; for the intention of the vendee was to alter the nature of his property, and to invest the money in the purchase of land, and therefore the court will consider it as real property (x). So, if it appear to be the intention of the mort- gagee that the Mortgage should pass by devise as a real estate, the executor will not be entitled (y). As, where the testator had se- veral mortgages, and among the rest a mortgage in fee of lands in Whiteacre, and devised his mortgages to his two daughters, their executors and administrators, and his lands in Whiteacre, on which he had entered on forfeiture of the mortgage, to them and their heirs : M., one of the daughters, died without issue ; H., her husband and administrator, claimed a moiety of the lands in White- acre as a mortgage not foreclosed, nor of which the equity of re- demption was released, and therefore part of his wife's personal estate.; but it was held, that although it were a mortgage, as be- tween a mortgagor and mortgagee, and therefore personalty ; yet the testator's intention was, that it should pass to his daughters as a real estate to them and their heirs, and that inasmuch as M. was dead without issue, it descended to her. sisters as her heirs at law, [189] and that II. was entitled to no part of the same in the na- ture, of personal estate (z). But where a mortgage was devised as real estate after a decree of foreclosure nisi, that is, unless cause were sbewn to the contrary, it was held to be personal estate for- payment of debts, if the assets were insufficient, although consid- dered as real estate between the devisor and devisee [a). A mort- gage will not pass as land under ageneral description applicable to it in point of locality, if from other circumstances it be evident that the owner regarded it as personal property (b). Where money secured by mortgage, to which the executor was entitled at law, was articled to be laid out in land, and settled on the issue of the marriage, on special verdict it was adjudged to be bound by the article's (c). And it has been held, that the heir of a mortgagee in fee, if he pay the executor the mortgage money, may take the benefit of a foreclosure to himself (fl?). If the parson of a church be seised of the advowson in fee, and die, in such case the heir, and not the executor, shall present; be- (m) Thornborough v. Baker, 1 Chan. (a) Garret v. Evers, Moseley, 364. Ca. 285. "Winn v. Littleton, 1 Vern. 4. and see Pilberschildt v. Sehiott.'o Ves. (x) Cotton v. lies, 1 Vern. 271. and Bea. 46. (y) Martin v. Mowlin, 2 Burr. 969. (b) Martin v. Movvlin, 2 Burr. 969. (z) Noys v. Mordant, 2 Vern. 581. (c) Vid.Lechmere v. Earl of Carlisle, S. C. Gilb. Rep. in Chan. 2. S. C. Chan, 3 P. Wms. 217. Free. 265. (r/) Clarkson v. Bovver, 2 Vern. 67. CHAP. IV. J WHICH GO TO THE HEIR. 189 cause at the same time the avoidance rests in the executor, the in- heritance descends to the heir; and where two titles concur in an [190] instant of time, the elder shall be preferred (e). But if A. be seised of an advowson in gross, or in fee appendant to a manor, and an avoidance happen in his lifetime, "his executor, and not his *heir, shall present, inasmuch as it was a chattel vested, and severed from the manor (/). But if the next presentation be granted to A., his heirs and assigns, it is clearly a mere chattel, notwithstand- ing the word "heirs :" It is but one turn, and where the thing is a chattel, the word «< heirs" cannot make it an inheritance (g). So if a man grant the two next presentations of a church, they are chattels, and if the grantee die the executor shall have them, and not the heir (h). If a party having the inheritance of tithes die after the tithes are set out, they shall go to his executor, and not to his heir (?'). The interest denominated the year, day, and waste, which has been already explained {k), is but a chattel-, and although granted by the crown to A., and his heirs, shall go to his executors (/). In regard to the estate of a lunatic, the Court of Chancery will change the na*ture of the property so as to alter the succession, if [191] the interest of the owner, which is solely considered, shall require it. Between the real and personal representatives of a lu- natic there is no equity. They are both volunteers, and must take what they find at his death in the condition in which they find it. Thus the produce of timber on a lunatic's estate, cut and sold by an order of the court, founded on the master's report that it would be for the benefit of -a lunatic, as some of the timber was in a state of decay, and injuring the rest, was on his death held to be person- al assets, and incapable of a transmutation for the benefit of the heir (in). Charters and deeds, court rolls, and other evidences of the land, as well as the chests in which they are usually kept, shall pass with the land to the heir, and shall not go to the executor (n). So, where a bill was filed in chancery for an antique horn, with an ancient inscription, on the ground that it had immemorially gone with the plaintiff's estate, and been delivered to his ancestors by which to hold the land, the court was of opinion, that if the land were of the tenure called cornage, the heir had a title to this mon- ument of antiquity at law (o). So, if land be sold by A. on con- dition, that if the purchase money be not paid by a limited day, (e) 11 Vin. AJbr. 169. 3 Bac. Abr. 61. (k) Vid. supr. 144. Holt v. Bishop of Winchester, 3 Lev. (/) 11 Vin. Abr. 175. Off". Ex. 51. 47. 3 Salk. 280. S. C. . (»'■) Oxenden v. Lord Compton, 2 (/) 11 Vin. Abr. 145. Fitz. N. B. Ves. jun. 69. 75. note b. 4 Bro. Ch. 33. Bep. 231, 397- S. C. vid. ex parte (g) 11 Vin. Abr. 173. Br. Chattels, Marchioness of Annandale, Ambl. 81. pi. 6. (n) Off. Ex. 63. 3 Bac. Abr. 65. L- (h) 11 Vin. Abr. 173. Br. Chattels, of Test. 381. Vid. Atkinson admx. v. pi. 20. Baker,' 4 Term Bep. 229. (i) Com. Dig; Biens, A. 2. Off. Ex, (a) Bar. Abr. 65. Pusey v. Pusey, 60. 3 Bac. Abr. 64. 1 Vern. 273. IIarg\ Co. Lilt. 107. 191 Or CHATTELS PERSONAL [BOOK II. then that he shall re-enter ; and A. die ; here, although there be [192] a debt due to the executor, and no land descended to the heir of A. yet the heir shall have the deeds, inasmuch as upon him the condition descended (p). But if A. deliver a charter to 13. to redeliver to him, and his heirs, having no title to the land,, his executor, and not his heir, shall have this charter, because it was only a chattel without the land (q). So, if the writings of an estate are pawned or pledged for mo- ney lent, they are considered as chattels in # the hands of the cre- ditor, and in case of his decease, they will go to his personal repre- sentative, as the party entitled to the benefit accruing from the loan (r). Sect. II. Of chattels personal which go to the heir : and herein of heir- looms. With respect to chattels personal, and animate, •the heir has a qualified possessory property in deer in a park, hares or rabbits in a warren, doves in a dove-house, pheasants and partridges in a [193] mew, swans, though unmarked, in a private moat or pond, ' or kept in water within a manor, or at large, if marked, and in bees in a hive, or as it has been held by some authorities, though not in a hive, ratione soli, in respect of his ownership in the soil. He is, also, entitled to fish in a private pond or piscary. These va- rious animals shall all go with the inheritance, for without them it is incomplete (a). And such, we may remember, is the property that shall vest in the executor, if the testator had a lease for years in the land (5). With regard to chattels personal, and vegetable, not only timber trees, as oak, beech, chesnut, walnut, ash, elm, cedar, fir, asp, lime, sycamore, birch, poplar, alder, larch, maple, and horn-beam, but also trees of every other description belonging to the soil, and unless severed during the life of the ancestors, are the property of the heir (c). So, likewise, are all species of fruits, if hanging on the treeatthe 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 () 1 Roll. Rep. 182. Lat. 270. 392. Hay v. Palmer, 2 P. Wms. 502. (.<;) Lat. 163. sed vid. Anon. Bunb. 294. (1) See fihult V. Barker, 12 Sfrg; Be Ilawl. CHAP. TV.] TO THE REMAINDER MAN. 208 hardship it is now enacted by stat. 11 Geo. 2. c. 19. s. 15. (1) that the executors of tenant for life, on whose deatli any lease deter - [209] mined, shall, in an action on the case, recover of the lessee a rateable proportion of rent from the last day of payment to the death of such lessor. The provisions of this statute have, by an equitable construc- tion, been extended also to the case of tenants in tail, where leases are determined by their deaths (c). Equity, however, will notin general apportion dividends of stock (d); 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 pro- perly an apportionment ; whereas the dividends accruing from the public funds are made payable on certain days, and, consequently, cannot be apportioned {/). On the principle of this distinction, dividends of money directed to be laid out in land, and in the mean time to be invested in government securities, and the inte- rest 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 (g). And the decision was the same, "where the money had been originally secured by mortgage, but by order of the court had been transferred on government securities (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 at- tained the age of eighteen on the 16th of August, she was decreed to have maintenance prorata from the last Lady-day to the time of her attaining that age. On the ground that the general inten- tion 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 become due, that is to say, half-yearly on the days above specified in every instance where it could hap- pen, and where that could not be, it was a case not directly pro- vided for by the- settlement as to the time of payment, but within (c) Paget v. Gee, Ambl. 198. Vex- Palmer, 2 P. Wins. 501. and 503. note 1 . nan v. Vernon, 2 Bro. Ch. Rep. 659. (g) Com. Dig. Chancery (4. N. 5.) ( for the whole interest was pass- ed away (h). [215] If the husband and wife be ejected of the term, and the husband bring an ejectment in his own name only, and recover, this also is an alteration of the term, and vests it in the husband (?'); for his suing alone is expressive of his intention to divest the wife of her interest, 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 ( k). 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 cannot charge such chattel real beyond the coverture; as, if he grant a rent-charge out of the term, and the wife survive, she shall avoid the charge, for by her 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 extended on a statute or recognizance acknowledged by him (o); nor, as it seems, for a debt due from him to the kingQoJ. Nor, (e) 10 Co. 51. Harg. Co. Litt. 46 b. (I) Grate v. Locroft, Cro. Eliz. 287. Com. Dig. Baron and Feme, E. % Poph. 5. (/) Harg. Co. Litt. 351. note 1. (m) Harg. Co. Litt. 351. Plowd. (g) 2 Bl. Com. 434. Plowd. 418. 418. (h) Com. Dig. Baron and Feme, E. (n) 1 Roll. 344. 346. 2. Harg. Co. Litt. 46 b. (o) 1 Roll. Abr. 346. (£) 1 Roll. Rep. 359. Harg. Co. (p) 2 Roll. Abr. 157. 1 Roll. Abr. Litt. 46 b. Sed vid. note 6. ibid. 346. (k) Dyer, 183. (1) A conveyance by a husband will pass the entire interest of his wife, enti- tled to a life estate in lands, in the event of his surviving; but if she survives him, it passes only an interest during his life. Evans v. Kingsbury, 2 Hand. Rep. 120. CHAP. V.J WHICH GO TO THE WIDOW. 216 [216] has his disposition of part of the term the effect of a dispo- sition 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, re- serving a rent, and die; although the executors of the husband shall have the rent, for it was not incident to the reversion, inasmuch as the wife was not party to the lease, yet she shall have the resi- due of the term (q). If the term be extended, 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 as- sent after the death of the husband, she shall have the arrears in- curred in his lifetime (it). Or if the husband be entitled to an ad- vowson in right of his wife, and after an avoidance, but before presentation die, his wife, and not his executors, shall present (to). In case the. wife die before the husband, all the chattels real of the wife, in which there exists a present, actual, and vested inte- rest, become absolutely and entirely his own by survivorship (x), [217] and that without taking out administration to her(y). To entitle himself to her chattels real, which are not so vested, he must make himself her representative, by becoming her adminis- trator. It seems formerly to have been doubted, whether, if, hav- ing survived his wife, he died during the suspense of the contin- gency on which any part of his wife's property depended, his re- presentative, 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 hus- band's representative is beneficially entitled 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 only, and not transmissible, and, as I have before stated (a), the spiritual court be in such case obliged by the stat. 31 E. 3. to commit administration to the next of kin of the wife, yet such grantee is regarded in equity as a mere trustee for the representative of the husband (b). If the tenant in dower grant a lease for years, and marry, and die, the husband shall have the rent in arrear in his wife's life- time (c). And by the stat. 32 Hen. S. c. 37. arrears of rent due as well before as after coverture to the wife seised in fee, in tail, (q) Harg. Co. Litt, 46 b. and Feme, E. 2. (r) 1 Roll. Abr. 344. (y) Com. Dig - . Baron and Feme, E. (s) Ibid. 2 Roll. Abr. 345. (t) 1 Roll. Abr. 350. Dembyn v. (z) Harg-. Co. Lit. 351. note 1. Brown, Moore, 887. (a) Supr. 116. (w) Ibid. 350. lb) Sed vid. Harg. Co. Litt. 351. (u>) Com. Dig. Baron and Feme, note 1. 1 Harg. Law Tr. 475, in E. 3. Co. Litt. Sol. note. (z) Co. Litt. 300. Com. Dig. Baron (c) Moore, 7. 217 OF CHATTELS PERSONAL [BOOK II. or for life, are on her death given to the husband. If the husband [2181 be enlitled to an advowson in right of his wife, and he sur- vive, he shall have an avoidance which happened during the cover- ture (d). If a wife were possessed at her marriage of a trust term to her separate use, the surviving husband 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 redemption (g). If the husband sow the land of which he is seised in right of his wife, and she die, he shall have the profits (A). Or if he die before the wife and 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 ex- ecutors of the husband : for the corn committed 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 (i). So, if *A. seised in fee sow copyhold lands and sur- render 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 husband ; for this is a disposition of the corn as ap- purtenant to the land, and since the husband disposed of it during his life, it cannot belong to his executors (&). But, if the husband and wife be joint tenants, and the husband sow the land, and die, it seems the corn shall go to the executor of the husband, for the land is not cultivated by a joint stock, the corn is altogether the property of the husband, and it shall not be lost by being commit- ted 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 ividow: and herein, of such personal chattels of the ivife as go to the surviving husband. Chattels personal, or choses in action, as debts on bond, sim- ple contracts, and the like, do not vest in the husband, until he re- (d) Com. Dig. Baron and Feme, (g) Young v. Radford, Hob. 3. E. 3. Harg. Co. Litt. 351. \h) Gilb. L. of Ev. 245. Harg. Co. (e) Com. Dig. Baron and Feme, E. 2. Litt. 55 b. 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- (A) 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. Sed vid. Harg. Co. Litt. 55 b. et Chan. Rep. 345. not. 7. Vin. Abr. tit. Emblements, pi. (/) Com. Dig. Chancery, 2 M. 9. 16. Com. Dig. Biens. G. 2. L. of Test. Harg. Co. Litt. 351. note 1." 380. CHAP. V.] WHICH GO TO THE WIDOW. 219 ceives, or recovers them at law. When he has thus reduced them into possession, 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 («). (1) In respect to such chases in action as vested in the wife before her marriage, the husband must sue jointly with her to recover them (b). (2) As to such of the wife's choses in action, as accru- ed subsequent to the coverture, he may sue either in their joint names, or alone, at his pleasure (c). (3) If he join her in action and recover judgment, and die, the judgment will survive to her on the principle, that although his bringing the action in his own name alone be a disagreement to the wife's interest, and indicate his intention that it shall not sur- vive to her : yet if he bring an action in the joint names of him- self and his wife, the judgment is, that they both shall recover, («) 2 Bl. Com. 434. Harg\ Co. Litt. (c) Blackborn v. Greaves, 2 Lev. 351. 107. Howell v. Maine, 3 Lev. 403. (6) 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 TVhitaker v. Whitaker, 6 Johns. Rep. 112, it was de- cided, that a husband who survives his wife is entitled to all her choses in 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. Udall v. Kenney, 3 Cow. Rep. 590. Bohn v. Headley, 7 Harr. & Johns. 257. Hynes v. Lewis, 1 Tayl. Rep. 44. 5 Day's Rep. 294. As to reversionary 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. Purdeiu 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 T. Plumer) asked the counsel who argued in support of the claim of the assignee of the husband ( Mr. Sugden and Mr. Shadwell) "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 pos- session of it, the assignee prevailed over the surviving wife ;" to which they re- plied, " that they believed that such a case had not occurred." He further ob- served in giving judgment, " that the act of the husband cannot take away or abridge the wife's right, unless he reduces the chose in action into possession — it is in vain for him to stipulate, that, though he is unable or unwilling to reduce it into possession, and though after his death it should continue to be a chose i?i ac- tion, his surviving wife shall not be entitled to recover it for her own benefit." See also 3I i Callop v. Blount, Johnston v. Pfisteur, 'Cam. & Norw. 96, 464. Byrne's Jldm. v. Stewart, Exparte Elms, 3 Desaus. Rep. 135, 155. W r hen 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 his part, is not bound to pay her debts, contracted before marriage, with it, if the wife die before payment of them. Beach v. Lee, 2 Dall. Rep. 257. (2) Crozierv. Gano, 1 Bibb's Rep. 257. And where a bond and warrant of at- torney are given to a feme dum sola, who afterwards marries, the Court upon affidavit of the facts, will direct judgment to be entered in favour of the baron and feme. Shebk v. Cummin, 1 r. A. Browne's Rep. 253. (3) The State v. Krebs, 6 Harr. & Johns. 31. Banks v. Marksberry, 3 Lilt. Rep. 281. 2 Conn. Reji. 566. Armstrong v. Silttonton, 2 Tayl. Rep. 266. 220 OF CHATTELS PERSONAL [BOOK II. and therefore such action does not alter the property, nor imply an intention on his part to do so, and, consequently, the surviving wife, and not the representative of the husband, is entitled to a scire facias on the judgment {d). (1) Indeed it has been asserted by a great authority, that, even in the case of the husband's suing alone for the wife's debt and his [221] dying before execution, his wife and not his executors, shall be thus entitled (e). (2) Such chattels shall, a fortiori, survive to her, if the husband die before he has proceeded to reduce them into possession (f). Hence a portion due to an orphan in the hands of the chamberlain of London, unless it be recovered, or received by the husband, shall, on his death, go to his wife, and not to his executor, for it is clearly a chose in action (g). (3) So before the stat. 5 Geo. 2. c. 30. s. 26. where the debtor to the wife became bankrupt and the hus- band claimed the debt, and paid the contribution-money, and died before any dividend, his wife, and not his executor, was held en- titled to the debt, for by such payment the property was not alter- ed (A). So if an estray come into the wife's franchise, in case the husband die without seizing it, his wife and not his executors, are entitled to the seizure. In all these cases the husband's right is determined with the coverture {i). But, if the husband grant a letter of attorney to A. to receive a debt or legacy clue to the wife, and A. receive it, but before he pays it over the husband die, it shall be considered as having vest- [222] ed in his possession, and shall go to his executors (k). {4) (d) Com. Dig. Baron and Feme, V. S. C Ca. Ch. 182. Harg. Co. Litt. 351. note 1. (h) Com. Dig-. Baron & Feme, E. 3. (k) Bond v. Simmons, 3 Atly. 21. Anon. 2 Vern. 707. (/) 2 Bl. Com. 434. Harg. Co. Litt. 0") 2 Bl. Com. 434. Harg. Co. Litt. 351. 351 b. (g) Com. Dig. Baron & Feme, E. 3. (k) Roll. Abr. 342. Huntley v. Grif- Pheasant v. Pheasant, 2 Ventr. 341. fiths, Moore, 452. (1) And a note and mortgage made to husband and wife, shall go to the wife, if she survive her husband, and not to the executor of the husband. Draper v. Jackson, 16 Mass. Rep. 480. So also a recognizance taken in the Orphan's Court for the wife's share of land, in the name of the husband and wife, not reduced into possession, nor disposed of by the husband, survives, on his death, to the wife. Lodge v. Hamilton, 2 Serg. & Rawle, 491. (2) See Hammick v. Bronson, 5 Day's Rep. 294 to 297. (3) A share of personal estate accruing, in right of the wife, during coverture, vests, even before distribution made, in the husband, absolutely, and does not in the event of his prior death survive to her. Griswold v. Penniman et ux. 2 Conn. Rep. 564. And a husband may forfeit, by his conduct in abandoning* and ill treat- ing his wife, and marrying another woman and continuing to live with her for twenty years, all just claim to the wife's distributive share of personal estate in- herited by her; and a court of equity will lay hold of the property^ and provide for her maintenance out of it. Dumond v. Magee, 4 Johns. Cha. Rep. 318. (4) Schuyler v. Hoyle, 5 Johns. Cha. Rep. 196. But if the husband and wife make a joint power to receive the debt or legacy due to the wife, and the attor- ney obtained possession of the property, but before he had paid over the entire share the husband died, the wife is entitled, in her own right, as survivor, to that portion not actually paid over to the husband. Ibid, CHAP. V.] WHICH GO TO THE WIDOW. 222 Such are the principles of law on this subject ; but in equity it is held, that a settlement before marriage, if made in consideration of the wife's fortune, entitles the representative of the husband dying in her lifetime to her choses in action. But it has been as- serted, that if it be not made in consideration of her fortune, the surviving wife will be entitled to the t.hings in action, the property of which has not been reduced by the husband. So, if it be in consideration of part of her fortune, such things in action as are not comprised in that part, it is said, survive to the wife. And in a case 'where a settlement was made to provide for the wife, without mentioning her personal estate, the Lord Keeper decreed, that such estate should belong to the representatives of the hus- band, and held, that in all cases where there is a settlement equi- valent to the wife's portion, it shall be intended that the husband shall have the portion, although there be no agreement for that purpose (/). But the presumption of an agreement from the mere fact of a settlement being made by the husband, is peculiar to the case last cited, and has been disavowed by the court in several other cases (m). Equity also considers money due on mortgage as a chose in ac- tion ; and it seems to have been formerly understood, that since the husband could not dispose of lands mortgaged to the wife in fee without her, and the estate remained in her, she or her repre- sentatives were entitled to the money, as incident to it ; but that in regard to a mortgage debt, secured by a term of years, as the [223] husband had an absolute power over the term, there was no obstacle to the debt's vesting in his representatives ; but this dis- tinction is exploded, and it is now held, that although in case of a mortgage in fee, the legal fee of the lands in mortgage continue in the wife, she is but a trustee, and the trust of the mortgage follows the property of the debt (n). If the husband and wife have a decree in equity, in right of the wife, and the husband die, the benefit of the decree belongs to the wife, and not to the executor of the husband (o). (1) But if the wife's fortune be in the Court of Chancery, on the husband's death his representatives shall be entitled to it, subject (/) Harg. "Co. Litt. 351. note 1. 3 and Druce v. Denison, 6 Ves. jun. P. Wms. 200. note D. Prec. Chan. 385. Cleland v. Cleland, 63. Packer v. (n) Harg. Co. Litt. 351. note 1. Bos Wyndham, 412. Blois v. Countess of vil v. Brander, 1 P. Wms. 458. Bates Hereford, 2 Vern. 502. Adams v. v. Dandy, 2 Atk. 207. Cole, Ca. Temp. Talb. 168. (o) Harg. Co. Litt. 351. note 1. (m) Lister v. Lister, 2 Vern. 68. Nanney v. Martin, 1 Chan. Ca. 27. Cleland v. Cleland, Pre. Cha. 63. Carr v. Taylor, 10 Ves. jun. 579, See also Salwey v. Salwey, Amb. 692. 580. (1) Schuyler v. Hoyle, 5 Johns. Cha. Rep. 210. So if the husband die pend- ing' a suit in equity in the name of the husband and wife for the recovery of per- sonal property in right of the wife, the right survives to her, and on her death the suit should not be revived in the name of his administrators. Vaughan et ux. v. Jilkon, 4 Hen. & Munf. 452. 223 OF CHATTELS PERSONAL [BOOK II. to the same equity as before, in favour of the wife. In case of her death it shall become the absolute property of the husband; and it has been held, even where the court detained the fund in order to enforce a provision for the wife, and made a decree for that pur- pose, and she survived her husband, yet, that on her death, his re- presentatives were entitled to it, inasmuch as it had absolutely vested in him by law. In these cases, it seems to make no differ- [224] ence whether there be any issue of the marriage or not (p). In case the husband survive the wife, her chattels real, as we have seen, shall become his absolute property (q). ButTier choses in action shall go to her representatives, excepting the arrears of rent due to her, which, as I have before stated, on her death are, by stat. 32 Hen. 8. c. 37. given to the husband. The ground of the distinction is this : The husband is in absolute possession of the chattel real during coverture, by a kind of joint-tenancy with his wife, and therefore the law will not wrest it from him, though if he had died first it would have survived to the wife, unless he had altered the possession in his lifetime : but a chose in action was never in his possession : He could acquire it only by suing in his wife's right, and as after her death he cannot as husband bring an action in her right, because they are no longer one and the same person in law, therefore he can never as such recover the posses- sion. But, in the capacity of her administrator, he may recover such things in action as became due to her before or during the coverture (r ). In chattels personal, or choses in possession of the wife in her own right, as ready money, jewels, household goods, and the like, the husband hath an immediate, absolute, and actual property de- volved to him by the marriage, which never can revest in the wife or her representatives (s). (1) [225] Such chattels also as are given to the wife" after the marriage shall belong to the husband, and he "shall be entitled to them, although they had not come to his possession at the time of her death (l).(2) Thus it hath been held, that if a legacy be left to a wife, to be paid twelve months after the testator's death, and the wife die within that period, her husband is entitled to it, for an immediate interest was vested in him, and subject to his release before the time of payment (u). (3) Such are the legal consequences of the unity of husband and wife ; but courts of equity, although they recognize the rule of (p) 1 Fonbl. 8, 89. Packer v. Wynd- Dr. & Stud. Dial. 1. cap. 7. ham, Prec. Chan. 418. Perkins v. (t) Com. Dig. Baron & Feme, E. 3. Thornton, Ambl. 503. Miles' Case, 1 Mod. 179. 1 Sid. 337. (q) Supr. 216. (u) Com. Dig. Baron & Feme, E. 3. (r) 2 Bi. Com. 435. 2 Roll. Rep. 134. (a) 2 Bl. Com. 435. 3 Bac. Abr. 65. (1) Reeve's Dom. Relations, 1. (2) Swann v. Guage, 1 Hayw. 3. (3) Reeve's Dom. Relations, 60. Dade v. Alexander, 1 Wash. Rep. 30'. CHAP. V.] WHICH CO TO THE WIDOW. 225 law which considers the husband and wife as one person, yet, in some cases, will treat their interests as distinct (u). If property be given generally to the wife, it shall vest in the husband, both in law and equity ; nor shall it be supposed to be for her separate use, though she live apart from the husband (v). (1) But where it is given to the separate use of the wife, she shall be entitled to it in equity independently of her husband (iv). And though it were al- ways clear that she was thus entitled to such property, if trustees were interposed, yet it was formerly a doubt, whether she could take it where none were appointed (x). It is now however settled in the affirmative. It has been held, that where A. devised lands in fee to his daughter, a feme covert, for her separate use, without naming trustees, it should be a trust in the husband, for it makes no difference whether the trust be created by the act of the party, or by the act of the law (y). So, where a bond was bequeathed to a wife for her sole and separate use, and no trustees nominated, it was held to be completely vested in her in equity (r).(2 ) And equity will not only raise a trust where the gift is express- ly for the separate use of the wife, but will infer it from words not technical, or from the circumstances under which the gift is made, or, as it seems, merely from the nature of the subject: Thus, where an estate was given to a husband, for the livelihood of his wife, he was considered as a trustee for her separate use (a). So where diamonds were given to the wife by the husband's father, on her marriage,. it was held, that they were a gift to her separate use, and that she was in equity entitled to them in her own right (b). And, where a foreigner made the wife a present of trinkets, though [227] not expressly for her separate use; Lord Hardwicke, C. seemed to- think they should be so construed (c). Gifts, likewise, from the husband to the wife, although the law does not allow the property to pass, shall, without prejudice to creditors, be supported in equity, whether trustees be interposed, or not (d). Thus, where the husband transferred one thousand pounds South Sea Annuities in the name of his wife, she was held entitled to them, as given to her separate use (e). (u) 1 Fonbl. 87. Brooks v. "Brooks, Dig. Baron & Feme, D. 1. Prec. Chan. 24. Moore v. Moore, 1 (z) Rolfe v. Budder, 1 Bunb. 187. Atk. 272. (a) Darley v. Darley, 3 Atk. 399. (v) Palmer v. Trevor, 1 Vern. 261. (b) Graham v. Londonderry, 3 Atk. Harvey v. Harvey, 2 Vern. 659. 393. (w) Griffith v. Hood, 2 Yes. 452. (c) 1 Fonbl. 98. Graham v. London- Ob) 1 Fonbl. 98. Harvey v. Harvey, deny, 3 Atk. 393. 1 P. Wms. 126. Burton v. Pierepoint, (d) Lucas v. Lucas, 1 Atk. 270. 2 P. Wms. 79: (e) Ibid. 271. Graham v. London- 0/) Bennet v. Davis, 2 P. Wms. 316. derrv, 3 Atk. 393. Darley v. Darley, 3 Atk. 399. Com. (1) Fitch v. Ayre, 2 Conn. Rep. 143. Barrett v. Barrett, 4 Desaus. Cha. Bep. 452. Tar her t v. Twining, 1 Yeates, 432. (2) Jamison v. Brady, 6 Serg-. S; Rawle, 466. 19 227 OF CHATTELS REAL, #c. [BOOK II. So trinkets given to the wife by the husband in his lifetime, were decided to be her separate estate (/). And where a husband allowed his wife to make profit of all butter, poultry, fruit, and other trivial matters arising from the farm, beyond what was used in the family, out of which she saved one hundred pounds, which the husband borrowed, on his death the Court of Chancery allow- ed the agreement, as a reasonable encouragement of the wife's fru- gality, and admitted her to come in as a creditor for that sum (g). (1). So where the husband agreed that the wife should take two guineas of every tenant beyond the fine paid to the husband for the renewal of a lease, this was allowed to be the wife's separate money (A). But, in all such cases, to entitle the wife to such an allowance, there must be a sufficient fund for the payment of debts (£). Nor will the court, in any case, permit a gift of the [228] whole of the husband's estate, while he is living, for that would not be in the nature of a mere provision, which is all she is entitled to (&). But, if the husband and wife live together, and he provide her with clothes and other necessaries, and she demand not but suffer him to receive the rents and profits of her separate estate, or her pin-money, or if she accept payments short of what she is entitled to on his death, neither she nor her representatives shall have an account of such separate estate farther back than a year, for she shall be presumed to have waived her right to the antecedent pro- duce (/). (2) Yet, under particular circumstances, it may be other- wise; as where the wife had three hundred pounds per annum pin-money, and the husband, for several years before his death, paid her only two hundred, but promised her that she should have the whole at last, she was held entitled to all the arrears (m). In like manner shall she be entitled to all arrears, if she lived separate from her husband (ji). But, if A. proposing to give a married woman money for her separate use, and to secure it, give her a note for a certain sum, as received, promising to be accountable, it shall be assets in the (f) Graham v. Londonderry, 3 Atk. 82. Thomas v. Bennett, ib. 340. Fow- 393. ler v. Fowler, 3 P. Wms. 355. Lord (g) Rlanning v. Style, 3 P. Wms. 339. Townshend v. Windham, 2 Vez. 7. (//) Ibid. 1 Fonbl.95. Peacock v. Monk, ib. 190. (i) iSlanningv. Style, 3 P. Wms. 339. (m) Ridout v. Lewis, 1 Atk. 269. (Je) Beard v. Beard, 3 Atk. 72. Sec also 1 Eq. Ca. Abr. 140. pi. 7. (!) Powell v. Hankey, 2 P. Wms. («) 3 Atk. 695. 1 Vez. 298. (1) So if by the laws of another state (Louisiana) the husband and wife can contract in relation to her separate property, and she lends him money, and takes his obligation for it, and he dies in Pennsylvania, the contract, according to the laws existing in such other state, may be enforced, at the suit of the wife surviv- ing, against the husband's executors in the Courts of Pennsylvania. Dougherty v. Snyder, 15 Serg. & Kawle, 84. (2) Methodist Episc. Church v. Jat/ws, 3 Johns, Cha. Hep. 77. M'GUnsifs Appeal, M Serg. & Rawle, 64. CHAP. V.] OF PARAPHERNALIA. 229 [229] hands of the executor of the husband. So, likewise, if a married woman deposit pioney in A.'s hands to be kept for her separate use, it shall be considered as part of the husband's estate (o). Sect. III. Of the wife's paraphernalia. The wife, also, may acquire a legal property in certain effects of the husband at his death, which shall survive to her over and above her jointure, or dower, and be transmissible to her personal representatives (a). Such effects are styled paraphernalia; a term which, in law, im- ports her bed, and necessary apparel, and* also such ornaments of her person as are agreeable to the rank and quality of the hus- band (bj. Pearls and jewels, whether usually worn by the wife (c), or worn only on birth-days, or other public occasions (d), are also paraphernalia. To what amount such claims shall prevail is a point which can- not admit of specific regulations. It must be left, on the particular [230] circumstances of the case, to the discretion of the court (e). In the reign of Queen Elizabeth, jewels to the value of five hun- dred marks were allowed, in the case of the wife of a viscount (f). A diamond chain, of the value of three hundred and seventy pounds, where the lady was the daughter of an earl, and wife of the king's sergeant at law, in' the reign of Charles the first, was considered as reasonable (g). Jewels and plate bought with the wife's pin-money, to the amount of five hundred pounds, which bore a small proportion to the husband's estate, were regarded in the same light (A). And Lord Hardwicke, C. held the widow of a private gentleman to be entitled to jewels worth three thousand pounds, as her paraphernalia, and that the value made no difference in the Court of Chancery {i). By the custom of London, a citi- zen's widow may retain some of her jewels as paraphernalia, but not all (k). If the husband deliver cloth to the wife for her apparel, and die before it be made, she shall have the cloth, as of this species of pro- perty (/). If the husband present his wife with jewels, for the cx- (o) Hodges v. Beverley, Bunb. 188. Sir A. Douglas, Cro. Car. 343. (a) 2 Bl. Com. 435. 3 Bac. Abr. 66. (/) 2 Leon. 166. Bindon's case, Ofi", Ex. Suppl. 61, 62. 11 Vin. Abr. Moore, 213. 178. (.»■) Lord Hastings v. Sir A. Douglas, (6) Com. Dig. Baron & Feme, F. 3. Cro. Car. 343. S. C. Jon. 332. Roll. 1 Roll. Abr. 911. Swinb. part 6. s. 7. Abr. 911. 11 Vin. Abr. 179. S. C. (c) Lord Haslings v. Sir A. Douglas, (A) Offley v. Offley, Prec. Chan. 27. Cro. Car. 343. (i) Northey v. No'rthey, 2 Atk. 77. (d) Graham v. Londonderry, 3 Atk. (k) 11 Vin. Abr. 180. Nels. Chan, 394. Rep. 179. (0 3 Bac. Abr. 66. Lord Hastings v. (/) 1 Roll. Abr. 911. 231 OF PARAPHERNALIA. [BOOK II. [231] press purpose of wearing them, they shall be esteemed mere- • ly as paraphernalia, for if they were considered as a gift to her sepa- rate use, she might dispose of them absolutely, and so defeat his intention (m). The husband, if inclined to so unhandsome an exercise of his power, may sell, or give away in his life-time, such ornaments and jewels of the wife, but he cannot dispose of them by will, any more than he can devise heir-looms from the heir(?i). In case of a deficiency of assets for payment of dehts, the widow shall not be entitled to such paraphernalia (o), not even if they were pre- sents made to her by the husband before marriage (/?); nor shall she- be so entitled where there are not assets at the time of the hus- band's death, although contingent assets should afterwards fall in (g); on the principle, that the same might not. have happened until twenty or thirty y%ars after the death of the testator, nor pos- sibly until after the death of the widow, when the end and design of the widow's wearing her bona paraphernalia in memory of her husband could not have been answered, and therefore it is reason- able that in such case it should be reduced to a certainty, namel}*, that if there should not be assets real or personal at the testator's death, or at least when the jewels are applied in the payment of debts, then the jewels shall be liable. But such ornaments, though subject to the debts, shall be pre- ferred to the legacies of the husband, and the general rules of mar- shalling 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 (s). ■ [232] So where a husband pledged a diamond necklace of the wife, as a collateral security for money borrowed on a bond, and author- ised 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 (t). If a woman by marriage articles agree to claim such part only ot the effects of the husband as he shall give her by his will, she is excluded from her paraphernalia (u). But her necessary apparel (m) Darley v. Darley, 3 Atk. 398. (r) 2 P. Wms. 80. note 1. Tipping (n) 2 Bl. Com. 436. Graham v. Lon- v. Tipping, I P. Wms. 729. Tynt v. donderry, 3 Atk. 394. Tynt, 2 P. Wms. 542. Lord Towns- Co) 2151. Com. 436. Tipping v. Tip- hend v. Windham, 2 Vez. 7. Snelson ping, 1 P. Wms. 730. Tynt v. Tynt, v. Corbet, 3 Atk. 369. 2 P. Wms. 544. Snelson v. Corbet, 3 (.v) Graham v. Londonderry, 3 Atk. Atk. 369. Bindon's case, Moore, 216. 395. 3 Bro. P. C 187. (/) Ibid. 3 Atk. $95. (p) Ridout v. Karl bf Plymouth, 2 (u) 3 Bac, Abr. 66. • Com. Dig. Ba- Atk. 104. ron and I'cmc. F. 3. Comely v. Corac- (-7) Burton v. l'ierepoint, 2 P. Wms lv, 2 Vern. 49. S. C 83. SO. CHAP. V.] OF PARAPHERNALIA. 232 shall, in all cases, be protected, as decency and humanity require, even against the claims of creditors (v). (1) 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 pa- raphernalia, her executor shall have no title to demand them (iv). (v) 2 Bl. Com. 436. 2 Roll. Abr. 911. (w) Clarges v. Albemarle, 2 Vern. 246. (1) By the 3d section of the Act of 10th April, 1828, entitled "An Act for the relief of the Poor," (Pamph. Laws, 286,) 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, viz. 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 ne- cessary bedding, one cow, two hogs, six sheep, with the wool thereof, and the yarn and cloth manufactured therefrom, and feed for the said cow, hogs, and sheep from the first of November 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 ) CHAP. 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 ac- companied with the implied trust, that, if the donor live, the pro- perty shall revert to him, since it is given only in contempla- tion (a). (1) A party's wife is as capable of such gift as any other person (b). (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 (d). (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 order (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) 2 Bl. Com. 514. 11 Vin. Abr. (d) Walter v. Hodge, 2 Swans. Rep. 176. Hedges v. Hedges, Prec. in Chan. 92. 269. Drury v. Smith, 1 P. Wms. 404. (e) Ward v. Turner, 2 Vez. 431. (Z») Lawson v. Lawson, 1 P. Wms. Tate v. Hilbert, 2 Ves.jun. 111. Drun 441. Miller v. Miller, 3 P. Wms. 356. v. Smith, 1 P. Wms. 404. Lawson v. (c) Shanley v. Harvey, 2 Eden's Rep. Lawson, 441. 126. (1) Wells v. Tucker, 3 Binn. 370. (2) So a delivery to the wife of the donor, for the use of a third person, is a sufficient delivery to make a good donatio mortis causa. . Wells v. Thicker, 3 Binn. 366. (3) To this principle is to be referred the decision in Windows v. Mitchell, 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 causa mortis, and other cases of parol gifts; in all such case% the only question is, whe- ther the donor has parted with his dominion over the property or not; and hence if the possession pass from the donor to the donee in his presence, and with his consent, whether it lie delivered by his hand or only by his direction is immate- rial. M'Dowell v. Murdock, 1 Nott & M'Cord's Rep. 237. CHAP. VI.] OF A DONATION MORTIS CAUSA. 234 prevail. Thus, a ship has been held to he delivered by the deli- very of a bill of sale defeasible on the donor's recovery. And in a recent case, the Lord Chancellor seemed to be of opinion, that such donation might be effected by deed or writing (e). The delivery also of the key of a warehouse, in wbich goods of bulk were deposited, has been determined to be a valid delive- ry 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 (g). 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 (A). So a bond (1) given in prospect of death, although a chose in ac- tion, is a good donation mortis causa, for a property is conveyed by the delivery (e). Such, likewise, have been the decisions in [235] regard to bank notes (k). In all these cases, the donor de- livers 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 destruction of which destroys the demand ; whereas the bills and notes are only evidence of the contract, (m). Nor shall a delivery merely symbolical have such operation. As, where on a deed of gift not to take place till after the gran- tor's death, a sixpence was delivered by way of putting the gran- tee in possession ; the ecclesiastical court held such delivery to be insufficient for the purpose, and pronounced for the instrument as a will (n). 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 containing it, and declared it to te) Tate v. Hilbert, 2 Ves. jun. 120. Miller v. Miller, 3 P. Wms. 356. Hill (/) Ward v. Turner, 2 Vez. 434. v. Chapman, 2 Bro. Ch. Rep. 612. \g) Jones v. Selby, Prec. in Chaji. (/) Miller v. Miller, 3 P. Wms. 356. 300. Ward v. Turner, 2 Vez. 441. Ward v. Turner, 2 Vez. 442. Tate v. Vide also Tate v. Hilbert, 2 Ves, jun. Hilbert, 4 Bro. Ch. Rep. 291. 116. (m) Ward v. Turner, 2 Vez. 442. (ft) Ward v. Turner, 2 Vez. 443. In) Ibid. 2 Vez. 440. (i) Sudgrove v. Baily, 3 Atk. 214. (o) Ibid. 2 Vez. 431. Ward v. Turner, 2 Vez. 441. Blount (p) Ibid. 2 Vez. 444. Tate v. Hil- v. Burrow, 4 Bro. Ch. Rep. 72. bert, 2 Ves. jun. 120. (/>•) Drury v. Smith, 1 P. Wms. 404. (1) Welk 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, Wright v. Wright, 1 Cowen's Rep. 598. 235 OF A DONATION MORTIS CAUSA. [BOOK II. be his intention that they should have such property upon his death, and then returned it to the chest and kept the keys in his own' possession, never having made an actual delivery thereof to the parties or to trustees for them (g). 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 effect only on the death of the donor (r). Therefore, the gift of a check on a banker, " Pay to self or bearer, two hundred pounds," and also of a promissory note, being absolute and immediate, was held clearly on that ground to be no donatio mortis causa (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 donation, 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 (w). Whether the delivery of a mortgage deed will amount to such gift of the money due on the security, seems to have been an un- decided point (V), until very lately, but it has been recently held, that a mortgage, or a bond given as a collateral security for money due on mortgage, cannot be made the subject of & donatio mortis causa (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 (x). But the gift, however regularly made, shall not prevail against credi- tors (y). Such ?s the interest which the executor, the heir, the successor, the devisee, the remainder-man, the widow, and the donee mortis causa of the testator, respectively take in the personal effects. (g) Bunn v. Markham, Holt's Rep. 352. 7 Taunt. Rep. 224. O) Tate v. Hilbert, 2 Ves. jun. 120. (s) Tate v. Hilbert, 2 Ves. pin. 111. 4 Bro. Ch. Rep. 286, S. C. (/) Lawson v. Lawson, 1 P. Wms. 441. etvid. Tate v. Hilbert, 2 Ves. jun. 111. (u) Ward v. Turner, 2 Vez. 436. 442. (u) Vid. 3 P. Wms. 358. in note. S. C. 2 Vez. 436. Hassell v. Tynte, Ambl. 318. 11 Vin. Abr. 178. Lawson v. Lawson, 1 P. Wms. 441. Miller v. Miller, 3 P. Wms. 357. (w) Duffield v. Elwes, 1 Sim. & Stu. 239. O) 2 Bl. Com. 514. Tate v. Hilbert, 2 Ves. jun. 120. (y) 2 Bl. Com. 514. Tate v. Hilbert, 2 Ves. jun. 120. [ 23** ] chap. vii. HOW EFFECTS WHICH AN EXECUTOR, TAKES IN THAT CHARAC- TER 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 speci- fic coin must of necessity be altered ; for when it is intermixed with the executor's own money, it is incapable of being distin- guished from it, although he shall be accountable for its value ; and therefore a creditor of the testator cannot by fieri facias on a judg- ment recovered against the executor, take such money as cle bonis testatoris in execution (a). So, if the testator died indebted to the executor, or the executor not having ready money of the tes- tator, or for any other good reason, shall pay a debt of the testa- tor's with his own money, he may elect to take any specific chat- tel as a compensation ; and if it be not more than adequate, the chattel by such election shall become his own (b) : (1) consequent- ly if by such election he acquire the absolute ownership of the chat- tel, and die, his executor may defend 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 execu- tor, such profits only as exceed the yearly value shall, as it has been already stated, be held to be assets : it therefore follows, (a) Off. Ex. 89. 185. infr. (6) Off. Ex. 89. Dy. 187 b. Plowd. (.c) Plowd. 185, (1) Livingston v. Newkirk, 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 appraisement. Hall v. Griffith, 2 Harr. & Johns. 483. Hasletfs Mm. v. Glenn, 7 Harr. &. Johns. 17. (2) In Pennsylvania, since the Act of 16th Jlpril, 1794, (Purd. Dig. 372. 3 Dull. Laws, 521. 3 Sm. Laws, 143.) an executoE or administrator cannot retain his whole debt against creditors in equal degree when there is a deficiency of assets; he is only entitled to retain prn rata. Ex parte Meason, 5 Rinn. Rep. 157. 20 239 EFFECTS OF EXECUTORS. [BOOK II. that if the executor pay the rent out of his own purse, the profits to the same amount shall be his (d). . There are likewise other means of thus changing the property : as if the testator's goods be sold under a fieri facias, the executor, as well as any other per- son, may buy such goods of the sheriff; and in case he does so, the property, which was vested in him as executor, shall be turned in- to a property in jure proprio (e). If the executor among the testator's goods find, and take some, which were not his, and the owner recover damages for them in [240] an action of trespass or trover, in this, as in all similar cases, the goods shall become the trespasser's property, because he has paid for them (f). If the grantee of the next presentation to a living die after the church becomes void, and before presentation, his executor shall have the benefit of presenting. Nor shall it be regarded as assets, since it is incapable of being sold (g). But if in that case a stran- ger shall present, and procure his clerk to be admitted, damages recovered by the grantee's executor in a quare impedit shall be assets (h). {d) Off. Ex. 90, 91 * (g) Off. Ex. 73. Shep, Tourhsi (f) Ibid. 91. 496. (/) Ibid. (fi) Off. Ex. 73. [ 241 ] CHAP. VIII. OF THE INTEREST OF AN ADMINISTRATOR, GENERAL AND SPECIAL OF A MARRIED WOMAN EXECUTRIX OR ADMINISTRATRIX OF SE- VERAL EXECUTORS OR ADMINISTRATORS OF THE EXECUTOR OF AN EXECUTOR OF AN ADMINISTRATOR DE BONIS NON OF AN EXECUTOR DE SON TORT. As an administrator has the office and quality of an executor, the interest of the one in the property of the deceased is in all respects the same as that of the other («). The interest of special or limited administrators is also, during its continuance, the same as that of an executor {b); but they are not vested (as will be shewn in its proper place) with the same powers and authority as belong to him (c). If a married woman be an executrix, or administratrix, the hus- band has a joint interest with her in the effects of the deceased ; such as devolves the whole administration upon him, and enables him to act in it to all purposes, with or without her assent (d). (1) [242] Therefore it is held that he may surrender or dispose of a term which was vested in her in that capacity, and such surrender or disposition shall be binding upon her (e). So a gift, or release of any part of the deceased's personal property by the husband alone shall be equally available (,/') ; but the wife has no right to administer without the husband : and such acts as have been just mentioned, if performed by her without his concurrence, will be of no validity (g). In case of the husband's death, the interest never hating been divested, shall survive to her ; but if she die, it shall not survive to the husband, inasmuch as it belonged to him merely in her right, as representative of the deceased (h). And although, generally speaking, a feme covert cannot make a will without the assent of her husband, yet without his assent she may (a) Off. Ex. 259. Off. Ex. Suppl. 48. Ankerslcin v. Clarke, 4 Term Rep. 617. 5 Co. 83. Blackboroug-h v. Davis, 1 (e) Thrustput v. Coppin, Bl. Rep, P. Wins. 43. vid. Hudson v. Hudson, 1 801. Atk. 460. and Jacomb v. Harwood, 2 (/) Yard v. Ellard, Salk. 117. Off Vez. 267. and infr. Ex. 208. (b) 2 Fonbl. 387. ' (g) Wankford v. Wankford, Salk. (r) 11 Yin. Abr. 104, 105. 3 Bac. 306. Off. Ex. 207, 208. Com. Dig-. Abr. 13, 14. Admon. D. vid. supra, 9. (d) Yardv. Elaud, Ld. llaym. 369. , (h) Off. Ex. 208. Com. Dig-. Baron Com. Dig - . Admon. I). Wankford v. and Feme, F. 1. Dy. 331. Wankford, 1 Salk. 306. Off. Ex. 199. (1) Lindsay v. Lindsay** JLdtn., 1 Desaus. Rep. 153. 242 MARRIED WOMAN EXECUTRIX. [BOOK II. make a will, and continue the executorship in respect to the pro- perty thus vested in her in auter droit [i). Hence if the wife of A. have debts due to her in her own right, and be also executrix to B., and make a will without her husband's assent, appointing an executor, the will, in respect to the goods and credits which be- longed to her as the executrix of B., shall be valid, and her exe- cutor may prove it in opposition to the husband. But as to the debts due to her in her private capacity, the will shall be void, and [243] the husband may take administration : she shall be consider- ed as dying testate in regard to the property of which she was pos- sessed as executrix, and as intestate in regard to that to which she was entitled in her own right [k). If there be several executors or administrators, they are regard- ed in the light of an individual person* They have a joint and en- tire interest in the testator's effects, which is incapable of being di- vided (/), and in case of death, such interest shall vest in the sur- vivor (m). So also an executor of an executor, in however remote a series, has the same interest in the goods of the first testator, as the first and immediate executor (n). An administrator de bonis non has also the same interest in such of the effects as remain unadministered, as was vested in the exe- cutor, or antecedent administrator. An executor de son tort has no interest whatever in the proper- ty, and therefore can maintain no action in right of the deceas- ed(o). (1) ... [244], But ii the executor de son tort take out administration, it shall to most purposes qualify the wrong, and vest the same in- terest in him as in other administrators, and consequently such as shall have relation to the time of the intestate's death (p). (2) (t) 2 Bl. Com. 408. Off. Ex. 199. 259. 11 Yin. Abr. 240. 4 Burn. Eccl. 3 Bac. Abr. 10. Off. Ex. Suppl. 20. . L. 273. Shep. Touchst. 464. (k) Off. Ex. 202. - (o) 11 Vin. Abr. 215. Parker v. Kitt, (/) Com. Dig. Admon. B. 12. Dv. 12 Mod. 471, 472. 2 Bl. Com. 507. 23 b. 3 Bac. Abr. 30. Jacomb v. Har- (p) 11 Vin. Abr. 214— 217. Parker wood, 2 Vez. 267. and vid. infr. v. Kitt, 12 Mod. 471, 472. Kenrick v. (m) 6 Co. 36. Dy. 160. Eyre v. Burges, Moore 126. Pyne v. Woolland, Countess of Shaftsbury, 2 P.Wms. 121. 2 Ventr. 179. 3 Bac. Abr. 25, 26. Cur- vid. supra, 37. tis v. Vernon, 3 Term Rep. 590. Ibid. (7i) Com. Dig. Admon. G. Off. Ex. 2 H. Bl. 26. £1) Lee v. Wright, 1 Rawle's Rep. 151. Nor be cited to account before the Register. Peeble's Appeal,. \5 Serg. &. Rawle, 41. (2) Shillaber v. Wyman, Andreiv v. Gallison, 15 Mass. Rep. 322. 325. Rattoon v. Ovcrackcr, 8 Johns', Rep. 97. 2d edit. Contra, Green v. Dcwit, 1 Root. 183. [ 245 ] BOOK III. OP 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. The subject now leads me to consider the powers and duties of an executor, or administrator (a). And first he is to bury the deceased according to his rank and circumstances (b). It has been already stated, that an executor, before probate, may perform this pious office (c); and that the per- formance of it by a stranger shall not constitute him an executor de son tort (d). The expences attending it shall be allowed in preference to all debts and charges (e) ; (1) but the executor is not justified in incurring such as are extravagant (fj. (2) Nor as (a) 8 Co. 136. (e) 11 Vin. Abr. 432. Br. Tit. Exe- (6) Offley v. Offley, Free. Chan. 27. cutor, pi. 172. Dr. and Stud. Dial. 2. Com. Dig. Admon. C. - c. 10. •, (c) Supr. 46. (/) 2 Bl. Com. 508. (d) Ibid. 40. (1) By the 14th section of the Act of 19th April, 1794, (Purd. Dig-. 376. 3 Sm. Laws, 132.) executors and administrators are to pay, so far as they have assets, the debts in the following- order; first, physic, funeral expenses, and servants' wages; second, rents, Sec. (2) M'GUnsexfs Appeal, 14 Serg. Sc Rawle, 64. Meiz's Appeal, 11 Serg. & Rawle, 205. And the Court have refused to allow the administrator a sum of money charged against the estate of the intestate for mourning for the family, »s against those of the next of kin who received no part of the mourning. Flint ham* a Appeal, 11 Serg. &. Rawle, 16. See also Johnson v. Baker, 2 Carr. fc 246 ' OF THE INVENTORY. [BOOK III. [246] against creditors shall he be warranted in more than are ab- solutely necessary. In strictness, no funeral expences are allow- ed in the case of an insolvent estate, except for the coffin, shroud, and ringing the bell, the fees of the parson, clerk, sexton, and bearers; but not for the pall, or ornaments (g). Still less shall charges for feasts and entertainments be admitted; and indeed m any case they seem incongruous to so mournful an occasion (A). If the executor neglect the observance of these rules he will be chargeable with a species of devastation or waste of the testator's property, which shall be prejudicial only to himself, and not to the creditors, or legatees (e). The executor must also prove the will; or, in case of intestacy, the next of kin must take out administration, within the six months limited by the statute, provided they respectively act (&). A memorial and registry are also required by different acts of parliament (/) of all wills which affect any lands or tenements in the county of York, or Middlesex, excepting copyhold estates, leases at a rack-jent, or leases not exceeding twenty-one years, [247] where the actual possession accompanies the lease, and cham- bers in Serjeant's Inn, the Inns of Courts, and Inns of Chancery. Sect. II. Of the making of an inventory by the executor, or adminis- trator. An executor, or administrator, before he administers, except by the performance of such acts as cannot be deferred, as disposing of perishable articles (a), is likewise bound, pursuant to the stat. 21 H. 8. c. 5. (1) passed in affirmance of the ecclesiastical law, to make («■) Shilleg's case, Salk. 296. L. of (k) Vid. supr. 43. 65. 96. Ni. Pri. 143. 4 Burn. Eccl. L. 301. Off. (/) Stat. 2 and 3 Ann. c. 4. 6 Ann. Ex. 174. Greenside v. Benson, 3 Atk. c. 35. 7 Ann. c. 20. 8 Geo. 2. c. 6. vid. 249. 3 Bac. Abr. 85. 2 Bl. Com. 343. (A) Off. Ex. 131. («) 4 Bum. Eccl. L. 250. Swinb. (i). 2 Bl. C) Ex relat. (/) Griffiths v. Bennett, 2 Phill. 364. (g) Phillips v. Bignell, 1 Phill. Rep. (to) Stat. 21 Hen. 8. c. 5. Archbish- 239. Mvddleton v. Rushout, ibid, op of Canterbury v. Wells, 1 Salk. 251. 224. (n) 4 Burn. Eccl. L. 252. Orr v. (r) 4 Burn. Eccl. L. 266. Kaines, 2 Ves. 193. (s) Reeves v. Freeling, 2 Phill. 56. furnished within one month, and the administrator must settle his accounts with- in one year. And the bond of the administrator is forfeited unless there be a literal compliance with the words of the act. Comm. v. Bryan, 8 Serg. & Rawle, 128. Campbell, Register, &c. v. Jdcork, stated 8 Serg. &. Rawle, 132. CHAP. I.] OF THE INVENTORY. 250 It is, however, the part of a prudent person, who sustains this office, in every case to see that the effects are carefully appraised, and reduced into an inventory, not only because he may be cited hereafter to produce it, but also because a distinct and accurate knowledge of the fund is necessary, as will more clearly appear from the sequel of this work, to direct him in the safe execution of the trust. Indeed, if a party administer without making an [251] inventory, the law will suppose him to have assets for the payment of all the debts and legacies, unless he repel the presump- • tion ; (1) whereas if he make an inventory, he shall not be pre- sumed to have more effects of the deceased than are comprised within it, and the proof of any omission is then thrown on the opposite party (s). But it is not necessary, according -to the modern, practice, that the appraisement and inventory should be made exactly pursuant to the letter of the statute. If the effects appear to have been ap- praised fairly, and by persons of repute, and reduced into an in- ventory, such inventory shall obtain credence, unless it be falsified by the adverse party (7). And an inventory may be dispensed with altogether, if it shall appear clearly to the court to be unne- cessary (u). As, where A. died possessed of a large personal es- tate, and appointed his eldest son executor; and, among other be- quests, gave his second son two thousand pounds, to be paid at three several payments : the second son cited his elder brother be- fore the judge of the prerogative court where the will was proved, in order to compel him to bring in an inventory; but it appearing that the two first payments had been made, and the third had been tendered, the judge decided, that there was no need of an inven- [252] tory at the instance of the plaintiff; and the sentence was affirmed by the delegates, first on appeal, and afterwards on a com- mission of review (v). On the other hand, the judge will, in special cases, at the in- stance of a party interested, decree an inventory to be exhibited by the executor, or administrator, before the issuing of the probate, or letters of administration, under seal ; and such inventory must also be substantiated by a special oath (iv~). Also, under particular circumstances, before the granting of the probate, or letters of ad- ministration, the court will, on the petition of a party interested, instead of requiring such inventory, issue a commission for the ap- praisement and valuation of the goods, rights, and credits, and in- spection of the bonds, leases, and other writings relative to the per- sonal estate of the deceased, at bis house, or elsewhere, ofi the day (s) 4 Burn. Eccl. L. 265, 266. Swinb. (v) Boone's case, Raym. 470. p. 6. s. 6. (w) 4 Eurn. Eccl. L. 266. 1 Ought. (/) Ibid. 1 Ought. 344. 344. (u) Ibid. 265. (1) Leeke's Jidm. v. Beanai, 3 Harr. &. Johns. 373, rontrn. 21 252 OF THE INVENTORY. [BOOK III. specified, with such continuation of time and place as may be ne- cessary (#). In cases of this nature there also usually issues a monition to the other party in special, and to all others in general, with whom any of such effects of the deceased remain, requiring them to ex- hibit the same to the appraisers under such commission, at the time [253] and place appointed for its execution, in order that they may be appraised and inserted in the inventory (y). And on such commission being duly executed, the inventory shall be brought in and exhibited, signed by the hands of the ap- praisers, or two of them at the least, but without the oath of the party (*). In such case, also, an inventory is often required on the execu- tor's or administrator's oath, of such goods of the deceased as have been already disposed of (a). But after an inventory is ex- hibited, a creditor cannot impeach it in the ecclesiastical court ; for the stat. 21 Hen. 8. which requires an executor or administrator to make an inventory, enjoins him only to deliver it on oath into the keeping of the ordinary ; and the ordinary is bound to receive the same on its being so presented (5). Yet a creditor may state objections to the inventory, which the party is bound to answer upon oath; but no evidence is admissible to contradict the answer. If the creditor be still dissatisfied, he may have recourse to equity for more effectual relief (c). But where a creditor gave in an allegation, pleading an omission in the inventory, to which the executrix put in a declaration instead of a specific answer, the court held that such creditor was entitled to have a constat of the assets that had come to her hands; and ad- mitted the allegation (d). [254] By the custom of London, if any man, or woman, free of the city, die leaving an orphan within age, and not married, the mayor and aldermen may compel the executor, or administra- tor, to appear at a court of orphanage, and exhibit an inventory. And in case any debt appear to be outstanding, to give security to the chamberlain to render upon oath a true account of the same when received; and on his refusal may commit him till compli- ance. Nor shall his having given security to the spiritual court, as above-mentioned, release him from the obligation of the cus- tom (e). (.r) 4 Burn. Eccl. L. 266. 1 Ought, v. Ovington, Burr. 1922. fiirtton v. 344. Parker, 8 Mod. 168. 2 Fonbl. 418. (y) 4 Burn. Eccl. L. 266. 1 Ought, note (d). 344, 345. ( C ) 2 Fonb. 418. note (d). (z) 4 Burn. Eccl. L. 267. 1 Ought. (d) Barclay v. Marshall, 2 Phill. Rep. .345. 188. (a) 4 Burn. Eccl. L. 267. 1 Ought. (e) Com. Dig. Guardian, G. 1. 1 345. Roll. Abr. 550. Luck's case, Hob. 247. (h) 4 Burn. Eccl. L. 267. Catchside CHAP. 1.] OF COLLECTING THE EFFECTS. 254 Sect. III. Of his collecting the effects. The next duty of the executor, or administrator, is to collect all the goods and chattels so inventoried. For that purpose, the law invests hiin with large powers, and authority. As representative of the deceased, we have seen, he has the same property in the effects as the principal had when living; he has also the same rc- [255] medics to recover them («). Within a convenient time af- ter the testator's death, or the grant of administration, he has a right to enter the house descended to the heir, In order to remove the goods {b), provided he do so without violence; as, if the door be open, or at least the key be in the door; and, although the door of entrance into the hall and parlour be open, he cannot therefore justify forcing the door of any chamber to take the goods contain- ed in it; but is empowered to take those only which are in such rooms as are unlocked, or in the door of which he shall find the key. He has, also, a right to take deeds and other writings rela- tive to the personal estate out of a chest in the house, if it be un- locked, or the key be in it; but he has no right to break open even a chest. If he cannot take possession of the effects without force, he must desist, and resort to his action (c). On the other hand, if the executor or administrator on his part be remiss in removing the goods within a reasonable time, the heir may distrain them as damage feasant (d). The executor has also a right, on producing the probate at the bank, and causing so much. of it as relates to the testator's interests [256] in the several stocks to be entered in the proper offices ac- cording to the acts of parliament which regulate this species of pro- perty, to have the same transferred from the testator's name into liis own, or to such person as he shall appoint; and even in the case Of a specific bequest of stock, the executor is entitled to call upon the bank for a transfer, and on their refusal, they are subject to an action at his suit. It is personal property, and subject to all its incidents (e). The administrator has the same right on produc- ing the letters of administration. The executor or administrator has likewise authority to sell or dispose of the deceased's effects, and convert them into ready mo- ney, to answer the purposes of the trust (f). (a) 2 Bl. Com. 510. Ilarg. Co. Lit. (e) See stat. 5 Wm. & Mary, c. 20. '209. The Bank of England v. Moffat, 3 Bro. (6) Vid. Harg. Co. Litt. 56 b.; and Cli. Hep. 260. Vid. also Oougl. 524. supr. 46. (/) 2 Bl. Com. 510. 11 Vin. Abr. (c) Off.Ex. 92,93. 11 Yin. Abr. 267. 270. Humble v. Bill, 2 Vern. 445. \ Shep. Touchst. 470. Bro. P. C. 71. Paget v. Hosk'ms, Gilb. (d) Off. Ex. 91. Plowd. 280, 281. Rep. Eq. 11.1. Nugent v. Gifford, 1 vid. Stodden v. Harvey, Cro. J ac. 204. Atk. 463. WliaWv.*Eooth, 4 Term. and Harg. Co. Lit. 56 b liep. 625. in note • 256 OF COLLECTING THE EFFECTS. [BOOK III. He has power to sell (g), or, as it has been held, to mortgage terms of years, or assign mortgaged terms (h), and to dispose of any of the effects, although, as it seems, specifically given by the will (£), and even in satisfaction of his own private debt (k). (1) Nor when he has aliened the assets can a creditor follow them at law; (2) for the demand of a creditor is only a personal demand [257] against the executor in respect of the assets come to his hands, but no lien on the assets. Equity will, indeed, follow as- sets on voluntary alienations by collusion with the executor ; but if the alienation or pledge be for a valuable consideration, unless fraud be proved, neither law nor equity will defeat it; (3) for a pur- chaser from an executor has no means of knowing the debts of the testator; and if a court of equity on the subsequent appearance of debts would controul such purchasers, all dealings with executors would be dangerous (/). An executor is entitled to recover by action, or other legal re- medies, or by suit in equity, whatever pertains to such personal estate (m). He is also empowered to redeem such chattels as the deceased may have left in pledge (n). Temporary administrators, as an administrator durante absenlio, or durante minoritate, or pendente lite, have not, as we shall hereafter see, so unlimited an authority to sell or alienate the tes- tator's property. They may dispose bona perittrra from necessity, and to prevent an irreparable loss to the estate; and on the same principle they may maintain actions to recover the debts of the de- ceased (o). But where the widow of an intestate delivered goods back to a creditor in satisfaction of his demand, in an action of trover by the lawful administrator, it was held, that such creditor could not protect his possession, upon the ground of such delivery having been made by one, who had by such intermeddling made herself executrix de son tort ; no fact appearing to give colour to (g) Ewer v. Corbett, 2 P. Wms. 148. comb v. Ilarwood, 2 Vez. 265. Ewer Burting v. Stonard, ib. 150. Barnard, v. Corbett, 2 P. Wms. 149. note 2. vid. 78. Elliot v. Merriman, 2 Atk. 41. Ja- 2 Bro. Ch. Rep. 431. comb v. Ilarwood, 2 Vez. 265. (/) Nugent v. Gifford, 1 Atk. 46.3. (h) Nugent v. Gifford, 1 Atk. 463 . Mead v. Ld. Orrery, 3 Atk. 237. Crane Mead v. Ld. Orrery, 3 Atk. 235. sed v. Drake, 2 Vern. 616. M'Leod v. vid. Bonny v. Ridgard, cited 2 Bro. Ch. Drummond, 14 Ves. jun. 353.; and S. C. Rep. 438. 17 Ves. jun. 152. (i) Ewer v. Corbett, 2 P. Wms. 148. (•/») Vid. supr. 157. vid. 2 Bro. Ch. Rep. 431. . (n) Vid. supr. 164. (k) Nugent v. Gifford, 1 Atk. 463. (o) Vid. supr. 404. and Walker v. Mead v. Ld. Orrery, 3 Atk. 235. Ja- Woollaston, 2 P. Wms. 584. (1) Contra, Graff v. Castle?nan et at., 5 Rand. Rep. 195. Dodaon v. Simpson, 2 Rand. Rep. 294. And see Field v. Schieffelin, 7 Johns. Rep. 157. Petrie v. Clark, 11 Serg. & Rawle, 377. (2) 11 Serg. & Rawle, 385. (3) Knight x^Yarborot'gb, 4 Rand. Rep. 567. Sutherland \. Brush, 7 Johns. Cha. Rep. 17. # # " CHAP. II.] OF DEBTS DUE TO THE CROWN. 258 her having acted in that respect in the character of executrix, ex- cept the single act of wrong complained of, in which the defendant participated (p). (p) Mountford v. Gibson, 4 East. 441. [258] CHAP. II. OF HIS PAYMENT OF DEBTS IN THEIR LEGAL ORDEH. Sect. I. Of debts due to the crown by record, or specialty. Of certain debts by particular statutes. The disposition of the property when thus collected, and which constitutes assets, is next to be discussed. And, first,- 1 shall treat of the application of the assets in the order prescribed by law. He must, in the first place, pay all funeral charges, and the ex- pences of proving the will, or of taking out letters of administra- tion (a). Secondly, he must pay the debts of the deceased, and in such payment he must be careful to observe the rules of priority; for, if he pay those of a lower degree first, on a deficiency of as- sets he must answer those of a higher out of his own estate (b). (I) (a) 2B1. Com. 511. Off. Ex. 130, 131. (b) 2 Bl.Com. 511. Shep. Touchst. (1) "All debts owing - by any person within this state, at the time of his or her decease, shall be paid by his or her executors or administrators, so far as they have assets, in the manner and order following - ; first, physic, funeral expenses, and servants' wages; second, rents, not exceeding - one year; third, judgments; fourth, recognizances; fifth, bonds and specialties; and all other debts shall be paid without regard to the quality of the same, except debts due to the Com- monwealth, which shall be last paid; but if there shall not be assets enough to discharge and pay such bond and specialties and other debts, then, and in such case, the same shall be averaged, and the said creditors paid prorata, or an equal sum and proportion in the pound, so far as the assets will extend, first paying the bonds and specialties aforesaid; for which purpose the executors or administra- tors of such deceased person shall or may apply to the Orphans' Court of the proper county, which is hereby empowered to appoint three or more auditors, to settle and adjust the rates and proportions of the remaining assets due and pay- able to such respective creditors accordingly: Provided, nevertheless, That no cre- ditor who shall neglect to exhibit his account to the executors or administrators, within twelve months after public notice given in one or more of the public news- papers published in this state, and continued in such public newspapers for four weeks, shall be entitled to receive any dividend of such remainining - assets." Act of 19th April, 179 i. s. 14. (Purd. Dig. 376. 3 Dall. Laws, 521. 3 Sm. Laws, 143.') Under this act it has been decided, that the order of pa\ ment of the debts due 258 OF DEBTS DUE TO THE CROWN. [BOOK III. But if there be a sufficiency of assets for payment of debts, he may pay simple contract debts not bearing interest before specialty debts bearing interest, if not objected to by the specialty creditors, and the legatees are not at liberty to complain of the order of payment [259] (b). The more clearly to trace the order which the law prescribes for the payment of debts, and which the executor, or administrator, is thus bound at his peril to observe, it is necessary to consider them under a variety of classes. They are distinguished, then, first, into debts due to the crown by record, or specialty: secondly, certain debts created by parti- cular statutes: thirdly, debts of record in general: fourthly, debts due by specialty: fifthly, debts due by simple contract, first, to the king; and, secondly, to a subject. To all other debts, of whatever nature, as well of a prior as of a subsequent date, such as are due to the crown by record or specialty claim the precedence (c). (1) (i) Turner v. Turner, 1 Jac. &, Walk. Of]'. Ex. 133. Littleton v. Hibbins, Cro. Rep. 39. Eliz. 793. Com. Dig-. Admon. C. 2. Er- (c) 11 Vin. Abr. 295. 5 Bac. Abr. 79. by v. Erby, 1 Salk/80. by a decedent is according' to tbe nature of the debt at the time of his decease, which nature is not changed by obtaining' a judgment against his executor or ad- ministrator. JVootcring v. Stewards Mm. 2 Ycates, 483. JPrevost v. Nicholk, 4 Yeates, 479. Scott v. Ramsay, 1 Binn. 221. " Physic" includes medical services rendered to the decedent, or his family, and for which in his lifetime he was liable, and is not confined to those rendered in the last illness of the decedent himself. Bond's Case, Orph. Ct. Phila. Count)'. MS. Ilallowcll, Prest. diss. Rouse v. Ebontz's ^m.-Sup. Court MS. 1828. Lan- caster. Under the description of " Servants," those persons only are included who form part of a family, and are employed to assist in the economy of the house, or its appurtenances, and not labourers or workmen. Ex parte Meason, 5 Binn. 167. A bar-keeper in a tavern has been held to be a " servant" within the meaning of the act. Bonifuce v. Scott, 3 Serg. & liawle, 351. (1) The fijth section of Act of Congress of March 3d, 1797, {TngersoWs Abr. 561. Pamph. Laws, vol. 3. p. 423.) entitled, " An act to provide more effectually for the settlement of accounts between the United States and receivers of public money," provides, " that where any revenue officer, or other person hereafter becoming indebted to the United States by bond or otherwise, shall become in- solvent, or w'here the estate of any deceased debtor in the hands of executors or administrators shall be insufficient to pay all the debts due to the l T ni(cd States, the debt due to the United Stales shall be first satisfied." And the duty act of the 2d March, 1799, c. 128. s. 65. (lag. Abr. 156. Pamph. Laws, vol. 4. p. 386.) pro- vides, " that in all cases of insolvency, or where the estate in the hands of execu- tors or administrators or assignees shall be insufficient to pay all the debts due from the deceased, the debt or debts due the United States on any such bond, or bonds, shall be lir,t satisfied ; and any executor, administrator, or assignee, or other person, who shall pay any such debt due by the person or estate for w horn or for which they arc acting, previous to the debt or debts due to the United States from such person Or estate being first duly satisfied and paid, shall become an- swerable, in their own person or estate, for the debt or debts so due to the United States, or so much thereof as may remain due and unpaid, in the proper Court having cognizance thereof" And, " that if the principal in any- bond which shall be given to the United Sttties for duties on goods, wares, or merchandize import CHAP. II.] OF DEBTS DUE TO THE CROWX. 259 Debts secured to the king by specialty are of the same degree with those of record: for by the stat. 33 //. 8. c. 39. it is enacted, that all obligations and specialties taken to the use of the king, shall be of the same nature as a statute staple (d). The king, by his prerogative, is to be preferred before other creditors, inasmuch as the law regards the royal revenue as of more importance than [260] any private interest (e). Therefore, an executor,- whose testa- tor was indebted by matter of record to the king, may plead to an action brought by a judgment creditor, or any other creditor, that the testator died thus indebted to the crown, and hath not left assets more than to satisfy the same, and such plea shall be valid; but the defendant must shew the recdrd in certain (/). So if the cre- ditor proceed to sue out execution on a statute-merchant, or staple, the executor, on setting forth this matter, will be relieved on an (d) Off. Ex. 134. (/) Off. Ex. 134. Com. Dig 1 . Admon. (e) 3 Bac. Abr. 79. Off. Ex. 133. C. 2. ed, or other penalty, either by himself, his factor, or other person for him, shall be insolvent, or if such principal being 1 deceased, his or her estate and effects, which shall come to the hands of his or her executors, administrators, or assignees, shall be insufficient for the payment of his or her debts, and if in cither of the said cases any surety on the said bond or bonds, or the executors, administrators, or assignees of such surety, shall pay to the United States the money due upon such bond or bonds, such surety, his or her executors, administrators, or as- signees, shall have and enjoy the like advantage, priority, or preference, for the recovery and receipt of said moneys out of the estate and effects of such insolvent or deceased principal, as are reserved and secured to the United S fates ,• and shall and may bring and maintain a suit or suits, upon the bond or bonds, in law or equity, in his, her, or their name, or names, for the recovery of all moneys paid thereon." The preference given by these provisions has been held to extend to debtors to the United States generally, and includes the case of a person becoming indebt- ed to them as the indorser of a bill of exchange ( The U. States v. Fisher, 2 Cranch, 358.); but the priority does not partake of the character of lien on the property of public debtors ( The U. States v. Fisher, Tlie. U. States v. Hooe, 3 Cranch, 90.); and it will not be waived by proving- against their debtor under a commission of bankruptcy, and voting in the choice of assignees, {Harrison v.. Slerry, 5 Cranch, 289.) nor can any agent of the United States destroy their pri- ority by proving their debt under a commission of bankruptcy in England, voting for assignees, or laying an attachment against the property of the bankrupts. (Per Curiam, Bee's Rep. 246.) Though the priority be limited to certain specified cases whilst the debtor is living, it takes effect generally upon his death (Comm. v. Lewis, 6 Binn. 266. Dictum of Marshall, C. J. 2 Cranch, 390.); but it seems, that in order to bind an executor or administrator, notice is necessary of the debt due to the United States, or no devastavit will be created by his making payment to creditors in the ordinary course of business, (Dictum of Marshall, C. J. U. Stales v. Fisher, 2 Cranch, 391. n. 16 Johns. Hep. 85.) The right of the surety, who pays a bond to the United States, is only a right to receive payment out of the effects of the principal, as fully as the United States would have by reason of their right of priority; and therefore where the principal has been discharged under a bankrupt or an insolvent law, he may plead his certi- ficate or discharg-e to a suit brought against him by such surety, although the < T ni1cd States would not have been barred thereby. (Jlecd v. Emery, 1 Serg. 8c Hawle, 339. Mkiny. Dun/up, 16 Johns. Rep. 77.) 260 OF DEBTS DUE TO THE CUOWN. [BOOK III. audita querela (g). But the debts due to the crown, which are so privileged, must be such as are due by matter of record, or by- specialty, which, as we have just seen, are of the same nature (A). And, therefore, sums of money owing to the king on wood sales, sales of tin, or of other his minerals, for which no specialty is o-iven, shall not be preferred to a debt due to a subject by matter of record. Hence, though fines and amercements in the king's courts of record are clearly debts of record, and entitled to such preference, yet amercements in the king's courts baron (i), or courts of his honours, which are not of record, have no such pri- ority; nor have fines for copyhold estates, nor money arising from the sale of estrays within his manors, or liberties: for these are not debts of record. So whatever accrues to the king by attainder, or outlawry, is considered as a debt by simple contract before office found; and, although debts due to the person outlawed, or attaint- [261] ed, be by obligation, or other specialty, and the outlawry or attainder be of record, yet the law does not recognize the king's title before office found: for till then it does not appear by record that any such debt was due to the party (#). So if the king's debtor by simple contract be outlawed on mesne process, the debt is not altered in its nature, nor shall it have pre- cedence, as if the outlawry be subsequent to the judgment, and the debt therefore of record (I). Nor does the prerogative extend to a debt assigned to the king. Therefore it was held, where the obligee of a. bond, after the death of the obligor, assigned it to the king, that the obligor's executors were warranted in satisfying a judgment recovered against him in his lifetime in preference to the bond (m): So also the arrears of rent due to the crown, whether it be a fee-farm rent, or a rent reserved on a lease for years, shall, it seems, be regarded in the light of a debt by simple contract {n). Such is the law in regard to debts due to the crown, by record, or specialty. Next in order are certain specific' debts, which, subsequently to those of which I have been treating, are, by particular statutes, to be preferred to all others; as forfeitures for not burying in woollen [262] by 30 Car. 2. c. 3. : money due for letters to the post office by 9 Jinn. c. 10.: and money due from the overseers of the poor by 17 Geo. 2. c. 3S. (o). (g) 3 Bac. Abr. 79. Off. Ex. 135. Erby, 1 Salk. 80. 11 Vin. Abr. 291. (h) 3 Bac. Abr. 79. Off. Ex. 133. (w) Com. Dig-. Admon. C. 2. 11 Vin. 134. Abr. 301. Lane 65. 0") 3 Bl. Com. 25. (>?) 3 Bac. Abr. 80. Off. Ex. 135. Iky 3 Bac. Abr. 80. Off. Ex. 134. - (o) 3 Bac. Abr. 80. in note. 2 Bl. Com. Dig-. Admon. C. 2. Com. 511. 4 Burn. Eccl. L. 301. (/) Com. Dig-. Admon. C. 2. Erby v. CHAP. II.] OF DEDTS OF UBCOHD. %&% Skct. II. Of the debts of record in general. — Of judgments ; and herein, of decrees. — Of statutes, and recognizances. — Of docquet- ting judgments. To these succeed debts of record in general, of which there are two classes: first, judgments in courts of record; and secondly, statutes and recognizances. The former are of a higher nature and of a greater dignity than the latter; for judgments are recovered on judicial proceedings in litigated cases, and in a regular course of justice; and the records of such judgments are entered on pub- lic rolls entrusted to the custody of a sworn officer; also judgments confessed by the testator are on the same footing; for though, in point of fact, they are voluntarily acknowledged, yet they, as well as other judgments, are presumed to have been given adversely; the law supposes, quod judicium redditur in invitum (a). [263] Hence judgments, as well such as were recovered against the testator, as those which were confessed by him, are in a pre- cedent degree to statutes and recognizances; for statutes and recogni- zances (of the nature of which I shall more fully speak), are entered into by the consent of the parties; the former, and till enrolment, the latter, are carried in pockets, or deposited in escritoirs; in short, are in the private keeping of the creditor himself. Nor does priority of the date make any difference in favour of such last- mentioned se- curities (b). An executor is obliged to discharge a later judgment, in preference to a statute, or recognizance, prior in point of time (c). Such is the preference to which judgments, as distinguished from the more private records, are entitled. Nor is this privi- lege confined to judgments iri the courts of Westminster-hall, but extends itself to judgments in all other courts of record; that is to say, courts in cities, or towns corporate having power by charter, or prescription to hold plea of debt above forty shillings, as, in London, Oxford, and other places: for, although in the first in- stance, such goods only can be taken in execution on those judg- ments as lie within the jurisdiction of those respective courts; yet, [264] formerly, if the record were removed into the chancery by certiorari, and thence by mittimus into one of the superior courts of law, execution might have been had upon the defendant's goods in any county in England (d) ; and now by the stat. 19 Geo. 3. c. 70, any of his majesty's courts of record at Westminster may, on a proper application, cause the records of such judgments to be re- moved thither, and may issue writs of execution against the per- (a) 3 Bac. Abr. 80. Off. Ex. 136. Hob. 195. 11 Yin. Abr. 292. in note 139. Com. Dig. Admon. C. 2. Roll. 299. 2 Bl. Com. 160. 341. Abr. 926. Littleton v. Hibbins, Cro. (c) Off. Ex. 137. Com. Dig. Admon. Eliz. 793. c. 2. 4 Co. 59, 60. (£) 4 Co. 60. 5 Co. 28. Off. Ex. 137. () Vid. 2 Rl. Com. 160. 2 Reeve's Vin. Abr. 297. 3 Rac. Abr. 83. Hist. Eng. L. 160.393. 4 Reeve's Hist. O) Off. Ex. 140. 2 Blac. Com. 511. Eng. L. "233, 254. Sull. Lect. 155, 156, Com. Di#. Admon. C. 2. Philips v. Ech- CHAP. II.] OF STATUTES. 273 to which writing the seal of the debtor shall be affixed, with the king's seal provided for that purpose ; which seal shall he 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 clay of payment expired, then the sta- tute 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 subjectsin general, by virtue of the stat. 23H.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 re- cognizances or acknowledgments of the king's subjects for the pay- ment of debts according to a form specified ; and that every obliga- tion so acknowledged shall be sealed with the seal of the cognizor, and also with such seal asthe king shall appoint for the same, and with the seal of one of such justices, and be subscribed by him, or with the seals of such mayor and recorder, with their names subscribed. The statute then directs, that such recognizance shall be duly en- rolled in a manner similar to the statute merchant, and provides, that in default of payment of the debt contained in such obligation, the cognizee shall have the same advantages in every respect as in the case of an obligation by statute staple. The obligation pursu- [275] ant to this act is styled a recognizance in the nature of a sta- tute 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 (q), yet both species of securi- ties having been entered into voluntarily and privately, are regard- ed 5 Co. 28 b. 275 RECOGNIZANCES AND STATUTES. [BOOK III. eil as equal in their nature, and payable in the same order (r). 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 recognizance, for they all equally affect the personal estate ; al- though, as to lands, the first in point of time shall have the prefer- ence (s). If the statute or recognizance be defeasanced for the payment of a sum of money at a clay 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 testa- tor, 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 inas- much as the statute was for the payment of a certain sum of money, with which by intendment the executor would be charged, he might, although before the day of payment, plead the statute in bar to an action of debt on a bond (ti). 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 execu- tor cannot plead this statute; for perhaps the covenants may never be broken, and it would be unreasonable to allow him to elude a just debt on a contingency which may never happen (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 time (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 survi- vor alone is liable (,r). The remedy on the statute is more expeditious than on a recogni- zance ; 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 jacias ; and, in case of his death, al- » (?•) Off. Ex. 140. v. Sydnor, Cro. Car. 362. (a) Off. Ex. 140. 3 Bac. Abr. 81. (v) 3 Bac. 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. (/) 11 Yin. Abr. 286. 1 Roll. Rep. (.r) 11 Vin. Abr. 288. Rogers y.Dan- 405. Vaugh. 104. vers, 1 Mod. 165. O) 11 Vin. Abr. 286. Goldsmith CHAP. II.] OF DEHTS BY SPECIALTY* 277 though 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, before judgment on the scire facias , execution be sued out against him on the statute, it shall prevail (z). A recognizance not enrolled shall be considered as a bond, and payable accordingly (a), the sealing and acknowledgment of it supplying the want of a delivery. So a statute not regularly taken may be good as an obligation (b). [278] Nor are other inferior debts of record to be forgotten ; as issues forfeited; fines imposed by the judges at Westminster, or at the assizes ; by the justices at quarter sessions ; by commis- sioners 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 (d). Sect. III. Of debts by specialty, and herein of rent : — of debts by sim- ple 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 ceHlain, 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 (&). (y) Off. Ex. 140. 511. Com. Dig\ Admort. C. 2 ; Plumef (z) Off. Ex; 140. in note. 11 Vin. v. Marchant, 3 Burr. 1384. See also Abr. 299. 2 Anderson, 157. pi. 87. Gage v. Acton, 1 Salk, 326. (a) Bothomly v. Lord Fairfax, 1 P. (b) 3 Bac. Abr. 82. 96. Newport v. Wms. 334. 2 Vern. 750. S. C. Godfrey, 3 Lev. 267. S. C. 2 Ventre (&) Cro. Eliz. Holling-worth 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. 289. (d) Bothomly v. Lord Fairfax. Vid. in note. Vid. 3 Bl. Com. ll Stat, 8 2 Vern. 750. Ann. c. 14. (a) Off Ex. 14G. 2 Bl. Com. 465. 279 OF DEBTS BY SPECIALTY. [BOOK III. 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 (d), to waive the term, for he must renounce the executorship in tolo, 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 deti- net for the rent incurred subsequently to his entry (e). If the profits of the land exceed the amount of the rent, as the [280] law prima facie supposes, such of the profits as are suffici- ent 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 plene 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 Michael- mas 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 (g"). So the pro- fits for a series of Jftears may be less than the amount of the rent, although the leasefibr the whole term may be of no small value ; as in the case of jt 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 ex- ecutor, 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 (i). 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 (c) Lyddall v. Dunlapp, 1 Wills. 4. (/) Buckley v. Pirk, 1 Salk. 317. Com. Dig-. Admon. B. 14. (g) Oft'. Ex. 149. (rf) Supr. 143. (h) Ibid. (e) Billinghurst v. Speerman, 1 Salk. (*) Buckley v. Pirk, 1 Salk. 317. 297. 117. Off. Ex. 147. CHAP. II.] OF DEBTS BY SPECIALTY. 281 the genera] assets, and stands on the same footing with other debts by specialty. Debts by bond, and other instruments under the seal of the par- ty, are of the same class with debts for rent (k) ; and an executor is bound to pay a debt on specialty before a debt by simple con- tract. But in the distribution of separate property of a married woman as assets after her death, a bend debt is not entitled to pri- ority, for the bond merely as a bond is void (/). If an agreement be entered into under hand and seal for the purchase of an estate, although the estate on the purchaser's death descend to his heir free from all debts by simple contract, and the personal assets be not more than adequate to pay for the estate, the vendor being a candidate by specialty, may at law charge the purchaser's executor on the covenant to the disappointment of all the simple contract creditors (w), though equity will marshal the assets in their fa- vour (n). 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 (p). But if the testator die in- debted 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 pay- ment is to come, the executor has no right to pay B. in preference [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 ex- ecutor 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 ex- ample a bond to save harmless, shall not stand in the way of a debt by simple contract (s). And if, subsequently to the payment of the simple contract debt, the contingency should happen, it seems reasonable that evidence of such payment should be admitted on (k) Off. Ex. 146. Ca. Temp. Hard. 228. (/) Anon. 18 Vez. 258. ( q) Off. Ex. 143. Com. Dig. Admon. (to) See Brome v. Monck, 10 Ves. C. 2. Swinb. p. 6. s. 16. jun. 620, 621. (r) 3 Bac. Abr. 82. Snelling- v. Nor- (n) Vid. supr. 417. ton, Cro. Eliz. 409. Noy 53. Roll. (o) 11 Vin. Abr. 304. Leon. 187. Abr. 557. 5 Co. 82 b. 83. Scudamore (p) 3 Bac. Abr. 81. Buckland v. v. Hearne, Andrew's Rep. 340. Brook, Cro. Eliz. 31.5. Lemun v. Tooke, (s) 11 Vin. Abr. 395. Lancy v. Faire- 3 Lev. 57. Goldsmith v. Sydnar, Cro. child, 2 Vern. 101. Hawkins v. Dav, Car. 362, Bank of England v. Morrice, Ambl. 160. 282 OF DEBTS BY SPECIALTY. [fiOOK III. the executor's plea of plene adrninistravit to an action by the specialty creditor (s). 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 executed a bond to A. in two thousand eight hundred pounds, con- ditioned to indemnify him against another bond for eight hundred [2S3] 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 stat- ing that she had administered all, except so much as would satisfy such indemnity bond, it was held to be a sufficient defence (t). A bond merely voluntary shall be postponed to simple 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 (u). But an executor has no authority to pay a bond founded on an usu- rious contract, or a bond ex turpi causa. Such payment will amount to a devastavit, as well against legatees as against credi- tors {v). 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 jt sound merely in damages (.t). (1) 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, (s) 11 Vin.Abr. 307. Allen, 40. Sed (v) 11 Vin. Abr. 307. Brownl. 33. vid. Goldsb. 142. Wincbcombe v. Bishop of "Winchester, (t) Cox v. Joseph, 5 Term. Rep. 307. Hob. 167. Robinson v. Gee, 1 Yes. (u) 11 Vin. Abr. 304, 305. 1 Eq. Ca. 254. Abr. 84. 143. 3 Bac. Abr. 81,82. Cray (w) 11 Vin. Abr. 288. Rogers v. v. Rooke, Ca. Temp.Talb. 156. Loeff's Danvers, 1 Mod. 165. S. C. Freem. v. Lewen, Prec. Ch. 370. Croft v. Pyke, Rep. 127. 3 P. Wms. 182. Lechmere v. Earl of (./) Plumer v. Marchant, 3 Burr. Carlisle, ibid. 222. Lady Cox's case, 1380. Freemoult v. Dedire, 1 P. Wms. ibid. 339. Lassels v. Lord Cornwallis, 429. Finch. Rep. 232. (y) 3 Bac. Abr. 81.11 Vin. Abr. 292. (1) Frazer v. Tunis, 1 Binn. 2j4. CHAP. II.] OF DEBTS BY SPECIALTY. 284 he may plead that the testator entered into certain covenants, and may shew the breach of them, and state the amount of the damages incurred, and that he has not assets more than to satisfy them : the plea will be good, although the damages are not liquidated (z). But where the husband by marriage articles having agreed to settle one thousand five hundred pounds per annum on the issue, made a de- ficient settlement, 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 (a). If A. covenant to pay a sum of money, and die before payment, it may be recovered against his executors (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 (d). Of this class also are debts by mortgage, and although there be neither bond nor covenant for the payment of the mortgage mo- ney, yet it is payable out of the personal assets (e). (1) 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 (/"). [2S6] Last in the order of payment are debts on simple contract; as on bills and notes not under seal, and verbal promises (g), or such as are implied in law : thus where A. received with an ap- prentice 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, af- ter payment of the debts by specialty, to repay the money as a debt due by simple contract, deducting at the rate of twenty pounds (z) 11 Vin. Abr. 305. Smith v. Har- Vern. 524. Powel on Mortgages, 813. man, 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. (i) Perrot v. Austin, Cro. Eliz. 232. Fletcher v. Stone, 3 Vern. 273. Wil- Sheph. Epit. 990. son v. Fielding, ib. 763. S. C. 10 Mod. (c) 11 Vin. Abr. 276. Perrot v. Aus- 426. Cope v. Cope, Salk. 449. and tin, Cro. Eliz. 232. vid. Co. Litt. 386. vid. infr. (d) Id, 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. 397. 286 OF DEBTS BY SIMPLE CONTRACT. [BOOK III. a-year for the maintenance of the apprentice during the time he lived with his master (h). On contracts of this nature, debts due to the king shall, it seems, be satisfied before debts which are due to subjects (ij ; the wages also of domestic servants and of labour- ers 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 (k). But where the testator, though in no respect indebted to his brother, had signed a note by which he acknowledged himself in- debted to his brother in 5000/. , and always kept the note in his own custody, and the brother knew nothing of it at the time it was signed, and at the testator's death it was found among his papers, it 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 (n). (1) 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 (p). Yet to that extent it may be recovered, although not expressly reserved (q). In respect to interest on simple contract debts, the holder of a bill of exchange or of a promissory note is entitled to recover the money payable upon it with interest (r) in some cases from the date of the bill or note (s) ; but in general from the time at which it ought to have been regularly paid down to the time when the plaintiff will be en- titled to final judgment (7), and all incidental expences occasioned by non-acceptance, or non-payment (w). Thus, on a bill or note payable on presentment, interest may be computed from the pre- sentment (v). And in regard to all other debts of this species, it is the constant practice, either on the contract, or in damages, to (h) Soan v. Bowden & Eyles. M. 30 Bro. Ch. Rep. 496. Grosvenor v. Cook, Car. 2. Ch. Ca. Temp. Finch. 396. 1 Dig. Rep. 305. Sed vid. Lord Lons- Burn. Just. 85. daie v. Church, 2 Term Rep. 388. (t) 3 Bac. Abr. 80. in note. (?) Tidd's Prac. B. R. 484, 485. Far- (/fc) 2 Bl. Com. 511. 1 Roll. Abr. quhar v. Morris, 7 Term Rep. 124. But 927. 11 Vin. Abr. 274. in note. Shep. see 1 Bos. & Pul. 337. Epit. 986. Shep. Touchst. 478. (r) Bailey on Bills of Exch. 90, 91. (/) Disher v. Disher, 1 P. Wins. 204. Blaney v. Hendricks, Bl. Rep. 761. Vid. (m) Creuze v. Hunter, 2 Ves. jun. also Bun. 119. Auriol v. Thomas, 2 162, 165. Term Rep. 52. (n) Com. Dig. Chancery, 3 S. 1. (s) Bailey on Bills of Exch. 91. (o) 14 Vin. Abr. Interest, C. 2. Fonbl. (t) Robinson v. Bland, Burr. Rep. 424. Sed vid. Sweetland v. Squire, 2 1077. Salk. 623. .(«) Bailey on Bills of Exch. 91. Au- (p) Creuze v. Hunter, 2 Ves. jun. riol v. Thomas, 2 Term Rep. 52. 168. Sharpe v. Earl of Scarbro', 3 (u) Blaney v. Hendricks, Bl. Rep. Ves. jun. 557. Knight v. Maclean, 3 761. (1) Shultz's Appeal, 11 Serg. & Rawle, 182. CHAP. II.] CREDITOR GAINING PRIORITY. 287 • give interest for the detention (w). Book debts, indeed, form an exception to this rule : By the common law they do not of course carry interest, but even on them it may be payable in consequence [2S8] of the usage of particular branches of trade, or in cases of long delay under vexatious and oppressive circumstances, if a jury in their discretion shall think fit to allow it (x). If the testator by the will direct that all his debts shall be paid, or make any provision for the payment of his debts in general, this shall revive a debt barred by the statute of limitations, and render it payable by the executor with the others (y). The principle here laid down must not now be considered as the law, as in a late case Sir Thomas Plumer, V. C. , in an elaborate judgment, after considering all the authorities, decided, that a de- vise in trust for payment of debts, did not revive a debt, upon which the statute of limitations had taken effect, by the expiration of the time before the testator's death (z). (1) Sect. IV. Of a creditor's gaining priority by legal or equitable process. — Of notice to an executor of debts by specialty, or simple contract. Such is the order which the law prescribes to an executor for the payment of debts; and although he has a right to pay one cre- ditor in preference to another of the same degree, yet this election maybe controlled by legal or equitable proceedings against him, of which he has due notice («). Thus, if an action be properly commenced against an executor for any specific debt, it must be preferred by him in payment to others of the same class. Nor, in [2S9] that case, shall he be warranted in making any voluntary payment of such other debts, to defeat the party of his remedy (b). Yet although one creditor commence an action, if another credi- tor in equal degree commence a subsequent action, and first reco- ver judgment, he must be first satisfied. Hence an executor has it in his election to give a preference by confessing judgment in (w) Craven v. Tickel, 1 Ves. jun. 63. (a) Off. Ex. 145. (x) Edclowesv. Hopkins, Doug-1. 361. (b) 11 Vin. Abr. 296. in note. Good- ly) Andrews v. Brown, Prec. Ch. fellow v. Burchett, 2 Vern.300. 2Fonbl. 385. Blakeway v. Earl of Strafford, 2 412. Com. Dig. Admon. C. 2. 3 Bac. P. Wms. 373. Abr. 83. Parker v. Dee, 2 Chan. Ca. (z) Burke v. Jones, 2 Vez. & Bea. 201. Solley v. Gower, 2 Vern. 62. Off. 275.. Ex. 143. 146. 2 Bl. Com. 512.- (1) Roosevelt v. Mark, 6 Johns. Cha. Rep. 266. Brown's Mm. v. Griffith, 6 Munf. 450. Smith v. Porter, 1 Binn. 209. Campbell's Ex. v. Sullivan, Hard. Rep. 17. Chandler's Ex. v. NeaVs Ex. 2 Hen. & Munf. 124. See Lewis's Ex. v. Bacon's Legatees, 3 Hen. & Munf. 89. Anonymous, 1 Hayw. 243. 289 CREDITOR GAINING PRIORITY. [BOOK III. the action of the one, and pleading such judgment to the action of the other (c). But if, for the purpose of favouring the claim of one plaintiff in prejudice to that of another, he plead a matter which he knows to be false, the plea shall not be available, as it shall be if the falsity exist not in his own knowledge, as if he plead non est factum iestatoris (d). And even after an interlocutory judgment, and before the execu- tion of a writ of inquiry of damages, he may confess a judgment in an action for a debt in equal degree (e) ; for he is in no case bound against his will to defend a suit, and expend the assets in costs, where the case is clear(y). According to several adjudged cases (g), the filing of a bill in [290] equity shall equally prevent the alienation of assets as the filing of an original at law. And, therefore, if a suit in chancery be instituted by a creditor against an executor, he cannot justify a voluntary payment of another creditor of the same order. But a decision to that effect was reversed in the House of Lords, princi- pally on the ground, that a decree cannot be pleaded at law to an action brought against an executor on another debt of equal rank. However, it is now settled, that though a decree in equity cannot be pleaded at law, it is equivalent, in the administration of assets, to a judgment ; and, therefore, that if a decree have a real priority in point of time, not by fiction and relation to the first day of term, it shall be preferred, in the order of payment, to subsequent judg- ments ; and the executor, as we have seen, shall be protected in his obedience to such decree, and all proceedings against him at law stayed by injunction (h). So, pending a suit in equity' by one creditor, an executor may confess a judgment at law in favour of another creditor of the same degree (z). Or after a suit instituted by a creditor for an account, pay any other creditor in preference, and he will be allowed such payment in passinghis accounts (k). He may also confess a judgment after a decree quod computet, if before a final decree. Such decree quod computet, is analogous to an interlocutory judgment at law; it does not pass in remjudi- [291] catam until the final decree (/). Nor will equity interpose, where, after an action brought by one (c) Off. Ex. 145. 11 tin. Abr. 296. of Orford, ib. 188. Wright v. Wood- in note 302. Palmer v. Lawson, 1 Lev. ward, 1 Vern. 369. 3 Bac. Abr. 81. 200. Waring- v. Danvers, 1 P. Wms. (ft) Peploe v. Svvinburn, Bunb. 48. 295. Mellor v. Overton, Carter, 228. Darston v. Earl of Orford, 3 P. Wms. Goodfellow v. Burchett, 2 Vein. 300. 401. note F. Forrest, 217. Harding Swinb. p. 6. s. 16. 2 Fonbl. 411, 412. v. Edge, 1 Vern. 143. 2 Yern. Bu- llolbird v. Anderson, 5 Term Rep. cele v. Atleo, 37. Searle v. Lane, 88. 238, 239. Morrice v. Bank of England, Ca. Temp. (d) l'l Yin. Abr. 296. Parker v. Dee, Talb. 217. 4 Bro. P. C. 287. 2 Chan. Ca. 201. Jollv v. Gower, 2 ft) Waring v. Danvers, 1 P. Wms. Vern. 62. ■ 205. Ca. Temp. Talb. 225. (e) Smith v. Ilaskins, 2 Atk. 386. (/,•) Maltby v. Russell, 2 Sim. & Stu. (f) Off. Ex. 145. 227. (g) 2 Fonbl. 412. note S. Joseph v. (/) Smith v. Evles, 2 Atk. 385. Ca. Moit, Prec. Chan. 79. Darston v. Earl Temp. Talb. 217. CHAP. II.] CREDITOR GAINING PRIORITY. 291 creditor, an executor confesses judgment to another creditor in equal degree (/) ; even although the judgment be given on a quan- tum meruit, without a writ of inquiry to ascertain the damages, if they be so laid in the declaration as not to exceed the debt which is really due(ra). Nor, where a creditor sues an executor at law and in equity at the same time for the same demand, will equity compel him to make his election in which of the courts he will pro- ceed, in case the executor be attempting to prefer other creditors before him by confessing judgments to them, but will merely re- strain him from taking out execution on the judgment without leave of the court (n). Nor will a mere demand by the creditor divest the executor of his right of giving such preference; that effect can be produced only by the process of a court of justice (o). Thus the executor is invested with large discretionary powers of prefer- ring 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 (p). But, in general, on a deficiency of assets, it were [292] a more honourable and conscientious discharge of his duty, as far as he has the power of deciding, to pay debts of equal de- gree in equal proportions (a). 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 inferior nature before one of a superior, of which he has no no- tice (r), provided a reasonable time has elapsed after the testator's death; for such payment, if precipitate, would be evidence of fraud. Of debts of record, supposing, in the case of judgments, they are docketed, it has been already stated, an executor is bound to take cognizance, as well as of a decree in equity : constructive no- tice in respect to them is sufficient (s) ; but of other species of debts there must be actual notice. It has been asserted, that such notice must be by suit (7) ; but it is perfectly clear, that an executor, if he be by any means apprized of a debt of a higher degree, would not be justified in exhausting the assets in the discharge of one which is inferior ; yet unless he had some notice of the former, he incurs no risk by the payment, [293] after a competent time, of the latter. Hence it has been held, that an executor may plead a judgment recovered against him on a simple contract to an action of debt on a specialty, if he had no notice of such specialty (u) ; and may even voluntarily pay, (/) 3 Bac. Abr. 83. in note. Waring (r) 3 Bac. Abr. 82. in note. L. of Ni. v. Danvers, 1 P. Wms. 295. Pri. 178. (m) 11 Vin. Abr. 298. in note. War- (s) Dyer, 32. in note. 3 Bac. Abr. ing v. Danvers, 1 P. Wms. 295. 83. in note. Littleton v. Hibbins, Cr. (n) 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- (o) Off. Ex. 145. man v. Harman, 3 Mod. 115. ip) 11 Vin. Abr. 270. 228. Blundi- (t) 3 Bac. Abr. 83. in note. Brook- veil v. Loverdell, Sid. 21. Off. Ex. 260. ing v. Jennings, 1 Mod. 175. Vid. Fitz- (q) Off. Ex. 260, 261. 3 Bl. Com. gib. 77. 19. (m) 3 Bac. Abr. 82. in note. Harman 24 293 NOTICE TO EXECUTOR OF DEBTS. [BOOK III. without notice, such inferior 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 as- sets were expended in the payment of simple contract debts (w). And, indeed, after a suit is commenced, yet before he has notice of the plaintiff's demand, he is warranted in paying any other cre- ditor (,r). On the other hand, an executor is not authorised to confess a judgment for a debt of an inferior nature, if he has notice of the existence of a superior. Thus, where an executor to an action on bond pleaded a judgment confessed by him on the pre- ceding 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 (z). 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 versa (b). v. Harman, 2 Show. 492. S. C. 3 Mod. (y) Sawyer v. Mercer, 1 Term Rep. 115. L. of Ni. Pri. 178. Davis v. Monk- 690. house, Fitzg. 76. Scudamore v. Hearne, (z) Com. Dig 1 . Admon. C. 2. Britton Andrew's Rep. 340. v. Bathurst, 3 Lev. 114. O) 3 Bac. Abr. 82. On* Ex. 145. (a) Com. Dig. Admon. C. 2. Cro. Britton v. Bathurst, 3 Lev. 115. Haw- Eliz. 471. 1 Sid. 404. Parker v. Amys, Idnsv. Day, Ambl. 162, vid.tam. Green- 1 Lev. 261. wood v. Brudnish, Prec. Ch. 534. (b) Com. Dig. Admon. C. 2. Anon. (x) Off. Ex.145. Plowd. 279. Finch. Cro. Eliz. 646. Parker v. Masters, 1 L. 79. Harman v. Harman, 3 Mod. 115. Sid. 404. Sed vid. Anon. Cro. Eliz. 41. I.. ofNi. Pr. 178. [ ~ 95 ] CHAP. III. OF AN EXECUTOR S RIGHT TO RETAIN A DEDT 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 incongruous that he should sue himself, or that the same hand should at once pay and receive the same debt. And therefore he may appropriate a sufficient part of the assets in satisfaction of his own demand; otherwise he would be exposed to the greatest hard- ship ; for, since the creditor who first commences a suit is entitled to a preference in payment, and the executor can commence no suit, he must, in case of an insolvent estate, necessarily lose his debt, unless he has the right of retaining. Thus from the legal principle of the priority of such creditor as first commences an action, the doctrine of retainer is a natural deduction; but the privi- lege 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 situation as if he had sued himself as ex- ecutor, and recovered his debt, which there could be no room to sup- pose, during the existence of those of a superior order (b). As where A., before his marriage, covenanted with B. and C. to leave them by his will, or that his executors 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 default of children, as he should appoint, and bound himself, his heirs, executors, and administrators, in a penal- ty for performance ; on his dying before his wife, without issue and intestate, it was held, that B., in the character of administra- tor, 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 obliga- tion, and A. appoint the executrix of the obligee his executrix, and (w) Supr. 239. Thynn v. Thynn, .1 Abr. 922, 928. Plowd. 185. 543. U P. Wms. 296. Yin. Abr. 72. 261. Winch. 19. Harg (6) 2 Bl. Com. 511. 3 Bl. Com. 18, Co. Litt. 264. note 1. Yid. infr. 19. Of. Ex.32. 142, 143. Com. Dig-. (r) Plumer v. Marchant, 3 Burr. 1380 Admon. C. 2. 3 Bac. Abr. 10. 83. Roll. 296 of executor's retainer [book III. die leaving assets, she is not compelled to resort to an action against B. , but is entitled to retain for the debt ; in case there be no as- sets, 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 after- wards B. die, having appointed D. his executor, he may retain ef- fects, of which he is possessed as administrator of A., to satisfy the debt due to him as the executor of B. (e). (1) If A. be in- debted in a bond to B., and die, having appointed B. his executor, who, after having intermeddled with the goods, and before pro- bate, 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 (g). So, if admi- nistration be granted to a creditor, and afterwards repealed at the suit of the next of kin, such creditor may retain against the right- ful administrator (A). In short, wherever an executor might have been sued, or might have paid a debt, he has authority to retain (i). But where A. and B. were joint obligors in a bond, the former as principal, the latter as surety, A. died, B. took out administra- tion to him, and on forfeiture of the bond, discharged the debt, it [298] was held that he could not retain, for, by joining in the bond, the debt became his own (&). Yet, in such case, it seems he might retain for the money paid as constituting a simple contract debt. A retainer for a debt may either be given in evidence on plea of plene 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 degree (n) : but equity will interpose to restrain him from pervert- ing this privilege to the purposes of fraud (o). Nor will a mere nomination of a creditor to the executorship, if he refuse to act, (e?) Com. Dig. Admon. C. 1. Fryer v. Marchant, 3 Burr. 1384. v. Gildridge, Hob. 10. 3 Bac. Abr. 10. (k) 11 Via. Abr. 262. Godb. 149. 1 3 Kebl. Rep. 166. Cock v. Cross, 2 (/) Loane v. Casey, Bl. Rep.^ 965. Lev. 73. Plumerv. Marchant, 3 Bun-. 1383. 11 (e) 11 Vin. Abr. 261. 2 Brownl. 50. Vin. Abr. 266. 1 Brownl. 75. (f) HVin. Abr. 563. Croft v. Fyke, (w) Supr. 295. 3 P. Wms. 183, 184. and note B. " (n) 11 Vin. Abr. 265, in note. War- (g) Com. Dig. Admon. C. 2. Semb. ing v. Danvers, 1 P. Wms. 295. Musson Raym. 484. v. May, 3 Ves. & Bea. 194. (h) 11 Vin. Abr. 265. Blackborough (o) 3 Bac. Abr. 83. in note. Cock v. v. Davis, 1 Salk. 38. Goodfellow, 10 Mod. 496. (t) Com. Dig. Admon. C 2. Plumer (1) Thomas v. Thompson, 2 Johns. Rep. 471. (2) Griffith v. Chew's- Ex. 8 Serg. &. Rawle, 29. CHAP. III.] FOR HIS DEBTS. 298 extinguish his legal remedy for the recovery of his deht (/>). Hence if a creditor he appointed executor with others, he may sue them, especially if he hath not administered [q). If there be not personal assets, he may sue the heir, where the heir is bound (r). • (p) Rawllnson v. Shaw, 3 Term Rep. (r) Harg. Co. Litt. 264 b. note 1. 557. Wankford v. Wankford, Salk.304. Off. (5) 3 Bac. Abr. 10. in note. Off. Ex. Ex. 33, 34. 33. [ 2 " ] 1 CHAP. IV. OP THE PAYMENT OF LEGACIES. Sect. I. Legacy what — ivho may be 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 payment 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 ex- ceptions by common law, and by statute (a). To this disability all traitors are subject (b). 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 Wm. 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 se- cond 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 vyarning 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 wit- nesses of the same are declared void (c). (1) And the statute ex- tends to wills disposing of personal property only (d). Although a man cannot make a grant to his wife, nor enter into a covenant with her, (for such grant would be to suppose her sepa- O) Bl. Com. 512, 4 Burn. Eccl. L. Eccl. L. 78. 31.3. 4 Bac. Abr. 337. (d) Lees v. Summersgill, 17 Yes. (b) 2 Bl. Com. 512. jun. 508. (c) Vid. 2 Bi. Com. 377. and 4 Burn. (1) A legacy given to a feme covert during lier own life and that of her hus- band, and to the heirs of her body, but if she had none, then over, and the hus- band was a subscribing witness to the will, but died before it was proved, and another subscribing witness proved it, it was held that he (the husband) did not take such an interest in the legacy as would make it void under the statute, on account of his being a subscribing witness, and that the wife surviving was enti- tled to the legacy. Woodbuy v. VoUins's Ex. 1 Desaus. Rep. 125. CHAP. IV.] DIFFERENT KINDS OF LEGACIES. 300 rate existence, and to covenant with her would be to covenant with himself, J yet he may bequeath any thing to her by will, since that cannot take effect till the coverture is determined by death (rf). An infant in ventre sa mere may, as we have seen, be appoint- ed an executor. He is also capable of being a legatee (e). And a bequest of 2000/. each "to all the children of my sister I. G. whether now born or hereafter to be born," has been held to in- clude all children born after the testator's death, and an inquiry was directed, what would be a proper sum to be set apart to an- swer- the legacies to future children (/). And a bequest in trust for all the children of the testatrix's nephew R., bom in the life- time of the testatrix, was held to include a child, of which the the wife of R. was enceinte at the time of the testatrix's death, al- though not born until several months afterwards (g). (1) 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 lega- cy void : as, where a testator gave a legacy unto my namesake Thomas, 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 children of A. the sum of 600/. each," and there were four children all born before the date of the will ; the four were held intitled to 600/. each, for that it was a mere slip in expression, the meaning being, all children ; and the court conceiving the in- tention to be to give to each child so much, struck out the specifi- ed number (i). (3) Under a bequest by an unmarried man "to my children," parol evidence was allowed to shew whom the testator considered in the character of children : and his illegitimate children, having obtain- ed a name by reputation, were admitted to take, though not named (d) 1 Bl. Com. 442. Harg\ Co. Lit. (g) Trower v. Butts, 1 Sim. 8c Stu.' 112. 181. 0) Northey v. Strange, 1 P. Wnis. (h) Stockdale v.Bushby, Coop. Rep. 342. vid. Ellison v. Airev, 1 Yes. 1J4. 229. and 10 Ves. 381. S. C. and see Clarke v. Blake, 2 Bro. Ch. Rep. 320. Careless v. Careless, 1 Meri. Rep. 384. and 1 Cox's Rep. 248. same principle decided, and 19 Ves. 601. (/) Defflis v. (ioldschmidt, 1 Mer. CO Uarvev v. Hebbert, 19 Ves. 125. Rep. 417. S. C. 19 Ves. 566. (1) So where the testator, after directing the payment of his debts and fune- ral expences, and giving- legacies to and making provision for his wife, and giv- ing legacies to several of his grandchildren, proceeded as follows, " I will and de- vise 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 posthumous grandchild, in ventre sa mere at the making of the will, and death of the testator, was entitled to agrand- hild's share under the will. Swift v. Duffie/d, 5 Serg. & Kawle, 38. (2) Powell v. Biddle, 2 Dall. Rep. 70. Tlioytas v. Stevens, 4 Johns. Cha. Rep. I) {Jeer it us. \. Winds) 4 Desaus. Rep. 85. 300 DIFFERENT KINDS OF LEGACIES. [BOOK III. • in the will (/). But a bequest " to such child or children if more than one as A. may happen to be ensient of by me," a natural child of which she was then pregnant, cannot take (A;). Grandchildren in a will may be construed to mean great-grand- children, unless the intention appears to the contrary (7). (1) The word "relations" in a will means "next of kin {m). (2) And a bequest 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 (n). [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 denomi- nation of specific legacies two kinds of gifts are included; as, first, where a certain 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 cer- tain species is bequeathed without any designation of it as an indi- vidual chattel ; as, " I give a diamond ring." A bequest in the former mode can be satisfied only by the delivery of the identi- cal subject; and if it be not found among the testator's effects, it fails altogether, unless it be in pawn, when the executor must re- deem (p) it for the legatee. But a bequest of the latter descrip- tion may be fulfilled by the delivery of any thing of the same kind (q). (3) A legacy of " 50/. for a ring" is a general pecuniary legacy (r). Although the courts are averse from construing legacies to be specific (s), yet, if the words clearly indicate an intention to sepa- rate the particular thing bequeathed from the general property of the testator, they shall have that operation. (4) Hence, under some (i) Beachcroft v. Beachcroft, 1 Mad. (o) 4 Bac. Abr. 337. 425. 2 Bl. Com. Rep. 430. and see Lord Woodhouselee 512. v. Dalrymple, 2 Men. Rep. 419. (p) Ashburner v. M'Guire, 2 Bro. (k) Earle v. Wilson, 17 Ves. 528. and Ch. Rep. 113. 4 Bac. Abr. 355. Swinb. see Arnold v. Preston, 18 Ves. 288. part 7. s. 20. (I) Hussey v. Berkeley, 2 Eden's (q) 2 Fonbl. 374. note O. Purse v. Rep. 194. Snaplin, 1 Atk. 416. Forrest. 227. (in) Pope v. Wbitcombe, 3 Men. Bronsdon v. Winter, Ambl. 57. Rep. 689. (r) Apreece v. Apreece, 1 Ves. and (n) Smith v. Campbell, 19 Ves. 400. Bea. 364. (s) Ellis v. Walker, Ambl. 310. (1) Pembcrton v. Parke, 5 Binn. 601. And sons and daughters in a will, will extend to grandchildren to prevent tbeir being cut off. Smith's Case, 2 Desaus. Rep. 123. n. But the word children will not be held to mean grandchildren, unless there be some ambiguity in the testator's will rendering' it necessary, or without such construction his indent could not be satisfied. Izard v. Izard, 2 Desaus. Rep. 308. (2) M'Neilledge v. Gulbraith, 8 Serg. 8t Rawle, 41. M'Neilledge v. Barclay, 11 Bferg. & Rawle, 103. (3) A bequest of "twenly negroes" is specific only in the second degree. Wr- rcn v. Wig fall, 3 Desaus. hep. 47. (4) 3 Desaus. Rep. 373. CHAP. IV.} DIFFERENT KINDS OF LEGACIES. 301 circumstances, even pecuniary legacies are held to be specific. As a certain sum of money in a certain bag or chest (t), or in navy [302] or India bills («), or the bequest of a sum of money in the hands of A. (v), or of two thousand pounds, the balance due to the testator from his partner on the last settlement between them, if the testator did not draw such money out of trade before he died (w). So a devise of a rent-charge out of a term for years (x), and a bequest of a bond, or of the testator's stock (1) in a parti- cular fund, have been thus classed (y), as likewise has a legacy to be paid out of the profits of a farm, which the testator directed to be carried on (2). And a bequest of all the testator's personal es- tate 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 testator's stock in a certain fund shall bear the same construction (c). But a testator reciting that he had 1500/. 5 per cents, gave it to A. and then gave to B. all other his stocks that he might be posses- sed of at his death ; the latter bequest is not specific, but is liable to debts in preference to the former (d). 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 money or of any other chattel, is a general legacy ; as of a quanti- ty of stock (/). And where the testator has not such stock at his death, such bequest amounts to a direction to the executor to pro- [303] cure so much stock for the legatee (g). (/) Lawson v. Stitch, 1 Atk. 508. (a) Sayer v. Sayer, Free. Ch. 392. O) Pitt v. Lord Camelford, 3 Bro. (b) Heath v. Perry, 3 Atk. 103. Ch. Rep. 160. Gillaume v. Adderley, (c) Sleech v. Thorington, 2 Ves. 563. 15 yes. jun. 384. See 2 Fonbl. 374. note O. IP. Wms. (v) Hinton v. Pinke, 1 P. Wms. 540. 540, note 1. (w) Ellis v. Walker, Ambl. 310. (d) Parrott v. Worsfield, 1 Jac. and {x) Long v. Short, 1 P. Wms. 403. Walk. Rep. 594. (y) Ashburner v. Macguire, 2 Bro. (e) 2 Fonbl. 376. Sayer v. Sayer, 2 Ch. Rep. 108. Forrest, 152. Avelyn Yern. 688. v. Ward, 1 Ves. 425. 1 Eq. Ca. Abr. (/) 1 P. Wms. 540, note. Purse v. 298. Ashton v. Ashton, 3 P. Wms. Snaplin, 1 Atk. 414. Sleech v. Thor- 384. ington, 2 Ves. 562. . (z) Mayott v. Mavott, 2 Bro. Ch. (g) Partridge v. Partridge, Ca. Temp. Rep. 125. Vid. All Souls' College v. Talbot, 227. Mann v. Copland, 2 Madd. Coddington, 1 P. Wms. 598. Rep. 223. (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. Wal- ton, 7 Johns. Cha. Rep. 258. See also Cuthbert v. Cuthbert, 3 Yeates, 486. (2) So, "1 leave to my beloved wife C. the whole property that she brought me, except two negro slaves John and Maurice," is a specific legacy. Warren v. Wigfall, 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 belonging to it, and as much of my house and furniture as she thinks proper." Coram, v. Shelby, 13 Serg. & Rawle, 348. See also Lmcock v. Glarbson, Stuart v. Cursors Ex. 1 Desaus. Rep. 471, 501. 25 303 DIFFERENT KINDS OF LEGACIES. [BOOK III. On a bequest of 1,000/. long annuities "now standing in my name or in trust for me," where at the date of the will, the testa- trix had no long annuities, but had 1,000/. 3 per cent, reduced an- nuities, 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 {%). And where a testator being indebted on mortgage, and possessed of 5,000/. stock, by his will gave to A. and B. all the stock he had in the 3 per cents., being about 5,000/. 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 mort- gage; and afterwards the testator sold out 2,000/., part of the 5,000/., and paid off the mortgage with it: this was held to h^ave 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 (k). 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 (m). The same legacies may be specific in one sense, and pecuniary in ano- ther; 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 ali- quot part of it (?i). In a case before Lord Camden C, his lordship took the distinc- tion between a legacy of a certain sum due from a particular per- son, and a legacy 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 hundred pounds, for which I have sold my estate this day;" the testator received the whole of that sum, paid it in,to 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 ( p). But Lord Thurlow C. disallowed that distinction (q): 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. (1) (/i) Penticost v. Ley, 2 Jac. &. Walk. («) Smith v. Fitzgerald, 3 Ves. and 207. Bea. 5. (i) Evans v. Trip, 6 Madd. Rep. 91. (o) 2 P. Wms. 330, note 1. Attor- (7c) Humphreys v. Humphreys, 2 ney-General v. Parkin, Ambl. 566. Cox's Rep. 184. (p) Carteret v. Carteret, cited 2 Bro. (/) Hinton v. Pink, 1 P. Wms. 540. Ch. Rep. 114. (?«) Hume v. Edward*, 3 Atk. 693. (q) Ashburner v. Macguire, 2 Bro. I.ewin v. Levin, 2 Ves. 417. 2 Fonbl. Ch. Rep. 113, 114. 378. (1) So a bequest of " all the money due on a bond againbt P. P. and J. P." is a specific h-gacy. Stout v. Hart, 2 Halst. Rep. 41 1, CHAP. IV.] LEGACIES LAPSED OR VESTED. < 303 A legacy to a natural child, of " 5,000/. sterling, or 50,000 cur- rent rupees," afterwards described as " now vested in the East India Company's bonds," and sometimes mentioned as " the said sum of 5,000/. sterling," Lord Eldon held not specific but gene- ral; as a demonstrative legacy, with a fund pointed out (V). 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), (1) and [304] sink into the residuum of the testator's personal estate; nor is it an exception that the legacy is left to A., his executors, adminis- trators, or assigns (t); or to A. and his heirs. (2) And although in the bequest of a legacy to A. the testator should express an inten- tion that it should not lapse in case A. die before him, this is not sufficient to exclude the next of kin (w). Yet a bequest may be specially framed, so as to prevent its lapse on such previous death of the legatee, as if in case of the death of A. before the testator, other persons are named to take, for instance, A.'s legal represen- tatives (z>), or the "heir under this will" (iv); or to A. "and failing him by decease before me to his heirs," the legacy on A.'s so dying shall vest in such nominees (x). Nor is a legacy to two or more within the rule; for it is settled, that a legacy to several persons is not extinguished by the death of one of them, but shall vest in the survivor (y). So where a legacy was given to a daugh- ter for life, with a power to appoint the principal, to take effect after her death, and if no appointment, then to A. and B., 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 (r) Gillaume v. Adderlev, 15 Ves. (v) Bridge v. Abbott, 3 Bro. C. C. jun. 384. 224. (s) 4 Bac. Abr. 387. Elliott v. Da- (w) Rose v. Rose, 17 Ves. jun. 347. venport, 1 P. Wms. 83. Hutcheson v. Vaux v. Henderson, 1 Jac. and Walk. Hammond, 3 Bro. C. C. 142. 388. (/) Maybank v. Brooks, 1 Bro. Ch. (x) Sibley v. Cook, 3 Atk. 572. See Rep. 84. Tidwell v. Ariel, 3 Madcl. also Sibthorp v. Moxan, 3 Atk. 580. Rep. 403. (y) Nerthey v. Burbage, Gilb. Rep,, (u) Sibley v. Cook, 3 Atk. 572. 137. Buffor v. Bradford, 2 Atk. 220. Ryder v. Wager, 2 P. Wms. 331. (1) Weishaupt v. Brehman, 5 Binn. 118. Robinson v. Martin, 2 Yeates, 525. By the Act of 19th March, 1810, (Purd. Dig. 519. 5 Sm. Laws, 512.) 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 issue surviving the testator, but such devise or legacy shali be good and available in favour of such surviving issue, with like effect, as if such devisee or legatee had survived the testator: Provided always, that nothing herein contained shall be construed to affect any devise or legacy contained in the last will of any testator who shall have deceased before the passing of this act: And provided also, that nothing herein contained shall be construed to defeat the in- tention of any testator to exclude such surviving issue or any of them." (2) Dickinson v. Purvis, 8 Serg. & Bawle, 71. Sword's Lessee v. Jl'lnms, 3 Yeates, 34, a devise to a granddaughter before the Act of 19th March, 1810. 304 LEGACIES LAPSED OR VESTED. [BOOK III. interest was postponed only for the sake of the daughter, and that it made no difference that she might have defeated the gift hy ap- pointment, if she had survived the testator, since A. and B. were to take if no appointment (tv). But where two several legacies were given to A. and B., and in case A. orB. died without lawful issue, then the whole of the said two legacies 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 (x). 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 and Jorgive to T. W. the sum of 500/. which he stands indebted to me on his bond; and I 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 bequeathed, such a bequest does not operate by way of equita- ble release, or as an extinguishment of the debt. Therefore the surviving co-obligor, and the representatives of the deceased lega- tee, 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 («). So where a bequest was to a son of the testator on his accom- plishing his apprenticeship, with the dividends in the mean time 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 testator'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 (u>) Chatteris v. Young, 6 Madd. Rep. Eclcs v. England, 2 Yern. 468. 2 Fonbl. 30. 399, note G. and H. Earl of Inchiquin (x) 1 And. 33. pi. 82. Miller -v. War- v. French, 1 Cox's Rep. 1. ren, 2 Yern. 207. Perkins v. Mickle- (z) Izon v. Butler, 2 Price Rep. 34. thwaite, 1 P. Wms. 274. Ryder v. YVa- and see Toplis v. Baker, 2 Cox's Rep. ger, 2 P. Wms. 331. Willing- v. Raine, 118. 3 P. Wms. 113. Lumley v. May, Prec. (a) 2 Fonbl. 368. 1 Bac. Abr. 410. Ch. 37. Hornsby v. Hornsby, Moselcy, (b) Humberstone v. Stanton, 1 Yes. 319. Woodward v. Glassbrcok, 2 Yern. & Bea. 385. 378. 2 Fonbl. 308, note G. < > Massev v. Hudson, 3 Meriv. WQ (?/) See Oke v. Heath, 1 Yes. 140. CHAP. IV.] LEGACIES LAPSED OK VESTED. 305 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 testa- tor's wife, the latter words were construed with reference only to the time of payment, and not to make void the legacy (b). 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 priescnii though solvendum in jutxiro: That it is otherwise, if the legacy be left to him at, or if, or when he attains such age (c). (1) 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 {d), in either case they shall equally lapse for the benefit of the heir; (2) for with regard to devises affecting lands, the ecclesiastical courts have no concurrent jurisdiction, and therefore the distinction does not extend to them (e). If, as 1 have before stated, the legacy be made to carry interest, though the words "to be paid" or " paya- ble" are omitted, it is vested and transmissible (/"). So if the be- [306] quest 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. (g). 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 se- ven 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; (b) Massey v. Hudson, 2 Meriv. 130. 373. npte M. (c) Vid. supr. 171, 172. 2 Fonbl. (/) 2 Eonbl. 371. note K. Clob- 371. note K. Blois v. Blois, 2 Ventr. berie's case, 2 Ventr. 342. Pidlen 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. Clob- 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, 1 (g) 2 Fonbl. 371. note K. Anon. 2 Bro. Ch. Rep. 119. Ventr. 347. Northey v. Strange, 1 F'. (d) Harrison v. Naylor, 2 Cox's Rep. Wms. 342. 566. Darrel v. Molesworth, 247. 2 Vern. 378. Tunstall v. Bracken, Amid. 0) 4 Bac. Abr.393. 2 Bl. Com. 513. 167. Dawson v. Killet, 1 Bro. Ch. Rep. 1 F.q. Ca. Abr. 295. Duke of Chandos 119. 181. v. Talbot, 2 P. Wms. 601. 2 Fonbl. (1) Patterson v. Hatvthorn, 12 Serg'. Sc Kawle, 113. Stone v. Ma&sci/, 2 Veates, 369. (2) Stone v. Jfassey, 2 Yeates, J69. Peittersoti v. Hawthorn, 12 Setg. U Kawle, 114. 306 OF THE EXECUTOR'S ASSENT [BOOK III. the existence of the legatee, though appearing otherwise, being to be proved by the particular means prescribed, and therefore not within the cases 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 necessa- ry — what shall amount to such assent — Jissent express or implied — absolute or conditional — has relation to the testa- tor's death — iv hen once made, irrevocable — 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 (a). (1) 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, independently of them, a fund has been left sufficient for the de- mands 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 as- sent when once given, is considered as evidence of assets, and an admission on the part of the executor that the fund *s compe- tent (b). 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 he 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 (d). Nor has such legatee authority to take possession of the legacy without the (h) Tulk v. Houlditch, 1 Yes. Sc Bea. v. Whitehead, 2 P. Wins. 645. 248. (b) Off". Ex. 27, 28. (a) 3 Bac. Abr. 84. 2 Bl. Com. 512. (c) Off. Ex. 27. 223. 3 Bac. Abr. 84. Jlarg. Co. Litt. 111. Aleyn. 39. Ab- 4 Bac. Abr. 441. Dyer, 254. Keihv. ney v. Miller, 2 Atk. 598. Mead v. 128. Lord Orrerv, 3 Atk. 240. Farrington (d) Mead v. Ld. Orrerv, 3 Atk. 240. v. Knighths 1 P. Wins. 554. Bennet Off. Ex. 222, 223. (1) Wilson v. Rtne, 1 Harr, & Johns. 139. ' ;') Cto (rover, fVitson's Ex. v. Bine, 1 Hair. &. John,, l^e. CHAP. IV.] TO A LEGACY. 307 executor's assent, although the testator by his will expressly di- rect that he shall do so; for, if this were permitted, a testator might appoint all his effects to he thus taken in fraud of his credi- tors (e). Yet, previously to the assent of the executor, a legatee has such an interest in the thing bequeathed, as that, in case of his death before it be paid or delivered, it shall go to his representa- [308] tive (/), or, in case of the outlawry of the legatee, shall be subject to the forfeiture (g). 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 property: 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 insuffi- cient for the payment of debts. But as soon as the executor as- sents, and not before, it shall be effectually discharged (A). 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 sufficient (i). 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. 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 (k). 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 sufficient assent (m). If a term be devised to A. for life, remainder to B. the assent of 0) Off. Ex. 223. C. 460. S. C. 2 Ventr. 358. 4 Bac (f) Off. Ex. 28. Abr. 445. (g) Vid. Off. Ex. 29. (*) 4 Bac. Abr. 445. Off. Ex. 226. (A) Off. Ex. 29, 30. Rider v. Wager, Com. Dig-. Admon. C 6. Shep. Touchs. 2 P. Wms. 332. Vid. Fellowes v. Mit- 456. chell, 1 P. Wms. 83. Sibthorp v. Mox- (I) Off. Ex. 226. am, 3 Atk. 580. {m) Noel v. Robinson, 2 \entr. 358. (») Noel v. Robinson, 1 Yern. 94. S. 309 OF the executor's assent [book hi. 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 (n). •So an assent to such estate in remainder is an assent to Ihe present es- tate (o): For the particular estate and the remainder constitute but one estate (p). 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, whe- ther 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 conformity to the will, be construed an assent to the legacy to A. (§-). So an assent to a devise of a lease for years is an assent to a condition or contingency annexed to it: As, if there be a devise of a term to the testator's widow, so long as she continues unmar- ried; and if she marry, then of a rent payable out of the land; the executor's assent 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 exe- cutor a certain sum annually: such condition is void, and a failure in performing it shall not divest the legatee of his legacy (s). 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 conditional 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 advovvson, 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 becomes payable, the assent by relation shall perfect the legatee's title to these several interests (w). So such assent shall by relation confirm an interme- diate grant by the legatee of his legacy (v). (n) Com. Dig. Admon. C.6. 10 Co. (>•) Com. Dig. Admon. C. 6. 1 Roll. 47 b. 1 Roll. Abr. 620. Plowd. 545. Abr. 620. in note. Adams v. Price, 3 P. Wms. (s) Com. Dig. Admon. C. 8. Off. Ex. 12. 238. 4 Bac. Abr. 445. Leon, 130, 1 >\ (o) Com. Dig. Admon. C. 6. (/) OfT. Ex. 238. • (p) Off'. Ex.' 236. 00 Off". Ex. 240. (?) Off'. Ex. 237. (v) Ibid. 250. CHAP. IV.] TO A LEGACY. 311 If an executor once assent to a legacy, he can never afterwards retract, and, notwithstanding a subsequent dissent, a specific lega- tee has a right to take the legacy (/), and has a lien on the assets for that specific part and may follow them. And an action at law lies against an executor to recover a specific chattel bequeathed, af- ter his assent to the bequest (u). 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 exe- cutor should afterwards assent (v). An assent to a void legacy is also void {w). 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 (#). But if he has not attained the age of twenty-one years, he is incapable by the above-mentioned stat 3S Geo. 3. c. 87. (y), of the functions of an executor, and therefore his assent is of no vali- dity (*). Sect. III. When a legacy is to be paid — to ivhom — of payment in the case of infant legatees — of a married woman — of a condi- tional payment of a legacy — of paymevt 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 ana- logous 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 (a). Legacies to C. " and to the heir of his body," to M. "to be se- cured to her and the heirs of her body," to F. "and to her issue," are absolute legacies: but a legacy to S. "and to her heirs, (say children) S. is only entitled for life (b). If a legacy to an infant be payable at twenty-one, and he die before, his representative cannot claim it till, in case he had lived, he would have come of age (c); unless it be payable with interest, (t) Off Ex. 227. 4 Bac. Abr. 445. (a) 4 15ac. Abr. 434. Smell v. Dee, Mead v. Lord Orrerv, 3 Atk. 238. 2 Sulk. 415. pi. 2. (u) Doe v. Guv, 3 East, 120. (b) Crawford v. Trotter, 4 Madd.Rep. (v) Off. Ex 228. 361. (w) Plowd. 526. (c) Luke v. Alderne, 2 Vern. 51. (x) Vid. supr. 46. Anon. ib. 199. Papwortb v. Moore, (y) Supr. 31. 283. Chester v. Painter, 2 P. Wms. (z) \ id. Com. Dig. Admon. E. Off. 336. Ex.221. 26 313 OF THE PAYMENT OF LEGACIES. [jBOOKlII. and then, as we have seen, such representative has a right imme- diately 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 before 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 f 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 time of the estate falling in. In case a le- gacy 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 enti- tled to the legacy immediately ; for he does not claim under A. , but the devise over is a distinct, substantive bequest, to take effect on the contingency of A's dying during his minority (ej. 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 survivors, 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 (/"). 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 unlimited gift of the dividends, and consequently passes the capi- tal («■)• Where 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 (A). And where 30,000/. South Sea Annuities were given to trustees in trust to pay the di- vidends to A. , until an exchange of certain lands should be made between 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 legacy (*), A legacy was given upon condition " that the legatee should (,-) 4 Rac. Abr. 434. in note. liar. (c) 1 Eq. Ca. Abr. 299, 300. Laundy rison v. Hackle, 1 Stra. 238. 480. Ro- v. Williams, 2 P. Wms. 478. den v. Smith, Ambl. 588. Fonnereau v. (f) Moore v. Godfrey, 2 Vern. 620. Fonnereau, 1 Vez. 118. Green v. Pi- (g) Haijr v. Svvinev, 1 Sim. &. Stu. got, 1 Rro. Ch. Rep. 105. Ilearle v. 487. Greenbank, 1 Vez. 307. Crickctt v. (/>) Fawkes v. Gray, 18 Ves. 131. Dolby, 3 Ves. jun. 10. Vid. supr. 171. (z) Lowther v. Cavendish, 1 Eden's (r/) Gawler v. Standerwick, 2 Cox's ltcp. 99. ficp. 15. CHAP. IV.] OF THE PAYMENT OF LEGACIES. 314 "change the course of life he had too long followed, and give up "low company", frequenting public-houses," &c. The court held that it was such a condition as it would carry into effect ; and the evidence not being conclusive, an inquiry was directed, following the words of the bequest (&). But where an allowance was be- queathed to a feme covert, on condition that she lived apart from her husband, the court held the bequest to be good, and the condi- tion void, as contra bonos mores (J). (1) 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 testator's death ; and if they should not, part of the amount of the legacies to go over. The legatee over claiming the legaey, a re- ference was directed to the Master, to enquire whether the three persons had arrived in England, or claimed the legacy within the three years (m). Afterwards, one of the legatees arrived in Eng- land, and made his claim after the time specified : it was held, the condition was not performed, although the legatee was ignorant till then of the will, or of the testator's death, and no advertise- ment had been made for legatees (?i). Where a legacy was given on condition, that the legatee married with the consent in writing of the executors, and he afterwards married 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 ( p). 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 (k) Tattersall v. Howell, 2 Men. (n) Burgess v. Robinson, 3 Meri. Rep. 26. Rep. 7. (/) Brown v. Reck, 1 Eden's Rep. (o) Worthington v. Evans, 1 Sim. & 140. Stu. 165. (?n) Burgess v. Robinson, 1 Madd. (p) Vernon v. Bcthell, 2 Eden's Rep, 172. and see Careless v. Careless, 1 110. Meri. Rep. 384. and S. C. 19 Ves. 601. (1) A testator, by his will dated September 25th 1815, gave to his daughter, "during her separation from W. C. her husband, one thousand dollars a year," which he charged on his real estate. W. C. and his wife were living separate when the will was made, but cohabited together in February 1815, when the testator made a codicil to his will (changing only the executors), and also at his death, but separated immediately after his decease, and continued to live sepa- rate 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 ct itx. v. Iiemsen, 3 Johns. Cha. Rep. 382. 521. S. C. 5 Johns. Cha. Rep. 459. 314 OF THE PAYMENT OF LEGACIES. [BOOK III. testator's death without executing a release, and, upon his first hear- ing 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 assent in his letters, were held to be evidence of his acceptance (g). 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 exceebing 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 refer- ring 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 (s); (1) and even in the case of an adult child, such pay- ment is not good, unless it be made by the consent of the child, or be confirmed 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 circumstan- ces of hardship in respect to the executor, yet he has been held re- sponsible, 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 acqui- esce, or resort to the father; or, which is in effect the same, insti- [315] tute a suit against the exeeutor, who will of course require the father to refund (w). Thus legacies of one hundred pounds a-piece were bequeathed to four infants; the executor paid the le- gacies 1o the father, and took his receipt 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 immediately, and requested him not to apply to the executor, at the same time promising that he would (7) Earl of Northumberland v. Mar- Thornton, 3 Bro. Ch. Rep. 97. qiiis of Gi-anby, 1 Eden's" Rep. 489. (u) 1 Eq. Ca. Abr. 300. Cooper v. (-/•) Lewis v.Lewis, 1 Cox's Rep. 162. Thornton, 3 Bro. Ch. Rep. 96. 186. 4 (s) 4 Bac. Abr. 429. 1 Chan. Ca. 245. Burn. Eccl. L. 321. Holloway v. Col- (/) 4 Bac. Abr. 431. Cooper v. lins, Chan. Ca. 245. 3 Ch. Ca. 168. (1) Genet v. Tallmad'ge, Morrellv. Dickey, 1 Johns. Cha. Rep. 3, 153. CHAP. IV.] OF THE PAYMENT OF LEGACIES. 315 himself pay it. The son acquiesced for fourteen or fifteen years, during which period his father and he carried on a joint trade, and then became bankrupts. On a commission taken out against the son, this legacy, among other things, was assigned for the benefit of his creditors ; and the assignee filed a bill against the executor, for an account and payment of the legacy, when it was decreed ac- cordingly by the Master of the Rolls, but without interest; and the decree affirmed by the Lord Chancellor on an appeal. His lord- ship, 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 [316] benefit (n). 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 order- ed to be paid to another (w). If the direction had appeared on the face of the will, the decree, doubtless, would have been differ- ent (x). So, where A. left a legacy of a hundred pounds to each of the three children of B. and appointed C. her executor, leav- ing him the bulk of her estate, provided he paid those three lega- cies within a year after her death : The defendant within that pe- riod paid into the children'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 deni- ed 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 un- der the will, he ought not to pay them over again ; but, on farther consideration, conceiving the point to be very doubtful, his lord- ship recommended a compromise ; and the defendant agreeing to [317] pay fifty pounds, to be divided between the three plaintiffs, without costs on either side, they were ordered to release their le- gacies (y). The rule, however, is not so harsh, as that in all possible cases an executor shall be liable to pay over again legacies of infants, which he shall have paid to their parents (z). Thus, where A. bequeathed to J. S. a hundred pounds to be equally divided be- tween himself and his family, the executrix paid the legacy to J. S. (t) Dagley v. Tolferry, 1 Eq. Ca. Ab. v. Thornton, 3 Bro. Ch. Rep. 96. 300. 1 P. Wms. 285. S. C. Gilb. Rep. (w) Cooper v. Thornton, 3 Bro. Ch. 103. S. C. 4 Burn. Eccl. L. 321. S. C. Rep. 96. Vid. Maddox v. Staines, 2 P. Vid. also Philips v. Paget, 2 Atk. 81. Wms. 421. and Cooper v. Thornton, 2 Bro. Ch. (x) Vid. infr. Rep. 96. (y) Philips v. Paget, 2 Atk. 80, 81. (w) 1 P. Wms. 286. in note. Cooper (z) Ibid. 81. 317 OF THE PAYMENT OF LEGACIES. [BOOK III. who had a wife and seven children, six of whom are adults, and the seventh an infant : Eleven years after the youngest had come of age, and the legacy never having been demanded, they filed their bill against the executrix for the same, insisting that the pay- ment to their father was invalid : It was held, that according to the terms of the will, the legacy was properly paid to J. S. ; and that it belonged to him as trustee to divide it : And even on supposi- tion, that the payment was wrong, the great laches, and long ac- quiescence of the plaintiffs precluded them from all remedy (a). 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 per cent, till their respective leo-acies 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 {b). In case a legacy be too inconsiderable in point of value, to bear the expence of an application to the court of chancery, it seems an executor will be justified in paying it into the hands of the in- fant, or, which amounts to the same thing, to the father (c); but in o-eneral he is not warranted in so doing, unless he be clearly au- thorized by the will. And if a suit be instituted in the spiritual court for an infant's legacy by the father to have it paid into his hands, an injunction (d), 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 ab- sence beyond the seas, of any legatee, the executor cannot pay a legacy chargeable with duty by virtue of that act, (that is to say) o-iven by any will or testamentary instrument of any person who shall die after the passing of that act, it shall be lawful for him to pay such legacy, after deducting the duty chargeable thereon, in- to the Bank of England, with the privity of the accountant-gene- ral of the court of chancery, to be placed to the account of the le- gatee, for payment of which the accountant-general shall give his [319] certificate, on production of the certificate of the commission- ers of stamps that the duty thereon hath been duly paid ; and such payment into the bank shall be a sufficient discharge for such lega- cy, which when paid in shall be laid out by the accountant-gene- ral in the purchase of 3 per cent, consolidated annuities, which, with the dividends thereon, shall be transferred or paid to the per- son entitled thereto, or otherwise applied for his benefit, on appli- («) Cooper v. Thornton, 3 Bro. Ch. v. Seton, 2Bro. Ch. Rep. 613. Off. Ex. Rep. 96. 219, 220. Bilson v. Saunders, Bunb. (/,) 4 Bac Abr. 433. Daviesv. Aus- 240. ten, 3 Bro. Ch. Rep. 178. (d) Rotheram v. Fanshaw, 3 Atk.629. (c) 4 Burn. Eccl. L. 321. 1 Ch. Ca. Per L).• [326] Whether a legatee, if a natural child, be also comprised within the exception, is not so clear. Lord Hardwicke, C. express- ed an opinion in the negative, as well on the principle of law, which recognizes no relationship in such child, as also on the general po- licy of encouraging marriage, and discountenancing immorality (c). In a recent case, the Master of the Rolls intimated, that illegitimate children were to be admitted to the same benefit (d). 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 tes- tator 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, detlicd to him (g). (1) 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- («) Chambers v. Goldwin, 11 Ves. (e). Lowndes v. Lowndes, 15 Yes, urn. 1. flirt. 301. (i) Carev v. Askew, I Cox's Rep. '(f) Hill v. Hill, 3 Ves. & Bea. f83. 243. (g) Haughjon v. Harrison, 2 Atk. (c) Hearlcv. Greenbank, 1 Vez. 310. i >o'. Butler v. Butler; 3 Atk. 59. 4 {7o. Rayner, 5 Madd. Rep. 208. (b) Ashburner v. Macguire, 2 Bro. (y) Partridge v. Partridge, Ca. Temp. Ch. Rep. 108. 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 against P. P. and J. P.," and after such bequest the testator, at the request of one ol the obligees, accepted another bond in lieu of the first, it was held not to be an ademp- tion of the legacy, which was ?peeinc. Stout \ Hurt, 2 Halst Rep. 414. 334 OF CUMULATIVE LEGACIES. [BOOK III. 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). (1) 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 whe're 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 a 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 (d). So where an unconditional legacy was given by a third testamentary paper, it was held to be a substitution for a conditional legacy to the same amount, 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(/). 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 testator's intention ; as where a latter codicil appears to be [336] merely a copy of the former with the addition of a single Ie~ (o) 4 Bac. Abr. 361. Ridges v. Mor- Madd. Rep. 263. and see Gillespie v. rison, 1 Bro. Ch. Rep. 3£9. Coote v. Alexander, 2 Sim. & Stu. 145. Boyd, 2 Bro. Ch. Rep. 527. . (/) 1 Bro. Ch. Rep. 392. in note (b) Hooley v. Hatton, 1 Bro.Ch. Rep. Vid. Coote v. Boyd, 2 Bro. Ch. Rep. 391, in note. 521. (c) 1 Bro. Ch. Rep. 392, in note, and (g) 1 Bro. Ch. Rep. 391. and ibid. 393. in note. Masters v. Masters, 1 P. Wins (d) 1 Bro. Ch. Rep. 392, in note. 423. 1 Ch. Ca. 361. Foy v. Fov. 1 Swinb. p. 7. s. 21. 1 Bro. Ch. Rep. 30, Cox's Rep. 163. Baillie v. fiutterfield, in note. 4 Bac. Abr. 361. Masters v. ibid. 392. Benvon v. Benyon, 17 Ves Masters, 1 P. Wms. 424. 34. (e) Attorney-General v. Harley, 4 (1) See the doctrine fully stated, De Witt v. F/tfes, 10 Johns, Rep. \S6 CHAP. IV.] OF CUMULATIVE LEGACIES. 336 gacy ; or where both legacies are given for the same cause : they shall not be cumulative, whether given by the same or different in- struments, as they shall be where one is given general^, and the other for an express purpose ; or where one reason is assigned for the former, and another for the latter ; or where the legacies are not ejusdem generis, as where an annuity and a sum of money is given (A), or two annuities of the same amount, by different instru- ments,- the one payable quarterly, the other half-yearly (i) ; 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 (k). In like manner it may be collected from the context, whether the testator meant a duplication, or a mere repetition of the first bequest. And his intention has been inferred from very slight circumstances (/). Extrinsic evidence is also admissible on this subject. Whether the testator by giving two legacies did, or did not, intend the le- gatee to take both, is a question of presumption, which will let in every species of proof (m). Hence, if the testator, after the mak- ing of the will, and before the date of the codicil, had an increase of fortune, that circumstance has been held to prove that he intend- ed an additional bounty (n). Sect. VI. Of a legacy being in satisfaction of a debt. Undek certain circumstances, a legacy is regarded in the light [337] of a satisfaction of a debt. On this point also, the intention of the testator is the criterion (a). It is a general rule, that a legacy given by a debtor to his credi- tor, which is equal to or greater than the debt, shall be considered as a satisfaction of it (6). (1) (h) Masters v. Masters, 1 P. Wins. 527, 528. 4 Bac. Abr. 361, in note. 423. (rc) Masters v. Masters, 1 P. Wms. (0 Currie v. Pye, 17 Ves. jun. 462. 424. (k) Wright v. Lord Cadogan, 2 Ed- (a) 4 Bac. Abr. 362. Cuthbert v. en's Rep. 239. Peacock, 1 Salk. 155. pi. 5. Cranmer', (/) 4 Bac. Abr. 361. Duke of St. case, 2 Salk. 508. 2 Fonbl. 332. Alban's v. Beauclerk, 2 Atk. 640. Rid- (J) 1 P. Wms. 409, note 1. Talbot ges v. Morrison, 1 Bro. Ch. Rep. 389. v. Duke of Shrewsbury, Prec. Ch. 394, Coote v. Boyd, 2 Bro. Ch. Rep. 521. Jeffe v. WoofT, 2 P. Wms. 132. Fow- 1 P. Wms. 424, in note 2. Benyon v. ler v. Fowler, 3 P. Wms. 353. Reech Benyon, 17 Ves. jun. 34. v. Kennegal, 1 Ves. 126. Vid. Cromp (m) Coote v. Boyd, 2 Bro. Ch. Rep. ton v. Sale, 2 P. Wms. 555. (1) Williams v. Crary, 8 Cow. Rep. 246. But a devise of lands to a creditor, though it be greater in value than 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. & Johns. 63. .J.17 <>i A LEGACY TO A CflMfiDlTOR. [BOOK 11/. But thii ii merely i rule of construction, and the courts in s va riety .'of instances have denied the application of it, where they hare been able to collect from the will circumstance! to repel the pre ■umption (c) i As where it contains an express direction for the payment «»i debt* (of), (1) or if the l« ^,:ny l>e less then the debt, it has been held not to go in discharge, nor even in diminution of Nor shall the legacy be a satisfaction ii it be conditional, or giv en on ; > contingency, for it shall not be supposed, that the testatoi intended an uncertain recompence in satisfaction of a certain de mand (./')■ Nor is a legacy considered as s satisfaction, where it is not equally beneficial with the debt in one respect, though itmay be more so in .umi lur ; as, where the. legacy is to a greater amount, 1 338 1 l>nt. tin; payment of it is postponed tor howover short a pei i od (g) -. nor shall a legacy be held to l^: in satisfaction of a cove nant, unless it be equally beneficial in amount, certainty, and time of enjoyment, with the thing contracted for (/*). Nor if the debt were on an open or running account, so that the i ( slat or could not tell whether the balance was in favour of the lega- tee or not (t). (.'{) 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 cohtemplation to satisfy a debt which was not then in existence (/<•). Parol declarations l>y the testator are admissible in evidence, to repel the presumption of the satisfaction ol a debt, by the bequest (c) l r. Wins. 400, noti • i. 136 n, . . i Warner, 3 Vein. 47d. (V) Chancly'i cue, I P. Wra*. 410. Nicholls v. Judson, 2 Atk. 300. Clarl Richardson v. Grease, 3 A i k . 86. 68. v. Sewell, 3 A i k . 96. Hayes v. Mico, •,. il \ id. • ..i\ nor Vi vVorni, ;it the Rolls, I Bro. Ch. Rep. 129. Jeacoi l< v. i ' kill cited i P. Wins. 409. note 1. and4Bac. ener, ib. 295. 2 Fonbl. 331. note \i M,r. 4 18 Mathews v. Mathews, ! \ i •. 63 I I (,) Cranmer's case, 2 Balk. 508. P. Wmi. 409. note 1. n.iwts v. Warner, 2 Vern. 478. Bait- (A) Blandy v. Wedmore, l P. Um wood v. Vinke, 2 P.Wms. 616. Mi 124 409, noti i Eastwood i Vink mi< I v. Bazarine, Mos. 29 I 'J P. Wms. 61 I. ! Fonbl 3 ■ '. noti O (/') 2 Fonbl. 331. Talbol v. Duke [i] Rawlins v. Powel, I P. IVms oj Shrewsbury, Pn i , Ch. 394 Cran- 299 •. . ,, , sj Ball 508. Nicholli v. (/,■) 2 Fonbl 331, 132. 2 SaU JucUon, 2 Atk. 300. Bpinks v, Robins, Chancey'n case, I P. Wmi. 409. Tho ib 491. Crompton v. Sale, 2 P. Wins, maav. Be t, !P.Wm« 143, Fom ..> Barret v. Beckford, I Vet. 519. Icr v. Fowler, 3 P. Wmi. 353. (fr) Atkinson v. Wei»i ., Prec. Ch. (1) sin ii express direction Uot no moment in Pennsylvania. ISerg.fi Rawli . (2) Strong v. Williama t 12 Man Rep. 391. Byrne v. Byrne, 8 Berg. & Rawli , M. Owingr I'.i v. Owinga, I Harr, oc Gill's Bep. 484. (.'?) Willtiinin v. Crary, 5 Cow Rep. 368. Bu1 it was lubsequentl) ruled i» On. i :ihc, thai win i ' thi Ii r-i' >■ appi an, either from the face of the will, or by evidence aliunde, to be intended by the testatoi i latisfaction, it will so opi te, though the sum bequeathed stand in diquidat d ,( Willian i Rep 246, CHAP. IV. j OF A LEGACY TO A CREDITOR. 338 of a legacy of greater amount, even where such declarations were not contemporaneous with, hut subsequent to the making of the wilL; (l)and although the expressions in the will may alfurdan infer- ence in favor of the presumption (7). But in all cases the legacy shall he construed as a satisfaction, in case there he a deficiency of assets. Where a legacy is decreed to he in satisfaction of a debt, the court always gives interest from the testator's death (m). On the other hand, if a legacy he 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 .-is the debt amounts to, and consequently to be satisfied pro tmito; 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 (n). 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 (p). 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 af- terwards died without having asserted any claim in respect of the legacy and the assignees claimed it, it was held, that the executors of the testatrix were entitled to retain the legacy in part discharge of the debt due to the testatrix (a). [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- (/) AVallace v. Pomfret, 11 Ves. jun. (p) Rider v. Wager, 2 P. Wins. 332. 542. Sed vid. 3 P. Wms. 354. * (f/) Ranking v. Barnard, 5 Madd. Rep. (to) Clark v. Sewell, 3 Atk. 99. 32. In) Jefli v. Wood, 2 P. Wms. 128. (a) 2'Fonbl. 374. 2 Bl. Com. 513. (o, Stif.r. 308. Clifton v. Burt, 1 P. Wms. 679. I (1) Williams v. Cranj, 8 Cow. Rep. 246. 339 THE ABATEMENT OF LEGACIES. [BOOK III. tion or recompence of an injury done by him, abate any more than a specific -legacy (b). But a legacy, although devised to be paid in the first place, shall abate, if the fund be insufficient for the lega- cies (c), unless,- perhaps, it be a provision for a wife (d). (I) 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 according- lyC/)- (2) It A. devise specific and pecuniary legacies, and direct by the will that such pecuniary legacies shall come out of all his personal estate, 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 (g). So a legacy in favour of a charity, although preferred by the civil law, shall by our law abate equally with other general legacies (h). So a legacy to servants shall abate in the same manner (£). But where a legacy of 200/. was bequeathed for building a mon- ument 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 {k). So where 3/. were given to the poor of three several parishes, it was considered by the Court as part of the funeral and as doles of the funeral, and therefore held that no abatement ought to be made out of them (/). And where the testator, after giving various legacies, expressed at the end of his will his apprehension that there would be a consider- able surplus of his personal estate beyond what he had before given away in legacies, for which reason he gave several further legacies; and afterwards, by a codicil, he gave several other legacies. It was decreed, that the subsequent legacies given by the will having been given in a presumption that there would be a surplus, 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 (6) 2 Fonbl. 377. Tate v. Austen, 1 P. Wms. 265. Mas- (c) 2 Fonbl. 378. Brown v. Allen, 1 ten? v. Masters, 422. Earl of Thomond Vern. 31. Beeston v. Booth, 4 Madd. v. Earl of Suffolk, 462. Attorney-Ge- Rep. 161. neral v. Hudson, 675. Attorney-Ge- (d) Lewin v. Lewin, 2 Vez. 417. neral v. Robins, 2 P. Wms. 25. 296. (e) Vid. supr. 303. (?') Attorney-General v. Robins, 2 P. (/) Hume v. Edwards, 3 Atk. 693. Wms. 25. Lewin v. Lewin, 2 Vez. 417. Sed vid. (k) Masters v. Masters, 1 P. Wms. Peacock v. Monk, 1 Vez. 133. 423. (g) Sayer v. Sayer, Prec. Ch. 393. (/) Attorney-General v. Robins, 2 P. 2 Fonbl. 377, 378. Wms. 25. (A) Jennor v. Harper, Prec. Ch. 360. » — ^— (1) Stuart v. Carson's Ex. 1 Desaus. Rep. 500. See, however, Jett, Ex. v. Bernard, 3 Call's Rep. 11. (2) A bequest of "twenty negroes," not designated by name, is a specific le- gacy of the second description, and liable to abate with pecuniary legacies, War ten v. JVigfu/l, 3 Desaus. Rep. 47. fcHAP. IV.] THE AHATEMEV1' OF LEGACIES. 340 lost. That the same apprehension of a surplus must be intended to have continued in the testator at the time of making; his codicil, and, therefore, unless the inference can be repelled, the legacies by the codicil must be lost also (?n). In case of a deficiency of general assets, that is to say, of assets to pay debts, specific legacies, although not liable to abate with the general legacies, must abate in proportion among themselves (n). 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 de- creed, as between the devisee of the estate and the legatees and an- nuitants under the will (o). f We have before seen (p) thata testator may carve specific legacies out of a specific chattel ; now, in such case, if the chattel so parcel- led out prove deficient, such specific legacies must abate proportion- ally amongst themselves (q). And in a devise in trust to sell, but not for less than 10,000/., and to pay several sums amounting to 7,S00/., and the overplus moneys arising from the sale to A., it was held a specific legacy of 10,000/., and the sale producing less, that A. and the others should abate (?•). Such is the advantage to which a specific legatee is entitled, that he should not contribute with the other legatees in case of a defi- ciency. But, on the other hand, he is subject to a risk ; as, for ex- ample, if such specific legacy be a lease, and there be an eviction ; or if goods, they be mislaid or burnt ; or if a debt, it be lost by the insolvency of the debtor : in all these instances such specific lega- tees shall receive no contribution (s). [341 J On the same principle, legatees in certain circumstances are bound to refund their legacies, or a rateable part of them, as in all cases of a deficiency of assets for the payment of debts (t). If the fund be merely insufficient to pay the legacies, and the execu- tor pay one of the legatees, a distinction is to be remarked between cases, where such payment was voluntary, and where it was com- pulsory ; and also between cases in which the assets were originally deficient, and where they became so by his subsequent misapplica- tion of them. If the executor paid the legacy voluntarily, the law presumes that he has sufficient to pay all the legacies, and the other legatees can resort only against him. The legatee, who has been paid, is subject to no claim on the part of the other legatees («) ; (m) Ibid. 23. (r) Page v. Leapingwell, 18 Yes. («) 2 Fonbl. 377. note (q). Duke 463. of Devon v. Atkvns, 2 P. Wins. 382. 0) Hinton v. Pinke, 1 P. Wms. 540. Long v. Short, IP. Wms. 403. Webb (?) 2 El. Com. 513. Noel v. Robin- v. Webb, 2 Vern. 111. son, 1 Vern. 94. Hodges v. Wadding-- (o) Headley v. Redhead, Coop. Rep. ton, 2 Ventr. 360. 50. ( M ) On- v. Raines, 2 Vez. 194. Ne\y- (p) Vid. sup. 302. man v. Barton, 2 Vern- 205. {q) Sleech v. Thorington, 2 Vez. 563. 2). [3S0] 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 (/) 2 P. Wms. 435. 1 Eq. Ca. Abr. (/) Proud v. Turner, 2 P. AVms. 560. 249. pi. 10. 2 Eq. Ca. Abr. 446. pi. 3. (m) Com. Dig". Admon. H. 4 Burn. (g) Per Sir Jos. Jekyl, M. R. argu- Eccl. L. 344. Fitzg". 285. endo. 2 P. Wms. 442. • («) Com. Dig-. Admen. H. Fitzg-. (k) Per Lord Raymond, C. J. argai- 285. endo. 2 P. Wms. 446. (o) Phiney v. Phiney, 2 Vern. 638. (I) 2 P. Wms. 440. 445. 449. (p) 4 Burn. Eccl. L. 344. Edwards (/.•) 3 Rac. Abr. 77. Ward v. Lant, v. Freeman, 2 P. Wms. 440. 443. Prec. Chan. 182. 184. 380 OF ADVANCEMENT. [BOOK III. gold watch or wedding clothes, shall not he deemed an advance- ment (q); (I) nor shall money expended by the father for his main- tenance, nor given to bind him apprentice, nor laid out in his edu- cation 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 distributions was grounded on the custom of London, which never affected a widow's personal estate, and seems to include those only within the clause of hotchpot, who are capable of having a wife as well as children, which must be husbands (s). 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 considered in that light. Nor land given by the father's will to a younger child (I). Such a provision as shall be construed an advancement, must re- sult from a complete act of the intestate in his lifetime (u), by which he divested himself of all property in the subject, though, as we have just seen (to), it may not take effect in possession till after his death. Still less shall property given or bequeathed to the [381] child by any other person be so denominated (x) ; and least of all, shall a fortune of his own acquisition (y). In respect to Borough English lands, which descend to the youngest son, i[ 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 (z). 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 exists to oblige the heir in Borough English to bring in his lands. 1 he 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 (a). Thus must the surplus be distributed in case the intestate has left a wife and children, or representative of children. (q) 3 P. Wms. 317. note (o). El- (u) 2 P. Wms. 440. liott v. Collier, 1 Ves. 16. Garon v. (w) Vid. supr. 377. Trippit, Ambl. 189. Elliott v. Collier, (x) 3 Bac. Abr. 76. Swinb. p. 3. s. 3 Atk. 528. 18. (r> 3 Bac. Abr. 76. Swinb. p. 3. s. (y) Swinb. p. 3. s. 18. 18. Edwards v. Freeman, 2 P. Wins. (z) Per Sir Jos. Jekyl, M. R. Stra. 449. 935. (*) Holt v. Frederick, 2 P. Wms. (a) Per Lord Talbot, C. Lutwvche 356. v. Lutwvche. Ca. Temp. Talb. 276. 4 (/) Edwards V. Freeman, 2 P. Wms. Burn. Eccl. L. 345. 440, 446. (1) Af'Caw v. Blnoit, 2 M'Cord's Cha. Rep. 102. CHAP. VI.] OF ADVANCEMENT. 382 The statute then provides, that if there he 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 ; hut no representation among collaterals shall he admitted farther than hrothers' 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. (1) 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 (b). 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 (d) : but by the stat. 1 Jac. 2. c. 17. s. 7. if, af- ter 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 hus- band (e). [3S3] On this last-mentioned statute it has been held, that if A. die intestate, and without issue, leaving a wife, and several bro- thers and sisters, and his mother living, the mother shall have no more than an equal share of a moiety of the estate with the bro- thers 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 bro- ther nor sister, nor representative of a brother or sister, the' case is without the statute, and the whole of such intestate's effects shall devolve, as before, to his mother (g). Also, by analogy to the sta- (b) 2 Bl. Cum. 515. Lloyd v. Tench, Davis, Com. Rep. 26. pi. 95. 2 Ves. 214. (/) Kcvlwav v. Keylway, 2 P. (c) Vid. supr. 87. Wms. 344" S. C 1 Stra. 710. S. C. {d) 2 Bl. Com. 513, 516. Evelyn v. Gilb. Rep. 189. Stanley v. Stanley, 1 Evelvn, Ambl. 192. Atk. 455. (e) Blackborough v. Davies,-1 Salk. (g) 4 Burn. Eccl. L. 374. 11 Vin. 251. pi. 2. S. C. 1 P. Wms. 4S, 49. Abr. 196. S.C. Lord Raym. 684. Blackborough«v. ft (1) Under the intestate laws of Pennsylvania, if a man die intestate leaving neither widow nor lawful issue, nor father, brother, nor sister, but leaving a mo- ther, real estate acquired by his father, and descending - to him, goes to his rela- tions on the part of the father, in exclusion of the relations on the part of tlie mother, in equal degree. Sevan v. Taylor, 7 Serg. &. Rawle, 397, overriding Walker's Mm. v. Smith, 3 Yeates, 480. 33 383 OF DTSTIM I'.iri ION. | HOOK I i 1 1 1 < ol dintribiUions such representation shall nol f>c carried be- yond brothers' and sisters' Children (A). A mother in-law of the intestate, it. is clear, can claim no Bhare in the distribution, she not being <>i his blodfcl (i). 'I'd return now to the. statute of distributions. That clause ol' it which expresses that there shall he no representations among col- laterals beyond brothers' and sisters' children, must, hi: construed to mean brothers and sisters ol' tin-, intestate, and nol. ;is admitting representation, when the distribution happens to fall among hro- thers and sisters who arc remotely related to the intestate ; for the intestate is the subject of the act : it is his estate, his wife, his chil- dren, and far the same reason his brothers' and sisters' children, foi [3S4] he is equally correlative to all (&). Therefore it has been held, thai, if the brother of an intestate hath a grandson, and a sis- ter has a son, or daughter, the grandson shall not have distribution with the son or daughter of the sister(/). So it has been decreed, thai if an intestate leave an uncle, and a deceased aunt's son, th< latter shall have no distributive Bhare (m). Tims though as we have seen (//.), among lineals, representatives ad infinitum shall share in the distribution of an intestate's personal estate, yet among collaterals, except only in the instance of the intestate's broth 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 take per capita. Therefore, if an in tate leave a deceased brother's only son, and ten children of a de- ceased half-sister, the ten children of the deceased half-sister shall talce ten parts in eleven with the son of the deceased brother (d). The words of the statute must be taken together. The expres- sion ;;w; suo cu'h/ik: jure, will let in any advantage of equality or preference! which a person was entitled by our law before- the sta- tute. Therefore a grandfather, ah hough he be in an equal degree ol consanguinity 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 brothel-, and it wonld be un- natural to carry the personal estate up to the grandfather, who must be presumed to have been long before provided for, and to be go- ing out of life (]>). So a grandfather shall exclude an uncle ; ami, independently of the provisions of the statute, by the common law the former was (//) Stanley v. Stanley, 1 AiU. '157, 1 I*. Witts. 25. Bowers v. Link. •il>. (») Duke of Rutlanti v. Duchess of (/) I Salk- 250. 1 1..1. Raytn. liiiul, 2 I'. Wins. 216. 1 P. Wins. J>. Com. Rep. 87. ! Carter v. Crawley, Raym. 496. {m) Bowers v. Littlewood, 1 »' Caldicot v. Smith, 2 Show. 286. Bcc» Wms. 594, ton v. Djrkin, "■ Vern. 168. Maw v. (») Bupr. 373. Hartlinjf, ibid. '233. Petl v. IMl, 1 (u) "''"I- 1 P- Wiuj Sulk. 250. S. C. U<1. Raym. 571. S. (/<) Kvelyn v. Kvelyn, Amltl C. CoiA l.'<-|>. 87. |)1. 5p. I'i-H's r;\ ;e, vij. Sllpr. 90 lllltl 91,. CHAP. VI.] OF DISTRIBUTION. 381 entitled to a preference, as being of the right line, whereas the lat- ter 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 (//). The law, of course, is the same in respect to grandmothers and aunts (Y). 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 moi- eties, as being in equal degree: for, in respect of such claims, as hath formerly been observed (s), dignity of blood makes no differ- ence (t). 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 tbey 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 (u). The grand-daughter of a sister, and the daughter of an aunt ot the intestate are also in equal degree, and entitled to equal distribu- tion (w). The next of kin, though collateral, is preferred before a relation, though lineal, if he be of the ascending line, and more remote (ar), [3801 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 personal representative ; for this proviso makes no suspension or condition, precedent to the interest of the parties, but was insert- ed 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 resemble 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 repre- sentative of the first testator ( y). (1) (q) Blackboroutrh v. Davis, 1 Salk. (w) Com. Dig. Admon. II. Thomas .18. 251. S. C. i.d. Raym.684. S. C. v. Ketteriche, 1 Ves. .... Com. Rep. 96. 108, 109. S. C. 12 (j;) Blaftkborough v. Davielj 1 I'. Mods 61.5. Lloyd v. Tench, 2 Ves. Wms. 51. 215. Blackborough v. Davies, 1 P. (//) 3«Bac. Abr. 75. Brown v. Fani- Wms. 41. clcli, Carl.li. 51, 52. Frcke v. Thomas, (r) Com. Dig. Atlmon. II. 1 Salk. Cobb. 112. Taylor v. Acres, 2 Show 38. 2.51. Woodroif v. Wickworth, 285. Palmer v. Allicock, Skin. Prec Ch. 527. 218, S. C. 3 Mod; 58. 11 V"m. Al*r. 92 (s) Supr. 91. Wilcock's v. Wileocks, 2 Vern. 559. (I) Blackborough v. Davies, 1 P. 3 P. Wins. K). note (rf). Lei v Cos 53. \ \ik. 422. Vi'l itpr. ..-l ' (u) Qucant v. PreStwood, 1 Atk (1) As to the m legal yeprcs titatire**' undeft a Icvi ■> H'"'< 386 OF DISTRIBUTION. [BOOK III. 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 former leaving a wife, and the latter a husband ; on xY.'s dying afterwards intestate, such husband and wife have neither of them any claim on his estate. Under a will, a wife is not one of the next of kin in the ordinary sense. Therefore where a testator gave the residue of his proper- ty " to be divided amongst my next of kin, as if I had died intes- tate," the widow was held not to be entitled to any share of such residue (r). 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 («). If a bastard, or any other person having no kindred, die intestate, [387] without wife or child, his effects, as we have seen (b), 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 enjoyment 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,(l) and such is prima facie the place of his residence; but that may be rebutted ; or supported by circumstances {d) ; for although the locality of the party's abode at the time of his death determine the rule of distribution, yet it must be a stationary, not an occasion- al, residence, 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 resident abroad die intestate, his whole property here is dis- (z) Garrick v. Lord Camden, 14 (d) 2 Ves. jun. 198. See also Sir Ves. jun. 372. Chas. Douglas's case there cited. ' («) Smith v. Campbell, Coop. Rep. (e) 1 Wooddes. 385. Pipon v. Pipon, 275. Ambl. 25. Burn v. Cole, ib. 415, 416. (4) Vid. sup. 107. (/) Thorne v. Watkins, 2 Ves. 35. (c) 2 Bl. Com. 505. Doug. 542. 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 sundry 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 right of preemption, to certain lands on the west branch of Susquehanna river, to settlers and their legal representa- tives, (Carey & Bioren's Laws, vol. 3. p. 519.) see Comm. v. Bryan, 6 Serg. & Rawle, 81. Duncan v. Walker, 2 Dall. Rep. 205. (1) Guier v. 0' Daniel, 1 Binn. 349. Harvey v. Richards, 1 Mason's Rep. 381; and the case* there cited by Judge Story. Williamson v. Smart, Tayl. Rep. 219. Cam. &, Norw. 146. CHAP. VI.] OF DISTRIBUTION. 387 tributable according to the laws of the country where he so resides, otherwise no foreigner could deal in our funds hut at the peril of his effects going according to our laws, and not to those of his own country (g). 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 [388] sold the property of the intestate, and invested the produce in the English funds, and afterwards came to England with her children, and was domiciled there : A question arose on the death of some of the children underage, whether their shares of the pro- perty became distributable according to the law of England or of Guernsey ; and it was held, that the law of England was to govern the succession, the domicil of the children being (according to the opinion of foreign jurists, our own law being silent on the subject) to follow the domicil of the surviving parent, where no fraudulent intention can be imputed. But fraud may be presumed where no reasonable cause appears for the removal (A). Sect. II. 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 dis- tributing intestate's effects, are expressly excepted from the opera- tion 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 W. <§• M. c. 2. explained by the 2 & 3 Ann. c. 5. for the province of York ; the 7 & 8 W. 3. c. 38. for Wales ; and the 11 G. 1. c. 18. 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 con- trary are totally barred ; yet those customs remain in full force with respect to such property of an intestate (a), or where the de- ceased freeman agreed by writing, in consideration of marriage or otherwise, that his personal estate should be distributed according to the same. Their nature and incidents therefore demand now our attention. (g) 1 Wooddes. 585. Pipon v. Pipon, Rep. 67. Anibl. 27. (a) 2 Bl. Coin- 493. 517, 518. L. of (A) Potinger v. Wightman, 3 Meri. Test. 194. 3 P. Wnis. 19. in note. .389 • OF DISTRIBUTION [liOOK III. [38.0] In the city of London (b), and in the province of York (c), as well as in the kingdom of Scotland (d), and therefore, probably 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 accord- ing to the ancient doctrine of« thenars rationabilis (f), to which I have before alluded (g). And first, as to the custom of London ; if a freeman of the city die, leaving a widow and children, his personal property, after de- ducting her apparel, and the furniture of her bed chamber, is divid- ed into three equal parts, one of which belongs to the widow, ano- ther to the children, and the third to the administrator in that char- acter. If only a widow, or only children, they shall respectively in either case take one moiety, and the administrator the other (A). If neither widow nor child, the administrator shall have the whole (i). The portion of the administrator is styled in law the dead man's part. It is so called, because formerly, as we have seen (&), the or- dinary or his grantee 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 ca- pable 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 person- al estate, leaving a widow and two children, this estate shall be di- vided 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 (m). A posthumous child shall come in for his customary share with the other children (n). But the custom extends merely to the (b) Redshaw v. Brasier, Lcl. Raym. 3 Atk. 527. 1329.* 4 Burn. Eccl. L. 387. (i) Percival v. Crispe, 2 Show. 175. (c) 4 Burn. Eccl. L. 398. Vid. L. of Test. 192. (//) [bid. 421. (A-) Supv. 81. (e) Ibid. 423,442. ' (/) Anon. 2 Freem. So. Matrtews \ (/) 2 Bl. Com. 518. Off". Ex. 97. Newbv, 1 Vern. 133. (Z) Supr. 81. (mj 2 Bl. Com. 518. L. of Test. 289 (//) Northey v. Strange, 1 P. Wins. (») Walsafn v. Skinner, Prec. Chan. 341. Rcgina v. Rogers, 2 Salk. 426. 499. L. of Test. 203. 11 \ in. Abr. Turner v. Jennings, 2 Vern. 612. L 200. Gilb. Eq. Rep. 155. of Test. 210, 21 f Elliot v. Collier. < J 1 1 A P . VI. 1 BY THE CUSTOM Ol LONDON. 390 "J^ ' -*■' '■' wife and children of the freeman, and not lo his grandchildren (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 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 (p). The custom attaches, although the freeman neither resided, nor died (q), 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 (s) ; 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 (7)- 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 (u). [392] If she be provided for by a jointure before marriage in bar of her customary part, she is put in a state of nonentity with regard to the custom only (w) ; but she shall still be entitled to her share of the dead man's part under the statute of distributions (x). But if the jointure is expressed to be in barof her dower without saying more, this shall not bar her of her cus^pmary share of the personal estate, for land is wholly out of the custom Qj). 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 O). And a fortiori she shall not be excluded from her customary (o) Northey v. Strange, 1 P. Wms. («) Swinb. p. 6. s. 13. 341. Fowke v. Hunt, 1 Vcrn. 397. (w) Hancock v. Hancock, 2 Vern. Regina v. Rogers, 2 Salk. 426. L. of 665. Blunder v. Barker, 1 P. Wms. Test. 210. 644. Cleaver v. SpUrling, 2 P. Wins. (p) L. of Test. 192. 221, "222. 1 527. Levvin v. Lewin, 3 P. Wms. Vein. 200. 16. Pusey v. Desbouverie, 315, Med- (?) L. of Test. 202, 220. Spencer's calfe v. Medcalfe, 1 Atk. 64. Morris case, 1 Roll. Rep. 316. Wilkinson v. v. Burroughs, 403. Tomkyns v. Lad- Miles, 1 Sid. 250. Harwood's case, broke, 2 Ves. 592. 1 Ventr. 180. S C. 1 Mod. 80. Butter (a?) Benson v. Bellasis, 1 Vern. 15. v. Butter, 1 Vern. 18). Chomlev v. 2 Chan. Rep. 252. Withill v. Phelps, Chomlev, 2 Vern. 48. 82. Webb v. Prec. Ch. 327. Webb, lb. 110. (?/) 1 Ca. Abr. 1-58, 159. Babington (r) Priv. Lond. 2S3. v. Greenwood, 1 P. Wms. 531. Bluii- (.*) 2 Bl. Com. 518. tier v. Barker, 647. Babington v. (/) 7 Mn. Abr. 2. tit. Customs, P.. Greenwood, Prec. Chan. 505. L. of 2. P.riddle v. Briddle, 4 Buriv. Eccl. L. Test. 214. (=)'S. C. 1 P. Wms. 532. 392 OF ADVANCEMENT [BOOK III. .share, if the settlement he so expressed ; as if it contain a proviso, that she shall not he harred 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 (b) : or if it be 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 (fi/). If the wife be divorced for adultery a mensd et thoro, 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 (f) ; whereas the share by the 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 (g). But the survivorship of the ophanage 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 (A). In case there be only one child, his or- phanage part is vested in him, in the same manner as his share by the statute, and is devisable by him at the same age (i). 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 (k). 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, (a) Kirkman v. Kirkman, 2 Bro. Ch. sing-ton, Prec. Ch. 207. 537. Ttop. 95. (g) Vid. supr. 8. (/;) 1 Eq. Ca. Abr. 15:3. Atkvns v. (h) Jesson v. Essington, Prec. Ch. Wifterson, Gilb. Eq. Rep. 95. S. C. 537. I,, of Test. 214. Babing-ton v. Green- (/) 3 P. Wms. 318. note (q). Vid. wood, 1 P. Wms. 531. *" . also Prec. Chan. 207. (c) 7 Vin. Abr. 21 1. Benson v. Bel- (k) Fouke v. Lewen, 1 Vem. 88. lasis, 1 Vern. 15. 4 Burn. Eccl. L. sed. vid. Prec. Ch. 537. 404. Vid. E. of Test. 212, 213. (/) L. of Test. 202. Harwood's (d) L. of Test. 212. L. of Lorid. 102. case, 1 Ventr. 180. S. C 1 Mod. 80. (e) Pcttifcr v. James, Bnmb. 16. (;;?) Cleaver v. Spurling 1 , 2 P. Wms. (/) 2 Bl. Com. 519. Wilcocks v. 527. Wileorks, 2 \' cm. 558. Jesson v. Es- CHAP. VI.] BY THE CUSTOM OF LONDON. 394 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 principle here also is to make an equality among the children, and not to benefit the widow (o). Nor, where a freeman has in part advanced his only child, shall such child bring in his advancement, [395] for there is none to claim with him of equal degree (p). 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 shall be entitled, without regard to what he shall have received from his lather (q). In case such advancement be brought into hotchpot, it must be brought into the orphanage part only (r). If the advancement shall have exceeded the child's share by the custom, whether he must bring in such excess before he is entitled to his share of the part distributable by the statute, is a point on which there are opposite opinions. By some writers it has been held, that he has a claim to his full share by the statute, without 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 partes). 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 respect 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 (n) L. of Test. 206. 221. Cleaver v. pet, Ambl. 189. S purling-, 2 P. Wms. 527. Goodwin (p) Regina v. Rogers, 2 Salk. 426. v. Ramsden, 1 Vern. 200. Hancock Fane'v. Bence, 2 Vern. 234. Dean v. v. Hancock, 2 Vern. 666. Medcalfv. Lord Delaware, ib. 628. Stanton v, Medcalf, 1 Atk. 64, Piatt, ib. 754. (o) L. of Test. 204. Annand v. Do- (q) Hearne v. Barber, 3 Atk. 214. nevwood, 1 Vern. 345. Beckford v. Wood v. Brian), 2 Atk. 523. Beckford, 2 Vern, 281. 2 Bl. Com. (>•) Beckford v. Beckford, 1 Vern. 519. Bright v. Smith, 2 Freem. 279. 345. 1 Eq. Ca. Abr. 155. Cleaver v. Spur- (s) Vid. 4 Burn. Eccl.-L. 406. Cnd- ling, 2 P. Wms. 526. Garroii v. Trip- geon v. Ramsden, 2 Vern. 274. 34 396 OF ADVANCEMENT [BOOK III. customary and distributive 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 es- 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 (u). If therefore a citizen settle a real estate on a child, it shall be no ad- vancement (ic) ; nor, although it be expressly for that purpose, shall it bar him of his orphanage part (x). Nor if money be given by 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 (y). 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 ap- prentice («) ; a legacy left him by the father dying partially intes- [397] tate (b) : property given him by any other than his father, as well as a fortune of the child's own raising, is here equally ap- plicable. 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 (d). Indeed, it has been made a question whether such provision as shall amount to an advancement should not be made on marriage, or in pursu- ance of a marriage agreement (e). But, it seems, the custom on this head is not so restricted, but extends to any other establish- ment 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 (g). If no such writing be (0 4 Burn. Eccl. L. 207. 412. 415. Vid. Elliot v. Collier, 1 Ves. (m) 1 Eq. Ca. Abr. 150. Tomkyns 17. Hearne v. Barber, 3 Atk. 213. v. Ladbroke, 2 Ves. 593. 452. 3 P. Wms. 317. note (o). Elliot (10) 1 Ch. Ca. 160. 235. L. of Test. v. Collier, 1 Wits. 168. 194. Tiffin v. Tiffin, 1 Vern. 2. Cox (d) L. of Test. 204. Jenks v. Hol- v. Belitha, 2 P. Wms. 274. ford, 1 Vern. 61. Fowke v. Lewen, (x) 2 Ch. Ca. 160. vid. Civil v. Rich, 89. Civil v. Rich, 216. Morris v. 1 Vern. 216. Burroughs, 1 Atk. 403. Elliot v. Col- (?/) Annand v. Iloneywood, 1 Vern. lier, 3 Atk. 528. 345. (e) 1 Vern. 61. 89. Vid. also Hearne (z) Vid. supr. 380. v. Barber, 3 Atk. 213. («) Sed vid. Morris v. Burroughs, 1 (/) L. of Test. 204. Morris v. Bur- Atk. 403. roughs, 1 Atk. 403. See also Northey (b) Vid. Car v. Car, 2 Atk. 227. v. Strange, 1 P. Wms. 342. (c) Laws of Lond. 82. Jenks v. (g) Chace v. Box, Ld. Raym. 484. Holford, 1 Vern. 61. 4 Burn. Eccl. E. 1 Eq. Ca. Abr. 151. 4 Burn. Eccl. CHAP. VI.] BY THE CUSTOM OF LONDON. 397 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 shewn (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 (i). 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 the cases the child was entitled to the whole personal estate (k). 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 advance- ment into hotchpot, he shall have one half by the custom, and the other half by the statute : If he be not advanced, he shall have one half by the custom, and the other half by the statute (/). 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 child partly advanced, and the child not advanced, after the former has brought in his partial ad- vancement, shall share one half equally between them by the cus- tom ; and the other half, namely the dead man's part, although the first child have been fully advanced, shall, without his bringing his advancement into hotchpot, be distributed by the statute equally amongst them all. [399] If such advancement exceeded his orphanage part, then, whether the excess shall go in satisfaction of his distributive share by the statute, or not, seems to depend on the provision being ex- pressly in satisfaction of the orphanage part, or whether it be gene- ral, and without any stipulation (m). 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 cus- L. 393. L. of Test. 203. Hume v. P. Wms. 527. Fawkner v. Watts, 1 Edwards, 3 Atk. 451, 452. Elliot v. Atk. 407. Collier, 527. Fawkner v. Watts, 1 Atk. (.k) Vid. 4 Burn. Eccl. L. 417. 406. (/) Vid. 4 Burn. Eccl. L. 417. (h) Cleaver v. Spurling, 2 P. Wins. (m) Vid. sttpr. 395. 527. 4 Burn. Eccl. L. 408. in note. (/') Blunden v. Barker, 1 P. Wins. Elliot v. Collier, 3 Atk. 527. 636. 639. Cox v. Bclitha, 2 P. Wins, (j) Vid. Blunden v. Barker, 1 P. 273. Wms. 634. Cleaver v, Spurling, 2 399 RELEASE OF CUSTOMARY SHARE. [BOOK III. lorn (o). So if A., who is of age, marry a freeman's daughter, who is an infant, he may, on receiving an adequate portion, harJiimself of any future right to a customary estate in virtue of the marriage by a release of all future right, or by a covenant to release it when it shall acccrue (p). 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 chil- dren in his lifetime, he should have his affairs settled to his satis- faction at his death (q). But such release shall be altogether inef- fectual 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 al- [401] so a coffer box containing various ornaments of her person, as jewels, chains, and other articles of the like nature («). As relative to children, the custom of York differs in two mate- rial 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 ad- vancement of a child cannot arise out of a real estate. In the pro- (o) 2 Eq. Ca. Abr. 272. Lockyer v. ris"V. Burroughs, 402. Heron v. Heron, Savage, Stra. 947. 2 Atk. 161. Blunden v. Barker, 1 IV ( p) Cox v. Belitha, 2 P. Wins. 272. Wms. 639. Cox v. Belitha, 2 P. Wins Ives v. Medcalf, 1 Atk. 63. 273. (7) Ibid. 1 Atk. 63. (a) Of]'. Ex. Suppl. 61, 62. Swinb. (>•) Heron v. Heron, 2 'Atk. 160. p . 6. s. 9. Blunden v. Barked 1 P. Wms. 639. (/>) 2 Bl. Com. 519, 4 Burn. Eccl. (s) Ives v. Medcalf, 1 Atk. 63, Mor- L, 398. CHAP. VI.] • OF DISTRIBUTION. 401 vince the heir at common law, who inherits any land either in fee or in tail, is divested of all claim to any filial portion (c). And, however small in point of value the land may he in comparison with the personal estate, he is nevertheless excluded (d), and even al- though the estate he inherits he 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 redemption, shall he be entitled to a fili- al portion; but on redemption of the mortgage, and payment of the [402] money to the administrator, it seems he shall be entitled to such portion, because then he has nothing by inheritance, nor in fact has had any preferment (g). 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 (h) ; but as here land as well as money constitutes an advancement, the heir at law under the custom is excluded by his inheritance of land, either in fee or in tail (i) : whereas such inheritance is no bar by the statute ; but, as well under the custom as under the statute, younger children in respect to advancement are on the same footing. It is essential in order to the custom of York's attaching, that the intestate should be resident, at the time of his death, within the province ; but for that purpose it is immaterial where his estate is situated. In case a freeman of London shall die within the province, the custom of the city for the distribution of his effects shall prevail, and shall controul the custom of the province of York. Therefore in that case the heir shall come in for a share of the personal estate; for the custom of the province is only local, and circumscribed to a certain district ; but that of London, as above stated, follows the person, although ever so remote from the city (k)A [403] With these distinctions the custom of London and those of York in the main agree, and appear to be substantially the same (/). Thus, if an intestate in the province of York die seized of an es- tate in fee-simple, leaving a widow and three sons ; the widow in that case shall have one third of the whole personal estate under the custom, the other third shall be divided equally between the two younger sons, and of the remaining third the widow shall take one third under the statute, and the other two thirds shall be divid- (c) 2 Burn. Eccl. L. 409. L. of Test (i) Constable v. Constable, 2 Vern. 221. Constable v. Constable, 2 Vern. 375. 375. (/.•) 4 Hum. Eccl. L. 446. Chomley (f/) 4 Burn. Eccl. L. 409. v. Chomley. 2 Vern. 47. 82. Supr. (e) Ibid. 409, 410. 391. ( f) Ibid. 410. Constable v. Con (/) 2 Bl. Com. 519. 1 'Vern. 15. 134. stable, 2 Vern. 375. 200. 305. 432. 465. 2 Ch. Rep. 255. (g) 4 Burn. Eccl. L. 410. L. of Test. 221 , 222. Swinb. p. 3. s. (A) Vid. Elliot v. Collier, 1 Yes. 17. 16. 1 Burn, Eccl. L. 398, et seq. 403 OF DISTRIBUTION. [BOOK III. ed equally among the three sons; for the heir is barred merely of his orphanage part, but not of his share by the statute. In respect to Wales (aw), we may learn in general from the stat. 7 and 8 W. 3. c. 38. above referred to (n), that the doctrine of the pars rationabilis extends to intestates' effects within that princi- pality ; but the books contain no further information on the subject. (m) 4 Burn. Eccl. L. 424. Off. Ex. («) Supr. 388. 97, in note. ibid. Suppl. 72. [ 404 ] CHAP. VII. OP THE POWERS AND DUTIES OF LIMITED ADMINISTRATORS — OF JOINT ADMINISTRATORS. There are certain powers and duties which helong in common to all special and limited administrators. Whether the administra- tion be committed durante minoritate, durante absentia, or pen- dente lite, or whether such special and limited administration be granted with or without a will annexed, or in a general or restric- tive form only, as ad usum et commodum injantis ; they are all invested in some respects with the same authority {a). They may perform all such acts as cannot be delayed without prejudice or dan- ger to the estate. They may sell bona peritura, cattle which are fattened, grain, fruit, or any other substance which may be the worse for keeping (6) : They may pay debts which were due from the deceased at the time of his death (<■), or for the payment of them they may dispose of effects not perishable (d). They may also in [405] suchrespective characters receivedebts due to the deceased (e), or may maintain actions for the recovery of the same (f) : for, in all these and the like instances, the urgency of the case requires them immediately to act. They have also, it seems, the privilege of retaining for debts owing to themselves (g). If administration be granted generally during infancy, the gran- tee has authority to make leases of any term vested in the infant executor, which shall be good till he come of age, and, as it has been also held, till he enter (A). Such administrator has also, it seems, a right, in case the administration were granted with the will annexed, to assent to a legacy (i). But if the administration were committed with special words of restrain! in the form I have just mentioned, such administrator is incapable of making leases (#), (a) Walker v. Woollaston, 2 P. Wms. 3 Leon. 103. 576. (/) Walker v. Woolaston, 2 P. (6) 3 Bac. Abr. 13. 11 Vin.Abr. 102, Wms. 576. 1 Poll. Abr. 888. Bear- 103. 1 Roll. Abr. 910. Anon. 3 Leon, block v. Read, 2 Brownl. 83. Slaugb- 278. 2 Anders. 132. pi. 78. Price v. ter v. May, 1 Sulk. 42. Ball v. Oliver, Simpson, Cro. Eliz. 718. 5 Co. 9. 2 Ves. and Bea. 97. Godb. 104. (g) Com. Dig-. Admon. F. Semb. (c) Com. Dig-. Admon. F. Vid. Briers Raym. 483. v. Goddard, Hob. 250. 5 Co. 29 b. (A) 6 Co. 67. b. Off". Ex. 215. (d) 5 Co. 29 b. 2 Anders. 132. pi. (i) Off. Ex. 215. 5 Co. 29 b. (t) Com. Dig". Admon. F. Vid. Anon. (A-) 6 Co. 67 b. Off'. F.x. 215. 405 OF LIMITED ADMINISTRATORS. [BOOK III, or of assenting to a legacy (/). Nor shall the power of an adminis- trator during infancy, although the grant were general, extend to the prejudice of the infant. Therefore such administrator has no authority to transfer the property by sale, except in cases of neces- sity ; nor to sell leases even for the payment of debts, if there be [406] other property which he may dispose of to more advan- tage (m) ; nor to assent to a legacy, unless there be assets for its payment (n); nor to release a debt without actually receiving it (o): for although, as we may remember, if A. an infant be appointed executor, and B. be nominated to act in that character during A.'s minority, B. seems to be possessed of the same powers as an abso- lute executor (p) ; yet a distinction has been taken between him and an administrator durante minoritate. To B. the property in the effects was confided by the owner himself, though but for a limited time, and in a special manner; whereas such administrator is appointed by the ordinary in consequence of the legal disability of the executor, who by the will is constituted to act immediate- ly (q). Such acts, therefore, as are performed by such administra- tor to the injury of the infant, shall be altogether ineffectual. By the star. 38 Geo. 3. c. S7. s. 7. an administrator durante ab- sentia has* the same powers vested in 'him as an administrator dur- ing the minority of the next of kin. An administrator pendente lite, whether the suit relates to a will or the right of administration, seems to be on the same footing as an administrator during infancy, to whom the grant is made in the [407] special and limited manner above mentioned (r). On an infant executor's coming of age, he may sue out a scire fa- cias on a judgment recovered by the administrator durante mino- ritate. In like manner, in case an administrator, pendente lite touching a will, obtain such judgment, the executor, on proving the will, by which the administration will be determined, may take advantage of the judgment by scire facias (s). If an action be brought against a special administrator, and, pending the action, the administration determine, it has been hel-d he ought to retain assets to satisfy the debt, which is attached on him by the action (/); but that is on the supposition the action does not in that event abate ; whereas it seems that such would be the consequence («)• 0) If judgment be obtained against such admin- (/) OfT". Ex. 215. Abr. 106. Walker v. Woolas'ton, 2 P. (m) 2 Anders. 132. pi. 78. Wins. 576. and supr. 74. (??) 5 Co. 29 b. (.<•) lb. 2 P. Wins. 587. {,,) 1 Roll. Abr. 910.911. (/) 3 Bac. Abr. 14. Sparks v. Crofts, (p) Vid. supr 357. Comb. 465. (a) Oil'. Ex. 215, 216. 11 Yin. Abr. (u) 11 Yin. Abr. 97. Ford v. (.Ian 103. ville, Moore, 462. tjoldsb, 13 Lutw O) Vid. 3 Bac. Abr. 56. 11 Yin. 342. (1) Tfie State, use, &c. v. Craddoclc, 7 Ilarr. 5c Johns. 40. CHAP. VII.] OF JOINT ADMINISTRATORS. 407 istrator, and .afterwards the executor come of age, a scire facias will clearly lie against the executor on the judgment (to). Of co-executors, we have seen (.?■), the acts of any one in respect to the administration of the effects are deemed by the law to be the acts of all, inasmuch as they have a joint and entire authority over the whole property ; but joint administrators have been con- sidered in a different light. Their power arises not from the act of the deceased, but from tjfat of the ordinary; and administration, it has been already stated (,y), is in the nature of an office. Hence it has been held, that if granted to severpl persons, they must all join in the execution of it, nor shall the act of one only be bind- ing on the rest, and that therefore one of several administrators f IOS] cannot, like one of several co-executors, convey an interest, or release a debt, without the others (c). But this distinction has been overruled, and it seems to be now settled that a joint admi- nistrator stands on the same footing, and is invested with the same powers, as a co-executor (a), (l) If one of the administrators die, the right of administering will survive without a new grant (b). By the stat. 38 Geo. 3. c. 87. s. 4. in case of the absence of an executor for a year after the testator's death out of the jurisdic- tion of his majesty's courts, and a suit be instituted in a court of equity by a creditor, the court in which the suit shall be pending is empowered to appoint persons to collect outstanding debts or effects due to the testator's estate, and to give discharges for the same, who are to give security in the usual manner duly to ac- count. (a?) Sparks v. Crofts, Ld. Raym. 1 Atk. 460. 265. S. C. Carth. 432. (ft) Jacomb v. Harvvood, 2 Ves. 267. (x) Supr. 359. Willand v. Fenn in B. R. cited ibid. (y) Supr. 114. (b) Adams v. Buckland, 2 Vern. (z) 4 Burn. Eccl. L. 272. Ld. Ba- 514. Eyre v. Countess of Shaftsbury, con's Tracts, 162. Hudson v. Hudson, 2 P. Wms. 121. Supr. 114. (1) Murray v. Blalchford, 1 Wend. Rep. 583. Gage v. Johnson's Mm. 1 M 'Cord's Rep. 492. 35 [ 409 ] CHAP. VIII. OP ASSETS AS DISTINGtjfsHED INTO REAL AND PERSONAL, LEGAL AND EQUITABLE — OP MARSHALLING ASSETS. In treating of debts and legacies, I have hitherto supposed them to be payable out of the personal estate only, and indeed that is the natural fund for their satisfaction ; but the real property may also be applied to the same purpose. On the subject of such application, it is necessary to consider assets under different denominations. Assets, then, are either real or personal, legal or equitable (a). Those of which I have been treating are legal and personal. I proceed now to advert to such as are legal and real. Lands descended to the heir in fee-simple are for the benefit of specialty creditors of this description ; as is even an advowson which is so descended (6). These assets are sometimes styled assets by descent, as personal [410] assets are called assets enter mains, that is, in the hands of the executor (c). Whether an estate pur aider vie, in case it be not devised, shall be real or personal assets, depends on there being or not being a special occupant. The statute of frauds enables the proprietor of such estate to devise it, and enacts that, if no devise be made, it shall be chargeable in the hands of the heir, if it come to him by reason of a special occupancy, as assets by descent, as in the case of lands in fee-simple. And if there be no special occupant, it shall go to the executor, and be assets in his hands (d). A term in gross is, as we have seen, personal assets (e). But if the term be vested in a trustee, and attendant on the inheritance, it is real assets {/). So a term in trust, attendant on a fee in trust, shall be real assets in the hands of the heir ; for the statute of frauds having made a trust in fee assets in the hands of the heir, the term which follows the inheritance, and which is subject to all (a) Vid. 4 Burn. Eccl. L. 288. Westfaling v. Westfaling, 3 Atk. 466. (b) 3 Wooddes. 483. Robinson v. Atkinson v. Baker, 4 Term Rep. 229. Tong-e, 3 P. Wms. 401. Milner v. Lord Harewood, 18 Ves. 273. (c) Terms of the Law, Shep. Touchst. (e) Supr. 140. 496. (/) 2 Fonbl. 2d edit. 114. note R. (d) 2 Fonbl. 2d edit. 896. not. R. b. Vid. supr. 5 and 137. CHAP. VIII. ] REAL AND PERSONAL ASSETS. 410 charges attending the inheritance, must be so also (g). But we have seen, that, generally speaking, the trust of a term is not made as- sets by that statute (h). [411] Creditors by specialties, which affected' the heir, provid- ed he had assets by descent, had not^the same remedy against the devisee of their debtor, and were therefore liable to be defrauded of their securities. To obviate this mischief (z), the stat. 3 W. and M. c. 14. has enacted, that all devises of real estates by tenants in fee-simple, or having power to dispose by will, shall, as against such creditors, be deemed to be fraudulent and void; and that they may maintain their actions jointly against the heir and devisee. But devises for payment of debts, and for raising portions for younger children, in pursuance of an agreement before marriage, are expressly excepted by the statute (k). And thus freehold in- terests devised for other than the just purposes aforesaid, are be- come, in favour of specialty creditors, real assets at law, without the assistance of a court of eq.uity : in respect to which such cre- ditors may elect to resort in the first instance against the heir and devisee, without suing the personal representative of their deceased debtor (/). If such creditor file a bill in equity on the statute to affect the real assets in the hands of the devisee, the heir must be made a party to the suit ; for a bill in equity for that purpose is in the nature of an action at law ; and as the action by express provi- sion of the statute is to be brought jointly against the heir and de- visee, so the bill must be filed against them both (rn) ; though in such case the heir or devisee shall have this relief — namely, to stand in the place of the specialty creditor, and reimburse himself out of the personal estate («). (1) It seems that an estate pur aider vie, although no special occu- pant were named, would, in case it were devised, be considered as real assets (o). But copyhold estates are not assets in the hands of the heir(/>), (g) 2 Fonbl. 2d edit. 114. note S. well, 2 Atk. 125. Madox v. Jaskson, Herd. 489. Willoughby v. Willoughby, 3 Atk. 406. Knight v. Knight, 3 P. 1 Term Rep. 766. Wms. 333. Vid. Manaton v. Manaton, (h) Supr. 143. 2 P. Wms. 234. (t) Vid. 2 Bl. Com. 378. O) Gawler v. Wade, 1 P. Wms. (k) Vid. 2 Atk. .104, 292. Earl of 99. Bath v. Earl of Bradford, 2 Ves. 590. (n) Clifton "v. Burt, 1 P. Wms. 680. JLingard v. Earl of Derby, 1 Bro. Ch. (o) Vid. 2 Fonbl. 2d edit. 396. note Rep. 311. Hughes v. Doulben, 2 Bro. b. Ch. Rep. 614. Com. Dig. Assets A. (p) 4 Co. 22. Robinson v. Tonge, (/) 3 Wooddes. 486. Warren v. Stat- cited 1 P. Wms. 679. note 1. (1) In Pennsylvania, when a suit is brought against executors, the heirs of the testator, to whom land has descended, have a right to appear and take de- fence in the name of the executors, and thus protect their interest in the lands, which are assets for the payment of debts. Fritz, Ex. v. Leans, JlJm. 13 Serg. & Rawle, 1. 412 LEGAL AND EQUITABLE ASSETS. [BOOK III. f412] and consequently are not comprehended within the provi- sions of this statute. Between legal and equitable assets the distinction is this : legal assets are such as constitute the fund for the payment of debts ac- cording to their legal priority ; whereas equitable assets are those which can be reached only by the aid of a court of equity, (1) and are subject to distribution on equitable principles, according to which, as equity favours equality, they are to be divided pari passu among all the creditors (q). By the stat. 21 H. 8. c. 5. s. 5. it is enacted that if lands are devised to be sold, neither the money produced by the sale, nor the future profits of the land, shall be considered as forming any part of the personal estate of the devisor. But this provision was formerly construed to apply merely to devises of lands to be sold by persons not executors, or by executors in conjunction with other persons ; in which cases it was held, that neither the land nor the money was to be regarded as legal assets, but merely sub- ject to an equitable appointment, inasmuch as the parties empowered to sell were not trusted with it in respect of their executorship (r). [413] That in case lands were devised to an executor, to be sold by him in that capacity for the payment of debts and legacies, the money arising from the sale should be legal assets as well as the intermediate profits ; for that by the devise the descent was broken, and the estate in the land vested in the executor, qua executor for the purposes directed by the will (s). (2) But the doctrine of equitable assets, in its principle so conso- nant to natural justice, has been gradually extended ; and this dis- tinction between a devise to a trustee and to an executor has been continually qualified, till at length it appears to be altogether abol- ished. In one class of cases, both of an earlier and of a later date, courts of equity recognizing the union of the two characters of trustee and executor in the devisee, regarded on that ground the real estate (7) 3 Bac. Abr. 59. in note. 2 Fonbl. 63. Anon. 2 Vern. 405. 4 Burn. Eccl. 402. note (d). 4 Burn. Eccl. L. 288. L. 260. 11 Vin. Abr. 291. Cuiterback 3 Wooddes. 486. 2 P. Wins. 416. note v. Smith, Free. Chan. 127. Sed vid. 2. Oft". Ex. 74, 75. 0) 3 Bac. Abr. 58. Roll. Abr. 920. O) 3 Bac. Abr. 58. 1 Roll. Abr. Edwards v. Graves, Hob. 265. Dyer. 920. Ilargr. Co. Litt. 236. 151 b. 264 1). Girling - v. Lee, 1 Vern. (1) Rutledge v. Riitledge's Creditors, 1 M'Cord's Clia. Rep. 469. (2) Tegtator orders his executors, after the death of his widow, to sell his real and personal estate, and divide the money equally among- his four children. On a sale Of the land made by an administrator dc bouts lion, after the death of the widow, such administrator is entitled to receive the money, and not a creditor who had obtained judgment against one of the children before a sale. Allison, Ex.\. Wikon'i r', 13 Ssrg. & Rawle, 330. CHAP. VIII.] LEGAL AND EQUITABLE ASSETS. 413 as merely a trust fund, and distributable among all tbe creditors equally (I). And other cases considered it in the same light, although the devise were not to the executor expressly on trust, if, according to the sound construction of the will, he might be converted into u trustee ; as if the devise were to him and his heirs ; since the mo- ney could never be legal assets in the hands of his heir ; nor, as [414] against such heir, could an action be maintained by a credi- tor (m). According to other decisions, if the executor had only a naked power to sell in the capacity of executor, the lands descended in the mean time to the heir of the devisor, and till the sale, he might enter and take the profits (w)j (1) and the money arising from such sale was held to be assets at law (#). But by modern adjudications it seems to be established that a devise to a mere executor shall bear the same construction as a de- vise to a trustee ; that there is no reason to suppose the testator's meaning to be different in the one instance from that in the other; and that, even in the case of a mere power on the part of the exe- cutor to sell, the descent seems to be broken, inasmuch as the ven- dee is in by the devisor ; but that, whether the descent in such case be broken or not, the assets shall be equally equitable: in short, that if the real estate be by any means given to the executor, tbe produce of it, when sold, shall not be applied in a course of legal ad- ministration, but be distributed as equity prescribes (y). (2) And although it has been held that where the estate descends to [415] the heir charged with the payment of debts, it will be legal assets in him {z) ; yet now it is settled that in this instance also the assets shall be deemed to be equitable («). But such assets as are clearly legal shall not assume, by being (t) 2 P. Wms. 416. note 2. 2 Fonbl. (y) Newton v. Bennet, 1 Bro. Ch. 402, 403. Anon. 2 Vern. 133. Challis Rep. 137, 138. 2 Fonbl. 2d edit. 398. v. Casborne, Prec. Chan. 408. Cham- in note. Vide Hargr. Co. Litt. 113. bers v. Harvest, Mose.. 123. Anon. 328. note 2. and Walker v. Meaner, 2 P. Lewin v. Okeley, 2 Atk. 50. Batson Wms. 552. v. Lindegreen, 2 Bro. Ch. Rep. 94. (z) Freemonlt v. Dedire, 1 P. Wms, («) 1 Bro. Ch. Rep. Append. 7. 1 430. Pluriket v. Penson, 2 Atk. 29U, Bro. Ch. Rep. Newton v. Bennet, 2 P. Wms. 416. note 2. 135, 138. in note. («) 2 Fonbl. 2d edit. 398. in note. 1 (w) Co. Litt. 236. Bro. Ch. Rep. Append. 6. Batson v. (x) Newton v. Bennet, 1 Bro. Ch. Lindegreen, 2 Bro. Ch. Rep. 94. Rep. 135, 138. in note. See Tomlin- Shiphard v. Lutwidg-e, 8 Ves. jun. 26. son v. Dighton, 1 P. Wms. 151. (1) In Pennsylvania, under the provisions of the Act of 31st March, 1792, (Purd. Dig. 277. 3 Sm. Laws, 67.) the executors, where a naked power to sell is given to them, take the legal estate, and nothing- descends, unless the contrary is specially directed by the testator. Allison, Ex. v. ffikon's Ex. 13 Serg\ k. Rawle, 332. (2) Nimino\i Ex v. The Commonwealth, 4 Hen. & Munf, 17 Benson v. he Roy, 3 Johns. Cha. Rep. 651. 415 LEGAL AND EQUITABLE ASSETS. [BOOK III. recoverable only in equity, an equitable nature. Hence, if a mere trust estate descend on the heir at law, notwithstanding a necessity of resorting to equity to reduce it into possession, yet it shall be legal assets, since a trust estate is .made assets by the statute of frauds. And although an equity of redemption of a mortgage in fee, not being made assets by any legislative provision, has been considered as merely an equitable interest, and has been expressly adjudged to be equitable assets (b) ; (1) yet there are strong opinions to the contrary, and that an equity of redemption, even in fee, though capable of being reached only in equity, shall be classed among assets at law. And although, from the same inclination of extending the ideas of equitable assets, it has been also held that if any termor for years mortgage his term, the equity of redemption shall be of that description of assets (c) ; still, according to a vari- ety of antecedent cases, such chattels, whether real or personal, as [416] are mortgaged or pledged by the testator, and redeemed by the executor, although capable of being recovered only in equity, shall be assets at law in the hands of the executor for the value be- yond the sum paid for the redemption (d). Lands may be devised to an executor to be sold by him for the payment of debts only, and then they shall be assets merely for that purpose. And so the devise may be expressed to be for the payment of legacies, and not of debts ; and then it shall be restrict- ed to the former. For since the lands are not in their own nature assets, but constituted so by the will and disposition of the devisor, they shall not be assets to a greater extent than he has thought fit to direct (e). But in either of these cases, as I shall presently shew, the assets may be marshalled. Where money by a marriage agreement is articled to be invested in land and settled, such fund should be bound by the articles, and not be assets, either at law or in equity, for payment of debts {/). (6) Wilson v. Fielding, 2 Vern. 764. 155. Harcourt v. Wrenham, Moore, 858. Plunket v. Penson, 2 Atk. 294. Deg 1 Roll. Rep. 158. Harcourt v. Wrenham, v. Deg, 2 P. Wms. 416. Cox's case, 3 1 Brownl. 76. Plunket v. Penson, 2 P. Wms. 342. Hartvvell v. Clutters, Atk. 291. Ambl. 308. 3 Bac. Abr. 59. in note. (e) Off. Ex. 74. (c) Cox's case, 3 P. Wms. 342. (/) Lechmere v. Eai'l of Carlisle, Hartwell v. Chitters, Ambl. 308. 3 P. Wms. 217. (rf) 3 Bac. Abr. 59. in' note. 1 Leon. (1) The administrator of a mortgagor is not, as such, entitled to the surplus moneys arising from the sale of the mortgaged premises ; but it is considered as part of the real estate, and goes to the heirs, and will be assets in their hands ; and the heirs being before the Court by their parent, it was ordered to be distri- buted, as equitable assets, among all the creditors pari passu. But as the creditor has a remedy at law, in New York, against an equity of redemption, it is ques- tionable, whether before a sale of the mortgaged premises it could be deemed equitable assets. Moses v. Murgatroyd, 1 Johns. Cha. Rep. 119. CHAP. VIII.] LEGAL AND EQUITABLE ASSETS. 416 An estate in fee in our American plantations is subject to debts, and considered as a chattel till tbe creditors are satisfied, when tbe lands shall descend to the heir (g). By the stat. 47 G. 3. s. 2. c. 74. it is enacted that a trader dying seised of, or entitled to, any estate, or interest in lands, tene- ments, hereditaments, or other real estate, which before the pass- ing of the act would have been assets for the payment of his debts due on any specialty in which the heirs were bound, the same should be assets to be administered in courts of equity, for the pay- ment of all just debts of such person, as well debts due on simple contract, as on specialty; but specialty debts are to be first paid (A). [417] By the stat. 5 G. 2. c. 7. § 4. it is enacted that houses, land, negroes, and other hereditaments, and real estates situate within any of the British plantations in America belonging to any person in- debted, shall be liable to and chargeable with all just debts, duties, and demands, of what nature or kind soever, owing by any such person to his Majesty, or any of his subjects, and shall be assets for the satisfaction thereof in like manner as real estates are liable to the satisfaction of debts due by bond, or other specialty, and shall be subject to the like remedies, proceedings, and process in any court of law or equity in any of such plantations respectively, for seizing, extending, selling, or disposing of any such houses, lands, negroes, and other hereditaments and real estates, towards the satisfaction of any such debts, duties, and demands, and in like manner as personal estates in any of the said plantations respec- tively are seised, extended, sold, or disposed of for the satisfaction of debts. (1) The marshalling of assets remains now to be considered. The personal assets of the testator shall in all cases be primarily applied in discharge of his personal debts or general legacies, un- less he exempt them by express words or manifest intention (/) ; a declaration plain, or necessary inference, tantamount to express words (k). (g) 11 Vin. Abr. 223. Noel v. Robin- v. French, Amb. 33. S. C. 1 Wils. 82. son, 2 Ventr. 358. Blankard v. Galdy, Samwell v. Wake, 1 Bro. Ch. Rep. 144. 4 Mod. 226. 4 Burn. Eccl. L. 195. Duke of Ancaster v. Mayer, ib. 454. Manning v. Spooner, 3 Ves. jun. 118. Bamfield v. Wyndham, Prec. in Ch. (h) The above stat. applies only to 101. Wainwright v. Bendlowes, 2 Vern. persons who were traders at the time of 718. S. C. Amb. 581. Webb v. Jones, their decease ; and not to persons who 2 Bro. Ch. Rep. 60. Vid. also 3 Bac. have left off trade before they died.— Abr. 85. 2 Fonbl. 290. note (a). Reade Hitch on v. Bennet, 4 Madd. Rep. 180. v. Litchfield, 3 Ves. jun. 475. (i) 1 P. Wms. 294. note 1. Heath v. (k) Bootle v. Blundell, 1 Meri. Rep. Heath, 2 P. Wms. 366. Walker v. 193. and 19 Ves. 494. S. C. Greene v. Jackson, 1 Wils. 24. S. C. 2 Atk. 624. Greene, 4 Madd. Rep. 148. Gittins v. Rridgman v. Dove, 3 Atk. 202. Hasle- Steele, 1 Swans. 24. Tower v. Lord wood v. Pope, 3 P. Wms. 324. 1 Bro. Rous, 18 Ves. 132. P. C. 192. Bunb. 302. Lord Inchiquin (1) Lands descending in another state are not assets in Massachusetts. Austin v. Gage, 9 Mass. Rop. 395. 418 OF MARSHALLING ASSETS. [bOOKIII, [41 S] A devise of all the real estate, subject to the payment of debts, will not alone exonerate the personal estate ; and even if tbe testator direct tbe real estate to be sold for tbe payment of debts, tbe personal estate shall be applied in exoneration of the real (/); (1) and it shall be thus applied, although the personal debt be secured by mortgage, and whether there be or be not a bond or covenant for payment (m). So lands subject to or devised for payment of debts shall be liable to discharge such mortgaged lands either de- scended or devised (n), and although the mortgaged lands be de- vised expressly subject to the encumbrance (o). So lands descend- ed shall exonerate mortgaged lands devised (p). So unencumber- ed lands and mortgaged lands, both specifically devised, but ex- pressly after payment of all debts, shall contribute to the dis- charge-of the mortgage (q) : (2) In all these cases the debt'is con- sidered as the personal debt of the testator himself, and therefore a charge on the real estate merely collateral. But a different 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 por- tions, and also gives a bond for tbe 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 bis real (s). So where the debt, although personal in its creation, was contracted originally by another (t) : As where an estate is (/) Fereyes v. Robertson, Bunb. 301. (r) Edwards v. Freeman, 2 P. Wins. Bond v. Simmons, 3 Atk". 20. Hasle- 437. 664. in note. Ward v. Lord Dud- wood v. Fope, 3 P. Wms. 322. 2 Eq. ley and Ward, 2 Bro. Ch. Rep. 316. Ca. Abr. 493. Leman v. Newnham, 1 Ves. 51. Lewis • (wi)Cope v. Cope, 2 Salk 449. How- v. Mangle, Ambl. 150. cl v. Price, 1 P. Wms. 291. Pockley (s) 2 Fonbl. 292. note b. Edwards v. v. Pockley, 1 Vern. 36. 436. King 1 v. Freeman, 2 P. Wms. 435. King, 3 P. Wms. 360. Galton v. Han- (t) Cope v. Cope, 2 Salk. 449. Bagot cock, 2 Atk. 436. Robinson v. Gee, 1 v. Oughton, 1 P. Wms. 347. Leman Vcz. 251. 6 Bro. P. C. 520. Philips v. Newnham, 1 Vez. 51. .Robinson v. v. Philips, 2 Bro. Ch. Rep. 273. Gee, ib. 251. Lacam v. Mertins, ib. (n) Bartholomew v. May, 1 Atk. 487. 312. Parsons v. Freeman, Ambl. 115. March, of Tweedale v. Coverley, 1 Bro. 2 P. Wms. 664. in note. Lawson V. Ch. Rep. 240. Hudson, 1 Bro. Ch. Rep. 58. Earl of (0) Serle v. St. Eloy, 2 P. Wms. 386. Tankerville v. Fawcet, 2 Bro. Ch. \p) Galton v. Hancock, 2 Atk. 424. Rep. 57. Tweddle v. Tweddle, ib. 101. {(/) Carter v. Barnardiston, 1 P. 152. Billinghurst v. Walker, ib. 604. Wins. 505. 2 Bro. P. C. 1. (1) Shelby v. The Commnmnralfh, 13 Serg. & Rawle, 348. Todd v. Todd's Ex. 1 Serg. & Rawle, 453. 2 Dall. Rep. 244. Hall v. Hall, 2 M'Cord's Cha. Rep. 302. "" M'Kay v. Green, Livingston v. Newkirk, 3 Johns. Cha. Rep. 57. 312. Seaver v. Lewis, 14 Mass. Rep. 83.- (2) The order of marshalling assets towards payment of debts is, 1. The per- sonal estate ; 2. Lands descended ; 3; Lands devised. Livingston v. Newkirk, 3 Johns. Ch. Rep. 313. Hall v. Hall, 2 M'Cord's Ch. Rep. 303. Shelby v. The Commonwealth, 13 Serg. &. Rawle, 348. Flays v. Jackson, 6 Mass. Rep. 151. CHAP. VIII.] OF MARSHALLING ASSETS. 419 bought subject to a mortgage, the personal estate of the purchaser shall not be applied in exoneration of the real estate, unless he ap- peared to have intended to make the debt his own (?/); (1) but a mere covenant for securing the debt will not be sufficient for that purpose (v). (2) 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 es- [420] tate descended ; 3dly, the real estate specifically devised subject to a general charge of debts (w). As it is the object of a court of equity, that every claimant on the assets of the deceased shall be satisfied, so far as that purpose can be effected by any arrangement consistent with the nature of the respective claims of creditors, it has been long 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 (x). (3) If therefore a specialty creditor, whose debt is a lien on the real assets, receive satisfaction out of the per- sonal assets, a simple contract creditor shall stand in the place of such specialty creditor against the real assets, so far as the lat- ter shall have exhausted the personal assets in payment of his debt (y). (4) The same marshalling of assets may also take place in favour of legatees. As against assets descended they shall have the same (u) yPonbl. 202. note b. Pockley v. Lewis, 2 Bro. Ch. Rep. 257. 261.' in Pockley, 1 Vern. 36. 6 Bro. P. C.520. note, 239. in note. Manning' v. Spoon- Billinghurst v. Walker, 2 Bro. Ch. er, 3 Ves. jun. 117. Rep. 608. (x) 1 P. Witts. 679. note 1. Lanoy (v)Bagotv. Oughton, lP.Wms.347. v. Duke of Athol, 2 Atk. 446. Lacam Evelyn v. Evelyn, 2 P. Wms. 664. v. Mertins, 1 Vez. 312. Mog-g v. Forrester v. Lord Leigh, Ambl. 171. Hodges, 2 Vez. 53. Earl of Tankerville v. Fawcett, 2 Bro. (y) 2 Ch. Ca. 4. Sagittary v. Hvde, Ch. Rep. 58. Tweddell v. Tweddell, 1 Vein. 455. 1 Eq. Ca. Abr." 144. Wil- ib. 152. Billinghurst v. Walker, ib. son v. Fielding, 2 Vern. 763, Gallon 604. v. Hancock, 2 Atk. 436. 3 Wooddes. (w) 1 P. Wms. 294. note 1. Galton 489. v. Hancock, 2 Atk. 424. Dpune v. (1) 9'Serg. & Ravvle, 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 Keysey, Ex. of Keysey, 9 Serg. &. Rawle, 71. (2) Cumberland (Duke of ) v. Codnngion, 3 Johns. Cha. Rep. 229. (3) Cheeseborough v . Millard, 1 Johns. Cha. Rep. 409. Greenwood v. Boequei's Ex. 2 Bay's Rep. 87. Eowlery. Barltsdah, Harp. Eq. Rep. 164. (4) Haydon v. Good, 4 Hen. &.. Munf. 460. So a surety who pays a specialty debt, due by the intestate, lias a right to stand in the place of the specialty credi- tor, and be paid such portion of the assets as the specialty creditor would have been entitled to. Durshehner v. Bucher, Adm. 7 Serg. & Rawle, 9. 36 420 OF MARSHALLING ASSETS. [BOOK III. equity: Thus where lands are Subjected to the payment of all dehts, 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 lega- cies by the codicil; the former shall resort to the real assets on a deficiency of such as are personal to pay the whole (a). So, al- though 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 (6). (1) But the principles of these rules will not admit of their being applied in aid of one claimant, so as to defeat another. And, there- fore, a pecuniary legatee shall not stand in the place of a specialty creditor, as against lands devised, though he shall as against lands descended (c). Yet such legatee shall stand in the place of a mort- gagee, who has exhausted the personal assets, to be satisfied out of the mortgaged premises, though specifically devised (d) ; for the application of the personal assets in case of the real estate mort- gaged (e), does not take place to the defeating of any legacy, either specific or pecuniary (/). A legatee shall also stand in the place of a specialty creditor, who has exhausted the personalty, as against a residuary devisee of the real and personal estate, because he has only the rest and residue (g-). Nor do any of the rules above mentioned subject any fund to a claim to which it was not before liable, but only provide that the election of one claimant shall not prejudice the claims of the [422] others (A). Thus, where A., seised of freehold anW copy- hold lands, mortgaged thorn in his lifetime, and died indebted by mortgage, and on several bonds, the specialty creditors urged the court, in marshalling the assets to cast the whole mortgage upon the copyhold estate, in order that the specialty creditors might have the benefit of the whole freehold estate: yet the court held, that as copyhold estates were not liable, either at law or in equity, to the testator's debts, farther than he subjected them to the same, the copyhold estate should bear its proportion with the freehold estate (c) Haslewood v. Pope, 3 P. Wms. Ambl. 171. 323. (e) Vid. Howel v. Price, 1 P. Wms. («) 3 Ch. Hep. 83. Masters v. Mas- 294. ters, 1 P. Wms. 422. Bligh v. Earl of (/) Oneal v. Mead, 1 P. Wms. 693. Daroley, 2 P. Wms. 620. Tipping v. Tipping, ib. 730. Davis v. (b) Clifton v. Bifft, 1 P. Wms. 680. Gardiner, 2 P. Wms. 190. Rider v. (c) Heme v. Meyrick, 1 1'. Wms. Wager, ib. 335. 201. Clifton v. Burt, 678. Haslewdod (g) Handby v. Roberts, Ambl. 129. v. Tope, 3 P. Wins. 324. (//) Galton v. Hancock, 2 Atk. 438. (if) Lutkins v. Leigh, Ca. Temp. Lacam v. Mertins, 1 Vez. 312. Talb. 53. Forrester v. Lord Leigh, (1) See anlr, page 111, n. (1). CHAP. VIII.] OF MARSHALLING ASSETS. 422 for payment of the mortgage, but should not he liable to make sa- tisfaction for the specialty debts (/'). But this case, as being quite anomalous and irreconcileable with all principle, has been lately overruled (k). 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 nas nut surrendered the copyhold, it shall not be applied until the freehold is ex- hausted (/). 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 be vested and transmissible; but, as against the real estate, it would sink by the death of the legatee (m). As against real assets descended, the wife shall stand in the place of specialty creditors for the amount of her paraphernalia (n) ; 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 preju- dice of the charged estate (p). A court of equity will not marshal assets in favor 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 (q). Under a devise of real and personal estate in trust to pay debts and legacies, some of which were void. under the stat. 9 Geo. 2. c. 36. as a charge of charity legacies upon the real and leasehold es- tates and money on mortgage ; on a deficiency of assets the other legatees were preferred to the heir (r). * (!) Robinson v. Tonge, cited 1 P. 729. 'Snelson v. Corbet, 3 Atk. 369. Wins. 679. note 1., and vid. supr. 411. Graham v. Londonderry, ib. 393. and 2 Vez. 271. (») 2 P. Wms. 554. note 1. Probert (k) Aldricb v. Cooper, 8 Ves. jnn. v. Clifford, Anibl. 6. Incledon v. 382. See also Trimmer v. Bayne, 9 Ves. Northcote, 3 Atk. 438. 3 Bac. Abr. jun. 209. And in Tomlinson v. Lad- 87. Lord Townsend v. Windham, 2 broke, at the Boll's sittings after Hil. Ves. 7. Vid. supr. 231. T. 1809, Sir Wm. -Grant, M. It. held (p) Boyntun v. Boyntun, 1 Cox's clearly that the assets should be mar- Rep. 106. shalled as against a copyhold estate. (?) Mo&g v. Hodges, 2 Vez. 52. (I) Growcock v. Smith, 2 Cox's Pep. Attorney General v. Tyndall, Amid. 397, 614. Foster v. Blagden, ib. 704. Ilill- (//() Prowse v. Abingdon, 1 Atk. 482. yard v. Taylor, ib. 713. 3 Wooddes. and Fearce v. Taylor, before Lord 489. note (g - ). Mogg v. Hodges, 1 Thurlow, C. Trin. Vac. 1790, cited 1 Cox's Rep. 7. and oilier cases m the P. Wms. 679. note 1. ■ same work. 00 Tipping v. Tipping, 1 P. Wms. 00 Currie v. Pye, 17 Ves. jun. 462 [ 4 f 24 ] CHAP. 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 violation or neglect of it as shall make him personally responsible. This species of misconduct is styled in law a devastavit ; that is, a wasting of the assets («). And where an executrix in respect of her receipts as such, was considerably indebted to the estate, an annuity to which she was 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 es- tate (b). An executor may incur this charge in a variety of modes, not on- ly 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 (d). Or by disburse- ments in the schooling, feeding, or cloathing of an intestate's chil- dren 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 (f). 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 general- ly speaking (g), be a devastavit (/i). If he submit to arbitration a debt, or any other demand he may be entitled to in right of the tes- tator, 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 (a> Of!'. Ex. 157. 3 liar, \hv.77. Com. ('<•) Ciilos v. Dyson, 1 Starkie, 32. Dig.'Admon. I. 1. 14 Yip. Abr>. 306. ( f) Off. Ex. 159. 1 Nets. Abr. 262. '{/,) Skinner v. Sweet, 3 .\ladd. ftgp. ({,<-) Sed vid. inf. 429. Ml. ('//) ()(!'. Ex. 71. 159. Cbandler \. (c) VicL. supr. 246. Thompson, Hob. 266. And. 138. (r/^ Off Ex. 158. Briglitmun v. Kniyhtley, Cro. Eliz. 43. CHAP. IX.] OF A DEVASTAVIT. 425 the difference (h). If an executor take an obligation in his own name for a debt due by simple contract to the testator, he shall be equally chargeable as if he had received the money ; for the new security has extinguished the old right, and is quasi a payment («). 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 case, is liable on a devas- tavit for the value (k). 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 in evidence, it was held to be a payment (/). So, if an [426] executor pay money in discharge of anusurious bond, or any other usurious contract entered into by the testator, it shall involve him in the same consequences (n%)- Such acts also of negligence and careless administration as tend to defeat the rights of creditors, or legatees, fall under the same de- nomination. As if the executor delay the payment of a debt paya- ble on demand with interest, and suffer judgment for principal and interest incurred after the testator's death ; unless he can shew that the assets were insufficient to discharge the debt immediately (»), 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 prosecute a suit instituted by him against the obligor, with effect, in order to recover the money on the bond, and respited judgment in the mean time (p). 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 (q). He shall in like man- [427] ner, 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 (/•). f 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 (■?). If a term be assigned by an executor in trust, to attend an inherit- ed) Off. Ex. 71. 159, 160. Anon. (ri) Seaman v. Everad, 2 Lev. 40. and 3 Leon. 51. see Hall v. Hallet, 1 Cox's Rep. 134. (t) Goring v. Goring-, Yelv. 10. (o) Vid. Goodfellow v. Burchett, 2 Norden v. Levit, 2 Lev. 189. Keilw. 52. Vern. 299. (A-) Norden v. Levit, 2 Lev. 189. 2 (p) Ibid. .Ion. 88. S* C. Barker v. Talcot, 1 {<;) 3 Bac. Abr. 60. Lowson v. Vern. 474. Copeland, 2 Bro. Ch. Rep. 156. (/) 3 Bac. Abr. 78. in note, et vid. (r) Havward v.. Kinsey, 12 Mod. 1 Vern. 474. 57i. 11 Vin. Abr. 309. (th) Wihchcombe v. Bp. of Win- (a) Jenkins v. Plombe, 6 Mod. 93. Chester, Hob. 167. Nov, 129. 427 OF A DEVASTAVIT. [BOOK III. ance, it shall in equity follow all the estates created out of such inheritance, and all the incumbrances subsisting upon it (t) ; hut as by such assignment the term ceases to be assets at law, the exe- cutor shall be responsible to the creditors for a devastavit (it). If an executor retain money in his hands for any length of time, which by application to the Court of Chancery, or by vesting in the funds, he might have made productive, he shall be charged with interest upon it (w). If he permit rent to run in arrear, and it is lost through his negligence, he will be charged with the amount so lost (x). 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 mo- ney in payment of debts, &c. and paid the rest into his bankers, ;nixing it with his own money, instead of vesting the same in stock as directed by the will, and»the jankers failed, he was held liable to pay the money to the legatees (z). 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 (b). 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 ex- [428] tent of the value of the goods, and not merely to what he re- covers in damages ; for there was a default on his part (c). But if, without any imputation on him, the goods are taken out of his possession, although he recover not such damages as the goods were really worth, he shall be responsible for no more than he reco- vers (d). 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 on- ly 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 ap- propriating the same, he shall not be answerable for a loss by the (t) Supr. 410. (y) Adye v. Feuilleteau, 1 Cox's (u) Charlton v. Lowe, 3 P. Wms. Rep. 24. 330. Willoug-hby v. Willoug-hby, 1 (r) Fletcher v. Walker, 3 Mud J. Term Rep. 763. Rep. 73. (10) 2 Fonbl. 2d edit. 184. note p. (a) Off. Ex. 158. Bird v. Lockey, 2 Vern. 744. Perkins \b) Jenkins v. Plombe, G Mod. 181, v. Baynton, 1 Bro. Ch. Rep. 375. 182. Fittlehales v. Cascoyne, 3 Bro. Ch. (c) Ibid. Rep. 73. Franklin v. Frith, 433. et (d) Jenkins v. Plombe, 6 Mod. 181, vid. ibid. 107. 182. (x) Tebbs v. Carpenter, 1 Madd. (t) Ibid. Rep. 290, CHAP. IX.] OF A DEVASTAVIT. 428 fall of stocks (f). Nor, as it seems, shall he he so liable, although, without the indemnity of a decree, he lend money on a real securi- ty, which at the time there was no reason to suspect (g). It has been held that 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 security, though words which may imply a discretion so to do are used by the testator in his will (i). Nor will a power to lend money upon real or personal security, enable trustees to accommodate a trader with a loan upon his bond (k). An executor has an honest discretion to call in a debt bearing interest, if he con- ceive 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 con- version of the goods of the testator to his own use a devastavit, if he pay debts of the testator to the value with his own money (n). Nor is he so liable if he pay a debt of an inferior nature out of his own purse to the amount of the testator's effects in his hands ; for they remain equally liable to the claim of the superior creditor, and may equally be seized at his suit in execution in specie, as the tes- tator's property (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 de- vastavit, as the money, for which the bond is taken, is assets im- mediately (/?). But he shall be charged, as we have seen (q), 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 execu- tor release the arrears, and give him a sum. of money to* quit pos- session ; in case he appear thus to have acted for the benefit of the estate, he shall be allowed both (?*). Nor is-an executor, as we have seen (s), bound to plead the statute of limitations to an action com- menced against him by a creditor of the testator. If an executor become bankrupt, having wasted the assets, the devastavit may be proved under the commission (t). Where a specific legacy was given to an executor, who afterwards became bankrupt and committed a devastavit, and the subject of the speci- (/) 2 Fonbl. 2d edit. 184. note p. (/) 2 Fonbl. 2d edit. 186. note q. Hutchinson v. Hammond, 3 Bro. Ch. Newton v. Bennet, 1 Bro. Ch. Rep. Rep. 147. Franklin v. Frith, ib. 433. 361. Sed vid. Anon. Mosel. 98. Vifl. also Cooper v. Douglas, 2 Bro. (m) Com. Dig. Admon.I. 2. Off. Ex. Ch. Rep. 231. 159. (g) Brown v. Litton, 1 P. Wms. (n) Merchant v. Driver, 1 Saund. 141. 307. Vid. supr. 238. (It) Harden v. Parsons, 1 Eden's (o) Wheatly v. Lane, 1 Saund. 218. Rep. 14-5. lp) Norden V. Levit, 2 Lev. 189. 'J.) Wilkes v. Steward, Coop. Rep. (a) Supra, 425. 6. and 2 Cox's Rep. 1. (»•) Blue v. Marshall, 3 P. Wms. 381. (A-) Langston v. Ollivant, Coop. (.s) Vid. supr. 343. Rep. 33. (/) Whitmarsh's B. L. 2d edit. 269, 429 OF A DEVASTAVIT. [BOOK III. fic bequest was sold by his assignees, it was held, that the produce in their hands was not specifically liable to make good the devasta- vit, 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 (v). [430] If the husband of an executrix commit a devastavit, in case the executorship commenced before the marriage, they shall both be chargeable. If it commenced subsequently to the marriage, the husband is liable alone. If an executrix commit a devastavit, and afterwards marry, the husband we have seen, as well as the wife, is responsible during the coverture (u). A devastavit by one executor shall not charge his companion (10) ; (1) and if there be several executors or administrators, each shall be liable only for what he receives (x), (2) provided he hath not intentionally or otherwise contributed to the devastavit of the other (y). (3) But an executor administering, having once received money, as- sets of his testator, cannot discharge himself under the plea of plent administravit to an action by a bond-creditor of his testator, by shewing that he paid the money over to his co-executor, even for the purpose of satisfying the bond-creditor who had applied for pay- ment of such co-executor, if the co-executor afterwards misapplied the money by retaining it to satisfy his'own simple contract debt (z). Formerly, the executor of an executor could not be charged by a devastavit committed by the first executor, although to the preju- dice of the king, for it was held to be a tort (a), and, therefore, to die with the party. But, by the stat. 4 & 5 IV. $ M. c. 24. s. 12. (4) an executor of an executor shall be liable on a devastavit com- mitted by his testator, in the same manner as he would have been if living. (v) Geary v. Beaumont, 3 Meriv. 3 Bro. Ch. Rep. 74, and vid. infr. 431. (•») Barnes, 440. 00 Beynon v. Gollins, 2 Bro. Ch. (y) Vid. infr. Bep. 323. Vid. supr. 358, 359. (z) Crosse v. Smith, 7 East, 246. (w) Off. Ex. 161, 162. Dyer, 210. 3 . (a) Tucke's case, 3 Leon. 241. Bey- Bac. Abr. 31. Littlehales y. Gascoyne, non v. Gollins, 2 Bro. Ch. Rep. 324. (1) Sutherland v. Brush, 7 Johns. Cha. Rep. 17. (2) Douglass v. Safterke, 11 Johns. Rep. 16. Brown's Appeal, 1 Dall. Rep. 311. Moore v. Tandy, 3 Bibb's Rep. 97. (3) Knox v. Picket, 4 Desaus. Rep. 92. Morrell v. Marrelt, 5 Johns. Cha. Rep. 283. Sutherland v. Brush. ' (4) The better opinion seems to be that this statute is in force in Pennsylvania. See Roberts' Dig. Brit. Statutes, 260. I 431 ] CHAP. X. OF REMEDIES FOR AND AGAINST EXECUTORS AND ADMINISTRATORS, AT LAW AND IN EQUITY. Sect. I. Of remedies for executors and administrators at law. Before I conclude, it will be necessary to consider, first, what remedies, either at law or in equity, executors or administrators are entitled to, in right of the deceased ; and then, secondly, what remedies may be had against them. In regard to the first of these points, the subject has been in a great measure anticipated by the discussion of the executor's inter- est in the testator's chosesin action (a), the existence of which ne- cessarily supposes a remedy to give it effect. From what has been already stated it appears, that the executor represents the testator in respect to all his personal contracts : there- fore he may maintain such actions, to enforce them as might have been maintained by the testator himself (5). Thus an executor [432] may have an action on a debt due to the testator by judgment, statute, recognizance, obligation, or other specialty (c). So he is enti- tled to an action of debt suggesting a devastavit in the lifetime of his testator, on a judgment recovered by such testator against an ex- ecutor (d). So the executor of the assignee of a bail-bond shall have an action upon it (e). So an executor may maintain an action on a bond, though conditioned for the performance of an award (f ). He may also have an action on a covenant entered into with the testator to perform a personal thing (g) ; and even on a covenant that touches the realty, as for assuring lands, if it were broken in the testator's lifetime ; and in such cases damages shall be recover- (a) Vid. supr. 157. Mod. Ca. 126. S. C. Ld. Raym. 971. \b) 3 Bac. Abr. 59. 91. Countess of 1502. Vid. Erving v. Peters, 3 Term Rutland v # Rutland, Cro. Eliz. 377. Rep. 685. Latch. 16,7. Roll. Abr. 912. Off. Ex. O) Fort. 367. 65. (/) 2 Ventr. 349. (c) Com. Dig. Admon. B. 13. (g) Latch. 168. (d) Berwick v. Andrews, 1 Salk. 314. 37 432 OF REMEDIES FOR [BOOK III. ed b}^ the executor, although he be not expressly named (h) ; (1) for since the testator was entitled to an action of covenant for such breach and to recover damages as the principal remedy, and not merely accessary, the law devolves such remedy on the executor : but if waste be committed by the lessee in the lifetime of the lessor, after his death his heir can have no action for the waste, because he cannot recover treble damages ; nor can the executor have it, for he [433] has no right to recover the place wasted, the inheritance of which has descended to the heir (?'). 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 (A?) ; and even on contracts for the benefit of a third person (/). He may likewise have an action for a relief due to the testator (m). And pursuant to the stat. 13 Ed. 1. West. 2. c. 23. (2) an executor is entitled to an action of account on account with his testator (n) ; 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., (3) have an action of trespass for the tak- ing of the testator's goods : and although the statute speak only of the carrying away of goods, yet its operation is not confined to that specific trespass, which is named merely for an example ; but it has been held, as we have seen (o), to comprehend other injuries to the testator's personal estate {p) : therefore on this statute, an ac- tion will lie for trespass with cattle on his leasehold premises (q) ; or for cutting corn, though growing on his freehold lands, and car- rying it away at the same time (r). So by the like equity of this stat- [434] ute an executor may maintain an action of trover for the con- version of the testator's goods in his lifetime (s) ; (4) or an action (h) Com. Dig. Admon. B. 13. Cove- (n) Com. Dig. Admon. B. 13. riant, B. 1. 3 Bac. Abr. 91. Lucy v. (o) Supr. 158. Levington, 2 Lev. 26. S. C. Ventr. (p) Com. Dig-. Admon. B. 13. Semb. 175. Oft'. Ex. 65. Latch. 168. (/) Off. Ex. 65. Com. Dig-. Wast. C. (?) Oft". Ex. 67, 68. 3. 2 Inst. 305. (r) Emerson v. Emerson, 1 Ventr. (&) Com. Dig. Admon. B. 13. 3 Bac. 1S7. Abr. 59. 92. Petrie v. Ilannav, 3 (s) Harris v. Vandridge, Moore, Tei-m Rep. 660. . 400. Countess of Rutland v. Rutland. (/) Al. 1. Cro. Bliz. 577. Latch. 168. 1 Anders. (w) Nov. 43. Ld. St. John v. Brand- 242. Russell's case, 1 Leon. 193, 194. ring-, Cro. Eliz. 883. Moreron's case, 1 Ventr. 30. (1) Watson, Mm. v. Blum, Ex. 12 Scrg-. Sc Rawle, 131. (2) In force in Ptnn&ylvknia, 3 Binn. 604. Robert*' Dig. 14. (3) In force in Pehnsylvania,rS Binn. 610. Huberts' Dig-. 248. (4) See 2 Johns. Rep. 229. Kirby v. Clark, 1 Foot. 389. Towle v. Lovett, 6 Mass. Rep. 394. And the statute of limitations is no bar in an action of trover, where the conversion 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 sta- tute beg-'ms to operate. only from the time a right to demand the property vests in some one. Haslelfs Mm. v. Glenn, 7 Harr. Sc Johns. Rep. 17. Fi.-'/ncick's Mm. v. SeweU, 4 liarr. & Johns. CHAT. X.] KXECUTORS AT LAW. 434 of debt on the stat. 2 & 3 Ed. 6. c. 13. for not setting out tithes due to the testator (t) ; or a quare impedit, in case he died within six months after the usurpation (u) ; and, it seems, that under this stat- ute an executor may maintain ejectment for an ouster of the testa- tor, although he were seized in fee, because in such case the exe- cutor may proceed in that form of action for damages only (iv), in the same manner as a lessee where the lease expires pending the suit (.r). 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 (z). [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 («). An executor shall also have an action against a sheriff for thees- cape of a party in execution on a judgment obtained by the testator, even where the escape happened in the testator's lifetime (b). (1) So he may have an action against the sheriff for not returning Ins writ, and paying money levied on a fieri facias (c), (2) or for a false return, stating that he had not levied the debt, when in truth he had (d). 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 (/) Holl v. Bradford, 1 Sid. 88. (a) Com. Dig. Distress, A. 2. 1 Roll. Morton v. Hopkins, 407. Williams v. Abr. 67 2. Wankford v. Wankford, 1 Cary, 4 Mod. 404. Eaves v. Mocato, Salk. 302. 307. Duncombe v. Walter, 1 Salk. 314. Moreron's case, 1 Ventr. 2 Show. 254. 30. 3 Bac. Abr. 91, in note. (b) Com. Dig. Admon. B. 13. Spurs- (h) Off. Ex. 66, 67. Sav. 94. Latch, tow v. Prince, Cro. Car. 297. Dyer, 168. Noy. 87. Poph. 189. 4 Leon. 322. Vid. Berwick v. Andrews, Ld. 15. Raym. 973. (w) 3 Bac. Abr. 92. Moreron's case, (c) 1 Roll. Abr. 913. Spurstow v. 1 Ventr. 30. Doe v. Potter, 3 Term Prince, Cro. Car. 297. Rep. 13. (cf\ Williams v. Carv, 4 Mod. 404. (x) Doe v. Potter, 3 Term Rep. 16. S. C. 1 Salk. 12. Comb. S- C. 322, argdo. Co. Litt. 285. Stra. 1056. 323. S. C. 1 Ld. Raym. 40. 3 Bac. (y) Arundell v. Trevill, 1 Sid. 82. Abr. 98. Latch. 168. Off. Ex. 66. Gilb. L. of (e) Palgrave v. Windham, Stra. 202. Distr. 3d edit. 156. (/) Latch. 167. (r) Latch. 168. Off. Ex. 65. (1) The executors of a sheriff cannot maintain, it seems, a special action on the case against a gaoler or deputy sheriff, for a voluntary escape, the gaoler being responsible only in assumpsit on his implied undertaking to serve the sheriff with fidelity. Kain, Ex. v. Ostrarider, 8 Johns. Rep. 159. (2) Paine v. V 'liner, 7 Mass. Rep. 317. 435 OF REMEDIES FOR [BOOK III. 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 ex- ecutor, since the goods are forfeited by the conviction, and not by [436] the attainder (g-). An executor is likewise entitled to remedies by action of deceit, by audita querela, or identitate nominis (h). He may also sue in that character in a court of conscience (i). And by the stat. 11 Geo. 2.c. 19. s. 15. (1) above referred to (A 1 ), an executor of tenant for life, on whose death any lease determined, shall in an action on the case recover of the lessee a just proportion of rent from the last day of payment to the death of such lessor. But an executor has no right to an action for an injury to the per- son of the testator ; (2) as for a battery, (3) imprisonment, or the like (/) : nor for a breach of promise of marriage, where no special damage is alleged (m) : (4) nor for a prejudice to his freehold ; as for felling his wood, or cutting and carrying away his grass ; for wood and grass growing are parcel of the freehold (n), and conse- quently in such case the heir, and not the executor, is the party in- jured. Yet, if the lord of a manor assess a fine on a copyholder for his admittance, and die, his executor may bring an action for it ; for it does not depend on the inheritance, but is like a fruit fal- len (o). [437] The executor may also in right of the testator maintain actions, the cause of which accrued after the testator's death (p) ; as in case a bond given to the testator be forfeited after that event (•) Off. Ex. 82. 11 Yin. Abr. 231. (?») Emerson v. Emerson, 1 Ventr. L'.'of Ni. Pri. 158. 187. Le Mason v. Dixon, Jon. 174. (1) The 14th and 15th sections of this statute are in force in Pennsylvania. 3 Binn. 626. Roberts' Dig. 236. (2) " Suppose the case of a physician or surgeon, who by unskilful treatment injures the health of a patient — it will hardly ' JC contended, that "Hi case of death, the cause of action would survive. Per Ttlghman, C. J. 13 Serg. &. Rawle, 185. (3) Miller v. Umbefunoer, 10 &erg. & Rawle, 31. (4) Laftimore v. Rogers, 13- Serg. & Rawle, 183. CHAP. X.] EXECUTORS AT LAW. 437 payable (s) ; or his goods be taken (t) ; (I) or trespass committed on bis leasehold premises (u) ; (2) in all these, and the like instan- ces, the executor, in his representative capacity, is entitled to a re- medy by action. So, if the testator died possessed of a term for years in an advow- son, it vests, as we have seen (to), in his executor ; and therefore, in case of his being disturbed, he may maintain a quure impedit (x). So an executor may have an action of replevin for goods taken after the death of the testator (y ). An executor may also avow for rent accrued due after that time, as incident to a reversion for years, which vested in him in that character (z). [438] If a defendant in execution on a judgment recovered by the testator, escape after the testator's death, the executor shall have an action against the sheriff for the escape (a) ; as he shall al- so in case the defendant were in execution on a judgment recovered by him as executor (b). (3) So a bail-bond may be assigned to the executor of a deceased plaintiff, and he may bring an action upon it (c) : or a bill of ex- change may be endorsed to A. as executor, and he may in that character maintain an action on the bill against the acceptor (d). (4) And in like manner an executor may bring an action on any other contract made with him in his representative capacity (e). (5) An executor may hold to bail on an affidavit of his belief of the existence of the debt, for the nature of his situation will not admit of his being more positive {/). Therefore, if an executor' swear (*) King v. Stevenson, 1 Term Rep. 11 Vin. Abr. 204. Duncomb v. "Wal- 487. Munt v. Stokes, 4 Term Rep. ter, 2 Show. 254. Vid. supr. 434. 565. 'Com. Dig. Pleader, 2 D. 1. 3 («) 3 Bac. Abr. 57. Off. Ex. 46, Bac. Abr. 94. Reg. 140. 5 Co. 31 b. Godb. 262. Vid. supr. 435. Smith v. Norfolk, Cro. Car. 225. Fre- (b) Slingsby v. Lambert, 1 Roll. Rep, vin v. Paynton, 1 Lev. 250. 276. Wate v. Briggs, 1 Lord Raym. (/) 4 Bac. Abr. 93. in note 94. 1 Roll. 35. Bonafous v. Walker, 2 Term Rep. Abr. 602. Lane, 88. Jenkins v. 128. Plombe, 6 Mod. 92. (c) Fortes. 370. («) Com, Dig. Admon. B. 13. Off. (d) King v. Stevenson, 1 Term Rep, Ex. 70. 487. (w) Vid. supr. 139. " 0) Com. Dig. Pleader, 2 D. 1. Cro. (x) Off. Ex. 36. Car. 685. Roll. Abr. 602. 3 Bac. Abr. (y) Ibid. 93. (;) Com. Dig. Admon. B. 9.- Wank- (/) Mackenzie V.Mackenzie, 1 Term ford v. Wankford, 1 Salk. 302. 307. Rep. 716. 3 Bac. Abr. 101. (1) Carlisle v. Barley, 3 Greenl. Rep. 250. (2) An administrator may maintain trespass for an injury to personal property' committed after the death of the intestate, and before administration granted. Hutching v. Mams, 3 Greenl. Rep. 174. (3) After a judgment recovered in a suit by an administrator, the debt is due to the plaintiff in his personal capacity, and inaction of debt upon it he may de- clare that the debt is due to himself. Biddle v. Wilkins, 1 Peters' S. C. Rep. 686. (4) So he may sue in his own name, or as executor, upon a note made pay- able to a third person or bearer, and transferred to his testator before his deulh, Brooks v. Floyd, 2 M'Cord's Rep. 364. (5) Jyres v. Tolund, 7 Harr. Jk Johns. Rep. 3. 438 OF REMEDIES FOR [liOOK III. to the books of the testator, and that he believes them to contain a true account, and the debt to be still unpaid, it shall be sufficient (g). But an affidavit by an executor, that the defendant was indebted to his testator in fifty pounds as appears by the testator's books, was held defective, and common bail ordered (h). And so was an affidavit by an executor bf a debt due to his testator, "as ap- pears from a statement made from the testator's books, by an ac- countant employed by the deponent (*')." [439] It is a general rule, that an executor, when plaintiff, shall pay no costs, either on a nonsuit or verdict, for he sues in outer droit, and the law does not presume him to be sufficiently cogni- sant of the nature and foundation of the claims he has to assert \k\ Therefore, if an executor bring an action of trover on a conversion in the testator's lifetime, he shall not be liable to costs (/). Nor shall he be liable if the trover were in the testator's lifetime and the conversion, after his death (m). Nor shall he pay costs in an action for a debt" due to the testator in his lifetime (n). Nor in an action for a debt due on a contract made with the testator, which became payable after his death (o). Nor shall an executor be sub- ject to costs on a writ of error on a judgment recovered against the testator (p) ; for, in all these instances, it is necessary for him to sue in his representative character, and expressly to name himself executor. But if he reside abroad and commence an action, the court will require him to give security for costs, although he sue in the capacity of executor (q). Where a plaintiff sued as executor and was nonsuited, upon evidence given at the trial that'the sup- posed testator was still alive : the Court of King's Bench refused to allow costs to the defendant, 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 ac- tion 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 O) 1 Cromp. Prac 40. (») Ibid. (A) 1 Cromp. Prac. 40. Walrond v. (o) Anon. 1 Ventr. 92. 1 H. BI. 528. Fransham, Stra. 1219. Portman v. Cane, 2 Ld. Raym. 1413. (») Rowney v. Dean, 1 Price Rep. S. C. Stra. 682. Yid. Cockerill v. Ky- 402. naston, 4 Term Rep. 278. (k) 2 Bac. Abr. 46. 3 Bac. Abr. 100. (p) Gale v. Till, 3 Lev. 375. Yid. Cro. Jac. 228. Anon. Yelv. 168. 1 Cockerill v. Kynaston, 4 Term Rep. Roll. Rep. 63. Gale v. Till,. Carth. 280. 281. S. C. 4 Mod. 244. S. C. 3 Lev. . (?) Chevalier v. Finnis, 3 Moore's 375. Skin. 400. Portman v. Crime, Rep. 602. Stra. 682. 3 Bl. Com. 400. Tidd's (?•) Zachariah v. Page, 1 Barn, and Practice, B. R. 894. t Fetherston v. Aid. 386. Allvbon, Cro. Eliz. 503. 2 Bvdst. 261. (s) 3 Bac. Abr. 100. Savil. 134. Jenkins v. Plumbe, 1 Salk. 207. Eaves Latch. 220. Anon. 1 Ventr. 92. Hutt. v. Mocatb, ib. 314. H&wes v. Saun- 78. Salk. 3, 4. Bollard v. Spencer, ders, 3 Burr. 1586. Say. Costs. 97. , 7 Term Rep. 358. Vid. Cockerill v. (I) Cockerill v. Kynaston, 4 Term Kynaston, 4 Term Kep. 279. Hollis Rep: 277. v. Smith, 10 East. 293, (#11) Ibid. CHAP. X.] EXECUTORS AT LAW. 440 estate, had and received by the defendant after the death of the tes- tator (/) : Or if he bring an action on a bond executed to him by the defendant, for securing a debt due to the testator by simple con- tract (w) : Or if he fail by his own mispleading (iv) : Or if he bring a writ of error wher*e he was liable to costs in the original action (a*): (1) 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 payment of costs (y). If in an action at the suit of the executor, the defendant 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 proceed, and fail to recover a farther sum (z). An executor is subject to costs on a judgment of no?ipros(a). (2) And where he has knowingly brought a wrong action, or other- wise been guilty of a wilful default, he shall pay costs on a discon- tinuance (b) : or for not proceeding to trial according to notice (c); (3) but generally he is not liable to costs in either of those two [441] cases((/).(4) 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 attor- ney to deliver a bill of costs for business done by the deceased be- fore the commencement of an action : for the stat. 2 Geo. 2. c. 23. § 23. is confined to actions brought by the attorney himself, and ex- tends not to his personal representative {/). And the Court of (t) Goldthwayte v. Petrie, 5 Term Saunders, 3 Burr. 1584. Iliggs v. Rep. 234. Vid. also Smith v. Barrow, Warry, 6 Term Rep. 654. 2 Term Rep. 477. (b) Tidd's Prac. B. R. 606, 607. 895. (u) Vid. Cockerill v. Kynaston, 4 Ca. Pr. C. B. 79. Harris v. Jones, 3 Term Rep. 280. Burr. 1451. S. C. 1 Bl. Rep. 451. ' (w) Higgs v. Warry, 6 Term Rep. (c") Ca. Prac. C. B. 158. Hawes v. 654. Saunders, 3 Burr. 1585. 1 H. Bl. 217. (x) 1 H. Bl. Rep. 566. {eO.Baynham v. Matthews, 2 Stra. (y) 3 Bac. Abr. 100. Jones v. Wil- 871. Barnes, 133. Bennet v. Coker, son, 11 Mod. 256. Vid. Cockerill v. 4 Burr. 1927. Say. Costs. 96, 97. Kynaston, 4 Term Rep. 280. (e) Tidd's Prac' B. R. 694. Bennet (z) 3 Bac. Abr. 100. Gregg's case, v. Coker, 4 Burn. 1928. Barnes, 130. 2 Salk. 596. Cruchfield v. Scott, 2 Booth v. Holt, 2 H. Bl. 277. Stra. 796. (/) Tidd's Prac. B. R. 919. 1 Bar- («) Tidd's Prac. B. R. 379, 380. 895. nard. K. B. 433. Andr: 276. Ca. Prac. Ca. Pr. C. B. 14. 157, 158. Hawes v. C. B. 58. (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. Rep. 303. (2) Rudd et al. Ex. v. Long, 4 Johns. Rep. 190, 2d edit. ;. and the reporter's note. Contra, Frink v. Luytcu, Vanderosl's Ex. v. JJ'/iitncr, 2 Bay, 166, 399. (3) Per Curiam, 2 Bay, 400. Brown, Ex. v. Lambert, 15 Johns. Rep. 148. So also in the case of a scire facias to revive a judgment obtained by the testator, an executor is liable to the costs of a nonpros for not proceeding to trial. Hoge- boom, Ex. v. Clark, 17 Johns. Rep. 268. So also the costs of an unsupported action. Hardy v. < 'all, 16 Mass. Rep. 530. (4) Musser, .idm. v. Good, 11 Serg. & Rawle, 247. 441 OF REMEDIES TOR [BOOK III. Common Pleas will not suffer such a bill to be taxed (#). But in the Court of King's Bench the practice is different ; lor there the bill may be referred to be taxed, on the defendant's undertaking to pay what is due (7i). Yet where an attorney delivered his bill, and after his death application was made to tax it, and above a sixth part was taken off ; on motion that the executrix may pay the costs, the court held her not to be liable, since the act imposes them on the attorney or solicitor only, and an executor is not to blame if he stand on the testator's bill, or make out one from his books (i). Where the plaintiff dies after final judgment, and before execu- [442] tion, his executor or administrator shall sue execution by scire facias (k). (1) If after a fieri facias sued out the plaintiff die, the sheriff deriving his authority from the writ may levy the mo- ney, and may pay it to the executor ; or in case the plaintiff died intestate, it shall be brought into court, and remain there until ad- ministration be committed, when the administrator, on producing the grant, shall receive it (/). So if under a fieri 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 (m). (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 constru- ed liberally (o). The judgment on this statute is entered as if the («•) Tidd's Prac. B. R. 919. Barnes, Nov, 73. Dyer, 76 b. Tidd's Prac. B. 1 19. 122. It. 932, 933. (//) Tidd's Prac. B. R. 919. Gregg's (mi) Cle'rk v. Withers, 6 Mod. 297. case, 1 Salk. 89. Weston v. Poole, 2 Cleve v. Vere, Cro. Car. 459. Harri- Stra. 1056. Say. Costs. 324, 325. Imp. son v. Bowden, 1 Sid. 29. 2 Lord K. B. 482. Raym. 1073. (/) tidd's Prac. B. R. 919. Wilson (n) Tidd's Prac. B. R. 842. 1052, v. Poole, 2 Steal 1056. Say. Costs. 1053. 327. (o) Tffid's Prac. B. R. 842. Anon. 1 (k) Com. Dig 1 . Execution, E. 2 Inst. Salk. 8. & vid. 2 Ld. Raym. 1415. in 295. See Tidd's EraC. B\ R. 1056. note. Jacobs v. Miniconi, 7 Term (/) Clerk v. Withers, 6 Mod- 297. Rep. 31. (1) Tn Pennsylvania, on the death of the plaintiff after judgment, and the sug- gestion thereof on the record, his executor or administrator may issue execution without scire facias. Dcistr, Jldni. v. Sterling, 10 Serg - . & Rawle, 119. (2) In Pennsylvania it is the universal practice to issue a venditioni exponas after execution levied oirland, though both parties, plaintiff and defendants, are dead, without calling in their representatives. Krider v. Deklyne, Sup. Court, Dec. Term, 1824, stated 13 Serg. 8c Rawle, 147. (3) In force in Pennsylvania, 3 Binn. 624. Robais' Dig. 39, CHAP. X.] EXECUTORS AT LAW. 443 party were alive (o), and it must be entered, or at least signed (p), within two terms after the verdict. But there must be a scire fa- cias to revive it, before execution can be taken out ( a creditor of the intestate, and obtain from him a reassignment to himself. Simon, Mm. v. Albright, 12 Serg\ & Rawle, 429. (2) If one of two co-executors direct an appeal, writ of error, or supersedeas, CHAP. X.] EXECUTORS AT LAW. 446 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 ex- ecutor alone (?'). [447] If a judgment be recovered by two executors, and the one prays a capias, and the other a fieri facias ; it has been said the capias shall be awarded as most beneficial for the estate (Jc). By the stat. 25 E. 3. c. 5. (1) the executor of an executor is put on the same footing; in regard to the bringingof actions, as an imme- diate executor (/). An executor ^/e 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 privileges (m). (2) An administrator may, in right of his intestate, maintain actions in the same manner as an executor in right of his testator (?j). 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 admin- istrations, is, that there may be a person capable of recovering pro- perty belonging to the estate (o). [44S] 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 (p). 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 (g). 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 (s). (h) Anon. Cro. Eliz. 652. Co. Litt. (o) "Walker v. Wookston, 2 P. Wms. 139. 576. 6 Co. 67 b. 0') Off. Ex. 105, 106. (p) 3 Bac. Abr. 18. 1 Roll. Abr. (A-) 3 Bac. Abr. 33. in note. Foster 888, 889. Cro. Car. 127. Hatton v. v. Jackson, Hob. 61. Vid. Hudson v. Mascal, 1 Lev. 181. Coke v. Hodges, Hudson, 1 Atk. 460. 1 Vern. 25. (/) Vid. Off. Ex. 257. Godb. 262. (q) 3 Bac. Abr. 18. Eubrin v. Man- Cm) 2 Bl. Com. 507. Walker v. pesson, 2 Lev. 37. Wookston, 2 P. Wins. 583. vid. supr. (r) lb. 2 Lev. 37." 366. • (s) Com. Dig - . Abatement, E. 14. (n) Com. Dig-. Admon. B. 13. Off. Pleader, 2 D. 10. Ex. 259. originally granted to them both, to be dismissed, the other may proceed without him; and since both are before the court, an order of severance may be made with- out a summons. (1) In force in Pennsylvania. 3 Binn. 611. Boberts' Dig. 249. (2) Lee v. Wright, 1 Rawle, 151. Nor can he be cited to account before the Register. Peebles' Appeal, 15 Serg. &. Rawle, 41. 448 OF REMEDIES FOR [llOOK III. An administrator de bonis non, claiming by title paramount, could not at common law have ascire facias, or otherwise proceed on a judgment recovered by an executor, or administrator (/). (I) But now if a judgment after verdict be recovered by an executor or administrator, in such case an administrator de bonis non is by star.. 17 Car. 2. c. S. (2) entitled to sue a scire facias, and take out ex- [449] ecution on such judgment. (3) If the executor or administra- tor die after suing out the writ of execution and before the return of it, the administrator de bonis non is, by the equity of that act, per- mitted to perfect the execution thus commenced, for the right is de- volved upon him (u). (4) And in such case, if the sheriff return a seizure of goods to the value, but that they remain in his hands^ro defectu emptorem, the administrator de bonis non may sue out a venditioni exponas, or distringas nuper vice comitem {to). If at the time of the 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 (x). But if an executor bring a scire facias on a judg- ment, or recognizance, and getjudgment quod habeat executionem, and die intestate, the administrator de bonis non must bring a scire facias on the final judgment, and cannot proceed in the judgment on the scire facias (y). The statute extends only to judgments af- ter verdict (z). On any other judgment obtained by the executor or administrator, the administrator debonis non shall nothave a scire facias for want of privity, but must resort to his remedy at common law, by an action of debt de novo for the same demand, as adminis- [450] trator to the first testator or intestate (a), Yet even on a judgment by default, if the executor or administrator sue out exe- cution and die when the goods are in the hands of the sheriff", and consequently the writ is completely executed, the administrator cfe (/) Com. Dig 1 . Admon. G. Levct v. 2 Ld. Raym. 1074. Lcwkenor, Moore, 4. Tate v. Goth, (x) Ibid. 6 .Mod. 299, 300. ib. 2 Ld. ib. 680. Cro. Jac. 4. 1 Roll. Abr. 890. Raym. 1074, 1076. Norgate v. Snape, Wm. Jones, 214. (y) Tidd's Prac. B. R. 1058. Trevi- Snape v. Norgate, Cro. Car. 167. ban v. Lawrence, 2 Ld. Raym. 1049. Tidd's Prac. B. R. 1057. (z) Clerk v. Withers, 6 Mod. 296, (m) Com. Dig. Admon. G. Clerk v. 297. Withers, 1 Balk. 322. S. C. 6 Mod. («) See Com. Dig. Admon. (i. Le- 290. S. C. 2 Ld. Raym. 1072. Vid. 1 vet v. Lewkenor, Moore, 4. Yaites v. Sid. 29. Gbugh, 680. Cro. Jac. 4. Yaites v. (u>) Clerk v. WithegS, 1 Salk. 323. Cough*, Yelv. 53. 5 Co. 9 b. S. C. 6 Mod. 295. 297, 298, 299. S. C. (1 ) Grout, Adm. v. Chamberlin, 4 Mass Rep. 611. ace. (2) In force in Pennsylvania. 3 B'mn. 624. .Roberts' Dig. 369. See also Dale v. Roosevelt, 8 Cow. Rep. "33. Dykes v. Wooihouse>s Mm. 3 Rand. Rep. 287. (3) Or maintain an action of debt upon it. Dykes v. Ji'oodhouse's Adm. 3 Rand. Rep. 287. (1) So he may have a writ of error on a judgment against a previous executor or administrator. Dak v. Roosevelt, 8 Cow. Rep. 333. CHAP. X.] EXECUTORS AT LAW. 450 bonis non shall have the money brought into court, and on shewing the grant it shall be paid over to him {b). Or if the judgment by default be for goods taken out of the executor's or administrator's own possession, his executor or administrator shall have a scire fa- cias upon it, and account for them to the administrator de bonis non (c). (1) In case a party died seised of a rent-service, rent-charge, rent- seek, or fee-farm, in fee-simple, fee-tail, or per auter vie in the lifetime of cestui que vie, the common law afforded no remedy to recover the arrears due at the time when the owner of such rents died. It was therefore enacted by the stat. 32 H. 8. c. 37. (d), that the executors and* administrators of tenants in fee, fee-tail, or for life, of such. rents, may have an action of debt for all such-arrears, or may distrain for the same upon the lands chargeable, so long as they remain in the possession of the tenant who ought to have paid the rents ; or of any other person claiming under him by purchase, gift, or descent. The statute also provides, that a tenant per auter vie, his executors and administrators, may, after the death of cestui que vie, have an action of debt, or may distrain for such arrears in- [451] curred in the lifetime of cestui que vie. Before the passing of this act, the inconvenience did not exist to the same extent, in regard to the executor of tenant for his own life, or to the executor of tenant per auter vie after the death of cestui que vie : for by the common law an executor in either of those cases had a remedy, by action of debt, for the a'rrears of rent which had accrued in the lifetime of the testator (e). But it has been adjudged, that the statute, being remedial, applies to the execu- tors of all tenants for life ; not merely to such executors as previous- ly to the statute had no remedy whatever, but also to those who were entitled to an action of debt, to whom, therefore, it gives merely the additional remedy of distress (/). Yet, although the executors of all tenants for life be authorized by the. statute to dis- train for such arrears (g), it seems that rent reserved on a lease for years is not within its provisions, inasmuch as the landlord is not tenant in fee, fee-tail, or for life, of such a rent ; and the executors (b) Clerk v. Withers, 6 Mod. 299, (/) Harg. Co. Litt. 162 b. note. 300. Hcrol v. Bell, 1 Ld. Raym. 172. Cro. (c) Yaites v. Gough, Yelv. 33. Eliz. 322. L. of Ni. Pri. 5th edit. 55. (d) Vid. 3 Bac. Abr. 91. 2 Bac. Abr. Gilb. L. of Distress, 3d edit. 33. Sed 282, in note. 4 Burn. Eccl. L. 268. vid. Cro. Car. 471. (e) Harg. Co. Litt. 162, note 4. Gilb. (g) Hool v. Bell, 1 Ld. Raym. 172. L. of Distress, 3d edit. 33. (1) An administrator de bonis non cannot sue the representative of a former ex- ecutor or administrator, either at law or in equity, for assets wasted or converted by the first executor or administrator; such suit may be brought directly by credi- tors, legatees or distributees. Coleman, Mm,, v. M'Murdo, 5 Rand. Rep. 51. 4^)1 OF REMEDIES FOR [BOOK 111. of such tenarfts only are mentioned in the act (A). However, in trespass, where it appeared the defendant had distrained the plain- tiff's goods for rent due to his testator on a lease for years, Lee, C. J. held it to be comprehended by the statute, and the defendant obtained a verdict (i). Nor does the statute extend to the executor of the grantee of a rent-cbarge for a term of years, if he so long live (&) ; nor to copy- hold rents, but only to rents out of free land (/). But the executor of an executor is held to be within the equity of this statute (rn). An executor may also prove a debt due to the testator under a commission of bankruptcy (n). A commission was taken out by an executor before he had ob- tained probate. Probate was afterwards obtained ori the 5th of March, 1817, and the adjudication of the bankruptcy was on the 8th of March following, and the commission was held valid (o). In case a commission has been superseded, the executors of the party, against whom it issued, may take out a commission for a debt due to him ; but if it has not been superseded, they have no such right ; for the debt having vested in his assignees, the executors are incapable of being the petitioning creditors (/?). Executors, in their representative character, may sign a bank- rupt's certificate (q). And even where the bankrupt's father, be- [453] ing principal creditor, chose himself sole assignee, and dying intestate, the bankrupt, as his representative, chose himself assignee, and signed his own certificate, it was held regular (r). But an ex- ecutor, who has also a claim in his own right, cannot sign in both capacities (s). 'If a bankrupt's estate pay a clear dividend often shillings in the pound, and he obtain his certificate under the commission, his re- presentatives are entitled to the allowance (/). By the stat. 19 Geo. 2. c. 37. s. 4. it is enacted, that in case an assurer shall die, his executors or administrators may make re-assur- ance to the amount before by him assured, provided it be expressed in the policy to be a re-assurance : and thus a fund may be secured to satisfy the insured in case of- a loss, without its falling on the es- tate of the deceased. In case of the death of a person insured against fire, the policy (k) L. of Ni. Pri. 5th edit. 57. Glib. (o) Ex parte Paddy in re Drakely, L. of Distress, 3d edit. 34. 3 Madd. Rep. 241. and see Rogers v. (i) Powel v. Killick, at Westminster, James, 2 Marshall, 425. M. 25 Geo. 2. (p) Ex parte Goodwin, 1 Atk. 100. (k) L. of Ni. Pri. 5th edit. 57. (?) Whitmarsh's B. L. 2d edit. 356. (/) 2 Bac. Abr. 282, in note. Apple- 1 Atk. 85. ton v. Doily, Yelv. 135. Sed vid. (r) Ibid. Green, 260. Carth. 91. (V) Ex parte Sansmerez, 1 Atk. 85. (m) Off. Ex.258. (0 Whitmarsh's B. L. 2d edit. 351. O) Ex parte English, 2 Bro. Ch. Ex parte Calcot, 1 Atk. 208, 209. S. C. Kep. 610. 3 Atk. 814. CHAP. X.] EXECUTORS AT LAW. 453 of insurance and interest therein shall continue to his heir, executor, or administrator respectively, to whom the property insured shall belong, provided, before any new payment be made, such heir, ex- ecutor, or administrator shall procure his right to be indorsed on the policy at the office, or the premium be paid in the name of the heir, executor, or administrator (u). [454] Sect. II. Of remedies for executors and administrators in equity. An executor or administrator is also entitled to all the equitable interests of the deceased, and may, in his representative capacity, enforce them in a court of equity (a). Such interest vested in the testator shall vest in the executor, al- though he be not named : as if a legacy be given to A., and if he die underage, to B. and C-, or the survivor of them ; and first B. die, then C, and lastly A. die under age, the legacy shall be decreed to the executor of C. who survived B. (6). Partners in trade are interested in the whole stock and effects, not merely in that particular stock in being at the time of entering the partnership, but continue so through all its changes. In case of the death of one partner, his interest, as we have seen (c), at law vests in his representatives, and shall not survive to the other, al- though the legal remedy survive : in equity, the survivor is regard- ed als a trustee for them, on which footing the account shall be ta- ken, nor any thing considered as his share till after it : inasmuch [455] as the property in -the stock continues in such representatives: and they have a specific lien upon it, although the survivor should afterwards die, or become bankrupt (d). The representatives of a deceased partner, or the assignees of a bankrupt partner, are not, strictly speaking, partners with the survivor, or the solvent partner; but, in either case, that community of interest still subsists, which is necessary till the affairs are wound up, and which requires that what was partnership property before, shall continue-so for the pur- pose of distribution, according to the rights of the partners (e). (1) (u) Park on Insurance, 449, 5th ed. 2 Ventr. 347. (a) Vid. Com. Dig. Chancery, 2 B. (c) Supr. 155, 156. 163. 1. 3 G. 1. (r/) West v. Skip, 1 Ves. 242. (5) Com. Dig. Chancery, 3 G. Anon. (e) Ex parte Williams, 11 Ves.jun. 5. (1) In Pennsylvania, when a surviving- partner dies indebted to partnership and separate creditors, and leaving in the hands of his administrator joint property and also separate property, his whole estate, that is to say, his whole separate 455 OF REMEDIES FOR [BOOK III. If, pending a suit, the plaintiff die, his executor may continue it by bill of revivor, and have the full benefit of the proceedings (/)■ The executor of a person having written private letters to J. S. may maintain a bill in equity to restrain J. S. or his representatives from publishing them without the leaveof the plaintiff (g). 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 having their several claims adjusted by the decree of the court (h). But such bill will not entitle him to an injunction to restrain any creditor from pro- ceeding 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 (/). 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 may 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 affidavit by the executor, that he had paid all the assets into court, is indispensably necessary to support the motion, and such creditor shall be allowed the costs of his proceedings at law before actual notice of the decree (&). If he proceed at law after such notice, he shall be subject to the costs of the subsequent proceedings (/). If the creditor proceeding at law has recovered a judgment cle bonis testatoris, the court will restrain him from taking out execution ; but if he has obtained a verdict, which will entitle him to a judgment de bonis propriis against the executor, the court will not restrain him from proceeding at law (m). 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 (/) Mitfi 6.1, 64. (/) Potts v. Layton, Extx. Mich. T. (g) Thompson v. Stanhope, Ambl. 1802, at Westminster, before Sir Wil- 737. liam Grant, M. R. sitting for Lord • (//) Com. Dig 1 . Chancery, 3 G. 6. 2 Eldon, C. and afterwatds in the same Fonbl. 2d edit. 408, note (t). Bucele term before Lord Eldon, C. See also v. Atleo, 2 Vern. 67. Kenyon v. Worthington, Dick. Rep. (i) 2 Fonbl. ibid. Rush v. Higgs, 4 668. Ves. jun. 638. (■>») Terrewest v. Featherby, 2 Meri. (/.:) Gilpin, v. Lady Southampton, 18 Rep. 480. and Brook v. Skinner, in Yes. 469. and see Jackson v. Leaf, note. 1 Jac. St Walk. 229. property and his whole interest in the joint property, is to be divided among- all his creditors (joint and separate) of equal degree, equally, pro rata. Bell, Ex. v. Newman, Jidm. 5 Serg. & Rawle, 78. In such a case in South Carolina* co- partnership funds are first applicable to co-partnership debts, and private fundi to private debts. Woddrop v. Ward, Ex. 3 Desaus, Rep. 203. Hall v. Hall, 2 M 'Cord's Cha. Hep. 302. CHAP. X.] EXECUTORS IN EQUITY. 456 against him by a creditor of the testator, in order that he might have an opportunity to apply for an injunction to restrain the ac- tion, Sir J. Leach, V. C. granted the injunction, and said, he con- sidered the law to be settled according to the doctrine laid down by Lord Mansfield in Harrison v. Beccles, cited in Irving v. Peters, 3 T. R. 688, that an executor who pleaded plene administravit, was liable only to the extent of assets of the testator come to his hands (ra). (1) It is a general principle, that an executor shall have no allowance in equity for his trouble in the execution of the trust reposed on him, unless directed by the will (n) ; (2) and least of all where a legacy is expressly left him as a recompence. Nor is the case alter- ed by his renunciation of the executorship, and his afterwards as- sisting 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- (jn) Fielden, v. Fielden 1 Sim. 8c 1 Ves. 115." Scattergood v. Harrison, Stu. 255. and see Dyer v. Kearsley, 2 Mosel. 128. vid. Harwell v. Parker, Meriv. 482, in note, and Lord v. 2 Vez. 365. . Wormleighton, 1 Jacob. 148. (o) Robinson v. Pett, 3 P. Wms. («) 11 Vin. Abr. 433. Robinson v. 249. Pett, 3 P. Wms. 251. Ellison v. Airey, (1) Siglar et al. Adm. v. Haywood, 8 Wheat. Rep. 675. (2) In Pennsylvania, so far back as the testamentary law can be traced, exe- cutors have had a compensation for services (3 Binn. 560.). The Act of March 27th, 1713, (Purd. Dig. 610. 1 Dall. Laws, 98. 1 Sm. Laws, 81.) establishing Orphans' Court, provides that the Orphans' Court may " order the payment of such reasonable fees for copies [of bonds, inventories, accounts, actings and pro- ceedings 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 commissions 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 v. Neff, 11 Serg- &. Rawle, 208. Gebhard v. Shindle, 15 Serg. 8c Rawle, 235. Patton v. Ash, 7 Serg. & Rawle, 116. The amount of commissions is a matter in the discretion of the Court, (Pusey v. Clem- son, 9 Serg. & Rawle, 204.) and the number of the executors does not make any. difference in the rate : if their trouble be unequal, a share of the commissions ought to be assigned to each proportioned to his trouble. Case of Walker's Es- iate, 9 Serg. 8t Rawk>223. In Maryland, by statute, the commission to be allowed to an executor or ad- ministrator 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. Nichols 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 rate, and to fix that rate; but does not authorize the Court to make a special allowance without regard to a fixed rate. M'Whurter v. Benson, i Hopk. Cha. Rep. 28. 7 Johns. Cha. Rep. page 266 of the Index. 39 456 OF REMEDIES FOR EXECUTORS. [BOOK III. 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 executors having died before the trust was executed, such bargains ought to be discouraged as tending to dissipate the property (p). But an executor in India of a party domiciled in that country, not having a legacy, was held, on passing his accounts in the court of chancery here, to be entitled to a com- mission at the rate of 5 per cent, on receipts and payments, accord- ing to the practice in India (q). So where, after goods were con- signed to a factor, the principal died, having appointed him execu- tor, and then the goods came to his hands, it was decreed, that he should be allowed factorage and commission for them (r). If, how- ever, an executor in India has a legacy for his trouble, he will not be entitled to commission, either on his receipts or payments as ex- ecutor ; nor will he be allowed in passing his accounts, after a se- ries of years, to renounce his legacy, and charge commission on such receipts and payments [s). 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 (t). One executor may sue his co-executor in equity (u). In case of a suit by co-executors, the proceedings do not abate by the death of one of them (V). If a temporary executor prove the will, and afterwards his exe- [45S] cutorship determine, the subsequent executor may maintain a suit without another probate (w). An administrator shall be relieved in chancery against a fraud to his administration : as if the grant be wrongfully obtained, and af- terwards repealed on citation, an assignment of a term by the gran- tee in trust for himself shall be revoked, and avoided by the subse- quent administrator (x). 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 revi- vor by a subsequent administrator has been admitted (z). (p) Gould v. Fleetwood, Mich. 1732. (u) Ibid. Vifl. 11 Vin. Abr. 363. at the Rolls, cited 3 P. Wms. 251, 365. 3 Bac. Abr. 32. note (a), (v) Hinde's Prac. in Chan. 47. (y) Chetham v. Lord Audley, 4 Ves. (w) Pract. Reg. 2d edit. 209. 1 Ch. jun. 72. Ca. -265. (r) Scattergood v. Harrison, Mosel. ' ■ (x) 2 Ch. Ca. 129. Com. Dig. Chan. 128. 2B. 1. 0) Freeman v. Fairlie, 3 Men. Rep. (y) Mitf. 61. 124. (z) Mitf. 61, in note. Owen v. Cur- (/) Prac. Reg. in 'Chancery, 2d edit, zan, 2 Vern. 237. 2 Eq. Ca. Abr. 209. 3, 4. CHAP. X.] OF REMEDIES. AGAINST EXECUTORS. 458 Sect. III. Of remedies at law against executors and administrators* I am now in the last place, to treat of the remedies against exe- [459] cutors and administrators, or the means which the law pre- scribes 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, covenants, 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 [b). So an action of debt lies against the executor of a sheriff, on a judgment recovered against the testator, for an escape (c). So an action may be maintained against an executor on other in- ferior dehjs of record, as issues forfeited, fines imposed at the assizes, quarter ^sessions, by commissioners of sewers, or bankrupts, by stewards in leets, or the like {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 (/). An ex- ecutor may, likewise, be sued by the lord of the manor for a relief due from the testator (g). 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 (h) y or assumpsit for money had and received by the testator to the plaintiff's use (i). So an ac- tion may be maintained by a gaoler against an executor for provi- sions found for the testator in prison (k) : or against the executor of a sheriff, who levied money on a. fieri facias, and died before he paid it (/) : or, as it seems, against an executor on a collateral pro- mise by the testator (m), as where he promised to give A. a sum. of money in consideration that he would marry B. (rt) 3 Bac. Abr. 95. Off. Ex. 117, S. C. Salk. 309. S. C Ld\ Raym. 118. Cro. Car. 187. Morgan v. Greene, 553. Jon. 223. Hovvse v. Webster, Yelv. ' (g) Com. Dig. Admon. B. 14. Noy. 103. Dyer, 23. 43, '44. (b) Com. Dig. Admon. B. 14. Off. (A) Com. Dig. Admon. B. 14. Ex. us. (i) 9 Co. 89 b. 10 Co. 77 b. Cro. (V) Dver, 322. Car. 294. Plowd. 182. ((/) Com. Dig. Admon. B. 14. Off. (k) 9 Co. 87 b. Ex. 118. (/) Com. Dig. Admon. B. 14. 1 Roll. (e) Biinnghurst v. Speerman, Salk. Abr. 921. Jon. 430. Mar. 13. 297. Sti. 387. 406. Com. Dig. Cove- (m) Com. Dig. Admon. B. 14. 1 nant, C. 1. Roll. Rep. 14. Cro. Jac. 404. 3 Bui. (/) Tilney v. Norris, Caith. 519, 2. 6. Sti. 158. 0\v: 56, 57. Palm. 329. Jon. 16. 460 OF REMEDIES AGAINST [BOOK III. 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, (1) false imprisonment, trespass, (2) slander, nuisance, (3) diverting a watercourse, escape, or on a penal statute, and many other cases of the like kind (n). [461] Such are the species of actions which survive against an executor, or die with the person on account of the cause of action. But there are other species of actions, which survive or die in respect of the form. In some actions the defendant could have waged his law, as m 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 maintain- ed against him. No action, where in form the declaration must be, quare vi et armis, et contra pacem, or where the plea must be, that \^e t testa- tor was not guilty, will lie against an executor. (4) 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 the 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 assumpsit, 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. (5) But an action for the use and hire of the 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 (p). Nor will trover (n) Com. Dig. Admon. B. 1-5. Off'. (o) Hambly v. Trott, Covp. 375. Ex. 127, 128. 3 Bl. Com. 302. Ham- (/>) lb. Cowp. 376. bly v. Trott, Cowp. 375. (1) Miller v. Umbehower, 10 Serg. 8i Rawle, 31. (2) Nicholson v. Elton, Mm. 13 Serg-. & Ra\vle, 415. (3) Hawkins v. Class, 1 Bibb's Rep. 246. (4) Nicholson v. Elton, Mm. 13 Serg. & Rawle, 416. (5) Trespass for mesne profits of land recovered in ejectment lies against an executor in Virginia, Lee v. Cooke's Ex. Culm. Rep. 331. CHAP. X.] EXECUTORS AT LAW. 462 lie against an executor for a conversion by his testator ; (1) 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 plain- tiff's use. The fundamental distinction, then, is this : If it is a sort of in- jury by which the offender acquires no gain to himself at the ex- pence of the sufferer : as for example, beating or imprisoning a man, there the person injured has only a reparation for the delictum in damages to be assessed by a jury, and therefore the executor is not liable : But where, besides the crime, property is acquired which benefits the testator, an action for the value of the property shall sur- vive against the representative (g). (2) The executor is also liable on contracts of the testator, although [463] the cause of action accrue not till after his death : as on a bond which becomes due, or a note payable subsequently to that event (r). The liability of an executor to the payment of rent incurred after the testator's death, has been already considered (*), In the cases which I have been enumerating, the executor shall be liable only to the amount of the assets (t). (3) 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 (w). But there are cases in which he shall be personally responsible, debonispro- priis ; as if he commit any of those acts which constitute a devas- tavit, on its being duly substantiated, he must answer out of his own estate for the value of what he has wasted (x). (4) An executor may also make himself chargeable in his private capacity to the plaintiff's demands, by pleading a plea the falsehood of which lies in his own knowledge, and which, if true, would be a perpetual bar (q) Ibid. Cowp. 376, 377. («) Vid. Tidd's Prac. B. R. 941. and (»•) Com. Dig. Pleader, 2 D.,2. infr, (s) Vid. supr. 278. et seq. . (x) Com. Dig. Admon. I. 3. 3 Bac. (t) 9 Co. 88 b. Abr. 77. Off. Ex. 157. 164. (1) Hench v. Metzer, Ex. 6 Serg. & Rawle, 272. (2) Lattimore v. Simmons, 13 Serg. & Rawle, 185. (3) In assumpsit against executors, founded upon their assumption as execu- tors, on a consideration existing in the lifetime of the testator, the declaration need not aver assets. Malin v. Bull, 13 Serg. & Rawle, 441. (4) Wilson v. Long, 12 Serg. & Rawle, 58. But no contract arises upon a. devastavit, which will suppose an action against the executor personally, nor is a devastavit a trespass within the meaning of the Act of 22d March, 1814, (Purd. Dig. 460.) giving jurisdiction to justices of the peace, in cases of trespass for injuries committed on real or personal estate, ibid. 463 OF REMEDIES AGAINST [BOOK III. to the action (y) ; (1) therefore if an executor plead ne unques ex- ecutor, that he never was executor (z), or plead a release made to himself (a), and it is found against him ; the judgment shall be in [464] the alternative, de bonis testatoris, et si non, de bonis pro- priis. An executor may also make himself personally liable by his promise to pay a debt of the testator, or answer damages out of his own estate ; (2) but pursuant to the statute of frauds, such pro- mise, or some note or memorandum thereof must be in writing, and signed by him, or some other person by his authority (b). (3) There must also be a sufficient consideration to support the promise : It must be alleged and proved, that assets were come to his hands; or that in consideration the creditor would forbear to sue him, he promised to pay the debt (c) : Or an admission of assets must be im- plied from the nature of the promise itself; as where the defendant owned the money lay ready for the plaintiff whenever he would call for it (d) : and where executors gave a note to a creditor where- by they promised "as executors" to pay, &c. with interest (e). (4) In all these cases the executor shall be liable to the same species of judgment. Forbearance to sue, although the remedy be only in. equity, is a sufficient consideration (f). (y) Off. Ex. 85. 3 Bac. Abr. 87. 1 91. Reech v. Kennegal, 1 Ves. 125. Roll. Abr. 93. Godolph. 98. 11 Vin. Hawkes v. Saunders, Covvp. 293. Abr. 388. Howard v. Jemmet, 1 Bl. Rann v. Hughes, 7 Bro. P. C. 551. Rep. 400. (d) Camden v. Turner, cited Cowp. (z) 1 Roll. Abr. 930. 933. 293. (a) Cro. Jac. 671, 672. (e) Childs v. Monins, 2 Brod. & (6) Vid. stat. 29. Car. 2. c 3. s. 4. Bing. 460. Hawkes v. Saunders, Cowp. 289. and (/) 3 Bac. Abr. 90. 1 Sid. 89. Scott Rann v. Hughes, 7 Bro. P. C. 551. v. Stephenson, 1 Lev. 71. 1 Roll. (c) Trevinian v. Howell, Cro. Eliz. Rep. 27. (1) Siglar v. Haywood, 8 Wheat. 675. The plea of plene administravit, though not sustained, is not necessarily a false plea within his own knowledge ; and, if it be found against him, the verdict ought to find the amount of assets unadmin- istered, and the defendant is liable for that sum only. ibid. Nor are the pleas of non assumpsit, and non assumpsit infra, &c pleaded by administrators, though found against them, such false pleas as will subject them personally to costs. Evans, Adm. v. Pierson, 1 Wend. Rep. 30. See, as to what pleas are false pleas, Ousterhout v. Hardenburgh, 19 Johns. Rep. 267. (2) See Forbes v. Perrie, Adm. 1 Harr. & Johns. 109. A declaration setting forth an implied promise by an administratrix, as such, to pay money paid, laid out, and expended by the plaintiff for her use as administratrix, in consequence of the payment, after the death of the intestate, of a debt for which he and the plaintiff were jointly liable in his lifetime, is good; and a judgment de bonis intes- tati founded upon it may be supported. Collins, Adm. v. Weiser, 12 Serg. &. Rawle, 97. Giles v. Bacon's Adm. 1 Harr. & Gill. 164. U hitalccr v. Jflii/uker, 6 Johns. Rep. 112. (3) The Act of Assembly of March 21st, 1772, "for prevention of frauds and perjuries," (Purd. Dig. 516, 1 Dall. Laws, 640, 1 Sm. Laws, 389.) contains no provision requiring that the promise should be in writing. (4) Shields et al. Ex. v. Owens, 1 Rawle, 72. Curtis v. 77ie Bank of Som- erset, 7 Harr. & Johns. 25. Geycr v. Smith, 1 Dall. Rep. 347. n. CHAP. X.] EXECUTORS AT LAW. 464 But, in case there be no assets, a promise by an executor to pay a debt of the testator is nudum pactum (g). (1) And on a plea of plene administravit, proof of an admission by the executor that the debt was just, and should be paid as soon as he could, is not evidence to charge him with assets (h). Nor shall an executor's paying interest on a bond due from the testator be considered as an admission of assets for the princi- [465] pal (i). Nor shall an executor's merely submitting to a'n award amount to an admission of assets (k). (2) But if the executor bind himself by a personal engagement to perform the award ; or if his submission to arbitration be a reference, not only to the cause of action, but also of the question, whether he has or has not assets, and the arbitrator award the executor to pay the amount of the plain- tiff's demand, it is equivalent to determine, as between the parties, that the executor had assets to pay the debt. The defendant there- fore is concluded by the award, although it will not operate as an admission of assets in any other litigation, and he may be attached for non-payment (/). (3) According to a modern decision, an action may be maintained in a court of common law against an executor, in that character, on his express promise to pay a legacy in consideration of assets (m). (4) And in another case it was also ruled that on the same promise, grounded on the same consideration, action will lie against an exe- cutor personally in his own right (n). (g) Pearson v. Henry, 5 Term Pearson v. Henry, 5 Term Rep. 7. Rep. 8. Worthington v. Barlow, 7 Term Rep. (A) Hindsley v. Russel, 12 East, 232. 453. (i) Pearson v. Henry, 5 Term Rep. 8. (m) Atkins v. Hill, Cowp. 284. (k) Ibid. 5 Term Rep. 6. (») Hawkes v. Saunders, Cowp. 289. (/) Barry v. Rush, 1 Term Rep. 691. (1) Landis v. Urie, 10 Serg. & Rawle, 316. t (2) Hoare v. Muloy, 2 Yeates, 161. Swi'card v. Wilson, 2 Rep. Const. Ct. So. Carolina, 208. There was no decision called for in the nisi prius case of M'Kee v. Thompson, Addis. Rep. 24, where a contrary doctrine was advanced by the Court, to whom, as it is stated in the note, the case of Pearson v. Henry was not known when the cause was argued on the motion in arrest of judgment. (3) A confession of judgment generally by an executor or administrator in an action brought against him, is an admission of assets to the amount of the debt, {Griffith v. Chew, 8 Serg. & Rawle, 17. Den v. JDe Hart, 1 Halst. Rep. 450.) but confession of judgment de bonis, by agreement, in an amicable action, is not con- clusive proof in Pennsylvania of the existence of assets in a suit suggesting a devastavit, but the existence of assets must be proved by evidence aliunde. And where an administrator confesses a judgment which is afterwards reversed, he is not precluded, in a subsequent suit, from showing the want of assets. Greene v. Stone, 1 Harr. 8c Johns. 405. (4) Clark v. Herring, 5 Binn. 33. See M'Niell v. Quince, 2 Hayw. Rep. 153. But no contract, independent of express promise in consideration of assets, arises between the executor and legatee to pay a legacy, nor does any action at com- mon law lie to recover it ; the remedy of the legatee is given him by the Act of Assembly of 21st March, 1772. (Purd. Dig. 517.) Wikon v. Long, 12 Serg. & Rawle, 58. 460 OF REMEDIES AGAINST [BOOK III. But this doctrine has been exploded by subsequent adjudications. It is true, that in the case on which one of them was founded, the [466] executor had not, as in two former instances, expressly promised to pay the legacy ; yet two of the three learned judges, who decid- ed it, reasoned on general principles, and denied the jurisdiction of the courts of common law over the subject of legacy, without re- ference to any distinction between an express and an implied pro- mise. They held, that policy and convenience forbade the courts of common law to entertain this species of action, since they can impose no terms on the party suing : Whereas courts of equity in such suits interfere in a manner highly beneficial to private families ; as on a bequest of a legacy to the wife, they require the husband to make an adequate settlement on her, as the condition of his recov- ering it (/i) : But if he might resort to an action, the wife and chil- dren would, in a variety of instances, be left destitute of all provi- sion. They also observed, that the only other precedent of such an action occurred in the time of the usurpation ; and the reason there assigned for allowing it, was to prevent a failure of justice, as the ecclesiastical courts were at that time abolished, and the court of chancery did not then take cognizance of legatory matters, and these principles have been adhered to in decisions still more re- cent (o). (1) Although an executor be entitled, as we have seen (p), to sue in [467] a court of conscience, he is not liable to be sued there. The legislature could not intend to give to such a court an authority to inquire into the conduct of executors, and to take an account of assets (q). Executors and administrators shall not in general beheld to bail, for they are not personally liable, but only in respect of the assets. It were unreasonable to subject them to an arrest in their represent- ative cafacity (?'). (2) But they may be held to bail, if it appear that they have wasted the property (s). (3) Yet a bare suggestion of a devastavit is not sufficient for that purpose without the oath of (»?) Vid. Browne v. Elton, 3 P. (q) Stat. 14 G. 2. c. 10. Doug. 263. Wms. 202. and supr. 320, 321. Tidd's Prac. B. R. 873. (o) Decks v. Strutt, 5 Term Rep. (r) 3 Bac. Abr. 101. Cro. Jac. 350. 690. Vid. also Farish v. Wilson, Hargrave v. Rogers, Yelv. 53. Sir Peake's Ni. Pri. Rep. 73. See 4 Bac. Henry Mildway's case, Cro. Car. 59. Abr. 446. in note. Rawl'mson v. Shaw, Litt. Rep. 2. 1 Crompt. Prac. 29. 3 Term Rep. 557. and Mayor of (s) 1 Crompt. Prac. 29. Anon. 1 Southampton v. Graves, 8 Term Rep. Lev. 39. Dupratt v. Testard, Carth. 593. 264. Anon. 1 Mod. 16. (/>) Supr. 436. (1) Pelletreau v. Rathbone, 18 Johns. Rep. 429. See also the cases in notes («) (b) to that case. (2) An executor in Pennsylvania may be proceeded against by capias, to compel an appearance. Penrose v. Penrose, Ex. 2 Binn. 440, cited. (J) Hartness v. Puree//, 1 Wend. Rep. 303. CHAP. X,] EXECUTORS AT LAW. 467 the plaintiff (/). So where on a judgment against an executor ex- ecution is sued out, and the sheriff returns a devastavit, in an action to deht on the judgment the executor may he required to put in special bail (u). (1) Where an executor has personally promised to pay a debt, it seems he may be holden to bail on such promise (w). An executor defendant shall pay costs in case he plead a plea which is false within his own knowledge. And the judgment for the costs is de bonis testatoris, etsinon, de bonis propriis {as). (2\ [46S] So where a bankrupt who'was sued as executor, pleaded a false plea, and it being found against him, the plaintiff had judg- ment forthe costs de bonis propriis, after which the defendant ob- tained his certificate, it was held that the judgment for the costs was not discharged by the certificate (y). But where an executor pleads plene administravit, and the plaintiff admitting the truth of the plea, takes judgment of assets infuturo, the defendant is not liable to costs (z). (3) Nor, as it seems, is he so liable where he pleads plene administravit prxter, and the plaintiff admitting the truth of the plea, takes judgment of the assets admitted in part, and for the residue of assets infuturo {a). (4) So where an executor pleads several pleas to the whole declaration, as non assumpsit, ne un- ques executor, and plene administravit, and one of them is found for him, he is entitled to the postea and costs, % although the other plea be found against him (b). (5) But if the plaintiff take judgment of assets infuturo on the plea of plene administravit, and go to trial on the plea of non assumpsit', he will be entitled to costs, if he obtain a verdict ; and, therefore, in such ease, unless the defendant have a good ground of defence on non assumpsit, it is usualfor him to move to withdraw his plea, which the court will permit him to (/) 3 Bac Abr. 101. 1 Crompt. v. Spencer, 7 Term Rep. 359. Prac. 101. iy) Tidd's Prac. B. R. 81, 82. 896. (m) 3 Bac. Abr. 101. Dubray v. Howard v. Jemmet, 8 Burr. 1368. Comb. 206. Boothsby v. Butler, 1 S. C. 1 Bl. Rep. 400. gid. 63. (=) Tidd's Prac. B. R. 896. Imp. (w) Mackenzie v. Mackenzie, 1 Prac. B. R. 428. Term Rep. 716. («) See Rast. Ent. 323. 8 Co. 134. {x) 3 Bac. Abr. 100. Tidd's Prac. Noel v. Nelson, 2 Saund. 226. S. C. B. R. 896. Plowd. 183. Hardr. 165. Sid. 448. Cro. Eliz. 503. Hutt. 69. 79. Farr v. (b) Edwards v. Bethee, 1 Barn, and Newman, 4 Term Rep. 641. Bollard , Aid. 254. (1) A refusal to apply tbe assets to the payment of debts does not amount to a devastavit; nor does a* declaration by the executor, of intention to leave the country and not to return, justify an order to hold to bail. Hartness v. Purcell, 1 Wend. Rep. 303. (2) Siglar v. Haywood, 8 Wheat. Rep. 675. As to what pleas are false pleas, see ante, page 463, note (1). (3) Pope, Adm. v. Belavan rt al. 1 Wend. Rep. 68. Wellborn v. Gordon, 1 Murph. 103. (4) Ford v. Crane, 6 Cow. Rep. 71. • ) Ousterhout \, Hurdtnbergh, 19 Johns Rep 266. 40 468 OF REMEDIES AGAINST [BOOK III. ilo on payment of cosis (c). An executor defendant shall have costs in case of a judgment in his favour (d). [469] If the defendant die after final judgment, and before exe- cution, the plaintiff shall sue out the same by scire facias against the personal representatives (e). But a fieri facias, if tested be- fore the defendant's death, although not delivered to the sheriff till after it, may, without a scire facias, be executed on his goods in the hands of his executor or administrator (/"). (1) And, as we have seen (g), a judgment signed atany time during the term, or the va- cation next following, relates back to the first day of the term, al- though the defendant died before the judgment was actually signed; and an execution tested the first day of the term may be taken out upon it against the goods (A). (2) A judgment recovered against art executor or administrator is, as we have seen (i), 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 (k). In such case the course is for the plain- tiff to sue out a fieri facias de bonis testatoris, fyc. et si non, de bonis propriis, according to the judgment (I), upon which the sheriff [470] returns either nulla- bona generally, or nulla bona, and a devastavit by the defendant (m). On the former return, the plain- tiff must proceed by scire fieri inquiry (??), or by action of debt on the judgment suggesting a devastavit. On the latter he may have execution immediately against the defendant by capias ad 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 ad- ministrator (p). (c) Tidd's Prac. B. R. 896, 897. Rep. 20. Dearne v. Grimp, 2 Bl. Rep. 1275. (/) Supr. 463. Hindsley v. Russel, 12 East, 232. (k) Tidd's Prac. B. R. 941. Farr v. (d) 3 Bac. Abr. 100. , Newman, 4 Term Rep. 648. Bollard (e) Com. Dig 1 . Execution, (F.) v. Spencer, 7 Term Rep. 359. Pleader, 3 L. 7. Dy. 76 b. Tidd's (/) Gibson v. Brook, Cro. Eliz. Prac. B. R. 1056. Heapy v. Parris, 6 886. Term Rep. 268. Bragner v. Lang- (to) Thes. Brew 116, 117. mead, 7 Term Rep. 24. (n) Lil. Ent. 664. (/) Com. Dig. Execution, D. 2. F. (o) Tidd's Prac. B. R. 942. Thes. Semb. Anon. 2 Ventr. 218. R. Skin. Brev. 46, 47. 122, 125. 257. (p) Tidd's Prac. B. R. 957. 1 (g) Supr. 266. Crompt. Prac. 346. 2 Leon. 188. (h) Bragner v. Langmead, 7 Term (1) Leiper v. Levis, Mm. 15 Serg. Sc Rawle, 108. (2) Leiper v. Levis, Mm. 15 Serg. &. Rawle, 108 ; but a judgment creditor obtains.no priority over other judgment creditors by levying under an execution so taken out. (3) Swearingen's Ex. v. Pendleton's Ex. 4 Serg. & Rawle, 389. CHAP. X.] EXECUTORS AT LAW. 470 Of execution against an executor or administrator in case of the defendant's death before final judgment, I have already treated (q). If the plaintiff confess the plea of plenc administravii, or plene administravit prxter, 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 quando acciderint ; but in that case execution cannot be had until the defendant shall have goods of the deceased, when the plaintiff may either sue out a scire facias, or bring an action of debt on the judgment suggesting a de- vastavit (r). (l) [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 (s) ; 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 (t). In an action against a married woman executrix the husband must be joined (a). 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 (iv), yet she shall not be charged de bonis propriis for the costs recov- ered against him (x). 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 (c) : for although executors themselves must be con- (q) Supr. 44.1, 444. Westcott v. Cottle, 1 Roll. Rep. 380. (r) Tidd's Prac. B. R. 1038, 1039. (/) Vid. Off'. Ex. 215, 216. 1041. 8 Co. 134. and vid. Dorchester (u) Com. Dig. Admon. D. Off. Ex. v. Webb, Cro. Car. 372. Sed vid. Noel 203, 207. 3 Bac. Abr. 9. v. Nelson, 2 Saund. 226. 1 Sid. 448. (w) Vid. supr. 358, 359. Noel v. Nelson, 1 Lev. 286. Noel v. (x) Com. Dig. Admon. I. 3. Horsy Nelson, 1 Ventr. 94, 95. 2'Keb. 606. v. Daniel, 2 Lev. 161. 621.631.666.671. Hob. 199. Gill v. (y) 3 Bac. Abr. 32s Off. Ex. 95. Scrivens, 7 Term Rep. 29. (z) 3 Bac. Abr. 33. Swallow v. (s) 3 Bac. Abr. 9. 618. 1 Roll. Abr. Emberson, 1 Lev. 161. S. C. 1 Sid. 287, 288. Poph.' 130. Cro. Jac. 420. 242. (1) In Pennsylvania, if the executor or administrator has no personal assets, he may plead the want of assets against an action by a creditor; and, if the jury find in his favour, no judgment can go against him; but in such case the plaintiff may pray judgment de tern's, !kc. and of assets quando acciderint, which is entered of course. Wilson v. Hurst's Ex. 1 Peters' C. C. Pep. 411. The Pennsylvahia j«ricultural, &e. Bmk.v, Siambaugh's Mm. 13 Serg. & Rawle, 300". Moore y. Kerr, Ex. 10 Serg. & Rawle, 348. 471 OF REMEDIES AGAINST [BOOK III. scious how many are named by the will, and must, as wc have seen, [472] frame their action accordingly, yet creditors and strangers are bound to take notice of such executors only as in fact execute the office. If one only confess a judgment, it seems now settled that it shall not bind nor conclude the. rest (a). If they plead distinct pleas, it is said that shall be received which is best for the estate, or most decisive of the question (b). Of co-executors, if some are of full age, and others infants, the action may be against them all ; but the latter cannot appear with others by attorney, but must appear by guardian (c). It is clearly settled, that one executor shall not be charged with the devastavit of his companion, and shall be liable only to the ex- tent of the assets which came to his hands (d), 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 the prejudice of the others (e). Nor shall one executor be affected by notice to the other, who conceals it from him, of the existence of a superior de- mand (/). But if there be notice to one executor, and nothing more appears, he shall, it seems, be presumed to have communi- cated it to the other (g). [473] An executor of an executor shall, as I have already men- tioned, pursuant to thestat. 4 & 5 W. fy 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 (A). 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 re- quisite, inasmuch as he was not privy to the judgment (k). It is not enough for the executor of an executor sued for breach of covenant made by the original testator, to plead plerie adminislra- 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 plcne administvavit by the first executor ; or at least that he, the second executor, had no assets of the first ; so as to shew that ( Littlehalej (t) Supr. 43k, 432s v. Gascoyne, 3 Bro. Ch. Rep. 71. Supr. (/>-) Berwick v. Andrews Salk. 314 430. S. C, Ld. Raym. ' I CHAP. X.] EXECUTORS' AT LAW. 473 he had no fund out of which any devastavit hy the first executor could be made good (/). An executor de son tort is liable to the action of the lawful exe- cutor or administrator, or to that of a creditor ; and, in the latter case, may be charged as executor generally (?n). (1) If there be also a lawful executor, they may be joined in an action by a creditor or sued severally (?i) ; but it is otherwise if there be a lawful adminis- trator ; 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 de son tort, as well as the goods of the intestate taken or converted previously to the same (p). (2) And if a person act under a power of attorney from one of several executors, who has proved the will, although he can- not be charged as executor de son tort during the life of such exe- cutor, 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 (q). [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 demised premises (s). If an executor de son tort be guilty of that, or any other species of devastavit, or plead ne unques execu- tor, and it be found against him, he shall be charged as another ex- ecutor de bonis propriis (t) : but in general cases he is liable only to the amount of the assets which come to his hands (u). By the stat. 30 Car. 2. c. 7. (3) made perpetual by the stat. 4 6c 5 W. & M. c. 24. above referred to, the executor of an executor in (/) Wells v. Fydell, 10 East, 315. ( But a debt due to the deceased cannot be attached on a plaint against his per- sonal representative, although he be sued under that description, unless he be sued for a debt due from the deceased (/). (1) Nor shall there be an attachment for the debt of a testator of money or goods in the hands of the executor, unless they were due or be- longing 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 {in). Nor, if he take a bond for a debt due to the testator, can the money payable on the bond be at- tached (n). 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 (/.-) Com. Dig-. Attachment, A. B. 3 g-es v. Cox, Cro. Eliz. 843. Bac. Abr. 258. 1 Roll. Abr. 105. vid. • (m) Horsam v. Tnrget, 1 Ventr. 113. Dv. 196 b. Eisher v. Lane, 3 Wils. 297. (») S. C. 1 Ventr. 113. S."C. 2 Bl. Rep. 834. (o) Ibid. 112. (/) Com. Dig 1 . Attachment, D. Hod- (1) In Pennsylvania a foreign attachment will not lie against executors M'Combe v. Dunchl Prthgk v. Black's Ex. 2 Dall. Rep, 73. 97. CHAP. X.] EXECUTORS AT LAW. 479 award be attached cy ; for creditors being warned (, 2 Bio. Ch. Rep. (>r) Raphael v. Roehm, 11 Ves. juts. 420. 02. ;md 13 Ves. jun. 107, (v) Forbes v. Ratos, 2 Cox's Rep. 113. CHAP. X.] EXECUTORS IN EQUITY. 481 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 he less than he sold at, it is not sufficient for him to olfer 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 witli a direction in the will to accumulate the interest, his estate shall be charged with interest at the rate of 5 per cent, with rests (r). But an executor shall not be charged with interest on a balance in his hands, which he re- tained under a misapprehension, for which there was some colour, of his having a right to it (V). Nor, if an executor compound debts due from the testator, or buy them in for less than their amount, shall he be personally en- titled to the benefit of the composition : but other creditors, or the legatees, or the party entitled to the surplus, shall have the advan- tage of it (if). (1) Yel, 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 would have been entitled to the produce of_ it if it had been sufficient (u). 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 exe- cutors (w). So, although, generally speaking, if an executor compound or [4S2] release a debt to the testator, he shall answer for the amount; still, if he appear to have acted for the benefit of the estate, he shall not be charged (.v). (2) Formerly an executor could not be compelled of course to se- cure a future legacy, on the principle that where the testator had thought fit to repose a trust, unless some breach of it were shewn, or a tendency to a breach, the court would continue to confide in the same hand; for such a purpose it was necessary to shew mis- conduct 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. (q) Ibid. 108. 4 Burn. Eccl. L. 428. Supr. 428. (r) Dorford v. Dorford, 12 Vcs. jun. (w) 4 Burn. Eccl. L. 428. Church- 127. hill v. Lady Hobson, 1 P. Wms. 243. (s) Bruere v. Pemberton, 12 Vcs. (,r) 11 Vin. Abr. 432. Blue v. Mar- jun. 386. shall, 3 P. Wms. 381. Vid. supr. 429. it) 11 Vin. Abr. 433. Anon. 1 Salk. (yj Slanning- v. Style, 3 P. Wms. 155. pi. 4. 336. 11 Vin. Abr. 426, 427, 428, 432. (u) Brown >. Litton, 1 P. Wms. 111. 3 Bac. Abr. 8. 1 Atk. 505. 3 Atk. 101. (1) Ca$e of Heager's Execidorsj 15 Serg & Rawle, 65. (2) P&sey v. Clemson, Serg. & Eawlc, 201. 482 OF REMEDIES AGAINST [liOOE I1J. circumstances (:). 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 haye 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 (a). Annuitants are likewise entitled to the same equity, and to compel the execu- tor to set apart a sufficient fund for the regular payment of their annuities (6). [4S3] An executor is in general personally bound by an ad- mission of assets express, or implied, as by the payment of inte- rest: but in either case he may be let in to shew, 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 pro- ceeding to an account of assets, and procuring a receiver to be ap- pointed (of). 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 (f). \*i an executor hav*e acted fraudulently, the court will decree costs against him (g), although the will direct that his expenses shall be allowed out of the testator's estate (h). He is also subject to costs in equity as well as at law, if he has misconducted himself by pay- ing 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 (k). ■ [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 effectual discharge; but that with respect to legatees, or parties claiming distribution, as they have no legal remedy, one executor or ad- ministrator shall not be charged merely by joining in the receipt, (z) Rous v. Noble, 2 Vern. 249. 362. Rocke v. Hart, 11 Vcs. jun. 58. (a) 4 Bac. Abr. 448. Green v. Pigot, (/) Prac. Reg. 2d edit. 210. Seers 1 Bro. Ch. Rep. 103. Cooper v. v. Hind, 1 Yes. jun. 294. Sed vide Douglas, 2 Biro. Ch. Rep. 232. Strange Ashburnham v. Thompson, 13 Yes v. Harris, 3 Bro. Ch. Rep. 365. Per- 402. rand v. Prentice, Ambl. 273. Prac. (a;) Recch v. Kinnegal, 1 Yez. 126. Reg. 2d edit. 270. Horsley v. Chaloner, 2 Vez. 85. (A) Shinning v. Style, 3 P. Wins. (A) Prac. Reg. 2d edit. 150, 151. 335. Hathornthwaite v. Russel, 2 Atk. 1J6 (c) Horsley v. Chaldner, 2 Vez. 85. (*) Jeffries v. Harrison, 1 Atlc. 468. (r/) Wall v. Busflby, 1 Bro. Ch. Rep. (/,) Prac. Rcff. 2d edit. 152. Rashley 484. '. . Masters, 1 Vcs. jun (r) Newton v. Bennet, 1 Bro. 11. ■ (/) 3 Bac. Abr. 31, CHAP. X.] EXECUTORS IN EQUITY. 484 when 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 (m). (1) But this distinction between legatees or parties in distribution, and credi- tors, appears to rest on no authority (n). 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 (/?), and Sir Richard P. Arden, M. R. denied it to be universally applicable ((/). It seems an exception, if an executor 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 pay- ment. 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 executor, and had under the same circum- stances deposited the money with a banker, he would not have been liable (s). This, however, is clear from all the cases, that, where by any act done by one executor, any part of the estate comes to the hands of his co-executor, the former 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 appli- cation of to that purpose (u). 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 charge- able. But in the case of co-executors, each has a power over the (m) Churchill v. Hopson, 1 Salk. (r) 1 P. Wms. 241. note 1. 83. note 318. S. C. 1 P- Wms. 241. 1 Eq. Ca. 1. Read v. Truelove, Ambl. 417. Sad- Abr. 398. Murrell v. Cox, 2 Vern. 570. ler v. Hobbs, 2 Bro. Ch. Rep. 114. (n) Sadler v. Hobbs, 2 Bro. Ch. Scurfield v. Howes, 3 Bro. Ch. Rep. Rep. 117. 1 P. Wms. 243. in note. 3 90. Hovey v. Blakeman, 4 Ves. jun. Bac. Abr. 31. in note. 596. Westley v. Clarke, 1 Eden's (o) Fellowes v. Mitchell, 1 P. Wms. Rep. 357. 81. Aplyn v. Brewer, Prec. Ch. 173. (s) Chambers v. Minchin, 7 Ves. Leigh v. Barry, 3 Atk. 584. Ex parte jun. 197, 198. Belchier, Ambl. 219. Sadler v. Hobbs, (t) 1 P. Wms. 241, note 1. 3 Bro. 2 Bro. Ch. Rep. 116. Ch. Rep. 97. Doyle v. Blake, 2 Scho. (/)) Churchill v. .Hopson, 1 Salk. & Lef. 231. 318. S. C. 1 P. Wms. 241. 1 P. Wms. («) Lord Shipbrook v. Lord Hin- 83. note (1). chinbrook, 16 Ves. jun. 477. Uncler- (q) Scurfield v. Howes, 3 Bro. Ch. wood v. Stevens, 1 Meri. Rep. 713. Rep. 94. (1) Ace. Appail of Brown, Ex. of Edgar, 1 Dall. Rep. 311. 485 OF REMEDIES AGAINST [BOOK III. fund, ami a co-executor joining in a receipt is altogether unnecessa- ry; therefore, if he act without necessity, and join with his co-ex- ecutor in such receipt, he shall in general be responsible for the consequences : He assumes a power over the property, and it shall [4S6] not be afterwards permitted to him to say, that he had no controul over it (x). So, if Executors confiding in the representa- tion 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). la like manner, if an executor 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 enquiring, they satisfy themselves, that there are debts unpaid, and his real purpose were 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 those debts, and such application of the fund was not necessary, nor was it in fact devoted to the payment of debts, they shall be responsible. They are, in such case, subject to the imputation of negligence in being too easy with their co-executor ; too remiss in not enquiring how for so long a time, he had been acting in the administration of the assets (~). 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, that if an executor contribute in any way to enable the other to obtain possession of the assets, he shall be answerable for their misapplication ; yet the rule does not extend to those cases, in which an executor is merely passive, and does not obstruct the other in receiving the property, for it is not incumbent upon one executor by force to prevent its getting into the hands of his co- executor (•&). 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 authorising B. one executor to part with it to (jc) Chambers v. Minchin, 7 Ves. ch'mbrook, 11 Yes. jun. 254. jnn. 186. P.rice v. Stokes, 11 Ves. (//) Ibid. 254. jun. 323, 324. (//) Longford v. Gascoignc, 11 Vcs. (y) Lord Shipbrook v. Lord Ilin- jun. 383. chinbrook, 11 Ves. jun. 252. 16 Ves. (c) Balchen v. Scott, 2 Vcs, jun. 478. 678. (c) Lord Shipbrook v. Lord Ilin- CHAP. X.] EXECUTORS IN EQUITY. 486 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, although 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 pur- poses of the will, and the executor derives no personal benefit from the success of the trade. If the trade prove a losing concern, the executor, 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 a right 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 es- tate, they will not pass by the assignment of the commissioners ; the executor holding them alieno jure> they will not be liable to his bankruptcy (g). 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- 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 executor, the rest of the assets will not be affected by the commis- sion, although the whole of the executor's private property will be subject to its operation (h). 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 ne- (d) Brice v. Stokes, 11 Ves. jun. (g) See Ex parte Garland, 10 Ves. 31 9 J jun. 110. Supr. 166. & Cooke's B. L. (e) Com. Dig. Chancery (2 G. 3.) 4th edit. 67. and Whittnarsh's B. L. Norton v. Turville, 2 P. Wms. 145. 2nd edit. 268. Wall v. Bushby, 1 Bro. Ch. Rep. 488. (h) Ex parte Garland, 10 Ves. jun. (/) Price v.'Yaughan, 2 Anstr. Rep. 110. 524. (1) Nor to any loss occasioned by such unauthorized trading. Hall v. Cat* laghatk's Mm. 1 Serg. & Rawle, 241. 42 488 REMEDIES AGAINST EXECUTORS [BOOK III, [48S] cessary to buy wines to refine the stock left by the testator, this was held not to constitute him a trader (i). It* an executor become a bankrupt, his bankruptcy does not di- vest him of his legal right of executorship, nor does the commis- sioner's assignment affect the assets, except in regard to such bene- ficial interest, as the bankrupt himself may be 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 receiver for the same ; or will direct the bankrupt himself to be admitted a creditor for what he shall be in- debted to the estate ; nor is this practice incongruous, as he acts in auter droit. Yet to prevent embezzlement, the court, on such proof, will order the dividends to be paid into the Bank, subject to the demands on the testator's estate (.&). So where A. a bank- rupt, and also B. claimed to be executors of a creditor of A. and a suit was pending in the ecclesiastical court in regard to the exe- cutorship ; the Lord Chancellor permitted B. to prove the debt un- [4S9] der the commission, and directed the dividends to be paid into the Bank, to abide the event of the litigation (/). And where an executor, in consequence of his bankruptcy becomes destitute, and incapable of exercising his functions, and elects to relinquish his interest 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 outstanding assets for the purpose of administering them (m). And a receiver has been appointed before answer upon an affida- vit of misapplication and danger to the property in the hands of an executor, and the co-executor's consenting to the order (n). An executor being out of the jurisdiction in Scotland, a receiver was appointed under the 36 Geo. 3. c. 90. but administration hav- ing been granted, a motion was made on the part of the adminis- trator for an injunction to restrain the receiver from acting. The Lord Chancellor referred it to the master to reconsider the appoint- ment of a receiver, regard being had to the circumstance of admin- istration having been granted (o). A writ of ne exeat regno against a feme covert administratrix, cannot be sustained (p). (») Cooke's B. L. 4th edit. 67. and (/) Ex parte Shakeshaft, 3 Bro. Ch. Whitmarsh's B. L. 2nd edit. 16. Rep. 198. (k) Cooke's B. L. 133, 134, 135. (m) Burroughs v. Elton, 11 Ves. 137. Stone, 131. Ex parte Ellis, 1 jun. 29. Atk. 101. Ex parte Butler, ib. 213. (n) Middleton v. Dodswell, 13 Ves. Butler v. Richardson, Ambl. 74. Ex 266. parte Markland, 2 P. Wms. 546. Ex (o) Faith v. Dunbar, Coop. Rep parte Leek, 2 Bro. Ch. Rep. 596. Vid. 200. also supr. 429. and Whitmarsh's B. 1,. (p) Pannel v. Tayler, 1 Turn. 96. 2nd edit. 269. CHAi'. X.J IN THE ECCLESIASTICAL COUH'l . -189 Skct. V. Of remedies against executors and administrators in the Ec- clesiastical Court. Legatees, and the next of kin may proceed against the execu- tor or administrator in the ecclesiastical court. That court has not only jurisdiction over the probate of wills, and the granting of ad- ministrations, but has also, as incident to the same, authority to enforce the payment of legacies (a) ; and, according to the statute, the distribution of an intestate's effects. (1) In respect to legacies, the cognizance 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 (b). In regard also to distribution, equity, as the act of parliament contains no negative words, has a concurrent ju- risdiction 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 have in these points a concurrent jurisdiction, whichever of them has first possession of the cause has a right to proceed (d). But where it appears that the ordinary cannot administer complete justice, equity, without regard to such priority, will interpose. As, where a husband sues in the spiritual court for a legacy bequeathed to the wife, the Court of Chancery will grant an injunction to stay the proceedings, since the ecclesiastical judge has no authority to compel a settlement (e). So a legacy given to an infant is more properly cognizable in equi- ty, since that jurisdiction can alone secure the money for the child's benefit (/). The spiritual jurisdiction extends to legacies only of personal property; therefore, if land be devised to be sold for the payment of («) 4 Bac. Abr. 446. 3 Bl. Com. 98. Jewson v. Moulson, 2 Atk. 420. Ni- (b) Deeks v. Strult, 5 Term Rep. cholas v. Nicholas, Prec. Chan. 548. 692. See 1 P. Wms. 575. 2 Aes. jun. 676. Meales v. Meales, 5 (c) Vid. 2 Fonbl. 2d edit. 414, note Ves. jun. 517, in note. See also 10 (d.) Matthews v. Newby, 1 Vern. 134. Yes. jun. 577. &supr. 321. (rf) 4 Bac. 447. Toth. 114. Nicho- (/) Howell v. Waldron, 1 Vern. las v. Nicholas, Prec. Ch. 548. ■ 26. Anon. 1 Atk. 491. (e) Hill v. Turner, 1 Atk. 516. (1) See an instance in which Gov. Bull (of South Carolina), in the year 1765, in his character of ordinary, summoned an administrator, al the instance of the guardians of the intestate's cliildrcn, to account for his administration, and upon jiis non-compliance, passed sentence of the greater excommunication against linn. Grimki on Executors, preface, page vii. 490 REMEDIES AGAINST EXECUTORS [BOOK III. legacies, they can be sued for only in a court of equity, because they arise out of the real estate (g). Equity has also the exclu- sive cognizance of those cases in which there is a will, and the [491] residue is undisposed of; for then as we have seen (A), the executor is. a trustee for the residue, and the ordinary cannot com- pel a distribution of it, because he cannot enforce the execution of a trust (e). Nor has he a power to compel the de,btor of an intes- tate to pay his debt into court, although such debtor he 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 {k). So, it seems, that if a legatee take a bond from the executor for payment of the legacy, and af- terwards sue him in the spiritual court for the same, a prohibition will be granted ; for by taking the obligation the nature of the de- mand is changed, and becomes a debt recoverable in the temporal 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 {in). Of the nature of an inventory I have already treated {n). It is to contain a full, true, and perfect 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 or- dinary ex officio to account {p). 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 as- signed him for that purpose, and render a just account, when law- fully 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 different items of it (q). The payment of sums under forty shillings shall be proved mere- ly by his oath, if there appear no fraud by dividing greater sums into less. Of the payment of sums to a higher amount vouchers (?) 4 Bac. Abr. 446. Dyer, 151. Luke v. Alderne, 2 Vera. 31. Sed Palm. 120. Cro. Jac. 279, 364. Cro. Dodderidge, J. contr. 2 Roll. Rep. Car. 16. 2 Roll. Abr. 285. Bastard v. 160. vid. Sadler v. Daniel, 10 Mud. Stockvvell, 2 Show. 50. 21. (//) Supr. 351, 479. (m) 4 Burn. Eccl. L. 425. (/') 2 Fonbl. 2d edit. 414, note (d) (n) Vid. supr. 247. et seq. ad fin. Petit v. Smith, 5 Mod. 247. (o) Greerside v. Benson, 3 Atk. 252. Hatton v. Hatton, Stra. 865. Petit v. (p) Com. Dig. Admon. C. 3. Arch- Smith, Ld. Raym. 86. Rex v. Raines, bp. of Canterbury v. Wills, 1 Salk. ib. 363. Farrington v. Knightly, 1 P. 315,316. Greerside v. Benson, 3 Atk. Wms. 546, 547, 549. 253. (k) Gierke v. Clerke, Ld. Raym. (r/) Archbp. of Canterbury T.Wills, 585. 1 Salk. 316. \id. also Archbp. of Can- ^/) Goodwyn v. Goodwyn, Yelv. 38. terbury v. House, Cowp. 111. CHAP. X.] IN THE ECCLESIASTICAL COURT. 492 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 penalties of perjury (s). 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 them (/). [493] In regard to the administrator, before the statute of dis- tribution, 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, condition- ed for his exhibiting an inventory of the effects, and an account of the same, at the respective times specified. Therefore, without citation or suit, he ought, in strictness, to appear on the day, and produce his account in court. But, in that case, it is neither verified by oath, nor liable to be examined. If, however, a party in dis- tribution, who is in the nature of legatee by statute, and therefore entitled to an account, shall come in and controvert it ; it must be sworn to, and is subject to investigation ; when the proceedings shall be the same as in the case of an executor (w). Thus it appears that the stat. 1 JaC. 2. c. 17. (w), which pro- vides that no administrator shall be cited according to the statute of distributions to render an account of the personal estate of his in- testate otherwise than by inventory, unless at the instance or prosecution of some person in behalf of a minor, or having a de- mand 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 (x). [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 nob 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 special, and all others in general, having, or pretending to have, an interest, to be present, if they think fit, at the passing of the same; and then, on their appearance, or contumacy in not appearing, the judge shall proceed (z). 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. (w) Vid. 4 Burn. Eccl. L. 486. 347, 348. (.r) Archbp. of Canterbury v. Wills, (s) 4 Burn. Eccl. L. 427. Ought. Salk. 315, 316. 346. (v) 4 Burn. Eccl. L. 426. Swinb. (/) 4 Burn. Eccl. L. 427. Ought, p. 6. s. 20. 347. (2) 4 Burn. Eccl. L. 426. Ought, (u) Archbp. of Canterbury v. Wills, 354, 355, 356. 1 Salk. 315, 316. 494 REMEDIES AGAINST EXECUTORS [BOOK III. cording to the common law («). Therefore, if payment he plead- ed in bar of a legacy, and there he but one witness, whom the ec- clesiastical court will not admit, because their law requires two wit- nesses, a prohibition shall issue (b). But it is not a sufficient ground for a prohibition to suggest, that the plaintiff had only one witness to prove the fact, unless the party allege he offered such proof, and it 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 prohibition, because it is restricted by the statute of distribution to those rules (d). [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 sentence 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 ac- cordingly. 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 effec- tual remedy (g). Yet a creditor, as well as the next of kin, has a right ex debilo [496] justitiae, to an«ssignment 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, shewing for breach the administrator's not ex- hibiting a true inventory, or account (A). But a creditor has no right in such case to assign for breach the non-payment 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 (a-\ 4 Bac. Abr. 447. 1 Roll. Abr. ' Davis, 1 P. Wms. 47, 49. 298, '299. Hob. 12. 12 Co. 65. Het- (r) Carth. 143, 144. lev, 87. 2 Inst. 608. Sid. 161. (d) Blackborough v. Davis, 1 P. \b) Bagnall v. Stokes, Cro. Eliz. 88. Wins. 49. 666. Shatter v. Friend, Show. 158. (c) 4 Burn. Eccl. L. 428. Swinb. p. 173. Richardson v. Disborov, Ventr. 6. s. 21. 291. Shatter v. Friend, 3 Mod. 283. (/) Vid. Nov. 78. Breedon v. Gill, 1 Ld. Raym. 220. (g) Vid. supr. 479. 489, 490. Cook v. Licence, 346. Startup v. (A) Greerside v. Benson, 3 Atk. 248. Dodderidge, 2 Ld. Raym. 1161. 1172. Archbp. of Canterbury v. House, 1211. Shatter v. Friend, 2Salk. 547. Coup. 140. Vid. 2 Fonbl. 414. 2d S. C. Garth. 142. Blackborough v. edit, note (d). CHAP. X.] IN THE ECCLESIASTICAL COURT. 496 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 expences, the rule in respect 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 substan- tiate (/). A legacy may be recovered in the spiritual court against an exe- ccutor of his own wrong (m). 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 (;i). [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 person- al estate, on the ground, that the ecclesiastical court has no means of securing the effects in the interim (o). And the court will pro- tect 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 (q). (i) 4 Burn. Eccl. L. 428. 430. Lutw. 882. Archbp. of Canterbury v. Wills, 1 Salk. 315, 316. Com. Dig. Admon. C.3. (k) 4 Burn. Eccl. L. 428. Lind. 178. (/) 4 Burn. Eccl. L. 428. Floy. 38. (n\) 4 Bac. Abr. 448. 1 Roll. Abr. 919. («) 11 Vin. Abr. 427. 3 Chan. Rep. 72. (o) Wright v. Bluck, 1 Vern. 106. Dulwich College v. Johnson, 2 Vevn. 49. Phipps v. Steward, 1 Atk. 285, 2 Bro. P. C. 476. Morgan v. Harris, 2 Bro. Ch. Rep. 121. (p) Atkinson v. Henshaw, 2 Ves, and Bea. 85. Ball v. Oliver, ib. 96. (q) 2 Burn. Eccl. L. 239. Com. Dig, Prohibition (F. 5.) Pollard v. Gerrard, Ld. Raym. 703. S. C. 1 Salk. 333. Horton v. Wilson, 1 Mod. 167. John- son v. Lee, 5 Mod. 238. Skin. 589. Bunb. 70. Pitts v. Evans, 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 44 Geo. 3. c. 98. and the 45 Geo. 3. c. 28. are repealed, arid the following Stamp Duties are imposed: PROBATE of a Will, and Letters of Administra- Duty. tion with a Will annexed, to be granted in England : L. s. d. CONFIRMATION of any Testament testamen- tary, or Exk thereto, to be expeded in any Commissary Court in Scotland, where the Deceased shall have died before or upon the 10th Day of October 1808, and subsequentto the 10th Day of October 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, and have left any Testament or testamentary Disposition of his or her Personal or Moveable Estate and Effects, or any Part thereof; 498 APPENDIX, INVENTORY— continued. Duty. Where the Estate and Effects for or in respect L. s. d. of which such Probate, Letters of Admi- nistration, Confirmation or Eik respect- ively, shall be granted or expeded, or whereof such inventory shall be exhibited and recorded, exclusive of what the De- ceased shall have been possessed of or en- titled to as a Trustee for any other Person or Pe?-sons, and not beneficially, shall be above the Value of 201. and under the Value of 1001. - 10 of the Value of 1001. and under the Value of 2001. - - - 2 of the Value of 2001. and under the Value of 3001. - . - . - 5 of the Value of 3001. and under the Value of 4501. ... 800 of the Value of 4501. and under the Value of 6001. - - 11 of the Value of 6001. and under the Value of 8001. - 15 of the Value of 8001. and under the Value of 1,0001. - 22 of the Value of l,00ol. and under the Value of 1,5001. - - 30 of the Value of 1,5001. and under the Value of 2,0001. - 40 o o of the Value of 2,0001. and under the Value of 3,0001. - - - 50 0* of the Value of 3,000l. and under the Value of 4,0001. - 60 of the Value of 4,000l. and under the Value of 5,0001. ... 80 of the Value of 5,0001. and under the Value of 6,0001. - • - - 100 [499] of the Value of 6,0001. and under the Value of 7,0001. - 120 APPENDIX. INVENTORY— continued. Value of 8,0001. of the Value of 8,0001. and under the Value of 9,0001. of the Value of 9,000l. and under the Value of 10,0001. *of the Value of 10,0001. and under the Value of 12,0001. of the Value of 12,0001. and under the Value of 14,0001. of the Value of 14,0001. and under the Value of 16,0001. of the Value of 16,0001. and under the Value of 18,0001. of the Value of 18,0001. and under the Value of 20,0001. of the Value of 20,0001. and under the Value of 25,0001. of the Value of 25,0001. and under the Value of 30,0001. of the Value of 30,0001. and under the Value of 35,0001. - - of the Value of 35,0001. and under the Value of 40,0001. - - - - '525 •of the Value of 40,0001. and under the Value of 45,0001. - - - - 600 of the Value of 45,OOOJ. and under the Value of 50,0001. - - - - 675 of the Value of 50,0001. and under the Value of 60,0001. - - - 750 of the Value of 60,0001. and under the Value of 70,0001. - 900 of the Value of 70,0001. and under the Value of 80,0001. .... i ? 050 [500] of the Value of 80,0001. and under the Value of 90,0001. .... i } 200 of the Value of 90,0001. and under the Value of 100,0001. .... 1,J50 o 499 Du ty- L. s. d. 140 . 160 > 180 o 200 - 220 250 280 310 350 400 450 500 APPENDIX. INVENTORY— continued. . Duty. of the Value of 100,0001: and under the L. s. d. Value of 120,0001. - - - 1,500 of the Value of 120,0001. and under the Value of 140,0001. - - - 1,800 of the Value of 140,0001. and under the Value of 160,0001. - - - 2,100 of the Value of 160,0001. and under the Value of 180,0001. - - - 2,400 of the Value of 180,0001. and under the Value of 200,0001. - - - 2,700. O of the Value of 200,0001. and under the Value of 250,0001. - - - 3,000 of the Value of 250,0001. and under the Value of 300,0001. - - - 3,750 of the Value of 300,0001. and under the Value of 350,Q00l. - - - 4,500 O of the Value of 350,0001. and under the Value of 400,0001. - - - 5,250 O O of the Value of 400,0001. and under the Value of 500,0001. - - - 6,000 of the Value of 500,0001. and under the Value of 600,0001. • - - 7,500 of the Value of 600,0001. and under the Value of 700,0001. - - - 9,000 of the Value of 700,0001. and under the • Value of 800,0001. - - 10,500 of the Value of 800,0001. and under the Value of 900,0001. - - 12,000 0. of the Value of 900,0001. and under the Value of 1 ,000,0001. - - 1 3,500 o of the Value of 1,000,0001. and up- wards - - - 15,000 [501] LETTERS OF ADMINISTRATION, without a Will annexed, to be granted in England : CONFIRMATION of any TESTAMENT dative, to be expeded in any Commissary Court in Scot- land, where the Deceased shall have died before APPENDIX. 501 Duty. or upon the 10th Day of October 1808, and L. s. . d. 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 of any Person deceased who shall have died after the 10th Day of October 1808, ■without leaving any Testament or testamentary Disposition of his or her Personal or Moveable Estate or Effects, or any part thereof; Where the Estate and Effects for or in res- pect of which such Letters of Administra tion or Confirmation respectively shall be granted or expeded, or whereof such Inven- tory shall be exhibited and recorded, ex- clusive of what the Deceased shall have been possessed of or entitled to as a Trus- tee for any other Person or Persons, and not beneficially, shall be above the Value of 201. and under the Value of 501. - - - 10 of the Value of 50l. and under the Value of 1001. - - - 10 of the Value of 1001. and under the Value of 2001. - - - 3 'or o of the Value of 2001. and under the Value of 3001. - - - 8 of the Value of 3001. and under the Value of 4501. - - - lloo [502] of the Value of 4501. and under the Value of 6001. - - - 15 of the Value of 6001. and under the Value of .8001. - - 22 O of the Value of 8001. and under the Value of 1,0001. - - 30 of the Value of 1,0001. and under the Value of 1,5001. - - 45 O of the'. Value of l,500l. and under the Value of 2,0001, ' - - 60 o o 502 APPENDIX. INVENTORY— continued. Duty. of the Value of 2,000l. and under the L. s. d. Value of 3,0001. - - - 75 o o of the Value of 3,000l. and under the Value of 4,0001. - - 90 of the Value of 4,0001. and under the Value of 5,0001. - - - 120 of the Value of 5,000l. and under the Value of 6,0001. - - - 150 of the Value of G,000l. and under the Value of 7,0001. - - - 180 o of the Value of 7,000l. and under the Value of 8,0001. - - - 210 of the Value of 8,000l. and under the Value of 9,0001. - - - '240 o of the Value of 9,0001. and under the Value of 10,0001. - - - . 270 o of the Value of 10,0001. and under the Value of 12,0001. - - - 300 of the Value of 12,0001. and under the Value of 14,0001. - - - 330 of the Value of 14,0001. and under the Value of 16,0001. * - - 375 O o of the Value of 16,0001. and under the Value of 18,0001. - - - 420 of the Value of 18,0001. and under the Value of 20,0001. - - - 465 [503] of the Value of 20,0001. and under the Value of 25,0001. - - 525 of the Value of 25,0001. and under the Value of 30,0001. - . 600 of the Value of 30,0001. and under the Value of 35,0001. - - 675 of the Value of 35,0001. and under the Value of 40,0001. - - - 785 of the Value of 40,0001. and under the Value of 45,0001. - - - 900 O ol the Value of 45,0001. and under the Value of 50,0001. - - 1,010 6 o APPENDIX, INVENTORY— continued. of the Value of 50,0001. and under the Value of 60,0001. of the Value of 60,0001. and under the Value of 70,0001. of the Value of 70,0001. and under the Value of 80,0001. of the Value of 80,000. and under the Value of 90,0001. * of the Value of 90,0001. «and under the Value of 100,0001. of the Value of 100,0001. and under the Value of 120,0001. of the Value of 120,0001. and under the Value of 140,0001. of the Value of 140,0001. and under the Value of 160,0001. of the Value of 160,0001. and under the Value of 180,0001. of the Value of 180,0001. and under the Value of 200,0001. of the Value of 200,0001. and under the Value of 250,0001. of the Value of 250,0001. and under the Value of 300,0001. [504] of the Value of 300,0001. and under the Value of 350,0001. - - , - of the Value of 350, 0001. and under the Value of 400,0001. of the Value of 400,0001. and under the Value of 500,0001. of the Value of 500,0001. and under the Value of 600,0001. of the Value of 600,0001. and under the Value of 700,0001. of the Value of 700,0001. and under the Value of 800,0001. of the Value of 800,0001. and under the Value of 900,0001. 503 Duty L. i. d. 1,125 1,350 1,575 0' 1,800 2,025 2,250 2,700 3,150 3,600 4,050 . 4,500 5,625 6,750 7,875 ■ 9,000 p 11,250 13,500 15,750 18,000 504 APPENDIX. INVENTORY— continued. Duty of the Value of 900,0001. and under the L. s. d. Value of 1,000,0001. - - 20,250 of the Value of 1,000,0001." and up- wards .... 22,500 Exemption from all Stamp Duties. Probate of Will, Letters of Administration, Confirmation of Testament, and Eik thereto, and Inventory of the ejects 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 exhibited and re- corded in any Commissary Court in Scot- land; where the same shall not be liable to a Duty of greater Amount than the Duty al- ready paid upon any former Inventory exhi- bited and recorded of the Estate and Effects of the same Person. [505] LEGACIES and SUCCESSIONS to Personal or Moveable Estate upon Intestacy. 1. Where the Testator, Testatrix, or Intestate died before 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 201. 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 Per- sonal or Moveable Estate, and which shall be paid, delivered, retained, satisfied or dis- charged, 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 • APPENDIX. 505 LEGACIES and SUCCESSION^— continued. Duty. Persons.) of the Personal or Moveable Estate L. s. d, of any Person, who died before or upon the 5th Day of April 1805 (after deducting Debts, Funeral Expences, Legacies, and other Charges first payable thereout), whe- ther the Title to such Residue, or any Share thereof, shall accrue by virtue of any Testamentary Disposition, or upon a partial or total Intestacy; where such Residue, or Share of Residue, shall be of the Amount or Value of 201. or upwards, and where the same shall be paid, delivered, retained, satis- fied or discharged, after the Thirty-first Day cf August 1815 : Where any such Legacy, or Residue, or Share of such Residue, shall have been given, or [506] 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 Shillings per Centum, per Cent. on the Amount or Value thereof - 2 10 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 the Father or Mother of the Deceased, or any Descendant of a Bro- ther or Sister of the Father or Mother of the Deceased ; a Duty at and after the Rate of Four Pounds per Centum on the Amount or per Cent. 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 De- scendant of a Brother or Sister of a Grand- father or Grandmother of the Deceased ; a 44 50G APPENDIX. LEGACIES and SUCCESSIONS— continued. Duty. Duty at and after the Rate of Five pounds L. s. d. per Centum on the Amount or Value there- per Cent. of - - - - 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 per Cent. Centum on the Amount or Value thereof - 8 [507] II. Where the Testator, Testatrix, or Intes- tate shall have died after the 5th Day of April 1805. For every Legacy, specific or pecuniary, or of any other Description, of the Amount or Value of 201. or upwards given by any Will or Testamentary Instrument, of any Person, who shall have died after the 5th Day of April 1805, either out of his or her Personal or Moveable Estate, or out of or charged upon his or her Real or Heritable Estate, or out of any Moneys to arise by the Sale, Mort- gage or other Disposition of his or her Real or Heritable Estate, or any Part thereof, and which shall be paid, delivered, retained, sa- tisfied or discharged after the .list 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 Personal or moveable Estate, of any person, who shall have died after the 5th Day of April 1805, (after deducting Debts, funeral expences, Legacies and other APPENDIX. 507 LEGACIES and SUCCESSIONS— continued. Duty. Charges first payable thereout), whether the L. s. d. 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 Share of Residue, shall be of the Amount or Value [508] of 20l. 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 Person) and for every Share of the clear Residue (when given to Two or more Per- sons) 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, EuneYal Expences, Legacies and other Charges first made payable, thereout, if any) where such Residue, or Share of Residue, shall amount to 201. or upwards, and where the same shall be paid, 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 tjie Deceased, or to or for the Be- nefit of the Father or Mother, or any lineal Ancestor of the Deceased ; a Duty at and af- ter the Rate of One Pound per Centum on per Cent. the Amount or Value thereof - - 10 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 509 APPENDIX. LEGACIES and SUCCESSIONS— continued. Dun [509] Brother or Sister of the Deceased, or any L. s. d. Descendant of a Brother or Sister of the De- ceased ; a Duty at and after the Rate of Three Pounds per Centum on the Amount per Cent. or Value thereof - - - - 3 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 Brother or Sister of the Father or Mother of the Deceased, or any Descendant of a Bro- ther or Sister of the Father or Mother of the Deceased; a Duty at and after the rate of Five Pounds per Centum on the amount or per Cent. Value thereof - - - -.500 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 Brother or Sister of a Grandfather or Grand- mother 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 Six Pounds per Cen- per Cent, turn on the Amount or Value thereof - 6 And where any such Legacy, or Residue, or any Share of such Residue, shall have been given, or have devolved, to or for the Bene- fit of any Person, in any other Degree of col- lateral 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 Ten Pounds per Cent. per Centum on the Amount or Value thereof 10 [5lo] And all gifts of Annuities, or by way of An- nuity, or of any other partial Benefit or In- terest, out of any such Estate or Effects as aforesaid, shall be deemed Legacies within the Intent and Meaning of this Schedule. And where any Legatee shall take Two or Al'PENDlX. 510 LEGACIES and SUCCESSIONS— continued. Duty. more distinct Legacies or Benefits under any L. s. d. Will or Testamentary Instrument, which shall together he of the Amount or Value of 20/. each shall be charged with Duty, though each or either may be separately under that Amount of Value. Exemptions. Legacies, and Residues, or Shares of Residue, of any such Estate or Effects as aforesaid, given or devolving to or for the Benefit of the Husband or Wife of the Deceased, or to or for the Benefit of any of the Royal Family. And all Legacies which were exempted from Duty by the Act passed in the 39th Year of His Majesty's Reign, c. 73, for exempting certain specific Legacies given to Bodies Corporate, or other Public Bodies, from the Payment of Duty. By Sect. 2. It is enacted, That there shall be raised, levied, and paid unto and for the Use of his Majesty, His Heirs and Succes- sors, in and throughout the Whole of Great Britain, for and in re- spect of the several instruments, Matters, and Things, mentioned [5 1 l] and described in the schedule hereunto annexed (except those standing under the Head of Exemptions) or for or in respect of the Vellum, Parchment, or Paper, upon which such Instruments, Mat- ters and Things, or any of them shall be written or printed, the several Duties or Sums of Money set down in Figures against the same respectively, or otherwise specified and set forth in the same Schedule ; and that the yearly Per-ccntage Duty on Insurances from Loss by Fire, therein mentioned, shall commence and take place from and after the Twenty-eighth Day of September, One thousand eight hundred and fifteen ; and that all the other Duties therein mentioned shall commence and take place from and after the Thirty-first day of August, One thousand eight hundred and fifteen ; and that the said Schedule and all the Provisions, Rcgula- 511 APPENDIX. tions, and Directions therein contained with respect to the said Duties, and the Instruments, Matters, and Things charged there- with, shall he deemed and taken to be Part of this Act, and shall be read and construed as if the same had been inserted herein at this Place, and shall be applied, observed, and put into Execution accordingly. By Sect. 37. It is enacted, That from and after the thirty-first Day of August One thousand eight hundred and fifteen, if any Per- son shall take possession of, and in any Manner administer, any Part of the Personal Estate and Effects of any Person deceased, without obtaining Probate of the Will or Letters of Administration of the Estate and Effects of the Deceased, within Six Calendar Months after his or her decease, or within Two Calendar Months after the Termination of any Suit or Dispute respecting the Will or the Right to Letters of Administration, if there shall be any such which shall not be ended within Four Calendar Months after the Death of the Deceased ; every Person so offending shall for- feit the Sum of One Hundred Pounds, and also a further Sum, at and after the Rate of Ten Pounds Jier Centum on the Amount of the Stamp Duty payable on the Probate of the Will or Letters of Administration of the Estate and- Effects of the Deceased. [512] Sect. 38. That from and after the Expiration of three Ca- lendar months from the passing of this Act, no ecclesiastical Court or Person shall grant Probate of the Will or Letters of Administra- tion of the Estate and Effects of any Person deceased, without first requiring and receiving from the person or persons applying for the Probate or Letters of Administration, or from some other competent person or Persons, an affidavit, or solemn affirmation in the case of Quakers, that the Estate and Effects of the Deceased, for or in re- spect of which the Probate or Letters of Administration is or are to be granted, exclusive of what the deceased shall have been possess- ed of or entitled to as a trustee for any other person or persons, and not beneficially, but including the Leasehold estates for years of the deceased, whether absolute or determinable on Lives, if any, and without deducting any thing on account of the debts due and ow- ing from the deceased, are under the value of a certain sum to be therein specified to the best of the Deponents or Affirmants know- ledge, information, and belief, in order that the proper and full Stamp Duty may be paid on such Probate or letters of administra- tion ; which affidavit or affirmation shall be made before the Surro- APPENDIX. 512 gate or other Person who shall administer the usual oath for the due Administration of the Estate and Effects of the Deceased. Sect. 39. That every such affidavit or affirmation, shall he exempt from' Stamp Duty and shall be transmitted to the said Commis- sioners of Stamps, together with the copy of the Will, or extract or account of the letters of administration to which it shall relate, by the Registrar or other Officer of the Court, whose Duty it shall be to transmit Copies of Wills, and Extracts or Accounts of Let- ters of Administration, to the said Commissioners, for the better Collection of the Duties on Legacies and Successions to Personal Estate upon Intestacy; and if any Registrar or other Officer whose Duty it shall be, shall neglect to transmit such Affidavit or Affir- mation to the said Commissioners of Stamps, as hereby directed, every Person so offending shall forfeit the Sum of Fifty Pounds. [513] Sect. 40. That from and after the passing of this Act, where any Person, on applying for the Probate of a Will or Let- ters of Administration, shall have estimated the Estate and Effects of the Deceased to be of greater Value than the same shall have afterwards proved to be, and shall in consequence have paid too high a Stamp Duty thereon, if such Person shall produce the Probate or Letters of Administration to the said Commissioners of Stamps, within Six Calendar Months after the true Value of the Estate and Effects shall have been ascertained, and it shall be dis- covered that too high a Duty was first paid on the Probate or Let- ters of Administration, and shall deliver to them a particular In- ventory and Account and Valuation of the Estate and Effects of the Deceased, verified by an Affidavit, cr solemn Affirmation in the Case of Quakers; and if it should thereupon satisfactorily ap- pear to the said Commissioners, that a greater Stamp Duty was paid on the Probate or Letters of Administration than the Law re- quired, it shall be lawful for the said Commissioners to cancel and expunge the Stamp on the Probate or Letters of Administration, and to substitute another Stamp for denoting the Duty which ought to have been paid thereon, and to make an allowance for the difference between them, as in the cases of spoiled stamps, or, if the difference be considerable, to repay the same in money, at the discretion of the said Commissioners. Sect. 41. That from and after the passing of this Act, where any Person, on applying for the Probate of a Will or Letters of 513 APPENDIX. Administration, shall have estimated the Estate and Effects of the Deceased to he of less value than the same shall have afterwards proved to he, and shall in consequence have paid too little Stamp Duty thereon, it shall be lawful for the said Commissioners of Stamps, on delivery to them of an affidavit or solemn affirmation of the Value of the Estate and Effects of the deceased, to cause the Probate or Letters of Administration to be duly stamped, on Payment of the full Duty which ought to have been originally paid [514] thereon in respect of such Value, and of the further Sum or Penalty payable by Law for stamping Deeds after the Execution thereof, without any Deduction or allowance of the Stamp Duty originally paid on such Probate or Letters of Administration : Pro- vided always, that if the application shall be made within Six Calendar Months after the true Value of the Estate and Effects shall be ascertained, and it shall be discovered that too little Duty was at first paid on the Probate or Letters of Administration; and if it shall appear by affidavit or solemn affirmation, to the satisfac- tion of the said Commissioners, that such Duty was paid in con- sequence of any mistake or misapprehension, or of its not being known at the time that some particular part of the Estate and Effects belonged to the deceased, and without any intention of Fraud, or to delay the Payment of the full and proper Duty, then it shall be lawful for the said Commissioners to remit the before- mentioned penalty, and to cause the Probate or Letters of Admi- nistration to be duly stamped, on payment only of the sum which shall be wanting to make up the Duty which ought to have been at first paid thereon. Sect. 42. That in cases of letters of Administration on which too little Stamp Duty shall have been paid at first, the said Com- missioners of Stamps shall not cause the same to be duly stamped in the manner aforesaid, until the Administrator shall have given such security to the Ecclesiastical Court or Ordinary by whom the Letters of Administration shall have been granted, as ought by law to have been given on the granting thereof, in case the full value of the Estate and Effects of the Deceased had been then ascer- tained, and also that the said Commissioners of Stamps shall yearly, or oftener, transmit an account of the Probates and letters of Administration, upon which the Stamps shall have been recti- fied in pursuance of this Act, to the several Ecclesiastical Courts APPENDIX* 511 by which the same shall have been granted, together with the va- lue of the Estate and Effects of the Deceased, upon which such rectification shall have proceeded. [515] Sect. 43. That where too little duty shall have been paid on any Probate or Letters of Administration, in consequence of any mistake or misapprehension, or of its not being known at the time that some particular part of the Estate and Effects belonged to the Deceased, if any Executor or Administrator acting under such Probate or Letters of Administration shall not, within six Calendar months after the passing of this Act, or after the disco- very of the mistake or misapprehension, or of any Estate or Effects not known at the time to have belonged to the Deceased, apply to the said Commissioners of Stamps, and pay what shall be wanting to make up the Duty which ought to have been paid at first on such Probate or Letters of Administration, he or she shali forfeit the sum of one hundred pounds, and also a further sum, at and after the rate of ten pounds per centum on the amount of the sum wanting to make up the proper duty. Sect. 44. That from and after the Expiration of Three Calendar months from the passing of this Act, it shall not be lawful for any- Ecclesiastical Court or Person to call in and revoke, or to accept the surrender of any Probate or Letters of Administration, on the ground only of too high or too low a Stamp Duty haying been paid thereon, as heretofore hath been practised ; and if any Ecclesiasti- cal Court or Person shall so do, the Commissioners of Stamps shall not make any allowance whatever for the Stamp Duty on the Probate or Letters of Administration which shall be so annulled. Sect. 45. As it has happened in the case of Letters of Adminis- tration on which the proper Stamp Duty bath not been paid at first, that certain debts, chattels real or other Effects, due or belong- ing to the Deceased, have been found to be of such great value, that the Administrator hath not been possessed of money suffi-, cicnt either of his own or of the Deceased to pay the requisite, Stamp Duty, in order to render such Letters of Administration, available for the recovery thereof by law: And whereas the like [516] may occur again, and it may also happen that Executors or Persons entitled to take out Letters of Administration may, before obtaining Probate of the Will or Letters of Administration of the Estate and Effects of the Deceased, find some considerable part or parts of the Estate and Effects of the Deceased so circumstanced 45 516 APPENDIX. as not to be immediately got possession of, and may not have mo- ney sufficient either of their own or of the deceased to pay the stamp duty on the probate or letters of administration which it shall be necessary to obtain ; it is enacted, That from and after the passing of this act, it shall be lawful for the said Commission- ers of stamps, on satisfactory proof of the facts by affidavit or so- lemn affirmation, in any such case as aforesaid which may appear to them to require relief, to cause the probate or letters of admini- stration to be duly stamped, for denoting the duty payable, or which ought originally to have been paid thereon, and to give credit for the duty, either upon payment of the before-mentioned penalty, or without, in cases of probates or letters of administra- tion already obtained, and upon which too little duty shall have been paid, and either with or without allowance of the stamp duty already paid thereon, as the case may require, under the provi- sions of this act ; provided in all such cases of credit that security be first given by the executors or administrators, together with two or more sufficient sureties to be approved of by the said Commissioners, by a bond to His Majesty, his heirs or successors, in double the amount of the duty, for the due and full payment of the sum for which credit shall be given, within six calendar months, or any less period, and of the interest for the same, at the rate of ten pounds fier centum per annu?n, from the expiration of such period until payment thereof, in case of any default of pay- ment at the time appointed ; and such probate or letters of admi- nistration being duly stamped in the maimer aforesaid, shall be as valid and available as if the proper duty had been at first paid thereon, and the same had been stamped accordingly. Sect. 46. Provided, That if at the expiration of the time to be allowed for the payment of the duty on such probate or letters of [5 17] administration, it shall appear to the satisfaction of the said Commissioners, that the executor or administrator to whom such credit shall be given as aforesaid, shall not .have recovered effects of the deceased to an amount sufficient for the payment of the duty, it shall be lawful for the said commissioners to give such further time for the payment thereof, and upon such terms and conditions as they shall think expedient. Sect. 47. Provided also, That the probate or letters of adminis- tration so to be stamped on credit as aforesaid, shall be deposited with the said Commissioners of stamps, and shall not be delivered up to the executor or administrator until payment of the duty, to- APPENDIX. 517 gether \yith such interest as aforesaid, if any shall become due ; but the same shall nevertheless be produced in evidence by some officer of the Commissioners of stamps, at .the expense of the exe- cutor or administrator, as occasion shall require. Sect. 48. That the duty for which credit shall be given as afore- said, shall be a debt to His Majesty, his heirs or successors, from the personal estate of the deceased, and shall be paid in preference to, and before any other debt whatsoever due from the same estate ; and if any executor or administrator of the estate of the deceased shall pay any other debt in preference thereto, he or she shall not only be charged with and be liable to pay the duty out of his or her own estate, but shall also forfeit the sum of five hundred pounds. Sect. 49. That if before payment of the duty for which credit shall be given in any such case as aforesaid, it shall become neces- sary to take out letters of administration de bonis non of the de- ceased, it shall also be lawful for the said commissioners to cause such letters of administration de bonis non, to be duly stamped with the particular stamp provided to be used on letters of admi- nistration of that kind, for denoting the payment of the duty in re- spect of the effects of the deceased, on some prior probate or letters of administration of the same effects, in such and the same manner [518] as if the duty had been actually paid, upon having letters of administration de bonis non deposited with the said Commission- ers, and upon having such further security for the payment of the duty, as they shall think expedient; and such letters of administra- tion shall be as valid and available as if the duty for which credit shall be given had been paid. Sect. 50. In regard to probate of wills and letters of admini- stration, That where any part of the personal estate which the de- ceased was possessed of or entitled to, shall be alleged to have been trust property, if the person or persons who shall be required to make any affidavit or affirmation relating thereto, conformably to the provisions of the said act of the forty-eighth year of His Ma- jesty's reign, shall reside out of England, such affidavit or affirma- tion shall and may be made before any person duly commissioned to take affidavits by the Court of Sessions or Court of Exchequer in Scotland, or before one of His Majesty's Justices of the peace in Scotland, or before a Master in Chancery Ordinary or Extraordina- ry in Ireland, or before any Judge or civil magistrate of any other country or place where the party or parties shall happen to reside; 518 APPENDIX. and every such affidavit or affirmation shall be as effectual as if the same had been made before a Master in Chancery in England, pursuant to the directions of the said last-mentioned act. Sect. 51. Provided, That where it shall be proved by oath or proper vouchers to the satisfaction of the said Commissioners of stamps, that an executor or administrator hath paid debts due and owing from the deceased, and payable by law out of his or her personal or moveable estate, to such an amount as being deducted from the amount or value of the estate and effects of the deceas- ed, for or in respect of which a probate or letters of administra- tion, or a compensation of a testament, testamentary or dative, shall have been granted after the thirty-first day of August one thousand eight hundred and fifteen, or which shall be included in any inventory exhibited and recorded in a Commissary Court in Scotland as the law requires, after that day, shall reduce the same to a sum which, if it had been the whole gross amount or value [519] of such estate and effects, would have occasioned a less stamp duty to be paid on such probate or letters of administra- tion, or confirmation or inventory, than shall have been actually paid thereon under and by virtue of this act, it shall be lawful for the said Commissioners to return the difference, provided the same 'shall be claimed within three years after the date of such probate or letters of administration or confirmation, or the recording of such confirmation as aforesaid ; but where, by reason of any pro- ceeding at law or in equity, the debts due from the deceased shall not have been ascertained and paid, or the effects of the deceased shall not have been recovered and made available, and in conse- quence thereof the executor or administrator shall be prevented from claiming such return of duty as aforesaid, within the said term of three years, it shall be lawful for the Commissioners of the trea- sury to allow such further time for making the claim, as may ap- pear to them to be reasonable under the circumstances of the case. By Sect. 8. It is enacted, that the powers and provisions of- former acts shall be put in execution, with regard to the duties under this act. It is therefore necessary to recur to the Statutes 36 Geo. 3., 45 Geo. 3. and 48 Geo. 3. By the stat. 36 Geo. 3. c. 52. sect. 3. It is enacted, That the duties thereby imposed shall be under the management of the Com- missioners of stamps, who are to prepare proper stamps, denoting each rate, and to do all acts for carrying that act into execution. APPKNDIX. 519 Sect. 5. And that all persons may be able to take receipts for legacies, and residue, or shares of residue, according to that Act, the Commissioners are to provide paper adapted for such re- ceipts, and to print thereon the form of words in the schedule an- nexed to that Act, and any person requiring them may fill them up with sums, names, and dates according to the aforesaid provisions, or use the like form on any other paper, vellum, or parchment. [520~] Sect. 6. That in all cases wherein it isftot thereby other- wise provided, the duties shall be paid by an executor or admi- nistrator, on retaining for himself or for any other person, or on delivering or satisfying to any other person, any legacy or residue, or share of residue; and where any executor or administrator shall retain, but not have paid the duty, the duty shall be a debt to His Majesty from the executor or administrator; and where the legacy is paid, without paying or retaining the duty, the duty shall be a debt from the executor or administrator and the lega- tee, or party in distribution. Sect. 7. That any gift by will to be satisfied out of the personal estate of any person dying after that act, or out of the personal estate which such person shall have power to dispose of, shall be deemed a legacy within that act, whether given by way of annui- ty, or in any other form, and whether charged only on personal es- tate or charged also on real estate, except so far as it shall be paid out of real estate*, in a due execution of the will; and every donatio ?nortis causa shall bie deemed a legacy under that act. Sect. 8. That the value of annuities for lives, or years, or other times to be calculated, and the duties thereon, shall be charged according to table in the schedule annexed to that act, and the duty to be paid by four equal payments, viz. on completing the payment of, the respective four first years, and the value of such annuity, if determinable on any contingency besides the death of any person, to be calculated without regard to such contingency. But if such annuity determine by death before the four years pay- ment be clue, then the duty shall be payable only in proportion to so many of the payments as became due; and where the annuity shall determine on any other contingency, not only all future pay- ments of the duty shall cease, but the person who shall have pre- viously paid any such duty may obtain a return of so much as to * But now ^see stat. 15 Geo. 3. c. 28. above referred to. 021 APPENDIX. reduce it to so much as would be payable for the annuity calcula- ted according to the term for which it should have endured, and that such abatement shall be settled by the Commissioners accord- ing to the tables in the schedule. Sect. 9. That the value of annuities payable out of a legacy shall be calculated, and the duty charged thereon in the same manner as directed with regard to general annuities, and the duty on such legacy (if any duty shall be payable thereon) shall be calculated on the value of the legacy, after deducting the value of the annuity; and the duty for the atinuity shall be paid by the person entitled to the legacy, subject to the like proviso as the duty on general annuities, and shall be deducted out of the annuities for the first four years, or so long as the said annuities shall be paid. Sect. 10. That the duty on a legacy given for purchasing an an- nuity of a certain amount shall be calculated on the sum necessary to purchase such annuity according to the aforesaid tables, and shall be deducted from such sum, and paid as on pecuniary lega- cies, and the annuity to be purchased shall be reduced in propor- tion to the duty payable thereon. Sect. 1 1. That if any benefit shall be given in such terms that the amount or value can only be ascertained from time to time by the actual application of the fund ; or if the amount or value of such benefit cannot, by reason of the form or manner of the gift, be so ascertained that the duty can be charged thereon under any of the aforesaid directions, then such duty shall be charged on the sums or effects which shall be applied from time to time for such respective purposes, as separate and distinct legacies or bequests, and shall be paid out of the fund applicable for such purposes, or charged with answering the same. Sect. 12. That the duty on a legacy or residue to be enjoyed by .different persons in succession, who shall be chargeable with the duties at the same rate, shall be paid as in case of a legacy to one [522] person ; and where a legacy given so as to be enjoyed in suc- cession by different persons, some one of whom shall not*be liable to any duty, and others liable to different duties, so that one rate of duty cannot be immediately charged, all persons who shall be enti- tled for life, or for any temporary interest, shall be charged with the duty in respect of such bequest in the same manner as if the annual produce thereof had bee* given by way of annuity ; such charges shall begin when the parties begin to receive the produce. APPENDIX. 522 and shall be paid by equal yearly payments for four years, if they so long 1 receive such produce ; and all persons who shall become absolutely entitled to such legacy so to be enjoyed in succession shall, when they shall begin to receive the profit thereof, pay the duty for the same, or for such part as shall be so received, in the same manner as if it had been given immediately. Sect. 13. That the duty on a legacy or residue to be enjoyed by different persons in succession, on whom the duty is chargeable at the same rate, shall be deducted and paid by the executor or ad- ministrator, on payment of the legacy or residue to any trustee ; and where the legacy or residue shall not be paid to a trustee, the duty shall be paid out of the capital of the property so given, on receipt of any part of the produce by any of the persons so en- titled in succession, according to the amount of the capital of which such produce shall be so received ; and where the duty shall be chargeable at different rates, the executor or administrator shall be chargeable with such duties in succession in like manner as if on an immediate bequest, unless where the property shall have been vested in trustees, in which case the trustees shall be chargeable with the duties as if they were executors or administrators ; and where any partial interest shall be given, or shall arise out of any such property, so to be enjoyed in succession, and such partial in- terest shall be satisfied by any person enjoying the property, such person shall be charged with the duties payable for such partial [523] interest, and shall pay and retain the same as if he were, ex- ecutor, and shall be debtor to the King for it as if executor. Sect. 14. That no duty shall be paid on plate, furniture, or other things not yielding any income, and given to persons in succession, lill the same shall be actually sold, or shall come to some person having power to sell the same, or having an absolute interest there- in, and shall be then charged on that person only, and not on the executor by reason of his having assented to such bequest. Sect. 15. That where different persons shall be entitled in suc- cession to a legacy, the duty shall be charged thereon as given to be enjoyed in succession, whether the parties entitled thereto shall lake the same under a will or under an intestacy. Sect. 16. That where a legacy shall be given in joint-tenancy to persons, some or one of whom shall be chargeable with the duty, and any others not chargeable, the person or persons chargeable 523 APPENDIX. shall afterwards, by survivorship or severance, become entitled to a larger interest, he shall pay the duty on such increased inte- rest. Sect. 17. That where a legacy shall be given subject to a con- tingency on which the same may go to another person, such be- quest, unless chargeable as an annuity, shall be charged with duty as an absolute bequest, and such duty shall be paid out of the ca- pital of such legacy, notwithstanding the same may, on such con- tingency, go to a person not chargeable with the same duty, or with any duty. And if the legacy on such contingency go to a person chargeable with a higher rate of duty than the duty so paid, the person becoming entitled shall pay the difference. Sect. 18. That where a legacy shall be subjected to a power of appointment in favour of particular persons, such property shall be charged with duty as property given in succession, and all parties [524] shall be charged in respect. of their several interests, whether previous, or subject to, or under, or in default of such appointment. And where any property shall be given for a limited interest, and an absolute power of appointment shall also be given to any person, who would not be entitled in default of appointment, such proper- ty, on the execution of such power, shall be charged with the same duty as if the same property had been immediately given to the person executing the power, after allowing any duty before paid in respect thereof. And where property shall be given with a general power of appointment, which property, in default of appointment, would belong to the party having the power; the duty shall be paid by that person as if it had been an absolute legacy. Sect. 19. That money or personal estate directed to be laid out in the purchase of real estate, shall pay duty as personal estate, un- less the same shall be given to be enjoyed in succession, and then each person entitled thereto in succession shall pay duty for the- same, as if there had been no direction for such purchase of real estate, unless the same were applied in such purchase before such duty accrued; but if before the same shall be so applied in the pur- chase of real estate, any person shall become absolutely entitled to the inheritance thereof in possession, the same duty shall be paid thereon as would have been payable on general personal estate. Sect. 20. That estates pur auter vie applicable by law as per- sonal estate, shall be charged with the duties as personal estate. APPENDIX. 524 Sect. 21. That money given by will to pay the legacy duty shall not be charged with the duty. Sect. 22. That where specific legacies, and the residue of per- sonal estate consists of property not reduced into money, the ex- ecutor or administrator may set a value thereon, and offer the duty thereon at the Stamp Office, or may require the commissioners to appoint an appraiser at the expence of the executor or adminis- trator, and the commissioners may accept the duty so offered. But [525] if the commissioners shall not be satisfied with such offer, they may appoint a person to appraise, and may assess the duty on such appraisement, and demand such duty. But the parties may cause that appraisement to be reviewed by the commissioners of the land tax for the district where the effects shall be, at their next meeting, if fourteen days shall have intervened, and if not, then at their then next meeting, giving six days notice to the commissioners of stamps ; and the commissioners of the land tax may appoint an appraiser and hear such appeal, and their determination shall be final ; and if the -valuation of the commissioners of stamps shall not be appealed from within the time aforesaid, or shall be affirmed, the duty shall be paid accordingly; arid if it shall be varied on the appeal, the duty shall be paid according to the variation ; and if the duty assessed as aforesaid shall exceed the duty first offered, the expence of the appraisement, and other proceedings in assessing such duty, shall be paid by the executor or administrator ; and if any dispute arise between any person entitled to any such legacy or residue, and the executor or ad- ministrator, with respect to the value thereof, or the amount of the duty payable thereon, the duty shall be assessed by the com- missioners of the stamps, or the commissioners of land tax on appeal as before ; and where the effects are ten miles from Lon- don, a person deputed by the commissioners of stamps shall act for them, but under their controul. Sect. 23. That where any legacy shall be satisfied otherwise than by payment of money, or application of specific effects for that purpose, or shall be compounded for less than the amount, the duty shall be paid only on such amount, provided that if any be- quest be made in satisfaction of any other legacy or bequest unpaid, the duty shall not be paid on both subjects, although both may be chargeable with duty, but shall be paid on the subject yielding the largest duty. 46 520 APPENDIX. Sect. 24. That where an executor or administrator shall offer to pay or deliver a legacy or residue on payment of the duty, and it shall be refused, and a release or discharge shall he" refused, then, although no actual tender be made, if a suit shall be afterwards instituted, the court may order all costs to be paid by the person who so refused, and also order such person to give a discharge, and may deduct such costs with the duty out of the legacy or effects ; and in case of a suit for a legacy or residue, the court may in a summary way order the payment of the legacy or residue, and the duty and costs. Sect. 25. That if any suit shall be instituted concerning the ad- ministration of the personal estate of any testator or intestate, in which any direction shall be given for payment of any legacies or residue, the court shall in such direction provide for the pay- ment of the aforesaid duties; and in all accounts of personal estate, the court shall take care that no allowance be made for any legacy or residue without proof of payment of the duties payable thereon. Sect. 26. That no executor or administrator may pay or deliver a legacy, or any part of a legacy, or make distribution of any part of the personal estate, on payment of the "proportion of the duties in respect of such parts of the personal estate as shall be so administered. Sect. 27. That no executor or administrator, or trustee, shall pay, deliver, or satisfy, or compound for any legacy or residue of personal estate, or any part thereof thereby subjected to a duty, without taking a receipt or discharge in writing, expressing the date of such receipt and name of the testator or intestate, and the name of the legatee or party in distribution, and of the person to whom the receipt is given, and the amount of the legacy or residue, or part thereof, and of the duty payable thereon, and no written receipt shall be received in evidence, unless stamped as required by that act, and no evidence shall be given of payment [527] of any such legacy or residue, or part of residue, with- out producing such receipt stamped, unless payment of the duty shall be first proved ; provided that a copy of the entry in the commissioners' books shall be evidence of such payment : pro- vided also, that payment of any annuity, or legacy charged as an annuity, shall not be deemed a payment for which such stamped receipt shall be required, except that which shall complete the payment for the first four years. APPENDIX. 527 Sect. 28. That any executor, or administrator, or trustee, or other person liable to pay the aforesaid duty, who shall pay, or satisfy, or compound for any legacy or residue, without taking such receipt as aforesaid, and causing it to be stamped within the time allowed by that act, shall forfeit ten per cent, on the money or value for which such receipt ought to have been given ; and • every person receiving such legacy or residue, without signing such receipt, expressing the duty to have been allowed or paid, and dated on the day of signing, shall forfeit ten per cent, on the money or value of the property so received or taken. Sect. 29. That every such receipt shall be brought within twenty-one days from the date to the stamp office or other ap- pointed office, to be stamped, paying the duty for it, and on such payment the proper officer shall write thereon an acknowledgment of the duty paid in words in length, and bearing date on the day of payment, and sign it, and enter an account in a proper book, and then the receipt shall be stamped with the proper one of the four stamps; and if the duty shall be paid at any inferior office, the receipt, with the acknowledgment of the duty paid, shall within twenty-one days be sent to the head office, and be there stamped ; and the inferior officer shall sign an acknowledg- ment that such receipt was left with him for such purpose, and such acknowledgment shall be returned to him on his re-delivering the legacy receipt stamped ; but if any such legacy receipt shall not be brought to any such office within twenty-one clays, it may be brought in like manner within three calendar months after the [528] date thereof, paying the duty, and ten per cent, on that duty as a penalty, and the receipt may be then stamped. But the commissioners shall not, on any pretence, except as after men- tioned, stamp any receipt unless the duty shall be paid, and the receipt produced to be stamped in manner and within the times respectively limited as aforesaid. Sect. 30. That if it shall appear to'the satisfaction of the com- missioners, on oath or affirmation, before a Justice of peace, or Master or Masters extraordinary in Chancery, that less duty has been paid for any legacy or residue than ought to have been paid by mistake, without. intent to defraud, and if application be made to the commissioners to rectify such mistake before any suit, and within three calendar months after payment of what was really paid, the commibsioncrs may accept the difference with ten per .528 APPENDIX. cent, thereon, as a penalty in full of the duty and all penalties, and may cause an acknowledgment to be written after the pay- ment of the just duty on the receipt, and cause the receipt to be properly stamped. Sect. 31. That the party paying or receiving any legacy or re- sidue contrary to the provisions of that act, who shall, within twelve calendar months after the offence committed, discover the other party or parties offending, so that he or they may be thereof convicted, they shall be discharged from all penalties incurred under that act. Sect. 32. That where by reason of the infancy, or absence be- yond sea, of a legatee, or party in distribution, the executor or administrator cannot pay any legacy or residue, though he may have assets, he may pay such legacy or residue, or any part thereof, deducting the duty, into the Bank, with the privity of the accountant general of the Court of Chancery, to the account of the person entitled, and such payment shall be a sufficient discharge provided the duty be paid, and the accountant general shall lay it out, without any formal request, in the purchase of three per cent, consolidated annuities, which, with the dividends thereon, shall be transferred to the party entitled, by application to the Court [529] of Chancery on motion or by petition in a summary way, provided that if the money afterwards appear to have been impro- perly paid in, the Court may on petition in a summary way dispose of it as justice shall require; and if it shall appear that too much duty has been paid, the excess shall be returned by the commis- sioners of stamps ; and if it shall appear that the duty paid was too little, the party who paid the money into the Bank may pay the deficiency, with the penalties, if any, and may apply to the Court of Chancery in a summary way for repayment of the further money so paid to the commissioners for duty out of the money in the Bank. Sect. 33. That if at the end of two years after the death of the testator or intestate, it shall appear to the commissioners, that it will require time to collect the debts or effects, or that from cir- cumstances it will be difficult to ascertain and adjust the amount of the residue, and the parties interested shall desire to compound the duty, the parties, with consent of the commissioners, may apply to the Court of Exchequer in England or Scotland, if the deceased resided there, and in manner prescribed in the clause, obtain leave for such purpose. mtenijix. 52 ( J Seel. 34. That if any lime after paying the duty on a legacy, or a residue, it shall be necessary for any legatee or party enti- tled, to refund all or any part of what he received, the commis- sioners may on due proof made on oath of the amount of such sum refunded, repay the money over-received for the duty. * Sect. 35. That where an executor or administrator shall be entitled to any legacy or residue, lie shall be chargeable with the duty when he shall be entitled in a course of administration to retain it, and he shall, before retaining, transmit to the comrais- [530] sioners of stamps a note of the particulars intended to be retained, and the amount and value thereof, and the duty he offers thereon, and the commissioners shall charge the properduty thereon and it shall be paid ; and on such payment the proper officer shall at the foot of a duplicate of the assessment duly stamped give a re- ceipt for the said duty, which receipt shall be a discharge for the duty ; and if such executor or administrator shall neglect to pay such duty within fourteen days after it ought to have been paid, lie shall forfeit and pay treble the value of the duty. Sect. 37. That if probate, or grant of administration shall be repealed after the executor or administrator shall have paid any of the said duties out of the effects of the deceased which shall not be allowed to him because improperly paid, the commissioners shall repay the duties so paid. But if the duty ought to have been paid by the rightful executor or administrator, then the payment shall be valid, and allowed by him in account, and shall be deemed made as in a due course of administration. Sect. 38. That persons swearing or affirming falsely touching the said duties, shall be subject to the penalties of perjury. Sect. 39. That persons altering any assessment or receipt after the same shall have been signed by the proper officer; or when altered, utter or publish the same as true, with intent to defraud His Majesty, shall forfeit five hundred pounds. Sect. 49. That persons counterfeiting the said stamps shall suffer death as in case of felony without benefit of clergy. * Upon this section it has been decided that the legacy *duty is to be paid upon the aggregate amount of the residue of the testator's property, at the time of the executor's delivering into the stamp office the note of what he • intends to retain as residuary legatee. And that interest accumulated upon the residue constitutes part thereof, and is liable to the duty. Attorney, General v. Lord G. II. Cavendish, 1 WigUtwick, 82. 530 APPENDIX. Sect. 4 3. That one moiety of all penalties and forfeitures thereby imposed, where no other mode of prosecution is thereby prescribed, shall, if sued for within three calendar months next after they were incurred, be to the King, and the other moiety, with the full costs of suit, to the informer or person suing for them within the time aforesaid ; and they may be sued for in the Court of Exchequer in England for offences in England, and in ' [531] Scotland for offences there. But proceedings may be stopped, if it appear that the penalties were incurred without intention of fraud. Sect. 44. That in default of prosecution for such penalties within the time aforesaid they shall be recoverable only for the crown, by information in the Court of Exchequer in England and Scotland respectively. Sect. 47. That all actions or suits, which shall be commenced against any person for anything done in pursuance of that act, shall be commenced within six calendar months after the fact committed, and not afterwards. By the stat. 45 Geo. 3. c. 28. sec. 2. it is enacted, That the duties granted by this act shall not extend to, or be charged or payable in respect of any legacies satisfied out of any real or personal estate, or in respect of any residue or share of any per- sonal estate, or of any moneys, or residues, or parts or shares of moneys arising from the sale of any real estate of any person dying before' the passing of this act. Sect. 3. That nothing herein contained shall extend to charge with any of the duties hereby granted any legacy or residue, or part or share of residue, which shall be given or pass to or for the benefit of the husband, or wife of the deceased ; or to or for the benefit of any of the royal family. Sect. 4. That every gift by any will or testamentary instru- ment of any person dying after the passing of this act, which by virtue of any such will or testamentary instrument shall have effect, or be satisfied out of the personal estate of such person so dying, or out of any personal estate which such person shall have power to dispose of as he or she shall think fit, or which shall have been charged upon or made payable out of any real estate, or be directed to be satisfied out of any moneys to arise by the sale of. any real estate of the person so dying, or which such person may have the power to dispose of, whether the same shall be given by APPENDIX. 532 way of annuity, or in any other form, shall be deemed and taken [532] to be a legacy within the true intent and meaning of this Act: Provided always, that nothing herein contained shall be con- strued to extend to the charging with the duties by this Act granted, any specific sum of money, or any share or proportion thereof, charged by any marriage settlement or deed upon any real estate,, in any case in which any such specific sum, or share or proportion thereof," shall be appointed or apportioned by any "will or testamentary instrument under ajiy power given for that purpose by any such marriage settlement or deed. Sect. 5. That the duties hereby granted upon legacies, or charged upon, or made payable out of any real estate, or out of any mo- neys to arise "by the sale of any real estate, or upon residues, or parts or shares of residues of any such moneys, shall be accounted for, answered^ and paid by the trustees, to whom the real estate shall be devised, out of which the legacy, or any money arising, out of the sale or mortgage, or other disposition of such real es- tate shall be to be paid or satisfied ; or if tfcere shall be no trus- tees, then by the person entitled to such real estate, subject to any such legacy, or by the person empowered or required to pay or satisfy any such legacy ; and the said duties shall be retained by the person paying or satisfying any such legacy, or share of mo- ney, in like manner, and according to such rules and regulations, and under and subject to such penalties, as far as the same can be made applicable, as are contained in Stat. 36 Geo. 3. c. 52. By Stat. 42 Geo. 3. c. 99. Sect. 2. it is enacted, That in every case in which an executor or executors, or administrator or ad- ministrators, shall not have paid the duties granted and payable upon or in respect of any legacies or any personal estate, or any share or shares of any personal estate, of any persons dying in- testate, by and in pursuance of an Act passed in the thirty-sixth year of the reign of His present Majesty, or any other Act or Acts of Parliament relating to duties on legacies or shares of per- sonal estates, within proper and reasonable time,it shall be lawful [533] for His Majesty's Court of Exchequer, upon application to be made for that purpose on behalf of the commissioners appointed for managing the' duties on stamped vellum, parchment, or paper, on such affidavit or affidavits as to the said Court may appear to be sufficient, to grant a rule, requiring such executor or execu- tors, administrator or administrators, to shew cause why he, she 533 APPENDIX. or they should not deliver to the said commissioners an account, upon oath, of all the legacies, or of the personal property, re- spectively paid, or to he paid, or administered hy him, her or them, as the case may he, and why the duties on any such lega- cies, or any shares or residue of any such personal estate, have not been paid, or should not be forthwith paid according to law, and to make any such rule of court absolute in every case in.which the same may appear to the said court to be proper and necessary for the better enforcing the payment of any of the said duties. By the Statute 48 Geo. 3. c. 149. sect. 35. it is enacted, That from and after the passing of this Act, the probate of the will of any person deceased, or the letters of administration of the ef- fects of any person deceased, heretofore granted, or to be here- after granted, either before or upon or after the tenth day of Oc- tober, one thousand eight hundred and eight, shall be deemed and taken to be valid, and available by the executors or administra- tors of the deceased, for recovering, transferring or assigning any debt or debts, or othef personal estate or effects, whereof or where- to the deceased was possessed or entitled, either wholly or par- tially, as a trustee, notwithstanding the amount of value of such debt or debts, or other personal estate or effects, or the amount or value of so much thereof, or such interest therein, as was trust pvoperty in the deceased (as the case may be), shall not be in- cluded in the amount or value of the estate, in respect of which the -stamp duty was paid on such probate or letters of adminis- tration. By Sect. 36, That where the executors or administrators of any [534] person deceased shall be desirous of transferring or of re- ceiving the dividends of any share, standing in the name of the de- ceased, of and in any of the Government or Parliamentary stocks or funds transferable at the Bank of England, or of and in the stock and funds of the Governor and Company of the Bank of England, 'or of and in the stock and funds of any other company, corporation, or society whatsoever, passing by transfer in the books of such company, corporation or society, under and by virtue of any such probate or letters of administration as aforesaid, and shall allege that the deceased was possessed thereof or entitled thereto, either wholly or partially, as a trustee, it shall be lawful for the said Governor and Company of the Bank of England, and for any such other company, corporation or society as aforesaid, or their APPENDIX. 534 respective officers, for their indemnity and protection, to require such affidavit or affirmation of the fact, as hereinafter is mentioned, if ihe fact shall not otherwise satisfactorily appear ; and thereupon to permit such executors or administrators to transfer the stock or fund in question, or receive the dividends thereof, without regard to the amount of the stamp duty on the probate of the will of the deceased, or the letters of administration of his or her effects; and where the executors or administrators of any person deceased shall have occasion to recover any debt or debts, or other personal effects, due or apparently belonging to the deceased, and shall al- lege that the deceased was possessed thereof or entitled thereto, cither wholly or partially, as a trustee, it shall be lawful for the person or persons liable to pay or deliyer such debt or debts or other effects, to require such affidavit or affirmation of the fact as hereinafter is mentioned, if the fact shall not otherwise satisfac- torily appear ; and thereupon to pay, deliver, or make over the debt or debts, or other effects in question-, to such executors or admi- nistrators, or as they shall direct, without regard to the amount of the stamp duty on the probate of the will of the deceased, or the [5 35] letters of administration of his or her effects : And where the executors or administrators of any person deceased shall have oc- casion to assign or transfer any debt or debts due to the deceased, or any chattels real, or other personal effects, whereof or whereto the deceased was possessed or entitled, and shall allege that the same respectively was or were due to or vested in the deceased, cither wholly or partially, as a trustee, it shall be lawful for the person or persons, to whom or for whose use such debt or debts, chattels real, or other personal effects, shall be proposed to be as- signed or transferred, to require such affidavit or affirmation of the fact as hereinafter is mentioned, if the fact shall not otherwise satisfactorily appear ; and thereupon to accept- the proposed as- signment or transfer, without regard to the amount of the stamp duty on the probate of the will of the deceased or the letters of ad- ministration of his or her effects. Sect. "7. That upon any such requisition as aforesaid the exe- cutor or executors, administrator or administrators of the de- ceased, or some other person or persons to whom the facts shall be known, shall make a special affidavit or affirmation of the facts and circumstances of the case, stating the property in question, 47 535 APPENDIX. and that the deceased had not any beneficial interest whatever in the same, or no other beneficial interest therein than shall be par- ticularly mentioned and set forth (as the case may be) in trust for some other person or persons, whose name or names, or other sufficient description, shall be specified in such affidavit or affir- mation, or for such purposes as shall be specified therein ; and that the beneficial interest of the deceased, if any, in the property in question, doth not exceed a certain value to be therein also speci- fied, according to the best estimate that can be made thereof, if reversionary or contingent, and that the amount or value of the estate, for which the stamp duty was paid on the probate of the will of the deceased, or on the letters of administration of his or her effects, is sufficient to include and cover such beneficial inte- [536] rest of the deceased, as well as the rest of the personal estate, m hereof or whereto the deceased was beneficially possessed or en- titled, and for which such probate or letters of administration shall nave been granted, as far as the same have come to the knowledge of such executor er executors, administrator or administrators ; and where the affidavit or affirmation of the facts and circum- stances of the trusts shall be made by any other person than the executor or Executors, administrator or administrators of the de- ceased, such executor or executors, administrator or administra- tors, shall make affidavit or affirmation, that the same are true to the best of his, her, or their knowledge, and that the properly in question is intended to be applied and disposed of accordingly ; ■which affidavits or affirmations shall be sworn or made before a Master in Chancery, ordinary or extraordinary, (who is hereby authorized to take the same, and administer the proper oath or affirmation for that purpose,) and shall be delivered to the party or parties requiring the same, and shall be sufficient to indemnify and protect the party or parties acting upon the faith thereof; and if any person or persons making any such affidavit or affirmation as aforesaid, shall knowingly and wilfully make false oath or affirma- tion, of or concerning any of the matters to be therein specified and set forth, every person so offending, and being thereof lawfully convicted, shall be subject and liable to such pains and penalties as by any law now in force persons convicted of wilful and cor- rupt perjury are subject and liable to. 13y Sect. 43. Commissioners are authorized to remit penalties incurred before passing this act, by non-payment of the duty an APPENDIX. 536 legacies, if the duty in arrear shall be paid on or before 31st Ja- nuary 1809. Sect. 44. That in all cases not provided for by the preceding clause, where any receipt or discharge given for any legacy, or for the residue or any share of the residue of any personal estate, which shall have been given by will or other testamentary instru- ment, or have devolved to any person or persons upon intestacy, [537] shall be brought to the head office, to be stamped after the expiration of three calendar months from the date thereof, it shall be lawful for the said commissioners to cause the same to be duly stamped, for making the same available, on payment of the duty which shall be payable in. respect thereof, together with the pe- nalty incurred in consequence of the same not having been brought to be stamped before the expiration of such three calendar months; and where any such receipt or discharge shall have been signed out of Great Britain, if the same shall be brought to be stamped within twenty-one days after its being received in Great Britain, it shall be lawful for the said commissioners to remit any penalty that may have been incurred thereon, and to cause the same to be duly stamped, on payment of the duty payable in re- spect thereof; any thing contained in any former act or acts to the contrary notwithstanding. 1 N 1) E X — •»►«©!»«— Page ABATEMENTr-of legacies .339, et seg. Absence — beyond sea ... 93. 104 Account — action of, by executor - - - 433 stated - - - - - - 162 promise to executor thereupon — how it operates ib, bill in equity against executor or administrator, for, of assets ..... 72,479 how it shall be taken in equity between surviving partner, and the representatives of the deceased 454 executor not admitting assets bound to, in equity, though his co-executor admit them - • - 486 .on a bill to, by infant legatee against two executors, one of whom in his answer denied proving the will, or receiving any assets, account directed against both - - - - - 486 administrators bound to, as executors - 82. 96, 97 — in the spiritual court, at the suit of legatees, or parties in distribution - • - 491. 49*4 proof of, by executor - - - - 492 how controverted - - ib. executor subject to the penalties of per- jury if false .... ib. proof of, after the executor's death - - ib. exhibited by the administrator, when it must be sworn to, when it need not - 493 not conclusive against legatees, or par- ties in distribution, who are absent 49 ; 540 INDEX. Account, proof of — continued. Page citation by executor or administrator of legatees, or parties in distribution, on passing his - - - 494 at the promotion of a creditor - 495 creditor not permitted to call for vouchers, object to the account - - - - ib. Action — See Remedies Ademption — of a legacy - - 329, et seq. pro tanto - 333 revocation of a will in the nature of - 21 Administration — Origin of 80, et teg. of husband's right to 83, 84. 125. 242, 243. 373 how controuled or varied - 85, 86. 218 where the grant to the husband is necessary 217 where not - - - - - ib. cgeteroriim .... 68. 86 grant of, to widow or next of kin - 86 of part to widow and part to next of kin - 87 order in which kindred are entitled to - 90 half-blood equally admissible to - - 91 when committed to feme covert, and how ib. how granted if wife be next of kin and a minor • - - - - 92 teases on her coming of age - - ib. Avho incapable of taking - - - 93 person incapable of being an executor - ib. attainted of treason - - ib. of felony - - - ib. outlaw - - . - - ib. prisoner - - - - ib. persons beyond sea - . - ib. bankrupt - - - ib. uon compos mentis - - 103. 122 feme covert competent to take - - 94 alien friend competent to take - - ib. though only of the half-blood - ib. analogy of, to probate ... ib. privilege of granting personal - - ib. INDEX. 541 Administration — continued. Page a party generally incapable of acting before grant of - - - - 9 5 may file a bill in chancery before - ib,. not commence an action at law before - »'*« penalty for acting and omitting to take out for six months - - - -96 when letters of, issue - - - il) . oath in taking out - - - - Hb. bond and condition thereof, 91. 97. 247, 248. 370. 493 ■when once granted not to be committed to another during the life of grantee - 98 special - - - - - ib. cum tcstamento annexo 4S, 44. 65.92.98. 118. 321. 372 not granted till executor renounces or fails to appear - - - - 93 or if several executors, till they all renounce, or fail to appear - 7 "' grant of such to residuary legatee or lega- tees, - - 99,117 durante minoritatc, 34. \00, et scq. 123, 124. 357 in a restrictive form - 4 ° 4 effect thereof - - - 405 when it shall not be granted - - 102 after such grant of, when receiver appointed 102, 103 when it ceases, ... 100, 101 if granted during the minority of several infants - - - - - 101 old distinction between such grant during the minority of infant executor, and dur- ing that of next of kin - - 100 ordinary's power at common law ex- tended only to the former case - 124 pendente lite . . ■ • . 10o not granted till a plea has been given in and admitted . • • , ib. 342 INDEX. Administration — -continued, Pa°-e receiver not appointed after such grant 103 during incapacity . . . ib. durante absentia , . 70. 104 by virtue of the statute . 104, 105 when it ceases . . . 104 to a creditor .. 104.122.473 where several creditors apply . 106 to a debtor . . .128. 349 to a legatee . . . . . 105 to such person as the ordinary shall approve 16. ordinary's power of granting administration at common law, in what cases . . ib. may in such cases impose terms on grantee . . .100 limited in regard to time . . ib. to property . . ib. not to be twice granted in respect to one thing ib. in case of several grants of, grantees liable to be sued as one person, . 106, 107 on condition . ... 107 to appointee of the crown of the effects of a bastard . . 107. 3S6, 387 to attorney . . . .108 grant of, in a foreign court . . ib. of the effects of seamen and marines . 109 on death of administrator or executor intestate 1 14 grant of, to several, survives . 114.407 immediate . . •• .115 on death of executor before probate ib. of next of kin before grant of administration . 116 in case of death of husband before he takes out administration to wife . . 116.224 on death of executor residuary lega- tee before probate intestate 117, 118 on leaving a will . . . 1 IS de bonis won . . 116.124.349 on death of executor after probate intestate . . .lit; INDEX. 543 Administration — immediate on — continued. Page on death of feme covert executrix. 1 18. 242 and residuary legatee - - IIS on the death of the acting .executor, and renunciation of the survivor - ib. or such survivor's dying intes- tate - - - 118, 119 or in case of administration du- ring the minority of the exe- cutor of an executor - -119 as well de bonis 7ion, as immediate, may be granted to residuary legatee - - 117 how granted - - - - 1 19 generally by writing under seal - ib. may be by mere entry in the regis- try of the spiritual court - ib. not by parol ... ib. in the grant the style of jurisdiction, as well as name of the ordinary, to be inserted - - - 120 a party may refuse accepting - - ib. when void .... 46. 120 when voidable - - - - 121 of repealing the grant of - - - 122 in what cases - -44. 122. 125 in what not - '123, 124, 125, 126 temporal courts, to judge of the cause of - 123 of repealing for want of form - - 125 effect of - - - ib. or quia iinjiro'vide - - ib. or on account of abuse -' 125, 126 effect of a second grant of, before repeal of first - - - - - 126 of prohibition when ordinary is proceeding to repeal . in what cases - - - 127 in what not - - . - - ib. how repeal of, affects mesne acts when the grant was void - - - 127,128 4S 544 INDEX. Administration — immediate on — continued. Page or voidable ... 129, 297 voidable in case of a suit by citation or appeal - - 129, 130, 131 payment of debt to an administrator un- der grant of, void or voidable, good - 130 effect of grant of, to executor deson tort 367 though only pendente lite - 368 special, ceasing, effect of pending an ac- tion. against the administrator - 407 after judgment obtained against such administrator - - ib. bond creditor, as well as next of kin, en- titled to an assignment of the admini- stration bond from the ordinary 495, 496 what breach he may shew - 496 what not - - - ib. Administrator — derives his authority from the ordinary 95. 100, 101. 114. 131 interest of when it vests ... of special ... of a married woman of joint - - - - survives - - 114. oide bonis non - powers of office of, how far the same as that of an executor - 369 bound to account as an executor 82. 96, 97 actions by - - - 157.431 suits in equity by 454 actions against - 458. 474 suits in equity against ... 479 in the ecclesiastical court against - 489 powers of limited - 404 • actions by - 349. 405. 447, 448 actions against - - - 474 1 33. 241 - 1 33 - 241 - ib. - 243 243. 408 - 243 369, 447 INDEX. • 545 Administrator — powers of — actions against — continued. Page where pending the action, the administration de- termines - - 407 after judgment - - ib. powers of durante minoritate as distinguished from executor durante minoritate - - 406 where he administers in part, and delivers to the executor on his coming of age all the residue - - - - 475 of his keeping the goods after executor comes of age 103. 474, 475 actions by - - - - - 445 actions against ■>•».-- 474 powers of durante absentia - - - 40 6 . of fiendcnte lite «... ib. ' of joint - - 114. 407, 408 not distinguishable from those of co-executors - - 407, 408 actions by ... 448 actions against - - . - 471 death of - - - 114 de bonis non - .117. 349. 448 actions by - - 448 actions against ... 474 Advancement— of a child - 329. 371. 376, et seq. 381 pro tanto .... 377: 379 what shall not be - - 380,381.396 by the custom of London - - 393, et seq. must arise exclusively from the personal estate - - -' - 396 not restricted to a provision made on mar- riage, or in pursuance of a marriage agreement .... 397 by the custom of York ... 400 may arise out of real estate - - 401 See Distribution. Advowson — in gross or in fee ... 189,190 term for years in - - 139.15 1.161.437 . after an avoidance - - 151,189,190.216 546 INDEX. Ad.yowson — continued. Page purchase for son of, an advancement 376, 377 descended to the heir in fee-simple, real assets 409 Affidavit — of executor on holding to bail . . . 438 Affinity . . . . . . .386 Agent — where executor embezzles the property . .' 427 Alien — will. of . . . .. . .13 executor or administrator . . . 34.94 when incapable of being . . . . ib. property of, in our funds .... 387 Allowance — executor shall has - e no, for executing the office 456 unless directed by the will . ib. whether a legacy be left to him as a recompence or not . . . ib. but in what special cases entitled to a commission . 457 Amercements — in the king's courts of record in the king's courts baron Annexation of codicil to a will Annuity — a chattel interest generally descendable to the heir when not personal charged on lands . : out of a parsonage grant by the crown of, out of the four and half per cent. Barbadoes duty, with collateral security . 200 to commence after father's death an advancement 377 remedy in equity to secure the payment of . 482 Annum , die m , et vastum . . . . 144. 190 Anvils . . . . . . .197 Appeal — in regard to probate . . . .73 to administration . . . .95 probate suspended by . . 73. 129 administration suspended by . . .131 where probate is affirmed on . .75 revoked on . . 75.78. 131 administration revoked on . - 129 Appointment — of wife in the nature of a will . . 85 . 260 . ib. . 31 178, 200 178. 200. 203 .178 . 303 . 305 . 55 INDEX. 547 Appointment — continued. Page of the crown of the effects of a bastard 107, 108 Apportionment of rent in favour of executors of tenant for life .... 208. 43(5 Appraisement — of deceased's effects . . .250,251 commission of . . 73.252,253 Apprentice — executor has no interest in an . . 152 how far executor bound to maintain . 476 distinction between covenant to maintain, and covenant to instruct an . . ib. justices of the peace have no authority to or- der an executor to maintain an . . ib. by the custom of London executor bound to put the, to another master of the same trade ib. Apprentice fee — no advancement . . . 380 no advancement by the custom of London 396 Apprentice parish regulations — executor bound to observe in regard to . . . 476 Arbitration — submission to by executor . . 425 Arrest — by an executor before probate . . 48 • executor in general not liable to . . 467 in what cases he is' . . ib. Artichokes . . . . . .150 Artificers, British, going abroad — when incapable of mak- ing a will . . . .13 of being executors . .36 of any legacy . . . 300 Assent . . . . . . 306. 345 Assets — '■definition of . . «. . .137 what are, term of years devised for payment of debts . 140 leases . . . . ib. though executor assent to the devise of them .... ib. estate per a utervie . . .40 . value of lease beyond the rent 141. 166. 239 reversion of a term . . .141 new lease granted to executor " . . ib. executor chargeable for a term as, where he purchases the reversion in fee . ib. 548 INDEX. Vssets — what arc — continued. Page lease surrendered by executor ~ .142 land devised to an executor for a term for pay- ment of debts, where, during the term, the fee descends on him . . " . ib. term which a feme covert has as executrix, where husband purchases the reversion, though extinct as to her yet, in respect to a stranger . . . . . ib. estate in fee in the plantations as to credi- tors . . . . 416, 417 lease granted to executor pursuant to covenant, with the testator . . . 144, 160 rent in arrear at the testator's death . 145 debt or damages recovered at law 157, 158, 159, 160, 161. 201 money recovered by decree in equity 160, 161 goods taken out of executor's possession , . 153 goods delivered to executor pursuant to con- tract with the testator . . . 160 chattels resulting to executor on non-perform- ance of the condition on which they were granted . ... .164 testator's chattels redeemed out of pawn with his money .... ib. if redeemed with executor's money, the surplus '. . . : 126 a remainder . . . .164 arising by increase . . .166 profits of lands demised . . . ib, lease granted by a copyholder for one year only 180 promissory note given to testator's wife . 228 money deposited by her to be kept for her sepa- rate use .... 229- when debt due from executor shall be 349,350 what not term raised for a particular purpose not 142, 143 lease on condition not. where condition is bro- ken before the lessee's death . .143 trust of a term not , . , Jb. INDEX. 549 Assets — what not — continued. Page bond assigned by testator not . .118 goods bailed for a particular purpose not . 151 goods distrained not . . . ib. debt or damages recovered by testator not, till levied or reduced into possession, or re- leased by executor . . 161, 162 if recovered by executor they are assets immediately . . .162 presentation where the grantee of the next pre- sentation dies after the church becomes void, and before presentation, not . . 240 money by marriage agreement articled to be invested in land and settled, not . 416 copyhold estates not, either in the hands of heir or devisee . . . 411,412 no measure of justice between the heir and executor of mortgagee . . . . 184. 186 application of ■ . . . . .258 where originally deficient, and where they afterwards become so by misapplication . . .341 when aliened by executor cannot be followed by a cre- ditor at law ...... 256 and in ecmity only on voluntary alienations by fraud ..... 257 proof of ..... 464 admission of, executor generally bound by . 482 express .... ib. implied . . . 464. 483 when not . . . ib. when the admission is waived . • . 483 where executor refers to arbitration the question whe- ther he has or has not . . . 465 judgment of, quando ac cider int . . . 400 how far affected by the assignment of commissioners of bankrupt .... 48S bill for a discovery and account of, in what cases . 480 legal and personal, or assets enter mains, what * . 409 legal and real, or assets by descent, what . 409, et scq, 550 INDIA. Assets — legal and personal — continued. Page term in gross . . 410 estate //rr auicr vie when personal ib. , real, lands descended to the heir in fee sim- ple .... 409 advowson so descended . . ib. estate per auter vie when real 410, 41 1 term vested in trustee to attend the in- heritance . .410. 427 lands devised by tenant in fee simple 41 1 unless for payment of debts . ib. or for raising portions for younger children, according to agreement before marriage . . ib. estate in fee in our American planta- tions . . . 416, 417 equitable what, and how distinguished from legal 4 12. 416 legal, trust estate descended to the heir . . 415 equity of redemption . 415$ 416; Semb. .. equitable, estates devised to an executor to sell 414. Sinib. estates descended to the heir charged with the payment of debts : . . 414 term in trust to attend the inheritance . 427 where lands shall be, only for the payment of debts .416 only for the payment of legacies . ib. the marshalling of, in favour of creditors . 417. 420 where the debt is considered as the personal debt of the testator him- self, and a collateral charge on the real estate . .418 Where the charge is on the real estate principally, and the personal se- curity is only collateral . ib, priority of the application of real, when the personal estjfce is either exempt or exhausted . . 419 when shall not be marshalled in favour of creditors 421, 422 INDEX, 551 Assets-— continued. Page the marshalling of, in favour of legatees - - 420 as against lands descended - ib. devised 420,421 if legacy be given out of real and personal estate, payable at a fu- ture day, and legatee die before 422 in favour of wife's claim to para- phernalia as against real assets descended - - - - ib, devised - - - 422,423 not in favour of a charitable be- quest ----- 423 conversion of into 3 per cents - - ■ - - 319 Assignee — in deed ... 167, 168. 199 in law • - - - 167, 168 after mesne assignments - - 169,170 Assignment — executor's interest by - - 167.170 by executor of a term in trust to attend the in- heritance - - - . 427 of debt to the king - - - -261 of legacy by commissioners of bankrupt 315.321 of administration bond by the ordinary 495, 496 Attaint — writ of - - - - - 159 Attainted person - - 34. 9". Attainder — of high treason, writ of error to reverse property accruing to the crown by Attestation— -of a will of a codicil clause of, not filled up Attorney — administration granted to letter of - executor or administrator of, need not deliver a bill of costs before suing for the same - 441 Avowry — for rent as incident to a reversion for years in arrear at the testator's death - 434, 435 accrued due after it 437 Audita querela - - 128.131,132.159.260.268 Auditors where the king is executor - - - 33 Aunt - - - - - 91. 3S5 49 103. 134.213 >e - 435 - 260 2. 16 6. 16 3 - 108 114.221 552 INDEX. Award— executor entitled to the benefit of - - 168 executor's submission to - - 425. 465 where he personally engages to perform - 465 where there is a reference of the question whether he has or has not assets ... f£. how far he is concluded by an, he has submitted to ib. may be attached for non-performance of - . - ib. money due to him by, not subject to foreign attach- ment " - ... - - 479 Bail — executor may hold to 438 executor in general not held to 467 in what cases he may be - ib. Bail-bond — action by executor of assignee of 158. 161.432.438 Bank — the registering of probate at the - 255, 256 transfer of stock at the . . . .256 of stock specifically bequeathed . . ib. subject to action on refusal to make a transfer . ib. Banknotes . . • .- - 234,235 Banker's checks' ..... 235 Bankrupt — next of kin . . 93. 103, 104 executor . . . 120.486,487,488 commissioners of, cannot seize the effects of testator . . . 134.488 devastavit' may be proved under a com- mission of . 429. 488 legatee . . . 315. 321 receiver appointed in case an executor becomes 488 executor carrying on trade pursuant to directions in the will may be a . . . 486 executor defendant at law . . . 467 and another person both claiming to be executor of a creditor of the bankrupt, order of the court thereupon . 488 an executor may prove a debt under a commission of . . . • . .452 commission of, of testator superseded . . ib. an executor of, incapable of taking out a commis- sion of bankrupt for a debt clue to the testator ib. INDEX. 553 Bankrupt — continued. Page certificate of, an executor may sign . .452 where bankrupt was petitioning credit- or's executor, chose himself assignee, and signed his own certificate 452, 453 certificate of, cannot be signed by executor as such, and also in his own right • . 453 estate of, paying ten shillings in the pound, his executor entitled to the allowance . . ib. Bargain and sale without enrolment no revocation of a will 20 Bastar.d . . . . . 107. 386, 387 Beds fastened to the ceiling .... 198 Bees . . ... 148, 149. 193 Benefice — purchase for a son of a, an advancement . 376 Birds . . . . . . .147 Bill of exchange . . . 235.285,286 interest on .... 287 indorsed to executor . . . 438 Bishop . . . . . .201 probate of the will of . . .53. 67 grant of administration of the effects of .94 Bona notabilia . . 51, el seg. 76. 94. 121, 122 peritura ... 96. 247. 404. 427 Bond . 157.216.234.252,278.281.432.437.463 voluntary ...... 283 payable in preference to legacies, . ib. on an usurious'contract ' . . . . ib. ex turfii causa ..... 283 joint and several . 283,284 joint only ...... 284 assignment of, by testator . . ". .154 bequeathed to a feme covert . . .226 delivery of, by one of two executors of obligee in satis- faction of his own debt . . . 360 . • in spiritual court by parties in distribution . 372 money due on, taken by executor not subject to foreign attachment • 478 loss of, by executor ..... 426 interest on, not recoverable beyond the penalty • 287 Book-debt . . ,- ... . ib. 554 INDEX, Book-debt — continued. Page interest on . ', '. . 287 Borough English lands not to be brought into hotchpot . 381 Brewing vessels . . . . . .198 Brother ..... 88, 89, 90. 384 of the half-blood . . , . 9 1 Caroome . . , . • . . 152 Carrier — goods delivered to . . .154 Carrots . . . . . 150. 194 Cattle . . . . . . .147 young of . . . . . .166 Caveat . . . .- 72,73.95.123.126,127 against seamen's wills . . , .61 Certiorari . . . ... .264 Chamberlain of London . . . 202.221 where executor must give security to, to account upon oath for an outstanding debt . . 254 Charity — legacy to ..... 340 Chattels — real . . . . . .139 personal . . . .146 changed into chattels real . .156 •and vice versa . . . ib. Child, posthumous .... 374. 390 Children . . . ^» . .370 legal representatives of . 371.373 children's children .... 370 Chimney-pieces . . . . 197 Chose in action . 106. 157, etseq. 216. 431, ct acq. Citation— of executor to prove the will . 43.65.93 of widow or next of kin to contest a nuncupative will 59 of next of kin to accept or refuse administration, or shew cause why it should not be granted to a creditor .... 104. 122 to produce an inventory - . . . 249 suit by . .78. 129, 130, 131 by executor or administrator of legatees, or next of kin, oh passing his accounts in the spiritual court 494 Clock cases . . » . . , • 1-98 INDEX. 555 Page Clover - - - ... 149,150 Coat armour - - - - - 199 Codicil — definition of - - - - - 6 how annexed - - - - - ib. relative to land - - - - 6, 7 to personal estate - ib. written - - - - -57 nuncupative - - ... 7 how far it operates - - ib. revocation of will by - - - 15 Co-executors— take a residue as joint-tenants - 363 power of, of selling land - - ib. whether it may or may not be exer- cised by survivor at law, it shall be enforced in equity - - ib. action by 445, 446 where an infant is co-executor - - 446 regarded as one person - - 445, 446 Co-heiresses must bring advancement out of personal estate into hotchpot ... 379 Coffin, shroud, &c. - - - - 155 Collar of SS. - 199 Collaterals — among, no representation admitted after intes- tate's brothers' and sisters' children 372. 381, 382 College — head and fellows of - - - - 201 of physicians, president of 202 Colligendum — grant of letters erf - - 43.107 effect thereof - - - 107 collecting the effects by executor - - 254 person appointed by court of equity to collect 408 receiver appointed in case of bankrupt executor 488 Commissary - - - - 44. 66. 74 Commission — to bishop or archbishop in England - 65.94 in regard to seamen's wills - - 63 in regard to administration to seamen - 1 1 1 of appraisement - - 73.252,253 of review - - - - - 74 in the army, purchase for son of, an advancement 377 Commons - - - - - - 139 2h 556 INDEX. Page Condition — interest vested in executor by . 164 Consanguinity — lineal . 87 how Calculated . 87 88. 382 collateral . ; . 88 how calculated . 89 , 90. 382 Contingent interests .... 212, 213 Contribution-money . 221 Conversion of assets into the 3 per cents. . 319 Coppers . 197, 198 Copy — of will . 71 of probate 77, 78 of ledger-book . ... . 78 Copyhold . 215 devise of ... . 32 fine for admittance to a . 436 for lives 179, 180 mortgage of . 186, 187 rents, executor cannot distrain for . 452 Copyholder, lease granted by . 180 Corn growing 150. 159. 194. 203, 204, 205,206. 218, 219 Cornage — tenure by . 191 Corodies .... . 139 Corporation — aggregate 33. 201 sole . . 33. 201,202 Costs— in what actisns executor plaintiff at law shall not pay 439 when not on a writ of error . . . ib. not generally on a discontinuance . 440, 441 nor for not proceeding to trial according to notice ib. nor on a judgment as in case of a nonsuit . 440 in what actions executor plaintiff at law shall pay 439, 440 when on a writ of error . • 440 • on a judgment of non-pros * . • ?&• when on a discontinuance : • • ib. when for not proceeding to trial according to notice ib. effect of defendant's paying money into court in an action by an executor in regard to tbe costs . ib. executor or administrator of an attorney need not de- liver a bill of, before commencing an action for . 441- the bill in that case not taxed in C. B. . ib. INDEX. 557 Costs — in what actions executor shall pay — continued. Page the hill in that case may he taxed in B. R. . 441 on ahove a sixth part of such hill being taken off, executor not liahle to the costs . ib. defendant executor when liahle to, at law . 467, 468 • when not . . . 46S when bankrupt executor, defend- ant not discharged hy his certi- ficate from . . ib. when liable to in ecpiity . 483 when not . . . ib, executor entitled to, in the spiritual court . 496 when party praying an account in that court liable to ib, Covenant . . . .278. 284, 285 executor entitled to the benefit of . .168 to perform a personal thing . 158. 432. 437 touching the realty . 158. 163. 432 to lay money out in land . 8. 181. 392 on marriage to settle land . . 418, 419 by mortgagor to pay the mortgage money . 185 where legacy shall be in satisfaction of . 338 interest on demands arising from . 286, 287 Court — baron . . ■ . . 50. 80 mayor's . . . . . 50 bishop's . . . . . 51 prerogative . ... ib. of great sessions in Scotland . . .71 spiritual in Ireland . . . ib. in the East or West Indies . . ib. of the arch-deacon. . . . 73, 74 of arches . . . 74, 75 of delegates . . . ib. of pie fioudre . ... 264 of conscience . . . 436. 466 of orphanage in the city of London . . 254 in cities or towns corporate having power by charter or prescription to hold plea of debt . . 263 temporal, to judge of the sufficiency of cause of re- pealing letters of administration . . 123 • proctor's fees to be sued for in the temporal . 497 558 INDEX. Page Cousin german . s . . 89 second . ... ib. Creditor . . 104. 1 13. 122. 129. 192. 416 several applying for administration . . 106 in respect to, several administrators regarded as one person . . . 106, 107 marshalling assets in favour of . . 417 Cucumbers . . . . 150 Cumulative legacies- . ... 334 Curtesy — tenant by the . . . 206 Custom — in regard to probate of wills . . 50 heir-looms by . . 200 for corporation sole to take goods and chattels in succession . . . 202 of London . ... 373 distribution by . 388, et seg. in regard to widow's jewels . .230 in regard to simple contract debts . 282 where a freeman dies leaving an orphan within age- and unmarried, in regard to an inventory and account . . 254 in regard to apprentices when the master dies 470 foreign attachment, executors and adminis- trators within the custom of, in what cases, in what not . . . 478 . 373 .400 . 403 . 198- of York distribution by of Wales Cyder-mill Damages . . ... 284 recovered by an executor not subject to foreign at- tachment . . 478, 479 Daughter of an aunt . . . .385 Dead man's part . . ... 389 Dean and chapter . . 67. 94. 201 Debts — executor how far liable for . . 459. 463 payment of by executor . . 47. 258 in what order' . 258. 262 INDEX. 559 Debts — payment of, by executor — continued. Page consequence of his not paying them in order - - 258 clue to the crown by record - - 259, 260 by specialty - - 259 other due to the crown - 260 assigned to the king - - 261 certain by statute ... 261,262 of record in general ... 262. 459 judgments as distinguished from statutes and re- cognizances .- . - 262. 459 judgment against executor - 265, 266, 267 writ of error by executor on judgment - 267,268 effect thereof - - - 268 decree in equity - - 269,270,271 executor protected in his obedience thereto, 270, 27 1 recognizance - 271,272.459 statute merchant - V 272,273.459 statute staple - - - 273. 459 recognizance in the nature of a statute staple 274, 275 statute and recognizance not yet due - - 275 contingent - - 276 joint and sevei •al - 277 joint only - - ib. recognizance not enrolled - - ib. statute not regularly tak'en - - ib. other inferior of record - 278. 459 by specialty ... - 278. 281 rent - ; - 278, et sea. by specialty payable at a future day - - 281 contingent •282. 321, 322 voluntary bond - - - - 283 bond on an usurious contract - 283. 426 ex turpi causa - - .283 joint and several - - ib. covenant - 284, 285 articles of agreement - ib. simple contract - 285, 286 interest of . 286 barred by stat. of limitations not revived by the will 288 50 560 INDEX, Debts — continued. Page payment out of their legal order 258. 424 creditor's gaining priority by legal process . 288 by equitable process 289, 290 executor's power of preferring one creditor of equal degree to another . . . 289, ct seq. not controlled in the exercise of it in equity . 291 his right of giving such preference not divested by a mere demand .... ib. how bound in conscience to pay, of equal de- gree . . . 291,292 may pay an inferior debt before a superior of which he has no notice, after a reasonable time 292, 293 not if he has notice . . . 293 executor paying a, out of his own purse 2G8, 239 has the same equity as a creditor against legatees • . 342 if executor compound he shall not have the benefit of . . . . . .481 appearing after the payment of legacies . 342 due to executor . . . 238, 239 may be retained by him . . . 295 in what cases . 295, et seq. on what principle . . 295- retainer for, by husband of executrix . . 359 when the deb't was due to him, or to the wife before marriage . . ib. shall not retain in prejudice of his co-executor 361 devise of lands for payment of . 411. 418 when lands shall be assets only for the pay- ment of . . . . .416 payment of, by executor without notice of the revo- cation of the will ... 78, 79 payment of, by limited administrator . . 404 retainer for, by limited administrator . .405 payment of, by administrator under a void adminis- tration . . . . .132 when a legacy is in satisfaction of a, when not 336. 338 action of, on a judgment of assets quando accidcrinl suggesting a devastavit . . . 470 INDEX. 561 Debts — continued. Page executor de son tort as against creditors may pay . 364 as against the rightful represen- tative cannot plead payment of 365 on general issue may give in evi- dence such payment in what cases . • • io. effect thereof . ib. when it is of no avail 366 in general cannot retain . ib. under the statute may ib. collectors of, where appointed by court of equity . 408 due to the testator separate . . • 248 doubtful . . • .> ib. desperate . . . ib. bona notabilia . . 54. 56 by specialty, or simple contract, how distinguished . . 55 payment of, to executor, what shall be . . 425 under a forged will 76, 77 under probate of a supposed will of a living person . 77 . to administrator, under a void adminis- tration . . ■ .130 where an executor delays the receipt of . 425, 426 executor may call in a, though bearing interest, in what case . • • • • 428 where executor compounds or releases 47. 481, 482 release of by one of several co-executors 359, 360 receipt of, by limited administrator . 404 release of, by limited administrator . 406 by one of joint administrators . . 408 executor's assent to a release by will of . . 308 due from executor when regarded us a specific bequest to him . • • • • ■ 35 ° where not . . ■ 349, 350 due from executor durante minorilate . 350, 351 from husband of executrix . • • 359 where one of several executors is indebted to testator, 562 INDEX. Debts — continued. Page and dies, the surviving executors cannot sue his re- presentatives for the . . . 348 action of by executor for arrears of rent . . 450 by tenant fiur auter vie, his executors and ad- ministrators, after the death of cestui que ■vie, for arrears incurred in his lifetime . ib. in what cases executor at common law may have an action of, for arrears of rent . 451 by an executor suggesting a devastavit in the lifetime of his testator on a judgment recovered by such testator against an exe- cutor . . . 432. 473 executor a creditor may sue his co-executors . 298 or the heir, where the hejr is bound ib. executor may prove a, under a commission of bankrupt 452 due from executor in his private character not pay- able out of the assets . . t . 134,135 due to the wife before marriage . . . 1.22 Debtor — executor's interest in the person of . .151 administration granted to . . .128 Deceit — action of, by executor . . 159.435,436 Decree — inequity .... 269,270,271 in the administration of assets ecpaivalent to a judg- ment at law « . . 270. 290 notice thereof ..... 270 merely to account . . . .271 analogous to judgment quod computet in- terlocutory judgment at law 271. 290, 291 cannot be pleaded, or given in evidence at law • . 270 ■yet executor shall be protected in his obedience thereto '" . . . 270. 29U Deeds- — writings and securities relative to personal estate 154. 254,255 relative to land 191. 192 to land sold on con- dition . ib. Deer . . . . 144, 147. 149. 192 Delegates— court of , . 74 INDEX. # 563 Page Detinue — action of, by executor .... 434 Devastavit— by acts of abuse 246. 268. 283. 307. 341. 344 of negligence . ; 426, et seq. effect of . 463, 469 what shall not amount to 267, 268, 269. 428, 429 by one of several co-executors . 430. 472 by husband where executrix marries after testa- tor's death . . 358, 359. 430. 471 by executrix before marriage . 359.430 by executrix's marrying testator's debtor 359 executor of executor answerable for, by the latter 430. 473 executor de son tort chargeable for . . 474 executor of executor de son tort chargeable for the, of the latter . . . • ib. executor de son tort of executor de son tort not for "• ■ the, of the latter .... ib. administrator durante minoritate liable for, to the executor on his coming of age . . 475 not after that period to a creditor . ib. executor may be held to bail in case of . . 467 may be proved under commission of bankrupt ex- ecutor . . . . . 429 return of, by the sheriff * . - 467 Devise — of lands to be sold . . . .412 by a person not executor . ib> by executor in conjunction with other persons . . ib. by an executor for payment of debts and legacies • . .413 Devisee — where lands are devised by tenant in fee-simple .411 of estate per auter vie . . .. . ib. of copyhold ... . . 411,412 of land, what chattels go to . . . 203 entitled to emblements . . . . . ib. of personal estate entitled to emblements in prefer- ence to, of land . 204 specialty creditor may resort against heir, and with- out suing executor of the debtor . • 411 564 a INDEX, Page Disseisor — of tenant for life .... 206 Distress — goods taken by . . . .154 executor's right of, in what cases . 450, et seq. of executor of executor . 452 for rent against executor of tenant for life, or for years . . 476 Distribution — of deceased's effects in pious uses . 81. 107 spiritual court formerly attempted to enforce 369 . under the statute .... ib. purview thereof . . . 370 provisions of the same . 370, 373* when to be made . . 372 where intestate lcftwife and children, or representatives of children 373, 374 where intestate left one child 374 where some of the intestate's child- ren, are living, and some dead, each of whom has left children 375 advancement within the statute 376 of bringing into hotchpot . ib- what shall not be such advancement 380 borough english lands descended not . . .381 where widow and no children, nor le- gal representatives of children 381, 382 where children, and no widow . 382 where neither widow nor children ib. among next of kin . ib. where any of the children die in- testate without wife or issue, leaving a father . , ib. where any of the children die in- testate without wife or children, leaving a mother . . ib, where a child dies intestate and without issue, leaving a wife, brothers, and sisters, or child- ren of a deceased brother or sister, and a mother . 383 where a child dies intestate and INDEX. 565 Distribution — under the statute — continued. Page among next of kin— continued. without issue, leaving neither brother nor sister, nor children of a brother or sister, but leaving a mother . . . 383 how far representation among col- laterals is admitted 382, 383 where there are grandfather and brother . . . 284 where there are grandfather and uncle . . . ib, where there are grandfather by the father's side and grandmother by the mother's . .385 where there are uncles and ne- phews, aunts and nieces ib, where grand -daughter of a sister, and daughter of an aunt ib, distributive share vested on the death of the intestate . 386 statute in the nature of a legislative will .... ib. affinity, except in the case of wife, no title to a ib, of the effects of a bastard intestate, without wife or child . . 386, 387 according to the law of the country where in- testate was resident . . • 387 may be enforced in equity . ; 480 in the spiritual court 489. 495 by the custom of London . . 388 where widow and children . 389, 390 where only widow or only children 389, 390, 391 where neither widow, nor child, nor repre- sentative of a child . 389,391 of dead man's part . . .389 posthumous child entitled to . 390 grand-children not . . 390, 39 1 custom attaches, though freeman neither resided, nor died, nor left effects within the city . . . 391,402 • 566 INDEX. Distribution — by tbc custom of London — continued. Page children entitled to, though born out of the city . * - . . 394 widow's chamber . . 389,391 when barred of her customary share 392 where the orphanage share vests, when not 393 when it survives . . . ib. when not .... ib. orphanage part where there is only one child . . . . . ib. advancement by the custom . .394 bringing the same into hotchpot . ib. in what cases, and how brought in 395 where advaucement exceeds the share by the custom . . . . ib. nature of such advancement, complete, or partial . . • 396 must arise from personal estate ouly • . . ib. evidence of the same . . 397 different cases of advancement 398 nature of the interest in an orphanage part 399 how claim to the same may be waived 399, 400 release thereof by husband of freeman's daughter an infant, on his covenaut to release . . . 399 effect thereof . 399, 400 mortgage of an inheritance to a citizen de- visable according to the custom . 187 by the custom of York . * . 400 widow's chambers and ornaments 400, 401 when child's filial portion is vested .401 advancement by the custom . . ib. may arise out of the real estate . ib. heir at common law inheriting land in fee or in tail can claim no filial portion . ib. where intestate leaves a widow and three sons .... 403 such custom does not attach where intestate not resident in the province at his death 402 INDEX. 567 Distribution — by the custom of York— -vontinued. Page in respect of such custom, immaterial where his estate is situated . .402 where custom of London shall controul that of ..... ib, customs of London and York in the main agree 402, 403 by the custom of Wales . . '.403 Distringas— nu/ier vice comitem sued out by administrator de bonis non .... 449 Divorce for adultery a mensd et thoro, how it operates in re- gard to the custom of London . 393 Dogs . . . . . . -148 Domicil of intestate Donatio mortis causa, definition of what shall constitute what not incapable of being bills of exchange . 235 promissory notes . ib. checks on bankers . ib. simple contract debts 236 arrears of rent . ib. query whether money due on mortgage can be the subject of . ib. not proved with the will . ib. executor's assent to unnecessary . ib. not good against creditors . . 237 Doors Dower, tenant in executor of Duty on legacies .387 . 233 233. 237 235, 236 . 197 . 217 205. 207 . 329 Ecclesiastical court — remedies against executor and admi- nistrator in . . 489, et seq. what evidence shall be admitted in . 494 in what cases it has concurrent jurisdic- tion with the court of chancery . 489 in what not . . • 590 cannot compel debtor of intestate to pay his debt into court . . 49 1 51 568 INDEX. Ecclesiastical court — continued. Page bond taken for a legacy cannot be en- forced in . . .491 proctor's fees cannot be sued for in 497 Education — money expended for a child's, no advancement 380. 496 Ejectment, action of — by executor . . 158. 234 for an ouster of the testator, though seised in fee . . . 434 by husband for his wife's term .215 Election — when executor may claim by, when not 174, 175 how a specific chattel may become an executor's own by ..... 238 Elegit — estate by . 139.212 will lie against an executor on a devastavit returned 470 Emblements— 149, 150. 194. 203, 204,205. 208. 218, 219 advantage of, extended to the parochial clergy 208 Entry — power of, descends to the heir . .180 Equity — remedies for executors and administrators in 454 etseq. •against executors and administrators in 479, etseq. 489, 490 executor cannot plead decree in, yet is protected in his obedience thereto . . 270,271.290 will not interpose in favour of one creditor, where executor has confessed judgment to another 291 in what case will not compel a creditor, suing both at law and in equity, to make his election 29 1 executor may retain for his debt both at law and in 29S will not suffer him to pervert such privilege to the purposes of fraud ... . ib, where a creditor has more than one fund to resort to, and another only one, what will require . 420 will not compel the executor to plead the statute of limitations at law in favour of the residuary legatee 345 executor paying a debt out of his own purse has the same, as a creditor against legatees . . 342 ' executor trustee for a legatee in, and in certain cases for the next of kin 351. 355.361.363. 479, 480. 490, 491 administrator a trustee in, for the parties in distri- bution ... • 480 INDEX. ' ' Equity — continued. ' a &' c surviving partner in trade trustee in, foi the repre- sentatives of the deceased . . 454,45 5 legacy payable at a future time, or annuity, may be secured in . • • • 4S ~ will secure the assets in case the executor becomes bankrupt . 488 where executor's power of dividing a legacy is con- trolled in . . • • 3 *9 where not . • • 320 will compel a legatee to refund . . 322 creditors and legatees entitled to what, where mort- gage has been paid out of the personal estate 285 will compel surviving or mediate executor to exe- cute a power of selling land . • 363, 364 where the interest of husband and wife arc treated as distinct in . . . . 225,226 where wife is entitled to gifts to her separate use in 225,226,227 where not . 228 where wife entitled to gifts from husband in 227 where not . . • . 227, 228 where husband shall be trustee for wife in 226 where wife mortgagee in fee is a trustee in 223 will not decree payment of wife's legacy to husband without a settlement . . • 32 1 or unless wife consent in court . ib. w hen wife's next of kin trustees for husband's repre- sentatives in . . • • 116.2 17 when husband's representatives entitled to wife's choses in action in ... 222 how far to wife's fortune in chancery . 223 money covenanted to be laid out in land, has in, all the qualities of land . . 392 release of orphanage part for valuable consideration binding in .... 399, 400 of redemption .... 184.218^ foreclosure of . . 18 5. 187 release of . 185 1 redemption of mortgage in fee ■ 415 570 INDEX. Equity- — continued. Page whether legal or equitable assets . 415 cf redemption of a mortgage for a term of years 415,416 whether legal or equitable assets . ib. Error, writ of — by executor . . 267, 268. 435 query whether it lies to reverse testator's attainder of high treason . 435 costs on . . . 439, 440 Escape, action for — by executor 159. 161. 435. 437, 438 • against sheriff's executor . 459 Estovers . . . . . 139 Estray ...... 210.221 produce of sale of, within the king's manors or li- berties .... 260 Evidence — in regard to a legacy . . 315 in regard to cumulative legacies 334, 335, 336 parol, in regard to residue undisposed of 355 of advancement by the custom of London 397 Excommunication . . . . 41. 65 Excommunicated persons . . 12. 33. 103 Execution — where land and damages, or a deed relative to land and damages, are recovered . 20 1 where on a judgment recovered by two execu- tors, they pray different writs of . 447 after executor is come of age, on a judgment ob- tained by administrator durante minoritate 447,448 if executor or administrator die after suing out, but before the return of it, administrator de bonis non may perfect the same 448, 449 where defendant dies before judgment is signed 266. 470 how tested . . . 266 on a statute .... 277 taken out on a statute, a judgment remaining unsatisfied . . . 268 wife's term may be taken in, for husband's debt 213 not after his death in case the wife survive 215 testator's effects cannot be taken in, for execu- tor's debt . . . 134, 135 INDEX. 571 Execution — continued. Paee unless he convert them to his own use . 135 or consented to the seizure . . ib. Executor — definition of . . .33 derives his authority from the will 33.46. 75.95. 101 who may be . . .33 the king . . ib, corporation aggregate . ib. sole . . ib. infant . . .34 where one executor is an infant and his co-executor not . 102 child or children in ventre sa mere . 34 I feme covert with husband's consent . ib. although she be an infant . ib. alien friend . . ib. outlaw . . ib. person attainted . . ib. villain . .35 party insolvent . 35. 341 what Roman catholics . 35 who not . . , ib, party excommunicated till absolution . ib. what papists . . ib. denier for the second time of the Holy Trinity . . 36 of the Scriptures . . ib. persons not having cpualified for offices 36, 37 alien enemy . . .36 British artificers going out of the realm to exercise or teach their trades abroad, or so trading, who shall not return within six months after warning . . ib. persons under mental disability . 37 idiocy . . . ib. insanity . . ib. age . . . ib. disease . . . ib. intemperance . , ib. 572 INDEX. Executor — who not — continued. Page persons having been born blind and deaf - 37 appointment of - - - ib. express - - 32 implied - - ib. absolute - - ib. qualified 38. 100. 350, 351 of joint executors - 39 considered as one person 39. 243. 359 office of not assignable - 43 may be refused, and how 43, 44. 93. 348 refusal of, by a bishop - 44 refusal of, in person - - ib. oath thereupon - - ib. refusal of, by proxy - ib. must be entire 44. 143. 279 effect of - - 44. 348 when refusal may be retracted, when not 44. 93 acceptance of the office of - 44 effect thereof - - ib. what acts are an acceptance 44, 45 What not - - - 46 administering an act in pais 1 15, 116 refusal of the office by several co-executors 46. 93 by some and not by others - 46 effect thereof 46. 69. 351. 446 by surviving executor 46. 69. 93. 1 1 8. 1 20 death of, intestate 1 14, 1 15. 135 executor of - - - 1 18 refusal by - - 46 minority of - - 1 19 executor of deceased co-executor - 118 executor of surviving co-executor - 69 surviving co-executor dying intestate 69. 118, 119 not ascertained - - - 120 concealed - ib. abroad - - = ib. index, 573 Executor — continued. Pae;e of a person domiciled in a foreign country - 457 factor of goods appointed by principal - ib, becoming bankrupt - . , 120.134 being attainted - „ - 134 interest of, in the property - 133, et seq. 48 8 his constructive possession thereof 152, 153 of executrix not transferred by her mar- riage - - - 13G order in which the different species of such property are treated - 137.138 interest of, in chattels real - - 139 what so denominated - 139,^*^, when they relate to incorporeal here- ditaments . 145) 146 entry of, on corporeal hereditaments necessary - 145 possession of, of incorporeal hereditaments con- structive . . 145,146 in chattels personal - - 146 animate - . 147 vegetable - -149 corn and other emble- ments 149, 150. 194. 204. 208 trees - .195 inanimate 150, 151. 198. 200. 211 in property in the public funds - -151 in the avoidance of a church - • - ib. in the person of a debtor - ib, in a prisoner - - ib, in a negro servant - ib. in an apprentice - 152 in literary property - ib, in a patent for an inven- tion - - ib. in a share under the sta tute of distributions - 386 574 INDEX. Executor — possession of, in chattels — continued. Page in a caroome - 152 allowance to bankrupt survives to his - 43 when the interest in the property is vested in 1 52. 386 when not - - 154 interest of, in deeds and writings relative to per- sonal estate ... ?£. when in writings relative to land - 192 interest of, in the coffin, &x. - - 155 in chattels personal changed in his hands into chattels real and vice versa - 156 of executor of deceased tenant in com- mon - - - 155 of deceased partner in trade or husbandry - 155 interest of, in choses in action where the cause of action accrued before the testator's death 157, etseq. in equitable claims subsisting before - 160 in choses in action, when the cause of action accrued after in equitable claims arising after by condition in things in pledge by remainder or increase «■ in a trade by assignment by limitations of chattels real of legacies of interest arising land as portions by election right of, to rent in what cases to arrears of a 720 mine ji cense to bond for owelty of partition to money covenanted or agreed to be laid out in land - - ib. to mortgages - 140, etseq. to tithes set out in testator's lifetime - 183 - ib. - 161 - 164 164 .257 - 165 - 166 166. , 167. 487 - 167 - 170 171, 172 g out of 172, 173 - 174 - 179 - 178 180, 181 INDEX. 575 Executor — continued. Page how effects he takes as such may become his own 238 when he gains a settlement . . .146 interest of married woman executrix . 241, et seq. of joint executors .... 243 in case of death vests . in survivor . . ib. of limited executors . . . 354 of executor of . . 69. 243 of executor of surviving co-executor . . 69 the burial of the deceased by ... . 245 the making of an inventory by 247 may sell perishable articles before njaking an inventory . . . . . ib. the collecting of the effects by . 164. 254, ct seq. powers of, for that purpose . 46. 254, 255 the registering of probate at the bank by, and transfer of stock . . . 255, 256 sale of the effects by 256, 257 mortgage of term of years by 256 assignment of mortgaged terms by . . ib.' of term in trust to attend the inherit- ance by . . . 427 recovering the property by, by action or suit . ib. redeeming pledges by . . 164, 165. 257 carrying on trade by . 166. 480. 486, 487, 488 disposal of testator's stock in trade by . . 487 where he shall present to a church . .190 payment of debts by . . 258, et seq. may retain his own debt . . . 295 compounding debts due from the testator . 481 paying such debt out of his own purse 342. 449 where he so pays an inferior debt before a superi- or debt ..... 429 where he delays payment of a debt due from testator . . . . .426 not bound to plead the statute of limitations . 343 compounding or releasing debts due to the testator .481,482 52 570 INDEX. Executor — continued. Page how far liable where he gives a receipt for part of a debt .... 428, 429 where he compounds an action of trover for testator's goods by tak- ing a bond payable at a future day 429 where he takes a bond in his own name for a debt due to the testa- tor . . . .425 release of a chose in action by . 424, 425 where he delays bringing an action so as not to save the statute of limitations . 426, 427 executor and trustee, former distinction between, when devisees of land to sell . 412, 413 naked power of, to sell land, effect thereof 412, 413, 414 has a discretion of acting for the benefit of the es- tate . . . 428, 429 may call in a debt though bearing interest, in what case . . . . 428 submission to arbitration by . . 425 cannot bequeath the assets . . .135 cannot waive a term for years . .143 unless where there are not assets to pay the rent . . . 143, 144 what he is to do where there are assets to pay rent, but not for the whole term . . 1 44 where he loses the effects . . . 426 where he sells goods at an undervalue . . 427 where he suffers money to lie dead in his hands ib. where he delays disposing of goods, by which they are injured . . . . ib. responsible only for the damages he recovers for goods taken out of his possession - . 428 not answerable for a loss by the fall of stocks . ib. nor for money lent on a real security not suspici- ous at the time . . . ib. shall have no allowance for executing the office, unless directed by the will . . 456 INDEX. 577 Executor — continued. Page whether a legacy be left him as a rccompencc or not .... 456 in what special cases entitled to a commission . 457 effect of grant by, of all his property . .134 to what actions liable . . 458, et secj. not liable to actions for a tort . 460, 461, 462 nor where defendant could have waged his law . . • -461 when personally liable on his promise 463, 464 what acts shall constitute an, a trader, what not 486, 487,488 . xecutor debtor . . 347 one of several executors debtor . . 348 when he shall be trustee to the amount of the debt for the residuary legatee or next of kin 350 executor legatee . . 344. 350. 352 his assent to his own legacy . 345 express . ib. implied . 345, 346 where not implied . 346 till he has made his election shall take his legacy as executor . . . ib. must act, or shew his intention to do so, to entitle himself to a legacy for his trouble 347 cannot give himself a preference in regard to a legacy . . . ib. reversioner in fee, of a tenant fur years . 134 interest of, of tenant in common . .155 infant, incompetent to act . 34. 101. 356.445 formerly might have acted in many re- spects at the age of seventeen . 34. 356 not liable to be sued . . - 47 1 executor durante minoritate . 36, 37, 38 executor durante minoritate debtor . 350, 35 1 icts of, durante minoritate . . 357, 358 distinguished from an ad- ministrator durante mi- nor Hale . .406 xe'eutor durante minoritate, action by 14.5 578 INDEX. Executor — continued. Page executor coming of age after the filing of a bill by administrator durante minoritate . . 458 executor durante absentia . 38 acts of a married woman executrix . . 358 how restrained where the husband is abroad . ib. in case she survive, not liable to an action sug- gesting a devastavit by the husband • 471 acts of co-executors, 359, 360. 430. 447. 457. 472. 483, 484, 485, 486 not distinguishable from those of joint ad- ministrators .... 408 must be all sued in case they have all ad- ministered . . .471 where one shall not be affected by notice to the other . . . ib. limited executor liable to be sued . . ib. power of a surviving co-executor . . 363 of a mediate executor . 364. 430. 447. 452 chargeable in what case for the act of his testator . 430. 473 when residue undisposed of shall go to, when not 351, et seq. 361 when to co-executors, when not . 361, et seq. when husband and wife ex- ecutors shall be excluded from the residue . 359. 362 executor de so?i tort . . .39 what acts make one . 38, 39. 107 what not . 41. 103. 245 by statute . . 40 when a party is disseisor or trespasser, and not such executor . . .42 who is such, a question of law . . ib. has no interest in the property . . 243 administration granted to, effect of 244. 367, 368 shall not entitle him to an action of tro- ver for goods pre- viously disposed of INDEX. 579 Executor — administration granted to, effect of— continued. Page to defendant for payment of the funeral . 36S administration granted pendente lite to . ib. acts of . • 364, et sec/. as against creditors may pay debts . 364 as against the rightful representative can- not plead payment of debts . 365 on general issue may give in evidence such payments in what cases . . ib. effect thereof . . ib. when they are of no avail . 366 in general cannot retain . 366, 367 may under the statute . .366 no action lies by . 366. 447 remedies against . . 473,474.496 cannot after action brought against him by a creditor avail himself of a delivery of the ef- fects to the rightful administrator . 367 nor of administrator's assent to the retainer of his debt . . • ib. if he deliver the effects to the administrator be- fore such action brought, he may give it in evidence under file?ie adviinistravit . ib. executor of • 473 executor de son tort of . • 474 Executorship, division of . • 38. 68 Exemplification of probate . • .77 Factor of goods appointed executor by principal . 457 Fairs . . • - L 139 Father . . ■ .87 relations by his side . .91 Felo de se . . • .12 Felon . . 12. 34.93. 144 Feme covert— promissory note given to . • 228 where, deposits money to her separate use 228, 229 will of . , 10,11 executrix . . 34. 358 where she is an infant . 34 580 INDEX. Feme covert — executrix — continued. Page intestate - - 118 and residuary legatee - ib. death of, after judgment recovered by husband and her, and before execu- tion - - - 136 where goods of the testator in the hands of, may be taken in execution for the husband's debt - ib. cannot administer without the husband's per- mission - - - ib. how administration is granted to, when husband is abroad, or incompetent - - 9 1 administration granted to, survives not to hus- band - - - 92 administration granted to, and husband jointly during coverture effect of administratrix, term vested in, not extendible for husband's debt mortgagee in fee for a term of years legatee of executor of devisee of Ferrets ' -• Filial portion by the custom of York Fines imposed by the judges at Westminster at the assizes by justices at quarter sessions by commissioners of sewers bankrupts by stewards of lects due to the crown for copyhold estates action for by lord's executor assessed on copyholder for admittance - 437 Fire engine - 199.211 Fish - - - . - 1 11. 1 18. 193 Flax - - 150 Foreclosure, decree of in. i - - 189 - ib. - ib. idible for - 136 222, 223 - ib. 320, 321. 490 68 . 86 - 85 - 148 - 401 - 278 278. 459 278. 459 278. 459 - ib. - ib. . 260 INDEX. 581 Page Foreign attachment, executors and administrators within the custom of - - 478 in what cases it operates - ib. in what not - - 478, 479 Foreign court, grant of administration in - - 108 Fraud — administration granted by - - 121 administration subsequent granted by 126. 128 Fraudulent gift of the assets by executor - - 154 Fruit - - - 149. 193. 195 Funds public, legacy given out of - 325; 333 Funeral - - - 41. 47. 245 expences of - - 246, 247. 424 allowed in preference to debts - 245 to what extent - - 246 payment of, under a void administration - 132 Furnace - - - 197.199 Gaoler, action by, against executor of prisoner for provisions found for testator ... 4co Garments - - - - 150 Gavelkind lands devisable by felon - 12 Gentleman pensioner's place — purchase for son of. an ad- vancement - 377 Goods household - - - 150.224 delivery of, by key - - - 234 Granary built on pillars in Hampshire - - 200 Grandfather - - 87.90,91.384 ex parte patcrnd - - - 385 ex parte matcrnd ... $. Grandmother - - - • - ib. Gi eat grandfather - - 87,88 Grandchild - - - 87. 375. 390 Great grandchild - - - 87, 88. 375 Grandson of a brother - - - 384 Grand-daughter of a sister ... 385 Grant by one executor of his interest to his co-executor - 360 Grass - - - 149.160.193.195.436 Grates - - - - - 198 Guardian— to an infant - - 100,101,102 582 INDEX. Guardian — continued. Page to a minor - 100 to several infants - - - 101 or trustee shall not change the nature of the estate - - 182, 183 may by decree in equity - - 183 Half-blood - - - 91. 94 brother or sister of the - - 374 Hares - - - 147. 192 Hawks - - - 147. 149 Hedges - - - 145.193.206 Heir - - - - - 140 chattels real which go to, and on what principle - 176 entitled to what rent - - 176, 177 to a nomine p<£ nse - - 178 power of entry descends to - - 180 entitled to money covenanted to be laid out in land - 181 unless testator intended to give it the quality of personal estate ... ib. evidence of such intention - - ib. entitled to mortgages, in what cases - - 183 of mortgagee in fee, when he shall have the benefit of a foreclosure - - - 185 when he shall present to a church - - 189 entitled to charters and deeds, court rolls, Sec. - 191 to the chests in which they are deposited" - ib. to an antique horn - - ib. to deeds though no land descended 191, 192 where land has been sold by fraud, the money refunded after the death of vendee shall go to his - 188 chattels personal which go to - - 192 animate - - - ib. vegetable ... 193 trees, Sec. - ■, - I93,etseg. inanimate - - 196, etseq. entitled to damages for breach of covenant affecting the realty, if it occurred after the testator's death - 163 executor's right to enter the house of, to remove goods 225 may distrain goods not removed by executor - 255 INDEX. 583 Heir — continued. Page may, if bound, be sued by a creditor executor - 298 specialty creditor may resort against and devisee with- out suing the executor of debtor - -411 at law, share of, in distribution 371. 376. 379. 401 at law must bring into hotchpot advancement out of the personal estate * - - 379 though in the nature of a purchaser under a mar- riage settlement - ib. co-heiresses must bring ki such advancement - ib. lands descended to, in fee-simple ... 409 with power to executor to sell - 414 advowson descended to 409 where descent to, is broken - - - 414 estate descended to, charged with the payment of debts .... 414,415 trust estate descended to - - - - 415 at law excluded by his inheritance of land in fee or in tail from a filial portion under the custom of York - 401 of copyholder - - - 411,412 in borough English - - - - 38 P of lunatic • - - - - - - 19 1 Heir-looms .... 196,197.211 chattels in the nature of ... 200 by special custom .... 2 '#. Hemp - - • - - - 150, 194 Hereditaments — corporeal - - - 145 • incorporeal ... 140, 145 Herons - - - - - - 147 Hops - - - - 150. 194, 195 Hospital, master of. - - - 201,202 Hotchpot - - - 376. 378. 395. 398 advancement shall be brought into, by child only among the other children, and not for the benefit of the widow .... - 378 advancement of child shall be brought into, by his representative - - 378, 379 advancement out of the personal estate shall be brought into by the heir at law - - 379 53 584 INDEX. Hotchpot — continued. Page though in the nature of a purchaser under a marriage settlement . . . 379 advancement pro tanto shall be brought into . ib. advancement shall be brought into by co-heiresses . ib. Husband — and wife, relation of . • . 213 and wife, interest of, in the chattels real of the wife 213, 216 alienation of wife's chattels real by, direct or conse- quential . • . . 213, 214, 2! 5 may generally assign her possible and contingent in- terests . . . . 213,214 where not . . . . . .214 lease by, of wife's term to'commence after his death 215 cannot charge such chattel real beyond the cover- ture . . . ' . ib. disposition by, of part of the wife's term . 215, 21 6 wile's term extended on the death of . .216 having been mortgaged by husband and wife, and the mortgage paid off on the death of . . . . ib. and wife joint-tenants . . .219 and wife joint-tenants of a rent-charge during their lives . . . . .216 entitled to an advowson in right of wife 216, 218 to the trust term of the wife . . .218 what chattels real go to surviving . 216, et seg. arrears of rent due to wife go to surviving . 224 chattels personal of wife in possession belong to . ib. given to the wife after marriage, though not come to his pos- session, go to . . 225 though wife live apart from . . ib. where property given to the wife does not go to 225, 226 power of, with regard to wife's paraphernalia . 231 power of, of an executrix to act 31, 32. 241. 358 power of, of an administratrix to act . . 92 INDEX. 585 Husband — continued. Page a receiver may be appointed where, of an executrix is abroad ..... 358 action by, of executrix . . . .445 in an action against wife executrix, must be joined . 471 on marriage of executrix and devastavit by, both answerable . . • 358, 359 devastavit by. executrix and subsequent marriage, hus- band as well as wife chargeable . .351) where, and wife executors shall be excluded from the residue . ... . . ib. interest of representative of surviving . . 217 grant of administration to . . 83, 84. 224 right of, thereto at common law 83, 84 how it may be controlled . 85 consent of, to probate of wife's will . . 68 Wife — what chattels real go to surviving 214, 215, 216 what chattels personal 219, 22*0, 221. 399, 400 choscs in action of . _ . . 220, 224 which vested in, before marriage . 220 after marriage . ib. where husband«sues for choses in action of, and dies before execution . . . 220, 221 where husband dies before he . has proceeded to re- duce choses in action of, into possession . 221 where husband dies before receiving a debt due to, under a commission of bankrupt . . ib. where husband dies before seizing an eslray in fran- chise of . . . . . ib. where husband grants a letter of attorney to receive a legacy due to . . . 221, 222 choses in action of, where a settlement before mar- riage has been made in consideration of the wile's fortune . . . . . .222 of part of her fortune . . ib. where the settlement is silent in respect to personal estate . . . . . tb, decree in equity in favour of the husband and wife in right of . . . . 2 23 586 INDEX. Wife — continued. Page where husband's representative entitled in equity to the choses in action of surviving . 222, 223 where fortune of, is in the court of. chancery on the husband's death ... . . 223 where on her death . . . . ib. where there is issue of the marriage . 223, 224 property to the separate use of . . 225,226, 227 to what arrears thereof, entitled to, at her husband's death . . .228 right of, to paraphernalia . 229. 422, 423 how excluded from paraphernalia . ... 232 necessary apparel of surviving, protected . ib. husband cannot make a grant to, or covenant with her, but may give her property by will . . 300 executrix or administratrix in the lifetime of husband 241. 358 next of kitflj a minor . . . .92 may elect her husband her guar- dian to take administration for her . . ib. where, is executrix, and husband is abroad . 358 on his death her interest as executrix survives to . 242 on a judgment against husband and executrix, if she survive, not liable to an action of debt suggesting a devastavit by the husband, and why . . 47 1 in case she married after testator's death, liable for the wasting of the husband . . . ib. where will of, executrix, in part void . 242, 243 legacy to a . . . 320,321.490 Identitate nominis . . . . 159.436 Incapacity, mental . . . .9 Increase — interest vested in executor by . .166 where not . 166, 167 Indictment for forging a will, pending a suit in respect to it in the ecclesiastical court . . .77 Infant . . . . 9. 34. 356 distinguished from a minor in the spiritual court . 100 aesignment of guardian by ordinary to . .100 INDEX. 587 Infant — continued. Page executor ...... 357 executor and residuary legatee . . 124 where one executor is, and his co-executor not 102 marriage of, after administration granted durante minoritate : . . . ib. death of, after administration granted during his mi- nority, and that of other infants . ib. executor after seventeen, could formerly have sued by guardian, or prockein amy . 445 cannot now maintain an action till he comes of age ib. executor formerly might have been sued after the age of seventeen . . . 47 1 ' cannot now till he is come of age . ib. legacy to . . . . 490 payment thereof into court . 318 • maintenance of 325. 327. 357 education of .... 328 Injunction . . . 271.318.358.445.490 Insanity of next of kin .... 103 Insolvency . . ... 35. 102. 341 Inspector of seamen's wills . . . 60.190 Interest of debts . . . 286,287.464 * of legacies . . « 323 f ctseq. 328 executor liable for in equity, in what cases 480 Intestacy • . . . . 80 Inventory . . . . . 41 the nature of . . . . 247, et seq. must be written and stamped . . 246 exhibited in the spiritual court 96. 247, 248. 49 I for whose benefit . .. 248 at what time ibid, et seq. effect of . . 249, 250 omission to bring in . .126. 249 when dispensed with . 251 when decreed before probate, or admin- istration under seal . 252 commission of appraisement and, there- upon . . . 253 how far questionable by a creditor ib. 588 INDEX. Inventory — continued. Page exhibited in a court of orphanage in Lon- don, in what case . . 254 Ireland, leasehold estate in . . . 144 Issue — taken on a probate, how triable . 78 taken on grant of administration . 95 Issues forfeited ..... 278. 459 Jacks ...... 198 Jewels . . . . •. 150.224.229,230.401 ancient, of the crown . . . 199 Joint tenancy in chattels . . . 163 Judgments . . . . . 56.432 in courts of record . . . 26- priority of, depends not on the original cause of action . . . . 264 in inferior courts, records of, removeable into the courts of record at Westminster . ib. on a scire facias . . . 264,265 interlocutory judgment . 265, 266. 2S9 where after verdict, and before the day in bank, defendant dies ... . . 265 where after' an interlocutory judgment defendant dies , . . . . ib. where defendaut dies after a writ of inquiry exe- cuted and before the return of it • . 266 relation of . . . . ib. fraudulent .... ib. ijudd com/iutet . . .. . 267 in a foreign country . . ib. the docquetting of ... 266. 269 not docquetted how considered . 2^8 of inferior courts not required to be docquetted 269 yet executor bound to take notice of them ib. against executor . . . 265. 267 where there are several executors 29 1 by the name of administrator, or vice versa . . ib. of assets quando acciderinl . . 479 confessed by one of several co-executors 360, 47-? INDEX. • 589 J ii figments — continued. Page on simple contract confessed by an executor being- ignorant of a bond, on which judgment is after- wards given . . . 293, 294 against husband and wife executrix, if she sur- vive, not liable to an action of debt suggesting a devastavit by the husband \ '. . 47 I form of, against an executor . . 463. 469 form of, in the alternative . . 463, 464 for the costs 467, 46S interest on a . . . . 286 Justices of the peace have no authorityto order an executor to maintain an apprentice . . . . 476 King — may be executor . . . .33 entitled to effects of intestate in what cases 107, 108 debts due to . . 259, etscq. 286 debtor of, outlawed on a mesne process . .261 assignment of debt to ... ib. property accruing to, by outlawry . . 260 Land — settlement of, on child . . 371.376 Leads . . . . . . .197 Lease — for years 56. 86. 140, 141. 176, et seg. 212. 252 determinable on lives . 140. 176 of a rectory . . . . .146 by parol .... 278, 279 made by administrator durante minoritate how far good . . . . . . 405 sale of, by limited administrator . . ib. Leets — profits of . . . * .. .139 Legacy — upon condition . . . .314 definition of . - . . .299 general . . . 301, 302, 303 specific . . . . ib. lapsed or vested, in what cases 171, 172. 303. 306 357. 454 shall lapse, though left to legatee, his execu- tors, administrators, and assigns 304 though testator express an inten- tion to the contrary . ib, 590 • INDEX. Legacy — continued. Page if legatee die before the condi tion on which it is given be performed . . 238 or before it is vested 304, 305 may be so framed as to prevent its lapse . 304 to several persons not extinguished by the death of one of them . . . - ib. nor to remainder-jnan by the death of the first legatee , . . . . ib. nor to remainder-man by his death in the life- time of the first legatee . 305,306 nor if the legatee take in the character of trustee 304 nor if made to carry interest . 305.313 distinction between such as is vested, and such as is not ■'. . . 171, 172.305. 313 charged on land, when vested, when not 172, 173, 174 to be laid out in land .... 303 executor's assent to .' » 44.46.140.306.308 why necessary ^ . 306, 307 effect of ... 307 legatee cannot take possession of, before such assent . 39. 307 legatee's interest in, before 307, 308 such assent express . . . 309 implied . . 308. 310 absolute . . .310 may be on condition precedent ib. not subsequent . 310,311 shall confirm an intermediate grant by legatee of his legacy 31 1 to a release of debt by will 308 good before probate . 312 not before executor has attained twenty-one . . ib.- has relation to testator's death 3 1 1 once given, irrevocable . ib. when it cannot be given 311,312 one of several co-executors may assent to . .361 assent to, by limited administrator, with the will annexed ..... 405 INDF.W 591 5,cp;ac.y»— continurS. Pago, payment of . 312.424 when to be paid 312, 313 to whom . 312, 313. 321. 323. 327, 328 voluntary bond payable in preference Lo 283 payment of, when legatee is an infant . 314 executor has no right to pay it to the father . . 314, et seq. unless very small, when he may, into the hands of the infant, or to the fa- ther • .i • i 318 payment of infant's, into court, under the stat. 36 Geo. 3. c. 52. . • • ib. payment of, to an infant by an executor, to save a forfeiture of his own . • 316 payment of, to the father of an adult child .314 illusory payment of . • 320 payment of, to be divided at executbr's discretion 319, 320 where the legacy is left to one lega- tee, to be divided among himself and others . ., . .321 payment of, where legatee is a married woman . 320 living separate from her husband . ib, divorcecra mensd ct thoro 320, 321 executor may decline paying her legacy where no provision has been made for her, unless the husband will make a settlement . .321 nor will chancery compel such payment but on the same terms, unless the wife appear in court, and consent . ib. payment of, where legatee is a bankrupt . ib. where the legacy was left after signing, but before allowance of his certificate ib. conditional payment of, and security to refund, an • . obsolete practice . . • • 322 payment of, bequeathed to legatee conditionally .313, 314 54 592 INDEX, Legacy— coniinyed. Page payment of, without notice of the revocation of the ' will . . .79 distinction between a voluntary and a compulsory payment of . . "4 I where the assets were originally deficient, and where they afterwards became so by misapplication . . ib, payment of interest on . 171,172.323 from what period to commence 323. 327 when specific . .323 where legatees are infants . 325 where infant legatees die before twenty-one . . ib, where the infant is the child of testator . . ib. where a natural child . 326 where a grandchild . ib. where a nephew . ib. on a becjuest of a residue to be divested on a contingency . ib. where left to infant, payable at twenty-one, and devised over on ^is dying before, and he so dies . 326,327 where father of infant legatee is living . . 327 where the principal of a, left to an infant, shall be broken in upon . 317, 318. 327,328 where not . 317,318.328 rate of interest payable on . . 328 must be paid in the currency of the country in which testator resided when he made his will 322 interest to be computed according to the course of the court . . . 328 how paid where testator left effects partly here, and partly abroad . . . 322 where some legacies are described as ster- ling, and others not . „ 323 • INDEX. 593 Legacy — how paid — continued. I'agc where legacy is charged on lands in another country . ... 323 payment of, hy administrator under a void adminis- tration . . . . . . .1.32 out of a mixed fund of real and personal estate, paya- ble on a future day, and legatee dies before the day 422 receipt for . . . 329. and dfift. limitation of . . . . .170 ademption of . . 329 express . ... . ..id.. implied . . . ibid, ct scq. pro (ante . . . 333 . when cumulative, when not . . 334. 336 when in satisfaction of a debt, when not . 336. 338 _ abatement of, general or specific . 306. 339, 3*10^347 of specific legacies out of a specific chattel 340 of legacy to a charity . . id. refunding of, in what cases, in what not 341, 342. 347 payment of, to residuary legatee . . 342 left to executor ... . 347 pecuniary or specific unequal to co-executors 361, 362 equal pecuniary legacies to co-executors . 362 equal specific legacies to co-executors . . id. executor's assent to his own . 345 express . . . . ib. implied . . ib. cannot give himself a preference in regard to a . . .347 on a bequest to executors generally, one may assent for his part . 361 feffect of one executor's taking his legacy without the assent of the other . . . .45 to executor for his trouble . 347. 352. 456 must act, or shew his in- • tcnlion to act, to entitle himself to such a -.•34/ to one of (wo executors for bis care and trouble , 361 594 INDEX. Legacy — continued. Page specific, to executor, no bar of money due to him on mortgage . . . 185, 186 when debt of executor a specific bequest to him, when not . . . . 347. 351 specific, to husband and wife, joint executors 359. 362, 363 interpolation of a . . . .70 ■ where lands shall be assets only for the payment of legacies . . . . .416 payable at a future time may be secured, and appro- priated in equity . . . 482 whether vested or contingent . . . ib. out of personal property may be sued for in the eccle- siastical court .... 489 in a court of equity . . . . 479 ^puf of land only in a court of equity . . 490 bond for, cannot be enforced in the ecclesiastical court . . . . . .491 no action at law lies against an executor . 465, 466 in the hands of an executor not subject to foreign attachment .... 479 Ul LULU I1H-U L Legatee — who may be. . 299 wife . 300 infant in ventre sa mere . ib. who* not . . 299 traitors . id. persons i\ot having qualified for offices 299, 300 persons denying the Trinity, for the second offence ... . . 300 or the scriptures . . . ib. artifices going out of the kingdom to exer- cise or teaCh their trades abroad, and not returning within six months after due no- tice . . . . ib. witnesses to the will or codicil . ib. mistake in the christian name . . . ib, specific, cannot retain the legacy in his possession, • * though there be assets . . 307 nor although testator direct that the legatee INDEX. 595 Legatee — continued. I age shall take the legacy without the executor's assent . ... 307 advantage of 340 disadvantage of ib. where executor is 344 residuary . . 99, 117, 118. 122 legatees, several residuary . . 99. U 7 executor and residuary . • .117 feme covert executrix and residuary . .118 marshalling assets hi favour of . . 420 may sue in chancery, and in the ecclesiastical court at the same time . . • 496 Letters, private, written 'by testator, enjoined from being published without executor's consent . . 455 Libeller . . . • .13 Limitation — executor's interest by . .170 of a legacy . . . .171 Limitations — statute of, executor not bound to plead to an action by testator's creditor . 343. 429 executor's suffering testator's creditor to avail himself of . . 426, 427 Lip pendens . . . 66. 94. 103 Literary property . . • .152 London — custom of the city of . 388, ct seq. where it shall controul that of York . • 402 . custom of, and York, in the main agree . 402, 403 Looking-glasses . . • • .197 Loss — of probate . • • .77 of letters of administration . . .95 of the effects by the executor's negligence . . 426 Locks and keys . . • .197 Lunatic — committee of . . !82, 183 estate of . . - 19 1 chancery will change the nature of, for the benefit of th6 owner . . ib, Maintenance, money expended for child's, no advancement 380. 3 'J 6 Mandamus . . 57.66.36,94.105 596 INDEX. Page Manure . . . . .150 Marines . . . 5. 60. 109 Marriage settlement . . . 284 articles . . . . ib. settlement, operation of, in regard to the custom of London . . . 392,393 of female orphan of the city of London under twenty-one . . . 393,394 Mayor and commonalty . . . .201 aldermen of London . . . 254 Melons . . . . . . 150 Memorial of wills affecting lands in Yorkshire or Middlesex 246 Merchandize . . . . .150 Merger of a term . . . 141, 142 Millstones . . . . .197 Minor distinguished from au infant . .100 Money . . . . .. 150. 224 covenanted, or agreed to be laid out in land 8. 181 cannot be followed when invested in a purchase . 182 where land had been sold by fraud, refunded after the death of vendee . . . .188 collected on briefs for rebuilding a copyhold tenement 200, 20.1 of testator intermixed with executor's . . 238 Monument in a church . . m . . .199 Mortgages . . . 139.164.183.222 of freehold* and copyhold lands . . 422 in general personal contracts, and the mortgage- ■ money belongs to the executor . 183. 187 where not . . . . 1S^> when the condition mentions neither heirs, nor executors . . .183 if it appoint the money to be paid to. the heir or executor . . 183. 185 mortgagor's failing to redeem, effect of . .186 forfeiture of, and mortgagor's! releasing to the heir of mortgagee in fee . . . . 18? devise of, as real estate by mortgagee , . 1SS* devise of, as real estate after a decree of foreclosure, nm 1 b ( ) INDEX. 597 Mortgages-— continued. ' Page where it will not pass as land under a general de- scription of locality . . .189 ancient . • . . ,187 in fee to a citizen of London . . . ib, money secured by, articled to be laid out in land, and settled . . . .189 mortgaged lands descended . . , 4l« devised . . 418.421 estate bought subject to . . ,419 in fee, lands held by, descending before redemption • to the heir within the province of York . 401 debts by, as they affect the personal assets . 285 how far a revocation of a will . . 26 legacy given out of .... 323 to wife in fee . 222, 223 for a term of years . . . ib. by husband and wife of the wife's term 216. 218 of terms of years by executor . . 256 mortgaged terms, assignment of, by executor . ib, executor not barred of money due on, by a specific legacy . . . 1 §5, ISC- Mortgagee, fraudulent sale by . . .188 Mother . . . . .90 relations by her side . . .91 what a child receives out of the estate of the, no ad- vancement . ... 380 Ne exeat regno — against feme covert administratrix . 489 Negro servants . . . .151 Nephew .... 90. 385 son of the . . . . .90 Niece . . . . . ss5 Nomine fianx . . . , . 17S Nominees when the king is executor . . .33 Notice of judgments docquetted . . 269. 293 not docquetted • . 268, 269 in inferior courts of record . 269 of a decree in equity . . . . 270 express . ... 270. 292 implied . . . ib, 598 TXDF.X. Notice — continued. Pap;^ of recognizances, statutes, and other inferior debts of record . . . 278 of debts by specialty . . . 293 one executor shall not be affected by, to the other who conceals it from him .... 472 where, to one shall be presumed notice to the other ib. Nuncupative will . . . 2. 16. 37. 59 executor may be appointed by . 37 codicil . • . . .6 • Oath on renunciation of executorship . .44 on taking out probate • .58. 250. 492 administration . . 96. 250 special, on exhibiting an inventory . 250. 252 Office, civil or military, purchase for son of, an advancement 377 Official • . . . . 66.74 Orphan's portion . . . .221 Orphanage money .... 202 part by the custom of London . . 393 nature of the interest in . . 399 release of, for a valuable consideration, binding in equity . . 399, 400 Ovens . . . . ,198 Overseers of the poor, money due from . . 262 Outlaw . . . • 12.34.93.154.213 Outlawry, property accruing to the crown by . 260, 261 of the king's debtor on mesne process . . '261 legacy forfeited by, of legatee, though before exe- cutor's assent . , . . . 308 Owelty of partition, bond for . . . 180,181 Pales . ... Papists . ... Paraphernalia of the wife . . • necessary apparel bed pearls diamonds plate bought with wife's pin-money 197 35 229 ib: ib. ib. ib. 230 INDEX. 599 Paraphernalia — continued. Page cloth delivered to wife for her apparel 230 jewels presented by husband to wife for the express purpose of wearing them 230, 231 husband may sell or give away in his lifetime wife's ornaments . . .231 cannot bequeath them . . ib. wife not entitled to such ornaments where the assets are deficient at husband's death ib. wife's ornaments.preferable to legacies ib. if pawned by husband in his lifetime, shall be redeemed out of his personal estate 23 1,232 where wife is excluded from,by her own agree- ment .... 232 her necessary apparel protected even against creditors . . . ib. when husband bequeaths to wife her jewels and then over, and she makes no election to have them as marshalling assets in favour of Parents Parish apprentice Parrots . • . Pars rationabilis . Parsnips . ... Parson . Partner — on the death of one, his interest at law vests in his representatives but the remedy at law survives surviving, regarded in equity as a trustee for the re- presentatives of the deceased .. . . ib. interest of the executor of a deceased, in choses in action ...... 163 how the action in such case brought . . ib. executor of a deceased, and the survivor, cannot be jointly sued for a debt due from the partnership 475 Partners in trade . . • • .454 Partnership in trade . . . .155. 166 Partridges : 147,143. 192 55 422, ib. 423 90 476 148 81. 389. 403 150. 194 201 s in his ib. ib. coo 1NDKX, Page Patent — granted to testator - - - -152 grant by letters, of effects of a bastard dying intestate and without issue - 107, 108. 386, 387 Pawn — goods in ... 154. 164 executor's power to redeem them - ' - 257 executor redeeming goods with his own money in, shall be indemnified out of the effects 164, 165 executor so redeeming goods in, to the amount of their value is .regarded as a purchaser of them in his own right - - - 165 effect of such redemption of goods in, where the time specified for redemption is past ib. wife's paraphernalia in - 231, 232 writings of an estate in - - - 192 - 229 50,51,52 199,200 t v - 147, 148. 192 - . - 150. 197 141. 147. 149. 192 - 228 : . ib. 71,72 how bound by grant of 'probate here . ib. . 416 . 149 .368 i 289. 463. 467 . 472 Pearls - - - Peculiar - Pews - Pheasants - - Pictures Pigeons Pin-money - - ' - arrears of, at husband's death Plantations, judge of probate in the* estate in fee in Plants ..... Plea fiuis darrein continuance Plea, false, pleaded by executor Pleas, distinct, pleaded by co-executors Plene administravit, plea of 267. 279, 280. 365. 367. 470 evidence 'thereof 267.282.298.367 Policy of insurance, re-assurance by executor . 453 Portion .... 172.329.371.376 infuturo, an advancement . . 377 contingent, an advancement . 377, 378 charged on land, when vested, wliQn not 172, 173 may be vested, but not raisablc im- mediately . . .173 INDEX. 601 Portion — continued. Page devise for raising, pursuant to an agreement before marriage - - - -411 filial, by the custom of York - - 40 1 Portraits ancient - - - - 199 Possibility . - 170. 212, 213, 214 tenant after, of issue extinct - -207 Post-office, money due for letters to the r - 262 Posts and rails - - - - 197 Poultry - - - - 147 Power of executor to sell land - 412, 413. 416 Presentation to a church -, 139.144.189,190 when the grantee of the next, dies after the church becomes void, and before presentation - 190 Presents by a father to his child - - 380. 396 Priority of date, when not material - 263. 265. 275 Prisoner - - - 10.93. 15 1 Probate — acts of an executor before - 16. 245. 312 what actions he may commence before 46. 415, 446 what actions he may maintain before - 47 executors liable to be sued before - 48, 49 relation of - - ' 46, 47 shall not prejudice a third person 47 death of executor before - - 49.115 after, taking the oath, but before the passing of the grant 49 effect of, by limited executor in regard to subse-* quent executor - - - 49. 457, 458 jurisdiction of granting - - - 49 by courts baron - - 50 by mayors of boroughs - - ib, by the ordinary or metropolitan - ib. bona notabiiiay what shall be 51, el seq. of the amount of - - 53 debts bona notabilia - - 54 how considered when by specialty 55 when by simple contract ib. bona notabilia in England and Ire-. land - - - 53 602 INDEX. Probate — continued. Page what shall not be bona notabilia 52. 56 privilege of granting, personal - - 66 when void, when voidable - 53. 73 of will, when proved in the common form, and when per testes, and how - - 56, 57 how will and codicil in testator's handwriting proved - 57 in another's handwriting 58 oath on taking - - - *A. what is styled so - - - ib. of nuncupative wills - - 59 of the wills of seamen and marines - - 60 where executor is infirm, or at a distance in Eng-. land or foreign parts - - - 65 of citing executor to prove - - ib. effect of his failure to appear - - ib. penalty for his acting and neglecting to prove with- in six months - - . 43. 66 ordinary bound to grant - - 66 compellable by mandamus - - ib. what he may return - - - ib. may act by his official - - ib. wh*en granted by the dean and chapter - -67 of a bishop's will - - 53. 67 double - - - - 67 where several executors with distinct powers - ib. of will of a married woman - - 68 when limited - - 68, 69 new, by executor of executor not necessary - ib-. by surviving executor, having refused during the lives of his co-executors - 86 of wills of personal estate only - - 69 of a mixed nature . - - 70 not. to be granted of wills respecting lands merely 69, 7(> of a will with reservation as lo a legacy - 70 of a will of a party long absent • ib. . of will lost - - 71 of will illegible bv accident - ib INDEX. 603 Probate — continued. . Page how a will proved in Scotland is proved here . 71 how if in Ireland . ' . • *&> how if in the East or West Indies . ib. grant of, by judge of probate in the plantations after shcIi grant here . . 71,72 of a will made abroad disposing of effects here . 72 of effects abroad according to the custom of the coun- try sufficient . • . ib. of will in a foreign language . . • ib- of will annexed to an administration . 98 revocation of • • 73. 75. 78 revoked for fraud . .73 on proof of revocation of the will '. • »■ of making a subse- quent will . ib. of appeals in regard to . . 73. 75 when affirmed on appeal, cause sent back . 75 granted de novo by court of appeal when sentence reversed ..-.** ib. effect of • 75. 115 death of executor before . 115.140 effect of . - • • * b > death of executor residuary legatee intestate before 1 18 effect of . . - ib- death of executor residuary legatee leaving a will before . • • . ib. effect of . ib. death of executor residuary legatee intestate after, effect of . • ' . ib. within what time will be proved in the common form may be disputed . ■ - .. 76 within what time a will formally proved . ib. unrevoked, not to be contradicted . • ib. seal of ordinary may be shewn to be forged . ib. or that there were bona notabilia . ■ ib- payment of debt to an executor under,' of a forged will, good . . . 76> ?7 604 INDEX. Probate — continued. Page practice not* to try forgery of a will while litigating in the spiritual court . . 77 payment of money under, of will of a living person void . ib. loss of . ib. how probate may be proved . 77,78 issue taken on, triable by a jury . 78 effect of revocation of . . ib. of registering at the bank . 255, 256 Prohibition 70. 127. 318. 491. 494 Promise — memorandum in writing of . 464 consideration of . ib. what is sufficient • ib. Promissory note . 157 . 235.286 interest on * '. . 287 Pumps . . 197 Fur auter vie tenant . . 208 estate 410, 411 Quaker • 43 Quare im/iedil 158. 161, ,240. 434. 437 Queen • . 12 Rabbits 141. 147 Rails Receiver . 197 102, 103 pendente lite . , 103 may be appointed by chancery in case an executor .. becomes bankrupt . 488 when husband of executrix, is abroad 358 Receipt — for a legacy . 329, St vid. J/i/iend. executors joining in a . 483, 484 effect of . .484 Recognizance . . 56. 263. 432 definition . '• . 271,272 distinction between, and a bond . . ib. ■ how authenticated . ... . 272 in the nature of a statute staple 272. 274, 275 description of . 274,275 INDEX. 605 Recognizance — continued. Page recognizance and statutes payable in the same order . . . .275 not yet due . , . . 275, 276 contingent .... 276 not enrolled, how considered . . 277 Rectory, lease of . . . .146 Refunding of legacies . . . . .341 Refusal of the office of executor . 43. 92, 93. 120, 121. 12S of administrator . .120 Registry of the spiritual court . 58. 96, 97. 1 19. 492 Register's book in the spiritual court . 78. 95 Registering probate at the bank . . 255,256 seamen's wills * . . .60 Registry of wills affecting lands in Yorkshire or Middlesex 246 Relations — description of, under a will . . > 300. 386 Release of debts by will . . . . 308 of debts by executor . ' . .424 by husband of executrix, or administratrix 242 by one executor . . 359, 360 by one executor of his interest to his co-exe- cutor . . . . 360 Relief — due to testator, action for . . 433 due from testator, action for . . 459 Remainder . . . .• 165.214 interest vested in executor by . 165,166 when not . .166 Remainder-man — what chattels go to . 203, etscq. not entitled to emblements 204, et sec/. right of, to heir-looms . ..211 Remedies — for executor or administrator at law 254, 255, 256. 431 action by, where cause of, arose in tes- tator's lifetime . 157.431 in what cases not maintain- able . * 160. 436 where cause of, arose after testator's death 162.437 executor may sue in a court of conscience • 436 may hold to bail, on what affidavit . 438 606 • INDEX. Remedies — continued. Page legal remedy of, creditor executor refusing to act not extinguished ... 293 action not maintainable by iufant executor - 445 formerly maintainable by infant executor after the .age of seventeen - - - ib. husband of executrix cannot sue without her - ib. action by executor durante minoritatc - ib. co-executors must all join in an action 445, 446 of (heir joining where infant is co-exe- cutor - - . 446 in action by co-executor of summons and severance ib. when on judgment recovered by two executors they pray different writs of execution - 447 action by executor of executor .- - ib- action by administrator . - - ib. by special administrator - - - ib. by joint administrators - - 448 where either party dies between verdict and judg- ment - , - 442 after the assizes com- menced, but before the - trial - - ib. judgment in such cases how and when enter- ed - - 44-3 revived by scire facias in what form - ib. where either party dies before the assizes, the suit is abated - - - 442 scire facias by executor on his coming of age on judgment recovered by administrator durante minoritutc - - 447, 448 scire facias by administrator in such case against the bail - - ... 448 execution in such case on the judgment - ib. scire facias by administrator dc bonis non, on judg- ment recovered by executor - - ib. if executor or administrator die after suing out ex- INDEX. 607 449 ib. Remedies — continued. Page ecution, but before tbe return of it, administra- tor de bonis non may perfect tbe same 448, 449 and where the execution was on a judgment by de- fault . .. • .450 where in such case sheriff returns a seizure of goods, but that they remain in his hands pro defectu emJitoru?n where at the time of the executor's or administra- tor's death the money is levied if executor bring a scire facias on a judgment or re- cognizance, and after judgment die, administra- tor de bonis non must bring a scire facias on the final judgment on judgment by default for goods taken out of the executor's or administrator's own possession, his administrator shall have a scire facias on it, and account to administrator de bonis non right of executor to distrain, in what cases 450, et seq. right of executor of executor to distrain . 452 executor as such may prove a debt under a com mission of bankruptcy when executor may take out a commission for a debt due to the testator, when not executor may sign bankrupt's certificate but not both as executor and in his own right executor before probate may commence an action may arrest a debtor party before grant of administration cannot com mence an action may file a bill in equity for executor or administrator in equity 160. 454, et for executors of a deceased partner for executors in regard to testator's letters when executor may institute a suit against credi tors to have their claims ascertained by a decree of the court when executor is entitled to an injunction to re strain a creditor from proceeding against him at ib. 450 ib. ib. ib. 453 46 47 95 ib. seq. 454 455 ib. law 455,456 56 608 IKDEX. Remedies — continued. Page entitled in general to no allowance for his trouble 456 when entitled to commission . . 457 when fraudulent assignment of a term by a former administrator, shall be avoided in equity by a subsequent . . • 458 bill of revivor by executor . . 455 by subsequent administrator . 458 where one of two executors plaintiffs in equity may be severed . .- • 457 suit not abated by the death of a co-executor after executorship of temporary executor, a subse- quent one may maintain a suit without another probate . . . 457, 458 executor come of age may continue the suit of administrator durante jninoritate, by a supple- mental bill . • .458 at law against executor or administrator where cause of action arose before testator's death . 45y where exist, where not . . 285. 460, et seq. against executor or administrator where cause of action arose subsequent to testator's death . 462 for rent due before, and after that event 278. 281 to what action executor not liable on account of the cause . . 460,461,462 on account of the form . .461 by scire facias . 265, 266, 267. 277 against an executor come of age, by scire facias on judgment recovered against the administrator durante minoritate . . . 407 scire facias against executor, when defendant dies after final judgment, and before execution . 469 when writ of fieri facias is tested before defend- ant's death, but not delivered to sheriff till after it . • • *'*. scire facias on a. judgment against an executor or administrator . . . ib. return nulla bona, or nulla bona and a devastavit 469, 470 proceeding on either of such returns . 470 INDEX. «>(V.J Remedies*— continued. Page judgment of assets guando acciderint - - 479 scire facias on a judgment of assets guando accide- . rint - - - - - - ib. action of debt on a judgment of assets guando acci- derint suggesting at devastavit - - ib. against administrator on administration-bond 495, 496 how executor may make himself personally respon- sible - ' - 463, 464 cannot be sued at law for a legacy - 465, 466 not liable to be sued in a court of con- science . - - 466, 467 • not in general held to bail - 467 in what case he may be - ib. infant executor not liable to be sued 471 limited executor may be sued - ib. in action against wife executrix, hus- band must be joined - - ib. on judgment against husband and wife executrix, if she survive, not liable to action of debt suggesting a devas tavit by the husband - - ib. where co-executors are defendants - 471,472 where some of them are in- fants - : _ - 472 how they must appear ib. one executor not liable for the devastavit of co-exe- cutor - - - - - - ib. igainst executor of executor on a devastavit by the hitter - - - ... . 473 actions against limited administrator - 474, 475 ad minis trator durante minaritatc having wasted the assets, liable to the executor on his coming of age, but not after that period to a creditor - 475 executor of a deceased partner and the survivor cannot be jointly sued for a debt due from the partnership - ib distress against executor of tenant for life, or for years - - - - - - ib. 610 INDEX. Remedies — continued. Page- remedy for the assets in case of a bankrupt execu- tor - • - - - - 483 by apprentice against executor of the master for a debt where destroyed by the act of the party - 348 where suspended only by the act of the party ... 349 where obligor of bond administers to obligee and dies, creditor and ad- ministrator de bonis non of obligee may sue executor of obligor - ib. foreign attachment, executors and administrators within the custom of, in what cases - - 478 in what not - 478, 479 against executor or administrator in equity - 479 bill of revivor against executor ... ib. bill by legatees or parties in distribution 479, 480 executor liable for interest, in what cases 480, 48 1 if he compound debts due from testator, shall not be entitled to the benefit - 481 in what cases not liable in consequence of lending or paying money - - ib. generally liable for compounding or re- leasing a debt, when not - 481, 482 may be called upon in equity to secure a legacy payable at a future time - 482 to secure an annuity - - ib. against executors joining in a receipt - 483,484 an executor not admitting assets liable to account, though co-executor admit them - - 486 when co-executor not liable for the administration of the property - - - - - ib. against executor or administrator in the ecclesiasti- cal court - - -' - 4S9 at the suit of legatees or parties in distribu- tion .... 489 } ct 8e g t at the promotion of a 'creditor. - - 495 when legatees may sue executor in chancery and in the prerogative court at the same time - 496 INDEX. 611 Remedies — against, executor — continued. Page if temporal matter be pleaded, spiritual court must proceed according to com- mon law - 494 specialty creditor may resort against heir and devisee, without suing the executor of debtor - - - 4 1 1 against executor de son tort - - 473 may be sued with a lawful executor, but not with a lawful administrator - ib. how far liable - 473, 47 1 executor of, liable for the devastavit, of - the latter - - 474 executor de son tort of, not liable for the devastavit of the latter - ib. may be sued for a legacy in the ecclesiastical court - 496 Rent 140. 143, 144, 145. 157. 159. 217. 224. 236. 239 service .... 4.50 charge - - -• - ib, seek - ib, fee -farm - - - - ib. . due to the crown - - - 261 to what, heir is entitled - - 176,177,178 where heir is entitled to - - 138 to what, executor is entitled - - 136 where executor is entitled - - 179 apportionment of, in favour of executor of tenant for life - - 208, 209. 436 a debt due by specialty - - 278. 281. 459 reserved by parol lease • - - 279. 460 after determination of the lease - - 279 left in arrear by testator - - - ib, accruing after his death - - - ib. when the profits of the land exceed the amount of 279,280 when the profits are less than the - 280 avowry for - - - 4S. 424 as incident to a reversion foi years • 437 612 INDEX. Kent — continued. Page reserved on a lease for years, query whether executor can distrain for . . 451,452 Rent-charge — executor of grantee of, for term of years, if he so long live, cannot distrain for the same 452 an advancement . . . . 377 Replevin, action of . . 159.161.437 Representation, not admitted among collaterals aflcr intes- tate's brothers' and sisters' children, 3< 2. 382, 383 Republication of a former will . . 28 Requisition — in regard to seamen's wills . . 63 in regard to administration to seamen . 1 1 J to bishop or archbishop in England 65. 94 to the magistrates in Scotland . .65 in the West Indies . ib. Residue . . . .312 undisposed of . . .35 1 parol evidence respecting . . 355 interest upon . . . 324 interest of executor in . . 351, et scq. of widow executrix in . .353 of limited executor in . . 354 where husband and wife executors shall be excluded from . . . .359 when co-executors shall be entitled to, when not 359. 363 co-executors take as joint-tenants . . 363 Residuary legatee . . . 342 where there is no present residue 100. 1 17. 122 death of, before the surplus is ascertained . 342 shall not compel the other legatees to abate 34 1 shall not suffer alone in case of a devasta\it ib. infant executor . . 12 1 bankrupt executor . . . 48S linen — by executor of a debt due to him 295, et seq. by husband of executrix . . 359 by one ol* two executors how far allowable . 36 1 for his debt not in general allowed to execntoi dc son tort .... 3G6 when entitled thereto uudcr the statute . ib. INDEX. 613 Retainer — continued. Page for debt by limited administrator , . 405 Reversion . 377 legacy charged on . . 324 Reversioner . . 206. 2 1 I Review, commission of . . 74, 75 Revocation of will . . . 14, etseq. Roman catholics .... 35 Saffron . . . 150.194 Saintfoin . . • .150 Sale of the deceased's effects . . . 40 by grantee of letters ad colligen- dum . .107 by executor . 256, 257 though specifically bequeathed 256 in..satisfaction of his own debt 296 by administrator where adminis- tration is void . .128 where voidable 96. 129 to executor by sheriff under a fieri facias . 239 of perishable articles . 40. 247. 404. 428 of leases by limited administrator . . 405 of goods at an undervalue . . 427 of land .... 364 of land devised to executor for that purpose .413 Satisfaction . . . .336 Scire facias . . 220.265,266,267 on a judgment . . 202.265.407 on a recognizance . . . 277 execution by, where testator plaintiff died after final judgment, and before execution 441,442 effect of testator's or intestate's death after a fieri facias sued out . . . 442 after the goods are seized . . ib. where either party dies after interlocutory judg- ment, and before execution of the writ of in- quiry . . . 443, 444 the form of the scire facias in such case . 444 judgment in such case, how entered . ib. 614 INDEX. Scire facias — continued. Page by executor on his coming of age on a judgment recovered by administrator durante minoritate 447, 448 by administrator in such case against the bail . 448 by administrator de bonis non . . 480 when it lies . . ib. when not . . 449 on judgment recovered by executor or administra- tor .... ib. by administrator of executor or administrator on a judgment by default for goods taken out of the possession of the latter - . 450 where defendant dies after interlocutory and before final judgment, two writs of scire facias must be sued out . . . 444 when respectively . . . ib. against executor where defendant dies after final judgment, and before execution . . 469 on a judgment against executor or administrator ib. return nulla bona ; or nulla bona and a devastavit 469, 470 proceeding on either of such returns . 470 on a judgment of assets quando acciderint . ib. against executor of an executor on a judgment against the latter, in an action of debt suggest- ing a devastavit on a judgment committed by him in the lifetime of plaintiff's testator . 473 on a judgment where necessai y agaii ist an execu- tor of an executor ib. Scire fieri, inquiry . 470 Scotland, leasehold estate in . 144 Scriptures, denial of . . 36 Seal of the ordinary . 46. 58 . 76 Seaman . 4, 5 Seamen's wages . 60 will of . . ib. administration to . . 109 See, vacancy of . 67 '. 94 Sequestration of the deceased s effects • 65 Servant , 151, 152 INDEX. Ol5 Page Settlement gained by executor .... 146 Settlement on a child, either voluntary, or for a good consi- deration, an advancement Jiro tanto . 377 Sheriff, action against . . 159.161.435.437,438 action against executor for money levied by testator as 460 Sheep, wool of . • .' •' • 166 Ship at sea . . . . • .153 delivery ot, by bill of sale . . . 234 Signature of a will . . . 2. 15 of a codicil . . . . 6 Simple contract, debts by 157.219.261.267. 285, 286. 433.437. 459,460.462,463 bills . . • 286.460 notes . ... . ib. verbal promises . . ib. promises express . . ib. implied . . ib. collateral . . 460 due to the king . 259.286 wages of servants • . . 286 of labourers . . . ib. apprentice fee received by testator ib. where by the custom of London cqu# to a debt by specialty 282 judgment not docquetted on a lev- el with . . .268 interest on 286 Sister of the half-blood . . . . .91 Skirrets . . . . . . -194 Slave — his right to a legacy .... 233 Soldiers in actual service, will of . . 4 Son . . „ . • • .87 of intestate's sister ..... 383 of intestate's aunt . . • • 384 Special occupant . . . • 140. 179 plea by executor . 267.280,281,282,283.298 when necessary . 267.280,281 Specialty— debts by . . . 278, et seg. 459 not yet due . . • ,281 61G INDEX. Specialty— debts by — continued. Page contingent - - - 282 where the contingency has taken place > . ib. interest on - - 286, 287 Squirrels • - - - - - - 248 Statute 20 Hen. 3. c. 2. - - - - 205 13 Ed. I.e. 19. - - - 82 13 Ed. 1. Westminster 2, c. 23. - - 433 de mercatoribus, 13 Ed. 1. - - - 272 4 Ed. 3. c. 7. - - - - - 433 25 Ed. 3.c. 5. - - - - - 447 27 Ed. 3. - - - - - 273 21 Hen. 8. c. 5. 20. 41. 65. 73. 83, 84. 97. 123. 247. 249. 253. 412 23 Hen. 8. c. 6. - - - - - 274 24 Hen. 8. c. 12. ' - - - 73 25 Hen. 8. c. 19. - - - 74 26 Hen. 8. c. 1. - - - - 75 28 Hen. 8. c. 11. - - - - 208 32 Hen. 8. c. 1. - - - 2 32 Hen. 8. c. 6. - - - - 13 32 Hen. 8. c. 37. - - 217.224.450 33 Hen. 8. c. 39. - - - 259 34 8c 35 Hen. 8. c. 5. * - - 9, 10 2 & 3 Ed. 6. c. 13. * - - "- - 434 1 Eliz. c. 1. - - - - - 75 43 Eliz. c. 8. - - - - - 39 92 canon, Jac. 1. 51,52 3 Jac. 1. c. 5. - - - - - 33 3 Car. 1. c. 2. - -. - - - ib. 17 Car. 2. C. 8. - - - 265.442.448 22 St 23 Car. 2. c. 10. - 85.97.247.370 25 Car. 2. c. 2. ' - - - - 33 29 Car. 2. c. 3. 2,4. 38. 59. 85. 140. 143. 169. 373 410. 415. 464 * 30 Car. 2. stat. 2. c. 1. - - - - 33 30 Car. 2. c. 3. - - - - 262 30 Car. 2. c. 7. .... 474 1 Jac. 2. c. 17. - - 370.382.390.493 INDEX. 617 Statutes — continued. Page 3 W. 8c M. c. 14. - - 411 4 8c 5 W. 8c M. c. 2. - 388 4 £c 5 W. 8c M. c. 20. 268 4 8c 5 W. & M. c. 24. 430. 473, 474 5 W. Sc M. c. 20. - - - - 256 5 W. 3. c. 21. - - - 4 7 Sc 8 W. 3. c. 38. - - 388. 403 8 Sc 9 W. 3. c. 11. - - 265. 443 9 Sc 10 W. 3. C. 32. • - - - 33 13 W. 3. c. 6. - - - - ib. 2 Sc 3 Ann. c. 5. - . - 388 4 8c 5 Ann. c. 16. - - 4. 54.56 8 Ann. c. 14. - - - 475 9 Ann. c. 10. - - - - 262 1 Geo. 1. stat. 2. c. 13. - • - - 33 5 Geo. I. c. 27. - - 13. 34 1 1 Geo. 1. c. 18. - - 38S. 400 2 Geo. 2. c. 23. - - 411 5 Geo. 2. c. 7. - - - 417 5 Geo. 2. c. 30. * - 221 1 1 Geo. 2. c. 19. - - - i§8. 436 14 Geo. 2. c. 20. - 140 17 Geo. 2. c. 38. - - - 262 19 Geo. 2. c. 37. - - - 45 3 19 Geo. 3. c. 70. - - - 264 26 Geo. 3. c. 63. ... 5. 60 31 Geo. 3. c. 32. - ■3 J 32 Geo. 3. c. 34. - - - 5. 60. 109 32 Geo. 3. c. 67. - - 64. 1 13 34 Geo. 3. c. 52. - - 318. and J/i/t. 37 Geo. 3. c. 90. - - 43. 66. 96. 24 6 38 Geo. 3. c. 87. 31. 100,101. 104. 121.312. 356. 406. 408. 445. 471 44 Geo. 3. c. 98. • - . - - Jijiji. 45 Geo. 3. c. 28. - 56. 263. 432. J/1/1. 47 Geo. 3. c. 74. - . - - 417 55 Geo. 3. c. 60. - 6. 60. 109 Statute merchant 131. 260. 272 description of 618 .' INDEX. Statute merchant — continued. * I'agc estate by - 139.212 Statute staple .... 134.260.273 description of ... 273 estate by - - - 139. 212 not yet due .... 275 contingent ... 275, 276 Successor — what chattels go to - - - 201 what not .-- - ib. Summons and severance in an action in the names of co- executors ... - 446 writ not abated by the death of the party severed ib. nor if he live till judgment can he sue out execution - ib. Supplemental bill by executor come of age after adminis- tration committed durante minoritatt - - 358 Surrender of lease by executor - - - - 142 by husband of executrix or administratrix 242 Survivorship, right of - - 15 5. 163. 454 exists not in regard to partners in trade, or husbandry 155. 163.454 Surviving executor - - - 114.363 administrator ... 114.408 Suspension of bishop or archbishop 67. 94 Swans - - - - 192 Syndics, where a corporation is executor - 33 Tables and benches long fixed - - - 197 Tables modern, and fixed - - 198 Tapestry - - - - - ib. Tenancy from year to year - - - 141 Tenant for life, executor of - - 206 Term for years - 140.179.4 10 vested in executor by his entry before probate 1 40 cannot be waived by executor 113. 279 unless where there are not assets to pay the rent - - 143, 144 what he is to do where there are assets to pay pent, but not \'oi the whole term 1 1 1 in an advowson - '61 I^DEX. 619 Term for years — continued. Page in trust to pay debts, and then to attend the inheritance - - -178 vested in a trustee to attend the inheritance 410. 427 grant or surrender of, by one of several exe- cutors - - - 360 reversion of - - - 141 Timber - - - - 193 Tithes - - - M>8. 190 where executor is considered as possessed of 145, 146 action for not setting out - 158.434 Tombstone - - - - 199 Trade — not generally transmissible to executor - 166 where he may carry it on 166. 486 where the testator directs the residue of his estate to be employed in carrying on his - 166. 486 where the testator directs part of his assets to be so employed - - 166. 487 Trader — what acts an executor of, may perform without making himself one - 487,488 real estate liable to debts - - 417 Traitor - - - 12. 35. 93 Transmutation of the property in favour of the executor 238. 240 Trees 149. 160. 193, 194, 195, 196. 206, 207. 436 branches of, lopped ... 149 timber - - 145.193.195,196.207 not timber - - 145. 193. 206 Trespass, action of - - 158.433.437 by executor lies not for injury to testator's person, or freehold - 160.436 distinction between, and that of trover brought against executor de sou tort 365, 366 Trinity, denial of - - - 36 Trover, action of - 365. 434 Trust — shall never fail for want of a trustee - 36? whether executor of an executor may or not execute at law a power of selling land given to the first ex- ecutor, he is bound in equify to execute it - ib, 620 INDEX. Trust — continued. Paee bond given to testator in - 153 ? 154 Trust-term. - - - - 218 Trust estate descended to heir - -415 Trustee — where executor is, of the residue 351, 352 where co-executor shall be ^ 361, et seq. where wife's representative is, for husband's repre- sentative - - - 116 and executor, devisees to sell land, former distinction between - - 412, 413, 414 or guardian shall not change the nature of the estate 1 82, 183 may by a decree in equity - - 183 Turnips - - - 150. 194 Vats for dyers - - - - 198 Venditioni exponas, writ of, sued out by administrator de bonis non - - - - 449 Ventre sa mere, child in - - 34. 300 Vicar - - - - 201 Uncle - - - - 90 of intestate .... 334 Usurer - - - - 13 Wages of servants ... 286 of labourers ... j . Wainscots - - - - 197 Wales, custom of ... 403 Waste — tenant for life, or years without impeachment of- 207 no action lies for, either by heir or executor 432, 433 Widow — grant of administration to - 83.86 when not one of the next of kin under a will - 3S6 Widow's chamber — by the custom of London - 39 1 compensation for, to what amount - ib. analogous to her right in paraphernalia - ib. cannot be claimed to the prejudice of creditors - - - ib. and ornaments by the custom of York 400, 401 Will— definition of - - - 1 of lands freehold - 1, 2. 2S. 69, 70 INDEX. 621 Wi\\— continued. Page 31 7 69 7 ib. ib. ib. ib. ib. of lands copyhold of customary freehold of personal property . • 2, of terms for years in gross in trust to attend the inheritance of transmitting terms hy of creating terms hy of money out of land of money covenanted to he laid out in land of a mixed nature written nuncupative . • 3 ) of soldiers in actual service not permitted to sailors or marines of English seamen and marines of Irish seamen and marines avoided by incapacity of the party mental disability infancy, within what age in males in females madness idiocy age distemper drunkenness having been born blind and deaf imprisonment or captivity, how far coverture . • 9, 10. 242 where partially avoided by 242, 243 crimes . • .12 treason from conviction and attainder, or outlawry . • • *&. felony from conviction and attainder, or outlawry . • • *"• crimes as it respects personal estate only ib. treason after conviction . • *»• felony after conviction . • 7 "* felo de se 70 2 59 4 5 5. 60 64 9 ib. 'ib. ib. ib. ib. ib. ib. ib. ib. ib. ib 622 INDEX. Will—avoided by — 'continued. Page felony not capital . .12 ib. 14 ib. 17 15 ib. ib. ib. ib. 18 ib. 19 ib. 18 outlawry in civil cases by cancelling by revocation . . . by another will . • 1 by a codicil where either relates to real property by other writing relative to real property express implied marriage of man, and birth of a child marriage alone of woman not by birth of a child merely such presumption may be rebutted in the nature of ademption . 19, ct seq. revocation in equity . . .26 not avoided by the testator's subsequent insanity . 9 by coverture, if made with the husband's licence, and such licence extends to the produce, as well as the principal 8. 10 how it operates . 10. 85, 86 if he be banished . .10 if property, to the wife's separate use . 1 1 as executrix . 11. 242 of the queen . .11 in respect to gavelkind land by felony . .12 persons capable of making, usurers . . . ib. libellers . . . ib. persons excommunicated, semb. . ib. alien friend of chattels personal, and of certain chattels . . ib. alien enemy of the same, if resident here with the king's licence . . ib. express . . ib. implied . . ib. incapable of making, British artificers going out of the realm INDEX. 623 Will— persons incapable of making — continued. Page to exercise or teach their trades abroad, or so trading, who shall not return within six months after warning - - 13 alien enemy - - 12 cannot be repealed or altered by parol, or will nuncu- pative - - - 16. 59 omission in a, may be supplied by nuncupative codicil 6 cannot be made irrevocable . - 13,14 republication of a former, shall re-establish it - 28 what shall be 28, 29 of a woman afterwards marrying, not revived by husband's death - - - 2 1 lost - - - 71.77 illegible by accident - - . - 71 suppressed - - 120. 128 unknown - - - - 120 of a party who has been long absent - 70 transmission of a copy of, from Scotland - ib. from Ireland - 71 from East or West Indies ib. of property in the plantations - 71,72 made in a foreign country - - 72 in a foreign language - - ib. memorial and registry of, affecting lands in Yorkshire or Middlesex - - - 2 46 Windows - - " - 197 Window shutters - - . - ib - Woollen, forfeiture for not burying in - 261, 262 York, custom of the province of -. 4.00, etaeq. where it shall be controlled by that of London 402 custom of, and of London in the main agree 402, 403 THE END, 58 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 831 017 9