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testamentary (7). Each executor has the entire control of the personal estate of the testator, may release or pay a debt, or transfer any part of the testator's property, without the concurrence of the other executor. And it seems, that the same rule holds with respect to administrators Y (8).
If two have a lease for years as executors, and one sells the whole, this shall bind the other; and the whole shall pass; for each had the entire power of disposing of the whole, both being possessed in the right of the testator2. So if one dispose of all the goods of the testator without the other. an executor is not entitled in his own right, but in auter droit), to the property of the deceased, the goods of a testator, in the hands of his executor, cannot be seized in execu
Per Sir J. Strange, M. R. 2 Ves.
267. y Willand v. Fenn, see note (8).
z Pannell v. Fenn, 1 Rol. Abr. 924.(O)
pl. 1 Gouldsb. 185. S. C.
(7) So where an executor, before probate, files a bill in a court of equity, and afterwards proves the will, such subsequent probate makes the will good. Per Talbot, C.: 3 P. Wms. 357. So where plaintiffs, after bill filed, took out letters of administration, and charged the same by way of amendment to the bill, having obtained an order for such amendment, it was holden good; for the letters of administration, when granted, relate to the time of the death of the intestate. Humphreys v. Humphreys, 3 P. Wms. 351.
(8) In Willand v. Fenn, E. 11 G. 2. B. R. MSS. a question arose, whether the release of one administrator would bind his companion ? The case was argued in E. 11 G. 2. when the court, entertaining doubts, directed a second argument. The second argument was heard Trin. 11 and 12 G. 2. when Lee, C. J. expressed a strong opinion in favour of the affirmative, observing, that it was extremely difficult to form a distinction between executors and administrators upon any reasonable foundation ; and that although it had not ever been determined at law, that the administration survived, yet having been so determined in equity, in Adams v. Buckland, 2 Vern. 514. cited 2 P. Wms. 121. n. and by Lord Talbot in the case of Hudson v. Hudson, he thought those authorities were so strong, that they ought not to be departed from. The other judges were inclined to the same opinion, but as the case was new, and of general consequence, they ordered it to be argued again. According to Sir J. Strange, M. R. in Jacomb v. Harwood, 2 Ves. 267. the case was decided in the affirmative after the third argument; but, from a MS. note in my possession, it appears to have been compromised before the third argument took place. In Mr. J. Gundry's MS. note, 13 Gundr. 33. a. it is said to have been adjudged for defendant; that is, that the release of one administrator did bind his companion.
tion for the
debt of the executor (9). But if an executrix use the goods of her testator as her own, and afterwards marry, and then the goods are treated as the goods of the husband, they may be taken in execution for the husband's debtd. Executors and administrators have a joint interest in the estate of the deceased. Hence, if there are two or more executorse or administrators, and one or more of them die, the administration of the estate of the deceased belongs to the survivor or survivors; and it seems that an action
be brought by a surviving administrator without procuring a new grant of letters of administrations.
Formerly, where testators, by their wills, appointed executors without making express disposition of the residue of their personal estate, the executors became by law entitled to the whole residue, and courts of equity to a certain extent followed the law; but now by stat. 11 G. 4. and 1 W. 4. c. 40, executors shall be deemed by courts of equity to be trustees for persons entitled under the statute of distributions, in respect of residue not expressly disposed of, unless it shall appear by will or codicil, that the executor was to take the same beneficially. But by s. 2. it is provided, that the executor's right shall not be affected where there is not any person entitled to the residue.
A probate, as long as it remains unrepealed ", cannot be impeached in the temporal courts. Hence, payment of money to an executor, who has obtained probate of a forged will, is a discharge to the debtor of the intestate; although the probate be afterwards declared null, and administration be granted to the intestate's next of kin; for the law will not compel a person to pay a sum of money a second time, which he has once paid under the sanction of a court having competent jurisdiction (10). The spiritual court has not only jurisdiction over wills, but exclusive jurisdictioni; and they are not exceeding that jurisdiction, when they order the will to be brought in. In an action of indebitatus assumpsitk, brought by the plaintiff, as executor of J. S. deceased, for money due to the testator, but received by the defendant, after the testator's death, it appeared in evidence, that before the will was found, administration had been granted, and that the administrator had made a warrant of attorney to the defendant to receive the money, which he had done accordingly, and had paid it over to the administrator without notice of the will. Holt, C. J. was of opinion, that although all acts done by an administrator where there is a will, are void, and consequently in this case an action might have been maintained against the administrator, yet the defendant, having paid over the money without notice of the will, was not liable (11). The property of a deceased personl vests in his executor from the time of his death; in an administrator from the time of the grant of the letters of administration; and therefore, where A. took out letters of administration under a will, by which he was appointed executor, and after notice of a subsequent will, sold the goods of the testator: it was holden that the rightful executor in an action of trover was entitled to recover the full value of the goods sold, and that A. was not entitled, in mitigation of damages, to shew that he had administered the assets to that amount. See ante
c Farr v. Newman, 4 T. R. 621. Bul- & Per Sir J. Strange, M. R. 2 Ves. 268. ler, J. dissentiente.
cites Rastal, 560, which was replevin d Quick v. Staines, i Bos. and Pul. by a surviving administrator but no 293.
judgment. e 3 Atk. 510.
h Allen v. Dundas, 3 T. R. 125. f Hudson v. Hudson, Ca. T. Talb. 127.
Adams v. Buckland, 2 Vern. 514.
(9) “If an executor become bankrupt, the commissioners cannot seize the specific effects of his testator.' Per Lord Mansfield, C. J. 3 Burr. 1369.
(10) In like manner, it is no defence to an action for a debt due, that the plaintiff is a trader, and has committed an act of bankruptcy,
In what Cases the Executor's Interest is transmissible.The Interest vested in B., the sole executor named in the will of A., is (if B. has provedm the will) transmissible to C. the executor of B.; that is, the executor of an executor having proved the will is the executor or personal representative of the first testatork. By 25 Edw. 3. stat. c. 5. “Executors of executors shall have actions of debts, accounts, and of goods carried away of the first testators; and execution of the statutes merchants, and recognizances made in courts of record to first testator, in the same manner as the first testator should have had if he were living: and the executors of executors shall answer to others for as much as they have recovered of the goods of the first testators, as the first executors should do, if they were living.” The executor of the administrator of A. is not the personal representative of A.'; for the administrator of A. is merely the officer of the ordinary, in whom the deceased has not reposed any trust, and, therefore on the death of such administrator, it results back to the ordinary to appoint another. Neither is the administrator of the executor of A. the personal representative of Am. In these cases, when the course of representation from executor to executor is interrupted by an intestacy, it becomes necessary that the ordinary should grant a new administration of the goods of the deceased, not administered by the former executor or administrator, as the case may be. Such administrator, usually termed an administrator de bonis non, is the legal personal representative of the deceased.
i Exp. Law, 2 Ad. & Ell. 47.
London sittings, M. 1705. Ld. Raym.
1 Wooley, executrix of Wooley de
ceased, against Clark and another,
5 B, and A. 744. m Hayton v. Wolfe, Cro. Jac. 614.
of which the defendant had notice, no commission having issued nor proceedings had for that purpose ; for though voluntary payments under such circumstances are not protected, yet payments enforced by coercion of law are valid against the assignees, in case any commission should afterwards be taken out. Foster v. Allanson, 2 T. R. 479.
(11) Trevor, C. J. had ruled differently in Jacob v. Allen, Lon. don Sittings, M. 2 Ann. Salk. 27.; but see Sadler v. Evans, 4 Burr. 1986. where Lord Mansfield, C. J. expressed his disapprobation of the decision in Jacob v. Allen, and recognised Pond v. Underwood. When the action for money had and received shall be brought against the principal, and when against the agent, see ante, p. 88. n. (31).
Where an administration de bonis non is necessary.— I shall here briefly enumerate the cases where an administration de bonis non is necessary: 1. Where the executor of the deceased, having proved the will, dies intestate. N. If an executor die before probate", although he should have administered part of the personal estate of the testator, an immediate administration must be granted. 2. Where there are several executors, and the surviving executor, having proved the will, dies intestate. 3. Where an administrator dies before he has administered the whole personal estate of the deceased. In an assumpsit by an administrator de bonis nonp, the promise was alleged in the declaration to have been made to J. H. the first administrator of the intestate, without stating any promise to the plaintiff. After verdict for the plaintiff, an exception was taken in arrest of judgment, that it was not sufficient to allege the promise made to the former administrator, between whom and the plaintiff there was not any privity; and that it ought to have appeared on the record, that the promise was made either to the intestate or the plaintiff. Kenyon, C. J. and Ashhurst, J. refused to grant a rule to shew cause, observing that there was a privity of estate in law between the former administrator, from whom the plaintiff deduced his title, and the plaintiff.
k Bro. Abr. tit. Administration, pl. 7.
n Per Holt, C. J. Salk. 305.
Stat. 17 Car. 2. c. 8. made perpetual by stat. 1 Jac. 2. c. 17, 8.5.—“Where any judgment after a verdict shall be had, by or in the name of any executor or administrator, in such case an administrator de bonis non may sue forth a scire facias and take execution upon such judgment.” And it has been holden to be within the equity of this statute, that an execution commenced by an administrator may be perfected by an administrator de bonis non9.
III. Of limited or temporary Administrations.
1. During the Minority of Executor.-An infant, however young, may be an executor; but administration shall be granted to another during his minority (12). At the common law, such administration determined as soon as the infant executor attained the age of seventeen years, for then the infant was considered as capable of administering. But now, by stat. 38 Geo. 3. c. 87. s. 6. reciting, that inconveniences had arisen from granting probates 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, or such other person as the spiritual court shall think fit, until such infant shall attain the age of twenty-one years.” A general administrator, ratione minoris ætatis, shall not only have actions to recover debts and duties, but may also grant leases". An administrator, durante minori ætate, of an administrator may act and sue until the administrator be of the age of twenty-one years $; for administrators are by the statute, and one is not a legal person in
s Freke v. Thomas, Salk. 39.
q Clerk v. Withers, Salk. 323. r 6 Rep. 67. b.
(12) See the form of this administration in Prince's case, 5 Rep.