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non-payment of the money awarded, he cannot defend himself against it, by suggesting a deficiency of assets; for a submission to arbitration by a personal representative is considered as a reference, not only of the cause of action, but also of the question, whether or not he has assets. And when the arbitrator awards that the personal representative do pay the amount of the plaintiff's demand, it is equivalent to determining as between those parties, that the personal representative had assets to pay the debt. But mere submission to arbitration is not of itself an admission of assets ; for in a case where the arbitrator only ascertained the amount of the demand, without ordering the administrator to pay it, it was holden, that the administrator might plead plene administravit.

By stat. 3 & 4 W. 4. c. 104. [29 Aug. 1833] entitled an Act to render Freehold and Copyhold Estates Assets for the Payment of simple Contract Debts, after reciting that it is expedient that the payment of all debts should be secured more effectually than is done by the laws now in force ; it is enacted “that from and after the passing this act, when any person shall die, seised of or entitled to any estate or interest in lands, tenements, or hereditaments, corporeal or incorporeal, or other real estate, whether freehold, customaryhold, or copyhold, which he shall not, by his last will, have charged with, or devised subject to the payment of his debts, the same shall be assets to be administered in courts of equity for the payment of the just debts of such persons, as well debts due on simple contract as on specialty; and that the heirs at law, customary heirs, devisees of such debtor, shall be liable to all the same suits in equity as the suit of any of the creditors of such debtor, whether creditors by simple contract, or by specialty, as the heirs or devisees of any persons who died seised of freehold estates, were before the passing of this act liable to in respect of such freehold estates, at the suit of creditors by specialty in which the heirs were bound : provided, that in the administration of assets by courts of equity under this act, all creditors by specialty, in which the heirs are bound, shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demands."

g Pearson v. Henry, 5 T. R. 6.

VII. Of Actions by Executors and Administrators.

1. What Actions may be brought by Executors and Administrators.—By the common law, executors might have maintained actions to recover debts due to their testator, but they could not maintain actions for a wrong done to their testator in his life-time; e. g. a trespass in taking his goods, &c. But by stat. 4 Edw. 3. c. 7. reciting, that in times past executors had not had actions for a trespass done to their testators, as of the goods of the said testators carried away in their life, it is enacted, “that the executors in such cases shall have an action against the trespassers, in like manner as they, whose executors they are, should have if they were living.” This statute has been expounded largely, with respect to the persons and the actions.

With respect to the personsh, it has been holden, that an administrator is within the equity of this statute, and shall have trespass for goods carried away in the life-time of the intestate. With respect to the actions, it has been resolved, that where, upon a church becoming void, the bishop collated wrongfully and the patron died, the executor of the patron might by the equity of this statute maintain a gaare impedit (30). So an executor may have an action of trover for the conversion of the testator's goods in his life-timek; or an action of debt on stat. 2 and 3 Edw. 6. c. 13. for not setting out tithes due to the testator!; or an action on the case against the sheriff for a false return made in the life of the testator to a fi. fa. viz. that he had levied only so much, part whereof he had sold, and part remained in his hands for want of purchasersm; or an action of debt on a judgment against an executor, suggesting a devastavit in the life-time of plaintiff's testator. In like manner, it has been holden, that an administrator may maintain an action against the bailiff of a liberty for executing a fi. fa. and removing the goods off the premises, before the landlord (the intestate) was paid a year's rent, pursuant to stat. 8 Ann. c. 17o. Formerly there was not any remedy provided by law, for injuries to the real estate of any person deceased, committed in his life-time; but now by stat. 3 & 4 W.4. c. 42. s. 2. “ an action of trespass, or trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased for any injury to the real estate of such person committed in his life-time, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person; and provided such action shall be brought within one year after the death of such person; and the damages when recovered, shall be part of the personal estate of such person.” And by stat. i Vict. c. 26. s. 6, (new act for amending of laws with respect to wills,) if no disposition by will shall be made of any estate, pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir; if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary, or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed, as the personal estate.”

b Smith v. Colgay, Cro. Eliz. 384.
i 4 Leon. 15. Case 53. cited in Le Ma-

son v. Dixon, Sir W. Jones, 174, 5. k Rutland v. Rutland, Cro. Eliz. 377.

1 Moreton's case, 1 Ventr. 30.
m Williams v. Grey, Lord Raym. 40.
n Berwick v. Andrews, Ld. Raym.973.
o Palgrave v. Windham, Str. 212.

(30) Ejectio firma will lie at the suit of an executor for the ouster of his testator. 7 H. 4. 6. b. Bro. Abr. Exor. 45. S. C.

One of two executors having alone proved the will, had received a debt due to the testator, which by his will was appropriated to the payment of specific legacies to his grandchildren with interest thereon, and afterwards permitted the money to be lent out to a third person, by whom it was paid to A.' A. on being applied to by the executor, acknowledged that he had received the money, and that it belonged to the testator's grand-children, but refused to pay it over to the executor. It was holden P, that both executors might join in an action brought to recover the money against A. It was holden also, that it does not amount to a devastavit, if an executor lends out, on private security, money belonging to the testator, but not wanted for the immediate uses of the will, provided he exercises a fair and reasonable discretion on the subject.

p Webster v. Spencer, 3 B. & A. 360.

By stat. 11. Geo. 2. c. 19 (31). s. 15. “Executor or administrator of tenant for life, on whose death any lease of lands &c. determined. shall, in an action on the case, recover from the under tenant a proportion of the rent reserved, according to the time such tenant for life lived of the last year, or quarter of a year, or other time in which the said rent was growing due." By the common law, an executor or administrator could not have an action of account; because it was founded on a matter in the privity of the testator; but now, by stat. 13 Edw. 1. c. 23. “An executor shall have an action of account upon an account with his testator.” By 25 Edw. 3. stat. 5. c. 5. “Executors of executors shall have actions of debts, accounts, and of goods carried away of the first testators, in the same manner as the first testator should have bad.” Administrators derive their authority to bring actions from the stat. 31 Edw. 3. stat. 1. c. 11. which provides, that “where a man dies intestate, the ordinary shall depute the next and most loyal friends (32) to administer his goods, which deputies may bring actions to demand and recover, as executors, the debts due to the intestate.” An administrator cannot have an action for a breach of promise of marriage to the intestate, where no special damage is alleged".

John Franklin, after devising his real estate bequeathed all the monies which he might have at the time of his decease, in the three per cent. consolidated bank annuities unto C. B., and then devised and bequeathed the residue of his real and personal estate, subject to the payment of debts and legacies, to Thomas Franklin, and appointed him sole executor. The executor finding a large sum in the three per cent. consolidated bank annuities standing in the name of the testator, demanded permission of the Bank to transfer the whole of the said annuities to such persons as he should think fit, to enable him to pay debts and legacies; the Bank refused, on the ground that the stock was specifically bequeathed; whereupon the executor filed a bill in the Court of Chancery to compel the Bank to allow the executor to sell and transfer

9 2 Inst. 404.

r Chamberlain v. Williamson, 2 M. &

S. 408.

(31) See 4 & 5 W. 4. c. 22. amending this act, ante, p. 611, 12.

(32) A subsequent statute, 21 H. 8. c. 5. s. 3., in case of intestacy or executors refusing to prove, directs the ordinary to grant administration to the widow or next of kin; and where two or more stand in equal degree, to accept which he pleases.

any debts

the stock. No evidence was given in the suit of being due from the estate at the time of the demand ; upon a case sent by the Chancellor to B. R. the question was, whether the executor had any right of action against the Bank for not permitting the transfer? and that court was of opinions the executor had such right.

2. Executors and Administrators must join in bringing Actions.—It is a general rule, that, if there are two or more executors, and one proves the will, they must all join in bringing actions; and if they do not, the defendant may plead in abatement, that there are other executors living not namedt. In this plea it is not necessary to aver, that the executors not named have administered u; because they may administer at their pleasure. So where there are two or more administrators, it is necessary that they should join in bringing actions. And this rule, viz. that all the executors shall join, holds even where some of them refuse before the ordinaryy; because the refusing executors may come in at any timez, and administer, notwithstanding their refusal, either during the lives of their co-executors, who have proved, or after their deatha. The like law is, where some of the executors are infants; they must all join, and they may all appear by attorney: for those of full age may appoint an attorney for those within ageb. So where there are two executors, one of full age, and the other within age; and the executor of full age is appointed administrator, durante minori ætate of the other executor. A. made B. and C., who was an infant under seventeen, executors; B. only proved the will and brought debt as executor against defendant (omitting C). Plea in abatement, that C. was made an executor with B., and is yet in full life, not named", &c. Replication, that C. was of the age of one year, that B. proved the will, and had administration committed durante minori ætate, and that C. is still under seven years of age. On demurrer, judgment for the defendant; for, although by the administration committed durante minori ætate, B. hath the full power, yet C. the infant, being executor, ought to be named. Action on the case for an injury alleged to be done

s Franklin v. Bank of England, 9 B.

and C. 156. t Reg. 140. b. Bro. Abr. Exors. pl. 69.

Fitz. Abr. Exors. pl. 48. u 41 E. 3. 22. a. x Reg. 140. b. y Hensloe's case, 9 Rep. 36. b. See

also 3 Atk. 239. 2 Bro. Exors, 117. Fitz, Abr. Exors, 26.

a 21 Edw. 4. 23. b. 24. a. recognised

by Holt, C. J. in Wankford v, Wankford, Salk. 307, and by Tenterden, C. J. in Walters v. Pfeil, M. and

Malk. 363. b Foxwist v. Tremaine, 2 Saund. 212. c Smith v. Smith, Yelv. 130. I Brownl.

101. S. C.

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