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Again, this re-couping in damages can only be allowed to the executor de son tort, in cases where there are sufficient assets to satisfy all the debts of the deceased; for otherwise the rightful executor or administrator would be precluded, not only from giving preference to one creditor over others of equal degree, which is one of the privileges of his office, but also from satisfying his own debt, in priority to all those

of equal degree, by way of retainer (b). What effect the It remains to be considered, what effect the acts of an acts of an executor de son

executor de son tort may have on the goods of the deceased, tort shall have with relation to the rightful executor or administrator and on goods aliened by him. the alienee of the executor de son tort.

It is laid down in Coulter's case (c), that “it is clear that all lawful acts, which an executor de son tort doth, are good.” So it was said in Graysbrook v. Fox, (d), by Walsh, J., quod alii duo Justiciarii concesserunt, that if an administrator under a grant which is void (by reason of there being a Will and executor) alienes the goods of the deceased to pay the funeral, or debts, the sale is good and indefeasible. And Lord Holt, in Parker v. Kett (e), laid down that a legal act done by an executor de son tort shall bind the rightful executor, and shall alter the property; and that the reason is, because the creditors are not bound to seek further than him who acts as executor ; therefore, if an executor de son tort pays 1001. of the testators' in a bag to a creditor, the rightful executor shall not have trover against the creditor ().

But when it is thus generally laid down, that payments made in the due course of administration, by one who is

authorities in favour of the right of
an executor de son tort to re-coup,
in damages, payments made in a
due course of administration, were
not cited in the

argument this
case, nor was the point ment

aed : Ideo quære, whether it must la understood as overruling them.

(6) Wentw. Off. Ex. c. 14, p. 335, 14th edit. Mountford v. Gibson, 4 East, 453, in the judgment

of Lawrence, J. 2 Black. Comm,
507, 8.

(c) 5 Co. 30 b.
(d) Plowd. 282.

(e) 1 Lord Raym. 661; S. C. 12 Mod. 471.

US) See also the judgment of Le Blanc, J. in Mountford v. Gibson, 4 East, 454, and of Littledale, J. in Oxenham v. Clapp, 1 B. & Ad. 313.

executor de son tort, are good, that must be understood of cases where such payments are made by one who is proved to have been acting at the time in the character of executor, and not of a mere solitary act of wrong, in the very instance complained of, by one taking upon himself to hand over the goods of the deceased to a creditor. Thus in Mountford v. Gibson (g), the goods in question had originally been sold by the defendant to the intestate in his lifetime ; on his death, they not having been paid for, on application to the intestate's widow for that purpose, she delivered them back to the defendant, in satisfaction of his demand: No other acts appeared to have been done by the widow, to show that she had before taken upon herself to act as executrix : The administrator brought trover for the goods against the creditor ; on whose behalf, it was contended, that he had a right to protect himself in the action under such payment by the widow as executrix de son tort: But the Court of King's Bench held on the ground above stated, that this was no defence. Accordingly in Thomson v. Harding (h), it was laid down in the judgment of the same Court that the law is not that as against the true representative, every payment from the assets of the deceased shall be valid, if made by a person who has so intermeddled with the property of the deceased as to render himself liable to be sued as executor de son tort : But that where the executor de son tort is really acting as executor, and the party with whom he deals has fair reason for supposing that he has authority to act as such, his acts shall bind the rightful executor, and shall alter the property.

It must further be observed that the act of an executor de son tort is good against the true representative of the deceased only where it is lawful, and such an act as the true representative was bound to perform in the due course of administration (i).

(9) 4 East, 441.
(h) 2 E. & B. 630.

(i) Buckley v. Barber, 6 Exch. 164.

How far an Where a man has acted as executor de son tort, and afteradministrator is bound by his wards obtains letters of administration, a question may arise, executor de son how far he is bound in his character of rightful administrator, tort.

by his own acts done while executor de son tort. This subject will be considered hereafter, together with the question as to what may be done by an administrator before letters of administration are granted (k).

(k) Pos, Pt. 1. Bk. v. Ch. 1. $ 11,

CHAPTER THE SIXTH.

OF THE EXECUTOR'S REFUSAL OR ACCEPTANCE OF THE OFFICE.

SECTION I.

cannot be com

When and how the Office may be refused. THE office of executor being a private one of trust, named Executors by the testator, and not by the law, the person nominated pelled to accept may refuse, though he cannot assign the office (a); and even the office : if in the lifetime of the testator he has agreed to accept the office, it is still in his power to recede (b). But though the executor cannot be compelled to accept but may be

convened by the executorship, whether he will or not, yet by stat. 21 the Ordinary Hen. VIII. c. 5, s. 8, the Ordinary may convene before to accept or

refuse. him (c) any person made and named executor of any testament, “to the intent to prove or refuse the testament; and if he neglects to appear, he was, previous to the stat. 53 Geo. III. c. 127, punishable by excommunication for a contempt (d); and may now be pronounced contumacious, and be dealt with in the mode substituted by that statute, s. 2, for excommunication (e).

The time allowed to the person named executor, to deliberate whether he will accept or refuse the executorship, is uncertain, and left to the discretion of the Judge, who has used, at his pleasure, not only within the year, but within a month or two, to issue his citation (f). And now, if the

(a) Bac. Abr. Exors. (E.) 9. See Douglas v. Forrest, 4 Bingh. 704, in the judgment of Best, C. J.

(6) Doyle v. Blake, 2 Scho. & Lef. 239.

(c) See stat. 1 Edw. VI. c. 2, as to the form of the citation.

(d) Bro. Executors, pl. 90.

Wentw. Off. Ex. 88, 14th edit.
Treat. on Eq. Bk. 4, Pt. 2, c. 1, s. 4,

(e) See stat. 2 & 3 W. IV. c. 93.
(Act for enforcing process upon
contempts in the Courts Ecclesias-
tical.)

(f) Swinb. Pt. 6, s. 4. Godolph, Pt. 2, c. 19, s. 1.

VOL. I.

R

executor administer, he will by stat. 55 Geo. III. c. 184, s. 37, be liable to a penalty of 1001. and 10l. per cent. on the

duty, if he omit to take probate within six months. Letters ad If he appear, either on citation, or voluntarily, and pray colligendum.

time to consider whether he will act or not, the Ordinary

may, though the practice seems now obsolete, grant letters administration ad colligendum, in the interim (g). But if he appear, and

refuse to act, or fail to appear to the above-mentioned process, administration cum testamento annexo will be granted to another (h).

cum testamento annexo.

In what cases Although, as above stated, an executor has his election an executor may refuse : whether he will accept or refuse the executorship, yet he

may determine such election, by acts which amount to an he cannot if he administration. For if he once administer, it is considered once administer.

that he has already accepted of the executorship, and the Ordinary may compel him to prove the Will (i). And by stat. 55 Geo. III. c. 184, s. 37, as before mentioned, if he administer, and omit to take probate within six months after the death of the deceased, &c. he will forfeit 1001. and 101. per cent. on the duty.

If an executor of an executor intermeddle in the administration of the effects of the first testator, he cannot refuse the administration of the effects of the latter: But it has been said that he may take upon himself the latter, and refuse the former (k). However the established practice of the Prerogative Court is to the contrary (1).

(9) Broker v. Charter, Cro. Eliz. loe's case, 9 Co. 37, b. Treat. on 92. Treat. on Eq. Bk. 4, Pt. 2, c. Eq. Bk. 4, Pt. 2, c. 1, s. 3. Pytt 1, s. 4. Toller, 41.

v. Fendall, 1 Cas. temp. Lee, 553. (h) Swinb. Pt. 6, s. 1, pl. 3, s. 2, Long v. Symes, 3 Hagg. 774. pl. 3, 4. See as to administration (k) Shep. Touch. 464. Hayton cum testamento annexo, generally, v. Wolfe, Cro. Jac. 614. S. C. post, Pt. 1. Bk. v. Ch. III. $ 1. Palmer, 156. Hutton, 30. Wank

(i) Godoph. Pt. 2, c. 19, s. 2. ford v. Wankford, 1 Freem. 520. Swinb. Pt. 6, s. 2, pl. 6, s. 22, pl. 1. 1 Salk. 309. Bro. Exors. pl. 90. Wickenden v. (1) In the goods of Perry, 2 Thomas, 2 Brownl. 58. Graysbrook Curt. 655,-Lord Holt certainly v. Fox, 1 Plowd. 280, 280, a. Hens- laid down in Wankford v. Wank

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