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appointment in this case must be treated, as far as regarded the legacy duty, as a general and absolute power, yet that no duty was payable on the probate of the Will of Judith A. Platt in respect of the residuary estate of her father : Their Lordships stated that they were aware that this opinion was directly opposed to the decision of the Court of Exchequer in the Attorney-General v. Staff (n), as also to the previous case of Palmer v. Whitmore (c): But that those cases both proceeded on the ground that property subject to a general power of appointment forms part of the property, “ for and in respect of which the probate is granted;" and it appeared to them impossible to reconcile that doctrine with the subsequent decision of the House of Lords in the Attorney-General v. Hope (P), inasmuch as it was thereby decided that the probate is granted in respect of that property only, which, but for the Will, the Ordinary would have been entitled to administer; and it being quite clear that neither the Ordinary nor the executor ever could have administered any part of this property, their Lordships could not hold that it was property for or in respect of which probate was granted: Their Lordships added, that independently of the authority of the Attorney-General v. Hope, there would be many serious difficulties resulting from the doctrine of the Attorney-General v. Staff, which did not seem to have occurred to the Court when that case was decided : inasmuch as the executor is the party who is to pay the duty, and the only funds to which he can resort for reimbursement are the general assets: What then was he to do in a case like the present, where the fund to be appointed is very large, and the general assets very small ? It might, and probably would happen in the present case, that the duty would far exceed the whole of the assets which the executor could ever possess; and the consequence would be that he never would be able to prove at all : It was plain, from the nature of the provisions of the stat. 55 Geo. III. c. 184, that the Legislature did not con(n) Ante, p. 550.

(0) Ante, p. 550. (P) Ante, p. 548.

template the possibility of a case in which the duty could ever eventually exceed the amount of the assets realized by the executors; as it certainly might if the Attorney-General v. Staff was followed.

This opinion of the Barons was afterwards confirmed by the decree of Lord Langdale (q), and finally by the decision of the House of Lords (r).

crown can

Whether if the If after the probate duty has been properly paid, the executor pro

executor or administrator should obtain a return of a part cures a return of probate duty of it, under the statute (s), by fraud on the Commissioners, a on false representations, the question would arise, whether the debt for the duty must be

considered as remitted to the same situation in which it revert to the assets for re

originally stood; or whether, as the debt was once actually payment.

paid, and the commissioners have allowed themselves to be deluded, the Crown has not lost its original right against the estate. This point arose in Hicks v. Keat (t), where pending an administration, and before the accounts were taken, the Attorney-General presented a petition for payment out of the assets of a sum which, under false representations, had been returned to the administrator as overpaid in respect of probate duty : And Lord Langdale held that the application was, at all events, premature; and that it was, therefore, unnecessary to decide the point, which, however, his Lordship appeared to treat as one of importance and difficulty.

(9) 3 Beay. 257.

(3) Drake v. Attorney-General, 10 Cl. & Fin. 257.

(s) See ante, p. 536, 537.
(t) 3 Beav. 141.

END OF PART THE FIRST.

PART THE SECOND.

OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR.

BOOK THE FIRST.

OF THE TIME WHEN THE ESTATE OF AN EXECUTOR OR ADMI

NISTRATOR VESTS : AND OF THE QUALITY OF THAT ESTATE,

In considering the nature of the estate which an executor or administrator has in the property of the deceased, it is proposed to inquire, 1. At what time his estate vests; 2. The quality of his estate.

CHAPTER THE FIRST.

OF THE TIME WHEN THE ESTATE OF AN EXECUTOR OR

ADMINISTRATOR VESTS.

ecutor.

AS the interest of an executor in the estate of the deceased Estate of exis derived exclusively from the Will (a), so it vests in the executor from the moment of the testator's death (6). Thus where the demise by an executor, the lessor of the plaintiff in ejectment, was laid two years before he had proved the Will under which he claimed, it was held good (e). So where a testator had given a bailiff authority to distrain, but died almost immediately before the distress was taken; and, after it had been taken in his name, his executor ratified the

(a) Ante, p. 255, 256.

(6) Com. Dig. Administration, (B. 10.) Woolley v. Clark, 5 B. &

A. 745, 746.

(c) Roe v. Summersett, 2 W. Black, 692.

Estate of administrator.

distress; it was held that the plaintiff might well avow as the bailiff of the executor: because the rent was due from the estate, and the law knows no interval between the testator's death and the vesting of the right in his executor: as soon as he obtains probate, his right is considered as accruing from that period (d).

On the other hand an administrator derives his title wholly from the Ecclesiastical Court: he has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant (e).

Accordingly, no right of action accrues to an administrator until he has sued out letters of administration. In an action on a bill of exchange by an administrator, where the bill was accepted after the death of the deceased, and the acceptance, and also the day of payment, was more than six years before the commencement of the suit, but the granting of administration was less than six years before, it was held that the Statute of Limitations began to run from the date of administration, and not from the day of payment, since there was no cause of action until the administration was granted (f). So where to a declaration in trover by an administrator, alleg. ing the grant of letters of administration to the plaintiff, and that the defendant knowing the goods to have been the property of the intestate in his lifetime, and of the plaintiff as administrator since his death, afterwards, and after the death of the intestate, to wit, on, &c. converted the same goods, it was pleaded that the defendant was not guilty of the premises within six years, such plea was held bad upon special demurrer, on the ground, that although it might be true that the defendant was not guilty within six years, yet the cause of action might have accrued to the plaintiff by the grant of letters of administration within that period (g).

(d) Whitehead v. Taylor, 10 A. Stephenson, 2 Salk. 421. Perry v. & E. 210. 2 Per. & Dav. 367. Jenkins, 1 M. & Cra, 118. Post, (e) 5 B. & A. 745, 746.

Pt. v. Bk. I. Ch. I. (f) Murray v. E. I. Company, 5. (9) Pratt v. Swaine, 8 B. & C. B. & A. 204. See also Cary v. 285. S. C. 1 Mann, & Ryl, 351.

The proposition, however, respecting the vesting of an administrator's interest, must be taken with some qualification ; for it seems clear that, for particular purposes, the letters of adıninistration relate back to the time of the death of the intestate, and not to the time of granting them (h). Thus, although it has been held that detinue cannot be maintained by an administrator against a person who has got possession of the goods of the intestate since his death, but has ceased to hold them prior to the grant of administration (i), yet an administrator may have an action of trespass (k) or trover for the goods of the intestate taken by one before the letters granted unto him; otherwise there would be no remedy for this wrong doing (1). So where goods had been sold after the death of an intestate and before the grant of letters of administration, avowedly on account of the estate of the intestate, by one who had been his agent, it was held that the administrator might ratify the sale and recover the price from the vendee in assumpsit for goods sold and delivered (m). And accordingly it should seem that whenever any one acting on behalf of the intestate's estate, and not on his own account, makes a contract with another before any grant of administration, the administration will have relation back, in order not to lose the benefit of the contract, so that the administrator may sue upon it, as made to himself (n). Further, it has been held on the bare doctrine of relation, that in a case where the administrator might maintain trover for a conversion

() Godolph. Pt. 2, c. 20, s. 6. 2 Roll. Abr. 399, tit. Relation, (A.) pl. 1. Bro. Abr. Relation, 29, 46. 2 Roll. Abr. 554, Trespass, (T.) pl. 1. Fitzh. Abr. Administrator, 2. Middleton's case, 5 Co. 28 b., and Mr. Fraser's note (c) to the last edition. Com. Dig. Administration, (B. 10.) Wentw. Off. Ex. 115, 116, 14th edition.

(3) Crossfield v. Such, 8 Exch. 825.

(k) Tharpe v. Stallwood, 5 M. & Gr. 760.

(1) Long v. Hebb, Style, 341, by Rolle, C. J. 2 Roll. Abr. 399, tit. Relation, (A.) pl. 1. Anon. Comberb. 451. Foster v. Bates, 12 M. & W. 233, per Parke, B.

(m) Foster v. Bates, 12 M. & W. 226.

(n) Bodger v, Arch, 10 Exch. 333.

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