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between the death of the intestate and the grant of administration, he

may

waive the tort and recover as on a contract : Thus, where money belonging to an intestate at the time of his death, or due to him and paid in after his death, or proceeding from the sale of his effects after his death, has, before the grant of administration, been applied by a stranger to the payment of the intestate's debts and funeral expenses, the administrator may recover it from such stranger as money had and received to his use as administrator(o). So, it should seem, the grant of administration will have the effect of vesting leasehold property in the administrator by relation, so as to enable him to bring actions in respect of that property, for all matters affecting the same subsequent to the death of the intestate, and so as to render him liable to account for the rents and profits of it from the death of the intestate (p). Again, although an executor de son tort cannot plead a retainer of his own debt, yet if, even pendente lite, he obtains administration, he may retain : for

a

(0) Welchman v. Sturgis, 13 trator could not justify a distress for Q. B. 552.

rent, (accrued out of a chattel term (P) Rex v. Horsley, 8 East. 410, of the intestate after his death) in Lord Ellenborough's judgment. made before the grant of the adSo it is laid down in Selw. N. P. ministration, on the ground, that, 717, 6th edition, that in ejectment although letters of administration by an administrator, the demise will operate by relation, to enable may be laid on a day after the an administrator to recover a chattel intestate's death, but before admi- property from the time of the death nistration granted; for the adminis- of the intestate, yet it does not tration, when granted, will relate effectuate a legal proceeding, taken back, and show the title to have before administration granted, in been in the administrator from the order to recover such property. death of the intestate. This point See, however, Bacon v. Simpson, 3 was expressly decided accordingly, Mees. & Wels. 87, in which case by the Court of K. B. in Ireland, an administratrix, before she had after a full consideration, in Patten taken out administration, had conv. Patten, T. 3 W. 4. 1 Alcock & tracted to assign a term for years Napier, 493 : and Bushe, C. J., in the intestate in a leasehold house ; delivering judgment, regards this and Parke, B., was of opinion, that decision as reconcileable with that an allegation, that she was lawof Keane v. Dee, (K, B. Ireland, fully possessed of the term at the June, 1821, 1 Alcock & Napier, time of the making of the contract, 496, note (1), ) in which case it . could not be supported. See also had been holden that an admipis.

ante, p. 354.

of

it legalizes those acts which were tortious at the time (9). And there has been already occasion (r) to point out other acts of an administrator before administration granted, which the relation of the letters in some measure renders valid. But the relation of the grant of administration to the death of the intestate, shall not, it is said, divest any right legally vested in another between the death of the intestate and the commission of administration. Thus, in Waring v. Dewbury (s), a landlord, who had rent due to him, died intestate ; after which the plaintiff in the action sued out execution against the defendant, who was the tenant, and levied the debt upon him; after this, administration was committed to J. S. ; who thereupon came into the Court, and moved for a rule on the sheriff to pay him a year's rent out of the money levied, pursuant to the 8 Ann. c. 17, urging, that though he was not administrator at the time of serving the execution, yet as soon as the administration was committed, it had relation to the death of the intestate, and he might bring trover for goods taken between the death of the intestate and commission of the administration : But the Court held, that relations, which are but fictions of law, should never divest any right legally vested in another, between the death of the intestate and the commission of administration ; and the plaintiff in the action having duly served his execution, before the administrator had a right to demand his rent, it was not reasonable the plaintiff should be defeated by any relation whatsoever ; they did not in that case deny the authorities which gave the administrator trover, but went on a distinction between relations that are to defeat lawful acts, and such as are to punish those that are unlawful (t).

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Relation back There appears, in some instances, to be the same relation of title where the deceased

back of the title of the personal representative in cases had only a where the deceased had only a special property in the special property. goods as where he had the absolute property. Thus,

if an uncertificated bankrupt (or a bankrupt under a second commission, who has not paid fifteen shillings in the pound) acquires goods after his bankruptcy, and dies possessed of them, having been allowed to retain possession by the assignees, his administrator may maintain trover against a third party who has sold the goods between the period of the death of the intestate and the grant of the administration ; for there was a good title in the bankrupt as against all the world but the assignees, and this title passes to his administrator (u). But there is no such relation back as to chattels in which the deceased had no personal interest, but held merely as the administrator of another: The bare circumstance of his dying in possession will not enable his personal representative to maintain trover even against a mere wrongdoer; for it will be a good defence that the right to the goods in question has devolved on the administrator

de bonis non of the original intestate (x). 3 & 4 W. IV.

By stat. 3 & 4 Wm. IV. c. 27 (entitled An Act for the c. 27. Admin- limitation of Actions and Suits relating to real property, dc.), istrator to claim for pur- $. 6, it is enacted, that “for the purposes of this Act an Act, as if he administrator claiming the estate or interest of the deceased obtained the estate without person, of whose chattels he shall be appointed adminisinterval after trator, shall be deemed to claim as if there had been no death of deceased. interval of time between the death of such deceased person,

and the grant of the letters of administration.”

All moveable goods, though in ever so many different and distant places from the executor, vest in the executor in possession presently upon the testator's death (y): for it is East, 405, post, p. 571, note (d). (u) Fyson v. Chambers, 9 M. & The rule that a party cannot be W. 460. made a trespasser by relation is (x) Elliott v. Kemp, 7 M. & W. only applicable where the act com- 306. plained of was lawful at the time: (y) Wentw. Off. Ex. 228, 14th 5 M. & Gr. 760.

edit. 11 Vin, Abr. 240.

poses of this

tween chattels

a rule of law, that the property of personal chattels draws to distinction beit the possession (2). But it is otherwise of things immove- real and perable, as leases for years of lands or houses : for of these the sonal as to

time of vesting executor or administrator is not deemed to be in possession in possession. before entry (a). So of leases for years of a rectory, consisting of glebe lands and tithes for years, it may be doubtful if actual possession can be without actual entry into the glebe land (b). But in case of a lease for years of tithes only, it was held that the executor, though in never so remote a place, should instantly, upon the setting out thereof, be in actual possession to maintain action of trespass for taking them away (c).

() 2 Saund. 47, b. n. (1), to Wilbraham v. Snow.

(a) Wentw. Off. Ex. 228, 14th edit. See the observations of Park B. in Barnett v. Earl of Guildford, 11 Exch. 32. But a reversion of a term, which the testator granted for part of the

term, is in the executor im-
mediately by the death of the tes-
tator : Trattle v. King, T. Jones,
170.

(6) Wentw. Off. Ex. 229, 14th
edit. 11 Vin, Abr. 240,

(c) Ibid.

VOL. I.

оо

CHAPTER THE SECOND.

OF THE QUALITY OF THE ESTATE OF AN EXECUTOR OR

ADMINISTRATOR.

THE interest which an executor or administrator has in the goods of the deceased is very different from the absolute, proper, and ordinary interest which every one has in his own proper goods (a): For an executor or administrator has his estate as such in auter droit merely, viz., as the minister

or dispenser of the goods of the dead (b). The goods of Therefore, if an executor or administrator be attainted of the deceased not forfeited by treason or felony, the goods which he has as executor or attainder of

administrator will not thereby be forfeited (c): and though executor, &c.

disabled by such attaint from suing proprio jure, he may still maintain an action in auter droit as executor or

administrator (d). nor applicable So, where an executor brought a quo minus in the Court to the debts which the ex.

of Exchequer, stating that he was not able to pay the King's ecutor owes the debt, because the defendant detained from him 1001. which Crown,

he owed to him as executor of J. S., it abated : because it could not be intended that the King's debt could be satisfied with that which the plaintiff should recover and receive as executor (e).

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