a rule of law, that the property of personal chattels draws to it the possession (2). But it is otherwise of things immoveable, as leases for years of lands or houses: for of these the executor or administrator is not deemed to be 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). (z) 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- (b) Wentw. Off. Ex. 229, 14th distinction be tween chattels real and per- VOL. I. 00 The goods of the deceased not forfeited by attainder of executor, &c. nor applicable to the debts which the ex Crown. 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). Therefore, if an executor or administrator be attainted of treason or felony, the goods which he has as executor or administrator will not thereby be forfeited (c): and though disabled by such attaint from suing proprio jure, he may still maintain an action in auter droit as executor or administrator (d). So, where an executor brought a quo minus in the Court of Exchequer, stating that he was not able to pay the King's ecutor owes the debt, because the defendant detained from him 100l. which 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). So though a lord of a villain might take all the villain's own goods, yet he might not take those which the villain held as executor (ƒ). ecutor becomes bankrupt the, goods of the testator do not pass: Upon this principle also, if the executor or administrator Where the exbecomes bankrupt, with any property in his possession belonging to the testator or intestate, distinguishable from the general mass of his own property, it is not distributable under the bankruptcy (g). The assignees cannot seize even money which specifically can be distinguished and ascer tained to belong to the deceased, and not to the bankrupt himself (h). But where a person entitled to take letters of administration neglected to do so, yet remained in possession of the goods of the intestate for twelve years, and being so in possession, became a bankrupt; and a creditor of the intestate afterwards took out letters of administration, and claimed the goods from the assignees; it was held that these goods were within the stat. 21 Jac. I. c. 19, being property in the possession, order, and disposition of the bankrupt, with the consent of the true owner; and that the assignees were therefore entitled to them (i). So where an innkeeper, who was a widow, having died intestate, two of her children, a son and daughter, took possession of her furniture and stock in trade, and carried on her business in their own names for two years after her death, during which time they paid her (f) Lit. L. 2, c. 11, s. 192. (g) Ludlow v. Browning, 11 Mod. 138. Ex parte Ellis, 1 Atk. 101. Ex parte Marsh, ibid. 159. Viner v. Cadell, 3 Esp. 88. In Serle v. Bradshaw, 2 Cr. & M. 148. S. C. 4 Tyrwh. 69, where a defendant, in an action against him as administrator, being under terms to plead issuably, pleaded plene administravit, and for another plea, his own bankruptcy; it was held that the plaintiff might sign judgment as for want of a plea. (h) By Lord Mansfield, in How- (i) Fox v. Fisher, 3 B. & A. 135. he may have a sci. fa.: proviso for forfeiture of lease, if lessee or his executor shall become bankrupt : funeral expenses and some of her debts, but without taking out administration to her estate, and, at the end of that time, became bankrupts, the daughter having a few months previously retired from the business, and sold her share of it to the son Another of the children then took out administration to the intestate, and claimed that part of her furniture and stock in trade which still remained in specie: But it was held that it belonged to the assignees, as having been in the order and disposition of the son at the time of his bankruptcy (k). Although an executor or administrator become bankrupt, he may have a scire facias, as the bankruptcy does not affect his representative character (1). It must be observed, that if the testator were a lessee for years, and the lease contained a proviso that if the lessee, or his executors, administrators, or assigns, shall become bankrupt, the lease shall become void, the bankruptcy of the executor will operate as a forfeiture of the lease, notwithstanding the lease itself does not pass to his assignees. Thus in Doe v. David (m), a lease had been granted for twentyone years to Joseph Waters, his executors, administrators, and assigns; Proviso, that if Joseph Waters, his executors, administrators, or assigns, should become bankrupt or insolvent, or suffer any judgment to be entered against him, &c., by confession or otherwise, or suffer any extent, process, or proceedings to be had or taken against him, whereby any reasonable probability might arise of the estate being extended, &c., the estate should determine and the lessor have power to re-enter: Joseph Waters died during the term, and by his Will devised the premises to his executors on certain trusts: The surviving executor became bankrupt: And it was held, that the lessor's right of reentering thereupon accrued. Where assignees possess themselves of effects, which (k) In re Thomas, 1 Phill. C. C. derhill v. Devereux. (m) 1 Cr. M. & R. 405. S. C. 5 Tyrwh. 125. count: belong to the bankrupt as executor only, the Court on a bill receiver apfiled (n) will, to secure such effects, appoint a receiver to whom assig pointed to whom the assignees shall account for so much as they have nees shall acgot in of the testator's estate. Where a bankrupt is an executor and residuary legatee, and has paid the debts and particular legacies out of part of the assets, if he refuses bankrupt exto collect the rest, notwithstanding the assignees have not the legal interest vested in them, the Court will assist them to get in the remainder in the name of the executor (o). ecutor residuary legatee. The goods of the testator cannot be taken in execution for the Again, the goods of a testator in the hands of his executor cannot be seized in execution of a judgment against the executor in his own right (p). So if an executor dies indebted, leaving to his executor goods which he had as debt of the executor, these are not assets liable to the payment of his (n) Ex parte Tupper, 1 Rose, 179. 2 Madd. Chan. 641, 2nd edit. (0) Ex parte Butler, 1 Atk. 213. (p) Farr v. Newman, 4 T. R. 621, where all the former authorities are collected and discussed. In this case, Buller, J., dissented from the rest of the Court, viz. Lord Kenyon, and Ashhurst and Grose, Justices. The action was against the sheriff for a false return, and the question was, whether certain goods of the testator, which had been seized by the sheriff under an execution against the husband of the executrix, in a house in which the husband and wife resided, and the testator had resided, but which had not been sold under the execution, were bound by it. In a previous case, Whale v. Booth, B. R. 25 Geo. III. 4 T. R. 625, note (a), where the goods of the testator had actually been sold under a fieri facias against the executor for his own debt, and the executor joined in a bill of sale, it was held by the Court of K. B. that the pro- executor. |