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chattel by such election shall become his own (h): Consequently, if by such election he acquire the absolute ownership of the chattel, and die, his executor may defend himself in an action of detinue brought for the same by the surviving executor of the first testator (i). Hence, if an executor pays with his own money the debts of the testator in such order as the law appoints, to the value of the whole of the personal assets, he acquires an absolute right to them; and he may dispose of them as he pleases, without being guilty of any devastavit (k).

So if the debt due to him from the testator amount to the full value of all his effects in the executor's hands, there is a complete transmutation of the property in favour of the executor, by the mere act and operation of law : in the former case, his election, and in the latter the mere operation of law, shall be equivalent to a judgment and execution; for he is incapable of suing himself (1).

So in the case of a lease of the testator, devolved on the executor, such profits only as exceed the yearly value shall be held to be assets : it therefore follows, that if the executor

pay the rent out of his own purse, the profits to the same amount shall be his (m).

There are likewise other means of thus changing the property : as if the testator's goods be sold under a fieri facias, the executor, as well as any other person, may buy such

c.

(h) Wentw. Off. Ex. c. 7, p. 196, 199, 14th edit. Anon. Dyer, 187,b. Woodward v. Lord Darcy, Plowd. 185. Elliott v. Kemp, 7 M. & W. 313, per Parke, B.

(1) Toller, 239.

(k) Merchant v. Driver, 1 Saund. 307. Chalmerv. Bradley, 1 Jac. & Walk. 64. However, in Hearn v. Wells, 1 Coll. 333, Knight Bruce, V. C., said he could not accede to the proposition that an executor has a right, in equity, to acquire, as a purchaser, an absolute title to specific chattels, by intending so

to deal with them, and by paying the testator's debts to an amount exceeding the value of those chattels : Whatever might be the rule of law upon a plea of plene administravit, he apprehended that not to be the rule in equity: His Honor did not agree that, in equity, the executor had, under such circumstances, an absolute right to the property.

(1) Plowd. 185. Toller, 239.

(m) Wentw. Off. Ex. c. 7, p. 200, 14th edit. Toller, 239.

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goods of the sheriff; and in case he does so, the property which was vested in him as executor, shall be turned into a property in jure proprio (n).

Again, if the executor among the testator's goods find and take some, which were not his, and the owner recover damages for them, in an action of trespass or trover, in this, as in all similar cases, the goods shall become the trespasser's property, because he has paid for them (o).

If an executor or administrator makes an underlease of a term of years of the deceased, rendering rent to himself, his executors, &c., though he has the term wholly in right of the intestate, yet when he makes this lease, he has power to dispose of the whole; and by making a lease of part, he appropriates that to himself, and divides it from the rest, and has the rent in his own right; and if he brings an action for it, he must bring it in the debet and detinet; and if he dies, the rent will be payable to his personal representative, and not to the administrator de bonis non of the original deceased (p).

As an executor, who is also a legatee, may, by assenting to his own legacy, vest the thing bequeathed in himself in the capacity of legatee (q), so an administrator, who is also entitled to share in the residue as one of the next of kin under the Statute of Distribution, may acquire a legal title, in his own right, to goods of the deceased, either by taking them by an agreement with the parties entitled to share with himself under the statute, or even without such agreement, by appropriating them to himself as his own share (r).

If one of several executors or administrators alone sell

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(n) Ibid. (0) Ibid.

(P) Drue v. Baylie, 1 Freem. 403. S. C. ibid. 392. S. C. 2 Lev. 100., 1 Ventr. 275. 3 Keb. 298, 427, 463, 495, 549. Sury v. Cole, Latch. 266, 267. Skeffington v. Whitehurst, 3 Y. & Coll. Exch, 1. But

see Cowell v. Watts, 6 East, 405. Catherwood v. Chabaud, 1 B. & C. 150, infra, Pt. II. Bk. III. Ch. II., Bk. Iv. Ch. II.

(9) See post, Pt. III. Bk. III. Ch. IV. $ II.

(r) Elliott v. Kemp, 7 M. & W. 313, per Parke, B.

any of the goods of the testator, he alone may maintain an action for the price, not naming himself executor (s).

In a case where bills of exchange had been accepted by A., for the accommodation of B., one of the executors of C., it appeared that B. having considerable sums of money in his hands belonging to C.'s estate, which were deposited in a box in his possession, discounted the bills with such money, by taking out of the box the requisite amount, deducting the discount, and at the same time placing the bills in the box: And it was held, by Alexander, C. B., that B. could not sever his character of an accommodation holder of these bills from his character of executor, so as to enable him and his co-executor to sue as indorsees of the bills for a valuable consideration (t).

a

» Sale by an adA sale by an administrator of a "pretenced right or title

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ministrator of to premises of a term in which the intestate died possessed, a pretenced

title held to be but of which the administrator never had possession, was within 32 H.

VIII. c. 9. held to be within the prohibition of the statute 32 Henry VIII. c. 9 (u).

(s) Godolph. Pt. 2, c. 16, s. 1. Wentw. Off. Ex. 224, 14th edit. Brassington v. Ault, 2 Bing. 177. S. C. 9 Moo. 340.

(t) — v. Adams, 1 Younge, 117.

(u) Doe v. Evans, 1 C. B. 717. But see now stat. 8 & 9 Vict. C. 106, s. 6.

BOOK THE SECOND.

ON THE QUANTITY OF THE ESTATE IN POSSESSION OF AN

EXECUTOR OR ADMINISTRATOR. The estate of AFTER the administration is granted, the interests of the an administrator is the same administrator in the property of the deceased is equal to and as that of an

with the interest of an executor (a). Executors and admiexecutor.

nistrators differ in little else than in the manner of their

constitution (b). The whole per

The general rule is, that all goods and chattels, real and sonal estate of personal, go to the executor or administrator (e). By the vests in the laws of this realm, says Swinburne (d), as the heir hath not executor :

to deal with the goods and chattels of the deceased, no more hath the executor to do with the lands, tenements, and hereditaments. In other words it may be stated, that, both at law and equity, the whole personal estate of the deceased

vests in the executor or administrator. Personal pro

The personal property in which. the deceased had but a perty of which joint estate or possession will survive to his companion, and was joint tenant his executor or administrator will not be entitled to a moiety shall not go to the executor : of it (e): for a survivorship holds place regularly as well

between joint tenants of goods and chattels in possession or in right, as between joint tenants of inheritance or freehold (). But the wares, merchandize, debts, or duties, which joint merchants have, as joint merchants or partners, shall not survive, but shall go to the executors of the deceased; and

the deceased

a

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(a) Touchs. 474. Blackborough administrator, succeeded in univ. Davies, 1 P. Wms. 43, by Holt, versum jus defuncti : Godolph. Pt. C. J.

2, c. 1, s. 1. (6) Treat. Eq. Bk. 4, Pt. 2, c. 1, (d) Swinb. Pt. 6, s. 3, pl. 5. 8. 1.

(e) Swinb. Pt. 3, s. 6, pl. 1. (c) Com. Dig. Biens, (C). Co. (f) Co. Lit. 182, a. Harris v. Lit. 388, a.

The hæres of the civil Fergusson, 16 Sim. 308. Crossfield law, answering to our executor or v. Such, 8 Exch, 825.

this is per legem mercatoriam which is part of the laws of this realm, for the advancement and continuance of commerce and trade, which is pro bono publico; for the rule is, that jus accrescendi inter mercatores pro beneficio commercii except in the

case of partlocum non habet (g). And this part of the lex mercatoria

ners in trade, has been extended to all traders (including manufacturers) (h), &o. and as it should seem, to all persons engaged in joint undertakings in the nature of trade (i). Thus, if two take a lease of a farm jointly, the lease shall survive, but the stock on the farm, though occupied jointly, shall not survive (k). So where two persons advance a sum of money by way of mortgage, and take the mortgage to them jointly, and one of them dies ; when the money is paid, the survivor shall not have the whole, but the representative of him who is dead shall have his proportion (I). So if two or more make a joint purchase of land, and afterwards one of them lays out a considerable sum in repairs and improvements and dies, this shall be a lien on the land, and a trust for the representative of him who advanced it (m). But where two

(9) Ibid. Rex v. Collectors of ship chattels, for the purpose of Customs, 2 M. & S. 225. But with winding up the partnership debts : respect to choses in action, though The Court, however, doubted whethe right of the deceased joint- ther they have a power to sell and tenant devolves on his personal give a good legal title to the share representative, the remedy survives belonging to the executor of the to his companion, who alone must deceased partner when they sell in enforce the right by action : See order to pay the debts of the partpost, Pt. II. Bk. III. Ch. 1. $ 11., nership; and the Barons held that Pt. v. Bk. I. Ch, I. And it has certainly the survivors have no been doubted whether the rule can power to dispose of his share otherin any case be enforced but in a

wise than to pay such debts. Court of Equity. See Smith's (h) Buckley v. Barber, 6 Exch. Mercantile Law, 149, 3rd edition. 164. Abbott on Shipping, 97, 7th edition. (1) Hammond v. Jethro, 2 Brownl. But it has been lately decided by & Gold. 99. the Court of Exchequer, after full (k) Jeffereys v. Small, 1 Vern, consideration, that the title to 217. partnership chattels does not sur- (1) Petty v. Styward, 1 Chanc. vive at law: Buckley v. Barber, 6 Rep. 31. Fonbl. Treat. B. 2, c. 4, Exch, 164. In the same case it s. 2, note (9). Vickers v. Cowell, was argued that the surviving 1 Beay, 529. parties have, at law, at all events, (m) Lake v. Gibson, 1 Eq. Cas. a jus disponendi as to the partner- Abr. 291, pl. 3. See further on

VOL. I.

PP

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