The estate of an administra BOOK THE SECOND. ON THE QUANTITY OF THE ESTATE IN POSSESSION OF AN AFTER the administration is granted, the interests of the tor is the same administrator in the property of the deceased is equal to and with the interest of an executor (a). Executors and administrators differ in little else than in the manner of their constitution (b). as that of an executor. The whole per the deceased vests in the executor: The general rule is, that all goods and chattels, real and sonal estate of personal, go to the executor or administrator (c). By the laws of this realm, says Swinburne (d), as the heir hath not 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 perty of which the deceased The personal property in which. the deceased had but a 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 (f). 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 (a) Touchs. 474. Blackborough v. Davies, 1 P. Wms. 43, by Holt, C. J. (b) Treat. Eq. Bk. 4, Pt. 2, c. 1, s. 1. (c) Com. Dig. Biens, (C). Co. administrator, succeeded in universum jus defuncti: Godolph. Pt. 2, c. 1, s. 1. (d) Swinb. Pt. 6, s. 3, pl. 5. (e) Swinb. Pt. 3, s. 6, pl. 1. (ƒ) Co. Lit. 182, a. Fergusson, 16 Sim. 308. v. Such, 8 Exch. 825. Harris v. case of partners in trade, &o. 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 locum non habet (g). And this part of the lex mercatoria has been extended to all traders (including manufacturers) (h), 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 (1). 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 (g) Ibid. Rex v. Collectors of Customs, 2 M. & S. 225. But with respect to choses in action, though the right of the deceased jointtenant devolves on his personal representative, the remedy survives to his companion, who alone must enforce the right by action: See post, Pt. II. Bk. III. Ch. 1. § II., Pt. v. Bk. I. Ch. I. And it has been doubted whether the rule can in any case be enforced but in a Court of Equity. See Smith's Mercantile Law, 149, 3rd edition. Abbott on Shipping, 97, 7th edition. But it has been lately decided by the Court of Exchequer, after full consideration, that the title to partnership chattels does not survive at law: Buckley v. Barber, 6 Exch. 164. In the same case it was argued that the surviving parties have, at law, at all events, a jus disponendi as to the partner VOL. I. ship chattels, for the purpose of (h) Buckley v. Barber, 6 Exch. 164. (i) Hammond v. Jethro, 2 Brownl. & Gold. 99. (k) Jeffereys v. Small, 1 Vern. 217. (1) Petty v. Styward, 1 Chanc. (m) Lake v. Gibson, 1 Eq. Cas. PP In what cases the title goes to the executor, where the deceased had only a special property. become joint tenants, or jointly interested, in personal property, by way of gift, there the same shall be subject to all the consequences of the law of survivorship (n). In the case of Morris v. Barrett (o), the residue of real and personal estates was devised by a testator to his two sons as joint tenants, and the two sons, after the father's decease, and during the period of twenty years, carried on the business of farmers with such estates, and kept the monies arising therefrom in one common stock, and with part of such monies purchased other estates in the name of one of them, but never in any manner entered into any agreement respecting such farming business, or ever accounted with each other; it was held, under the circumstances, that they continued, till the death of one of them, joint tenants of all the property that passed by the Will of their father, but were tenants in common of the after-purchased estates. In some instances the title which the deceased had in respect of a special property only in goods is transmissible to his personal representative. 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 executor or administrator may recover them from a stranger; for there was a good title in the bankrupt as against all the world but the assignees, and this title passes to his personal representative (p). But it should seem that the bare circumstance of the deceased having died in possession of goods will not give his executor or administrator a title to them even against a mere wrongdoer, if it can be shown. that, in truth, the title is elsewhere (q). this subject, Lake v. Craddock, (n) 1 Vern. 217. Post, Pt. III. Bk. III. Ch. v. § I. (0) 3 Younge & Jerv. 384. (p) Fyson v. Chambers, 9 M. & W. 460. Ante, p. 560. (q) Elliott v. Kemp, 7 M. & W. 306. Ante, p. 560. of an insolvent, the estate of of an assignee the insolvent vests in the first instance in the executor of the assignee. Upon the death of the assignee of an Insolvent appointed On the death under the Insolvent Act, all the interest in the personal property of the Insolvent which was vested in the deceased assignee vests, by operation of law, in his executors, until a new assignee is appointed; and when a new assignee is appointed, all the interest of the executors vests, under the Act (1 & 2 Vict. c. 110), in that new assignee; and if, in the intermediate time, any money or other property belonging to the Insolvent comes to the hands of his executors, the Act enables the Insolvent Debtors' Court to order the executors to deliver it up to the new assignee (r). But where no new assignee has been appointed, it has been held that a party having a demand against the Insolvent, but not having proved under the Insolvency, may in equity sue the executors of the deceased assignee (s). An executor may be seised of real property as trus tee: in what cases executors take the fee in trust to sell, or merely a power Besides the interest which an executor or administrator in all cases takes in the whole personal estate of the testator or intestate, he may in some instances be seised of real property of the deceased as trustee, or be ex officio invested with a power of disposing of it. It has been a subject of some discussion in what cases executors take a fee simple, in trust to sell, under a Will, or are invested merely with a power of disposition. The distinction resulting from the of disposition: authorities appears to be this: that a devise of the land to executors to sell, passes the interest in it; but a devise that executors shall sell the land, or that lands shall be sold by the executors, gives them but a power (t). An eminent writer has concluded from an examination of all the cases, that even a devise of land to be sold by the executors, without giving the estate to them, will invest them with a power only, and not give them an interest (u). (r) Fulcher v. Howell, 11 Sim, 100. (s) Ibid. (t) All the cases will be found in 1 Sugden on Powers, 128, et seq. 6th edit. See also Doe v. Shotter, 8 A. & E. 905. Accord. (u) 1 Sugd. on Pow. 133, 6th edit. But see, on this subject, Co. Lit. 113, a. and Mr. Hargrave's note, executors shall have a power to sell land by implication, where the pro⚫ ceeds are distributable by them: secus, where the management of the fund is not given to them : It sometimes happens that a testator directs his estate to be disposed of for certain purposes, without declaring by whom the sale shall be made. In the absence of such a declaration, if the proceeds be distributable by the executor, he shall have the power by implication. Thus, a power in a Will to sell or mortgage, without naming a donee, will, if a contrary intention do not appear, vest in the executor, if the fund is to be distributable by him, either for the payment of debts or legacies (x); and it seems, that whilst the chain remains unbroken, the power, until exercised, will go from him to his executors (y). But in Bentham v. Wiltshire (z), where a testator bequeathed an estate to his wife for life, and directed that after her decease the estate should be sold to the highest bidder by public auction, and the money arising from such sale be disposed of among certain persons named in his Will, and he appointed his wife and another person executors; where that learned person inclines they had a power to settle it upon the daughter for life, with remainder after her decease to her children and their heirs. (x) 1 Sugd. on Pow. 138, 6th edit. where all the cases are collected: See also 2 Preston on Abstracts, 264. Curtis v. Fulbrook, 8 Hare, 278 (correcting the report of S. C. 8 Hare, 25): And if the produce of the real estate is blended with the personal estate, the power to sell will vest in the executors by implication: Tylden v. Hyde, 2 Sim. & Stu. 238. See also Forbes v. Peacock, 11 Sim. 152. 12 Sim. 528. 11 M. & W. 630. Gosling v. Carter, 1 Coll. 644. Robinson v. Lowater, 17 Beav. 592. 5 De G. M. & G. 272. Wrigley v. Sykes, Rolls, 22 Jan. 1856, 20 Jurist, 78. (y) 1 Sugd. on Pow. 138, 6th edit. So it may be exercised by the survivor of two or more executors: Forbes v. Peacock, 11 M. & W. 630. (z) 4 Madd. 44. |