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there is any doubt whether in point of fact, there was that which would constitute a good donatio mortis causâ, if in point of law the subject of it can be made the subject of such a donation, it is usual for a Court of Equity to direct an issue or issues to try that fact (u).

Donatio mortis It may be added in conclusion that the New Wills' Act causâ not abolished by New (1 Vict. c. 26) has not, either in words or in effect, abolished Wills' Act. such donations (x).

(u) By Lord Eldon in Duffield v. Elwes, 1 Bligh, N. S. 531.

(2) Moore v. Darton, 4 De G. & Sm. 517.

BOOK THE THIRD.

OF THE QUANTITY OF THE ESTATE IN ACTION OF AN

EXECUTOR OR ADMINISTRATOR.

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HITHERTO the subject as to the quantity of the estate of an executor or administrator has been confined to personal property of the testator or intestate in possession ; that is, where he had not only the right to enjoy, but had the actual enjoyment of the thing. But property in chattels personal may also be in action ; that is, where a man has not the occupation, but merely a right to occupy the thing in question; the possession whereof may, however, be reco

; vered by a suit or action, from whence the thing so recoverable is called a thing, or chose, in action.

Thus, if a man promises or covenants with me to do any act, and fails in it, whereby I suffer damage, the recompense

, for this damage is a chose in action ; for though the right to recover a recompense vests in me at the time of the damage done, yet there is no possession of it till recovered by course of law (a).

By the term Chose in Action, as used in this Treatise, is to be understood a right to be asserted, or property reducible into possession, either by action at law, or suit in equity (b).

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(a) 2 Black. Comm. 397.

(6) A testator bequeathed a leasehold estate to trustees, upon trust as therein mentioned ; and first, he charged the estate with the payment of an annuity to his daughter during all his interest in the estate: The daughter afterwards mortgaged her annuity, first to A. and afterwards to B.; but B. gave the trustees notice of his mortgage

before A. did : And it was held by Sir L. Shadwell, V. C., that the annuity was a chattel interest in equity and not a chose in action, nor subject to any of the rules established with regard to assignment of choses in action ; and consequently that B. had not gained any priority over A.: Wiltshire v. Rabbits, 14 Sim. 76.

The object of the present Book will be to investigate what choses in action the estate of an executor or administrator comprises : and the subject may perhaps be separated conveniently into these four divisions; 1st, To what choses in action an executor or administrator is entitled, which the deceased himself might have put in suit. 2ndly, As to the right of an executor or administrator to choses in action, where the action accrues after the death of the testator or intestate. 3rdly, As to the title of an executor or administrator to the executory and contingent interests of the deceased. 4thly, What suits, commenced by the testator or intestate, may be continued by the executor or administrator.

CHAPTER THE FIRST.

TO WHAT CHOSES IN ACTION THE EXECUTOR OR ADMINIS

TRATOR IS ENTITLED, WHICH THE DECEASED MIGHT HAVE
PUT IN SUIT.

.

It may be advisable to treat of the subject of this Chapter in two subdivisions; 1st, The general question as to what actions survive to the executor or administrator; 2ndly, Particular instances where the executor or administrator is entitled to Choses in Action, which the deceased might have put in suit, and where not.

SECTION I.

The General Question as to what Actions survive to the

Executor or Administrator.

on contract or

With respect to such personal actions as are founded upon All personal actions founded any obligation, contract, debt, covenant, or other duty, the duty, &c., general rule has been established from the earliest times; survive :

that the right of action on which the testator or intestate

might have sued in his lifetime survives his death, and is transmitted to his executor or administrator (c). Therefore, it is clear that an executor or administrator shall have actions to recover debts of every description due to the deceased, either debts of records, as judgments, statutes, or recognizances, or debts due on special contracts, as for rent; or on bonds (d), covenants, and the like, under seal; or debts on simple contracts, as notes unsealed, and promises not in writing, either express or implied (e). It is true that no

, action of account lay for an executor at common law, upon the principle that the account rested in the privity and knowledge of the testator only (f); but this action is since given to executors by the statute of Westm. 2 (1 Edw. I. stat. 1, c. 3), to executors of executors by stat. 25 Edw. III. e. 5, and to administrators by stat. 31 Edw. III. c. 11. So if the goods, &c., of the testator taken away continue in specie in the hands of the wrongdoer, it has been long decided that replevin and detinue will lie for the executor to recover back the specific goods, &c. (9); or in case they are sold, an action for money had and received to recover the value (h). So the executor of an assignee of a bail-bond may bring an action upon it; for it is an interest vested which goes to the executor (i).

The executor or administrator is the only representative of how far the a deceased that the law will regard in respect of his personal. executor re

presents the ties, and no words introduced into a contract or obligation testator in his

contracts : can transfer to another his exclusive rights derived from such

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(c) 1 Saund. 216, a. n. (1) to Wheatley v. Lane. The right of executor to sue is extended to administrators, by stat. 31 Edw. III. s. 1, c. 11.

(d) A Scotch heritable bond, although it contain a personal obligation to pay the debt, descends to the heir-at-law: Jerningham v. Herbert, 4 Russ. Chanc. Cas. 388. Allen v. Anderson, 5 Hare, 163. See also Cust v. Goring, 18 Beav. 383.

(e) Wentw. Off. Ex. 159, 14th edit. Com. Dig. Administration, (B. 13.) Toller, 157.

(J) Co. Lit. 89, b. 2 Inst. 404.

(9) Le Meson v. Dixon, Sir W, Jones, 173, 174. 1 Saund. 217, note (1).

(h) 1 Saund. 217, note (1).

(*) Nott v. Stephens, Fortesc. 367. Com. Dig. Administration, (B, 13).

representation. Thus in Devon v. Paulett (k), the plaintiff brought an action, as administratrix of Sampson de Vese de Lake, upon a promise made to him to pay upon his marriage to the intestate or his order, his heirs or executors, the sum of fifty guineas, and did not aver that the money was not paid to the intestate's heir : The plaintiff had judgment upon nihil dicit; whereupon the defendant brought a writ of error in the Exchequer Chamber, where this case was twice argued : The counsel for the plaintiff in error insisted that the declaration was bad, because by the promise the money was made payable to the intestate or his order, his heirs or executors, and the plaintiff had not averred that it was not paid to his heir, to whom, by the very terms of the contract, it was made payable as well as to his executors: But Cowper, Lord Chancellor, Parker, Ch. J. de B. R., and King, Ch. J. de C. B., resolved that the declaration was good without such averment, the thing contracted for being a mere personalty; for, by the law, all personalties and rights to the personalties are given to the executors or administrators, as all realties and rights to realties are given to the heir, the executors or administrators being representatives of a man in respect of his personalties, in like manner as the heir in respect of the realties : therefore, if a man enters into an obligation to pay to another, or his heirs, a sum of money, his executors or administrators, and not his heirs, shall have it (1); so if one enters into a recognizance according to 23 Hen. VIII. c. 6, the form whereof, as set down in the statute, is, solvend' eidem J. hæredibus vel executoribus, his executor, and not his heir, shall have the benefit of it: And judgment was afterwards entered, termino Mich. 1 Geo. in Scacc.

In Carr, administratrix of Walker v. Roberts (m), the declaration, in an action of covenant, stated that by an indenture between the defendant and the intestate, reciting that the defendant for certain considerations had agreed to pay off certain mortgages and debts of the intestate, the defendant

(k) 11 Vin. Abr. 133, pl. 27.
(1) S. P. Fitz. N. B. 120, I. 9th

edition.

(m) 5 B. & Adol. 78.

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