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and that he was requested by the deceased to furnish it, and failed; by means whereof the deceased lost the benefit of the purchase, and was put to expense in endeavouring to procure the said title, and was deprived of the use of the money deposited: To this declaration the defendant demurred : and it was urged, in support of the demurrer, that the contract was still open and existing, and that, though the intestate had recovered damages, he might still have brought a second action, or have proceeded in equity to enforce the performance: and that the damage, if any, was to the heir, and not to the administrator : But the Court of Common Pleas held that the plaintiff was entitled to judgment; for that there appeared on the face of the record a personal contract, a breach of it in the lifetime of the intestate, and a loss to his personal property : That after bringing an action in which the grievance alleged was a loss sustained by breach of the contract, it would be impossible to bring a second action, or to resort to any other means to enforce the contract: And that it was clear the heir could not sue the defendant; for in all the cases where the heir had sued, the action had been on a covenant; but he could have no right

of action on a mere agreement to sell. whether an The language of the Judges in the before mentioned case executor may

of Chamberlain v. Williamson (a), seems to justify an infer

ence, that the right of an executor or administrator to sue life, where no on a breach of contract made with the deceased, is confined damage to the personal estate to cases in which such breach can be stated as a damage can be stated : to the personal estate : And although in the earlier case of

Kingdon v. Nottle (b), where the plaintiff sued as executor, it seems to have been in some degree conceded by the Court that if any damage had accrued to the testator in his lifetime, by breach of the covenant real, the executor might have maintained the action ; yet Lord Ellenborough, when the case of Kingdon v. Nottle was again brought before the Court (c), (the devisee being then the plaintiff) appears (a) Ante, p. 713.

(c) 4 M. & S. 53. (b) 1 M. & S. 355.

sue on a contract broken in the testator's

to regard the intervening case of Chamberlain v. William8on, as having established that the right to sue is so confined.

In a former edition of this work, the writer ventured to suggest a doubt, whether the law thus considered, was not at variance with two former decisions, viz., the case of Morley v. Polhill (d), and that of Smith v. Symonds (e), which did not appear to have been noticed, by the counsel or Court, in any of the modern cases on the subject of the right of an executor to sue on breaches of covenants, running with the land, incurred in the lifetime of the testator. In the former of these two cases it was held that the executor of a deceased bishop might bring an action against a lessee on a breach, in the lifetime of the testator, of a covenant to repair in a former bishop's lease: In the latter, an administrator de bonis non brought covenant, and assigned for breach, in the lifetime of his testator, that the land was not discharged of incumbrances; and it was held on error that the action well lay.

This doubt has been justified by the subsequent decision of the Court of Exchequer in Raymond v. Fitch (F). In that case, the question was, whether an executor could sue the lessee of his testator on a breach of a covenant not to fell, stub up, head, lop or top timber trees, excepted out of the demise, such breach having been committed in the lifetime of the testator; and no part of the timber, loppings or toppings appearing to have been removed by the defendant: And it was held in the affirmative : And Lord Abinger, in delivering the judgment of the Barons, observed, that it had been urged on the part of the defendant that the limitation of the old authorities, effected by the case of Chamberlain v. Williamson, must be applied to all contracts except such as directly relate to the personal estate, and the performance of which would necessarily be a benefit, and the breach a

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damage, to the personal estate of the testator, whether such contracts are under seal or not; and that

upon

such contracts the executor could not sue without alleging a special damage to the personal estate: But that the case certainly did not go that length; and that he and the other Barons (Parke, Bolland, and Gurney,) thought that such an extension of the doctrine laid down in it was not warranted by law, and that it could not be extended to a contract broken in the lifetime of the deceased, the benefit of which, if it were yet unbroken, would pass to the executor as part of the personal estate; at all events, not to such a contract under seal; that the present case was one of that description; that it was a case more favourable to the executors than those of Morley v. Polhill (g), Smith v. Simonds (h), and Lucy v. Levington (i), in which the covenant run with the land; and that if the last case was to be considered as having been decided, as was suggested in the argument, on the ground that the loss of rents and profits by an eviction of the testator was an injury to the personal estate, (though such a ground was not intimated in either report), it was difficult to say that the loss of the shade and casual profits of trees was not equally so.

It should be observed, that in the case of Raymond v. Fitch, above stated, the covenant in question was purely collateral, and did not run with the land; for the trees, which it was covenanted not to fell, &c., were excepted from the demise; and therefore the heir or devisee of the land, on which the trees grew, could not sue for a breach of the covenant, whether incurred before or after the death of the covenantee: Unless, therefore, the executor had the power to sue, all remedy was lost.

The authority of this decision was fully confirmed and acted on in the subsequent case of Ricketts v. Weaver (k), in which it was held that an executor of a tenant for life may sue for a breach, incurred in the testator's lifetime,

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(9) Ante, p. 719. (h) Ante, p. 719.

(8) Ante, p. 717.
(k) 12 M. & W. 718.

sue

by his lessee, of a covenant to repair, without averring any
damage to his personal estate :- And the result of the case
of Raymond v. Fitch was stated by Parke, B., to be, that
unless it be a covenant in which the heir alone can
(according to Kingdon v. Nottle (1), and King v. Jones) (m) for
a breach of the covenant in the lifetime of the testator,
the executor can sue, except it is a mere personal contract,
in which the rule applies that actio personalis moritur cum
personá.

An action will lie for an executor or administrator upon a promise made to the deceased for the exclusive benefit of a third party: Thus, where A. promised to B. that if B. would pay 501. to C., his son, who was married to D., the daughter of A., that then he would pay 1001. to D., his daughter, at such a time; B. paid the 501. to C., and A. failed of the payment of the 1001. ; B. died intestate; E., his executor, brought an action upon the case upon assumpsit, upon the promise made to B., the intestate ; and it was adjudged, that the action did well lie by the administrator, although he should have no benefit by it if he did recover (n).

Wherever the reversion is for years, the executor or Actions on administrator is of course the only party capable of suing executor of

covenants by on a covenant made with the lessor, whether it run with reversioner for the land or be in gross (o). An executor of tenant for years is expressly within the statute of 32 Hen. VIII. c. 34, and may maintain covenant against the assignee of the reversion,

years.

(1) Ante, p. 716.
(m) Ante, p. 716.

(n) Bafield v. Collard, Sty. 6. S. C. Aleyn. 1.

(6) Roscoe on Actions, 442. See Mackay v. Mackreth, 2 Chitt. Rep. 461.

VOL. I.

3 A

SECTION II.

Particular instances where the Executor or Administrator is

entitled to Choses in Action which the Deceased might have put in Suit, and where not.

Annuities :

The cases hitherto collected on this subject have been pointed out merely to develop the general principle as to the right of executors and administrators to the choses in action, on which the deceased himself might have sued: It remains to advert to some particular instances respecting this portion of an executor's or administrator's estate, as well in which his title has been denied as where it has been established. First, as to annuities. An annuity is a yearly payment

a of a certain sum of money granted to another in fee, for life, or for years, charging the person of the grantor only (p). As it concerns no land, it is so far considered personal property, that although granted to a man and his heirs, or the heirs of his body, it is not an hereditament within the Statute of Mortmains, 7 Edw. I. stat. 2 (9), nor entailable within the statute de donis (r); and Lord Coke calls an annuity granted to a man and his heirs a fee simple personal (s). But in one respect, most important to the present subject, an annuity partakes of the nature of real property : viz. that when granted with words of inheritance, it is descendible, and goes to the heir, to the exclusion of the executor (t). Unless, however, words of inheritance are employed in the grant, it has been held that the annuity will pass to the executors: As where a testator gave his

(v) Co. Litt. 144, b.

(9) Co. Litt. 2, a, note (1), by Hargrave.

(r) Co. Litt. 20, a. and note (4), by Hargrave.

(s) Co. Litt. 2, a.

(t) Turner v. Turner, Ambl. 782, 783. Stafford v. Buckley, 2 Ves. Sen. 179.

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