work done by him as executor. So in the case of Aspinall and others v. Wake (a), where the plaintiffs, being executors, had continued to work the leasehold quarries of their testator, and had shipped off for the defendant, from time to time, cargoes of stone, partly dug before, and partly after the testator's death, and the defendant had accepted bills, for the price of some of the cargoes, drawn by the plaintiffs as executors; it was held that they might well sue, as executors, for the price of the remainder of the cargoes. And, lastly, in the case of Werner v. Humphreys (b), where a coat had been ordered by the defendant of a tailor, and had been cut out of the tailor's own cloth, tacked together and tried on, in his lifetime, but was finished and delivered after his death by his administratrix; it was held that she could not sue, for the price, as for goods sold and delivered by the intestate, but that the proper form of action was for goods sold and delivered by her as administratrix. So, with respect to negotiable instruments, it was decided in King v. Thom (c), that if a bill be indorsed to A. and B. as executors, they may declare, as such, in an action against the acceptor. So in Partridge v. Court (d), it was held that an administrator may sue, as such, on a promissory note given to him as administrator since the death of the intestate. So where a bill of exchange was indorsed generally, but delivered to S. C., as administratrix of J. C., for a debt due to the intestate, and S. C. died intestate after the bill became due, and before it was paid; it was held, in Catherwood v. Chabaud (e), that the administrator de bonis non of J. C. might sue upon the bill, on the ground that, where the cause of action is such that the first administrator may sue in his representative character, the right of action devolves on the administrator de bonis non. The principle on which these cases were decided has not (a) 10 Bingh. 51. S. C. 3 M. & Sc. 423. (b) 2 M. & Gr. 853. (c) 1 T. R. 487, recognised by Tyndall, C. J., in Aspinall v. Wake, 10 Bingh. 55. (d) 5 Price, 412, confirmed in error, 7 Price, 591. (e) Catherwood v. Chabaud, 1 B. & C. 150. been settled without conflict. Several old cases may be found, in which it was considered that the contracts made with an executor or administrator were personal to him, and that he must sue for them in his own right, and not in his representative capacity; and, particularly, in the instance of negotiable instruments, it was conceived, until very modern times, that if an executor took a bill or note from a debtor to the estate of his testator, a new debt was thereby created, which must be declared on as such (f). However, the rule may now be regarded as firmly established by the later cases, that wherever the money recovered will be assets, the executor may sue for it and declare in his representative character (g). In the case of several executors, although it is established by these authorities, that the circumstance of the money to be recovered on a contract being assets warrants them in suing for it in their representative character; yet it is not established that in all cases where the money recovered would be assets, all the executors may join in suing on a contract, whether they all made the contract or not. Thus in Heath v. Chilton (h), where two of three executors, (who had alone proved the Will), authorised an attorney to receive rents due to the estate of the testator, and to give receipts in their names, and the rents were received, and receipts given accordingly; it was held, that the three executors could not jointly sue the attorney for the money, unless it were found. by the jury, that the two contracted with him on account of themselves and the other co-executor, or generally on account of the estate, with a view to the interference of the (f) Betts v. Mitchell, 10 Mod. 315. Hosier v. Lord Arundell, 3 Bos. & Pull. 11, in the judgment of Chambre, J. and see the remark of Lord Ellenborough in Ord v. Fenwick, 3 East, 106, upon Betts v. Mitchell being cited. (g) Cowell v. Watts, 6 East, 410, 411, 412. Thompson v. Stent, 1 Taunt. 322. Powley v. Newton, 6 Taunt. 453. S. C. 2 Marsh. 149. Webster v. Spencer, 3 B. & A. 362, 364. Partridge v. Court, 5 Price, 412. Marshall v. Broadhurst, 1 Crompt. & Jerv. 405. See also Henshall v. Roberts, 5 East, 154. Heath v. Chilton, 12 M. & W. 637, per Parke, B. (h) 12 M. & W. 632. co-executor, in case he should choose to take a part in the management of it. It must be further observed, that if the executor or administrator takes a bond from a simple contract debtor to the estate of the deceased, though it be given to him as executor or administrator, it should seem that he cannot sue in his representative capacity on such bond: because the effect of the bond is to extinguish the simple contract debt, creating a new and personal obligation of a higher nature (i). Where an agent having property of his principal in his hands, and being ignorant of the death of his principal, for the purpose of transmitting the property, obtained a bill of exchange for the value, and indorsed it specially to his principal; it was held, that as the property, for which the bill was remitted, belonged to the principal's estate, it was competent to his administrator to elect to take the bill as a mode of payment, that the property vested in him, and that he acquired a right to sue upon the bill in that character (k). It was assumed by counsel, in arguing against the right of the executor to sue as such, in Clark v. Hougham (D), that where a payment by an executor or administrator is a derastavit, the personal representative can only sue to recover it back in his own name: But Mr. Justice Bayley, in delivering his judgment, observed, "That is a principle to which I cannot assent: on the contrary, when he discovers that he has in his representative character paid that which he ought not, he may in the same character recover it again. The money was assets; and if the suit be as executor or administrator, it will continue assets; but if the suit be in the individual capacity, the demand will be in the first instance subject to a set-off, or when recovered will be liable to the plaintiff's debts. A devastavit is a wrong, and the law will not compel an executor to persevere in a wrong" (m). (i) Hosier v. Lord Arundell, 3 Bos. & Pull. 7. Partridge v. Court, 5 Price, 419, 420, 421. Price v. Moulton, 10 C. B. 561. (k) Murray v. E. I. Company, 5 B. & A. 204. (1) 2 B. & C. 149. Ante, p. 787. (m) 2 B. & C. 155. But in the An executor or administrator may bring an action on a judgment recovered by him as executor or administrator: and he may sue in this case either in his representative character, or in his own name (n). in time of executor on con with testator: In the above cases of contract, the promise sued upon by Suits accruing the executor was expressly or impliedly made to himself in his representative character; but it is clear, that in many tracts made cases an action, on which the deceased himself could not have sued, may accrue to the executor or administrator in his own time, upon a contract made with the testator or intestate in his lifetime. It has already appeared, that where a cause of action accrued in the lifetime of the testator on a contract made to him, without naming his executors, or to him and his assigns, such chose in action, generally speaking, is transmitted to the executor (o): And the executor will also be entitled to sue on such a contract, although the action does not accrue till after the death of the testator. Thus, if A. covenants with B. to make him a lease of certain land by such a day, and B. dies before the day, and before any lease made, if A. refuse to grant the lease, when the day arrives, to the executor of B., the executor shall have an action as such on the covenant (p). So in the case of Husband v. Pollard (g), a father possessed of a term for years, held of the church, and renewable every seven years, assigned this lease to his on a contract made with the testator and his assigns. son in trust for himself for life, remainder in trust for the son, his executors, administrators, and assigns, and the father covenanted to renew the lease every seven years as long as he should live; the son died, and the seven years passed, upon which the executors of the son brought a bill to compel the father to renew the lease at his own expense; and it was decreed accordingly. So if A. covenant to grant a lease to I. S. and his assigns, by Christmas, and I. S. dies before that time, and before the grant of the lease, it must be made to his executors, as his assigns, or they may bring covenant (r). So if a contract to deliver a horse on a given day to B., or his assigns, if B. die before the day limited for the delivery of the horse, his executor may maintain an action on the contract, if A. refuse to deliver the horse to him, because, by law, he is the assignee of B. for such a purpose, and represents his person as to receiving any chattels real or personal (s): although if A. in his lifetime had appointed I. S. to receive the horse, I. S. would have been entitled as assignee in deed (t). So if a man be bound to deliver a true rental, &c., to I. N., or his assignee, at the end of twenty years, and he makes an executor, and dies before the end of twenty years, there the obligee is bound to deliver a true rental to the executor; for he is an assignee in law (u). So where one was bound to stand to the award of two arbitrators, who awarded that the party should pay unto a stranger, or his assigns, 2001. before such a day; the stranger before the day, died, and B. took letters of administration; it was the opinion of the whole Court that the money should be paid to the administrator; for he is assignee; and by Gawdy, J.: If the word assignee had been left out, yet the payment ought to be made to the administrator; quod Coke affirmavit (x). But where the condition of an obligation is, that if the (r) Wentw. Off. Ex. 215,14th edit. (t) Ibid. (u) Bro. Abr. tit. Deputy. |