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Survivorship as to residue :

right of the deceased, upon a contract made by the defendant jointly with one of themselves(). Therefore, to an action of assumpsit by several executors, it was held a good plea in bar, that the promises were made by the defendant jointly with one of the plaintiffs: And Mr. Justice Buller said, “the promise was made jointly with one of the plaintiffs: How can he sue himself in a Court of Law? It is impossible to say a man can sue himself” (m).

A very important consequence of the doctrine of survivorship of estate among co-executors exists in cases where they are entitled to the residue of the testator's effects after payment of debts and legacies: For it is established, as it will hereafter more fully appear (n), that if one of them dies before the joint interest in the residue is severed, his share will survive to his co-executors, to the exclusion of his own executors or administrators (0).

Although the principles above stated have been long established, yet it appears to have been a rule in the Accountant-General's Office, until lately, not to pay out money to surviving executors without a discharge from the personal representative of the deceased executor: Thus by an order made in the case of Moodie v. Bainbridge (p), August 12, 1820, the Accountant-General was directed to pay R. L. or his personal representative a certain sum in respect of a legacy bequeathed to him by the testator in the cause: R. L. died, leaving an executrix and two executors : The executrix died, leaving an executor: And the AccountantGeneral refused to pay the legacy under a power of attorney

surviving executors entitled to receive money without a discharge from the executor of deceased executor.

$ 1.

(1) Godolph. Pt. 2, c. 16, s. 2. Poulton, 2 B. & Adol. 822.

V. Adams, 1 Younge, 117. (n) Post, Pt. III. Bk. III, Ch. v. But see post, p. 863.

(m) Moffat v. Van Millingen, 2 (o) Frewen v. Relfe, 2 Bro, C. Bos. & Pull. 124, note (c). S. C. C. 220. Baldwin v. Johnson, 3 2 Chitt. 539. Fitzgerald v. Boehm, Bro. C. C. 455. Griffiths v. Hamil6 B. Moore, 332. As to bringing ton, 12 Ves. 298. White v. Wilthe action by the surviving exe- liams, 3 V. & B. 72. S. C. Cooper, cutors after the death of that exe- 58. Knight o. Gould, 2 M. & cutor who was

a co-contractor K. 295. with the defendant, see Rose ». (P) 6 Madd. 107.

from the surviving co-executors of R. L. without a discharge from the executor of the deceased executrix, that being the rule of the office: But on an application to the Court, an order was made by Sir J. Leach, V. C., to pay the legacy to the surviving executors. With respect to the power of one of several executors or Power of one

of several exeadministrators over the estate of the deceased, that sub- cutors, &c. ject will be more conveniently further discussed hereafter together with the power of executors and administrators generally (q).

(9) Infra, p. 818, et seq.

over the estate.





Executor of executor.

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Administrator de bonis non.

An executor of an executor, in however remote a series, has the same interest in the effects of the first testator as the first and immediate executor (a). With respect, indeed, to choses in action, it should seem to have been established, at common law, that an executor of an executor could not bring actions in respect of the original testator (b). But by statute 25 Edw. III. st. 5, c. 5, it is enacted, that executors of executors shall have actions of debts, accompts, and of goods carried away of the first testators.

of the first testators. An executor of an executor is within the equity of the statute of 32 Hen. VIII. c. 37, with respect to remedies for rent arrear in certain cases (c).

An administrator de bonis non is entitled to all the goods and personal estate, such as terms for years (d), household goods, &c. which remain in specie, and were not administered by the first executor or administrator (e). Also it is holden

(a) Wentw. Off. Ex. c. 20, p. pur auter vie, under the Statute of 462, 463, 14th edit. Com. Dig. Frauds, sect. 12, is a matter of Administration, (G.)

doubt: Oldham v. Pickering, Carth. (6) Wentw. Off. Ex. c. 20, p. 461, 376. Ripley v. Waterworth, 7 Ves, 14th edit. It is difficult to see on 445, 451. Ante, p. 605. But see what principle this doctrine rested; the stat. 1 Vict. c. 26, s. 6, ante, especially as it was held at common p. 607, 608. law, that execution might be sued (e) Wankford v. Wankford, 1 out on a judgment or statute by an Salk. 306, by Lord Holt. Bac. executor of an executor: Ibid. Abr. Executors, (B. 2.) 2. L. was

(c) Wentw. Off. Ex. c. 20, p. possessed of furniture and other 462, 14th edit. Infra, p. 833. property, and on his death, intes

(d) Whether an administrator tate, in 1827, the furniture was de bonis non be entitled to an estate removed by his widow to another

that if an executor receives money in right of his testator,
and lays it up by itself, and dies intestate, this money shall go
to the administrator de bonis non, being as easily distinguished
to be part of the testator's effects as goods in specie (f).
And wherever assets are in the hands of a third person, at
the death of an administrator, or executor intestate, the
administrator de bonis non may sue for their recovery (g).

There is such a privity of estate between the former exe-
cutor or administrator, and the administrator de bonis non,
that, in assumpsit brought by the administrator de bonis non,
the promise may be laid to have been made to the former

house, in which she resided, until her death in 1832, with her daughter E., and continued during that period to use the furniture : In October, 1829, the widow used the furniture to be valued, in order to her taking out administration to L., which she afterwards did : In 1838, the furniture was sold by the defendant, (who had married another daughter of L.) with E.'s concurrence: In 1840 (disputes having arisen about the distribution of the proceeds), E. took out administration to her mother: It was held, that E. could not maintain trover for the furniture without having taken out administration de bonis non to L. : Elliott v. Kemp, 7 M. & W. 306.

(f) 1 Salk. 306. Bac. Abr. Executors, (B. 2) 2.

(9) Langford v. Mahony, 4 Dr. & Warr. 81, 107. In that case a firm of solicitors in Ireland were employed by an administrator, to recover a debt due to his intestate, and they had a power of attorney from the administrator, who was resident in England, authorising them to receive monies, and to act generally for him in all matters connected with the affairs of the

administration : The solicitors paid over to the administrator certain sums, which they received during the course of the proceedings, and retained the residue in payment of their costs : The bill of costs was not delivered to the administrator during his lifetime, but, after his death, an account was furnished to his executors by the solicitors, setting forth these costs, and applying in payment thereof the sums which they had retained out of the sums paid to them in the course of the proceedings, and from which it appeared that the costs incurred exceeded the sum retained by a sum of about 101.: In this account the executors acquiesced, although it did not appear that there ever had been any formal settlement of it; and there was no taxation of the costs : It was held by Sugden, C. of Ireland, affirming the order of the Master of the Rolls, that an administratrix de bonis non of the intestate was entitled to have the bill referred for taxation, and that, under the circumstances, the settlement with the executors of the administrator was not a bar to such right.

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executor or administrator (h). So if a former administrator enters into an agreement for the sale of a lease of a chattel interest belonging to the intestate, and dies before the agreement is completed, the administrator de bonis non stands in such privity of estate that he will be compelled to carry the agreement into execution (i).

If the original executor or administrator has fraudulently aliened the assets for his own use in collusion with the vendee (k), such assets will be considered, in equity, as unadministered, and will consequently pass as such to the administrator de bonis non; who in that character may apply to a Court of Equity to have the sale set aside, and to have the legal estate conveyed to him. Thus in a modern case (1) a testatrix having directed that a leasehold should be sold, and the money divided among five persons, the

, administrator with the Will annexed, alleging that he had become entitled to it by an arrangement with the legatees, assigned it over for valuable consideration: And it was holden, that, at his death, it remained assets unadministered: and that the purchaser must be directed to convey it to the administratrix de bonis non, though the persons beneficially interested were not all parties to the suit. It must however be observed, that if the administrator, in his character of administrator, had sold the property, and the purchaser had been ignorant of the real nature of the transaction, the sale could not have been set aside (m).

If by some of the means specified in an earlier part of this Work (n), the property in any of the effects of the deceased has been changed by the original executor or administrator, and has vested in him in his individual capacity, such effects will go to his own administrator or executor, and not to the administrator de bonis non. Thus, in Drue v. Baylie (o), an

(h) Hirst v. Smith, 7 T. R. 182.

) 7T. R. 183, by Lord Kenyon. (k) See infra, p. 840, et seq.

(1) Cubbidge v. Boatwright, 1 Russ. Chan. Cas. 549,

(m) See infra, p. 838, et seq.

(n) Ante, p. 572, et seq.

(0) 1 Freem. 462. S. C, 2 Ler. 100. 1 Ventr. 275. 3 Keb. 298, 427, 463, 495, 549. In Sury v. Cole, Latch, 266, 267. Jones, J., cited a case, 27 Eliz., in which it

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