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administrator made an underlease of the intestate's term of years, reserving rent to himself, his executors, &c., with a covenant to pay the rent, and died : and it was holden, that his executor, and not the administrator de bonis non, should have the rent. So in Skeffington v. Whitehurst (p), it was holden by Alderson, B., that upon the death of an administrator, who has mortgaged the leasehold estate of his intestate, reserving the power of redemption to himself, his executors, administrators, and assigns, the equity of redemption vests in the personal representative of the administrator, and not in the administrator de bonis non of the intestate. But on appeal to the House of Lords from this decision, although it was affirmed on other grounds, Lords Cottenham, Brougham, and Campbell, did not concur with the view which the learned Baron had thus taken of the case (q); for that although no action at law could be brought on the mortgage deed, except in the name of the personal representative of the administrator, yet when it is clear that he has no claim on the estate, and that the administrator de bonis non is the person to whom a reconveyance must ultimately be executed, there seems no reason why the latter should not be allowed to file a bill against the mortgagee to redeem (r).

SO

had been decided that, where an House of Lords it was observed administrator of a term for forty by Lord Campbell, that in Butler years, made a lease for twenty, v. Bernard it seems to have been rendering rent, and died intestate, taken that the representative of the second administrator should the adminitrator had some claim have the rent; which being denied on the estate, so that, when a and marvelled at, caused Jones reconveyance had been executed to say, “Yes, faith, it was to him, he would not have been adjudge.”

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accountable to the administrator (p) 3 Younge & Coll. 1.

de bonis non; and Lord Notting(9) Skeffington v. Budd, 9 Ci. ham intimated no opinion that a & F. 220, 248.

bill to redeem may not be main(r) The decision of Lord Not- tained by the administrator de tingham in Butler v. Bernard, 2 bonis non, where the representaFreem. 139, C. 176. S. C. 11 Vin. tive of the administrator, after Abr. Exors. (M. 6), pl. 7. 1 Cas. the estate had been reconveyed to Ch. 224, was considered by Alder- him, might himself be called on

B., as one which governed to convey to the administrator de the case before him. But in the

bonis non.

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son,

Again, the administrator de bonis non is entitled to all debts due and owing to the original testator or intestate; but in this instance also, the original executor or administrator may, in some cases, have so altered the property in a chose in action, as to transmit it to his own personal representative, and not to the administrator de bonis non. Thus, where A. died intestate, and his son took out administration to him, and received part of a debt, being rent arrear to the intestate, and accepted a promissory note for the residue, and then died intestate; it was held, that this acceptance of the note was such an alteration in the property as vested it in the son, and therefore, on his death, it should go to his administrator, and not to the administrator be bonis non (8). So where the executor of the conusee of a recognizance, before an extent, assigned the recognizance to J. S., who paid the money to the executor; then the executor died, and administration de bonis non was committed to the next of kin of the first testator, who sued for this recognizance; the Lord Keeper said it was like the case where the testator is indebted to A., and B. is indebted by bond to the testator; and then the executor assigns B.'s bond in satisfaction of the debt owing to A.; now here, the administrator de bonis non shall never recover on this bond ; nor more should be in the principal case upon the recognizance (t).

But it should seem from a modern case (u), that where the substituted cause of action is such, that the first executor or administrator may sue in his representative character, the right of action devolves upon the administrator de bonis non of the original deceased : for he succeeds to all the legal rights which belonged to the first executor or administrator in his representative capacity (x). Therefore where a bill of exchange was endorsed generally, but

(s) Barker v. Talcot, 1 Vern. 433. Bac. Abr. Executors, (B.

2) 2.

case, 1 Freem, 284.

See also Dod v. Dod, 10 Exch, 878.

(u) Catherwood v. Chabaud, 1 Barn. & Cres. 150. S. C. 2 Dowl. & Ryl. 271.

(2) See ante, p. 788.

(t) Anon. Skin. 143. S. C. semble, 2 Ventr. 362. See also the case put by Twisden, J., in Miller's

delivered to S. C., as administratrix of I. C., for a debt due to the intestate, and S. C. died before the bill became due, and before it was paid; it was held, that the administrator de bonis non of I. C. might sue upon the bill (y). In such cases it does not follow, because the administrator de bonis non may sue, that the representative of the original executor or administrator may not sue: there may be instances where the latter might and ought to sue ; viz., if the first administrator or executor has made himself a debtor to the estate of the original deceased for the amount of a bill received in payment of a debt due to that estate (z).

With respect to the actions commenced before his time, in which an administrator de bonis non may proceed, it must be observed that at Common Law he could not have a scire facias upon a judgment obtained by the original executor or administrator (a); but this is remedied by stat. 17 Car. II. c. 8, s. 2; the operation and construction of which statute have been already discussed (6). And it has been shown(c), that if goods have been seized by the sheriff at the suit of a deceased intestate executor or of an administrator, the administrator de bonis non is entitled to receive the proceeds of the execution.

With respect to suits in equity, in the case of an adminis. tration determined by death, a revivor by the administrator de bonis non has been admitted (d).

If the original executor or administrator, in his own name, brings trespass for goods taken out of his possession, which were the testator's or intestate's and dies, his own executor or administrator must take execution of the judgment; but in the case of an executor of an executor, he shall hold the proceeds of the execution as assets of the first testator, and in the case of an executor or administrator of an original

(y) 1 Barn. & Cres. 150. 2 Dowl. & Ryl. 271.

(3) By Lord Tenterden, 1 Barn. & Cres. 156.

(a) See ante, p. 806. (b) Ante, p. 807.

(c) Ante, p. 807.

(d) Owen v. Curzon, 2 Vern. 237.

Huggins r. York Build. Comp. 2 Eq. Cas. Abr. 3. Mitf. Pl. 64, n. (r), 4th edit. See Bolton v. Powell, 2 De G. M. & G. 1.

Of the estate

covert.

administrator, or of an administrator of an original intestata executor, he shall be compelled in equity to pay them to the administrator de bonis non (e).

If an administrator has taken a man in execution, and dies, his executor cannot discharge this man out of execution, but the administrator de bonis non : for he being taken as pledge for the debt of the intestate, shall go as the intestate's estate unadministered (f).

Although marriage is an absolute unqualified gift by the of an executrix wife to the husband of all the goods and personal chattels is

which she was possessed of at that time, or becomes so afterwards, in her own right, yet the marriage makes no gift to him of the goods and chattels, which belong to his wife in auter droit as executrix or administratrix: because such : gift might prove disadvantageous to the creditors, &c. of the testator or intestate : besides, since the wife takes no beneficial interest in the property, there is none which the law can transfer to her husband (9).

Hence, if the husband be possessed of a term of years right of his wife, as executrix or administratris, and have the reversion in fee in himself, the term will not be merged (h). So a bond debt, due to a wife in the character of an executrix, will not pass to the assignees under the bankruptcy of her husband (i).

Hence, also, in case of the husband's death, the estate of the wife as executrix or administratrix, never having been divested, shall survive to her: and if she die before her husband, it shall not survive to him, inasmuch as it belonged to him merely in her right, as representative of the deceased (k). Therefore, such of the personal assets as remain outstanding, shall pass, if she was an executrix, to

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(e) Yaites v. Gough, Yelv. 33.

(f) Drue v. Baylie, 1 Freem. 392, 403, 404, by Hale, C. J.

(9) Co. Lit. 351. Thompson v. Pinchell, 11 Mod. 178. 1 Roper, Husband and Wife, 187, 2nd edit.

(h) 1 Roper, Husband and Wife,

1
188, 2nd edit. Ante, p. 566.

(i) Ludlow v.
Mod. 138.

(k) Wentw. Off. Ex. 370, 14th edit.

Browning, 11

а

her executor, if she make a Will appointing one, (which we have seen she may do without her husband's assent) (1): or

) otherwise to the administrator de bonis non of the original deceased : though with respect to the assets which may have been received by the feme executrix during the marriage, and not disposed of, they immediately become the husband's property, and do not pass from him, like the outstanding assets, on her decease (m).

Still the husband is entitled, as it will appear in the proper place (n), to administer in his wife's right, for his own safety, lest she misapply the funds, in which case he would be liable: Incident to this right, he has the power of disposition over the personal estate vested in his wife as executrix or administratrix (o). And thus (though at the same time he may make himself liable upon a devastavit) he may change the nature of the whole property, so as to vest it in himself (p).

(1) Ante, p. 47, 48.

(m) Hodsen v. Lloyd, 2 Bro. C. C. 543. Ante, p. 48.

(n) Infra, Pt. III. Bk. 1. Ch. III.

(o) Jenkins, Cent. 2. Case, 56. Roper, ubi supra.

(p) See Ankerstein v. Clarke, 4 T. R. 617, in which case it was holden that if a bond be given to husband and wife administratrix, the husband alone may declare on it, as on a bond made to himself.

END OF PART THE SECOND.

BRADBURY AND EVANS, PRINTERS, WHITEFRIARS.

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