*BOOK THE FOURTH.

OF THE ESTATE OF SEVERAL EXECUTORS OR ADMINISTRATORS,
OF THE ESTATE OF AN EXECUTOR OF AN EXECUTOR, AND
OF AN ADMINISTRATOR DE BONIS NON; AND
OF THE
ESTATE OF AN EXECUTRIX OR ADMINISTRATRIX, WHO IS A
FEME COVERT.

CHAPTER THE FIRST.

THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR CONSIDERED, WHEN

THERE ARE SEVERAL EXECUTORS OR ADMINISTRATORS.t

ecutors, &c. each

estate.

If there be several executors or administrators, they are regarded Among several ex- in the light of an individual person (a). They have a hath the We joint and entire interest in the effects of the testator or intestate, including chattels real (b), which is incapable of being divided; and in case of death such interest shall vest in the survivor (c), without any new grant by the court (d). Consequently, if one of two executors or administrators grant or release his interest in the testator's or intestate's estate to the other, nothing shall pass; because each was possessed of the whole before (e). So, if one of several executors release but his part of the debt, it has been held that the whole is discharged (f).

*Again, if two men have a lease or term of years, as executors, and

+ See American note on page *828, infra.

(a) 3 Bac. Abr. 30, tit. Exors. (D. 1). (b) Anon. Dyer, 23 b. Com. Dig. Admon. (B. 12).

(c) See the judgment of Parke, B., in Nation v. Tozer, 1 Cr. Mees. & R. 174.

(d) Ante, p. 411. See infra, Pt. III. Bk. I. Ch. II. as to the distinction taken by some authorities between Executors and Administrators.

(e) Godolph. Pt. 2, c. 16, s. 1.

(f) Godolph. Pt. 2, c. 16, s. 1. But if one executor of several alone sell

goods of the testator, he alone may maintain an action for the price, not naming himself executor: Godolph. ubi supra. Wentw. Off. Ex. 224, 14th edit. Brassington v. Ault, 2 Bingh. 177: So if goods be taken out of the possession of one of several executors: Godolphin and Wentworth, ubi supra. And, generally, if one executor alone contracts on his own account, he must sue alone on such contract, notwithstanding the money recovered will be assets: Heath v. Chilton, 12 M. & W. 632. Ante, p. *765.

2

the one of them grant all his right and interest, and all that appertains to him by virtue of the lease, to A., the whole term of years passes; because every executor has an entire authority and interest; otherwise of other joint tenants of a term (g). Therefore, if a lease of a thousand acres of land comes to two executors, no partition or division can be made between them, as between joint lessees of land, where each hath but a moiety in interest, though possession of and throughout the whole but among executors each hath the whole; and, therefore, if he grants his part he grants the whole (h). Yet one executor may demise or grant the moiety of the land for the whole term, and so may the other: And by this means they may settle a moiety for each in some third person intrusted for them (i).

Since several executors have a joint and entire interest in all the goods of their testator, including chattels real, it follows that the act of one, in possessing himself of the effects, is the act of the others, so as to entitle them to a joint interest in possession, and a joint right of action, if they are afterward taken away (k).

Several executors sue on

cannot

a promise made jointly with one

of them:

Again, since several executors or administrators have a joint and entire interest in the estate in action of the deceased, it follows, that they cannot maintain an action in right of the deceased, upon a contract made by the defendant jointly with one of themselves (1). 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). With respect to the power of one of several executors or administrators over the estate of the deceased, that subject will be more conveniently further discussed hereafter, together with the power of executors and administrators tate. generally (n).

Power of one of several executors, &c., over the es

(m) Moffat v. Van Millengen, 2 Bos. & Pull. 124, note (c). Fitzgerald v. Boehm, 6 B. Moore, 332. As to bringing the action by the surviving executors after the death of that executor who was a co-contractor with the defendant, see Rose v. Poulton, 2 B. & Adol. 822.

(n) Infra, Pt. III. Bk. I. Ch. II.

*CHAPTER THE SECOND.

OF THE ESTATE OF AN EXECUTOR OF AN EXEcutor, or OF AN ADMINISTRATOR DE BONIS NON AND OF THE ESTATE OF A FEME COVERT

EXECUTRIX OR ADMINISTRATRIX.†

Executor of executor.

An exec

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. utor 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 perAdministrator de sonal estate, such as terms for years, household goods, &c., which remain in specie, and were not administered by the first executor or administrator (d). Also it is holden that if an executor receives money in right of *his testator, and lays it up by

bonis non.

+ See American note at end of this Chapter.

(a) Wentw. Off. Ex. c. 20, p. 462, 463, 14th edit. Com. Dig. Administration (G.).

(b) Wentw. Off. Ex. c. 20, p. 461, 14th edit. It is difficult to see on what principle this doctrine rested; especially as it was held at common law, that execution might be sued out on a judgment or statute by an executor of an executor: Ibid.

(c) Wentw. Off. Ex. c. 20, p. 462, 14th edit. Infra, p. *797.

(d) Wankford v. Wankford, 1 Salk. 306, by Lord Holt. Bac. Abr. Executors (B. 2), 2. L. was possessed of furniture and other property, and on his death, intestate, in 1827, the furniture

was removed by his widow to another 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 caused the furniture to be valued, in order to her taking out administration to L., which she afterward 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.

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 (e). 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 (ƒ). There is such a privity of estate between the former executor 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 executor or administrator (g). 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 (h).

(e) Wankford v. Wankford, 1 Salk. 306. Bac. Abr. Executors (B. 2), 2.

If the original executor or administrator has fraudulently aliened the assets for his own use in collusion with the vendee (i), 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 where a testatrix having directed that a leasehold should be sold, and the money divided among 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 10. 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.

(f) 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, authorizing them to receive moneys, 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

(g) Hirst v. Smith, 7 T. R. 182. Moseley v. Rendell, L. R. 6 Q. B. 338. See ante, p. 764.

(h) Hirst v. Smith, 7 T. R. 182, 183, by Lord Kenyon.

(i) See infra, p. *804, et seq.