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an action which would not have sur. action survives. Brighton v. Russell, vived. Kelly o. Riley, 106 Mass. 339. 13 Allen 221. An administrator de bonis And whenever a party dies during a non may bring a writ of error on a judgterm, judgment may be entered as of ment against the previous executor. a day before his death, Griswold o. Dale v. Roosevelt, 8 Cow. 333. But a Hill, 1 Paine C. C. 483 ; to prevent judgment cannot be revived by sci. fa. failure of judgment. Kelly v. Riley, against an administrator in one of the 106 Mass. 339.
United States on a judgment obtained On the death of a plaintiff where the against a different administrator of the cause of action survives, the defendant same intestate appointed under the may serve a scire facias on the personal authority of another state. Stacy v. representatives if he wishes a judgment Thrasher, 6 How. 44, 60. A scire facias against them. Tyler o. Whitney, 8 Vt. against an executor on a judgment is 26. And there is no limitation of time barred after four years. McLellan v. within which the administrator of a Lunt, 14 Me. 254 ; Pettengill v. Patterdefendant may be cited to defend if the son, 39 Me. 498.
*BOOK THE FOURTH.
OF THE ESTATE OF SEVERAL EXECUTORS OR ADMINISTRATORS,
OF THE ESTATE OF AN EXECUTOR OF AN EXECUTOR, AND OF Α Ν 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.
ecutors, &c. each
If there be several executors or administrators, they are regarded Among several ex. in the light of an individual person (a). They have a
whole joint and entire interest in the effects of the testator or
intestate, including chattels real (6), 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 (a). 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 ().
*Again, if two men have a lease or term of years, as executors, and
+ See American note on page *828, goods of the testator, he alone may infra.
maintain an action for the price, not (a) 3 Bac. Abr. 30, tit. Exors. (D. 1). naming himself executor: Godolph.
(6) Anon. Dyer, 23_b. Com. Dig. ubi supra. Wentw. Off. Ex. 224, 14th Admon. (B. 12).
edit. Brassington V. Ault, 2 Bingh, (C) See the judgment of Parke, B., in 177: So if goods be taken out of the Nation o. Tozer, 1 Cr. Mees. & R. 174. possession of one of several executors :
(d) Ante, p. *411. See infra, Pt. III. Godolphin and Wentworth, ubi supra. Bk. I. Ch. II. as to the distinction taken And, generally, if one executor alone by some authorities between Executors contracts on his own account, he must and Administrators.
sue alone on such contract, notwith(e) Godolph. Pt. 2, c. 16, s. 1.
standing the money recovered will be (f) Godolph. Pt. 2, c. 16, s. 1. But assets: Heath o. Chilton, 12 M. & W. if one executor of several alone sell 632. Ante, p. *765.
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 (9). 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).
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 cannot
a promise made the deceased, upon a contract made by the defendant jointly with one 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
Power of one of be more conveniently further discussed hereafter, together with the power of executors and administrators tate. generally (n). (9) Anon. Dyer, 23, b.
(m) Moffat v. Van Millengen, 2 Bos. (h) Dyer, 23, b. in margine. Go- & Pull. 124, note (c). Fitzgerald v. dolph. Pt. 2, c. 16, s. 2.
Boehm, 6 B. Moore, 332. As to bring() Godolph. Pt. 2, c. 16, s. 2.
ing the action by the surviving execu(k) Nation 1. Tozer, 1 Cr. Mees. & tors after the death of that executor R. 174. 4 Tyrwh. 563, by Parke, B. who was a co-contractor with the deBut see note (f) supra.
fendant, see Rose v. Poulton, 2 B. & (1) Godolph. Pt. 12, c. 6, s. 2.
Adol. 822. t. Adams, 1 Younge, 117. But see post, (n) Infra, Pt. III. Bk. I. Ch. II. Pt. III. Bk. I. Ch. II.
of them :
several executors, &c., over the es
*CHAPTER THE SECOND.
OF THE ESTATE OF AN EXECUTOR OF AN EXECUTOR, OR OF AN ADMIN
ISTRATOR DE BONIS NON : AND OF THE ESTATE OF A FEME COVERT EXECUTRIX OR ADMINISTRATrix.
An executor of an executor, in however remote a series, has the
same interest in the effects of the first testator as the Executor of exec
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. 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 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
+ See American note at end of this was removed by his widow to another Chapter
house, in which she resided, until her (a) Wentw. Off. Ex. c. 20, p. 462, 463, death in 1832, with her daughter E., 14th edit. Com. Dig. Administration and continued during that period to (G.).
use the furniture: In October, 1829, the (6) Wentw. Off. Ex. c. 20, p. 461, widow caused the furniture to be 14th edit. It is difficult to see on what valued, in order to her taking out adprinciple this doctrine rested ; espe- ministration to L., which she afterward cially as it was held at common law, did : In 1838, the furniture was sold by that execution might be sued out on a the defendant (who had married another judgment or statute by an executor of daughter of L.), with E.'s concurrence : an execntor: Ibid.
In 1840 (disputes having arisen about (c) Wentw. Off. Ex. c. 20, p. 462, the distribution of the proceeds), E. 14th edit. Infra, p. *797.
took out administration to her mother : (d) Wankford v. Wankford, 1 Salk. It was held, that E. could not maintain 306, by Lord Holt. Bac. Abr. Execu- trover for the furniture without having tors (B. 2), 2. L. was possessed of fur. taken out administration de bonis non to niture and other property, and on his L.: Elliott v. Kemp, 7 M. & W. 306. death, intestate, in 1827, the furniture
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 (j').
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).
If the original executor or administrator bas 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
(e) Wankford 0. Wankford, 1 Salk, the sums paid to them in the course of 306. Bac. Abr. Executors (B. 2), 2. the proceedings, and from which it ap
Langford o. Mahony, 4 Dr, & peared that the costs incurred exceeded Warr. 81, 107. In that case a firm of the sum retained by a sum of about solicitors in Ireland were employed by 101.: In this account the executors an administrator, to recover a debt due acquiesced, although it did not appear to his intestate, and they had a power that there ever had been any formal of attorney from the administrator, who settlement of it: and there was no taxawas resident in England, authorizing tion of the costs : It was held by Sugthem to receive moneys, and to act gen- den, C., of Ireland, affirming the order erally for him in all matters connected of the Master of the Rolls, that an adwith the affairs of the administration : ministratrix de bonis non of the intestate The solicitors paid over to the adminis- was entitled to have the bill referred trator certain sums, which they received for taxation, and that, under the cir. during the course of the proceedings, cumstances, the settlement with the and retained the residue in payment of executors of the administrator was not a their costs : the bill of costs was not bar to such right. delivered to the administrator during (g) Hirst v. Smith, 1 T. R. 182. his lifetime, but, after his death, an ac- Moseley v. Rendell, L. R. 6 Q. B. 338. count was furnished to his executors by See ante, p. *764. the solicitors, setting forth these costs, (h) Hirst v. Smith, 7 T. R. 182, 183, and applying in payment thereof the by Lord Kenyon. sums which they had retained out of (1) See infra, p. *804, et seq.