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five persons, the administrator with the will annexed, alleging that he
, had become entitled to it by an agreement 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 (k). 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 (?).
If by some of the means specified in an earlier part of this work (m), 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 (n), an 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 (o), 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 intes. tate. 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 (P); 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 (2).
(k) Cubbidge v. Boatwright, 1 Russ. Chan. Cas. 549.
(1) See infra, p. *802, et seq.
(p) Skeffington v. Budd, 9 Cl. & F. 220, 248.
(@) The decision of Lord Nottingham in Butler v. Bernard, 2 Freem. 139, was considered by Alderson, B., as one which governed the case before him.
Again, the admininistrator 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 adminis*trator 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 de bonis non (r).
But it should seem from the case of Catherwood v. Chabaud (s), 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 (1). Therefore where a bill of exchange was indorsed generally, but 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 anul before it was paid ; it was held that the administrator de bonis non of I. C. might sue upon the bill (u). 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 (a).
With respect to enforcing judgments obtained by the original
But in the House of Lords it was observed by Lord Campbell, that in Butler v. Bernard it seems to have been taken that the representative of the administrator had some claim on the estate, so that, when a reconveyance had been executed to him, he would not have been accountable to the administrator de bonis non ; and Lord Notting. ham intimated no opinion that a bill to redeem may not be maintained by the administrator de bonis non, where the
representative of the administrator, after the estate had been reconveyed to him, might himself be called on to convey to the administrator de bonis non.
(r) Barker 0. Talcot, 1 Vern. 433. Bac. Abr. Executors (B. 2), 2.
(8) 1 Barn. & Cress. 150.
(u) Catherwood v. Chabaud, 1 Barn. & Cress. 150.
(2x) 16. 156, per Lord Tenterden.
executor or administrator, the rights of the administrator de bonis non which were formerly governed by 17 *Car. II. C. 8, s. 2 (now repealed), would seem now to be governed by Rules of the Supreme Court, Order XLII., r. 23.
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 administrator, or of an administrator of an original intestate executor, he shall be compelled in equity to pay them to the administrator de bonis non (y).
Although marriage was before the passing of the Married Women's or the estate of
Property Act, 1882, an absolute unqualified gift by the an executrix who wife to the husband of all the goods and personal is a feme covert.
chattels which she was possessed of at that time, or became so afterward in her own right, yet the marriage made no gift to him of the goods and chattels which belonged to his wife in auter droit as executrix or administratrix : because such a gift might prove disadvantageous to the creditors, &c., of the testator or intestate : besides, since the wife took no beneficial interest in the property, there was none which the law could transfer to her husband (z).
Since the commencement of the Married Women's Property Act, 1882 [i. e., 1 Jan. 1883], a married woman is by virtue of the provisions of section 1 (2), capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any “contract ”... in all respects as if she were a feme sole.
By section 24 of the act it is provided that the word “contract in the act shall include the acceptance of any trust, or the office of executrix or administratrix.
This act places a married woman, whenever married, in the position of a feme sole, and as it is further provided by *section 24 that the husband of an executrix or administratrix shall not be subject to any liabilities incurred by his wife by reason of any breach of trust or devastavit committed by her as executrix or administratrix, either before or after her marriage, unless he has acted or intermeddled in the trust or administration, there ceases to be any reason for his
(y) Yaites v. Gough, Yelv. 33.
chell, 11 Mod. 178. 1 Roper, Husband and Wife, 187, 2nd edit.
21 & 22 Vict. c.
administering in his wife's right for his own safety, as there was
sion in this Act, and in the stat. 20 & 21 Vict. c. 85,
respecting the property of a wife who has obtained a decree for judicial separation or an order for protection, shall be deemed to extend to property to which such wife has become or shall become entitled as executrix, administratrix, or trustee, since the sentence of separation, or the commencement of the desertion (as the case may be), and the death of the testator or intestate shall be deemed to be the time when such wife became entitled as executrix or administratrix (a).
As to the wife's power over her estate as executrix, it will be The wife's power proper to consider the question hereafter (6), together over her estate with the subject of the power of a feme covert execuas executrix.
trix or administratrix generally. (a) As to estate vested in a married to the passing of this statute, see Bathe woman as executrix, after a protection 0. Bank of England, 4 K. & J. 564. order under the Divorce Act, but prior (6) Pt. III. Bk. I. Ch. IV.
Ececutor of executor. For Ameri- Mon. 304. If an executor had become can statutes changing the common-law liable to pay a legacy and had negstatus of the executor of a deceased lected to do so, and the legatee could executor, as well as for other cases have sued the original executor for his upon this subject, see vol. 1, p. 293, ubi legacy, he can sue his executor if upra. See too, Croswell on Exrs. S sufficient assets of either estate have 114 ; Schouler on Exrs. S 43 ; Woerner come to his hands. Windsor v. Bell, on Admn. § 350. See also as to the 61 Ga. 671. But if the original expowers of an executor's executor in the ecutor dies after probate of the will, United States, p. *832, n., ubi infra. but before letters issued, their issue Where such a statute prevails, the being suspended during an appeal Probate Court has no jurisdiction to from the probate, his executor will not receive or pass an
account of the take the original estate. Will of Drayoriginal estate by the executor of the ton, 4 McCord 46. So, if the original original executor. Wetzler v. Fitch, testator by his will provides for the 52 Cal. 638. And an action will not lie appointment of an administrator in case for an unpaid legacy against the execu- of the death of his executor. Roanoke tor of a deceased executor. Prescott v. Navigation Co. v. Green, 3 Dev. Morse, 64 Me. 422.
434. But the executor's executor In the absence of such statute the cannot defeat a creditor's petition for common-law rule is recognized in the fi. fa. against the original estate by a United States, putting the executor of renunciation as to it after notice of the the executor in his place as to the estate petition is served on him.
Hart v. of the original decedent. Burch v. Smith, 20 Fla. 58. Burch, 19 Ga. 174; Dean v. Dean, 7 The common-law estate and authority of an executor's executor does Miss. 87; or unlawfully disposed of by not, however, extend to the admin- him. Bell v. Speight, 11 Humph. 451. istrator of an administrator. Ray in Massachusetts, moneys in the v. Doughty, 4 Blackf. 115 ; Hen- hands of an attorney, which are the derson v. Winchester, 31 Miss. 290. proceeds of land sold by the order of The personal representative of the the court. Marvel v. Babbitt, 143 deceased administrator holds the un- Mass. 226. And in Alabama, a bond administered assets of the first intestate taken by an administrator for goods for no other purpose than to turn them sold by him goes to his successor as over to the administrator de bonis non. assets, King 0. Green, 2 Stew. (Ala.) University v. Hughes, 90 N. C. 537. 133; Spencer v. Rutledge, 11 Ala. 590; So, the executor of an administrator is although the rule is otherwise in Kennot chargeable as representative of the tucky. Saffran v. Kennedy, 7 J. J. original intestate, although he may be
Marsh, 188. charged for the devastavit of his testa- Money in the hands of the administrator in the same manner that his testator tor as shown by his last accounting is might have been charged if living. unadministered assets, and goes to his Arline v. Miller, 22 Ga. 330. If, how- successor. Donaldson 0. Raborg, 26 ever, a note is given to B. as “adminis- Md. 312. So, where it has been laid trator of the estate of A., deceased,” it up or deposited by itself. Pinney v. may be sued by B. in his own name, Barnes, 17 Conn. 420. So, where the and upon his death his administrator administrator in chief had given no may sue on the note, and not the ad. notice to creditors and was removed ministrator de bonis non. Newhall v. with no evidence that all the debts of Turney, 14 Ill. 338.
the estate were ascertained and paid, Administrator de bonis non. The ad- Stewart v. Phenice, 65 Ia. 475 ; and ministrator de bonis non takes all unad- although obtained by suit on the proministered assets, Schouler on Exrs. S bate bond. Wiggin v. Swett, 6 Met. 408 : Woerner on Admn. S 351 ; Kelly v. 197. But not so far as it has been exKelly, 9 Ala. 908; and may include them pended bona fide by his personal reprein his inventory, although not actually sentatives in the administration of his in his hands. Fay v. Muzzey, 13 Gray estate. Mulford v. Mulford, 13 Stew. 53. And he may recover for injury done (N. J.) 163. to such property before his appointment.
But the administrator de bonis non Bell v. Speight, 11 Humph. 451. Such does not take administered assets, assets will include a note delivered by Schouler on Exrs. $ 408; Woerner on the administrator in chief without Admn. § 351 ; Cochran v. Thompson, authority to the guardian of the chil- 18 Tex. 653 ; such as a note taken for dren of the deceased, Morse v. Clay- property of the estate hired out by him, ton, 21 Miss. 373; Stevens v. Goodell, Harney v. Dutcher, 15 Mo. 89; or a 3 Met. 34 ; debts owing to the adminis- judgment recovered by the administratrator as such, Varnum v. Taylor, 59 tor on a note taken by him for goods Hun 554 ; and property received by of the intestate which he had sold, the administrator and converted to his Oglesby v. Gilmore, 5 Ga. 56 ; or the own use, Slagle v. Entrekin, 44 0. St. price of property sold, Calder v. Pyfe, 637 ; or fraudulently transferred by 2 Cranch C. C. 430 ; although a suit the administrator, Swink v. Snodgras, by the executor for the price was pend17 Ala. 653; Cochran v. Thompson, 18 ing at the time of his removal. Gil. Tex. 652; Forniquet v. Forstall, 34 bert v. Hardwick, 11 Ga. 599. So,