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money collected by an attorney em- Guinness 0. Whalen, 17 R. I. 619. ployed by the administrator in chief is He may continue a suit begun by him administered assets to be included (on as administrator ad colligendum, Mchis removal) in his account to the Pro- Mahon 0. Allen, 4 E. D. Smith 519; brate Court and not recovered by his or begun by his predecessor, Bain v. successor in an action by him against Pine, 1 Hill 615; although he could the attorney. Sloan v. Johnson, 22 not be compelled to do so. Id. Miss. 47. And the administrator de It is his duty to assume the defense bonis non cannot, by his mere elec- of actions against his predecessor on tion, convert into assets the proceeds contracts of the deceased, National of an illegal sale of land made by his Bank of Troy v. Stanton, 116 Mass. predecessor. Woods o. Legg, 91 Ala. 435 ; Brown v. Pendergast, 7 Allen 427; 511. So, where the maker of a note Owen o. Blanchard, 2 Cr. C. C. 418; and becomes the executor of the payee and he cannot repudiate a lawful contract fails to inventory the note, it is ex- of his predecessor. Cock v. Carson, 38 tinguished as such, and chargeable as Tex. 284. In some states he may conassets in his hands, and cannot therefore vey real property sold by his predebe recovered in an action by the ad- cessor in performance of the contract ministrator de bonis non against the of sale, Shawhan v. Loffer, 24 Ia. 217; executor after his resignation. Tar- although in other states he has no such bell c. Jewett, 129 Mass. 457. But see, power. Davis v. Brandon, 2 Miss. 154. ontra, Kelsey o. Smith, 2 Miss. 68. An adminstrator de bonis non is bound

Pricity of estate-Contracts. Strictly by the lawful acts of his predecessor in speaking there is no privity of estate due course of administration, Badger v. between a former executor or adminis. Jones, 66 N. C. 305; Johnston v. Lewis, trator and the administrator de bonis Rice Ch. 40; but only so far as they non, Alsop . Mather, 8 Conn. 584; are legal and valid. Forniquet 4. For. American Board's Appeal, 27 Conn. stall, 34 Miss. 87. But he is not liable 344; Estate of Small, 5 Pa. St. 258 ; for moneys collected by his predecessor, although he is bound by admissions of or specific chattels delivered to a legatee his predecessor made in good faith in for life, Matter of Place, 1 Redf. 276; the due administration of the estate. Brownlee v. Lockwood, 5 C. E. Gr. 239 ; Duncan r. Watson, 28 Miss. 187. And, although, in Alabama, he is liable for ir general, the power of the adminis- assets in the hands of the former adtrator de bonis non is the same as that ministrator, Taylor v. Benham, 5 How. of his predecessor. Shackelford 233; Wilkinson o. Hunter, 37 Ala. 268 ; Runyon, 7 Humpb. 41. So, a general nor for his devastavit or default. Alsop administrator succeeds to all the rights v. Mather, 8 Conn. 584 ; Smithers v. of a special administrator, Cowles v. Hooper, 23 Md. 273. And he is not Hayes, 71 N. C. 230; and in North liable, in general, to a suit either on the Carolina, he may sue on a note given contract of his predecessor, McBeth v. to the special administrator for prop- Smith, 3 Brev. 511; or his own imerty sold by him. Id. So, an adminis- plied promise to perform such contract.. trator de bonis non may sue on a

Pearce v. Smith, 2 Brev. 360. He is not specialty taken by the executor in his liable to a creditor in a direct action for representative capacity. Spencer v. the amount of a judgment recovered Rutledge, 11 Ala. 590 ; or on a con- against his predecessor, although he tract with his predecessor, where the may have sufficient assets, but the moneys recovered will be assets. Mc- judgment should be revived by scire

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facias against him. Drenkle v. Shar. tinguished by her marriage. Field o. man, 9 Watts 485.

Torrey, 7 Vt. 372. As to statutory disSo, he is not liable in an action qualification of married women, see brought by his predecessor for a debt vol. i. pp. 525, 273, American notes. due him from the estate, but may be Statutes. When

unmarried required to adjust it in settlement of his woman appointed executrix marries, accounts. Prentice v. Dehon, 10 Allen her authority is extinguished, but when 354. So, the administrator of a deceased a married woman is named as executrix, executor cannot maintain such an action she may be appointed and serve in against the administrator de bonis non every respect as a feme sole, in California even after the amount of the indebted. (Code C. P. § 1352), Dakota (1887 ness has been settled in the Probate C. L. S 5697), Idaho (1887 R. S. § 534), Court in the account of the executor's Montana (1887 C. S. p. 290, § 170), estate. Munroe v. Holmes, 9 Allen 244. Nevada (1885 G. S. § 2711). The mar

For the remedies accruing to an ad- riage of an executrix or administratrix ministrator de bonis non against his revokes her letters and extinguishes her predecessor or the estate of his prede- authority, in Arkansas (1884 Dig. Stats. cessor, see p. *832, ubi infra, American § 32), Georgia (1882 Code, § 2443), note, and for remedies on the adminis- Kentucky (1887 G. S. c. 39, § 16), Maine tration bond, see p. *463, ubi supra, (1883 R. S. c. 64, § 22), Missouri (1889 American note.

R. S. § 41), Nebraska (1893 C. S. c. Marriage of executrix or administra- 23, SS 170, 188), Ohio (1890 R. S. $ 6022), trix. When an administratrix marries, Rhode Island (1882 P. S. c. 184, S3 her husband becomes co-administrator, 19, 20), Vermont (1880 R. L. § 2075), and is liable for any act of adminis- Virginia (1887 Code, S 2644), Washingtration afterward performed by her, ton (1891 Code Pro. $ 889), West Dowty v. Hall, 83 Ala. 165 ; and a Virginia (1891 Code, c. 85, $ 9), Wisconcitation to account is sufficiently served sin (1889 An. Stats. & 3802), Wyoming on him alone. Kavanaugh o. Thomp- (1887 R. S. § 2010); unless she gives son, 16 Ala. 817. So, the husband of bond, in Pennsylvania (1883 Purd. Dig. an executrix becomes co-executor and p. 560, SS 252, 256); but not if her hustrustee, and must be joined in any action band consents, in Indiana (1888 R. S. against her, and their communications to $ 2251); and gives bond for her, in one another, with reference to the trust Illinois (1891 R. S. c. 3, § 3); and the estate, are not privileged, as in the ordi- husband may be appointed in her place, nary case of husband and wife. Wood v. in Georgia (1882 Code, $ 2443). A Chetwood, 12 C. E. Gr. 311. In Mas- married woman executrix or adminissachusetts, the statute terminates the tratrix has power to act as feme sole, in authority of an administratrix on her Delaware (1893 R. C. c. 76, $ 8). She marriage if she is one of several, but may act as executrix independent of her husband becomes joined with her, if her husband, in lova (1888 R. C. S she is sole administratrix. Barber v. 2345); may be executrix or administraBush, 7 Mass. 510. And in Kentucky, trix without restriction, in Massachuher marriage vacates her authority, setts (1882 P. S. c. 147, $ 5); and upon Tribble v. Broaddus (Ky.), 23 S. W. the marriage of an executrix or adminRep. 349. So, in Vermont, the author. istratrix she continues as before, in ity of a feme sole as guardian is ex- New Hampshire (1891 P. S. c. 188, $ 9).

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*PART THE THIRD.

OF THE POWERS AND DUTIES OF AN. EXECUTOR OR ADMINIS.

TRATOR.

BOOK THE FIRST.

AN

EXECUTOR OR

OF THE POWER AND AUTHORITY OF

ADMINISTRATOR.

CHAPTER THE FIRST.

OF THE POWER AND AUTHORITY OF AN EXECUTOR OR ADMINISTRATOR

GENERALLY.

Power of executor

After the administration is granted, the power of an administrator is equal to, and with, the power of an executor (a).

It has already appeared in the course of the inquiry into the quality and quantity of the estate of an executor or administrator that, as an executor or administrator has the same or administrator

to bring actions. property in the personal effects as the deceased had when living, so he has the same power to bring actions to recover them (6). It is clear that an *executor de son tort cannot bring any action in right of the deceased (c).

See American note at end of this liver it up, unless the plaintiff would Chapter.

give them a schedule of its contents : (a) Touchst. 474.

And Lord Tenterden held that the de(6) Ante, p. *695, et seq. In Cobbett v. fendants had no right to insist on the Clutton, 2 C. & P. 471, a relation of the inventory, before they gave up the box : defendants had in his possession a box that the plaintiff, as executor, was encontaining papers belonging to the titled to the possession of the papers of deceased : The box, with its contents, the deceased ; and that, being so, he was sent by him to the office of the was entitled to bring an action of defendants, who were solicitors, to be trover, on the defendants' refusal to delivered to the plaintiff, as executor, give them up. on his giving a schedule of the deeds (c) Bro. Abr. Administration 8. It contained in the box: The plaintiff should, however, be observed, that an demanded the box and its contents from executor de son tort, being in possession the defendants, but they refused to de- of goods of the deceased, has sufficient

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Within a convenient time after the testator's death, or the grant of

administration, the executor or administrator has a right Power of executor to enter the house to enter the house descended to the heir, in order to of the heir.

remove the goods of the deceased (d); provided he do so without violence; as, if the door be open, or at least the key be in the door ; and, although the door of entrance into the hall and parlor be open, he cannot therefore justify forcing the door of any chamber, to take the goods contained in it; but is empowered to take those only which are in such rooms as are unlocked, or in the door of which he shall find the key (e). He has also, a right to take deeds and other writings relative to the personal estate out of a chest in the house if it be unlocked, or the key be in it; but he has no right to break open even a chest. If he cannot take possession of the effects without force, he must desist, and resort to his action (f). On the other hand, if the executor or administrator, on his part, be remiss in remov. ing the goods within a reasonable time, the heir may distrain them as damage feasant (5).

Where a lessee for years underlets the land and dies, his personal Power of executor representative may distrain, at common law, for the to distrain. arrears of rent which became due in the lifetime of the *deceased : because these arrears were never severed from the reversion, but the executor or administrator has the reversion, and the rent annexed thereto, in the same plight as the deceased himself had it : and it is not like a reversion which descends to the heir, while the arrears go to the executor or administrator (h).

But, at common law, the executors or administrators of a man seised of a rent-service, rent-charge, rent-seck, or fee-farm, in fee- . simple, or fee-tail, or for his own life or pur autre vie, could not distrain for the arrears incurred in the lifetime of the testator or intes

tate (i). To remedy this, the statute 32 Hen. VIII. c. Executor 37, was passed, which enacts that it shall be lawful to for rent due to every executor and administrator of any person or per&c., in his life sons unto whom rent or fee-farm is or shall be due, and

not paid at the time of his death, to distrain for the

32 Hen. VIII, c.
37.
&c., may distrain

their

testator,

time.

title to maintain an action for taking
them away, or injuring them, against a
mere wrongdoer. See ante, p. *253.

(d) Wentw. Off. Ex. 202, 14th edit.
(e) Ibid. Toller, 255.
() Wentw. Off. Ex. 202, 14th edit.

(g) Wentw. Off. Ex, 202, 14th edit. Plowd. 280, 281. Stodden v. Harvey, Cro. Jac, 204.

(h) Wade v. Marsh, 1 Roll. Abr. 672, tit. Distress (0.) 13. S. C. Latch. 211.

(i) Co. Lit. 162, a.

Power of execu

of tenants pur autre rie to

arrearages of all such rents or fee-farms, upon the lands, tenements, and other hereditaments which were charged with the payment of such rents or fee-farms, and chargeable to the distress of the said testator, so long as the said lands, tenements or hereditaments continue, remain and be in the seisin or possession of the said tenant in demesne, who ought immediately to have paid the said rent or fee. farm so being behind, to the said testator in his life, or in the seisin or possession of any other person or persons claiming the said lands, tenements, and hereditaments, only by and from the same tenant by purchase, gift, or descent, in like manner and form as their said testator might or ought to have done in his lifetime, and the said executors and administrators shall, for the same distress, lawfully make avowry upon their matter aforesaid.

And by section 4, tenants pur autre vie, their executors or administrators may sue or distrain for arrears due during the life, and unpaid after the death, of the cestui que vie in tors like manner as at common law they might have done distrain. during his life.

*The statute applies only to cases in which the owner of the rent, if he had lived, might have distrained ; and therefore, if the rent be in arrear, and the owner grants away his interest and dies, his executors or administrators shall have no remedy for these arrearages (k).

The statute gives the power of distress upon the lands out of which the rent is reserved, so long as they continue in the hands of him from whom the rent is due, or of any person representing or claiming title through or under bim, by purchase, gift, or descent, ad infinitum (1): But they cannot be distrained upon for such rent, if they be in the hands of one claiming paramount to him ; and therefore, if the lord enter upon the grantor for an escheat, the land shall not be distrained upon for arrears of rent (m). So where a man makes a lease for life, rendering rent, remainder for life, remainder in fee, and after the accruing of rent from the first tenant for life, the lord dies and then the tenant for life dies, the executors cannot distrain upon the remainder. man; because he claims not by or from the tenant for life (n). And if tenant in tail grant a rent for life, and die, the executor of the grantee cannot distrain upon the issue in tail, who comes in under the original

(k) Co. Lit. 162, 6. Ognell's Case, 4 (m) Co. Lit. 162, b. Co. 50, b.

(n) Co. Lit. 162, b. (1) Co. Lit. 162, 6. Ognell's Case, 4 Co. 50, 6.

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