money collected by an attorney employed by the administrator in chief is administered assets to be included (on his removal) in his account to the Probrate Court and not recovered by his successor in an action by him against the attorney. Sloan v. Johnson, 22 Miss. 47. And the administrator de bonis non cannot, by his mere election, convert into assets the proceeds of an illegal sale of land made by his predecessor. Woods v. Legg, 91 Ala. 511. So, where the maker of a note becomes the executor of the payee and fails to inventory the note, it is extinguished as such, and chargeable as assets in his hands, and cannot therefore be recovered in an action by the administrator de bonis non against the executor after his resignation. Tarbell . Jewett, 129 Mass. 457. But see, contra, Kelsey v. Smith, 2 Miss. 68. Privity of estate-Contracts. Strictly speaking there is no privity of estate between a former executor or administrator and the administrator de bonis non, Alsop v. Mather, 8 Conn. 584; American Board's Appeal, 27 Conn. 344; Estate of Small, 5 Pa. St. 258; although he is bound by admissions of his predecessor made in good faith in the due administration of the estate. Duncan v. Watson, 28 Miss. 187. And, in general, the power of the administrator de bonis non is the same as that of his predecessor. Shackelford v. Runyon, 7 Humph. 41. So, a general administrator succeeds to all the rights of a special administrator, Cowles v. Hayes, 71 N. C. 230; and in North Carolina, he may sue on a note given to the special administrator for property sold by him. Id. So, an administrator de bonis non may sue on a specialty taken by the executor in his representative capacity. Spencer v. Rutledge, 11 Ala. 590; or on a contract with his predecessor, where the moneys recovered will be assets. Mc Guinness v. Whalen, 17 R. I. 619. He may continue a suit begun by him as administrator ad colligendum, McMahon v. Allen, 4 E. D. Smith 519; or begun by his predecessor, Bain v. Pine, 1 Hill 615; although he could not be compelled to do so. Id. It is his duty to assume the defense of actions against his predecessor on contracts of the deceased, National Bank of Troy v. Stanton, 116 Mass. 435; Brown v. Pendergast, 7 Allen 427; Owen v. Blanchard, 2 Cr. C. C. 418; and he cannot repudiate a lawful contract of his predecessor. Cock v. Carson, 38 Tex. 284. In some states he may convey real property sold by his predecessor in performance of the contract of sale, Shawhan v. Loffer, 24 Ia. 217; although in other states he has no such power. Davis v. Brandon, 2 Miss. 154. An adminstrator de bonis non is bound by the lawful acts of his predecessor in due course of administration, Badger v. Jones, 66 N. C. 305; Johnston v. Lewis, Rice Ch. 40; but only so far as they are legal and valid. Forniquet y. Forstall, 34 Miss. 87. But he is not liable for moneys collected by his predecessor, or specific chattels delivered to a legatee for life, Matter of Place, 1 Redf. 276; Brownlee v. Lockwood, 5 C. E. Gr. 239; although, in Alabama, he is liable for assets in the hands of the former administrator, Taylor v. Benham, 5 How. 233; Wilkinson v. Hunter, 37 Ala. 268; nor for his devastavit or default. Alsop v. Mather, 8 Conn. 584; Smithers v. Hooper, 23 Md. 273. And he is not liable, in general, to a suit either on the contract of his predecessor, McBeth v. Smith, 3 Brev. 511; or his own implied promise to perform such contract.. Pearce v. Smith, 2 Brev. 360. He is not liable to a creditor in a direct action for the amount of a judgment recovered against his predecessor, although he may have sufficient assets, but the judgment should be revived by scire facias against him. Drenkle v. Sharman, 9 Watts 485. So, he is not liable in an action brought by his predecessor for a debt due him from the estate, but may be required to adjust it in settlement of his accounts. Prentice v. Dehon, 10 Allen 354. So, the administrator of a deceased executor cannot maintain such an action against the administrator de bonis non even after the amount of the indebtedness has been settled in the Probate Court in the account of the executor's estate. Munroe v. Holmes, 9 Allen 244. For the remedies accruing to an administrator de bonis non against his predecessor or the estate of his predecessor, see p. *832, ubi infra, American note, and for remedies on the administration bond, see p. *463, ubi supra, American note. Marriage of executrix or administratrix. When an administratrix marries, her husband becomes co-administrator, and is liable for any act of administration afterward performed by her, Dowty v. Hall, 83 Ala. 165; and a citation to account is sufficiently served on him alone. Kavanaugh v. Thompson, 16 Ala. 817. So, the husband of an executrix becomes co-executor and trustee, and must be joined in any action against her, and their communications to one another, with reference to the trust estate, are not privileged, as in the ordinary case of husband and wife. Wood v. Chetwood, 12 C. E. Gr. 311. In Massachusetts, the statute terminates the authority of an administratrix on her marriage if she is one of several, but her husband becomes joined with her, if she is sole administratrix. Barber v. Bush, 7 Mass. 510. And in Kentucky, her marriage vacates her authority, Tribble v. Broaddus (Ky.), 23 S. W. Rep. 349. So, in Vermont, the authority of a feme sole as guardian is ex tinguished by her marriage. Field . Torrey, 7 Vt. 372. As to statutory disqualification of married women, see vol. i. pp. 525, 273, American notes. Statutes. When an unmarried woman appointed executrix marries, her authority is extinguished, but when a married woman is named as executrix, she may be appointed and serve in every respect as a feme sole, in California (Code C. P. § 1352), Dakota (1887 C. L. § 5697), Idaho (1887 R. S. § 534), Montana (1887 C. S. p. 290, § 170), Nevada (1885 G. S. § 2711). The marriage of an executrix or administratrix revokes her letters and extinguishes her authority, in Arkansas (1884 Dig. Stats. § 32), Georgia (1882 Code, § 2443), Kentucky (1887 G. S. c. 39, § 16), Maine (1883 R. S. c. 64, § 22), Missouri (1889 R. S. § 41), Nebraska (1893 C. S. c. 23, §§ 170, 188), Ohio (1890 R. S. § 6022), Rhode Island (1882 P. S. c. 184, S 19, 20), Vermont (1880 R. L. § 2075), Virginia (1887 Code, § 2644), Washington (1891 Code Pro. § 889), West Virginia (1891 Code, c. 85, § 9), Wisconsin (1889 An. Stats. § 3802), Wyoming (1887 R. S. § 2010); unless she gives bond, in Pennsylvania (1883 Purd. Dig. p. 560, §§ 252,256); but not if her husband consents, in Indiana (1888 R. S. § 2251); and gives bond for her, in Illinois (1891 R. S. c. 3, § 3); and the husband may be appointed in her place, in Georgia (1882 Code, § 2443). A married woman executrix or administratrix has power to act as feme sole, in Delaware (1893 R. C. c. 76, § 8). She may act as executrix independent of her husband, in Iowa (1888 R. C. § 2345); may be executrix or administratrix without restriction, in Massachusetts (1882 P. S. c. 147, § 5); and upon the marriage of an executrix or administratrix she continues as before, in New Hampshire (1891 P. S. c. 188, § 9). *PART THE THIRD. OF THE POWERS AND DUTIES OF AN EXECUTOR OR ADMINIS OF THE POWER AND AUTHORITY OF AN EXECUTOR OR ADMINISTRATOR GENERALLY. After the administration is granted, the power of an administrator is equal to, and with, the power of an executor (a). Power of executor to bring actions. 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 property in the personal effects as the deceased had when living, so he has the same power to bring actions to recover them (b). 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 Chapter. (a) Touchst. 474. (b) Ante, p. *695, et seq. In Cobbett v. Clutton, 2 C. & P. 471, a relation of the defendants had in his possession a box containing papers belonging to the deceased: The box, with its contents, was sent by him to the office of the defendants, who were solicitors, to be delivered to the plaintiff, as executor, on his giving a schedule of the deeds contained in the box: The plaintiff demanded the box and its contents from the defendants, but they refused to de liver it up, unless the plaintiff would give them a schedule of its contents: And Lord Tenterden held that the defendants had no right to insist on the inventory, before they gave up the box: that the plaintiff, as executor, was entitled to the possession of the papers of the deceased; and that, being so, he was entitled to bring an action of trover, on the defendants' refusal to give them up. (c) Bro. Abr. Administration 8. It should, however, be observed, that an executor de son tort, being in possession of goods of the deceased, has sufficient [*795] [*796] Power of executor of the heir. Within a convenient time after the testator's death, or the grant of administration, the executor or administrator has a right to enter the house to enter the house descended to the heir, in order to 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 removing the goods within a reasonable time, the heir may distrain them as damage feasant (g). Power of executor to distrain. Where a lessee for years underlets the land and dies, his personal representative may distrain, at common law, for the 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 feesimple, 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 intestate (i). To remedy this, the statute 32 Hen. VIII. c. 37, was passed, which enacts that it shall be lawful to every executor and administrator of any person or persons 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. Executors, &c., may distrain for rent due to their testator, &c., in his life 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. (f) 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. 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 feefarm 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 Power of execulife, and unpaid after the death, of the cestui que vie in like manner as at common law they might have done distrain. during his life. tors of tenants pur autre vie to *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 him, 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, b. Ognell's Case, 4 Co. 50, b. (7) Co. Lit. 162, b. Ognell's Case, 4 Co. 50, b. (m) Co. Lit. 162, b. (n) Co. Lit. 162, b. |