gift in tail, and not under the grantor of the rent (o). But if a man grant a rent-charge to A. for the life of B., and lets the land to C. for life, the remainder to D. in fee, the rent is in arrear for many years, B. dies, and afterward C. dies: A. may distrain D. in remainder for all the arrears, by the statute (p).

All manner of arrears of rent issuing out of a freehold or inheritance, whether they be in money, or in corn, cattle, fowls, pepper, spurs, gloves, or any other profit to be delivered, are within the statute, and that whether they be annual, or *every two, three or four years: But work-days, or any corporal service or the like, are not within it (g) : Neither are arrears of a nomine pœnæ (r).

It has been holden that rents issuing out of freehold lands are alone within the statute; consequently that it does not extend to enable executors or administrators to distrain for the arrears of rents issuing out of copyhold (s).

(0) Lambert v. Austin, Cro. Eliz. 333. Lord Fairfax v. Lord Derby, 2 Vern. 612.

(p) Co. Lit. 162, b. Edrich's Case, 5 Co. 118.

(4) Co. Lit. 162, b. (r) Ibid.

(8) Appleton v. Doily, Yelv. 135. Bull. N. P. 57. But in Gilb. Ten. 186, 187, 188, there is the following passage: "In the supplement to my Lord Coke's Treatise of Copyholds, (s. 21, Tracts 216,) it is said that the 32 Hen. VIII. c. 8, concerning remedies for arrears of rent, extends not to copyholds. Το prove which, a case is cited in 2 Leon. 109, which is this: A lord of a manor, whereof were divers copyholders, granted a rent-charge for life, and afterward made a feoffment of the manor to J. S. in fee, who granted a copyhold for life to B.; J. S. died, and the grantee of the rent died, and his executors distrained for the arrears in B.'s copyhold lands; and it is there said, it was held by the Court that the distress was not well taken; and the reason is, because the words of the statute are claiming only by and from him; and the copyholder doth not only claim by his

grantor, but by custom. This opinion, as it seems, was upon the first hearing of the cause; for the very case is reported quite contrary by the same reporter, 2 Leon. 152. 3 Leon. 59. Moor. 812; and it is said to be resolved by all the Judges but Fenner, that the copyhold should be charged with the rentcharge; for the custom is no part of his title, but only appoints how he shall hold: and since it was charged in the lord's hands, it is plainly within the intent and meaning of the Act, as well as the words, to be charged in the copyholder's hands; and to this purpose there is a case in Dyer, 270, b. adjudged. But if the case were adjudged, that the lands should not be charged in the copyholder's hands on that reason, that he doth not claim only by and from, &c., but by custom, yet that would never warrant so general a conclusion, that the statute in no other part should extend to copyholds, and that if a rent were granted out of a copyhold in fee, and the grantee died, that his executors should not have debt or distrain. But turn the tables, and if the Act of Parliament doth in point extend to copyholds, as lands that are claimed by, &c., and

Distress by executor of lessor term or at will:

who has leased for

a

*If a man makes a lease for life or lives, or a gift in tail, reserving a rent, this is a rent-service within the statute of Hen. VIII. (t). But whether if a person seised in fee of land demises it for years, reserving rent, his executor or administrators could, under this statute, distrain for arrears of rent incurred in his lifetime, was a question which had been much discussed, and was not settled until the cases of Prescott v. Boucher (u), and Jones v. Jones (x), which decided the point in the negative; on the ground that the deceased was not tenant in fee-simple, or indeed tenant at all, of the rent.

But now by statute 3 & 4 Wm. IV. c. 42, s. 37, it is enacted, "that it shall be lawful for the executors or administrators of 3 & 4 Will. IV. any lessor or landlord to distrain upon the lands demised c. 42, s. 37. for any term, or at will, for the arrearages of rent due to such lessor or landlord in his lifetime in like manner as such lessor or landlord might have done in his lifetime."

By sect. 38, it is further enacted, "that such arrearages may be distrained for after the end or determination of such term or lease at will, in the same manner as if such term or lease had not been ended or determined, provided that such distress be made within the space of six calendar months after the determination of such term or lease, and during the continuance of the possession of the tenant from whom such arrears became due: provided also, that all and every the powers and provisions in the several statutes made relating to distresses for rent shall be applicable to the distresses so made as aforesaid." Several executors or administrators may all join in distraining, or any one may distrain alone, for the whole rent due, for they are regarded in the light of an individual person (y).

Executors

may

join in distreining executors may

or one of several

distrain alone.

has underlet.

If an administrator makes an underlease of a term of years of the deceased, reserving rent to himself, his executors, &c., Executor of ad*it has been held that his executors, and not the ad- ministrator who ministrator de bonis non, shall have the rent but it should seem that they cannot distrain for it (z), because the reversion that which in this case only doth make a doubt, is overruled, then this is a strong argument, that in other cases, where that is not which occasioned the doubt, the statute shall extend to copyholds, especially since the Act was made to remedy an apparent wrong, and doth no harm either to lord or tenant."

(t) Co. Lit. 162, b.
(u) 3 B. & Ad. 849.
(a) 3 B. & Ad. 967.

(y) 3 Bac. Abr. 30, tit. Exors. (D.) 1. (2) Drue v. Baylie, 1 Freem. 392, 403. See ante, pp. *790, *791.

belongs to the administrator de bonis non; and a reversion is necessary to found the remedy by distress (a).

It is a general rule of law and equity, that an executor or administrator has an absolute power of disposal over the whole an absolute power personal effects of his testator or intestate; and that they cannot be followed by creditors (b), much less by legatees, either general or specific, into the hands of the alienee (c). The principle is, that the executor or administrator, in many instances, must sell, in order to perform his duty in paying debts, &c.: and no one would deal with an executor or administrator, if liable afterward to be called to account (d).

*The power of the executors to dispose of a chattel specifically beeven specific lega- queathed seems to have been formerly questioned (e); but succeeding cases in modern times have established

As an executor may absolutely dispose of the testator's assets for

the general purposes of the will, there seems no good the executer may

sets:

reason why, in the exercise of a sound discretion, and mortgage the aspresuming the language of the will does not peremp

torily require an absolute sale, the executor may not raise the money required by a partial sale or mortgage of the assets (g). And, accordingly, the power of an executor or administrator to mortgage the assets has been recognized by high authorities on several occasions (h). The mortgage *may be either of legal or equitable assets (i), or of mere choses in action (k), and may be by actual assignment, or by deposit (7), and it may properly give the mortgagee a power of sale (m). So, the executor may pledge a part of the assets for the purpose of better enabling him to administer the estate; and it should seem that the pledgee may sell the things pledged, if they are not redeemed within the proper time (n). The power to mortgage is not taken away by the mere commencement of an administration action, where no receiver has been appointed and no injunction granted (nn).

Langley. Lord Oxford, Ambl. 17. Lord St. Leonards in his treatise on Vendors and Purchasers (vol. ii. p. 56, 9th edit.) considers it doubtful whether it is safe to take an assignment of a specific legacy from the executor without the concurrence of the specific legatee, lest the executor should have assented to the bequest: and he cites Tomlinson v. Smith, Finch. 378. But Mr. Coote (Mortg. 5th ed. 309) observes that that was a case of gross fraud; and concludes from all the cases, that if a purchaser or mortgagee shall bona fide deal with an executor, within a reasonable time after the testator's death, and obtain possession of the muniments of title, a specific legatee would never be permitted, at law or in equity, to set up the executor's assent against the sale or mortgage; for by sale and delivery, the title of the purchaser or mortgagee is complete. However, the general rule certainly is that, at law, the title to any specific thing bequeathed, vests, upon the assent of the executor, absolutely in the legatee,

so as to enable him to bring an action
of ejectment for a chattel leasehold, or
trover for the goods which are the sub-
ject of the legacy. (See post, Pt. V.
Bk. II. Ch. I.) And even in equity, if
the legatee, after the assent, were to
assign to a bona fide purchaser, the title
of such an assignee would, it should
seem, be better than that of
any subse-
quent purchaser from the executors.
See post, Pt. III. Bk. III. Ch. IV. § III.
(g) Coote on Mortg. 5th ed. 309.

(h) By Lord Hardwicke in Mead v. Orrery, 3 Atk. 239 : by Lord Thurlow in Scott v. Tyler, 2 Dick. 725: and by Lord Eldon in M'Leod v. Drummond, 17 Ves. 154. Child . Thorley, 16 C. D. 151.

(i) Nugent v. Giffard, 1 Atk. 463. Coote on Mortg. 5th ed. 310.

(k) Scott v. Tyler, 2 Dick. 724. Vane v. Rigden, L. R. 5 Ch. 667. (1) Ibid. Coote on Mortg. 5th ed. 310. (m) Russell v. Plaice, 18 Beav. 21. (n) Russell v. Plaice, 18 Beav. 28, 29. (nn) Berry v. Gibbons, L. R. 8 Ch.

747.

a purchaser from

an executor is not

bound to see to

Again, it is not incumbent on the purchaser or mortgagee of the assets to see the money properly applied, although he knew he was dealing with an executor (o). "It is of the application great consequence," said Lord Thurlow, in Scott v. of the purchase money: Tyler (p), "that *no rule should be laid down here which may impede executors in their administration, or render their disposition of the testator's effects unsafe or uncertain to a purchaser : His title is complete by sale and delivery: what becomes of the price is of no concern to him. This observation applies equally to mortgages or pledges, and even to the present instances where assignable bonds were merely pledged without assignment."

between the pur

ecutor:

In the case of a legal transfer exceptions to the general power of the executor or administrator to dispose of the estate of exception where there is collusion the testator or intestate will be found in those cases chaser and the ex- only where collusion exists between the purchaser, or mortgagee, and the personal representative. That an executor may waste the money is not alone sufficient to invalidate the sale or mortgage; it must further appear that the purchaser or mortgagee participated in the devastavit, or breach of duty in the executor (q).

Fraud and covin will vitiate any transaction, and turn it to a mere color. If, therefore, a man concerts with an executor, by obtaining

(0) M'Leod v. Drummond, 17 Ves. 154. Although an executor or administrator, purporting to act as such, will generally confer a good title upon an alienee to whom he conveys or transfers a legal estate or title, and the alienee has no obligation to see the consideration money properly applied, yet as the executor or administrator has no right to raise money for his own purposes or otherwise than for the purpose of the performance of the duties of administration, so a mortgage for purposes foreign to the administration will be set aside as against a mortgagee who has notice of the purpose for which the money is raised: Ricketts v. Lewis, 20 C. D. 745. In the argument in Re Morgan, 18 C. D. 93, Fry, J., put three possible cases: (i) An executor as executor borrows money ostensibly for executorship purposes on the security

of the testator's assets; that is a valid
transaction (Berry v. Gibbons, L. R. 8
Ch. 747); (ii) A man, known to be an
executor, borrows on the security of the
assets admittedly for his own private
purposes; that is invalid (Wilson v.
Moore, 1 M. & K. 337); (iii) An exec-
utor, not known to be such, borrows
money for his own private purposes on
the security of that which appears to be
his own property but which is really the
testator's property. This last was the
case before Fry, J., and he held that
the transaction was invalid, and his
decision was confirmed by the Court of
Appeal, but the mortgage was an equi-
table mortgage only by deposit. The
conflict here, it is to be noted, was be-
tween two equitable titles.
(p) 2 Dick. 725.

(q) Whale v. Booth, 4 T. R. 625,

note.