were warranted in disposing of a lease, as assets of the testator, where there was a proviso against alienation by the lessee: And Lord Thurlow said, "If A. lets a farm to B. with covenant not to alien, and B. dies, may not his executors dispose of it? I think it has been determined that they may; and I have always taken it as clear law. It is an alienation by the act of God. I remember, Lord Camden entered into the question much in the same way. He took it to be clear law, that an alienation by death could not be a *forfeiture. In case of a lease for years to A., it goes to his executor, not by way of limitation as in the case of a remainder over, &c., but as coming in the place of the lessee. I understood it to be well settled, as I have stated." But where a lease was made for years upon condition that the lessee, his executors, or assigns, should not alien without the consent of the lessor, an assignment by the administrator of the lessee was held a breach of the condition; on the ground of the administrator being an assignee within the condition (u).

As to the question, whether, in case a term for years be forfeited by reason of the executor or administrator assigning or underletting without license, relief can be obtained in equity; the general rule is, that a court of equity will not afford any relief against a forfeiture occasioned by assigning without license (x). However, where a lease contained a covenant, that if the lessee should let the premises for any longer period than three years, except to the wife or children of the lessee, without license of the lessor and his assigns first had, then the said lease should be void, and the executor of the lessee sold the lease for the payment of the debts of his testator, the plaintiff, the purchaser, was relieved against the forfeiture (y).

The executor's

This subject may be concluded, by observing that the executor's or administrator's power of disposal over the assets is not power of disposal at all controlled or suspended by the mere commencenot controlled by ment of an action, on the part of a creditor of the

over the assets is

merely commenc

tration action.

ing an adminis. *deceased, for the administration of his estate: For the power of the personal representative to aliene and make

(u) Sir Wm. More's Case, Cro. Eliz. 26.

(r) Lovat v. Lord Ranelagh, 3 Ves. & Beam. 24. And in the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41, s. 14), where restrictions on, and relief against forfeiture of leases for the breach of certain covenants are given to the lessee, special exception is

made for the case of a breach of a covenant not to assign, underlet, part with the possession, or dispose of the land leased (s. 14, sub-s. 6); against such a breach the act does not extend the power of relief formerly exercised.

(y) Cox v. Brown, 1 Chanc. Rep. 170: but quære, whether there was any forfeiture in this case see ante, p. *810.

a good title to any part of the assets continues until there has been judgment in the action (z).

exchange.

A promissory note or bill of exchange made payable to the deceased or his order, may be indorsed by his executor or admin- Executor may inistrator (a). And, generally speaking, there is no dorse a bill of difference between an indorsement of a note by the deceased and one by his personal representative (b). In a case where the payee of a note, made payable to him or his order, had indorsed it, but had died without having made any delivery of it, and after his death his executors had merely delivered it so indorsed to the plaintiff, it was held that he could not maintain his action on the note :for that the indorsement of the testator was incomplete without a delivery by him, and the delivery by his executors without any indorsement by them was inefficacious (c).

Where the drawee of a bill is dead, presentment for acceptance may be made to his personal representative (d). The holder

Provisions

Act, 1882.

of

now has an option, and presentment is excused, and a Bills of Exchange bill may be treated as dishonored by non-acceptance where the drawee is dead (e).

Where the drawee or acceptor of a bill is dead and no *place of payment is specified, presentment for payment must be made to a personal representative, if such there be, and with the exercise of reasonable diligence he can be found (f). Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence (g).

(2) Neeves v. Burrage, 14 Q. B. 504. (a) Rawlinson . Stone, 3 Wils. 1. Where a person is under obligation to indorse a bill in the representative capacity, he may indorse the bill in such terms as to negative personal liability. Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 31 (5). And if a person indebted to another gives him a blank acceptance for a certain sum, and the donce subsequently dies, his administrator may fill up the paper as a bill payable to drawer's order, insert his own name as drawer, and can enforce payment thereof against the acceptor :

Scard v. Jackson, 34 L. T. N. S. 65; 24 W. R. 159.

(b) Watkins v. Maule, 2 Jac. & Walk. 243.

(c) Bromage v. Lloyd, 1 Exch. 32: Bishop v. Curtis, 18 Q. B. 879.

(d) Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 41 (1, c). For the practice prior to this act see Smith v. New South Wales Bank, L. R. 4 P. C. 194, 208.

Wherever a power is given, if a personal trust and confidence be Executors cannot thereby reposed in the donee to exercise his own judgof sale by attor- ment and discretion, he cannot refer the power to the execution of another; for delegatus non potest delegare. Therefore, where a power of sale is given to executors, they cannot sell by attorney (h).

exercise a power

ney.

Power of execu

re-assure.

By the statute 19 Geo. II. c. 37, s. 4, re-insurance on ships was declared generally unlawful: but in case the assurer tors of assurer to should die, his executors or administrators might make re-insurance, to the amount of the sum before by him assured, provided it was expressed in the policy to be a re-insurance. The intention of the legislature, in making this exception in favor of executors and administrators, seems to have been to provide a fund to satisfy the assured in case of a loss, without its falling on the estate of the deceased.

This was repealed, and re-insurance made lawful by statute 27 & 28 Vict. c. 56. Both these enactments were repealed by 30 & 31 Vict. c. 23, ss. 3, 4 (Sched. D), and thus re-insurances are legal by virtue of the common law (i) without any necessity for their appearing to be re-insurances on the face of them (k).

Power of execu

ment of policy.

In the case of a person insured against fire, the policy of insurance and interest therein shall continue to his heir, executor tors of assured to or administrator respectively, to whom the property *insured shall belong, provided, before any new payment be made, such heir, executor, or administrator, shall procure his right to be indorsed on the policy at the office, or the premium to be paid in the name of the heir, executor or administrator.

by executor.

An executor may in some cases claim by election; as where the Power of election testator, at the time of his death, was entitled out of several chattels to take his choice of one or more to his own use (). If the thing, of which the election is given, is to be done unica vice, the election ought to be at the time (m). So if nothing passed or vested in the grantee, &c., before his election, it ought to be made in the life of the parties (n): As if a man gives to A. such of his horses, as A. and B. shall choose, the election ought to

(h) Combe's Case, 9 Co. 75, b. 1 Sugd. Powers, 222, 6th edit.

(i) Arnould's Marine Insurance, 6th ed. 103.

(k) Mackenzie v. Whitworth, 1 Ex. Div. 36.

(1) Toller, 174.

(m) Com. Dig. Election (B.) Co. Lit. 145, a.

(n) Ibid.

be in the life of A. (o). But where an interest vests immediately by the grant, &c., election may be made by the heir or executor, as well as by the party himself (p). As if a fine be of one hundred acres, and the conusee renders fifty to the conusor for years, his executor may choose which fifty he will have (q). If a man gives one of his horses to A. and B., after the death of A., B. may choose which he will take; for an interest vested in them immediately by the gift (r). So if the election determines only the manner or degree in which the grantee shall have the thing, his heir or executor, as well as the party himself, may make it; for in such case the interest vests immediately (s): As if a lease be granted to A. for ten or twenty years, as he shall elect, the executor is entitled to the election (t). So if A. makes a lease for years to B. of forty acres, *parcel of sixty, the election may be made by B.'s executor (u). So if the thing of which election is given, is annual, and to have continuance, the heir or executor may make the election (x).

Power of executor to accept composition, &c.

8.37.

An executor may pay or allow any debt or claim on any evidence that he thinks sufficient. He may, if and as he thinks fit, accept any composition or any security, real or personal, for any debt or for any property real or personal 44 & 45 Vict. c. 4, claimed, and may allow any time for payment of any debt, and may compromise (y), compound, abandon, submit to arbitration, or otherwise settle, any debt, account, claim or thing whatever relating to the testator's estate, and, for any of those purposes, may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things, as to him seem expedient, without being responsible for any loss occasioned by any act or thing so done by him in good faith (z).

() Morris v. Livesay, 1 Roll. Abr. 726, tit. Election (C.) pl. 6, Com. Dig. Election (B.).

(p) Com. Dig. Election (B.).

(9) 1 Roll. Abr. 725, tit. Election (C.) pl. 4. Com. Dig. ubi supra.

(r) 1 Roll. Abr. 725, tit. Election (C.) pl. 5. Com. Dig. ubi supra.

(8) Com. Dig. ubi supra. Co. Lit.

145, a.

them to the estate, see De Cordova v. De Cordova, 4 App. Cas. 692, where such a compromise was set aside and the executor charged with the full amount payable by him if the compromise had never been effected the other executors being held liable for so much of the said amount as might have come to their hands but for their willful default.

(2) Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, s. 37. This section applies to executorships constituted or created either before or after the commencement of the act.