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PART III. BOOK II.

SECT. 2.-Of the Payment of Debts of Record. 1. Judgments. 2. Decrees.

3. Statutes and Recognizances. p. 859.

SECT. 3.–Of Debts by Specialty, and by Simple Contract. p. 869.
SECT. 4.-Of the Payment of an Inferior Debt by an Executor or Administrator

before a Superior without notice ; and of suffering Judgment on an

Inferior Debt without notice of a Superior. p. 879.

SECT, 5.-Of the Power of Preference by an Executor or Administrator among

Creditors of Equal Degree. p. 881.

SECT. 6.-Of the Right of the Executor or Administrator to Retain a Debt due

to him from the Testator or Intestate. p. 884.

PART III. BOOK III.

1

*BOOK THE THIRD.

OF THE QUANTITY OF THE ESTATE IN ACTION OF AN

EXECUTOR OR ADMINISTRATOR.

Hitherto the subject as to the quantity of the estate of an executor or administrator has been confined to personal property of the testator or intestate in possession ; that is, where he had not only the right to enjoy, but had the actual enjoyment of the thing. But property in chattels personal may also be in action ; that is, where a man has not the occupation, but merely a right to occupy the thing in question ; the possession whereof may, however, be recovered by a suit or action, from whence the thing so recoverable is called a thing, or chose in action.

Thus, if a man promises or covenants with me to do any act, and fails in it, whereby I suffer damage, the recompense for this damage is a chose in action ; for though the right to recover a recompense vests in me at the time of the damage done, yet there is no possession of it till recovered by course of law (a).

By the term chose in action, as used in this treatise, is to be understood a right to be asserted, or property reducible into possession, either by action at law, or suit in equity (6).

*The object of the present book will be to investigate what choses in action the estate of an executor or administrator comprises : and the subject may perhaps be separated conveniently into these four divisions; 1st, to what choses in action an executor or administrator is entitled, which the deceased himself might have put in suit. 2ndly, As to the right of an executor or administrator to choses in

(a) 2 Black. Comm. 397.

(6) A testator bequeathed a leasehold estate to trustees, upon trust as therein mentioned ; and first, he charged the estate with the payment of an annuity to his daughter during all his interest in the estate : The daughter afterward mortgaged her annuity, first to A. and afterward to B.; but B. gave the trustees notice of his mortgage before A.

did : And it was held by Sir L. Shad. well, V.-C., that the annuity was a chattel interest in equity and not a chose in action, nor subject to any of the rules established with regard to assignment of choses in action ; and consequently that B. had not gained any priority over A. : Wiltshire v. Rabbits, 14 Sim. 76.

[*693]

[*694]

action, where the action accrues after the death of the testator or intestate. 3rdly, As to the title of an executor or administrator to the executory and contingent interests of the deceased. 4thly, What suits, commenced by the testator or intestate, may be continued by the executor or administrator.

*CHAPTER THE FIRST.

TO WHAT CHOSES IN ACTION THE EXECUTOR OR ADMINISTRATOR IS

ENTITLED, WHICH THE DECEASED MIGHT HAVE PUT IN SUIT.

It may be advisable to treat of the subject of this chapter in two subdivisions ; lst, The general question as to what actions survive to the executor or administrator; 2ndly, Particular instances where the executor or administrator is entitled to choses in action, which the deceased might have put in suit, and where not.

on

contract

SECTION 1. The general question as to what actions survive to the executor or

administrator. With respect to such personal actions as are founded upon any

obligation, contract, debt, covenant, or other duty, the All personal actions founded general rule has been established from the earliest duty, &c., sur- times ; that the right of action on which the testator or vive:

intestate might have sued in his lifetime survives his death, and is transmitted to his executor or administrator (a). Therefore, it is clear that an executor or administrator shall have actions to recover debts of every description due to the deceased, either debts of records, as judgments, statutes, or recognizances, or debts due on special contracts, as for rents ; or *on bonds (6), covenants, and the like, under seal ; or debts on simple contracts, as notes unsealed, and promises not in writing, either express or implied (c). It is true that no action of account lay for an executor at common law, upon the

the debt, descends to the heir-at-law : Jerningham v. Herbert, 4 Russ. Chanc. Cas. 388. Allen v. Anderson, 5 Hare, 163. See also Cust v. Goring, 18 Beav.

+ See American note at end of this Section.

(a) 1 Saund. 216, a. n. (1) to Wheatley v. Lane. The right of executor to sue is extended to administrators, by stat. 31 Edw. III. s. 1, c. 11.

() A Scotch heritable bond, although it contain a personal obligation to pay

383.

(C) Wentw. Off. Ex. 159, 14th edit. Com. Dig. Administration, (B.). Toller, 157.

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