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AND TRUSTEE

BANKRUPT if granted, discharges him “from all liability in respect

of any act done or default made by him in the administration of the affairs of the bankrupt, or otherwise in relation to his conduct as Trustee of such bankrupt; but such order may be revoked by the Court on proof that it was obtained by fraud."

CHAPTER XVIII.

EXECUTORS, ADMINISTRATORS, AND HEIRS.

AND ADMINI8TRATORS.

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RulE 73.—The personal representatives (a) of a ExecutORS deceased person (i.e., his executors or administrators (6)) can be sued on all contracts made with

RULE 73. him, whether broken before or after his death.

Personal Executors or administrators represent the deceased, or tatives to rather, his personal estate, and are liable, to the extent be sued on of the assets which have come into their hands to be tracts administered, upon all contracts made by him for made by breaches before or after his death (c). Their liability is ceased. the same, whatever the form (d), or the nature of the testator's or intestate's contracts; that is to say, an executor, &c., is bound, not only by the promise of the testator to pay a debt, but by his undertaking to perform any other act,-e.g., to give a fortune to his daughter (e), to build a house (f), and so forth. So, if M., the testator, enters into a contract with A., that N. should serve A. for a certain time, and after M.'s death, N. before the expiration of the time leaves A.'s service, A. can sue X., M.'s executor, for the breach of the agreement (g). So,

(a) See, for distinction between real and personal representatives, Chapter XVII.

(6) The liability of an executor is, except where the contrary is stated, the same as that of an administrator, and vice versa.

(c) Bullen, Pleadings, 3rd ed., 154.
(d) 2 Williams, Executors, 6th ed., 1590—1592.
(e) Bacon, Abr., Executors, P. 2 ; 2 Williams, Executors, 6th ed., 1591.
(f) Quick v. Ludborrow, 3 Bulst. 30 ; Wentworth v. Cock, 10 A. & E. 42.
(g) Williams, Executors, 6th ed., 1592.

AND ADMINISTRATORS.

EXECUTORS where A. had entered into a contract with M. to supply

him with a certain quantity of slate monthly at a fixed price, and M. agreed to receive a certain number of tons until a date fixed upon in the agreement, and died before that date, it was held that X., his personal representative who refused to receive the slate, was liable to an action at the suit of A., on the ground that he was bound to pay damages out of the assets if he did not take the contract upon himself (h).

Though an executor is at common law (i) not liable for the torts of his testator, he can often be sued for what is in reality a tort in the form of an action for breach of contract. At common law, for example, trover does not lie against an executor for a conversion by his testator; but if the testator converts and sells goods of another person, the owner can bring against the executor an action for money received. So, if one man take the horse of another, and bring him back again, his executor cannot (independently of statute) be sued for the trespass, though the wrong-doer might have been so sued; but an action can be brought against the executor for the use and hire of the horse ; and though the executor of an innkeeper cannot be sued in tort (unless under 3 & 4 Will. IV. c. 42, s. 2), for the loss of a guest's goods, he can be sued for the breach of an implied promise to keep them safely (l).

.

(h) Wentworth v. Cock, 10 A. & E. 42.

(i) He is now, generally speaking, liable by statute, see Chapter XXXII., post.

(1) Morgan v. Rarey, 2 Fost. & F. 283. See, for these and further examples, Williams, Executors, 6th ed., 1598, 1602. It should be noticed, that in the last case, as in the similar one of an action against a carrier for breach of the contract to carry safely, the real ground of the action is a breach of contract, and not a tort.

It is not quite clear how far an executor can be made responsible for an act which is not really a breach of contract, by being sued in the form of an action ex contractu. He cannot, for example, be sued for a debt due on a penal statute (2 Williams, Executors, 6th ed., 1597 ; Anon., Dyer, 271 a.); and it is questionable to what extent the executor can be made liable in an action ex contractu, for the negligence of his

a

AND ADMINISTRATORS.

tatives

An executor may further be liable to an action, where EXECUTORS the testator could not have been sued; e. g., where he has contracted that his executors shall pay 201. after his death (m). The personal representatives are bound by all con- Personal

representracts made by the deceased, whether named therein or not, and even when the heir is named and they are not bound on named (n), and their liability is not diminished by the though not

contracts, fact, that the real representatives may be also liable (o). named. Hence, an executor may be sued on a covenant real, i. e., one which runs with the land, and descends to the heir (p). His liability, therefore, exceeds his rights, in respect of such covenants (q), for an executor cannot sue on them, even though broken in the testator's lifetime, unless substantial damage was caused by the breach to the personal estate.

Exception 1.-Contracts limited to the lifetime of the deceased (r). Exceptions.

Exception 2.-Covenants in law not broken during the lifetime of Contracts the deceased.

limited to

lifetime of deceased. Certain covenants are annexed by the law to the use Covenants

in law. of certain expressions. Whenever, for example, certain terms are used in a lease, it is inferred as a matter of law, that the person using them enters into certain covenants. Thus, under a lease by deed, the word demise

testator ; e.g., as a carrier, surgeon, &c. His liability probably depends
upon the answer to the inquiry, whether such actions are to be considered
as in substance actions for breach of contract, or actions for tort (compare
Powell v. Layton, 2 N. R. 370 ; Alton v. Midland Rail. Co., 19 C. B.,
N. S., 213 ; 34 L. J. 292, C. P. ; Pozzi v. Shipton, 8 A. & E. 963). But
it seems on the whole, that an executor-at any rate of a carrier-can
be made liable in an action on contract for his negligence. See pp. 16-20,
ante, and Chapter XIX.

(m) Powell v. Graham, 7 Tannt. 580.
(n) Bacon, Abr., lleir, F. ; 2 Williams, Executors, 6th ed., 1591, 1592.
(0) Ibid., 1616, 1617.
(p) Ibid.
(9) See p. 211--212, ante.

() Rule 41, Exception 2. It would appear that an executor cannot be sued for a breach of promise of marriage by his testator, see Chamberlain v. Williamson, 2 M. & S. 408, and p. 208, ante.

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AND ADMINISTRATORS.

case

EXECUTORS, or let, or any equivalent words sufficient to constitute a

lease, import a covenant for title and for quiet enjoyment,
unless there be an express covenant on either point, in
which no implication can be raised from such
words (8). Such implied contracts are limited to the
duration of the lessor's estate, and cease (t) upon its
determination (u). No action lies against an executor
or administrator upon such a covenant at law which is
not broken until after the death of the testator (v).
Accordingly, where a tenant for life remainder over
demised to the lessee, his executors, &c., for a term of
fifteen years, without any express covenant for quiet
enjoyment, and the lessee was evicted by the remainder-
man after the death of the tenant for life, but before the
expiration of the fifteen years; it was held that no
action of covenant could be maintained by the lessee
against the executor of the tenant for life in respect of
such eviction, although it was admitted that the use of
the word demise in the lease imported a covenant in law
for quiet enjoyment (w).

Erception 3.-Contracts on which the deceased must have been sued jointly with other persons (oc).

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Where deceased co-contractor.

Sub. ordinate Rule 1.

SUBORDINATE RULE I.

An action can be commenced against an executor before

probate, but an action cannot be commenced against

Action can be commenced

(s) Line v. Stephenson, 4 Bing. N. C. 678 ; 5 Bing. N. C. 183 ; Adams v. Gibney, 6 Bing. 656, 666.

(t) Line v. Stephenson, 4 Bing. N. C. 678 ; 5 Bing. N. C. 183 ; Adams v. Gibney, 6 Bing. 656, 666 ; see Williams v. Burrell, 1 C. B. 402 ; Penfold v. Abbott, 32 L. J. 67, Q. B.

(u) Bullen, Pleadings, 3rd ed., 205, n.
(v) 2 Williams, Executors, 6th ed., 1618.

(w) Ibid. ; Adams v. Gibney, 6 Bing. 656. Compare, as to difference between covenants in law and implied covenants, Williams v. Burrell, 1 C. B. 402 ; 14 L. J. 98, C. P. ; Smith, Landlord and Tenant, 293, n.

(x) Compare Rule 41, Exception 4; and see Rule 52 for explanation.

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