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AND ADMINISTRATORS.

executor

an administrator before letters of administration EXECUTORS

granted to him. A person who in any way acts as executor, without taking out probate, and, indeed, without any claim to be against executor, incurs the liabilities attaching to the position before of executor, and, therefore, against such a person who is probate.

. an executor by his own wrong, or, as he is called, an executor de son tort, an action can be, not only commenced, but also maintained, even though he never prove the will, or take out letters of administration (y).

SUBORDINATE RULE II.

On the death of a defendant the action may be carried on Sub

ordinate against his executor or administrator.

Rule II. If the cause of action against the deceased is one Action which survives against his representatives, an action does not

abate on commenced against him does not on his death abate, but death of

defendant. may be carried on against his representatives (z).

RULE 74.-An executor or administrator must RULE 74. be sued in his representative character; i.e., as Executor executor or administrator, on all contracts made by sued as the deceased.

must

executor on contracts of deceased.

An executor is responsible for the contracts of the testator, simply because he is executor, and only in so far as he has assets. He must, therefore, be sued as executor on all contracts made by the deceased. The same principle applies where the ground of the executor's liability is not a contract of the testator's, but some act of his which gives rise to a so-called implied contract; and this holds good even where the breach of the implied contract did not take place until after testator's death.

(y) 1 Williams, Executors, 6th ed., 247—262. Compare pp. 214, 215, ante.

(a) Compare p. 215, ante.

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AND ADMINIS

EXECUTORS Where, for example, M. and A. are co-sureties, and after

M.'s death A. is compelled to pay the whole debt, A.
TRATORS. certainly may, and apparently must, sue X., the repre-

sentative of M., in X.'s representative character; i. e., as
executor or administrator (a).

to be sued

on con

RULE 75. Rule 75.-An executor or administrator must
Executor be sued in his personal character on contracts made
in personal by himself.
character
tracts An executor is personally liable on contracts made by
made by
him.

himself, even though they have reference to, and are for
the benefit of, the testator's estate (b). Thus an exe-
cutor, though not personally liable for the contracts of
the deceased, may make himself liable for them by a new
contract, which, under the Statute of Frauds, must be in
writing, and which, unless it be by deed, is of no force
without a consideration (c). An executor or adminis-
trator, again, who carries on the testator's trade, is per-
sonally liable on contracts made in respect of such trade,
and is so liable on an implied contract to pay for the
suitable funeral expenses of the deceased (d). As, how-
ever, an executor's liability in this case depends on his
having assets, he may defeat an action founded only on
the implied contract, by showing, that he has no assets (e).

The following are some of the distinctions between an
action against an executor in his representative character,
and an action against him in his personal character.

(a) 2 Williams, Executors, 6th ed., 1637, 1638. Compare Corner v. Shew, 3 M. & W. 350, 353.

(b) Ibid.

(c) 2 Williams, Executors, 6th ed., 1640, 1643, 1654. See, as to consideration, p. 81, 82, ante.

(d) Brice v. Wilson, 8 A. & E. 349.

(e) Under the plea of never indebted, viz. Tugwell v. Heyman, 3 Camp. 298 ; Rogers v. Price, 3 Y. & J. 28; Bullen, Pleadings, 3rd ed., 161.

AND ADMINISTRATORS.

between

executors

represen

,

The judgment against an executor, when liable only as EXECUTORS such, is a judgment de bonis testatoris, or against his testator's goods. The judgment against an executor, when liable personally, is a judgment de bonis propriis, Distinction or against his own goods (f). An executor, sued as such, actions can raise defences, e.g., that he has fully administered against the estate of the testator, which, from their nature, are in personal available for an executor or an administrator only, whilst, and in on the other hand, he cannot raise a defence, such as his tative chaown bankruptcy, which might be available in an action racter. against him personally (g). The difference between the two kinds of actions is further seen in the rules as to

Set-off.--In an action against an executor for debts Set-off, due from the testator, debts due to the testator (1) may be set off, but not debts due to the executor as executor (i).

In an action against an executor on promises made by him as executor,-.g., on an account stated by him as executor in respect of debts due from the testator,-it is possible that a debt due from the plaintiff to the testator may be set off, since the account stated by the executor as such shows a debt due from his testator to the plaintiff (); but it would seem that in an action against an executor for debts due from him as executor, debts due to the testator cannot be set off.

In an action against an executor, in his personal capacity, debts due to him personally may be set off, but not debts due to the testator, or to him as executor (k). An

.

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(f) 2 Williams, Executors, 6th ed., 1823, 1824.
(g) 1 Ibid., 603 : 2 Ibid., 1793.
(h) 2 Geo. II., c. 22, s. 13.

(i) Mardall v. Thellusson, 6 E. & B. 976 (Ex. Ch.), reversing judgment of the Queen's Bench, 18 Q. B. 857.

(j) 2 Williams, Executors, 6th ed., 1803 ; Blakesley v. Smallwood, 8 Q. B. 538 ; 15 L. J. 185, Q. B. ; see Rees v. Watts, 11 Ex. 410 ; 25 L. J. 30, Ex. (Ex. Ch.)

(k) 2 Williams, Executors, 6th ed., 1803.

AND

TRATORS.

EXECUTORS executor, sued as such, cannot set off a debt due to him
ADMINIS. personally (1).

l

Lessor or lessee. — An executor's liabilities under a Lessor or lease are peculiar, as he may be liable both as executor lessee.

and as assignee.

As executor he is, as before pointed out, liable for all the promises of the deceased, and therefore, " although a covenant in a lease should be of a nature to run with the land (m), so as to make the assignee of the term liable for a breach of it after assignment, yet this shall not discharge the lessee from a concurrent liability on the covenant as far as he has assets, even although the lessor may have accepted the assignee as his tenant (n). Therefore, where the lessee has assigned the term in his lifetime, the lessor may still maintain an action of covenant upon an express covenant for payment of rent, even although the lessor has accepted the assignee for his tenant, and so may the assignee of the reversion, by virtue of the Statute 32 Hen. VIII. cap. 34 (o). So if the executor assigns the term, the lessor may afterwards bring covenant against the executor, notwithstanding any acceptance of the assignee as tenant, and so also may the

assignee of the reversion” (p). Actions Hence the following rules as to the liability of an exefor rent.

cutor or administrator in actions for rent.

1. An executor is liable in his representative character

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(1) Iutchinson v. Sturges, Willes, 261, 263. Compare generally, as to set-off, 2 Williams, Executors, 6th ed., 1803; Bullen, Pleadings, 3rd ed., 680.

(m) As to such covenants, see pp. 119-128, ante.

(n) The executor of a lessor, on the other hand, is, it would seem, under the statute (32 Hen. VIII., c. 34), relieved by assignment of the reversion from liability to be sued on covenants of the lessor which run with the land. Smith, Landlord and Tenant, 293, n. 19.

(0) Brett v. Cumberland, Cro. Jac. 521, 522; Thursby v. Plant, 1 Wms: Saund. 241 a, n. (5).

(p) 2 Williams, Executors, 6th ed., 1616, 1617. See Hellier v. Casbard, 1 Sid. 266 ; Coghill v. Frcclove, 3 Mod. 325 ; but see 22 & 23 Vict. c. 35,

AND ADMINISTRATORS.

for all rent accrued due in the lifetime of the testa- EXECUTORS tor (q).

2. In an action of debt for rent accrued due after the death of the lessee, the executor may, if he enters upon the demised premises, be sued at the election of the lessor, either as executor, or personally as assignee (r). And the same thing holds good when the executor is sued on an express covenant for rent (s).

3. If the term was assigned by the testator, the executor cannot, of course, be sued as assignee, since the term never passed to him ; but he may be sued as executor in debt for the rent, if the lessor has not accepted the assignee as tenant, and even in this case he may be sued as executor on an express covenant to pay rent (t).

4. If the executor himself assigns the term, he is chargeable as assignee for the time only during which he occupied the premises; and if he is sued for rent accrued due since the assignment by himself, he is liable as executor only (u). Exception.—Contracts made by executor distinctly as executor. Exception. “ Modern authorities have established that in several Contracts

by executor instances an executor may be sued as executor on a as executor. promise made by him as executor, and that a declaration founded on such promise will charge the defendant no farther than a declaration on a promise of the testator” (x). Thus he may be sued as executor for money paid for him in that character (y), and on an account stated, as on a statement made by him as executor.

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(1) 2 Williams, Executors, 6th ed., 1619.

(r) Ibid. As, however, to the defences which he may raise, see Bullen, Pleadings, 3rd ed., 212.

(8) Ibid.
(1) 2 Williams, Executors, 6th ed., 1624.
(u) Ibid., 1624-1625.
(2) Ibid., 1636.
(y) Ashby v. Ashby, 7 B. & C. 444.

Y

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