gage beyond the time of receiving such proceeds. Matter of Babcock, 2 Connoly 82. See also, as to the necessity for presentment of such claims, Estate of Hildebrandt, 92 Cal. 433; California (Code C. P. § 1493); Green v. Russell, 132 Mass. 536.

He cannot retain his own debt as against preferred claims of a higher class, Dolman v. Clark, 1 McCart. 56; and the validity of his claim, as well as the legality of his action in retaining the amount of his debt, are subject to the approval of the Probate Court. Kinnan v. Wight, 12 Stew. (N. J.) 501. And his claim must take its pro rata, share with other claims of equal degree. Ex parte Meason, 5 Binn. 167; Lenoir v. Winn, 4 Desaus. 65; Matter of Gray, 3 Dem. 208; Berry v. Graddy, 1 Met. (Ky.) 553; Smith v. Bryant, 60 Ala. 235. See, however, Page v. Patton, 5 Pet. 304 (Va.).

At common law the receipt of assets applicable to the debt of the personal representative operated as an extinguishment of the debt, Glenn v. Glenn, 41 Ala. 571; Chaffin v. Hanes, 4 Dev. 103; Smith v. Watkins, 8 Humph. 331; although the debt was due him as executor of another. Thomas v. Chamberlain, 39 O. St. 112. But such presumption will not arise in favor of payment of his debt until a reasonable time has elapsed after the assets are converted into money and the court has ordered the payment of the debt, Miller v. Irby, 63 Ala. 477; nor will it extinguish a debt due to the administrator's firm. Davis v. Milligan, 88 Ala. 523. If he turns over the assets to his successor, he should retain the amount of his claim. Beadle v. Steele, 86 Ala. 413; Hankins v. Hughes, 60 Id. 316. But his receiving sufficient assets and turning them over to his successor, in specie, for the express purpose of being free to prose

cute his claim, will be no extinguishment of it. Harris v. Henderson, 7 Heisk. 315, overruling Smith . Watkins, ubi supra. If the executor dies without having asserted his claim, it will be presumed to have been paid. Ellwood v. Northrup, 106 N. Y. 172.

As the executor can bring no suit against himself, the Statute of Limitations will not run in favor of the estate against his claim between the testator's death and the settlement of the executor's accounts. Matter of Powers, 124 N. Y. 361; Matter of Macomber, 31 N. Y. S. R. 962.

So far as the right of retainer exists at all, it applies to joint debts, due to the executor with others, as well as to those due to him alone, Hosack r. Rogers, 6 Paige 415; and to a debt due him in a representative capacity, Green v. Thompson, 84 Va. 376; or due to a wife from her deceased husband. Personette v. Personette, 8 Stew. (N. J.) 472. So, notwithstanding the Statute of Frauds, to a verbal promise made by the deceased to the administrator, Berry v. Graddy, 1 Met. (Ky.) 553; or a debt barred by the Statute of Limitations. Harwood v. Harper, 54 Ala. 659; Payne v. Pusey, 8 Bush. 504. But he cannot thereby deprive the heir of his right to set up the Statute of Limitations against an application to have lands sold for the payment of the debt. Payne v. Pusey, ubi supra. If the administrator is entitled to a specific lien (e. g., a landlord's lien on crops), he may retain the property which is subject to it, but he can only use the surplus proceeds in payment of other debts not entitled to a lien security (e. g., rent of former year) pro rata with other unsecured claims. Smith v. Bryant, 60 Ala. 235.

Bankrupt.

43 Miss. 603. In Louisiana, however, the testator's concubine cannot take under his will more than one-tenth of his estate, Gibson v. Dooley, 32 La. An. 959; and a larger gift will be reduced to that amount. Succession of Hamilton, 35 Id. 640.

CORPORATIONS, like natural persons, may take by bequest or devise, where they are not restricted by statute. These restrictions, which are commonly in the form of mortmain acts. will be considered in a later note. It has been held, however, that a corporation is not a "person" authorized to take by will under the New York statute. Matter of Fox, 52 N. Y. 530. And, in general, a corporation cannot take for a purpose foreign to its incorporation. American Colonization Society v. Gartrell, 23 Ga. 448. Where the object of the incorporation is defined by statute, it is strictly construed. Thus a diocesan convention incorporated for the purpose of "receiving subscriptions" cannot take a devise for the same objects. Brown v. Thompkins, 49 Md. 423. In New Jersey, general corporations are expressly authorized by statute to take (1877 Rev. 177, § 1).

In states providing by general act for the incorporation of religious, literary and charitable institutions, provision is frequently made for power to take by devise or bequest, as also in special charters creating such corporations. And these statutes are liberally construed, e. g., to apply to a historical society, incorporated under the Act for Benevolent and Literary Societies. Carpenter v. Historical Society, 2 Dem. 574. But an enabling act passed after testator's death is of no avail. Will of Bonard, 16 Abb. Pr. N. S. 128. A corpora

tion authorized to take may, however, do so notwithstanding a charge upon the gift of an annuity to A., which it would not have been capable of administering as a trust for A. Booth v. Baptist Church, 126 N. Y. 215; Currier . Fanning, 13 Hun 458; Curran v. Sears, 2 Redf. 526. So, it may take in trust for a foreign corporation which was incorporated as its auxiliary. Sheldon e. Chappele, 47 Hun 59. And a corporation not authorized to take real property may take proceeds of land as money under a direction for conversion. Church Extension v. Smith, 56 Md. 362.

In like manner a foreign corporation can take real property, if authorized by the law of its domicil, unless expressly restricted by statute where the land lies, Hollis . Drew Theological Seminary, 95 N. Y. 166; Harris v. American Bible Society, 2 Abb. App. Dec. 316; Burbank . Whitney, 24 Pick. 146; Estate of Ticknor, 13 Mich. 44; Santa Clara Academy v. Sullivan, 116 Ill. 375; Taylor v. Bryn Mawr College, 7 Stew. (N. J.) 101; Missionary Society . Calvert, 32 Gratt. 357; University v. Tucker, 31 W. Va. 621; Doty v. Hendrix, 16 N. Y. Supp. 284; Chamberlain v. Chamberlain, 43 N. Y. 424; Sherwood. American Bible Society, 1 Keyes 561; although misdescribed as in the city of New York where it only had an unincorporated auxiliary, American Bible Society v. American Colonization Society, 50 Hun 194; even though it could not have taken as a domestic corporation, White v. Howard, 38 Conn. 342; General Assembly Presbyterian Church v. Guthrie, 86 Va. 125; S. C., 6 L. R. A. 321; Thompson v. Swoope, 24 Pa. St. 474; Riley v. Diggs, 2 Dem.

Matter

184. Its authority to take, in the absence of express restrictions, depends on the law of its own domicil. of Huss, 126 N. Y. 537; Thompson v. Swoope, 24 Pa. St. 474; Methodist Episcopal Church . Remington, 1 Watts 218. But in Boyce v. St. Louis, 29 Barb. 650, it was held that a foreign corporation (in this case a municipal corporation) not expressly authorized by the law of its own domicil, could not take a devise of land in New York, it being suggested that any other view would open the door to fraudulent evasion of the New York restrictions. The right of a foreign corporation to take personal property is to be determined by the law of its own domicil. White . Howard, 46 N. Y. 144; Draper t. Harvard College, 57 How. Pr. 269; Chamberlain v. Chamberlain, ubi supra; Sherwood v. American Bible Society, ubi supra.

In New Jersey, foreign corporations are expressly authorized to take lands devised for the benevolent or charitable purposes of their incorporation (Act of 1883, Rev. Supp. 146 § 6), or in general for business in New Jersey or satisfaction of mortgage debts (Act of 1882, Id. §5). So, in New York, to acquire real property so far as necessary for their corporate purposes in the transaction of business in New York (Laws 1892, c. 687, § 17). And in Alabama a devise may be made to any corporation capable of holding real estate (1886 Code, § 1946).

not, in general, take a devise, Philadelphia Baptist Association v. Hart, 4 Wheat. 1; Goodell v. Union Association, 2 Stew. (N. J.) 32; and a gift over if legatee unable, &c., takes effect. Riley v. Diggs, 2 Dem. 184. But under the New York act of 1850, c. 122, real and personal property may be held in trust for an unincorporated religious society without restriction as to time of vesting in it upon its incorporation. Church of Redemption v. Grace Church, 68 N. Y. 570. And an unincorporated church will be deemed a corporation under the statute of its foreign domicil for the purpose of receiving donations. Matter of Bullock, 6 Dem. 335.

In some states even charitable institutions which are not incorporated cannot take, White v. Howard, 46 N. Y. 144; Marx v. McGlynn, 88 N. Y. 357; McKeon v. Kearney, 57 How. Pr. 349 ; First Presbyterian Society v. Bowen, 21 Hun 389; Leonard v. Davenport, 58 How. Pr. 384; (although formerly held otherwise as to legacies in New York, Hornbeck v. American Bible Society, 2 Sandf. Ch. 133; Banks v. Phelan, 4 Barb. 80); Brown v. Tompkins, 49 Md. 423; Rizer v. Perry, 58 Md. 112; Succession of Hardesley, 22 La. Ann. 332; and this is so in Virginia, Philadelphia Baptist Association e. Hart, ubi supra, except so far as it has been modified by recent statutes as to schools. So, courts have refused to support a devise in trust for various unincorporated charities, Bible Society v. Pendleton, 7 W. Va. 79; Wilson v. Perry, 29 W. Va. 169; or for the use of a certain church, Id.;

not being or becoming a bankrupt do not in the event of the legatee's bankruptcy pass to the trustee. See post, p. *1131.