Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OP JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A, M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1528.W19 A compendium of the law relating to exec 3 1924 022 212 140 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022212140 A COMPENDIUM OF THE LAW OF ("Executors antr ^trministtators. COMPENDIUM OF THE LAW EELATING TO (Bxnutox& ^ ^tiministrators, WITH AN APPENDIX OF STATUTES, ANNOTATED BY MEANS OF REFERENCES TO THE TEXT. . BY W. ' GREGORY ^WALKER, B. A., OF Lincoln's inn, barbister-at-law, author of "the partition acts, 186S and 187i A MANDAL OF THE LAW OF PARTITION AND OF SALE IN LIEU OF PARllTION." LONDON: STEVENS AND HAYNES, BELL YAED, TEMPLE BAR. 1880. LONDON : BEADBUEV, AGNEW, & CO., PEINTESS, WBITEFB.AES. TO THE EIGHT HONOUKABLE WILLIAM PAGE, BAKON HATHEKLEY, FOKMERLY LORD HIGH CHANCELLOR OF GREAT BRITAIN, THE FOLLOWING WORK IS, BY HIS lordship's KIND PERMISSION, PEEFACE. With tlie exception of one well-known work, tkere is no modem book of any importance treating, except incidentally, of the law relating to executors and admi- nistrators. Probably tbe very learned volumes of the late Mr. Justice Williams almost exhaust the subject, and will long remain the authoritative exposition of this branch of the law ; but they have become, in the course of successive editions, and by reason of the compre- hensiveness of their scheme, a work of portentous size, which can only be purchased at what must be to many a prohibitive price. In these circumstances it was sug- gested to me that a treatise dealing with the subject in a compendious form would not be unacceptable to the Profession, to Students, and indeed to the many who are at some time or other called upon to act as executors or administrators. Hence the present work. My subject is one of indefinite extent, ramifyiag into very many branches, which will readily present them- selves to the reader's mind, and which necessitate a book of considerable magnitude, if the subject is to be VUl PREFACE, exhaustively worked out. My wish being to treat this part of the law compendiously, it became necessary to limit my subject-matter as much as could' conveniently be done without impairing the practical utility of the work. The difficulty of this will be best understood by those who have undertaken a similar task ; they at least will know how much more arduous it is to curtail than to expand, to summarise than to amplify. Whether my condensation of the law is in any way successful, the Profession wUl decide. I will merely indicate the chief means adopted by me to that end. I have omitted, then, as a rule, all such matters as fringe upon, rather than form an iategral part of, the main subject. If it be objected that such a method is not strictly scientific, I reply that, even if that be so, expedience must sometimes over-ride theoretic consi- derations ; but, iu point of fact, want of scientific method is not fairly chargeable against an author for dealing with a branch of law which overlaps other branches (and such cases are very numerous, if indeed they are not co- extensive with the entire field of legal literature) with- out pursuing all such other branches to their end. Again, I have omitted all or nearly all that is only of antiquarian or historical interest, and have confined myself to what I judged would be of practical utility. Thirdly, I have seldom dealt with mere matters of practice, except PREFACE, IX incidentally and by way of illustrating some principle. Lastly, I have endeavoured not to overlay my pages "with an unnecessary mass of cases, though. I have never knowingly omitted any that seemed pertinent within the limits which I laid down for my guidance. I trust I shall not be found to have exemplified the old adage — Compendia sunt dispendia. At least I have spared no pains to avoid that fate. In no instance have I cited any authority at second hand, having made it an invariable rule to consult at least one of the books in which it was to be found. Where a point is reported in more Keports than one, I have at the time of citation referred to that particular Eeport from which the cita- tion is taken, and have given references to others in the Table of Cases. In the Appendix will be found all the more pertinent of the enactments to which I have referred in the course of the work. Against them I have set references to the Text, so as, if not to provide in some sort, at no great expenditure of trouble on the reader's part, an annotated edition of select parts of various Acts of Parliament, at least to show the relations in which those select parts stand to the general subject. To the treatise of Mr. Justice Williams I wish here, once for all, to record my great obligation, though I have used it, not as an authority to be glibly quoted in X PEEPACE. order to avoid the labour of independent inquiry, but rather as a valuable index to the cases, which were to be weighed, stated, and arranged, in my own way. I will only add, in conclusion, being well aware that there must be many shortcomings in the following pages, that I shall be grateful for any addenda or corrigenda with which the Profession may favour me. W. GREGOEY WALKEK. 22, Old Buildings, Lincoln's Inn, Mmoh, 1880. TABLE OF CONTENTS. CHAPTER I. THE CREATION OP THE OFFICE OF EXECUTOE. A. — Modes bt whioh Exeoutoes are Appointed. Definition of executor. — "Will appointing him need not be sueh in form. — Executors nominate and according to the tenor may co-exist in same will. — Absolute and qualified appointments. — Testator may delegate appointment B.— Appoistment of Exeoutoes by Nomination. Principle on wbioh Court acts in construing ambiguous appointments of executors. — Appointment may be void for uncertainty. — Instances of construction put by Court upon ambiguous final appointments. — In- stances of construction put by Court upon ambiguous substitutionary appointments C— Appointment op Exeoutoes by Implication. What necessary to constitute one executor according to the tenor. — Cases in which Court has consti-ued wills as constituting, or not constituting, such an executor. — Limited executor may by codicil be appointed general executor according to the tenor D.— Qualification of an AppoiNTiiENT of Exeoutoes. Executors for different purposes or properties. — Executors from, or until, a given time. — Executors on conditions CHAPTER II. WHO ARE CAPABLE AND INCAPABLE OF BEING EXECUTORS OR ADMINISTRATORS. Idiots and lunatics. — Mere weakness of mind does not incapacitate. —The king : his power of nominating a substitute. — Infants. — Femes covertes: their and their husbands' rights.— Outlaws and felons.— Aliens.— In- solvents and bad characters.— Corporations aggregate and sole. — Partnership firms XU TABLE OP CONTENTS. CHAPTER III. EENUNCIATION BY EXECUTORS, AND RETRACTATION OF THEIR RENUNCIATION. A. — Renunciation. PAGE No renunciation after acting. — What acts suiBcient to show an election to act. — Partial renunciation not allowed. — Probate an acceptance of trusteeship. — Acts done by one as agent do not prevent renunciation by him as executor, if he has not proved. — Agi'eement to renounce in- valid. — What acts indicate a refusal of ofSce. — Requisites of a binding renunciation. — What time allowed executors for deliberation. — 76th sect, of Probate Act. — Creditor executor who renounces does not lose his ordinary rights as creditor 12 B. — Retractation of RENCifoiATioN. Within what time renimciation may be retracted. — Renunciation declared invalid 17 CHAPTER IV. DEVOLUTION OF THE OFFICE OF EXECUTOR. Office survives on death of one of several executors. — Executor cannot assign his office. — When executor of executor represents first testator. — Executors of married woman. — Probate Acts. — Cases on the Acts. — Administrator of executor does not represent testator ■ . , .19 CHAPTER V. GRANTS OF PROBATE. A. — What Documents may be Pkoved. Document must have testamentary character. — Partial probate. — Will of foreign property only. — Will appointing guardians only. — Merely revo- catory wills. — Will under power. — Contents of parcels referred to in will. — Will of real estate only. — Probate refused to executor for "pro- perty not named in will. " — Testamentary document found after probate ought, though of no importance, to be proved 23 B.— The Jukisdiotion to Grant Probate [and Administration]. Judicature Act.— Probate division the right division ; but, seinhle, any Judge can now grant probate or administration 25 C. — The Time pok, and Modes of, Probate. Only executor can prove will. — Court may cite interested parties. — When the will should be proved.— Probate in common and solemn form.-- Limited probate 26 TABLE OF CONTENTS. XIU CHAMER VI. GENERAL RULES AND PRINCIPLES RELATING TO THE GRANT OF LETTERS OF ADMINISTRATION. . . PAGE Distinction between general and limited grants.— Deceased must have left property in this country. — In case of foreigners, Court usually adopts foreign grant.— Foreign Court cannot grant administration of property in England. — Joint administrations discouraged.— Several ad- ministrations of several parts of same estate.— Grants to guardians of minors. — Grants to grantees abroad.— Grants to attorneys.— Delay in applying for grant must be explained. — Parties having prior rights to gi'aut must first be cited, or consent ; but the rule may be relaxed. — No grant per saltum. — Intermeddler cannot be compelled to take grant. — One entitled to a grant may renounce his right, and, generally, retract his renunciation. — One entitled in a superior, cannot take a grant in an inferior, character ; nor, generally, if he renounce in one character, take a grant in another. — Limited gi-ants not to be made, as a rule, if any one entitled and willing to take general grant. — One en- titled to general, may not, as a rule, take limited gi-ant ... 30 CHAPTER VII. GENERAL GRANTS OF ADMINISTRATION.— SIMPLE ADMINIS- TRATION. A. — The Paramount Right of a Widowee. Husband entitled to administer to wife, so far as he is not excluded by her testamentary powers, except in certain cases. — Qtccry, where he has for good consideration abandoned all claim to her property. — -The rule in Fielder v. Sanger. — Husband's next of kin must administer to him before administering to his predeceased wife. — As to husband and wife perishing by same accident 37 B. — The Right of a Wmoyv as against Next of Kin. Provisions of the Statutes of Administration. — Widow preferred to next of kin ; but the rule by no means inflexible. — Grant may be made to widow and next of kin. — Creditors may not interpose 40 C. — The Rights op Next op Kin, " Inter se." Statute of Hen. VIII. applies only to next of kin at death. — Court has a discretion, which, however, is not to be capriciously exercised. — Prece- dence of next of kiQ. — As between next of kin of equal degree, administration is granted to the greatest interest. — Males usually preferred to females, and whole-blood to half-blood. — Primogeniture has very little weight. — Adults have not, as such, any priority over guardians of minors. — Business man preferred. — Bankruptcy not ne- XIV TABLE OF CONTENTS. PAGE oessarily a disqualification. — Notice of application for grant to he given to others eqvially entitled. — Case of principal part of deceased's estate teing trust property^ . . " 42 D. — The Right op the Civown. In what cases administration granted to Crown. — Crown has no legal title. — Nominee of Crown under same obligation as other administi-a- tors : his liability devolves on Ms personal representatives, not on his successors in office 45 E. — The Right of Consuls (in the case of Foreigneks). Statutory provision as to consular administration 46 F.— The Right of Creditors. Grant only made to creditor, failing any other representative, and then only on terms. — Who may administer as creditors. — Grant to officer of an association. — Larger creditor preferred to smaller. — Limits of a creditor's rights ib. G. — The Court's Discretionary Powers. The 73rd section of Probate Act 'gives wide discretion to Court, and modifies, apparently, the Act of Hen. VIII. — Cases in which Court lias resorted, or refused to resort, to the section. — Court will not, by resorting to the section, dispense with notice to persons entitled in priority, nor make a grant under it to one entitled in another character 48 CHAPTER VIII. GENERAL GRANTS OF ADMINISTRATION {continued).— ADMimS- TRATION CUM TESTAMENTO ANNEXO. In what cases this grant is made. — Where there is a capable executor, his refusal must be recorded, or he must be cited, before a grant will go. — Administration with the will of a married woman annexed. — 'ihe grant c. t. u. is in the discretion of the Court, but is usually made to the residuary legatee, i.e., to the trustee (if any) of the residuary estate, and, faUing him, to the residuary legatee for life. — Court may make grant to one of several residuary legatees. — Grant usually follows the interest. — Who may represent residuary legatee, for purpose of taking grant. — Interest of residuary legatee surviving testator is transmissible, but widovi'er of residuary legatee in remainder entitled priority to widow of residuary legatee for life. — After residuary legatee, next of kin entitled, then legatee or creditor ; but next of kin may be passed over in favour of creditors. — Creditors entitled in priority to attorney of colonial official administi'ator, and executrix of deceased's executor to widow 52 TABLE OF CONTENTS, XV CHAPTER IX. GENERAL GRANTS OF ADMINISTRATION {continued).— ADUmiS- TRATION DS BONIS NON. PARE When this grant is made. — It is discretioiiarj', but usually follows the interest.— Party with direct interest usually preferred to those entitled in representative character. — The estate and interest of an adminis- trator d. 1). n 60 CHAPTER X. LIMITED GRANTS OF ADMINISTRATION.— ADMINISTRATION DURANTE MINOEE ^TATE. When this grant is made. — It is discretionary. — How the administration is determined. — The administrator a trustee for the infant : his liabilities and powers. — Determination of administration pending action against special administrator 62 CHAPTER XL LIMITED GRANTS OF ADMINISTRATION {continued).— kDUllSlB- TRATION PENDENTE LITE. When this grant is made. — Instances of appointment of administi'ator pendente lite. — Appointment may be made at instance of one not a party to the suit. — The litigation must affect the appointment of executors. — Bellew V. Belleiv. - Court usually appoints some indiiferent person, after inq^uiring into his circumstances. — Powers and status of an ad- ministrator pendente lite ......... 66 CHAPTER XII. LIMITED GRANTS OF ADMINISTRATION (cojiiMiMcd).— ADMINIS- TRATION DURANTE ABSENTIA AND DURANTE DEMENTIA. A. — Administkation Dvbante Absentia. When this grant is made. — It is discretionary. — Statute of Geo. III., and amending statutes. — Statute construed literally. — Determination of authority of administrator dur. ahs. — Limited grant to a trustee. — Accountability of the administrator. — This grant only made in case of absence after probate or letters . .72 B.— Administration Durante Dementia. When this grant is made. — Where one of several executors or administra- tors is lunatic, probate or administration is revoked, and a fresh grant made.— Grant may be doubly limited 74 XVI TABLE OF CONTENTS. CHAPTER XIII. LIMITED GRANTS OP ADMINISTRATION {continued).— ADMINISTRATION AD LITEM. PAGE A.— Grants made unbbk the inheeent Jiteisdiction of the CotraT. Instances of such grants. — Query, whether made without going into the merits. — Disabilities of an administrator ad litem. — Cases in which such an administrator sufficiently represents the estate. — He does not sufficiently represent an estate to be administered .... 76 B.— Grants made under the Chancery Procedure Act, 1852. Section 44 of the Act. — An administrator appointed under the section does not sufficiently represent an estate to be administered, nor the estate of a settlor on whose settlement the litigation has arisen. — Section only applies to cases of difficulty in obtaining administration, and where the entire adverse interest is not unrepresented. — Cases in which a representative has been appointed under tlie section. — "Who is the proper person to be appointed. — Query, whether an appointment will be made, where personal responsibility is entailed, and whether one will be appointed against his will. — Formality of letters of administration may be dispensed with, but, semhle, duty is payable. — Disability of an ad- ministrator at? MteOT, — Proceeding in absence of representative . . 79 CHAPTER XIV. LIMITED GRANTS OF ADMINISTRATION {continued).— MISCELLANEOUS GRANTS. Letters ad colligenda : powers of a grantee of such letters. — He ought to pay balance into Court. — Grants in respect of lost wills, legacies, and contemplated legal proceedings. — Administration limited to trust fund granted to cestui que trust 85 CHAPTER XV. THE BOND TO BE GIVEN BY ADMINISTRATORS. All administrators (except solicitors to Crown) to give bond to Judge. — Court cannot dispense with bond, but has a discretion as to amount of penalty. — Execution of bond by other than administrator, in pressing case. — Sureties to bond. —Justifying security. — Assignment of bond, for purpose of suing on it. — Wliat is a breach of the conditions of the bond. —Where a second bond has been given on the property being resworn, sureties of such bond must be sued before sureties of first bond . TABLE OF CONTENTS. XVll CHAPTER XVr. THE NECESSITY FOR, AND THE NATURE AND EFFECT OF, PROBATE AND ADMINISTRATION. PAGE Only probate and letters granted in this country are legal evidence of will and of tlie appointment of personal representatives, and without their production Court cannot grant relief. — Illustrations. — In decreeing prohate. Court usually follows grant of Court of domicil ; and, semble, it is hound to do so. — Resealing of Irish probates and Scotch confirma- tions. — Indian grants. — Probate and administration only granted in respect of assets within the jurisdiction. — Resealing in Ireland and Scotland of English probates and letters, — English probates extend to certain Indian securities. — Probate to one executor enures for benefit of all. — One probate sufficient, though different executors for different properties. — As to what matters probate and letters are conclusive. — Illustrations.— /SemSZe, they are not conclusive as to collateral matters. — Executors and administrators cannot maintain proceedings in respect of larger amounts than are covered by the stamps on their grants . 93 CHAPTER XVIT. REVOCATION OF GRANTS OF PROBATE AND ADMINISTRATION. A. — "When and hovc Gkants will be Revoked. Revocation on appeal. — Revocation on ground of fraud or mistake, or of having been granted pending caveat, or on ground of lunacy. — Revoca- tion of grants to creditors. — Grants not revoked without good cause. — Revocation of limited grant to limited owner, on assignment of interest. — Query, whether a second grant per se revokes an earlier. — Executor may not take steps to have his grant revoked, but adminis- trator may 102 B. — The Effect of Revocation. As to payments made to executors or administrators under revoked gi-ants. — Reimbursement of such executors and administrators. — Indemnity to payors and transferors. — As to proceedings by or against temporary administrators whose grant is revoked. — As to validity of acts of repre- sentative whose grant is revoked. — One who sues for administration with knowledge that another claims to administer does so at his peril as to costs 105 b XVIU TABLE OF CONTENTS. CHAPTER XVIII. THE INTEREST TAKEN BY EXECUTORS AND ADMINISTRATORS IN THE ESTATE OF THE DECEASED. A. — As TO Choses in Possession. PACE Appointment of executors is a gift to them of the personalty. — Administrator has a similar interest. — Estate of bare trustee's representative. — Cer- tain chattels are exceptional, and pass to the heir. — Property of which the deceased was joint owner does not devolve on Ms representatives, except partnership property. — Profits of joint contract. — Executory interest in real estate. — Donatio mortis causd. — Chattels of a corporation sole. — Contingent interests transmissible 107 B. — As TO Choses in Action. (1) Accruing in the lifetime of the deceased. Rights to personalty vest in executors and administrators. — Actions of account and debt. — Right to payment by company. — Actions of tres- pass, trover, and quare impedit. — Actions against sheriff, bailiff, tithe- payer, and copyholder. — Specific performance of contracts, and damages for breaches. — Contracts bind executors and administrators, though not named, except where founded on personal considerations.— Actions for damage to estate. — Actions and distress for rent. — Apportionment Act, 1870 Ill (2) Accruing after the death of the deceased. Executors and administrators have same actions as if they were real owners. — Trover and trespass. — Executors and administrators may lose their rights under the Statutes of Limitations, or by acquiescence, &c. . 118 C. — Wheee thebe is a Pltjeality of Executoks ok Administeatoks. Each executor or administrator is possessed of the whole estate . . . 119 D. — Points of Law consequent upon the Natuee of the Intbeest. As to an executor's will, and bankraptcy. — Seizure in execution. — Poor-law settlement. — Merger. — Doctrine of executor's assent. — What wiU amount to an assent. — Assent may be express or implied, absolute or conditional, or partial. — As to whether assent may be retracted. Executor cannot be protector of settlement ...... ij. TABLE OF CONTENTS. XIX CHAPTER XIX. THE SOTJRCE OF THE TITLE AND AUTHORITY OF EXECUTORS AND ADMINISTRATORS, AND THEIR POWERS AND LIABILITY BEFORE PROBATE AND ADMINISTRATION RESPECTIVELY. A. — SOTJECB OF AN ExECCTOE'S TiTLB AND AtjTHOEITY. PAGE Executor's right derived from the will, probate being only ceremonial. — Deceased's property vests in executor from time of death . . . 124 B. — An Executor's Poweks and Liability befoee Peobate. Executor has at once ample powers. — Instances. — Purchasernot bound to pay purchase-money to executor before probate.— Acts of executor dying before probate valid. — Before probate, executor cannot proceed with action beyond point at which he has to prove his title, but it is sufli- cient if he then produce the probate. — So, where he applies in bank- ruptcy. — Jurisdiction to stay proceedings by executor before probate. — Executor is able, without probate, to carry through actions founded on possession, or on his own contracts. — Executor may be sued before probate, if he have elected to act ; bat, semble, judgment for adminis- tration cannot be had against him ii. C. — SOFEOE OF AN AdMINISTEATOE's TiTLB AND AUTHOEITY. Administrator's right derived from administration, from the date of which deceased's property vests in him 129 D. — An Administeatoe's Powees and Liability befoee Administkation, Results of the doctrine as to origin of administrator's title, literally re- ceived. — To meet the injustice of such results, the fiction of relation adopted by the Courts. — Attempted qualification of the fiction. — Justi- fication of the fiction. — Administrator cannot proceed far with actions without producing letters ; and, semble, his proceedings before adminis- tration may be stayed. — Further application of rule of relation — No difficulty in prosecuting actions founded on possession or own con- tracts. — One who acts as administrator before administration is execu- tor de son tort ib. CHAPTER XX. THE POWERS OF EXECUTORS AND ADMINISTRATORS DULY CONSTITUTED. A. — The Nature and Extent of the Poweks. Executors and administrators can entei' house of heir, distrain, alien the personal assets and give receipts, or mortgage them, with power of sale, &c., and (in some cases) may alien or mortgage the realty, except where fraud, &c. ; but may not sell to themselves. — Manner of sale. — b 2 XX TABLE OF CONTENTS. PAGE Personal representative of mortgagee may reconvey. — Executors and administrators may lease {qtc), compromise, compound, &c., indorse notes, and exercise election. — Powers of investment, to wliat they ex- tend, and do not extend. — Powers of appropriation, and maintenance. — Distinction between executors and administrators as to powers really discretions. — Not all executors can exercise all powers. — One executor may exercise powers simply, but not bind bis co-executors by contract. — So of administrators. — Executors who have proved may sue alone. — Sometimes not even all who have proved need join. — Executor|suing himself (in another capacity), and co-executor. — Executors and admin- istrators may not, generally, sue or be sued in formd pauperis. — Their powers to deal with the assets not necessarily taken away by judgment for administration 133 B. -The Eitfeot of Eentjnoiation by an Exbctjtoe upon the Exeecise OE Powers and Disoeetions by the eemaining Exeoutoes. As to sale of hereditaments under the statute of Hen. VIII. — Construction of the statute. — Perkins's ^temtem. — Disclaimer after sale suficient. — Peppercorn y. Wayman. — Kenuntiant cannot exercise powers or dis- cretions 148 CHAPTER XXI. THE DUTIES OF EXECUTORS AND ADMINISTRATORS, AND HEREWITH OF THEIR RIGHTS OF PREFERENCE AND RETAINER, AND OP LEGACIES TO EXECUTORS. A.— The Fuxeeal, Eendeeing an Inventoey and Accoitnts, Conteesion OF THE Estate, and Payment of the Debts. Burial. — Inventory. — Accounts and information. — Breaking up establish- ment. — Care of trust funds. — Converting and getting in estate. — Suing debtor after complete administration by Court. — Appointment of debtor as executor no extinguishment of the debt. — Onerous lease- holds. — Investment. — Precautions on lending on mortgage. — "Where successive estates are limited, the scale in investments to be held evenly : rule in Howe v. Lord Dartmouth. — Facilitating administration by Court. — Insurance. — Payment of debts; order of priority. — Expenses of funeral, and administration. — Crown debts. — Debts having statutory priority, • — Judgments. — Recognizances. — Statutes. — Speciality and simple contract debts. — Executors and administrators need not plead Statutes of Limitation, but must not pay creditors more than they have compounded for 150 B. — Exeoutoes' and Administratoes' Right of Pkefeeenoe akd Eetainee. Executors and administrators may prefer a creditor at any time before judg- ment for administration. ■ — Theory of the doctrine of retainer. — No retainer except out of legal assets —Eight to retain not taken away by TABLE OF CONTENTS. XXI judgment for administration, prevails against plaintiffs costs, and not lost by payment of the assets into Court ; in fact, may be assertei^ at any time before the assets are distributed, in the absence of improper conduct. — Scmble, no retainer against receiver. — Executors and admin- istrators may retain in respect of debts of the deceased which they have paid out of their own monies, and debts owing to a creditor whose representatives they also are. — No retainer out of proceeds of sale devised upon trust to sell and pay debts. — Executors and administra- tors may retain statute-barred debts, sums due to them as trustees, sums due to others in trust for them, and sums due to firms in which they are partners. — Qiiery, whether executor who acts can retain before probate. — Executor who is creditor and joint debtor with co-executor may retain out of joint debt. — No retainer as between joint executors and administrators. — Executor of executor may retain for debt owing by first testator. — The Judicature Act in connection with the doctrine of retainer 162 C. — Payment of Legacies and Annuities. Within what time legacies and annuities ought to be paid. — In case of specific legacies legatee has right of selection. — Legacies with power to exe- cutors to distribute. — Legacies to executors. — They have no right of retainer in respect of them, and must act in order to have them. — How condition may be fulfilled. — Misconduct may disentitle. — Pre- sumption as to legacies to executors. — Presumption maybe rebutted. — Condition imposed on legacies to executors. —Annuities to executors. — Payment of duties. — Discharge to executors on paying legacies. — Refunding by legatees ... 170 D. — Distribution of the Kesidue. Distinction in this respect between executors and administrators. — Distri- bution by executors. — As to their taking residue beneficially, or as trustees for next of kin or Crown. — Distribution by administrators. — — Distribution governed by domicile. — Risks attendant on distribu- tion.— Refunding by residuary legatees 178 CHAPTEE XXri. THE LIABILITIES OF EXECUTORS AND ADMINISTRATORS. On the Acts, Obligations, and Defaults of the Deceased. Deceased's debts, covenants, and contracts. — Exception in case of personal contracts. — Executor of executor de son tort. — Work done for deceased in expectation of legacy.— Gift intended, but not perfected, by him. — Mutual covenants by deceased and another to continue partners. — Injury to property by deceased. — Mesne profits. — Penalty incurred, and waste committed, by deceased. — Deceased's leaseholds. — Where deceased was a partner, shareholder, director, or spiritual person. — Breach of trust by deceased. — Extent of personal representative's lia- bility 184 XXU TABLE OF CONTENTS. CHAPTEE XXIII. THE LIABILITIES OF EXECUTOES AND ADMINISTEATOES— {contimied). On thbik own Acts, Obligations, and Defaults. PAGE Extent of liability.— Promise to pay deceased's debts.— Account stated. — Money had and received, and borrowed. — Goods sold and delivered. — "Work done and materials supplied. — Use and occupation. — Legacies. — Funeral expenses. — Damages by deceased's illness. — Money paid in mistake by supposed debtor.— Carrying on testator's trade. — Participa- tion in profits. — Penalty for wrongfully trading with assets. — Shares in company. — Bills accepted by attorney.' — Disobedience to Court. —iV'e exeat. — Devastavit. — Non-conversion and non-collection of the estate. — Injudicious sale. — Eeceipts of co-executors. — Parting with assets to co- executors for payment of creditors and legatees, or otherwise in due course of administration, for payment of residuary legatees, and gene- rally permitting co-executor to obtain sole control of the assets, or to commit a breach of trust. — Mispayment of debts. — Non-investment, and improper investment, of assets. — Payment to parties not really entitled. — Default of agent or servant, solicitor, broker, banker. — Liability not divisible. — Liability for breach of trust joint and several. — Liability to creditors, where none to legatees. — Actions for accounts or administration. — Parties to such actions. — Common judgments, and judgments as for wilful default. — Executors and administrators' costs of action. — Set-off. — Effect of admission of assets. — -What amounts to such an admission. — How far admission is binding. — Counsel's advice no protection 197 CHAPTEE XXIV. EXECUTOES' AND ADMINISTEATOES' ACCOUNTS. Testator's valuation of estate. — Funeral expenses. — Payment of debts. — Legacies. — Interest on balances. — Eate of interest. — Compound in- terest. — Interest on unpaid arrears of income. — Compound interest to bankers. — Profits made by executor or administrator. — Executor or administrator acting as solicitor, business manager, agent, or auctioneer. — Collection of assets. — The case of Indian assets. — Management of estate. — Employment of aceountant. — Payments to sohcitor. — Improper defence of action.- — Broker's charge for identification. — Expenses in- curred under misconception. — Schooling, feeding, clothing. — Advances. — Time and trouble 227 CHAPTEE XXV. THE DISPOSSESSION OF EXECUTOES AND ADMINISTEATOES BY THE APPOINTMENT OF A EECEIYEE. Eeceiver not lightly appointed. — Institution of suit for recalling probate. — Mean circumstances, bankruptcy, misconduct, waste. — Eenunoiation TABLE OF CONTENTS. XXIU by some of the executors. — Omission to get in estate. — Danger to the estate, violence and drunkenness, loss of trust funds. — Executrix whose husband is of unsound mind. — Absence out of the jurisdiction. — Case of administrator dwr. min. (e*.— Refusal to act after probate. — Risk of foreign assets, once brought to England, being taken away again. — Complaint made of one only of several executors. — Where there is no personal representative duly constituted. — Receiver appointed inaction commenced by summons, and where parties are defective. — Judicature Act. — Executors and administrators not usually appointed receivers . 237 CHAPTER XXVI. THE PROTECTION AND INDEMNITY AFFORDED TO EXECU- TORS AND ADMINISTRATORS. Pleading Statutes of Limitations against .creditors. — What a suificient ac- knowledgment to take a case out of the Statutes. — One executor cannot bind co-executors in this matter. — Stay of actions by creditors. — Statu- tory advertisements for creditors. — Usual indemnity clause. — Assign- ment of leaseholds. — Legacy Duty Act. — Trustee Relief Acts. — How far payment into Court a discharge. — Executors and administrators should not, as a rule, apply for distribution of the fund. — Costs under the Acts. — Concurrence in special case. — Application for opinion, advice, or direction of Court. — Doing what Court would order. — Judgment for administration. — Executors and administrators discharged as to interests of cestuis que trustent concurring in breach of trust. — Requisites of acquiescence. — Laches. — Requisites of a release. — As to assent of married women and infants. — Indemnity by concurring cestui que trust. — Rights of executors and administrators inter se . . . 243 CHAPTER XXVII. THE CLOSE OF THE OFFICE OF EXECUTOR OR ADMI- NISTRATOR. A. — The Conversiox of the Office into a Trusteeship. When executors convert themselves into trustees. — Administrator never a trustee proper 256 B. — The Right of Executors and Administrators to a Release. On payment of pecuniary legacy. — On winding-up the estate. — Administra- tors. — Where the accounts are taken by the Court .... 258 CHAPTER XXVIII. EXECUTORS BE SON TOUT, OR OF THEIR OWN WRONG. A. — The Meaning of the Teem. Definition of an executor of his own wrong. — No administrator de son tort — Misapplication of the term executor de son tort 259 XXIV TABLE OF CONTENTS. PAGE B.— "What will Constitittb a Man Executor db soif tort. Slight acts of interference sufficient ; tut acts of humanity and necessity do not charge one as executor de son tort, — What amount or kind of pos- session is requisite to charge as executor de son tort. — TomZin v. Beck. —Peters v. Leeder. — Possession under foreign authority. — Carrying on deceased's trade. — One who knowingly receives property from an ex- ecutor de son tort, and deals with it as his own, not an executor de son tort ; at all events, not unless fraud be proved. — Statute of 43 Eliz. — SerrMe, there cannot be at one and the same time a legal and a tortious executor of the same estate. — Possession under authority of rightful executor does not charge one as executor de son tort ; at all events, not during the life of the person giviug the authority 260 C. — The Extent of the Liability of an Execittoii de son tort. Executor de son tort liable to actions by legal personal representative, creditor, or legatee ; but, in absence of legal personal representative, cannot be sued for administration or an account. — Liability for duties. — Liability limited to assets come to hand. — Liability of executor de son tort of rightful executor. — Executor de son tort cannot be compelled to take out administration 265 D.— How AN Executor j>e son tort may obtain his Discharge. Accounting to legal personal representative before action brought is a dis- charge ; it is no discharge to account after action brought, or to account to one who is not in fact legal personal representative . . 267 E. — How FAR the Acts of an Executor be son tort are binding UPON THE Legal Personal Ebpebsentative. The old rule in Coulter's case requires limitation. — Mountford v. Gibson . 268 F. — The Personal Disadvantages of a Tortious Executorship. Executor de son tort cannot retain for his debt, even with consent of rightful representative, unless he himself obtain administration.^ — Statute of 43 Eliz. — General proposition . . 271 APPENDIX. Part I. — Statutes 273 Part II. — Form of Administrator's Bond 321 INDEX 323 PEINCIPAL TEXT BOOKS REFEEEED TO. Bac. Abr. . . A New Abridgment of the Law. By Matthew Bacon. 7th ed. (by GwUlim & Dodd). London: 1832. Bl. Comm. . . Comiflentaries on the Laws of England. By William Black- atone. Oxford : 1765. Browne . . A Treatise on the Principles and Practice of the Court of Probate. By Geo. Brown. London; 1873. Com. Dig. . . A Digest of the Laws of England. By Sir Jno. Comyns. 5th ed. (by Hammond). London: 1822. Godolph. . . The Orphan's Legacy. ByJno. Godolphin. 3rd ed. London: 1685. Hanson . . . The Acts relating to Probate, Legacy, and Succession Duties. By Alfred Hanson. 3rd ed. London: 1876. Hayes & Jarman . Concise Forms of Wills, with Practical Notes. 8th ed. (by J. W. Dunning). London: 1875. Lewin . . .A Practical Treatise on the Law of Trusts. By Thomas Lewin. 7th ed. London: 1879. Lindley . . . A Treatise on the Law of Partnership, including its Appli- cation to Companies. By Sir Nathaniel Lindley. 4th ed. London: 1878. EoU. Abr. . . Tin Abridgment des plusienrs Cases et Resolutions del Com- mon Ley. By Henry EoUe. London: 1668. Toller . . . The Law of Executors and Administrators. By Sir Samuel Toller. 6th ed. (by Francis Whitmarsh). London: 1827. Vin. Abr. . . A General Abridgement of Law and Equity. By Charles Viaer. 2nd ed. London: 1791. Went. . . . The Office and Duty of Executors. By Thomas Wentworth (qy. Dodderidge, J.). 14th ed. London: 1829; Wms. Exors. . A Treatise on the Law of Executors and Administrators. By Sir Edw. Vaughan Williams. 8th ed. London: 1879. AVms. P. P. . . Principles of the Law of Personal Property. By Joshua Williams, Q.C. 10th ed. London: 1878. Wms. E.. P. . Principles of the Law of Eeal Property. By Joshua Wil- liams, Q.C. 12th ed. London: 1877. TABLE OF CASES. Note. — The following Table is wrranged upon tlie principle of " double entry,'' each case, in which the names of plaintiff and defendant are different, being entered under both names ; but, to avoid needless repetition, the references are given only in the entry under the plaintiffs name. PAGE Abbott v. AlDbott, 2 Phillim. 578 89 V. Massie, 3 Ves. 148 172 Abraham, BetheU «. Ackland v. Pring, 2 M. & Gr. 937 107 Acton, M'Neillie v. Adair i;. Shaw, ISch. & Lef. 254 . . . . 70,195 Adam v. Inhabitants of Bristol, 2 A. & E. 389 ; 4 N. &M. 144 . . . 116 Adams v. Buokland, 2 Vern. 414 . . 10 V. Clifton, 1 Euss. 297 . . . .... 252 V. Pierce, 3 P. Wms. 12 . . . ... 122 Eowley v. Adamson, in the goods of, L. E. 3 P. & D. 253 5 Adooct, Eoss V. Addams v. Ferick, 26 Beav. 384 .. . .... 251 Adkins, "Webb v. Adye v. Feuilleteau, 3 Sw. 84 . . 215 Aird, in the goods of, 1 Hagg. Eccl. 336 . . ... 6 Aitkin v. Ford, 3 Hagg. Eccl. 193 . . . . 46, 47, 90 Alder v. Fouracre, 3 Sw. 489 . . . . . . 109 Aldred, Laury v. Aldrich, Cottle v. Alexander, Bell v. 's case, 15 Sol. J. 788 194 V. Lane, Yelv. 137 271 Alford 11. Alford, 1 Deane, 322 . 41 Att.-Gen. v. Alice Frances's case, Dyer, 4, in margin 7 Allen, Brown v. Dean v. V. Dundas, 3 T. E. 125 98, 99 in the goods of, 3 Sw. & Tr. 559 . . 34, 49 V. Jarvis, L. E. 4 Ch. 616 . . . . . 232, 235 V. McPherson, 1 H. L. C. 209 . 23 Taylor v. "Williams v. Allingham, Coxi;. XXVlll TABLE OP CASES. Almes V. Almes, 2 Hagg. Eocl. App. 155 . Almosnino, in the goods ot, 1 Sw. & Tr. 508 Alston V. TroUope, L. R. 2 Eq. 205 ... . Ambler v. Lindsay, L. E. 3 C. D. 198 ; 2i W. E. 982 Ambrose v. Kerrison, 10 C. B. 776 Ames V. Parkinson, 7 Beav. 379 Amicable Society of Lancaster, ex parte, 6 Ves. 98 Anderson, in tbe goods of, 3 Sw. & Tr. 489 LaneuviUe v. ■ ■ Meyriok v. Warter v. Andrew v. Andrew, 1 Coll. 686 -0. Wrigley, 4 Bro. C. C. 125 . Andrews, Berwick v. Messenger v. - *rhompson v. Angell, Green n. Angermann v. J'ord, 29 Beav. 349 Angerstein v. Martin, T. & E, 239 . . . . Angier v. Stannard, 3 M. & K. 566 .... Anglo-Italian Bank v. Davies, L. E. 9 C. D. 276 ; 27 W. Ch. 833 ; 39 L. T. 244 Angrave, Wing v. Annas, Daune v. Anon., 10 A. & E. (cited) 2 "W". Bl. 967 (cited) Brownl. 47 . Comb. 451 ■ Dyer, 14 a . 23 b 66 a . 166 b . 256 a • 277 b . 367 a Freem. Ch. 22 b 52 . • K. B. 150 — 287 1 Leon. 316 4 Madd. 273 . 12 Mod. 441 ■ 1 Salk. 155 . 3 — 21, 22 . ■ 1 Str. 552 Sty. 75 Vent. 335 . 12 Ves. 4 . V. JoUand, 8 Ves. 72 Eobson V. V. Walker, 5 Russ. 7 Anstey, StroughiU v. Appleton V. Doily, Yelv. 135 Arch, Bodger v. Archbold, Magrane v. Archer v. Mosse, 2 Vcrn. 8 Arden v. Sullivan, 14 Q. B. 840 Arkle, 'Williams v. PAGE . 43 1 . 161 128, 266 . 200 144, 216 . 159 40, 41 180 134 . . 173 . 141, 170 . . 226 R. 3 ; 47 L. J. . 242 185, 187 166 63 131 184 119 134 260 260 122 126 125 154 64 21 97 113 151 265 138 10, 24, 106 40 10 13 238 242 143 116 190 TABLE OF CASES. XXIX PAGE Armstrong, Monsell v. Arnolds. Woodhams, L. R. 16 Eq. 33 254 Yardley v. Ashby V. Ashby, 7 B. & C. 447 ; 1 M. & E. 180 199 V. Blackwell, 2 Eden, 302 217 Arras, Danre v. Ashley, Sx parte, 6 Ves. 441 159 Ashmall v. "Wood, 1 Jur. N. S. 1130 ... ... 82, 83 Ashton V. Sherman, Holt, 309 200 Wigley V. Askew, Newton v. Nichol V. Aspiuwall V. Queen's Proctor, 2 Curt. 241 33 Astley V. Powis, 1 Ves. Sr. 496 160 Aston, James v. Atcheson V. Atcheson, 11 Beav. 485 177 Atherley v. Harvey, L. R. 2 Q. B. D. 524 ; 46 L. J. Q. B. D. 518 ; 36 L. T. N. S. 551 ; 25 "W. R. 727 147 Atkiu, Gleadow v. Atkins V. Humphrev, 2 0. B. 654 199 V. Smith, 2 Atk. 63 96 Atkinson v. Barnard, 2 Phillim. 317 55 Segar v. Att.-Gen. v. Alford, 4De G. U. &. G. 851 ; 2 Sm. & G. 488 . . 229, 248 V. Brackeubury, 1 H. & C. 782 176 V. Chapman, 3 Beav. 255 223 V. Cockerell, 1 Pr. 179 94 . ». Dimond, 1 Cr. & J. 369 ; 1 Tyr. 243 96 GiU V. V. Higham, 2 Y. & C. C. C. 634 143 V. Hope, 1 Cr. M. & R. 540 ; 4 Tyr. 878 ; 8 Bl. 44 ; 2 CI. & F. 84 94, 100 V. Kohler, 9 H. L. C. 654 . . . - . . . . 46 V. Munby, 3 H. & N. 826 176 V. Potter, 6 Beav. 164 ; 9 Jur. 241 122 V. Ryder, 2 Ch. Cas. 178 98 Attwood, Lloyd v. Ault, Brassington v. Audland, "Ward v. Audley (Ld. ), Chetham v. Ault, Lyth V. Austin, Lamberts. Axe, Sheriff!). Ayliffe v. Murray, 2 Atk. 58 231 Badoock, Gurden «. Badenach, in the goods of, 3 Sw. & Tr. 465 12, 18 Bagshaw, Matthews v. Bailey r. Bailey, L. R. 12 C. D. 268 . . . . •■. . . . 175 V. Gould, 4 Y. & C. Ex. 221 157, 222 in the goods of, 2 Sw. & Tr. 135 ; 30 L. J. P. & M. 190 . . . 63 L. E. 1 P. & D. 628 3 Baily v. Ploughman, Mose. 95 . . 167 Baillie, Gardner v. ■ Howard v. Leslie v. Bain v. Sadler, L. R. 12 Eq. 570 167 Bainbrigge v. Blair, 8 Beav. 588 282 Baird's case, L. E. 5 Ch. 725 . 194 XXX TABLE OF CASES. PAGE Baker v. Brooks, 3 Sw. & Tr. 32 . . 91 ■ — - V. Martin, 8 Sim. 25 175 Thomas v. Balguy, Fosbrooke v. Bank of England, Morrice v. ■ Sloman v. Banner, Massey v. Bannister, Moodie v. Barber v. Barber, 3 M. & Cr. 688 178 Buckley v. Cockerell v. Macintosh v, Townsend v, Barden, in tlie goods of, L. E. 1 P. & D. 325 25 Barefoot v. Barefoot, Palm. 411 130 Barker v. Buttress, 7 Beav. 134 . 190 in the goods of, 1 Curt. 592 . . 33 V. Parker, 1 T. R. 287 188 V. Talcot, 1 Vern. 473 Ill , 116, 118 Barlow, Nunn v. Worthington v. Barnard, Atkinson v. Cox V. 0. Pumfrett, 5 M. & Cr. 63 Barnett v. Earl of Guildford, 11 Ex. 19 Barr v. Carter, 2 Cox, 429 Barraclough, Farrar v. V. Greenhough, L. E. 2 Q. B. Barrett, Saltmarsh v. Walter v. Barrington's Settlement, re, 1 J. & H. 142; Barrow v. Grifath, 11 Jur. N. S. 6 Barrs v. Eewkes, 2 H. & M. 60 . V, Jackson, 1 Phillips, 582 . Barry v. Eush, 1 T. E. 691 Bartlett, Rose v. Barton v. Hassard, 3 Dr. & "W. 461 138 Newman v. White V. Baseden, Parten v. .Bate V. Hooper, 5 De G. M. & G. 338 183 V. Eobins, 32 Beav. 73 ... 230 Bateman, in the goods of, L. E. 2 P. & D. 244 49 V. Margerison, 6 Ha. 496 ... ... 266 Bates, Foster v. Greenhalgh v. Bather, Donald v. Baxter v. Burfield, 2 Str. 1266 .... ... 115 V. Gray, 3 M. & Gr. 771 . . . . . . . 188 Hunter v. Bayard, in the goods of, 1 Rob 769 ; 7 No. of Cas. 117 .... 20 Bayley v. Bayley, 11 Beav. 256 , I47 Baylie, Drue v. Baylis, inthegoodsof, 2 Sw. & Tr. 613; 35 L. J. P. & M. 15 . . .3,5 Bayne, in the goods of, 1 Sw. & Tr. 132 .20 Baynes v. Harrison, Deane, 15. 47 Beal, Phillips v. Beale, Plume v. Beard v. Beard, 3 Atk. 72 . . . . . .24 200 132 19, 20 612 ... . .94 8 W. R. 577 . . . . 251 . 137 180 . 98 . 225 TABLE OF CASES. XXXI PAOE Beard, Boulton v. Beardmore v. Gregory, 2 H. & M. 496 ; 34 L. J. Ch. 392 . . . 266 Beaty v. Curson, L. R. 7 Eq. 194 250 Beauchamp, Eton College v. Beaufoy, Campbell v. Beaumond, Newman v. Beavan v. Lord Hastings, 2 K. & J. 724 263 Beck, Tomlin v. Bedell v. Constable, Vanghan, 182 19 BeecMng v. Morphea, 8 Ha. 129 243 Beer, in the goods of, 2 Bob. 349 29 Beggia, in the goods of, 1 Add. 340 .31, 33 Bell V. Alexander, 6 Ha. 543 81 Hool V. -:— in the goods of, L. R. 4 P. Div. 85 5 Newbegin v. V. Timiswood, 2 Phillim. 22 31 ■ Tyler v. Vickers v. Bellew V. Bellew, 34 L. J. P & M. 125 ; 11 Jur. N. S. 588 ; 4 Sw. & Tr. 58 68 Lynch v. Beloe, Newcome v. Benee v. Gilpin, L. R. 3 Ex. 82 15 Bennett v. Lytton, 2 J. & H. 155 247, 251 Benson v. Maude, 6 Madd. 15 170 Beresford v. Browning, L. K. 20 Eq. 564 ; L. R. 1 C. D. 34 ; 24 W. R. 120 ; 45 L. J. Ch. 36 ; 33 L. T. 524 190 Bemes, Stanley v. Berry v. Gibbons, L. R. 8 Ch. 747 148 V. Usher, 11 Ves. 87 154 Berwick v. Andrews, 2 Lord Baym. 974 ; 1 Salk. 314 ; 6 Mod. 126 . . 112 Best, Offley v. . Bethell v. Abraham, L. R. 17 Eq. 24 ; 22 W. R. 179 ; 43 L J. Ch. 180 ; 29 L. T. 715 148 Bettesworth, Rex v. Betts, in the goods of, 30 L. J. P. & M. 167 5 Bexley (Lord), Hele v. Beynon v. Beynon, "W". N. (1873), 187 223 Beytagh, Jones v. Bibby, Hodgson ■». Bicknell, Chambers v. Evans v. Bick V. Motley, 2 M. & K. 312 216 Biggs, in the goods of, 37 L. J. P. & M. 79 ; L. R. 1 P. & D. 595 . . 35 Bignell, Phillips v. Billinghurst v. Speerman, 1 Salk. 297 .107 Binckes, in the goods of, 1 Curt. 286 75 Binfield, in the goods of, 1 Lee, 625 63, 75 Bingham, Duke of Portland v. Binns i). Nicholls, L. R. 2 Eq. 256 161, 244 Swallow V. Biou, in the goods of, 3 Curt. 739 . . .... 36, 87 Bircham, Currie v. Bird V. Harris, L. R. 9 Eq. 20 180 V. Relph, 4 B. & Ad. 826 . . 195 Bu-kett, re, L. R. 9 C. D. 676 ; 47 L. J. Ch. 846 ; 39 L. T. 418; 27 W. R. 164 . . .... .... 249, 250 V. Vandercom, 3 Hagg. Eccl. 750 20 Birks, Hitchen v. XXXU TABLE OF CASES. TA'iB Bishop V. Churcli, 2 Ves. Sr. 106, 371 IS*) V. 3 Atk. 691 222 Black, Cockroft v. Blackborough. v. Davis, 1 Salk. 38 ; 1 P. "Wm8. 41 ; 12 Mod. 615 ; 1 Lord Kaym. 684 106, 107 Blackham's Case, 1 Salt. 290 ... . . .98, 99 Blaokwell, Asliby v. in the goods of, L. E. 2 P. Div. 72 . .... 3 Blagrave, in the goods of, 2 Hagg. £ccl. 83 49 Blair, Bainbrigge v. V. Bromley, 5 Ha. 542 192 Blake, Doyle v. Blakeman, Hovey v, Blanchford, Farrant v. Blane, Gardner v. Blewitt V. Blewitt, Yoimge, 541 127, 128,-129 Bliss V. Putnam, 29 Beav. 20 ; 7 Jur. N. S. 12 81 Blogg V. Johnson, L. E. 2 Gh. 225 230 Bloomfield, in the goods of, 31 L. J. P. & M. 119 . . . . 55 Blount «. Burrow, 3 Bro. C. C. 90 147 Bloxham, Compton v. Blythe, Savage v. Boatwrjght v. Boatwright, L. E. 17 Eq. 71 ; 22 W. R. 147 ; 43 L. J. Ch. 12 ; 29 L. T. 603 243 CubMdge v. Boddicott V. Dalzeel, 2 Lee, 296 56 Bodger i). Arch, 10 Exch. 333 131 Boehm, Raphael v. Trafford v. Bolton V. Cannon, 1 Vent. 271; Freem. K. B. 393; s. o. nom. Bolton v. Canham, PoUexf. 125 . . 107 V. Powell, 2 De G. M. & G. 1 91 Bond V. Bond, 1 Lee, 333 68 V. (No. 2) 1 Lee, 357 69 Caney v. ^ Clough V. V. Graham, 1 Ha. 482 80, 220 Bonifautv. Greenfield, Cro. Eliz. 80; Godb. 77 149 Bonithon v. Hookmore, 1 Vern. 316 234 Bonner, Hill v. Booth V. Booth, 1 Beav. 125 214, 254 Kirkman v. Whale V. BorweU, Harrison v. Bostock V. Floyer, L. R. 1 Eq. 26 217 Bothomley v. Fairfax (Lord), 1 P. Wms. 334 ; 2 Vern. 751 .. . 160 Bott, Gibson v. Bouard, Vanquelin v. Bouchier v. Taylor, 4 Bro. P. C. 708 98 Boulcott, Davies v. Boultbee, Chen-yv. Boulton V. Beard, 3 De G. M. & G. 608 . . . . . . 226 Bousfield V. Lawford, 1 De G. J. & S. 439 223 Bowden, Soam v. Bowen, Hay v. Bower, Crosskill v. Bowerbank v. Monteiro, 4 Taunt. 844 ... ... 198 Bowes, Medlioott v. Bowie, Selby v. TABLE OP CASES. XXXIU E. 10 C. P. 189 ; 23 "W. K. 310 ; 44 198 114 PACE Bowles u Stewart, 1 Sch. & Lef. 226 253 Bowra v. Rhodes, 10 W. R. 747 176 Boxley v. Stubington, 1 Lee, 537 37 Boyd V. Boyd, L. R. 4 Eq. 305 180 V. Brooks, 34 Beav. 7; affd. 34 L. J. Ch. 605 ; 13 W. R. 419 ; 5 N. R. 258 166 Boyle, in the goods of, 3 Sw. & Tr. 426 ; 33 L. J. P. & M. 109 . . . 16 Boyuton v. Boynton, L. R. 4 App. Cas. 733 ; 27 W. R. 825 ; 41 L. T. 450 . 222 Braokenbury, Att.-Geu. v. in the goods of, L. R. 2 P. Div. 272 ; 25 W. R. 698 ; 46 L. J. P. & M. 42 ; 36 L. T. 744 . . . . 47, 104, 164 Bradbury v. Morgan, 1 H. & C. 249 185 Bradford, Byrchall v. Holt V. Bradley, Chalmer v. V. Heath, 3 Sim. 543 . Bradshaw 1). Lancashire, &o., Co., L. L. J. C. P. 148 ; 31 L. T. 847 Branfil, Brydges v. Bransby v. Grantham, 2 Plowd. 525 Brassington v. Ault, 2 Bing. 197; 9 Moo. 340 Brazier v. Hudson, 8 Sim. 67 Breed's "Will, re, L. R. 1 C. D. 226 Brenchley v. Lynn, 2 Rob. 441 V. Still, 2 Rob. 162 . . Brent, Watkins v. Brereton, Drosier v. Brett, Netter v. Noble V. _ Briant, PhUpot v. Scott V. Brice v. Stokes, 11 Ves. 319 .... V. Wilson, 3 N. & M. 518 ; 8 A. & E. 349 . Bridger, in the goods of, L. R. 4 P. Div. 77 Bri(^es v. Duke of Newcastle, 3 Phillim. 581 (cited) Briers v. Goddard, Hob. 250 .... Briggs V. Penny, 3 De G. & Sm. 525 . V. "Wilson, 5 De G. M. & G. 12 Bright V. Legerton, 2 De G. F. & J. 606 Brightman v. Keigliley, Cro. Eliz. 43 Brighton, in the goods of, 34 L. J. P. & M. 55 . Brise, Matthews v. Bristol, Inhabitants of, Adams v. Bristow, Moneypenny v. Ridout V. Brittlebank v. Goodwin, L. R.'5 Eq. 545 ... Broadhurst, Marshall v. Brocklehurst, Horton v. Broker v. Charter, Cro. Eliz. 92 ; Owen, 44 ; Moor, 272 ; 1 Lev. 155 Bromley, Blair v. Brooke v. Haymes, L. R. 6 Eq. 25 15> 19, 1'8 V. Lewis, 6 Madd. 358 170 Brooker v. Brooker, 3 Sm. & G. 477 237, 241 Brookes v. Stroud, 1 Salk. 3 ^'^ Brooking v. Jennings, 1 Mod. 174 ^3 Brooks, Baker v. Boyd V. Broom, Longmore v. Brougham (.Lord) v. Lord "W. Poulett, 19 Beav. 134 Broughton v. Broughton, 5 De G, M. & G. 160 . . 119 . . 147 126, 126 . . 144 37, 53, 76 . . 23 . 211 . 200 . 21 . . 58 62, 163 179, 180 161, 245 . . 253 5 38 243 16 256 232 XXXIV TABLE OF CASES. PAGE Broughton, Orme v. . BroweU v. Reed, 1 Ha. 434 f ^^ Brown v. AUen, 1 Vern. 31 J" V. GeUatly, 31 Beav. 243 • 109 ■ V. Gordon, 16 Beav. 302 • ^ ^192, ISd - in the goods of, L. E. 2 P. Div. 110 ; 25 W. R. 431 ; 46 L. J. P. & M. 31 ; 36 L. T. 519 ° Joint Stock Discount Co. v. „. NichoUs, 2 Rob. 399 55, 56 ;. Selwyn, Cas. t. Talbot, 240 ; 3 Bro. P. C. 607 . . ■ • 154 V. Wood, Aleyn, 36 ; Style, 74 4o Young V. Brownbill, Farrell v. Browne, Richards v. 17. Spooner, 1 Ves. Jr. 291 ^^^ Browning, Beresford v, Harford v. V. Reane, 2 Phillim. 69 37 Brufere v. Pemberton, 12 Ves. 386 229 Brumridge v. Brumridge, 27 Beav. 5 247 Brutton, Burge v. Brydges v. Branfil, 12 Sim. 369 191 Bubb V. Yelverton, L. R. 13 Eq. 131 174 Bubbers v. Harby, 3 Curt. 50 . . » Biichan's case, L. R. 4 App. Cas. 549 205 Buckland, Adams v. ex parte, Buck, 214 159 Buckley v. Barber, 6 Ex. 164 269 -Eox V. Pennington v. ■ Earl of Stafford J). Buckworth V. Simpson, 1 Cr. M. & R. 834 ; 5 Tyr. 520 . . . . 190 Budd V. Silver, 2 Phillim. 115 43 SkefBngton -v. Budge V. Gummow, L. R. 7 Ch. 719 • ■ 156 Bull, Trail v. BuUen, Humphrey v. Bullock, in the goods of, 1 Rob. 275 35 V. Wheatley, 1 Coll. 130 153, 208 Bulmer's case, 33 Beav. 435 ; 12 W. R. 564 205 Bunbury v. Hewson, 3 Ex. 558 1»5 Burch, in the goods of, 2 Sw. & Tr. 139 33 Burchell, M'Mahon v. Burden v. Burden, 1 V. & B. 170 233, 235 Burdiok v. Garrick, L. R. 5 Ch. 233 . . • - ■ 229, 243 Burfield, Baxter v. Burford, Dix v. Burge ?;. Brutton, 2 Ha. 373 168, 169, 227, .232, 235 Burgess v. Burgess, 1 Coll. 367 1'* Kenrick, v. Burlls V. Burlls, L. E. 1 P. & D. 472 29 Burn V. Cole, Ambl. 416 . . . 97 Kemp V. Burnett v. Dixe, 1 Roll. Abr. 922 ; 9 Mod. 269 (cited) . . . 166, 169 Rex V. Burrage, Neeves v. Burrell, Evans v. in the goods of, 1 Sw. & Tr. 64 51, 90 Williams v. TABLE OF CASES. XXXV PAGE Burrow, Blount v. Burrows i>. Wales, 5 De G. M. & G. 233 252 Burton, Keates v. Butler V. Butler, 2 PMllim. 89 100 CT^arfe, 1 Atk. 213; Ambler, 74 120 Thomas v. "Ward V. Butter, Egbert v. Butterfield, eK parte, DeGex, 319 ; 11 Jixr. 955 203 Buttress, Barker v. Buxton V. Buxton, 1 M. & Cr. 80 153, 209 Buyskes, Kooystra v, Byam v. Sutton, 19 Beav. 646 83 Byrchall v. Bradford, 6 Madd. 240 257 Cadbuet V-. Smith, L. R. 9 Eq. 37 224 Cadge, in the goods of, 37 L. J. P. & M. 15 55 Cadogan (Lord), Lord Mountford v. Caffrey v. Darby, 6 Ves. 488 206 CaUaghan v. Callaghan, 8 CI. & F. 374 IBS Calvert v. Sebbon, 4 Beav. 222 173 Camden v. Fletcher, 4 M. & W. 378 . . 261 Campanari v. Woodbum, 15 C. B. 400 .... . . 187 Campbell v. Beaufoy, Johns. 320 181 V. Campbell, 2 Y. & C. C. 607 234 V. 13 Sim. 168 234 in the goods of, 2 Hagg. Eocl. 555 86 Joy V. V. Earl of Radnor, 1 Bro. C. C. 271 224 Candler, Curteis v. - — : V. Tillet, 22 Beav. 257 213 Caney v. Bond, 6 Beav. 486 .207 Canham, Bolton v. Cannam, Bolton v. Canterbury, Archbp. of, v. House, Cowp. 140 48 V. Robertson, 1 Cr. & M. 690 ; Tyrw. 390 . . 91 — V. — — 1 Cr. & M. 181 ; 3 Tyrw. 419 . 92 Capron v. Capron, L. R. 17 Eq. 288 . . 117 Carbery v. Cody, Ir. Rep. 1 Eq. 76 13 Cardale v. Harvey, 1 Lee, 177 60 Carey, Collins v. . V. Goodinge, 3 Bro. C. C. 110 154 Carless, Walker v. Carmichael v. Carmichael, 2 Phillips, 101 267, 272 in the goods of, 32 L. J. P. & M. 70 68 ' WUlson- V. Caroon's case, Cro. Car. 8 . . 10 Carpenter, Gerrett v. — — Sorrell v. Tebbs V. Carr, in the goods of, L. R. 1 P. & D. 291 60 Carron Co. , Stainton i). Iron Co. 0. Maolaren, 5 H. L. C. 455 158 Cart V. Hodgkin, 3 Sw. 160 112 Carter, Barr v. V. Crosts, Godb. 33 . 94 — — Wyman v. Cartwright's case, Freem. K. B. 257 .44 c 2 XXXVl TABLE OP CASES. PAGE Cartwright, Corser v. in the goods of, L. K. 1 P. Div. 422 91 Stirling-Maxwell v. Taylor v. Gary v. Hills, L. R. 15 Eq. 79 128 ^ "Williams v. Casey, Loaue v. Cass, Noble v. Cassavetti, Zambaco v. Cassidy, in the goods of, 4 Hagg. Eccl. 360 74 Castleton (Lord) v. Fanshaw (Lord), Prec. Ch. 99 ; 1 Eq. Cas. Abr. 254, 259 161, 162 Catherwood v. Chabaud, 1 B. & C. 150 61, 94 Cawood, WUkinson v. Cawthom v. Chalig, 2 S. & S. 127 . . . . . . .76 Cazneau's Legacy, re, 2 E. & J. 249 248 Ceeley, Peers v. Chabaud, Catherwood v. Chace v. Chace, Fortesc. 359 112 Chadwick v. Heatley, 2 Coll. 137 . 268 Chalie, Cawthom ■». Challen v. Shippam, 4 Ha. 555 214 Chalmer v. Bradley, J. & W. 64 . . 166 Chalon v. Webster, W. N. 1873, 189 15 Chaloner, Horsley v. Chamberlain v. Chamberlain, 1 Ch. Cas. 257 206 ■ • in the goods of, L. E. 1 P. & D. 316 105 Jacques v. Pegg V. V. Wmiamsou, 2 M. & S. 408 . . ' . . . 114, 115 Chamberlayne, Coussmaker v. Chambers v. Bicknell, 2 Ha. 537 33 Fyson v, V. Harvest, Moseley, 123 164, 167 v. Howell, 11 Beav. 6 137 V. Leversage, Cro. Eliz. 644 197 V. Smith, 2 Coll. 742 . .235 Smith V. Chanter, Davis v. Chapman, Att.-Gen. v. v. Dalton, Plowden, 236 113 Pemberton v. Simpson v. ■ . V. Turner, Vin. Abr. Exors. (D. 2), 2 ; 9 Mod. 268 . 164, 166, 169 Westover v. Chappell V. Chappell, 3 Curt. 429 41 Charlton «. Earl of Durham, L. R. 4 Ch. 433 . . . . 134, 141, 145 Charter, Broker v. V. Charter, L. E. 7 H. L. 364 2 Chatfield, Day v. Cherney, Jones v. Cherry v. Boultbee, 4 M. & Cr. 442 223 Chertsey Market, re, 6 Pr. 279 254 Chester v. Chester, L. R. 12 Eq. 444 180 Chester's (Lady) case, 1 Vent. 207 23 Chesterfield (Earl of) v. Janssen, 2 Ves. Sr. 158 253 Chetham v. Lord Audley, 4 Ves. 72 234 Childs V. Monins, 2 Br. & B. 460 ; 5 Moo. 281 .. . . . igs Ohissum v. Dewes, 5 Rnss. 29 . 165 TABLE OF CASES. XXXVU PAGE Chittenden v. Knight, 2 Lee, 559 43 Chomeley, Smithley v. Christian v. Devereux, 12 Sim. 264 100, 101, 178 Christie v. Ovington, L. R. 1 C. D. 279 ; 24 W. E. 204 . . . . 108 Christophers v. White, 10 BeaT. 523 231, 232 Church, Bishop v. Churchill v. Lady Hohson, 1 P. "Wms. 243 219 Clapham, Hood v. Clapp, Oxenham v. Clark V. Holland, 19 Beav. 262 207 Goodyer v. WooUey v, Clarke, Flanders v. Matthisou v. Mordaunt v. V. Ormonde (Earl of), Jac. 108 157 Clarkington, in the goods of, 2 Sw. & Tr. 380 85 Clarkson, Grayburn v. Clegg V. Rowland, L. E. 3 Eq. 368 246, 257 Cleverley v. Gladdish, 2 Sw. & Tr. 335 ; 31 L. J. P. & M. 53 . . 89 Clifton, Adams v. Cliue's Estate, re, L. E. 18 Eq. 213 118 Clough V. Bond, 3 M. & Cr. 496 208, 212 : V. Dixon, 10 Sim. 564 78 Clowes B.HUliard, L. R. 4 C. D. 413 ; 25 W. R. 224; 46 L. J. Ch. 271 . 219 Russell V. Glutton, Cohbett v. Cobb, Mitchell ii. Cobbett V. Glutton, 2 C. & P. 471 .... . . 118 . Oldfield V. Cobham, Steelp v. Cock V. Goodfellow, 10 Mod. 496 ... . . 165 Wentworth v. CockereU v. Barber, 2 Euss. 585 ; 1 Sim. 23 .... 174, 234 Att.-Gen. v. Cockroft V. Black, 2 P. Wms. 298 167, 16S Cody, Carbery v. Coe V. Hume, 4 Hagg. Eccl. 398 .. . .... 31 Colcraft, Cooke v. Cole, Burn v. V. Miles, 10 Ha. 179 . . . 146 V. Muddle, lOHa. 191 137 . . 145 . 205 200 L. J. . 47 V. "Wade, 16 Ves. 45 Cole's Executors' case, 15 Sol. J. 711 Coleby v. Coleby, 12 Jur. N. S. 496 Coles, in the goods of, 3 Sw. &Tr. 181; s. o. nom. Macnin v. Coles, 33 P. & M. 175 ... . Macnin v. Colgay, Smith v. Collas V. Hesse, 12 W. R. 565 . CoUen V. "Wright, 8 E. & B. 648 . CoUett, in the goods of, 1 Deane, 274 Collier, in the goods of, 2 Sw. & Tr. 444 V. Rivaz, 2 Curt. 855 . "Wheeler v. CoUingridge, Cook v. Collins V. Carey, 2 Beav. 128 Crawshay v, Downs V. 73 186 5 74 181 231 XXXVUl TABLE OF CASES. PAGE Collins, in the goods of, 7 No. of Cas. 278 27 CoUinson v. Lister, 20 Beav. 356 ; 7 De G. M. & G. 634 . . . 138, 141, 203 Colquhoun, in the goods of, 37 L. J. P. & M. 1 5 Colson, Dampier v. Colvinu Fraser, 2Hagg. Eool. 613 ... .... 68 V. Procurator- General, 1 Hagg. Eocl. 92 . . . . 34 Comber's case, 1 P. Wms. 768 124, 129 Combes's case, 9 Co. 75 b . . . . .• . . . . 110 Compton V. Bloxham, 2 Coll. 201 174, 178 Compton, Yates v. Constaljle, BedeU v. - V. Constable, L. E, 11 C. D. 681 118 Conyers v. Kitson, 3 Hagg. Eocl. 556 41 Cony, Pemberton v. Coode, in the goods of, L. K. 1 P. & D. 449 23 Cook V. Colcraft, 9 W. Bl. 866 ; 3 Wils. 380 187 V. Collingridge, Jac. 607 . . 138 V. Gregson, 1 Dr. 286 . . . 158 • Hughes V. V. Martyn, 2 Atk. 3 224 Cooke V. Gittings, 21 Beav. 497. ... ... .266 in the goods of, 1 Sw. & Tr. 267 34, 51 Coombs V. Coombs, L. R. 1 P. & D. 288 47 Cooper, in the goods of, L. R. 2 P. & D. 21 ; 39 L. J. P. & M. 8 . 50, 53, 54 — - -V. Douglas, 2 Bro. C. C. 232 144 Franks v. V. Jarman, L. R. 3 Eq. 102 113, 185 V. Simmons, 7 H. & N. 707 115 Thompson v. V. Thornton, 3 Bro. C. C. 96 . . 176 Coote V. AVhittington, L. R. 16 Eq. 534 266 Copeland, Lowson v. Coppiu V. Coppin, 2 P. Wms. 296 177, 178 Dillon V. V. Dillon, 4 Hagg. Eccl. 376 43, 44, 91 Thrustout V. Corbet, Ewer v. Cordeux v. Trasler, 34 L. J. P. & M. 127 ; 2 Jur. N. S. 587 . . . . 43 Cordwell, White v. Corner v. Shew, 3 M. & W. 350 199, 200 Cornwell, Dimes v. Corporation of Clergymen's Sons v. Swainson, 1 Ves. Sr. 75 . . . 223 Corser v. Cartwright, L. E. 7 H. L. 731 136 Cottee, Knott v. Cotteen v: Missing, 1 Madd. 176 188 Cottle ■■y. Aldrich, 5 Mau. & S. 175 ; 1 Starkie, 37 265 Cotton, «, L. R. 1 C. D. 232 144 Coulter's case, 5 Co. 30 a, b 269, 271 Court, in the goods of, 31 L. J. P. & M. 61 . . . . . 3 ■ Oliver v. ■ Courtenay v. Williams, 3 Ha. 539 ; affirmed 15 L. J. Ch. 204 . . . 222 Coussmaker i>. Chamberlayne, 2 Lee, 243 .... . . 56 — — ■ Le Sage v, Coventry, Evans- v. (Bishop of), Smalwood v. Coward v. Gregory, L. R. 2 C. P. 163 206 Cox V: Allingham, Jac. 514 . ■ . , . . . . . . . 97 — V. Barnard, 8 Ha. 310 .188 — Dowse V. TABLE OP CASES. XXXIX PAGE Cox, Furlonger v. — V. Hickman, 8 H. L. C. 268 . 204 — Murrell v. — Turner v. Craddock, Platel v. Cradook v. Piper, 1 Mac. & G. 664 231, 232 Cramer, exparte, 9 Ha. A2>p. 47 . . . . 79, 81 Crause, in tlie goods of, 1 Sw. & Tr. 146 . . . .40 Crawshay v. Collins, 15 Ves. 227 ... . . 109 Creasor v. Robinson, 14 Beav. 589 . 266 Cresswell v. Cresswell, 2 Add. 342 .. . , . 56 V. DeweU, 4 Giff. 460 253 Crispe, Lloyd v. Crispin v. Doglioni, 3 Sw. & Tr. 96 . Croft V. Pyke, 3 P. "Wms. 183 .. . V. Waterton, 13 Sim. 653 Crofts, Sparks v. Cross, Lyttleton v. Crossfield v. Such, 8 Exch. 825 . Crosskill v. Bower, 32 Beav. 86 Crosslaud, Sugden v. Crossley v. City of Glasgow Life Assui-ance Company, L. E. 4 0. D. 427 ; 25 W. R. 264 ; 46 L. J. Ch. 65 ; 36 L. T. 285 . Crosts, Carter v. Cruikshank v. DufBn, L. R. 13 Ec[. 555 135, 137 Cruse 11. Paine, L. R. 4 Ch. 441 114 Cubbidge v. Boatwright, 1 Russ. 549 . . . . . . .61 Gumming v. Eraser, 28 Beav. 614 99 Cummins v. Cummins, 3 Jo. & L. 64 ; 8 Ir. Eq. Rep. 723 . . . 13, 97 Curling, Thornton v. Currey, in the goods of, 5 No. of Cas. 54 .33 ■ Morewood v. Currie v. Bircham, 1 D. & R. 35 . . . . .96 Curson, Beaty v. Curteis v. Candler, 6 Madd. 123 . ... . 221 Meek v. Curtis V. Vernon, 3 T. R. 587; aflfd. 2 H. Bl. 18 . 131, 268, 271 BiRv. Cutbush V. Cutbush, 1 Beav. 184 .. . . . 144, 202 31 168 78 131 230 79 Da Costa, Elme v. Daore v. Patrickson, 1 Dr. & Sm, 182 .. . Da Cunha, in the goods of, 1 Hagg. Eccl. 237 .... Daines, King's Proctor v. Daliow, in the goods of, L. R. 1 P. & D. 189 ; 35 L. J. P. & M. 81 Dalton, Chapman v. Dalzeel, Boddicott v. Dampier v. Colson, 2 Phillim. 54 Dance v. Goldingham, L. R. 8 Ch. 902 Daniel, Faulkner v. Danvers, Waring v. D'Aramburu, Viesca v. Darby, Caffrey v. Harbin v. da Rosa v. de Pinna, 2 Lee, 390 Darthez v. Winter, 2 S. & S. 536 180 ), 31 31 139 34 153 xl TABLE OF CASES. PAGE Dartmouth (Earl of), Howe v. Dashwood, Spriiigett v. Da Silva, in the goods of, 30 L. J. P. & M. 171 24 Daune v. Annas, Dyer, 219 a .......•• HO Davenport v. Moss, 14 W. E. 453 ; 14 L. T. 133 166 V. PoweU, 14 Sim. 275 235 . V. Stafford, 14 Beav. 819 223, 256 Davies, Anglo- Italian Bank v, V. Boulcott, 1 Dr. & Sm. 23 82, 83 Fowler v. V. Hodgson, 25 Beav. 177 109, 254 in the goods of, 2 Curt. 628 41 V. Ridge, 3 Esp. 101 225 Wildes V. V. Williams, 1 Sim. 5 147 Davis, Blackborough v, ■ V. Chanter, 2 Ph. 545 78 V. 14 Sim. 212 65 Handley v. inthe goods of, 29 L. J. P. & M. 72 267 ■ V. Keyner, 2 Lev. 122 ; s. c. nam. Davis v. Wright, 1 Vent. 120 ; 2 Keb. 758 197 Davy, Denton v. Dawes, Baron de Feucheres v. in the goods of, L. E. 2 P. & D. 147 67 M'Culloch V. V. Queen's Proctor, 2 Eoh. 413 29 Dawley, Gibbons v. Dawson, in the goods of, 2 Bob. 135, 7 No. of Cas. 317 . . . .63 Maclean v. Stocken v. Day V. Chatiield, 1 Vern. 200 19 in the goods of, 7 No. of Cas. 553 7 • Suwerkrop v. V. Thompson, 3 Sw. & Tr. 169 76 Dean v. Allen, 1 Beav. 1 251 De Bemales, Moons v. De Chatelain v. Pontigny, 1 Sw. & Tr. 34 68 De Cordova v. De Cordova, L. R. 4 App. Cas. 692 ; 41 L. T. 43 . 141, 146 Dee, Garter v. De Feuchferes (Baron) v. Dawes, 5 Beav. 110 128 Deichman, in the goods of, 3 Curt. 123 2, 4 DelaFarque, inthegoodsof, 2Sw. &Tr. 631; 31L. J. P. &M. 199 . . 89 Delamere, Owen v. Delerieleuse, Depit v. Dempsey v. King, 2 Eob. 397 53 Dendy, re, 3 De G. F. & J. 350 174 Denton v. Davy, 1 Moo. P. C. 40 233, 234 de Pinna, da Eosa v. Depit V. Delerieleuse, 2 Sw. & Tr. 133 47 De Pradel, in the goods of, L. E. 1 P. & D. 454 29 Derbishire v. Holme, 3 De G. M. & G. 113 254 Derby (Lord), Lord Fairfax v. De Eosaz, in the goods of, L. E. 2 P. Div. 66 ; 25 W. E. 352; 46 L. J. P. & M. 6 ; 36 L. T. 263 2 De Tastet v. Shaw, 1 B. & Al. 664 168 Devaynes v. Noble, 1 Mer. 614 191 Eeed v. r V. Eobinson, 24 Beav. 98 ; 3 Jur. N. S. 707 . . . . 78 TABLE OP CASES. xli Devereux, Christian v. Devey v. Thornton, 9 Ha. 222 ... . De Virenne, Sutherland v. Devon v. Pawlett, Vin. Abi*. Exors. Q. 27 Dewell, Cresswell v. Dewes, Chissumu. Dewhurst, Price v. Dickens v. Harris, 14 L. T. N. S. 98 Dickenson, Downward i\ Dickson v. Hook, 14 W. E. 552 . Dill, Weiss v. Dillon V. Coppin, 4 M. & Cr. 647 .. . Coppin V. Dimes v. Cornwell, 2 Eoh. 142 ; 7 No. of Cas. 380 V. Scott, 4 Euss. 195 .... Dimond, Att.-Gren. v. Dines v. Scott, T. & E. 358 Diplock, Taylor ■». Dix V. Burford, 19 Bea. 409 ... . — V. Eeed, 1 S. & S. 237 Dixe, Burnett v. Dixon, Cloughi). Docker v. Somes, 2 M. & K. 655 Dodgson, in' the goods of, 1 Sw. & Tr. 259 . Dodson V. Sammell, 1 Dr. & Sm. 575 Dodswell, Midleton v. Doe V. Fallows, 2 Cr. & J. 481; 2 Tyr. 460 — V. Guy, 3 East, 120 . — V. Michael, 15 Jur. 679 — V. Porter, 3 T. E. 13 — V. Sturges, 7 Taunt. 233 ; 2 Marsh. 305 — V. VardiU, 5 B. & C. 451 . Doglioni, Crispin v. Douy, Appleton v. Dollond V. Johnson, 2 Sm. & Giff. 301 . Donald v. Bather, 16 Beav. 26 . Donaldson, Thompson v. Dormoy, in the goods of, 3 Hagg. Eccl. 7ci7 Dorrett v. Meux, 15 C. B. 142 Douglas, Cooper v. V. Forrest, 4 Bing. 704 .... Doughty, Sims v. Dove V. Everard, 1 E. & M. 231 Dover, ex parte, 5 Sim.. 500 V. Gregory, 10 Sim. 393 Dowdeswell v. DowdesweU, L. E. 9 C. D. 294 ; 27 W. Ch. 23 ; 38 L. T. 828 Down V. Worrall, 1 M. & K. 561 Downs V. Collins, 6 Ha. 418 Downward v. Dickenson, 3 Sw. & Tr. 564 Dowse V. Cox, 3 Bing. 20 Doyle V. Blake, 2 Sch. & Lef. 231 ... ex parte, iYL. kT.'iil Pollard V. Drake, in the goods of, 1 Sw. & Tr. 516 ... Drewry v. Thacker, 3 Sw. 543^ Dring, Holmes v. Drinkwater, in the goods of, 2 Sw. & Tr. 611 . Driver, Merchant v. PAOB 98, 22S . Ill 240 254 107 . . 58 157, 210 . . 212 257 174 . 204 . . 76 189, 247 . 137 . 199 . . 98 . 107 . . 123 . 181 159 220 31 97 . 127, 128, 243 . . 15 . 257 . . 175 E. 241 ; 48 L. J. 26, 78, 79, 80 . . 144 . 189 . 47, 57 . 197 12, 14, 211, 219, 226 . 196, 205 . . 11 197, 225, 245 . 5] xlii TABLE OP CASES. AGE Drohan v. Drohan, 1 B. & B. 185 140 Drosier v. Brereton, 15 Beav. 226 143 Dnie V. Baylie, Freem. K. B. 402 ; 2 Lev. 100 ; 1 Vent. 275 ; 3 Keb. 298, 427, 463, 495, 549 116 Drammond, in the goods of, 2 Sw. & Tr. 8 24 M'Lepd-i). Dryden, Hopton v. Duberry, "Waring v. Dudlow, Wildes v. Duffield V. Elwes, 1 S. & S. 244 110 Duffin, Cniikshank v. Dulwich College v. Johnson, 2 Vem. 49 128 Dunbar, Faith v. Duncan B. Watts, 16 Beav. 204 172,175 Dnndas, Allen v. Dunkin, Munn v. Dunn, in the goods of, 5 No. of Cas. 97 41 TuUocki). Dunsany (Lady), Wilson v. Durant v. Prestwood, 1 Atk. 454 180 Durham (Earl of), Charlton v. Durnford, Miles v. Dye, in the goods of, 2 Rob. 341 9 Dyer, Wansborongh v. Dyke v. Walford, 5 Moo. P. C. 434 45 Dyson, Giles v. Eael, in the goods of, L. R. 1 P. & D. 450 . East V. East, 5 Ha. 348 Eaves v. Hickson, 30 Beav. 136 ; 7 Jur. N. S. 1297 Edgar v. Reynolds, 4 Dr. 269 . Edwards v. Edwards, 2 Cr. & M. 612 ; 4 Tyr. 438 v. Harben, 2 T. R. 597 .. . Egbert v. Butter, 21 Beav. 560 . Egremont, Lee v. Eiderton, in the goods of, 4 Hagg. Eccl. 210i Elibank (Lord), Murray v. EUioe V. Goodson, 2 Coll. 10 .... EUiott V. Elliott, 9 M. & W. 28 V. Gurr, 2 Phillim. 19 Hall J). V. Kemp, 7 M. & W. 313 Stammers v. Ellis, ex parte, 1 Atk. 101 Elme V. Da Costa, 1 PhiUim. 173 . Elmslie v. M'Aulay, 3 Bro. C. C. 624 . Elph, Stacey v. Elwes, Duffield v. 1;. Elwes, 2 Lee, 575 .... Elworthy v. Sandford, 3 H. & C. 330 . Ely (Dean and Chapter of) v. Gayford, 16 Beav. 561 Emelie v. Emelie, 7 Bro. P. C. 259 .. . Emerson v. Emerson, 1 Vent. 187 Emery, Vez v. Empson, Hughes v. Enohin v. Wylie, 10 H. L. C. 1 . 49 . 207 . 217 46, 155, 182 . . 227 . 261 . 213 . 33 . 76, 77 122, 123 167 . 120 48, 105 . 219 43 265 83 143 112 31, 95 181 TABLE OF CASES. xlui PAGE Erhmger v. New Sombrero Phosphate Co., L. R. 5 C. D. 74 ; L. R. 3 App. Cas. 1218 ; 27 W. R. 65 ; 48 L. J. Ch. 73 ; 39 L. T. 269 . 190, 194 Ernest v. Eustace, Deane, 271 48 Eton College v. Beauohamp, 1 Ch. Cas. 121 .184 European Assurance Socy. v. Radcliflfe, L. R. 7 C. D. 733 ; 26 W. R. 417 162, 163 Eustace, Ernest v. Evans v. Bicknell, 6 Ves. 181 254 V. BurreU, 28 L. J. P. & M. 82 . . . . . . . 30 V. Coventry, 5 De G. M. & G. 918 240 Gallivan v. V. Jackson, 8 Sim. 217 140 Jones V, Powell V. Rowland v. Stevens v. V. Tyler, 2 Rob. 131 . . 8 Evelyn, ea;i7arfe, 2M. &K. 4 . . 75, 90 Evens, Payne v. Everard, Dove v. — — Phillips V. Everett v. Prythergh, 12 Sim. 368 240 Smith V. Everson v. Matthew, 3 W. R. 159 147 Evroy v. Nicholas, 2 Eq. Cas. Abr. 489 254 Ewer V. Corbet, 1 P. Wms. 148 ; 2 Eq. Cas. Abr. 449 . . . 134, 136 Ewiu, re, I Cr. & J. 156 ; 1 Tyr. 106 181 Explorer (The), L. R. 3 A. & E. 289 114 Eyles, Smith v. Eyre v. Countess of Shaftesbury, 2 P. "Wms. 121 ... . 10 Fairfax (Lord), Bothomley v. . V. Lord Derby, 2 Veru. 612 116 Fairland v. Percy, L. R. 3 P. & D. 217 ; 23 W. R. 597 ; 44 L. J. P. & M. 11; 32 L. T. 405 219 Fairlie, Freeman v. Logan V. Fairweather, in the goods of, 2 Sw. & Tr. 588 48, 51 Faith V. Dunbar, G. Coop. 200 74 Fallows, Doe v. Fanshaw (Lord), Lprd Castleton v. Faraday, in the goods of, 2 Sw. & Tr. 369 ; 31 L. J. P. & M. 7 38 Farhall v. FarhaU, L. R. 7 Ch. 126 199 Famell, Mason v. Farr v. Newman, 4 T. R. 621 .120 Farrant v. Blanchford, 11 W. R. 178 252 Farrar v. Barraclough, 2 Sm. & Giff. 231 .... 142 Farrell v. Brownbill, 3 Sw. & Tr. 467 . ... 50 Farrow v. WUson, L. R. 4 C. P. 744 . . . . 115, 187 Farwell, Harris v. Faulkner v. Daniel, 3 Ha. 208 . ... . . 78 Fawkener v. Jordan, 2 Lee, 327 2, 56, 57 Fawtrey v. Fawtrey, 1 Salk. 36 . . 32 Featherstonhaugh ■». Feuwick, 17 Ves. 298 109 Federioi, in the goods of, 1 Eccl. & Adm. R. 109 31 xliv TABLE OP CASES. PAGE Fell, in the goods of, 2 Sw. & Tr. 128 34 V. Lutwidge, Barnard. 320 - 131 Feltom's Executors' case, L. E. 1 Eq. 219 194 Femings v. Jarrat, 1 Esp. 335 261 Fendall, Pytt v. Fenn, Eeedu. Fenwick, Featherstonhaugh v. Ferguson v. Gibson, L. K. 14 Eq. 379 167 Fergusson, Harris v. Ferick, Addams v. Fernandes' Executors' case, L. R. 5 Ch. 314 94 Fernie, in the goods of, 6 No. of Cas. 657 11 Femside and Dean's case, L. R. 1 Ch. 231 205 Ferrier, in the goods of, 1 Hagg. Eccl. 241 104 FeuOleteau, Adye v. . Fewkes, Barrs v. Field 11. Peckett (No. 3), 29 Beav. 576 152 Fielder v. Hanger, 3 Hagg. Eccl. 769 39, 60 Fielding, Goodwin v. Finch V. Pescott, L. E. 17 Eq. 554 235 Finlayson, Lloyd v. Fitch, Raymond v. Fittock, in the goods of, 32 L. J. P. & M. 157 30 Fitzpatrick, Herveyt). Flanders v. Clarke, 3 Atk. 509 ; 1 Ves. Sen. 9 145 Fletcher, Camden v. V. Green, 33 Beav. 426 216, 218, £55 Flood V. Patterson, 29 Beav. 295 220 Flower, Tourton v. Floyer, Bostock v. Fooks, Strange v. Forbes v. Forbes, 18 Beav. 552 145 V. Ross, 2 Cox, 43 ; 2 Bro. C. C. 430 215 Ford, Aitkin v. Angermann v. ^-^*-"— TTpnfl.lfi *?? V. Euxton, 1 Coll. 403 149 Fordham v. "WaUis, 10 Ha. 217 ; 22 L. J. Ch. 548 . . . . 244, 245 Forrest, Douglas v. Forster v. Forster, 2 Bro. C. C. 616 223 ■ V. Ridley, 4 De G. J. & S. 452 233, 236 Forth V. Stanton, 1 Wms. Sannd. 210 198 Fortune's Trusts, re, I. R, 4 Eq. 351 258 Foshroke v. Balguy, 1 M. & K. 226 138 Foster v. Bates, 12 M. & W. 226 131 Hewett V. V. Ley, 2 Bing. N. C. 269 - . . 178 in the goods of, L. E. 2 P. & D. 304 4 Vyse V. Fotherby v. Pate, 3 Atk. 604 64, 65 Fothergill v. Kendrick, 2 Vern. 234 160 Foulkes, Jones v. Fouracre, Alder v. Fowler v. Davies, 16 Sim. 182 147 Fox V. Buckley, L. E. 3 C. D. 508 206 - V. Garrett, 28 Beav, 16 ; 6 Jur. N. S. 208 . . . . 165, 167 - Graysbrook v. - Hodgson V. Foxall, Jones v. TABLE OP CASES. xlv PAGE Foxhall, Player v. Foy, Sliarpe v. Frampton, Worly v. Franco v. Franco, 3 Ves. 75 254 Frank, Rogers v. Franklin, Hougliton v. Franks v. Cooper, 4 Ves. 763 163, 167 Fraser, Oolvin v. Gumming v. in tlie goods of, L. E. 1 P. & D. 327 . . . . 51 L. E. 2 P. & D. 183 6 Frearson, James v. Frecker, Norton v. Freeman v. Fairlie, 3 Mer. 24 151, 173, 234 Frencli, exparte, 7 Sim. 510 ■ . . 293 V. French, 1 Dick. 268 . . . ... 100 Frere, Talbot v. . Friswell v. Moore, 3 Phillim. 139 90 Frowd, Moore v. Fry V. Fry, 27 Beav. 144 157, 210 in the goods of, 1 Hagg. Eccl. 80 . . . .5 Fryer v. Gildridge, Hob. 10 167 Fiilford, HiUiard v. Fuller, Muoklow v. V. Redman (No. 2), 26 Beav. 614 .161 Fulton, Lowry v. Fulwood's case, 4 Co. 65a .... 110 Furlonger v. Cox, 3 Phillim. 531 (cited) . . .58 Fyfe's case, 17 "W. E. 870 . .83 Fyson v. Chambers, 9 M. & "W. 460 . . . 265 Gale, in the goods of, 16 W. R. 942 . 5 V. Luttrell, 1 Y. & J. 180 . . . . 222 GaUivan v. Evans, 1 Ball & Beattie, 191 69, 70 Galloway, Linthwaite v. Gardner v. BaiUie, 6 T. R. 591 . . . 206 ■<,. Blane, 1 Ha. 381 242 •Garland, exparte, 10 Ves. IIQ 202, 204 V. Littlewood, 1 Beav. 527 220 Garnet, Shuttleworth v. Gamett, M'Cormick v. Garrard v. Gan-ard, L. E. 2 P. & D. 238 ... 53 Garrick, Burdick v. Garrett, Fox v. V. Noble, 6 Sim. 504 . . . 202, 203 Garter v. Dee, Freem. K B. 13 . . 261 Gascoin's case, Pigot and GaskeU v. Marshall, 5 C. & P. 31 . . . . . . .120 Gatty, Phillipson v. Gaunt V. Taylor, 2 Ha. 413 158 Gayford, Dean and Chapter of Ely v. Gaynor, in the goods of, L. R. 1 P. & D. 723 39 Gaze, Love v. Geare, 0' Dwyer v. Geaves v. Price, 3 Sw. & Tr 71 . . . • • ■ ■ , 3 Gee, Laming v. xlvi TABLE OF CASES. PAGE Gellatly, Brown i). Gerret 1). Carpenter, Dyer, 166 b, n ... 260 Gibbs V. Goren, 11 Beav. 483 183 Gibbons, Berry v. V. Dawley, 2 Ch. Gas. 198 219 Gibert v. Hales, 8 Beav. 236 160 Gibons v, Marltiwarcl, Moo. 594 . . . . . . 15 Gibson v. Bott, 7 Yes. 96 170 Ferguson v. in the goods of, L. E. 1 P. & D. 106 ; 32 L. J. P. & M. 114 . . 16 Mountford v. Turner v. «. Wells, 21 Beav. 620 ... 80 Gifford, Nugent v. Gilby, Ottley v. Gildridge, Fryer v. Giles V. Dyson, 1 Stark. 32 ... . ... 150, 235 Gilford, PerMnson v. Gill V. Att.-General, Hard. 314 218 in the goods of, L. E. 3 P. & D. 113 . . . . 17 Tomlinson v. GOliatt V. Gilliatt, 3 Phillim. 222 23 Gilpin, Bence v. Gittings, Cooke v. Gittins -!). Steele, 1 Sw. 199 - . . .178 Gladdisk, Cleverley v. Glasgow (City of) Life Assurance Company, Crossley v. Glass V. Oxenham, 2 Atk. 121 220 Gleadow v. Atkin, 2 Cr. & J. 548 ; 2 Tyr. 593 147 Glenn, Hornby v. Glyn V. Thorpe, 1 B. & Al. 153 160 Goddard, Briers v. V. Goddard, 3 Phillim. 637 34 v. Haslam, 3 W. E. 367 . . . . . . 82 Godfrey, in the goods of, 2 Sw. & Tr. 133 . . . . • . 47 Godolphin, Eoskelly v. Godrich v. Jones, 2 Curt. 466 68 Godwin, Presant v. Goldingham, Dance v. Goldsborough, in the goods of, 1 Sw. & Tr. 295 88 Goodchild, Jones v. Goode V. West, 9 Ha. 378 .... .... 248 Goodfellow, Cock v. Goodinge, Carey v. Goodson, Ellice v. Goodwin, Brittlebank v. exparte, 1 Atk. 100 . . ... .107 V. Fielding, 4 De G. M. & G. 104 139 Hooper v. Goodyer v. Clark, 3 Leon. 103 .. . , . 63, 65 Goold, in the goods of, 34 L. J. P. & M. 105 . . . . 89 Gordon, Brown v. Nanson v. Eice V. V. Trail, 8 Pr. 416 235 Wilkinson v. Gore, Weeks v. Goren, Gibbs v. Gould, Bailey v. TABLE OF CASES. xlvii PAGE Gower's, Jenning &, case Graham, Bond v. Graham, Harrisons. u. Keble, 2 Dow, 17 15 V. Maclean, 2 Curt. 659 ... . . . 46, 57 Powell V. Grant v. Grant, L. E. 1 P. & D. 654 66 V. L. E. 2 P. & D. 8 2 V. HoUand, L. E. 3 C. P. D. 180 ; 26 "W. E. 742 ; 47 L. J. C. P. 518 117 V. Leslie, 3 Phillim. 116 . 2 Thomson v. Twycross v. Grantham, Bransby v. GranviUe (Earl) v. M'NeiUe, 7 Ha. 166 ; 15 Jur. 252 ... . 149 Grasett, Hollmgsworth v. Graves, in the goods of, 1 Hagg. Eccl. 313 71 Gray, Baxter v. V. Haig, 20 Beav. 219 152 Graybum v. Clarkson, L. E. 3 Ch. 605 153, 195, 208 Graysbrook v. Fox, 1 Plowd. 279 53, 124, 125 Great Glenn (Inhabitants of), Eex v. Green J). AngeU, "W. N., 1867, 305 . 141 Fletcher v. Pearse v. Piggott V. Eayner v. re, 2 De G. F. & J. 121 247 V. Salmon, 8 A. & E. 348 ; 3 N. & P. 388 . . . 200 Woolley V. Greenfield, Bonifaut v. Greenhalgh v. Bates, 39 L. J. P. & M. 44 55 Greenhough, Barraolough v. Gregory, Beardmore v. Coward v. Dover v. Kirk V. Gregson, Cook v. Greville (Earl of), Warwick v. Griffith, Barrow v. Griffiths V. Hamilton, 12 Ves. 298 97 V. Pater, 25 Beav. 236 . . 252 V. Pruen, 11 Sim. 202 . . 178 Grignion v. Grignion, 1 Hagg. Eccl. 535 .... . 256 Grove v. Price, 26 Beav. 103 207 Groves v. Lane, 16 Jur. 1061, s. c, worn. Groves v. Levi, 9 Ha. Apjy, 47 79, 80 Grtmdy, in the goods of, L. E. 1 P. & D. 459 31, 49 Guildford (Earl of), Bamett v. Gummow, Budge v. GunneU v. "Whitear, L. E, 10 Eq. 664 . . . . . . . 249 Gurden v. Badcock, 6 Beav. 159 225 Gumer, ex parte, 1 M. D. & De G. 497 . 216 Gurney, Peek v. Gurr, Elliott v. Gutteridge, Simmons v. Simpson v. Guy, Doe v. Stiles V. Guy's Hospital (Govemors of), Osborn v. Gwyer, Stroud v. xlviii TABLE OF CASES. PAGE Habebgham V. Vincent, 2 Ves. Jr. 230 1, 24 Haddockj Russell v. Hagger, in the goods of, 3 Sw. & Tr. 65 °1 Haig, Gray v. Haldenby v. Spofforth, 9 Beav. 195 221 Hales, Gibert i>. Hall V. EUiott, Peake, N. P. C. 119 264 exparte, 1 Mac. & G. 307 ; 1 H. & T. 681 205 u Hallett, 1 Cox, 134 138,229 V. KendaU, Moseley, 330 167 V. Tanper, 3 B. & Ad. 666 160 v. "Wright, E. B. & E. 793 ; 29 L. J. Q. B. 43 187 Hallett, Hall v. Hambley u^Trott, 1 Cowp. 376 186 Hamer's Devisees' case, 2 De G. M. & G. 371 206 Hamilton, Griffiths v. 7 (Duchess oi) v. Incledon, 4 Bro. P. C. 4 198 Johnstone v, Hammond, Holme v. Hutcheson v. Hamond v. Jethro, 2 Brown, C. & G. 99 109 Hampson, in the goods of, 36 L. J. P. & M. 1 ; 11 Jur. N. S. 911 . . 74 Hanbury v. Spooner, 6 Beav. 630 ........ 173 Hancock v. Podmore, 1 B. & Ad. 260 200 Handley v. Davis, 28 L. J. Ch. 873 ; 5 Jur. N. S. 190 . . . 247, 249 Hanger, Fielder v. Hankey, Tatnall v. Hankiji v. Turner, L. R. 10 C. D. 372 ; 27 "W. R. 20 ; 39 L. T. 286 . . 98 Hankinson, Sterndale v. Hanleyw. M'Dermott, Ir. R. 9Eq. 36 .163 Hannay, Taynton v. Hanson v. Stubbs, L. K. 8 C. D, 155 159, 160 Harbeu, Edwards v. Harbin v. Darby (No. 1), 28 Beav. 325 ... . . . 233, 235 Harby, Bubbers v. Hardey, Turner v. Harding, Thompson v. Hardinge, in the goods of, 2 Curt. 640 35 Hardstone, in the goods of, 1 Hagg. Eccl. 487 90 Harford v. Browning, 1 Cox, 302 173 Hargi-eaves v. Wood, 2 Sw. & Tr. 604 ; 32 L. J. P. & M. 8 . . . . 15 Harper v. Hayes, 2 D. F. & J. 642 -210 Harris, Bird v. Dickens v. V. Farwell, 13 Beav. 403 ..... . . 192, 193 V. Fergusson, 16 Sim. 308 108 1). Harris (No. 1), 29 Beav. 107 1*2 Spratt V. Harrison, -Baynes v. V. Borwell, 10 Sim. 380 282 V. Graham, 1 P. "Wras. 241 (y) (cited) 15 1). Harrison, 4 No. of Cas. 466 ... . 13, 17 V. 2 H. & M. 237 . . . . . . . 179 Hix V. Roe V. u Rowley, 4 Ves. 212 172, 260 V. Thexton, 4 Jur. N. S. 550 155 V. Weldon, 2 Str. 911 ; s. o. mm. Harrison v. Mitchell, Fitz. 103 303 TABLE OF CASES. xlix PAGE Hart, Rocke v. V. Talk, 6 Hare, 611 240 Hartley, Lopes v. Phillips V. Harvest, Chambers u Harvey, Atherley v. Cardale v, ■ V. Palmer, 4 De G. & Sm. 425 223 Harwood v. Hilliard, 2 Mod. 268 184 . Jacomb v. Haslam, Goddard ii. Hasluok V. Pedley, L. E. 19 Eq. 271 ; 23 W. E. 551 . . . . 117, 118 Hassard, Barton v. ■ Hastings, Lord, Beavan v. — — in the goods of, L. E. 4 P. Div. 73 49 Shirrifi' v. Havers v. Havers, Barnard. 23 63, 238, 240, 241 Hathornthwaite V. Eussell, 2 Atk. 127 ; Barnard.' 334 . . . .11 Hawes v. Loader, Yelv. 197 ; Cro. Jac. 271 262, 263 V. Smith, 2 Lev. 122 197 Hawk, Langley v. Hawke v. Wedderburne, L. E. 1 P. & D. 594 ; 37 L. J. P. & M. 33 . 50, 59 Hawkins' Trusts, re, 33 Beav. 570 173 Taylerv. Hay V. Bowen, 5 Beav. 616 251 — in the goods of, 35 L. J. P. & M. 3 37 ' — ■„. Willoughby, 2 Eob. 184 73 Hayes, Harper v. Havgarth, Taylor v. Haymes v. Matthews, 1 Sw. & Tr. 460 9, 34, 48 Brooke v. Haynes, in the goods of, 3 Curt. 75 11 Harper v. Hays, Salmon v. Hayward v. Kinsey, 12 Mod. 573 207 Haywood, Hide v. Heales, Williams v. Heape, Sabin v. Hearn v. Wells, 1 CoU. 333 166 Heath, Bradlev v. Heathcote v. Hulme, J. & W. 122 204 Heathfield, Sander v. Heatley, Chadwick v. Heaton, in the goods of, 7 Jur. N. S. 832 6 Hebb, Long v. Hele V. Lord Bexley, 15 Bea. 340 81 — V. Stowell, 1 Ch. Cas. 126 228 Hellier v. Hellier, 1 Lee, 281 68 Henderson, in the goods of, 2 Eob. 144 31 V. M'lver, 3 Madd. 275 234 Henning, Whittle v. Henry, Pearson v. Henvell v. Whitaker, 3 Buss. 343 175 Hepworth v. Heslop, 6 Ha. 561 228 Herbert, Earl Powlett v. t). Shiel, 3 Sw. & Tr. 480 . .' 89 's case, 8 P. Wms. 117 160 Hernandez, in the goods of, 48 L. J. P. & M. 31 ; 27 W. R. 664 ; 40 L. T. 366 89 Hervey ■!?. Fitzpatriok, Kay, 421 241 TABLE OF CASES. Heslop, Hepwbrth v. Hesso, Oollas v. (Elector of), in tlie goods of, 1 Hagg. Eocl. 93 .... 87 Hewett V. Foster, 6 Bear. 259 212 Hewitson v. Todhunter, 22 L. J. Ch. 76 79, 81 Hewson, Bunbury v. Heynian, Tugwell v. Hibbins, Littleton v. Hickman, Cox v. Hicks r. Keat, 3 Beav. 141 lOO Hickson, Eaves v. Hide V. Haywood, 2 Atk. 126 222 Higham, Att.-Gen. o. Higgins, Jones v. Williams v. Higgs, Langton v. Hubert, Tate v. Hill, in the goods of, L. R. 2 P. & D. 89 . . . . . 31 — V. Bonner, 26 Beav. 372 8S — V. Curtis, L. E, 1 Eii. 90 263, 267, 268 — Sawbridge r. — V. Simpson, 7 Ves. 152 137 — •!). Walker, 4 K. & J. 166 167 — 's case, L. R. 20 Eq. 585 194 Hillam v. Walker, 1 Hagg. Eccl. 71 1 Hilliard, Clowes v. V. Fulford, L. E. 4 C. D. 389 ; 25 W. E. 161 ; 46 L. J. Ch. 43 ; 35 L. T. 750 183; Harwood v. Hills, Cary v. V. Mills, 1 Salk, 35 ; 1 Show. 293 ; Skin. 299 ... . 10, 75 Hind, Seers v. Hindmarsh v. Southgate, 3 Euss. 324 219 Hinton v. Pinke, 1 P. Wms. 539 ... . .... 157 Hirst V. Smith, 7 T. E. 182 61 XI. Tolson, 2 Mac. & G. 134 ; 19 L. J. Ch. 441 188 Kitchen v. Birks, L. R. 10 Eq. 471 66 Hitchinbrook (Lord), Lord Shipbrook v. Hix V. Harrison, 3 Bulstr. 210 10 Hobbs, Sadler v. Hobson (Lady), Churchill v. Hockmore, Bonithon v. Hodgkin, Cart v. Hodgson V. Bibby, 30 Beav. 221 253 Davies ». r. Fox, L. E. 9 C. D. 673 223 ■ Thompson v. Hodson, Wilson v. Hogg, Wilkiiis V. Holbrook, Spackman v, Holland, Clark v. Grant v. V. Hughes, 16 Ves. Ill 157 V. King, 6 C. B. 727 . . . ." ISO Hollingsworth v. Grasett, 15 Sim. 52 118 HoUis V. Smith, 10 East, 293 173 Holloway, Marshall v. Holme, Derbishire v. • V. Hammond, L. K. 7 Exch. 218 204 TABLE OF CASES. li _ , ^ . PAGE Holmes «. Dnng, 2 Cox, 1 143 • Young V. Holt «. Bradford, 1 Sid. 88 112 Hood V. Clapham, 19 Beav. 90 ' 210 Hook, Dickson v. Hool u. Bell, 1 Ld. Raym. 172 ; Lutw. 1230 116 Hooper, Bate v. 11. Goodwin, 1 Sw, 485 ......... 188 re, 30 Beav. 656 250 • Rogers v. V. Summersett, Wiglitw. 16 233 Hope, Att.-Gen. j>. Hopgood V. Parkin, L. R. 11 Eij. 71 217 Hopkinson v. Roe, 1 Beav. 180 233 Hopton V. Dryden, Prec. Oh. 179 ; 2 Eq. Cas. Abr. 450 . . . 164, 169 Hornby v. Glenn, 1 A. & E. 49 . 269 Home V. Sbepberd, 3 Jur. N. S 806 ' 221 Horner t>. Horner, 23 L. J. N. S. Oh., 10 131 266 Horrell c. Witts, L. R. 1 P. & D. 103 ; 35 L. J. P. & M. 55 . . . ' 68 Horsley v. Chaloner, 2 Ves. Sr. 85 223 225 Inhabitants of. Rex v. Horton V. Brocklehurst (No. 2\ 29 Beav. 504 218 Hoskins' Trasts, re, L. R. 6 C. D. 281 ; 25 W. R. 779 ; 35 L. T. 935 . ." 176 Hotbam, Stephens r. Houghton t). Fi-anklin, 1 S. &S. 390 I70 House, Arcbbp. of Canterbury v. Houseman u Houseman, L. R. 1 C. D. 535 ; 24 "W. R. 592 ; 34 L. T. 633 . 106 Houston, in the goods of, 35 L. J. P. & JI. 41 90 Hovey v. Blakeman, 4 Ves. 596 214 233 Howard v. BaiUie, 2 H. Bl. 618 ' 206 V. Papera, 1 Madd. 142 . . . ■ 238 V. Prince, 10 Beav. 312 100, 101 Howe 1). Dartmouth (Earl of), 7 Ves. 137 156' 251 (Earl) V. Lichfield (Earl), L. K. 2 Ch. 155 ' 282 Howell, Chambers v. V. Metcalfe, 2 Add. 348 90 Stackpoole v, Howells, Jones v. Howley t). Knight, 14 Q. B. 240 ........ 110 Huddleston v. Huddleston, 2 Rob. 424 47 Hudson, Brazier v. V. Hudson, Hob. 127 10 Hughes, in the goods of, 4 Sw. & Tr. 209 ; 29 L. J. P. & M. 165 . . . 20 ■ V. Cook, 1 Lee, 386 91 V. Empson, 22 Beav. 181 153, 209 Holland v. Eann v. V. Turner, 4 Hagg. Eccl. 30 76 Whincup V. Hulme, Heathcote v. -0. Tenant, 2 Bro.C. C. 20 254 Humberston v. Humberston, 1 P. Wms. 332 I75 Hume, Coe v. V. Rundell, 6 Madd. 331 94 Whicker v. Humphrey, Atkins v. V. BuUen, 1 Atk. 459 37 Humphreys v. Humphreys, 3 P. Wms. 349 131, 266 u Ingledon," 1 P. Wms, 752 : 126 d 2 lii TABLE OP CASES. PAGE Hunt, Pinney v. V. Stevens, 3 Taunt. 113 94, 100, 101, 131 Hunter f. Baxter, 3 Giff. 214 227 Patteson v. Hurley, Pannell v. Husband v. Pollard, 2 P. "Wms. 467 (cited) ... . . . lia Hutcheson w. Hammond, 3 Bro. Q. C. 145 144 Hutchinson v. Lambert, 3 Add. 27 ... . . . . 5R ■ 's Trusts, re, 1 Dr. & Sm. 27 . . _ . . . . 248, 2i» Hyde v. Dean and Canons ofWestminster, Cro. Eliz. 553 . 184, 186 V. Skinner, 2 P. Wms. 197 184 IxoLEDON, Duchess of Hamilton v. Ingle V. Partridge (No. 2), 34 Beav. 411 215 V. Eiehards (No. 2), 28 Beav. 366 ; 6 Jur. N. S. 1178 '. . 124, 154 Ingledon, Humphreys i\ Inman, Tucker v. Junes, "Winter v. Irby V. Irby, 24 Beav. 525 ... . .... 228 Iredale v. Ford, 1 Sw. & Tr. 305 43, 44, 91 Ironmonger, Irvin v, Irviu V. Ironmonger, 2 R. & M. 531 171 Irvine, Macdonald v. V. Sullivan, L. R. 8 Eq. 674 179, 180 Irving, in the goods of, L. R. 1 P. & D. 658 ; 35 L. J. P. & M. 83 . .92 Isted V. Stanley, Dyer, 372 a 19, 57 Izon, Scott V. Jackson, BaiTs v. Evans v. V. Jackson, 35 L. J. P. & M. 3 90 Kenny v. V. Paulet, 2 Rob. 344 2, S Tyson v. ■ V. Whitehead, 3 PhiUim. 577 12 Jacomb v. Harwood, 2 Ves. Sr. 265 32, 119, 146, 192 Jacques v. Chamberlain, 2 Coll. 435 ........ 171 James v. Aston, 2 Jur. N. S. 224 80 ex parte, 8 Ves. 3.46 138, 139 V. Frearson, 1 Y. & C. C. 370 la Rogers v. Spicer v. Janssen, Earl of Chesterfield v. Jarman, Cooper v. Jarrat, Femings v. Jarvis, Allen v. Kinderley v. Jauncey v. Seeley, 1 Veni. 397 95 Jenkins, in the goods of, 3 PhiUim. 33 104 Tait V. ■ WiUmott V. Jennings, Brooking v. and Gower's case, Cro. Eliz. 219; 1 Leon. 229 ; s. c. nom. Alice Frances' Case, Dyer, 4, in margin 7 Jeplison, »-c, 1 L. T. N. S. 5 ] 248 TABLE OF CASES. liii P. & M, E.. 8 Eq. 3 Jervis v. Wolferstan, L. E. 18 Eq. 18 ; 43 L. J. Ch. 809 ; 30 L. Jessopp V. Watson, 1 M. & K. 665 Jethio, Hammond v. Jewis V. Lawrence, L. E. 8 Eq. 347 . Job V. Job, L. E. 6 C. D. 562 ; 26 W. E. 206 Jolinson, Blogg v. Dolland v. Dulwich College v. in the goods of, 1 Sw. & Tr. 17; 27 L. J, 4 Hagg. Eccl. 182 2 Sw. & Tr. 595 V. Johnson, 4 Beav. 318 V. Newton, 11 Ha. 160 . Sargent v. V. Telford, 3 Euss. 477 . V. Warwick, 17 C. B. 516 . Johnstone v. Hamilton, 6 N. E. 352 Joint Stock Discount Co. v. Brown, L. JoUand, v. Jolliffe, ex parte, 8 Beav. 168 Jones V. Beytagh, 3 PhiUim. 635 V. Cherney, Freem. K. B. 530 V. Evans, L. E. 2 C. D. 420 . • V. Foxall, 15 Beav. 388 V. Foulkes, 10 W. E. 55 . Godrich v. V. Goodchild, 3 P. Wms. 32 V. Higgins, L. E. 2 Eq. 538 . V. Howells, 2 Ha. 342 in the goods of, 1 Sw. & Tr. 13 2 Sw. & Tr. 155 3 Sw. & Tr. V. Jukes, 2 Ves. Sr. 518 V. Lewis, 2 Ves. Sr. 240 . Macnamara v. V. Morrell, 2 Sim. K S. 252 V. Ogle, L. E. 8 Ch. 192 . V. Powell, 6 Beav. 488 Samuel v. V. Strafford (Earl of), 3 P. Wms. Sutton V. Jordan, Fawkener v. in the goods of, L. E. 1 P. & D, Jouet, in the goods of, 2 Add. 504 Joy V. Campbell, 1 Sch. & Lef. 339 Jubber v. Jubber, 9 Sim. 503 Judson, NichoUs v. Jukes, Jones v. Williams v. Juler V. Juler, 29 Beav. 37 28 555 PAGH T. 452 183, 205 . . 181 . 174 218, 220 4 . 31 . 49 . 180 155, 214 . 235 125, 126 . 180 . 82 , 105 . 57 . 141 . 165 . 215 . 80 45 .. 206 100, 101 . 51 . 6, 6 . 91 . 228 152, 217 . 229 . 117 . 235 63, 65 . . 25 73 211, 212, 219 . 171 179, 180 Kaines, Orr v. Keat, Hicks v. Keates v. Burton, 14 Ves. 434 . Keating v. Keating, 1 LI. & G. 136 Keats, Whittle v. Kebble, Willis v. Keble, Graham v. 149, 171 . . 140 liv TABLE OF CASES.- PAGE Keljle V. Osbeston, Hob. 49 265 Keighley, Brightman v. Kelsack v. Nicholson, Cro. Eliz. 196 ; Moor, 422 US Kelson, Warren v. Kembie, Eobinson v. Kemp V. Burn, 4 Giff. 349 151 KUiott V. Kendall, ex parte, 17 Ves. 526 192 Hall V. Kendrlck, Fothergill v. Kennard, M'Lean v. Kennaway v. Kennaway, L. E. 1 P. Div. 148 ; 24 \V. E. 586 ; 45 L. J. P. & M. 86 ; 34 L. T. 864 29 Kennegal, Eeeoh v. Kenny v. Jackson, 1 Hagg. Eccl. 105 ....... 151 Kenrick v. Burgess, Moore, 126 ......... 271 Kent, Marsden v. V. Pickering, 2 Keen, 1 168 Kerr, Thorne v. Keri'ison, Ambrose v. Kett, Parker v. Kilbee u Sneyd, 2 Moll. 200 217,218,235 Killigrew v. Killigrew, 1 Vern. 184 ..... . . 10 Kinderleyi). Jarvis,'22Bea. 23 120 King, Dempsey v. Holland v. V. King, 1 De G. & J. 663 ; 4 Jur. N. S. 121 221 . V. Mullins, 1 Dr. 311 258 Kingdon, Lyse v. V. Nottle, 1 M. & S. 355 113 King's Proctor v. Daines, 3 Hagg. Eccl. 231 1 Kinsey, Hay ward v. Kirby, Webb v. 's Executors' case, 15 Sol. J. 922 194 Kirk V. Gregory, L. E. 1 Ex. D. 55 ; 24 W. E. 614 ; 45 L. J. Ex. 186 ; 34 L. T. N. S. 488 260 Kirkman v. Booth, 11 Beav. 273 203, 233 Siboni v. Kitson, Conyers v. Knapp, Manning v. Knight, Chittenden v. Howley v. in the goods of, 2 Hagg. Eccl. 554 1. 6 Seagram v. 's Trasts, re, 27 Beav. 45 ; 5 Jur. N. S. 326 250 29 Beav. 49 226 Knights V. Quarles, 2 B. & B. 102 ; 4 Moo. 532 ... .114 Knott V. Cottee, 16 Bea. 80 229 Knubley, Wilson v. K oehler, Eay ner v. Kohler, Att.-Gen. v. Kooystra v. Buyskes, 3 Phillim. 531 34, 58 Koster v. Sapte, 1 Curt. 691 .104 Labouchbre v. Tupper, 11 Moo. P. C. 198 191, 202 Lakin, Manby v. Lanibell v. Lambell, 3 Hagg. Eccl. 670 41 TABLE OF CASES. Iv PAi;re Lambert v. Austin, Cro. Eliz. 332 116 HutcHuson v. Eawlings v. V. Eendle, 3 N. E. 247 144 Koxburgh v. Laming v. Gee, L. E. 10 C. D. 715 ; 27 W. E. 227 ; 48 L. J. Ch. 196 ; 40 L. T. 33 221 Lampel's Case, 10 Co. 46 b 122 I-ancashire, &c., Co., Bradshaw «. Lancaster, in the goods of, 1 Sw. & Tr. 464 24 Land v. Land, 43 L. J. Cli. 311 203 Lane, Alexander v. Groves v, in the goods of, 33 L. J. P. & M. 185 4 Searle v. Laneuville v. Anderson, 2 Sw. & Tr. 24 9£ Langford, in the goods of, L. R. 1 P. & D. 458 4 (Lady) v. Mahony, 4 Dr. & W. 107 61 Smith V. Langley v. Hawk, 5 Madd. 46 238, 23!) — - V. Oxford (Earl of), Anibl. 17 141 in the goods of, 2 Eob. 407 103, 105 Stephens v. Laugton v. Higgs, 5 Sim. 228 165 Lansdowne (Marquis of) v. Lausdowne (Marchioness of), 1 Madd. 116 ; J. & W. 522 189 Langstonu Ollivant, G. Coop., 33 143 Larkins ■!). Paxton, 2 Beav. 219 160 Lai-pent v. Sindry, 1 Hagg. Eccl. 382 95 Lasscur v. Tyrconuell, 10 Beav. 28 94 Latch V. Latch, L. R. 10 Ch. 464 147 Lauder v. "Weston, 3 Dr. 389 Iil5 Laury v. Aldred, 2 Brownl. & G. 183 145, 266, 271 Law, Searle v. Lawford, Bousfield v. Jewis V. Layfield v. Layfield, 7 Sim. 172 268 Lazonby v. Eawson, 4 De G. M. & G. 556 224 Ledger, Peake v. Lee V. Egremont, 5 De G. & Sm. 348 223 V. Nuttall, L. E. 12 C. D. 64 ; 27 "W. E. 805 ; 48 L. J. Ch. 616 ; 41 L. T. 4 164,169 Williams v. Leader, Peters v. Lees V. Sanderson, 4 Sim. 28 ......... 218 Leese, in the goods of, 2 Sw. & Tr. 442 ; 31 L. J. P. & M. 167 . . 3, 24 Leeson, in the goods of, 1 Sw. & Tr. 463 32 Legerton, Bright v. Legg V. Mackrell, 2 De G. F. & J. 551 107, 221 Leggatt V. Leggatt, 1 Lee, 348 31 Lcighton, Eock v. Lepard v. Vernon, 2 V. & B. 51 . . . . . . . . 14.'; Le Sage v. Coussmaker, 1 Esp. 187 ...... . 188 Leslie v. Baillie, 2 Y. & C. C. 91 182 Grant v. Lett, Stalschmidt v. Leversage, Chambers v. Levi, Moses v. IVl TABLE OF CASES. Lower, Lewis, re, L. E. i C. D. 101 {sec 5 C. D. 61) ; 25 "W. B Brooke v. Jones V. V. Lewis, 13 Bea. 82 V. Matthews, L. K. 8 Eq.' 277 ... Ley, Foster v. Lichfield (Earl), Earl Howe v. Life Association of Scotland v. Siddal, 3 De G. F. J. 74 Lincoln (Lady), White v. ■ V. Windsor, 9 Ha. 1,58 1'. Wright, 4 Beav. 427 .... Lindsay, Ambler v. Linthwaite v. Galloway, 2 Lee, 414 . . . . Linton, Stratton v. Lister, Collinson v. Willes V. Little, Payne v. Littleton v. Hibbins, Cro. Eliz. 793 . Littlewood, Garland v. Liverpool Borough Bank v. Walker, 4 De G. & J. 24 Collector, &c. , at, Rex v. ■ Mayor, &c., of, Stevenson v. Livesey v. lAvesey, 3 Russ. 287 Llanwame, in the goods of, L. R. 1 P. & D. 30G Lloyd 11. Attwood, 8 De G. & J. 614 V. Crispe, 5 Tannt. 249 II. Finlaj'son, 2 Esp. 564 . V. Mason, 4 Ha. 132 . • Stott V. Tarratt v. V, Tench, 2 Ves. Sen. 215 Loader, Hawes v. Loane v. Casey, 2 W. Bl. 965 . Lockhai-t v. Reilly, 1 De G. & J. 476 Loftus, in the goods of, 3 Sw. & Tr. 307 Logan V. Fairlie, 2 S. & S. 284 . Long V. Hebb, Sty. 341 . V. Storie, Kay,.App. 12 V. Symes, 3 Hagg. Eccl. 774 Long V. Wakeling, 1 Beav. 400 Longmore v. Broom, 7 Ves. 24 . Loomes v. Stotherd, 1 S. & S. 461 Lord, Wightwick v. Lorenz's Settlement, re, 1 Dr. & Sm. 401 Lorimer, in the goods of, 2 Sw. & Tr. 473 Lopes V. Hartley, 7 No. of Cas., Suppl. 31 Love V. Gaze, 8 Beav. 472 Lowe, in the goods of, 3 Sw. & Tr. 478 Lowis V. Rumney, L. R. 4 Eq. 451 Lowry v. Fulton, 9 Sim. 115 in the goods of, L R. 3 P. & D. 157 ; Lowson V. Copeland, 2 Bro. C. C. 156 Lucas V. Lucas, 2 Lee, 576 ... V. Williams, 3 Giff. 150 . Lucy v. Walrond, 3 Bing. N. C. 841 Liidborrow, Quick v. Luntley v. Royden, Cas. t. Finch. 381 Lush's' Trusts, re, L.- R. 4 Ch. 591 Lu trell, Gale i\ 64; PAGE 35 L. T. 557. 170 . . 235 . 172, 173 252 . . 232 214, 255 56 22 W. R. 352 30 . 160 190, 202 178 51 253 133 100 161 180 168 143 35 96 131 80, 82 12, 13, 16, 53 . 98 . 171 . 158 250, 251 . 21 . 104 . 179 3 161, 227 15, 211 695 6 182, 207 198, 202 131, 200 204 254 TABLE OP CASES. Ivii Lutwidge, Fell v. Lynch v. Bellew, 3 Phillim. 424 V. Provisional Government of Paraguay, L. R. 2 P. & D. 270 Lynn, Brenchley v. Lyse V. Kingdon, 1 Coll. 184 ; 8 Jur. 418 .... Lyth V. Ault, 7 Exch. 669 Lyttleton v. Cross, 3 B. & 0. 322 Lytton, Bennett v. 7 181 221 192 162 5 Jur. N. S. 1091 Coles, in the goods of, Maberley, Masterman v. Macdonald v. Irvine, L. R. 8 C. D. 112 ; 26 W. R. 381 ; 47 L. J. Ch. 494 38 L. T. 155 V. Richardson, 1 Giff. 81 Mackrell, Legg v. Mackenzie v. Taylor, 7 Beav. 467 Mackintosh v. Barber, 1 Bing. 50 ; 7 Moore, 315 Maclaren, Carron Iron Co. v. Maclean v. Dawson (No. 1) 27 Beav. 21 (No. 3) 27 Beav. 369 1 Sw. & Tr. 425 . Graham v. Macnamara v. Jones, 2 Dick. 587 Macnin v. Coles,- 33 L. J. P. & M. 175 3 Sw. & Tr. 181 . Madgwick v. Wimble, 6 Beav. 495 . Magrane v. Archbold, 1 Dow, 107 Mahony, Lady Langford v. Mair, Utterson v. Major V. Major, 2 Dr. 281 Malbon, "Wells v. Maltass v. Maltass, 1 Rob. 72 Maltby v. Russell, 2 S. & S. 227 Man V. Ricketts, 7 Beav. 93 Manly, in the goods of, 3 Sw. & Tr. 56 — — V. Lakin, 1 Hagg, Eccl. 130 Manning v. Knapp, 1 Salk. 37 . V. PurceU, 5 De G. M. & G. 55 Marchant, Plumer v. Margerison, Bateman v. MarkweU's case, W. N. 1872, 210 ; 21 W. R. Marltiward, Gibons v. Marrlot v. Marriot, 1 Str. 671 . Marriott v. Thompson, Willes, 186 Marsden v. Kent, L. R. 5 C. D. 598 ; 25 "W. R. 522 ; 46 L. L. T. 48 135 Marshall v. Broadhurst, 1 Tyr. 308 ; 1 Cr. & J. 403 Gaskell v. V. HoUoway, 2 Sw. 432 .. . in the goods of, 1 Curt. 297 . Marshfield, Talbot v. Marston, Wolverhampton, &c., Co. v. Martin, Angersteln v. Baker v. r. Martin, 1 Ves. Sr. 214 . ■ V. Robinson, 2 Lee, 535 Martindale, Taylor v. Martyn, Cook v. . Ch. 157 204 183 139 80 77 76,79 234 47 109 140 158 181 162 98 1,6 1 45 228 246 . 98 . . 168 497 ; 37 . 209 185, 187 . 232 . . 75 160 27 Iviii TABLE OF CASES. PAGE Massey v. Banner, 1 J. & W. 241 152 Massie, Abbott v. Masou V. FarneU, 12 M. & W. 674 123 Lloyd V. ■ V. Williams, 2 Salk. 507 160 Master, Rashleigh v. Mastermau v. Maberley, 2 Hagg. Keel. 247 2 Matthew, Everson v. Matthews v. Bagshaw, 14 Beav. 123 234 V. Brise, 6 Beav. 239 142, 217 Haymes v. ■ Lewis V. TeiTell V. Matthison v. Clarke, 3 Dr. 3 233 Maude, Benson v. M'Aulay, Elmslie v. Maule, Rutherford v. Turner v. Watkins v. Mauude, Walter v. May, Slater v. Slaughter v. Maychell, in the goods of, L. R. 4 P. Diy. 74 ; 26 W. R. 439 ; 47 L. J. P. & M. 31 • 50, 90 Mayesden, Parsons v. Mayhew v. Newstead, 1 Curt. 593 57 Rowles V. McGill, Pemberton v. M'Cormickti. Garnett, 2 Sm. & G. 37 223 McPherson, Allen v. M'Cullocku Dawes, 9D. &II. 40 245 M 'Dermot, Hanley v. M'Donnell v. Prendergast, 3 Hagg. Eccl. 212 13, 17 Mead v. Lord Orrery, 3 Atk. 237 121, 136 MedJowcroft, Percy v. Medlicott v. Bowes 1 Ves. Sr. 207 222 Meek v. Curteis, 1 Hagg. Eool. 129 103 Meluish v. MOton, L. R. 3 C. D. 27 ; 24 W. R. 892 ; 35 L. T. 82 . . 98 Melville (Viscount), Preston v. Whiteaves v. Menzies v. Pulbrook, 2 Curt. 845 . . .... 46, 48 Mercer v. Morland, 2 Lee, 499 43, 44 Merchant v. Driver, 1 Saund. 372 166 Merryweather v. Turner, 3 Curt. 802 29 Messenger v. Andrews, 4 Russ. 478 175 Metcalfe, Howell v. in the goods of, 1 Add. 343 86 ■ Wise V. Metropolitan Ry. Co. , Newton v. Meux, Dorrett v. Meymott, Nobis v. Meyriok v. Anderson, 14 Q. B. 719 267 Michael, Doe v. Michell, Sandry v. Middleton, in the goods of, 2 Hagg. Eccl. 61 60 V. Pollock, L. R. 20 Eq. 29 ; 23 W. R. 766; 44 L. J. Ch. 584 • 33 L. T. 240 . 222 V. Poole, 2 Coll. 246 164 's case, 5 Co. 28 a 125, 130 TABLE OF CASES, lix 744 Midleton v. Dodswell, 13 Ves. 268 . Mildon, Sliarland v. Miles, Cole v. u. Durnfovd, 2 De G. M. & G. 641 Miller v. Washington, 3 Hagg. Eccl. 277 . Milles, Smith v. Milligan, in the goods of, 2 Rob. 108 . Milne, Travis v. Milnes, in the goods of, 3 Add. 55 . . . Mills, Hills v.. Milton, Meluish v. Missing, Cotteen v. Mitchell V. Cobb, 17 L. T. 25 Mitchelson v. Piper, 8 Sim. 64 . M'lver, Henderson v. M'Lean v. Kennard, L. E,. 9 Ch. 336 . M'Leod V. Drummond, 17 Yes. 168 . M'Mahon v. Biirchell, 5 Ha. 325 . Rawlins v. V. Rawlings, 16 Sim. 429 . ]M'N"eiUe, Earl Granville v. M'Neillie r. Acton, 2 Eq. Rep. 21 ; 4 De G. M. & G. Mockett's Will, re, Johns. 628 ; 8 W. R. 235 . JMonck, Van Straubenzee v. Moneypenny v. Bristow, 2 R. & M. 117 . Monins, Childs v. Monteiro, Bowerbank v. Montgomery, in the goods of, 5 No. of Cas. 99 Monsell v. Armstrong, L. E. 14 Eq. 423 Moodie v. Bannister, 4 Dr. 432 . ' Panle v. Moons V. De Beraales, 1 Russ. 306 Moore, Friswell v. V. Frowd, 3 M. & Cr. 45 Wilson V. Morant, in the goods of, L. R. 3 P. & D. 151 . Mordaunt v. Clarke, 38 L. J. P. & M. 45 . Moreron's case, 1 Vent. 30 ; 1 Sid. 407 . More's, Sir W., case, Cro. Eliz. 26 ; And. 123 Morewood v. Cm-rey, 28 W. R. 213 Morgan, Bradbury v. in the goods of, 2" Rob. 415 . ■ • 35 L. J. P. & M. - - 36 L. J. P. & M. V. Rarey, 2 F. & F. 283 V. Thomas, 8 Exch. 302 ; 17 Jur V. Swansea Urban Sanitary Authority, E. 283 Morison V. Morison, 4 M. & Cr. 216 . Morlaud, Mercer v. Morley v. Saunders, L. R. 8. Eq. 594 . V. White, L. R. 8 Ch." 731 Morpliew, Beeching v. Jlorrell, Jones v. Morrice v. Bank of England, Cas. t. Talbot, 223 ; 2 Bro. P. C. Morris, in the goods of, 2 Sw. & Tr. 360 ; 31 L. J. P. & M. ■ V. Mon-is, L. R. 10 Ch. 68 ; 23 W. R. 120 ; 44 L, L. T. 491 Rowsell V. PAGE 237, 240, 241 137, 147 33, 34 90 74 248 228 . 110 120, 137 , . 223 64 283 E. C. . 94 135,. 138, 202, 203 . 251 . 189 1 . 65 . 161 . 99 231, 233 18 12 112 133 224 31 1 3 185 131 . 532 27 W. 108 233 222 220 465 ; 3 Sw. 573 160 80 . . 32, 104 J. Ch. 178 ; 31 . . 168 Ix TABLE OF CASES. PAGE Mon-ison, in the goods of, 2 Sw. & Tr. 129 36 V. Mon-ison, 4 M. & Or. 216 233 Mortimer v. Mortimer, 11 W. R 740 81 V. Paull, L. E. 2 P. & D. 85 ; 39 L. J. P. & M. 47 . . . 68 Morton, in the goods of, 3 Sw. & T. 423 23 Moseley v. Kendell, L. R. 6 Q. B. 338 ; 40 L. J. Q. B. Ill . . . 61 Moses V. Levi, 3 Y. & C. Ex. 359 131, 213 Moss, Davenport «. Mosse, Archer v. Motley, Bick v. Mountford (Lord) v. Lord Cadogau, 17 Ves. 489 195 V. Gibson, 4 East, 446 265, 269, 270 Moyle V. Moyle, 2 Euss. & M. 710 214 Miicklow u. Fuller, Jao. 198 14,208 Muddle, Cole v. Muggeridge, in re, L. R. 10 Eq. 443 193 's Trasts, re, Johns. 625 ; 8 W. R. 234 ; 6 Jur. N. S. 192 . . 250 MuUins, King v. Munby, Att.-Gen. v. Munday v. Slaughter, 2 Curt. 72 12, 28 Munn«.*Dunkin, Gas. t. Finch. 298 . . 63 Munnings, Philippo v. Murray, AyUffe v. u. Lord Elibank, 10 Yes. 90 177 Murrell v. Cox, 2 Vern. 570 211 Nail v. Punter, 5 Sim. 563 ... . Nanson v. Gordon, L. R. 1 Ajpp. Cas. 195 ; 24 "W. R 89 ; 34 L. T. 401 Napier, in the goods of, 1 Phillim. 83 Nash V. Yelloly, 3 Sw. & Tr. 59 ... . Nation v. Tozer, 1 C. M. & R. 174 ; 4 Tyr. 563 . National Provincial Bank of England, Newell v. Nayler, in the goods of, 2 Rob. 410 . Nay lor ■;;. Stainsby, 2 Lee, 54 "Williamson v. Needham, Webb v. Neeves v. Bun-age, 14 Q. B. 604 Nelson v. Oldfteld, 2 Vern. 76 ... . i-. Searle, '4 M. & W. 795 Netherseal, Rex v. Netter v. Brett, Cro. Car. 395 ... . Newbegin v. BeU, 23 Beav. 386 ... Newbold, in the goods of, L. E. 1 P. & D. 285 Newcastle (Duke of). Bridges v. Newcombe v. Beloe, L. R 1 P. & D. S14 . Newell V. National Provincial Bank of England, L. W. E. 458 ; 45 L. J. C. P. 285 ; 34 L. T. 533 Newman v. Bai-ton, 2 Vern. 205 .... V. Beaumond, Owen, 50 . . . ■ Fan- V. Sleap V. New Sombrero Phosphate Co., Erlanger v. Newstead, Maybewi'. Newton v. Askew, 11 Beav. 152 in the goods of, 3 Curt. 428 Johnson v. 740 ; 45 L. J. Bkcy. R, 1 V. P. D. 496 ; 24 1 100 109 103 29 119 32 6 148 98 197 25' 158 41 47 222 , 178 104 151 75 TABLE OP CASES. Ixi PAGE Newton v. Metropolitan Eailway Co., 1 Dr. & Sm. 583 .. . 125, 125 Orr V. Pelhata v. V. Rowse, 1 Vern. 460 18» 11. Sherry, L. R. 1 C. P. D. 246 ; 24 W. R. 371 ; 45 L. J. C. V. 257 ; 34 L. T. 251 245 Taylor v. V. Walker, Willes, 315 205 Nichol V. Askew, 2 Moo. P. C. 88 lOS Nicholas, Evi'oy v. Nicholls, Binns r. Brown v. V. Judson, 3 Atk. 301 .185 Nicholson, Kelsack v. Prince v. V. Tuttin (No. 2), 3 K. & J. 159 23? Nield V. Smith, 14 Ves. 491 ... 185 Nixon, Weddall v. Williams v. Noble V. Brett (No. 2), 26 Beav. 233 . 183 V. Cass, 2 Sim. 343 . 115 Devaynes v. Garrett v. ■ V. Meymott, 14 Beav. 471 .. . . . 221 Vulliamy v. Noddings, in the goods of, 2 Sw. & Tr. 17 21 Noel, in the goods of, 4 Hagg. Eccl. 207 8» Ordi). V. Robinson, 1 Vern. 94 ; 2 Vent. -358 122; Norris v. Wright, 14 Bea. 304 . . 143, 215 Norton v. JFrecker, 1 Atk. 526 161 _ V. Turvill, 2 P. Wms. 145 223 Noi-wich YarnCo., re, 12 Beav. 366 112 Norwitch, Williamson v. Nottidge, Shepherd v. Nottle, Kingdon v. Nugent V. Gifford, 1 Atk. 464 134 Nunn V. Barlow, 1 S. & S. 588 164 Nutt, CT^arfe, 1 Atk. 102 202 Nuttall, Lee v. O'Byenb, in the goods of, 1 Hagg. Eccl. 315 32, 89 O'Dwyer v. Geare, 1 Sw. & Tr. 465 25 Offley V. Best, 1 Lev. 186 ; 1 Sid. 370 103, 104 Ogle, ex parte, L. R. 8 Ch. 715 218 Jones V. Ognel's case, 4 Co. 48 b 115 O'Grady, Smith v. Oldfield V. Cobbett, 4 L. J. N. S. Ch. 271 238, 239 0. 6 Beav. 515 154 v. 1 Phillips, 613 147 Nelson v. Oliphant, in the goods of, 1 Sw. & Tr. 525 6, 27 Oliver v. Court, 8 Pr. 167 21S Sloper V. Ollivant, Langston v. Ollive, Weale v. Ixii TABLE OF CASES. PAGE O'Loughlin, in the goods of, 39 L. J. P. & M. 53 55 Oranmove and Browne (Lord), in the goods of, 30 L. J. P. & M. 182 . . 39 Ord V. Noel, 5 Madd. 440 140 Oriental Commercial Bank v. Savin, L. E. 16 Eq. 203 ... . 217 Orleans (Duchess of), in the goods of, 1 Sw. & Tr. 255 * Ornie v. Broughton, 10 Bing. 533 ; M. & Sc. 417 114 Ormonde (Earl of), Clarke v. Orr V. Kaines, 2 Ves. Sr. 194 177 — u. Newton, 2 Cox, 274 !$■ Orrery (Lord), Mead v. Osbcston, Kehle v. Osborn v. Governors of Guy's Hospital, 2 Str. 728 18S Ottley V. Gilby, 8 Beav. 602 151 Oughton V. Seppings, 1 B. & Ad. 241 127 Overington v. Ward, 34 Beav. 175 128, 241 Ovington, Christie v. Oxeuham v. Clapp, 2 B. & Ad. 309 265 , Glass V. Oxford (Earl of), Langley v. Owen V. Delamere, L. K. 15 E(i. 139 203 V. Owen, 1 Atk. 495 7 Paddon v. Eichardson, 7 De G. M. & G. 563 215 Paddy, CT^arfc, 3 Madd. 241; Buck, 235 127 Padget V. Priest, 2 T. E. 97 260, 267 Paine, Cruse v. Palgrave v. "Windham, 1 Str. 212 112 Palmer, Harvey v. Prince of "Wales, &c. , Association v. V. Wright, 10 Beav. 234 241 Yetts V. Pannell v. Huriey, 2 Coll. 241 137 V. Penn, 1 Eoll. Ahr. 618 14S V. Taylor, T. & R. 96 205 Papera, Howard v. Paradice v. Shepherd, 1 Dick. 136 147 Paraguay, Provisional Government of, Lynch v. Park, in the goods of, 6 Jnr. N. S. 660 17 Parke v. Eingham, 33 Beav. 635 15» Parker, Barker r. 1). Kett, 12Mod. 471; ILordEaym. 661 26» Parkin, Hopgood v. Parkinson, Ames v. Parry, re, 6 Ho. 306 24S Wilkinson v. Parsons v. Mayesden, Freem. K. B. 151 ; s. i;. nom. Parten v. Baseden, 1 Mod. 213 261 V. Parsons, L. R. 8 Eq. 260 117 Partridge, Ingle v. Pass, Poole v. Pate, Fotherby v. Pater, Griffiths v. Patten ii. Patten, Alcock & Napier, 493 132 Patterson, Flood v. I'atteson v. Hunter, 30 L. J. P. & M. 272 3S Patrickson, Dacre v. Paule V. Moodie, 2 Eoll. 132 14 TABLE OF CASES. Paulett, Jackson v, Paull, Mortimer v. V. Simpson, 9 Q. B. 365 . Pawlett, Devon v. Lord W., ex parte, 1 Phillips, 570 Paxton, Larkins v. Payne v. Evens, L. E. 18 Eq. 356 . V. Little, 22 Beav. 69 .... Peake v. Ledger, 8 Ha. 213 ... Pearse v. Green, 1 J. & W. 140 . . Pearson v. Henry, 5 T. R. 6 . V. Pearson, 1 Sch. & Lef. 11 . Peck, in the goods of, 2 Sw. & Tr. 506 Peckett, Field v. Pedley, Hasluck r. Peek V. Gurney, L. E. 6 H. L. 377 Peel, in the goods of, L. E. 2 P. & D. 46 . Peers v. Ceeley, 1 Beav. 211 Pegg V. Chamberlain, 1 Sw. & Tr. 527 Pelham v. Newton, 2 Lee, 46 Pemberton, Bru&re r. V. Chapman, 7 E. & B. 210 ; E. B. & E. 1056 ■„. Cony, 1 Cro. Eliz. 164 . r, McGill, 3 W. E. 557 . Penn, Pannell v. Pennington v. Buckley, 6 Ha. 451 .... Penny, Briggs v. .,.. Watts, 2 Phillips, 149 Penoyre, "Wood v. Peppercorn v. ^Yayman, 5 De G. & Sm. 230 . Percival, Thompson v. Percy, Fairland v. V. Meddowcroft, 4 Beav. 204 .... Perkins, Eichards r. Perkinson v. Gilford, Cro. Car. 539- ; W. Jones, 430 Perry, in the goods of, 2 Curt. 655 .... ^— V. Phelips, 10 Ves. 34 Pescott, Finch v. Peters v. Leeder, 47 L. J. Q. B. 573 . Pett, Eobinson v. Pfeil, "Walters v. Phelips, Perry u. Philbrick's Trusts, re, 13 W. E. 570 . Philippo V. Mnnnings, 2 M. & Cr. 315 Phillips V. Beal (No. 2), 32 Beav. 26 ... . V. Bignell, 1 Phillim. 240 ... . V. Everard, 5 Sim. 102 V. Hartley, 3 C. & P. 121 . in the goods of, 2 Add. 335 .... Phillipson v. Gatty, 7 Ha. 516 Philpot V. Briant, 4 Bing. 717 Phipps V. Steward, 1 Atk. 285 Tucker v. •Pickering, Kent v. V. Pickering, 4 M. & Cr. 289 ... v. Stamford, Lord, 2 "Ves. Jr. 583 Stamper v. V. Towers, 2 Lee, 401 Pierce, Adams v. Jxiii PAGE . 26a . 142 . 151 . 224, 22.T. . 147 . . 151 197, 225 . . 170^ . 51 191, 194 225 87 24- 145 5 241 . 257 . 266 148, 149' . 15S . . 186 15, 1* . . 160 261, 262 . . 176 . . 257 . . 148. 150, 151 . . 185 . 130 . . 75 . 215 . . 198 128, 12» 156 201 ]xiv TABLE OP CASES. PACE Piety V. StMe, 4 Yes. 622 230 Piggott V. Green, 6 Sim. 74 • . . . . 174 Pigot & Gascoin'a case, Brownl. & G. 46 (cited) 62 Pine, in the goods of, L. K. 1 P. & D. 388 ; 36 L. J. P. & M. 95 . . . 54 Pinke, Hinton v. Pinney r. Hunt, L. E. 6 C. D. 100 ; 26 W. R. 69 . . . . 26, 93 V. Pinney, 8 B. & C. 335 93, 126 Piper, Cradock v. Mitchelson v. Pitt V. Woodham, 1 Hagg. Ecol. 250 151 Plaice, Russell v. Platel V. Craddock, C. P. Coop. 481 206 Player v. Foxhall, 1 Russ. 538 167 Ploughman, Baily v. Plume V. Beale, 1 P. Wms. 388 9S Plumer v. Marchant, 3 BuiT. 1380 167 Pocock V. Reddingtou, 5 Ves. 794 215 Podmore, Hancock v. V. Whatton, 3 Sw. & Tr. 449 57 PoUard v. Doyle, 1 Dr. & Sm. 319 232 Husband v. Pollock, Middleton v. V. Pollock, L. R. 18 Eq. 329 117 Pool, in the goods of, 35 L. J. P. & M. 97 56 Poole, Middleton v. V. Pass, 1 Beav. 605 222 Pooley V. Ray, 1 P. Wms. 355 201 Pontigny, De Chatelain v. Porter, Doe-i). ■ Stokes V. Portland (Duke of) v. Bingham, 1 Hagg. Cons. 158 2S Potter, Att.-Gen. v. Poulett, Lord W., Lord Brougham v. Poulton, Willy v. Pountney, in the goods of, 4 Hagg. 290 39 Powell, Bolton v. Davenport v. ' V. Evans, 5 Ves. 843 153, 208, 209 ■ V. Graham, 7 Taunt. 580 ; 1 Moo. 305 184, 199 Jones V. ■ V. Rees, 7 A. & E. 426 ; 2 K & M. 57 189 Satterthwaite v. Shafto V. Sumner v. Power, Tipping v. Powis, Astley v. in the goods of, 34 L. J. P. & M. 55 88 Powlett (Earl) v. Herbert, 1 Ves. Jr. 297 254 foyer, in the goods of, Deane, 184 56 Pratt u Stocks, Cro. Eliz. 315 104 Prendergast, M'Donnell v. Presant v. Godwin, 29 L. J. P. & M. 115 5,5 Prestage, Storer v. Preston v. Viscount Melville, 8 CI. & F. 1 . ; Prestwood, Durant v. Price V. Dewhurst, 4 My. & Cr. 80 93 Geaves v. Grove v. i V. TABLE OF CASES. IxV PAGE Pnest, Padget v. Prince, Howard v. V. Nicholson, 5 Taunt. 665 ; 1 Marsh. 280 . . ... 162 V. Rowson, 1 Mod. 208 ; 2 Mod. 51 271 Spurstow V. of Wales, &o. Association v. Palmer, 25 Beav. 605 . . . .83 Prince's case, 5 Co. 29 a 63, 65 Pi'ing, Ackland v. Probart, in the goods of, 36 L. J. P. & M. 71 . . .- . . . 39 Procter, Swan v. Procurator-General, Colvin v. V. Williams, 2 Sw. & Tr. 353 68 Prosseru. Wagner, 1 C. B. (N. S.) 289 98,99 Praen, Griffiths v. Prythergh, Everett v. Piilbrook, Menzies v. Pullen V. Serjeant, 2 Ch. Rep. 300 52 Pulteney v. Warren, 6 Ves. 72 ... 189 Pumfrett, Barnard ■!>. Punchard, in the goods of, L. R. 2 P. & D. 363 . . 5 Punter, itail v. Purcell, Manning v. Putnam, Bliss v. Pyke, Croft v. Pyne v. WooUand, 2 Ventr. 179 271 Pynn, Stretch v. Pytt V. Fendall, 1 Lee, 553 . . 13, 14 QUAELBS, Kuights V. Queen's Proctor, AspinwaU v. Dawes v. Quick V. Ludhorrow, 3 Bulstr. 30 185 V. Staines, 1 B. & P. 293 120 Eaby v. Ridehalgh, 7 De G. M. & G. 104 156 Eadcliffe, European Assurance Society v. Radnall, in the goods of, 2 Add. 233 85 Radnor (Earl of), Campbell r. Raines, Rex v. Eanking's Settlement Trusts, re, L. E. 6 Eq. 601 .. . 79, 81, 83 Eann v. Hughes, 7 T. R. 350; 4 Bro. P. C. 27; 1 Ves. Sr. 125 (cited) . . 197 Raphael v. Boehm, 11 Ves. 108 230 Rarey, Morgan v. Rashleigh v. Master, 1 Ves. Jr. 205 221 Eawlings v. Lambert, IJ. & H. 458 266 M'Mahon v. Rawlins u M'Mahon, 1 Dr. 225; 9 Ha. App. 82 83 Sliipton V. Kawlinson v. Shaw, 3 T. R. 557 17 D. Stone, 3 Wils. 1; 2Str. 1260 141 Ra^son, Laisonby v. Ray, Pooleyu - V. Ray, G. Cooper, 264 120 Raymond v. Fitch, 2 Cr. M. & IJ. 588; 5 Tyr. 983 . . 113 Rayner v. Greon, 2 Curt. 248 .12, 15 ■ V. Koehler, L. K. 14 Kq. 262 . . . . . . 266 Read, in the goods of, 1 Hagg. Eccl. 474 . . .... 95 e Ixvi TABLE OF CASES. Eees, Kead v. Stedman, 26 Beav. 495 . i: Ti-uelove, Amt. 417 's case, 5 Co. 33 b ; 1 Roll. Abr. 915, 5 . Reaiie, Browning v. Reddington, Pocock v. Redman, Fuller v. Reech v. Kennegal, 1 Ves. Sr. 123 Reed, Browell v. ■ V. Devaynes, 2 Cox, 285 ; 3 Bro. C. C. 95 . Dix r. V. Fenn, 35 L. J. Ch. 464 ... in the goods of, 3 Sw. & Tr. 439 . Powell V. Reeve's Trasts, re, L. R. 4 C. D. 841 Reid V. Lord Tenterden, 4 Tyr. 118 .. . Reilly, Lockhart r. Reitz, in the goods of, 3 Ha;g. Eccl. 766 . Relph, Bird v. Rendell, Moseleyu. Rendle, Lambert r. Hex V. Bettesworth, 2 Str. 891 ... . — V. 2 Str. 956 ... — V. 2 Str. 1111 .... — V. 2 Str. 1113 — V. Burnett, Bao. Abr. Exors. (L.) 2 (cited) — V. Collector, &c., at Liverpool, 2 M. & S. 223 — V. Great Glenn, Inhabitants of, 5 B. & Ad. 188 — V. Horsley, Inhabitants of, 8 East, 405 — V. Netherseal, 4 T. R. 260 . — V. Raines, 1 Ld. Raymond, 361 ; 1 Salk.- 299 ; 3 12 Mod. 205 ; Carth. 457; Holt, 310 . — V. Simpson, 1 W. Bl. 458 ... . — V. Stone, Inhabitants of, 6 T. R. 295 — V. Wade, 5 Pr. 627 Reyner, Davis v. Reynolds, Edgar v. Thompson v. Rhodes, Bowra v. V. Smethnrst, 4 M. & W. 42 Wilson V. Rice V. Gordon, 11 Beav. 265 Rich, Wills V. Richards, in the goods of, L. E. 1 P. & D. 156 . V. Browne, 3 Bing. N. C. 493 Ingle V. V. Perkins, 3 Y. & C. Ex. 299 . Richardson, ex parte, Buck, 202 ; 3 Madd. 138 Macdonald v. in the goods of, 1 Sw. & Tr. 675 . • ■ L. R. 2 P. & D. 244 . Paddon v. Richmond v. White, 27 W. R. 878 ; L. R. 12 C. D. 361; 48 L. Ricketts, Man v. V. Weaver, 12 M. & W. 718 Riddell v. Sutton, 5 Bing. 200 Eidehalgh, Raby v. Eidge, Davies v. Eidley, Forster v. PAGE 179, 180 . 14 261, 264 199 172 244 Salk. 162 ; 1 Str 174 108 59 37 54 37 37 161 109 120 120 93 672; 10, 11, 15 . . 11 . 120 . . 158 . 244 136, 138, 219 . 20 . . 122 . 240 202, 203 . 36 . . 50 J. Ch. 798 164, 166, 166 114 225 TABLE OF CASES. Ixvi'i PAG'. Ridout V. Bri.stow, 1 Cr. & J. 231 197 Eigden, Earl Vane v. Rimell v. Simp.son, 18 L. J. Ch. 55 247 Ringham, Parke v. Rivaz, Collier v. Rivers (Lord), in the goods of, 4 Hagg. EccL 366 63 Roberts, in the goods of, 1 Sw. & Tr. 64 51, 90 V. Roberts, 2 Lee, 399 . 151 Robertson, Arch^dshop of Canterbury v. Robbins's case, Noy, 69 . 260 Robins, Bate v. Robinson and Sords, re, L. R. (Ir.) 3 C. D. 429 65 Creasor v. Devaynes v. V. Kerable, W. N. (1867), 305 82 Martin v. Noel r. V. Pett, 3 P. Wms. 249 236 V. Robinson, 16 Jiir. 255 . . 230 V. 1 De G. M. & G. 217 . . ... 215 Searson v. V. Tickell, 8 Ves. 142 117 Weald of Kent Canal Co. v. Whitmarsh v. Robson 7). , 2 Rose, 50 Rock V. Leighton, 1 Salk. 310 Rocke V. Hart, 11 Ves. 58 Roe r. HaiTison, 2 T. R. 425 — Hopkinson v. — V. Summersett, 2 W. Bl. 694 Rogers v. Frank, 1 Y. & J. 409 -u. Hooper, 21 L. T. 278 V. James, 7 Taunt. 147; 2 Marsh. 4 V. Price, 3 Y. & J. 28 . Wright V. Rogerson, in the goods of, 2 Curt. 656 . . . . . . . Rose V. Bartlett, Cro. Car. 293 7, Whyte V. Roskelly r. Godolphin, Sir T. Eaym. 483 ; Skin. 214 ; Shower, 403 64, 163 Ross V. Adcock, L. R. 3 C. P. 665 — Forbes v. — ex parte, 6 Ves. 802 — in the goods of, L. R. 2 P. Div. 275 . Rofsar, in the goods of, 3 Sw. & Tr. 490 Roxburgh v. Lambert, 2 Hagg. Eccl. 557 . Rowland, Clegg v. V. Evans (No. 2), 33 Beav. 202 ; 3 N. R. 233 V. Witherden, 3 Mac. & G. 568 . Rowles V. Mayhew, L. E. 5 C. D. 596 ; 25 W. R. 521 ; 46 L, 37 L. T. 48 . Rowley v. Adams, 2 H. L. C. 72.o V. 4 M. & Cr. 534 Harrison v. V. Unwin, 2 K & J. 141 . ■ 254 Rowse, Newton v. Eowsell V. MoiTis, L. E. 17 Eq. 20 ; 43 L. J. Ch. 97 ; 22 W. E. 67 ; 29 L. T. 446 266 Kowson, Prince v. e 2 . 125 14, 260 147 101, 127 . 200 . 41 7, 184 167 195 159 89 16 47 . 81, 82 . 217 Ch. 552 ; . . 158 , 209, 227 155, 189 Ixviii TABLE OF CASKS. PAGE Royden, Luntley v. Rudd, Sharman v. Ruddy, in the goods of, L. R. 2 P. & D. 330 73, 74 Ruinney, Lowis v. Rundell, Hume v. Rush, Barry v. Russell V. Clowes, 2 Coll. 648 180 V. Haddock, 1 Lev. 188 198 ■ Hathornthwaite v. ■ in tlic goods of, L. R. 1 P. D. 634 ; 38 L. J. P. & M. 31 . . . 35 Maltby v. V. Plaice, 18 Beav. 21 135 's Executors' case, 15 Sol. J. 790 205 Rutland v. Rutland, Cro. Eliz. 377 112 Rutherford v. Maule, 4 Hagg. Eccl. 213 ' 45 Ruxton, Ford v. Ryan v. Ryan, Phillim. 332 41 Ryder, Att.-Gen. v. iu the goods of, 2 Sw. & Tr. 127 2 Sabin v. Heape, 27 Beav. 553 134 Sadler, Bain v. V. Hobbs, 2 Bro. C. C. 117 219 Salmon, Green v. V. Hays, 4 Hagg. Eccl. 388 37 Saloway v. Strawbridge, 1 K. & J. 371 140 Saltmarsh v. BaiTett (IJTo. 2>, 31 Beav. 349 217 V. 3 De G. F. & J. 279 180 Sammell, Dodson v. Sammon, re, 3 M. & W. 381 175, 176 Samson, in the goods of, L. R. 3 P. & D. 48 10 Samuel v. Jones, 2 Ha. 24C ; 7 Jur. 845 221 Sand's (Sir Geo.) case, 3 Salk. 22 37 Sander v. Heathiield, L. R. 19 Eq. 21 ; 23 "W. R. 331 ; 44 L. J. Ch. 117 ; 31 L. T. 400 167 Sanderson, Lees v. Stewart v. . ■ V. Stoddart, 32 Beav. 155 158 Sandford, Elworthy v. Sandry v. Michell, 3 Sw. & Tr. 25 91 V. 3B. &S. 405 91 Sapte, Koster v. Sargent v. Johnson, 1 Jur. N. S. 227 240 Satterthwaite v. Powell, 1 Curt. 705 40 Saunders, in the goods of, 11 Jur. N.,S. 1027 5 Morley v. V. "Wakefield, 4 B. & Al. 595 199 Savage u Blythe, 2 Hagg. Eccl. 150 42 V. Lane, 6 Ha. 32 224 Savin, Oriental Commercial Bank v. Sawbridge v. Hill, L. R. 2 P. & D. 220 54, 57 Sawtell, in the goods of, 2 Sw. & Tr. 448 ; 31 L. J. P. M. 65 . . 50, 53 Scammell v. "Wilkinson, 2 East, 552 119 Scarborough, in the goods of, 30 L. J. P. & M. 85 55 Scholev V. "Walton, 12 M. & "W. 514 245 Schwerdtfcger, in the goods of, L. R. 1 P. Div. 424 ; 24 "W. R. 298 ; 45 L. J. P. & M. 46 ; 34 L. T. 72 . . .■ 86, 260 TABLE OF CASES. Ixix PAGE Scott V. Briant, 6 N. & M. 381 94 Dimes v. Dines v. — — V. Izon, 34 Beav. 434 203 V. Tyler, 2 Dick. 724 ; 2 Bra. C. C. 433 . . 134, 135, 136, 137, 145 Sculthorpe v. Tipper, L. R. 13 Eq. 232 208 Seagram v. Knight, L. R. 2 Ch. 633 244 Searle v. Lane, 2 Vern, 88 ; Freem. Ch. 103 .... 160, 214 V. Law, 15 Sim. 95 107 Nelson v. Searson v. Rohinson, 2 F. & F. 353 132 Sebbon, Calvert v. See, in the goods of, L. E. 4 P. Div. 86 ; 27 W. R. 665 ; 40 L. T. 658 . 53 .Seed, Wroe v. Seeley, Jauncey v. Seers v. Hind, 1 Ves. Jr. 294 107, 134 Segar v. Atkmson, 1 H. Bl. 102 199 Selby V. Bowie, 4 Giff. 300 210 Selwyn, Brown v. Seppings, Oughton v. Serjeant, PuUen i). ■ Serle v. Waterworth, 4 M. & W. 9 263 Severs v. Severs, 1 Sm. & G. 400 . . . . . . 223 Sewell, Stickney v. Shaftesbiuy (Countess of). Eyre v. Shafto V. Powell, 3 Lev. 355 160 Shallcross v. Wright, 12 Beav. 558 .... 188, 201, 214, 228 Sharlandi;. Mildon, 5Ha. 469; 10 Jur. 171 ; 15 L. J. Ch. 434. . . 268 Windeatt v. Sharman, in the goods of, 38 L. J. P. & M. 47 55 V. Rudd, 27 L. J. Ch. 844 164, 167 Sharpe v. Foy, L. E. 4 Ch. 35 254 Shaw, Adair v. De Tastet v. Rawlinson v. Shepherd, Home v. V. Nottidge, 2 J. & H. 766 179 Paradice v. Sheriff v. Axe, 4 Russ. 33 233 Sherman, Ash ton v. Sherry, Newton v. Shew, Comer v. Shewen v. Vanderhonst, 1 Russ. & M. 347 ; 2 Russ. & M. 75 . . 148, 161 Shiel, Herbert v. Shipbrook (Lord) v. Lord Hitchinbrook, 16 Ves. 477 212 Shippam, Challen v. Shipton V. Rawlins, 4 Ha. 623 219 Shirreffi). Hastings, L. R. 6 C. D. 610; 25 W. R. 842 161 Shore, Taylor v. "Walker v. Shuttleworth v. Garnet, 3 Lev. 261 ; Carth. 9 ; 1 Show. 35 ; 3 Mod. 239 ; Comb. 151 112 in the goods of, 1 Curt. 911 27 Sibonii). Kirkman, 1 M. &W. 422 185,186 Siddal, Life Association of Scotland v. Silver, Budd v. V. Stein, 1 Dr. 295 ; 9 Ha. App. 82 79 Simmons, Cooper v. V. Gatteridge, 13 Ves. 264 ... . ... 154 ]xx TABLE OF CASES. PAGE Simpson, Buokworth v, V. Chapman, 4 De G. M & G. 154 230 V. GutteriJge, 1 Madd. 609 145, 146 Hill V. ■ Paull V. ■ Eex V. Eimell v. Sims V. Doughty, 5 Yes. 243 223 Simson's Trusts, «, IJ. & H. 89 250 Sindry, Larpent v. Slieihngton v. Budd, 9 CI. & F. 219 61 V. White, 1 Hagg. Eccl. 703 33 Slcinner, Hyde v. Slaney 1). Watuey, L. R. 2 Eq. 418 172 Slaughter v. May, 1 Salk. 42 ; o. o. nom. Slater v. May, 2 Ld. Eaym. 1071 74 Munday v. Sleap V. Newman, 12 C. B. N. S. 116 189 Sleech v. Thorington, 2 Ves. Sr. 560 157 Sleeman v. Wilson, L. E. 13 Eq. 36 253 Sloman D. Bank of England, 14 Sim. 475 217 Sloper V. Oliver, L. E. 16 Eq. 481 222 Smalwood v. Bishop of Coventry, Cro. Eliz. 207 ; Savil, 94 ; Owen, 99 ; 1 Lutw. 1 ; 1 And. 241 ; 1 Leon. 205 ; 4 Leon. 15 .... 112 Smethurst, Ehodes v. V. Tomlin, 2 Sw. & Tr. 143 10 Smith, Atkins v. Cadbury v. Chambers v. ■ ■!>. Chambers, 2 Phillips, 221 •■ 220,235 109, 146 . 160 V. Colgay, Cro. Eliz. 384 V. Everett, 27 Bea. 446 V. Eyles, 2Atk. 385 .. . Hawes v. ■ Hirst V. Hollis V. in the goods of, 2 Eob. 335 2 Sw. & Tr. 508 . 34 L. J. P. & M. 15 3 Curt. 31 V. Langford, 2 Beav. 362 . V. MUles, 1 T. R. 480 . Nield V. V. O'Grady, L. E. 3 P. C. 311 V. Smith, 1 Dr. & Sm. 384 — r- V. ■ 2 y. & C. Exch. 353 V. 10 Ha. App. 71 . Sutton V. Thomlinson v. 'scase, 2Str. 892 . Smithlev v. Chomeley, Dyer, 135 a Snape v. Webb, 2 Lee, 411" Sneesby v. Thorne, 7 De G. M, & G. 399 Sneyd, Kilbee v. Soady u Turnbull, L. E. 1 Ch. 494 . Soam V. Bowden, Cas. t. Finch, 396 Sellers 1). Lawrence, Willes, 421 Somerset, in tbe goods of, L. E. 1 P. & D. 350 Somes, Docker v. Sorrell v. Cai-penter, 2 P. Wms. 483 . 95 51 65 26 231 124 . 119 189, 251 . 239 . . 240 62 125 59 146 206 188 195 36 160 TABLE OF CASES. Ixxi PAGE Southgate, Hindmarsh v. Southmead, in the goods of, 3 Curt. 28 34, 54, 60 Sowerby, in the goods of, 2 Curt. 852 39 Spackmani). Holbrook, 2 Giff. 198 162 V. Timbrell, 8 Sim. 260 123 Sparke, in the goods of, 17 Jar. 812 105 Sparks v. Crofts, Comb. 465 . ■ 65 Speerman, Billinghurst v. Spence's case, 17 Beav. 203 204 Spencer, "Webster v. Spicer v. James, 2 M. & K. 387 165 Spiller, re, 2 L. T. N. S. 71 ; 8 W. R. 333 251 Spofforth, Haldenby v. Spooner, Browne v. Haubiiry v. Spratt V. Harris, 4 Hagg. Eccl. 408 96 Springett v. Dashwood, 2 Giff. 521 : 151 Spurstow V. Prince, Cro. Car. 297 112 Sq^uire, Whitehall i;. Stace, Piety v. Stacey D. Elph, 1 M. & K. 195 15 Stackpoole u Howell, 13 Yes. 417 173 Stacpoole, in the goods of, 2 Sw. & Tr. 316 ; 30 L. J. P. & M. 191 . . 88 Stafford (Earl of) v. Buckley, 2 Yes. Sr. 171 117 Davenport v. Stahlschmidt v. Lett, 1 Sm. & Giff. 415 . . . . 161, 164, 165, 167 Staines, Quick v. Stainsby, Naylor v. Stainton, in the goods of,' L. R. 2 P. & D. 212 . . . . . . 45 v., Carron Co., 18 Beav. 146 2i9 Walsham v. Stalwood, Tharpe v. Stamford Friendly Society, e^^arte, 15 Yes. 280 159 (Lord), Pickering v. Stammers v. Elliott, L. R. 3 Ch. 195 223 Stamper v. Pickering, 9 Sim. 176 170 Stanley v. Bemes, 1 Hagg. Eccl. 222 31, 71, 87 • Isted V. - V. Stanley, 1 Atk. 457 180 Stannard, Angier v. Stanton, TForth v. Stapleton and Truelock's case, 3 Leon. 2, pi. 6 ; Moore, 11 . . . . 7 Stark, in the goods of, L. R. 1 P. & D. 76 ; 35 L. J. P. & M. 42 . . . 89 Steadman, in the goods of, 2 Hagg. Eccl. 59 87 Stedman, Read v. Steele, Gittins v. V. Cobham, L. R. 1 Ch. 325 238, 241, 242 Steer v. Steer, 13 W. R. 225 241 Stein, Silver v. Stephens v. Hotham, 1 K. & J. 571 . 185 •e Bosaz, in the goods ofJj.'R. 2 P. Div. 66 ; and see Charter v. CMrter, L. R. 7 H. L. 364. OF EXECUTOR. 3 name and description apply to an actually existing person, evidence will not be received to show that some one else was in fact intended (m). An appointment may be Appointment altogether void for uncertainty (n). nnlevtalnlj. "'^ A testator devised and bequeathed all his real and Instances of personal estate to A, and appointed him " sole exe- pnt by Court cutor." • By a paper of later date, purporting to be his last b^^ng^gnai will, he devised and bequeathed specific property to B, appointments. and made B "sole executor." It was held that A and B were jointly entitled to probate of both papers (o). But where A and B were by a will appointed executors, and by a codicil C was appointed " sole execu- trix," the appointment of A and B was held to be revoked (p). An illiterate testator having named two persons " whole and sole executrix," probate was gi-anted to both jointly (q). A married woman executed under a power an express testamentary appointment, whereof she appointed three persons executors, and afterwards by another testamentaiy paper she disposed of property to which she was entitled for her separate use, nominating one of the said three persons sole executor : probate of both papers was granted to the three (r). Where a testator appointed A and B executors, direct- ing them jointly with his widow to appoint a third executor, and A and B and the widow could come to no agreement, the appointment of the two was nevertheless good (s). (m) Feel, in the goods of, L. E. 2 E. 1 P. & D. 628 ; but see Leese, P. & D. 46. in the goods of, 2 Sw. & Tr. 442. (ti) Baylis, in the goods of, 2 Sw. (q) Oourt, in the goods of, 31 L. & Tr. 613 ; Blachwell, in the goods J. P. & M. 61. of, L. E. 2 P. Div. 72. (r) Morgan, in the goods of, 36 L. (o) Geaves v. Price, 3 Sw. & Tr. J. P. & M. 64. 71. (s) Jackson v. Paulet, 2 Bob. {p) Lowe, in the goods of, 3 Sw. & 344. Tr. 478 ; Bailey, in the goods of, L. E 2 CREATION OF THE OFFICE Instances of construction put by Court upon am- biguous sub- stitutionary appointments. A testator appointed his son sole executor, but, in the event of his going or remaining abroad for upwards of two calendar months, then he appointed B executor. The son after the death of the testator went abroad with- out having proved the will, and there remained. The Court granted probate to B, but reserved power to the son (t). A testatrix appointed A and B executors, and in case of the death of either of them empowered the survivor to appoint another, so that there should continue to be two executors. Upon the death of A, B appointed C executor to act with him. Though C did not take pro- bate during the life of B, it was held that probate might pass to him, and that he might appoint another executor to act with him (u). Where there is a substitutionary appointment of B in case of the absence of A, absence means absence and inability to act when the necessity for proving the will arises (x). A appointed B, C, D, and E executors, and, in case of the death of B, F to be executor in his place. B, C, D, and E proved. B and C died. F applied to have a double probate granted to him, and was held entitled to the grant, the casualty not being restricted to the death of B in A's lifetime (y). An appointment ran in these terms : — " I appoint A my executor, but, should he decline or consider himself incapable of acting, then I appoint B to be executor." A died in the lifetime of the testatrix. It was held that her intention was that B should be executor, if A could (t) Lane, m the goods of, 33 L. J. P. & M. 185. (m) Deichman, in the goods of, 3 Curt. 123. {x) Langford, in the goods of, L. E. 1 P. & D. 458. (!/) Johnson, in the goods of, 1 Sw. & Tr. 17 ; Foster, in the goods of, L. E.. 2 P. & D. 304. OB" EXECUTOR. ^ not or would not act, and that B as substituted executor was therefore entitled to probate (z). A testatrix appointed as executors A and, failing him, B. By a codicil she appointed C in the place of B, and by a second codicil appointed D in the room of A. D renounced. It was held that C was entitled to probate as substituted executor on the failure of D (a). C. AppointTnent of Executors by Itnplication. In order to constitute one an executor according to the Wlat necessary p .,, ., , 1 1 i to constitute tenor oi a will, it must appear on a reasonable construe- „^^ executor tion thereof that the testator intended that he should Recording to the tenor, collect his assets, pay his debts and funeral expenses, and discharge the legacies contained in such will (&) ; in short, there must be words importing a general power to receive and pay what is due to and from the estate (c). In accordance with the principle, where a testator said Cases in which by his will that none should have any dealing with his strued wills as goods except J. S., the latter was held to be executor o°™ot*con°titu- according to the tenor {d). So, too, where persons are ^ng, such an . executor. directed to pay all and take all, to receive the property and divide it, &c., though the directions be by no means explicitly given (e) ; but otherwise where the direction is for payment only out of a particular fund (/). Merely to bequeath the whole personalty to one upon a specific trust does not constitute him executor'according (z) Betts, in the goods of, 30 L. J. Eliz. 164 ; Pickering v. Towers, 2 P. & M. 167. Lee, 401 ; Fry, in the goods of, 1 (a) Colquhoun, in tJie goods of, 37 Hagg. Eccl. 80 ; Collett, in the L. J. P. & M. 1. goods of, 1 Deane, 274 ; Saunders, (b) Adamson, in the goods of, L. m the goods of , 11 Jur. N. S. 1027 ; R. 3 P. & D. 253 ; Punehard, in the Gale, in tJie goods of, 16 W. E. 942 ; goods of, L. E. 2 P. & D. 369. Baylis, in the goods of, 36 L. J. P. & (c) Jones, in the goods o/", 2 Sw. & M. 15 ; Bell, in the goods of, L. E. Tr. 155. 4 P. Div. 85. id) Brightma'^y. Keighley,! Cro. (/) Toomey, in the goods of, 3 Sw. Eliz. 43. & Tr. 562. (e) Pemherton v. Cony, 1 Cro. 6 CREATION OF THE OFFICE to the tenor {g), nor does the appointment of a man as sole trustee, the only duties assigned to him being those of trustee Qi). By an appointment of A as executrix, with a request that B and C would act for and with her, B and C were constituted executors according to the tenor {%) ; so also was A, where the appointment ran — " Should A not be living, I appoint B executor " (Jc). The words, in a letter, "I know of nothing else to trouble you with, and trust that this will not involve you in much," following upon full directions as to how the testatrix wished her property to be disposed of, have been construed as making the addressee of the letter executrix accoiding to the tenor (I). Clearly, where a married woman, having a power of appointment under a settlement, made a wiil directing that the trustees of the settlement should deal in a par- ticular way with the appointed funds, the trustees were not thereby made executors according to the tenor (m) ; but trustees of a deed may take probate of a deed as such executors {n). A universal legatee is not, as such, an executor accord- ing to the tenor, though entitled to administration with the will annexed (o). Limited execu- A person expressly appointed limited executor in a codidtbe^ will maybe appointed general executor in a codicil by appointed implication (m). general execu- tor according to the tenor.- (^j jg^es^ ,•„ tU goods of, 2 Sw. & & Tr. 56. Tr. 155. (in) Fraser, in the goods of, L. R. 2 (h) Loiory,inthe goods of, L. E. 3 P. & D, 183. P. & D. 151 ;3.-aA see, Beaton, in the (n) Knight, in the goods of, 2 goods of, 1 Jur. N. S. 832. Hagg. Ecel. 554. (i) Brown, in the goods of, L. E. 2 (o) Oliplmnt, in the goods o/; 1 Sw. P. Div. 110. & Tr. 525. (k) Naylor v. Stainsby, 2 Lee, (p) Aird,inthegoodsof, 1 Hagg. 5i. Eccl. 336. {l) Manly, in the goods of, 3 Sw. OF EXECUTOR. 7 D. Qualification of an Appointment of Executors. Absolute appointments of executors, appointments made without any reservation, and in which the full powers and attributes of the executorial office are allowed to attach themselves to the executors nominated or implied by the will, have been considered above : it must here be remarked that the testator is at liberty, if he pleases, to qualify his appointment of executors in various ways. It is very clear that a testator may (g) appoint one Executors for executor for general, and another for limited purposes, and p^ges^ oj. that he may have different executors for different pro- p^p^'^'^^. perties, e.g., his property in England, and his property in the colonies (r). He may also appoint that the executorship shall com- Executors mence from, or cease at, a future time, though at present ^ future time.' unascertained (s). Again, he may appoint executors conditionally only ; Executors on the condition being either precedent (t) or subsequent (u). If in any case the executorship is by these means left vacant, whether temporarily or otherwise, the Probate Division will grant administration cum testam,ento annexo {x). (q) Notwithstanding a contrary (s) Wms. Exors., uM sxi,pra. dictum of Lord Hardwicke in Owen ■ (t) Stapleton and Truelock's case, V. Owen, 1 Atk. 495, which cannot 3 Leon. 2, pi. 6 ; Wihnot, in the be accepted at the present day. goods of, 1 Curt. 1 ; Bay, in the (r) Base v. Bartlett, Cro. Car. 293 ; goods of, 1 No. of Cas. 653. Lynch v. Bellew, 3 Phillim. 424; (m) Alice Frances's case. Dyer, 4, "Wms. Exors., pp. 253-257, q. v. in margin, generally on this part of the suhject. (x) Post, -p. 52. WHO ARE CAPABLE OF BEING CHAPTER II. WHO ARE CAPABLE AND INCAPABLE OF BE[NG EXECUTORS OR ADMINISTRATORS. Idiots and lunatics. Mere weak- ness of mind does not in- capacitate. The king: his power of nominating a substitute. Infants. Idiots and lunatics are incapable of being executors or administratoi-s ; for tbese disabilities render them not only incapable of executing the trust reposed in them, but also, by their insanity and want of understanding, they are incapable of determining whether they will take upon them the execution thereof or not (a). However, priwjA facie all who are nominated to the ofSce of executor by a testator are entitled to a grant of probate. To exclude any one very stringent grounds must be alleged. Proof of mere weakness of mind will not be sufficient (6). It seems to be admitted that the king may be appointed executor ; but, as he is presumed to be so far engaged and taken up with the public and arduous afifairs of the king- dom as not to have leisure to attend to the private concerns of any particular person, so the law allows him to nominate such persons as he shall think proper, to take upon them the execution of the trust, against whom all persons may bring their actions (c). Infants are capable of being executors ; — nay, even the child in the womb and unborn at the testator's death ; insomuch that, when such is so appointed, if the mother bring forth two or three children at that one burthen, they {a) Bac. Abr. Exor. (A) 5. (6) Per Sir H. J. Fust, Evans v. Tyler, 2Eob.,131, 132. (c) Bac. Abr. Exar. (A) 1. EXECUTORS OR ADMINISTRATORS. . i" are all to be admitted executors {d). But there seems to be no instance of the Court having granted administration to a minor, who cannot take upon himself the liabilities which the law casts upon the administrator (e). Femes covertes are eligible (/). Yet a wife named or i='«mcsco«rtes; appointed executrix in a will may not be compelled into their husbands the execution thereof without her own or her husband's "So»- consent; so neither shall she assume or accept such executorship without her husband's consent and appro- bation (g). But in case of a, feme coverte made executrix, said Holt, C. J., the husband has a great power ; he may administer and bind her, though she refuses, and may release the debts of the testator ; but the wife cannot do anything to the prejudice of the husband without his consent (h). A husband may take a grant of administra- tion in right of his wife without her consent, though she cannot usually take it without his consent : therefore a husband, who has married a feme administratrix, may surrender or dispose of a term which she has in that right (i). If a woman sole be made executrix, and she (d) Godolph., pt. 2, c. 9, s. 1 ; 2 {g) Godolph. , pt. 2, c. 10, ss. 1, 2 ; Bl. Com. 503. But wliere the sole per Jessel, M. E., Terry v. Terry, executor is an infant, administration W. N. 1878, 153. with the wiU annexed is granted (A) WanTcford v. Wanleford, during his minority [post, p. 62), Salk. 306. or a grant may he made under the (i) Thrustout v. Coppin, 2 W. Bl. 73rd section of the Probate Act, 801 ; Bubhers v. Harhy, 3 Curt. 50 ; 1857 (see post, p. 50). Saymes v. Matthews, 1 Sw. & Tr. («) Per Sir C. Cresswell, Duchess 460 ; and see post, p. 34. See of Orleans, in the goods of, 1 Sw. & Dye, in the goods of, 2 Eob. 341, Tr. 255. The administration was from which it would appear that here refused, though, had the Court the practice as to gi-ants of adminis- gi-anted it, it would have been fol- tration to femes covertes has not lowing the grant of the country of always been uniform. The reason domicil : see Da Cunha, in the why a man-ied woman cannot as a goods of, 1 Hagg. Eccl. 237, and rule take a gi'ant without her hus- post, p. 30. But administration band's consent is that the husband may be granted to another during is usually required to enter into the the minority of the person entitled ; administration bond, which the see post, p. 62. woman is incapable of doing ; but (/) 2 Bl. Comm. 503. if it can be shown that the husband 10 WHO ARE CAPABLE OF BEING Outlaws and felons. Aliens, Insolrents and bad characters. marry before she intermeddle with the estate, and then her husband doth administer, this, says Godolphin (IS), is such an acceptance as will bind her, and she cannot afterwards refuse it. Outlaws may be executors, the goods which they have as such not being forfeited by attainder or outlawry (L). It has been always holden that such persons may sue as executors or administrators (m). A person appointed exe- cutor, and after the testator's death convicted of felony, is not thereby disentitled to maintain a suit to establish the validity of the will : his office, being in auter droit, was not forfeited by the conviction ; he is still entitled to exer- cise the rights of an executor (n). An alien may be executor or administrator (o). As to the capability of an alien enemy doubts have been enter- tained (p). Probate cannot be refused to one named executor on the ground that he is insolvent and will not give caution (g), or is of bad character (r). When a man is made executor, nobody can add qualifications to him is abroad or otherwise incompetent, a stranger may join in snob security in his stead (ToUei;, 91), and has even been allowed to do so on the bare refusal of the husband to execute the bond or assist his wife in obtaining a grant {SutherlaTid, in the goods of, 31 L. J. P. & M. 126). "When administration is granted to a married woman, it is granted to ber alone, for, if the gi'ant were to her and her husband jointly, the husband, if he were to survive, would continue sole administrator to the exclusion of the next of kin (Anon., Sty. 75 ; ^miH., SSalk. 21), inasmuch as on the death of one of the joint administrators the office survives (Adams v. Bucldand, 2 Vern. Hi ; Eyre v. Countess of Shafteshvry, 2 P. Wms. 121 ; Rud- son T. Hudson, Hob. 127). (k) Pt. 2, c. 10, s. 4. (I) "Went. 36. A fortiori, the outlawi-y of the husband of a, feme executrix does not work a forfeiture of the goods which the wife has as executrix (Bix v. Barrison, 3 Bulstr. 210). (m) Bac. Abr, Exor. (A), 3 ; Killigrew v. Silligrew, 1 Vern. 184 ; Swan T. Porter, Hard. 60. (n) Per Sir C. Cresswell, Sme- thurstY. Tomlin, 2Sw.&Tr. 143,147. (o) Garomi^s case, Cro. Car. 8. (p) See Wms. Exors., p. 233. (q) Pexv. Maiiies, 1 Ld. Eaym. 361 ; see Bills v. Mills, 1 Salt. 35. (r) Samson, in the goods of, L. E. 3 P. & D. 48. EXECUTORS OR ADMINISTRATORS. 11 other than those which the testator has imposed ; but he shall be who, and in what manner, the testator shall judge proper (s). However, the consequence of this doc- trine, said Lord Mansfield, was that the Court of Chancery was forced to assume a new jurisdiction, and take the power out of the executor's hands, and appoint a receiver of the effects (t). A corporation aggregate may be appointed executors : Corporations the Court will in such case grant letters of administration sole, with the will annexed to a syndic duly appointed by the corporation (m). A corporation sole is also eligible. A testator appointed the archbishop of Tuam for the time being one of his executors ; the archbishop proved and died ; the archiepiscopal jurisdiction having been abolished, probate was granted to the bishop of Tuam (x). A firm may be appointed executors. In such a case. Partnership probate was decreed to the members of the firm indi- vidually (y). (s) PerHolt, O.J.,Itexv.Sainos, & Tr. 516. 1 Lord Raym. 364 ; and see Ha- (x) Haynes, in the goods of, 3 thomthwaite v. Bussel, 2 Atk. 127. Curt. 75. (t) Rex V. Simpson, 1 W. Bl. (y) Fertile, in the goods of, 6 No. 458. See post, p. 238. of Cas. 657. (u) Drake, in the goods of, 1 Sw, 12 EENirisrCIATION BY EXECUTOES CHAPTER III. No renuncia- tion after acting. What acts sufficient to show an elec- tion to act. RENUNCIATION BY EXECUTORS AND BETEACTATION OF THEIR RENUNCIATION. A. Renunciation. No authority is needed for the proposition that one named executor may renounce. Such renunciations are of everyday occurrence. But it is too late to renounce, ■when a man has once elected to act as executor (a) ; he may then be cited to take probate (b), and his disobedience will be a contempt of Court (c). To do any executorial act is to elect to act as exe- cutor (d) ; or, as it has been elsewhere (e) laid down, the acts which amount to an administration, so that the party cannot afterwards refuse, are (1) anything done by the executor with relation to the effects of the testator which shows an intention in him to take upon him the executor- (a) Wiekenden v. Thomas, 2 Brownl. 58 ; Long v. Symes, 3 Hagg. Ecol. 774 ; Badenach, in the goods of, 3 Sw. & Tr. 465 ; Veiga, in the goods of, 32 L. J., P. & M., 9; D(yyU V. BlaJce, 2 Sch. & Lef. 231. (b) Rayner v. Green, 2 Curt. 248 ; Browne, p. 137. (c) Browne, ubi supra. But the Court will not attach for the dis- ohedience in the first instance {Mor- daunt V. Clarke, 38 L. J., P. & M., 45). (d) Wickenden v. Thomas, ubi supra. (e) Bao. Ahr. Exor. (E) 10 ; Rayner v. Green, uU supra. (2) is an d fortiori case [per Sir J. Nicholl, Long v. Symes, 3 Hagg. Eccl. 775). As to what acts will constitute a man executor de son tort, see post, p. 260. To the now inexorable rule that a man cannot renounce after accepting probate there was formerly the exception that he might so renounce in order to become a witness in a cause touching the validity of the will {Jackson v. Whitehead, 3 PhQ- lim. 577 ; Longy. Symes, ubi supra); but now executors are competent to give evidence thereon (1 Vict, c. 26, s. 17, Appendix, p. 294 ; see Munday v. Slaughter, 2 Curt. 72). AND RETRACTATION OF RENUNCIATION. 13 ship, and (2) whatever acts wiU make a man (not named executor in the will) liable as executor de son tort. Where there is doubt as to whether a person named executor ever acted as such, the Court may direct special inquiries to be made (/), Slight intermeddling is sufficient to fix a man as executor (g), but not acts of necessity, such as feeding the deceased's cattle, and the like, which do not bind a party Qi). To propound a will is to intermeddle {i) : to take the executor's oath is not (k). A man cannot re- nounce after releasing a debt due to the deceased (T). A, being named as one of the executors of B's will, did not prove it, but, in answer to an inquiry who were B's executors, wrote saying that he and others were. A cre- ditor's suit was instituted for the administration of B's estate, to which A, together with the executors who had proved, was made a defendant. He put in a separate answer, denying that he had acted as executor, but at the same time raising a substantial defence against the plain- tiff's claim. It was held that he had accepted the office of executor (m). An executor under the will of a testator domiciled in Portugal accepted the executorship in that country, and also obtained probate in England. Becoming afterwards, through age and infirmity, incapable of acting, a competent Portuguese tribunal permitted him to re- nounce the executorship, and appointed A as executor in his stead. Upon an application to the English Court for (/) James v. Frearson, 1 Y. & C. , Ventris, 335. There are cases where C. C, 370, where the decree is it was held that an executor having appended to the report. been sworn could not renounce ; but \g) Long v. Symes, 3 Hagg. Eccl. about that time the proceedings 774 ; Cummins v. Cummins, 3 Jo. were so imperfectly reported that & Lat. 64. they cannot he depended upon (per (h) Per Sir J. Nicholl, Long v. Sir H. Jenner Fust, Harrison v. Symes, ubi supra. Harrison, 4 No. of Cas. 456). (i) Ca/rbery v. Cody, Ir. Rep. 1 {I) Pytt v. Fendall, 1 Lee, 553. Eq. 76. [m) Vickers v. Bell, 3 N. R. {Ic) M'Donnell v. Prendergast, 3 624. Hagg. Eocl. 216 ; contra, Anon., 14 KENUNCIATION BY EXECUTORS Partial re- nunciation not allowed. Probate an acceptance of trusteeship. a grant to A of letters of administration de bonis non with the will annexed, it was held that the renunciation of the executor, though sanctioned by the law of Portugal, could not be recognised in this country, and that A there- fore was not entitled to the grant prayed (n). An executor cannot accept in part, and refuse in part (o). A, named executor in a will, acted on behalf of particular legatees, disclaiming any intention of interfering generally. He afterwards renounced formally in favour of B, who was named a trustee in the same will, who thereupon obtained administration cum testamento anTieoco. B possessed himself of the assets, and died insolvent. A was held to be liable as executor notwithstanding his renunciation, and to be answerable for the acts of B, it appearing that he had a control over the assets, and B being considered as having obtained possession thereof by his means (p). Executors, said Lord Eedesdale, must either wholly re- nounce, or, if they act to a certain extent as executors and take upon them that character, they can be discharged only by administering the effects themselves, or by putting the administration into the hands of a Court of Equity (q). They cannot discharge themselves from liability by re- nouncing and paying their receipts to the other executors who have proved (r). Again, where personal estate is bequeathed to the executors upon trusts, probate of the will is an acceptance of those trusts (s), and the rule is the same in the case of a devise to them of realty (t). An See the doctrine of Sir G. Lee {Pytt y. Fendall, 1 Lee, 557) that, where a man acts under a will which ap- points him hoth trustee and exe- cutor, the law will presume he has acted in his superior capacity, that of executor — which perhaps (on the facts of the case) means nothing else than the proposition in the text. {t) Per Lord Chancellor Manners, Ward y. Butler, 2 Moll. 633. It (m) Veiga, m (he goods of, 32 L. J., P. & M., 9. (o) Paule V. Moodie, 2 Eoll. 132 ; and see post, p. 218. {p) Doyle y. Blake, 2 Sch. & Lef. 231. (q) Ibid., 245. (r) Mead y. Tnielove, Ambl. 417 ; Rogers v. Frank, 1 Y. & J. 409. (s) Mucklow y. Fuller, Jac. 198 ; StUes y. Guy, 4 Y. & C. Ex. 571. AND RETRACTATION OF RENUNCIATION. 15 executor of an executor cannot renounce the execution of the former will, and prove the latter (it) . When it is said that a man, who, being named executor, ^'^ ^°^^ ^y , ° _ one as agent do does executorial acts, ipso facto accepts the executorship, not prevent that must be understood of acts which he does, so to by him as speak, in propria persond. He may excuse himself from ^^s'"^''"", accountability qud executor by showing that he has acted merely as agent or attorney of those who were named co- executors with him {x), even where he has not formally renounced {y). But he can only so excuse himself when if he has not he has not proved the will. An executor who has proved cannot act in any other character : he cannot renounce his executorship, and act only under power of attorney from his co-executors (s). An executor cannot by agreement bind himself to re- -Agreement to "^ ^ ^ renounee nounce probate, and the Court will not attempt to enforce invalid, such an agreement (a). Refusal by an executor to take his oath is a refusal oif^f*'^'^ •' _ _ inoicate a office (&). Refusal of office is also evidenced by not ap- refusal of pearing, when cited to take probate (c), and by filing a renunciation in the registry, but, it would seem, not by an answer in Chancery (d). was otherwise at law ; see WellesUy consider Orr v. Newton, 2 Cox, 274. V. Withers, 4 E. & B. 750 ; Bruce Such an agent ought not to be made V. Gilpin, L. R. 3 Ex. 82 ; and see a party to an action for the ad- Gibons v. Marltvward, Moo. 594. ministration of the estate {Dove t. (m) Ferry, in the goods of, 2 Curt. Everard, ubi supra). 655 ; Brooh v. Baymes, L. E. 6 Eq. {y) Stacey v. Elph, 1 M. & K. 25. 195- (x) Bayner v. Green, 2 Curt. 248 ; («) Graham r. Keble, 2 Dow, 17. per Lord Hardwicke, Harrison v. [a) Sargreaves v. Wood, 2 Sw. & Graham, cited 1 P. Wms. ed. 6, Tr. 604. 241 {y) ; Dove v. Everard, 1 R. & (*) Per Holt, C. J., RexY. Haines, M. 231 ; Lowry v. Fulton, 9 Sim. 1 Ld. Kaym. 363. 115. But see White v. Barton, 18 (c) 21 & 22 Vict. c. 95, s. 16, Ap- Beav. 192, where the defence of pendix, p. 305. agency was disallowed, apparently, (d^ Ghalon v. Webster, W. N.. however, on the ground that it had 1873, 189. Compare Yidcers v. not been properly pleaded ; and Bell, cited aTiM, p. 13. 16 llENUNCIATION BY EXECUTORS Eequisitea of a binding renun- ciation. What time allowed execu- tors for deliberation. 79th sect, of Probate Act. Renunciation need not be under seal, a parol one being sufficient (e), though it has been said that an informal declining by letter to take the office of executor is insufficient (/). It is enough that the instrument of renunciation states in substance, though not in terms, that the party has not intermeddled {g). The Court has received a renunciation executed by a party's attorney under a specific power Qi) ; but, had the power been framed in general terms, the Court might have felt a difficulty in departing from the usual practice of the registry, viz., to require renunciation to be under the band of the party entitled to the grant (i). If the executor delay exercising his option, he may be cited to accept or refuse probate. The time which the party is allowed for deliberation as to whether he will accept the trust or not, or, in other words, which must elapse before the issuing of the citation to accept or refuse, is uncertain or in the discretion of the Judge. Much, of course, depends upon the nature of the estate to be ad- ministered. Sometimes it has issued within the year, sometimes within a month or two. The only analogy that can be given is that arising from the 55 Geo. III. c. 184, s. 37, whereby a party named as executor, if he admi- nister, i.e., intermeddle, is liable to a penalty, if he omit to take probate within six months Qc). The 79th sect, of the Probate Act (i) does not apply to an executor who renounced before the Act came into operation ; and the retractation of such renunciation after (e) Broker v. Charter, Cro. Eliz. 92 ; Boyle, m the goods of, 3 Sw. & Tr. 426. (/) Per Sir J. NiohoU, Lo7ig v. Symes, 1 Hagg. Eccl. 776. {g) Gibson, in the goods of, L. E. 1 P. & D. 105. (h) Bosser, in the goods of, 3 Sw. & Tr. 490. (i) Per Sir J. P. Wilde, ibid. 492. (k) Browne, p. 138 ; and see post, p. 27. The statute will be found in Appendix, p. 286. See^osi!, p. 27. (l) 20 & 21 Vict. c. 77, Ap- pendix, p. 302. AND RETRACTATION OF RENDNCIATION. 17 the Act came into operation followed by a second re- nunciation will not bring him within the section (m). It has been decided — what one would have thought Creditor execu- " _ tor who could never be doubted — that, if a debtor make his renounces does creditor and another executors, and the creditor neither ordinary proves nor acts as executor, he may maintain an action ^^| ^ ^ °" '' against the other for his demand on the testator (n). As to a renunciant's status with reference to a grant of administration, see post, p. 35 ; and, as to the effect of renunciation upon the exercise of powers and discretions, post, p. 148. B. Retractation of Renunciation. An executor is not necessarily concluded by a renun- Within what ciation once declared. The rule has long been that he ti^^may™r^' may retract his renunciation at any time before a grant of ""etra^ted. administration has passed the seal, but not afterwards (o), from the possible inconvenience that might accrue in other quarters, if the chain of executorship once broken were thus suffered to revive (p). In any case the Court is not bound to allow a retractation (g). Doubt was expressed by Sir J. Hannen whether the 79th sect, of the Probate Act (r) forbids the retractation on good grounds of a renunciation, but his lordship decided that in any case mere change of mind was not a good ground (s). The same learned judge subsequently decided that, notwithstanding the statute, a renunciation may be (m) Witham, in the goods of, L. (p) Thornton, m the goods of, 3 B. 1 P. & D. 303. Add. 273. (n) Uawlmson v. Shaw, 3 T. E. {q) Park, in the goods of, vM 557. supra. (o) -Went. 91 ; HTBonnellY. Fren- (r) 20 & 21 Vict. c. 77, Appendix, dersrasJ, 3 Hagg. Eccl. 212 ; flizrmo™ p. 302. T. Sarrison, i No. of Cas. 465 ; (s) Gill, in the goods of, L. R. 3 Park, in the goods of, 6 Jur. N. P. & D. 113 (where the head-note S, 660. Compare ^osi, p. 35. is far too positive and exact). lo KETRACTATION OF RENUNCIATION BY EXECUTORS. retracted at any time before it is filed and recorded in the registry {t), which seems to be a limitation of the older rule noted above. Renunciation Where an executor renounces on a statement that he Talid. has not intermeddled, and it turns out that he has inter- meddled, the Court may, even on the application of renunciant, declare the renunciation invalid, and permit renunciant to take probate, cancelling the record of renun- ciation on the probate that had been granted to his co- executors (tt). (<) Movant, in the goods of, L. R. 3 Sw. & Tr. 465 (wiiere the tead- 3 P. & D. 151. note is inadeq^uate and ungram- (u) BadcTiach, in the goods of, matical). DEVOLUTION OF OFFICE OF EXEOUTOR. 19 CHAPTER IV. DEVOLUTION OF THE OFFICE OF EXEOUTOR. Executors being in point of law but one person (a), Office survives the office of course continues, on the death of one of "^^teral"*™' several executors, to the survivors or survivor, the execu- executors. tors of the deceased executor having in this case no interest (6). On the death of a sole or last surviving executor different considerations apply. An executor hath a private office of trust ; he may Executor f. r, , . -,. j.T_' lii cannot assign reiuse, but cannot assign his executorship ; but he may 1^3 office. make an executor who shall discharge the first testator's trust (c). It has been said by Lord Romilly to be perfectly clear When executor that an executor of an executor, if he has accepted the represents executorship of the latter, cannot renounce the executor- ^^^ testator. ship of the former, testator (d) ; he at once represents the former testator, without any administration de bonis non (e). It is necessary, however, that the first executor should have proved his testator's will ; for, if he die before probate, his executor is not executor to the first tes- tator (/). SeTTible, however, that, where an executor did (a) Post, p. lis. Eq. 25; Perry, in the goods of, 2 (6) Went. 215. Curt. 665 ; but see the contrary (c) Bedell r. CoMsteSZe, Vaughan, dicta cited in the argument of .Broofe 182. An administrator also hath v. JSaymes. a private office of trust ; he cannot (e) Barr v. Carter, 2 Cox, 429. assign, nor leave it to his executor (/) IsiedY. Stanley, Dyer, 372 a; (iMd.). and see Say v. Ohatfield, 1 Vem. {d) Brooke v. Eaymes, L. R. 6 200. c 2 20 DEVOLUTION OF OFFECE Executors of married woman. Probate Acts. not himself prove his testator's will, but only procured administration witb the will annexed to be granted to his attomies, still the chain of representation was not broken, and the executors of such executor represented the ori- ginal testator (gr). But the rule requires a further limita- tion ; for there is no such representation, where the will of the original testator is proved abroad, while the latter testator's will is proved in England Qi). If a married woman executrix make a will of separate estate appointing executors, such executors continue the chain of executorship to the original testator, if they take probate of the executrix's will in general form (i) ; but not so, if their probate is a limited one (Jc). Again, the chain is not continued by the appointment of an executor by a married woman in a will made under a power (J). Where any person renounces probate of the will of which he is appointed executor, or one of the executors, the rights of such person in respect of the executorship shall wholly cease, and the representation of the testator and the administration of his effects shall and may, with- out any further renunciation, go, devolve, and be com- mitted in like manner as if such person had not been appointed executor (m). And whenever an executor ap- pointed in a will survives a testator, but dies without having taken probate, and whenever an executor named in a will is cited to take probate, and does not appear to such citation, the right of such person in respect of the executorship shall wholly cease, and the representation to {g) Per Sir Herbert J. Fust, Bayard, in the goods of, 1 Rob. 769, the learned Judge's "impres- sion " being that a will proved by the attorney of an executor was the same thing as if actually proved by the executor. {h) Twyford v. Trail, 7 Sim. 92. (i) Barr v. Carter, 2 Cox, 429. {k) Bayne, in the goods of, 1 Sw. & Tr. 132, not following Birkett v. Tandercom, 3 Hagg. Eccl. 750. Compare Bichards, in the goods of, L. R. 1 P. & D. 156. (Q Hughes, in the goods of, i Sw. & Tr. 209. (m) 20 & 21 Vict. c. 77, s. 79, Appendix, p. 302. OF EXECUTOR. 21 the testator and the administratioD of his effects shall and may, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor (n). Upon the construction of these enactments it has been Cases on the decided that, where an executor to whom power has been reserved survives his acting co-executor, and does not appear to a citation, it must be taken as if his name had never appeared in the will, and the executors of the acting executor will be the representatives of the original testator (o) ; also that, on the death of an executor with- out having either renounced or taken probate, the execu- tor of the survivor of two acting executors represents the original deceased (p). But the administrator of A's executor is not the repre- Administrator «i-n » •/■ii"^ executor sentative of A. For the power of an executor is founded does not upon the special confidence and actual appointment of the testatm" deceased ; and such executor is therefore allowed to transmit that power to anothei", in whom he has equal confidence ; but with regard to the administrator of A's executor, he has clearly no privity or relation to A (g), though he be administrator with the executor's will an- nexed (r). However, where an executor of an executor is a minor, and an administrator has been appointed during his minority, such administrator represents temporarily the original testator (s). K being left executor, M as his attorney obtained administration to the testator's (») 21 & 22 Vict. c. 95, n. 16, supra. An inaccuracy in the report Appendix, p. 305. The latter of ofthiscaseispointedoutiniorijMr, these two enactments seems to ex- in the goods of, 2 Sw. & Tr. 473. tend the former to the case of a (p) Lorimer, in the goods of, ubi party cited, who will not renounce supra. or take any step {per Sir C. Cress- (q) 2 Bl. Comn). 506. well, Noddings, in the goods of, 2 {r) Bridger, in the goods of, L. E. Sw. & Tr. 17). 4 P. Div. 77. (o) Noddings, in the goods of, vM {s) Anon., Freem. K. B. 287. 22 DEVOLUTION OF OFFICE OF EXECUTOR. - effects with the will annexed for the benefit of K, who never proved : during the lifetime of K the goods of the testator vested not in him, but in M ; but after K's death M ceased to be such representative (t). (0 Suwerlcrop v. Bay, 8 A. & E. 624. GRANTS OF PROBATE. 23 CHAPTER V. GR.4NTS OF PROBATE. A. What Bocuments may be Proved. A DOCUMENT will not be admitted to probate unless it Document must . have testa- has by itself a testamentary character (a), and even then mentary not necessarily the whole of it. The Court may admit 1 ^?° '^^ •' •' Partial pro- part of an instrument to probate, and refuse it as to the tate. rest ; it is in fact the constant practice (6). A will disposing only of property in a foreign country Wai of foreign . , .,1 J , 1, X / N property only. IS not entitled to probate (c). Probate ought not to be granted of a will merely ''^JH appoint- . . , ing guardians appointing testamentary guardians (a) : and the principle only. on which this rule depends is clear ; the jurisdiction of the Court to grant probate of an instniment is founded on the fact that it affects personal property (e). A codicil, not containing any disposition of property, Merely revoca- but simply revoking all former wills, is of a testamentary '"^^ ^ chai'acter, and entitled to probate (/). So is a similar revocatory clause in a will purporting to deal only with (o) Tan Straubemee v. Mtmck, 3 goods of, 30 L. J., P. & M. 56, Sw. & Tr. 6. It has been already whioli was not cited in Ooode, in stated that an instrument may be a the goods of. will, and as such admitted to pro- (d) Lady Chester's ca., 1 Ventr. bate, without being a will in form 207 ; Gilliat v. Gilliat, 3 Phillim. {ante, p. 1). 222 ; Morton, in the goods of, 3 Sw. (6) Per Ld. Lyndhurst, Allen v. & Tr. 422. M'Pherson, 1 H. L. C. 209. See («) Per Sir J. P. "Wilde, Morton, post, p. 98. in the goods of, 3 Sw. & Tr. 423. (c) Goode, in the goods of, L. R. 1 Compare post, p. 30. P. & D. 449. Compare ^osi!, pp. 30, (/) Brenchley y. Still, 2 Rob. 95, 96. But see Winter, m the 162. 24 GRANTS OF PROBATE. Wills under power. Contents of trust property {g). A codicil, conditioned to take effect only upon an event whicli had not happened, was held entitled to probate, on the ground that it was a republi- cation of the will Qi). Where the whole of a will except the appointment of executor has been revoked, yet the will must be proved, though the result may be that the executor is only a trustee for the next of kin (i). A will disposing of personal estate in this country in pursuance of a power of appointment, and executed in compliance with the requisites of the power, is entitled to probate, though not executed according to the testa- mentary law of the domicil of the party making it (k). A testatrix directed her executors to deliver certain tolrT-wUls!"^^ sealed parcels unopened to certain persons. The Court decreed the parcels to be opened in the presence of the Registrar, and a schedule to be made of their contents, and proved as a codicil (J,). Sir George Lee, who decided the case, was of opinion the executor could not safely deliver the parcels unopened ; for, if he should be called to an inventory, he could nob give in one on oath without knowing what was contained in them ; and, if he assented to them as legacies, and there should not be assets suffi- cient to pay the debts, he would be guilty of a devastavit. Ought a will, which, though it contains an appointment of executors, is limited to the disposition of real estate, to be admitted to probate ? The cases are at variance. The question has been judicially determined in the negative (m) Wills of real estate only. (g) Lancaster, in the goods of, 1 Sw. & Tr. 464. In this case the executor was held entitled to a general grant. (h) Da, Silva, m tlie goods of, 30 L. J., P. & M., 171. (i) Beard v. Beard, 3 Atk. 72 ; and see Thornton v. Cwrling, 8 Sim. 310. {k) Tatnall v. Hanlcey, 2 Moo. P. C. C. 342. (1) Pellmm v. Newton, 2 Lee, 46. (m) Anon., 3 Salk. 22 ; Drum- mond, m the goods of, 2 Sw. & Tr. 8. Indeed, in the opinion of Buller, J., the Court had no jurisdiction to grant probate in such a case (ffatergham v. Vincent, 2 Ves. jr. 230). In Zeese, in the goods of, 2 Sw. & Tr. 442, the utterances of the GRANTS OF PROBATE. 25 (notwithstanding that the realty was given to the executors upon trust for conversion {n)), and also in the affirma- tive (o). At all events, where a married woman, acting under a power, appoints realty only by will, and then goes on to nominate executors, and does not republish her will after her husband's death, such executors take nothing jure reprcBsentationis ; the testatrix died intestate as to personal estate {p). Where a testator merely gave several specific legacies. Probate refused •11-11 •cii *° executor and then appointed his daughter executrix tor all property "for property not named in his will, the Court refused to grant probate "jn"?"™^' ^" to an executor who, it considered, was precluded from dealing with the property which passed under the will (g). Where, after probate, a testamentary instrument is Testamentary found, though it merely confirm the will, it ought never- found after theless to be proved (r). f/'^^'^ "f^^^' ^ I ' though of no importance, to be proved. B. The Jurisdiction to Grant Probate [and Administration]. At the date of the Judicature Act, 1873 (which, how- Judicature ever, as is well known, did not come into operation until " ' 1875), the jurisdiction to grant probate and letters of administration was vested solely in the Court of Probate. But by that Act (a) the jurisdiction was transferred to the High Court of Justice thereby cheated, and (t) all causes and matters which but for the Act would have been within the exclusive cognizance of the Court of Probate were learned judge seem scarcely con- Brett, Cro. Car. 395). sistent. (p) O'Bwyer v. Geare, 1 Sw. & (n) Barden, in the goods of, L. E. Tr. 465. 1 P. & D. 325. (?) Wakeham, in the goods of, (o) Jordan, in the goods of, L. E. L. E. 2 P. & D. 396. 1 P. & D. 555. An old case sup- (r) Weddall v. Nixon, 17 Beav. plied a via media : a Tvill of lands 160. only, it was said, may he proved, (s) 36 & 37 Vict. c. 66, b. 16. but not by compulsion (Netter v. {t) S. 34. 26 GRANTS OF PEOBATE. Probate assigned to the Probate Division of the High Court. That Division the ..... right Division ; then is the right division to resort to in matters of this any'judge can kind. But its jurisdiction, though practically exclusive, ministration, said Jessel, M.R, that all the Judges of the High Court have the same jurisdiction, and it is equally clear that any Judge may, if he chooses, when an action has been brought in the wrong division, retain the action and exercise the jurisdiction. It is discretionary in the Judge whether he will or will not take upon himself the exercise of the jurisdiction in any matter which by the Act of 1875 (qu. 1873) is assignable {qu. assigned) to another Court. But it would not be a sound exercise of discretion on the part of a Judge of another division, if he were to grant probate [or administration], when there is a division especially fitted for dealing with such business (u). Much to the same effect is the remark of James, L.J., that there is a particular branch of the Court that is appointed for the purpose of granting administrations and probate of wills, and that a person cannot at his will and pleasure, or his caprice, transfer the jurisdiction from that branch of the Court to some other branch on the allegation of con- venience (x). C. The Time for, and Modes of, Probate. Only eirecutor In the first place, no one can prove a will but who is prove w , jjg^jQgjj |-Qj. demonstrated (i/)] executor therein (z). A (u) Pinnei/Y. Sunt, L. R. 6 C. D. («/) As to executors according to 1 01. See further, as to the iden- the tenor, see ante, p. 5. tity of the powers of the different (s) WanJeford v. Wankford, 1 divisions, Tha/rp, m the goods of. Salt. 309. The Court ■wOl not, L. K. 3 P. Div. 76. even on renunciation and consent, {x) Dowdeswell t. Bowdeswell, grant probate to the executors of L. R. 9 C. D. 301. Brett, L. J., an executor, who had indeed proved expresslydeclinedtogive an opinion his testator's will, hut was not the on the point whether a Vice-Chan- surviving executor {Smith, in the cellor could grant letters of ad- goods of, S Cart. 31). The universal ministration {ibid. 303). legatee of a testamentary paper is can GRANTS OF PROBATE. 27 person who took probate of a will, which she knew not to be the last will, was, on proof of the later will, con- demned in costs, as having been guilty of gross mis- behaviour (a). Where the executor was by mistake described in the will by a wrong name, probate was, upon consent of the parties interested, granted to him in his proper name (6). The Court may cite before it all persons named [or Com-t may cite demonstrated] executors, to the intent that they may parties.^ either prove or refuse to prove the will (c) ; and the Court can punish disobedience to the citation (d). The time when the will is to be proved is somewhat when the will uncertain, and left to the discretion of the Judge (e), but proved. ^ it is to some extent indicated, or at least suggested, by the enactment that any person taking possession of, or administering, any part of the personal estate of a person deceased, without obtaining probate or administration within six calendar months after his or her decease, or within two calendar months after the termination of any dispute respecting the will or right to letters of adminis- tration, if there be any such, which shall not be ended within four calendar months from the death, shall be punishable by fine and increase of duty (/). On the other hand, no probate or letters of administration with the will annexed shall issue until after the lapse of seven days, and no letters of administration shall issue until after the lapse entitled to administration cum tes- the late Court of Probate by the tamento annexo, but not to probate 23rd section of the Court of Pro- {Oliplumt,. in the goods of, 1 Sw. bate Act, 1857, and has since then & Tr. 525). been transferred thence to the High (a) Martin v. Robinson, 2 Lee, Court of Justice (36 & 37 Vict. c. 535. 66, s. 16). (J) Shuttleworth, in the goods of, (d) 20 & 21 "Vict. c. 77, s. 25; 1 Curt. 911 ; but see Collins, in tJie Appendix, p. 299. goods of, 7 N"o. of Cas. 278. (c) Godolph., pt. 1, c. 20, s. 3. (c) See 21 H. 8, c. 5, s. 8. The (/) 55 G. 3, c. 184, s. 37, Ap- power of citation was transferred to pendix, p. 286. See ante, p. 16. 28 GRANTS OP PllOBATE. of fourteen days, from the death of the deceased, unless under the direction of the Judge, or by order of two of the Eegistrars (g). In every case where probate or adminis- tration is for the first time applied for after the lapse of three years from the death of the deceased, the reason of the delay is to be certified to the Registrars : should the certificate be unsatisfactory, the Registrars are to require such proof of the alleged cause of delay as they may see fit (h). Probate in Iq probate of wills there is one form, which is slight common and , „ , . solemn form, and summary, for ordinary and undisputed cases, and another more formal, by solemn decree of the Court (i). A testament may be proved either in common form, as when the executor, presenting the testament before the Judge, without citing the interested, doth depose the same to be the true, whole, and last will and testament of the deceased, and whereupon the Judge doth annex his probate and seal thereunto; or in form of law [more commonly called in solemn form, or per testes], as when the widow or next of kin to the deceased are cited to be present, in whose presence the will is exhibited before the Judge, whereupon, witnesses being produced, received, sworn, examined, and their depositions published, the Judge, in case of sufficient proof, doth pronounce for the validity of the testament (k). A will being proved in form of law, the executor is not compellable to prove it any more ; but he that proves but in common form may be compelled to prove the same again in form of law (Q. Next of kin are not barred by mere lapse of time, by {g) P. K. (Non — C. ), Rules 43, An executor is not, as suoL, incom- 44. petent to give evidence concerning (A) Ibid. Rule 45. the execution or validity of the will (i) Per Sir W. Scott, Duke of (1 Vict. c. 26, s. 17, Appendix, p. Portland Y. Bingham, IB-ngg. Cons. 294; see Munday v. Slaughter, 2 158. Curt. 72). (k) Godolph., pt. 1, c. 20, s. i. (Q Godolph., pt. 1, c. 20, s. 4. GRANTS OF PROBATE. 29 acquiescence, or by the receipt of legacies, from requiring executors to prove a will in common form (m). There is no limitation as to time in calling in question a will. Sir J. Dodson said he knew of no way in which executors could protect themselves from the inconvenience of having to prove in solemn form after a great length of time except by examining the attesting witnesses before taking probate (n). But, where a will had been declared well proved in the Court of Chancery, after an order for an issue devisavit vel non had been discharged on the petition of the heiress-at-law (also next of kin) and her husband, and an annuity bequeathed to her had been regularly received during fourteen years, the Court refused, on the ground that it would be undoing all that had been done in the Court of Chanceiy, to call on the executors, at the prayer of the heiress-at-law and her husband, to prove the will in solemn form (o). The Court may grant a limited probate, where the Limited pro- testator has limited the executor (p). ^^' (m) Merryweather v. Turner, 3 in the costs of the defendaats, and Curt. 802. allowed him only such costs as he (») Topping, in the goods of, would have incurred in proving the 2 Eob. 620. Executors may, if original in solemn form (Burlls v. they please, themselves prove per Burlls, L. E. 1 P. & D. 472). testes in the first instance {e.g. Ken- (o) Merryweather v. Turner, vM naway v. Kennaway, L. R. 1 P. supra. Div. 148), and in a proper case (p) Per Sir G. Lee, Sutton v. they will have their costs out of the Smith, 1 Lee, 280 ; see Beer, in the estate ; but, where an executor was goods of, 2 Eob. 349, and Dawes v. proved guilty of undue influence. The Queen's Proctor, iiid., ilS, In he was condemned in costs {Nash the case of the will of a married V. Yelloly, 3 Sw. & Tr. 59). Where woman, the probate has hitherto the substance of a will had been been limited to such property as propounded, and in most particu- she had power to disspose of {De lars proved, by an executor through Pradel, in the goods of, L. R. 1 P. & whose negligence the original had D. 454) ; but see now Tharp, in the been lost, the Court condemned him goods of, L. R. 3 P. Div. 76. 30 GENERAL PRINCIPLES RELATING TO CHAPTEE VI. GENERAL PRINCIPLES RELATING TO THE GRANT OF LETTERS OF ADMINISTRATION. Distinction GRANTS of administration are either (1) general or un- between limited, Or (2) limited or special. In the one kind the general and ' \ / r limited grants, administrator has committed to him the whole estate of the deceased, and the period of his authority is equivalent to that of an executor, i.e., it lasts until either he dies or has previously wound up the estate ; in the other kind, the estate is only partially committed to him, or else his authority, though extending over the whole estate, is limited in duration or scope. The several varieties of administration will be treated of in order, but it will be convenient to prefix an account of some general principles which guide the Court in making grants. Deceased must The foundation of the Court's jurisdiction being per- perty in this sonal property of a deceased to be distributed in this country. country, administration will not be granted in respect merely of property abroad (a). It is a condition precedent to a grant, that it should appear that the deceased left personal property in this country (6). In case of In the case of foreigners, the Court often follows foreign Court"usmlly l^w, and usually adopts the grant of a foreign Court of (a) Tucker, in tlie goods of, 3 Sw. p. 23, and post, p. 96. & Tr. 585 ; Evaris v. Bun-cll, 28 (b) Fittock, in the goods of, 32 L. L. J., P. & M., 82. Compare ante, J., P. & M., 157. GRANTS OF ADMINISTRATION. 31 competent jurisdiction (c). But, although (as appears adopts foreigu from the last note) the English Court will in a proper „ .' , ' " r r loreign courts case generally adopt a Scotch grant, the Courts in Scot- cannot grant . . administration land nave no power to appomt persons to administer of property in personal property in England, that power being exclu- °^^" ' sively vested in the English Court, and of this the Scotch Courts are bound to take notice (d), Gceteris paribus, the Court prefers a sole to a joint Joint adminis- administration (e). However, it will by consent grant a discouraged, joint administration, where special circumstances render it convenient (/). If the Court objects to grant a joint administration on request, a fortiori it never forces one (g). Applications for such an administration have often been refused, according to the general rule Qi), On the other hand, the Court refused, as contrary to the practice, to make a subsequent grant to one alone of co-administrators, even though the remaining two were one in foreign parts unknown and the other a bankrupt, saying that the Court always discouraged a joint administration, but that when persons chose (c) E.g., Johfison, in the goods of, EnoMn v. Wylie, 10 H. L. C. 19. 4 Hagg. Eccl. 182 (Scotland) ; (e) Earl of Wwrwiclt v. Greville, 1 Henderson, in the goods of, 2 Rob. Phillim. 126. Although the rule is 144 (ditto); Stewart, in the goods well established, the ground upon of, 1 Curt. 904 (ditto); Viesca y. which it is generally rested, viz., If Aramburu, 2 Cui-t. 277 (Spain) ; the inconvenience that must ensue Da Ounha, in the goods of, 1 Hagg. through the necessity of adminis- Eocl. 237 (Portugal); Crispin v. trators always acting jointly (lFa»" Doglioni, 3 Sw. & Tr. 96 (ditto); vncTcY. Greville; Stanleys. Bemes, Beggia, in the goods of, 1 Add. 340 1 Hagg. Eccl. 222), is based upon (Morocco) ; Dormoy, in the goods of, a misconception ; sae post, p. 146. 3 Hagg. Eccl. 767 (France) ; Fede- (/ ) Grundy, in the goods of, L. rid, in the goods of, 1 Eccl. & Adm. R. 1 P. & D. 459. R. 109 (Austria) ; Hill, in the goods (g) Bell v. Timiswood, 2 PhiUim. of, L. R. 2 P. & D. 89 (United 22 ; Coe v. Hume, i Hagg. Eccl. States). See Morgan, in the goods 398 ; Warwick v. Greville, ubi of, 2 Rob. 415 ; Veiga, in the goods of, supra. 3Sw. &Tr. 13. Compare ^os*, p. 95. (h) E.g., Leggatt v. Leggatt, 1 [d) Freston v. Viscount Melville, Lee, 348 ; Dampier v. Golson, 2 8 CI. & F. 1 ; per Lord Cranworth, Phillim. 54. 32 GENERAL PRINCIPLES RELATING TO Several ad- ministrations of several parts of same estate. Grants to guardians of minors. Grants to gran- tees abroad. Grants to attomies. to take on themselves that office, they must put up with the inconvenience that might ensue, — they could not act separately (i). On the other hand, several administrations may be granted of several parts of the intestate's goods (k). Grants of administration may be made to guardians of minors and infants for their use and benefit, and elections by minors of their next-of-kin or next friend, as the case may be, will be required (Z). In the case of infants {i.e., under the age of seven years) not having a testamentary guardian or a guardian appointed by the Court of Chancery, a guardian must be assigned (m). Where there are both minors and infants, the guardian elected by the minors may act for the infants without being specially assigned, provided that the object in view is to take a grant (n). The testamentary guardian of minors has a right to administration for their use and benefit in pre- ference to the guardian elected by them (o). There is no objection to administration being granted to one who is abroad (p). In that case it may be granted to his attorney acting under a power of attorney (q) ; and such grants have often been made, being to A " for the use and benefit of " B (r). This administra- (t) NayUr, in the goods of, 2 Eob. 410. But such a grant may be made to one of several co- executors (per Sir H. J. Fust, ibid.) ; and see n. (e), supra. Com- pare Jacomh v. Harwood, 2 Ves. sr. 267, 268. (h) KoU. Abr. 908 ; Fawtry v. Fawtry, 1 Salk. 36. But ad- ministration of a, debt cannot be thus divided, because it is an entire thing {Fawtry v. Fawtry). See post, p. 36. (Z) P. K. (Non-C), Rule 33. (m) Ibid., Rule 34. (») Ibid., Rule 35. (o) Morris, in the goods of, 2 Sw. & Tr. 360. (jo) O'Byme, in the goods of, 1 Hagg. Eccl. 315 ; Leeson, in the goods of, 1 Sw. & Tr. 463. (?) P. E. (Non-C.) 32. p. 89, as to sureties. (r) A party to whom letters of ad- ministration have been granted as the attorney of the person entitled to the grant, and for the use and benefit of such person, is to aU intents and purposes administrator, and is liable to be sued in respect of the estate in GRANTS OP ADMINISTRATION. 33 tion has been granted to a wife under a general power from her husband, where the power was ample (s), and where the husband, being at sea, was unable to give a special power, and the estate was perishable (t). Again, administration of the goods of a public functionary of the Emperor of Morocco has been decreed to a party specifically empowered to take it on behalf of the Emperor, on proof of the Emperor's title according to Mohammedan law to the deceased's effects, no question of title being raised by the Crown or otherwise (u). But, where the perspn entitled to the grant is resident in this country, and able to take it himself, the Court will not decree administration to his attorney (w). Where an application for a grant is long delayed, the Delay in Court will require full information as to the cause of the gran^musrhe delay (x). Indeed, persons entitled to administration may explained, altogether lose their rights by laches : where no applica- tion was made for twenty years and upwards, it was held that this lapse of years was tantamount to a renunciation ; time must operate as a bar, or the business of the world could not proceed (y). It is a general rule that, where a party has a right to Parties administration, he must be cited or consent before the right^to grant Court will grant it to another (z) ; and the Court has ™"^* ^'^^ ''« ° , . . cited, or con- accordingly refused to dispense with service on the persons sent ; tte same way as if he had obtained wall v. The Queen's Proctor, 2 Curt. letters of administration in his own 241. right {Chambers v. Bicknell, 2 Ha. {w) Burch, in the goods of, 2 Sw. 537). The Solicitor to the Treasury, & Tr. 139. when he takes a grant, stands in no (x) Miller \. Washington, 3 Hagg. better position ; see i)o«<, p. 45. Eccl. 277. See P. E. (Non-C), is) Elderton, in the goods of, 4 Rules 43 — 45, cited ante, p. 28. Hagg. Eccl. 210. (y) Skeffington.y. White, 1 Hagg. (<) Lucas Y. Lucas, 2 Lee, 576. Eccl. 703. Compare ^osi, p. 99. (m) Beggia, in the goods of, 1 Add. («) Barker, in the goods of, 1 Curt. 340. For a similar case, where the 592 ; see Gurrey, in the goods of, 5 Crown opposed the grant, see ^spin- No. of Cas. 54. 34 GENERAL PRINCIPLES RELATING TO tut the mile may be re- laxed. No grantee)' saltum. Intermeddler cannot be com- pelled to take grant. One entitled to a grant may renounce Ms right, first entitled, though they were residing abroad {a), even in a town under blockade, the property not being perish- able (b) ; and, where administration to a person long dead was prayed by a creditor, and there had been no personal service on the next of kin (who had no known agent in this country), the Court required full information as to the debt, and that notice should be given to the next of kin, resident in the West Indies (c). The Court, it has been said, should be especially cautious in this respect in dealing with foreign property (c7,). The rule, however, is not altogether inelastic. It has been relaxed where the persons to be served were thirty in number, and resident in various places, some in America (e), or were presumably dead, or abroad and not likely to return (/). The Court will not make a grant fer saltum (g). A person entitled to administration cannot be compelled to take it, because he has intermeddled ; from which it follows that, in making a grant to some one else, the Court can dispense with the usual declaration, contained in the renunciation of the person first entitled, that he has not intermeddled Qi). One who is entitled to administration may renounce the right, subject to the exception that a married woman cannot, as a rule, deprive her husband of his title to administer in her right (i) ; but she may renounce without (a) Goddard v. Goddard, 3 Phil- lim. 637. (J) Cooke, in the goods of, 1 Sw. & Tr. 267 ; White, in the goods of, 2 Sw. & Tr. 457. (c) Miller v. Washington, 3 Hagg. Eccl. 277. (d) Kooystra v. Buyskes, 3 Phil- lim. 533. (c) Southmead, in the goods of, 3 Curt. 28. (/) Widger, in the goods of, ibid. 55 ; (as to preaumption of death) Calvin t. Fromirator-Gencral, 1 Hagg. Eccl. 92. See further, post, p. 50. {g) A lien, in the goods of, 3 Sw. & Tr. 559 ; and see post, p. 39. (h) Fell, in the, goods of, 2 Sw. & Tr. 126. But the intermeddler may be liable as an executor de son tort ; see post, p. 259. {i) Eaymes v. Matthews, 1 Sw. & Tr. 460 ; da Rosa v. de Pinna, 2 Lee, 390. See ante, p. 9. GRANTS OF ADMINISTRATION. 35 her husband joining, where she is living separate from him, and, under a deed of separation, she is entitled to the deceased's effects to her separate use (fc). A renunciation may be retracted at any time before and, generally, ■^ /-y retract his administration has passed the seal ; but whether the Court renunciation, is bound to allow it to be retracted depends upon the circumstances of the case (T). If a party be entitled to a grant in a superior, the Court One entitled in ■^ "^ ... * superior, will not make one to him in an inferior, character (m). cannot take a Indeed, a rule has been promulgated that no person, inferior who renounces probate of a will or letters of admini- character ; nor, ^ generally, ii he stration in one character, is to be allowed to take a renounce in one character, representation to the deceased m another character [n), take a grant in though this rule is only for the guidance of the Registry, ™° ^^' and is capable of modification by the Court (o). Its meaning (so far as it relates to executors) is that, where a man under a will occupies in reference to the testator two different characters, he shall not select either one he pleases as the basis of his grant, but must take administra- tion on the largest ground (p). Notwithstanding the rule, the Court allowed one who had been appointed executor, and, had renounced that office, to take administration with the will annexed as attorney of the other executors (q) . The rule does not apply to a husband who signs a renunciation by his wife, merely to signify his assent to her act (r). Where an executor and trustee of the residue had re- nounced probate or administration, and administration had been granted to another, who had since died, the (k) Hardinge, in (he goods of, 2 & Tr. 307. Curt; 640. {p) Per Sir J. P. "Wilde, SusscU; (?) West T. TFilby, 3 Philllm. m the goods of, L. R. 1 P. & D. 375. Compare artte, p. 17. 635. (m) Bullock, in the goods of, 1 {q) Ibid. Rob. 275 ; and &&epost, p. 51. (r) Biggs, in the goods of, 37 L. J., (ra) P. R. (Non-C), Rule 50. P. & M., 79. (o) Loftus, in the goods of, 3 Sw. D 2 36 GENEEAL PRINCIPLES. Court refused to allow the renunciant to retract his renun- ciation qVAiod trustee, for the purpose of taking administra- tion with the will annexed (s) ; but, in a like case, where the renuntiant was also beneficially entitled in remainder to the residue, he was allowed to take a grant de bonis non as residuary legatee ; be never renounced in that character ; in the opinion of the Court, it did not actually exist, when the renunciation was made (t). Limited grants Limited administrations are not to be granted, unless asarale ?*any ^^^''y person entitled to the general gi-ant has consented or one entitled renounced, or has been cited and failed to appear, except take general Under the direction of the Judge (u). c\ i-ii J -^^ person entitled to a general grant of administration (JUG cntxiflGd. to general, may will be permitted to take a limited grant, except under take limited ' the direction of the Judge (x). Limited grants to persons grant. entitled to general grants are quite exceptional, and should not be made unless some very strong reason be given ; it is very inconvenient having divers representatives for different parts of the property (y). However, the Court (as distinguished from the Kegistrars) may make such grant, if it think fit (z). (s) Thornton, in the goods of, 3 {y) Per Sir C. CressweU, Watts, in Add. 273 ; Richardson, in the goods the goods of, 1 Sw. & Tr. 539, 540 ; of, 1 Sw. & Tr. 515 ; Morrison, in Somerset, in the goods of, L. E. 1 P. the goods of, 2 Sw. & Tr. 129. & D. 350. (t) Morrison, in the goods of, ubi (s) Patleson v. Hunter, 30 L. J., supra. P. & M., 272 ; see Biou, in the {u) P. E. (Non-C), Eule 29. goods of, 3 Curt. 739. (x) Ibid. Eule 30. SIMPLE ADMINISTEATION. 37 CHAPTEE VII. GENERAL GRANTS OF ADMINISTRATION — SIMPLE ADMINISTRATION. A. The paramount Right of a Widower. As a general rule, on the death of a wife her husband Husband has a right to administer her estate, exclusive of all other minister to'' " persons, there being no power or election to grant ad mi- ■"^®' nistration to anyone else (a). His right is paramount to the Statutes of Administration presently noticed (b). How- so far as he is ever, the wife's powers of testamentary disposition exclude ^y j^er testa- pro tanto the husband's right (o). Also the Court wiU ""e^t^ry ■'■ o \ J powers, pass him by in granting administration to a woman whose except in marriage has been dissolved by reason of her husband's adultery and desertion (d). Again, administration of the wife's effects has been refused to the husband on the ground that the marriage was in fact void, one of the parties having been non compos on entering into it (e). (a) Humphrey v. Bullen, 1 Atk. of part only of tlie property over 459 ; Sir Geo. Sand's ca,, 3 Salk. wMch slie has such power, and 22. For the various theories as to administration of that part is com- the foundation of the husband's mitted to some one other than the rights, seeWms. Exors., p. 416. The husband, the husband is entitled to right, however it arose, received what is called a cceterarwm grant legislative recognition by 29 Car. {Boxley v. Stuhington, 1 Lee, 537 ; 2, 0. 3, s. 25 (Appendix, p. 278). per Sir J. Nicholl, Salmon v. Hays, (jb) Post, p. 40. 4 Hagg. Eocl. 388 ; Brenchley v. (c) Bex V. Bettesworth, 2 Str. Lynn, 2 Eob. 441). 891, 1111, 1113; and see p. (d) Hay, in the goods of, 35 L.J. , 63. "Where a married woman, P. & M. , 3. having a disposing power, disposes (e) Browning v. Beane, 2 Phillim. 38 SIMPLE ADMINISTRATION. Civil disabilities, such as a prior marriage, want of age, idiotcy, and the like, make the contract (of marriage) void ab initio. The canonical disabilities, such as [consan- guinity, affinity (/), and] certain corporal infirmities, only make the marriage voidable, and not ipso facto void, unless sentence of nullity be obtained ; and such mar- riages are esteemed valid unto all civil purposes, unless such sentence of nullity is actually declared during the lifetime of the parties. Therefore, in such a case, the parties having been married, and that marriage, though voidable, not having been declared void in the lifetime of the parties, the husband is, on the death of the wife, entitled to administration (g). Where a wife has obtained a protection order, the husband is not entitled to adminis- tration of such property as she has acquired after the deser- tion (h), and it is not necessary that, before administration is granted to some other person, the husband should be cited (i). In such a case, though the husband be living, the grant may go to one of the wife's next of kin (j), or to a guardian appointed for the purpose by the infant children (k). Qu., where he Sir C. Cresswell thought it a doubtful point, whether a cmsideration busband, who by a deed of separation had covenanted to abandoned all j-ggigm all claim which he then had or at the death of his claim to her o property. -vyife might have to any of her property, was thereby ex- cluded from taking any interest in it as her representative 69 ; but see Wilkinson v. Gordon, L. J. , P. & M. , 55. SembU, such 2 Add. 152. citation would be unnecessary eyen (/) But now by 5 & 6 Will. 4, where the order had been made by a c. Si, a. 2, marriages within the police magistrate or justices, and prohibited degrees are absolutely had not been registered in pur- null and void. suance of the 21st sect, of 20 & 21 ig) Elliott V. Ourr, 2 Phillim. Vict. c. 85 (Faraday, in the goods 19, 22. of, 2 Sw. & Tr. 369). {h) Worman, in the goods of, 1 (j) Worman, in the goods of, ubi Sw. & Tr. 613. supra. (i) Brighton, in the goods of, 34 (k) Weir, in the goods of, 2 Sw. & SIMPLE ADMINISTRATION. 39 and refused to grant administration to the next of kin of the wife until the husband had been cited (I). It was laid down in Fielder v. Hanger, as the practice The rule in thenceforth to prevail, that where a husband, being en- Hanger. titled to take out administration to his deceased wife, dies without having taken it out, or after only a partial administration, a grant of simple administration or of administration de bonis non (as the case may be) will, unless special cause to the contrary be shown, be made to the representatives of the husband (though the practice was formerly otherwise), on the principle that the grant ought to follow the interest (m) ; until such representa- tives have been cited, or have renounced, the grant will not go to any one else {n). But the direction given in Fielder v. Hanger was founded on the assumption that the beneficial interest vested in those representatives : therefore where, the property of the wife being in strict settlement, she left nothing to which her husband could be entitled as her representative, the Court, acting in strict conformity with the principle of uniting the admi- nistration with the beneficial interest, decreed administra- tion to the wife's next of kin (o). Where the husband has survived the wife, and died Husband's next . , , . . . , , . -.of kin must intestate without administering to her estate, his next of administer to kin must constitute themselves his legal personal repre- ™ "'^^ Tr. 451; Stephenson, in the goods of, re-sealed in London. Held, that 36 L. J., P. & M., 20. the executor under the last-men- {l) Ld. Oranmore and Browne, in' tioned wiU did not represent the the goods cf, 30 L. J., P. & M., 182. husband in England, so as to be See Walker v. Carless, cited post, entitled to administration of the p. il. goods of the deceased {Gaynor, in (m) 3 Hagg. Eccl. 769. Deceased the goods of, L. E. 1 P. & D. 723). died intestate, leaving her husband (n) Sowerhy, in the goods of, 2 surviving her, who did not take out Curt. 852. administration to her estate. The (o) PovMney, in the goods of, 4 husband's will was proved in Ire- Hagg. 290 ; Prohart, in the goods of, land only. The will of his sole 36 L. J., P. & M., 71. executor was proved in Ireland, but 40 SIMPLE ADMINISTRATION. administering sentatives before they have any claim to administer to the to his pre- . •' *' deceased wife, wife's estate {p). As to husband Where husband and wife are drowned by the same perishing bv accident, the presumption is that they died at the same same accident, time, and, in order to entitle the next of kin of the husband to the wife's property, it must be shown that he survived his wife. Where no such evidence is forth- coming, administration of the personal estates of husband and wife will be granted to their respective next of kin (g). B. The Right of a Widow as against Next of Kin. Provisions of By a statute of Edw. III., on the death of a man in- Administra- ° testate his next and most lawful friends shall be deputed *^''°- to administer his goods (r) ; and this enactment is ex- plained by a later one of Hen. VIII., which declares that on a man dying intestate, or the executors named in his will refusing to prove, administration shall be granted to the widow, or next of kin, or both, at the discretion of [the Court], and that, where divers persons claim as next of kin in equal degree, the [Court] may accept any one or more of them (s). Widow pre- The practice is to grant administration to the widow, of kin; unless some objection exists against her (i). However, but the rule by the grant to her is discretionary, and the Court will, on inflexible. sufficient causG shown, exercise its discretionary power, and grant administration to the next of kin in preference to the widow (w). Thus the next of kin have been pre- (p) Crause, m the goods of, 1 Sw. («) 21 H. 8, u. 5, s. 3, Appendix, & Tr. 146. p. 274. Tliese two statutes are {q) Satterthwaite v. Powell, 1 commonly known as the Statutes Curt. 705 ; Wheeler, in the goods of, of Administration. Bee post, p. 48. 31 L. J., P. & M., 40. On the pre- (0 Stretch v. Pynn, 1 Lee, 30. sumption of law, see Wing v. An- (m) Anon., 1 Str. 562 ; Williams, grave, 8 H. L. C. 183. m the goods of, 3 Hagg. Eccl. 217; (r) 81 Edw. 3, st. 1, c. 11, Ap- Anderson, in the goods of, 3 Sw. & pendix, p. 274. Tr. 489. SIMPLE ADMINISTRATION. 41 ferred, where the widow had lived separate from her husband (x), had misconducted herself {y), had by her marriage settlement barred herself of all interest in her husband's property {z), or was of unsound mind {a). Again, administration of the effects of a domiciled Scotchman was granted to his next of kin without citing the widow, a similar grant having already, in accordance with the practice there, been made in Scotland (6). The fact of the widow having married again is no objection to her having the administration (c) ; and a next of kin's being a disputed creditor is a circumstance rather adverse to than in favour of his pretensions to the administration {d). It would seem that, under the present law, there would be no objection to the grant going to a second wife married after the first had been divorced (e). The Court may grant administration to the widow <5rant may be • . made to widow and one of the next of kin, though, in consequence of and next of its preference of a sole to a joint administration (/), it is not the practice to do so, unless all the other next of kin are adult, or at least not of tender years, and con- sent {g). Creditors have no right to interpose in these contests Creditors may between a widow and the next of kin Qt). {x) Lambell v. La/inbe,ll, 3 Hagg. (b) Bogerson, in the goods of, 2 Eccl. 570. Curt. 656. See ante, p. 30. {y) Oonyers v. Kitson, 3 Hagg. (c) Webb v. Needham, 1 Add. Eccl. 556 ; Davies, in the goods of, 494. 2 Curt. 628 ; Chappell v. Ghappell, {d) Hid., 497. The head-note 3 Curt. 429 ; Anderson, in the goods to the report — wrongly, it is sub- of, 3 Sw.& Tr. 489. mitted — omits the word italicised (s) Walker v. Oa/rless, 2 Lee, 560. in the text. (a) Dunn, in the goods of, 5 No. (e) See Myan v. Ryan, 2 PhiUim. of Cas. 97. But in another case 332, where it was so decided upon administration was granted to the Danish law, marriage not being then committee of tjie widow in prefer- dissoluble in England, ence to the next of kin, the admi- (/) Ante, p. 31. nistration being limited tiU the (g) Newbold, in the goods of, L. R. lunacy should determine {Alford v. 1 P. & D. 285. Alford, 1 Deane, 322). [h) Stretch v. Pynn, 1 Lee, 30. 42 SIMPLE ADMINISTRATION. C. The Rights of Next of Kin inter se. Having considered the (generally) paramount right of a ■widower to administer to his deceased wife, and the right of a widow to administer to her deceased husband as against his next of kin, we proceed to consider those cases in which, there being no surviving widower or widow, the contest for administration is between the next of kin of the deceased inter se. Statute of In the first place, it should be borne in mind that the Henry VIII. applies only to Statute of Hen. VIII. before referred to (i) applies only 7mth! '"'" ^* to such as are next of kin at the time of the death (/<;). Court has a Under the statute, the selection of the next of kin rests •which Tow- '^^*^ *^^ discretion of the Court. That discretion, how- ever, IS not to ever, is not to be arbitrarily or capriciously assumed, but be capriciously . . exercised. to be a legal discretion governed by principle and sanc- tioned by practice ; in exercising it, the Court is not to be guided by the wishes or feelings of parties, but is to look to the benefit of the estate and to that of all the persons interested in the distribution of the property. The first duty of the Court, then, is to place it in the hands of that person who is likely best to convert it to the advantage of those who have claims, either in paying the creditors or in making distribution ; the primary ob- ject is the interest of the property (l). Precedence of The following is the order in which the next of kin stand in respect of their right to obtain administration : — (1) husband or wife, (2) child or children, (3) grandchild or grandchildren, (4) great-grandchildren, (5) father, (6) mother, (7) brothers and sisters, (8) gi-andfathers or grandmothers, (9) nephews and nieces, uncles, aunts. next of kin. {i) 21 H. 8, c. 5, Appendix, p. Eccl. App. 150. 274. (I) Earl of Warwick v. Oreville, {k) Savage v. Blythe, 2 Hagg. 1 Phillim. 125. SIMPLE ADMINISTRATION. 43 great-grandfathers or great-grandmothers, (10) great- nephews, great-nieces, &c., all being equally entitled who stand in the same degree (m). Where the next of kin according to the foregoing table is a married woman, her husband may administer in her right (n). Where two or more in equal degree are contending, the As between constant rule is to grant administration to the greatest equal degree, interest (o), at least where there is no material objection f^'^^nte^to" on the one hand, or reasons for preference on the ^^^ greatest interest. other ip), and where the Court is not bound by the statute of Hen. VIII. (g), even though the person with whom the majority of witnesses are desirous of entrusting the estate may have unsuccessfully propounded an alleged will of the deceased (r). Goeteris paribus, males are preferred to females (s), and Males usually T)rcf6PI'6Q. to administration has been decreed to a son in preference to females a married daughter, notwithstanding the son had con- stituted himself an executor de son tort (t) ; but the rule preferring males is not so stringent as the rule that the grant will follow the majority of interests, and it is also subject to the preference given to prior pe- tens (u). The half-blood is in equal degree with the whole blood (w); and wtole but the whole blood is preferable to the half-blood, though biood. the majority of interests concur in the latter, unless ma- (m) Browne, 167 ; and see 2 Bl. (r) Ooppin v. Dillon, i Hagg. Comm. 504. Ecol. 376. (m) See ante, p. 9. (s) Zredale v. Ford, 1 Sw. & Tr. (o) :Elwes V. Ulwes, 2 Lee, 575 ; 305. Wetdrill v. Wright, 2 PhiUlm. 248 ; {t) Ohiitenden v. Knight, 2 Lee, Tucker v. Westgarth, 1 Add. 352. 559. (p) Sudd V. Silver, 2 Phillim. (u) Oord^ia: v. Trasler, 34 L. J., 115 ; Mercer Y. Morla7id,^ljRe, 499. P. & M., 127. As to laches, see ante, (q) Almes v. Almes, 2 Hagg. p. 33. Eocl. App. 155 (see the reporter's (w) Brown v. Wood, Aleyn, 36. note). 44 SIMPLE ADMINISTRATION. Primogeniture has very little weight. Adults have not, as such, any priority over guardians of minors. Business man preferred. Bankruptcy not necessarily a disqualifica- tion. Notice of appli- cation for grant to be given to others equally en- titled. Case of princi- pal part of deceased's being trust property. terial objections can be proved against him of tbe whole blood {x). So the guardian of a minor of the whole blood is preferred to the half-blood (y). Primogeniture gives no right : if things are precisely equal, if the scale is exactly poised, being the elder brother would incline the balance, but it would not weigh against the wish of the majority of interests (z). It would appear that the fact of one only of competitive next of kin being of age gives that one no preference. The Court in such a case granted administration to the guardian of the minors durante minore estate [a). Gceteris paribus, a man accustomed to business is pre- ferred (6). The fact of a man having been bankrupt many years since is not to be pressed against him ; but, when he has been a second time bankrupt, and under the second bankruptcy no dividend has been paid, qu. whether he can be said to have any interest in the intestate's estate (c). Where administration is applied for by one or some of the next of kin only, there being another or other next of kin equally entitled thereto, the registrars may requure proof by affidavit or statutory declaration that notice of such application has been given to such other next of kin (d). Where the principal part of the estate to be adminis- tered really belonged to an estate of which the intestate was executrix, the Court granted administration of her effects to the eldest son, being the trustee named in the (k) Mercer v. Morland, 2 Lee, (a) Cartright's ca., Freem. E. B. 500. 257. (y) Stratton v. Linton, 31 L. J., (b) Williams v. Wilhins, 2 P. & M., 48. Phillim. 100. (z) Earl of Warwick T. Greville, (c) Iredale v. Ford, 1 Sw. & Tr. 1 Phillim. 125 ; Coppin v. Billon, 305. i Hagg. Eccl. 376. (d) P. E. (Non-C), 28. SIMPLE ADMINISTRATION. 45 testator's will, in preference to the nominee of the other next of kin, five in number (e). D. Tlie, Right of ike Grown. When a bastard dies intestate without wife or issue, the in what cases .. -IT 1 -I ■ • • • 1 adminislration Sovereign is entitled, and administration is granted to the is granted to patentee or grantee of the Crown (/). The right to goods ® ™^™' belonging to persons intestate, without leaving husband or widow, and without kindred, as bona vacantia, has from the earliest times been vested in the Sovereign in right of his Crowa (g), and it is the rule to grant to the Crown the administration of the estates of such intestates Qi). How- Crown has no legal title, ever, it would seem that the Crown has no legal title to ad- ministration (i) ; yet, where the dispute has been between a nominee of the Crown and a creditor, administration has been granted to the former, as being generally the more worthy and responsible person (_/). The most remote relation defeats the title of the Crown (k). The nominee of the Crown is under the same obligation Nominee of as any other administrator. The 15 Vict. c. 3 only dis- game obligation penses with the necessity of his giving the usual bond, but ^•°*^'^^. imposes on him all the duties and liabilities of a private administrator. If he improperly pays to the Crown part of the intestate's effects, though such payment is made under authority of a warrant under the sign manual, he makes himself personally liable to restore it to parties (e) Stain(on,mthe goods o/i'L.'R., the Treasury Solicitor ; see 15 Vict. 2 P. & D. 212. 0. 3. (/) JoTies V. Goodchild, 3 P. (i) Per Sir G. Lee, State y. Tyn- Wms. 32. dall, 2 Lee, 396. So, in an old (g) Dyke v. Walford, 5 Moo. P. case, the Court thought the grant C. 434. The Queen's right extends to the Crown to be rather of respect to bona vacantia within her Duchy than of right {Manning v. Knapp, of Lancaster [ibid.) 1 Salk. 37). (h) Rutherford v. Maule, i Hagg. (J) Per Sir G. Lee, State v. Tyn- Eccl. 213 ; State v. Tyndall, 2 hee, dall, ubi supra. 394. The grant is usually made to (Jc) State v. Tyndall, 2 Lee, 394. 46 SIMPLE ADMINISTRATION. his liability afterwards proving themselves legally entitled (I). Upon bis death that liability continues against his personal repre- sentatives, and not against his successor in office. But that successor may make himself personally liable for the acts of his predecessor, as by taking out letters of adminis- tration de bonis non to the same estate (wi). deToIves on Ms personal re- presentatives, not on his successors in office. E. The Right of Consuls (in the case of Foreigners). Statutory pro- Where a convention to that effect has been made with consular ° ^"^7 foreign state, the consul of such state may administer administration, ^o a subject thereof dying in Her Majesty's dominions, when there is no other person to administer [n). It is believed, however, that no such convention has yet been made. F. The Right of Creditors. Q-rant only Administration is only granted to a creditor, failing made to credi- ..... ... tor, failing any any other representative ; m which case, there being no aentative"^' '^^^ *° ®^®' *^^ creditor, not being himself administrator and so able to pay himself, must almost of necessity lie out of his debt. But, where a person whose duty and interest it is to contest claims on the deceased's estate is before the Court, willing to undertake administration, he or she it is that is entitled to the grant, and not the creditor, both in law and reason (o). In short, a creditor has no right to administration except by the practice of the and then only Court (p) ; and it will not be granted to him, unless he makes an affidavit that he has no other security (q), and, if (l) Att.-Gen. v. Kohkr, 9 H. L. C. 654 ; Edgar v. Reynolds, i Dr. 269. As to the ordinary duties and liabilities of an administrator, see Chaps. XXI— XXIII. (m) Att.-Gen. v. Kohkr, ubi supra. («) 24 & 25 Vict. c. 121, s. 4. (o) Webb V. Needham, 1 Add. 497 ; per Sir H. Jenner, Graham v. Maclean, 2 Curt. 663. {p) Per Sir H. Jenner, Menzies v. Pulbrook, 2 Curt. 850. (j) Aitkin r. Ford, 3 Hagg. Eccl. 193. SIMPLE ADMINISTRATION. 47 required by the Court, consents to pay all the debts pro rata (r). It has been decided that a mortgagee is a creditor who Who may ad- may have administration (s) ; also a surety who pays his "g^i^j^rs. deceased principal's debt (t), the mother of an intestate who had been advanced by her (u), and, if the circum- stances be proper, a creditor for funeral expenses (x). By virtue of the Act 12 & 13 Vict. c. 103, s. 16, a board of guardians are creditors who may administer to a deceased lunatic, who has been maintained at their expense (y) ; and, semble, administration may be granted to the assignee in bankruptcy of a creditor (z). But, semble, an assignee of a debt, bought up since the deceased's death, is not a creditor within the rule (a). Administration may be granted to a creditor, whose right of action is statute- barred (6). Administration to a wife's estate has, . her husband not appearing to oppose, been granted to an antenuptial creditor (c). Where an application is made for a grant of administra- Grant to officer . . of an associa- tion to an officer of an association, on the ground that the tion. deceased was indebted to the association, the Court ought (?•) BracTcenhury, in the goods of, authority the applicant undertook L. R. 2 P. Div. 272. the funeral [ibid.). {s) Boxlurgh v. Lambert, 2 Hagg. (y) Windeatt v. Sharland, 20 W. Eccl. 557 (read by the light of the R. 211. subsequent statute, S & iW. i, li. . (2) Dovmward v. IHckeTwon, 3 104) ; Godfrey, in the goods of, 2 Sw. & Tr. 564. Sw. & Tr. 133. (a) Baynes v. Harrison, Deane, (Q Williams v. Jukes, 34 L. J., 15 ; Coles, in the goods of, 3 Sw. & P. &M., 60. Tr. 181. It would seem that no (u) Aitkinf. Ford, 3 Hagg. Eccl. person is entitled to administration, 193. who has merely purchased a part of (x) Newcome v. Beloe, L. R. 1 P. deceased's property after his death & D. 314. But the Court will not (see per Sir C. Cresswell, Depit v. grant administration to an under- Velerieleuse, 2 Sw. & Tr. 133). taker as a creditor for funeral ex- (b) Coombs v. Coombs, L. R. 1 P. penses^ unless it is informed of the & D. 288. See post, p. 161. circumstances under which the ex- (c) Suddleston v. Suddleston, 2 pcnses were inctirred, and by whose Rob. 424. 48 SIMPLE ADMINISTRATION. Larger creditor preferred to smaller. Limits of a creditor's rights. to have such information as to the constitution of the association as will show that the officer can be treated as a creditor (c^). Of two or more competitive creditors, the grant will be made to the one who is the largest creditor, especially if he is supported by the ma,jority of interests (e). Semble, a creditor applying for administration has no right to go into the question of the unfitness of the next of kin (/). So a creditor cannot oppose a will {g), unless he be in possession of a grant of administration, in which case he may contest a suit Qi). The right of a creditor is only this. He cannot be paid his debt, till a represen- tation to the deceased is made ; he can, then, call on all who have a right to administer. Before an administration is granted, if a will be produced, the creditor has no right to contradict or deny it, for, if there is a will, or a next of kin claims the administration, then a person offers to make himself a representative, and the creditor gets all that he has a right to : but, when a creditor has obtained the administration, the case is different; he has a right to maintain it against the executor or next of kin ; it is not to be revoked on mere suggestion [i). G. The Court's Discretionary Powers. The Court has now, under the 73rd sect, of the Court Section 73 of gives wide dis- 0^ Probate Act, 1857, a very wide discretion as to the per- c ^" *°d ^^'^^ *° whom administration shall be granted Qc). It has {d) Fairweather, m (lie goods of, 2 Sw. & Tr. 588. (e) Ernest v. Eustace, Deane, 271. (/) HaymesY. Matthews, 1 Sw. & Tr. 460. But, said Ld. Mansfield, no next of kin ever struggled for the administration of an insolvent estate with an honest view {Archbp. of Canterbury v. House, Cowp. 140). (g) Meiizies v. Pulbrook, 2 Curt. 84,5. (h) Elme v. Da Costa, 1 Phillim. 173. (i) Per Sir W. Wynne, Elme v. Da Costa, 1 Phillim. 177. Compai-e post, p. 105. {k) 20 & 21 Vict. 0. 77, s. 73, Appendix, p. 300. Independently of the Act, the Court, where all parties interested renounce, has SIMPLE ADMINISTRATION-. 49 even been said that the section modifies the statute of Hen. modifies, VIII. (I), though, doubtless, the discretion given by the Act of Hen. 8. later Act would be but sparingly used in abrogation of the authority of the old enactment. Yet the terms of the 73rd section are very general, and give the most extensive power to the Court to make grants under special circum- stances to persons who would not but for that section be entitled to them (m). But it is necessary to the exercise of the power that special circumstan.ces be present (mm). A married woman was the only legatee of a will which Cases in which J • 1 ■ c TT T n T Court has contained no appointment oi executor. Her husband resorted, or refused to consent to her taking the grant of administra- Ji^g^^ ^*°^^g tion with the will annexed, or to join in the bond. The section. property being left to her separate use, the Court made the gi-ant to her attorney without the husband's consent under the section now under consideration {n). The Court of New South Wales granted probate to one as executrix according to the tenor : by the law of England she was not entitled to such a grant, but the Court decreed to her administration cum testamento annexo under the 73rd section (o). M died intestate, leaving A, his sister, sole next of kin. A had for many years lived separate from her husband, whose address was unknown. The property of the deceased consisted chiefly of shares in companies, and it was feared that the companies might refuse to allow a transfer or sale without the consent of the husband. Accordingly the Court, at the request of A, granted claimed the power to make a grant (m) Per Lord Penzance, Baieman, to one who has no interest (Allen, in the goods of, L. K., 2 P. & D. in the goods of, 3 Sw. & Tr. 659 ; 244. Hastings, in the goods of, L. E. 4 P. [mm) White, in the goods of, 2 Div. 73 ; see Blagrave, in the goods Sw. & Tr. 457. of, 2 Hagg. Eccl. 83 ; Johnson, in (n) Warren, in the goods of, L. R. the goods of 2 Sw. & Tr. 595). 1 P. & D. 538. (l) Grundy, in the goods of, L. R. (o) Earl, in the goods of, L. E. 1 1 P. & D. 459. The statute wiU be P. & D. 450. found in Appendix, p. 274. 50 SIMPLE ADMINISTRATION. administration under the section to the trustees of her marriage settlement, under which she took the first life interest (p). An infant executor is " not competent " within the meaning of the section (q). The Court has also granted administration cum testamento annexo to its nominee under the section, in lieu of a bankrupt executor living in Australia, on the consent of the next of kin (r) : however, the consent of all the persons interested is not necessarily a sufficient ground for departing from the general rales, and making a grant under the section ; the Court must bear in mind that suitors and persons entitled to grants are, many of them, persons who have no oppor- tunity of knowing their own rights, and are not aware of the dangers that may beset them, if they transfer those rights to other persons (s). In one case (f) the Court, on the consent of all the parties interested, granted adminis- tration to their nominee, who took no interest himself; but this was done in order that litigation might be stopped (u). Such consent is not per se a special circum- stance to justify the Court in making a grant to such nominee under the 73rd section {x). No doubt the section gives the Court the power to pass over a residuary legatee, or even an executor, if certain special circumstances exist (y) ; but it will not, in the exercise of such power, pass over a person otherwise entitled to a grant in favour of a creditor, when the insolvency of the deceased is disputed (z). (p) Mayehell, in the goods of, L. (w) Per Lord Penzance, Teague v. P.. 4 P. Div. 74. Wharton, L. R. 2 P. & D. 361. (q) Stewart, in the goods of, L. R. {x) Ihid, 3 P. & D. 244. (2/) Per Sir J. P. Wilde, HawTce (r) Cooper, in the goods of, L. R. v. Wedderbume, L. R. 1 P. & D. 2 P. & D. 21. 594. See Cooper, in the goods of, (s) Per Lord Penzance, Mcliard- L. R. 2 P. & D. 21 ; Sawtell, in the son, in the goods of, L. R. 2 P. & D. goods of, 2 Sw. & Tr. 448. 244. (a) Hawke v. Wedderbume, ubi (t) Farrell v. Brownbill, 3 Sw. & supra. Tr. 467. SIMPLE ADMINISTRATION. 51 The Court will not, by a resort to the section, dispense with the rule requiring notice to the persons entitled to administration in priority to the applicant {a) ; but it has done so in a case where the persons so entitled were in Australia, and their interest in the property (which was a very small one) was infinitesimal (6). Lastly, the Court will not make a grant under the section to a party entitled to a grant in another cha- racter (c). Court will not, by resort to the section, dis- pense with notice to per- sona entitled in priority, nor make a grant under it to one entitled in another , character. (a) CooJce, in the goods of, 1 Sw. & Tr. 267. See ante, p. 33. (J) Bagger, in the goods of, 3 Sw. & Tr. 65. (c) Fairweather, in the goods of, 2 Sw. & Tr. 588 ; and see ante, p. 35. For cases (in addition to those mentioned in the text) in which the Court has had recourse to the 73rd section of the Pro- hate Act, the reader is refeiTed to Jones, in the goods of, 1 Sw. & Tr. 13 ; Roherts, in the goods of, ihid. 64 ; Burrell, in the goods of, ihid. ; Drinkwater, in the goods of, 2 Sw. & Tr. 611 ; Peclc, in the goods of, ibid. 506 ; Smith, in the goods of, ibid. 508 ; Zlanwarne, in the goods of, L. R. 1 P. & D. 306 ; Fraser, in the goods of, ibid. 327. E 2 52 ADMINISTEATION CHAPTER VIII. GENERAL GRANTS OF ADMINISTRATION (continued) — ADMINISTRATION CUM TBSTAMENTO ANNEXO. In what cases THERE be divers kinds of intestates, says Lord Coke ; made. One that make no will at all, another that make a will and executors, and they refuse ; in this case he dieth quasi intestatus (a). If the testator makes his will without naming any executors, or if he names incapable persons, or if the executors named refuse to act, in any of these cases, says Blackstone, the Court must grant administration cum testamento annexo to some other person (6). But Blackstone's statement is incomplete. Administration with the will annexed may be granted in all cases where no appointment of executor has been made, or where the appointment fails. The common instances of such failure are : — where the person appointed (i.) predeceases the testator (c), (ii.) survives the testator, but dies before he has proved the will, (iii.) survives the testator, and proves the will, but dies intestate before he has completely administered (d), (iv.) survives the testa- tor, but is incapable of acting, (v.) survives the testator, but is at the testator's death resident out of the United (a) 2 Inst. 397. in this case would obviously he not (6) 2 Bl. Comm. 503. merely an administration c. t. a., (c) PuUen V. Serjeant, 2 Ch. Eep. but also an administration o!« ionis 300. non, of which more hereafter. {d) The administration granted CUM TESTAMENTO ANNEXO. 53 Kingdom (e), (vi.) survives the testator, but, though capable and resident in the United Kingdom, refuses to act (/). In Grayshrook v. Fox (g) two instances are given of special cases in which administration cum testamento annexo will be required, viz., where a man appoints as his executoi's the executors "of J. S., and predeceases J. S., in which case the deceased is entirely intestate as to executor- ship, and where he ordains that after a year A shall be his executor, in which case he is similarly intestate within the year. Where there is a capable executor, no person can take Where there is administration till his refusal is recorded in Court (h), or goutor his^' he has been cited ; the Court will not make the grant refusal mast ° he recorded, or upon his mere consent (i). he must be The grant of administration with the will annexed of a grant wiu go. married woman, when no executor is named, is, though Administra- the husband survive, in the discretion of the Court (fc). will of a mar- Persons interested under the will are considered to be ^"jnan annexed. entitled to the grant in priority to the husband (Z), though the latter has obtained it under the circumstances of the case (m), as also has his legal personal representative, the husband being dead, but having survived his wife (n). Administrations cum, testamento anneomaxe not within The grant c.t.o. the statute of Hen. VIII. Therefore the [Court] is not e'it°io*n o/tL Court, (e) 20 & 21 Tint., c. 77, s. 73, the Act (Sawtell, in the goods of , 2 Appendix, p. 300; and see Cooper, in Sw. & Tr. US). the goods of, cited amfe, p. 50. This {g) 1 Plowd. 279, 281. section has also been considered to (A) Per Sir J. NichoU, Long v. apply to a case in which the executor Symes, S Hagg. Eccl. 776. and universal legatee predeceased (i) Garrard y. Garrard, L. E. 2 the testator, and the next of kin P. & D. 238. were abroad. (See, in the goods of, Ik) Bretichley v. Lynn, 2 Eob. L. E. 4 P. Div. 86). 441; and see ante, p. 37. (/) See ibid. Where the testator (I) Bailey, in the goods of, 2 Sw. appointed as executor a person who & Tr. 135. could not be found, the Court (m) Dawson, in the goods of, 2 granted administration c. t. a., Eob. 135. there being no person " willing and (») Bempsey v. King, ibid. 397. competent " within the meaning of 54 ADMINISTRATION bound to gi-ant administration to the residuary legatee, none of the statutes naming him; on the contrary, the statute of Hen. VIII., which takes notice of the renuncia- tion of executors, leaves the matter to the election of the [Court] (o). The grant being thus discretionary, no party is of right entitled to it (p). The discretion of the Court has been amply confirmed of late by Parliament, which has declared that it shall not be obligatory upon it to grant administration to the person who but for such decla- ration would have been entitled to it {i.e. entitled by the but is usually practice of the Court) (g) ; but in practice, as will be seen, residuary '^^^ grant generally goes to the residuary legatee, legatee, rpjjg reason that the statute of Hen. VIII. requires that administration should be granted to the next of kin was upon the presumption that the intestate intended to prefer him. But the presumption is here (i.e. in a case where deceased made a will and appointed executors, but the appointment failed) taken away, the residuum being disposed of to another ; and to what purpose should the next of kin have it, when no benefit can accrue to him by it ? And 'tis reasonable that he should have the manage- ment of the estate, who is to have what remains of it after the debts and legacies are paid. And the averment that there is no residue is not material ; for, being once out oi the statute upon construction of the words of the will, there is nothing ex post facto can bring it within it (r). (o) Bex V. Bettesworth, 2 Str. {Coopor, in the goods of, L. E. 2 P. 956. For the statute, see Appen- & D. 21); also to the nominees of the dix, p. 274. residuary legatee, who was a married (p) Per Sir H. J. Fust, South- woman, without notice to her hus- ■mead, in the goods of, 3 Curt. 29. band, the residue being settled to (y) 20 & 21 Vict. u. 77, s. 73, her separate use and at her absolute Appendix, p. 300; and see ante, p. 60. disposal {Pine, in the goods of, L. E. Where the executor became bank- IP. & D. 388); and see notes (e) rupt, and left this country for Aus- and (/), ante. tralia, the property being small, the (r) Thomas v. Butler, Vent. 217. Court, on the consent of the next of Compare Sawbridge v. Sill, cited kin, granted administration c. t. a. post, p. 67. toa specificlegatee under this section CUM TMSTAMENTO ANNEXO. 55 Similarly it has been said that, where the next of kin has no interest in the property, he is by the spirit, though contrary to the letter, of the Act excluded (s). The residuary legatee is the testator's choice ; he is the next person in his election to the execu- tors. The practice goes along with that preference, and residuary legatees, even when there is no prospect ot any residue, are by the uniform practice of the Court entitled to an administration in preference to legatees and annuitants {£). This is in accordance with the principle that the grant should follow the interest (u). Where it was uncertain whether the residue had been legally disposed of, the light of the widow under 21 («) West V. Wiliy, 3 Phillim, 381. {t) Per Sir J. NiohoU, Atkinson V. BarTiard, 2 PMUim. 317. The Prerogative Court once departed from its usual practice in this re- spect, when, were it to have fol- lowed that practice, it would in effect have determined a question of construction of a will, belonging (then) to a Court of Equity ; under such circumstances, the for- mer Court, having a discretion, exercised it, so as to leave the question open {Brown v. Nicholls, 2 Rob. 399). But the Com-t of Probate not infrequently constraed wills where, in granting administra- tion with the will annexed, it be- came necessary or convenient to say who was residuary legatee, e. g., Presant v. Godwin, 29 L. J. P. & M. 115 ; Scarborough, in the goods of, 30 L. J. P. & M. 85 ; Bloomfidd, in the goods of, 31 L. J. P. & M. 119 ; Smith, in the goods of, 34 L. J. P. & M. 15 ; Cadge, in the goods of, 37 L. J. P. & M. 15 ; Sharman, in the goods of, 38 L. J. P. & M. 47; O'Loughlin, in the goods of, 39 L. J. P. & M. 53 ; Greenhalgh v. Bates, Hid. 44 (only by consent of parties). So every grant of probate to one as executor according to the tenor in- volves the construction of a will ; see ante, p. 5. Since the Judicature Act, there can be no question of the com- petency of the Probate Division to de- cide questions of construction {ante, p. 26) ; it is not now, it is pre- sumed, under any such obligation of deference as is to be found in War- ren V. Ktlson (28 L. J. P. & M. 122). In that case the Prerogative Court, putting a construction upon a wUl, granted administration c. t. a. to K. The Court of Chancery held that construction to be wrong, and that W was entitled. K appealed to the House of Lords. W applied for the grant to be to him in accord- ance with the decree of the Court of Chancery. Held, • that the pro- ceedings in Chancery were in the nature of an appeal from the Prero- gative Court, and that its decision must prevail. Accordingly, the grant was decreed to W. (m) Ante, p. 39, 56 ADMINISTRATION .e.,to the trustee (if any) of the resi- duary estate, and, failing him, to the residuary legatee for life. Court may make grant to one of several residuary Hen. VIII. c. 5, s. 3, prevailed, and administration with the will annexed was granted to her (x). When it is said that the residuary legatee is entitled to the grant, attention must be given to the singular terminology which has found currency in Courts of Pro- bate (y) : what is meant is that, by the ordinary practice, administration cum testamento annexo is granted to the trustee of the residuary estate ; failing him, not to his representatives, but to the person or persons having the beneficial interest in the residue (z). However, the trusteeship must be coupled with an executorship, followed by probate ; a mere trustee has no claim to administra- tion (a). The case is d fortiori, where the trustee was originally appointed executor also, but such appointment was subsequently revoked (b). The usual course is to grant the administration to the legatees for life rather than to a legatee substituted (i.e. in remainder) (c). Of course, the mere fact that the residuary legatee is also next of kin does not disentitle him to the grant [d). Where the grant was made to one of two residuary legatees, it was held long ago that the one excluded could not complain (e). Where one of the two had been guilty (b) Pool, in the goods of, 35 L. J., P. & M., 97. {y) How awkwardly inaccurate it is to speak of the tenant for life of a residuary estate as residuary lega- tee, and of the person entitled in remainder as substituted residuary legatee ! (s) Hutchinson v. Lambert, 3 Add. 27, which see for a grant made under special circumstances. In no case will the Court decree adminis- tration to substituted trustees, until the trust property is actually vested in them, without the consent of all parties beneficially entitled (Cress- well V. Cresswell, 2 Add. 342). (a) OoussmaJcer v. Chamberlayne, 2 Lee, 243 ; Boddicott v. Dalzeel, ibid. 296 ; Fawkener y. Jordan, ibid. 327. (b) Foyer, in the goods of, Deane, 184. (c) Fer Sir H. J. Fust, Brovm v. Nicholls, 2 Eob. 402. {d) Linihwaite v. Galloway, 2 Lee, 414. (e) Taylor v. Shore, T. Jones, 161. No reason for the decision is assigned by the report, but it would follow from the discretionary nature of the grant. GUM TESTAMENTO ANNEXO. 57 of misconduct in the matter of the will, he was excluded from the grant (/). Where the contest for administration was between three Grant usually residuary legatees, who were minors and applied for a interest, grant to their guardian, and the fourth, who was of full age, the Court, under the circumstances of the case, there being in fact no residue, made the grant to the one of full age, he being next of kin and more largely interested in the pecuniary legacies : it was contended, said Lord Pen- zance, that the administration ought to go to the guardian, on the ground that she represents the majority of interests ; if this were simply a question between residuary legatees, that would be the ordinary rule, but the Court must bear in mind that in this case there is probably no residue ; the argument founded on the majority of interests becomes very weak when it appears that the interests probably amount to nothing at all {g). The grant may go to the trustees of a deed of assign- Who may ment for the benefit of the residuary legatee's creditors (/i), residua!^ or to the trustee in his bankruptcy (i) ; also to a guardian legatee, for 5 purpose of selected by him, he being a minor (Jc), or to the attorney taking grant, of such guardian (J). The representative of a residuary legatee, who survived Interest of ..,11 . „ residuary the testator, is entitled to the grant m preference to a legatee sur- legatee {nfi), and letters granted to the executor of a to"trans-**' creditor, not having passed the seal, were rescinded at the miasible, suit of the executor of a residuary legatee {n) ; but the (/) Podmore v. Whatton, 3 Sw. 327. & Tr. 449. (I) Graham v. Maclean, 2 Curt. [g) Sawhridge v. Sill, L. K. 2 659. P. & D. 220. (m) Thirwall, in the goods of, 6 Qi') Mayhew v. Newstead, 1 Curt. No. of Gas. 44 ; see Isted v. Stanley, 593. Dyer, 372a. (i) Downward t. Dickenson, 3 (n) Jorixs y. Beytagh, 3 Phillim. Sw. & Tr. 564. 635. (A) Fawkener v. Jordan, 2 Lee, 58 ADMINISTRATION interest of a residuary legatee who does not survive the testator is not transmissible, and the Court will not make but widower of the grant to his representatives (o). And the widower of legatee in the residuary legatee in remainder is entitled to the grant entitiedln ^^ preference to the widower of the sole executrix and priority to residuary legatee for life (»). widow of re- ^ ^ ^-^^ siduary legatee After the residuary legatee, the next of kin is entitled to administration. If the next of kin decline it, it may be After residuary _ ■' legatee, next of granted to a legatee or a creditor (q). But there are cases, then legatee as Sir J. Nicholl Said, where the Court, considering the or creditor; ^g^^ ^^ j^jj^ excluded, has granted it to the creditors in kin may be priority to them (r). Thus, where the deceased left a favour 0™"^'° widow (sole executrix and universal legatee) and a son, creditors. and the widow renounced probate, adnainistration cwm testamento anneoco was granted to a creditor in preference to the son, the estate being insolvent (s). Following these precedents, Sir J. Nicholl granted administration to creditors in preference to a grandmother, who had been appointed guardian to minors, and who, having renounced the administration, had retracted her renunciation and applied for a grant, the estate here again being in- solvent (t). But a residuary legatee was allowed to retract her renunciation, and take the grant in preference to a nominee of creditors representing a large amount of debt (u). Again, the Court will not, by reason of the insolvency of the estate, make the grant to a creditor under the provisions of the Court of Probate Act, 1857 (x), (o) Oarmichael, in the goods of, [s) Furlonger v. Cox, cited Hid. 32 L. J. P. & M. 70 ; compare Tay- A similar preference was shown in lor V. Diplock, 2 Phillim. 261. Bridges v. Duke of Newcastle, cite (p) Wetdrill v. Wright, 2 Phillim. ibid. 2i3. {t) West V. Wilby, ubi supra. (q) Kooystra v. Buyskes, 3 Phil- (u) Mines v. Cornwell, 2 Kob. lira. 531 ; West v. Wilby, ibid. 142. 381. (x) S. 73, Appendix, p. 300. ^ (r) West V. Wilby, ubi supra. CUM TEST AMEN TO ANNEXO. 59 if the residuary legatee be willing to take it ; much less will it do so, if the insolvency be disputed {y). Where administration cwm testamento annexo was contested by a creditor and a person who had been joint assignee with the deceased in a bankrupt's estate, and who alleged that the deceased had applied to his own use moneys belonging to such estate without accounting with him or any of the bankrupt's creditors, the Court decreed administration to the creditor, saying that the joint assignee was only a trustee for the bankrupt's creditors, and would have his remedy against the deceased's representatives in equity, but was not a creditor himself of the deceased's estate (z). The Court refused to grant administration cum testa- Creditors c -n 1 1 /~( c entitled in mento annexo to the attorney oi a JSoard at the Cape oi priority to Good Hope (the members of which were of3ficial adminis- ooi"™^^ lm.aw\ trators there), while creditors, next of kin, or legatees administrator, were willing to take it (a). The executrix of the deceased's executor is entitled to ^?'^, executrix of deceased s the grant in preference to the widow (b). executor to widow {y) Hawlce v. Wedderhwn, 37 L. (6) Thomas v. Baker, 1 Lee, 341. J. P. & M. 33. Administration c. t. a., when granted (z) SnapeY. Webb, 2 Lee, 411. to a widow, is limited during widow- (a) Beitz, in the goods of, 3 Hagg. hood (see Teed, in the goods of, 7 Eccl. 766. No. of Cas. 384). 60 ADMINISTRATION CHAPTER IX. GENEEAL GRANTS OF ADMINISTRATION {continued). — ADMINISTRATION DIE BONIS NON. When this WHENEVER an executor dies, and his interest as such grant is made. . ■ ■^.^ • ^x. ] i, executor is not transmissible, — m other words, whenever the chain of executorship to a testator is broken (a), and whenever an administrator dies, and some of the deceased's goods are left unadministered, a fresh grant must be made of administration de bonis non {administratis). It is disore- The gra.nt of this administration is in the discretion of usuS'foUows ^^^ Court (6), but it is usually made to follow the interest. the interest, ijjjg practice, however, is not obligatory ; though it is a good general rule to grant to the largest interest, yet that is only introduced by practice, not by any positive law (c). Party with ^ party having a direct interest in distribution is gene- direct interest r J & ... . preferred rally preferred in a grant of administration de bonis non to those entitled in those entitled in a representative character {d) ; but this representatiTe practice may be departed from on sufficient grounds character. r j c o shown (e). The estate and If the goods of the testator [or intestate] remain in interest of an . n n i • i • ■ 7 i • administrator specw, they shall go to his administrator de bonis non, ' ' "■ because in that case it is notorious which were the goods of the testator [or intestate], and they are distinguish- (a) See Chap. IV. der v. Hanger, cited ante, p. 39. (b) Per Sir H. J. Fust, South- (d) Middleton, in the goods of, 2 mead, in the goods of, 3 Curt. 29. Hagg. Eccl. 61. (0) Per Sir G. Lee, Cardale v. (c) Ibid. ; Carr, in the goods of, Harvey, 1 Lee, 177, 179. See Fiel- L. K 1 P. & D. 291. DE BONIS NON. 61 able (/). If assets are in the hands of a third person at the death of an administrator, the administrator de bonis non alone can recover them ; they belong to him, and not to the executors of the former administrator (g). He may sue upon a promise made to the first adminis- trator (h). And, -where a bill of exchange was indorsed generally, but delivered to S. C, as administratrix of J. C, for a debt due to the intestate, and S. C. died intestate after the bill became due, and before it was paid, it was held that the administrator de bonis non of J. C. might sue upon the bill {i). In fact, an administrator de bonis non succeeds to all the legal rights which belonged to the administrator in his representative capacity (k). (/) Per Holt, C. J., Wankford & C. 150. The Court specially V. Wankford, 1 Salk. 306. guarded itself against saying that [g] Per L. C. Sugden, Lady Lang- the administrator of the adminis- ford V. Mahony, i Dr. & W. 107. tratrix might not also have sued. See Skeffington v. Budd, 9 CI. & {k) Per Bayley, J., ihid. 154. F. 219, and con.sider Cubbidge v. One to whom administration d. b. Boalvjright, 1 Russ. 549. ■». c. t. a. has been granted, as the {h) Hirst V. Smith, 7 T. E. 182 ; attorney of A, can make a good V. Rendell, L. E. 6 Q. B. title to leaseholds, if he prove that 338. A. be alive ( Weih v. Eirby, 1 De (i) CaOierwood v. Chabaud, 1 B. G. M. & G. 376). 62 ADMINISTRATION When this grant is made. CHAPTER X. LIMITED GEANTS OF ADMINISTRATION. — ^ADMINISTRATION DURANTE MINORS ^TATE. If one dies intestate, and the right of administration devolves upon an infant, the [Court] is to grant adminis- tration during the minority of the infant till he arrives at the age of twenty-one, because an infant cannot before his full age, by the common law, give bond to administer faithfully (a). The same is the case where an infant is sole executor (6). The reason of the Court having a power to grant administration durante minore cetate of an executor is because during the infancy of the executor there is no person capable of suing or recovering the debts of the deceased (c). It is discre- There is no law which says to whom this kind of ad- tionary. ministration shall be granted (a) ; not being within the statutes of Edw. III. and Hen. VIII. (e), the grant is discretionary (/) ; but Lord Hardwicke said it ought (a) Bac. Abr. Exor. B. (1); and action, the executor may well re- see ante, p. 9. lease the debt {Pigot and Gascffin's (fi) 38 Geo. 3, c. 87, s. 6, Ap- ca., cited Brownl. & G. 46). pendix, p. 285; extended to Ireland (c) Walker v. Woollaston, 2 P. by 68 Geo. 3, c. 81, ss. 1, 2. And see Wms. 589. Stewart, in the goods of, cited ante, p. {d) Smith's ca., 2 Str. 892. 50. If one makes two executors, one (e) Briers v. Ooddard, 'H.oh. 250 ; of age and the other under, adminis- Thomas v. Butler, Tent. 217; tration during the minority is void. Walker v. Woollasta/n, ubi supra. because he of age may execute the The statutes referred to will he will. If administration during the found in Appendix, p. 274. "minority in such case be granted, (/) West v. Wilby, 3 Phillim. and the administrator brings his 379, and authorities there cited. DURANTE MINORS ^TATE. 63 not to be made to one that is veiy poor, though he is guardian and next of kin to the infant {g). An intestate left a widow and an infant. The widow took out adminis- tration, but became hmatic. Administration was granted also to the aunt of the infant for the use and benefit or the widow and infant during the incapacity of the one and the minority of the other Q\). An application for a gi-ant of limited administration to the nominee of a debtor has been declared quite novel, and refused (i). If an administration be granted to one during the mino- How tte ad- ■i Pi -Pi. ^ p i.-\ T J.1 xi J • ■ J, ministration is rity 01 two mtants, and one of them dieth, the admmistra- determined, tion continueth still {\i) ; but administration during the minority of two executors determines when one of them comes of age {I). Administration granted during the minority of an infant executrix is not determined by the infant marrying a husband of full age (■m). The limited administrator is but a trustee for the ^h^ adminis- infant (n), and the latter, on coming of age, can sue him *gf fp/t^"*^" for an account (o), though the administration may have infant : been repealed, and the administrator then appointed may have released him {p). If the infant, on coming of age, renounces, the person who shall be appointed adminis- trator succeeds to his rights in this respect (q). The special administrator's liability to creditors after his administra- tion has expired seems uncertain. In Brooking v. Jen- nings (r) it was held that he is not liable to other men's {g) SaversY.Havers,Ba.uiaxd.2S. P. Wms. 88, notwithstanding a (h) Binfidd, in the goods of, 1 Lee, contrary opinion imputed to Lord 625. Coke in Prince's ca. (5 Co. 29 b). (i) Lord Rivers, in the goods of, (n) Per Lord Hardwicke, Hewers i Hagg. EccL 356. v. Havers, Barnard. 23. (i) Anon., Brownl. 47 ; Jones v. (o) Roll. Abr. Exor. (M.); Good- Ea/rl of Strafford, 3 P. "Wms. 89, yer v. Glarh, 3 Leon. 103 ; and see contrary to the resolution in Prince's Mv/im v. Duvkin, Cas. t. Finch, ea. (5 Co. 29a). 298. (?) Taylor v. WaUs, Freem. K. (p) Roll. Abr. Exor. (M.) B. 425; Willyv. PoultonyMose. 99. (q) Taylor v. Newton, 1 Lee, 15 (m) Jones v. Earl of Strafford, 3 (r) 1 Mod. 174. 64 ADMINISTRATION actions after his power is expired, though, if he has wasted the assets, the executor [or administrator] has his remedy against him ; while in an anonymous case (s) — which, upon the facts, would appear to be the same case as Brooking v. Jennings — it was ruled that if the special administrator has duly administered the assets, and paid over the surplus to the executor [or administrator] of full age, he is not chargeable to creditors, and he may in such cases plead plene adrwmistravit ; but that, if he commits a devastavit, though he obtains a release from the executor [or administrator] when of full age, yet he remains liable to the creditors. And with this seems to agree in great measure the judgment of Lord Hardwicke {t), that such an administrator cannot be called to account but by the executor [or administrator], and, whatever he may do during his administration, is not answerable to any other person ; but that, if you show he has not accounted to his executor [or administrator], but fraudulently and by col- lusion detains any part of the assets, there is no doubt you may maintain an action against him, and follow the assets into his hands, and powers. An administrator during the minority of a sole execu- tor has the same powers as one appointed during the minority of the next of kin (u). But what these powers are is, upon the authorities, open to some doubt. On the one hand, it is laid down that an administrator durante, minore estate can sell the goods, pay the debts, and do all other things which an executor can do ; can bring an action of trover and conversion (x) ; can retain for his own debt {y) ; and has for the time all the power and authority of an absolute administrator (0), except that (it (s) Freem. K. B. 150. (x) EoU. Abr. Exor. (M.) \t)FotherbyY.Pate,ZA&.60ifi05. (y) Koskelly v. Qodolphin, T. (u) 38 Geo. 3, c. 87, s. 7, Ap- Eaym. 483. peudix, p. 286 ; extended to Ireland («) Com. Dig. Admon. (F. ) ; com- by 58 Geo. 3, e. 81, 8. 2. pare 2 Bl. Comm. 503. DURANTE MINOEE ^TATE. 65 has been said) a limited administrator cannot renounce any benefit to which the deceased's estate is entitled (a). And the present inclination of the Courts seems to be to arm an administrator during another's minority with full powers. The latest English case on the point is Monsell v. Armstrong (b), in which it was held that he could exercise a power of sale given by a testator to his executors or ad- ministrators, Lord Romilly, M.R, saying he could find no distinction between a common administrator and an administrator durante minor e cetate as regards the exercise of a power of sale. On the other hand, it has been said that his acts are limited to such as are for the advantage of the infant and the estate of the deceased ; therefore, he may sell bona peritura, as a bailiff may, such as fat cattle, grain, or anything else which may be the worse for keeping ; so he may assent to a legacy, and may sue and be sued ; but he cannot do anything to the prejudice of the infant, and therefore he cannot sell the goods of the deceased any farther than they are necessary for pay- ment of the debts, nor can he otherwise sell a term of years during the minority of the infant (c). He is, it has been said, but as bailiff or receiver to the executors [or administrators] {d) ; he cannot sue, that is certain ; and is, in fact, little more than a person appointed ad colli- genda bona or an RdvainisiTSitor pendente lite (e). If an action be brought against a special administrator Determination .. ., . T T . i'°^ administra- and the administration determines pending the action, he tion, pending ought, said Holt, C. J., to retain assets to satisfy the debt spec°ai^ad™^ which is attached on him by the action (/). ministrator. (a) Per Shadwell, V. -C. E. , Davis intestate's] term of years was de- V. Chanter, 14 Sim. 212. cided in Prince's ca. (5 Co. 29 a), (6) L. R. 14 Eq. 423. approved by the judges in Jones v. (c) Bae. Abr. Exors. (B.) 2 ; and Earl of Strafford (3 P. Wms. 88). see re Mohinson and Sords, L. R. (d) Goodyery. Olark, Z Leon. 103. (Ir.) 3 C. D. 429, distinguishing (e) Per Lord Hardwicke, i'MAerJi/ Monsell v. Armstrong. That he v. Pate, 3 Atk. 604, 60S. cannot assign over the testator's [or (/) Sparks v. Crofts, Comb. 465 66 ADMINISTRATION CHAPTER XI. LIMITED GRANTS OF ADMINISTRATION (continued). — ADMINISTRATION PENDENTE LITE. ■When this The reason of administrations durante Tninore cetate has been mentioned (a) ; pendente lite, there being no executor that can sue, such case is within the same mis- chief (h). The remedy for the mischief is now to be found in the Court of Probate Act, 1857, which enacts that pending any suit touching the vahdity of a will, or con- cerning any probate or grant of administration, the Court may appoint an administrator of the personal estate of the deceased, to act subject to its control and under its direction, with a reasonable remuneration, and may appoint such administrator receiver of the real estate, with such powers of receiving rents, letting, and managing, as the Court may direct (c). By the Amending Act (d), the practice applies to appeals to the House of Lords under the former Act. The appointment of a receiver by the (a) P. 62. jm-isdiction is defined by the 7lst (6) Walker v. Woollaston, 2 P. sec. of the Act {Gfrant t. Grant, L. ■Wms. 589. E. 1 P. & D. 654). Where admi- (c) 20 & 21 Vict. c. 77, ss. 70, 71, nistration had been granted, the 72, Appendix, p. 300. The Court Court of Chancery refused, since has, however, no jurisdiction to ap- the Act, to appoint a receiver, unless point a receiver of real estate, when a special case were made {RUchen v. the only litigation is in reference to £irks, L. E. 10 Eq. 471). the individual appointed executor, (d) 21 & 22 Vict, c. 95, s. 22, and there is no suit pending touch- Appendix, p. 306. ing the validity of the will; the PENDENTE LITE. 67 Court of Chancery did not prevent the Court of Probate from appointing an administrator pendente lite (e). A married woman, under a power, executed a will, instances of . ^ appointment Her husband by his will made her universal legatee and of administra- sole executrix. She survived him, and died without having ilJ^f'^ ' proved his will or re-executed her own. Litigation having arisen on the question whether the wife's executors were entitled to a limited or general grant of probate, the Court appointed an administrator jpendemte lite to the estates of both husband and wife (/). A suit having been instituted to try the vahdity of a will, and judgment having been given establishing it, one of the parties appealed. The Judge, however, notwith- standing the .appeal, ordered probate to be delivered out to the executors named in the will; but, on a difficulty occurring in the Court of Chancery as to the powers of the executors pending the appeal, ordered the probate to be brought into the registry, and that administration pendente lite should be granted to the executors {g). The Court has power under the 70th sect, of the Court Appointment . L_ . -, . may be made of Probate Act, 1857, to appoint an administrator fen- at instance of dente lite on the application of a person not a party to tol^he^sui^^ ^ the suit, and accordingly, in a suit which was likely to be protracted, the Court appointed one at the instance of a creditor not a party, saying it was contrary to justice and good sense that a creditor should remain unpaid while the relatives were squabbling (A). _ ,. . ,. 7 ° V . . The Utigation The Court will not appoint an administrator pendente mnst affect the Mfe, where the litigation, though affecting the validity of part executor?" of the will, does not relate to the appointment of executors, (e) Titehhorne\.TUchlorne,\j.'R. (h.) TitckborneY. TUcMorm, h. H. 1 P. & D. 730. 1 P. & D. 730. The creditor's costs (/) Dawes, m the goods of, L. E. of the application were allowed out 2 P. & D. 147. of the estate. The statute wiU be i^g) Wright v. Rogers, ibid, 179. found in Appendix, p. 300. F 2 68 ADMINISTRATION Bellew T. Sellew. Court usually appoints some indifferent person. because such an administrator is only appointed in order that he may discharge certain necessary functions which there is nobody else to discharge (i). On the death of a partner, the business being carried on by the surviving partners, the Court will not thrust upon the latter, in the absence of a very strong case, an administrator pendente lite (Jc). Nor, it was said, would such an appointment ever be made, unless there was an absolute, or at least a pressing, necessity for it ; and it lay upon the applicant to show that such a necessity existed (l), — e. g., that the estate was perishable or in jeopardy (m) : however, in Bellew V. Bellew (n), Sir J. P. Wilde announced that he should extend the practice, and for the future appoint an administrator pendente lite in all cases in which it was the practice of the Court of Chancery to appoint a receiver. The Court, when making such an appointment, never, unless by consent (o), selects any of the parties, but gene- rally an indifferent nominee (p). It has been granted to the nominees of the parties jointly (q). It will be given to the nominee of a party whose interest is certain, in preference to the nominee of a party whose interest is uncertain (r). Where a receiver had been appointed in Chancery, the Court of Probate, under the circumstances of the case, appointed him a,dm.imstra,toT pendente lite (s). (i) Mortimer v. Paull, L. R. 2 P. & D. 85, 86. (k) Borrell v. Witts, L. E. 1 P. & D. 103. (l) Per Sir H. Jenner, Godrich v. Jones, 2 Curt. 455. (m) Sutton V. Smith, 1 Lee, 209 ; Oodrich v. Jones, uhi supra. (n) 34 L. J., P. & M., 125. But the rule must not be pressed too far (see the same judge's remarks ia SCorreU v. Witts, L. E. 1 P. & D. 104). (o) Calvin v. Fraser, 2 Hagg. Eool. 613 ; BeOJiatelainy. Poniigny, 1 Sw. & Tr. 34. {p) Young y. Brovm, 1 Hagg. Eccl. 54; Stratum v. Stratton, 2 Lee, 49. This species of adminis- tration has been always ruled to be out ofthe statutes of Ed. 3 & Hen. 8 {Thomas v. Butler, Vent. 217; Walker v. Woollaston, 2 P. Wms. 589). The statutes will be found in Appendix, p. 274. {q) Hdlier v. Sellier, 1 Lee, 281. {r) Bond v. Bond, ibid. 333. («) Procurator-General v. Wil- PENDENTE LITE. 69 Where each of two persons claimed to be an intestate's widow, the administration was granted to the nominee of the one who lived with him at his death, the adminis- trator being ordered to lodge the money as received in the bank {t). The Court will look to the circumstances of the person after inquiring proposed (tt). ^ cumstances. It has for some time past been established that an powers and administrator pendente lite can maintain actions for re- ^*?*"^.°^*° ■^ administrator covering debts due to the deceased {x), and bring eject- :pendenu lite. ment {y) ; and his rights and powers are now declared by the Court of Probate Act to be all those of a general administrator, other than the right of distributing the residue {z). He is not, however, it has been said, liable to interest upon a balance in his hands during the pendency of the suit concerning the will. It was so decided in Ireland in Gallivan v. Evans (a). The judgment of Lord Chancellor Manners in this case is instructive upon the position of such an administrator. The appointment of an administrator pendente lite is, he said, merely to col- lect the debts and property ; but his interest may deter- mine in an instant, and his power does not extend either to vest or distribute the money, the rights of the parties claiming the fund being in litigation. The case, therefore, materially differs from that of an executor or trustee ; for here such administrator must have filed a bill to enable him to lodge the money in Court, which he was not called upon to do, and I have great doubts whether he would have been justified in so doing. But, to charge him with liams, 2 Sw. & Tr. 353 ; TitcKborne (x) Walker v. Woollaston, 2 P. V. TitMorne, L. E. 1 P. & D. 730. Wms. 576. (0 Taylm- r. Taylor, 1 Lee, {y) Wills v. Sich, 2 Atk. 286. 527. («) 20 & 21 Vict. c. 77, s. 70, (m) Bond T. Bond (No. 2), 1 Lee, Appendix, p. 300. 357. (a) 1 Ball & Beattie, 191. 70 ADMINISTRATION interest, I think he ought to have been called upon by the party seeking to establish that claim to lodge the money in Court, in order to have it invested in productive secu- rities, which has not been done (&). A judgment of Lord Redesdale is to the same effect. The nature of the autho- rity conferred by letters of administration pendente lite is merely, said that very learned Judge, to collect the effects and pay the debts. The administratrix had nothing to do with the will of the testator, and it is perfectly clear that she has gone beyond her authority in paying legacies; much less had she any authority to pay the surplus to any person except an administrator with the will annexed or an executor. Perfect security might have been obtained by her and her husband filing a bill praying that they might be at liberty to pay into Court what was in their hands, to abide the event of the suit in the Ecclesiastical Court ; or, C. G. having filed his bill for the purpose of having the accounts taken, they might have accounted in that cause, and have paid the money into Court. An administrator pendente lite has no business to construe the will ; he is only to hand over the assets to the person entitled, or to dispose of them pursuant to the directions of a Court of Equity (c). He is merely an officer of the Court, and holds the property only till the suit termi- nates : as soon as it is concluded, he must pay over all that he has received in his character of administrator to the persons pronounced by the Court to be entitled ; his other functions are then completely at an end, and the Court is bound to take care he discharges the duty com- (b) OalUvan v. Evans, 1 Ball & there employed to the present prac- Beattie, 192. tice), in order to lodge money in (c) Adair v. Shaw, 1 Sch. & Lef. Court, must now be taken cum 254, 255. But so much of the grano. Since the date of those judgments in ffaZM'ixTOv..St!a»s and judgments the Trustee Relief Act Adair v. Shaw as speaks of the has been passed (10 & 11 Vict. c. necessity of the administrator bring- 96, s. 1, Appendix, p. 295). ing an action (to adapt the language PENDENTE LITE. 71 mitted to him, as far as the delivery over of everything to the proper party. Accordingly a monition will be granted to compel the transfer {d). Such administrators are the appointees of the Court, and are not to be merely con- sidered as the nominees or agents of the several parties on whose recommendation they are selected (e). The Court was of opinion in Whittle v. Keats (/) that it had no power, except by consent of all parties, to authorise an administrator pendente lite to pay income, by way of maintenance, to one who was both residuary legatee and next of kin. Though the Court of Probate could control the pro- ceedings of such an administrator, it refused to interfere with him when he was acting under an order of the Court of Chancery {g). [d) Gravus, in the goods of, 1 (/) 35 L. J., P. &M.,54. Hagg. Eccl. 313, 315. (^) Titchbome v. TUchborne, L. (e) Stanley v. Bernes, ibid. 222. R. 2 P. & D. 41. 72 ADMINISTEATION CHAPTER XII. LIMITED GBANTS OF ADMINISTEATION {contvnued). — ADMINISTRATION BUSANTM ABSENTll AND DX7RANIE BMMENTll. When this grant is made. A. Administration Durante Absentid. It is clearly agreed that the [Court] may grant adminis- tration during the absence of another, and that for the same reasons for which it may grant administration during the nonage of an infant executor, or one entitled to ad- ministration ; for without this power the inconveniency to creditors would be much greater, in that there would be no person against whom they could commence their actions, nor any one to take care of the deceased's estate or effects (a). The exercise of jurisdiction in this case is stronger than in the case of an administration durante minore estate or pendente lite, because the absent .executor [or person entitled to administration] might prove the will [or take a grant of letters], and sue by attorney (6) The grant during absence is out of the statutes of Edw. III. and Hen. VIII. (c). Statute of Jn addition to this inherent power, the Courts are now Geo. 3, and the amending armed with statutory authority. It is enacted by a statute of Geo. III. {d), that at the expiration {i. e., at or after It is discre- tionary. (a) Bac. Ahr. Exor, (G), and the cases there cited ; and see Roll. Abr. 907. (6) Walker v. WooUasion, 2 P. Wms. 589. (c) Hid. For the statutes, see Appendix, p. 274. (d) 38 Geo. 3, c. 87, ss. 1, 2, 3, Appendix, p. 284. DURANTE ABSENTIA. 73 the expiration (e) ) of twelve calendar months from the death of any testator, if the executor to whom probate shall have been granted is then residing out of the juris- diction of the Courts (/), the Probate Court may, upon such application, as in the statute mentioned, of any creditor, next of kin, or legatee, grant an administration limited for the purpose to become and be a party to a bill or bills to be exhibited against the administrator in any Court of Equity, and to carry the decrees of any such Court into effect (gr). By the Court of Probate Act, 1857 (h), it is declared that the provisions of the Act of Geo. III. shall apply to all cases where administration has been granted and the administrator is out of the jurisdic- tion {i) ; and by the Court of Probate Act, 1858 (k), the provisions of the Act of Geo. III. and of the Court of Probate Act, 1857, are extended to all executors and ad- ministrators residing out of the jurisdiction, whether it be or be not intended to institute Chancery proceedings, and it is declared lawful to make the necessary alterations in the language of the grant prescribed by the first-mentioned statute. The Act of Geo. III., being a remedial one, to enable statute persons to enforce their legal claims, ought to be construed yt^r^i'"^ («) Ruddy, in the goods of, L. E. [h) 20 & 21 Vict. u. 77, s. 74, 2 P. & D. 330. Appendix, p. 301. (/) Though, the title of the sta- (i) This and the next mentioned tute is "An Act, &c., where the amendment were rendered necessary executor, &c., is out of the realm" in part by the decision in Ray v. the enactment is equally applicable Willoughhy, 2 Eoh. 184, and by the where the executor, though not out imperfections of the Act of Geo. 3, of the realm, is out of the juris- concerning which Chambre, J. , said diction, and out of reach of the. that many of its provisions had been process, of the English Courts framed with a very short-sighted {Joiiet, in the goods of, 2 Add. 604). view of legal consequences, of which (g) For the form of decree in an he could point out many instances action for administration, where an ( Taynton v, Sannay, 3 B. & P. 33). administrator had been appointed (fc) 21 & 22 Vict. c. 95, s. 18, under this Act, see Oollas v. Hesse, Appendix, p. 305. 12 W. R. 565. 74 ADMINISTRATION liberally (Z) ; so the Court will make a grant under it to the personal [representative of a legatee, though the legatee only is mentioned in the statute (m). Determination The authority of an administrator appointed under the administrator same statute does not become actually void upon the ci«»-a»«e death of the executor [or administrator], but only void- able {n). To prevent the occurrence of difficulties on this point, it was directed that gi-ants dm/rante absentia should be further limited until the executor, or party entitled to administration, should duly apply for and obtain a grant (o). Limited grant Where an executor and trustee, who as such was the to a trustee. „ . , ^ i i , n , payee oi a promissory note, became bankrupt and went abroad, and a new trustee had been appointed in his place, the Court granted administration with the will annexed to the new trustee, limited to the interest of the cestui que trust in the money due on the note (p). Accountability The administrator durcmte absentia is accountable to mi^istotor. tte executor [or administrator] (g). This grant ^^ ^'^ ^^ noticed that the foregoing applies to cases of only made in absence after probate or a grant of letters. Those cases ca«e 01 absence _ . after probate in which the difficulty is caused by absence before probate or letters are met by the 73rd section of the Court of Probate Act, 1857 (r). B. Administration Durante Dementia. When this Administration cum testamento annexo may be granted grant is ^ a made. (l) Per Lord. Fenzance, Buddy, in C.J. ; but see per Lord Eldon, the -goods of, L. E. 2 P. & D. 331. Faith v. Dunbar, G. Coop. 200. So thought before him Eooke and (o) Cassidy, in the goods of, 4 Chambre, JJ. (Taynton v. Sannay, Hagg. Eccl. 360. 3 B. & P. 32, 33). {p) Sampson, in the goods of, 35 («i) Collier, in the goods of, 2 Sw. L. J. P. & M. 1. & Tr. Hi. (q) Slaughter v. May, 1 Salk. 42. (n) Taynton v. Bannay, 3 B. & (?-) ArUe, p. 52. See Appendix, P. 26, ddssentiente Lord Alvanley, p. 300. DURANTE DEMENTIA. 75 during the lunacy of a sole executor (s) or administra- tor (f). Where a sole executor or administrator becomes lunatic, it is the ordinary practice of the Court to make a limited grant to his committee for his use and benefit during his lunacy (u). Where one of two executors became lunatic, the pro- where one of bate was revoked, and a fresh one granted to the sane to™^ ^^®°"" executor alone, power being reserved for making a like administrators '■ ° ° IS lunatic, grant to the other when he should become of sound probate or mind (cc). Where one of several administrators became jg revoked, so afflicted, the Coui't, with the consent of his committee, ^""^ f ^^^}^ ' ' ' grant made. recalled the letters of administration which had been granted to all the administrators, and made a grant de novo to those of them who were sane {y). A grant may be doubly limited — durante dementia Grant may be and dnurante mvrm^e cetate (z). ^'"'^^^ ^^^- {s) Milnes, m the goods of, ZAA. Curt. 297. 55 ; Mc parte Evelyn, 2 M. & K. 4 ; {y) Fhillips, in the goods of, 2 Bills V. Mills, 1 Salt. 36. Add. 335 ; Newton, in the goods of, (t) Binckes, in the goods of, 1 3 Curt. 428. See further, post. Curt. 286. pp. 102, 103. (m) Per Dr. Addams, 2 Add. 336. (») See Binfkld, in the goods of, (k) Marshall, in the goods of, 1 ante, p. 63. 76 ADMINISTEATION CHAPTER XIII. LIMITED GRANTS OP ADMINISTRATION {continued). — ADMINISTRATION AS LITEM. A. Grants under the Inherent Jurisdiction of the Court. Instances of GRANTS have been made by Courts of Probate limited to such grants, filing g, bill in equity (a), and reviving, substantiating, and carrying on Chancery proceedings (6). Such grants, it has been said, "will be made on a mere Qy., whetlier . . made without averment of interest, without the Court in any way con- merhs™ ° sidering the merits of the case (c). However, where a testatrix had a power of appointment, and a general pro- bate of a will of 1829 had been granted, the Delegates held that the Court could not also grant administration with a will of 1815 annexed, limited to become a party to pro- ceedings in equity, touching the execution of the power by such wills, but must itself decide whether the will of 1815 was revoked by the one of 1829, and thereupon grant a probate of the true will (d). ' Disabilities of Money will not be paid out of Court to an administrator an administra- (j^fj^ Utem (e) ; and ouceve whether he is authorised to collect tor ad Utem. the assets (/). (a) WoolUy v. Oreen, 3 Phillim. Tr. 425. 314. (d) Hughes v. Turner, 4 Hagg. (J) Dodgson, in the goods of, 1 Eccl. 30 ; Brenohley v. Lynn, 2 Sw. & Tr. 259 ; Day v. Thompson, Rob. 441. 3 Sw. & Tr. 169 ; Cawthom v. (e) WilHams v. Allen (No. 2), Clialie, 2 S. & S. 127. 32 Beav. 650. (c) Modem, v. Dawson, 1 Sw. & (/) Ellice v. Gocdaon, 2 CoU. 10. AD LITEM. 77 Where those claiming under deceased were in posses- Cases in wMch sion of his assets, and an administrator ad litem, had been administrator appointed, they being first cited, it was held that such re^elente'the administrator sufficiently represented the estate of the estate. deceased in an action to- charge it with loss arising from a breach of trust {g). Such an administration is sufficient to represent the testator's estate in a suit seeking to establish a specific lien on his shares in a company, which had been possessed by the defendants (his Scotch exe- cutors and residuary legatees), who had received assets more than sufficient to answer all claims on the estate Qi). A devised his real and personal estate, charged with the payment of his debts, to B, whom he appointed his ex- ecutor, and B devised them to C, whom he appointed his executor, upon trust for the payment of his own and A's debts. After the death of A and B, a bill was filed on behalf of the creditors of A against C and D, charging that by collusion between C and D the latter had frau- dulently obtained large sums of money arising from the real and personal estate of A, and praying that the trans- actions between C and D might be set aside, and for the due administration of A's estate. There were also some charges of misapplication of A's assets by B, and the bill prayed that B's estate might be charged with the losses occasioned thereby. To this bill (C having refused pro- bate of D's will) a person was made a defendant, who had obtained administration ad, litem,; and it was held that B's estate was sufficiently represented {%). In a suit to administer the trusts of a settlement, and to make the trustee liable for the loss of part of the fund, the trustee alleged that a deceased tenant for life had received the lost moneys. The plaintiff made the administrator ad (g) Woodhouse v. Woodhouse, L. 27 Beav. 369. R. 8 Eq. 514. (i) Ellice v. Goodson, 2 Coll. 4. (h) Maclean v. Dawson (No. 2), 78 ADMINISTRATION He does not sufficiently represent an estate to be administered. litem of the deceased a party ; and it was held that, if a representative of the tenant for life was a necessary party, the estate was sufficiently represented by the administra- tor ad litem (Jc). Where a limited administration is granted by the proper Court, said Wigram, V.-C, and the limited administrator is made a party to a cause, the estate of the deceased is perfectly represented for all purposes to the extent of the authority conferred by the letters of administration. If the administration granted be more limited than the pur- poses of the suit require, and it is in the power of the plaintiff to obtain a general or more extensive represen- tation, the Court may require him to do the utmost he can to make the suit perfect by obtaining a representation commensurate with the object of the suit, or as nearly so as the practice of the Court will enable him ; but, if the plaintiff has obtained an administration as extensive as the practice of the Court will give him, I cannot, without the clearest authority, admit that the suit is not properly constituted {V). So Lord Cottenham decided that the grant of letters of administration ad litem makes the grantee complete representative of the estate to the ex- tent of the authority which the letters purport to confer, and a decree obtained against such grantee is therefore binding upon any one who may afterwards take out general administration to the estate (m). But a limited administrator thus appointed does not, any more than a representative appointed under the Chancery Procedure Act (n), sufficiently represent a de- ceased's estate which the Court is asked to administer (o). (fc) Williams v. Allen, i De 6. apparently (p. 552) over-ruling F. & J. 71. . Croft V. WaUrton, 13 Sim. 653. {I) Faulkner v. Daniel, 3 Hare, (») Post, p. 79. 208. And see Devaynes v. Sohin- (o) SeeJDowdeswellv.Bowdeswell, son, 2i Beav. 98. L. R. 9 C. D. 294 ; Clough v. (m) Dams v. Chamter, 2 Ph. 546, Dixon, 10 Sim, 564. AD LITEM. 79 The fact of the Probate Division appointing a man admin- istrator for the purpose of taking, or being a party to, proceedings in the Chancery Division, does not estop the latter division from saying the appointment is insufiBcient for the purpose (p). B. Grants made under the Chancery Procedure Act, 1852. By the 44th section of the Chancery Procedure Act, Section 44 of 1852 (q), the Court has power, if it shall appear that any deceased person who was interested in the matters in question has no legal personal representative, to appoint a Representative of his estate for the purpose of the proceedings, or to proceed without any representative; and all orders of the Court shall bind the estate of the deceased. But a representative so appointed does not, in an action An adminis- for administration, sufficiently represent the deceased's pointed under estate (r), for the section does not apply where the estate, ^'^!^®''^°"„tr to which it is desired to appoint a representative, is the represent an estate to be administered by the Court (s). Where it is administered, necessary that a certain individual, if living, should be a party, and the individual is dead, you have to bind his estate : if it is not to administer, but to bind, an adminis- tration ad litem is sufficient ; but, to administer, you must have a full personal representative constituted. So said (j>) Dowdeswell y. Dowdeswell, although it is not incorporated by L, E. 9 C. D. 294, esp. per Cotton, express provision in the new Judi- L. J., p. 305. cature Rules, yet it is saved by the {q) 15 & 16 Viot., c. 86, Appen- note at the commencement of the dix, p. 298. The section, which Hales {per Jessel, M.'R., OrossUy v. applies not only to actions, but also City of Glasgow Life Assurance to petitions {Ex parte Cramer, 9 Ha. Company, L. B. 4 C. D. 427). App. 47 ; Hemtson v. Todhwider, {r) Groves v. Lane, 16 Jur. 1061. 22 L. J. Ch. 76 ; Re Banking's (s) Silver v. Stein, 1 Dr. 295 ; SettleTfient Trusts, L. R. 6 Eq. 601), Maclean v. Dawson, 1 Sw. & Tr and special cases (^Swallow v. Binns, 425. 17 Jur. 295), is still in force, for. 80 ADMINISTRATION nor tlie estate of a settlor on whose settle- ment the litigation has arisen. Section only applies to cases of diificulty in obtaining ad- ministration, and where the entire adverse interest is not unrepresented. Kindersley, V.-C. {t), who on another occasion declared that, until it was decided by a higher Court to be proper, he would never make a decree to distribute an estate without a proper representative (u) : the Court of Appeal has since decided that such a course would be improper (x). Nor is the section applicable to an action which, though not in terms asking administration, prays relief which, if granted, would involve or lead up to it (y), nor to a case where the person sought to be represented is the settlor of a deed disputed in the action, and upon which the liti- gation has arisen (z). And, generally, the section is only intended to apply to cases where there is a difficulty in obtaining representation, owing to insolvency or some other cause (a). Nor, where the entire adverse interest is unrepresented by any party to the suit, wiU the Court appoint a person to represent that interest under the section (b). (i) Groves v. Lane, ubi supra. (v) James y. Aston, 2 Jur. N. S. 224. But, Semite, the strictness of the rule may be relaxed by the con- sent of parties ; see Jones v. Foulkes, 10 W. R. 55. {x) Dowdeswell v. Dowdeswell, cited infra. (y) Maclean v. Dawson (No. 1), 27 Beav. 21, 23 ; Dowdeswell v. Dowdeswell, L. E. 9 C. D. 294, 304. There is nothing in the Ju- dicature Act ■which enables the Court in this respect to depart from the ordinary course. It is still ne- cessary, as it was before, that in a suit inTolving administration there should be, not a limited adminis- trator, but a general administra- tor, in order to enable the Court to make a decree in the suit {per Cotton, L.J., Dowdeswell v. Dowdeswell, 306). But, if an exe- cutor or administrator has so dealt with a fund that by reason of such dealing it has ceased to bear the character of a legacy or share of residue, and has assumed the cha- racter of a trust fund, in a sense different from that in which the executor or administrator held it, if it has been taken out of the estate of the testator, and appropriated to, or made the property of, the cestui que trust, it may not be ne- cessary that the cestui que trust should bring before the Court the personal representative of the tes- tator in a suit to recover that part of the estate {per "Wigram, V.-C, Bond V. Graham, 1 Ha. 484). (s) racyv. Vacy, 1 L. T., N. S., 267. (a) Per Wood, V.-C, Lrnig v. Storie, Kay, App. 12. (6) Gibson v. Wells, 21 Beav. 620. It may here be mentioned that the Attorney-General does not, AD LITEM. 81 The Court has appointed representatives under the Cases in which section in the following cases. On a petition, by the tiveSTeen heir-at-law of one who was entitled upon the death of a appointed ^ under the sec- tenant for life to lands which had been taken under com- tion- pulsory powers, for payment out of Court of the purchase- money, the executors named in the will of the deceased party, but who had not proved the will, were appointed to represent his estate (c) ; and, where deceased left a will, which could not be proved by reason of litigation (not affecting the appointment of executor) in the Eccle- siastical Court, the person named executor was similarly appointed id). A surviving husband, having mortgaged the reversionary share of his deceased wife, died. Upon the death of the tenant for life, the mortgagee petitioned the Court. In the proceedings on the petition a person was appointed to represent the estates of husband and wife (e). B was by H, who died in Calcutta, appointed his executor, and he there proved the will, but refused to take out administration to the testator in England : the Court ordered that B should be appointed to represent the estate of H (/). Where a person, who or whose representative was, in respect of a possible interest, a necessary party to a suit, had disappeared many years ago in Australia, the Court presumed his death (under the circumstances of the case), and appointed an ad- ministrator ad litem under the section {g). An admi- nistrator was appointed in a foreclosure suit, to represent as a party to the cause, sufficiently Trusts, L. R. 6 Eq. 601. represent the estate of an illegiti- (/) SutherlaTid v. De Virenne, 2 mate person who died intestate Jur. N. S. 301 ; Bliss v. Putnam, 29 {Bell V. Alexander, 6 Ha. 543). Bear. 20. In a similar case, where (c) Ex parte Cramer, 9 Ha. App. B appeared by counsel, such counsel 47. was there and then appointed re- [d) Hele v. Lord Bexley, 15 Beav. presentative of the estate (Eevntson 340. But see Rowland v. Evans v. Todhunter, 22 L. J. Ch. 76). (No. 2), 33 Beav. 202. {g) Mmti-mer v. Mortimer, 11 W. («) Be Banking's Settlement B. 740. 82 ABMINISTEATION the estate of a deceased defendant, to whom a right of redemption had been given {h). Where a partner died pending the taking of the part- nership account under a decree, and his will was in litiga- tion, the Court refused to appoint a representative to his estate (i). A representative may be well appointed of an estate which it is sought to charge (/c), one who is liable or accountable being " interested " within the meaning of the section (Z). Thus, where a defendant, against whom and others relief was prayed in respect of an alleged breach of trust, died abroad, and the evidence showed that he was believed to have made a will appointing an executor, but that his solicitors on the record had not been instructed since his death, the Court made an order appointing the plaintiff's nominee to represent the deceased ad litem, unless within fourteen days after notice the solicitors and executor or one of them should appear and elect to repre- sent the estate, in which case both or either, as the case might be, would be appointed (m). So a representative has been appointed of an estate of one of four co-con- tractors, who had agreed to take a lease, and against whom specific performance was sought («). On the death of a sole plaintiff, the Court will in a proper case appoint a representative under the section, for the purpose of reviving and carrying on the action (o). And, where a sole plaintiff died insolvent and intestate, the Court, upon the application of the sole defendant, made an order appointing a person to represent the estate (7s) Long v. Storic, Kay, App. & Sm. 23. 12. (m) Joint Stock Discount Com- (i) Bowland v. Evans (No. 2), 33 pany v. Broim, L. R. 8 Eq. 376. Beav. 202. [%) Tarratt v. Lloyd., 2 Jiir. N. {h) Goddard v. JSaslam, 3 W. E. S. 371. 357. (o) SoKnson v. Kemhle, "W. N. (I) AsUmall v. Wood, 1 Jur. N. (1867), 305. S. 1130 ; Davies v. Boulcott, 1. Dr. AD LITEM. 83 of the deceased plaintiff, so that the defendant might have somebody against whom to move to dismiss the action for want of prosecution {p). The person who would be appointed administrator ad Who is the litem (by the Probate Division) is the most proper person to be to be appointed under the Chancery Procedure Act {q), ^PPoi^t^''- and notice of the application should be given to him (r). Where the executors of the deceased refused to prove, but did not renounce, the Court appointed them to be the representatives (s). Where, on a question that arose in the winding-up of dy-, -whether I •! T • 11 1 /v^ • 1 an appoint- a company, a hostile application was made that the omcial ment will be liquidator might be appointed under the section. Lord ™ ^^^ J j.™® Eomilly, M.E., said the Court made such an appointment sponsibiiity is where the duties were nominal, but never, so far as he was aware, where there was personal responsibility attached to the position [t) ; but the dictum is, it is submitted, inac- curate (tt). A person cannot, it has been said, be appointed a re- ^""i whether '■ .... oils ■will be presentative under the section against his will {x) ; but appointed certainly the appointment seems to have been made in ^yi. invitum (y). The Court, on appointing a representative, can dispense Formality of with the formality of taking out letters of administration ; ministration but, sewMe, administration duty is payable (z). pe^sed with, Money will not be paid out of Court to such a repre- ^"*' ^^™*^«' sentative, but carried over to a separate account (a). able. Disability of {p] Wingrove v. Thompson, L. uln supra. an adminis- E. 11 C. D. 419. {x) Priiice of IValcs, &e., ^sso- trator od Jiiem. (q) Dean and Chapter of Ely v. ciation v. Palmer, 25 Beav. 605 ; Gmjfm-d, 16 Beav. 561. Hill v. Bonner, 26 Beav. 372. (r) Davics v. Boulcott, 1 Dr. & (^y) g^e Ashmall v. Wood, uU . Sm. 23 ; Whiteavcs v. Melville, 5 "W. supra. li. 676. (z) }te Sanhing's Settlement (s) Ashmall v. Wood, 1 Jur. N. Trmts, L. R. 6 Eq. 601. S. 1130. (a) Rawlins v. M'Mahon, 1 Dr. (i!) Fife's Oa., 17 W. R. 870. 225 ; Byam v. Sutton, 19 Beav. (m) See, e.g., Ashmall v. Wood, eiS. a 2 84 ADMINISTRATION AD LITJSM. Proceeding in The cases in which the Court adopts the other alter- absence of • m -tit representatiye. native Offered by the section discussed above, and allows the proceedings to go on without making any appoint- ment of a representative, belong rather to the subject of Chancery practice, and consequently are not detailed here. But it may be stated generally that, where there are other persons parties in the same interest as the deceased partj', it is conceived that the Court will generally permit the suit to proceed without any representative of the estate of such party ; so also, where the deceased person was an accounting party and without any beneficial interest, and died insolvent (b). {]}) Daniel's Ch. Pr., p. 181. ADMINISTRATION AD COLLIGENBA. 85 CHAPTER XIV. LIMITED GBANTS OF ADMINISTEATION (continued), — MISCELLANEOUS GEANTS. The [CoiTrt], in default of persons entitled to the Letters ad administration, may grant letters ad colligenda (bona ^o^YrTf/' de/uncti), and thereby take the goods of the deceased grantee of in T , 1 T nn r, ^^''^ lettei'S, into its own hands, and thus assume the omce ot an executor or administrator in respect to the collecting of them (a), and doing acts incident to such collection. Thus the grant has been limited to the collection of all the personalty, giving discharges for debts paid, and preserving and safe-keeping the property, to abide the directions of the Court (&). In one case a power was superadded to accept a renewal of a lease (c) ; and in another the Court, availing itself of the provisions of the 73rd sect, of the Court of Probate Act (d), added a direction to invest the assets collected (e). Until very recently, the Court did not consider itself warranted in giving such an administrator power to dis- pose of the deceased's premises, and the goodwill of his business (/) ; but now Sir James Hannen has made a («) Toller, 107. Sw. & Tr. 20. The Court suggested (b) Hadnall, in the goods of, 2 that in future cases of the kind the Add. 233. Queen's Proctor should interpose for (c) Clarkington, in the goods of, the protection of the property, till 2 Sw. & Tr. 380. the parties entitled should come for- {d) 20 & 21 Vict. 0. 77, Appen- ward {ibid.). dix, p. 300. (/) Fer [sir C. Cresswell, Clar- (e) Wyckhoff, in the goods of, 3 86 MISCELLANEOUS ADMINl&TEATIONS. He ought to pay balance into Court. Grants in re- spect of lost wills, precedent, and bestowed such a power, where it was for the benefit of all parties {g). After payment of necessary outgoings, the administrator should pay the balance into the Registry (h). Administration has been limited till a lost will should be found {%), or (a novel grant) 'till a party's last will or an authentic copy thereof should be transmitted from India to this country, the testator having stated a few days before his death that he had left a will there (Jc). The deceased, said Sir J. Nicholl in the latter case, cannot be sworn to have died intestate, having, according to his own declaration, left a will in India. An administration ^pendente lite is out of the question, as no suit in this Court relative to the deceased's affairs is or ever may be depending. Nor can there be an administration as during the absence out of the kingdom or the minority of an executor, or the like, for non constat who the executor is, or even whether there be an executor. At the same time an interval of considerable time must elapse before the deceased's will can be forwarded from India, in which interval it may be very material that some person should be authorised as well to receive and invest the interest due and accruing upon the deceased's stock, &c., as to act generally for the protection and management of his pro- perty in other particulars. Under these circumstances, considering the reasonableness of the application, and that all parties apparently interested are consenting, I think I am bound to comply with this prayer (Z). Mngton, in the goods of, 2 Sw. & Tr. 382. See post, p. 260, as to the position of an administrator ad colUgenda, who sells without autho- rity. (g) Sehwerdtfcger, iii the goods of, L. E. 1 P. Div. 424. {h) Stewart, in the goods of, L. K. 1 P. & D. 727 ; see the form of order in Schwcrdtfeger, in the goods of, uhi siqira. {i) Campbell, in the goods of, 2 Hagg. Eccl. 655. (k) Metcalfe, in the goods of, 1 Add. 343. (l) Ibid. 344. MISCELLANEOUS ADMINISTRATIONS. 87 There Lave also been grants limited to a legacy (m), legacies, and to a fund appropriated for paynaent of a legacy (n), to legai piocced- recovering and investing certain sums (o), and to bringing '"°^' an action under Lord Campbell's Act (p). The Court will grant letters of administration to a Administra- cestui que trust limited to the trust fund, when the trustee tru^t fun^ in whose name the fund stands is dead and without a^^°**^*° cestui que personal representative, his next of kin being first cited, trust. Where several persons are interested in the fund, the grant will be limited .to the interest of the cestui que trust making the application, unless the others consent to the grant extending to their respective interests (q). (m) Stmdman, in the goods of, 2 Eccl. 93. Hagg. Eccl. 59. ip) Williams, m the goods of, (n) Biou, in tJie goods of, 3 Curt. cited 31 L. J. P. & il. 40. The 739. statute (9 & 10 Vict. c. 93), will be (o) Stanley v. Bernes, 1 Hagg. found in Appendix, p. 294. Eccl. 221 ; compare The EUetor (q) Pegg v. Chamberlain, 1 Sw. & of Eesse, in the goods of, 1 Hagg. Tr. 527. ■88 THE BOND CHAPTER XV. THE BOND TO BE GIVEN BY ADMINISTEATORS. All aclmini.3- trators (except solicitors to Crown), to give bond to Judge. Court cannot dispense with bond, but has a discretion as to amonnt of penalty. Every person (except the solicitors to the Treasury and the Duchy of Lancaster) to whom any grant of administra- tion is committed must give bond to the Judge of the Court, with (if required) one or more surety or sureties, conditioned for duly collecting, getting in, and adminis- tering, the personal estate of the deceased, the bond to be (as a rule) in a penalty of double the sworn amount of the estate (a). The Court has no power under any circumstances to dispense with the bond ; but, in fixing the amount, it has taken into account a bond which the person applying for administration has given in lunacy (b). Where adminis- tration was granted merely to enable the personal repre- sentative of the deceased to execute a formal release, the Court allowed the property to be sworn at a nominal amount (c). Where, under a misapprehension as to the value of the estate, the penalty of the bond was too large, the Court, upon the execution of a fresh bond in a penalty (a) 20 & 21 Vict. c. 77, ss. 81, 82, Appendix, p. 302. The form of bond used will be found in Ap- pendix, p. 321. The Court only grants administration to an attorney on the same terms as it would have granted it to the party himself ; and, under such circumstances, has refused to alter Vhe usual conditions of the administration bond and the terms of the ordinary administration oath {Goldsborough, in the goods of, 1 Sw. & Tr. 295). (6) Pouis, in the goods of, 34 L. J., P. & M., 65. (c) Staepoole, in the goods of, 2 Sw. & Tr. 316. GIVEN BY ADMINISTEATOnS. 89 proportioned to the actual value of the estate, ordered the original bond to be cancelled (d). Where there has been an administration durante minore cetate, and the minor on coming of age takes the administration upon himself, he is obliged to give security to the same amount as the administrator in the first instance (e). In a pressing case, where the administrator was abroad. Execution of the Court allowed another person to file the necessary than adminis- affidavit as to increase of the property, and to execute the *'"'^*°T' '° r L J ' pressing case. bond to cover the increased duty, with two sureties, on the understanding that as soon as possible the administrator should execute a similar bond (/). Where an administrator is appointed of property which Sureties to has been paid into, and is under the control of, the Court, sureties may be dispensed with {g) ; but they are required in the great majority of cases. The Court will not dis- charge the original sureties, and allow others to be substi- tuted for them (A). A husband taking administration to a deceased wife enters into a bond with one surety (i). Where a grant is made to one who is abroad, his sureties must, as a rule, be resident here (]c). Where, however, a grant had been made to a person resident without the jurisdiction, who was unable to procure justifying sureties within the jurisdiction, the Court accepted sureties resi- dent in Jersey {I), and France (m). Sureties who reside in Scotland will not generally be accepted {n), but have (d) Ooold, in (he, goods of, 3i L. (i) Noel, in the goods of, i Hagg. J., P. & M., 105. Eccl. 207. (e) Abbott v. Abbott, 2 Phillim. (k) O'Byriie, in the goods of, 1 578. Hagg. Eccl. 316. (/) Moss, in the goods of, L. R. 2 (l) Heed, in the goods of, 3 Svv. & P. Div. -275. Tr. 439. (g) Cleverly v. Gladdish, 2 Sw. (m) Hernandez, in the goods of, & Tr. 335 ; De la Farque, in the 48 L. J., P. & M., 31. goods of, ibid. 631. (») Serbert v. Shiell, 3 Sw. & Tr. (7i) StOA-Jc, in the goods of, L. E. 480. 1 P. & D. 76. 90 . THE BOND been, where the administrator was solely entitled, and there were no debts (o). Justifying The Registrars are to take care (as far as possible) that security. ^^^q sureties to administration bonds are responsible per- sons (p) : nevertheless, sureties are frequently required to justify. Justifying security is called for at the Court's discretion, according to the circumstances of each case, save that there is one general rule that in all cases where there is not a personal service of the decree on the party or parties having a prior claim to the grant justifying sureties are required (g). Where sureties are required to justify in ordinary course, the Court will not dispense with the justification, even partially, except under very special circumstances (r) : the mere fact that a receiver of the estate had been appointed by the Court of Chancery was considered to be no ground for such dispensation (s). Where administration is granted for the use and benefit of a lunatic, the sureties must justify (t). Residuaiy legatees taking administration cum testamento annexo have been called upon to give justifying security (u) ; so has a nominee of the only parties interested, to whom administration was granted under the 73rd section of the Court of Probate Act, 1857 (x) ; and a guardian appointed by infants, on the ground that their interests were only contingent (y). Sureties may be ordered to justify in respect only of the shares of persons excluded from ad- (o) Houston, in tJie goods of, 35 (t) Evelyn, Ex parte, 2 M. & K. L. J., P. & M., 41. 4; Hardstone, in the goods of, 1 ip) P. R. (Non-C), 41. Hagg. Eccl. 487 ; Burrell, in the (q) Eeporter's note to Aitlcin v. goods of, 1 Sw. & Tr. 64. i^orci, 3 Hagg. Eccl. 194; see Jl/i7M- {u) Friswell y. Moore, 3 Phillim. gan, in the goods of, 2 Rob. 108 ; 139 ; Hardstone, in tlhe goods of, ubi Maychell, in the goods of, L. R. 4 P. supra. Div. 74. (x) Holcrts, in tlie goods of, 1 S\v. (r) Howell v. Metcalfe, 2 Add. & Tr. 64. For grants under the 348. section, see ante, p. 48. (s) Jaekson v. Jackson, 35 L. J., (y) Stephenson, in the goods of, P. &M.,3. 36 L. J., P. & M., 20. GIVEN BY ADMINISTRATORS. 91 ministration (z). Lastly, though creditors are entitled to a constat of the personal estate, they have no right to litigate the quantum of security, or to require the sureties to justify (a). The Court may, on being satisfied that the condition of Assignment of any administration bond has been broken, order an assign- pose of suing ment of the same to some person to be named, and such °° '*" person, his executors and administrators, shall be entitled to sue and recover on such bond as trustee for all persons interested (6). The Court ■vvill grant a rule nisi for an assignment, if the application be bond fide, and a |;m7m facie case be made out of a breach of the condition (c) ; but may refuse to assign on a frivolous or vexatious ground (d), and, even where it grants the application, may put the applicant upon terms (e). A creditor cannot sue on the bond for his own debt, but only as a trustee for the parties interested (/). Conversion of the effects to the administrator's own use, wiiat is a whereby they are lost to the estate, is a breach of the con- conditioM*of dition to administer (g). It has been questioned whether *^6 ^"°* . . „ ., appointment tion with the will annexed are legal evidence of the will of personal re- 11 .. ,. li / \ 1 /■ preseutatlves, m ail questions respecting personalty (c) ; before you can ^^^^ witiiout ask the Court to look at the will and grant any relief upon J^^'^'^i""" it, you must prove it (d). How can this Court, asked Lord cannot grant Cottenham, take any notice of a will of which no probate [or administration] has been obtained from the [proper] Court of this country ? This Court knows nothing of any will of personalty, except such as the [proper] Court has by the probate [or administration] adjudged to be the last will (e). So it is well established that, in order to sue in any Court of this country, whether of law or equity, in respect of the personal rights or property of an intestate, the plaintiff must appear to have obtained letters of administration in the proper Court of this (a) Post, p. 124. no occasion to prove a will, to en- (6) Ante, p. 27. title a legatee to recover his legacy (c) Per Ld. Kenyon, lUx v. out of real estate (TMcfo?- v. PAi)j2JS, Netherseal, i T. R. 260. The wiU 3 Atk. 361). itself is no evidence {Pinney v. Pin- (e) Price v. Dewhurst, iM. k Cr. ney, 8 B. & C. 335). 80. Probate, however, is not con- {d) Per Jessel, M. E.., Pinney v. elusive proof that iustruments, so ]pwnt, L. E. 6 C. D. 100. There is far as they affect real estates, are of 94 NECESSITY FOE, AND NATURE AND EFFECT OF, country (/) ; for that constitutes his right to recover {g). Probate is the sentence of the Court, and decisive. Admin- istration is an original appointment by the Court ; probate is the confirmation of an appointment by the party. A man claiming property as executor, or administrator, or next of kin, should be clothed with a representative character by the only mode of which we know, — a judicial sentence supposed to be passed in open Court, confirming the appointment, or itself making the appointment Qi). But the title of several claiming as executors is well evi- denced by the probate granted to one only of the will appointing them all {i). Illustrations. Consistently with the above principles, the Court refused to pay money to a legal personal representative under a Genevese probate, though it was said that the expense of obtaining probate here would exhaust the whole sum {k). So one cannot sue here upon an Irish (J), or other foreign (m), administration, or probate {n) : a fresh grant must be obtained from the English Court. In decreeing a testamentary cliaraoter {Sume v. 362 ; Scott v. Briant, 6 N. & M. 381. iJMn&M, 6Madd. 331) jbutthepro- {k) Lasseur v. Tyrconnel, 10 bate or an office copy may be made Beav. 28. eiidenoe of the will in suits con- {I) Carter v. Crosts, Godb. 33; cerningreal estate, under the Court Whyte v. Rose, 3 Q. B. 608. Simi- of Probate Act, 1857, o. 64, Ap- larly,adefendant, arrested in Ireland pendix, p. 300 ; see Barraclough v. under a writ of iw exeat for a debt Grcenhough, L. K. 2 Q. B. 612. due to an intestate's estate, was (/) PerTiuAal, C. J., Whyte v. discharged, the plaintiff not having Base, 3 Q. B. 607. obtained administration in that {g) Hunt v. Steveiis, 3 Taunt. country {Swift v. Svnft, 1 B. & B. 113. 226). (A) Per Lord Brougham, Att.- (m) Tourton y. Flower, SF.Wms. Gen. V. JB:ope, Cr. M. & R. 5iO. The 370 ; and see Fernmidcs' Esceeutm-s' tiUe of an administrator de bonis ca., L. E. 5 Ch. 314. But it seems to wore is sufficiently proved by the have been held that colonial letters production of letters de bonis non, of administration do enable thead- without producing the letters grant- ministrator to sue here {M'Mahon ed to the original administrator v. BawUngs, 16 Sim. 429) ; sed {C'atherwood v. Chabaud, 1 B. & C. guwre. 150). (re) Att.- Gen. v. Oockerell, 1 Pr. (i) IFalters v. P/eil, Moo, & M. 179. PKOBATE AND ADMINISTRATION. 95 probate, the Court usually follows the grant of the Court l" decreeing £.,,.., . 7 r , ,-. probate, Court or the domicil, though the question how far the Court usually follows here is to be governed by the decision of that Court had, ^^domiou"" said Sir J. Nicholl, never been expressly determined, but the Court certainly would not feel inclined to depart from what had been the general practice, unless a strong case of inconvenience were brought under its consideration (o). A foreign probate would not, it has been said, be conclu- and, semiu, it sive upon the Court here, — it would be competent for go. it to hear the next of kin, and refuse the probate to the executors, and grant administration {p) ; but Sir C. Cress- well was of opinion that the foreign probate was binding on him, the Court here being auxiliary to the Court of the testator's country (g), and the House of Lords has held that, where a will was made by an Englishman, who died domiciled abroad, and the foreign Court had granted pro- bate of his will, it became the duty of the English Court of Probate, some of the testator's personal property being situated in this country, to grant ancillary probate to the foreign executors {r). And now Irish probates and letters Eesealing of of administration (s), and Scotch confirmations (f), shall on ^^"^ scotch production be sealed by the English Court as a matter of confirmations, course, and shall then have the effect of English grants. A will of personal estate lying wholly in a foreign country need not, it has been said, be proved here {u). (o) Larpent v. Scudry, 1 Hagg. 305. Eccl. 382 ; per Sir H. J. Fust, {t) 21 & 22 Vict. c. 56, s. 12, Smith, in the goods of, 2 Eob. Appendix, p. 304. Confirmations 335. See Read, in the goods of, 1 are to be likewise sealed in Dublin Hagg. Ecol. 474. Compare ante, p. {ibid. s. 13, Appendix, p. 301). 30. (u) Jauncey v. Sealey, 1 Vem. {p) Po-tlieV. C. of E., Ticyford 397. In this case it is to be ob- T. Trail, 7 Sim. 102. served that the party pleading his (q) ■ Laneiiville v. Anderson, 2 executorship was acting purely on Sw. & Tr. 24, 45. the defensive : could he have ac- (r) EnoMnv.WyliejWH. L.C.I. - tively prosecuted here his rights (s) 20 & 21 Vict. c. 79, s. 95, under the will without first obtain- Appendix, p. 303, See also 21 & ing a formal recognition of those 22 Vict. c. 95, s. 29, Appendix, p. rights from the English Court ? 96 NECESSITY FOE, AND NATURE AND EFFECT OF, Indian grants. Where a testato'r died in India, where his will was proved and his executors resided, it was held that persons desirous of suing here in respect of the residue (which had been transmitted to this country), must procure adminis- tration to be taken out here to the testator, and sue the administrator (x). A, the widow of an ofiScer who died in- testate in India, obtained there letters of administration of her husband's effects, and remitted the proceeds of such effects in bills to her agent in England. B, a creditor of the intestate, took out administration to him in this country, and brought an action against A's agent for the money in his hands, part of the intestate's estate. It was held that the Indian letters of administration prevailed over those granted in England, and that the action would lie only at the suit of A (y). Probate and Probate, Said Lord Lyndhurst, is not granted in respect administration <= ± only granted in of the assets generally, but in respect of such part of them assets within ^^ ^^^ ^* t^® testator's death within the jurisdiction of *u\i''™" ^^^ Judge by whom it is granted (z). On this principle administration taken out here does not extend to the colonies (a). But the colonial Court is bound by the administration here, and ought to grant it to the same {x) Logan v. Fairlie, 2 S. & St. personal property follows tlie per- 284 ; and see Tyler v. Bell, 2 M. & son, and the rights of a person Cr. 89. constituted in England representa- (y) Gurrie v. Sireham, 1 D. & E. tive of a party deceased, domiciled 35. But the action would have in England, are not limited to the been good, if no grant had been personal property in England, but made in India : see Whyte v. Rose, extend to such property whereyer 3 Q. B. 493, in which it was held locally situate {Sprait v. Harris, that to an action here by an ad- 4 Hagg. Eccl. 408.) Where general ministrator under an English grant probate has been granted in England it is no answer that the intestate of the will of a domiciled Scotch- died abroad, and that at the time man, the ordinary decree may be of his death the subject-matter of obtained here for administration of the action was in Ireland, being bona the personal estate, without limit- notaUUa to be administered there. ing it to the English assets [Slir- (z) Att.-Gen. v. Dimond, 1 Cr. & ling-Maxwell v. Cartwriglit, L. R. J. 369. Compare ante, p. 30. 11 C. D. 522). But Sir John Nicholl said— all (a) AtTdm v. Smiih, 2 Atk. 63. PROBATE AND ADMINISTRATION. 97 person (b) ; English probates and letters of administra- Besealiug in tion are, on production, to be sealed by the Irish (c) Scotland of and Scotch 0) Courts, and shall then have the effect of ^°f ^^^ ^^^^^ Irish grants and Scotch confirmations respectively ; and letters. English probates extend by statute to Indian Government bates extend to notes on which interest is payable in London, and to cer- certain Indian securities. tain promissory notes of the same Government (e). Probate granted to one of several executors enures for Probate to one 6X6Cuij0i' snurGS the benefit of all, and, upon the death of the executor to for benefit o£ whom probate has been granted, the other executors may * ' accept the office, and, upon doing so, fully represent the testator without further probate (/), so that executors who have not proved may join in bringing actions with one who has (g). Where A was made executor for ten years, after which B was to be executor, and A proved, and the ten years had expired, it was held that B might administer without any further probate [h). One probate is sufficient, though different executors be One probate 1 /■ T «■ CI / • sufficient, appomted for dinerent parts of the estate (i-). though Probate is conclusive as to the due execution of the will executors for according to the law of the country of domicil (/c), and as to different _ ./ \ /; properties. the appointment of executor {I). Indeed, it was long ago ^^ ^^ ^-^^^ (i) Per Ld. Mansfield, Burn v. £rcnt, 1 M. & Or. 104. Cole, Ambl. 416. (i) Went. 31. (c) 20 & 21 Vict. c. 79, s. 94, (4) Whicker v. Hume, 1 H. L. Appendix, p. 303. C. 124. (d) 21 & 22 Vict. 0. 56, s. 14, Q) Griffiths v. Hamilton, 12 Ves. Appendix, p. 304. 298. But the Court of Chancery (e) 23 Vict. c. 5, s. 1, Appendix, considered itself at liberty to hold p. 310. that the will had no further opera- (/) Cumminsy. Cummins, SJo.k, tion [Thornton v. Curling, 8 Sim. L. 64 ; Per Bayley, J., IVehsler 310). The probate act-book, and V. Spencer, 3 B. & Al. 363 ; JFat- even an unstamped copy thereof, kins T. Brent, 7 Sim. 512. have been admitted as evidence of (g) Brookes v. Stroitd, 1 Salk. 3 ; the appointment of executors, with- Webster v. Spencer, 3 B. & Al. 360 ; out the non-production of the pro- Walters v. Pfeil, M. & M. 362. bate being accounted for {Cox v. [K) Arum., Freem. K. B. 313 ; AlUnghamj Jac. 514 ; Dorreti v. see per Sir C. C. Pepys, Wathins v. Mem, 15 C. B. 142). A will thirty n 98 NECESSITY FOE, AND NATURE AND EFFECT OF, matters pro- jjg]^ ii^^^ a_ Sentence of the Spiritual Court in a cause D.ite and letters ^ are conclusive, within its jurisdiction was conclusive evidence in the point tried (m) : so a sentence of that Court determining who were the next of kin of an intestate, and granting adminis- tration accordingly, was conclusive upon the Court of Chancery (n), letters of administration being conclusive as to the propriety of the grant (o). So a probate cannot, so long as it remains unrepealed, be impeached in any Court but that which granted it, even on the grounds of forgery or fraud in the matter of the will (p). An executor, who proved a will wherein one of the legacies was forged, was held to have no remedy in equity; he ought to have proved the will with a special reservation as to that legacy (q). Illustrations. Consistently with these doctrines, payment of money to an executor who has obtained probate of a forged will is a discharge to the debtor, notwithstanding the probate be afterwards declared null (r), and payment to an adminis- trator regularly appointed exonerates the debtor, though it should turn out there is a will existing (s). Every person is bound to pay deference to a judicial act of a Court having competent jurisdiction, and to give credit to a years old, produced from the proper (o) Deveyy. Thornton, 9 Ha. 222. custody, proves itself (Man v. (p) Allen v. Dundas, 3 T. B. Mickctts, 7 Beav. 93), attesting wit- 125 ; Att.-Gcn. v. Ryder, 2 Ch. Cas. nesses being presumed, after the 178 ; Archer v. Mosse, 2 Vern. 8 ; lapse of that time, to be dead [per Meluish v. Milton, L. E. 3 C. D. 27; Lord Campbell, Doe v. Michael, 15 but see Nelson v. Oldficld, 2 Vern. Jur. 679) : the time is to be com- 76. It may, however, be shown puted from the date of the will (not that the probate is a forgery {Mar- from the death of the testator) to riot v. Marriot, 1 Str. 671). the time of its production (Man v. (q) Plume v. Beale, 1 P. "Wms. Richetts). 388. As to partial probate, see (m) Blackham's ca., 1 Salk. 290. ante, p. 23. (n) Bouchier v. Taylor, i Bro. (r) Allen v. Dwndas, 3 T. E. P. C. 708 ; Barrs v. Jaelcson, 1 125. Phillips, 582 ; Eanlcin v. Turner, (s) Per Crowder, J., Prosser v. L. E. 10 Ch. D. 372 ; but consider Wagner, 1 C. B., N. S., 294. See Long 1. Wakeling, 1 Beav. 400. post, p. 105. PROBATE AND ADMINISTRATION. 99 probate until it be vacated (t). If there be a rightful executor, and he does not come forward, he is guilty of laches. Suppose such an one were to lie by for a number of years, and in the meantime all the debts were to be collected by another person, who had obtained a probate as executor, those payments ought to be protected ; for during all that time the debtors could not controvert his authority, and it is admitted that, if actions had been brought in such cases, the debtors could not have made any defence (u). The Court refused to stay proceedings in an action by an administrator, upon a suggestion that there was a will which the executrix had intimated her intention of shortly proving {v) ; and semble, there should be no stay, even if such a suggestion were proved (iv). Scotch executors, whose confirmation has been sealed in England (x), have a good title to sue here, notwithstanding the pendency of proceedings in Scotland for a reduction of the probate (y). During the subsistence of any grant of administration no person has power to act as executor qiwad the property comprised in such grant (z). Although (as stated above) sentence of the proper Court Semik, they of Probate in a cause within its jurisdiction is conclusive ^[^g"^* ^'J'g evidence in the point tried, it is otherwise of a collateral collateral » 1 . . . matters. matter : therefore letters oi administration to a woman granted to A is no proof that she was not in fact the' wife of B (a) ; indeed, letters of administration are not, it has been said, even primd facie evidence that the person of whose effects they have been granted is dead (&), but a (i) Per Aslilinrst, J., Alien v. {y) Oummingv. Fraser, 28 Benv. Dundas, 3 T. E. 129. 614. (u) Per Buller, J„ ibid. 131. As (s) 20 & 21 Vict. c. 77, s. 75, to laches, compare ante, p. 33. Appendix, p. 301. (d) Prosser v. Wagner, 1 C. B. [a) Blackham's ca. , 1 Salk. 290. N. S., 289. (6) Thomjjson v. Donaldson, 3 (w) Per "Williams, J. , ihid. 295. Esp. 63 ; Moons v. De BernaUs, 1 (x) Anie, J). 97. Euss. 306. On the other hand, they n 2 100 NECESSITY FOR, AND NATURE AND EFFECT OF, probate has, under the circumstances of the ease, been admitted as proof of the testator's death (c). Executors and j£ ^^ administrator shows that he sues for a greater administrators cannot main- value than is covered by the ad valorem stamp of his ing°m respect letters of administration, it was decided in Hunt v. amomts than Stevens {d) that he cannot recover, although he sues for a are covered by doubtful claim; nor Can he even obtain a decree for the stamps on their accounts and inquiries (e). Hunt v. Stevens goes the gran s. length of showing that, not having the proper stamp, the administrator has no means of proving his representative character at all, and that the instrument has no more effect than if it had not been stamped at all (/). The Courts say, It is true you are clothed with the representa- tive character, but it is only to the extent to which you have paid the duty ; you cannot ask for more than the amount ; if you do, you are suing in a character which is not conferred upon you (g). Therefore, a party suing as executor or administrator cannot sustain proceedings to recover (h), or obtain a stop order in respect of (i), a larger sum than that upon which probate duty has been paid. But it is not always necessary that the proper duty should have been paid by an executor at the time of the first application to the Court ; it may be subsequently paid, have been held to te suiEcient proof Butler, 2 Phillim. 89.) Qimre, of intestacy ( Tourtoii v. Flower, 3 whether the Crown can recover out P. Wms. 370), and, since intestacy of the assets a sum which it has, cannot be predicated of a man until thi'ough the fraud of the personal he is dead, this case would seem to representative, returned to him for be by necessary implication a de- an alleged excess of duty paid (see cision that letters of administration Hicks v. Keat, 3 Beav. 141). do prove death. (e) Howard v. Prince, 10 Beav. (c) FrencliY. French, lT>ic^. 268. 312. And see Lloyd v. Finlayson, 2 Esp. (/) Per Ld. Brougham, Att.-Gen. 564. T. Ho2}e, 1 Cr. M. & R. 542. {d) 3 Taunt. 113 ; and see Nail {g) Per eundem, ibid. 553. V. Punter, 5 Sim. 663. He is (A) Per Wigram, V.-C, ■T'racs v. bound to take out the grant to the Howells, 2 Ha. 342. extent of the sum he expects to (i) Christiany. HevereuXili^iim. receive (per Sir J. NichoU, Butler v. 264. PEOBATE AND ADMINISTEATION. iOl and the probate is then good by relation (7c) ; but it will not suffice, it has been held, to sue out new letters of administration on a larger stamp, after judgment has been obtained (I). {k) Sogers r. James, 7 Taunt. 147 ; and see Christiany. Devereux, Jones V. Howdls, and Howard v. Prince, uhi supra. [1) Hunt V. Stevens, uhi supra. Where any person, on applying for probate or administration, shaD have under-estimated the estate of the deceased, and shall in consequence have paid too little stamp duty thereon, the probate or letters of ad- ministration shall be duly stamped on payment of the sum wanting to make up the proper duty, if the application be made within six mouths after the true value of the estate shall be ascertained, and it shall appear that the payment of too little duty was due to mistake or misapprehension. In other cases pecuniary penalties are incurred. In the case of an administration. the administrator must first give the proper security to the Coittt (55 Geo. 3, c. 184, ss. 41 — 43, Appen- dix, pp. 287, 288). The same sta- tute also enacts that, if too high a stamp duty has been paid on pro- bate or administration, the excess may be returned (ss. 40, 51, Ap- pendix, pp. 286, 290), and that the Commissioners may in certain cases, and on certain conditions, give credit for duty (ss. 45 — 47, Appendix, pp. 288, 289), and farther makes pro- vision for the case of letters of administration de bonis nmi being taken out before payment of the duty for which credit is given (s. 49, Appendix, p. 290). As to sum- mary proceedings for payment of probate duty, see 28 & 29 Vict., c. 104, s. 57, Appendix, p. 316. 102 KE VOCATION OF CHAPTER XVII. REVOCATION OF GRANTS OF PROBATE AND ADMINISTRATION. A. When and how Grants will he Revolced. Revocation on The most obvious instance of revocation of a grant is of appea . course where the grant is successfully appealed. Probate will also be revoked where an executor, who has proved in common form, fails, when called upon, to prove per testes (a). Revocation on It is Cause of reversal (i.e. of revocation) of a probate, if OT^^stake"^^^ there be falsehood in the proof, were it communi formd or by examination of witnesses, or if proof can be made of revocation of the will or of the making of one later (h). And it is now agreed that the [Court] may revoke or set aside an administration granted to the next of kin, and that for several causes, as if they forge or suppress a will, if they come too hastily to take out administration within the fourteen days, if they go beyond sea (c), become non compos {d), or if there be a residuary legatee, and may in general for any fraud used in obtaining it ; for it would be absurd to allow a Court jurisdiction herein, and at the same time deprive them of the liberty of vacating and setting aside an act of their own, which was obtained from them by deceit and imposition (e) ; it is incident to every {a) See ante, p. 28. (d) See further ante, p. 75. {i) "Went. Ill, 112. (e) Bac. Abr. Exor. (E.) 12. (c) See ante, p. 72. PROBATE AND ADMINISTRATION. 103 Court to rectify mistakes it was led into by the misrepre- sentation of parties (/), as, e.g., where it was represented to the Court- that an intestate left no widow, whereas he did leave one {g), or where the applicant for administra- tion falsely swore that she was the widow {h). So, where probate had been granted in the erroneous belief that the testator was dead, it was revoked, as granted in error (i). Probate to a married woman living apart from her husband has been revoked, she not having intermeddled, on the ground of difficulties raised by the Bank of England on a transfer of stock (/c). But probate, having been granted by consent in common form, cannot afterwards be revoked on the allegation that the conditions on which such con- sent was given have not been complied with, there being no proof of fraud or circumvention practised either upon the Court or the parties (l). The granting an administration pending a caveat is a or of having cause to revoke it (m) ; such a revocation has been decreed, pendiS'cawae even where the caveat had expired {n). It was held, before the Court of Probate Act, 1857, that, where the Court has granted administration according to the statute {i.e. of Hen. VIII.), it could not revoke it with- out cause, because the gi-antee had an interest in the goods by the statute (o) ; but, if the latter Act is con- trolled and modified by the 73rd section of the former (p), this reasoning would not now apply. But, even in a case or on ground covered by the statute of Hen. VIII., it was considered " "°^''^' (/) Harrison v. Weldon, 2 Str. {I) Nichol v. Askew, 2 Moo. P. 911. C. 88. (g) Ibid. (m) Offiey r. Best, 1 Lev. 186. (li) LangUy, in the goods of, 2 [n) TrimUstovm y. Trimlestown, Rob. 407. 3 Hagg-. Ecol. 243. (i) Napier, in (he goods of, 1 (o) Of/ley v. Best, ubi supra. The PMUiui. SB. statute will be found in Appendix, {Jc) MeeJc v. Curtris, 1 Hagg. p. 274. Eccl. 129 ; and see Wilkinson, in (p) See anie, p. 49. the goods of, 3 Phillim. 96. 104 EEVOCATION OF Revocation of grants to creditors. Grants not revoked ■without good cause. Eevooation of limited grant to limited owner, on assignment of interest. Qy., wliether a second grant j)er se revokes an earlier. that the administration might be revoked, as if the admi- nistrator became lunatic, &c., whereby he was disabled to administer {q). Where administration had been granted to a creditor, and no application had been made at the time the grant issued that he should pay the debts rateably, the Court would not revoke the grant subsequently, in order to com- pel the administrator to give up his right of retainer (r). But administration which had been granted to a creditor, who had settled his own debt and gone away, was re- voked (s). Where a general grant of administration is properly made, the practice is against revoking it, even with the consent of the grantee, unless he has become incapable by the act of God, mere age or infirmity not being suffi- cient grounds (t). Where a limited administration had been granted in the regular way to A on the citation of B, the Court refused, after a lapse of eight years, to revoke the grant on the allegation that B had been ignorant of his rights (u). And, generally, the Court will not revoke an administration which has been outstanding for a con- siderable time, unless weighty reasons be shown (x). Where a limited administration had been granted to one who had a limited interest in certain property, and he had assigned that interest, the administration was re- voked, and a fresh grant, similarly limited, was made to the assignee (y). It seems uncertain whether a second grant is per se a revocation of an earlier one (z) ; but, inasmuch as it is the (?) Offiey V. Best, 1 Lev. 186. And see aiite, p. 75. (r) Brackenbury, in the goods of, L. E. 2 P. Div. 272. (s) JenMiis, in the goods of, 3 Phillim. 33. {t) Morris, in the goods of , 2 Sw. & Tr. 360. See ante, n. (c). (tt) Zopes Y. Hartley, 7 No. of Cas. Suppl 31. (x) Koster v. Sapte, 1 Curt. 691. {y) Ferricr, in the goods of, 1 Hagg. Ecel. 241. (s) Nevmian v. Beaumond, Owen, 50; Pratt Y. Stocke, Cro. Eliz. 315. PROBATE AND ADMINISTRATION. 105 practice not to issue a second grant of probate or adminis- tration until the former grant has been called in (a), the point is more of speculative than of practical interest. An executor who has proved a will cannot take steps Executor may not take steps to have the probate revoked. He cannot make himself to have his the instrument of the destruction of a will which it is his ^^"^ ^'"° ^ ' duty to uphold (b). But an administrator does not owe a but adminis- ... 1 . . trator may. similar duty to his letters of administration ; the condition of his bond (c) implies that, if he should discover that the deceased left a will, he ought to inform the Court of the fact, and take the necessary steps to have the grant to himself revoked {d). B. The Effect of Revocation. It has been already stated that bond fide payments to ^ t° payment . . made to execu- executors or administrators are good discbarges to the tors or admin- parties making them, though the probate or administra- reTokedgrants'' tion should be afterwards repealed (e). And now it is enacted that all payments made bond fide to executors or administrators under any revoked probates or adminis- trations are to be valid (/). Executors and administrators, who have acted under Eeimburse- . . . ment of such any such revoked instrument, may reimburse themselves executors and in respect of any proper payments they have made {g). ^ mimstratois. (a) Toller, 75, 126. But in some {d) Compare Elme v. Da Costa, few instances (e. g., Langley, in the cited ante, p. 48. goods of, 2 Rob. 407 ; Sparke, in («) Ante, p. 98 ; see further the goods of, 17 Jur. 812) the Court, Stephens v. Langley, Finch, 40 ; though recognising the difficulty of per Best, J., Woolley v. Clarke, 5 so doing, has, under special circum- B. & Al. 746. stances, permitted two administra- (/) 20 & 21 Vict. c. 77, s. 77, tions to be out together. Appendix, p. 301. But payment (J) Chamberlain, in the goods of, to a person whose name does not L. R. 1 P. & D. 316. The executor agree with that in the probate or of an executor is in the same posi- letters of administration is laches, tion in this respect as the original and will afford no protection (/oHi^e, executor (iJii. ). ex parte, 8 Beav. 168). (c) Appendix, p. 321. {g) Ibid. 106 EEVOCATION OF PROBATE AND ADMINISTKATION. Indemnity to j^n persons and corporations, who make or permit to payors and '■ '^ transferors. be made any payment or transfer bond fide upon any probate or administration, are indemnified and protected by statute, notwithstanding any invalidity in the grant (h). As to pro- Kevocation of temporary grants is not to prejudice legal against tem-*"^ proceedings commenced before the revocation by or against pora,Ty ad- a,ny administrator thereby appointed (i). ministrators •' j rx \ / •whose grant is If administration be granted to a creditor, and after As to validit ^^ps^^sd at the suit of a next of kin, he shall retain of acts of against the rightful administrator, and his disposal of the representatiTC ,. , . . ■whose grant is goods, even pending the citation, till sentence of appeal, '''"'^'^- stands good (k). Where an administration is repealed because it should be granted to another, in such case all acts of the first administrator stand good; but, subject as above stated, it would seem that, if it is repealed because there is a lawful executor, then all his acts are void (l). One -who sues Where there is a revocation, the administrator will tion^Hh^^*'^^' ^°^ S®* ^^^ ^^^^^ °^ ^^ administration action instituted knowledge 'by Jj^qj -^yith knowledge that another person claimed to claims to administer: having that knowledge, he proceeds suo administer • 7 / \ does so at his perWUiO (m). peril as to (70 20 & 21 Vict, u. 77, =. 78, Salk. 38. Appendix, p. 301. (l) Anon., 3 Salk. 22. (j) Ibid,, a. 76, Appendix, p. (m) ffouseinan v. Houseman, L. 301. E. 1 C. D. 535. {Ic) BlacTcborough v. Davis, 1 costs. INTEREST BY EXECUTORS AND ADMINISTRATORS. 107 CHAPTER XVIII. THE INTEREST TAKEN BY EXECUTORS AND ADMINISTRA- TORS IN THE ESTATE OF THE DECEASED. A. As to Ohoses in Possession. The naming of A and B executors is by implication Appointment °, of executors is a gift or donation to them of all the goods and chattels, a gift to them credits and personal estate, of the testator (a). An admi- °ny_ ^^^°^' nistrator has as fixed an interest as an executor (b), and. Administrator on the renunciation of executors, the personal estate vests interest. in the administrator cum testamento annexe (c). The vesting of a term in the lessee's personal representative is, therefore, a conclusion of law {d) ; an executor can- not waive for the term only; for he must renounce the executorship in toto, or not at all (e). (a) Went. 10. But the estate of to, and understood of, adminis- a bankrupt does not vest in his trators." executor until the bankruptcy has (c) Wyman v. Carter, L. R. 12 been annulled [Ex parte Goodwin, Eq. 309. 1 Atk. 100). On the death of a ' (d) Aclcland v. Pring, 2 M. & Gr. sole trustee of personal estate, the 937 ; and see Doe v. Porter, 3 T. R., trust property vests, of course, in 13, and Stevenson y. Mayor, &e. , of his legal personal representatives ; Liverpool, L. R. 10 Q. B. 81. but they are justified in refusing Alienation by death works no for- to act in the trusts, and will have feiture under a clause restraining their costs of proceedings to appoint assignment (Seers v. Sitid, 1 yes. new trustees {Legg v. Mackrell, 2 jr. 294). "Where a testator purports De G. F. & J. 551). to assign personal property, but (6) Per Holt, C.J., Blachhorough such assignment is in law ineffec- V. Davis, 1 P. Wms. 43. So "Went- tual, the legal interest therein is, worth (p. 463), after discoursing on his death, in his executors. (See concerning executors, says, "that Searlex. Law, 15 Sim. 95 ; Dillon which in the points of having and v. Coppin, 4 M. & Cr. 647. doing is before set and showed (c) Billinghurst v. Speerman, 1 touching executors may be applied Salk. 297 ; Bolton v. Cannon, 1 108 INTEREST TAKEN BY Estate of bare trustee's re- presentatives. Certain chat- tels are exceptional, and pass to the heir. Property of "which deceased was joint owner does not devolve on his representa- tives, except partnership property. By the Land Transfer Act, upon the death of a bare trustee intestate as to any corporeal or incorporeal here- ditament not registered under the Act, of ■which such trustee was seised in fee simple, such hereditament shall vest like a chattel real in the legal personal representative from time to time of such trustee (/). There are, however, some kinds of choses in possession which form exceptions to the general rule ; these consist of certain chattels so closely connected with land that they partake of its nature, pass along with it, whenever it is disposed of, and descend along with it, when undisposed of, to the heir of the deceased owner. The chattels which thus form exceptions consist principally of title-deeds, heir-looms, fixtures, chattels vegetable, and animals fercB naturce (g). Again, property which the deceased held jointly with another does not, as a rule, descend to his representatives. Survivorship holdeth place regularly, as well between joint tenants of goods and chattels in possession or in right, as joint tenants of inheritance or freehold (h). But an exception is to be made of two joint merchants : for the wares, merchandises, debts, or duties, that they have as joint merchants or partners, shall not survive, but shall go to the executors of him that deceaseth ; and this is per legem mercatoriam, which is part of the laws of this realm, for the advancement and continuance of commerce and trade, which is pro bono publico ; for the rule is that jus accrescendi inter mercatores pro beneficio commercii Vent. 271 ; but see Went. 244, and jper Macdonald, C.B., JFili:inso7i y, Oawood, 3 Anstr. 909. Of course, lie may surrender a lease which is a damnosa Ticercdiias, and the mere offer to do so is some protection to him in an action against him on the covenants ; see Ecid v. Ld. Ten- ierdcn, 4 Tyr. 118, 120. (/) 38 & 39 Vict. c. 87, s. 48. See CJiristie v. Omngtmi, L. E. 1 C. D. 279 ; Morgan v. Swansea Urban Sanitary Authority ,Jj. E. 9C.D. 582. (gr) Wms. P. P. 10. (h) Co. Litt. 182 a. ; and see Harris v. Fergusson, 16 Sim. 308. EXECUTORS AND ADMINISTEATOES. 109 locum non hahet (i). A partnership is determined by tlie death of a partner, in which case the law said that the property survived to the others; it survives as to the legal title in many cases, but not as to the beneficial in- terest (k) : a deceased partner having contracted in his own name for a lease of premises to be employed in the partnership business, the Court refused to restrain the landlord from granting a lease to his representatives, but restrained the latter from disposing of the lease, when granted, except for partnership purposes, and with the consent of the surviving partner {l). Again, the good-will of a partnership business does not, on the death of one partner, survive beneficially to the others ; when it has any value, a due proportion belongs to the deceased partner (m). Where several contractors jointly contracted to build a Profits of joint harbour, the building of which would take at least five years, and soon afterwards one of them died, it was held that his estate was entitled to share in the profits of the (i) Co. Litt. 182a ; and see &;x a settled rule in banlcruptcy that V. Collector, Ac. at Liverpool, 2 M. a partner cannot prove under a, & S. 223. The rule extends, it joint commission against his firm would seem, to traders generally ; in competition with the creditors of see Hamond T. Jethro, 2 Brownl. & the firm ; and this rule applies in a G. 99. case where the partner had died be- [k) Per Lord Eldon, Crawshay v. fore the bankruptcy, his share had Collins, 15 Ves. 227. The surviv- been taken by the other partners ing partners cannot compel the exe- under the provisions of the partner- cutor of the deceased partner to take ship deed, and the money due in the calculated value of his share, respect of it had not been paid to without a contract for it with the his executors at the time of the testator : the executor has a right to bankruptcy {Nanson v. Gordon, L. have the value ascertained in the R. 1 App. Cas. 195 ; compare Ex way in which it can be best ascer- parte Westcott, L. R. 9 Ch. 626). tained, by sale (Hid. ; Featherston- (I) Alder v. Fouracre, 3 Sw. 489. Jiaugh V. Fenwick, 17 Ves. 298. See (m) Smith v. Everett, 27 Beav. Brown v. Gellatly, 31 Beav. 243). 446. But the surviving partners, Where surviving partners insist on though executors of the deceased continuing the partnership with partner, have still the right to carry the assets of a deceased partner, on the same business and at the same the representatives of the latter are place {Davies v. Hodgson, 25 Beav. entitled to a receiver {Madgwick 177 ; Smith v. Everett). V. Wimble, 6 Beav. 495). It is 110 INTEREST TAKEN BY causd. contract, and that those profits were to be the actual profits, ascertained when the contract was completed, and not by valuation or by sale of the contract (n). Executory Executors take an executory interest, where they are estate. directed by their testators to sell their tenements, though they have no kind of ownership (o). Donatio mortis A donatio moHis causd is not to be possessed by the executor. Though bad against creditors, and therefore within the reach of creditors, it does not regularly fall within an administration, or require any act by the exe- cutor to constitute a title in the donee (p) ; it is claimed against, and not from, the executor (q). In case of a corporation sole, no chattels, either in action or possession, shall go in succession (but the executors or administrators of the corporation shall have them), no more than the heir of a private man can have them ; for suc- cession in a body politic is inheritance in case of a body private (r). It may here be remarked that contingent and executory interests, whether in real or personal estate, are transmis- sible to the representative of a party dying before the contingency upon which they depend takes effect. The cases establish the principle that such interests, though they do not vest in possession, may vest in right, so as to be transmissible to executors or administrators. But it is Chattels of a corDoration Contingent in- terests trans- missible. (n) M'Lean v. Kennard, L. R. 9 Ch. 336. (o) See "Wms. R. P. 312. A bare authority coupled with a, trust, as in the case of executors having power to sell land, cannot be exe- cuted by attorney {Oomie's ca., 9 Co., 75 b). If there he a devise that executors shall sell with tho assent of A, and A die before assent, the power of the executors Is deter- mined (-Daume v. .<4?iTOts, Dyer, 219 a). (p) Per Ld. Loughborough, Tate V. Eil'oert, 2 Ves. jr. 120 ; and see Thompson v. Hodgson, 2 Str. 777. (q) Per Sir J. Leach, Duffield v. Elwcs, 1 Sim. & St. Ui. (r) Fulwood's ca., 4 Co. 65 a,. Accordingly it was held that a bond to the Ordinary by an administrator passed, on the Ordinary's death, to his persoual representative, and not to his successor {Rowley y' KnigU, 14 Q. B. 240); but see now the form of bond at present in use (Ap- pendix, p. 321). EXECUTORS AND ADMINISTEATOES. Ill obvious that, where the contingency upon which the in- terest depends is the endurance of the life of the party entitled to it till a particular period, the interest itself will be extinguished by the death of the party before the period arrives, and will not be transmissible to his exe^ cutors or administrators (s). E. As to Ghoses in Action. (1.) Accruing in the Lifetime of the Deceased. By the law all personalties and rights to the personalties RigMs to . . 11 I ■ personalty are given to the executors or administrators, as all realties vest in execu- and rights to realties are given to the heir (t). ministrators. Executors were long ago given the same action of ac- Actions of count as the testator might have had, if he had lived, by ^^^^ ^^^ a statute (u) which was subsequently extended to execu- tors of executors (x) ; and it was shortly afterwards enacted that administrators of an intestate should have an action to demand and recover as executors the debts due to the deceased (y). If a man enters into an obligation to pay a sum of money to another or his heirs, or to another, his heirs, executors, or administrators, his executors or admi- nistrators, and not his heirs, shall have it (z). The executors of a deceased shareholder in a company Right to pay- are entitled to be paid by the company whatever is pay- ™'^°' ^^ .able by it in respect of the shares of the deceased at the time of his death, and also whatever becomes payable (s) "Wms. Exors., 895, 897. far so ever in degree remote, stands {t) Devon v. PawUtt, Vin. Abr. as to the points both of being, Exors., Q. 27. haTiug, and doing, in the same state {u) 13 Edw. 1, stat. 1, o. 23, Ap- and plight as the first and immediate pendix, p 273. executor (Went. 462) ; see anle, {x). 25 Edw. 3, Stat. 5, c. 5, p. 107, ii. (J). Appendix, p. 273. In all oases, [y) 31 Edw. 3, stat. 1, c. 11, Ap- except of special trust or authority pendix, p. 274. See Barker v. without the office of executorship, Talcot, cited ^os<, p. 116. the executor of an executor, how (2) Devon y. Pawlett, uU supra. 112 INTEREST TAKEN BY Actions of trespass, trover, and in respect of those shares whilst they form part of his estate (a) ; and executors who are contributories may petition to wind up a company (6). Executors have, by an old statute, actions of trespass done to the testator's estate (c), and so have executors of quareimpedit. executors (c^). The statute by which such actions were bestowed upon executors hath always been expounded largely (e), and administrators have always been held to be within the equity of it (/). Moreover, it being a re- medial law, whenever there is a matter of property in question, it is brought within the statute {g) : actions of trover (h), and quare impedit for a next avoidance (i), were long ago held to be within its equity. Actions against Actions have lain by an executor against a sheriff for s en , a> 1 . g^ £g^]gg j-gtuj-^ (/(j^^ qj. g, non-retum (l), in the lifetime of the testator ; also against a bailiff for wrongful removal of goods (m). So too he may have an action for not setting out tithes due to the testator (n) ; also for a fine set by the testator, for the fine, being set, does not depend on the inheritance, but is a fruit fallen (o). titho' payer, and copyholder. (a) Lindley, p. 1048. (6) ife Norvnch Yarn Company, 12 Beav. 366. (c) 4 Edw. 3, c. 7, Appendix, p. 273. (d) 25 Edw. 3, stat. 5, u. S, Ap- pendix, p. 273. (e) Per curiam, Emerson r. Emer- son, 1 Vent. 187. (/) Smith V. Colgay, Cro. Eliz. 384 ; per Tindal, C. J., Tharpe v. Siahmod, 5 M. & Gr. 760. (g) Per Powell, J., Beninck v. Andrews, 2 Ld. Eaym. 974 ; see per Lord Ellenborougli, W'dson v. KnuUey, 1 East, 134. (A) Rutland v. Rutland, Cro. Eliz. 377. (i) Smalwood v. Bp. of Coventry, ibid. 207. (k) Williams v. Gary, 4 Mod. 403. (I) Spurstow T. Prince, Cro. Car. 297. (m) Palgrave v. Windham, 1 Str. 212 ; Chace v. Chace, Eortesc. 359. An administrator, it was held, must come before execution exe- cuted, because fictions in law by relation would not divest an interest vested in a stranger ( Waring v. Duherry, Eortesc. 360). (m) Moreron's ca., 1 Vent. 30; and see Holt v. Bradford, 1 Sid. 88. But the action will not lie for such tithes as the deceased never de- manded (Cart V. Sodgkin, 3 Swaust. 160). (o) Shuttleworth v. Garnet, 3 Lev. 261. EXECUTORS AND ADMINISTRATORS. 113 If one covenant to make a lease to J. S. and his assigns Specific per- 1 • 1 -r n I- T 1 f 1 • 1 fonnsmce of by such a time, and J. S. dieth before that time and contracts, and before the lease is made, it must be made to his exe- tre^cfes. °^ cutors(^); and, if A contracts with B to build him a house, and B dies while the building is in progress, and A refuses to go on, an action will lie against him at the suit of B's representatives (q). But the executor of a mortgagee of real estate cannot bring an action against the mortgagor for breach of his covenant for title, without showing some special damage to the testator in his life- time, or that the plaintiff claims some interest in the premises (r). It has been a sort of maxim in the law, said Lord EUenborough, that an executor so far represents his testator as to be entitled to maintain an action in respect of all personal contracts made with the testator, and broken in his lifetime ; but from the authorities cited it should seem that, in contracts .'relatifig,,to. the freehold, the executor does not represent hia. testator, quite,, to. that extent (s). The distinction which attends real and per- sonal covenants, with respect to the course in which they go to the representatives of the person with whom the covenants are made, is, said Le Blanc, J., a clear one : real covenants run with the land, and either go to the assignee of the land or descend to the heir, and must be taken advantage of by him alone ; but personal covenants must be sued for by the executor (t). The latter may sue the lessee of his testator for the breach, committed in testator's lifetime, of a covenant not to fell, &c., trees ex- cepted out of the demise, the covenant here being colla- teral, and not running with the land (w). And, where a {p) Chapman v. Dalton, Plowd. (r) Kingdon v. Nottle, 1 M. & S. 236 ; "Went. 188, 215 ; Hitshand v. 355. FoUard, cited 2 P. Wms. 467. See (s) Ibid. 362. too Anon., 1 Leon. 316. (i!) md. 365. (g) Per Lord Romilly, Cooper v. (u) Raymond v. FUch, 2 Or. M. Jarman, L. E. 3 Eq. 102. & E. 588, 599. 114 INTEREST TAKEN BY vendor omits to make out a good title within the stipu- lated time, and the purchaser dies, the latter's executor may sue for damage incurred by loss of interest on the deposit-money and the expense of investigating the title (x). And clearly the executor of a lessor, tenant for life, may recover for a breach of a covenant to repair, com- mitted in testator's lifetime, without averring damage to his personal estate (y). Again, an administrator was allowed an action against a solicitor for negligence in the conduct of the testator's business, whereby his personal estate was injured (z). And, where a passenger on a rail- way was injured by an accident, and after an interval died in consequence, it was held that (in addition to all rights conferred by the Act next mentioned) his executor might recover in an action for breach of contract against the railway company the damage to his personal estate arising in his lifetime from medical expenses and loss occasioned by his inability to attend to business (a). By Lord Camp- bell's Act, an executor or administrator may, for the benefit of the near relatives of one whose death has been caused by another's neglect or default, maintain an action for damages against the culpable party (6). But an adminis- trator cannot have an action for a breach of promise of marriage to the intestate, at least where there is no special damage (c). Executors and administrators, said Lord EUenborough, are the representatives of the temporal pro- (x) Orme v. Brougliton, 10 Bing. their testator {see Cruse x. Paine, 533. L. E. 4 Ch. 441). (y) Pdeketts v. Weaver, 12 M. & (i) 9 & 10 Vict. ^. 93, ss. 1-5, W. 718. Appendix, pp. 294, 295. The Act («) KniglUs v. QuMrles, 2 B. & B. extends to a case where the deceased 102. was an alien, and at the time of (a) Bradshaw t. Lancashire, &c., the cause of death was on the high Company, L. R. 10 0. P. 189. seas {The Explorer, L. R, 3 A. & E. Executors may also sue for an in- 289). demnity against the results of a (c) Chamberlain v. WilHamson hreach of contract entered into with 2 M, & S. 408. EXECUTOES AND ADMINISTRATORS. 115 perty, that ' is the dehts and goods, of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate. But in that case the special damage ought to be stated on the record, otherwise the Court cannot intend it. If this action be maintainable, then every action founded on an implied promise to the testator, where the damage subsists in the previous personal suffering of the testator, would be also maintainable by the executor or administrator. All in- juries affecting the life or health of the deceased, all such as arise out of the unskilfulness of medical practitioners, the imprisonment of the party brought on by the negli- gence of his solicitor, all these would be breaches of the implied promise by the persons employed to exhibit a proper portion of skill and attention (d). Generally speaking, contracts bind the executor or ad- Contraota bind ministrator, though not named. Where, however, personal administrators, considerations are of the foundation of the contract, as in *a™fj emept cases of principal and agent, and master and servant, the ""^^''^ founded . on personal death of either party puts an end to the relation, and, in considerations. respect of service after the death, the contract is dissolved, unless there be a stipulation, express or implied, to the contrary (e). So, on the death of an apprentice's master during the term of apprenticeship, the agreement for ser- vice on the part of the apprentice is generally at an end (/) ; but the case may be otherwise where the personal repre- sentative carries on the same business as the deceased (g). {d) CJiamierlain v. Williamson, damages belonged to her estate 2 M. & S. 416. It may be noted {Noble v. Cass, 2 Sim. 343). here that, where there was a devise (e) Fer Willes, J. , Farrow v. to trustees upon trust for A during Wilson, L. R. 4 C. P. 746. her life, and after her death to B (/) Baxter v. Burjield, 2 Str. in fee, and the trustees recovered 1266 ; and see the preamble of 32 in A's lifetime damages for breach Geo. 3, c. 57. of covenants in a lease granted by {g) See Cooper v. Simmons, 7 H. the testator, and then subsisting, & N. 707. and A died, it was held that the I 2 116 INTEREST TAKEN BY Actions for damage to estate. Actions and distvess for reui. Executors and. administrators have (subject to certain limitations) a statutory power of bringing actions for in- jury to the real estate of the deceased (Ji). And, where an action was brought to recover from the promoters of a public company the price paid by the plaintiff for shares which had proved valueless, and after judgment and pend- ing an appeal to the House of Lords the plaintiff died, it was held that his interest survived, and was capable of transmission, to his personal representatives (i). They have a further statutory power of suing or dis- training for arrears of rent due to the deceased (Jc). Where, however, A was indebted to B for rent, and B died, and C took out administration to him, and died, having taken a promissory note from A, it was held that the note was an alteration of the property, and that the rent belonged to the personal representatives of C, and not to the admi- nistrator de bonis non of B (l). Where an administrator makes an underlease of the intestate's term (m), reserving rent to himself, his executors, &c., and dies, his executor, and not the administrator de bonis non, shall have the rent, and shall be chargeable with it as assets, in the nature of an executor de son tort; but, semble, he cannot distrain for it {n). his wife may have the like remedies for rent due in her lifetime. Exe- cutors of tenants for life {Hool y. Bsll, 1 Ld. Eaym. 172), and exe- cutors of executors (Went. 462), are within the statute ; but, semble, it does not apply to copyhold rents (AppUton V. Doily, Yelv. 135 ; but see Gilb. Ten. 186). As to distraint, see further 3 & 4 "Wm. 4, u. 42, s.". 37, 38, Appendix, p. 292. {I) Barker v. Talcet, 1 Vem. 47.^ (in) As to the power to lease, see posl, p. 140. («) JDriui V. Baylie, Freem. K. B. 402. (A) 3 & 4 Wm. 4, c. 42, s. 2, Ap- pendix, p. 291. As to an action by the executors of a termor for in- jury done to their testator's premises by a riotous assemblage, see Adam T. InlidbUar.ts of Brisiol, 2 A. & E. 389. {i) Twycross v. Grant, L. R. 4 C. P. D. 40. (A) 32 Hen. 8, c. 37, s. 1, Ap- pendix, p. 275. See OgneVs ca., 4 Co. 48 b; Co. Litt. 162 b; Lambert v. Aiislin, Cro. Eliz. 332; Lord Fairfax v. Lord Derby, 2 Vern. 61?. By the 3rd sec. of the same statute, the executors or adminis- trators of a man entitled in right of EXECUTORS AND ADMINISTRATORS. 117 By the Apportionment Act, 1870 (o), all rents, an- ■^PP''J*gi°^"^6nt nuities (p), dividends, and other periodical payments in the nature of income (except annual sums made payable in policies of assurance of any description {q) ), are, in the absence of express stipulation to the contrary {r), to be considered as accruing from day to day, and apportionable in respect of time (s), the apportioned part to be payable when the next entire portion shall have become due (t) ; and 'appropriate remedies are given for recovering over the apportioned parts {u). The object of the statute was to obliterate technical distinctions between different kinds of fixed income recurring from time to time at stated periods, upon which, on account of their nature, those in receipt of them would rely for their maintenance and their ordinary arrangements in life. The Court would be sorry to put any narrow construction upon the Act which would tend to diminish its beneficial operation for the purpose evidently intended, but declined nevertheless to put upon it any interpretation going beyond that purpose, and which would tend materially to embarrass or interfere with the working out of trading partnerships, and other kinds of business, which pay what may be called dividends, but are really payments of an entirely different nature, and do not proceed upon the basis of a fixed income recurring from time to time {x). The Act applies to specific devises and bequests {y), and is retrospective, so as to apply (o) 33 & 34 Vict. c. 35. (r) S. 7. {p) An annuity to A and his (s) S 2. heirs does not {Turner v. Turner, (t) S. S. Amtl. 776 ; Earl of Stafford v. («) S. 4. BucUey, 2 Ves. sr. 171 ; but see (x) See Jones v. Ogle, L. B.. 8 Ch. Parsons v. Parsons, L. K. 8 Eq. 192, 196. 260), but an annuity to A for ever (y) Capron v. Capron, L. E. 17 dues {Taylor v. Marlindali, 12 Sim. Eq. 238 ; Pollock v. Pollock, L. K. 158), pass on his death io his per- 18 Eq. 329 ; HasJuck v. Pedley, L. sonal representatives. ■ R. 19 Eq. 271. (f) 33 & 34 Vict. c. 35, s. 6. 118 INTEREST TAKEN BY to an instrument coming into operation before its passing (z). As to the interest of an administrator de bonis non, see ante, p. 60, and Barker v. Talcot, cited ante, p. 116. (2.) Accruing after the Death of the Deceased. Execiitors and Executors and administrators are in point of law the ha™ sam?*"^ owners of the goods which belonged to the deceased, and actions aa if can bring the same actions in respect of rights accruing they were real . owners. m reference thereto after the death of the testator or m- Trover and testate, as if they were the owners in fact (a). So they trespass. can bring trover against a person having in his possession effects of the deceased, and can insist on his giving them up without an inventory or receipt (b) ; and it hath been holden that, if a legatee takes possession of the thing bequeathed without the assent of the executor, he may have an action of trespass against him (c). Executors and But they, may lose their rights by allowing them to m^ToseThdr become statute-barred. For the purposes of the Statute rights under ^f Limitations, an administrator claiminer the estate or the Statutes of ° Limitations, interest of a deceased person, of whose chattels he shall be appointed administrator, shall be deemed to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of or by acqui- administration (d). And one whose suit is not barred by escence, &c. ^Y]q statute may be refused relief on the ground of ac- quiescence or on other equitable ground (e) ; but lapse of time will not of itself bar an executor of an executor of his right to have an account of the first testator's estate (s) In re CHne's estate, L. E. 18 (i) Cobbett v. Clviton, 2 C. & P. Eq. 213 ; compare Easluck v. Fed- 171. le%j, L. R. 19 Eq. 271 ; Constable v. (c) Bac. Abr. Sxors. (L.) 3. Constable, L. R. 11 C. D. 681. {d) 3 & i Wm. 4, c. 27, s. 6. {a) See ffoUis v. Smith, 10 East, (e) Ibid., s. 27. 293, md post, pp. 127, 147. EXECUTORS AND ADMINISTRATORS. 119 taken, with a view to ascertain his own testator's liabilities as an accounting party (/). C. Where there is a Plurality of Executors or A dministrators. If a man appoints several executors, they are esteemed Each exeontor in law but as one person, representing the testator (gf). tor is possessed Therefore, if two executors have a term, and one gi-ant all °^^^ '^^° ° that belongs to him, the whole term passes (h), for that each hath the whole, and there be no parts or moieties between executors ; so there can be no partition between them (i). Semhle, joint administrators take the same interest as joint executors (k), but the point is not of much practical importance, having regard to the marked disinclination of the Court to grant a joint administration (l). D. Points of Law consequent upon the Nature of the Interest. That which a man has as executor he cannot bequeath Astoanexecu- ,.,,,. tor's will, to another ; for, as soon as he is dead, the thmg goes to the use of the first testator, and his executors shall have it as executors to the first testator and to his use, and not as executors to the last testator nor to his use (m). A feme coverte executrix may make a will of property which she only has in auter droit, as executrix, without her hus- band's assent (n). (/) SmiOi T. O'Grady, L. R. 3 (i) Godolph., pt. 2, o. 16, s. 2. P. C. 311. (fc) See Jacorrib v. JSarwood, 2 {g) Bac. Abr. Exors. (D.) 1. Ves. sr. 265. \h) Anon., Dyer, 23 6. But the i}) Ante, p. 31. possession of one executor is not (to) Brcmsby v. Grantham, 2 necessarily the possession of the Plowd. 525 ; Went. 40, 193. other, so as to charge that other per- (w) Scammdl t. Wilkinson, 2 Bonally {see per Parke, B., Nation East, 552 ;^«r Tindal, C.J., TucJcer V. Tozer, 1 Cr. M. & R. 17i, and v. Inman, 4 M. & Gr. 1076. post, p. 210). 120 INTEREST TAKEN BY and bank- ruptcy. Seizure in execution. Poor law settlement. Merger. The doctrine of executor's assent. So property which an executor holds qud executor does not pass from him on his bankruptcy, being in auter droit (o). Goods of a testator in the hands of his executor can- not be seized in execution of a judgment against the executor in his own right (p), where he has not used the goods as his own ; but, if has so used them, he at least, it has been said, cannot object to their being taken under the execution (q) ; and, where there had been great delay, the Court of Chancery refused to interfere by injunc- tion (r). Executors and administrators may, by virtue of the interest they take as such, and even before probate or administration has been granted to them, gain a settle- ment within the purview of the poor laws, though the deceased was but tenaht from year to year (s). There is no merger of an estate which a man holds as executor or administrator with one which he holds in his own right, at all events so far as regards the claims of creditors upon the assets of the deceased (t). In consequence of the entire personal estate vesting in executors, and of the necessity they are under of applying a sufficient part of the assets in payment of debts (w), (o) 32 & 33 Vict. c. 71, ss. 15, 17 ; and see Ex parte Ellis, 1 Atk. 101. That in such case, however, he may be dispossessed by the Court appointing a receiver, see post, p. 239. As to a banki-upt executor, who was also residuary legatee, and had paid the debts and legacies, see per Lord Hardwicke, Ex parte Butler, 1 Atk. 213. (p) Farr v. Newman, i T. E. 621. (q) Quick V. Staines, 1 B. & P. 293. (r) My V. My, G. Coop. 264 ; and see Gashellf v. Marshall, 5 C. & P. 31. Farr v. Nemnan does not supply a universal rule {per Sir T. Plumer, My v. My, 267 ; and see per Lord Eldon, M'Zeod v. Drummond, 17 Ves. 168, and per Sir J. Eomilly, Kinderley v. Jarvii, 22 Beav. 23). («) Mxv. Inhabitants ofHorsley, 8 East, 405 ; Rex v. Irihabitants of Stone, 6 T. K. 295 ; JRex v. Inhabi- tants of Great Glenn, 5' B. & Ad. 188. {t) Wms. Exors., pp. 647, 648. (m) Post, p. 157. EXECUTORS AND ADMINISTRATORS. 121 neither residuary, [pecuniary], nor specific legatees have any interest without their consent {x). The law prohibits a legatee from meddling with the legacy without the con- sent of the executor (3/). If A release by will a debt due to him from B, it is the better opinion that the assent of the executor is necessary to give effect to the testator's intention, for, although on the one hand it may be alleged that the person to whom the debt is bequeathed must necessarily have it by way of retainer, and that such a clause operates rather as an extinguishment than as a donation, and therefore that it needs no such assent as where there is to be a transfer of the property, yet on the other hand a debt so released is regarded with great reason in the light of a legacy, and, like other legacies, not to be sanctioned by the executor, in case the estate be insufficient for the payment of debts, but, as soon as the executor assents, and not before, it shall be effectually discharged (z). The union of the two characters of executor and legatee in one and the same person makes no difference. His assent is as necessary to a legacy vesting in him in the capacity of legatee as to a legacy vesting in any other person, and that on the same principles: till he has ex- amined the state of the assets, he is incompetent to decide whether they will admit of his taking the thing bequeathed as a legacy, or whether it must not of neces- sity be applied in satisfaction of debts (a). If A bequeaths a term to B for life, lemainder to C, and the executor assents to the bequest to B, this will amount to an assent to the bequest over to C ; but where the executor is himself tenant for life, and he has entered (a) Per Lord Hardwicke, Mead (y) Eac. Abr. Sxors. (L.) 3. T. Lord Orrery, 3 Atk. 239. Dma- (s) Toiler, 308. Hones mortis causA form an exoep- {a) Ibid., 345. tion to the rule ; see ante, p. 110. 122 INTEREST TAKEN BY into possession, it is presumed (subject to rebuttal (b) ) that he has entered as executor, although the testator may have left no debts, and a special assent to the re- mainder must be shown (c). His right to possession as executor is certain, but it is not certain that he has 6r will have any other right. It is his duty to take' posses- sion as executor; it is neither his duty nor his right to take possession as legatee till he has satisfied the testa- tor's debts, or has ascertained that the assets are sufficient for that purpose (d). The rule is the same in the case of personal chattels bequeathed in succession (dd). What will As it is the will of the testator which gives the interest amount to an absent. to the legatee, so this matter oi assent seems only a per- fecting act for the security of the executor, and therefore the law does not require any exact form in which it is to be made ; hence any expression or act done by the exe- cutor which shows his concurrence to the thing bequeathed Assent may he -^[W amount to an assent (e). The assent may be express express or im- ■ i • i i i • i ■ plied, or implied; the executor may not only m duect terms authorise the legatee to take possession of the legacy, but his concurrence may be inferred either from indirect ex- pressions or particular acts, and such constructive permis- sion shall be equally available (/) ; a small matter shall amount unto an assent, an assent being but a rightful act (g). The principle is that, if an executor in his manner of ad ministering the property does any act which shows that he has assented to the legacy, that shall be (b) Trail v. SuU, 22 L. J. (Ch.) 9 M. & "W., 28 ; Alt.-Gen. v. Potter, 1083. The case is reported telow 5 Beav. 164. in 1 Coll. 352. {d} Per Lord Cranworth, Trail (c) LampeVs ca., 10 Co. 46 6 ; v. Bull, ubi supra.- Anon., Dyer, 277 6; Bac. Abr. (dd) Michards\. Browne, Z 'Sing. Exors. (L.)3 ; Young v. Holmes, 1 N. C. 493, 500. Str. 70 ; Adams'^. Pierce, 3 P. "Wms. (e) Bac. Abr. Exors. (L.) 3. 12; Stevenson v. Mayor, &c., of (/) Toller, 308. Liverpool, L. B., 10 Q. B. 81; and (gr) Per Lord Nottingham, Noel Bee per UolSe, B., Elliott V. Elliott, v. Sobinson, 1 Yera. 9i. EXECUTORS AND ADMINISTRATORS. 123 -taken as evidence of assent ; but, if his acts are referable to his character of executor, they are not evidence of assent (h). Again, the assent may be absokite or condi- absolute, or ^. ' . . . . conditional, tional (i) ; but a conditional assent is sufficient only where it is the case of a condition subsequent, or such a one as the executor bad no authority to annex for his own benefit (k). Whether there has been an assent or not may involve matter of law, but it is generally a question of fact (Z). Executors may assent as to part only of a legacy (m). or partial. Where assent has been completed by payment or pos- As to whether session of the subject of bequest, retractation is too late, retracted. But, if assent be not so perfected, and its recall is not attended with injury to a third person, as to a bond fide purchaser from the legatee on the faith of such assent, it seems only reasonable that the executor should have an opportunity to retract it under particular circumstances, e.g., in tbe case of unknown debts being unexpectedly claimed, which occasion a deficiency (n). It may be mentioned here that executors qvA executors Executor are by statute disabled from being protectors of settle- pi-otector of ments (o). settlement. (h) Per Gibbs, C. J., Doe v. amount to assent, see Wms. ^ors. Sturges, 7 Taunt. 223. 1382, 1391; Spackmanv. Timhrell, (j) Toller, 308. 8 Sim. 260, 262, and Wilson v. (Tc) Per Parke, B., Elliott y. Rhodes, L. R. 8 C. D. 777. Elliott, 9 M. & "W. 28. (m) Per Parke, B., Elliott v. (?) Per Ld. Abinger, C.B., ibid. Elliott, 9 M. & W. 28. 27 ; Mason v. Fa/rnell, 12 M. & W. («) Roper on Legacies, 855. 674. As to what particular expres- (o) 3 & 4 Wm. 4, c. 74, a. 27. sions or acts have been held to 124 POWERS AND LIABILITY CHAPTER XIX. THE SOURCE OF THE TITLE AND AUTHORITY OF EXECU- TORS AND ADMINISTRATORS, AND THEIR POWERS AND LIABILITY BEFORE PROBATE AND ADMINISTRA- TION RESPECTIVELY. A. Source of an Executor's Title nnd Authority. Executor's The right of the executor is derived from the will, and right derived ■ / \ t ■•■,'•'■ t ■ V- from the will, not from the probate (a) ; he has his right immediately on the death of the testator, and the right draws after it a probate being constructive possession ; probate is a mere "ceremony, evi- monial. dence of his right (6), and is of the same effect as if the will had been proved immediately after the death of the testator,' Deceased's by reason of the relation of the probate (c). The property mTxecutir °^ *^^ deceased vests, therefore, in his executor from the from time of time of his death {d), the law knowing no interval between the testator's death and the vesting of the right in his representative, i.e., his executor (e). B. An Executor's Powers and Liability before Probate. Executor has It follows from the last paragraph that on his testator's ^„l^tt ^™^ death an executor becomes clothed at once with ample powers. In fact, he is a complete executor to all purposes (a) Comber's Ca., 1 P. Wms. 768. Beav. 366. (b) Per Ashlrarst, J., Smiih v. {d) Woolley v. Clarlc, 5 B. & Al. Milles, 1 T. K. 480. 744. (c) Graysbrook v. Fox, Plowd. (c) Whitehead v. Taylor, 10 A. 281 ; Ingle v. Riehards (No. 2), 28 & E. 211. BEFORE PROBATE OR ADMINISTRATION. 125 ["but bringiDg of actions" — which will be dealt with pre- sently] before probate (/). Thus it has been decided that before probate he can Instances, release debts (g) or actions (h), distrain (i), get in and receive his testator's estate (k), assent to a legacy (l), demise (m), grant a next presentation (n), and generally alien or give away the goods, or otherwise intermeddle with them (o). But although executors can make an assignment, and give a receipt for the purchase money, which are binding, before probate, the purchaser is not Purchaser not bound to pay his purchase money until probate, because, purchase till the evidence of title exists, the executors cannot give ^ecutorVfore a complete indemnity (p). The assignment cannot be probate. given in evidence as an assignment by an executor with- out showing probate of the will in proof of his being executor ; for the Courts cannot receive a will in evidence in respect of personal estate until it has been sanctioned by the [Court], and the probate is the only legal proof of such sanction. Thus, till probate is obtained, there is a good assignment for all the purposes of title, but there is not any legal evidence to prove the right to make such assignment: as soon ais the will has been sanctioned by the [Court], then the defect of evidence is supplied, and there is a good title in point of fact and of law (q). If an executor does an act and dies before probate, Acts of execu- nevertheless the act will be valid, if the will is ultimately before^probate valid. (/) Wanhford v. Wankford, 1 (m) Roe y. Sumimrsett, 2 W. Bl. Salk. 301. 694. {g).GrayshrookY.Fox,'Ployi&.i%\; {n) SmithUy \, Chormlery, Dyer, IVUlsv. Midi, 2.Atk. 285. 135 a. [h) Co. Litt. 292 b ; Middleton's (o) Wankford v. Wankford, iM ca., 5 Co. 28a; WankfwdY. Wank- supra; Brazier v. Htidson, 8 Sim. ford, ubi supra. 67. (i) Whitehead v. Taylor, 10 A. & (p) Newton v. M. JR. Co., 1 Dr. E. 210. & Sm. 583. {k) Wills Y.. Mich, uM supra. (y) 3 Preston Abstr., 146. gee (i) ^jioji., Freem. Ch. 22J, See ante, -g. 93. Johnson Y. Warwick, 17 C. B. 516. 126 POWERS AND LIABILITY Before probate, executor can- not proceed ■with action beyond point at which he has to prove his title, but it is suffi- cient if he then produce the probate. So, where he proved or administration granted with it annexed. The Court has then the legal optics through which to look. The convenience of mankind requires such a rule (r). A term was vested in H, who died, having appointed his wife executrix. She assigned to B, and died without having proved her husband's will. Letters of administra- tion were taken out to H, and the administrator sought to make a title to the term ; but the Court held that the assignment to B was good (s). And, in an old case (t), where a term was devised to the executor, who entered, and died before probate, it was held that his entry was a good execution of the devise. An executor may commence an action before probate, but he cannot go on with it beyond the stage at which he has to prove his title : at that stage the executor suing must prove that he is such, and that he can only do by producing the probate (u). He need not have obtained probate at the time he delivers his pleadings ; it is suflS- cient if he have it, when it is wanted in evidence (x) ; and, where the probate was necessary to prove the title of an executor moving, it was held sufficient to produce it when the motion was actually heard, though the will had not been proved at the time for which notice of motion was given (y). It must be borne in mind that not proving the will is only an impediment to the action : the right of action is the same before probate as after (z). So an executor may before probate apply for an adjudi- (r) Johnson v. Wanoick, 17 C. B. 516 ; Brazier v. Hudson, 8 Sim, 67. (s) Brazier v. Hudson, uH supra. [t] Anon., Dyer, 367 a. (u) Wankford v. Wank/ord, 1 Salk. 303 ; Wills v. Bich, 2 Atk. 285 ; Finney v. Finney, 8 B. & C. 335. {x) Tkompsony. Reynolds, 3 C. & P. ] 23. It would be prudent, how- ever, for the pleader to aver probate, to avoid difficulties on demurrer ; see Humphreys v. Ingledon, ' 1 P. Wms. 752. (2/) Newton v. M. S. Co., 1 Dr. & Sm. 583. («) Wank/ordv. Wankford, vM supra. BEFORE PROBATE OR ADMINISTRATION. 127 cation in bankruptcy, but he must obtain probate before applies in ,. ,. . bankruptcy, an adjudication can be made (a). It would appear, however, that an executor's right to Jurisdiction to sue before probate is not quite absolute. It has been held ingg by execu- thatj where it appears that a plaintiff, by suing as executor S^g^^^^^^^ when he has not proved the will, is abusing the process of the Court, the Court has a common law jurisdiction, under its general superintending power to prevent its process from being used for the purpose of oppression and injus- tice, to stay the proceedings until probate shall be taken out ; but some good ground must be shown by a defendant making such an application (b). The difficulty which, as above pointed out, obstructs an Executor is executor taking legal proceedings before probate, relates, probate, to of course, only to proceedings which he avowedly takes "^f^ throagh ' J r n J actions founded q%ui executor, and not to such as are founded on posses- on possession, . , , . , ^ or on his own sion, or on contracts entered into with himseli personally, contracts. In cases where he has actually been possessed of the pro- perty which is the subject of the proceedings before it came to the hands of the defendant, such possession is, according to the general piinciple, of itself sufficient, with- out showing any title, to establish a primd facie case ; nor need he show any title, when proceeding on a contract entered into with himself (c). Correlative to an executor's right to sue is his liability Executor may to be sued before probate, if he have elected to act (d). An probate if he (ft) Sogers v. James, 7 Taunt. Wankford, 1 Salk. 301 ; per Best, 147 ; JEx parte Paddy, 3 Madd. C. J., Douglas v. Forrest, i 241. Bing. 704 ; per Lord Lyndhurst, (6) IVeii V. AdJcins, 14 C. B. c. B., Blewiit v. Blewitt, Younge, 401. 643 ; per Lord Eldon, Webster v. (c) Wms. Exors. 310; and see Webster, 10 Ves. 93. It would ante, p. 118. Slight evidence of te injustice to allow actions to possession is sufficient in an action be brought against one appointed by the legal personal representative executor, who never meant to act against a wrongdoer (Oughtmi v. as such, before he had an opportu- Seppings, 1 B. & Ad. 241). nity of renouncing. If he be liable (d) Went. 86 ; Wankford v. to actions before he has acted as 128 POWERS AND LIABILITY have elected to executor who has not proved the will is properly joined as' a defendant with the other executors, if he has acted as executor, whether or not he has received any assets (e). He may not, by his own act of delaying the probate, keep off suits, except he will refuse in due manner, that so, ad- ministration being granted, there may be somebody suable by the testator's creditors (/). An action for an account was allowed by Lord Hardwicke while a suit was depending in the Ecclesiastical Court, on the ground that that Court had no way of securing the effects in the meantime (g) ; similarly, it was held' that an action for discovery would lie against an executor before probate, or during litigation of the will, such discovery being for the benefit of all persons in- terested therein, and necessary (it was said) for the preser- vation thereof (h). So a bill for administration was allowed against an executor before probate by Lord Lyndhurst (i) ; but, semile, but sUch bills have, on the other hand, not infrequently admSration heen disallowed, the Court being held in such cases to be cannot be had ij^iited to granting protection to the estate (fc), even though the defendant had possessed himself of part of the personal estate (l). If, said Lord Eomilly (m), the defendant had possessed himself of every penny of the personal estate, that would not entitle the plaintiff to the relief he asks : if a person has taken possession of the estate, you may file a bill for a receiver to take care of executor or proved the will, his Heepost, p. 129. liability must arise on the instant (A) Dulwich College v. Johnsmi, of the death of the testator, and 2 Vem. 49. many actions might be brought (i) Blewitt v. Blewitt, Younge, against him before he could re- 541 ; and see AmbUr v. Lindsay, L. Bounce, and from .these actions he E. 3 C. D. 198. could not be relieved -without ex- (Jc) Baron de FeueMres v. Dawes, pense and trouble (per Best, C. J., 6 Beav. HO ; Overington v. Ward, Douglas v. Forrest, 4 Bing. 704). 34 Beav. 175. (e) Per Turner, L. J., Vickersy. [l) Gary v. Sills, L. E. 15 Eq. Bell, 3 N. E. 626. 79. (/) Went., 86. (m) Hid. (g) Phipps V. Steward, 1 Atk. 285. BEFORE PROBATE OR ADMINISTRATION. 129 the property until a legal personal representative is appointed, and the Court will appoint a receiver for that purpose, but that is a totally different thing from making a decree for general administration. It will thus be seen that the practice in this respect can hardly be called settled. Since an executoi", if he has elected to act, is veritably an executor before probate (w), the reason of the thing would seem to be with Lord Lyndhurst's decision in Blewitt V. Blewitt (o) ; but the authorities are principally the other way. In any case, the reason given by Lord Hardwicke in Phipps v. Steward (p) for permitting bills against executors before probate — viz., that the Ecclesias- tical Court had no means of securing a testator's effects during litigation as to his will — is no longer of any weight for the Probate Division has now the power of appointing an administrator pendente lite (q), and, of course, since the Judicature Act, has all the power of appointing receivers before probate formerly possessed by the Court of Chan- cery (r), — indeed, a wider power (s). C. Source of an Admiinistrator's Title and Authority. An administrator receives his right entirely from the Administra- administration (t), and the deceased's property vests in derived from him from the time of the grant of letters of administra- frorttrdlte' tion (u). »* ^I'i"^, ^ ' deceased s pro- perty Tests in D. An Ad/mvnistrator's Powers and Liability before tim. A dmiinistration. That an administrator's title is derived from, and is first Eesults of the m n ■ -I • r 1 • • • • • T doctrine as to called into being by, the letters of administration is mdis- origin of ad- (ra) ATite, p. 124. ante, p. 26. (o) Younge, 541. (s) 36 & 37 Vict. c. 66, s. 25. (p) 1 Atk. 285. sub.-s. 8, Appendix, p. 320. (}) See amie, p. 66. (t) Comber's Ca., 1 P. "Wms. (r) As to the identity of the 768. powers of the different divisions of (m) Woolley v. Glarh, 5 B. & AL the High Court of Justice, see 744. 130 POWERS AND LIABILITY mmistrator s putable, but the proposition has led to directly contradic- title, literally ^ '. . ^ ^. . , , i . . •, , received. tory decisiOES, according as it has been taken in its naked literalness, or been supplemented by a fiction to be pre- sently noticed. The proposition, nakedly accepted, denies an adminis- trator any title or authority until administration has been granted to him, and then only in respect of things theU existing or coming afterwards into existence. Accordingly, it has been held that, before administration granted, an administrator cannot release an action {x) or a debt (y), assign the deceased's property (2), or bring an action {a), though he be administrator with the will annexed (6). So it was decided that, where by partnership articles an option was given to the executors or administrators of a deceased partner by giving notice to succeed to the share of the deceased, such notice could not be effectually given by one who, not an administrator at the time, subse- quently obtained administration (c). The effect of strict decisions like the above was to leave the administrator helpless and remediless in the face of wrongs done to his deceased's estate in the interval be- adopted by the tween the death and the grant of letters to himself To repair such a miscarriage of justice, the Courts adopted the convenient fiction that letters of administration, when obtained, operate retrospectively, having relation back to the death of the deceased, so as to enable the administra- tor to sue before the grant to him of administration, or, To meet the injustice of such results, the fiction of relation {x) MiddUtorCs Ga., 5 Co. 28a. {y) Barefoot v. Ba/refoot, Palm. 411 ; Whitehall v. Squire, 1 Salk. 295. (z) 3 Preston, Abstr. 146. {a) Wcmlcford v. Wankford, 1 Salic. 301. (6) Phillips V. EaHley, 3 C. & P. 121. (c) Holland v. King, 6 C. B. 727. The judges did not give their rea- sons for so deciding, but from the arguments it may be assumed that they based their decision upon the non-relation of letters of adminis- tration. If this be so, they would presumably have come to a contrary conclusion in the case of an execvior giving the notice. BEFORE PROBATE OR ADMINISTRATION, 131 after administration, in respect of matters occurring pre- viously thereto (d). An attempt was made by Parke, B., to qualify that Attempted aspect of the doctrine by which letters of administration the fiction, are held to relate back to acts done between the death of the intestate and the taking out of the letters : the learned Judge was of opinion that the doctrine only exists in those cases where the act done is for the benefit of the estate (e). This refinement, which obviously gives rise to additional uncertainty, does not appear to have been followed. These actions, founded on the fiction (/) of relation, are Justification of based upon the broadest ground of equity, viz., that other- wise there would be no remedy for the wrong done (g). The contrary decisions, while they possess the superficial merit of logical accuracy, are altogether wanting, it is sub- mitted, in the substantial feature of justice. Of course, when an administrator sues before adminis- Administrator tration, he meets with the same impediment that con- farwith actions fronts an executor suing before probate, — he cannot pro- ^oiog Mers ; ceed beyond the point where proof of his title becomes necessary, without producing the letters of administra- tion (h), though it is sufficient to produce them then (i) ; and it is presumed that the common-law jurisdiction which (d) Zongr.Sebi,&ty.Sil;Anon., JSafes were not cited. See further Comb. 451 ; Humphreys v. Hum- on this doctrine of relation, iMcy phreys, 3 P. Wins. 361 ; Moses v Levi, 3 Y. & C. 366 ; Fell v. Zut' widge, Barnard. 320 (where it is 302 ; Bodger v. Arch, 10 Exch. said the rule was otherwise at law) Cm-tis V. Vemmi, 3 T. R. 587, af- firmed, 2 H. Bl. 18 ; Tharpe v, Stallwood, 5 M. & Or. 760, foUow. Ing, Tindal, C. J., said, "a con^ tinuous current of authorities," g. ■B. ; Foster v. Bates, 12 M. & W, 226 ; Welchman v. Stv/rgis, 13 Q V. Walrond, 3 Bing. N. C. 841. (e) Morgan v. Thomas, 8 Exch. 333. (/) That he doctrine of relation is a mere fiction, however salutary, seems clear, especially since 21 & 22 Vict. c. 95, s. 19, Appendix, p. 305. (jfj-PerRoU, C. J., LongY. Hell, uli supra,. [h] Hunt v. Stevens, 3 Taunt. B. 652. But see Crossfieldy. Such, 113. See ojitc, p. 126. 8 Exch. 825, in which, however, (i) Horner v. Horner, 23 L. J. N. Tharpe v. Stallwood and Foster v. S. Ch. 10. K 2 132 POWERS, ETC., BEFORE PROBATE OR ADMINISTRATION- and, senible has been claimed by the Court over such actions by an his proceedings before admin- executor (k) is equally applicable to like proceedings by an istration may j • • j. i be stayed. administrator. Further ap- That personalty vests in an administrator by relation rui?of°rela- ^^^ t^® Opinion of Mr. Justice Williams {l) ; and it has tion. been held, upon the same principle, that an administrator may demise before administration is granted to him (m). The rule of relation applies also to leaseholds (n). No difficulty in Of course, as regards actions founded on possession or prosecuting . ... actionsfoanded 01) his own contracts, an administrator is on the same foot- on possession or own rSr^i^g'^s an executor (0). One who acts Inasmuch as an administrator derives his title solely tor^Xre^ ™' from the grant to him of letters of administration, one administration ff^}^Q acts as administrator before such grant is really an IS executor _ ^ ° *' de son tort. executor de son tort. Actions against persons so acting, and the subject of tortious executorship generally, are treated of in another part of this work (p). {!c) Ante, p. 127. (») Barnett v. Bwrl of Guilford, (I) Searson v. Rohimon, 2 F. & 11 Exch. 19. F. 353. (o) Ante, p. 127. (to) Patten v. Patten, Alcock and (p) Chap. XXVIII. Napier, 493 (Ireland). EXECUTORS AND ADMINISTRATORS DULY CONSTITUTED. 133 CHAPTER XX. THE POWERS OF EXECUTORS AND ADMINISTRATORS DULY CONSTITUTED. A. The Nature and Extent of the Powers. An executor or administrator may enter into the house Executors and of the heir, and remove the goods, if he can get possession can enter house without force ; otherwise he must resort to his action (a). ° ^"^' distrain, His power of distress has been already noticed (6). The general rule both of law and equity is clear, that an alien the per- executor may dispose of the assets of the testator, that and give over them he has absolute power, and that they cannot be "^^"^'P*^' followed by the testator's creditors. It would be mon- strous if it were otherwise, for then no one would deal with an executor. He must sell, in order to effect the wiU ; but who would buy, if liable to be called to an account ? It is also clear that, if at the time of alienation the pur- chaser knows they are assets, this is no evidence of fraud, for all the testator's debts may have been already satis- fied (c) ; and it is not reasonable to put every purchaser (a) See Touclistone, 475 ; Went. to [per Stuart, V.-C, Wright \. 81, 202 ; ToUer, 253. Eogers, L. R. 2 P. & D. 180). It (6) A7d,e, p. 116. should here he mentioned that exe- (c) Per Lord Mansfield, Whale outers and administrators of a leasee V. Booth, i T. R. 625. But, notwith- are bound by a restriction in the standing 20 & 21 Vict., c. 77, ss. 77, lease against assignment, if they are 78 (Appendix, p. 301), executors named in the restriction (Sir W. cannot, pending an appeal against Move's Ca., Cro. Eliz. 26; Soe v. a decision establishing the validity Harrison, 2 T. R. 425 ; and see of the will, make such a title to Lloyd v. Crispe, 5 Taunt. 249) : but, leaseholds as a purchaser is entitled if they are not so named, they may 134 POWERS OF EXECUTORS AND ADMINISTRATORS from an executor to take an account of the testator's debts (d). Again, executors may validly assign the bulk of the testator's estate to secure the payment of a parti- cular creditor (e). An assignment by them of all his pro- perty to trustees for the benefit of his creditors is good against a judgment creditor (/) ; and they have equal power to dispose of legal and equitable assets (g), and even of assets specifically bequeathed (h). It is of great conse- quence that no rules should be laid down which may impede executors in their administration, or render their disposition of the testator's effects unsafe or uncertain to the purchaser : his title is complete by sale and delivery ; what becomes of the price is no concern of his (i). dispose of the lease {Ation., Dyer, 66 a; per Ashhurst, J. , Boe v. Har- rison, 429; iSeers v. Mind, 1 Ves. Jr. 294). (d) Per JekyU, M. E., Ewer v. Corbet, 1 P. Wms. 149. Sales by executors, though made 33 years after the testator's death, haye been supported [Wrigley t. Sykes, 21 Beav. 337 ; SabinY. Seape, 27Beav. 553 ; see Dart's V. & P. ed. 6, p. 60). The receipt of an executor is a good discharge, even though a consider- able time has elapsed since the testator's death {Charlton v. Earl ofDmham, L. R. 4 Ch. 438) ; there is no authority, said Lord Hather- ley, for holding that, merely because a debt has not been called in for some time, the debtors know that the executors have ceased to be executors, and have become trus- tees ; the persons with whom execu- tors are dealing are not bound to know the state of the testator's assets (ibid. 438). (e) Earl Fane v. Migden, L. R. 5 Ch. 663. (/) Wolverhampton, cfcc, Co. v. Marstm, ^ H. & N. 148. {g) Nugent v. Qiffard, 1 Atk. 464. {h) Ewer v. Cmbet, 1 P. Wms. 148; And/rew v. Wrigley, 4 Bro. C. C. 126; Tayler'7. Hawkins, 8 Ves. 209. Sir E. Sugden, in his Treatise on Vendors and Purchasers, has raised a doubt whether it is safe to take an assignment of a specific legacy from the executors without the concurrence of the specific legatee, lest the executor should have as- sented to the bequest, and he cites Thomlinson v. Smith, Gas. t. Finch, 378. It is submitted this was a case of gross fraud, and is but a slender authority. It is conceived that, if a purchaser or mortgagee shall bond fide deal with an execu- tor within a reasonable time after the testator's death, and obtain possession of the muniments of title, a specific legatee would never be permitted to set up the execu- tor's assent against the sale or mort- gage, for by sale and delivery the title of the purchaser or mortgagee is complete • (Coote on Mortgages, p. 163, n. (A) ). (i) Per Lord Thurlow, Scott v. TyUr, 2 Dick. 725. DULY CONSTITUTED. 135 The last observation applies equally to mortgages and or mortgage pledges, and even to the instance where assignable bonds are merely pledged without assignment (k). It is settled on principle, as well as by authority, that an executor has full right to mortgage as well as to sell ; and it would be very inconvenient, and very disastrous, if the execiitor were obliged immediately to convert into money by sale every part of the assets of the testator. It is a very common practice for an executor to obtain an advance from a banker for the immediate wants of the estate by depositing securities (I). And it has been decided in ^t^ po^er of Russell V. Plaice (m), that he may not only pledge or mortgage the assets, but may give to the mortgagee a power of sale and to give valid receipts for the purchase- money : the power of sale is a power to render the mort- gage effectual, and the right to create this power is inci- dental to the authority of the executor to mortgage (n). And not only so, but he may legally effect a mortgage to a building society, with the usual incidents of such a mortgage (o). So it was decided in Earl Vane v. Rig- den (p) that he may give a mortgagee of the testator's book-debts a power of attorney to get them in. It is a fallacy, said Lord Hatherley (q) to say that such an autho- rity is void under the rule delegatus non potest delegare : the very point was discussed in the case of Russell v. Plaice; the Master of the EoUs held, as it seems to me, quite con'ectly, that in the eye of the Courts the executor is the absolute owner of the property ; he does not stand (fc) Ibid. Executors and ad- for carrying on the testator's busi- miuistrators have now statutory ness {M'NeilUe v. Acton, 2 Eq. Eep. powers of giving effectual receipts 21). (22 & 23 Vict., c. 35, ri. 23, Appen- (wi) 18 Beav. 21. dix, p. 307 ; 23 & 24 Vict., u. 145, (») Per EomUly, M. E., ibid. 28. s. 29, Appendix, p. 313). ' (o) Grwikshank v. Buffin, L. E. {I) Per James, L. J., Earl Vane 13 Eq. 555. V. Bigden, L. E. 5 Ch. 670. But {p) L. E. 5 Ch. 663. an executor cannot borrow money (q) Ibid., 669. 136 POWERS OF EXECUTORS AND ADMINISTRATORS the realty, except where fraud, &o. ; ia the position of a delegatus ; and nothing can intercept that ownership, except fraud or collusion as between him and the parties with whom he deals, and (in some Executors may now, in many cases, where the testator or mortgage shall have charged real estate with the payment of debts or legacies, and shall not have devised his whole interest in such estate, raise the debts or legacies by sale or mort- gage of the lands devised (r). The quotation just made from the judgment of Lord Hatherley in Uarl Vane v. Rigden brings us to observe that an executor's powers of sale and mortgage are not absolute. Fraud and covin, said Lord Thurlow, will vitiate any transaction, and turn it to a mere colour. If one concerts with an executor or legatee by obtaining the testator's effects at a nominal price, or at a fraudulent undervalue, or by applying the real value to the purchase of other subjects for his own behoof, or in extinguishing the private debt of the executor, or in any other manner contrary to the duty of the office of executor, such concert will involve the seeming purchaser, and make him liable for the full value (s). Alienation of the assets by the executor, though for valuable consideration, is bad, if done collusively or fraudulently {t), if the purchaser knew there there were no debts, or, in the case of a purchase of property specifically bequeathed, that the debts could be paid without breaking in upon the specific legacy (w), or if, in any other way, a contrivance appears between the purchaser and executor to make a devastavit (x). So a mortgage by an executor of property of the deceased, whether specifically bequeathed or not, to secure his own (r) 22 & 23 Vict. c. 35, ss. 14—17, Appendix, pp. 306, 307. See Oorser V. Cartwright, L. E. 7 H. L. 731. («) Scott y. Tyler, 2 Dick. 725 ; Ewer V. Corbet, 1 P. Wms. 148 (undervalue) ; Bice v. Gordon, 11 Bear. 265 (ditto). (t) Mead v. Lord Orrery, 3 Atk. 237, 240. (u) Ewer r. Gorlet, uhi supra. (x) Per Lord Mansfield, Whale V. Booth, i T. E. 625. DULY CONSTITUTED. debt, is bad, if the mortgagees are aware of the circum- stances {y) ; where it is distinctly shown on the face of the deed that the property is trust property, which the executor is dealing with as a trustee, the ordinary rules of the Court make it absolutely impossible that he can give a security for his own individual debt {z) ; a pledge by him of the assets cannot be held, even against a pecuniary or residuary legatee, and though for money advanced at the time, if the circumstances show knowledge on the pledgee's part of an intended application not conformable to, or connected with, the character of executor, the distinction between an antecedent debt and a present advance as the consideration not being conclusive {a). On the same principle, a direction by an executor to his creditors to apply funds which they know to be part of the testator's assets in satisfaction of their advances to himself is invalid (&). But it is not enough to impeach a mortgage of assets, that it was made to secure a debt originally con- tracted on the personal security of the executor without reference to the assets (c), and the mere fact that in a mortgage by an executor property of his own is included is not sufficient to rebut the ordinary presumption of law that the money raised is for the payment of debts {d). On the other hand, inasmuch as a lender of money to an executor, who has at the time of the loan, and before {y) Scott V. Tyler, 2 Dick. 724 ; elaborately reviewed by Lord Eldon. Doe V. Fallows, 2 Cr. & J. 481 ; see (S) Wilson v. Moore, 1 M. & K. Eill V. Simpson, 7 Ves. 152. The 337 ; Fannell v. ffurley, 2 Coll. general rule is that the equity of the 241. Of course executors of a de- estate prevails over a charge created ceased partner may sell his share to to satisfy the private debt of the the surviving partners (OAamSera v. executor (jper Sir G. Turner, Cole v. Sowell, 11 Beav. 6). Muddle, 10 Ha. 191). (c) Miles v. Dwmfm-d, 2 De G. (») Fer Malins, V.-C, Oriiih- M. & G. 641. sJianky. Duffin, L. R. 13 Eq. 561. (d) Barrow v. Griffith, 11 Jur., (as) M'Leod v. Drummond, 17 N. S., 6. Vea. 170, in which- the cases are 137 138 POWERS OF EXECUTORS AND ADMINISTRATORS parting with the money, notice that the executor in borrowing commits a breach of trust, and intends to mis- apply the money, acquires no better title against the estate than the executor himself (e), a mortgage by an executor, on the representation that he wants a loan for the purpose of carrying on the testator's business, cannot be supported, for an executor has no power to borrow for such a purpose (/). but may not Again, an executor shall not be permitted either imme- sell to them- . diately, or by means of a trustee, to be the purchaser from himself of any part of the assets, but shall be considered a trustee for the persons interested in the estate, .and shall account for the utmost advantage made by. him of the subject so purchased (g). A sale by executors for the pur- pose of a resale to themselves is equally bad (A). An executor cannot buy for his own benefit debts due to the estate (i), or legacies (k), at less than their full amount, and an executor of a mortgagee cannot buy the equity of redemption (I). One of the most firmly established rules is that persons dealing as trustees and executors must put their own interest entirely out of the question, and this is so difficult a thing to do in a transaction in which they are dealing with themselves that the Court will not inquire whether it has been done or not, but at once says that such a transaction cannot stand (m). To set aside a purchase by a trustee of the trust property, it is (e) Stroughill v. Anstey, 1 De G. lent and void {Bice v. Gordon, 11 M. & G. 635 ; GoUinson v. Lister, Beav. 269). 7 De G. M. & G. 634. {h) OooTc t. ColU/Kfi-idge, Jac. 607. (/) M'Neillie v. Acton, 2 Eq. (i) Anon., 1 Salk. 155 ; Ex parte Eep. 21. James, 8 Ves. 346. {g) Sail V. Hallett, 1 Cox, 134. (k) Barton v. Eassard, 3 Dr. & A sale by an administrator to Ms W. 461. brother and copartner has been set {I) FosbrooTcc v. Balguy, 1 M. & aside on the ground of its having E. 226. been made at an undervalue so gross (m) Per Lord Eldon, Cook v. Got- that it ought to be deemed fraudu- lingridge, Jao. 621. DULY CONSTITUTED. 139 not necessary to show that he has made an advantage (n) ; and such a purchase has been rescinded after twenty years (o). However, if the executor, ignorant of the rule of the Court, openly purchased assets of his testator, with the full approbation of the parties then presently in- terested, the Court would not in that case press the equitable rule against him after such a length of time (p). An executor who has renounced Tnay purchase the assets (q). Executors having a power of sale under a will executed Manner of or revived after the 28th of August, 1860, may, unless for- bidden by the testator, sell in lots, and either by public auction or private contract, and either at one time or several times, and, if the power authorises an exchange, may give or receive money for equality, with full power to give receipts (r), and may make any such sale or exchange under any special or other conditions, and may buy in, rescind, or vary, contracts, and resell, without responsi- bility for loss (s). Further, executors or administrators may sell without excluding the application of the condi- tions of sale laid down by the Vendor and Purchaser Act, 1874 (t). But, if they sell under depreciatory conditions, they may be restrained by injunction at the suit of a cestui que trust, though an infant and having only a small interest, and thoagh the injunction may be asked for from ulterior motives {u). If fiduciary vendors, or those who act by their authority, fail in reasonable diligence, if they («) JEx parte James, 8 Ves. 346. tionable contract for sale by entering (o) Watson v. Toone, 6 Madd. into a subsequent contract for a 153. higher price {per Knight-Bruce, L. {p) Per Sir J. Leach, ibid. 154. J., Goodwin v. Fielding, 4 De G. (2) Mackimtosh y. Barber, 1 Bing. M. & G. 104). 50. (t) 37 & 38 Yiot., c. 78, ss. 2, 3, (r) 23 & 24 Vict., c. 145, ss. 1, Appendix, pp. 320, 321. 3, 32, 34, Appendix p. 312. (u) Vance v. Goldingham, L. K. (s) Ibid., s. 2. But executors 8 Ch. 902. may not avoid a fair and unobjec- 140 POWERS OF EXECUTORS AND ADMINISTRATORS contract under circumstances of haste and improvidence, if they make the sale with a view to advance the parti- cular purposes of one party interested in the execution of the trust at the expense of another party, a Court of Equity will not enfoi'ce specific performance of the con- tract, however fair and justifiable the conduct of the pur- chaser may have been : the remedy of the law is open to such a purchaser, but he has no claim to the assistance of a Court of Equity (x). Personal _ It should here be observed that the legal personal repre- of mortgagee sentative of a mortgagee of real estate may, on payment may reconyey. q£ g^j]^ gums secured by the mortgage, convey or surrender the estate {y) ; also that a power of sale given to a mort- gagee, his heirs, executors, administrators, and assigns, is exercisable by the administrator of a transferee (z). Executors and Executors and administrators, as they may dispose abso- administrators ..,.,. may lease lutely of terms of years vested m them in right of their (qtiare), testators or intestates, so may they lease the same for any fewer number of years (a). But such an act is not regu- larly within their province, and persons taking a lease from them must show that the act was for the benefit of those beneficially interested in the property (6). Clearly, if the property is impressed with a trust for sale, to grant a lease of it is primd facie inconsistent with the execu- tor's duty (c). compromise, Executors may pay debts or claims upon any evidence they may think sufficient, and are amply empowered to compromise, compound, give time, or submit to arbitra- eompound, &c. (k) Per Sir J. Le&ch,,Ord v. Noel, penalty, see Magrane v. ArcKbold, 5 Madd. 440. 1 Dow, 107. (y) 37 & 38 Vict., c. 78, s. 4, Ap- (6) Per Lord St. Leonards, Keat- pendix, p.321. SeeDart, ed.5,p. 15. mgr v.-ffcoWm^r, 1 LI. &G. 136 ; and {z) Saloway v. Strawhridge, 1 K. see Drohan v. Drohan, 1 B. & B. 6 J. 371. 185. {a) Bao. Atr. Leases, (I) 7. As (c) Evans v. Jackson, 8 Sim. to granting a lease with a covenant 217. for perpetual renewal under a DULY CONSTITUTED. 141 tion, in all matters affecting the estate of the deceased (d). But they may not compromise a debt due to the estate by one of themselves, unless (possibly) the compromise be beneficial to the estate (e). The executors of a mortgagor may settle accounts with the mortgagee of property which the mortgagor has specifically bequeathed (/). Executors or administrators may indorse and assign indorse notes, over a promissory note payable to the deceased or his order (g) ; and, in many cases, where a testator dies having exercise elec- a right of election, his executor may exercise the right (h). Unless expressly forbidden by the will, executors and Powers of in- ,...., . . , . 1 ... vestment, to admmistrators have power to invest m real securities in ^jj^t they the United Kingdom, or on Bank or East India stock (i) ; ^^^^^> and, if authorised to lend on real securities in England, they may (with the requisite consents, if any) lend on real securities in Ireland, unless expressly forbidden (k), but, where minors, unborn children, or persons of unsound mind are interested, not without the consent of the Court (?) ; (d) 23 & 24 Vict. c. 145, s. 30, Appendix, p. 314. It is not neces- sarily a breach of trust for executors to accept a tondby one obligor in lieu of one by two obligors wbich has been previously given to them (see Charlton v. JSarl of Durham, L. E. 4Ch.433). (e) De Cordova v. De Cordova, L. E. 4 App. Gas. 692, g. u. Compare Stottv. Lord, cited ^os<, p. 146. (/) LangUy v. Earl of Oxford, Ambl. 17. (g) Sawlinson v. SUrn^, 3 Wils. 1 WatTdns v. Maule, 2 J. & W. 243 (h) See Com. Dig. Election (B) J(mes V. Chemey, Freem. K. B. 530, (■£) 22 & 23 Vict., c. 35. s. 32 23 & 24 Vict., c. 38, a. 12 ; 30 & 31 Vict., 0. 132, s. 1, Appendix, pp.310, 312, 316. The first-mentioned Act does net apply to a case where the trust fund is already invested in Bank Annuities, and the trustee has no power, independently of the Act, to vary any investment (Ee Warde, 2 J. & H. 191). The last- mentioned Act does not apply to In- dian iJaitoaj/ Stock (CfreenT. Angell, "W. N. 1867, 305). A power to in- vest on real security authorises the retention of existing mortgages {per Lord Eldon, Angerstein v. Mwrtin, T. & E. 239). (*) 4 & 5 Wm. 4, c. 29, ss. 1, 4, 6, Appendix,'p. 293. Semble, where part of a testator's property is in- vested on mortgage, the executor is justified, apart from any special authority, in making such further advances as may be absolutely necessary to secure the first ad- vance {Collm,son\, Lister, 20 Beav. 356). (,1) Ibid., ss. 2, 4, Appendix, p. 293. See Stxmrt v. Stiiart, 3 142 POWERS OF EXECUTORS AND ADMINISTRATORS further, having power to invest on real security, they may, unless forbidden by the will, invest in charges under the Im- provement of Land Act, 1864, or on mortgages thereof {tn). If they have power to invest on Government or Parliamen- tary securities {n), they may also invest on any stocks, funds, or securities, upon which by any General Order cash under the control of the Court may be invested (o), or on any securities the interest of which is guaranteed by Parlia- ment (p), or on Metropolitan stock {q). If they have power to invest in the mortgages or bonds of a company, they may, unless forbidden by the will, invest in the debenture stock of a company (r) : but a power to invest " on security of the funds of any company incorporated by Act of Parliament " does not warrant investment in rail- way preference shares, the interest of which is alone secured, and then only on the profits of the concern (s). All the extended investments given by statute must be accompanied by all the conditions required for investment upon the securities specified in the will {t) ; these must be strictly observed (u). It is not a breach of trust to take a mortgage not containing a power of sale (a;). Beay. 430 ; Ex parte Lord W. Paw- per cent. Annmties, and upon mort- Utt, 1 Phillips, 670. gage of freehold and copyhold es- (m) 27 & 28 Vict., c. 114, ss. 60, tates respectively in England and 61, Appendix, p. 314. "Wales, as well as in Consolidated 32. (») As to this, see 23 & 24 Vict. , per cent. Annuities, Reduced Zl. per c. 145, s. 26, Appendix, p. 313. cent. Annuities, and New Zl. per An executor, who is authorised to cent. Annuities, invest in funds or on real security (p) 30 & 31 Vict., o. 132, s. 2, is justified, pending the necessary Appendix, p. 317. delay in completing a contemplated (q) 34 & 35 Vict., c. 47, s. 13, mortgage security, in investing in Appendix, p. 318. exchequer bills {Matthews v. Brise, (r) 34 & 35 Viet., c. 27, ss. 1, 2, 6 Beav. 239). Appendix, p. 318. (o) 23 & 24 Vict., c. 38, ss. 10, (s) Harris v. Harris (No. 1), 29 11, Appendix, p. 311. By an Order Beav. 107 ; and see Stewart v. fern- dated the 1st Feb. 1861, cash under derson, L. R. 10 Eq. 26. the control of the Court may he in- (t) See Lewin, 286. vested in Bank stock. East India (m) See Lewin, 292. stock, Exchequer bills, and 21. 10s. (x) Farrar v. Barradough, 2 Sm. DULY CONSTITUTED. 143 Unless they are expressly authorised by the testator, it and do not is a breach of trust for executors or administrators to lend on personal security {y), though given by several per- sons {z) ; and such an investment was held not authorised by a power to invest in the funds, " or such other good security as they could procure and think safe " (a). A power to lend on personal security does not authorise the accom- modation of a trader upon his bond (b). Where the testator authorises his three executors to lend money on personal security, it is a breach of trust for two of them to lend it to the third (c), especially if it is to be used in the borrower's business id) ; the testator must be taken to rely upon the united vigilance of the three with respect to the solvency of the borrower (e). Again, executors and ad- ministrators must not, without authorisation, invest in the stocks or shares of companies (/), or upon second mort- gages {g) ; but charges under the Improvement of Land Act, 1864, are not such incumbrances as to preclude them from investing in a purchase or on a mortgage of the land so charged, unless the terms of their trust expressly pro- vide that land upon which they may invest be not subject to any prior charge (k). An executor directed to invest a legacy on mortgage Powers of ap- may properly appropriate one of the testator's mortgages P™P"ation, in -payment thereof, but he must ascertain the sufficiency & G. 231 ; ; j j o judgment for the testator's estate, without any injunction or appoint- tion. ment of a receiver (m). But after a judgment for adminis- tration he is not at liberty to do any act which affects the relative rights of creditors (n), and therefore has no power to give a creditor a valid acknowledgment of his debt, so as to take it out of the Statute of Limitations (o), and after decree all powers of management vested in him are subject to the control of the Court (p). The power of a legal personal representative to prefer creditors and retain for his own debt is, for greater con- venience, treated post, p. 162. B. The Effect of Renunciation by an Executor upon the Exercise of Powers and Discretions by the Remain- ing Executors. As to sale of Formerly, where a power was given to executors to sell, under the and one of them refused the trust, it was clear that the Henry^yill. others could not sell (q) ; but since the time of Henry VIII Construction they have had a statutory ability to do so (r). The statute enables the sale of " lands, tenements, and heredi- taments," which expression has been held to include copy- holds (s). A power given to A, B, and C, "the executors of this my will, or the survivors or survivor of them, or the executors or administrators of such survivor," is within the statute, and authorises a sale by A and B, on C re- fusing (t). Albeit the letter of the statute extends only where executors have a power to sell, yet, being a bene- (m) Berry v. Qiihons, L. E. 8 Eq. 24. Ch. 747 ; Neevos v. Burrage, 14 Q. {q) Sugden on Powers, 125, ed. 8. B. 504. But see ^osi!, p. 162. (?■) 21 Hen. 8, c. 4, Appendix, (m) Shewen v. Vandcrhorst, 2 p. 274. Kuss. & M. 75. And see post, p. 164. {s) Peppercorn v. TVayman, 5 De (o) Phillips V. Beal (No. 2), 32 G. & Sm. 230. Beav. 26. it) Peppercmii v. Wayman, uii {p) Bcthellv. Abraham, L. R. 17 svpm. DULY CONSTITUTED. 149 ficial law, it is by construction extended where lands are devised to executors to be sold (u). Perkins (x) drew the Perkins's following distinction, based upon cases in the Year Books, such cases, however, being anterior in date to the statute of Henry VIII., which does not seem to contemplate any such distinction :— If a man will that A and B, his execu- tors, shall sell, &c., and they refuse {i.e., renounce probate), yet it seems they may sell, because they are certainly named ; so that it appears the will of the testator is that they shall sell, whether they refuse or not. But otherwise it shall be, as it seems, if he will that his executors shall sell without expressing their names, and they all refuse, — they cannot sell. A disclaimer executed by the renouncing executor Disclaimer sometime after the sale to a purchaser is sufficient. Such guffieient. a disclaimer, if effectual at all, is a refusal ab initio, and will be so taken by the Court, in the absence of anything to raise a presumption of mala fides (y). A power of appointing new trustees vested in the execu- Peppercorn v. tors of A, one of whom renounced, was held to be well exercised by the others of them (z). An executor who has renounced cannot himself exercise Eenuntiant either a power (a), or a discretion, though vested in him p^™°g''^r™'''' by name (&). discretions. (u) Co. Litt. 113 a ; Bonifaut v. 308. Greenfield, Cro. Eliz. 80. (b) Keates v. Burton, U Ves. 434. {x) PL 548. The question whether renunciation [y) Peppercorn v. Wayman, 5 De deprives an executor of a discre- G. & Sm. 230, 235. tionary power was raised in Foi-d v. (s) Granville {Earl) v. M'Neile, Ruxton, 1 Coll. 403, but no opinion 7 Ha. 156. was expressed upon the point. (a) Tales r. Corapton, 2 P. Wms. 150 DUTIES OF CHAPTER XXI. OF THE DUTIES OF EXECUTORS AND ADMINISTRATORS, AND HEREWITH OF THEIR RIGHT OF PREFERENCE AND RETAINER, AND OF LEGACIES TO EXECUTORS. A. The Funeral, Rendering an Inventory and Ac- counts, Conversion of the Estate, and Payment of Debts. Burial. An executoi' or administrator must bury the deceased in a manner suitable to the estate which he leaves behind him {a). Inventory. Notwithstanding 21 Hen. VIII. c. 5, the modern practice is certainly not to render an account [i.e., an inventory], unless it shall be called for ; but the executor must remember that he has bound himself by his oath to render a just account, when he is by law required. The Court may, and in some instances does, for the protection and security of the parties, require ex officio that an in- ventory shall be exhibited ; and, though the Court does not exact this in all cases, still it always will, where a party having an interest in the property applies for it (c). It has been laid down in a variety of cases that a probable (a) 2 Bl. Com. 508. See further, post, pp. 200, 227. (c) Per Sir J. Nicholl, Phillips v. Bignell, 1 Phillim. 240. Seetheforni of administrator's bond, Appendix, p. 321. It is for the administrator to discharge himself of the items con- tained in his inventory {Giles v. Dyson, 1 Stark. 32). This account, rendered (if required) to the Probate Division, must not be confounded with the accounts taken by the Chancery Division. EXECUTORS AND ADMINISTRATORS. 151 or contingent interest will justify a party in calling for an inventory (d). In some cases, one to whom administration has been granted durante minore cetate may be called on for one (e). A release given by a beneficiary is no bar to his demanding an inventory (/). As to its contents, the Court can only require that all the deceased died possessed of should be included in it ; it cannot call for an account of the subsequent profits of his business (g). It is the bounden duty of an executor to keep clear and Accounts and distinct accounts of the property which he is bound to ^ """^ ""'' administer (h) ; nay, it is the first duty of an accounting party to be constantly ready with his accounts (i). More- over, it is the duty of trustees to afford to their cestuis que trustent accurate information of the disposition of the trust fund, — all the information of which they are or ought to be in possession (k). A legatee has a clear right to have a satisfactory explanation of the state of the testa- tor's assets, and an inspection of the accounts, but he is not entitled to a copy thereof at the expense of the estate (l). An executor is bound to produce his accounts to the properly authorised solicitor of a cestui que trust (m). Where trustees neglect to account, or give explanations, on application, they may be punished by being made to pay the costs of an action instituted in consequence (n) ; and, where an accounting party destroys (d) Ibid. ; Boberts T. HoUrts, 2 V.-C, Komp v. Bmn, i Giff. 349. Lee, 399. (k) Per Lord Eldon, Walker v. (e) Taylor v. Newtcm, 1 Lee, 15. Symonds, 3 Sw. 58. (/) Kenny v. Jackson, 1 Hagg. (Z) Ottley v. Cfilby, 8 Beav. 602. Eccl. 105. (™) See Kemp v. Burn, 348. (g) Pitt V. Woodham, ibid. 250. (») Springett, v. Dashwood, 2 Giff. On the subject of the inventory, see 521; Kemp y. Burn, ubi supra; further Wms. Exors. 977. Wroe v. Seed, 4 Giff. 425 ; Newton (A) Per Lord Eldon, Freeman v. v. Askew, 11 Beav. 152. See Anon., Fairlie, 3 Mer. 43. 4 Madd. 273 ; Payne v. Evens, L. R. (i) Per Plumer, M.R., Pearse r. 18 Eq. 356; Talbot v. Ma/rshfieU, Oreen, IJ. & W. 140 ; Per Stuart, L. R. 3 Ch. 622. establishment, l-'^S DUTIES OF the accounts before the matters have been finally adjusted, and, still more, pending a litigation, the Court will pre- sume everything most unfavourable to him consistent with the established facts (o). up Executors must be allowed a reasonable time for break- ing up a testator's domestic establishment and discharging his servants, and two months have been considered not unreasonable delay, having regard to the circumstances of the case {p). Care of trust Executors and administrators ai'e expected to take the same care of the trust funds as a reasonable attention to their own affairs would dictate to them to take of their own property {q). Converting and A residuary legatee has a right to insist that in the estate. Course of the first year after the testator's death the executor shall, if it be possible, pay the debts, legacies, and funeral and testamentary expenses, so that the clear residue may be ascertained, and paid over to him, or, if he has only a life interest in it, may be duly secured for the benefit of the persons successively entitled. In order to effect this object, it is the duty of the executor to sell the personal estate, or at all events so much of it as is required for the payment of debts, legacies, and funeral and testa- mentary expenses ; and, if from any cause it has been im- possible to ascertain the clear residue by the end of the year, still it is from that date that the right of those entitled to life interests in it commences, and, when even- tually the whole estate is realised, it becomes necessary to ascertain retrospectively what was the residue at the end of the year, attribTiting a due proportion of the sum realised after the end of the year to capital, and a due (o) Chray v. Saig, 20 Beav. 219 ; Beav. 676. and see White v. Lady Lincoln, 8 (j) Massey y. Sanner, 1 J. & "W. Ves. 363. 241. SeeJonesy. Lems, 2Ves. seni". ( p) Field V. Fec/cett (No. 3), 29 240. EXECUTOES AND ADMINISTRATORS. 153 proportion to interest (r). There is no fixed period at ■which executors ought to realise assets ; it depends on the particular nature of the property, and the evidence affect- ing it (s). The result of the authorities seem to be that there is no fixed rule that conversion must take place by the end of the year, but that that is the primd facie rule, and that executors who have not converted by that time must show some reason why they did not do so {t). In all these cases a large discretion is allowed to the executors ; but, suppose the testator possessed a large quantity of horses, it would be culpable to keep them at a great expense, incurring necessarily a great outlay for their maintenance, instead of selling them at once (u). A difference of opinion between two executors as to the propriety of con- verting the assets at a particular period, followed by a demand made by one of them upon the other to concur in effecting an immediate conversion, does not deprive the latter of the right to exercise his own discretion, or [neces- sarily] render him liable for the loss that may arise from the delay consequent on his declining to comply with the demand {x). Executors ought not, without great reason, to permit money to remain upon personal security longer than is absolutely necessary, though it was lent upon that security by the testator {y). A direction in a will that they should call in securities not approved by them must be considered as referable to securities upon which a (r) Per Lord Cranwortli, Wight- this subject ^os<, p. 206. wick V. Lord, 6 H, L. C. 226. It [x) Buxton v. Buxton, 1 M. & Or. is the duty of executors to get in 80. property specifically bequeathed at (y) Powell v. Evans, 5 Ves. 844. the expense of the general estate Bullock v. Whcatley, 1 Coll. 130. [Percy v. Meddowcroft, i Beav. 204). A debtor to the estate cannot obtain (s) Hughes v. Empson, 22 Beav. a stay of an action brought against 181. him by the personal representative {t) Per Page "Wood, L.J., Gray- to recover the debt, on the ground lurn V. Clm-Tcson, L. E. 3 Ch. 606. that such representative intends to (m) Per RomlUy, M. E. , Hughes misapply the money when received V. Empson, 183. See further on [Sarthez v. Winter, 2 S. & S. 636). 154 DUTIES OP Suing debtor after complete administration by Court. Appointment of debtor as executor no extinguish- ment of the debt. testator's estate might from their nature be invested, and not as authorising a kind of investment which a Court of Equity would not sanction : the confidence which the tes- tator reposed in the debtor, and the manner in which he entrusted property to his keeping, cannot be considered as furnishing a rule for a similar mode of dealing with him by the executors, and evidence of the testator's intention in this respect cannot be attended to (0). After an estate has been fully administered by the Court, the executor will not be permitted without leave to prosecute an action to recover part of the testator's pro- perty from a party to the suit (a). In connection with the duty to get in the deceased's estate, it must be observed that, where a debtor is ap- pointed executor, or takes out administration to his credi- tor, this is no extinguishment of the debt, though it was formerly otherwise at law (6) : a trust is in such case raised for a residuary legatee (c), and the next of kin (d), and, semhle, the debt is assets to pay legacies in general (e). A testator died in 1842, having appointed T. E. and others his executors. T. R, who owed the testator 300L on a promissory note, did not prove the will ixntil 1855 : held that he could not then set up the Statute of Limitations in respect of his debt, that the act of proving had relation to the testator's death, and that he must be considered as having the BOOl. in his hands as assets, and be charged therewith with interest from 1855 (/). If the executor says he has no such assets in his hands as are alleged, if he denies the existence of the debt, the beneficiaries may (s) Per Ld. Cottenham, Stiles v. Guy, 1 H. & T. 528. {a) Oldfieldy. Cobhdt,5'Raa.y. 515. (J) Anon., Freem. Ch. 52 ; Carey V. Ooodinge, 3 Bro. C. C. 110 ; Berry v. Usher, 11 Ves. 87 ; Sim- mons V. GuUeridge, 13 Ves. 264. (c) Brovm, v. Selwyn, Cas. t. Talbot, 240. (d) Carey v. Goodinge, uK supra. (e) Per L. C. Talbot, Brown v. Selwyn, 242. (/) Ingle v. Richards (No. 2), 28 Beav. 366. EXECUTOES AND ADMINISTRATOES. 155 treat hhn as any other debtor of the estate, who might be brought before the Court on the allegation of colluding with the executor, and under such circumstances the plaintiff would be entitled to a decree for recovering the debt against him as from a stranger who was indebted to the estate (g). Executors, whose testator was the assignee of a leasehold Onerous lease- estate, of which the rent was greater than its yearly value, were ordered by the Court to take such steps as might be necessary to relieve the testator's estate from liability under the lease. They endeavoured, but ineffectually, to prevail on the lessor to accept a surrender, but took no further steps. It was held that they ought to have assigned the lease, even (as it would seem) to a pauper ; and, not having done so, they were bound themselves to exonerate the testator's estate from the liabilities to which it had been subject in respect of the lease since the time at which they might have made such assignment (h). It is the rule of the Court that, in the absence of any lavestment special direction, it is the duty of an executor or adminis- trator to invest any sums of sufficient amount ; he has no right to have money, as it were, wrapped up in a napkin, though, no doubt, if there are payments to be made, he is justified in keeping balances adequate for those pay- ments (i). Where trust funds are invested on an inade- quate security, it is the duty of trustees to re-invest them, although the written consent of the tenant for life, rendered necessary to any change of investment, is refused, and the security is one expressly authorised by the trust (k). (g) Per Wigram, V.-C, Tomlin (i) P«r Kindersley, V.-C, Edgar V. Tomlin, 1 Ha. 247. As to actions v. Beyrwlds, i Dr. 274. Consider ty a beneficiary against tlie legal Johnson v, Newton, 11 Ha. 168. As personal representative and an al- to what are authorised investments, leged debtor, see Teatman v. Yeat- see ante, p. 141. man, L. E. 7 C. D. 210. (k) Harrison v. Tkexton, i Jur. Qi) Rowley v. Adams, 4 M. & Cr. N. S. 550. 634, 156 DUTIES OF Precautions Executors, in lending on mortgage, ought not to employ mortgage. the mortgagor's solicitor (I). They ought to employ a surveyor well acquainted with the locus in quo, or they may be personally answerable (m). Trustees cannot be advised to advance more than two-thirds of the actual value of the estate, if it be freehold land, and, if the pro- perty consist of freehold houses, they should not lend so much as two-thirds, but (say) one-half of the actual value : the rule, however, of two-thirds or one-half is only a general one, and, where trustees have lent on the security of property of less value, but have acted honestly, they have been protected by the Court, and have been allowed their costs (n). Where suoces- Where successive estates are limited, the scale in invest- arriimited nients should of course be held evenly as between all the scale in in- parties, and the tenant for life should not be allowed by vestments to -^ _ ■' be held evenly: an investment on a security less safe or less permanent V. Lord Dart- than the usual one, and therefore yielding to the present mouth. holder an increased rate of interest, to advance himself at the expense of the remainderman (a). The rule as laid down by Lord Eld on in Howe v. Earl of Dartmouth (p), and as explained by subsequent decisions, and particularly by Lord Cottenham in Pickering v. Pickering (q), amounts to this, that, where there is a residuary bequest of personal estate to be enjoyed by several persons in succession, a Court of Equity, in the absence of any evidence of a con- trary intention, will assume that it was the intention of the testator that his legatees should enjoy the same thing in succession, and, as the only means of giving effect to such intention, will direct the conversion into permanent investments of a recognised character of all such parts of (l) See Waring t. Waring, 3 Ir. referred to. Ch. K. 331. (o) Lewin, 305, refening to Raby (m) Budge v. Chcmmow, L. R. 7 v. Ridehalgh, 7 De G. M. & G. 104. Ch. 719. (.P) 7 Ves. 137. (n) Lewin, 298, and cases there (q) i M. & Cr. 289. EXECUTORS AND ADMINISTRATORS. 157 the estate as are of a wasting or reversionary character, and also all such other existing investments as are not of the recognised character, and are consequently deemed to be more or less hazardous (r). It follows that trustees, who must be guided by the practice of the Court, would not be justified, in the absence of a special power, in investing trust moneys settled upon several persons succes- sively upon any securities which by the rule of the Court would be liable to be converted into other securities (s). If a suit be commenced for administration of the estate, Faomtating . . » 1 1 . . f -I- administration it IS the duty of executors and administrators to facilitate by Court. the obtaining a decree, by which the estate may be pro- tected from actions If). An executor is not bound to insure, or continue the Insurance, insurance of, his testator's property against fire (u), though the testator himself was bound to do so {x). The naming of A and B executors is by implication the Payment of laying upon them an obligation to pay all the testator's of priorHy.^"^ debts {y) ; but it is their duty, as far as possible, to pre- serve articles specifically bequeathed according to the tes- tator's wish, and, unless compelled, they ought not to apply them to such payment {z). The executor or ad- ministrator must observe the rules of priority. And (first) he may pay all funeral charges, and the expense of proving the will, and the like, (secondly) debts due to the king, (thirdly) such debts as are by particular statutes to be pre- ferred to all others, (fourthly) debts of record, as judg- ments, statutes, and recognisances (a). Lastly come specialty (r) Per BaggaUay, L.J., Mac- Ex. 221. V. Irvim, L. E. 8 C. D. {x) Fry v. Fry, 27 Beav. 146. 112. As to property in India, see {y) Went. 10. Holland v. Sughes, 16 Ves. Ill ; («) Clarice v. Earl of Ormonde, Dimes v. Scott, i Euss. 195. Jac. 108. See Brown v. Allen, 1 (s) Lewin, 306. Vern. 31 ; Einton v. Pinke, 1 P. (Jt) Clarice v. Earl of Ormonde, Wms. 539 ; Sleech v. Tltoringion, Jac. 108. 2 Ves. senr. 560. {u) Bailey v. Gould, 4 Y. & C. (a) 2 Bl. Comm. 611, 158 DUTIES OF Expenses of funeral, and adminis- tration. OroTvTi debts; and simple contract debts. We will say a few words of each in turn, first premising that it is not competent to a testator to disappoint these rules of law (b), and that the priorities of creditors are regulated by the domicil of the deceased, though the personal assets may be situate and administered in another country (c). Funeral expenses, according to the degree and quality of the deceased, are to be allowed before any debt or duty whatsoever (d) ; no doubt they are to be preferred even to a debt due to the Crown (e). Costs of a suit (here for payment of legacies) are to be considered as expenses in administering the estate, and [qu. which] are the first [qu. second, i.e., postponed to funeral expenses] charge upon an estate, whether adminis- tered in or out of Court (/). If the assets are insufiicient to pay the costs of all parties, the executor's costs have priority (g), though he has voluntarily confessed judgments which have swept away the assets (h) ; and costs of litiga- tion in the Probate Division, although ordered by that Division to be paid out of the estate, will be postponed to the costs of an administration action in the Chancery Division (i). The priority of payment of the King's debt is as old as Magna Charta (Jc). Amongst other Crown debts is pro- bate duty, for which credit has been given (I). (b) See per Kniglit Brace, L.J., Turner v. Cox, 8 Moo. P. C. 317. (c) Wilson V. Lady Dunsany, 1 8 Beav. 293 ; Cook v. Gregson, 2 Dr. 286, cited with approval by Ld. St. Leonards in Carron Iron Co. v. Madaren, 5 H. of L. C. 455. {d) 3 Inst. 202. See further ante, p. 150 ; post, pp. 200, 227. (e) Per Eichards, C.B., Res: v. Wade, 5 Pr. 627. (/) Per Sir J. Leach, Loomes v. Stotherd, 1 S. & S. 461. (g) Tipping v. Power, 1 Ha. 405 ; ffmmi v. Taylor, 2 Ha. 413 ; Mw- hegin v. Bell, 23 Beav. 386. (7t) Sanderson v. Stoddart, 32 Beav. 155. (i) Major v. Major, 2 Dr. 281 ; Howies V. Mayhew, L. E. 5 C. D. 596. (h) Magna Charta, c. 18. {l) 55 Geo. 3, o. 184, s. 48, Ap- BXECUTOKS AND ADMINISTRATORS. 159 Instances of debts having a statutory priority are debts Debts having owing by deceased overseers of the poor (m), officers oi^^^^yf friendly societies (n) and savings banks (o), virtute officii, and the regimental debts of an officer or soldier of the army or Indian army dying on service (p). In all these cases, the words of the statutes are large enough to give these debts an absolute priority, even over funeral and testamentary expenses and Crown debts ; but it may be questioned whether such was the intention of the legislature. Between one judgment and another had against the Judgments, testator, precedency or priority of time is not material, but he which first sueth execution must be preferred (q). Judgments against executors are payable out of the tes- tator's assets according to their respective dates (r). A judgment and a decree obtained on the same day were considered to have been obtained at the same moment (s). The statute 32 & 33 Vict. c. 46 (t) does not prevent a judgment creditor, who has obtained judgment against an executor before administration decree, from having priority over the other creditors, though his judgment be not registered (u). A debt by decree in equity, pro- pendix, p. 289. By the same sec- (o) 3 & 4 W. i, c. li, s. 28. tion an executor or administrator {p) 26 & 27 Vict. t. 67. This paying any debt in preference there- Act contains various other pro- to shall be personally charged there- visions important to executors or with (and see post, p. 228), and also administrators of such an oifioer or forfeit 500Z. soldier so dying. {m) 17 Geo. 2, o. 38, s. 3. {q) "Went. 269. (w) 38 & 39 Vict. c. 60, s. 15, (r) Dollond v. Johnson, 2 Sm. & sub. -sec. 7. %z^ Esi parte AmicaMe G. 301. Society of Lancaster, 6 Ves. 98 ; (s) ParTcer v. Eingham, 33 Beav. Exparte Ashley, ibid. 441 ; Exparte 535. Ross, ibid. 802 ; Ex parte Stamford {t) Appendix, p. 317. Friendly Society/, 15 Ves. 280 ; Ex (m) Williams v. Williams, L.E. parte Bvdcland, Buck, 214 (respec- 15 Eq. [270 ; per Jessel, M.E., tively decided under an earlier Hanson v. Sticbbs, L. E. 8 C. D. enactment to the same effect), and 155. So a judgment obtained after Ex parte Swansea Friendly Society, the institution of a creditor's action, L. E. 11 C. D. 768. but before any decree was made. 160 DUTIES OF vided it be final, and not merely a decree to account {v), is equal to a judgment (w) ; but a decree to account has not that force, even though there be superadded a direc- tion for payment out of the result of the account {x) ; a mere order nisi to sign judgment is not effectual to give priority {y), and a foreign judgment constitutes but a simple contract debt {z). Executors at their peril ought to take cognisance of debts upon record (a) ; having or not having notice of a judgment is not material (&), executors being presumed to take notice of all judgments, even in the inferior Courts of law (c), and also of decrees in equity {d). A recognisance (which is an obligation of record, which a man enters into before some Court of record or magis- trate duly authorised, with condition to do some particular act, as to appear at the assizes, to keep the peace, to pay a debt, or the like (e) ), must be enrolled to insure its priority (/). was held to have priority over the Ves. senr. 214. creditors coming in under the decree [w) Shafto v. Powd, 3 Lev. 355 ; (Larkins v. Paxton, 2 Beav. 219 : SearU v. Lane, 2 Vern. 89 ; Asfley the circumstances showed great dila- v. Fowis, 1 Tes. senr. 496. toriness on the part of the Chancery [x) Perry v. Philips, 10 Ves. 34. suitors) ; but in a creditor's suit, {y) Per Jessel, U.K., Hanson v. where the plaintiff did not satisfac- Stubls, L. E. 8 C. D. 156. torily prove his debt, and the bill (z) Wilson v. Lady Dunsany, 18 was retained, with liberty to esta- Beav. 293. blish the debt at law, Ld. Langdale {a) Littleton v. HibUns, Cro. Eliz. expressed himself surprised at the 793. notion, which had been entertained (J) Searle v. Lane 2 Vem. 89 ; by some of the parties, that the per Littleton, J., Hall v. Tapper, 3 plaintiff could, by the proceedings B. & Ad. 656. at law, taken by leave of the Court, (c) Per Jekyll, M.R., Herherts obtain any priority over the other ca., 3 P. Wms. 117. creditors on behalf of whom he was {d) Per L.C. King, Sorrell v. suing in the Court of Chancery Carpenter, 2 P. Wms. 483. {Gibert v. Hales, 8 Beav. 236). (e) 2 Bl. Com. 341. (d) Mason v. Williams, 2 Salk. (/) BothomUyv. Lord Fairfax,! 507 ; Morricev. Bank of England, P. "Wms. 334 ; Olyn v. Thorpe, 1 Cas.'t. Talbot, 223; /S'mtftv.£'i/?es, B. & Al. 153. See FotJiergill y. 2 Atk. 385; Martin v. Martin,! Kendriclc, 2 Yern. 234. EXBCUTOES AND ADMINISTRATORS. 161 Statutes are practically obsolete, and need not be parti- Statutes. cularly noticed. All specialty and simple contract debts now stand in Specialty and equal degi-ee (g), except that by the practice of the Court de'bte ''°''*''^' a solicitor, having a lien upon the deceased's estate, is entitled to be paid before the rest of the specialty and simple contract creditors (h), and that in an old case it was held that the King's debt, not of record, was to be paid before the specialty or simple contract debts of a subject (i). No executor is compellable to take advantage of the Executors and . . administrators Statute of Limitations (k) ; the debtor s executor may, m need not plead his representative capacity, satisfy the conscience of his Limitations testator (l). He may pay statute-barred debts, notwith- standing the personal estate is insufficient, and will be allowed such payments as against the devisees of real estate, upon which other debts are in consequence thrown (m). (g) 32 & 33 Vict. c. 46, Ap- pendix, p. 317. Kent is a specialty debt within the Act (Shirreff v. Bastings, L. R. 6 C. D. 610). It must he ohserved that, in consequence of the Act, a judgment against an executor for a simple contract deht will obtain indirectly priority over specialty debts [Per Wickens, V. -C, Williams t. Williams, L. R. 15 Eq. 273). (A.) See Turner v. Gibson, 3 Atk. 720 ; Lloyd v. Mason, 4 Ha. 132. [i) Sex V. Burnett, cited Bac. Abr. Exors. (L. ) 2. Where an executor is mortgagee of the testator's real estate, and also a legatee under his will, he is not bound to satisfy the mortgage debt out of the first suf- ficient sum of personal assets that comes to his hands, the reason being that, if he were compelled to do so, and thus to exhaust the personal estate, he would he entitled to come against the real estate to the extent to which the legacy remained un- satisfied {Binns v. Nicholls, L. R. 2 Eq. 256). (k) Per Lord Hardwicke, Norton V. Frecker, I Atk. 536 ; Ld, Castle- ton V. Ld. Fanshaw, Free. Ch. 99 ; Stahlschmidt v. Lett, 1 Sm. & 6. 415. See Briggs v. Wilson, 5 De Gr. M. & G. 12 ; a.nipost, pp. 167, 227. For the practice, in an administi-a- tion action, as to others than the executors setting up the statute against creditors, see Shewen v. Vanderhorst, 1 Russ. & M. 347, 2 Euss. & M. 75 ; Moodie v. Ban- nister, 4 Dr. 432 ; Fuller v. Red- man (No. 2), 26 BeaT. 614 ; Alston, V. Trollope, L. R. 2 Eq. 205. (1) Per Ld. Lyndhurst, Willia^n- son V. Naylor, 3 Y. & C. Ex. 210, n. (a). (m) Lowis V. Rumneii,!^. R. 4 Eq. 451. ■J 62 DUTIES OF but must not But, where creditors have compounded for less than the pay creditors <. , • i i i • ■, • , , i more than they amount 01 their debts, under a misapprehension as to the poundeiTfor ^issets, semble the executors may not, on the assets proving sufficient, pay them the whole amounts against the wish of the residuary legatees (n). B. Uxecutors' and Administrators' Right of Preference and Retainer. In connection with the payment of debts by executors and administrators must be considered the important subject of their rights of preference (o), and retainer. Executors and The law, said Abbott, C J. (p), imposes on the executor may prefer a the burthen of paying the debts of the testator in a parti- creditor at any ^3,1- order. On the other hand, it confers on him certain time beiore judgment for privileges. One of these privileges is that among creditors admiuistra- „ , , t . „ tion. of equal degree he may pay one m preierence to another. He may even, after actions are commenced against him by a creditor on simple contract, confess a judgment in favour of another creditor of equal degree, and thus give the latter a preference. That was expressly decided in Pi^i/ace V. Nicholson (q). Similarly, it is laid down in a very recent case (r) that an executor or administrator, after the commencement of a creditor's action and before judgment, may voluntarily pay any creditor in full, though he may have had notice of the action, and he will be allowed such payment in his accounts (s). But this right of preference ()i) See Id. Castlelon v. Ld. Fan- Danvers, 1 P. "Wms. 295. But he shaw, Free. Ch. 99. cannot so confess to a sti'anger, a (0) Where, on taking an account, mere trustee for creditors ( Tolp%M a. balance was found due to the v. Wells, 1 M. & S. 403). executor for money advanced, he (r) European Assurance Society was held entitled, the estate being T. Radcliffe, L. E. 7 C. D. 733. See insolvent, to be paid in full in pri- further Malthy v. Eussell, 2 S. & S. ority to the creditors [Spademan v. 277 ; Earl Vane v. Bigden, L. E. 5 EolhrooTc, 2 Giff. 198). Ch. 663. (p) Lyttleton v. Cross, 3 B. & C. (s) The only way to prevent such 322. payments being made is by the (y) 5 Taunt. 665 ; Waring v. plaintiff, upon issuing the writ, EXECUTOKS AND ADMINISTBATORS. 163 ceases when a decree for administration has been pro- nounced (t). .If a person, indebted to another, makes his creditor his Theory of the executor, or if such creditor obtains letters of administra- reWner. "^ tion (u) to his debtor, in these cases the law gives him a remedy for his debt, by allowing him to i-etain so much as will pay himself before any other creditors whose debts are of equal degree. This is a remedy by the mere act of law, and grounded upon this reason, that the executor cannot without an apparent absurdity commence a suit against himself as representative of the deceased, to recover what is due to him in his private capacity, but, having the whole personal estate in his hands, so much as is sufficient to answer his own demand is by operation of law applied to that purpose (v). An executor has a right to prefer one creditor to another, as amongst credi- tors of equal degree : it follows that, if he is a creditor, he has a right to prefer himself to another creditor of equal degree. This is called "retainer," because he has the immediately applying for and ob- Blaokstone (p. 19) proceeds to point tainlng a receiver {.Per Jessel, M. out that the doctrine of retainer, R. , ibid. ). though inequitable, was yet a neces- {t) See ante, p. 148; post, p. 228. sary consequence of tie rule that the (m) Including administrations du- creditor who first sued for his debt rante minore cetate {Bryars v. God- had priority of payment ; as the dard. Hob. 260 ; RoskelVy v. executor or administrator could Oodolphin, Sir T. Eaym. 484) and commence no such suit, he would de bonis non {Weeks v. Gore, 3 P. be paid the last of all, or, if the Wms., 184, n.). A person may estate should be insolvent, might also retain, for whose use admini- lose his debt, unless he were allowed stration has been granted to another to retain it : and, inasmuch as pri- {Franks v. Cooper, i Ves. 763). ority of judgment against a legal {v) 3 Bl. Com. 18. This doctrine personal representative confers pri- has sometimes been explained by ority of payment, notwithstanding reference to the maxim "in cequali 32 & 33 Vict. c. 46 (Appendix, p. jure potior est conditio possidentis." 317; Williams y. Williams, L. E. But there would seem to be no 15 Eq. 270), this justification of foundation for this view, mere pos- retainer remains. That this Act session conferring no right of re- does not affect the right of retainer, tainer ; see per Jessel, M. R., Talbot see Hanley v. M'Dermott, Ir. R. 9 V. Frere, L. R. 9 C. D. 568, 575. Eq. 35. M 2 164 DUTIES OP money in his own hands, but it is in reality the exercise of the right of preference in his own favour {w). The right of retainer is a mere passive right, and consists only in holding the assets, or in asserting a right to hold the assets, which is the same thing. It is a right that exists as well before the assets are received as after they are received, while they are in his hands [x). No retainer We find it judicially stated that the doctrine is one legal assets, which the Court is not disposed to extend {y) : Yerney, M. R., said — the rule of this Court in cases of retainer is, unless the party can show a legal right to retain, we never give it him ; if he can show a legal right, we never take it from him (z) ; if you must come here, said Lord Keeper Wright, you cannot prefer yourself, — a Court of Equity will never assist a retainer (a). In other words, there can be no retainer, except out of legal assets. Bight to re- ^ personal representative (6) may retain, notwithstanding away by a decree for administration has been made in a suit by the administra- other creditors, and the assets out of which he seeks to *'°°' retain come to his hands after decree (bb) ; moreover, his {w) Per Jessel, M. R. , Talbot v. (z) Chapman v. Turner, Vin. ¥rere, L. R. 9 C. D. 570. But if Atr. Bxors. (D. 2), 2. the executor's right of retainer de- (a) Sopton v. Bryden, Free. Ch. pends upon his right of giving pre- 181 ; Ohainbers v. Harvest, Moseley, ference to a creditor, it would he 124. taken away by a decree for adminis- (6) In the following pages some- tration, since after a decree an exe- times executors, sometimes admini- cutor cannot prefer one creditor to ti-ators, are alone mentioned, accord- another [per James, L. J. , Lee v. ing as the cases cited deal with the Nuttall, L. R. 12 C. D. 64.) one or the other ; hut it must be {x) Per Stuart, V.-C, Staid- remembered that, so far as regards Schmidt V. Lett, 1 Sm. &G. 420. The the right under consideration, the Court refused to order an executor two classes of personal representa- to pay into Court money which by tives stand upon precisely the same his answer he stated he had retained footing, except so far as adminis- in satisfaction of a debt due to him trators have been put upon an un- from the testator {Middleton y. dertaking : see Brackenbury, in the Poole, 2 Coll. 246. ) goods of, cited ante, p. 47. {y) Per Hall, V.-C, Richmond (bb) Nunn v. Barlow, 1 Sim. & V. White, L. R. 10 C. D. 727. St, 588 ; Sharman v. Miidd, 27 L. EXECUTORS AND ADMINISTRATORS. 165 right prevails against the plaintiff's right to have theprevans [,-,,, , . , . against the costs of the suit satisfied (c), for he is in the same situation plaintiff's as a creditor whose debt was paid before the suit, and who '"'* ^' cannot therefore be afterwards affected by the costs of the administration (d). Where the same individual was the administrator of both A and B, whose estates were being administered by the Court, and A's estate was found indebted to B's, it was held that the administrator was entitled to retain the debt out of A's assets in preference so A's other creditors (e). A creditor proved his debt in an administration action, and then died, having bequeathed the debt to the executrix of the testator in the cause : it was held that she had no right of retainer in respect of it (/). The personal representative does not lose his right by a^j ;g ^^^ log* paying the assets into Court (g) ; he may assert it, not only ^f'^^g'^^ggtg after the assets have been so paid in by him, but at any into Court ; in time before the distribution of the estate (h), though, if be asserted at there be on his part any improper concealment, or any f°r^*^^a^s, unfair or improper statement, that might be material (^). are distributed, 111 liilC 3(bS6IlC6 He has been allowed to retain out of a fund which was never of improper actually in his hands, but was paid into Court by a debtor to the estate with his concurrence, though without his then taking any steps to protect himself (Jc) : the effect of the order to pay in was the same as if it had been to pay to the executor, and then for him to pay into Court (l) ; the J. Oh. 8^4. The Chief Clerk has 420. no authority under the common (* i"™* debt, must abate rateably (h). No retainer as The executor of an executor may retain towards satis- between joint . ; "^ . executors and faction of a debt owing by the first testator, because he is administrators. executor of the first testator ; but, if one be indebted to A, Executor of executor may and makes A and B his executors, and dies, and then A retain for debt makes C his executor, and dies, C cannot retain, because testator. he is not executor of the first testator (i). It is no objec- tion to the personal representative of a deceased creditor succeeding to the latter's right of retainer, that the creditor did not before his death elect in what manner he would exercise his right; the Court will assume that he elected to have his own debt paid first (k). The question has been raised by a writer of repute (l) The Judicature • . Act in connec- wh ether the executor s right of retainer has not been tion with the indirectly abolished by the Judicature Act (m). The retaSer." question must be answered in the negative. So old and well-established a doctrine could hardly be abrogated except directly and by express terms, which are not to be found in the section which has suggested the point. Moreover, the section only applies to administrations by the Court, and it could never have been intended that, while personal representatives remained, so long as they contrived to keep clear of the Court, in possession of a valuable privilege, the Court should wrest it from them, directly they solicited the protection of the law. Indeed the question has very recently been decided in favour of execu- tors upon other grounds than those suggested above (n) (h) Chapman v. Turner, 9 Mod. personal election), this would seem 268. to be right upon principle ; but see [i) Sopton T. Dryden, Free. Ch. Burge v. Brutton, 2 Ha. 373, in 179 ; Thomson v. Grant, 1 Euss. wbich, however, Weeks v. Gore was 540 ; Burnet v. Dixe, ante, p. 166. not cited. See Chap. IT. (I) Wms. P. P. 372. {k) Weeks v. Gore, 3 P. Wms. (m) 38 & 39 Vict. c. 77, s. 10, 184, n. If, as Blackstone says Appendix, p. 321. (flnfe, p. 163), retainer is an opera- («) Lee v.NiUtall, L. E. 12 C. D. tion of law (as distinguished from a 61. 170 DUTIES OF SO that it must be taken to be quite clear that the privi- lege of retainer is unaffected by the recent legislation. C. The Payment of Legacies and Annuities. Within what The debts of the testator being paid, it becomes the period legacies , . t n • i i i duty of an executor to pay the legacies he has be- queathed. But he need not pay them till a, year has elapsed from the death of the testator (a), though he may pay them earlier if he chooses (b), provided that payment is not deferred by the terms of the gift. If the solvency of the estate is beyond all question, and the property is immediately available, the adherence to the rule which gives a year seems to be an abuse of it (c). and anninties Inasmuch as annuities commence from the testator's ought to be paid. death (d), the first payments on account of them are to be made at the end of the year (e), unless an earlier period is directed by the will (/) ; but it seems doubtful whether the rule is the same in the case of annuities out of resi- due (g). To say that the first quarterly or half-yearly payment of an annuity shall be made at a given period {a) See Pearson v. Pearson, 1 to disclose a prior charge of which Sch. & Lef. 11 ; Benson v. Maude, he also has notice (.SicpAe^w v. Fena- 6 Madd. 15; Brooke v. Lewis, iUd. Mes (No. 2), 31 Beav. 124). Atrus- 358. By a rule, adopted for the tee who receives notice of an assign- sake of general convenience, the ment of the trust fund made by the Court holds the personal estate to cestzd que trust is not, in the absence be reduced into possession within of inquiry, bound to inform the the year r upon that ground, into- person giving him the notice that rest is payable upon legacies from he himself has a prior assignment, that time, ixnless some other period By omitting to give that informa- is iixed by the will, though actual tion the trustee wiU not lose his payment may in many cases bo priority (Re Lewer, L. E. 4 C. D. impracticable within that time {per 101 ; see L. R. 6 C. D. 61). SirW. Grant, Woody. Penoyre, 13 (d) Gibson v. Bott, 7 Yes. 96; Ves. 333, 334). Stamper v. Pickering, 9 Sim. 176. (b) Pearsony. Pearson, ubi supra; («) Gibson y. Bolt. Angerstein v. Martin, T. & E. 241. (/) Houghton v. Franklin, 1 S. (c) Hayes & Jarman, 165. An & S. 390. executor, on receiving notice of a (•) Livesey v. Livesey, 3 Russ. rcuK, said Knight Bruce, V.-C, the 287. Court struggled against the effect («) Brooke v. Saymes, L. E. 6 Eq. of a general rule, the propriety of 25 ; Foster v. Ley, 2 Bing. IS. C. which has been doubted (Comptmi 269. V. Bloxluim, 2 Coll. 202). See ante, [t) Toller, 369. p. 172. EXECUTORS AND ADMINISTRATORS. 179 cutors are by statute deemed to be trustees thereof for 'beneficially, •"^ ... or as trustee the next of kin under the Statute of Distributions, unless for next of it appear by the will that they were intended to take beneficially (x), without prejudice, however, to the execu- tors' right, where there is not any person entitled to the residue under the last-mentioned statute {y). The enact- ment under consideration was meant to cast on the executor, in cases where there are next of kin in exist- ence, the burthen of proving from the testamentary instrument a distinct intention that he should take the residue beneficially (z), and parol evidence is inadmissible to show such intention, the Act requiring that it should appear by the will (a). But the statute did not introduce any new rule for the construction of wills. It provides that an executor shall be trustee for the next of kin, unless it shall appear by the will that he is to take the residue beneficially. That is to say, he shall no longer take the residue by implication of law. If the residue is given by the will to the executor, the Court must decide the efifect of the gift upon the construction of the will, and upon general principles applicable to that construc- tion, just as before the statute it would have construed a similar gift of real estate. The statute, therefore, said Lord Cairns, has, of necessity, no application where there is an express gift of residue. It was intended to apply only to those cases, where the rule or presumption of law could be held to operate, and that, where an express bequest of residue is found, the meaning of that residuary bequest must be ascertained by the ordinary rules of con- (k) 1 Wm. 4, c. 40, s. 1, Appen- Harrison v. Harrison, 2 H. & M. dix, p. 291. 237 ; Shepherd v. Nottidge, 2 J. & (y) Ibid. s. 2, Appendix, p. 291. H. 766. («) Per Komilly, M.E., Juler v. (a) love v. Gaze, 8 Beav. 472; Juler, 29 Beav. 37 ; Head v. Sted- Briggs v. Fenny, 3 De G. & Sm. man, 26 Beav. 495. Cases in which 525 ; Irvine v. Sullivan, L. R. 8 such intention has been proved : Eq. 674. N 2 180 DUTIES OF struction (h). It has, however, been held that bequests of residue directly to the executors are withiu tie Act, if from any cause it be uncertain who was intended to take the beneficial interest (c), or if the trusts declared are void (d). Where no intention appears that the execu- tors should take the residue beneficially, and there are no next of kin, the executors are trustees for the Crown (e). Distribution by The duties of administrators in respect of the distri- administrators. , . „ , . , „ . bution of the residuary estate of an mtestate are regu- lated by the statutes known as the Statutes of Distribu- tion (/), which lay down the proportions in which parties claiming under those statutes are entitled to share (g). It is to be borne in mind that children who have been advanced by the parent in his lifetime must bring the amount of their advancement into hotchpot before they can share under the statutes (h), that if any brother or sister shall have died in the lifetime of the intestate, leaving children, such children shall stand in loco pa- rentis, provided the mother or any brother or sister be living (i), but that beyond brothers' and sisters' children, (J) Williams v. Arkle, L. R. 7 sider Mussell v. Clowes, 2 Coll. 6i8. H. L. 615. See Travers v. Travers, See further Wms. Exors. 1483. L. E. 14 Eq. 275 ; Johnson v. John- (/) 22 & 23 Car. 2, c. 10, s. 2, son, 4 Beav. 318. Appendix, p. 276 ; 29 Car. 2, c. 3, (c) See Andrew v. Andrew, 1 s. 25, Appendix, p. 278 ; 1 Jac. 2, Coll. 686 ; Briggs v. Penny, 3 De c. 17, s. 7, Appendix, p. 278. See G. k Sm. 525 (compare Irvi^ie v. Stanley v. Stanley, 1 Atk. 457. Sullivan, 1,. R. 8 Eq. 674); Salt- {g) See further Wms. Exors. 1494. marsh v. Barrett, 3 De G. F. & J. (A) 22 & 23 Car. 2, c. 10, s. 2. 279; Juler v. Juler, 29 Beav. 37 ; But the heii- at law need not ac- Barrs v. Fewkes, 2 H. & M. 60 ; count for the value of any real estate Bird V. Harris, L. R. 9 Eq. 20. coming to him from the intestate (d) Dacrev. Patrickson, 1 Dr. & (ibid.). As to what are advances Sm. 182; Chester v. Chester, L. R. within the section see 5oj/(i v. .Bor/d, 12 Eq. 444. See Johnstone v. L. R. 4 Eq. 305 ; Taylor v. Taylor, Hamilton, 6 N. E, 352. L. R. 20 Eq. 155. (e) Taylor v. Haygarth, 14 Sim. (i) Lloyd v. Tench, 2 Ves. sr. 8; Meadv. Stedman, 26 Beav. 495; 215; Durant v. Preslwood, 1 Atk, Chester V, Chester, uU supra. Con- 454, EXECUTORS AND ADMINISTEATOES. 181 no right of representation belongs to the children of relatives with respect] to the share which their deceased parents would have taken (Ic), and, lastly, that brothers and sisters of the half-blood are equally entitled with those of the whole blood {I). Thus much in the case of persons dying domiciled in Distributloa £fov6rnGcl bv places where English law prevails. But the estates of domicile, foreigners may have to be distributed on other principles ; for the law of the domicile of the deceased governs ques- tions not only of testacy and intestacy, but also of the construction of the will, and of the rights of those who claim to be his next of kin (m), personal property follow- ing the person, and not being in any respect regulated by the situs (n). The English law adopts the law of the domicile as it stands at the time of death ; but it does not undertake to adopt and give effect to all retrospective changes that the legislative authority of the foreign country makes in that law (o). And, when we speak of the law of domicile as applied to the law of succession, we mean not [necessarily] the general law, but the law which the country of domicile applies to the par- ticular case under consideration (|)), and which may happen to be the English law, as in Collier v. Rivaz (q). But it seems that English executors of a domiciled Scotch- man are not bound to know Scotch law, and, in the absence of express notice that it differs from the law of (k) Wms. P. P. 404. ing to the y«s domicilii {per Abbott, [1) Jessoppy. Watson, 1 M. & K. C.J. Doe v. Vardill, 5 B. & C. 665. 451). (m) Enohin v. Wylie, 10 H. of (w) Per Bayley, J., Re Ewin, 1 L. Cas. 1. See Campbell v. Beau- Cr. & J. 156. foy, Johns. 320. It is not con-ect (o) Per Lord Penzance, Lyneh v. to say that the law of England Provisional Government of Para- gives way to the law of a foreign guay, L. E. 2 P. & D. 270, 271. country, but that it is a part of the {p) Per Dr. Lushington, Maltass law of England that personal pro- v. Maltass, 1 Bob. 72. perty should be distributed accord- (2) 2 Curt. 855. 182 DUTIES OP England, will be excused for acting on the assumption that it is identical therewith (7'). Kisk attendant Suppose the case of an administrator, or executor on distribu- , , . . , . , tion. where there is an intestacy as to the residue, and A, claiming to be next of kin, asks that the fund may be handed over to him, the administrator or executor would be entitled to say, " I cannot recognise your right ; if I do, I expose myself to responsibility, and therefore I must institute a suit." If that is done, however wrong A's claim might be, the administrator would be safe. But if without a suit he hands the fund over to A, he takes the responsibility of being liable to the persons really entitled (s). On the other hand, an executor has been ordered to pay the costs occasioned by his unreasonably putting the persons entitled to the residue to proof of their title (t). Where executors have made a proper distribution of their testator's estate among such of the residuary legatees as have become entitled to call for payment of their shares, and have been ready to produce proper accounts to the unpaid legatees, and an adminis- tration action is then instituted by the latter, and it turns out that the accounts are substantially correct, the costs of the action must be borne by those who institute it. Refunding by But where, after executors had made a partial distribu- residuary . ... n . ■ ■ ■ . • legatees. tion of residue, an administration action was instituted by the residuaiy legatees who had not been paid their shares, and it then turned out that the executors had miscon- strued the will, and made other serious mistakes, it was held that the overpaid residuary legatees could not be made to refund, 'that the executors must stand in the same position as if no distribution had taken place, and that the costs of the action should be paid as out of the entire (?•) Zeslie v. EaMlie, 2 Y. & C. Turnery. Manic, citeA. post, t^. 216. C. C. 91. {t) Lovjson v. Copelaiid, 2 Bro. (s) Per Kindersley, V.-C, Edgar C. C. 156. V. Reynolds, i Dr. 274; and see EXECUTORS AND ADMINISTRATOKS, 183 residuary estate, so as to charge the executors with the share of costs attributable to each of the distributed shares, and then that the executors should pay the balance necessary to make up to the unpaid legatees ther proper proportion of residue (■Ji), Although no pro- position is better settled than that residuary legatees are liable to refund at the suit of an unpaid creditor (for everybody taking a residue must know that he takes it subject to the testator's liabilities, and takes the risk of it afterwards turning out that there are undiscovered lia- bilities), it is undoubtedly good law that executors cannot obtain an order to refund against residuary legatees, if they have paid over the assets with notice of a debt (x). But notice of a remote contingent liability on the part of a testator is not sufficient to prevent his executor, from distributing his residuary estate ; and, if the executor dis- tributes with such notice, and the liability afterwards ripens into a debt, he will be entitled to call on the residuary legatees to refund (y), but he can recover only the capital sum which he has paid him, without any intermediate income (z). Lastly, an executor is not entitled to any costs occasioned by his paying over the residue before all the debts have been satisfied (a). (m) HiUiard v. Fulford, L. E. 4 share of his estate shall go to the C. D. 389 ; compare Qibhs r. Goren, covenantee fulfils his covenant by 11 Beav. 483 ; and see Bate v. bequeathing the share to the cove- Mooper, 5 De G. M. & G. 338; nantee, who then stands in the Mackenzie v. Taylor, 7 Beav. 467. same position as any other legatee, (sc) Per Jessel, M.E., Jervis v. and is equally liable to refund Wolfersfan, L. K. 18 Eq. 25, 26. {ibid.). {y) See Jervis v. Wolferstan. A («) Md. person who has covenanted to be- (a) Nolle v. Brett, (No. 2), 26 queath or otherwise provide that a Beav. 233. 184 LIABILITIES OF EXECUTOES AND ADMINISTRATORS CHAPTER XXII. THE LIABILITIES OP EXECUTOES AND ADMINISTRATORS. Liabilities on the Acts, Obligations, and Defaults of the Deceased. Deceased's EXECUTORS and administrators are liable by statute to debts, cove- ]jg g^g^ f^j, ^jjg debts Owing by the deceased (a). It is nauts, and con- o j ^ \ / tracts. clearly agreed tliat executors and administrators, standing in the place of those they represent, shall be answerable for all their debts, covenants, &c., as far as they have assets, and that the testator's covenants shall extend to them, though not expressly named (6) : the executors of every person are implied in himself without naming (c) ; as an illustration, where a man made himself liable, pro- vided a certain notice were given to him, it was held sufficient that the notice was given to his executors (d). And, though executors have a year in which to pay (a) 31 Edw. 3, stat. 1, c. 11, Ap- Compare Powell v. CfraTiam, 7 pendix, p. 274 ; 3 & 4 Wm. 4, c. 42, Taunt. 580. So, if a man covenants s. 14, Appendix, p. 292. As to the for him and his assigns ; for an liability of exeontors and adminis- executor or administrator is an as- trators ip respect of poors' rate, see signee (Com. Dig. Covenmit (C 1)). Stevens v. Evans, 2 Buit. 1152. The executor of a landowner has Where the executorship is divided, been held liable for arrears of a yet quoad creditors they are all exe- rent-chai'ge issuing oat of the land outers and as one executor, and may {Eton College v. Beaiichamp, 1 Ch. be sued as one executor {Rose y. Cas. 121) ; but see now 22 & 23 BaHlett, Cro. Car. 293). Vict. c. 35, s. 28, Appendix, p. 308. (J) Bac. Abr. Exors. (P) 1 ; 1 (c) Per Lord Mansfield, Hyde v. Inst. 209 a ; "Went. 239, 243 ; Anon., Skinner, 2 P. Wms. 197. Dyer, 14 a; Hyde v. Dean and {d) Harioood v. Hilliard, 2 Mod. Canons of Westr., Cro. Eliz. 563. 268. ON ACTS, ETC., OP DECEASED. 185 legacies, yet that does not extend to debts, but they are liable to be sued the moment after the testator's death (e). Where the deceased agreed to grant an annuity, execu- tion of the agreement may be had against his execu- tors(/). The latter are also liable on their testator's guarantee (g). If a man be bound to build a house for another before such a time, and dies before the time, his executors, it has been said, are bound to perform this (h). If he be paid beforehand for the contract, and he dies before it is completed, his executors must either refund the money, or get some other person to complete the con- tract (i). Where an intestate agreed to receive certain quantities of goods monthly till a certain date, and died before that tinie arrived, his administrators were held liable for refusing to take goods according to the con- tract (Jc). So specific performance of a covenant to take a lease may be decreed against the covenantor's execu- tors ; but the Court will take care that the lease, if not beneficial, is so framed that no personal liability shall be incurred by the executors (l). Actions have lain against the executors of a solicitor for negligence by the latter in the exercise of his profes- sion (m), against the executors of an innkeeper for loss through his negligence in the custody of a guest's pro- perty {n), and against the executors of a sheriff for non- (e) Nielwlls v. Judson, 3 Atk. Siboni v. Kirkman, 1 M. & "W. 301. 422. (/) Nield\. SmUh, 14Ves. 491. (k) Wentwm-ffiv. Cock, 10 A. & (g) Bradbury v. Morgan, 1 H. & E. 42. C. 249. (I) Phillips v. Everard, 5 Sim. {h) Per Coke, C.J., Qtiick v. 102 ; Stephens v. Hotham, 1 K. & Ludborrow, 3 Bulstr. 30 ; and see J. 571. Compare Worleij v, Framp- Marshall v. Broadhurst, 1 Tyrw. ton, 5 Ha. 560. 348. For the converse of the case (m) Wilson v. Tucker, 3 Stark, in the text, see Cooper v. Jarman, 154. cited a;»fc, p. 113. Compare ^mo?i., (m) Mm-gan v. Rarey, 2 F. & F. ■post, p. 187. 283. (i) Per Lord Abinger, C.B., 186 LIABILITIES OF EXECUTOES AND ADMINISTRATORS payment of money levied by him (o). And where A, professing to act as agent for B,' but having no such authority, enters into an agreement with C, which B refuses to confirm, A's personal representatives are liable in damages to C {p). In short, where the cause of action is money due, or a contract to be performed, gain or acquisition of the testator by the work and labour or property of another, or a promise of the testator express or implied, — where these are the causes of action, the action survives against the executor (cj). Exception in Executors are responsible on all the contracts of the sonal contracts, testator broken in his lifetime, and there is only one ex- ception with regard to executors' liability for contracts broken after the testator's death, and that is this, that they are not liable in those cases where personal skill and taste is required (r). It must be conceded on all hands that there are contracts to which the law implies excep- tions and conditions which are not expressed. All con- tracts for personal services which can be performed only during the lifetime of the party contracting are subject to the implied condition that he shall be alive to perform them, and, should he die, his executor is not liable to an action for the breach of contract occasioned by his death. So a contract by an author to write a book within a reasonable time, or by a painter to paint a picture within a reasonable time, would in my judgment, said Pollock, C.B., be deemed subject to the condition that, if the author became insane or the painter paralytic, and so in- capable of performing the contract by the act of God, he (o) Perkinson v. Gilford, Cro. Dean mid Cwiions of Westminster, Car. 539. Cio. Eliz. 653. It is submitted {p) CoUcny. Wright, 8 E. & B. that it is not C[mte accurate to sp 648. of such covenants as broken after the (j) Per Lord Mansfield, Humbly testator's death ; they are broken V. Trott, 1 Cowp. 375. by, and therefore at the moment of, (r) Per Parke, B., Sibotiiv. Kirk- his death. man, 1 M. & W. 423 ; Hyde v. ON ACTS, ETC., OF DECEASED. 187 would not be liable personally in damages any more than his executors would be liable if he had been prevented by death (s). So a contract to build a lighthouse was held to be personal, on the ground of its being a matter of personal skill and science (t). A covenant by a man that, in consideration of a weekly payment to him and his executors for a time certain, he would not exercise a particular trade, does not prevent his executors from ex- ercising it after his death (u). An authority from B to A to sell on commission is revoked by B's death, and his personal representatives are not, in the absence of an adoption of the contract by them, liable to be sued for the commission on a sale effected after B's death (x). It has already been stated that contracts in cases of principal and agent, and master and servant, are determined by the death of either party (y) ; therefore, where A was hired by P to serve as farm-bailiff at weekly wages, with other advantages and a residence in a farm-house, the service to be determinable by a six months' notice or payment of six months' wages, and P died, it was held that the latter's personal representative was not bound to continue A in his service, or pay him six months' wages (z) ; and, if an apprentice's master die during the term of appren- ticeship, the covenant to instruct is dispensed with, being a thing personal, but if the master have also covenanted to find him in meat, drink, and clothes, and other neces- saries during the time, it has been held that his death does not dispense with this condition, but his executors are at common law bound to perform it, so far as they (s) Sail V. JVrigM, E. B. & E. 856. 793 ; see further per Lord Lynd- (x) Campanari v. Woodburn, 15 hurst, C.B., and Bayley, B., Mar- C. B. iOO. shall V. Broadhurst, 1 Tyr. 349. (y) Ante, p. 115. (<) Anmi., cited in Wentworth v. («) Farrow v. WUsmi, L. R. i Cock, 10 A. & E. 45. C. P. 744 ; "Went. 141. (m) CooU v. Colcraft, 2 "W. Bl. 188 LIABILITIES OF EXECUTORS AND ADMINISTRATORS have assets (a). A bond, with condition that a clerk shall serve faithfully and account for all money, &c., to the obligee and his executors, does not make the obligor liable for money received by the clerk in the service of the exe- cutors of the obligee, who continue the business and retain him in the same employment (b). Executor of An executor of an executor de son tort is not liable for executor de , . . -iii son tort. ^ breach ot contract committed by the person with whose property the executor de son tort has intermed- dled (c). Work done for A man who does work for a testator in expectation of deceased in , expectation ot a legacy, and gets none, cannot sue the executors, or set egacy. ^p ^ demand against the testator's estate (d) ; and, if in such cases the executors pay the claim, it will be dis- allowed them in their accounts (e). But the onus of show- ing that such was the understanding between the parties lies upon those who resist payment (/). Gift intended, Executors Cannot be called upon to complete a gift or fected, by him. relinquishment of property, which the testator intended to make, but did not perfect in his lifetime (g). Mutual cove- Mutual covenants by partners that they and their re- nants by de- (a) Chitty on Apprentices, 84. refused to follow them. As to parish apprentices, see 32 (fi) Barker v. Parker, 1 T. K. 287. Geo. 3, c. 57. See ante, p. 115. It (c) Wilson v. Sodson, L. R. 7 has been decided that if an appren- Ex. 84. tice's master ((Soam V. 5ot«£?CTt, Cas. [d) Per Raymond, G.J., Osborn t. Finch, 396), or a solicitor to v. Governors of Guy's Hospital, 2 whom a clerk has been articled Str. 728 ; per Lord Kenyon, Le (Newton v. Rowse, 1 Vern. 460 ; Sage v. Coussmuiker, 1 Esp. 187. iTirsi v. yoZsOTi, 2 Mac. & G. 134), (e) Slmlleross v. Wright, 12 dies before the expiration of the ap- Beav. 558. prenticeship or articles, the appren- (/) Baxter v. Gi'ay, 3 M. & Gr. tice or articled clerk may recover a 771. part of the premium from the exe- {g) Cotteen v. Missing, 1 Madd. cutors of the deceased ; but con- 176 ; Hooper v. Goodivin, 1 Sw. siderable doubt has been thrown 485 ; Ward v. Audlaiid, 8 Beav. upon the authority of these decisions 201; Weale v. Olliiie, 17 Beav. by the recent case of Whincup v. 252. See Oallagluin v. Callaghan, Hughes, L. R. 6 C. P. 78, in which 8 CI. & F. 374 ; and consider Cox the Court of Exchequer Chamber v. Barnard, 8 Ha. 310, ON ACTS, ETC., OP DECEASED. 189 spective executors and administrators shall continue ceased and J. n ^ • 1 n ■ T another to partners tor a nxed period are not binding upon the continue representatives of a partner dying {h). partners. Executors and administrators are (subject to a certain Injury to pro- limitation) liable to actions for injury to property real or deceased. personal by their testator (i). An account of mesne profits has been decreed against Mesne profits, executors (7c). An action will not lie against an executor under a Penalty in- penal statute for a penalty incurred by his testator (I), T^aste com- nor against the representatives of a deceased tenant for ™^'gd' ^ ^' life for an account of waste (m). Where an executor or administrator has satisfied all Deceased's liabilities under a lease to his testator or intestate due up to assignment, and has set apart a sufficient fund to answer any future claim in respect of any fixed sum • agreed by the lessee to be laid out on the property, and has assigned the lease to a ^purchaser, he may distribute the residuary personal estate without being personally liable under the lease {n). In any event his personal liability in respect of rent does not exceed the value of the demised premises, but this qualification does not ex- tend to a covenant to repair (o). (h) Bourns V. OoUiTis, 6 Ha. 418. (m) 22 & 23 Vict., c. 35, s. 27, (i) 3 & 4 Wm. 4, c. 42, s. 2, Ap- Appendix, p. 307. The section is pendix, p. 292. This statute dealt retrospective {Smith v. Smith, 1 Dr. a severe tlow to the old maxim of & Sm. 384 ; Dodson v. Sammell, the common law actio personalis ibid. 575). See HoioUy v. Adams, moritur cum persorid, which had cited arafe, p. 155. As to his liability already heen considerably trenched in respect of a party wall rebuilt, upon. See Fowell v. Mees, 7 A. & see Thackcr v. Wilson, 3 A. & E. E. 426. 142. As to his liability under the (k) Pulteney v. Warren, 6 Ves. covenants contained in a void lease 72 ; Monypenny v. Bristow, 2 E. which his testator or intestate pur- & M. 117. ported to gi'ant, see WiUia/ms v. (Z) Went. 254, 255. Burrell, 1 C. B. 402. (m) Marquis of Zansdowne v. (o) Sleap v. Newman, 12 C. B., Marchioness of Landsowne, 1 Madd. N. S. 116, and cases there refeiTed 116. to. 190 LIABILITIES OF EXECUTORS AND ADMINISTRATOKS Occupation by executors of premises which their tes- tator held from year to year, is an implied promise on their part to abide by the terms of the original contract (p) ; but the implication is subject to re- buttal (q). Where de- The liability of partners for property acquired by them partner. ^^ partners is in equity joint and several. That is the usual form of expressing the rule ; but it would be more accurate to say that, so far as regards partners, where there is in equity no survivorship of property, there is no survivorship of liability (r). Though a bond be joint on the face of it, each obligor is bound in equity, where the nature of the transaction (here a loan to partners in the course of trade) implies the obligee's right to demand the consideration from the partners equally ; and, an obligor being dead, the demand is available in equity against his executors (s). Where there has been an antecedent joint debt due from the parties to a joint obligation, this Court, said Lord Eldon, considers the obligation as several, and pursues the assets of deceased debtors until the demand is satisfied (t). An action for indemnity against loss occa- sioned by the misrepresentation of a partner (here one of a syndicate of speculators) survives against his execu- tors (w) : partners are all jointly and severally liable for (p) Buckworth V. Simpson, 1 Cr. the partners and a surviving creditor M. & E. 834. (See Beresford v. Browning, L. K. {q) Arden v. Sullivan, 14 Q. B. 20 Eq. 564, affirmed, L. K. 1 C. 840. D- 30). As to non-survivorship of (r) Per James, L.J., Beres/ord v. property in cases of partnership. Browning, L. K. 1 C. D. 34. The see mUe, p. 108. rule applies to executors carrying (s) Bishop v. Church, 2 Ves. on their testator's husiness, though senr., 106, 371. they describe themselves simply as {t) Sumner v. Powell, T. & E. executors {Liverpool Borough Bank 424. As to the position of the V. Walker, 4 De G. & J. 24) ; it executors of a partner under the holds also as between the surviving 'Bi).TakiDgAct,see Barker y. Buttress, partner and the executors of a de- 7 Beav. 134. ceased partner, as well as between (u) New Sombrero Phosphate Co. ON ACTS, ETC., OF DECEASED. 191 the acts of misfeasance committed by their managing partners ; it is not a mere action for damages brought against the testator, but it is one to make his estate liable in common with his partners, and the action has no rela- tion to those singular actions which have been held to die with the person, according to a rule which certainly should not be extended at the present day so as to do injustice as between the estate of the deceased man and his living co-partners {x). So a breach of trust by, or imputable to, the partners, and of which the partnership gets the benefit, is a partnership debt within the rule of several liability {y). The effect of the Judicature Acts upon this subject is, it is apprehended, to render the estate of a deceased partner liable for all ordinary partnership debts, and to enable creditors of a firm to maintain an action against the executors of a deceased partner in respect of them ; but it must not be too hastily assumed that for all pur- poses partnership debts must now be treated as separate as well as joint : a partnership debt is not so treated in bankruptcy since the Judicature Acts any more than before {z). Executors of a deceased partner are not liable to debts contracted by the partnership subsequently to the testa- tor's death (a). But his estate must remain liable until V. Erlanger, L. R. 5 C. D. H. See (z) Lindley, p. 369. and distinguish Peeh v. Gurriey, L. (a) Labouchere r. Tupper, 11 B. 6 H. L. 377. Moo: P. 0. 198. Therefore they (k) Per Jessel, M. R, ibid. 117. are not entitled to an injunction (y) Devayn^v. Noble, lM.ev.61i, restraining the surviving partners 624 ; Brydges v. Branfil, 12 Sim. from using the testator's name in 369 ; Wilson v. Moore, 1 M. & K. the trade ( Webster v. Webster, 3 Sw. 127, 337. Compare Bx parte Wat- 490, n.) But, if a surviving part- sOTi., 2 V.&B.414,in bankruptcy. As -ner, being also executor of a de- to executors' liability on a breach ceased partner, deals with the of trust by the deceased individu- customers in the character of exe- ally, see post, p. 195. cutor as weU as partner, he can bind 192 LIABILITIES OF EXECUTORS AND ADMINISTRATORS the debts which affected him at the time of his death have been fully discharged. There are various ways in which the discharge may take place ; but discharged they must be, before his liability ceases (b). The discharge may be by direct payment, or by deal- ings [of the creditor] with the continuing partners operat- ing as payment of the joint debt (c), or by the creditor agreeing, or being taken to have agreed, to accept the surviving partners as his sole debtors (d) ; or, if the deal- ing of the creditor with the surviving partners has been such as to make it inequitable that he should go against the assets of the deceased partner, he would not, upon general rules and principles, be entitled to the benefit of that demand (e). But the estate of the deceased partner is not discharged by the circumstance that the creditor continues his transactions with the survivors, and, at the latter's request, has forborne for some years to enforce payment (/), or has received interest on his debt from the surviving and a new partner (g) ; nor is judgment against a surviving partner an extinguishment of a part- nership debt (h). A was partner with B, C, and D, as banker, and was partner in another banking firm with B and C ; A died, and E was admitted a partner in the first bank alone; the two firms became bankrupt, and under an order of the Court the estates of the two firms were consolidated. A creditor of the first bank in A's lifetime received a dividend out of the consolidated his testator's estate, so as to render Beav. 302 ; Jyyth v. AuU, 7 Exch. it liable to the debts of the con- 669. tinning partners (joer Lord Eldon, (e) Per Ld. 'Eldon, i:x parte Ken- Vulliamy v. Nolle, 3 Mer. 614). dall, 17 Ves. 626, q. v. (6) Per Ld. Eldon, Vulliamy v. (/) Winter v. Innes, 4 M. & Cr. Noble, 649. See Blair v. Bromley, 101. 5 Ha. 542. (g) Barris v. Farwell, 13 Beav. (c) P(!»' Ld. Cottenham, Winter \. 403. Innea, 4 M. & Cr. 110. (A) Jacomh v. Harwood, 2 Ves. {d) Thompson v. Percival, 5 B. & senr. 265. Ad. 925 ; Brown v. Gordon, 16 ON ACTS, ETC., OF DECEASED. 193 estate ; but it was held that A's estate was not thereby released (i). Executors or administrators of a deceased joint debtor are not deprived of the benefit of the Statutes of Limita- tion by reason of payments made on account of the debt by any of the surviving debtors (k). Where the deceased debtor has made the surviving debtor, or one of the sur- viving debtors, his executor, and the latter or his firm make payments of principal or interest on account of the debt, such payments will, in the absence of proof to the contrary, be taken to have no reference to the executorial character (l). The assets of a deceased shareholder are liable to make Where de- good whatever is at the time of his decease payable by sh^eholde/ him to the company, and also whatever afterwards be- comes payable by his representatives by virtue of the contract into which he entered (m). In a joint-stock com- pany the presumption is that the executors of a deceased shareholder succeed to the full liability as well as to the rights of their testator. The deed of settlement is to be looked at, not to see whether it imposes such liability on the executors, but to see whether it takes away or limits it. The fact that by the deed of settlement executors are not entitled to the full privileges of shareholders until they or their nominees have been registered as share- holders, is no proof of an intention to limit their liability in their representative character. Accordingly in the case of a joint-stock company formed in 1845, where, in the opinion of the Court, nothing appeared in the deed of settlement to limit the liability of the executors of a (i) Sarris v. Farwell, 13 Beav. Beav. 302. i03. (m) Lindley, p. 1048. The lia- (k) 19 & 20 Vict. c. 97, s. i, bility of a sliareholder is dehitum Appendix, p. 299. in prcesenti, though solvendmn m (I) Thompson v. Waith/man, 3 futwro {In re Muggeridge, L. R. ]0 Dr. 628 ; Brovm v. Gordon, 16 Eq. 443). o 194 LIABILITIES OF EXECUTORS AND ADMINISTRATOKS deceased shareholder, it was held that their liability was not limited to debts incurred before the death of the tes- tator (n). As a rule, where shares are registei'ed in the joint names of two persons, a joint liability only is con- tracted, and it survives on the death of one of the joint owners, so that the survivor is alone liable to be placed on the list of contributories (o). The administrator of a subscriber to a projected undertaking, deceased before the Act passes to authorise it, cannot be sued as a subscriber, or proprietor of shares. And, where the Act indemnified executors and administrators against their cestuis que trustent, if they should pay calls upon the shares of de- ceased persons out of their effects, and enabled the com- pany, if the executors had not assets or refused to pay, to transfer the shares to others who would repay to the administrators the calls paid on the shares, and pay the future calls, and, if no persons would take them, then to declare the shares forfeited to the company, semble, that no action can be maintained against an administrator, though he had paid one call, for not paying subsequent calls (p). or director. Actions for indemnity against loss occasioned by the misrepresentations of a director, like actions for deceit, are of a personal character, and, the estate of the deceased director not being alleged and proved to have received benefit from the deceit, the action does not survive against his executors (q). (m) Baird'sca., L. R. 5 Ch. 725. nership. The 165tli sect, of the (o) Hill's ca., L. E. 20 Eq. 585, Companies Act, 1862, which confers 595. Distinguish Kiriy's Exors' power on the Court to compel pay- ca., 15 Sol. J. 922, and see Alex- ment by directors and officers of ander's ca., ibid. 788. companies in respect of misfeasance {p) Weald of Kent Canal Co. v. or breach of trust relating to the Robinson, 5 Taunt. 801. affairs of the company, does not (q) Peak v. Gv/rney, L. E. 6 H. L. apply as against the executors of a 377. See and distinguish New Som- deceased director {Feltom's Exors' brero PhosphateCo. v.Erlanger, L.E. ca., L. B,.'_l Eq. 219). 5 C. D. 74, which turned upon part- ON ACTS, ETC., OF DECEASED. 195 If a vicar, or other spiritual or ecclesiastical person, do or spiritual person, suffer a ruin or decay of the houses or buildings upon his spiritual benefice or promotion, and dieth, his executors are liable to the repairing of such spoil or decay (r) : actions for dilapidations against executors or administra- tors have been always holden to be good ; it is considered as a duty which the deceased ought to have performed, and therefore his representatives, so far as he left assets, shall be equally liable as himself (s). A left dilapidations, and died ; B succeeded him, and died ; C succeeded B. B's executors, having been compelled to pay G for re- pairs, were held entitled to recover over from A's execu- tors so much as was attributable to dilapidations in the time of A (t). The right of the successor to recover from the prede- cessor's representatives damages for waste is confined to the case of dilapidations to houses and buildings, and does - not extend to waste committed by digging gravel in the glebe (tt), nor to neglect to cultivate the glebe in a hus- band-like manner (x). It has been the constant habit of Courts of Equity to Breach of trust charge persons in the character of trustees with the conse- ^ ^"^'^^ " quence of a breach of trust, and to charge their represen- tatives also, whether they derive benefit from the breach of trust or not (y). (r) Went. 255 ; 34 & 35 Vict. c. 655. 43, ss. 3, 36, 60. This Act, with (x) Bird v. Selph, 4 B. & Ad. the 35 & 36 Vict. c. 96, regulates 826. For the principle upon which the present practice on the subject. the damages are to be calculated, By the 58th sec. of the first men- see Wise v. Metcalfe, 10 B. & C. tioned Act buildings belonging to 299. the benefice which have been let on (y) Per Lord Redesdale, Adair v. lease are exempted. Shaw, 1 Sch. & Lef. 272 ; Zord {s) Per Willes, J., Sollers v. MountfordY. Lcn-dCadogan,nY&s. Lavn-ence, Willes, 421. 489 ; Walsham v. Stainton, 1 De (t) Bimbv/ry v. Hewson, 3 Exch. G. J. & S. 678 ; Grayburn r. Clark- 558. son, L. E. 3 Ch. 605. As to execu- (m) Ross t. Adcock, h. R. 3 C. P. tors' liability on a breach of trust o 2 196 LIABILITIES OF EXECUTOES AND ADMINISTRATORS Extent of per- sonal repre- sentative's liability. On liabilities of the deceased his personal represen- tatives are only liable to the extent of assets {z) ; and you cannot say, said Lord Cottenham, that any demand arising out of the property of a testator is a demand against the executor otherwise than in his representative character (a). In other words, judgment against the personal represen- tatives would only be given in such cases de bonis tes- tatoris. by a firm of wMot the deceased was a member, see ante, p. 191. (z) Wigley v. Ashton, 3 B. & Al. 101. (a) Ex parte. DoyU, 2 H. & T. 223. ON THEIR OWN ACTS, ETC. 197 CHAPTER XXIII. THE LIABILITIES OF EXECUTOES AND ADMINISTRATORS — (continued). Liabilities on their own Acts, Obligations, and Defaults. The extent of liabilities which a personal representative Extent of has merely succeeded to has just been pointed out : the ^* ' ''^' liability which attaches to him in consequence of his own acts or defaults is, in many cases, far more serious, not infrequently being, as will appear in the course of the present chapter, a personal liability (a). A promise by executors qud executors to pay debts Promise to of their testator is only a promise to pay out of funds ^ebtf ^"^^^'''^ which may come to them as executors, and judgment is de bonis testatoris (6), and, if there be no assets, it is nudum pactum (c), even a promissory note to pay the deceased's debts being bad, if there be no consideration (d). But giving time for payment is a sufficient consideration to support such a promise, and to charge the executor making it de bonis propriis (e) ; so an undertaking by executors, in consideration of the forbearance of a creditor of their testator, to pay interest on a debt not carrying {a) Lord Eldon once said (Drewry 3 Bing. 20. V. Thctcker, 3 Sw. 543) that the (c) Pearson v. Henry, 5 T. E. 6 ; doctrine of courts of law on judg- Bann v. Hughes, 7 T. E. 350. ments against executors and admi- (d) Nelson v. Settirle, 4 M. & "W. nistrators de bonis propriis had 795. Compare Ridout v. Bristow, fluctuated so much, that a judge in 1 Cr. & J. 231. equity might without dishonour (c) Chambers v. Leversage, Cro. acknowledge his ignorance. Eliz. 644 ; Davis v. Reyner, 2 Lev. (5) Per Best, C.J., Dowae v. Cox, 3 ; Hawes v. Smith, ibid. 122. 198 LIABILITIES OF EXECUTORS AND ADMINISTRATORS interest, makes them (subject to the provision of the Statute of Frauds presently mentioned) personally liable for both principal and interest, they having undertaken to do that which as executors they were not bound to do (/) ; and a promissory note, by which the makers " as executors jointly and severally promise to pay on demand with in- terest," renders them similarly liable [g). Again, if an administrator promise to pay a debt of the intestate's in consideration that the creditor sends her in more goods, judgment may (subject as aforesaid) be had against him for both debts de bonis propriis (h). And, where an at- torney had delivered up deeds to an executor, which he was not obliged to do till his bill was paid, and the deeds were of great use to the executor in several suits which were then carrying on, that was a sufficient consideration to make the executor liable to the attorney's whole de- mand, whether there were assets or not (i). The foregoing cases show the quantum of consideration requisite to support a promise by a personal representative to pay a debt of the deceased, so as to make the promisor personally liable. But there is a further requisite to the binding nature of such a promise; for the Statute of Frauds enacts that executors and administrators shall not be charged upon any special promise to answer damages out of their own estates, unless the agreement so to do shall be in writing and signed by proper authority (k). By "agreement" must here be understood the considera- tion for the promise as well as the promise itself; there- fore, where the writing omitted to state the consideration, (/) Bradley v. Heath, 3 Sim. 406. 543, 558 ; Russell v. Baddoek, 1 (i) Duchess of Hamilton v. 7m- Lev. 188. cledon, i Bro. P. 0. 4. See further (g) Childs v. Afonins, 2 Br. & B. on this subject, Forth v. Stanton, 460; see Bowerhanlc v. Monieiro, 4 1 Wms. Saund. 210, with the notes. Taunt. 844, and Lucas v. Williams, (k) 29 Car. 2, c. 3, s. 4, Ap- 3 Giff. 151. pendix, p. 277. See Fhilpot v. {h) Wheeler v. Collier, Cro. Eliz. Briant, 4 Bing. 717. ON THEIR OWN ACTS, ETC. 199 it was holden that parol evidence was inadmissible by the statute, and consequently, such promise appearing to be without consideration upon the face of the written en- gagement, it was nudum pactum, and gave no cause of action (l). But a promise that, if the widow of an intes- tate would permit one to be joined with her in the letters of administration, he would make good any deficiency of assets to pay debts, is not within the statute, and is bind- ing (m) ; and, in any event, the promisor cannot protect himself under the statute in a case of fraud (n). On an account stated by an executor as such, judgment Account . , . . / N stated. against him is de boms testatons (o). Money had and received is treated in the cases as show- Money had ing a personal charge on the executor ( p). So it is settled , , ' ° ^ *= _ v^/ and borrowed. law that, upon a contract of borrowing made by the exe- cutor after the death of the testator, the executor is only liable personally, and cannot be sued as executor, so as to get execution against the assets of the testator (q). Executors are personally responsible for goods sold and Groods sold 1 T 1 1 1 1 ^ -11 n and delivered. delivered to them, and work and materials done and pro- y^^^-^ ^^^ vided for them (r), and for their use and occupation of ^^^ materials supplied. premises after the death of the deceased (s). Use and occu- An action lay, even at law, against an executor to re- P**'™- cover a specific chattel bequeathed, after his assent to the bequest (t) ; and a decree has been made against an (l) Wainr. Walters, 5 East, 10; Ashby v. Ashby, 7 B. & C. 447; Saunders v. Wakefield, 4 B. & Al. Secar v. Atkinson, 1 H. Bl. 102. 595. But see 19 & 20 Vict. c. 97, (p) Fer Lord Tenterden, Ashiy s. 3, Appendix, p. 299, the language v. Ashly, ubi supra. of which is apparently large enough (q) Per Mellish, L.J., Farhall v. to overrule this construction of the Farhall, L. R. 7 Ch. 126. Statute of Frauds ; sed quaere. (r) Cormr v. Shew, 3 M. & W. (m) TomU-nson v. Oill, Ambl. 350. 330 ; see 1 Eden, 77, 3 Mer. 590. (s) Wigley v. Ashton, 3 B. & Al. («) Beech v. Kennegal, 1 Ves. sr. 101. See Atkins v. Sumphrey, 2 123. C. B. 654. (o) Powell V. Graham, 7 Taunt. [t] Doe v. Guy, 3 East, 120 ; 580 ; per Lord Tenterden, C.J., Williams v. Lee, 3 Atk. 223. 200 LIABILITIES OF EXECUTORS AND ADMINISTRATORS executor for payment of legacies, without reference to the state of the assets, upon the ground of his having by his acts and admissions rendered himself personally liahle for such payment (u). Funeral ex- It has been decided by several cases that an executor penses. • t i i . ,. , IS liable upon an implied promise at common law to pay reasonable expenses for the funeral of his testator, where no other person is liable upon an express contract, although he does not give orders for it. But there is no case which goes the length of deciding that, if the funeral be ordered by a person to whom credit is given, the executor is liable at law (x), i.e., to the undertaker (y). Yet, though the funeral be ordered by another, and be unreasonably ex- pensive, the executor may become liable to the undertaker for the whole amount, if he adopt the acts of the person who gave the order (z). And, though another than the executor may be liable to the undertaker, the person so liable may recover over from the estate of the deceased (a). However, an executor is only liable on another's order, if he has assets (b). The reason of the thing has been thus put by Garrow, B. (c). Suppose a person to be killed by accident at a distance from his home ; what in such a (m) Mrnard v. Pumfrett, 5 M. N. S. 496. & Or. 63, q. v. (b) Per Bayley, J., Saiuxck r. {x) Per Patteson, J., Price v. Podmore, 1 B. & Ad. 262 ; per Wilson, 3 N. & M. 618. Jervis, C.J., Ambrose v. Kerrison, (y) See Qreen v. Salrrum, 8 A. & 10 C. B. 779 ; and see Tugwell v. E. 3iS. This qualification should Beyman, 3 Camp. 298, ani Rogers be added to the dictum of Holt, T. Price, 3 Y. & J. 28. The point C.J., that an executor is not liable determined in Tugwell v. Heyman to pay for such expenses, unless ho aud Sogers v. Price has been said contracts for it {Ashton v. Slierman, to be that the law implies a con- Holt, 309). tract on the part of the executor («) Price v. Wilson, .512; Lucy personally, and not in his repre- V. Walrond, 3 Bing. N. C. 841. sentative character {Corner v. Sheio, {a) Green t. Salmon; and compare 3 M. & W. 356) ; sed qucere. Ambrose v. Kerrison, 10 C. B. 776. (c) Sogers v. Price, 34. But see Coleby y. Coleby, 12 Jur. ON THEIR OWN ACTS, ETC. 201 case ought to be done ? The common principles of decency and humanity, the common impulses of our nature, would direct every one, as a preliminary step, to provide a decent funeral at the expense of the estate, and to do that which is immediately necessary upon the subject, in order to avoid what, if not provided against, may become an in- convenience to the public. Is it necessary in that or any other case to wait until it can be ascertained whether the deceased has made a will, or appointed an executor, or, even if the executor be known, can it, where the distance is great, be necessary to have communication with that executor before any step is taken in the per- formance of those last offices which require immediate attention ? Another instance of the way in which an executor may Damages by become liable, to the extent of assets, upon an implied mness. contract, is afforded by Shallcross v. Wright (d). There the testator, Avhile on a visit to a friend, died of a ma- lignant fever; the furniture was, by the advice of the medical advisers, destroyed, and the friend was obliged to remove from his house : it was held that the testator's estate was liable to the damage. Where an executor of a mortgagee received a sum of Money paid in money supposed to be due on the mortgage, and it after- supposed wards appeared that the mortgage had been satisfied in "®''*°'^* the testator's lifetime, he had to refund, though he had paid the money away in debts, which he had not other- wise assets to pay (e). Executors who carry on their testator's trade, though Carrying on c J- ,• J. • J • T • •!! 1 testator's in pursuance oi directions contained in his will, render tra^e. themselves personally liable to the creditors of the part- nership, without reference to the liability or ability of the testator's assets to indemnify them; they also become (d) 12 Beav. 558. 355. See Pickering v. Lord Stam,' \e) Pooley v. Bay, 1 P. Wms. ford, 2 Yes. jr. 583. 202 LIABILITIES OF EXECUTORS AND ADMINISTRATORS liable to be made bankrupts (/). The case of the exe- cutor is very hard, said Lord Eld on ; he becomes liable, as personally responsible, to the extent of all his own property: but he places himself in that situation by his own choice, judging for himself whether it is fit and safe to enter into that situation, and contract that sort of re- sponsibility (g). Lord Eldon's words clearly indicate the quantum of the executor's primary liability; the amount of the loss actually sustained by him depends, of course, upon how far he can resort for indemnity to the estate of his testator. He pledges, then, to the trade creditors, in addition to his own responsibility, the trust fund com- mitted to him for the purposes of the trade by the tes- tator (h) ; but under the bankruptcy of an executor directed to carry on a trade with a limited sum the general assets beyond that sum are not liable (i). A direction in a will that the testator's trade shall be carried on does not of itself authorise the employment in the trade of more of the testator's property than was employed in it at his decease (h) : indeed, it is a rule without exception that, to (/) Wightman t. Townroe, 1 M. Thompson v. Andrews, 1 M. & K. & S. 412; Mx parte Garla-nd, 10 116; CufbusliY. Cutbush, 1 Beav. Ves. 110 ; Labouchere v. Tupper, 184. 11 Moo. P. C. 198; Liverpool (fc) M'Neillie v. Adon, 4 De G. Borough Bank v. Walker, 4 De G. M. & G. 744. Nor does such a & J. 24 ; Lucas v. Williams, 3 GifF. direction, coupled witli a, direction 150. An executor who only dis- that the testator's debts shall \>e poses of his testator's stock-in-trade paid, authorise a mortgage of his has been held not to be a trader real estate, not employed at his within the meaning of the old death in the trade, for the pui'pose bankruptcy law, not even if, being of carrying it on (i6i«2.). Seefurther executor of a wine-cooper, he buys Travis v. Milne, 9 Ha. 141. An wines to refine the testator's stock ; executor who carries on his testator's but otherwise, if he buys wines and trade without authority (Ex parte sells them to the customers entire Watson, 2 V. & B. 415 ; consider (Ex parte Nutt, 1 Atk. 102). Garrett v. Noble, 6 Sim. 504), or (g) Ex parte Garland-, 119. employs therein more capital than (A) Per Sir J. Leach, Ex parte the testator authorised (per Sir J. Richardson, Buck, 209. Leach, Ex- parte Riehardson, Buck, (i) Ex parte Garland, 110; 209), is guilty of a breach of trust. ON THEIR OWN ACTS, ETC. 203 authorise executors to carry on a trade with the property of the testator, there ought to be the most distinct and positive authority and direction given by the will itself for that purpose ; the Court cannot act on a bare con- jecture that the testator contemplated the business being carried on (l). The rule was tersely expressed by Lord Eomilly, when he said that an executor cannot (i.e. with- out special authority) carry on the trade of his testator except for the purpose of winding it up, but that he may, and in some cases is bound to, complete the contracts entered into by his testator (m) ; in one instance, where executors, who were directed by the testator to call in his personal estate with all convenient speed, continued his trade for some years after his death, the Court refused to charge them with a considerable loss thereby occasioned, as they had acted bond fide and to the best of their judg- ment (n). But a distinction must be taken between executors Participation actively trading and executors merely sharing in the "^ ^™ profits of traders. By articles of partnership it was agreed that on the death of a partner during the part- nership term the surviving members should pay his per- If an executor carry on his testator's they should come to the Court for trade with more than the autho- directions (j>er Knight Bruce, L. J. , rised amount of capital, and the M'Neillu v. Acton, 2 Eq. Rep. 27). husiness become bankrupt, he may {I) Per Lord Langdale, Kirhman prove for the excess [Ex parte v. Booth, 11 Beav. 280. See fur- Eichardson, 202 ; see Scott v. Izon, ther Land v. Land, 43 L. J. Ch. 34 Beav. 434, and Ex parte Butter- 311. If executors sufifer a stranger field, De Gex, 319) ; but there can to carry on the trade in his own be no proof whatever on the part of name, he may sue in his own name the testator's estate against the for debtsdue to the concern, hut bankrupt estate, unless the executor is ^countable to the executors has gone beyond the limit of his {per Lord EUenhorough, Willes v. trust Iper Bacon, V.-C, Owen v. Lister, 6 Esp. 79). Delamere, L. R. 15 Eq. 139). If (m) Collinson v. Lister, 20 Beav. executors find it impossible to carry 365. See ante, p. 185. on a trade, if confined to the assets (n) Garrett v. Nohle, 6 Sim. 504. engaged in it at the testator's death, 204 LIABILITIES OF EXECUTORS AND ADMINISTRATORS Penalty for ■wrongfully trading -with Shares in company. sonal representatives the profits to which he, if living, would have been entitled. A partner died, and from time to time payments were made to his executors on account of his share by the continuing partners. In an action by a creditor of the firm on a transaction subsequent to the death of the deceased partner, it was held that, inde- pendently of the 28 & 29 Vict., c. 86 (q. v.), the executors were not liable as partners (o). The strong tendency of the decisions is to establish the doctrine that no person, who does not hold himself out as a partner, is liable to third persons for the acts of persons whose profits he shares, unless he and they are really partners inter se (p). When executors trade with trust moneys, the profits belong, of course, to those entitled beneficially to the deceased's estate (q). Where trust property is employed in trade without authority, the cestuis que trustent may elect to take either -the profits for the whole period, or interest at 5 per cent, for the whole period (r). If executors after the death of their testator purchase further shares in a company, they are, as between the company and themselves, personally liable (s) ; if they (o) Holme v. Sammond, L. R. 7 Exch. 218, following the leading case of Cox v. Sickman, 8 H. L. C. 268. The Act referred to was passed before the effect of Oox v. Hickman was understood (jier Bramwell, B., Holme v. Hammond, 232). {p) Lindley, p. 41. (q) Zuntley v. Hoyden, Cas. t. Finch, 381 ; per Lord Eldon, Sx parte Garland, 10 Ves. 119; and se post, p. 230. (r) Heathcote v. Hulme, J. & "W. 122; Docker v. Somes, 2 M. & K. 655; Wedderburn v. Wedderhum, 4 M. & Or. 41 ; Macdonald v. Richardson, 1 Giff. 81. See Wight- wick V. Lord, 6 H. L. C. 217, and Vyse T. Foster, L. R. 7 H. L. 318. Circumstances may arise to entitle them to take profits for one, and interest for another, part of the period ; but a notice of dissolution of partnership, published for a particular purpose, and not accom- panied by a settlement of accounts or a transfer of the property, is not sufficient {Heathcote v. Hulme). Where trust funds are without authority lent to traders, strangers, with notice of the trust, and em- ployed by them in their business, such traders axe not liable as quasi trustees to account to the cestuis que trustent for a share of the profits (Stroud T. Ghvyer, 28 Beav. 130). (s) Spence's ca., 17 Beav. 203. ON THEIR OWN ACTS, ETC. 205 have accepted shares, they must be put upon the list of contributories in their individual, not their representative, character; and the fact that the shares were offered to, and accepted by, them in their representative character, and that the directors had no power to offer the shares to them in any other character, does not preclude them from being personally liable as between themselves and the other contributories (t). If they have paid away the assets to legatees, without providing for a contingent liability on the testator's shares which they have retained unsold, they are similarly liable to the company to the extent of such assets (u). But the mere receipt of dividends by the exe- cutor of a deceased shareholder does not saddle him with personal liability (x). An executor whose testator has held shares in a joint-stock company has generally one of two courses open to him. He may have the shares transferred into his own name, and become to all intents and purposes a partner in the company. He may, on the other hand, not wish to have the shares transferred into his name, and he ought in that case to have a reasonable time allowed him to sell the shares, and to produce a pur- chaser who will take a transfer of them. In any case, where the company transfers the shares into the name of the executor, the House of Lords would require to be satisfied that the transfer had been authorised by a dis- tinct and intelligent request on his part (y). As to whether, where an executor gives one a power Bills accepted of attorney to act for him as executor, and the attorney ^ * °™^^' (i) Femside and Dean's ca.yli.'R. 221; Sulmer's ca., 33 Beav. 435. 1 Ch. 231. See per Lord St. Leonards, Hamer's (u) Taylor v. Taylor, L. R. 10 Devisees' ca., 2 De 6. M. & G. 371 ; Eq. 477. See Jervis v. Wolferstan, and compare Ex parte Sail, 1 Mae. L. R. 18 Eq. 18, and consider Cole's & G. 307. Uxors' ca., 15 Sol. J. 711, and {y) Per Earl Cairns, Bucfum's Russell's Exors' ca,, ibid. 790. ca., L. R. i App. Cas. 549. (k) Ex parte DoyU, 2 H. & T. 206 LIABILITIES OF EXECUTORS AND ADMINISTKATORS Disobedience to Court. Ne exeat. accepts bills of exchange, the executor is personally liable, see the not easily reconcileable cases of Gardner v, BaU- lie (z) and Howard v. Baillie {a). No attachment will be granted against an administrator for not performing a rule of Court entered into by the intestate (6) ; and a writ of ne exeat regno against a feme coveH administratrix cannot be sustained (c). Numerous instances will be found in the remaining part of this chapter of executors and administrators being liable for devastavits. It is here to be noted that exe- cutors and administrators of executors or administra- tors (d), and executors and administrators of executors de son tort (e), who have committed a devastavit of a deceased person's assets, shall be liable in the same manner as their testator or intestate would have been if living ; also that a married woman executrix, who proves, and survives her husband, is liable for a devastavit com- mitted by him during their joint lives (/). But an exe- cutor's beneficial legal estate is not liable to make good a devastavit, as against the trustee in his liquidation (g) ; the estate of a legal devisee is under no circumstances under the control of the Court (h). Non-conversion Executors will be liable for loss occasioned by negli- lectionV tlie gence in not getting in the estate, as a breach of trust (i). estate. jf persons accept the trust of executors, they must perform {z) 6 T. E. 591. (a) 2 H. Bl. 618. (J) Newton v. Walker, Willes, 315. (c) Pannell v. Taylor, T. & R. 96. (d) i Wm. & My. c. 2i, s. 12, Appendix, p. 279 ; GJuanberlain v. Chamberlain, 1 Ch. Cas. 257. See per Page Wood, V.-C, Thome v. Kerr, 2 K. & C. 63 ; Coward v. Gregory, L. E. 2 C. P. 163. (c) 30 Car. 2, c. 7, Appendix, p. 278 , (perpetuated by the Statute Law Eevision Act, 1863). (/) Soady v. Tunibull, L. R. 1 Ch. 494. {g) Fox V. Buckley, L. E. 3 C. D. 508. (h) Per James, L.J., ibid. 511. (i) See Caffrey t. Darby, 6 Ves. 488 (in which a difference is noted between money due to the estate by instalments and money due at once); Platel v. Craddock, C. P. Coop. 481 ; Jones v. Biggins, L. E. 2 Eq. 538. ON THEIR OWN ACTS, ETC. 207 it ; they must use due diligence. There are many cases in which executors have been adjudged responsible for gross negligence. If there be crassa negligentia, and a loss sustained by the estate, it falls upon the executors (j). So they will be liable if they negligently omit to sue for a debt, whereby it becomes barred by time (k) ; and they will be charged with a debt lost through the bankruptcy or insolvency of the debtor, if they have improperly de- layed taking steps to get it in (l), even with the amount of a doubtful debt, when they have taken no sufficient ^ steps to recover the same (m), and with arrears of rent unreceived (n). But it has been held that, if an executor refrains from suing upon a promissory note, and the money is lost, still he is not chargeable, unless it be shown both that it could have been recovered by him while the note was in his possession, and also that it could not have been recovered by the person beneficially entitled, after the note had been delivered to him (o). The liability of executors to make good a loss is regulated by the same principles, whether the loss arises from their omitting to call in a debt due to the testator's estate, or from their allowing a balance to remain in the hands of a co-executor : an executor is not protected by mere passiveness from lia- bility on account of a devastavit committed by his co- executor ; it is the duty of co-executors to watch over and, if necessary, to correct the conduct of each other (p). It ij) Per Sir T. Plumer, Tebis v. Glark v. Solland, 19 Beav. 262. Carpenter, 1 Madd. 296. [p) Stiles v. Guy, 1 H. & T. 623. (Jc) Hayward v. KiTisey, 12 Mod. The meaning of a person's appoint- 573. ing more executors than one is that {I) Oaney v. Bond, 6 Beav. 486 ; they may be a check or a caution Grove Y. Price, 26 Beav. 103. to each other {per Clarke, M.R., (m) Lowson v. Copeland, 2 Bro. Toiimsend v. Barber, 1 Dick. 356). C. C. 156. The usual indemnity clause does (n) Tebbs v. Carpenter, 1 Madd. not exonerate one of two executors 290. from a loss occasioned by a debt, (o) EaM V. East, 5 Ha. 348 ; due to the estate from the other. 208 LIABILITIES OF EXECUTOES AND ADMINISTEATOES will be found to be the result of all the best authorities upon the subject, said Lord Cottenham, that, although a personal representative, acting strictly within the line of his duty, and exercising reasonable care and diligence, will not be responsible for the failure or depreciation of a fund in which any part of the estate may be invested, or for the insolvency or misconduct of any person who may have possessed it, yet, if that line of duty be not strictly pur- sued, and any part of the money be invested by such personal representative in funds or upon securities not authorised, or be put within the control of persons who ought not to be entrusted with it, and a loss be thereby eventually sustained, such personal representative will be liable to make it good, however unexpected the result, however little likely to arise from the course adopted, and however free such conduct may have been from any im- proper motive (q). Again, an executor has been held liable for loss occasioned by not converting shares in a company with unUmited liability within a twelvemonth, no ground for delay being given (r) ; and, where the direction was to convert "immediately or as soon as they might see fit," executors, who retained shares in an unlimited company for two and a half years from the death, were, notwith- standing their having acted in perfect good faith, held liable by Malins, V.-C, for loss consequent upon the non- conversion (s). However, this last has been considered a somewhat harsh decision. Had the testator simply directed the executors to realise immediately after his Laving been suffered to remain out- though it was lent upon it by the standing {MucHow v. FulUr, Jac. testator {Powdl v. EvaTis, 5 Ves. 198). 844 ; Bullock v. Whcailey, 1 CoU. (y) dough v. Bond, 3 M. & Cr. 130). 496. Executors are personally re- (r) Grayhum v. Clarkson, L. R. sponsible for loss occasioned by 3 Ch. 605. their negligently permitting money .(s) Smdthorpc v. Tipper, L. E. to remain upon personal seoupity, 13 £q. 232. OK THEIR OWN ACTS, ETC. decease, they would stili have had the year, aud the Vice- Chancellor therefore gave no effect to the words " or so soon thereafter as they might see fit." The question should rather have been, Was the discretion vested in them bond fide exercised 1 (t). In other cases executors have been more mercifully dealt with. Where they wei-e directed by their testator to carry on his business for a certain period, they were not held chargeable with wilful default in not realising assets which could only have been realised by putting an end to the business (u). Again, an executor, who allowed part of the assets to remain invested in Mexican bonds for a year and seven months after the testator's death, and eventually sold the bonds at a lower price than might have been obtained by a sale at an earlier period, but who appeared to have acted throughout with diligence and good faith, was held, under the circum- stances, not to be liable for the loss consequent on his not having sold them sooner (x) ; and, as might have been expected, an executor was held justified in retaining for twelve months Crystal Palace shares which were at a premium at the testator's death, but subsequently fell to a discount (y). Executors, who are called upon to execute often onerous and difficult trusts, are entitled to great indulgence, unless neglect is positively proved (z). So it was laid down in a very recent case that, where executors have acted in the honest exercise of their discretion as to the time of selling property of a very uncertain and speculative character, they ought not to be made per- sonally responsible for the loss arising from their not having sold within the twelvemonth (a). But this case {t) Lewin, 266. 181. (m) Rowley v. Adams, 2 H. L. (s) Per Arden, M.E., Powell v. C. 725. Mvams, 5 Ves. 843. (a) Buxton V. Buxton, 1 M. & (a) Marsden v. Kerd, L. K. 5 C. Or. 80. D. 598. {y) Evokes v. Empson, 22 Beav. 209 210 LIABILITIES OP EXEC0TORS AND ADMINISTRATORS contained special circumstances, and it would not be safe for executors to rely upon it too absolutely, where there are infant beneficiaries ; the knowledge of some of the adult legatees, which, though not amounting to acqui- escence, may be of importance when the claims of each legatee come to be considered, can have no effect, said Lord Cottenham, upon the question of securing the capital in which infants are interested as well as them- selves (b). If executors, neglecting to convert, suffer the tenant for life to receive a higher rate of interest than he would have received if the conversion had been effected when it ought to have been, they will be allowed in their accounts in respect of payments to him only such divi- dends as he would have been entitled to, if the conver- sion had been effected at the end of the year from the testator's death, though the non-conversion had resulted in an increase of capital to the trust estate, and cannot indemnify themselves out of the estate to the extent of that increase (c), but may recover back from the tenant for life or his estate the amount overpaid to him (d). Injudicious Where executors, being directed to sell as soon as con- venient, refused an advantageous offer, and afterwards sold for a considerably smaller sum, they were charged with the loss, but allowed their costs, where their conduct had not been wilful or perverse (e). An executor will not be held responsible for not pro- moting competition by asking one of two proposing pur- chasers to bid higher, before closing with the other (/). Receipts of co- The rule used to be that, inasmuch as executors need not join, but may act severally, if they think fit (each being (5) Stiles V. Ouy, 1 H. & T. 528. 281 ; Fry v. Fry, 27 Beav. Ui. (c) Dimes v. Scott, i Russ. 195. (/) Harper v. Bayes, 2 De G. (d) Hood V. Clapham, 19 Beav. F. & J. 542 ; Selby v. Bovyie, i 90. Giff. 300. executors. («) Taylor v. Tabrum, 6 Sim. ON THEIE OWN ACTS, ETC. 211 able to sell, assign, or release the whole, without joining with the other (g) ), they were both answerable if they joined in receiving money (h). Executors seem formerly, said Lord Eldon, to have been charged on much stricter principles, if they joined unnecessarily, though without taking the control of the money. That rule is now at an end. It may be laid down now, as in Brice v. Stokes (i), that, though one executor has joined in a receipt, yet whether he is liable shall depend on his acting (Jc). The distinction seems to be this, said Lord Redesdale, with respect to a mere signing, that, if a receipt be given under circumstances purporting that the money, though not ac- tually received by both executors, was under the control of both, such a receipt shall charge, and the true question in aU those cases seems to have been whether the money was under the control of both executors ; if it was so con- sidered by the person paying the money, then the joining in the receipt by the executor who did not actually receive it amounted to a direction to pay his co-executor, for it could have no other meaning ; he became responsible for the application of the money, just as if he had received it (I). This view has been adopted by the Legislature (m). But the above remarks do not apply to what is done Parting with TT1 p 1C1 -n assets to co- in the discharge oi a necessary duty oi the executor. Jb or executors for example, an executor living in London is to pay debts in c^^^t™* a^^ Suffolk, and remits money to his co-executor to pay those debts. He is considered to do this of necessity. He could {g) Ante, p. 145. to obtain sole control of the assets (A) Murrell v. Oox, 2 Vem. 570. (see WilUns v. Eogg, 3 Giif. 116 ; (i) 11 Ves. 319. afai-med 10 W. E. 47). An exe- (ifc) Walker v. Symonds, 3 Sw. 64. outor who acts without proving is (l) Joy V. Gamphell, 1 Sch. & answerable only for what he actually Lef. 341 ; Doyle v. Blake, 2 Sch. & receives (Lowry v. Fulton, 9 Sim. Lef. 242. But a specially penned 115). indemnity clause may protect an (m) 22 & 23 Vict. c. 35, s. 31, executor from the loss consequent Appendix, 810. upon his permitting his co-executor p 2 212 LIABILITIES OF EXECUTORS AND ADMINISTRATORS legatees, and not transact business without trusting some persons, and otherwise in . . . , . . due course of it woulcl be impossible for him to discharge his duty, if administration, i • j -1,1 i. i -^x j j. j. he IS made responsible, when he remitted to a person to whom he would have given credit, and would in his own business have remitted money in the same way. It would be the same, were one executor in India, and another in Englaiid, the assets being in India, but to be applied in England : there the co-executor is appointed for the pur- pose of carrying on such transactions, and the executor is not responsible ; for he must remit to somebody, and he cannot be wrong, if he remits to the person in whom the testator himself reposed confidence («). If money be re- quired for the payment of debts or legacies, one executor is safe in joining in the sale of stock or other property, and permitting another executor to receive the proceeds for that purpose ; but, if he joins in such sales, when the money is not required, and he had not reasonable grounds for believing that it was so required, he is liable for the money so received by his co-executor (o). Accordingly, executors have been charged for negligence by joining in a transfer to a co-executor upon his groundless represen- tation that it was required for debts (notwithstanding the beneficiaries consented, under a similar misrepresentation), but they were not held liable so far as they could prove the application to that purpose, though the co-executor had other funds (not through them), which he wasted (p) ; and, in a like case, where it was stock which was sold out and misapplied, the complaisant executors were ordered to replace it, and account for the dividends (q). Where, (w) Joy V. Campbell, 1 Sch. & Lef. v. Matthews, 1 Mac. & G. 434. 341. Necessity, which includes the (p) Lord Shipbrook v. Lord regular course of tusiness in adminis- Hitchiribrook, 16 Ves. 477; Under- teeing the property, will exonerate wood v. Steveris, 1 Mer. 712 ; Wil- the personal representative {per liams v. Nixon, 2 Beav. 472. See Lord Cottenham, Clough v. £ond, Dines v. Scott, T. & R. 368. 3 M. & Cr. 497). (g) Bewett v. Foster, 6 Beav. 259. (0) Per Lord Cottenham, Terrell ON THEIR OWN ACTS, ETC. 2l3 however, executors were directed to apply dividends in a particular manner, and one allowed the other to receive them, he was held not responsible for the latter's misap- plication of them, having no knowledge thereof (r). Although the Court will give protection to an executor, for payment Ox rGSid.UiW*v who hands over his testator's assets to his co-executor for legatees, the payment of debts in a due and ordinary course of administration, the principles upon which that protection rests do not apply to the case of an executor handing over the assets for the payment of the residuary legatees (s). It is a general rule that, where one executor receives and gene- the whole or part of the estate, and pays it over volun- yng co-execu- tarily and unnecessarily to his co-executor, and the same *°F *° "^^^m •I ■> ' sole control of is lost, he who so paid it over is answerable (t). Or, if tte assets, one executor does an act which enables his co-executor to obtain sole possession of money belonging to the estate, and which, but for that, he could not have obtained pos- session of, and the money is afterwards misapplied by such co-executor, both are liable for the loss {u). C, who knew that T, his co-executor, owed money to the testator on an equitable mortgage, allowed him to keep the title deeds in his sole possession, taking no steps to compel payment, though he was very active in recovering a debt due to himself personally from T ; T deposited the deeds with another person as a security for fresh advances, and the testator's debt was lost : held, that C was liable for the loss (x). So executors were held chargeable, where they allowed a co-executor (an auctioneer, who had been directed by the testator to conduct, and had conducted, a sale of the trust estate) to retain the sale moneys for {r) Williams v. Nixon, 2 Beav. v. Barber, 1 Dick. 356. 472. in) Candler v. Tillett, 22 Beav. (s) Moses V. Levi, 3 Y. & 0. Ex. 257 ; EgieH v. Butter, 21 Beav. 359. 560. {t) Per Clarke, M. K. , Tovmsend {x) Oandler v. Tillett, vM supra. 214 LIABILITIES OF EXECTTTOES AND ADMINISTEATOES thirteen months (z), or to retain in his hands the ascer- tained residue (a). or to com- Clearly an executor who stands by, and sees a breach of of trust. trust committed by his co-executor, becomes responsible for the breach (&). Mispayment of If an executor or administrator pay debts of a lower degree first, he must, on a deficiency of assets, answer those of a higher degree out of his own estate (c), though he had no notice of the superior debt at the time of the mispayment (d), unless he has availed himself of the statute hereafter noticed (e). Payment of an invalid claim is a devastavit (/). Non-invest- Executors, who for upwards of a year after their testa- tor's death allowed a considerable portion of the assets to lie unproductive in the hands of a banker, who failed, were imder the circumstances charged with the loss (g) ; but it is not easy to fix executors with loss in respect of a balance kept by them at their banker'sduring the year, if the executorship cannot be completely wound up, and mis- conduct is not suggested (h). An executor depositing a trust fund with his bankers, accompanied by an order in writing to invest the money in consols, was held answer- able for the omission of the bankers to invest, where he made no subsequent inquiry respecting it until about five months afterwards, when the bankers became bankrupt (i). (z) Williams v. Biggins, W. N., (e) 22 & 23 Vict. c. 35, s. 29, 49. post, p. 245. ment, (a) Lincoln v. Wright, 4 Beav. (/) Wincliconibey. Bishop of Win- 427. If a 'bill is transmitted to Chester, Hob. 167 ; and see Shcdl- two executors before they become cross v. Wrigld, 12 Beav. 558, so, payable to them personally, the 563. joining of one, after they are exe- (g) Moyle v. Moyle, 2 Euss. & M. cutors, merely by indorsement, to 710. This would be wilful default, enable the other to receive the and not within the protection of 22 money, would not be sufficient to & 23 Vict. c. 35, s. 31, Appendix, charge them {Hovcy v. Blakcman, p. 310. Bee post, p.' 217. 4 Yes. 60S). (h) See Johnson v. Newton, 11 (6) Booth V. Booth, 1 Beav. 125. Ha. 160, and the statute referred to (c) 2 Bl. Comm. 511. in the last note. {d) Searlev. Lane, 2 Vern. 88. (») Chalknv, Shippam, iRa,. 555. ON THEIR OWN ACTS, ETC. 215 Where executors omit to invest according to the will, they must replace the money with interest at 4 per cent. (k). An executor lending money of his testator upon bond ^'^^ ™- 1 n 1 IT •,. 1 ■ in proper invest- shall be personally answerable, if the security prove defec- ment of tive, though his testator was in the habit of lending money on such security, and shall not be indemnified from the profits made by other transactions of the same nature (I). Where executors, being empowered to lend upon heritable or personal security at such rate of interest as they should think reasonable, lent to one of themselves on bond at 4 per cent., when 5 per cent, might have been obtained by other securities, it was held that, though the discretion might have been soundly exercised by tbeir lending the money to any other person upon such terms as they thought reasonable, yet a trustee contracting with himself cannot spare himself, and he shall pay interest at 5 per cent, for the money in his hands (m) ; but, where the trust is to lend to one of themselves on personal security, co- trustees are protected in the absence of misconduct (n). Executors are liable for loss arising from investing on mortgage upon a valuation made on behalf of the mort- gagor (o). Trustees of stock sold it, and lent the money to the tenant for life on improper security. One of the trustees died, and the other received the money lent, in- vested it in a different security, and shortly afterwards sold it out, and again lent it to the tenant for life. The money being lost, it was held that the original breach of trust was not cured, and that the estate of the deceased trustee was liable for the whole fund (p). Where executors have been guilty of breach of trust by selling out stock and dealing This again would be a case of wilful (m) Forbes v. Boss, 2 Cox, 43. default. (») See Paddon v. Richardson, 7 (yfc) BoUnson v. Robinson, 1 De De G. M. & G. 563. G. M. & G. 247. See Jams v. Foxall, (o) Ingle v. Partridge (No. 2), 34 15 Beav. 388. Beav. 411. (Z) Adye v. Fexdlleteau, 3 Sw. {p) Lawdery. Weston, 3 Dr. 389. 84 ; and see ante, p. 153. 216 LIABtLlTIES OP EXECUTORS AND ADMINISTRATORS improperly with the money, the cestwis que trustent have an option to have the stock replaced, or the money produced by the sale, with interest at 5 per cent., or more, if more has been made by it, and the costs occasioned by the misconduct (q) ; but, where an executor, having the option of investing on mortgage or government security, improperly took an insufficient mortgage, it was held that, having exercised his discretion, though improperly, he was answerable for the money lost, and not for the stock it might have produced (r). Where trustees sold out stock, which they were at liberty to do, for the purpose of in- vesting the produce on a mortgage, which they were not justified in taking, it was held that the Court could not treat the sale of the stock as lawful and the investment as unlawful, so as to satisfy the trust by replacing the money, but that the whole must be treated as one unjustifiable transaction, and that the trustees must replace the stock (s). Payment to Where an executor or administrator, without any judi- really^entitled. ^^^^ decision, authority, or investigation, pays over the estate to those whom he supposes to be, but who in fact are not, entitled thereto, he must replace it with interest at 4 per cent.(i) ; but, where an executor, under a bond fide belief that they were entitled thereto, himself retained a third of the residue, and paid two-thirds to his co-executors, on being ordered to refund it, he was only held liable to pay (q) Pocock V. JReddington, 5 Ves. tlie investment, are entitled for their 794. Where a bankrupt trustee has own benefit to theprofit arising from sold out stock, and conyerted the a rise in the price of the latter proceeds to his own use, proof may (Fletcher v. Green, 33 Beav. 426). be made against his estate either for (r) Ames v. Parkinson, 7 Beav. the amount of the produce of the 379. stock, or for the value of the stock at {s) Phillipson v. QaMy, 7 Ha. his bankruptcy [Ex parte Ourner, 1 516 ; Norris v. Wright, 14 Beav. M. D; & De G. 497), with interest 304. at 5 per cent. (Bick v. Motley, 2 M. {t) Turner v. Maule, 3 De G. & & K. 312). Executors who are Sm. 497. If the Solicitor to the charged with the cash, and not with Treasury, having taken out admi- OK THEIR OWN ACTS, ETC. 217 interest on the third retained by himself (m). If an executor or administrator is asked to pay trust-money under a power of attorney, he must see to the genuineness of the authority ; for, if forged, it is a nuUity, and the rights remain as before (x). His liability is the same, if he act in reliance on a forged certificate of maniage (y). But he is not liable for a bond fide payment or act under a power of attorney, merely because the giver of the power is dead or has avoided it, if such death or avoidance be un- known to the executor or administrator (z). Executors are answerable for the default of an agent or Default of servant employed by them ; but, if the testator recommend vant, a person to be employed as agent or servant, they are not answerable, unless the plaintiff prove laches (a). Similarly, solicitor, they are liable for loss occasioned by the fraud (b), or negligence, or misapplication (c), of their solicitor ; not, however, if they have acted prudently and according to the ordinary course of business (d) ; nor are they liable for a loss occasioned by robbery from him (e). They are responsible also for misapplication by their broker (/). broker, The case of failure of his bankers has already been banker. considered (g). These decisions, viewed as precedents, postulate wilful default on the executors' part, or that they have been acting out of the common course of nistration, pays the fund into the (a) Kilbee t. Sneyd, 2 Moll. 200. Treasury, no next of kin appearing, (i) Sutton v. Wilders, L. E. 12 he must, on their appearance, re- Eq. 373. place the fund with like interest (c) Hopgood v. Fwrkin, L. E. 11 (iM.). Eq. 71; Rowland v. WUherdeii, 3 (u) Saltmarsh v. Barrett (No. 2), Mac. & G. 568. 31 Beav. 349. (d) Oriental Commercial Bank v. (x) Ashby v. Blackwell, 2 Eden, Savin, L. E. 16 Eq. 203. But see 302 ; and see Sloman t. Bank of Boslock r. Floyer, L. E. 1 Eq. 26. England, 14 Sim. 475. («) Jones t. Levns, 2 Ves. sr. {y) Eaves v. Hickson, 30 Beav. 240. 136. (/) Matthews v. Brise, 6 Beay. (s) 22 & 23 Vict. c. 35, s. 26, 239. Appendix, p. 307. (g) Ante, p. 214. 218 LIABILITIES OF EXECUTORS AND ADMINISTRATORS Liability not divisible. Liability for breacli of trust joint and several. administration ; othierwise, they are protected Qi). Where the assets of a testator have come into the possession of the executor, and are afterwards lost to the estate, the rule now is that the executor stands in the position of a gratuitous bailee, and therefore cannot be charged without some wilful default {i). We have been referred, said James, L. J., on a recent occasion, to cases in which the Court of Chancery- has felt itself bound to make trustees and executors liable for money which they have honestly paid : it may have been necessary to make them liable on grounds of public policy, but I am not disposed to extend those decisions (Jc). If by agreement amongst the executors one be to receive and intermeddle with such a part of the estate, and another with such a part, each of them will be chargeable with the whole, because the receipts of each are pursuant to the agreement made betwixt both (Z). If executors or administrators delegate the work of their office to one of their number, they are answerable for his receipts, and responsible for his faithful discharge of their joint and several duty (m). There is no instance of an executor answerable only fro tanto, as having administered only partially (n). Where trustees are involved in one common breach of trust, a cestui que trust suiFering from that breach, and proving that the transaction was neither authorised nor adopted by him, may proceed against either or all of the trustees (o) ; they are jointly and severally liable (p). But all of them are primid facie necessary parties to a suit c. 35, s. 31, (A) 22 & 23 Vict. Appendix, p. 3]0. (i) Job V. Job, L. E. 6 C. D. 562. {k) Ex parte Ogle, L. R. 8 Ch. 715. {I) Gill V. Att.-Gen., Hard. 314. (to) Lees v. Sanderson, 4 Sim. 28 ; per Richards, C. B., Oliver v. Court, 8 Pr. 167 ; and see Horton v. BroehWmrst (No. 2), 29 Beav. 504. (») Fer L. C. Hart, Kilbee v. Sneyd, 2 Moll. 201. (o) Fer Lord Eldon, Walker v. Symonds, 3 Sw. 75. {p) Fletcher v. Green, 33 Beav. 426. ON THEIR OWN ACTS, ETC. 219 complaining of breach of trust, although execution may be taken out against one only (q). Executors may in some cases be charged as against Liability to creditors, where they are discharged as against legatees (r). none to I'ega- Executors and administrators are always liable to be ^®^' n 1 • ■ • !• 1 1 1, Ao'ioiS for sued for an account, or for admmistration of the deceased s accounts or personal estate. Any one legatee or next of kin may have^io"™^ '^*' a judgment for administration (s) ; so may an annuitant, whose annuity is charged upon residue (t) ; or creditors (u), inclu(iing a creditor of a firm in which the deceased was a partner (x), but not including a creditor of a residuary legatee (y). An action for administration cannot be main- tained by one who has only an expectation and not an interest (s). An account has been directed against an executor at the suit of a residuary legatee, though the tes- tator directed that the quantity of the residue shouM be as the executor voluntarily, and without being thereto com- pelled by law, should declare (a) ; and he cannot protect himself against an account on the ground that the trans- actions "were such that no action could have been main- tained against the testator (6). But, if letters of adminis- tration be granted to an infant, under which he receives and disposes of assets, an account cannot be directed in respect of his receipts during his infancy (c). (j) Shipton V. Bawlins, i Ha. (m) See Fairland y. Percy, L. E. 623. 3 P. & D. 217. (r) Per Lord Redesdale, Doyle v, (x) Micey. Oordon, 11 Beav. 265. Blake, 2 Sch. & Lef. 239. The (y) Elmslie v. M'Aulay, 3 Bro. distinction had been previously C. C. 624, 626. taken by L. C. Harcourt {Ghurchill (z) Clowes v. Silliard, L. E. 4 V. Lady Sobson, 1 P. Wms. 243), C. D. 413. but Lord Thurlow thought it "an (a) Gibbons v. Dawley, 2 Ch. odd distinction " {Sadler y. Hobis, Cas. 198. 2 Bro. C. C. 117). (6) Joy y. Campbell, 1 Sch. & Lef. (s) 15 & 16 Vict. c. 86, s. 42, 339. Appendix, p. 297. (c) Hindmarsh y. Southgate, 3 {t) Wollaston v. Wollaston, L. E. Euss. 324. 7 C. D. 58. 220 LIABILITIES OF EXECUTORS AND ADMINISTRATOES Parties to sucli actions. Common indg- ments and judgments as for wilful default. To an action which, seeks an account of the assets of one who died out of the jurisdiction possessed by a personal representative there, a personal representative constituted in England is a necessary party, although it does not appear that the deceased at the time of his death had any assets in England {d). To an action in respect of assets remitted from India, and in the hands of an executor residing in England, but who was only constituted executor in India, a personal representative constituted in England is a necessary party (e). Where an administrator is out, of the jurisdiction, judgment for administration cannot be obtained against him ; semble, an administrator must be appointed under the Act of Geo. III. (/). Unless an executor durante mi/nore cetate has fully accounted with the infant, when of age, he remains a necessary party to an action relating to the estate (g) ; so does an executor who has not renounced, though he has not proved (h). See further as to parties, ante, pp. 78, 79, 147, and post, p. 251. A special order is necessary to charge executors as for wilful default (i). Proof of improper expenditure by them will not support such a judgment (k). Under a judgment for the common accounts, each executor is chargeable only with his actual or constructive receipts, and therefore in such an action an executor will escape liability by showing either that he has been wholly passive, or that he has only acted so far as was necessary to enable his co-executor to administer the estate ; but secus, where he is sought to be (d) Tyler v. Sell, 2 M. & Or. 89 ; Flood V. Patterson, 29 Beav. 295. (e) Bond v. Grahoum, 1 Ha. 482. (/) Donald v. Bather, 16 Beav. See ante, p. 73. (g) Glass v. Oocenham, 2 Atk. 121. (A) Morley v. White, L. K. 8 Ch. 731. (i) Garland v. Littlewood, 1 Beav. 527. Semble, under the new prac- tice, such an order may, in a proper case, be made at any time during the progress of the action {Job v. Job, L. K. 6 C. D. 562). (k) Smith V. Chambers, 2 Phil- lips, 221. ON THEIR OWN ACTS, ETC. 221 made liable for wilful neglect or default (l). Where a plaintiff has obtained the common judgment against a defendant, he cannot, without leave of the Court, main- tain a subsequent action against the same defendant, charging him with wilful default in the administration of the same estate (m). Executors who have been brought into Court are gene- Executors' and rally entitled to their costs, though they have made a gog^g^f action. claim and failed, if they made it merely by way of sub- mission (n). A trustee, seeking the direction and indem- nity of the Court as to the execution of his trust, is, whether as plaintiff or defendant, entitled to his costs, unless the act required to be done leads to no responsi- bility, and the motive of the trustee is obviously vexa- tious (o). Considering the importance of securing intelli- ■(0 Terrell v. Matthews, 1 Mao. & G. 433. (m) Laming v. Gee, L. R. 10 Ch. D. 715. (re) Mashleigh v. Master, 1 Ves. jr. 205. See Samuel v. Jofies, 2 Hare, 246. The representative of a defaulting executor, fairly account- ing, is entitled to deduct his costs of suit out of the assets, although they may be insufficient to repair the breach of trust {Haldeviy v. Spofforth, 9 BeaT. 195) ; he has even had costs given to him ont of the original testator's estate {Home v. Shepherd, 3 Jur. N. S. 806). Trus- tees, who had declined to transfer a fund to an assignee on the ground of an alleged fraud in the assignment, were held entitled to their costs as between solicitor and client, al- though the assignment was decreed to be carried into execution, it having been attended by circum- stances of suspicion ( Whitmarsh v. Bdbertson, 1 Y. & 0. C. 715 ; see further King v. King, 1 De G. & J. 663). On the other hand, execu- tors of trustees were decreed to pay the costs of a suit rendered neces- sary by their having refused to pay over the trust fund on reasonable evidence of a person's death ; but, inasmuch as the trustees had been guilty of a breach of trust in rela- tion to the fund, such costs were decreed to be paid out of the assets of the trustees, and not personally by the executors {Lyse V. Kingdom, 1 CoU. 184). Com- pare Legg v. MacTcrell, cited amte, p. 107. (o) Curteis v. Candler, 6 Madd. 123. A plaintiff died after obtain- ing a judgment in her favour, and B, her legal personal representa- tive, who was also one of the de- fendants, was ordered to be at liberty to carry on and prosecute the suit against the other defend- ants in like manner as the plaintiff might have done, if still living. The judgment was afterwards re- versed with costs. Held by the House of Lords, that B was per- sonally liable for payment of the 222 LIABILITIES OF EXECUTORS AND ADMINISTRATORS gent, competent, and responsible persons to act as trustees, it is not the practice of the Court to visit trustees with costs, except where they act from interested motives, or intentionally or wantonly conduct themselves in a vexa- tious and oppressive manner (^). When costs are given them, they are as between solicitor and client, and include their charges and expenses properly incurred ; no trustees would be safe, unless such costs were allowed (q). Though a testator expressly directed that for any expenses his executors should be put to they should be allowed their costs out of the estate, yet, where there was a plain fraud on their part, costs were decreed against them (r). On the other hand, though they have been guilty of some acts of negligence, they may nevertheless be entitled to their costs (s). A trustee's right to costs out of the estate is preserved by the new Orders (t). Set-off. It may here be mentioned that, though the general rule is that there can be ho set-off, where debts are due in different rights (x), a debt due to an administrator of an intestate in his own right from one of the next of kin may be set off, in a suit by the next of kin for administration of the estate, against a sum due from the administrator in respect of the next of kin's share of the estate (y). And an executor may set off against a legacy a statute-barred debt owing by the legatee to the testator (z), and against the share of a co-executor the amount of a devastavit defendant's costs (Boynton v. Boyn- Gale v. Luttrdl, 1 Y. & J. 180. ton, L. R. 4 App. Cas. 733). See Newell v. National Provincial {p) Noble V. Meymott, 14 Beav. Bank of England, L. R. 1 C. P. D. 471. 496 ; Middleton v. Polloch, L. R. 20 (q) Poole V. Pass, 1 Beav. 605. Eq. 29. (r) Hide v. Saywood, 2 Atk. 126. {y) Taylor v. Taylor, L. R. 20 (s) Bailey v. Gould, 4 Y. & C. Ex. Eq. 155. 221. (.") Courtenay v. Williams, 3 Ha. {t) Order IN. 539. See Morley v. Saunders, L. R. \x) Bishop V. Church, 3 Atk. 691; 8 Eq. 694; Sloper v. Oliver, L. R. 16 Medlicott v. Bowes, 1 Yea. sr. 207 ; Eq. 481. ON THEIU OWN ACTS, ETC. 223 committed by the latter (a), and an administrator may set off against the distributive share of a next of kin a like debt owing by him to the estate (&). And, -where a debt to the estate of a testator may be set ofi by the executors against a legacy to the debtor, such debt may also be set off against a legacy to the wife of the debtor, subject to her equity (if any) to a settlement (c), her equity being paramount to any right of set-off by the executors (d). Again, the rule of set-off applies, though the legatee has become bankrupt (e), but not where the bankruptcy occurred in the lifetime of the testator (/). If the executor or administrator has proved for the debt in the bankruptcy, he has abandoned his right of set-off (g). It has been questioned whether there can be any set-off against a specific legacy Qi). On admission of assets, a personal decree will be made Effect of ad- against an executor (i), if he also admit the validity of assets, the claim set up (ii), and he will be liable to interest, if made {k). It is therefore material to inquire what will be held to amount to such an admission. Payment of interest on a legacy from time to time, as What amounts distinguished from a single payment (I), and payment of admission. (as) Sims v. Doughty, 5 Ves. 243. sr. 85. (S) White T. Cordwell, L. R. 20 (ii) Admission of assets does no Eq. 644. estop an administrator from dis- (c) M'Mahon v. Burchell, 5 Ha. puting the creditor's debt (Beynon 325. V. Beynon, "W. N. 1873, 187). (d) M'CormicTc v. Garnett, 2 Sm. (le) Forster v. Forster, 2 Bro. C. & G. 37. C. 616 ; Tew t. Lord WinteHmi, Ifi) Lee V. Egremont, 5 De G. & cited 4 Ves. 606 ; and see Daven- Sm. 348 ; Bousfield t. Lawford, 1 port v. Stafford, 14 Beav. 319. Ad- De G. J. & S. 4.'59. mission of assets by one executor (/) Oherry v. BouUbee, 4 M. & does not prevent a creditor from Cr. 442 ; Hodgson v. Fox, L. R. 9 requiring the others to account C. D. 673. (Norton v. Turvill, 2 P. Wms. 145). (g) Stammers v. Elliott, L. R. 3 (Z) Corporation of Clergymen's Ch. 195. Sonsy. Swainson,\''7&&.sr. 15; Att.- ih) Harvey t. Palmer, 4 De G. & Gen. v. Chapman, 3 Beav. 255. See Sm. 425. Severs v. Severs, 1 Sm. & G. 400 ; (t) Horsley v. Chaloner, 2 Ves. Whittle v. Henning, 2 Beav. 396. 224 LIABILITIES OP EXECUTORS AND ADMINISTRATORS legacy duty (m), are admissions of assets to the amount of the legacy; and, where executors employed a legacy in their business, they were held to have sufficiently admitted assets by entering the amount in the partnership books to the credit of the legatee (n). Admission of assets to one legatee is, it has been said, an admission to all (o), but the Court will not view the principle of payment of one legacy being an admission of assets for every other legatee as a hard and fast rule, but will, according to the tendency of modern decisions, examine the facts of the case fairly and justly, so as not to subject executors to liabilities which they never contemplated (oo) ; and the payment of one legacy out of an executor's own moneys is not an admis- sion for the payment of the others (p). Regular payment of annuities for several years is an admission of assets (q). Payment of probate duty is presumptive evidence, but not an absolute admission, of assets to the extent covered by the duty paid (r). Where an executrix and residuary legatee confirmed by her own will a void bequest contained in the will of her testator, she was held to have admitted assets to that amount (s) ; but, where one of two executors, who were also residuary legatees, had died, a payment by his representatives to the survivor out of the deceased executor's estate in satisfaction of the survivor's, claim as such residuary legatee was held not to be an admission of assets for the payment of the other legacies under the will (t). Judgment against an executor by confession or (m) Zazonby v. Kawson, 4 Do G. E. 213. M. & G. 556. (p) GaMury v. SmUh, L. E. 9 (n) Tomiend v. Townend, 1 Giff. Eq. 37. 201. ■ («■) Payne v. UttU, 22 Beav. 69. (o) Per Lord Hardwicke, Cook v. (r) Lazonby v. Bawson, 4 De G. Martyn, 2 Atk. 3. Query, whetBer M. & G. 566. payment of legacies is an admission (s) Campbells. Earl of Radnor, of assets sufficient to pay debts (see 1 Bro. C. C. 271. I V. Lane, 6 Ha. 32). (i) Cadiury v. SmUh, ubi supra. {oo) Morewood v. Currey, 28 W. ON THEIR OWN ACTS, ETC, 225 default is an admission of assets (u). If an executor or administrator refer generally all matters ia dispute to arbitration, without protesting against the reference being taken as an admission of assets, it will amount to such an admission (x), and he will be personally liable to pay any sum which may be awarded against him (y), and to be attached for non-payment (z). Where executors of a receiver three years after their testator's death, and with perfect knowledge of the state of his assets and the cir- cumstances of the case, applied to pass the accounts and pay in the balance, they were not heard afterwards to say they had no assets (a). An admission of assets can never be retracted, unless a How far case of mistake be most clearly established (b). It is true, binding. on circumstances the Court will not pin down an executor to such an admission, as if the money is in a banker's hands ; the best bank in England may fail, and that un- doubtedly will not bind him ; but he must prove that mis- take, — that the circumstance on which he built his admis- sion failed (c). Again, the Court will not bind executors by their admission, if new claims on the estate afterwards arise (d). Lastly, executors should remember that counsel's advice Counsel's ad- •11 " • 1- 1 -i- c /• 1 Tice no protcc- will not protect them against liability lor wrongful acts. tion. I have no doubt, once said Lord Redesdale, the executors meant to act fairly and honestly ; but they were misadvised, and the Court must proceed not upon the improper advice (u) Mock V. Zeighton, 1 Salk. E. 453. 310. {a) Gurden v. BadcocTc, 6 Beav. {x) Per Lord Eldon, Robson v. 159. , 2 Rose, 50 ; but see Pear- (J) Per Lord Eldon, Dreiory v. son Y.Henry, 5 T. K. 6 ; Barnes Thacker, 3 Sw. 548. See ybiraijiv. V. Ridge, 3 Esp. 101. See further Walter, 9 Ves. 365. WanshoroughY.Dyer,iOi\tiy,iQ. (c) Per Strange, M. R., Eorsley [y) Barry v. Rush, 1 T. E. 691 ; v. Clialoner, 2 Ves. sr. 85. RUdell V. Sutton, 5 Bing. 200. {d) Payne v. Little, 22 Beav. 69. (z) Worthington v. Barlow, 7 T. 226 LIABILITIES OF EXECUTORS AND ADMINISTE.A TOES. upon which an executor may have acted, but upon the acts he has done. If under the best advice he could pro- cure he acts wrong, it is his misfortune, but public policy requires that he should be the person to suffer (e). The Court can never sanction the proposition that a party, having acted in a manner which the Court has decided to be improper, can protect himself by showing that he had received bad advice, however eminent the person may be who gave it (/). However, the advice may {g), or may not Qi), protect the executor acting on it from costs. (c) Doyle v. Blake, 2 Sch. & Lef. of tlie case, and must not be taken as 243 ; re Knight's Trusts, 29 Beav. impugning the general rule (Lewin, 49. 318). (/) Per Romilly, M.K., Peers v. {g) Angier v. Stanrutrd, 3 M. & Ceeley, 15 Beav. 211. There is a K. 566 ; Devey v. Thornton, 9 Ha. contrary expression of opinion by 232. But in the latter ease the Arden, M.R., in Vez v. Emery, 5 Court refused to'give costs. Ves. 144, which, however, was ad- (h) BouUon v. Beard, 3 De G. M. dressed to the special circumstances & G. 608. executors' akd administrators' accounts. 227 CHAPTER XXIV. executors' and administrators' accounts. Much that appertains to the subject of executors' and administrators' accounts has of necessity been treated already, especially in the last chapter; but several doc- trines, some of considerable importance, yet remain to be noticed. In the first place, executors are not chargeable with the Testator's value of their testator's property as stated by himself and estate, others in deeds to which the executors were not parties {a). Where the estate is insolvent, only reasonable funeral Funeral ex- expenses will be allowed, according to the circumstances of ^^°^^^' the particular case (h). If the executor or administrator be extravagant in the matter of funeral expenses, it is a species of devastavit, and shall only be prejudicial to himself, and not to the creditors or legatees of the deceased (c). Executors are entitled to be allowed the payment of Payment of statute- barred debts {d). But they will be charged with (a) Eowley v. Adams, 2 H. L. of a deceased executor, in account- C. 725. ing for tlie executor's receipts, is (b) Edwards v. Edwards, 2 Cr. not entitled by way of discharge to & M. 612; and see ante, pp. 150, the amount of a deht owing to the 158, 200. The cases as to the executor from his testator without quantum of allowance are collected evidence of retainer by the executor in Wms. Exors., p. 972. in his lifetime; the amount can (c) 2 Bl. Comm. 508. only be claimed as a debt against {d) Hunter Y. Baxter, 3 Giff. 21i; the estate {Burge v. Brutton, 2 Ha. and see Lowis v. Mumney, cited 373). ante, p. 161. The representative Q 2 228 EXECUTOES' AND ADMINISTEATOES' over payment to a creditor, though done innocently (e), and with payment to one who has no valid claim against the estate (/). So, where moneys which had been de- posited with the testator, to abide the result of bets between himself and the depositors, were after his death returned to the depositors by his administratrix, who at the same time paid the amount of such of the bets as had been decided against him in his lifetime, it was held that, in respect of the deposits so returned upon bets not decided in the testator's lifetime, the administratrix was entitled to credit in her accounts, but not so in respect of the sums paid for bets decided before the testator's death and the deposits upon such bets (g). Nor will personal represen- tatives be allowed payments to creditors after a decree for administration, but they may stand in the place of the creditors paid (h). An executor, having assets of his testa- tor either in money or goods, applied to a creditor of the testator for a loan equal in amount to his debt, and the creditor accepted the personal security of the executor for the amount, and released his debt against the estate : held, that the executor, having by such substitution of his own security for that of the estate discharged the debt as against the estate, should not be treated as a mere pur- chaser of the debt of the creditor, and, as such, entitled only to stand in the creditor's place, but that he was entitled to be allowed, in his own discharge, the amount of the debt as a debt of the testator preferred and paid (i). Legr.cies. Legacies have been allowed an executor, which he paid under colour of a will which was afterwards found to be revoked (k). (c) Vcs V. Emery, 5 Ves. 141 ; M. & 6. 55. and see Browne v. Spooner, 1 Ves. (A) JoTies v. Jukes, 2 Ves. sr. jr. 291. 518 ; Mitchelson v. Piper, 8 Sim. (/) Shalleross v. Wright, 12 64 ; /rfty v. /rJj/, 24 Beav. 525. Bear. 558, 563. (i) Hepwm-th v. Hcslop, 6 Ha. 561. (g) Manning v. Piircell, 5 De G. {k) Hele v. Stowel, 1 Ch. Cas, ACCOUNTS. 229 Executors ■will be charged with interest on balances Interest on which they ought to have, but have not, invested (l) ; but there must be a clear case of improper retention to a considerable or substantial amount (ni), and interest will not be charged on a balance by an executor under a fair misapprehension of his right to it (n). It has been laid Rate of ia- down that interest on balances, where chargeable, will be at 4 per cent. ; for 5 per cent, a special case beyond mere negligence is necessary, as that the executor employed money in his trade (o). "Where an executor has made 5 per cent, of the assets in his hands, or by the non-applica- tion of assets has damaged the estate to the amount of 5 per cent., in either case he shall be charged with interest at that rate : therefore, where he permits debts carrying interest at 5 per cent, to run on, when he has in his hands a fund to pay them, he shall pay interest at that rate ; but, where it appears only that he retained the assets for his own purposes, he shall answer interest at 4 per cent. (p). But, in a recent case (q), where there was no proof that a person in a fiduciary position had made any interest or profit on money in his hands, he was chai-ged with interest at 5 per cent., the Court presuming the rate of interest made to be the ordinary rate of interest, namely (as it was said) 5 per cent. (r). Compound interest will only be given against an ac- Compound counting party, when he has employed money in busi- ™ ^^^^ ' ness (s). 126. Compare ante, p. 98 ; and (p) Hall v. HalUt, 1 Cox, 134. see 20 & 21 Vict. c. 77, s. 77, Ap- \q) Surdick v. Garrklc, L. E. 5 pendix, p. 301. Ch. 233. {I) Turner v. Turner, 1 J. & "W. ()■) Per Lord Hatherley, iUd. 39 ; and see ante, p. 214. 241. See per Lord Cranworth, (m) Per Kindersley, V.-C, Jones Att.-Gen. v. Alford, i De G. M. & V. Morrell, 2 Sim. N. S. 252. G. 851. Lord Hatherley's rule (n) Bruere v. Pernberton, 12 Ves. would seem to make the rate of 386. interest variable with the value of (o) Eoehe v. Hart, 11 Ves. 58 ; money. Knott V. Gottee, 16 Beav. 80. (s) Burdkk v. QarricJc. 230 executors' and administrators' Interest on The Court will not charge an executor, who has been unpaid arrears , . ... of income. guuty 01 delay in accounting, with interest on aiTears of income unpaid by him (t). Compound Compound interest to bankers, by payment of which tankers. the estate has become insolvent, will not be allowed (u). Three trustees, two of whom were bankers, were em- powered to carry on a business, and to borrow "from any bankers or other persons " for that purpose ; the bankers made advances to the trust at compound, but were only allowed simple, interest (x). Profits made by The last case brings us to the consideration of the im- administrator. perative rule of the Court that, in the absence of any contract for that purpose, no person can by acting as trustee derive any pecuniary benefit to himself (y). Profit derived by a trustee either from the trust property or from his office of trustee belongs to the cestuis que trustent (z). So he is liable for profits made in trading with trust money (a) ; and an executor, bound to accumulate, cannot account as if the money had been laid out in the funds, when it was not so laid out, or, being so, was sold out by him at an advance (b), an executor, acting with regard to the testator's property in any other manner than his trust requires, being answerable for any gain and liable for any loss (c). But, where a victualler directed his trade to be carried on by his executors, a brewer and a spirit merchant. {t) Blogg V. Johnson, L. R. 2 Ch. partner was admitted into the firm, 225. not as executor, but still without (u) Bate V. Robins, 32 Beav. 73. any separation of the partnership {x) Orosskill v. Bovxr, 32 Beav. assets as they existed at the death 86. of the deceased, he was not held (j/) Ibid. accountable for the profits (Simpson (z) S'ugden y. Crossland, 3 Sm. v. Chapman, i De G. M. & G. & Giff. 192. 154). {a) Townund v. Tomncnd, 1 Gi6F. (b) Eaphacl v. Boehm, 11 Ves. 201 ; Robinson v: Robinson, 16 Jur. 108. 255 ; and see ante, p. 204. But, (c) Piety v. Stace, i Ves. 622. where an executor of a deceased ACCOUNTS. 231 who had Leen in the habit of serving him in his lifetime, and supplies were furnished by them for that purpose, the Court would not declare that the executors were entitled to receive the cost price only for the supplies, but directed an inquiry whether the supplies were proper, and furnished at the ordinary market price.((i). Where a trustee aban- doned his office for valuable consideration, the considera- tion was treated as part of the assets (e) ; and, where executors would not prove, nor suffer the cestui que trust to take out administration till he had promised to pay money to them, they had to account for the sums re- ceived (/). There may be cases, said Lord HardwickO) where the Court would establish agreements with a cestui que trust for an extraordinary allowance ; but at the same time it would be extremely cautious and wary in doing it, looking in general upon trusts as honorary, and a burden upon the honour and conscience of the person intrusted, and not undertaken upon mercenary views (g). Consistent with these doctrines is the rule that an Executor or executor acting as solicitor can only charge against the ^tTng'^'^s^oU- estate his costs, charges, and expenses out of pocket (A). '='''<"'' There is no distinction, where the business is transacted by a firm of solicitors, in which the executor is a partner (i), and the business is actually done by the other partners (Ic) ; (d) Smith V. Zangford, 2 Beav. (A) Moore v. Frowd, 3 M. & Or. 362. 45 ; Cradock v. Piper, 1 Mac. & G. (e) Sugden v. Crossland, 3 Sm. & 664. An executor, who conducted G. 192. But there are cases on re- suits as solicitor for legatees under cord, in which a trustee has paid the will of his testator, has been money to induce other people to disallowed his costs in the first in- act with him in the execution of a stance, where it appeared that he trust, and in which he has been conducted them in a negligent and allowed the money so paid (pw tardy manner ( Willson v. Carmi- Stuart, V.-C, ibid. 193). chael, 2 Dow & C. 51). (/) Ayliffe v. Murray, 2 Atk. (i) Collins v. Carey, 2 Beav. 128. 58. (k) Christophers v. White, 10 {g) Ibid. 59, 60. Beav. 523. 232 EXECUTORS AND ADMINISTRATORS and the rule applies to any trustee, though there be no express trust (I). Howevei", the rule is not so inflexible but that compensation may in special cases be made to the solicitor under the authority of the Court by a fixed allowance (m) ; and an executor who acts as solicitor in a cause to which he is a party in his representative character, though he is only allowed personally as against the estate such costs as he actually pays, is yet entitled to be allowed as against the estate that proportion of the whole costs which his town agent in the cause is entitled to receive {n). It has been further laid down in the case of CradocJc v. Piper (o) that the rule does not extend to the case of a solicitor acting in an action for a body of trustees, of whom he is one, except so far as, if at all, any extra costs are incurred on his individual account ; but this decision applies only to costs of action, and not to the costs of administering the estate out of Court, in regard to which the strict rule prevails {p). Of course, a solicitor-executor is entitled to make the usual charges where expressly authorised by the tes- tator {q) ; but a direction that the trust monies should be applied {inter alia) in payment of all expenses, disburse- ments, and charges, to be incurred, sustained, or borne, by th e executor in professional business, j ourneys, or otherwise, and that he might retain all reasonable costs, charges, and expenses, which he might sustain or be put to, such costs, charges, and expenses to be reckoned and paid as between solicitor and client, was held an insufficient authorisa- {l) Pollard V. Doyle, 1 Dr. & G. M. & G. 160. Sm. 319. (?) Pel' Lord Langdale, Christo- (m) BainhriggcY. Blair, 8 Beav. phe7-sy. White, lOBeav. 524. Com- 588. Compare Marshall v. IIol- pare Willis v. Kebble, 1 Beav. 559. loway, 2 Sw. 432. As to a moderation of the amount (n) Burge v. Britton, 2 Ha. 373. charged otherwise than hy a regular (o) 1 Mao. & G. 664, 683. taxation, see Allen v. Jarvis, L. R. {p) Lincoln v. Windsor, 9 Ha. 4 Ch. 616, auApost, p. 234. 158 ; Broughton v. Brouglvton, 5 De ACCOUNTS. 233 tion (r). And, where the executor is at liberty to charge for his professional services, he is only entitled to charge for services strictly professional, and not for matters which an executor ought to have done without the intervention of a solicitor, such as attendances to pay premiums on policies, attending at the bank to make transfers, or atten- dances on proctors, auctioneers, legatees, and creditors (s). Again, executors are not entitled to an allowance for business carrying on their testator's business (t), nor to commission atrent" ' for acting as agents {u) or auctioneers (x) to his estate or auctioneer, after his death. On the same principle, executors are not allowed com- Collection of mission on collection of rents (y), but they have been allowed to charge for a salaried collector of them, though they themselves had (small) annuities from the testator for their trouble (0). So, though they will not be allowed to charge for the employment of an agent, except under very special circumstances (a), they have been held justi- fied in paying one to get in the testator's book-debts, where they were very numerous (nearly 400) (6). And The case of the strictness of the Court is relaxed in the case of Indian assets. An executor in India is entitled here, out of deference to the practice of the Indian Courts (c), to a commission of 5 per cent, on all assets of a testator collected by him there, including the assets which he (r) Moore v. Frowd, 3 M. & Cr. 45. (a) Kirhnan v. Booth, 11 Beav. {s) Sarlin v. Darhy (No. 1), 273. Compare JfaWAisore v. CTorfe, 28 Beav. 325. 3 Dr. 3. (i) Burden v. Burden, 1 V. & B. (y) Nicholson v. Tuttin (No. 2), 170 ; Stoclcm v. Dawson, 6 Beav. 3 K. & J. 159. 371 ; compare Forster v. Sidley, 4 («) Wilkinson v. Wilkinson, 2 S. De G. J. & S. 452. & S. 237. (m) Sheriff v. Axe, 4 Riiss. 33 ; (a) Weiss v. Dill, 3 M. & K. 26. ffovey V. Blakeman, i Ves. 596. (6) HopUnson v. Roe, 1 Beav. But it is in the discretion of the 180. Court to appoint executors con- (c) The allowance is put upon signees with the usual profits (Mori- another ground in Denton v. Davy, son v. Morison, 4 M. & Cr. 216). 1 Moo. P. C. 40 ; sed qucere. 234 executors' and administrators' retains in respect of a legacy to himself not given to him in the character of executor, and including monies be- longing to the testator which were in the hands of a com- mercial house, in which the executor was, and the testator had been, a partner (d). But, if by any means money, which has not been received by the executors upon the spot, and remitted by them from the spot to this country, is remitted to this country, I apprehend it to be the clear settled law of the Court, said Shadwell, V.-C, that the commission should not be allowed (e). If, therefore, the executor collects part of the assets in India, and then comes home, and has the remainder remitted to him by his agent, he is entitled to commission on that part only which he collected in India (/). But he is not entitled to the commission, if he have a legacy for his trouble ; nor, after a series of years, can he renounce his legacy, and charge commission (g). Management of A man is not bound to be his own bailiff, and trustees estate. have been allowed to charge for one, where there was an estate to be managed, which they did not manage per- sonally Qi). Enipioyraent An executor has been allowed the expense of employing an accountant, from the nature of the accounts (i). Boiidtor.^ ° He will also be allowed what he pays to a solicitor (being a stranger to the trust) for business done for him in the management of his testator's affairs (k), but not necessarily without question, and the amount of the bills, (d) Cocherell v. Barler, 2 Russ. Ml, 2 Y. & C. C. 607. 585 ; ChetlMm v. Lord Audley, i (g) Freeman v. Fairlie, 3 Mer. Ves. 72. See Matthews v. Bagshaio, 24. 14 Beav. 123. (A) Bmiithon v. Hockmore, 1 (e) Denton v. Davij, 1 Moo. P. C. Vern. 316. 40. See this case as to commission (i) Henderson v. M'lver, 3 Madd. ou assets in Jamaica. 275. (/) Campbell v. Campbell, 13 (k) MacnamaraY. Jones, 2I)iiiVi. Sim. 168. See Campbell v. Oamp- 587. ACCOUNTS. 235 without any regular taxation, may be moderated in chambers (Z) ; neither will the executor be allowed interest on the costs (m), though they have been paid out of his own monies (n) ; nor will he be allowed the charges of his solicitor for doing things which he ought strictly to have done himself (o), nor the costs of a suit prosecuted by a solicitor whom he in fact did not employ (p). Executors will be disallowed the costs of an action which Improper de- , , . , • , 1 / \ fence of action. they improperly resisted {q). They have been allowed, on transferring stock to a Brolcer's charge legatee (r), or into Court {rr), a stockbroker's charge oi xlln. ^° ' °^' tV P®'' cent, for identifying them at the bank They have Expenses in- , , , 1 . , , . curred under even been allowed expenses incurred under a misconcep- misconcep- tion (s). But, as against creditors, they cannot be allowed *'°°- disbursements in the schooling, feeding, or clothing of the feeding, cloth- deceased's children, subsequently to his decease {t). ™^' Generally, an executor making advances for maintenance Advances, beyond income in his hands is not entitled to interest, but he may be able to show that common justice requires the allowance of it (u). Where an executor from time to time advanced his own monies in excess of the assets in his hands, the Court allowed him simple interest at 4 per cent, on the balances due to him at the end of each year («). The Court, it was said, never allows an executor for Time and his time and trouble, especially where there is an express {I) Johiison V. Tdfm-d, 3 Russ. (r) Jones v. Powell, 6 Beav. 488. 477 ; and see Allen v. Jarvis, L. R. (r?-) Davenport v. Powell, 14 Sim. 4 Oh. 616. 275. (m) Gordon v. Trail, 8 Pr. 416, («) Burden v. Burden, 1 V. & B. («) Lewis v. Lewis, 13 Beav. 82. 170. Compare Kilbee v. Sneyd, infra. (t) Giles v. Dyson, 1 Stark. 32. (o) HarUn v. Darhy (No. 1), 28 {u) Kilbee v. Sneyd, 2 Moll. 235. Beav. 325. See S. C. awte, p. 233. Compare Lewis v. Lev:is, supra. (p) Burge v. Brutton, 2 Ha. 373. (x) Finch v. PeseoU, L. R. 17 Eq. (q) Chambers v. Smith, 2 Coll. 554. As to retainer of advances, 742. See Smith v. Chambers, 2 see ante, pp. 162, 166. Phillips, 221. 236 executors' and administratoks' accounts, legacy for his pains ; neither will it alter the case, that he renounces, and yet is assisting the executorship, nor even though it appears that he has deserved more, and bene- fited the trust to the prejudice of his own affairs (y) ; but the rule is not so stringent, but that it may be relaxed, if peculiar circumstances be shown (z). (y) BoUnson v. Pett, 3 P. Wms. (z) See Forslcr v. Bidley, i De G. 2i9. J. & S. 452. DISPOSSESSION BY APPOINTMENT OP KECEIVER. 237 CHAPTER XXV. THE DISPOSSESSION OF EXECUTORS AND ADMINISTRATORS BY THE APPOINTMENT OF A RECEIVER. We proceed to inquire what are the circumstances in ■which the Court will dispossess an executor or adniinistra- tor, and give over the charge of his estate to a receiver, premising that, though in most of the cases now to be noticed executors are spoken of, the same conclusions will apply to administrators, except where, from the different conditions under which the latter functionaries are created, such conclusions are obviously inapplicable. It is for the testator, not the Court, to say in whom the Receiver not trust for administration of the effects shall be reposed, pointed, and, though a suit may be instituted by a party having an interest in the effects, it does not follow that the trust created by the testator is to be set aside. The adminis- tration is not upon slight grounds to be taken from an executor. But if a manifest abuse of the trust by wasting the property appears, can it be said that the Court is not to treat an executor as every other trustee (a) ? Yet an application for a receiver can only be justified by evidence of gross misconduct or personal disability on the part of the legal personal representative, or of the person having the power to deal with the estate (6). Lord Cottenham refused, as " quite a new thing," an application made on (a) Per Lord Erskine, Midleton (V) Pct' Stuart, V.-C, BrookerY. V. Dodswell, 13 Ves. 268. BrooTcer, 3 Sm. & G. 477. 238 DISPOSSESSION OF EXEOUTOES AND ADMINISTRATOKS Institution of suit for recalling pro- bate. Mean circum- stances, bank- ruptcy, mis- conduct, ■waste. the ground that, the dispositions contained in the will being illegal, the executor was a trustee for the next of kin, of whom the applicant was one (c). The institution of a suit for the purpose of recalling probate is not a ground upon which alone the Court will interfere to restrain an executor from receiving the assets. Where, however, he had agreed that the validity of the testamentary paper by which he was appointed should be tried in such suit, an order was made for an injunction and a receiver (d). The Court will not appoint a receiver against an execu- tor on the single ground that he is in mean circumstances, though if any misconduct, waste, or improper disposition of the assets were shown, the Court would instantly inter- fere (e). Still less will a receiver be appointed on the sole ground of an executor's poverty, when it was known to the testator at the time when he appointed him (/). The appointment has been made,, however, on affidavits of em- barrassed circumstances and of expressions showing an in- tention of misapplying the assets (g). It has frequently been made on the score of an executor's bankruptcy or insol- vency, as distinguished from mere poverty (h) ; but a dis- tinction has always been taken between cases where the testator has made his will knowing at the time the state of the executor's property, and those cases where an executor (c) Thornton v. Curling, 8 Sim. 313. (d) Watkins v. Srent, 1 M. & Cr. 97. The order for a, receiver, when made against executors, com- monly includes an injunction against their receiving or dealing with the assets. (c) Per Sir W. Grant, Atimi., 12 Ves. 4, 6. But see Havers v. Havers (Barnard. 23), in which a receiver was appointed against an administratrix, against whom appa- rently nothing but poverty was alleged ; it would seem, however, from Lord Hardwicke's remarks in that case, that the Court antici- pated a misapplication of the effects. (/) Howard v. Papera, 1 Madd. 142. (g) Oldfield v. Cobhett, 4 L. J. (N. S.) Ch. 271. (h) E.g., Langley v. Hawk, 5 Madd. 46 ; Utterson v. Mair, 2 Ves. jr. 95 ; Steeky. Cobliam, L. E. 1 Ch. 325. BY APPOINTMENT OF EEOEIVER, 239 has become bankrupt or insolvent after the date of the will, but in the lifetime of the testator, and the testator has not altered his will (i). Thus on the one hand it has been held that, if a testator, when he makes his will, is aware of the circumstances and position of his executors, the Court will not lightly interfere with their discretion, and, OQ the ground alone of their insolvency, take the pro- perty out of their hands (Jc) ; while on the other hand Sir J. Leach said he could not satisfactorily infer from a will, which was made long before a commission of bankruptcy issued, not being altered afterwards, that the testator had a deliberate intention to entrust the management of his estate to an insolvent executor (I). The circumstance, it was in one case held, that an administrator, an uncertifi- cated bankrupt, was not appointed to his office by the deceased, was not a sufficient reason to induce the Court to appoint a receiver before answer, where several of the parties interested declined to join in the application (m). It has been held that, where there are several trustees, Remmoiation the disclaimer of some of them is not alone a sufficient executors. ground for the appointment of a receiver, without the con- sent of the others (n) ; the testator, said Wigram, V.-C, must be presumed to know what the legal consequences of the death or disclaimer of some of the devisees would be (o). The same reasoning applies to the case of some of several executors renouncing probate. It is a good ground for the appointment of a receiver. Omission to that an executor has omitted to get in the estate, and, by not raising a sum by the will directed to be raised, deprived legatees of the maintenance or means of advance- (i) Per Sir 0. Pepys, Oldjkld v. (m) Smith v. Smith, 2 Y. & C. Poibett, 4 L. J. (N. S.) Cli. 272. Ex. 353. {k) Stainton v. Carron Co., 18 (n) Browelly. Reed, 1 Ha. 434. Beav. 146. But see Tait v. Jenkins, 1 Y. & {I) LangUij v. Hawk, 5 Madd. C. C. 492. 46. (o) Browell v. Becd, 485. Executrix whose hus- 240 DISPOSSESSION OF EXECUTORS AND ADMINISTRATOES ment thereby provided for them {p). So an appointment was made, where the executor allowed an-ears of rent to accrue (g). TstafeTvioience ^ receiver will of course be appointed if there has and drunken- been (r), or the Court sees reason to think there will ness, loss "^ ■, , ^ . ^■ ■ trust funds, be (s), misapplication and danger to the property ; and, semble, violent conduct and habitual drunkenness may be grounds for the appointment (t). An admitted loss of trust funds is primd Jacie evidence of a breach of duty sufficient to authorise the interference of the Court by the appointment of a receiver (u). Where a married woman, whose husband was of unsound band is of un- mind, was appointed executrix, the Court refused to re- sound mind, ; , . strain her from taking out probate, saying there was no case in which such an order had been made, but intimated that, if she should prove the will, it would restrain her from intermeddling (x). Absence out ■ Where a sole executor resides abroad, it is not necessary of the jurisdic- , , ,. . iii itt tion. that the apphcants tor a receiver should establish a case of misconduct ; the circumstance that the executor is not amenable to the j iirisdiction of the Court is sufficient (y). So, too, where the husband of the executrix was, for the same reason, not amenable to process {z). Case of ad- Jq the case of an administrator durante minore cetate, ministrator . ^ . t . durante minore with whose conduct the Court IS dissatisfied, an additional reason for the Court's interference is apparently to be (p) Richards v. Perkins, 3 Y. & («) Svans v. Coventry, 5 De G. C. Ex. 299. M. & G. 918. (q) Sargent v. Johnson, 1 Jur. (x) Tetts v. Palmer, 9 Jiir. N. S. N. S. 227 ; Hart v. TulJc, 6 Ha. 954. 611. (1/) Westly v. Westly, 2 Coo. C. (r) Midleton v. Dodswell, 13 Ves. C. 210 ; Smith v. Smith, 10 Ha. 266. App. 71 ; Dickins v. Hai-ris, 14 I-, {s) Havers v. Havers, Barnard. T. (N. S.) 98. 23- (») Taxjlor v. Allen, 2 Atk. (<) Everett v. Prythergh, 12 Sim. 213. BY APPOINTMENT OP RECEIVER. 241 founded in the interests of the infant, for whom the limited administrator is a trustee (a). Where a sole executor refuses to act after probate, a Refusal to 1 • J. 1 /i\ act after pro- receiver may be appointed (o). bate. The Court appointed a receiver against an official ad- Risk of foreign ministrator to the estate of one who had died domiciled in brought to Africa, the administrator having brought part of the assets p°sl*'"l' ^^mg ° ° ^ taken away over to England, and there being the danger of his taking again, them out again to Africa (c). On an application for a receiver, grounded on the case Complaint made of one of one of several executors, the consent of the other execu- only of several tors gives great strength to the application {d). A receiver was appointed at the instance of an executor Where there . IS no personal about to leave England, who had propounded the will, but representative not actually obtained probate (which, however, had been tuted™"^ ' decreed) before filing bis bill, the property being in the hands of his co-executrix, a married woman, who had opposed probate, and refused to render any account, her husband living apart from her in America (e). Indeed, a receiver may often with propriety be appointed in a case where there is no legal personal representative duly con- stituted. One was appointed where the administrator to an intestate w^as dead, and no administrator de bonis non had been appointed (/) ; and an action for a receiver lies against an executor before probate (g). A receiver may be appointed in an action for adniinis- Keoeiver ap- tration commenced by summons (/i) ; and a defect of action com- (a) See per Lord Hardwicke, 557 ; and see Taylor v. Allen, cited Havers v. Savers, Barnard. 23. ante, p. 240. (b) Palmer v. WrigM, 10 Beav. (/) Steer v. Steer, 13 W. E. 234. 225. (c) Hervey v. Fitzpatricl', Kay, {g) Overington v. Ward, 34 Beav. 421. 175. See ante, p. 128. {d) Per Lord Erskine, Midleton (h) Brooker v. Brooker, 3 Sm. & V. BoAswell, 13 Yes. 269. G. 477 ; Steel v! Cohham, L. E. 1 (c) Pemhorton v. McGill, 3 W. E, Ch, 325. 242 APPOINTMENT OF RECEIVEE. mencedby parties is not a sufficient reason why the Court should summons, and . where parties dechne to make the appointment (^). are defective. rj,-^^^ ^^^, ^-^^ ^^^^^^ g^^ ^^^^ n ^^^^ Judicature Act [k), Judicature Act. i i i • .1 each division of the Court has had given to it the widest possible power of appointing receivers. Executors and j^ jg ^ general rule that a person in the position of a administrators ° not usually ap- trustee will not be appointed receiver of his trust estate, ceivers. whether he is sole trustee or one of several ; the cestui que trust has a right to the exertion and management of the trustees and the receiver (l). But in one case an executor, who was also testamentary guardian, was so appointed by Wigram, V.-C. (m). (i) Steele v. Cobham, L. E. 1 Ch. (l) v. Jolland, 8 Ves. 72 ; 325. SiMonY. Jams, 15 "Ves. 587. (/c) 36 & 37 Vict. c. 66, s. 25, (in) Gardner v. Blarw, 1 Ha. sub-s. 8, Appendix, p. 319. For a 381. In tHs case the Court (accord- discussion of the powers of the ing to the report) only stated upon Court under this section, see Anglo- what grounds it did not make the Italian Bank v. Davies, L. R. 9 C. appointment. D. 275. PROTECTION AND INDEMNITY. 243 CHAPTER XXVI. THE PROTECTION AND INDEMNITY AFFORDED TO EXECU- TORS AND ADMINISTRATORS. A PERSONAL representative mny of course, when sued by pleading creditors, plead the Statutes of Limitation (a). But they LimUations do not begin to run in his favour until representation has against • n • 1 1 • creditors. been taken out, unless he has previously constituted him- self an executor de son tort (b), — a decision which is an authority to show that the statutes only run from the time that an executor has either acted or proved the will (c). So, if they have not begun to run during the lifetime of an intestate, they do not begin to run till letters of administration to his estate have been taken out {d). And the representation must be an English one (e). But time, which has once begun to run, is not stopped ; it is no answer to a plea of the Statutes that, after the course of action accrued, and after the Statutes had begun to run, the debtor within the time limited {a) A married woman administra- Eq. 545). trix can sufficiently plead the Sta- (6) Webster v. Webster, 10 Ves. tutes without her husband joining 93 ; Boatwrighty. Boatxoriglit, L. E. (Beeching v. Morpliew, 8 Ha. 129). 17 Eq. 71. That an executor de son That executors and administrators tort maj' be sued, see post, p. 265. need not plead the Statutes, see a«te, (c) Per Best, C. J., Douglas v. pp. 161, 167, 227. The analogy of Forrest, i Bing. 705. the Statutes cannot be set up by an (d) Per Lord Hatherley, Burdich executor in answer to a claim founded v. GarricJc, L. R. 5 Ch. 241. on a breach of trust by his testator (e) Douglas v. Forrest, 686. (Brittlebanlc v. Goodirin, L. E, 5 K 2 244 PROTECTION AND INDEMNITY died, and that, by reason of the litigation as to the right to probate, there was no executor properly consti- tuted until after the expiration of such time, and that the plaintiff sued the executor -within a reasonable time after probate granted (/). An action brought by a creditor on behalf of himself and the others will prevent the Statutes from running against any of the creditors who come in under the decree (g). Of course, where the per- son liable to pay and the person entitled to receive are the same, no question of limitation can arise (h). A limitation of twenty years is imposed upon actions to recover the personal estates of intestates (i) ; but this limitation, it has been said, applies to assets distributed by the administrator, not to assets retained by him, and is no bar to an action by an administrator de bonis non of an intestate against the personal representatives of the original administrator to recover assets which, by mistake, had been misappropriated by the original administrator more than twenty years before, where the persons entitled were sui juris at the time {Ic). What a suf- A mere acknowledgment of a debt by executors does ledgment to not, Said Abbot, C. J., take the case out of the Statutes ; omrtutes °"* ^* TDMBi be an express promise to pay {I) ; but it has been laid down more recently that, upon a general acknow- ledgment of a debt, where nothing is said to prevent it, a general promise to pay is implied (m). Anyway, the modern cases have settled that acknowledgments that debts are just, but couched in terms which prevent any promise to pay being inferred from them, are not effectual (/) IViodes V. Smoihurst, 4 M. & (i) 23 & 24 Vict., c. 38, s.l3. W. 42. See Scagrainv. Knit/hl, L. (k) Eeed v. Fenn, 35 L. J. Ch. R. 2 Ch. 633. 464. (g) Starndale v. Hanlcinson, 1 {I) TtiXlock v. Dunn, Ry. & Moo. Sim. 393. 416. (A) Bimu V. Nicholls, L. R. 2 (m) Fordham v. Wallis, 10 Ha, Eij. 256. • 217, OF EXECUTORS AKD ADMINISTRATORS. 245 against the provisions of the Statutes {n). An acknow- ledgment equivalent to a promise to pay, made by a party filling the tv?o characters of beneficial devisee and execu- tor, will be attributed to both characters, for the moral obligation does not attach more to one character than to the other. But it is otherwise, when the characters held by the party are entirely distinct, as where he is personally liable as debtor, and is answerable also in the character of executor or trustee of another, for he then represents two persons, and the question in such a case is by whom the promise is made, and not what is its extent or effect (o). A promise or payment by one of several executors is One executor „, . , . . , . , , cannot bind not suincient to bmd his co-executors {p}. co-executors in After a decree for administration the Court of Chancery ^ '^ "^ Stay of actions used to restrain creditors for proceeding at law agamst ty creditors, the executors or administrators {qj; and now they may obtain a stay of the creditors' actions (r). Where an executor or administrator shall have given Statutory ad- ., . , • T 1 r-i • 1 ■ • vertisements Similar notices to those given by the Court m an adminis- for creditorr. tratiou "action, for creditors and others to send in their claims against the estate, they shall, at the expiration of the time named in the notices, be at liberty to distribute the assets amongst the parties entitled, having regard to the claims of which they have then notice, and shall not be liable to any person of whose claim they shall not have had notice at the time of distribution for assets so distri- buted (s). The object of the section was this, — not merely to secure an indemnity to executors and administrators. (re) Per Turner, L. J., Briggs v. B., Schohy v. Waltoii, 12 M. & W. WiUm, 5 -Pe G. M. & G. 21, re- 514. See ante, p. 146. fen-ing particularly to M'Gtdlock v. (?) Drewry v. Thacker, 3 Sw. Dawes, 9 D. & E. 40. 544. (o) Fordham v. JVallis, 10 Ha. (r) 36 & 37 Vict., c. 66, s. 24, 217. sub. -sec. (5), Appendix, p. 319. (p) Per Abbott, C. J., TullocJcv. (s) 22 & 23 Vict. c. 35, s. 29, Dunn, Ry. & Moo. 416 ; per Parke, Appendix, p. 309. 246 PEOTEOTION AND INDEMNITY but for the benefit also of persons having claims against the estates of dead persons, by enabling the executor or ad- ministrator to administer the estate without the expense and delay of a Chancery action {t). The section is not confined to claims of creditors of the deceased, but applies also to persons claiming as next of kin ; it also affords protection to the sureties to an administrator's bond (u). But it does not indemnify an executor or administrator against a claim of which he has notice {x) Whether the notice has been properly advertised or not is a question of degree, and depends upon whether, under the circumstances of each particular case, reasonable oppor- tunity has been given (ij) ; but in this Court, said Lord Romilly, M. R., we never allow an estate to be distributed without notice having been inserted in the London Gazette, and generally we requii'e an advertisement to be inserted in the Times ; when an estate is administered of a testator in the country, the notice is also inserted in some newspaper having a circulation in the neighbour- hood (z). Three weeks is too short a time within which to require claims to be sent in (a), but two months have been held sufficient (6). An executor, who has distributed the assets after taking the steps pointed out by the Act, has the same protection as if he had administered the estate under a decree of the Court ; and, if he should have retained any legacies as trustee, after appropriating them for the benefit of the cestuis que trustent, he is no longer under any liability qua, executor (c). The statutoj-y indemnity clause has been already re- (t) Per Lindley, J., Newton v. 13 Eq. 436. See further, Newton Sherry, L. E. 1 C. P. D. 257. v. Sherry, vM supra. (u) Newton Y. Sherry, 246. (a) Per Komilly, M. E., IFoodv, (x) MarkweWs Ca. , W. N. Weightman, ubi supra. (1872), 210. (b) Newton v. Sherry, iiM supra. (y) Per Archibald, J., Newton Y. (c) Clcgg v. Rowland, L. E. 3Eq. Sherry, 257. 368. (s) Wood V. Weightman, L. R. OF EXECUTORS AND ADMINTSTEATOES. 247 ferred to (d). It must be borne in mind that it does not Usual in- ^ ' demnity exonerate from the consequences of a breach of trust or clause. connivance at a breach of trust (e). The protection afforded by statute on an assignment Assignment of leaseholds. of leaseholds has also been referred to (/). Since this statute executors and administrators of a lessee are not, in general, entitled to retain assets to indemnify them- selves against the liabilities under the lease (g). A like protection is afforded them on a conveyance on rent-charge or an agreement therefor (h). The person or persons having or taking the burden of '^^si^^V l*"ty any will or administration of personal estate may pay into Court (after deducting duty) any legacy or residue which he or they are unable to pay by reason of the infancy or absence beyond seas of any person entitled thereto (i). Since this Act the executor has nothing to do but under it to pay a legacy into Court, and then he has done, and the infant, when of age, may petition for it ; therefore, the costs of an action to secure the legacy will not be given out of the residue (k). An infant being entitled to a legacy of 500Z., the executors invested that sum, less duty, in Consols, and tendered the amount produced by sale of the stock and dividends to the infant upon her coming of age. A bill was filed against the executors by the lega- tee for the amount of the legacy, with 4 per cent, interest, and it was held that they ought to have paid the legacy into Court under this Act, and a decree was made for the plaintiff with costs (l). {d) 22 & 23 Vict, c. 35, s. 31, J. 121. Appendix, p. 310. See ante, p. (h) 22 & 23 Vict, c. 35, s. 28, 218. Appendix, p. 308. (c) Brumridge v. Brumridgc, 27 (i) 36 Geo. 3, c. 52, s. 32, Ap- Beav. 5. pendix, p. 283. (/) 22 & 23 Vict, c. 35, s. 27, {k) WJwphamy.Wingfield, 4 Yes. Appendix, p. 307. See ante, p. 189. 630. See Handley v. Davis, 28 L. {g) Bennett v. Lytton, 2 J. & H. J. Ch. 873. 155 ; Dodscni, v. Sammell, 1 Dr. & (l) BimeU v. Simpson, 18 L. J. Sm. 575 ; Be Green, 2 De 6. F. & Oh. 55. 248 PROTECTION AND INDEMNITY Trustee Relief Executors and administrators, or the major part of them, may pay trust monies or transfer stocks and secu- rities into Court, the receipt of the Bank cashier or the certificate of the proper officer being a sufficient dis- charge (m) : the Court may then apply the trust monies, and administer the trust {n). Further, the Court has power, upon the application of the majority of the execu- tors or administrators, to order the payment or transfer into Court (o). A surviving trustee may transfer into Court stock standing in the names of himself and deceased trustees (p). How far pay- A trustee is discharged as to the amount paid in {q), — Court 'a (lis- ■"°*' however, if it be the proceeds of stock which, without charge. any right to do so, he has sold {r). Again, where an executor retained a legacy in his own hands for twelve years without informing the legatee thereof, and, on the latter accidentally hearing of the bequest, invested it in stock, and paid it into Court, the Court, holding such con- duct to be a gross neglect of duty, refused to recognise the investment, and charged the executor with the balances in his hand as cash, with interest at 5 per cent- and annual rests (s). Executors aud Executors who have paid into Court may themselves should not, aa petition for distribution of the fund ; but if they do so a rule, apply -^yithout good cause, and without the consent of the bene- for distriDu- ° tion of the ficiaries, they will only be allowed respondents' costs {t). (m) 10 & 11 Vict., c. 96, s. 1, Thorp v. Thorp, 1 K. & J. 438. Appendix, p. 29,5. As to the juris- (r) Mikhell v. Colb, 17 L. T. 25. diction of the County Courts, see 28 (s) Alt. -Gen. v. Alford, 2 Sm. & & 29 Vict, c. 99, s. 1 ; 30 & 31 G. 488. Vict., c. 142, s. 24. {t) Be Casneau's Legacy, 2 K. & (m) Ibid., s, 2, Appendix, p. 296. J. 249. The consent of one beneti- (o) 12 & 13 Vict., u. 74, Appen- eiary is not enough, (re Eutchinson's dix, p. 297. Tntsts, 1 Dr. & Sm. 27). Where an (p) lie Parry, 6 Ha. 306. executor, thinking he had satisfied (q) Goode v. fFest, 9 Ha. 378 ; all the liabilities, paid what he sup- re Jcj)Jtson, 1 L. T. N. S. 5. See posed to be the balance into Court, OF EXECUTORS AND ADMINISTRATORS. 249 It is the duty of the executor, as soon as he pays the fund into Court, to give notice to the cestuis que trustent, or those whom he believes to be the cestuis que trustent, in order that those persons may be able to take steps to get the fund distributed ; he ought to abstain from applying to the Court himself, unless there be some special ground for his taking that function upon himself; prima facie it is not his function to apply to the Court (u). Any trustee, who entertains a reasonable doubt or difB- Costs under culty as to the title of the person who claims to be his cestui que trust, should, it !has been said, pay the funds into Court under the Act (x). Where, entertaining such a doubt, a trustee did not pay into Court, but by his con- duct caused the institution of a suit, he was allowed only the costs he was entitled to under the Act (xx). Where the trustees of a legacy given for the benefit of a lady for life, with limitations over, one of such trustees being also residuai-y legatee, refused to comply with the request of the tenant-for-life that they would pay the legacy into Court under the Act, although she offered to pay the costs, and she consequently instituted a suit, and obtained an order for payment of the fund into Court, the costs of the suit were directed to be paid out of residue (y). If an executor brings an action, when he ought to have availed himself of the Act, he will only be allowed such costs as he would have been entitled to tinder the Act (z). But a trustee is not in all cases justified in resorting thereto, and, where he does so without sujBficient reason, and afterwards discovered that oon- 29, siderable liabilities remained undis- (x) Gunnelly. JFhitear, L. R. 10 charged, the money was paid to Eq. 664. But see^c?- Jessell, M. R, , him on his undertaking properly to re Birkett, L. R. 9 C. D. 581. apply the same (Ex parte Tournay, {xx) Gunticll v. Whiiear. 3 De G. & Sm. 677). {y) EandUy v. Davis, 28 L. J. (m) Per Kindersley, V.-C, re Ch. 873. Eutchirison's Trusts, 1 Dr. & Sm. («) Wells v. Malbon, 31 Beav. 48. 250 PEOTECTION AND INDEMNITY Coneiirrence I case, Application for opinion, advice, or di- rection of Court. he will be made liable for the costs of a petition for getting the fund out of Court (a). Where he pays money in, and has incurred costs which he claims to deduct from the fund, but which are disputed, his proper course is to pay the whole fund into Court without deducting such costs, leaving the Court to decide the amount of costs to which he is entitled (&). Executors and administrators may concur in stating special cases under Sir G. Turner's Act (c), and will be effectually protected and indemnified by declarations made thereon (d). Executors and administrators may apply to the Court in a summary way for the opinion, advice, or direction of a judge on any question of management or administra- tion, and they will be indemnified thereby, if they have not been guilty of fraud or wilful concealment or misre- presentation in obtaining it (e) ; and, it would appear, the application may be made by one of several exe- cutors (/). The object of the enactment is to assist trustees in the execution'of their trusts as to little matters of discretion (g) ; a petition under the Act should relate only to the management and investment of trust pro- perty (h). Therefore the Court will not, upon such a peti- tion, construe an instrument, or make any order affecting the rights of parties to property (i) ; otherwise the effect (a) He Knight's Trusts, 27 Beav. 45. See further Lewin, p. 859. It would seem that at the Rolls an ex- ecutor, who pays a legacy into Court, will be left to take his costs out of the residue, and will not in any case have them out of the legacy (see re JBirkett, L. R. 9 C. D. 576). (6) Beaty v. Ourson, L. R. 7 Eq. 194. (c) 13 & 14 Vict., c. 35, s. 1. id) S. 15. (e) 22 & 23 Vict., c. 35, s. 30, Appendix, p. 309. The section is retrospective {re Simson's Trusts, 1 J. & H. 89). (/) See re Muggeridge's Trusts, Johns. 625. (g) Per Romilly, M. R., re Hooper, 30 Beav. 656. (A) Re Lorenis SettlemejU, 1 Dr. & Sm. 401. (i) Ibid. OF EXECUTORS AND ADMINISTRATORS. 251 would be that a deed or will involving tlie most difficult questions, and relating to property to an amount however large, might be construed, and most important rights of parties decided by a single judge, without any power of appeal whatever (k). Neither will the Court give an opinion upon matters of detail, which cannot be properly dealt with without the superintendence of the Court and the assistance of affidavits (l). Where an important and difficult question is involved, the proper course is to bring an action instead of presenting a petition under the Act (m). Where the application related to income, the costs were paid thereout (n). The Court will protect an executor in doing what it Doing what Court would would order (o). order. An action for administration is, in a sense, generally Judgment for beneficial for the executor, for he can get a complete tio™.™^ ^'^' exoneration in that way, and in no other (p). Where an estate is administered, and the residue paid over under an order of the Court, the executor, having fairly stated the facts, will be protected against all contingent or existing demands on the estate, and a creditor will not afterwards be permitted to sue him (q). Any executor, administrator, or trustee may obtain a decree against any one legatee, or next of kin, or cestui que trust, for the administration of the estate, or the execution of the trusts (r). It is established by all the cases, said Lord Eldon, that. Executors and if the cestui que trust joins with the trustees in that Avhich discharged as is abroach of trust, knowing the circumstances, such a *° ^'^V'?*'"^^^^^ ' ° 01 cestuis que (k) Per Kindersley, V.-C, Hid. Bowen, 5 Beav. 616. 404. iq) Dean v. Allen, 1 Beav, 1 ; {I) Re Barriiigton's Settleinent, 1 Walter v. Barrett, 24 Beav. 413 ; J. & H. 142. AMams v. Fericic, 26 Beav. 384 ; (m) Ee Machetes Will, Johus. 628. Bennett v. lytton, 2 J. & H. 155 ; («) MeSpiller, 2 L. T. N. S. 71. Smith v. Smith, 1 Dr. & Sm. 384. (o) Per Lord Eldon, Sowe v. (r) 15 & 16 Vict., o. 86, s. 42, Earl of Dartmouth, 7 Ves. 150, Appendix, p. 297. See ante, pp. (p) Per Lord Langdale, Hay v. 147, 220. 252 PROTECTION AND INDEMNITy trustemt con- curring in breach of trust. Eeqnisites of acquiescence. cestui que trust can never complain of such a breach of trust. I go further, and agree that either concurrence in the act, or acquiescence without original concurrence, will release the trustees (s). But that is only a general rule, and the Court must inquire into the circumstances which induced concurrence or acquiescence, recollecting in the conduct of that inquiry how important it is on the one hand to secure the property of the cestui que trust, and on the other not to deter men from undertaking trusts, from the performance of which they seldom obtain either satisfaction or gratitude {t). Acquiescence, then, is of no avail, if based upon ignor- ance of the cestui que trust's rights, which ought to have been explained to him by the executor (u). Indeed, acquiescence imports knowledge ; for I do not see, said Turner, L. J., how a man can be said to have acquiesced in what he did not know, and in cases of this sort I think that acquiescence imports full knowledge, for I take the rule to be quite settled that a cestui que trust cannot be bound by acquiescence, unless he has been fully informed of his rights and of all the material facts and circumstances of the case' (x) ; it must be shown that he was aware of the thing in which he acquiesced, and of the effect of such acquiescence (y). Semble, where a trust is definite and clear, a cestui que trust will not be held to have sanctioned a breach of trust merely on the ground that, while his interest was reversionary, he knew of the breach and did not interfere (z). (s) Per Lord Eldon, Walker v. Symonds, 3 Sw. 6i ; Griffitlis v. Pater, 25 Beav. 236. One whose suit is not barred by statute may be refused relief on the ground of ac- quiescence or other ecj^uitable ground (3 & 4 Wm. 4, c. 27, s. 27). (0 Ibid. (u) Burrows v. Wales, 5 De G. M. & G. 233. See further Viidcr- wood v. Stevens, 1 Mer. 712 ; Adams V. Clifton, 1 Russ. 297 ; Farraitt v. BUnehford, 11 "W. R. 178. (a) Life Association of Scotland V. Siddal, 3 De G. F. & J. 74. (y) Strange v. Fooks, i Giff. 408. (s) Life Association of Scotland V. Siddal, 3 De G. E. & J. 58. OF EXECUTOES AND ADMINISTRATOES. 253 The doctrine that, where there is an express trust, lapse Laches. of time is not material, does not apply in a case in which there has been gross laches on the part of a cestui que trust (a). It is the duty of trustees to see that their cestuis que Requisites of a trustent are properly advised as to their rights, and, where trustees, in order to support a release, rely on the ground that their cestuis que trustent were advised by an inde- pendent solicitor, it lies on them to show that the cestuis que trustent authorised an independent solicitor to act for them (6). Where a release, said Lord Redesdale, is made in entire ignorance of facts which the trustee had it in his power to make known to the cestui que trust, it is impossible to hold him to it ; that alone would be a suffi- cient ground for avoiding it (c). Another ground is that a release is wrung from the distress of the releasor, and extends beyond what was in the view of the parties (d). But if a man is fully informed, and with his eyes open, he may fairly release, and come to a new agreement, and bar himself of relief ; the material inquiry is whether this was done after full information, freely without compul- sion (e). In connection with this subject, it must be remembered As to assent of married womeu that infants (/), and, in general, married women (g), are and infants. (a) Bright v. Legerton, 2 De G. Chesterfield, v. Janssen, 2 Ves. F. & J. 606 ; and see Hodgson v. sr., 158. Bibhy, 30 Beav. 221 ; Sleeman v. (/) Per Sir J. Leach, Wilkin- Wilscm, L. R. 13 Eq. 36. The doc- souy. Farnj, i Russ. 276. A set- trine referred to has very recently tlement made with the sanction of been re-enacted (36 & 37 Vict. c. 66, the Court, on the marriage of an s. 25, sub-sect. 2, Appendix, p. 819). infant, of certain funds alleged to (6) Per Turner, L. J., Lloyd v. represent the infant's share under a Attwood, 3 De G. & J. 614. will does not operate as a confirma- (c) Bowles V. Stewart, 1 Sch. & tion of prior dealings by the trus- Lef. 226. tees of the will {Zambaco v. Cas- (d) Per Lord Redesdale, ibid. savetti, L. R. 11 Eq. 439). 227. {g) See Oresswell v. Dewcll, 4 GifF. (c) Per Lord Hardwicke, Earl of 460. 254 PEOTECTION AND INDEMNITY Indemnity by concurring cestui que trust. Eights of exe- cutors and ad- ministrators inter sc. incapable of assenting, and that protection in respect of infancy is continued after majority, until proper informa- tion has been obtained (h). However, a feme covert, acting with respect to her separate property, is competent to assent as if she were a feme sole (i), with the proviso that, if she be restrained from anticipation, her assent cannot operate except upon income already accrued (k). But a married woman, as well as an infant, may un- doubtedly commit, and will be responsible for the commis- sion of, a fraud, the disabilities of married women and infants not protecting them from the consequences of so doing (I) : infants have no privilege to cheat men (m), and coverture is no excuse for fraud, or that gross degree of negligence which the Court looks at as fraud with regard to the con- sequences attaching to it (n). A cestui que trust, who concurs with a trustee in a breach of trust, not only (as we have just seen) cannot complain of it, but his interest is liable to indemnify the trustee (o). A trustee may, for his own protection, proceed against a co-trustee to restrain him from committing a breach of trust, or to compel him to make good one already com- mitted (p). Where executors have been found jointly and severally liable for a breach of trust, and one of them has (h) Walker v. Syinonds, 3 Sw. 69 ; and see Wedderburn v. WccU deriurn, i M. & Cr. 41. (i) Per Lord Thurlow, Sulme v. Tenant, 2 Bro. C. C. 20 ; per Sir "W". Grant, Walker v. Shore, 19 Ves. 393. (k) See Roicley v. Unwin, 2 K. & J. 141 ; Taylor v. Oartvrright, L- R. 14 Eq. 167 ; Dickson v. Hook, 14 W. R. 552. See furtlier Dcrii- shire v. Holme, 3 De G. M. & G. 113. {I) Po- Romilly, M. E., Daricsv. Hodgson, 25 Beav. 187. Compare Sharpe v. Foy, L. R. 4 Ch. 35 ; re LusKs Trusts, ibid. 591 ; Arnold v. Woodharns, L. R. 16 Eq. 33. (ot) Per L. C. King, Hvroy v. Niclwlas, 2 Eq. Gas. Abr. 489. (n) Per Lord Eldon, Evans v. Bickncll, 6 Ves. 181. (o) Booth V. Booth, 1 Beav. 125. {p) See Earl Powlett v. Herbert, 1 Ves., jr., 297 ; Franco v. Franco, 3 Ves. 75 ; re Chertsey Market, 6 Pr. 279. OF EXECUTORS AND ADMINISTEATOES. 255 paid the whole amount, he may come against the others for contribution (q) ; and executors liable for the default of their co-executor, who had become bankrupt, have been held entitled, upon payment by them, to prove against the bankrupt's estate (r). (q) Fletcher v. Green, 33 Beav. (r) Lincoln v. Wright, i Beav. 430. 427. 256 CLOSE OF THE OFFICE CHAPTER XXVII. THE CLOSE OF THE OFFICE OF EXECUTOR OR ADMINISTRATOR. When execu- tors convert themselves into trustees. A. The Conversion of the Office into a Trusteeship. The executorial character, which begins at the death of the testator, may merge into the character of trustee, which begins at a later period, and, for the most part, when the executorial duties relative to the trust fund have ceased. This distinction is a very familiar one. For the most part, the executorial duties consist in ascer- taining the proper net amount of the various parts of the testator's property after payment of debts and expenses, and distributing them amongst the persons entitled ; these persons may be trustees, who hold it in trust for others, and they themselves may be, and frequently are, the trustees, who receive or retain as trustees the fund ascer- tained by themselves as executors (a). But, where the residue has not been ascertained, it appears impossible to fix on the executor the character of a trustee of a specified fund(6). And, where several shares of residue were blended together in his name, so that in effect there was no appro- («) Per Romilly, .M. R., Lord Brougham v. Lord W. Foulett, 19 Beav, 134. See Grignion v. Grig- idon, 1 Hagg. Eccl. 535, iu which Sir J. Nioholl held the curious opinion tliat one named executor and trustee may first drop the cha- racter of executor and he converted into a trustee, and then drop his trusteeship and be remitted to his office of executor. (6) Per cundcm, Davenport v. Stafford, 14 Beav. 331. OP EXECUTOR OR ADMINISTRATOR. 257 priation, although the executor might have intended it, Lord Langdale thought one could not see where executor- ship ceased and trusteeship began (c). But where an executor has severed a trust legacy from the general per- sonal estate, and appropriated it to the particular purpose pointed out by the will, it is impossible to conceive that, so acting, he is acting as an executor ; he has all the while been acting as a trustee (d). Where he has fully adminis- tered the estate, and retains the legacy in his hands, not as assets of the testator, but as trustee of the legacy, then he is no longer clothed with the character of executor, but is, as to the legacy, a mere trustee (e). And it would even seem that mere assent to a specific legacy (which does not, strictly speaking, admit of appropriation) constitutes him a trustee (/). Again, where, after payment of debts and legacies, he has purchased stock to answer an annuity, and paid the interest to the annuitant (g), or invested the residue upon the trusts of the will (h), he is ipso facto a trustee. From these cases it would seem that, as regards legacies, appropriation or no appropriation is an important (c) Willmott V. Jenkins, 1 Beav. t. Bradford, 6 Madd, 240 ; and see 401, 405. Westover v. Chapman, 1 Coll. 182. (d) Per lior A. Cottenham, Philippo (/) Dix t, Burford, 19 Beav. V. Munnings, 2 M. & Cr. 315 ; and 409. see Tyson v. Jadcson, 30 Beav. 386 ; {g) Ex parte Dover, 5 Sim. 500. Olegg v. Rowland, cited ante, p. 246. (A) Ex parte Wilkinson, 3 M. & The circumstance that a fund, in A. 145. An executor is regarded which a party takes a life interest in some sense as a trustee, hut he under a wiU, is transferred by the cannot, like a trustee, be discharged, executor to the trustees of that fund even by the Court, from his execu- appointed by the will is not neces- torship. However, when the funeral sarily and conclusively a severance and testamentary expenses, debts, of the fond from the bulk of the and legacies, have been satisfied, and estate, imless the executor has by the surplus has been invested upon such transfer done all that it is in- the trusts of the will, the executor cumbent on him to do in the admi- drops that character, and becomes nistration of the fund {Pennington a trustee in the proper sense, and V. Buckley, 6 Ha. 451). may then be discharged like any (e) Per Sir J. Leach, ByrchaU other trustee (Lewin, 575). 258 CLOSE OF THE OFFICE, Administrator never a trustee proper. test as to whether an executor has abandoned his executor- ship, and assumed the office of trustee. If A be named executor and trustee, and he renounces probate and disclaims the trust, and B takes out letters of administration with the will annexed, B, though he thus becomes the personal representative, is not also the trustee of the will, nor is he a trustee in any sense, except as holding the surplus assets after the ordinary administra- tion with notice of a trust. A proper trustee can only be appointed by the Court (i). On payment of pecuniary legacy. On winding up the estate. Administra- tors. Where the accounts are taken by the Court. B. The Might of Executors and Administrators to a Release. Executors cannot call on a pecuniary legatee to pay the costs of a release, a simple receipt being all they are en- titled to demand in such a case (k). But, where the executorship is being wovmd up, it is the practice to give executors a release. An executor has a right to be clearly discharged, and not to be left in a position in which he may be exposed to further litigation, because he fairly says, " unless you give me a discharge on the face of it protecting me, I cannot safely hand over the fund" (I). It is apprehended that the same reasoning applies to ad- ministrators. A release is unnecessary if the accounts have been taken by the Court (m) ; and in such a case executors would not be justified in demanding one. (i) Lewia, 188. (k) Re Fortune's Trusts, I. E. 4 Eq. 351, 356. (l) Per Kindersley, V.-C, King V. Mullins, 1 Dr. 311. Compare Chadwick v. Heathy, 2 Coll. 137, and see re Wright's Trusts, 3 K. & J. 421, and Warter v. Anderson, 11 Ha. 303. It would appear from the cases that the right of an exe- cutor to a release under seal is clearer than that of a trustee. {m) Ante, p. 251. EXECUTORS DE SON TORT. 259 CHAPTER XXVIII. EXECUTORS liB SON TORT, OR OF THEIR OWN WRONG. A. The Meaning of the Term. In the preceding chapters we have considered the various features and incidents of rightful executorship and administration. But there is also a tortious executorship, which demands attention, if the law of executors and ad- ministrators is not to be very inadequately treated. This concluding chapter, therefore, is devoted to a consideration of the position of executors de son tort. An executor de son tort, or of his own wrong, is one who Definition of ■ 1 i-iia^i- L T • I • i^'i executor of takes upon nim the omce ot an executor by mtrusion, not hjs own wrong. being so constituted by the testator or deceased, nor, for want of such constitution, substituted by the Court to administer {a). The term is used indifferently of those No administra- who so intrude themselves into the affairs whether of ™ smtm-t. testates or intestates. Indeed, there cannot be an adminis- trator de son tort: the law knows no such appellation (6). An executor acting before probate has been called an Misapplica- executor de son tort (c) ; but this must not be understood tem'executor as meaning that such a person is a wrong-doer (d). Indeed, ^^ *"" *'"^' the expression, used in such a connection, is altogether in- accurate. Such a one is not, nor was he ever, an executor (a) Went. 320. (d) See the judgments in Sykes (J) Godolph. pt. 2, 0. 8, s. 2. v. SyJces, L. E. 5 0. P. 113. See (o) See Webster v. Webster, 10 Ves. also, ante, p. 124. 93. s 2 260 EXECUTORS DE SON TORT. de son tort, for he derives an iuchoate right from the will (e). B. What will Constitute a Man Executor de son tort. Slight acts of It has been said to be clear from all the cases that the lIltGI'f 6F611C6 sufficient; slightest circumstance will make a man executor de son tort (/), as where a man received a debt due to the deceased, where a widow took more for paraphernalia than she was strictly entitled to, where one took posses- sion of the deceased's dog, or even milked his cows {g), or took possession of his bedstead or bible (Ji). but acts of. Yet some possession is colourable, and still none in law neSty^d™'^ to charge a man as executor, as expenses about the not charge one funeral, One made coadjutor or overseer, one who has as executor de son tort. letters ad coUigenda, or a man who is made executor by a will which is afterwards disproved by the proving of one later (i), provided (in the case last given) that the person acting under the earlier has not notice of the later will (k). Merely doing acts of necessity or humanity, as locking up the goods, or burying the corpse of the deceased, will not amount to such an intermeddling as to charge a man as executor of his own wrong (l). As to the funeral of the deceased, giving directions for it does not make a man executor of his own wrong (m), nor does the receipt of a debt due to the estate of the deceased for the purpose of paying for the funeral expenses, unless a man receive a (e) Per Alexander, C. B., Sogers he sold under the letters ad colli- V. Frank, 1 Y. & J. 414. genda, though they purported to (/) Per Buller, J., Padget v. authorise such sale (Anon., Dyer, Priest, 2 T. R. 100. 266 a) : sed qucere ; see Schwerdtfeger, {g) Stokes v. Porter, Dyer, 16fi l>, in the goods of, L. R. 1 P. Div. 424. 1&7 a ; Anon., and Oerret v. Oar- {k) See Woolley t. Glark, 5 B. & penter, cited ibid., n. Al. 744. (h) BobMns's case, Noy, 69. (l) 2 Bl. Comm. 607. See Kirk (i) Stokes V. Porter, ubi supra. v. Gregory, L. R. 1 Ex. D. 55. But a man, it was said, would be (to) Harrison v. Mowley, 4 Ves. charged as executor de son tort, if 216, EXECUTORS DE SON SORT. 261 greater sum than is reasonable for that purpose, regard being had to the estate and condition of the de- ceased {n). It has not always been clear what amount or kind of What amount or kind of pos- possession is requisite to charge a man as executor de son session is re- tort. The cases cited above from Dyer go a long way ; and cj^^rge as of the same character is Read's case (o), where it is laid executor desoti ^ ' tort. down broadly that the using of the goods of a deceased by any one, or the taking of them into his possession, is a good administration to charge him as executor de son tort. On the other hand, it was denied by Vaughan, B., that the bare possession of goods would make a man executor of his own wrong, unless he undertook to do some acts which none but an executor could lawfully do (p) ; and a distinc- tion may be taken between goods which are in a man's possession at the death of the deceased, and goods which he subsequently takes into his possession (q). Again, if a person in possession of the goods of a deceased makes out a priTnd facie legal title thereto, though he may not be able to complete his title, he is not to be charged as executor de son tort (r). Sir Thomas Plumer, M. E., has said : " Were the mere possession of assets to constitute a TomZin v. Beck man executor de son tort, there might be at one and the same time both a rightful executor and an executor de son tort; the former deriving his title from the will which he had proved, and the latter clothed with his character of executor by virtue of his having part of the assets in his hands ; and if portions of the effects of the deceased could be traced into the possession of twenty or more persons. (n) Camden v. FUtclier, 4 M. & post, p. 262. W. 378. {q) See per curiam, Parsons v. (o) 5 Co. S3 b. See further Ed- Maijesden, Ireem. K. B. 151. wards v. Harlen, 2 T. R. 597. (r) Per Lord Kenyon, Femings v. ip) Garter v. Dee, Freem. K. B. Jarrat, 1 Esp. 336. 13. See Peters v. Leeder, cited 262 EXECUTORS DE SON TORT. Peters t. Leeder. Possession under foreign authority. each of them would upon that priuciple be an executor de son tort " (s). This certainly seems a reductio ad ab- surdum of the older doctrine, the stringency of which must be taken to have been modified by the later case- law. The most recent, and the most luminous, judgment on this question is to be found in Peters v. Leeder, where Lush, J., says : This definition (i.e., Wentworth's definition of an executor de son tort (t) ) implies a wrong- ful intermeddling with the assets, a dealing with them in such a way as denotes an usurpation of the functions of an executor, an assumption of authority which none but an executor or administrator can lawfully exercise. It is obvious that it is not every intermeddling with the goods of the deceased which is wrongful. Acts which are not destructive of the property, and which do not other- wise amount to a conversion of goods, are wrongful or not according to the intent. Milking the cows, feeding the horses, locking up the goods, doing repairs, and such like acts, if done as an assertion of dominion and act of owner- ship, would be wrongful, — if an act of necessity, or an office of kindness and charity, would be meritorious. So the removing and holding possession of the goods, if done for the purpose of keeping them in safe custody till a lawful representative should appear, is rightful, — if for the purpose of making away with them, is wrongful (u). Perhaps, how- ever, if a man had in his possession goods which he had obtained by fraud from the deceased in his lifetime, he would in any event be charged as an executor of his own wrong (x). Where A died in Belgium, and B took out administra- tion to him there, and possessed himself of his Belgian property, but did not take possession of his estate in Eng- (s) Tomlin v. Secic, 1 T. & E. 438. (i!) Ante, p. 259. (k) 47 L. J. Q. B. 573. (a) Sawes v. Loader, Yelv. 197. EXECUTORS DE SON TORT. 263 land, it was held that he was not an executor de, son tort, and could not be sued as such (y). Living in the house of a licensed victualler and carrying Carrying on on his trade was held sufficient intermeddling to make a trade. man executor de son tort (z) ; otherwise, where a shop- keeper's widow resided in his house, and kept open the shop (through which was the entrance to the house), but there was no proof of any articles being sold (a). If a party knowingly receives property from an executor ^'^^ "T^" de son tort, and deals with it as his own, he does not receives pro- (though rendering himself liable to be sued as holding arexeo™tor de trust moneys with a knowledge of the trust (6) ), become ^''eaif ^tMt thereby an executor de son tort (c). It was so held in the as Ms own, not j-'i (•• • 1 n/.pi an executor case ot a widow of an intestate possessing herself of a lease, de son tort ; part of his estate, without taking out administration, and handing it to another party, who kept it, and occupied the premises for the residue of the term (d). Perhaps, how- ** all events, ^ ' _ '■ not unless ever, if fraud were proved, different considerations would fraud be apply (dd). ^™^* ' By a statute of Elizabeth, any one who fraudulently Statute of procures administration to be granted to an adminis- trator, for the purpose of himself getting possession of the estate, is chargeable as an executor de son tort, but he ig to be allowed all such payments made by him as law- ful executors or administrators may or ought to make (e). The authorities are not agreed as to whether a tortious Semble, there cannot be at executor can co-exist with a lawful one. In a case before one and the _ referred to it was laid down that, where an executor proves ^^^® ™^ ^ (y) Beavan v. Lord Hastings, 2 (b) HUIy. Curtis, L. R. 1 Eq. 90. K. & J. 724. (c) Faull v. iSimpson, 9 Q. B. (z) Hooper V. Summersett, 366 ; Hill v. Curtis, ubi supra. Wightw. 16. (d) Paull v. Simpson, ubi supra. {a) Serle v. Waterworth, 4 M. & (dd) See Hawes v. Loader, cited W. 9. As to an executor de son ante, p. 262. tort of a term, see Williams v. (e) 43 Eliz. u. 8, Appendix, Heales, L. R. 9 C. P. 177. p. 276. 264 EXECUTORS DE SON TOUT. tortio™'lxe- °^ administers, if another takes any of the goods and outor of the ^ggg and disposes of them as his own, that does not make same estate. '■ • i i • v him an executor de son tort ; but that, if he claims to be executor, pays debts or legacies, &c., and intermeddles as executor, he may be charged as executor de son tort, although there be another executor of right (/). But Sir Thomas Plumer, M.K,,, was of a contrary opinion : I apprehend, he said, that there cannot be an executor de son tort constituted by intermeddling with the assets of a testator, when there is a rightful executor acting in the administration of those assets. An executor de son tort can be only where no person is clothed with the character of rightful executor. If a stranger possesses himself of any part of the assets in the lifetime of the original executors, the only effect of his intermeddling is to create a privity between him and those who have a legal interest in the estate, and to make him responsible to them {g). Possession Even where the possibility of a co-existence of the two ity of rightful classes of executors has been assumed, it has nevertheless not™harge°one ^^^^ ^^^^ ^^^^ ^ ^^"^ '*^'^° possesses himself of the effects as executor of the deceased under the authority of, and as agent for, de aon tort / - „ at all events, the rightful executor cannot be charged as executor de life of "he per- ^O"*^ ^"ri, whether the will has been proved or not {h) ; and son giving the again — a strong case — a person who is permitted by an authority. ° . executor to possess himself of part of the assets of a tes- tator, and who, after the executor's death, and when there is no legal personal representative either of the testator or of the executor, retains the assets, and acts in the execution of the trusts of the will, is not executor de son toH to the original testator (i). But with the last case (/) Rcad^s case, 5 Co. 33 J). 119 ; Sykes v. Sylccs, L. E. 5 C. P. (!7) Tomlin v. BecTc, 1 T. & E. 113. Sea post, p. 268, n. (i). 438. {i) Tomlin v. Beck, uhi supra, (h) Bally. Eiliott, PeakeN. P. C. EXECUTORS DE SON TORT. 265 must be compared that of Cottle v. Aldrich (k), where it was held that, although a person cannot be charged as executor de son tort, while he acts under a power of attorney made to him by an executor who has proved the will, yet, if he continue to act after the death of such executor, he may be so charged, though he acts under the advice of another executor who has not proved (l). C. The Extent of the Liability of an Executor de son tort. Though an executor de son tort pay debts duly with Executor * all the assets that come to his hands, yet the rightful to^tfons by^ executor for administrator] shall maintain an action ^^s*' personal representative, against him, but he may give such payment in mitigation of damages ; yet the right of the action and the verdict shall go against him (m). So, he is liable to be sued by creditor, or a creditor (n), or legatee (o), of the deceased. ^^^ ^^ ' But there are the following exceptions to his liability, but, inab- He cannot, in the absence of the legal personal represen- personal reme- tative, be sued for the administration of the estate of the tentative, can- not be sued {k) 5 Man. & S. 175. of this case, nor was the point men- (I) The mere fact of probate or tioned : idea quaere, whether it non-probate should make no differ- must be understood as overruling ence. See SyTces v. Stfkes, L. R. 5 C. them. " See also Welchman v. P. 113, and ante, p. 264. Stwgis, 13 Q. B. S52, to which the (m) Per Holt, C.J., Anon,, 12 same observation applies. Mod. 441 ; Elworthy v. Swndford, (re) KeUe v. Osheston, Hob. 49. 3 H. & C. 330 ; Fyson v. Gharniiers, In such an action the executor de 9 M. & "W. 460. See Mountford v. son tort may plead plene adminia- Gibson, citedpost, pp. 269, 270. See travit (per Holt, CI., Whitehall v. also, as to the recouping in damages, Squire, Garth. 104; see Oxenham WoolUy V. Clark, 5 B. & Al. 744, v. Clapp, 2 B. & Ad. 309). A person but it is observed in Wms. Exors., who, being sued as executor, pleads p. 275, — "the authorities in favour ^Zeme admOTisirawi, does not thereby of the right of an executor de son admit that he is rightful executor tort to recoup in damages payments ( Yardley v. Arnold, Car. & M. made in a due course of administra- 434). tion were not cited in the argument (o) Roll. Abr. 919, Mxor. (F.) 1. 266 EXECUTOES DE SON TORT. for administra- deceased even though it be alleged by the plaintiff that tion or an ° a j r account. the defendant, being the person entitled to take out representation, refuses to apply for it, and impedes the plaintiff in procuring a grant to any other person {p), an executor de son tort being only treated as executor for the purpose of being charged, not for any other pur- pose {q). So he cannot be sued for an account, unless the legal personal representative, be before the Court (r), though he be himself the proper person to take out administration (s). When, however, it is said that such actions will not lie against an executor de son tort, ap- parently no more is meant than that, if the defendant can by any means bring the action to a hearing while the record is imperfect as regards parties, the plaintiff must fail ; for the plaintiff's action is good, if he can at the hearing produce the letters of administration, it being immaterial that the action was commenced before the grant {t). An executor de son tort is liable for the due payment of legacy (u) and succession (x) duties. An executor de son tort is not in any event liable for more than the assets which have come to his hands {y). Liability for duties. Liability limited to assets come to hand. {p) Penny v. Watts, 2 Phillips, 149 ; Bowsell v. Morris, L. E. 17 Eq. 20 (M. K.), dissenting from Mayner v. Kochler, L. E. 14 Eq. 262, and Coote v. Whittington, L. E. 16 Eq. 534 (Malins, V.-C); see Ambler v. lAndsay, L. R. 3 C. D. 198. {q) Per Lord Cottenham, Penny V. Watts, 152. (r) Hvmvphreys v. Humphreys, 3 P. Wms. 349 ; Beardmore y. Gregory, 2 H. & M. 496 ; Mawlings v. Lam- iert, 1 J. & H. 458 ; Oreasor v. Robinson, 14 Beav. 589. And see Cooke V. Oittings, 21 Beav. ,497. But it is sufficient if such repre- sentative be added by amendment {Beardmore v. Gregory). (s) Oreasor v. Robinson, vM {t) Homer v. Homer, 23 L. J. Ch. 10; Bateman v. Margerison, 6 Ha. 496. (m) 36 Geo. 3, c. 52, s. 6, Ap- pendix, p. 279. (K) 16 & 17 Vict. c. 51, ss. 1, 44. And see ante, p. 176. {y) Per Coke, C.J., Laury v. Aldred, 2 Brownl. & G. 185 ; Yard- ley V. Arnold, Car. & M. 434. EXECUTORS DE SON TORT. .267 An executor de son tort of a rightful executor is liable LiaHUty of , executor de in the same manner as the latter (z). son tort of Although one who has been named executor and has^J| ^^^° " intermeddled can be compelled to take probate (a), one Executor de who has intermeddled, but has not been named executor; ^° t bTco^m^' cannot be compelled to take a srrant of administration Ih) ; p^''^^ *? **J® '■ _ ° . out adnunistra- and the reason of the distinction has been said to be tion. obvious, viz., that the latter may be sued as executor de son tort, but ought not to be compelled to carry out a trust which was never reposed in him, and which parties interested can carry out themselves, whereas an executor by intermeddling has altered and perhaps prejudiced the estate (c). D. How an Executor de son tort may obtain his Discharge. Though one who, having intermeddled in the affairs of Accounting to a deceased, has money belonging to the deceased in his repres^ntetke hands at the time when an action is brought against him t^fore action ° ° brought IS a as executor for a debt due from the deceased, is liable as discharge : an executor de son tort; yet he will have avoided his liability, if, prior to action brought, he has paid over the money to the rightful administrator {d). This was the rule at law, and equity followed it ; therefore, it was held that, if an executor de son tort can prove a settled account with the rightful representative before action commenced, it is a sufficient answer to an action against him for an account (e). But he cannot discharge himself by delivering over the it is no dis- (2) Meyrick v. Anderson, 14 Q. bate, see Chap. XIX. B. 719. (d) Padget v. Priest, 2 T. R. 97. (a) Ante, p. 12. («) Sill v. Ourtis, L. R. 1 Eq. (J) Davis, in the goods of, 29 h. 90, in which Lsrd Cottenham'a J. P. & M. 72. dictum to the contrary in Oar- (c) Browne, 137. As to the michael v. Carmichael (2 Phillips, powers of an executor before pro- 101) was dissented from. 268 EXECUTORS DE SON TORT. oo^faiter"' Property of the deceased to the rightful representative action brought, after action commenced against him, though in fact no administration was granted till after the action was brought (/) ; so payments made by an executor de son tort pending an action for an account of an intestate's estate to a person who took out administration after the institution of the action, and was thereupon made a co- defendant, were not allowed {g). or to aocomt He must further take care, in order to obtain his dis- not in fact charge, that the person to whom he pays over the assets re^esentetfTe. ^® ^°^ ^^'^^ ^^^ ^^S^l personal representative. The widow (who, however, was not the legal personal representa- tive Qi) ) of a deceased employed A to collect some debts due to his estate, which A accordingly collected, and paid over to the widow, believing her to be the legal personal representative. The widow subsequently died, without having obtained administration, and it was held that A, having received moneys which he knew to be part of the estate of the deceased, and not having accounted for such moneys to the legal personal representative, was liable to be sued as executor de son tort (i). E. How far the Acts of an Executor de son tort are binding upon the Legal Personal Representative. Tte old rule in It was formerly laid down broadly that all lawful acts. Coulter's case ^^^-^ ^^ paying debts, &c., done by an executor d^ son tort were good, and altered the property against the lawful (/) Curtis V. Vernon, 3 T. K. tlie ■widow, inasmuch as the acts of 587, affirmed 2 H. Bl. 18 ; Sill v. both of them in reference to the Curtis, L. R. 1 Eq. 90. deceased's estate were the acts of (g) Layfield v. Layfield, 7 Sim. wrongdoers, and the law does not 172. recognise the relation of principal (h) See L. R. 5 C. P. 116, n (2). and agent as existing amongst such. (i) Sharland v. Mildon, 5 Ha. As to the liability of an agent of one 469. In this case the liability was who is actually the legal personal held not to be avoided by the sug- representative, see ante, p. 264. gestion that A acted as the agent of EXECUTORS DE SON TORT. 269 executor or administrator {h). So far as that propositioD made the validity as against the legal personal repre- sentative of the acts of an executor de son tort depend upon their lawfulness, it is good law at the present day ; for such acts are good against the true representative of the deceased where they are lawful, and such as the ■ true representative would be bound to perform in a due course of administration (J). But the proposition requires requires limi- limitation in another direction. In Mountford v. Gib- ^ ^™' , / \ T 1 -ni. Mountford v. son (m). Lord EUenborough said, after reviewing the Gibson. previous cases : — " When it is laid down generally that payments made [acts done] in a due course of adminis- tration by one who is executor de son tort are good, that must be understood of cases where such payments were made by one who is proved to have been acting at the time in the character of executor, and not a mere solitary act of wrong in the very instance complained of, by one taking upon himself to hand over the goods of the [de- ceased] to a creditor." .... In the contrary case, " the whole system of administration of a [deceased's] effects would be put an end to, and, instead thereof, an authorised scramble introduced by law among the creditors for priority of payment, where the assets were insufficient ; and such as had no chance of payment in the regular course of ad- ministration would by underhand means plant a beggar in the [deceased's] house, and, under colour of his being thus made an executor de son tort, would obtain a de- livery from him of the goods with which they had re- spectively furnished the [deceased]. It may be said that such a transaction might be impeached on the ground oi (k) Coulter's ca. , 5 Co. 30 6 ; Par- bind him when he has become right- ker T. Kett, 12 Mod. 471. ful oxeoutor {Hornby v. Glenn, 1 A. (Z) BuckUy V. Barber, 6 Ex. 164. & E. 49). An agreement by an executor de son (m) 4 East, 446. tort to surrender a lease does not 270 EXECUTORS DE SON TORT. fraud ; but, if a creditor could thus acquire a title to the [de- ceased's] property by the naked act of deliveiy to another, it would be very difficult in many cases to prove that such delivery had been made in collusion Tidth the creditor who received the goods {n) A difference may easily be conceived between an action by a creditor against one who has intermeddled, and whom he sues in the character of executor generally, which may estop the plaintiff from saying that the defendant is not lawful executor, and an action by the lawful administrator against such inter- meddler to disaffirm all his acts, and where the defendant is to justify or defend himself under the character of an executor de son tort. An act may well be sufficient to charge the party himself as executor de son tort, which would not be sufficient to justify a wrongdoer claiming title under it " (o). It was held accordingly in Mountford V. Gibson that a creditor of an intestate, who received .goods of the intestate after his death from his widow in payment of the debt, cannot protect his possession against an action of trover by the lawful administrator upon the ground of such delivery having been made by one who had by such intermeddling made himself executrix de son tort, no fact appearing to give colour to her having acted in that respect in the character of executrix except the single -act of WTong complained of, in which the defendant participated. In Thompson v. Harding (p) it was simi- larly held that acts sufficient to make an executor de son tort chargeable as such do not necessarily make the pay- ment good against the rightful executor ; but that, where the executor de son tort is really acting as executor, and the party with whom he deals has fair reason for sup- posing that he has authority to act as such, his acts shall bind the rightful executor and alter the property. (w) Per Lord Ellenborough, (o) Per eundem, ibid. Mountford v. Giison, i East, 446. {p) 2 E. & B. 630. EXECUTORS. Z>^ SON TORT. 271 F. The Personal Disadvantages of a Tortious Executorship. An executor of his own wrong shall not retain any part Executor de of the deceased's goods to satisfy his own debt, for from retain for Ma thence would ensue great inconvenience and confusion ; ® *' for every creditor (and chiefly when the goods of the de- ceased are not sufficient to satisfy all the creditors) would contend to make himself executor of his own wrong, to the intent to satisfy himself by retainer, by which others would be barred ; and it is not reasonable that one should take advantage of his own wrong (g). That the power of retainer, which is incident to a rightful (r), is wanting to even with con- i> 1 1 ■ ■ n 1- T 1 / \ • sent of right- a wrongtul, executorship, is very well established (s) ; in-fuirepresenta- deed, there is no such retainer, even with the assent of the '^^' rightful representative (t). However, an executor of his own wrong may retain, if he himself obtain administration, unless he him- though he obtain it pendente lite, for the administration ministration! ' purges the wrong which he did as executor de son tort (u) ; and it would seem that, by the statute 43 Eliz. c. 8 (x), an executor de son tort by gift, &c., of an administrator |*ft"te of 43 who bad administration by covin may retain (y). Generally, an executor de son tort is liable to all the General pro- position. (q) Coulter's ca., 5 Co., 30 a. Moore, 126). As to this doctrine (r) Ante, p. 163. of relation, see ante, p. 130. Never- (s) See further A lexa/nder v. Lome, theless, obtaining administration Yel7. 137 ; Frimce v. Bowson, 1 does not abate an action brought Mod. 208, 2 Mod. 51 ; WMpper's against a man as executor de son ca.. Dyer 2 a, in margin. tort; it may proceed against him (t) Curtis V. Vernon, 3 T. R. 587, for the goods he administered be- affirmed 2 H. Bl. 18. fore rightful administration com- (m) Williamsmi v. Norwitch, Sty. mitted to him ( Williamson v. Nor- 337; jfj/mfi V. Woolland, 2 Ventr. vntch, ubi supra; Zauryv. Aldred, 179. So, where an executor de son 2 Brownl. & G. 185). tort sold goods, and then obtained ad- (x) Appendix, p. 276. ministration, the sale was held good {y) Com. Dig. Admor. (C 3). by relation (Kenriek v. Surges, See 2 H. Bl 26, n. (S). 272 EXECUTORS DE SON TORT, trouble of an executorship without any of the profits or advantages {z) ; he has all the liabilities and none of the privileges that belong to the character of executor {a). (») 2 Bl. Comm. 507. not be pressed quite to their fullest (a) Per Lord Cottenham, Owr- extent ; two exceptions to the michael v. Carmichael, 2 Phillips, liabilities are noted, aide, p. 265. 101. These words, however, must 273 APPENDIX. PART I.— STATUTES. Note. — The foUoimng Statutes are arranged chronologically. The referen/xs in the inner margin are to the pages of the Text. 13 EDW. I. (Stat. Westm. Sec). 111. XXIII. Executors from lieiiceforth shall have a writ ot accompt, and the same action and process in the same writ as the testator might have had, if he had lived. 4 EDW. III. 112. VII. Item, ivhereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished ; it is enacted, that the executors in such cases shall have an action against the trespassers, and recover their damages in like manner as they, whose executors they be, would have had, if they were in life. 25 EDW. III., STAT. V. 1X1 V. Item, it is accorded and established, that executors of execu- 112. tors shall have actions of debts, accompts, and of goods carried away of the first testators, and execution of statutes merchant and recognisances made in court of record to the first testator, in the same manner as the first testator should have had, if he were in life J * * * and that the same executors of executors shall answer to other of as much as they have recovered of the goods of the first testator, as the iirst executors should do, if they were in full life. T 274 APPENDIX. 31 EDW. III., STAT. I. XI. Item, it is accorded and assented, that in case where a man 37, 40, dieth intestate the ordinaries shall dispute the next and most ?^' ^^' lawful friends of the dead person intestate to administer his goods ; jg^ ' which deputies shall have an action to demand and recover as executors the debts due to the said person intestate in the King's Court, for to administer and dispend for the soul of the dead ; and shall answer also in the King's Court to other to whom the said dead person was holden and bound, in the same manner as executors shall answer * * * 21 HEN. VIII., CHAP. IV. An Act concerning Executors of Last Wills and Testaments. I. * * * Where part of the executors named in any such testa- 143. ment of any such person so making or declaring any such will of any lands, tenements, and hereditaments to be sold by his execu- tors after the death of any such testator, do refuse to take upon him or them the administration and charge of the same testament and last will wherein they be so named executors, and the residue of the same executors do accept and take upon them the cure and charge of the same testament and last will, then aU bargains and sales of such lands, tenements, or other hereditaments so willed to be sold by the executors of any such testator by him or them only of the said executors that so doth accept any such cure or charge of administration of any such will or testament shall be as good and as effectual in the law as if all the residue of the same execu- tors, named in the same testament, so refusing the administration of the same testament, had joined with him or them in the making of the bargain and sale of such lands, tenements, or other here- ditaments so willed to be sold by their executors of any of such testator. 21 HEN. VIII., CHAP. V. An Act concerning fines and sums of money to be taken by the Minis- ters of Bishops and other Ordinaries of Holy Church for the Probate of Testament. III. In case any person die intestate, or that the executors „» in named in any such testaments refuse to prove the said testament, 42' 43 then the said Ordinary, or other person or persons having autho- ^^> ^^> 56, 62, APPENDIX. 38, 72, rity to take probate of testaments as is above said, shall grant tbe administration of the goods of the testator or person deceased to the widow or to the next of his kin or to both, as by the discretion of the same ordinary shall be thought good. * * * And in case where divers persons claim the administration as next of kin, which be equal in degree of kindred to the testator or person deceased, and where any person only desireth the administration as next of kin, where indeed divers persons be in equality of kindred as is aforesaid, then in every such case the Ordinary to be at Ms election and liberty to accept any one or more making request, where divers do require the administration ; or where but one, or more of them, and not all being in equality of degree, do make request, then the Ordinary to admit the widow and him or them only making request, or any one of them, at his pleasure * * * 275 32 HEN. VIII., CHAP. XXXVII. For recovery of Arrearages hy Executors and A dministrators. 116. I. * * * The executors and administrators of every such person or persons unto whom any such rent or fee farm is or shall be due and not paid at the time of his death shall and may have an action of debt for all such arrearages against the tenant or tenants that ought to have paid the said rent or fee farms so being behind in the life of their testator, or against the executors or administrators of the said tenants ; and also furthermore it shall be lawful to every such executor and administrator of any such person or persons, unto whom such rent or fee farm is or shaU be due and not paid at the time of his death as is aforesaid, to distrain for the arrearages of all such rents and fee farms upon the lands, tenements, and other hereditaments which were charged with the payment of such rents or fee farms, and chargeable to the distress of the said testator, so long as the said lands, tenements, and hereditaments continue, remain, and be in the seisin or pos- session of the said tenant, who ought immediately to have paid the said rent or fee farm so being behind to the testator in his life, or in the seisin or possession of any other person or persons claiming the said lands, tenements, and hereditaments only by and from the said tenant by purchase, gift, or descent ; in like manner and form as their said testator might or ought to have done in his lifetime. T 2 276 APPENDIX. 43 ELIZ., CHAP. ■VIII. An Act against fraudulent Administration of Intestates' Goods. Forasmuch as it is often out in ure, to the defrauding of creditors, 263, that such persons as are to have the administration of the goods ^'■'• of others dying intestate committed unto them, if they require it, will not accept the same, but suffer or procure the administration to be granted to some stranger of mean estate, and not of kin to the intestate, from whom themselves or others by their means do take deeds of gifts and authorities by letter of attorney, whereby they obtain the state of the intestate into their hands, and yet stand not subject to pay any debts owing by the same intestate, * * * ; be it enacted, &c., that every person and persons that hereafter shall obtain, receive, or have any goods or debts of any person dying intestate, or a release or other discharge of any debt or duty that belonged to the intestate, upon any fraud as is aforesaid, or without such valuable consideration as shall amount to the value of the same goods and debts or near thereabouts, except it be in or towards satisfaction of some just and principal debt of the vakie of the same goods or debts to him owing by the intestate at the time of his decease, shall be charged and charge- able as executor of his own wrong, and so far only as all such goods and debts, coming to his hands or whereof he is released or discharged by such administrator, will satisfy ; deducting never- theless to and for himself allowance of all just, due, and principal debt upon good consideration without fraud owing to him by the intestate at the time of his decease, and of all other payments made by him, which lawful executors or administrators may and ought to have and pay by the laws and statutes of this realm. 22 & 23 CAR II., CHAP. X. An Act for the better settling Intestates' Estates. How surplus- II. Provided always, and be it enacted by the authority afore- 180. age of estate of gj^^^ tjj^t all ordinaries, and every other person who by this Act fntestate^is to ^^ enabled to make distribution of the surplusage of the estate of be distributed, any person dying intestate, shall distribute the whole surplusage of such estate or estates in manner and form following ; that is to say, one third part of the said surplusage to the wife of the intestate, and all the residue by equal portions to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of the said children APPENDIX. be then dead, other than such child or children (not heing heir-at- law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made ; and in case any child other than the heir-at-law who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share which will be due to the other children by such dis- tribution as aforesaid, then so much of the surplusage of the estate of such intestate to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal as near as can be estimated ; but the heir at law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate. And in case there be no children, nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them : Provided that there be no representations admitted among collaterals after brothers and sisters' children ; and in case there be no wife, then all the said estate to be dis- tributed equally to and amongst the children ; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever. 277 29 CAR. II., CHAP. III. An Act for Prevention of Frauds and Perjuries. 198. IV. And be it further enacted by the authority aforesaid, that Promises and . , , ^ T . . agreements by from and after the said four and twentieth day ot June no action ^^^^^ shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt,, default, or miscarriages of another person, or to charge any person upon any agreement made upon considera- tion of marriage, or upon any contract or sale of lands, tenements S'T'S APPENDIX. or hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof ; imless the agreement upon which such action shall he brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. Husbands not XXV. And for the explaining one Act of this present Parlia- 37, "".T^d-^'^V" ™®^'^' "^*^*'*1'^'^ ^" Aot for the letter settling Intestates' Estates, 180. tion of the per- ^® ^* declared by the authority aforesaid, that neither the said sonal estates of Act nor anything therein contained shall be construed to extend 99^* 9?r^^' 9 *° *^® estates of feme coverts that shall die intestate, but that J, jQ ■ ' their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same, as they might have done before the making of the said Act. 30 CAE. IL, CHAP. VII. An Act to enable Greditors to recover tlieir Debts of the Executors and Administrators of Executors in their own wrong. * * * all and every the executors and administrators of 206. any person or persons who as executor or executors in his or their own wrong or administrators shall waste or convert any goods, chattels, estate, or assets of any person deceased to their own use, shall be liable and chargeable in the same manner as their testator or intestate would have been, if they had been Uving. 1 JAC. II., CHAP. XVII. An Act for reviving and continuance of several Acts of Parliament therein mentioned, VII. * * * If after the death of a father any of his children ig{)_ shall die intestate without wife or children in the lifetime of the mother, every brother and sister and the representatives of them shall have an equal share with her. APPENDIX. 4 & 5 W. & M., CHAP. XXIV. An Act for reviving, continuing, and explaining several Laws therein mentioned, which, are expired and near expiring. ""■ XII. * * * And forasmuch, as it hath beeu a doubt whether the said Act [30 Car. 2, c. 7] did extend to any executor or executors, administrator or administrators, of any executor or administrator of right, who, for want of priority in law, were not before answerable, nor could be sued for the debts due from or by the first testator or intestate, notwithstanding that such executors or administrators had wasted the goods and estate of the first . testator or intestate, or converted the same to his or their own use : for remedy whereof be it enacted * * * that all and every the executor and executors, administrator or administrators of such executor or administrator of right, who shall waste or con- vert to his own use goods, chattels, or estate of his testator or intestate, shall from henceforth be liable and chargeable in the same manner as his or their testator or intestate should or might have been, any law or usage to the contrary notwithstanding. 279 36 GEO. III., CHAP. LII. An Act for repealing certain Duties on Legacies and Shares of Personal Estates, and for granting other Duties thereon, in certain cases. [26th April, 1796.] 175, VI. And be it further enacted, that the duties hereby imposed Duties to be 266. shall, in all cases in which it is not hereby otherwise provided, be V^^ by exe- , » ■. T • T 1 ii cutors or ad- accounted for, answered, and paid, by the person or persons mjnistratoi-s having or taking the burthen of the execution of the will or other on retaining testamentary instrument, or the administration of the personal ™ P^J^S estate of any person deceased, upon retainer for his, her, or their own benefit, or for the benefit of any other person or persons, of any legacy, or any part of any legacy, or of the residue of any personal estate, or any part of such residue, which he, she, or they shall be entitled so to retain, either in his, her, or their own right, or in the right or for the benefit of any other person or persons ; and also upon delivery, payment, or other satisfaction or discharge whatsoever, of any legacy, or any part of any legacy, or of the residtie of any personal estate, or any part of such residue, to which any other person or persons shaU be entitled ; and in case If duty be not any person or persons having or taking the burthen of such exe- f^^^^^^ ^g oution or administration as aforesaid, shaU retain for his, her, or retained by 280 APPENDIX. executors, or discharged, they having deducted it, the amount to be a debt from them to his Majesty; and if they pay legacies with- out deducting the duty, it shall be a debt from both parties. If legatees re- fuse to accept legacies, duty deducted, the Court, in case of suit, may order them to pay costs ; their own benefit, or for the benefit of any other person or persons, any legacy, or any part of any legacy, or the residue of any per- sonal estate, or any part of such residue, which such person or persons shall be entitled so to retain either in his, her, or their own right, or in the right or for the benefit of any other person or persons, and upon which any duty shall be chargeable by virtue of this Act, not having first paid such duty, or shall deliver, pay, or otherwise howsoever satisfy or discharge any legacy, or any part of any legacy, or the residue of any personal estate, or any part thereof, to which any other person or persons shall be entitled, and upon which any duty shall be chargeable by virtue of this Act, having received or deducted the duty so chargeable, then and ]n every of such cases, the duty which shall be due and payable upon every such legacy, and part of legacy and residue, and part of residue respectively, and which shall not have been duly paid and satisfied to his Majesty, his heirs and successors, according to the provisions of this Act, shall be a debt of such person or per- sons having or taking the burthen of such execution or adminis- tration as aforesaid, to his Majesty, his heirs and successors ; and in case any such person or persons so having or taking the burthen of such execution or administration as aforesaid, shall deliver, pay, or otherwise howsoever satisfy or discharge any such legacy or residue, or any part of any such legacy or residue, to or for the benefit of any person or persons entitled thereto, without having received or deducted' the duty chargeable thereon (such duty not having been first duly paid to his Majesty, his heirs or successors, according to the provisions herein contained), then and in every such case such duty shall be a debt to his Majesty, his heirs and successors, both of the person or persons who shall make such delivery, payment, satisfaction, or discharge, and of the person or persons to whom the same shall be made. XXIV. And be it further enacted, that if any person or persons 175. having or taking the burthen of the execution of the will or other testamentary instrument, or the administration of the personal estate of any person deceased, or any other person or persons hereby made chargeable with duty, shall declare himself, herself, or themselves ready and willing, and shall accordingly offer to pay any pecuniary legacy, or residue or part of residvie, deducting the duty payable thereon, or shall in like manner offer to deliver or otherwise dispose of any specific legacy, or any specific pro- perty, part of any residue of any personal estate, to or for the benefit of the person or persons entitled thereto, or to any trustee or trustees for such person or persons, upon payment of the duty payable in respect thereof, and the person or persons entitled to such legacy, or residue or part of residue, or the trustee or trustees APPENDIX. 281 for such person or persons, shall refuse to accept such offer, and to give a proper release and discharge for such legacy or residue, or so much thereof as shall be offered to be paid, delivered, or otherwise disposed of as aforesaid, then, and in such case, although no actual tender shall be made, if any suit shall be afterwards insti- tuted for such legacy or effects, respecting which such offer shall have been made, it shall be lawful for the Court in which such suit shall be instituted to order all costs, charges, and expenses attending the same to be paid by the person or persons who shall have refused to accept such offer, and to give or join in such release or discharge, or to order such costs, charges, and expenses to be deducted and retained out of such legacy or effects, together with the duty payable thereon, as the said Court shall see fit; and in and in snita case any smt shall be instituted for payment of any legacy, or '^''^/^ ™® ... . , -,1 party sued may residue or part of residue, ot any personal estate, and the person -(vish to stop or persons sued for the same shall be desirous of staying proceed- proceedings on ings in such suit, on payment of the money due, or delivering or P^y^^nt ot be- otherwise disposing of the specific effects demanded, after deduct- jng ^uty the ing or receiving the duty payable thereon, it shall be lawful for Court may the Court in which such suit shall be instituted, if it shall see fit, 'S.^^". °^^^^ T • ■ 1 1 1 <■ therein, on application m a summary way, to make such order tor payment of such legacy, or residue or part of residue, or for delivering or otherwise disposing of such effects, and for payment of the duty payable thereon, and all such costs, charges, and expenses attending such suit, as shall be just. 176. XXVI. Provided always, and be it further enacted, that any Executors may person or persons having or taking the burthen of the execution discharge le- of any will or other testamentary instrument, or the administra- ^g^j. ^f ^^g tion of the personal estate of any person deceased, may from time duty accrued, to time pay, deliver, or otherwise dispose of any legacy, or any part of any legacy, or make distribution of any part of the residue of any personal estate, on payment from time to time of such proportions of the duty hereby imposed as shall accrue in respect of such part of such personal estate as shall be so administered. 175. XXVII. And be it further enacted, that no person or persons No legacy, having or taking the burthen of the execution of any will or testa- liable to duty, mentary instrument, or the administration of the personal estate ^jjjnut a re- of any person deceased, nor any trustee or trustees, or other per- ceipt contain- Bon or persons hereby directed and required to account for any i°g certain duty, shall, from and after the passing of this Act, pay, deliver, ^* ^™ * ' or otherwise dispose of, or in any manner satisfy, discharge, or compound for, any legacy whatsoever, or any part thereof, or the residue of any personal estate, or any part thereof, in respect whereof any duty is hereby imposed, without taking a receipt or discharge in writing for the same, expressing the date of such 282 APPENDIX. receipt or discliarge, and the names of tlie testator, testatrix, or intestate, under whose will or testamentary disposition, or upon whose intestacy the title to such legacy or part of legacy, or to such residue or part of residue, shall accrue, and of the person or persons to whom such receipt or discharge shall be given, and ot the person or persons to whom such legacy, or residue or part of residue, shall have been given, or shall have belonged ia conse- quence of intestacy, and the amount or value of the legacy or part of legacy, or residue or part of residue, for which such receipt or discharge shall be given, and also the amount and rate of the no receipt duty payable and allowed thereon ; and that no written receipt available unless or discharge for any legacy or part of any legacy, or for the resi- duly stamped, (^^g gf ^^y pergonal estate, or any part of such residue, in respect ' . whereof any duty is hereby imposed, shall be received in evidence, ■V. Borwell 10 °^ ^^ available in any manner whatever, unless the same shall be Sim. 380 ; E. stamped, as required by this Act ; and no evidence whatsover TJ'Vt^','^' shall be given of any payment, satisfaction, or discharge whatso- LKhfield, L. R. „ - •- - .^. „ , , 2 Ch ■> 55 1 ever, or oi any release or composition oi such legacy, or any part thereof, or of such residue, or any part thereof, without producing such receipt or discharge, duly stamped as aforesaid, unless the actual payment of the duty hereby imposed shall first be given in Copy of entry evidence : Provided always, that a copy of the entry, in the books of mraf t T °^ ^^ Commissioners of the Stamps of the payment of such duty duty, evidence, shall be admitted as evidence thereof : Provided also, that pay- Stamped re- ment of any annuity shall not be deemed a payment for which oeip s or g^gj^ stamped receipt shall be required, under the directions of required but this Act, except the several payments which shall complete the on completing payments for each of the ^irst four years during which such an- eaoh°of'the first '^^^^''^ shall be payable; and in like manner any payment in four years. respect of any legacy or bequest, hereby directed to be charged with the duty in the same manner as annuities are hereby made chargeable with duty, shall not be deemed a payment for which such stamped receipt shall be required, except the several pay- ments which shall complete the payments for each of the first four years, in respect of which such legacy or bequest shaU be chargeable with duty as an annuity. Penalty of lOZ. XXVIII. And be it further enacted, that any person having 175- per cent, for or taking the burthen of the execution of any wiU or testamentary cehrinfflee^'ies ™strument, or the administration of the personal estate of any without person deceased, and any trustee or trustees, or other person or stamped re- persons, hereby directed and required to account for any duty, ccip s. ^j^^ shall pay, deliver, or otherwise dispose of, or in any manner satisfy or discharge, or compound for any legacy given by such will or testamentary instrument, or the residue, or any part of the residue, of such personal estate, to or for the benefit of any APPENDIX. 283 person or persons entitled to such, legacy, or any part thereof, or to such, residue, or any part thereof, without taking such receipt or discharge in writing as aforesaid, and causing the same to be stamped within the time hereby allowed for stamping the same, shall forfeit and lose the sum of ten pounds per centum on the Slim of money, or the value of the property if not money, for which such receipt or discharge ought to have been given in pur- suance of this Act ; and all and every person and persons receiving or taking the benefit of any such money, or other property, with- out giving a written receipt or discharge for the same, in which the duty payable in respect thereof shall be expressed to have been allowed or paid to the person or persons to whom such re- ceipt or discharge shall be given, and which shall bear date on the day of signing the same, shall forfeit and lose the sum of ten pounds per centum on the sum of money, or on the value of the property, so received or taken. J77 XXXII. Provided always, and be it further enacted, that if by infancy 247. where, by reason of the infancy, or absence beyond the seas, of or absence le- any person entitled to any legacy, or to the residue of any per- g^ciea cannot sonal estate, or any part thereof, chargeable with duty by virtue money may be of this Act, the person or persons having or taking the burthen of paid into the any will or testamentary instrument, or the administration of ''^°^' ^?^ '^"^ such personal estate, cannot pay such legacy or some part thereof', per Cents, although he, she, or they may have eifects for that purpose, or cannot pay such residue, or some part thereof, although he, she, or they may have the same, or some part thereof, in his, her, or their hands, it shall be lawful for such person or persons to pay such legacy or residue, or any parts or part thereof respectively, or any sum or sums of money on account thereof^ after deducting the duty chargeable thereon, into the Bank of England, with the privity of the Accountant-General of the Court of Chancery, to be placed to the account of the person or persons for whose benefit the same shall be so paid ; for payment of which money the said Accountant-General shall give his certificate as usual in such cases, on production of the certificate of the Commissioners of Stainps that the duty thereon has been dvlj paid ; and such pay- ment into the bank shall be a sufiicient discharge for the money so paid in, provided the duty be also paid thereon as aforesaid ; and such money when paid in shall be laid out by the said Accountant- General, without any formal request for that purpose, in the purchase of three pounds per centum Consolidated Annuities, which, with the dividends thereon, shall be transferred and paid to the person or persons entitled thereto, or otherwise applied for his or their benefit, on application to the Court of Chancery, by petition or motion, in a summary way * * * 284 APPENDIX. Executors previous to retaining their legacies to transmit the particulars, with the duty offered, to the Commissioners of Stamps, who shall charge the same agreeable to this Act. Penalty for neglect of payment of duty for 14 days. XXXV. And be it further enacted, that whenever any person 175. or persons having or taking the burthen of the execution of any will or testamentary instrument, or the administration of any personal estate as aforesaid, shall be entitled to any legacy, or the residue or any part of the residue, of the personal estate of any testator, testatrix, or intestate, such person shall be chargeable with the duty whenever he, she, or they shall be entitled, in the due course of administration, to retain to his, her, or their own use any part of the said estate, in satisfaction of such legacy or residue, or any part thereof ; and every such person, before any such retainer, shall transmit to the said Commissioners of Stamp Duties, or their officers, a note containing the particulars of such legacy, residue or part of residue, intended to be retained, and the amount or vahie thereof, and the duty which such person or per- sons shall offer to pay thereon ; and the said Commissioners shall charge and assess the duty thereon, in such manner as the duty shall be chargeable thereon by virtue of the provisions in this Act contained, and such duty shall be paid accordingly ; and on payment of the said duty, the said Receiver-General of the said duty, or officer appointed to receive the same, shall, at the foot oi a duplicate of the said assessment, duly stamped in such manner as the said Commissioners shall direct for such purpose, give a receipt for such duty in such form of words as the said Commis- sioners shall 'direct, which receipt shall be a discharge for the duty expressed therein ; and in case any such person or persons shall neglect to pay such duty as aforesaid, ■within fourteen days after the same ought to have been paid as aforesaid, every such person and persons shall forfeit and pay treble the value of the duty which ought to have been paid. If, after a certain period, the executor to whom probate is granted, shall not reside within the ju- risdiction of his Majesty's Courts, on ap- plication of a creditor, &c., 38 GEO. III., CHAP. LXXXVII. An Act for the Administration of Assets in Cases where the Executor to whom Prolate has been granted is out of the Realm. [28th June, 1798.] * * * At the expiration of twelve calendar months from the ^2 death of any testator, if the executors or executor to whom pro- 220. bate of the will shall have been granted, are or is then residing oiit of the jurisdiction of his Majesty's courts of law and equity, it shall be lawful for the Ecclesiastical Court which hath granted probate of such will, upon the application of any creditor, next of kin, or legatee, grounded on the affidavit hereinafter mentioned, to grant such special adminislralion as hereinafter is also men- tioned * * * APPENDIX. 285 72. II. And be it further enacted, that the party applying to the special admi- Spiritual Court to grant such administration as aforesaid shall nistration may make an affidavit in the following words, or to the purport and * * * effect following : " I, A. B., do swear, that there is due and owing to me * * * The party ap- from the estate and effects of deceased, the sum of plying to make , and that C. D., the only executor capable of acting, -g^ayit and to whom probate hath been granted, hath departed this king- dom and is now out of the jurisdiction of his Majesty's courts of law and eq^uity, and that this deponent is desirous of exhibit- ing a bill in equity in his Majesty's Court of for the purpose of being paid his demand out of the assets of the said testator." 72. III. And be it further enacted, that the administration to be Administration granted pursuant to this Act shall be in the form hereinafter !" If gi'anted mentioned ; (that is to say) * * * " Whereas it hath been alleged form, by you the said That did, whilst living and of sound mind, memory, and understanding, make and duly execute his last will and testament in writing, and did therefore nominate, constitute, and appoint his executors, {or sole executor), who in the month of proved the said will by the authority of our said Court, and now reside (or resides) out of this kingdom, and out of the jurisdiction of his Majesty's courts of law and equity * * * And whereas the Surrogate aforesaid, having duly considered the premises, did, at the petition of the said decree letters of administration of all and singular the goods, chattels, and credits of the said deceased, to be committed and granted to you the said named by or on the behalf of the said a creditor (legatee) or (one of the next of kin) of the said deceased, (as the case may be), limited for the purpose to become and be made a party to a bill or bUls to be exhibited against you in any of his Majesty's courts of equity, and to carry the decree or decrees of any of the said Court or Courts into effect, but no further or otherwise, (justice so requiring) : And we being desirous that the said goods, chattels, and credits, may be well and faithfully administered, applied, and disposed of, according to law, do therefore, by these presents, grant full power and authority to you, in whose fidelity we confide, to administer and faithfully dispose of the said goods, chattels, and credits, according to the tenor and effect of the said will, limited as aforesaid, so far as such goods, chattels, and credits of the deceased will thereto extend, and the law requires * * *" 62. VI. And whereas inconveniences arise from granting probate to Where an in- infants under the age of twenty-one ; be it enacted, that where an **''' '^ ^"'^ , infant is sole executor, administration with the will annexed ministration 286 APPENDIX. to be gi-anted shall be granted to the guardian of auch infant, or to such other dlan ^&c^' person as the Spiritual Court shall think fit, until such infant shall have attained the full age of twenty-one years, at which period, and not before, probate of the will shall be granted to him. who shall have VII. And be it enacted, that the person to whom such admini- 6i. . the same power gtration shall be granted, shall have the same powers vested in him as where ad- ... , , , . ^ -, ■ . ministration ^^ ^^ administrator now hath by virtue of an administration is granted granted to him durante minore cetate of the next of kin. durante mirwre cetate of the next of kin. 55 GEO. III., CHAP. CLXXXIV. An Act for repealing the Stamp Duties on Deeds, Law Proceedings, and other written or printed instruments, and the duties on Fire Insurances, and on Legacies and Successions to Personal Estate wpon Intestacies, now payable in Great Britain ; amd for grant- ing other duties in lieu thereof. [11th July, 1815.] Penalty for XXXVII. And for better securing the duties on probates of 16,27. not proving -vyiUg and letters of administration, be it further enacted, that "Wills or tJliKlTlff letters of ad- from and after the 31st day of August, 1815, if any person shall ministration, take possession of, and in any manner administer, any part of the withm a.gi.ven pergonal estate and effects of any person deceased, without obtain- 10 per cent. ™g probate of the will or letters of administration of the estate on the duty, and effects of the deceased within six calendar months after his or her decease, or within two calendar months after the termination of any suit or dispute respecting the wiU or the right to letters of administration, if there shall be any such, which shall not be ended within four calendar months after the death of the deceased, every person so offending shall forfeit the sum of one hundred pounds, and also a further sum at and after the rate of ten pounds per centum on the amount of the stamp duty payable on the probate of the will or letters of administration of the estate and effects of the deceased. Provision for XL. And be it further enacted, that from and after the passing 101. the case of too gf this Act, where any person on applying for the probate of a dutv being caid ^^^^ or letters of administration shall have estimated the estate on probates, and effects of the deceased to be of greater value than the same *■<'• shall have afterwards proved to be, and shall in consequence have paid too high a stamp duty thereon, if such person shall produce the probate or letters of administration to the said Commissioners of Stamps within six calendar months after the true value of the estate and effects shall have been ascertained, and it shall be dis- covered that too high a duty was first paid on the probate or letters of administration, and shall deliver to them a particular APPENDIX. 287 inventory and account, and valuation of the estate and effects of the deceased, verified by an affidavit, or solemn affirmation in the case of Quakers ; and if it should thereupon satisfactorily appear to the said Commissioners that a greater stamp duty was paid on the probate or letters of administration than the law recLuired, it shall be lawful fox the said Commissioners to cancel and expunge the stamp on the probate or letters of administration, and to sub- stitute another stamp for denoting the duty which ought to have been paid thereon, and to make an allowance for the difference between them, as in the cases of spoiled stamps, or, if the difference be considerable, to repay the same in money, at the discretion of the said Commissioners. 101. XLI. And be it further enacted, that from and after the pass- Provision for ing of this Act, where any person, on applying for the probate of a tlie case of too will or letters of administration, shaU have estimated the estate i . ^ h^T^ and effects of the deceased to be of less value than the same shall paid on pro- have afterwards proved to be, and shall in consequence have paid bates, &c. too little stamp duty thereon, it shall be lawful for the said Com- missioners of Stamps, on delivery to them of an affidavit or solemn affirmation of the value of the estate and effects of the deceased, to cause the probate or letters of administration to be duly stamped on payment of the full duty which ought to have been originally paid thereon in respect of such value, and of the further sum or penalty payable by law for stamping deeds after the execution thereof, without any deduction or allowance of the stamp duty originally paid on such probate or letters of administration ; Pro- vided always, that if the application shall be made within six calendar months after the true value of the estate and effects shall be ascertained, and it shall be discovered that too little duty was at first paid on the probate or letters of administration, and if it shall appeal by affidavit or solemn affirmation to the satisfaction of the said Comm.issiouers that such duty was paid in consequence of any mistake or misapprehension, or if its not being known at the time that some particular part of the estate and effects belonged to the deceased, and without any intention of fraud, or to delay the payment of the fuU and proper duty, then it shall be lawful for the said Commissioners to remit the before-mentioned penalty, and to cause the probate or letters of administration to be duly stamped, on payment only of the sum which shall be wanting to make up the duty which ought to have been at first paid thereon. 101. XLII. Provided always, and be it further enacted, that in cases Administrator of letters of administration on which too little stamp duty shall to give the have been paid at first, the said Commissioners of Stamps shall not P™!?^'' security , , 1 , 1 ■ , r ■-, ■-, before admi- cause the same to be duly stamped in the manner aforesaid, until nistration is the administrator shall have given such security to the Eccle- duly stamped. 288 APPENDIX. siastical Court or Ordinary by whom tlie letters of administration shall have been granted as ought by law to have been given on the granting thereof, in case the full value of the estate and effects of the deceased had been then ascertained, and also that the said Commissioners of Stamps shall yearly or oftener transmit an account of the probates and letters of administration upon which the stamps shall have been rectified in pursuance of this Act to the several Ecclesiastical Courts by which the same shall have been granted, together with the value of the estate and effects of the deceased upon which such rectification shall have pro- ceeded. Penalty on XLIII. And be it further enacted, that where too little duty 101. executors, &o., ^]xail have been paid on any probate or letters of administration, not paying the . -V, . •^ J- . , . c -i. 1 full duty on ^^ consequence oi any mistake or misapprehension, or oi its not probates, &o., being known at the time that some particular part of the estate 'ft* ^7™ *''"® and effects belonged to the deceased, if any executor or admini- of toolittlepaid strator acting under such probate or letters of administration at first, lOQl. shall not, within six calendar months after the passing of this Act, ^ +h H^^*' "■'' ^^^^^ ^^^ discoverj' of the mistake or misapprehension, or of any wanting. estate or effects not known at the time to have belonged to the deceased, apply to the said Commissioners of Stamps, and pay what shall be wanting to make up the duty which ought to have been paid at first on such probate or letters of administration, he or she shall forfeit the sum of lOOZ., and also a further sum at and after the rate of 101. per centum on the amount of the sum want- ing to make up the proper duty. Commissioners XLV. And whereas it has happened in the case of letters of 101. of Stamps may administration on which the proper stamp duty hath not been 21V6 crGclit tor j. t/ the duty on pS'id ^* Gist, that certain debts, chattels real or other effects due or probates and belonging to the deceased have been found to be of such great letters of ad- value that the administrator hath not been possessed of money certain cases, sufficient, either of his own or of the deceased, to pay the requisite stamp duty, in order to render such letters of administration available for the recovery thereof by law ; And whereas the like may occur again, and it may also happen that executors or persons entitled to take out letters of administration may, before obtaining probate of the will or letters of administration of the estate and effects of the deceased, find some considerable part or parts of the estate and effects of the deceased so circumstanced as not to be immediately got possession of, and may not have money sufficient, either of their own or of the deceased, to pay the stamp duty on the probate or letters of administration which it shall be neces- sary to obtain ; Be it therefore further enacted. That from and after the passing of this Act it shall be lawful for the said Commis- sioners of Stamps, on satisfactory proof of the facts by affidavit or APPENDIX. 289 solemn affirmation in any such case as aforesaid which, may appear to them to require relief', to cause the probate or letters of admini- stration to be duly stamped for denoting the duty payable or which ought originally to have been paid thereon, and to give credit for the duty, either upon payment of the before-mentioned penalty, or without, in cases of probates or letters of administra- tion already obtained, and upon which too little duty shall have been paid, and either with or without allowance of the stamp duty already paid thereon, as the case may require, under the provisions of this Act ; provided in all such cases of credit that security be first given by the executors or administrators, together with two or more sufficient sureties to be approved of by the said Commis- sioners, by a bond to his Majesty, his heirs or successors, in double the amount of the duty, for the due and full payment of the sum for which credit shall be given, within six calendar months or any less period, and of the interest for the same at the rate of 101. per centum per annum from the expiration of such period until payment thereof in case of any default of payment at the time appointed ; and such probate or letters of administration, being duly stamped in the manner aforesaid, shall be as valid and avail- able as if the proper duty had been at first paid thereon and the same had been stamped accordingly. 101. XL VI. Provided always, and be it further enacted. That if at CommiBsiouers the expiration of the time to be allowed for the payment of the duty ™ay extend the , , .... ..1,1 1 credit, II neces- on such probate or letters of admmistration it shaU appear to the gary. satisfaction of the said Commissioners that the executor or admini- strator to whom such credit shall be given as aforesaid shall not have recovered effects of the deceased to an amount sufficient for the payment of the duty, it shall be lawful for the said commis- sioners to give such further time for the payment thereof, and upon such terms and conditions, as they shall think expedient. 101. XL VII. Provided also, and be it further enacted. That the pro- Probate or bate or letters of administration so to be stamped on credit as 'otters of ad- aforesaid shall be deposited with the said Commissioners of stamped on Stamps, and shall not be delivered up to the executor or adminis- credit to be trator unto, payment of the duty, together with such interest as deposited with aforesaid, if any shall become due ; but the same shall neverthe- gioners. less be produced in evidence by some officer of the Commissioners of Stamps, at the expense of the executor or administrator, as occasion shall require. 158. XL VIII. And be it further enacted, that the duty for which Duty for which credit shall be given as aforesaid shall be a debt to his Majesty, credit shall be ° , , „ J ./ J given to be a his heirs or successors, from the personal estate of the deceased, debt to the and shall be paid in preference to and before any other debt Crown, whatsoever due from the same estate ; and if any executor or u 290 APPENDIX. Provision for the case of letters of ad- ministration de bonis non taken out before payment of the duty for which credit shall be given. A return of duty 'on probates, &c. to be made in respect of debts if claimed in three years. administrator of the estate of the deceased shall pay any other debt in preference thereto, he or she shall not only be charged with and be liable to pay the duty out of his or her own estate, but shall also forfeit the sum of 5002. XLIX. And be it further enacted, That, if before payment of the 101. duty for which credit shall be given in any such case as aforesaid it shall become necessary to take out letters of administration de honis nmi of the deceased, it shall also be lawful for the said Com- missioners to cause such letters of administration de honis non to be duly stamped with the particular stamp provided to be used on letters of administration of that iind for denoting the payment of the duty in respect of the effects of the deceased on some prior probate or letters of administration of the same effects, in such and the same manner as if the duty had been actually paid, upon having the letters of administration de honis non deposited with the said Commissioners, and upon having such further security for the payment of the duty as they shall think expe- dient ; and such letters of administration shall be as valid and available as if the duty for which credit shall be given had been paid. LI. Provided always, and be it further enacted, That where it 101. shall be proved by oath or proper vouchers to the satisfaction of the said Commissioners of Stamps that an executor or adminis- trator hath paid debts due and owing from the deceased, and payable by law out of his or her personal or moveable estate, to such an amount as being, deducted from the amount or value of the estate and effects of the deceased for or in respect of which a probate or letters of administration, or a compensation of a testament, testamentary or dative, shall have been granted after the thiity-flrst day of August, one thousand eight hundred and fifteen, or which shall be included in any inventory exhibited and recorded in a Commissary Court in Scotland as the law requires after that day, shall reduce the same to a sum which, if it had been the whole gross amount or value of such estate and eifects, would have occasioned a less stamp duty to be paid on such probate or letters of administration, or confirmation or inventory, than shall have been actually paid thereon under and by virtue of this Act, it shall be lawful for the said Commis- sioners to return the difference, provided the same shall be claimed within three years after the date of such probate or letters of administration or confirmation, or the recording of such confirmation as aforesaid ; but where by reason of any proceeding at law or in equity the debts due from the deceased shall not have been ascertained and paid, or the effects of the deceased shall not have been recovered and made available, and in consequence APPENDIX. 291 thereof the executor or administrator shall be prevented from claiming such return of duty as aforesaid within the said term of three years, it shall be lawful for the Commissioners of the Treasury to allow such further time for making the claim as may appear to them to be reasonable under the circumstances of the 1 WILL. IV., CHAP. XL. An Act for making better Provision for the Disposal of the undis- posed of Residues of the Effects of Testators. [16th July, 1830.] 179 * * * Be it enacted * * * That when any person shall die, after After 1st Sept. the first day of September next after the passing of this Act, hav- 1830, execu- ing by his or her will, or any codicil or codicils thereto, appointed he'^trust^s for" any person or persons to be his or her executor or executors, such persons en- executor or executors shall be deemed by courts of equity to be a ti%d to any trustee or trustees for the person or persons (if any) who would ^^^ statute nf be entitled to the estate under the Statute of Distributions, in Distributions, respect of any residue not expressly disposed of, unless it shall ™less other- appear by the will, or any codicil thereto, the person or persons j, ^jjj so appointed executor or executors was or were intended to take such residue beneficially. 179. II. Provided also, and be it further enacted, that nothing here- Not to affect in contained shall affect or prekidice any right to which any "S™^ °\ ^''^" .,.,-,-, , Til, -, culors where executor, if this Act had not been passed, would have been en- there is not titled, in cases where there is not any person who would be any person entitled to the testator's estate under the Statute of Distributions, ^Jititled to in respect of any residue not expressly disposed of. III. Provided always, and be it further enacted, that nothing Not to extend herein contained shall extend to that part of the United Kingdom *° Scotland. called Scotland. 3 & 4 WILL. IV., CHAP. XLII. v An Act for the further Amendment of the Law, and the letter Advancement of Justice. [14th August, 1833.] 116. II. And whereas there is no remedy provided by law foi Executors may iniuries to the real estate of any person deceased, committed in 'r"°^ actions ,.„. . . 1 1 -, -, ■ tor injuries to his lifetime, nor tor certain wrongs done by a person deceased m the real estates his lifetime to another in respect of his property, real or personal ; of the de- fer remedy thereof be it enacted, That an action of trespass, or ' TJ 2 292 APPENDIX. and actions may be brought against execu- tors for an injui'y to pro- perty, real or personal, by their testator. Action of debt on simple contract. Executors of lessor may dis- train for arrears in his lifetime. Arrears may be distrained for within six months after determination of term. Not to extend to Ireland or Scotland. trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased for any injury to the real estate of such person, committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person ; and the damages, when recovered, shall be part of the personal estate of such person ; and further, that an action of 189. trespass, or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased for any wrong committed by him in his lifetime to another in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person ; and the damages to be recovered in such action shall be payable in like order of administration as the simple contract debts of such person. XIV. And be it further enacted, that an action of debt on 184. simple contract shaU be maintainable in any Court of common law against any executor or administrator. XXXVII. And be it further enacted, That it shaU be lawful 116. for the executors or administrators of any lessor or landlord to distrain upon the lands demised for any term, or at will, for the arrearages of rent due to such lessor or landlord in his lifetime, in like manner as such lessor or landlord might have done in his lifetime. XXXVIII. And be it further enacted. That such arrearages 116. may be distrained for after the end or determination of such term or lease, at will, in the same manner as if such term or lease had not been ended or determined ; provided that such distress be made within the space of six calendar months after the determi- nation of such term or lease, and during the continuance of the possession of the tenant from whom such arrears became due : Provided also, that all and every the powers and provisions in the several statutes made relating to distresses for rent shall be applicable to the distresses so made as aforesaid. XL V. And be it further enacted. That nothing in this Act shall extend to that part of the United Kingdom called Ireland, or that part of the United Kingdom called Scotland, except in the cases hereinbefore specially mentioned. APPENDIX. 293 4 & 5 "WILL. IV., CHAP. XXIX. An Act for facilitating the Loan of Money upon Landed Secv/rities in Ireland. [25th July, 1834.] 141. * * * Be it enacted * * * that from and after the passing of Power to lend this Act it shall be lawful for any person or persons who under or ™<"iey on real by virtue of any direction, trust, or power, already given, created, ij-elaud the or reserved, or hereafter to be given, created, or reserved as afore- same as in said is or are or shall be authorised or directed to lend money "fgland, &c. at interest on real securities in England, Wales, or Great Britain, to lend the same or any part thereof at interest on real securities in Ireland, in the same manner in all respects as if such investment had been expressly authorised in or by such direction, trust, or power as aforesaid ; and such person or persons shall not, on account of his or their so lending money on real secu- rities in Ireland, be considered in a Court of eq^uity guilty or any breach of trust, or held accountable further or otherwise than if the money had been laid out by hita or them on real securities in England, Wales, or Great Britain. 141. II. Provided always, and be it further enacted, that all loans of Proviso for money on real securities in Ireland under this Act in which f"^ ^nere any minor or unborn child or person of unsound mind is or may are interested, be interested shall be made by the direction and under the autho- rity of the Court of Chancery or Exchequer in England, such [See Ex parte direction or authority being obtained in any cause upon petition French, 7 Sim. 510.1 in a summary way. ■' 141. IV. Provided always, and be it enacted, that every such loan Consent of shall be made with the consent of the person or persons, if any, F^'^^Tfi?"}! whose consent may be required as to the investment of such j^^d. money upon real securities in England, Wales, or Great Britain, testified in the manner required by such direction, trust, or power. 141. V. Provided also, and be it enacted, that the provisions of T" '"hat cases this Act shall not apply to any case in which such direction, trust, ^ "S or power as aforesaid doth, or shall, or may contain any express restriction against the investment of such money as aforesaid on securities in Ireland. VI. Provided always, and be it further enacted, that nothing ■^<'* "o* *" contained in this Act shall relieve or be construed to relieve any sonslntras'ted person or persons intrusted or clothed with such direction, trust, witli trust or or power as aforesaid from any responsibility as to title, security po^er from or otherwise, either at law or in equity, save that {qii. of) having lent ^ ^ °^jjg^ '^^ 294 APPENDIX. and advanced suoli money as aforesaid on real securities in Ireland instead of having invested such, money on real securities in Eng- land, Wales, or Great Britain. Every will sball be in writing, and signed ty the testator in the presence of two witnesses at one time. Executor to be admitted a witness. Act not to extend to Scotland. 1 VICT., CHAP. XXVI. An Act for the Amendment of the Laws with respect to Wills. [3rd July, 1837.] IX. And be it further enacted, that no wiU shall be valid 2. unless it shall be in writing, and executed in manner hereinafter mentioned ; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person iu his presence and by his direction ; and such signature shall be made or ac- knowledged by the testator in the presence of two or more wit- nesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.- XVII. And be it further enacted, that no person shall, on 12, 28. account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof. XXXV. And be it further enacted, that this Act shall not extend to Scotland. An action to be maintain- able against any person caiising. death through neg- lect, &c., not- withstanding the death of the person injured. Action to be for the benefit of certain re- lations, and shall be 9 & 10 VICT., CHAP. XCIII. AnActfor compensating theFamilies of Persons killed hy Accidents. [26th August, 1846.] I. * * * Be it enacted * * * that whensoever the death of a 87, person shall be caused by wrongful act, neglect, or default, and the '■ • act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the. death of the person injured, and although the death shaU have been caused under such circumstances as amount in law to felony, II. And be it enacted, that every such action shall be for the benefit of the wife, husband, parent, and child of the person H^- ■whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person APPENDIX. 295 deceased ; and in every such, action tlie -jury may give sucli brought by damages as they may think proportioned to the injury resulting ^""^ m the from such death to the parties respectively for whom and for cutor or ad- whose benefit such action shall be brought ; and the amount so ministrator of recovered, after deducting the costs not recovered from the de- *''® '^^''^s.sed. fendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct. 114. III. Provided always, and be it enacted, that not more than Only one one action shall Ke for and in respect of the same subject-matter amotion shall of complaint ; and that every such action shall be commenced commenced within twelve calendar months after the death of such deceased within 12 person. months. 114. V. And be it enacted, that the following words and expressions Construction of are intended to have the meanings hereby assigned to them re- spectively, so far as such meanings are not excluded by the con- text or by the nature of the subject-matter ; that is to say, words denoting the singular number are to be understood to apply also to a plurality of persons or things ; and words denoting the mas- culine gender are to be tinderstood to apply also to persons of the feminine gender ; and the word "person" shall apply to bodies politic and corporate ; and the word " parent " shall include father and mother, and grandfather and grandmother, and step- father and stepmother ; and the word " child " shall include son and daughter, and grandson and granddaughter, and stepson and stepdaughter. VI. And be it enacted, that this Act shall come into operation •^''* *° *^'^^ from and immediately after the passing thereof, and that nothing passing and therein contained shall apply to that part of the United Kingdom not to apply to caUed Scotland. Scotland. 10 & 11 VICT., CHAP. XCVI. An Act for better securing Trust Funis, and, for the, Relief of Trustees. [22nd July, 1847.] 70, I. * * * Be it enacted * * * that all trustees, executors, ad- Trustees may 2^8. ministrators, or other persons, having in their hands any monies P^^ *™^* belonging to any trust whatsoever, or the major part of them, transfer stocks shall be at liberty, on filing an affidavit shortly describing the and securities instrument creating the trust, according to the best of their ^°*° *''® Court knowledge and belief, to pay the same, with the privity of the Accountant- General of the High Court of Chancery, into the Bank of England, to the account of such Accountant-Geueral in the matter of the particular trust (describing the same by the 296 APPENDIX. names of the parties, as accurately aa may be, for the purpose of distinguishing it), in trust to attend the orders of the said Court ; and that all trustees or other persons having any annuities or stocks standing in their name in the books of the Governor and Company of the Bank of England, or of the East India Company, or South Sea Company, or any government or parliamentary secu- rities standing in their names, or in the names of any deceased persons of whom they shall be personal representatives, upon any trusts whatsoever, or the major part of them, shall be at liberty to transfer or deposit such stocks or securities into or in the name of the said Aocountant-General, with his privity, in the matter of the particular trust (describing the same as aforesaid), in trust to Receipt o£ bank attend the orders of the said Court ; and in every such case the cashier, or cer- jgggjpt of oug of the cashiers of the said Bank for the money so tifioate of pro- . , . , , „ , ... . „ . , per officer to paid, or, m the case oi stocks or securities, the certificate of the be sufficient proper oflfioer of the transfer or deposit of such stocks or securities discharge. shall be a sufficient discharge to such trustees or other persons for the money so paid, or the stocks or securities so transferred or deposited. Court of Chan- ■'■■'■■ •^^'^ ^® i* enacted, that such orders as shall seem fit shall 248. eery to make be from time to time made by the High Court of Chancery in orders °^V^- respect of the trust monies, stocks, or securities so paid in, trans- bill for appli- ferred, and deposited as aforesaid, and for the investment and cation of trust payment of any such monies, or of any dividends or interest on monies and ^^^ g^,]^ gtggjjs or securities, and for the transfer and delivery of trust. o^* °f ^W 8uch stocks and securities, and for the administration of any such trusts generally, upon a petition to be presented in a summary way to the Lord Chancellor or the Master of the Rolls, without bill, by such party or parties, as to the Court shall appear to be competent and necessary in that behalf, and service of such petition shall be made upon such person or persons as the Court shall see fit and direct ; and every order made upon any such petition shall have the same authority and effect, and shall be enforced and subject to rehearing and appeal, in the same manner as if the same had been made in a suit regularly instituted in the Court ; and if it shall appear that any such trust funds cannot be safely distributed without the institution of one or more suit or suits, the Lord Chancellor or Master of the EoUs may direct any such suit or suits to be instituted. APPENDIX. 297 12 & 13 VICT., CHAP. iiXXIV. An Act for the further Relief of Trustees. [28th July, 1849.] 248. * * * Be it enacted * * * that if upon any petition presented Court of Chan- to the Lord Chancellor or Master of the Rolls in the matter of the ^" uSnT" said Act * it shall appear to the Judge of the Court of Chancery maiority of before whom such petition shall be heard that any monies, an- trustees, &o., nuities, stocks, or securities are vested in any persons as trustees, ^ '' P^y™^™ -, . . ,, • . i . , . , or transfer of executors, or administrators, or otherwise upon trusts withm the ^^ust monies meaning of the said recited Act, and that the major part of such stocks, or persons are desirous of transferring, paying, or delivering the same n ""rt^Trh*" to the Accountant-General of the High Court of Chancery under gg™ the provisions of the said recited Act, but that for any reason the concurrence of the other or others of them cannot be had, it shall be lawful for such Judge as aforesaid to order and direct such transfer, payment, or delivery to be made by the major part of such persons without the concurrence of the other or others ot them ; and where any such monies or government or parlia- mentary securities shall be deposited with any banker, broker, or other depositary, it shall be lawful for such Judge as aforesaid to make such order for the payment or delivery of such monies, government or parliamentary securities to the major part of such trustees, executors, administrators, or other persons as aforesaid, for the purpose of being paid or delivered to the said Accountant- General as to the said Judge shall seem meet ; and every transfer of any annuities, stocks, or securities, and every payment of . money or delivery of securities, in pursuance of any such order, shall be as valid and effectual as if the same had been made on the authority or by the act of all the persons entitled to the annuities, stocks, or securities so transferred, or the monies or securities so paid or delivered respectively, and shall fully pro- tect and indemnify the Governor and Company of the Bank of England, the East India Company, and the South Sea Company, and all other persons acting under or ia pursuance of such order. 15 & 16 VICT., CHAP. LXXXVI. An Act to a/mend the Practice and Course of Proceeding in the High Court of Chancery. [1st July, 1852.] 219, XLII. It shall be competent to any defendant in any suit in Defendant not 251. the said Court to take any objection for want of parties to such to take objec- * 10 & 11 Vict. i>. 96. 298 APPENDIX. tion for want of parties in any case to ■wMcli rules herein set forth shall extend. Court may pro- ceed in any suit, &c., without repre- sentative of deceased per- son, or may appoint one. suit, in any case to -whic-li the Rules next hereinafter set forth, extend ; and such Eules shall be deemed and taken as part of the law and practice of the said Court, and any law or practice of the said Court inconsistent therewith shall be and is hereby abrogated and annulled. Rule 1. Any residuary legatee or next of kin may, without serving the remaining residuary legatees or next of kin, have a decree for the administration of the personal estate of a deceased person. Rule 2. Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, may, without serving any other legatee or person interested in the proceeds of the estate, have a decree for the administration of the estate of a deceased person. Rule 6. Any executor, administrator, or trustee may obtain a decree against any one legatee, next of kin, or cestuis que trust for the administration of the estate, or the execution of the trusts. XLIV. If in any suit or other proceeding before the Court it 79-8i. shall appear to the Court that any deceased person who was interested in the matters in question has no legal personal repre- sentative, it shall be lawful for the Court either to proceed in the absence of any person representing the estate of such deceased person, or to appoint some person to represent such estate for all the purposes of the suit or other proceeding, on such notice to such person or persons, if any, as the Court shall think fit, either specially or generally by public advertisements ; and the order so made by the said Court and any orders consequent thereon shall bind the estate of such deceased person in the same manner in every respect as if there had been a duly constituted legal per- sonal representative of such deceased person, and such legal per- sonal representative had been a party to the suit or proceeding, and had duly appeared and submitted his rights and interests to the protection of the Court. 19 & 20 VICT., CHAP. XCVII. An Act to amend the Laws of England and Ireland affecting Trade and Commerce. [29th July, 1856.] III. No special promise to be made by any person after the 199. passing of this Act to answer for the debt, default or miscarriage Consideration for guarantee peaf bymit- °^ another person, being in writing, and signed by the pai'ty to ing. be charged therewith or some other person by him thereunto law- APPENDIX. 299 fully autliorised, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom siich promise shall have been made, by reason only that the consideration for such promise does not appear in, writing, or by necessary inference from a written document. 193. XIV. In reference to the provisions of the Acts of the twenty- Part payment first year of the reign of King James the First, chapter sixteen, J'^ ""^ °™' section three, and of the Act of the third and fourth years of the jjot to prevent reign of King William the Fourth, chapter forty-two, section bar by certain three, and of the Act of the sixteenth and seventeenth years of Statutes of the reign of Her present Majesty, chapter one hundred and j^ favoiir of thirteen, section twenty, when there shall be two or more co- another con- contractors or co-debtors, whether bound or liable jointly only or t''^<^''"^j '"'■ jointly and severally, or executors or administrators of any con- tractor, no such co-contractor or co-debtor, executor or administra- tor, shall lose the benefit of the said enactments or any of them, so as to be chargeable in respect or by reason only of payment of any principal, interest or other money, by any other or others of such co-contractors or co-debtors, executors or administrators. XVI. In citiug this Act it shall be sufficient to use the expres- Short title, sion " The Mercantile Law Amendment Act, 1856." XVII. Nothing in this Act shall extend to Scotland. Extent of Act. 20 & 21 VICT., CHAP. LXXVII. An Act to amend the Law relating to Probates and Letters of Ad- ministration in England. [25th August, 1857.] II. In the construction of tliis Act, unless the context be incon- Interpretation sistent with the meaning hereby assigned — of terms. " WiE " shall comprehend " Testament " and aU other testamen- tary instruments of which probate may now be granted : "Administration" shall comprehend all letters of administra- tion of the effects of deceased persons, whether with or without the will annexed, and whether granted for general, special, or limited purposes * * * 27. XXV. The Court of Probate shall have the like powers, jurisdic- Powers of the tion, and authority for enforcing the attendance of persons required ^"""^ '° ™" by it as aforesaid, and for punishing persons failing, neglecting, or refusing to produce deeds, evidences, or writings, or refusing to appear or to be sworn, or make affirmation or declaration, or to give evidence, or guilty of contempt, and generally for enforcing all orders, decrees, and judgments made or given by the Court under this Act, and otherwise in relation to the matters to be inquired 300 APPENDIX. into and done by or under the orders of the Court under this Act, as are by law vested in the High Court of Chancery for such pur- poses in relation to any suit or matter depending in such Court. Profcate or LXIV. In any action at law or suit in equity, where, according 94. oHice copy , ,, . ^. , ., ,, , , , ° to be evidence ™ "^^ existmg law, it would be necessary to produce and prove of the will in an original will in order to establish a devise or other testamen- suits concern- ^.^ry disposition of or affecting real estate, it shall be lawftil for ing real estate, , .-,■,■ ^ ^ , ,. , . „ , ■, . save where *"^ party intending to establish in prooi such devise or other the validity testamentary disposition to give to the opposite party, ten days at of the will is jgg^g^. ijgfojg the trial or other proceeding in which the said proof shall be intended to be adduced, notice that he intends at the said trial or other proceeding to give in evidence as proof of the devise or other testamentary disposition the probate of the said will or the letters of administration with the will annexed, or a copy thereof stamped with any seal of the Court of Probate ; and in every such case such probate or letters of administration, or copy thereof respectively, stamped as aforesaid, shall be sufficient evidence of such will and of its validity and contents, notwith- standing the same may not have been proved in solemn form, or have been- otherwise declared valid in a contentious cause or matter, as herein provided, unless the party receiving such notice shall, within four days after such receipt, give notice that he dis- putes the validity of such devise or other testamentary disposition. Administration LXX. Pending any suit touching the validity of the will of 66, 67, pendente lite. ^^^ deceased person, or for obtaining, recalling, or revoking any ^^• probate or any grant of administration, the Court of Probate may appoint an administrator of the personal estate of such deceased person ; and the administrator so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of such personal estate ; and every such administrator shall be subject to the immediate control of the Court, and act under its direction. Eemuneration LXXII. The Court of Probate may direct that administrators 66. to administra- * * * appointed pending suits involving matters and causes tors pendente testamentary shall receive out of the personal * * * estate of the deceased such reasonable remuneration as the Court think fit. Power as to ap- LXXIII. Where a person has died or shall die wholly intestate 9, 48- pointment of as to his personal estate, or leaving a will affecting personal estate, ^]> ^^> administrator. ^^^ without having appointed an executor thereof willing and 74' gg' competent to take probate, or where the executor shall at the time 90. of the death of such person be resident out of the United Kingdom of Great Britain and Ireland, and it shall appear to the Court to be necessary or convenient in any such case, by reason of the insolvency of the estate of the deceased, or other special circum- stances, to appoint some person to be the administrator of the APPENDIX. 301 personal estate of the deceased, or of any part of such personal estate, other than the person who if this Act had not been passed would by law have been entitled to a grant of administration of such personal estate, it shall not be obligatory upon the Court to grant administration of the personal estate of such deceased person to the person who if this Act had not passed would by law have been entitled to a grant thereof, but it shall be lawful for the Court, in its discretion, to appoint such person as the Court shall think fit to be such administrator upon his giving such security (if any) as the Court shall direct, and every such administration may be limited as the Coirrt shall think fit. 73. LXXIV. The provisions of an Act passed in the thirty-eighth gg Q-. 3, c. 7 year of his late Majesty King George the Third, chapter eighty- extended to seven, shall apply (in like maimer) to all cases where letters of ^^^ administration have been granted, and the person to whom such administration shall have been granted shall be out of the juris- diction of her Majesty's Courts of Law and equity. 99. LXXV. After any grant of administration, no person shall have After grant power to sue or prosecute any suit, or otherwise act as executor of °f administra- the deceased, as to the personal estate comprised in or affected by to°5a" e power §uch grant of administration, until such administration shall have to sue as an been recalled or revoked. executor. 106. LXXVI. Where before the revocation of any temporary admi- Revocation of nistration any proceedings at law or in equity have been com- temporary menced by or against any administrator so appointed, the Court 8"^*™^.°°* in which such proceedings are pending may order that a suggestion actions or be made upon the record of the revocation of such administration, suits. and of the grant of probate or administration which shall have been made consequent thereupon, and that the proceedings shall be continued in the name of the new executor or administrator, in Hke manner as if the proceeding had been originally commenced by or against such new executor or administrator, but subject to such conditions and variations, if any, as such Court may direct. 105, LXXVII. Where any probate or administration is revoked Payments 133, under this Act, all payments bond fide made to any executor or under revoked administrator under such probate or administration, before the ^j" i •''t^f revocation thereof, shall be a legal discharge to the person making to be valid, the same ; and the executor or administrator who shall have acted under any such revoked probate or administration may retain and reimburse himself in respect of any payments made by him which the person to whom probate or administration shall be afterwards granted might have lawfully made. 106 LXXVIII. All persons and corporations making or permitting Persons &e. 133. to be made any payment or transfer bond fide, upon any probate making pay- or letters of administration granted in respect of the estate of any ^ "^""^ 302 APPENDIX. probates granted for estate of de- ceased person to be indem- nified. Rights of an executor re- nouncing pro- bate to cease as if be bad not been named in tbe will. Sureties to administration bonds. Persons to wbom grant of administration shall be com- mitted shall give bond. Penalty on bond. Power of Court to assign bond. deceased person under tlie authority of this Act, shall be indemni- fied and protected in so doing, notwithstanding any defect or cir- cumstance whatsoever affecting the validity of such probate or letters of administration. LXXIX. Where any person, after the commencement of this 16, 17, Act, renounces probate of the will of which he is appointed ^O- executor or one of the executors, the rights of such person in respect of the executorship shall wholly cease, and the representa- tion to the testator and the administration of his eifects shall and may, without any further renunciation, go, devolve, and be com- mitted in like manner as if such person had not been appointed executor. LXXX. So much of an Act passed in the twenty-first year of 91. King Henry the Eighth, chapter five, and of an Act passed in the twenty-second and twenty-third years of King Charles the Second, chapter ten, and of an Act passed in the first year of King James the Second, chapter seventeen, as recLuires any surety, bond, or other security to be taken from a person to whom administration shall be committed, shall be repealed. LXXXI. Every person to whom any grant of administration 88. shall be committed shall give bond to the Judge of the Court of Probate to enure for the benefit of the Judge for the time being, and, if the Court of Probate or (in the case of a grant from the district registry) the district registrar shall require, with one or more surety or sureties, conditioned for duly collecting, getting in, and administering the personal estate of the deceased, which bond shall be in such form as the Judge shall from time to time by any general or special order direct* : Provided that it shall not be necessary for the solicitor for the afi'airs of the Treasury or the solicitor of the Duchy of Lancaster applying for or obtaining ad- ministration to the use or benefit of her Majesty to give any such bond as aforesaid. LXXXII. Such bond shall be in a penalty of double the 88. amount under which the estate and effects of the deceased shall be sworn, unless the Court or district registrar, as the case may be, shall in any case think fit to direct the same to be re- duced, in which case it shall be lawful for the Court or district registrar so to do, and the Court or district registrar may also direct that more bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court or district registrar shall think reasonable. LXXXlll. *rhe Court may, on application made on motion or 91. petition in a summary way, and on being satisfied that the condi- * See post, p. 321. APPENDIX. 303 tion of any such bond has been broken, order one of the registrars of the Court to assign the same to some person, to be named in such order, and such person, his executors or administrators, shall thereupon be entitled to sue on the said bond, in his o^vll name, both at law and in equity, as if the same had been originally given to him instead of to the Judge of the Court, and shall be entitled to recover thereon as trustee for all persons interested the full amount recoverable in respect of any breach of the condition of the said bond. 20 & 21 VICT., CHAP. LXXIX. An Act to amend the Law relating to Probates and Letters of Admi- nistration in Ireland. [25th August, 1857.] II. In the construction of this Act, unless the context be incon- Interpretation sistent with the meaning hereby assigned — "^ terms. " Administration " shall comprehend all letters of administra- tion of the effects of deceased persons, whether with or with- out the will annexed, and whether granted for general, special, or limited purposes. III. This Act may be cited as " The Probates and Letters of Short title of Administration Act (Ireland), 1857." •^'=*- IV. This Act shall not extend to England or Scotland, except Act not to where expressly mentioned. extend to ^ 97. XCIV. From and after the period at which this Act shall come Scotland into operation, when any probate or letters of administration to be except, &c. granted by the Court of Probate ia England shaU be produced to Probates and a copy thereof deposited with the registrars of the Court of l,''*"*^^™ Probate in Ireland, such probate or letters of administration shaL. -b" ff^Ske " be sealed with the seal of the said last-mentioned Court, and being force as if duly stamped shall be of the like force and effect and have the originally same operation in Ireland as if it had been originally granted by ^eW on be- the Court of Probate in Ireland. ing re-sealed. 95. XCV. From and after the period at which this Act shall come Probates into operation, when any probate or letters of administration to 8^™*^^ in be granted by the Court of Probate in Ireland shaH be produced of^like fo°rce^ to and a copy thereof deposited with the registrars of the Court of as if originally Probate in England, such probate or letters of administration l''™)*®^™ shall be sealed with the seal of the last-mentioned Court, and being re-™ being duly stamped shall be of the like force and effect, and have sealed, the same operation in England as if it had been originally granted by the Court of Probate in England. 304 APPENDIX. Confirmation produced in Probate Court of England, and sealed, to have tTie effect of pro- bate or ad- ministration. 21 & 22 VICT., CHAP. LVI. An Act to amend the Law relating to the Gonfirmation of Executors m Scotland, and to extend over all Parts of the United King- dom the Ej^ect of such Gonfirmation, and of Grants of Prolate and Administration. [23rd July, 1858.] XII. From and after the date aforesaid, when any confirmation 95. of the executor of a person who shall in manner aforesaid lie found to have died domiciled in Scotland, which includes, besides the personal estate situated in Scotland, also personal estate situated in England, shall he produced in the principal Court of Probate in England, and a copy thereof deposited with the registrar, to- gether with a certified copy of the interlocutor of the commissary finding that such deceased person died domiciled in Scotland, such confirmation shall be sealed with the seal of the said Court, and returned to the person producing the same, and shall thereafter have the like force and effect in England as if a probate or letters of administration, as the case may be, had been granted by the said Court of Probate. XIII. Prom and after the date aforesaid, where any confirma- 95. tion of the executor of a person who shall so be found to have of Dublin" and ^^^^ donuciled in Scotland, which includes, besides the personal sealed, to have estate situated in Scotland, also personal estate situated in Ireland, the effect of gj^^jj j^g produced in the Court of Probate in Dublin, and a copy probate or ii>. . . ■». administration, thereof deposited with the registrar, together with a certified copy of the interlocutor of the commissary finding that such deceased person died domiciled in Scotland, such confirmation shall be sealed with the seal of the said Court, and returned to the person producing the same, and shall thereafter have the like force and effect in Ireland as if a probate or letters of administration, as the case may be, had been granted by the said Court of Probate in Dublin. XIV. Prom and after the date aforesaid, when any probate or 97. letters of administration to be granted by the Court of Probate in England to the executor or administrator of a person who shall be therein, or by any note or memorandum written thereon signed Confirmation produced in Probate Court Probate oi;^^ letters of ad' ministration produced in Commissary Court and oer- by the proper oflicer, stated to have died domiciled in England, or tified, to have y^^ ^-^^ q^^j.^ ^^ pj-obate in Ireland to the executor or administrator effect of con- firmation. of a person who shall in like manner be stated to have died domi- ciled in Ireland, shall be produced in the Commissary Court of the county of Edinburgh, and a copy thereof deposited with the commissary clerk of the said Court ; the commissary clerk shall endorse or write on the back or face of such grant a certificate * * * and such probate or letters of administration, being duly APPENDIX. stamped shall be of the like force and effect and have the same operation in Scotland as if a confirmation had been granted by the said Court. XIX. This Act may be cited as the " Confirmation and Probate Act, 1858." 305 21 & 22 VICT., CHAP. XOV. An Act to amend the Act of the Twentieth and. Twenty-first Victoria, Chapter Seventy-seven. [.2nd August, 1858.] 21. XVI. Whenever an executor appointed in a will survives the An executor testator, but dies without having taken probate, and whenever ""* acting or an executor named in a will is cited to take probate, and does ^^ ^ rifation"^ not appear to such citation, the right of such person in respect to be treated of the executorship shall wholly cease, and the representation to ^ ^ ^^ ^^^ rPTi n 11 n ppH the testator and the administration of hia effects shall and may, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor. 73. XVIII. The provisions of an Act passed in the thirty-eighth Provisions of year of George the Third, chapter eighty-seven, and of " The 38 G. 3, c. 87, Court of Probate Act," shall be extended to all executors and ^ . y» administrators residing out of the jurisdiction of her Majesty's extended to all courts of law and equity, whether it be or be not intended to "^^^^ °^ execu- institute proceedings in the Court of Chancery, and to all grants ininistrators made before and subsequently to the passing of the last-mentioned Act, and it shall be lawful to alter the language of the grant prescribed by the first-named statute so as to make it apply to grants made in the Court of Probate under the said last-mentioned Act. 131. XIX. From and after the decease of any person dying intestate, Between the and until letters of administration shall be granted in respect of death of the his estate and effects, the personal estate and effects of such de- Person deceased ceased person shall be vested in the Judge of the Court of Probate the property to for the time being, in the same manner and to the same extent as vest in the heretofore they vested in the Ordinary. "^""^g^ ^'^'^i- ^ nary. 66. XXII. All the provisions contained in the Court of Probate Administration Act respecting grants of administration pending . suit shall be pending suit deemed to apply to the case of appeals to the House of Lords die on or after the first day of January, one thousand eight hun- and simple ^®^- died and seventy, no debt or liability of such person shaU be ofieeeLef *' entitled to any priority or preference by reason merely that the persons to same is secured by or arises under a bond, deed, or other instm- stand in equal ment under seal, or is otherwise made or constituted a specialty j^^^^^q ^ debt ; but all the creditors of such person, as well specialty as simple contract, shall be treated as standing in equal degree, and be paid accordingly out of the assets of such deceased person, whether such assets are legal or ecLuitable, any statute or other law to the contrary notwithstanding : Provided always, that this Act shall not prejudice or affect any lien, charge, or other security which any creditor may hold or be entitled to for the payment of his debt. II. This Act shall not extend to Scotland. Extent of Act. 318 APPENDIX. Power to trustees to invest in de- benture stock. Definition of "trustees." Short title. 34 & 35 VICT., CHAP. XXVII. An Act to Remove Doubts as to the Power of Trustees to Invest Trust Funds in Debenture Stocks. [29tli June, 1871.] I. Where a power has before the passing of this Act been or 142. shall at any time hereafter be given to trustees to invest trust funds in the mortgages or bonds of a railway company or of any other description of company, such power shall, unless the con- trary is expressed in the instrument creating the power, be deemed to include a power to inTCst such funds in the debenture stock of a railway company or such other company as aforesaid, and an investment of trust funds in debenture stock may be made accord- ingly. II. The expression "trustees" shall include executors and 142. administrators and any other persons holding funds in a fiduciary capacity. III. This Act may be cited for all purposes as " The Debenture Stock Act, 1871." 34 & 35 VICT., CHAP. XL VII. An Act for amending the Acts regulating the Borrowing of Money by the Metropolitan Board of Works.; and for other purposes relating thereto. [13th July, 1871.] Short title. I- This Act may be cited as the Metropolitan Board of Works (Loans) Act, 1871 * * *. Power for XIII. A trustee, executor, or other person empowered to invest 142. trustees to take money in public stocks or funds or other Government securities Metropolitan may, unless forbidden by the will or other instrument under which he acts, whether prior in date to this Act or not, invest the same in consolidated stock. Short title. 36 & 37 VICT., CHAP. LXVL An Act for the Constitution of a Supreme Court, and for other pur- poses relating to the better Administration of Justice in England ; and to authorise the transfer to the Appellate Division of such Supreme Court of the Jurisdiction of the Judicial Committee of Her Majesty's Privy Council. [5th August, 1873.] I. This Act may be cited for all purposes as " The Supreme Court of Judicature Act, 1873." APPENDIX. 319 245. XXIV. (5.) No cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained byprohibition or injunction ; biit every matter of ec[uity on which an injunction against the prose- cution of any such cause or proceeding might have been obtained,if this Act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto : Provided always, that nothing in this Act contained shall disable either of the said Courts from directing a stay of proceedings in any cause or matter pending before it, if it shall think fit ; and any person, whether a party or not to any such cause or matter, who would have been entitled, if this Act bad not passed, to apply to any Court to restrain the prose- cution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule, or order, contrary to which all or any part of the proceed- ings in such cause or matter may have been taken, shall be at liberty to apply to the said Courts respectively, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purposes of justice ; and the Court shall thereupon make such order as shall be just. XXV. And whereas it is expedient to take occasion of the union Rules of law of the several Courts whose jurisdiction is hereby transferred to upon certain the said High Court of Justice to amend and declare the law to ^°"' ^' be hereafter administered in England^s to the matters next here- inafter mentioned ; Be it enacted as follows : 253. (2.) No claim of a cestui que trust against his trustee for any statutes of property held on an express trust, or in respect of any Limitation breach of such trust, shaU be held to be barred by any inapplicable to ,-.... J J express trusts. Statute 01 Limitations. 129, (8.) A mandamus or an injunction may be granted or a receiver injunctions 2i2. appointed by an interlocutory order of the Court in all and receivers, cases in which it shall appear to the Court to-be just or convenient that such order should be made ; and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just * * *. 147. (9.) Generally in aU matters not hereinbefore particularly men- tioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail. 320 APPENDIX. B.ules for regu- lating obliga- tions and rights of vendor and purchaser. Trustee may sell, &c. not- ■withstanding rules. Legal personal representative may convey legal estate mortgaged property. 37 & 38 VICT., CHAP. LXXVIII. An Act to amend the Law of Vendor and Purchaser, and further to simplify Title to Land. [7th. August, 1874.] I. In tlie completion of any contract of sale of land made after tlie thirty-first day of December, one thousand eight hundred and seventy-four * * * II. In the completion of any such contract as aforesaid, and 139 subject to any stipulation to the contrary in the contract, the obligations and rights of vendor and purchaser shall be regulated by the following rules ; that is to say, (1). Under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or lease- hold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold. (2). Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments. Acts of Parlia- ment, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions. (3). The inability of the vendor to furnish the purchaser with a legal covenant to produce and furnish copies of docu- ments of title shall not be an objection to title in case the purchaser will, on the completion of the contract, have an equitable right to the production of such documents. (4). Such covenants for production as the purchaser can and shall require shall be furnished at his expense, and the vendor shall bear the expense of perusal and execution on behalf of and by himself, and on behalf of and by necessary parties other than the purchaser. (5). Where the vendor retains any part of an estate to which any docunents of title relate he shall be entitled to retain such documents. III. Trustees who are either vendors or purchasers may sell or 139. buy without excluding the application of the second section of this Act. IV. Thelegalpersonalrepresentativeofamortgageeofafreehold 1^0. estate, or of a, copyhold estate to which the mortgagee shaU have been admitted, may, on payment of all sums secured by the mortgage, convey or surrender the mortgaged estate, whether the mortgage be in form an assurance subject to redemption, or an assurance upon trust. APPENDIX. 321 X. This Act shall not apply to Scotland, and may be cited as Extent of Act. the Vendor and Purchaser Act, 1874. 38 & 39 VICT., CHAP. LXXVII. An Act to amend and extend the Supreme Court of Judicature Act, 1873. [11th Augiist, 1875.] I. This Act * * * shall commence and come into operation on the 1st day of November, 1875. 169. X. * * * In the administration by the Court of the assets of any person -who may die after the commencement of this Act, and whose estate may prove to be insufiicient for the payment in full of his debts and liabilities, * * ♦ the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabili- ties respectively, as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt ; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person may come in under the decree or order for the administration of such estate, * * * and make such claims against the same as they may respectively be entitled to by virtue of this Act. PAET II.— FORM OF ADMINISTRATOR'S BOND. 88, 91, KNOW ALL MEN by these presents, that we, A. B., of , 105, C. D., of , and E. P., of , are jointly and severally ■''"• bound unto G. H., the Judge of her Majesty's Court of Probate, in the sum of * * * to be paid to the said G. H., or to the Jtidge of the said Court for the time being * * * The condition of this obligation is such that if the above- named A. B. [or K. B., wife of the above-named A. B.], the [as the case may be] of I. J., late of , deceased, who died on the day of , and the intended administrator of all and sin- Y 322 APPENDIX. gular the personal estate and effects of the said deceased [left unadministered by ], do, when lawfully called on in that behalf, make, or cause to be made, a true and perfect inventory of all and singular the personal estate and effects of the said deceased [so left unadministered] which have, or shall, come to hands, possession, or knowledge, or into the hands or possession of any other person for , and the same so made do exhibit or cause to be exhibited unto the Principal Registry of Her Majesty's Court of Probate, whenever required by law so to do, and the same personal estate and effects, and all other the personal estate and effects of the said deceased at the time of death, which at any time after shall come to the hands or possession of the said , or into the hands or possession of any other person or persons for , do well and truly administer according to law ; that is to say, do pay the debts which did owe at decease, and further do make or cause to be made a just and true account of said administration, whenever required by law so to do ; and all the rest and residue of the said personal estate and effects do deliver and pay unto such person or persons as shall be entitled thereto, under the Act of Parliament intituled " An Act for the Better Settling of Intestates' Estates ; " and, if it shall hereafter appear that any last will and testament was made by the said deceased, and the executor or executors, or other persons therein named, do exhibit the same unto the said Court, making request to have it allowed and approved accordingly, if the said , being thereunto required, do render and deliver the said letters of administration (approbation of such testament being first had and made) in the said Court, then this obligation to be void and of none effect, or else to remain in full force and virtue * » * INDEX. ACCOUNT, action of, executors and administrators and executors of executors have, 111 ACCOUNTS, copy of, legatee not entitled to, at expense of estate, 151 destruction of, on, everything presumed most unfavourable to accounting party, ib. duty of executors and administrators to he ready with, il). liability of executors and administrators to be sued for, 219 neglect to render, executors and administrators may have to pay costs of action occasioned by, 151 one executor may settle, 146 sue another for, 147 stated, liability of executors and administrators on, 199 ACCOUNTANT executors and administrators may be allowed to charge for, 234 ACCUMULATION, of infants' surplus income, 144 ACTIO PERSONALIS MOEITUB CUM PERSONA, 189 note, 191 ACQUIESCENCE, breach of tnist, bars remedy in respect of, 252 requisites of, ih, ADMINISTRATION, action for, parties to, 15 note, 78, 79, 80 note, 147, 219, 220, 251, 265 ad coUigenda, grant of, 85 ad litem, Chancery Procedure Act, under, 79, 81 formality of letters dispensed with on, hut, semble, duty payable, 83 to whom made, ib. qy., whether made, where per- sonal responsibility entailed, or against grantee's will, ib. effect of, 78 inherent jurisdiction, under, 76 Y 2 324 INDEX. ADM.miSTRAriO'S—cmitinued. qy., whetlier made without going into merits, 76 costs of, order of priority of, 158 ' executors', priority of, ib. course of, parting with control over assets in due, entails no liability, 211 Court, by, executors and administrators ought to facilitate, 157 only complete discharge to executors and administrators, 251 mem testamento annexo, granted in what oases, 7, 9 note, 26 note, 50, 52, 74 to whom, 53 letters of, evidence of wiU and of appointment of legal personal representative, 93 de bonis non, granted in what cases, and to whom, 60 lettersof, sufficient proof of title of administrator ti. i. n., 94 note discretion of Court as to grant of, 48 durante absentid, gi-anted in what cases, 72, 74 dementid, granted in what cases, 41, 74 to whom, 75 i niinore mtate, determined, how, 63 granted in what cases, 9 note, 50, 62 to whom, 62 reason of, ib. foreign Court cannot grant, of property in England, 31 fraudulently procuring, constitutes one executor de son tort, 263 grants of, general and limited, distinction between, 30 in case of foreigners, usually follow grant of foreign Court, 30, 41 made only in respect of personal property in this country, 30 to exclusion of executor, may be, 60 severally of several parts of estate, may be, 32 not made per saltum, 34, 39 tiU capable executor has recorded refusal, or been cited,'53 to another without citation or consent of parties entitled in priority, 33 two, not usually allowed out together, 105 subsistence of, no one may act as executor during, 99 guardians of minors and infants, granted to, 32 haste in taking out, undue, ground of revocation, 102 intermeddler not compellable to take, 34, 267 joint, discouraged, 31, 41 judgment for, administrator out of jurisdiction, cannot be had against, 220, common, liability of executors and administrators under, ib. plaintiff having obtained, cannot without leave main- tain fresh action charging wilful default, 221 creditors cannot sue executors and administrators after, 245, 251 effect of, on powers of executors and administrators, 147, 162, 164 rights of creditors, 148, 159, 159 note, 162, 164 executor before probate, semble, cannot be had against, 128 IKDEX. 325 ABMimSTB.ATlO'N— continued. form of, where an administrator durante ahsentid, 72 note limited to English assets, need not be, when general probate has been granted here of will of foreigner, 96 note wilful default, as for, when granted, 220, 221 jurisdiction ta grant, 25, 30 letters of, collateral matters, not conclusive as to, 99 colonial, qy., whether recognised here, 94 conclusive as to what matters, 97 foreign, not recognised here, 94 Indian, value of, here, 96 re-sealing of, in Ireland and Scotland, 97 Irish, 95 revoked, administrators who have acted under, may re-imbuise themselves, 105 payments made, under, valid, ib, liability of executors and administrators to be sued for, 219 limited, contemplated legal proceedings, to, 87. And see Administkation ad litem. doubly, 75 grant of, to nominee of debtor, refused, 63 legacy, to, 87 lost will, in respect of, 86 not granted, as a rule, if any one entitled and willing to take general grant, 36 one entitled to general grant may not, as a rule, take, ih. trust fund, to, 87 one entitled in a superior character to, cannot take in an inferior ; nor, generally, if he renounce in one character, take in another, 35 pendente lite, granted at whose instance, 67 in what cases, 66-68 time, to be taken within what, 27 what amounts to, so that executor cannot renounce, 12 And see Administkatok, Infant, Married "Woman, Eenounoe, RENTTNOrATION, REVOCATION. ADMINISTRATOR, cul coUigenda, pay balance into court, ought to, 86 powers of, 85 , selling estate, formerly an executor de son tort, 260 note ad litem, disabilities of, 76, 83 sufficiently represents the estate, when, 77, 79, 81 administration, actions, cannot proceed far with, before, 131, except actions founded on possession or his own contracts, 132 acting before, may be sued as executor de son tort, 132 271 note business, power to carry on testator's, not exercisable by, 141 capable of being, who is, 8 cum testamento annexo, personal estate of deceased vests in, on renunciation of executors, 107 S26 INDEX. ADMINISTRATOR— conWimrf. (k bonis non, estate and interest of, 60, 116 de son tort, no, 259 discretions, has not, in same manner as executor, 144 distribution by, statutes regulating, 180 durante absentid, accountable to legal personal representative, 74 determination of authority of, ib. judgment for administration may be had against, 72 note, 220 minore cetate, inventory, may be called on for, 161 of executor of executor represents first testator, 21 status, liabilities, and powers of, 63 each, has entire control of personal estate, 146 possessed of the whole personal estate, 119 executor, of, does not represent the testator, 21 infant, not liable to account for receipts during infancy, 219 joint, has same interest as joint executor, 119 jurisdiction, out of, judgment for administration cannot be had against, 220 limited, renounce benefit to deceased's estate, cannot, 65 retention of assets by, as to, to meet costs of action against him, the administration determining pending action, ib. owner of the goods in point of law, 118 payment to, good discharge, though will existing, 98 pendente lite, indifferent person usually appointed, 68, after inquiry into his circumstances, 69 interfered with, not, where acting under order of Court of Chan- cery, 71 powers and status of, 69 personal estate vests in, 107 rights to, vest in, 111, from grant of administration, 129 revocation of grant, may take steps for, 105 similarity between, and executor, 107 title and authority of, derived from the administration, 129 relation back of, 130, 132, 271 note does not divest interest in stranger, 112 note fiction, a, 130, 131 note justification of, 131 qualified by Parke, B., ib. trustee proper, never a, 258 And see Exboutoe. ADMISSION OF ASSETS, effect of, 223 no estoppel from disputing creditor's claim, ib. note one executor, by, does not release the others from accounting, ib. retracted, when may be, 225 what amounts to, 223 ADULTS have no priority over minors' guardians in grant of administration, 44 INDEX. 327 ADVANCES, children, to, to be accounted for, iu sharing intestate parent's estate, 180 what are, 180 note further, by executors and administrators, to secure former advances, 141 note interest on, when allowed executors and administrators, 235 retainer of, by executors and administrators, 162 note ADVERTISEMENT for creditors, statutory, 245 ADVICE of Court, executors and administrators may apply for, 250 AGE no ground of revocation of administration, 104 AGENT, acts done by one as, do not prevent his renouncing as executor, 15 charge for, when executors and administrators entitled to, 233 contract of principal and, terminated by death of either party, 115, 187 default of, when executors and administrators liable for, 217 executors, of, an improper party to an action for administration, 15 note ANNUITY, apportionment of, 117 executor, to, does not cease on institution of action for administration, 175 has no preference in respect of, ih. time, to be paid within what, 170 to A and his heirs, 117 note for ever, ib. APPORTIONMENT Act, 1870, applies to specific devises and bequests, 117 is retrospective, ii. of periodical payments, ib. APPRENTICESHIP determined by death of either party, 115, 187 APPROPRIATION, powers of, executors' and administrators', 143 test whether executors have constituted themselves trustees, 257 ARBITRATION, executors may submit to, 140 ' " general, reference to, by executors or administrators, an admission of assets, 225' ARTICLES, qy., whether on death of master before expiration of, clerk can recover part of premium from deceased's representatives, 188 328 INDEX. ASSENT, executors', doctrine of, 120 donatio mortis causd, not requisite in case of, 110 express or implied, absolute or conditional, or partial, 122 legatee who takes possession without, liable to action of trespass, 118 life estate, to, is assent to remainder over, unless executor is him- self tenant for life, 121 one executor, by, to own legacy, effectual, 146 release by testator of debt, qy., whether necessary to, 121 retractation of, 123 specific legacy, to, constitutes executor trustee, 257 what will amount to, 122 man-ied women and infants.Tjy, how far operative, 253 ATTACHMENT for disobedience to citation, 12 not granted against executors or administrators for not performing rule entered into by deceased, 206 ATTENDANCES, charges for what, disallowed executors and administrators, 233 ATTORNEY, acts done by one as, do not prevent him from renouncing as executor, 15 administration may be granted to, 32, 57, only on same terms as to party himself, 88 note bare authority coupled with a trust cannofbe executed by, 110 note bills accepted by, liability of executors and administrators on, 205 executor, of, probate by, equivalent to probate by executor, 20 note] power of, liability of executors and administrators paying money under, 217 renuuciation under, 16 to whom grant of administration has been made, is to all intents adminis- trator, and liable to be sued as such, 32 note And see Solicitor. AUCTIONEER, executor or administrator may not charge for acting as, 233 BAILEE, executor or administrator a gratuitous, 218 BAILIFF, actions against, by executors and administrators, 112 BANKER, default of, when executors and administrators liable for, 214 BANKRUPT, estate of deceased, does not vest in personal representative, till bankruptcy annulled, 107 INDKX. 329 BANKEUPTCY, co-executor, of, proof by executor in, 2S5 disqualification from taking grant of administration, not necessarily a, 44 executor, of, proof in, for assets wrongfully employed by him in trade, 203 note money converted to bis own use, 216 note property held m auter droit does not pass to trustee on, 120 firm, of, executors of deceased partner cannot compete with creditors in, 109 note BILLS accepted by attorney, liability of executors and administrators on, 205 BLOOD, half equally entitled with whole, on distribution of intestate's estate, 181 whole preferred to half, on grant of administration, 43 BOND, administration, assignment of, for purpose of suing on it, 91 conditions of, what a breach of, ib. Crown, nominee of, need not give, 45, 88 dispense with, Court cannot, but has a discretion as to amount of penalty of, 88 executed by other than administrator in a pressing case^ 89 form of, 321 not altered on grant of administration to attorney, 88 note . husband required to join in wife's, 9 note infant cannot give, 62 stranger may sometimes join in married woman's, 10 note sureties to, creditors not heard as to, 91 discharged and others substituted, not, 89 dispensed with, when, ib. justify, when required to, 90 residence of, as to, 89 second, to be sued before sureties to first, 92 statutory advertisements for creditors protect, 246 satisfaction of, by retainer, 167 note BREACH OF PROMISE, executors and administrators have no action for,' 114 BROKER, default of, when executors and administrators liable for, 217 identification by, executors and administrators may charge for, 235 BURIAL OF DECEASED, duty of executors and administrators as to, 150 executor de son tort, does not charge one as, 260 330 INDEX. BUSINESS, deceased's, administrator may not carry on, 144 assets, executor may employ what, in, 202 wrongfully employed in, by executor, may be proved for in latter's bankruptcy, 203 note carrying on, directions as to, executor may come to Court foi', 203 note sufficient to charge as executor de son tort, 263 executors authorised to carry on, when, 202 cannot borrow, to carry on, 135 note liability of, for carrying on, 201 stranger carrying on, accountable to executors, 203 note participation in profits not necessarily^ a carrying on of, 203 trust funds in, stranger employing, not accountable as trustee, 204 note And sea Partner, Partnership. CAMPBELL'S ACT, LORD, administration limited to bringing action under, 87 remedy of executors and administrators under, 114 CARE, what, expected of executors and administrators, 152 CAVEAT, granting administration pending, ground of revocation, 103 CHARACTER, bad, no ground for refusing probate, 10 CHOSES IN ACTION, executors' and administrators' interest in, 111, 118 CITATION of executor, before administration granted, 63 persons entitled in priority, on grant of administration, 33, 51 to take probate, 12, 16, 27 disobedience to, a contempt of court, 12, 27 non-appearance to, a refusal of office, 15, and an abandon- ment of rights gud executor, 20, 21 CLOTHING, charges for, not allowed executors and administrators, as against creditors, 235 CODICIL. See Will. COLLECTION OF ESTATE, commission on, executors and administrators not allowed to charge, except in case of Indian assets, 233 duties of executors and administrators as to, 152, 206 non-, liability of executors and administrators for, 206 INDEX. 331 COLLUSION between executors oi' administrators and a debtor to the estate, actions by beneficiaries in consequence of, 155 vitiates sale or mortgage by executors and -administrators, 136 COLONIES, letters of administration, English, do not extend to, 96 gi'antedin, qy., whether recognised here, 94 note ought to follow English grant of administration, 96 COMMISSION, when executors and administrators allowed to charge a, 233 COMPANY, executors and administrators who are contributories may petition to wind up, 112 And see Shakeholder. COMPROMISE, executors power to, 140 does not extend to claims against themselves, 141 CONDITIONS, appointment of executors on, 7 sale, of, on sale by executors or administrators, 139 depreciatory, sale under, restrained, ib. CONFIRMATION, Scotch, re-sealing of, 95 effect of, ib., 99 CONSENT of executor, administration not granted on mere, 53 And see Assent, Citatiojt. CONSIGNEES, Court may appoint executors and administrators, with profits, 233 note CONSULS, right of, to administer to foreigners, 46 CONTRACT, borrowing, of, executors and administrators personally liable on, 199 binds executors and administrators, though not named, except where founded on personal considerations, 115, 184, 186 breach of, by A, executor of executor de son tort of A not liable for, 188 entered into with deceased, damages for, 113 indemnity in respect of, 114 note implied, liability of executors and administrators on, 200, 201 joint, profits of, executors of a deceased contractor held entitled to share in, 109 one executor cannot bind co-executors by, 146 specific performance of, entered into hy deceased, 185 entered into mth deceased. 113 improperly entered into by executors or adminis- trators, none of, 140 332 INDEX. CONTRIBUTION between co-execut s, on joint liability, 254 CONVERSION of estate, duties of executors and.administrators as to, 152, 206 non-, liability of executors and administrators for loss occasioned by, 208 wasting or reversionary securities, where successive estates limited, 156, 210 COPYHOLBER, actions against, executors and administrators have, 112 CORPORATION aggregate or sole may be executor, 11 sole, chattels of, pass to executors or administrators, 110 COSTS, action occasioned by mistake of executors, of, 182 neglect to account, of, 151 administration, of, priority of, 158 executors', priority of, ib. administrator, of special, of action brought against him, the administration determining pending the action, 65 who sues for administration, knowing another claims to administer, does so at his peril as to, 106 conduct of executors and administrators, occasioned by improper or unrea- sonable, 221 note, 222 counsel's advice may protect executors and administrators from, 226 defence of action, of improper, disallowed, 235 estate, out of, when executors and administrators get, 221 executor defendant, of, who should have been co-plaintiff, 147 paid by, interest on, not allowed, 235 moderation of, otherwise than by taxation, 234 what allowed, ib. reviving action personally liable for, 221 note influence, undue, or negligence, where executor guilty of, 29 note, 222 legacy, of action to secure, not given out of residue, 247 misconception, incurred under, allowed executors and administrators, 235 proving a will in solemn form, of, 29 note not the last will, occasioned by, 27 residue, occasioned by paying, before debts satisfied, 183 solicitor-executor, of, moderation of, otherwise than by taxation, 232 note what included in, 233 title, occasioned by unreasonably calling on beneficiaries to prove their, 182 Trustee Relief Acts, under, 249 COUNSEL'S ADVICE, little or no protection to executors and administrators, 225 INDEX. 333 COVENANTS, real and personal, distinction between, as regards rights of executors and administrators, 113 And see Oontkact. CREDITOR, administration, applying for, may be put on terms to pay debts pro raid, 47 bond, cannot sue on, for his own debt alone, 91 not granted to secured, 46 right of, to, 46, 50, 58 compounding, executors and administrators may not pay, more than amount of composition, 162 direction by executor or administrator to his own, to apply trust funds in satisfaction of his debt, invalid, 137 executor or administrator may be liable to, where not to legatees, 219 judgment, assignment by executors or administrators of testator's property for benefit of creditors good against, 134 larger preferred to smaller, on grant of administration, 48 limits of rights of, on grant of administration, 41, 48, 91 preference of, by executors or administrators, 162 only to be prevented by obtain- ing a receiver, ib. note priority of, regulated by domicil of deceased, 158 proceedings by, stay of, after judgment for administration, 245, 251 refunding by legatee to, 178 note residuary legatee to, 183 rights of, how affected by judgment for administration, 148, 159, 159 note, 162, 164, 244, 251 sue executor de son tort, may, 265 stand in place of, executors and administrators allowed to, 228 statutory advertisements for, how far executors and administrators protected by, 245 who may administer as a, 47 CROWN debt, priority of, 158, 161 probate duty for which credit given, a, 158 excess duty fraudulently obtained from, as to recovery by, 'out of assets 100 note nominee of, grant of administration to, 45 liability of, devolves on his personal representatives, 46 under same obligation as any other administrator, 32 note, 45, 216 note residue, when executors trustees of, for, 179 DAMAGES, actions for, against executors and administrators, 189, 201 by executors and administrators, 113, 116 recoup in, executor de son tort may, 265 334 INDEX. DEATH, presumption as to, of persons killed by same accident, 40 DEBTOR, joint, executors and administrators of, may plead Statutes of Limitations, notwithstanding payments on account by surviving debtors, 193 DEBTS, action for, executors and administrators, and executors of executors, have, 111 buy, executors and administrators may not, at less than full amount, 138 interest on, when executors and administrators charged with, 229 loss of, through negligence, executors and administrators liable for, 207 pay, executors and administrators obliged to, 157, 184 may, on what evidence they think sufficient, 140 payment of, alleged, not really due, executors and administrators liable for, 214 executors may remit money to co-executor for, 211 personally liable for, when executors and administrators are, 175, 197 priority, what have statutory, 159 of, liability of executors and administrators for disregarding, 159 note, 214' order of, 157 testator may not disappoint, 158 raise, executor's power to, by sale or mortgage of realty, 136 received in mistake, executors and administrators personally liable to refund, 201 set-off against, executors' and administrators' right of, 222 specialty and simple contract, stand in same degree, 161 specific effects, may not be paid with, 166 note legacies should not, if possible, be applied in payment of, 157 statute-barred, executors and administrators may pay and be allowed, 161, 227 stranger carrying on testator's business in own name may sue in own name for, 203 note And sec Ckeditoe, Ceown, Judgment, Rent. DEEDS admitted to probate, 1 DEFAULT of agent, solicitor, banker, broker, liability of executors and administi'ators for, 217 wilful, judgment for administration as for, at what stage of action obtained, 220 note liability of executors and admin- istrators under, 220 plaintiff who has obtained common judgment for administration cannot maintain fresh action charging, 221 DELAY, action for account of first testator's property by executor of executor not barred by, 118 breach of trust, remedies for, may be barred by, 253 probate or administration, in applying for, to be explained, 28, 33 INDEX. 335 1)E LAY — continued. probate or administration, persons entitled to, may lose their rights by, 33, 43, 99 DELEGATUS NON POTEST DELEGARE, 8, 135, 218 DEVASTAVIT, liability of executors and administrators for, 206 set off against executors or administrator's share, 222 DILAPIDATIONS, liability of executors and administrators of spiritual person in respect of, 195 DISCLAIMER executed by executor after sale sufficient, 149 of legacy by executor of legatee who accepted same not allowed, so as to avoid duty, 176 DISCHETION, administrator has not same, as executor, 144 executors cannot exercise, after renunciations, 149 of Court as to grants of administration, 48 matters of, executors and administrators may apply for advice, &c., of Court in, 250 DISTRIBUTION, administrators, by, statutes regulating, 180 distinction between executors and administrators as regards, 178 domicil of deceased, governed by law of, 181 proportionate, on payment of proportionate duty, 176 risk attendant on, without suit, 182 Trustee Relief Acts, under, executors and administrators «iay themselves present petition for, 248 DIVIDENDS, apportionment of, 117 receipt of, on shares does not of itself make executors and administrators personally liable to company, 205 DOMICIL, Court usually follows grant of country of, in granting administration, 30 > but not necessarily, 9 note regulates distribution of deceased's personal estate, 181 priority of creditors, 158 DONATIO MORTIS CAUSA, creditors, may be claimed by, 110 executors, does not vest in, or require assent of, ib, DUTY, executors of appointor primarily liable for, on appointed fund in hand of trustees, 176 legateewhohasacceptedlegaeyoannotdisclaim, soas to avoid, 176 legacy and succession, liabilities of executors and administrators in respect of, 175, 247 336 INDEX. BXJTY—cmiUnued. legacy and succession, liabilities of executors deson tort in respect of, 266 on probate or administration, executors and administrators cannot maintain proceedings in respect of larger sums than are covered by stamp denoting, 100 payment of, return of, and giving credit for as to, ib. note recovery of; by executors and administrators from legatees, 178 And see Ceown. ESTABLISHMENT, v^hat time allowed for breaking up deceased's, 152 EXCHANGE, executors may give or receive money for eq^uality of, 139 EXECUTOE, account, duty of, to, 151 liable to be sued for, 219 stated, liability of, on, 199 accountant, may be allowed to charge for, 234 accumulate, should, surplus income of infants, Hi act as, no one may, during subsistence of administration, 99 acting without proving, liable only for actual receipts, 211 note administration, liable to be sued for, 219 by Court, creditors may not sue, after,245, 251 only gets complete discharge through, 251 ought to facilitate, 167 advice of Court, may apply for, 250 administrator of, does not represent testator, 21 agent, when entitled to charge "for, 233 liable for default of, 217 annuity to, 175 appoint, one delegated to, may appoint himself, 2 note appointment of, absolute or qualified, may be, 2 ambiguous, principle of construing, ib. delegated, maybe, ib. implication, by, 5 modes of, different, 2 nomination, by, ib. proved by the probate, 97 act book, ib. note qualification of, 7, 10 appointor, of, entitled to administer, and liable to duty on, appointed fund in hands of trustees, 176 appropriation, his powers of, 143, 167 note arbitration, may submit to, 140 assets, admission of, by, effect of, 223 what amounts to, ib. attachment not granted against, for not performing rule entered into by testator, 206 INDEX. 337 'EXECXSTOB.— continued. auctioneer, may not charge for acting as, 233 bailee, a gratuitous, 218 banker, wliea liable for default of, 217 bankrupt, property helihy, in auter droit, does not pass to Ids trustee, 120 bequeath, cannot, what he has as executor, 119 bills accepted by attorney, liability of, ou, 205 borrowing, personally liable on contract of, 199 breach of trust, indemnified against, by concurring cestui que tnist, 254 jointly and severally liable for, 218 not liable for, to cestui que trust who concurs, is guilty of gross laches, or releases, 251, 253 by deceased, liability of, for, 195, 2tt3 note co-executor, liable for permitting, 21-t broker, charge of, for identification, allowed, 235 default of, when liable for, 217 business, carrying on testator's, liability of, 201 buy debts or legacies, may not, at less than their full amount, or the trust estate, 138, unless he has renounced, 139 can only be, where there is a will, 1 capable, must record refusal, or be cited, before administration granted, 63 of being, who is, 8 care expected of, 152, 207 clothing, charges for, not allowed, as against creditors, 235 co-executor, cannot deprive, of benefit of Statutes of Limitations, 215 contribution, may claim from, 254 liable for acts and defaults of, when, 207 ought to watch over and correct, ib. parting with control over assets to, when liable for, 21 1 proceed against, may, to restrain breach of trust, or have same made good, 264 prove, may, against estate of bankrupt, when, 265 collection of estate, duties of, as to, 152, 206 non-, liable for loss occasioned by, 206' colluding with debtor to estate, actions by beneficiaries against, 155 commission on collection of assets, not allowed, except in case of Indian assets, 233 compromise, compound, &c., has power to, 140, but not debts due by him- self, 141 condition, on, 7 consignee with profits. Court may appoint, 233 note contracts of testator, bound by, though not named, except where founded on personal considerations, 115, 184, 186 conversion of estate, duties of, as to, 152, 206 non-, liable for loss occasioned by, 208 counsel's advice little or no protection to, 225 creditors, allowed to stand in place of, 228 compounding, may not pay more than amount of composition to, 162 liable to, may be, where not to legatees, 219 z 338 INDEX. 'EXKCVIO^— continued. proceedings by, protected fvom, after judgment for adrainistra- tion, 245 protected by Statutes of Limitations against, 243 statutory advertisement for, bow far protected by, 245 damages, actions for, against, 189, 201 by, 113, 116 de son tori, action against, not abated by administration being obtained, 271 note acts of, how far binding on legal personal representative, 268 which will make a man, prevent him from renouncing probate, 13 administration, cannot be compelled to take out, 267 or account, cannot be sued for, in absence of legal personal representative, 265 agreement by, not binding on him, when he has become right- ful administrator, 269 note constitute a man, what will, 260-265 damages, may recoup in, 265 definition of, 259, 262 discharge, how obtained bj', 267 duties, liable for payment of, 266 executor acting before probate not an, 259 executors and administrators of, liable for devastavit of, 206 of administrators, who leased intestate's term, charge- able with rent, as, 116 liability of, extent of, 266, 272 of A, executor of, not liable for A's breach of contract, 188 one knowingly receiving property from an, not an, 263 pUne adminislravit, may plead, 265 note privileges, has no, 272 retainer by, as to, 271 rightful executor, semhle, cannot co-exist with, 264 sued, may be, by whom, 265 trustee of settled funds appointed by will, if he disti'ibute without intervention of executors, sejrible, an, 176 debtor appointed, no extinction of debt, 154 sue, may net, after complete administration by Court, without leave, ib. sued, may be, by beneficiary, ib. debts, liability of, for disregarding priority of, 159 note obliged to pay, 157, 184 or claims, may pay, on what evidence he thinks suiEcient, 140 payment of alleged, not really due, liable for, 214, 228 what, allowed to, 227 personally liable for, when, 175, 197 received in mistake, personally liable to refund, 201 record, of, bound to take notice of, 160 statute-barred, may pay, and will be allowed them against devisees of realty, 161 INDEX. 839 EXECUTOR— oo)iWnM«i. sued for, at once, may be, 185 definition of, 1 delegating office, liable for delegate, 218 devastavit, liable for, 206 direction, of Court, may apply for, 250 director, of, liability of, 194 discharged from executorsliip, cannot be, 257 note discretion, cannot exercise, after renunciation, 149 distribution of estate by, 176, 178 legacy by, 171 durante minore Mate, when a necessary party to action concerning estate, after infant of age, 220 each, may act singly, but cannot bind co-executors by contract, 62, 145 possessed of the whole personal estate, 119 election, may exercise testator's right of, 141 executor de son tort of, liable in same manner as, 267 of, devastavit, liable for, 206 represents first testator, when, 19 retainer by, 169 revocation of probate, may not take steps for, 105 similarity between, and first executor, 111 note special trust, cannot perform, 144 feeding testator's children, charges for, not allowed, as against creditors, 235 from or until a future time, 7 funeral expenses, liability of, for, 200 reasonable, allowed to, 227 found, who cannot be, " not competent," 53 gift intended, but not perfected, by testator, need not be completed by, 188 goods sold and delivered to, liability of, for, 199 gratuity to, void for uncertainty, 171 note infant, "not competent," 50 information, duty of, to render, 151 indemnity, action for, against, 190 by, 114 note clauses, how far protected by, 207 note, 211 note, 247 insure, not bound to, 157 interest charged against, when and at what rate, 229, 230 on advances, when entitled to, 235 investment, duties of, as to, 155 improper, liable for, 215 non-, when liable for, 214 powers of, has what, 141 vary, has no power to, independently of authority, semlle, 141 note judgments against, how payable, 159 in his own right, as to seizure of testator's goods under, 120 bound to take notice of, 160 lease, power of, to grant a, 132, 140 z 2 340 IXDEX. EXECUTOR— 80«i!t?MW(?. leaseholds, liability of, in respect of, 189, 247 onerous, duties of, as to, 155 title to, cannot make, pending an appeal concerning will, 133 legacy, liability of, to pay or deliver, 199 paid under revoked will, allowed to, 228 to, 171 infant may, and, semble, ought to, be paid into Court, by, 2i7 legatee, of, cannot disclaim bequests accepted by his testator, so as to avoid duty, 176 lessee of, bound by restriction against assignment, only if named, 133 note liability of, extent of, 189, 196, 197 not divisible, 218 Limitations, Statutes of, plead, may, though co-debtor has made payments on account, 193 need not, 161 protected by, when, 243 limited, may by implication be appointed geneva], in codicil, 6 every, may be sued by creditor, 184 note manager, when entitled to charge for, 233, 234 materials supplied to, liability of, for, 199 mesne profits decreed against, 189 misconception, expenses incurred under, allowed, 235 mortgage personal estate, has power to, 135, and sometimes real estate, 136, except where fraud, collusion, &c., ib. mortgagee, duties of, as to payment of mortgage debts, 16] note of, personally liable to refund money received in mistake on account of the mortgage, 201 note payable to order of testator, may indorse, 141 notice, need not give mortgagee, of prior chai-ge, though held by himself, 170' note office of, what acts show an intention to accept, 13 one, cannot abandon benefit of Statutes of Limitations, so as to bind co- executors, 245 opinion of Court may apply for, 250 owner of the testator's goods in point of law, 118 partner, of deceased, liability of, 190 discharge of, 192 passed over, may be, and letters of administration granted, 50 payment into Court by, under Trustee Relief Acts, 248 to parties not entitled, liable for, 216 penalty inouri-ed by testator, no action against, for, 189 personal estate vests in, 107 from testator's death, 124 rights to, vests in. 111 petition, may himself present, under Trustee Relief Acts, 248 powers, has ample, immediately after testator's death, 124 of, affected, how, by judgment for administration, 147, 162, 164 renunciation of co-executor, 148 exercise, cannot, after renunciation, 149 INDEX. 341 'E.XEGHIO'R— continued. sarvive to, on death of co-executor, 115 note preference, has right of, 162 profits, accountahle for all, 230 prohate, actions, cannot proceed far with, before, 126, except actions founded on possession or on his own contracts, 127 dying before, acts of, when valid, 125 purchaser need not pay purchase-money to, before, ib. sued, may he, before, if he have elected to act, 127 proved, who has not, may join in bringing actions with one who has, 97 purposes or properties, for special, 7 receipts, has power to give, 133, 135 note how far liable for, 210 receiver appointed against, when, 237 not himself appointed, 242 release, when entitled to a, 258 rent-charge, when protected against, 247 retainer, has power of, 162 residue, when trustee of, for next of kin, or Crowu, 179 revocation of probate, may not take steps for, 105 sale, how far liable for injudicious, 210 schooling, charges for, not allowed, as against creditors, 235 sell personal estate, has power to, 133, and sometimes realty, 136, except where fraud, collusion, &c., ib., hut not to himself, 138 settlement, poor-law, may qicd executor gain a, 120 protector of, may not be, 123 set-off, has right of, 222 shareholder, of, liability of, 193, 204 similarity between, and administrator, 107 solicitor, acting as, rights of, 231 default of, when liable for, 217 payments t \ allowed what, 234 special case, may concur in, 250 specific performance decreed against, 185 at suit of, 113 spiritual person, of, liability of, 195 sue or be sued, may not, in formd pauperis, 147 suing himself in another capacity, 147 co-executor, 147, 254 tenant for life, liable for over-payments to, but may recover back from, 210 tenor, according to the, 5 time, cannot usually claim allowance for, 235 title and authority of, derived from will, 124 absolute, may acquire, by paying value of assets to creditors, 166 note trouble, cannot usually claim allowance for, 235 trustee, conversion of, into, 256 of, cannot exercise personal trust or power, 145 stands on no higher ground than trustee, 144 Use and occupation, liable for, 199 valuation of estate by testator, not bound by, 227 342 INDEX. EXECUTOR— coniMiMCf?. waste, oommitted ty deceased tenant for life, no action against, for, 189 work done, liability of, for, 188, 199 And see Administration, Bankkupt, Bankeuptcy, Costs, Makmed 'Woman, Renounce, Renunciation, Revocation. EXECUTORS, joint, one person in law, 119 transfer of stock, all must join in, 145 note who have proved, may sue alone, 147 need not always join in suit, ih. FELON. See OuTLAVT. FIRM, a, may be executors,. 11 FORFEITURE of term, alienation by death works no, 107 And see Outlaw. FORGERY, instrument, of, under which executors or administrators pay money, 217 probate, of, may be shown in any Court, 98 note will, in a, no ground for impeaching the probate, except in Court that granted it, 98 FRAUD, of others, when executors and administrators liable for, 217 revocation of probate or administration, gi-ound for, 102 sale or mortgage by executors or administrators vitiated by, KS will, in a, no ground for impeaching the probate, except in Court that granted it, 98 FRIENDLY SOCIETY, debt owing by deceased officer of, statutory priority of, 159 FUNERAL expenses, liability of executors and administrators for, 200 priority of, 158 reasonable, allowed, 227 And see Bueiai, of Deceased. GIFT intended, but not perfected, by deceased, executors and administrators need not complete, 188 INDEX. 343 GOODWILL, executors of deceased partner entitled to share of value of, 109 GOODS sold and delivered, liability of executors and administrators for, 199 GUARDIAN, grant of administration to, 32, 57 testamentary, has prior right to guardian elected, 32 GUARANTEE, executors and administrators liable on deceased's, 185 HEIR, house of, executors and administrators can enter, 133 real estate coming from intestate, need not account for value of, 180 note what chattels pass to, 108 HUSBAND, rights of, as regards grant of probate or administration to wife, 9, 43, 54 note And see Widowek. INDEMNITY, action for, against executors and administrators, 190, 194 by executors and administrators, 114 note clauses, how far a protection, 207 note, 211 note, 247 INDIAN assets, commission allowed on collection of, 233 probate, value of, here, 96 securities, English probate extends to certain, 97 INFANT administrator not liable to account for receipts during infancy, 219 assent by, how far operative, 253 capacity of, as to, for grant of probate or administration, 8 executor "not competent," 50 fraud, not protected by disability from consequences of Lis, 254 legacy to, discharge for, 177, 247 paid into Court, may and, semhle, ought to be, 247 INFIRMITY no ground of revocation of administration, 104 INJURY to property by deceased, action against executors and administrators for, 189 of deceased, action by executors and administrators for, 116 INNKEEPER, executors and administrators of, liable for his negligence, 185 344 INDEX. INQUIRIES as to whether one has acted as executor directed, 13 INSOLVENCY . no gi'ound for refusing prohate, 10 INSURE, executors and administrators need not, 157 INTEREST, advances, on, when allowed executors and administrators, 235 charged against executors and administrators, when and at what rate, 229, 230 compound, only where money employed in husiness, 229 compound, to hankers, disallowed executors and administrators, 230 contingent, transmissible to executors and administrators, 110 costs, on, disallowed executors and administrators, 235 executory, in real estate, 110 grant of administration follows the, 39, 41, 55, 57, 60 legacy, on, from what time, 170 note legatees need not refund with, 178, 183 INTERMEDDLING, executor (U son tort, slight, constitutes one, 260 sliglit, fixes one as, 13 one not compellable to take administration after, 34, 267 penalty on, without taking probate or administration, 16, 27 what is, 13, 260 INVENTORY, contents of, 151 executor or administrator must discharge himself of, 150 note executors and administrators must render, if required, 150 what interest justifies calling for, ib. INVESTMENT, duties of executors and administrators as to, 155 improper, executors and administrators liable for, 215 non-, when executors and administrators liable for, 214 powers of, executors' and administrators', 141 scale in, to be held evenly, where successive estates limited, 156 vary, semble, executors and administrators have no power to, independently of authority, 1 41 note JOINT contract, profits of, in which deceased was interested, 109 owner, property of which deceased was, does not devolve on his executors or administrators, except partnership property, 108 INDEX. 345 JUDGMENT, confess, executor or administrator may, so as to give preference, but not to trustee for creditors, 162 one executor may eflfectually, 145 decree in equity equal to, 159 obtained before, has priority over creditors under decree, 159 note executor or administrator, against, by confession or default, an admission of assets, 224 for simple contract debt has priority over specialty debt, 161 note in own right, as to seizure of deceased's goods in execution of, 120 order nisi to sign, gives no priority, 160 JUDGMENTS, executor or administrator, against, precedence amongst, 159 notice of, executors and administrators bound to take, 160 testator, against, jirecedence amongst, 159 JURISDICTION, administrator out of, judgment for administration cannot be had against, 220 all judges of High Court have same, 26, 128 to grant administration, 25 probate, 23, 24 note, 25 stay proceedings in actions by executors and administrators before probate and administration, 127, 132 KING may be appointed executor, and nominate substitute, 8 LACHES, payment to person not named in probate or administration is, 105 And see Delay. LEASE, liability under, court jTotects executors and administrators from, when decreeing against them specific performance of agrce- raeut by deceased to take, 185 offer to surrender is some protection against, 108 note where void lease granted by deceased, 189 note power of executors and administrators to grant, 132, 140 And see Leaseholds, Teem. LEASEHOLDS, , occupation of, by executors and administrators, presumably an assent to terms of original con- tract, 190 their liability for, 199 onerous, duties of executors and administrators as to, 155 And see Lease, Tekm. 346 INDEX, LEGACY, administration, gi'ant of, limited to, 87 appropriation of particular fund to meet, 143 assent to. See Assent. Ijiiy, executor or admini-strator may not, at less than full amount, 138 discharge for, how obtained, 176 distribution of, by executor, 171 legatee, 176 executor disentitled to receive, by misconduct, 173 presumably takes, qud executor, 173, subject to rebuttal, 17i must act, in order to have, 172 how condition fulfilled, ih. transmit to Commissioners particulars of his, 175 note to, condition to pay debts, when imposed on, 175 may not be renounced, in order that commission may be chargedi 234 forged, executor has no remedy in respect of, if he has not excepted it from probate, 98 infant, to, may be paid into court hj executor, 247 interest on, 170 note, 173 note liability of executors to pay or deliver, 98, 199 preference, executor has no, in respect of his, 171 raise, executor's power to, by sale or mortgage of realty, 136 revoked will, paid under, allowed executors, 228 set-off against, 222 qij., whether any, against specific, 223 specific, applied in payment of debts, not to be, 157 got in, should be, at expense of general estate, 152 note legatee may select, 171 sale or mortgage of, by executor, as to, 134, 136 time, within what, to be paid, 170 vest, does not, without executors' assent, 121 work done in expectation of, executors and administrators not liable for, 188 LEGATEE, duty, recovery by executors and administrators of, from, 178 legacy may not be disclaimed by executor of, if accepted by, so as to avoid duty, 176 taking possession of, without executor's assent, liable to action of trespass, 118 pecuniary, need only give simple receipt, 258 refunding by, as to, 177 residuary, administration cum testamento annexo, usually entitled to grant of, 54 Court may select one, out of several, for purpose of taking grant of administration, 66 payment of, executor may not trust co-executor for payment of, 213 INDEX. 347 L'EGATK'E— continued . represent, who may, for purpose of taking grant of administra- tion, 57 sue executor de son tort, may, 265 LETTERS admitted to probate, 1 of administration. See Admini.steation". LIMITATIONS, STATUTES OF, acknowledgment by executors and administrators, sufficient to take case out of, what is, 244 one executor sufficient to take case out of, does not bind co-executors, 245 action not barred by, may be barreAby acquiescence, &c., 118 analogy of, no answer by executor to breach of trust by testator, 243 note debts baiTed by, executors and administrators may pay, and will be allowed them against devisees of realty, 161 plead, executors and administrators may, thougli co-debtor witli deceased has made payments on account, 193 need not, 161, 167, 227 married woman executrix or administratrix can, without husband, 243 note whether others than executors and administrators may, against creditors, in administration action, 161 note run against executors and administrators, when, 118 in favour of executors and administrators, when, 243 LUNATIC incapable of being executor or administrator, 8 where one of co-executors or co-administrators becomes, probate or adminis- tration revoked, and fresh grant made, 75, 103 sole executor or administrator becomes, administration granted durante dementid, 74 MAINTENANCE. administrator ^(!?i&nendente lite, 66 retainer against, executors and administrators have no right of, 166 surviving partners, against, at instance of executors of deceased partner, 109 noUj A A 354 INDEX. EECOGNISAKCE, priority of, 160 wlint is, ib. EECJMENTAL DEBTS, statutory priority of, 159 RELATION OF ADMIKISTKATOK'S TITLE, 130, 132, 271 note divest interest in stranger, does not, 112 note fiction, a, 130, 131 note justification of, 131 qualified hy Parke, B., ib. RELEASE, one executor, by, effeutual, 145 protection to executors and administrators, how far a, 253 requisites of, ib. right of executors and administrators to a, 258 KENOUNCE, administration, one entitled tn, may, subject to a husband's rights, 3i administrator, limited, cannot, a benefit to deceased's estate, 65 agreement to, executor not bound by, 15 creditor executor, if he, does not lose his rights as creditor, 17 executor may, -when, 12 former will, executor of executor cannot, if he pi-ove former, 15 And see Eexuxciation. RENT, executor of administrator, who leased intestate's temi, chargeable with, as executor de son tort, 116 recovery of, by executors and administrators, and executors of executors, ib. specialty debt, a, 161 EENT-CHAEGE, when executors and administrators protected against, 247 EENUNCIATIOX, acting, not allowed after, 12, 14 answer in Chancery, by, not a refusal of ofiicc, 15 binding, requisites of a, 16 discretions, executor cannot exercise, after, 149 filing a, a refusal of oihce, 15 invalid, may be declared, 18 one executor, by, effect of, on exercise of powers tind discretions by re- maining executors, 149 partial, not allowed, 14, 107 powers, executor cannot exercise, after, 149 purchase the asccts, executor may, after, 139 recorded, must be, or executor consent, before administration will he "ranted, 53 INDEX. 355 RENUNCIATION— co/iCi-jiHs,?. retractation of, Court not bound to allow, 17 followed by second renunciation, 18 time, must be within what, 17, 35 rights of executor wholly cease on, 20 And see Eenoxtkce. REPRESENTATION of deceased, prcfeeeding in absence of, 84 right of, in distributing intestate's estate, 180 And sec Administkatiox ad litem, Admikistkatoe ad liteif, Office. RESEALING of Englisli jirobates and letters of administration, 97 Irish probates and letters of administration, and Scotch confirmations, 95 RESIDUE, distribution of, by administrators, 180 executors, 178 executor may take gift of, without proving, ih. takes, as trustee for next of kin, or Crown, when, 179 RETAINER, RIGHT OF, 163 administration, judginent for, does not take aw.aj', 164 administrator de bonis nou has, 163 note durante minore celate has, ib. may be put on terms not to exercise, 164 note annuity, none in respect of, 175 assets, coming to hand after decree, out of, 164 in Court, out of, 165 legal, only out of, 164 conduct, improper, may interfere with, 165 costs of plaintiff, prevails against, ib. Court not disposed to extend, 164 debts, in respect of what, 166 — 169 disputed, not gone into by chief clerk without special directions, 165 note distribution of assets, may be asserted any time before, 165 executor de son tort, by, as to, 271 of executor has, in respect of debt owing by first testator, 109 joint executors and administrators, none between, ib. Judicature Act does not affect, 169 justification of, 163 note legacy, none in respect of, 171 money claimed under, not ordered to be paid into Court, 164 note one to whose use administration is granted to another has, 163 note probate, may be exercised before, semble, 1 68 proceeds of estate devised in trust to sell and pay debts, none out of, 167 receiver, none against, 166 theory of, 163 unascertained amount, in respect of, 168 356 INDEX. RETKACTATION. Sec Re>,'unciation. REVOCATION, earlier gi-ant, of, whether later grant ia per se a, 104 probate or administration, of, effect of, 105, 106 none, in order to deprive administrator of right of retainer, 104 without good cause, ib. on appeal, 102 assignment by limited owner (adminis- trator) of his interest, 104 gi'ound of difficulty, 103 fraud, mistake, &c., 102 having been granted pending caveat, 103 lunacy, 75, 102 where creditor had settled his own debt, and gone away, 104 temporary gi'ants, of, not to pj-ejudice proceedings by or against adminis- trator, 106 RIOT, injury bj', to deceased's leaseholds, action by executors and administrators in respect of, 116 note SALE, duties of executors and administrators on a, 139 injudicious, liability of executors and administrators for, 210 manner of, by executors and administrators, 139 one executor, by, effectual, 145 power of, executors' and administrators', 133, 136 mortgage, in, exercisable by administrator of transferee, 140 with, executors and administrators may give, 135 undervalue, set aside on ground of, 138 note SAVINGS' BANKS, debt owing by deceased officer of, statutory priority of, 159 SCHOOLING, charges for, not allowed executors and administrators, as against creditors, 235 SECURITY, justifying. See Bonp. personal. See Pebsonal SEcrniTY. SET-OFF, executors' and administrators' right of, 222 INDEX. 357 SETTLEMENT, poor law, may he gained by executors and administrators as such, 120 protector of, executor or administrator as such cannot be, 123 SHABEHOLDEB, deceased, executors and administrators of, liabilities of, 193, 204 rights of, 111 SHEBIFF, actions against, executors and administrators have, 112 executors and administrators of, liable for non-payment of levy, 185 SOLICITOR, articles, dying before expiration of, qy. , whether clerk can recover part of premium from executors and administrators of, 188 note default of, when executors and administrators liable for, 217 executor or administrator acting as, rights of, 231 lien of, priority of, 161 negligence of, action for damages in respect of, by, 114, and against, 185, executors and administrators payments to, what, allowed to executors and administrators, 234 Treasury. See Cr.owK. SPECIAL CASE, executors and administrators may concur in, 250 SPECIFIC PEBFORMANCE. Sec Coxtt!.\ct. STAMP DUTY. ,SV Duir. STATUTES, 21 Hen. 8, c. 5, pp. 27, 150 32 Geo. 3, c. 57, pp.115, 188 42 — c. 99, s. 2, p. 176 58 c. 81, ss. 1, 2, pp. 62, 64 7 Ceo. i; , c. 46, ] p. 190 3 & 4 Wi m. 4, c. 27, ss. 6, 27, pp. 118, 252 — — c. n, s. 27, P- 123 5&6 - — c. 54, s. 2, ; p. 38 13 & 14 Vict., c. 35, ss. 1, 15 , p. 250 15 e. 3,1 p. 45 16&17 c. 51, ss. 1, 44 , p. 175 20&21 c. 77, s. 23, . P- 27 c. 85 S. 21; , PP . P- 1. 38, 177 23&24 c. tJUj 38, B. isi 244 24&25 c. 121 I, S. i: iP- 45 25&26 e. 89, .s. 165, p i. 194 28 &29 c. 86, p. 204 c. 104 I, pp. ss. 2, 175 3, 176 g3&34 c. 35, 4, 6, 7, p. 117 c. 93, s. 7, p. : 177 34 & 35 Vict, c. 43, ss. 3, 36, 58, 60, p. 195 338 INDEX. STATUTES— conM)jMerf. 35 & 36 Vict., 0. 96, p. 195 36 & 37 - — - 0. 66, ss. 16, 34, rp. 25, 27 38 & 39 e. 87, s. 48, p. 108 And see Appendix. of Limitations. See Limitations, Statutes of. STAY OF PKOCEEDINGS in action by administrator, none upon suggestion of will aboiit to be proved, 99 creditors after judgment for administration, 245, 251 executors or administrators before probate or administration, 127, 132 none on gi'ound that they intend to misapply money, when re- ceived, 153 note SURRENDER by one executor effectual, 145 TENANT FOR LIFE, executors of, recovery of rent by, 116 note over payments to, executors and administrators liable foi-, but may recover back from, 210 waste by, no action for, against executors and administrators, 189 TERM, alienation by death no forfeiture of, 107 note sun-ender of, by executors and administrators, 108 note vests in lessee's executors and administrators, 107 And see Lkase, Leaseholds. TIME, no allowance usually made to executors and administrators for, 235 not material, where express trust, 253 TITHE-PAYER, actions against, executors and administrators have, 112 TORT done to deceased, how far executors and administrators represent him in respect of, 115 executor de son. See Executok de son tort. TRADE. See Business. TRANSFER OF STOCK. all executors must join in, 145 note TRESPASS, actions of, at suit of executors and administrators, and executors of executors, 112, 118 INDEX. 359 THOUBLK, no allowance usiuiUy made to executors and ailmini.-itratorS for, 235 TROVEE, actions of, at suit of executors and administratoi-s, and executors of executors, 112, 118 TliUST, bi-eacliof, by co-executor, executor liable for permitting, 21-1 may take proceedings to restraiu, or have made good, 254 deceased, executors and administrator-, liable for, 195, 243 note partnership, executors and administrators of deceased parli.er liable for, 191 e:cecutors and administrators iudenmifie.l against, by concurr.'ng cestui que trust, 254 not liable for, to cestui qiu trust who concurs, is guilty of gross laches, or releases, 251, 253 express, time not material where, 253 TRUSTEE, administration to, grant of, 44, 56, 57, 74 administrator never a, in a proper sense, 253 bare, intestate, estate of executors and administrators of, 108 death of sole, on, trust personalty vesta in his executors or administrators, 107 note executor or administrator of, cannot exercise personal trust or power, 144 need not act in trusts, 107 note stand in no higher position thau, 144 converts himself into, when, 256 stranger employing trust funds in trade, with notice of trust, not account, able as a, 204 note VALUATION of his estate by deceased not binding on executors or administrators, 227 WASTE committed by deceased tenant for life, no action against executors or adminis- trators for, 189 WIDOW and next of kin, grant of administration to, 41 right of, to administer to deceased husband, as against next of kin, 40 WIDOWER, extent of right of, to administer to deceased wife, 37, 53 right of executors and administrators of, to administer to his deceased wife, 39 360 INDEX. AVILL, i calling ill question a, no limitation of time as to, 29 construction of, as to, by Probate Division, 55 not« creditor cannot oppose, unless he is administrator, 48 discovery of, a ground for revocation of administration, 105 evidence, executors now competent to give, concerning, 12 itself no, 93 execution of, due, proved by probate, 97 form, need not be such in, 1 kinds of, what) entitled to probate, 23 lost, administration limited in respect of, 86 propound u, to, is not to inteiineddle, 13 unsuccessfully a, to, does not disentitle from administration, 43 revocation, forgejy, or suppression of, or making of later, grounds of revoca- tion of probate or administration cum tatamcnto annexo, 102 thirty years old proves itself, 98 note WORK done for deceased in expectation of legacy, executors and administrators not liable for, 188 WRONG. See Tokt. THE END. BRUDtVUr, AONEW, it CO., PBINTEliS, WUriEtKIAHS.