the latter class of her choses in action, although he will hold them merely in trust for the husband's legal personal representative.1

The powers of a of a legal personal representative to distrain for rent which had fallen due to the deceased in his lifetime were formerly limited; but it has been provided by statute 3 & 4 Will. IV. c. 42, s. 37, that "it shall be lawful 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;" and by the following section (s. 38), that "such arrearages may be distrained for after the end or determination of such terms 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 determination 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."

As a legal personal representative can make a good title to any part of the estate of the deceased which comes to him, he may dispose of the leasehold estates of the deceased, even against a specific legatee, to whose legacy he has not assented, or he may make underleases, which shall be good. But this power of disposing of terms of years may be curtailed by the terms of the original demise of the term, restricting assignment or underletting without the consent of the landlord. In such a case a clause of forfeiture does not operate by the fact of the estate of the lessee in the term vesting in his legal personal representative, nor by the latter disposing of it if the restraint upon alienation only extended to the lessee, but if the condition was upon alienation by the lessee or his executors or administrators, then it seems the executor or administrator will incur

a forfeiture upon alienation without consent,1 and equity would not relieve.2

The legal personal representative can pass notes and bills payable to the deceased by indorsing and delivering them himself, but there must be both indorsement and delivery.3

If the deceased had entered as assurer into a contract of assurance, the legal personal representative may and ought to reinsure, lest by taking the risk of the contract a great loss should fall upon the estate.* On the decease of a person insured against loss by fire the right to the contract of insurance and the benefit of it passes to the person becoming entitled to the property insured, i.e., the real or personal representative of the deceased, as the case may be.

Where there are several executors, they together make up the representation to the estate of the testator, but each of them acting as executor has, generally speaking, the powers of a sole executor. Thus, without the consent of the others, one may sell, grant, give, or release any part of the estate, and the act will bind the non-consenting executors.5 Similarly, one executor may assent to a legacy, even to his own legacy, and the property will thereby be validly transferred to the legatee. But in a peculiar case, where one executor assigned a chose in action to a creditor of the estate, it was held that the dissenting executors were not bound. In that case the judgment was rested upon the fact that the thing assigned was merely a right

to sue.

The act of one executor cannot place a new and personal liability upon another executor who does not participate in the act, so that one shall not be bound by the other entering and using or taking the profits of a leasehold estate, nor by the other entering into a contract with a third person.8

When one of several executors or administrators dies, the rights, estate, and powers of the office survive to the survivors or survivor. It seldom happens that joint administrators are appointed, and it has been a subject of doubt whether, if several administrators are appointed, one of them has the same power of disposition as one of several executors, or whether the concurrence of all of them is required to the performance of the acts of their office.1

But one of several joint executors or administrators cannot sue alone as such. They must all be joined as co-plaintiffs.

It has been provided by statute that where lands are willed to be sold by executors, or devised to executors to be sold, and some of the executors renounce, the others may sell.2 In similar cases the power may generally be exercised upon the death of one or more of the donees of the power by the survivors, unless the power was given to them nominatim, in their individual, not in their official capacity. In some cases a power given to several executors has been held exercisable by the last survivor. But there are questions of difficulty upon the constructions of powers which will be found treated at length in the text-books upon Powers. A similar question arises when the executor, donee of a power, has died, whether the executor's executor can exercise it, and it may be found exercisable by the latter unless a confidence, personal to the donee, appears to have been placed by the creator of the power. But a power coupled with an interest, i.e., the power given to one who is also interested in the property, the subject of the power, survives him, and may be exercised by any of his assigns. And generally, when an executor has a power to sell, his executor has it also, if he has to distribute the proceeds of the sale.

In all matters pertaining to the office, an executor of an executor, or an administrator de bonis non, has the same

powers and rights as an original legal personal representative of the deceased. The limitations which exist upon. the powers and rights of persons having grants of limited and special administration have been already referred to. And it has already been stated that a married woman cannot take upon herself the office of executor or administrator without the consent of her husband, because he is liable for her administrative acts. For the same reason, when she has assumed the office, she cannot do any act of administration without his consent; and if she do attempt to deal with the estate without his consent the act is void; and if a grant, gift, sale, or release, passes nothing to the person with whom she attempts to deal. But in a late case, amidst much difference of judicial opinion, a payment by a debtor of the testator to a co-executrix whose husband refused his consent to her acting, and who was therefore refused probate, the payment being made bonâ fide, but with knowledge that the lady was married, was held a valid payment against the executor.1 But the husband has, in right of his wife, a power of disposing of and dealing with the estate without his wife's concurrence, and his acts are valid against her.2 Only, if he sues for a debt due to the estate, he must join his wife with him, unless he has made the debt his own, as by obtaining for good consideration a promise by the debtor to pay him only, or by taking a bill of exchange for the debt and suing on the bill.3

1 Pemberton v. Chapman, E. B. & E. 105.

2

Wood v. Stacy, 3 De Gex, F.

& J. 125.

3 Aubustein v. Clarke, 4 T. R. 616.

CHAPTER X.

THE DUTIES OF THE LEGAL PERSONAL REPRESENTATIVE.

The Funeral.-The first duty of the executor is to bury the deceased, and in performing this duty he must take care that he does not spend more upon the funeral than the rank and condition of the deceased warrant; for if the funeral charges are extravagant, a part of them may be disallowed upon the passing of the accounts. This is especially so when the deceased has died insolvent. In such a case it was long the custom of the Courts to allow the executor no more than £5 or £10 for the funeral;1 but there is no such rule now, for the sum which is reasonable and which will be allowed must vary in various cases. Where an executor provided and charged for mourning for the widow and family, he was disallowed that item.2

The Inventory.—By a statute of Henry VIII. c. 5, executors and administrators were ordered to make an inventory of the goods of the deceased, and to deposit a copy thereof with the ordinary; but an inventory is not now usually exhibited except in contentious matters, when "a true and perfect inventory of all the goods, chattels, credits of the deceased came to the hands, possession, or knowledge" of the personal representative is to filed in Court, and this inventory may be required to be filed by any creditor, legatee, or next of kin interested, or appearing to be interested, even in contingency, in the assets. But lest

1 Hancock v. Podmare, 1 B. & Ad. 260.

2 Johnson v. Baker, 2 C. & P.

207.

3 Middleton v. Rushout, 1 Phil. 244.