23 & 24 Vict. c. 15, s. 4. Personal estate appointed by will under general powers to chargeable with ventory duties. by law upon probates of Wills and letters of administration with a Will annexed in England and Ireland, and upon inventories in Scotland, shall be levied and paid in respect of all the personal or movable estate and effects which any be person hereafter dying shall have disposed of by Will, probate and in under any authority enabling such person to dispose of the same, as he or she shall think fit; and for the purpose of this Act such personal or movable estate and effects shall be deemed to be the personal or movable estate and effects of the person so dying in respect of which the probate of the Will, or the letters of administration with the Will annexed, of such person are or is granted, or the inventory is or is required to be exhibited or recorded, as the case may be; and such estate and effects, and the value thereof shall accordingly be included in the affidavit required by law to be made on applying for probate or letters of administration, in order to the full and proper stamp duty being paid." Probate and in ventory duties in respect thereof to be a charge on the property. Sect. 5. "The said last mentioned duties shall be a charge or burden upon the property in respect of which the same are so payable, and shall be paid thereout by the trustees or Owners thereof to the person for the time being lawfully having or taking the burden of the execution of the Will or testamentary instrument, or the administration or management of the personal or movable estate and effects of the deceased, for the benefit of the persons entitled to the personal or movable estate and effects of the deceased." which the testator had merely a power of appointment. Platt v. Routh, 6 M. & W. 756, affirmed in the House of Lords, sub. nom Drake v. Att.-Gen., 10 Cl. & Fin. 257. The contrary had previously been held in Palmer v. Whitmore, 5 Sim. 178, and in Att.-Gen. v. Staff, 2 Cr. & M. 124. END OF PART THE FIRST. 759 *PART THE SECOND. OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR. BOOK THE FIRST. OF THE TIME WHEN THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR VESTS: AND OF THE QUALITY OF THAT ESTATE. In considering the nature of the estate which an executor or administrator has in the property of the deceased, it is proposed to inquire, 1. At what time his estate vests; 2. The quality of his estate. CHAPTER THE FIRST. OF THE TIME WHEN THE ESTATE OF AN EXECUTOR OR ADMINISTRA TOR VESTS.† tor. As the interest of an executor in the estate of the deceased is derived exclusively from the will (a), so it vests in Estate of executhe executor from the moment of the testator's death (b). Thus where the demise by an executor, the lessor of the plaintiff in ejectment, was laid two years before he had proved the will under which he claimed, it was held good (c). So where a testator had given a bailiff authority to distrain, but died almost immediately before the distress was taken: and, after *it had been taken in his name, his executor ratified the distress; it was held that the plaintiff might well avow as the bailiff of the executor: because the rent was due from the estate, and the law knows no interval between the testator's death and the vesting of the right in his executor: as soon as he obtains probate, his right is considered as accruing from that period (d). + See American note at end of this Chapter. (a) Ante, p. *243. (b) Com. Dig. Administration (B. 10). Woolley v. Clark, 5 B. & A. 745, 746. (c) Roe v. Summersett, 2 W. Black. 692. (d) Whitehead v. Taylor, 10 A. & E. 210. On the other hand, an administrator derives his title wholly from Estate of adminis- the court: he has none until the letters of administration are granted, and the property of the deceased vests trator. in him only from the time of the grant (e). Accordingly, no right of action accrues to an administrator until he has sued out letters of administration. In an action on a bill of exchange by an administrator, where the bill was accepted after the death of the deceased, and the acceptance, and also the day of payment, was more than six years before the commencement of the suit, but the granting of administration was less than six years before, it was held that the Statute of Limitations began to run from the date of administration, and not from the day of payment, since there was no cause of action until the administration was granted (ƒ). So where to a declaration in trover by an administrator, alleging the grant of letters of administration to the plaintiff, and that the defendant knowing the goods to have been the property of the intestate in his lifetime, and of the plaintiff as administrator since his death, afterward, and after the death of the intestate, to wit, on, &c., converted the same goods, it was pleaded that the defendant was not guilty of the premises within six years, such plea was held bad upon special demurrer, on the ground, that although it might be true that the defendant was not guilty within six years, yet the cause of action might have accrued to the plaintiff by the grant of letters of administration within that period (g). The proposition, however, respecting the vesting of an administrator's interest, must be taken with some qualification; for it seems clear that, for particular purposes, the letters of administration relate back to the time of the death of the intestate, and not to the time of granting them (h). Thus, although it has been held that detinue. cannot be maintained by an administrator against a person who has got possession of the goods of the intestate since his death, but has ceased to hold them prior to the grant of administration (¿), yet an administrator may have an action of trespass (j) or trover for the goods of the intestate taken by one before the letters granted unto (e) Woolley v. Clark, 5 B. & A. 745, 746. (f) Murray v. E. I. Company, 5 B. & A. 204. Post, Pt. V. Bk. I. Ch. I. (g) Pratt v. Swaine, 8 B. & C. 285. (h) Godolph. Pt. 2, c. 20, s. 6. 2 Roll. Abr. 399, tit. Relation (A.), pl. 1. 2 Roll. Abr. 544, Trespass (T.), pl. 1. (i) Crossfield v. Such, 8 Exch. 825. him; otherwise there would be no remedy for this wrongdoing (k). So where goods had been sold after the death of an intestate and before the grant of letters of administration, avowedly on account of the estate of the intestate, by one who had been his agent, it was held that the administrato might ratify the sale and recover the price from the vendee in assumpsit for goods sold and delivered (). And accordingly it should seem that whenever anyone acting on behalf of the intestate's estate, and not on his own account, makes a contract with another before any grant of administration, the administration will have relation back, in order not to lose the benefit of the contract, so that the administrator may sue upon it, as made to himself (m.) And so if, during the time when there is no personal representative of the estate of a deceased person,*services have been rendered which not only were for the benefit of the estate, but also were rendered under a contract with someone who subsequently by becoming administrator became authorized to bind the estate, and ratified the contract, the estate of such deceased person is liable for such services (n). Further, it has been held on the bare doctrine of relation, that in a case where the administrator might maintain trover for a conversion between the death of the intestate and the grant of administration, he may waive the tort and recover as on a contract: Thus, where money belonging to an estate at the time of his death, or due to him and paid in after his death, or proceeding from the sale of his effects after his death, has, before the grant of administration, been applied by a stranger to the payment of the intestate's debts and funeral expenses, the administrator may recover it from such stranger as money had and received to his use as administrator (o). So it should seem the grant of administration will have the effect of vesting leasehold property in the administrator by relation, so as to enable him to bring actions in respect of that property, for all matters affecting the same subsequent to the death of the intestate, and so as to render him liable to account for the rents and profits of it from the death of the intestate (p). *Again, although an executor de son tort cannot plead (k) Foster v. Bates, 12 M. & W. 233, per Parke, B. Searson v. Robinson, 2 Fost. & F. 351. (1) Foster v. Bates, 12 M. & W. 226. (m) Bodger v. Arch, 10 Exch. 333. (n) In re Watson, Er parte Phillips, 18 Q. B. D. 116, affirmed in the Court of Appeal, 19 Q. B. D. 234. See, however, the remarks of Lord Esher, M. R., in his judgment on appeal, who doubted whether an administrator after becoming administrator, and while acting in the interests of other persons, could have ratified a prior contract made with himself. (0) Welchman v. Sturgis, 13 Q. B. 552. a retainer of his own debt, yet if, even pendente lite, he obtains administration, he may retain: for it legalizes those acts which were tortious at the time (q). And there has been already occasion (r) to point out other acts of an administrator before administration granted, which the relation of the letters in Come measure renders valid. But the relation of the grant of administration to the death of the intestate, shall not, it is said, divest any right legally vested in another between the death of the intestate and the commission of administration. Thus, in Waring v. Dewbury (s), a landlord who had rent due to him, died intestate; after which the plaintiff in the action sued out execution against the defendant, who was the tenant, and levied the debt upon him; after this, administration was committed to J. S.; who thereupon came into the court, and moved for a rule on the sheriff to pay him a year's rent out of the money levied, pursuant to the 8 Ann. c. 17, urging, that though he was not administrator at the time of serving the execution, yet as soon as the administration was committed, it had relation to the death of the intestate, and he might bring trover for goods taken between the death of the intestate and commission of the administration: But the court held, that relations which are *but Lord Ellenborough's judgment. So it is laid down in Selw. N. P. 717, 6th edition, that in ejectment by an administrator, the demise may be laid on a day after the intestate's death, but before administration granted; for the administration, when granted, will relate back, and show the title to have been in the administrator from the death of the intestate. This point was expressly decided accordingly, by the Court of K. B. in Ireland, after a full consideration, in Patten v. Patten, T. 3 W. 4. 1 Alcock & Napier, 493: and Bushe, C. J., in delivering judgment, regards this decision as reconcilable with that of Keane v. Dee (K. B. Ireland, June, 1821), 1 Alcock & Napier, 496, note (1), in which case it had been holden that an administrator could not justify a distress for rent (accrued out of a chattel term of the intestate after his death) made before the grant of the administration, on the ground that al though letters of administration will operate by relation, to enable an administrator to recover a chattel property from the time of the death of the intes tate, yet it does not effectuate a legal proceeding, taken before administration granted, in order to recover such property. See, however, Bacon v. Simpson, 3 Mees. & Wels. 87, in which case an administratrix, before she had taken out administration, had contracted to assign a term for years of the intestate in a leasehold house; and Parke, B., was of opinion, that an allegation, that she was lawfully possessed of the term at the time of the making of the contract, could not be supported. See also ante, pp. *342, *343. (9) Curtis v. Vernon, 3 T. R. 587, 590. (r) Ante, pp. *344, *345. (8) Gilb. Eq. Rep. 223, cited by Strange, arguendo, in Rex v. Mann, S. C. 1 Stra. 97. |