them; and he may dispose of them as he pleases, without being guilty of any devastavit (s)

*So, if the debt due to him from the testator amount to the full value of all his effects in the executor's hands, there is a complete transmutation of the property in favor of the executor, by the mere act and operation of law: in the former case, his election, and in the latter the mere operation of law, shall be equivalent to a judgment and execution; for he is incapable of suing himself (t).

So, in the case of a lease of the testator, devolved on the executor, such profits only as exceed the yearly value shall be held to be assets: it therefore follows, that, if the executor pay the rent out of his own purse, the profits to the same amount shall be his (u).

There are likewise other means of thus changing the property: as if the testator's goods be sold under a fieri facias, the executor, as well as any other person, may buy such goods of the sheriff; and in case he does so, the property which was vested in him as executor shall be turned into a property in jure proprio (x).

Again, if the executor among the testator's goods find and take some which were not his, and the owner recover damages for them in an action of trespass or trover, and the judgment is followed by satisfaction, in this, as in all similar cases, the goods shall become the trespasser's property, because he has paid for them (y.)

If an executor or administrator makes an underlease of a term of years of the deceased, rendering rent to himself, his executors, &c., though he has the term wholly in right of the intestate, yet, when he makes this lease, he has power to dispose of the whole; and by making a lease of part, he appropriates that to himself, and divides it

(8) Merchant v. Driver, 1 Saund. 307. Chalmer v. Bradley, 1 Jac. & Walk. 64. Vanquelin v. Bouard, 15 C. B., N. S. 341, 372. However, in Hearn v. Wells, 1 Coll. 333, Knight Bruce, V.-C., said he could not accede to the proposition that an executor has a right in equity to acquire as a purchaser an absolute title to specific chattels by intending so to deal with them, and by paying the testator's debts to an amount exceeding the value of those chattels : Whatever might be the rule of law upon a plea of plene administravit, he apprehended that not to be the rule in

equity His honor did not agree that in equity, the executor had, under such circumstances, an absolute right to the property. It may be that, since the Judicature Act, the rule in equity will prevail, and the rule in law, established by the above cited cases, cease to be in force.

(t) Plowd. 185. Toller, 239. (u) Went. Off. Ex. c. 7, p. 200, 14th edition. Toller, 239.

(x) Ibid.

(y) Went. Off. Ex. c. 7, p. 200, 14th edition. Toller, 239. Brinsmead v. Harrison, L. R., 6 C. P. 584.

from the rest, and has *the rent in his own right: and if he dies, the rent will be payable to his personal representative, and not to the administrator de bonis non of the original deceased (z).

As an executor, who is also a legatee, may, by assenting to his own legacy, vest the thing bequeathed in himself in the capacity of legatee (a), so an administrator, who is also entitled to share in the residue as one of the next of kin under the Statute of Distribution, may acquire a legal title, in his own right, to goods of the deceased, either by taking them by an agreement with the parties entitled to share with himself under the statute, or even without such agreement, by appropriating them to himself as his own share (b).

If one of several executors or administrators alone sell any of the goods of the testator, he alone may maintain an action for the price, not naming himself executor (c).

In a case where bills of exchange had been accepted by A., for the accommodation of B., one of the executors of C., it appeared that B., having considerable sums of money in his hands belonging to C.'s estate, which were deposited in a box in his possession, discounted the bills with such money, by taking out of the box the requisite amount, deducting the discount, and at the same time placing the bills in the box: And it was held, by Alexander, C. B., that B. could not sever his character of an accommodation holder of these bills from his character of executor, so as to enable him and his co-executor to sue as indorsees of the bills for a valuable consideration (d).

(2) Drue v. Baylie, 1 Freem. 403. But see Cowell v. Watts, 6 East, 405. Catherwood v. Chabaud, 1 B. & C. 150, infra, Pt. II. Bk. III. Ch. II.; Bk. IV. Ch. II.

(a) See post, Pt. III. Bk. III. Ch. IV. § III.

The estate of the deceased passes to the personal representative in trust. Schouler on Exrs. § 242; Woerner on Admn. § 174. The circumstances under which it may change its trust [*569]

(b) Elliott v. Kemp, 7 M. & W. 313, per Parke, B. See, however, ante, note (8).

(c) Godolph. Pt. 2, c. 16, s. 1. Wentw. Off. Ex. 224, 14th edit. Brassington . Ault, 2 Bing. 177. S. C. 9 Moo. 340. (d) v. Adams, 1 Younge, 117. character and become the individual property of the executor or administ tor will be considered hereafter with the subjects of transfer of assets, payment of debts, and accounting.

775

*BOOK THE SECOND.

ON THE QUANTITY OF THE ESTATE IN POSSESSION OF AN EXECUTOR OR ADMINISTRATOR.†

The estate of an

administrator is the same as that

After the administration is granted, the interest of the administrator in the property of the deceased is equal to and with the interest of an executor (a). Executors and administrators differ in little else than in the manner of their of an executor. constitution (b).

By the laws

and personal,

The whole perdeceased vests in

sonal estate of the

the executor:

The general rule is, that all goods and chattels, real go to the executor or administrator (c). of this realm, says Swinburne (d), as the heir hath not to deal with the goods and chattels of the deceased, no more hath the executor to deal with the lands, tenements, and hereditaments. In other words it may be stated, that, both at law and equity, the whole personal estate of the deceased vests in the executor or administrator.

Personal property

of which the de

ceased was joint go to the execu

tenant shall not

tor:

The personal property in which the deceased had but a joint estate f or possession will survive to his companions, and his executor or administrator will not be entitled to a moiety of it (e): for a survivorship, holds place regularly as well between joint tenants of goods and chattels in possession or in right, as between joint tenants of inheritance or freehold (f). But the wares, merchandise, debts, or duties, *which joint merchants have, as joint merchants or partners, shall not survive, but shall go to the executors of the deceased; and this is per

+ See American note at end of this Book, p. 591.

(a) Touchs. 474. Blackborough v. Davis, 1 P. Wms. 43, by Holt, C. J.

(b) Treat. Eq. Bk. 4, Pt. 2, c. 1, s. 1. (c) Com. Dig. Biens (C). Co. Lit. 388, a. The hares of the civil law, answering to our executor or administrator, succeeded in universum jus defuncti Godolph. Pt. 2, c. 1, s. 1.

except in the

in trade, &c.

ship; and the barons held that certainly the survivors have no power to dispose of his share otherwise than to pay such debts.

legem mercatoriam which is part of the laws of this realm, for the advancement and continuance of commerce and trade, cases of partners which is pro bono publico; for the rule is, that jus accrescendi inter mercatores pro beneficio commercii locum non habet (g). And this part of the lex mercatoria has been extended to all traders (including manufacturers) (h), and as it should seem, to all persons engaged in joint undertakings in the nature of trade (i). Thus, if two take a lease of a farm jointly, the lease shall survive, but the stock on the farm, though occupied jointly, shall not survive (j). So where two persons advance a sum of money by way of mortgage, and take the mortgage to them jointly, and one of them dies; when the money is paid the survivor shall not have the whole, but the representative of him who is dead shall have his proportion (k). So if two or more make a joint purchase of land, and afterward one of them lays out *a considerable sum in repairs and improvements and dies, this shall be a lien on the land, and a trust for the representative of him who advanced it (). But where two (g) Ibid. Rex v. Collectors of Customs, 2 M. & S. 225. But with respect to choses in action though the right of the deceased joint tenant devolves on his personal representative, the remedy survives to his companion, who alone must enforce the right by action: See post, Pt. II. Bk. III. Ch. I. § II.; Pt. V. Bk. I. Ch. I. And it has been doubted whether the rule can in any case be enforced but in a court of equity. See Smith's Mercantile Law, 149, 3rd edition. Abbott on Shipping, 97, 7th edit. But it was decided by the Court of Exchequer, after full consideration, that the title to partnership chattels does not survive at law: Buckley v. Barber, 6 Exch. 164. In the same case it was argued that the surviving partners have, at law, at all events, a jus disponendi as to the partnership chattels, for the purpose of winding up the partnership debts: The court, however, doubted whether they have a power to sell and give a good legal title to the share belonging to the executor of the deceased partner when they sell in order to pay the debts of the partner

(h) Buckley v. Barber, 6 Exch. 164. (i) Hamond v. Jethro, 2 Brownl. & Gold. 99.

(j) Jeffereys v. Small, 1 Vern. 217. (k) Fonbl. Treat. B. 2, c. 4, s. 2, note (g). Vickers v. Cowell, 1 Beav.

529.

(1) Lake v. Gibson, 1 Eq. Cas. Abr. 291, pl. 3. See further Harrison c. Barton, 1 Johns. & H. 287, where, on the purchase by two persons contributing equally to the costs of it, Wood, V.-C., held that parol evidence of surrounding circumstances and of subsequent dealings was admissible, notwithstanding the Statute of Frauds, to prove an intention to hold in severalty: and his honor relied on the observation of Sir W. Grant, in Aveling Knipe, 19 Ves. 441, that equity will not hold a purchase joint, if there are any circumstances from which it can be collected that a joint tenancy was not contemplated.

become joint tenants, or jointly interested, in personal property, by way of gift, there the same shall be subject to all the consequences of the law of survivorship (m).

In the case of Morris v. Barrett (n), the residue of real and personal estates was devised by a testator to his two sons as joint tenants; and the two sons, after the father's decease, and during the period of twenty years, carried on the business of farmers with such estates, and kept the moneys arising therefrom in one common stock, and with part of such moneys purchased other estates in the name of one of them, but never in any manner entered into any agreement respecting such farming business, or ever accounted with each other; it was held, under the circumstances, that they continued, till the death of one of them, joint tenants of all the property that passed by the will of their father, but were tenants in common of the afterpurchased estates.

The general rule of law is, that on the death of one of several partners, in the absence of express stipulation, his repre- Rights of execu

tor of one of several partners.

sentative is entitled to have the whole concern wound up and disposed of, and if the surviving partners continue the trade, the representative of the deceased partner may elect to take his share of the profits, or may charge the survivors with interest on the amount of capital retained and used by them. If the property of the partnership consists in part of *leaseholds, the executor of the deceased partner may treat the survivors as trustees, and if they renew the lease, they are considered to do so for the benefit of the partnership (o).

In what cases the title goes to the the deceased had

executor, where

only a special

In some instances the title which the deceased had in respect of a special property only in goods is transmissible to his personal representative. Thus if an uncertificated bankrupt had acquired goods after his bankruptcy and died possessed of them, having been allowed to retain property. possession by the assignees, his executor or administrator might recover them from a stranger; for there was a good title in the bankrupt as against all the world but the assignees, and this title passed to his personal representative (p).

(m) 1 Vern. 217. Post, Pt. III. Bk. III. Ch. V. § I.

(n) 3 Younge & Jerv. 384.

(0) Clements v. Hall, 2 De G. & J. 173, 186. Townend v. Townend, 1 Giff. 201. Wedderburn v. Wedderburn, 22 Beav. 84, 86. As to the proper mode

But it should seem that the bare of taking the partnership accounts of bankers, as between a surviving partner and the estate of a deceased partner, see Bate v. Robins, 32 Beav. 73.

(p) Fyson v. Chambers, 9 M. & W. 460. Ante, p. *556. See also Morgan v. Knight, 15 C. B., N. S. 669.