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. (f) So where to a declaration in trover to 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, afterwards, 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 was decided that a division of a testator's estate, by the legatees under the will, by consent, is no defence to an action at law, brought by the legally appointed administrator with the will annexed, to recover the possession of the testator's property, for the purpose of a due and legal administration. Echols v. Barrett, 6 Geo. 443.] (ƒ) Murray v. E. I. Company, 5 B. & Ald. 204. See, also, Cary v. Stephenson, 2 Salk. 421; Perry v. Jenkins, 1 My. & Cr. 118; post, pt. v. bk. 1. ch. 1. (g) Pratt v. Swaine, 8 B. & C. 285; S. C. 1 Man. & Ryl. 451; [Benjamin v. Degroot, 1 Denio, 151.] Abr. 399, tit. Relation, A. pl. 1; Bro. (h) Godolph. pt. 2, c. 20, s. 6; 2 Roll. Shaw C. J. in Farnum v. Boutelle, 13 Met. 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, (i) yet an administrator may have an action of trespass (k) or trover for the goods of the intestate taken by one before the letters granted unto him; otherwise there would be no remedy for this wrong doing. (1) 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 administrator might ratify the sale and recover the price from the vendee in assumpsit for goods sold and delivered. (m) And accordingly it should seem that whenever any one 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. (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 adminis tration, he may waive the tort and recover as on a contract. Thus, 159, 165, and in Wonson v. Sayward, 13 Pick. 404; Leber v. Kauffelt, 5 Watts & S. 445; Rockwell v. Saunders, 19 Barb. 473; Lane v. Thompson, 43 N. H. 320, 325; Bullock v. Rogers, 16 Vt. 294; Wells v. Miller, 45 Ill. 382. If a person dies in possession of personal property, and it comes to the hands of his administrator, the title is changed, and a factor, who may afterwards receive the goods from the administrator, cannot hold them or their proceeds, on account of advances made to the deceased in his lifetime, without the assent of the administrator. Swilley v. Lyon, 18 Ala. 552.] (i) Crossfield v. Such, 8 Exch. 825. (k) Tharpe v. Stallwood, 5 M. & Gr. 760; [Brackett v. Hoitt, 20 N. H. 257.] (1) Long v. Hebb, Style, 341, by Rolle C. J.; 2 Roll. Abr. 399, tit. Relation, A. pl. 1; Anon. Comberb. 451; Foster v. Bates, 12 M. & W. 233, per Parke B.; Searson v. Robinson, 2 Fost. & F. 351; [Manwell v. Briggs, 17 Vt. 176; Brack ett v. Hoitt, 20 N. H. 257; Colt J. in Hatch v. Proctor, 102 Mass. 353. The title of an administrator de bonis non relates to the death of the testator as to all assets that remain in specie and unadministered, and he may recover for an injury done to them before the date of his appointment; nor is he estopped by an illegal act of a previous administrator. Bell v. Speight, 11 Humph. 451; ante, 472, note (d1), 539, note (b); post, 915, note (e), 961.] (m) Foster v. Bates, 12 M. & W. 226; [Brown v. Lewis, 9 R. I. 497. So a person to whose order money, belonging to an estate, was paid before an administra tor was appointed, is accountable therefor, without previous demand, to the administrator when appointed, although the money or the avails of it never came to his actual use. Clark v. Pishon, 31 Maine, 503.] (n) Bodger v. Arch, 10 Exch. 333; [Brown v. Lewis, 9 R. I. 447.] 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. (0) 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 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 administraion granted, which the relation of the letters in some 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 (0) Welchman v. Sturgis, 13 Q. B. 552; [Patten v. Van Vrauken, 36 N. Y. 619.] (p) Rex v. Horsley, 8 East, 410, in Lord Ellenborough's judgment. So it is laid down in Selw. N. P. 717, 6th ed., 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, although letters of administration will operate by relation, to enable an administrator to recover a chattel property from the time of the death of the intestate, yet it does not effectuate a legal proceeding, taken before administration granted, in order to recover such property. See, however, Bacon v. Simpson, 3 M. & W. 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, 405. (7) Pyne v. Woolland, 2 Vent. 180; Williamson v. Norwitch, Style, 337; Vaughan v. Browne, Stra. 1106; S. C. Andr. 328; Curtis v. Vernon, 3 T. R. 590; [Colt J. in Hatch v. Proctor, 102 Mass. 353, 354; Alvord v. Marsh, 12 Allen, 603.] (r) Ante, 406, 407. death of the intestate and the commission of administration. Thus, in Waring v. Dewbury, (8) 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 fictions of law, should never divest any right legally vested in another, between the death of the intestate and the commission of administration; and the plaintiff in the action having duly served his execution, before the administrator had a right to demand his rent, it * was not reasonable the plaintiff should be defeated by any relation whatsoever; they did not in that case deny the authorities which gave the administrator trover, but went on a distinction between relations that are to defeat lawful acts, and such as are to punish those that are unlawful. (t) Relation back of the de ceased had There appears, in some instances, to be the same relation back of the title of the personal representative in cases where title where the deceased had only a special property in the goods as where he had the absolute property. Thus, if an unceronly a spe- tificated bankrupt acquired goods after his bankruptcy, cial property. and died possessed of them, having been allowed to retain possession by the assignees, his administrator might maintain trover against a third party who had sold the goods between the period of the death of the intestate and the grant of the administration; for there was a good title in the bankrupt as against all the world but the assignees, and this title passes to his administrator. (u) But there is no such relation back as to chattels in which (s) Gilb. Eq. Rep. 223, cited by Strange, arguendo, in Rex v. Mann, S. C. 1 Stra. 97; Fortesc. 360; S. C. MS.; Viner's Abr. Executors, Q. pl. 29. It appears that in this case Powis J. dissented from Pratt C. J. and Eyre and Fortescue, JJ. (t) See, also, Rex v. Horsley, 8 East, 405; post, 646, note (d). The rule that a party cannot be made a trespasser by relation is only applicable where the act complained of was lawful at the time. 5 M. & Gr. 760. (u) Fyson v. Chambers, 9 M. & W. 460. It is to be observed that the devolu Limita the deceased had no personal interest, but held merely as the administrator of another. The bare circumstance of his dying in possession will not enable his personal representative to maintain trover even against a mere wrong-doer; for it will be a good defence that the right to the goods in question has devolved on the administrator de bonis non of the original intestate. (x) By stat. 3 & 4 W. 4, c. 27 (entitled An Act for the tion of Actions and Suits relating to Real Property, &c.), s. 6, it is enacted, that "for the purposes of this act an administrator claiming the estate or interest of the 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 such deceased person and the grant of the letters of administration." By 21 & 22 Vict. c. 95, s. 19, "From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall be vested in the judge of the court of probate for the time being in the same manner and to the same extent as heretofore they vested in the ordinary." (x1) 3 & 4 W. 4, c. 27. Administrator to claim for purposes of his act, as if he obtained the estate terval after without in death of deceased. 21 & 22 Vict. c. 95, s. 19. Between the death of the dethe grant tration ceased and of adminis property to vest in the judge ordinary. between chattels All movable goods, though in ever so many different and distant places from the executor, vest in the executor in possession presently upon the testator's death; (y) for it is a rule distinction of law, that the property of personal chattels draws to it the possession. (z) But it is otherwise of things immovable, as leases for years of lands or houses; for of these the executor or administrator is not deemed to be in possession before entry. (a) So of leases for years of a rectory, tion of future property is now determined by the order closing the bankruptcy, and not by the certificate of discharge. See the bankruptcy act, 1869, sect. 15, sub-sect. 3, and sect. 47. (x) Elliot v. Kemp, 7 M. & W. 306; [Reeves v. Matthews, 17 Geo. 449.] (x1) [See Jewett v. Smith, 12 Mass. 309, 310; Lawrence v. Wright, 23 Pick. 128; Colt J. in Hatch v. Proctor, 102 Mass. 353.] real and personal as to time of vesting in possession. (y) Wentw. Off. Ex. 228, 14th ed.; 11 Vin. Abr. 240. (z) 2 Saund. 47 b, note (1) to Wilbraham v. Snow. (a) Wentw. Off. Ex. 228, 14th ed. See the observations of Parke B. in Barnett v. Earl of Guildford, 11 Exch. 32. But a reversion of a term, which the testator granted for a part of the term, is in the executor immediately by the death of the Trattle v. King, T. Jones, 170. testator. |