consisting of glebe lands and tithes for years, it may be doubtful if actual possession can be without actual entry into the glebe land. (b) But in case of a lease for years of tithes only, it was held that the executor, though in never so remote a place, should instantly, upon the setting out thereof, be in actual possession to maintain action of trespass for taking them away. (e)

*CHAPTER THE SECOND.

OF THE QUALITY OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR.

THE interest which an executor or administrator has in the goods of the deceased is very different from the absolute, proper, and ordinary interest which every one has in his own proper goods. (a) For an executor or administrator has his estate as such in auter droit merely, viz, as the minister or dispenser of the goods of the dead. (b)

The goods of the deforfeited by attainder of ex

ceased not

ecutor, &c.

Therefore, if an executor or administrator be attainted of treason or felony, the goods which he has as executor or administrator will not thereby be forfeited; (c) and though disabled by such attaint from suing proprio jure, he may still maintain an action in auter droit as executor or administrator. (d) So, where an executor brought a quo minus in the court of exchequer, stating that he was not able to pay the king's debt, because the defendant detained from him 1007. which he owed to him as executor of J. S., it abated; because it could not be intended that the king's debt could be satisfied with that which the plaintiff should recover and receive as executor. (e)

Not applicable to the

debts

which the

executor owes the crown.

*

So though a lord of a villain might take all the villain's own goods, yet he might not take those which the villain held as executor. (f)

(a) Wentw. Off. Ex. 192, 14th ed. (b) Pinchon's case, 9 Co. 88 b; 2 Inst. 236; [Sewall J. in Weeks v. Gibbs, 9 Mass. 75, 76.] An executor has the property only under a trust to apply it for payment of the testator's debts, and such other purposes as he ought to fulfil in the course of his office as executor. By Ashurst J. 4 T. R. 645.

(c) 1 Hale P. C. 251; Hawk. P. C. bk. 2, c. 49, s. 9; Smith v. Wheeler, 1 Freem. 10. See, also, 33 & 34 Vict. c. 23.

(d) Ante, 235. See, also, ante, 230, note

(n).

(e) Wentw. Off. Ex. 194, 14th ed.
(ƒ) Lit. 1. 2, c. 11, s. 192.

executor

becomes

bankrupt, the goods

of the testator do not pass:

Upon this principle also, if the executor or administrator beWhere the comes bankrupt, with any property in his possession belonging to the testator or intestate, distinguishable from the general mass of his own property, it is not distributable under the bankruptcy. (g) The assignees cannot seize even money which specifically can be distinguished and ascertained to belong to the deceased, and not to the bankrupt himself. (h) But where a person entitled to take letters of administration neglected to do so, yet remained in possession of the goods of the intestate for twelve years, and being so in possession became a bankrupt; and a creditor of the intestate afterwards took out letters of administration, and claimed the goods from the assignees; it was held that these goods were within the stat. 21 Jac. 1, c. 19, being property in the possession, order, and disposition of the bankrupt, with the consent of the true owner; and that the assignees were therefore entitled to them. (i) So where an innkeeper, who was a widow, having died intestate, two of her children, a son and daughter, took possession of her furniture and stock in trade, and carried on her business in their own names for two years after her death, during which time they paid her funeral expenses and some of her debts, but without taking out administration to her estate, and, at the end of that time, became bankrupts, the daughter having a few months previously retired from the business, and sold her share of it to the son. Another of the children then took out administration to the intestate, and claimed that part of her furniture and stock in trade which still remained in specie. But it was held that it belonged to the assignees, as having been in the order and disposition of the son at the time of his bankruptcy. (k)

Although an executor or administrator become bankrupt, he

(g) Ludlow v. Browning, 11 Mod. 138; Ex parte Ellis, 1 Atk. 101; Ex parte Marsh, Ib. 159; Viner v. Caddell, 3 Esp. 88; In Serle v. Bradshaw, 2 Cr. & M. 148; S. C. 4 Tyrwh. 69, where a defendant, in an action against him as administrator, being under terms to plead issuably, pleaded plene administravit, and for another plea, his own bankruptcy; it was held that the plaintiff might sign judgment as for want of a plea.

(h) By Lord Mansfield in Howard v.

Jemmett, 3 Burr. 1369, cited by Lord Kenyon, in Farr v. Newman, 4 T. R. 648. Under the bankruptcy of an executor and trustee, directed by the will to carry on a trade, and a limited sum to be paid to him by the trustees for that purpose, the general assets beyond that fund are not liable. Ex parte Garland, 10 Ves. 110. See post, pt. iv. bk. 11. ch. 11. § I.

(i) Fox v. Fisher, 3 B. & Ald. 135. (k) In re Thomas, 1 Phill. C. C. 159; S. C. 2 Mont., D. & D. 294.

may have a scire facias, as the bankruptcy does not af- he may fect his representative character. (1)

have a sci. fa.: for years, proviso for of lease, if

forfeiture

lessee or his execu

become

It must be observed that if the testator were a lessee and the lease contained a proviso that if the lessee, or his executors, administrators, or assigns, shall become bankrupt, the lease shall become void, the bankruptcy of the executor will operate as a forfeiture of the lease, notwith- tor shall standing the lease itself does not pass to his assignees. bankrupt: Thus in Doe v. David, (m) a lease had been granted for twentyone years to Joseph Waters, his executors, administrators, and assigns; proviso, that if Joseph Waters, his executors, administrators, or assigns, should become bankrupt or insolvent, or suffer any judgment to be entered against him, &c. by confession or otherwise, or suffer any extent, process, or proceedings to be had or taken against him, whereby any reasonable probability might arise of the estate being extended, &c. the estate should determine and the lessor have power to reënter. Joseph Waters died during the term, and by his will devised the premises to his executors on certain trusts. The surviving executor became bankrupt; and it was held that the lessor's right of reëntering thereupon

accrued.

receiver appointed assignees

to whom

shall account:

Where assignees possess themselves of effects, which belong to the bankrupt as executor only, the court on a bill filed (n) * will, to secure such effects, appoint a receiver to whom the assignees shall account for so much as they have got in of the testator's estate. Where a bankrupt is an executor and residuary legatee, and has paid the debts and bankrupt particular legacies out of part of the assets, if he refuses executor to collect the rest, notwithstanding the assignees have legatee. not the legal interest vested in them, the court will assist them to get in the remainder in the name of the executor. (0)

residuary

Again, the goods of a testator in the hands of his executor cannot be seized in execution of a judgment against the ex- The goods ecutor in his own right. (p) So if an executor dies in

(1) 2 Saund. 72 r, note to Underhill v. Devereux.

of the testator can

(p) Farr v. Newman, 4 T. R. 621, where all the former authorities are collected

(m) 1 Cr., M. & R. 405 ; S. C. 5 Tyrwh. and discussed. In this case, Buller J.

125.

dissented from the rest of the court, viz,

(n) Ex parte Tupper, 1 Rose, 179; 2 Lord Kenyon, and Ashurst and Grose Madd. Chan. 641, 2d ed.

(0) Ex parte Butler, 1 Atk. 213.

JJ. The action was against the sheriff for a false return, and the question was,

not be

taken in execution for the debt of the executor.

debted, leaving to his executor goods which he had as executor, these are not assets liable to the payment of his debts, but only for the payment of the first testator's. (q)But when an executrix used the goods of her testator as her own, and afterwards married, and then treated them as the property of her husband, it was held that she could not be allowed to object to their being taken in execution for her husband's debt; for where an executrix or her husband have converted the goods, it does not lie in the mouth of either of them to say they are not the property of the husband, in a case between the executrix and one of his creditors. (r) So after a lapse of six or seven years, equity will not restrain by injunction a creditor of an executor from taking in execution property of the testator which is assets in equity. (8) However, where goods of an intestate had been taken possession of, and used by an administrator, in the house of the intestate, for three months after the death of the intestate, Lord Tenterden held that they could not be taken in execution for the administrator's own debt, the time, in this case, not being sufficient to make the goods the administrator's property. (t)

whether certain goods of the testator, which had been seized by the sheriff under an execution against the husband of the executrix, in a house in which the husband and wife resided, and the testator had resided, but which had not been sold under the execution, were bound by it. In a previous case, Whale v. Booth, B. R. 25 Geo. 3, 4 T. R. 625, note (a), where the goods of the testator had actually been sold under a fieri facias against the executor for his own debt, and the executor joined in a bill of sale, it was held by the court of K. B. that the property passed by the execution, and could not afterwards be seized under a writ sued out by a creditor of the testator; upon the principle that the sale under the execution could not be distinguished from an alienation by the executor. But although the two cases may thus in some degree be reconciled, Eyre C. J. in Quick v. Staines, Bos. & Pull. 295, considers them as entirely conflicting, and the law as still un

settled. See, also, the observations of Sir Thomas Plumer V. C. in Ray v. Ray, Coop. 267. However, Lord Eldon C. in M'Leod v. Drummond, 17 Ves. 168, adverts to Farr v. Newman, as having decided absolutely, that the effects of the testator cannot be taken in excution for the debt of the executor, and expresses his satisfaction of that decision. See, also, Kinderley v. Jervis, 22 Beav. 23, per Romilly M. R.; [Branch Bank at Montgomery v. Wade, 13 Ala. 427.] See infra, pt. III. bk. 1. ch. 1. as to the power of an executor to dispose by sale of the goods of his testator.

(q) Wentw. Off. Ex. 194, 14th ed. (r) Quick v. Staines, 1 Bos. & Pull. 293.

(s) Ray v. Ray, Coop. Chanc. Cas. 264. (t) Gaskell v. Marshall, 1 Mood. & Rob. 132; S. C. 5 C. & P. 31. The learned judge, upon Quick v. Staines being cited, observed that the marriage in that case made all the difference.