Merger: When the estate in land which a man holds as executor shall merge which he in that has pro With reference also to the principle, that an executor or administrator holds the property of the deceased in auter droit merely, it has been laid down, that in respect to land, no merger can take place of the estate held by a man as executor in that which he holds in his own right. (u) But a distinguished writer (x) has lately, with great force, urged an important distinction with regard to this exemption from merger, viz, that when prio jure. either of the two estates is an accession to the other by act of law, there will not be any merger; but that where the accession is by the act of the party the less estate will merge. And this distinction, although opposed to what has been laid down by some very eminent lawyers, (y) seems to be supported by the current of authorities. Thus, if the tenant for years dies, and makes him who has the reversion in fee his executor, whereby the term. for years vests also in him, or if the lessee makes the lessor his executor, (z) the term shall not merge; (a) for here the accession of the estate for years is by the act of law. But if an executor or administrator has a term for years in right of the deceased, and purchases the reversion, the exemption shall not prevail, but the term will merge; for here the reversion is acquired by the party, by his own act. Thus in a case in 6 Eliz. (b) Lord Dyer laid down, that if an executor has a term and purchases the fee simple, the term is determined. And Manwood J. said, “ A woman, termor for years, takes husband, who purchases the fee; the term is extinct; for the husband has done an act which destroys the term, viz, the purchase." So in a case in Brooke, (c) it was said that if a termor makes the lessor his executor and dies, this is no surrender; for he had the term to another use; but 66 (u) 2 Bl. Com. 177; Jones v. Davies, 5 ference of the rights hinders an extinguishH. & N. 767. (x) Mr. Preston on Conveyancing, vol. iii. p. 273 et seq., 309. See, also, on the same subject, Sugden V. & P. 395, 396, 7th ed. (y) Lord Holt, in Gage v. Acton, 1 Salk. 326; S. C. 1 Lord Raym. 520, says, "If a man hath a term in right of his wife, or as executor, and purchases the reversion, this is no extinguishment, because he hath the term in one right, and the reversion in another. In that case the dif ment, because a third person is concerned (z) Co. Lit. 338 b. if the executor who has a lease for years from his testator, purchases the freehold, the lease is clearly extinct. And in another case, (d) Brooke says, a man had a lease for years as executor, and afterwards purchased the land in fee; the lease is extinct; but it shall be assets, as respecting the executor." So in a case *in Moore, (e) it was held by all the justices, that if a wife has a term as executrix, and takes a husband, and the husband purchases the reversion, the term is extinct as to the wife, if she survives, but in respect of all strangers it shall be accounted as assets in his hand. (f) The difference taken in these two last cases with respect to assets, seems to be well founded; and accordingly L. C. Baron Gilbert (g) says, that, as well in case of purchase as of descent, all agree that the term would not be extinct as to creditors. And it should seem, that in no case would the term held by an executor or administrator merge in equity; for mergers are odious in equity, and never allowed unless for special reasons. (h) At this day executors or administrators may have an estate of freehold in right of a testator or intestate; and there is reason to incline to the opinion, that estates of this description, when held in right of a testator or intestate are equally the objects of the exemption from merger. (i) It may be observed in this place, with respect to the continuance of the privilege from merger, that, though a person is originally entitled to a term, or to an estate of freehold, as an executor or administrator, yet in process of time he may become the owner of that estate in his own right. (k) This happens in the case of executors when the executor is also residuary legatee, and he performs all the purposes of the will, and holds the estate as legatee; or when the *executor pays money of his own, to the value of the term, in discharge of the testator's debts, and with an intention (d) Extinguishment, pl. 54. (e) P. 54. Anonymous. (ƒ) The rule laid down by Mr. Preston is strongly confirmed by an authority which is not noticed by him in support of it, viz, Smith v. Tracy, 1 Freem. 289, where this difference was taken by Saunders, scil. that if a lessee for years, as executor, purchase the reversion, this shall extinguish the term, because it is his own act; but if one that hath a reversion be made executor, and hath a term that way, that shall not be an extinguishment; because the term and the reversion are con joined by act in law. See, also, the mod- (g) Bac. Abr. tit. Leases, R. to appropriate the term to his own use in lieu of the money. And in the case of administrators, when the administrator is the only person entitled to the beneficial ownership of the intestate's property, or procures a discharge from those who are to share that property with him, and all the debts of the intestate are paid. Under these and the like circumstances, the executor or administrator will have the estate in his own right; and when he has the estate in his own right, it will be subject to merger. (1) Generally speaking, it is difficult to ascertain when the character of executor or administrator ceases, and the ownership, independent of that character, commences. Every case must depend on its own circumstances. () This only is certain, that when the executor or administrator ceases to hold the estate in that character, he will hold the same in his own right, and it will be subject to merger. (m) An execu or cannot bequeath the goods tator to a Since no man can bequeath anything but what he has to his own use, an executor cannot by his will dispose of any of the goods which he has as executor to a legatee; (n) although we have seen (0) that if an executor appoint an executor, the goods will pass to him as the representative of the first testator; while on the other hand, an administrator cannot transmit any interest in the property of the intestate to his own personal representative. of his tes legatee: ecutor in but an exhis lifetime may alien the assets, But, generally speaking, an executor or administrator, in his own lifetime, may dispose of and alien the assets of the testator; he has absolute power over them for this purpose, and they cannot be followed by the creditors of the deceased. (p) This rule, however, is subject to some qualifications, which will be pointed out when this treatise arrives at the general discussion of the power of executors and administrators. (q) * and they followed creditors cannot be by the of the deceased. (m) 3 Preston on Convey. 311. (n) Bransby v. Grantham, 2 Plowd. 525; Godolph. pt. 2, c. 17, s. 3. (0) Ante, 254. (p) By Lord Mansfield, in Whale v. Booth, 4 T. R. 625, note to Farr v. Newman; [post, 932, and note (d1); Peterson v. Chemical Bank, 32 N. Y. 21, 45, 49, 50.] (7) See post, pt. 111. bk. 1. ch. 1. [p. 932 et seq.] With reference to the possession in auter droit, it has been held, that if an executor or administrator grant omnia omnia bona bona sua, the goods of the deceased will not Grant of sua by an executor: unless pass, the grantor have no goods but as executor or administrator. (r) So if an executor releases all actions, suits, and demands whatsoever, which he had for any cause whatever, this extends only to such as he has in his own right, and not to such as he hath as executor. (8) release of all de mands. How far a feme covert her hus Although a marriage is an unqualified gift to the husband of all the goods and personal chattels which the wife was absoexecutrix, lutely possessed of at that time, or became so afterwards, &c. entitles in her own right, yet marriage makes no gift to him of band. the goods and chattels which belong to his wife in auter droit as executrix or administratrix. (t) Thus, if husband and wife recover judgment for a debt due to the wife as executrix, and the wife dies, the husband shall not have a scire facias upon the judgment, but the succeeding executor or administrator. (u) Still the husband is entitled to administer in his wife's right for his own safety, lest she misapply the funds, in which case he would be liable. Incident to this right, he has the power of disposition over the personal estate vested in his wife as executrix or administratrix. (x) When an executor, &c. will With respect to the poor laws, it may be here observed, * that an executor or administrator will gain a settlement by estate by a residence as such upon a leasehold property of the deceased. (y) And a settlement will equally be gained, although the tenement to which he comes as ex gain a settlement by residing on the lease hold of the ecutor or administrator be under the value of 107. a testator, year. (2) So it was held that the husband of an ad &c. (r) Hutchinson v. Savage, 2 Ld. Raym. 1307; Wentw. Off. Ex. 193, 14th ed. But an executor may have trespass for taking goods in his time, quare bona et catalla sua, because of the possession. By Holt C. J. in Knight v. Cole, 1 Show. 155; [post, 876 et seq.] (s) Knight v. Cole, 1 Show. 153. (t) Co. Lit. 351 a; Thompson v. Pinchell, 11 Mod. 178, by Powell J.; post, pt. 11. bk. IV. ch. 1. (u) Beamond v. Long, Cro. Car. 208, 227; S. C. W. Jones, 248; 2 Saund. 72 m, note to Underhill v. Devereux. (x) See infra, pt. 111. bk. I. ch. IV. [p. 963 et seq.] (y) Rex v. Sundrish, Burr. Sess. Ca. 7; 2 Bott. 460. (z) Rex v. Uttoxeter, Burr. Sess. Ca. 538. Even though the letters be taken out for a pauper administrator by parish officers, on purpose to create the settle ministratrix, entitled to the trust only of a term, gained a settlement by residence thereon for forty days. (a) And the executor to a tenant of an estate under 107. a year gains a settlement by forty days' residence, although he does not prove the will; because the property vests in him from the death of the testator; (b) but a next of kin of a lessee for years, in a case where several are in equal degree of kindred, can gain no settlement by residing on the land, if he does not take out letters of administration; because no right is vested in him till that is done. (c) Yet in the case of a sole next of kin, exclusively entitled to the administration of the personal estate, who had resided more than forty days in the parish in which a leasehold tenement belonging to the intestate lay, it was held that she thereby gained a settlement, although she had not then obtained a grant of the administration; upon the ground that the exclusive right to enforce the proper means of acquiring the legal title to the property, coupled with the actual enjoyment of it, gave so much color of right to reside, as to exempt such residence from being considered a vagrant intrusion into a parish in which the party has nothing of his own, within the purview and scope of the poor laws. (d) * 3 & 4 W. 4. c. 74. Executor not to be By stat. 3 & 4 W. 4, c. 74 (An Act for the Abolition of Fines and Recoveries, and for the Substitution of more Simple Modes of Assurance), s. 27, it is provided and enacted, "that no bare trustee, heir, executor, administrator, or assign, in respect of any estate taken by him as such protector. bare trustee, heir, executor, administrator, or assign, shall be the protector of a settlement." It may be proper to conclude these doctrines as to the difference between the interest which an executor or adminis- How the trator has in the goods of the deceased, and such as a effects which an ment. Rex v. Great Glenn, 5 B. & Ad. Rex v. Berkswell, 1 B. & C. 542; Rex v. Barnard Castle, 2 Ad. & El. 108. 188. 97. (a) Mursley v. Grandborough, 1 Stra. (b) Rex v. Stone, 6 T. R. 295. (d) Rex v. Horsley, 8 East, 405. A grant of administration will not operate by relation so as to vest a term in the ad(c) Rex v. Widworthy, Burr. Sess. Ca. ministrator from the death of the intestate, 109; Rex v. North Curry, Cald. 137; S. and thus make a person irremovable for C. 2 Bott. pl. 631; South Sydenham v. a time past, who, during that time, was Lamerton, 2 Bott. 462, note (a); Rex v. removable. Ib. 409; and see, also, Rex v. Canford Magna, 6 M. & Sel. 355; Rex v. Widworthy, Burr. Sess. Ca. 109; S. C. 2 Okeford Fitzpayne, 1 B. & Ald. 254; Bott. 461. |