to the date of the will, the latter did not pass by the bequest. The description did not apply at all; had the new house, however, been leasehold it would have passed. In re Knight (1887), 34 C. D. 518.

Again, such words as "now in my occupation" will not restrict the gift to that which the testator possessed at the date of the will, unless they are an essential part of the description.

For instance, a testator devised "the whole of my said freehold cottage with all the land, outbuildings and appurtenances thereto belonging, situate in the parish of Dorking and now in my possession," and afterwards purchased two adjoining fields. Held, that the latter passed under the description, the words now in my possession not being an essential part of the devise. In re Champion, [1893] 1 Ch. 101.

Even where such words are an essential part of the description, and the will has been re-published by a codicil after the purchase of the new lands, the re-publication will cause the will to speak from the date of the codicil, and the words "now in my occupation" will be read as at that date. In re Champion, [1893] 1 Ch. 101.

Where an Act of Parliament is passed after the date of the will and before the death, the will is read in the light of the Act.

For instance, where a testator gave "such part of my residuary trust estate which may by law be given for charitable purposes" to a charity, and at the time of his death (but not at the time of his will) all his personal estate, whether consisting of "pure" or "impure" personalty, could by the operation of the Mortmain and Charitable Uses Act, 1891, be so given, the whole of such residue passed to the charity. In re Bridger, [1894] 1 Ch. 297.

CHAPTER IX.

EXECUTORS AND ADMINISTRATORS.

ALL the personal estate of a testator, with the exception of property of which he was one of several joint tenants, vests in the following way :

(1) If executors are appointed, it vests in them from the date of death.

And since they take their title from the will, and not from the grant of probate, they can, before proving the will, do almost all the acts which they are entitled to do after probate, such as commencing actions, paying debts, and dealing with property generally. But as soon as it becomes a question of proving their title strictly, they are bound to produce probate of the will, for that is the only evidence of their title which is admissible in strict proof;-for instance, if the executors wish to transfer any of the testator's shares into their own names, the company would require proof of title before registering any transfer; and again, though they may commence an action as executors, a time must soon arrive when the other side can compel them to prove their title, and when that time arrives they must produce the probate of the will. If any renounce probate, the property vests in the others or other of them.

(2) If a person dies without having appointed executors, or, having appointed executors, they all predecease him or renounce probate, it becomes

necessary to obtain a grant of letters of administration cum testamento annexo (with the will annexed), and, if he die intestate, a grant of letters of administration generally.

When such a grant has been obtained the deceased's property vests in the administrator or administrators from the date of the grant only, but thereafter the powers and duties of an administrator are co-extensive with those of an executor.

(3) The unadministered property of the deceased, the powers, rights, duties and liabilities of the office of legal personal representative, and the right of representing the deceased devolve in the following way:

First, to all the executors jointly who do not renounce, and to the survivors until only one is left, and upon his death to all his executors in a similar manner, and to the survivor, and so on, until the line of executors is broken by the appointment of an administrator to a surviving executor; it then becomes necessary to obtain a fresh grant of administration de bonis non, i.e., of the property of the original deceased not administered.

Secondly, if the original grant was of letters of administration to two or more, the survivors and survivor are entitled, but on the death of the survivor or of a sole administrator a fresh grant of administration de bonis non is necessary.

Neither the administrator of an executor nor the executor of an administrator represent the estate of the original deceased.

The term “legal personal representatives" is commonly used to denote the persons who for the time being represent the deceased.

Assent of Executor.

The title of a person to whom personal property is given by a testator is not complete until the executor has given his assent to the gift; and this assent the executor will give or refuse as soon as he has ascertained whether or not the testator's estate is sufficient without that property for the payment of all the testator's funeral and testamentary expenses, debts, and legacies having priority to the gift in question.

The assent may be express or implied. No formalities whatever are necessary, but a mere verbal consent is quite sufficient; consent will also be implied from conduct.

Real Estate.

Real estate now vests in an executor or administrator, for in the case of persons dying after January 1, 1898, it is provided by the Land Transfer Act, 1897 (s. 1 (i.)), that where real estate is vested in any person without a right in any other person to take by survivorship it shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative (executor or administrator : s. 24 (2)) from time to time as if it were a chattel real vesting in them or him.

In this Act real estate includes real estate over which a person executes by will a general power of appointment, but not land of copyhold or customary freehold, where an admission or any act by the lord of the manor is necessary to perfect the title of a purchaser from the customary tenant.

The Act contains provisions for the assent of the

personal representatives to a devise or for a conveyance by them to the persons beneficially entitled to it of property which the personal representatives do not require in the administration of the estate of the deceased; but the Act does not alter the order in which real and personal assets are applicable in or towards the payment of funeral and testamentary expenses, debts and legacies.

Executor according to the Tenor.

In order to constitute a person executor he must, as a rule, be named as such. Where, however, persons are directed or requested to pay the debts of the testator or "to carry out this will," or are nominated "for the due execution of this my will," such persons are executors "according to the tenor," and are entitled to a grant of probate in priority to the person who would be entitled to a grant of letters of administration with the will annexed.

Special Privileges of an Executor.

An executor or administrator has certain privileges in the administration of an estate.

Right of Retainer. The remedy of a creditor of the deceased who cannot obtain payment of his debt is to sue the executor, but an executor who is also a creditor of the deceased cannot be plaintiff in his private capacity and defendant in his capacity of executor; and but for the right of retainer it might happen that all other creditors would, by getting judgment against him in respect of their debts, obtain priority over him and possibly exhaust the whole estate, leaving the executor himself without any