right to the balance of the funds (if any) would belong to the heir. The grounds of this decision were, that in general, where lands are purchased for partnership purposes, there is no right of survivorship in such lands, upon the death of one partner intestate; but his share descends to his heirs. But in some cases lands held for partnership purposes, are to be considered in equity as personalty; and are to be applied accordingly. Thus, it may be agreed by the partners themselves, that such lands shall be so considered; and such agreement shall work the change; and the same will go as personalty, upon the death of one of the partners. In the absence of such agreement, and a conveyance to the partners as tenants in common, it is to be considered real estate. And the rights of creditors are not affected by this consideration; for, in either case, the property is liable to the debts of the firm. The mere taking a deed in the joint name of two persons, who are partners, will not, in itself, determine that it shall be liable to the partnership debts. There must be some express act or understanding. (C) THE EXECUTOR'S INTEREST IN RESPECT TO THE PERSONAL PROPERTY. 1. CHAPMAN V. GRAY, 15 Mass. Rep. 445; 14 ib. 261; 16 ib. 110; 17 ib. 243, A term for years is a chattel; and so is a slave. Wheat or corn growing, is a chattel; and it seems, that a stone for grinding bark, is not part of the freehold, but a personal chattel. But shares in a turnpike corporation, are not chattels, but merely evidence of property.* 2. COBURN V. ANSART AND TRUSTEE. Oct. T. 1807, 3 Mass. Rep. p. 319. executor Where an attorney has collected money upon a note of hand Where the made payable to the executor, it was held to be subject to the has receiv process of foreign attachment, in an action against the executor da note of personally. The court said that Mr. L. must be adjudged the trustee of the hand for a debt due to the testator and the mo ney has * Bills and notes are not strictly goods and chatte's. It has been held in Eng- been collect land that a fraudulent delivery by a trader to his creditor of a bill of exchange, is an act of bankruptcy, although their statute means only "goods and chattels," Cumming v. Bailey, 6 Bing. 371. torney;such the process ed by an at defendant, on the ground that an action by her, to recover the is liable to money, might be brought in her own right; and not in her capacity of executrix. The money is hers; and to her only is the trustee accountable. He is her debtor, and her demand is well attached by this process. for attach ment in a suit against the execu tor person ally. The goods of a deceas or intestate ecution a effects of 3. WEEKS V. GIBBS, May T. 1812, 9 Mass. Rep. 74. Replevin for sundry articles, seised by defendant as sheriff uped testator on an execution, which issued July 6, 1809, on a judgment may be tak against the goods and estate of J. L. deceased, in the hands of en on an ex B. L. administratrix. The said administratrix afterwards intergainst the married with the plaintiff, and before the seisure by the sheriff. such decens Before the intermarriage, and also before the scisure, the said ed, even af administratrix had settled her account of administration in the have been probate office, in which she charged herself with her personal estate as inventoried. The question was, whether the adminisel in the ac tratrix acquired a property in the goods in question, in conseexecutor or quence of the settlement of her account; and held, that the protor; provid perty did not vest in her, to the exclusion of the creditors of ed he has her intestate. ter the same inventoried and charg count of the administra not paid debts to the full amount. Sewall, J., delivered the opinion of the court, and said, the possession of an administrator is in auter droit; and the goods. of deceased persons, until accounted for by the payment of debts to the amount at least of their appraised value, continue liable in the hands of an executor or administrator; and the goods or monies which were a testator's or intestate's at his decease, are liable to be claimed in that right, in the hands of an executor or administrator, or in the hands of their representatives. If the goods of the testator remain in specie, they shall go to his ad• ministrator de bonis non. If an executrix of the obligee take the obligor to husband, that is no extinguishment of the debt; for the money, when paid to her as executrix is distinguishable, and if she dies intestate, shall go to the administrator de bonis non of her testator. In the case at bar, there is no pretence that debts had been paid to the value of goods of the intestate, which had come to the hands of the administratrix; and to give the plaintiff a remedy for the goods of the deceased, in the hands of the administratrix, and which she holds in auter droit, at least until their value has been expended in the administration would only subject the plaintiff and his wife liable to the same amount, in a scire facias for waste. Plaintiff nonsuited. 4. ALLENDER, ADM'R D. B. N. v. RISTON, Dec. T. 1829, 2 G. & J. Rep. 86. An execu tor or ad sets of the deceased, in of his own debts; and the doctrine equity a the assets s: fficient in er, if there sion. The question principally argued in this case, was, as to the power of an executor or administrator, to dispose of the assets ministrator of his testator or intestate, in satisfaction of. his own debts. fer the as may trans The mortgage was given as collateral security, for the payment of a note of hand drawn and endorsed by the mortgagors, paya- satisfaction ble to the defendant. According to the authorities,it seems that at law, an executor or administrator may transfer the assets of establishing the deceased, in satisfaction of his own debts. Toller on Exec- that both at utors, 256, 257, says, he has power to sell, or as it has been held, law, and in to mortgage terms of years, or assign mortgaged terms, and to bare sale of dispose of any of the effects; although as it seems specifically by the exec given by the will, and even in satisfaction of his own private u'o. is a debt. Nor when he has aliened the assets, can a creditor follow demnity to them at law; for the demand of a creditor is only a personal de- the pu chas mand against the executor, in respect of the assets come to his be no collu hands, but no lien on the assets. Equity will indeed, follow assets on voluntary alienations, by collusion with the executor; but if the alienation or pledge be for a valuable consideration, unless fraud be proved, neither law nor equity will defeat it: for a purchaser from an executor has no means of knowing the debts. of the testator; and if a court of equity, on the subsequent ap pearance of debts, would control such purchaser, all dealings. with executors, would be dangerous; and even in equity, Chancellor Kent, in referring to the case of Nugent v. Gifford, 1 Atkins, 463, in 7 Johns. Chan. Rep. 17, says, an assignment of a mortgage term, (and it was a mortgage to trustees, in trust for the testator) was made by the executor to the plaintiff, in satisfaction of a debt due from the executor to the plaintiff. Yet Lord Hardwick held the assignment to be valid, and that the creditors of the testator were not entitled to follow the property. A purchaser from an executor has no power of knowing the debts of the testator; and if he did know it was testamentary assets, it would not affect the validity of the assignment, as it was an alienation for a valuable consideration; and no fraud or collusion with the executor to misapply the assets, appeared. The doctrine in that case has been repeatedly advanced; and it appears to be an established principle, both at law, and in equity, that a bare sale of the assets by the executor is a sufficient indemnity to the purchaser, if there be no collusion. In the case of Whale v. Sir. Ch. Booth, Lord Mansfield observed, that if at the time of the alienation, the purchaser knew they were assets, this was no evidence of fraud; for all the testator's debts may have been already satisfied; or, if he knew that the debts were not already satisfied, must he look to the application of the money? No one would buy on those terms. There is one exception, indeed, where a contrivance appears between a purchaser and an executor, to make a devastavit. In 7 Johns. Ch. Rep. 157, Chancellor Kent says, "subsequent decisions, have in some degree, restrained the extent of the doctrine laid down by Lord Hardwicke, and Lord Mansfield. In Bonney v. Ridgard, 1 Cox, 144, Lord Kenyon the Master of the Rolls, admitted, that in general the purchaser from the executors of the testator's assets was not bound to see to the application of the money; but that if upon the face of the assignment of the property, it appeared to have been made in satisfaction of a private debt of the executor, the sale was fraudulent against the persons interested, under the will, and equity would relieve. It would be a case of implied fraud. So again in Scott v. Tyler, Dickens, 712, Lord Thurlow held, that when an executrix pledged bonds, specifically, as a security for her own debt, contracted after the testator's death, the pawnee must deliver up the bond, for the benefit of the specific legatee. He admitted, that in general the purchaser of the assets had no concern with the application of the price, and that the rule applied equally to mortgages, bonds and leases. But if one concerted with the executor to obtain the effects at a nominal price, or at a fraudulent under value, or in extinguishing the private debt of the executor, or in any other manner contrary to the duty of the office of executor, the purchaser or pawnee will be liable. In Hill v. Simpson, 7 Vesey, jr. 152, Sir William Grant made a similar decree. He said, the assets known to be such, ought not to be applied in any case, for the discharge of the executor's debt unless the creditor taking the assets can be first satisfied of his right so to apply them. Lord Eldon has also declared, "that there could not be a stronger case of devastavit than an executor aliening the property of the testator, to pay his own debts, the alienee knowing at the time that debts of the testator were due. In the case now before this court, it nowhere appears that there were any debts remaining due and unpaid at the time of the mortgage;or if they were that the defendant knew of them, and to use the language of Mr. Justice Ashhurst, to be found in 4 Term. Rep. 645: "if the . creditors will lie by and not assert their rights; it is reasonable for a third person to suppose that all the debts are satisfied." 5. THOMPSON V. BROWN, 4 Johns. Ch. N. Y. Rep. 628. If, however, to be invest An executor or administrator has no right to put the assets, he permits which are in his hands, into the hands of a surviving partner to the assets trade npon; especially where such funds have no connexion ed in trade, with a previous partnership; and if he does without taking secu- bide the loss rity he must abide the loss. 6. DIVOL, AD'MR D. B. N. v. COM'RS OF LECHMORE, cited in Abr. 1 v. p. 575; 3 J. Ch. Rep. 312; 2 H. & J. 483; 7 ib. 17; 5 Binn. 157; Kirby 101. he must a Where the executor tate and in account, In the leading case the executor gave bond to pay debts and legacies, and took the estate and used it as his own, he at the same takes the es time being residuary legatee; and the court decided that having charges him thus administered on the estate, the testator's property was self with it changed. The plaintiff was administrator de bonis non and the proper brought this action of trover for some cattle, which were part of ty is chang ed, especial the estate, not administered upon. So, in the case last cited, it ly where he has given was held, that where the administrator takes the estate and bond to pay charges himself for the amount of the inventory, the personal the debts property becomes his own. 7. GRAFF V. CASTLEMAN, ET AL. May T. 1827, Rand. Rep. 195. and legacies and where he is also re siduary leg atee. trustees of debts, &c. Ch. Kent, would seem to have adopted the doctrine of Lord Executors, &c. in gen Mansfield, 4 T. R. 625, who held the power of an executor over ral are but the effects to be absolute. The better opinion, however, now the effects appears to be, that executors are but trustees for creditors, leg- to atees and distributees; and that it is a misapplication of the as- and so con sets to apply them in payment of his own debts; and that a court sidered in equity. of equity will reach them in the hands of any person who has so received them, knowing that this disposition of them was wrong.* In general, no sale by a person who has no right to sell is good against the rightful owner. Therefore, in Shelley, administratrix v. Ford, 5 C. & P. 316, where the intestate owned a horse, and let the horse to S. for one month and defendant bought the horse of S. for £10; and then sold it again; the court held, that the adminis VOL. V. 35 |