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his wife took possession, and continued in possession till her death, it was held that the possession by the wife came within the range of the 20th section, and gave her husband's assignees in bankruptcy a new right to the remainder in fee, the recovery contemplated by that section not being necessarily a recovery by virtue of legal process." The right of the heirs of the husband was held to be a "future estate," within the meaning of the 4th clause of the 3rd section of the Statute of Limitations of Will. IV. (a).

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7. For the purposes of this Act, an administrator claiming the estate or interest of the deceased person of whose chattels he has been 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. C. S. U. C. cap. 88, s. 6.

This section is taken from 3 & 4 Will. IV. cap. 1, s. 18, which was taken from Imperial Statute, sec. 6.

The object of this clause of the Act is to make the period of limitation with respect to chattel interest in land begin to run from the time when the right of entry arose, and might have been acquired by taking out letters of administration. The next of kin and creditors of an intestate will have no just cause of complaint, if for twenty years they neglect their rights, and great injustice might be done to the party in possession, by allowing a stale demand to be brought forward after a longer lapse of time (b).

The old rule, that time ran from the grant of the letters of administration, produced evil. In the case of Fairclaim v. Little, 5 Barn & Ald. 214, administration of the effects of C. was first granted eighty years after his death.

The distinction between an administrator and executor is, that an administrator derives his title wholly from the ecclesiastical court, and has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant (c).

(a) Doe d. Johnson v. Liversedge, 11 M. & W. 517.

(b) 1st Real Prop. Rep. p. 48.

(c) Woolley v. Clark, 5 B. & Ald. 744.

The title of administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate, so that he may recover against a wrong doer who has seized or converted the goods of the intestate after his death, in an action of trespass or trover (a).

But this doctrine of relation exists only in cases where the act is done for the benefit of the estate. Morgan v. Thomas, 8 Exch. 302. On the other hand, an executor derives his title from the will itself, and the property vests in him from the moment of the testator's death. Hickman v. Walker, Willes, 27.

Where letters of administration have been granted, the administrator is entitled to all the rights which the intestate had at the time of his death vested in him; although no right of action accrues to the administrator until he has obtained letters of administration. Pratt v. Swaine, 8 Barn. & Cress. 287. An executor or administrator is not deemed to be in possession of things immovable, as leases for years, or houses before entry (Went. Off. Ex. 228, 4th ed.), although a reversion of a term, which the testator granted for part of the term, is in the executor immediately on the testator's death. Trattle v. King, T. Jones, 170. But the relation of the grant of administration to the death of the intestate, did not it seems divest any right legally vested in another, between the death of the intestate and the grant, so as to enable an administrator, who had obtained letters of administration after an execution issued against the intestate's tenant, to call on the sheriff to pay one year's rent, pursuant to the Statute 8 Anne, cap. 17. Waring v. Dewberry, Gilb. Eq. Rep. 223.

It seems that 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

(a) Thorpe v. Stallwood, 5 M. & G. 760; Foster v. Bates, 12 M. & W. 233; Welchman v. Sturgis, 13 Q. B. 552.

to the death of the intestate, and to render him liable to an account for the rents and profits of it, from the death of the intestate. Rex v. Inhabitants of Horsley, 8 East. 410. And in ejectment by an administrator, the demise might be laid on a day after the intestate's death, but before the administration granted. Selwyn's N. P. 716, 10th edition. Holland v. King, 6 C. B. 727.

Delay on the part of executors to collect rents or sell lands will render them liable, and the courts of Ontario have held executors and administrators strictly accountable for rents and profits. Vide Ernes v. Ernes, 11 Chy. 325.

Executors should proceed with promptitude to realize the assets, and the law presumes that, as a general rule, a year should be sufficient for this purpose. They should exercise a reasonable discretion as to suing debtors, and preserve evidence of having done so, in the case of uncollected debts, the onus of proof being on them and not on the legatees. But where the result proves unfortunate they are not charged with the loss, though the court should not concur in the propriety of the course which, in the bona fide exercise of their discretion, they took. A delay of ten months, which resulted in the loss of a debt, was held to require explanation. McCargar v. McKinnon, 15 Chy. 351.

On a purchase of land, the vendee gave his note payable in a year with interest, for part of the purchase money. The vendor died before the note became due, and administration was not taken out for eleven years. In a suit commenced a year afterwards by the administrator, it was held that as the cause of action did not arise until there was some person to sue (some person to commence the suit), interest was recoverable for the whole period, from the date of the note. Stephenson v. Hodder, 15 Chy. 570; vide also Scatherd v. Kielly, 22 Chy. 8.

In England, "when time has nearly run against a creditor in his lifetime and he dies, his executor will be barred if the statutory time has elapsed though he brings an action

within a reasonable time after his testator's death. Penny v. Brice, 18 C. B. N. S. 393. But if debtor dies intestate, and time has not commenced to run, it will not commence to run until letters of administration have been taken out to the deceased, inasmuch as there has never been any person against whom the creditor could have prosecuted his remedy" (a). Even if the debtor appoints an executor until proof (b), if time has commenced to run in the debtor's lifetime, it will not stop (c). In Glass v. Hope, in Appeal, 16 Chy. 420, which was well argued in our own courts and went to the Court of Appeal, it was held that when time has not commenced to run against a testator when alive, it will not commence till after letters of administration be taken out.

It should not be supposed that an executor is bound to take advantage of the Statute of Limitations on pain of making himself personally liable. This is well settled in the case of McCullough v. Davis, 9 Dow. & Ry. 43, where Lord Hatherly says: "It certainly cannot be considered to be law at the present day, that executors, paying a debt against the recovery of which the Statute of Limitations might be pleaded as a legal bar, render themselves liable to those who are interested in the testator's property." Vide also Hill v. Walker, 4 K. & J. 166. Even if the personal estate be not sufficient, and the payment of the debt would throw a burden on the real estate. Vide Lewis v. Rumney, L. R. 4 Eq. 451. An executor may also retain assets of the testator sufficient to pay debts due from the testator to himself (d). A legatee who is an executor is not barred

(a) Barry's Statute of Limitations, 229; Joliff v. Pitt, 2 Vern. 694; Webster v. Webster, 10 Ves. 93; Burdick v. Garrick, L. R. 5 Chy. 233. (b) Forrest v. Douglass, 4 Bing. 704.

(c) Rhodes v. Smethurst, 4 M. & W. 42; Boatwright v. Boatwright, L. R. 17 Eq. 71.

(d) Norton v. Frecker, 1 Atk. 533; Stahlsmelt v. Lett, 1 Sm. & Giff. 415; Ex parte Dewdney, 15 Ves. 498; Williamson v. Naylor, 3 Y. & C. 211, note (a); Hill v. Walker, 4 Kay & J. 166.

because he can pay himself (a). The same reasoning seems to apply to creditors (b).

8. No person shall be deemed to have been in possession of any land within the meaning of this Act, merely by reason of having made an entry thereon. C. S. U. C. cap. 88, s. 11.

This section is taken from the Con. Stat., thence from 3 & 4 Will. IV. cap. 1, whence it was taken from 3 & 4 Will. IV. cap. 27, s. 10.

By Stat. 21 Jac. I. cap. 16, it was enacted that no entry should be made by any man upon lands, unless within twenty years after his right should accrue. An entry to avoid a fine with proclamations, though not authorized by the party in whose behalf it was made, is sufficiently ratified by an action of ejectment founded on it. Doe d. Blight v. Pett, 11 Ad. & Ell. 842; 4 P. & D. 278.

By 4 & 5 Anne, cap. 16, s. 14, it was enacted that no entry upon lands should be of force to satisfy the Statute of Limitations (21 Jac. I. cap. 16), or to avoid a fine levied of lands, unless an action was thereupon commenced within one year after, and prosecuted with effect. 1 Wms. Saunders, 319. This clause in the Act will have the effect of shortening the period within which an ejectment can be brought, for under the Statute of Anne, a party might enter just before the expiration of the twenty years, and commence his action within one year afterwards.

The defendant being in adverse possession of a hut and piece of land, the lord of the manor entered in the absence of the defendant, but in the presence of his family said he took possession in his own right, and he caused a stone to be taken from the hut, and a portion of the fence to be removed. Held, that these acts were not sufficient to disturb the defendant's possession under this section. Doe d. Baker v. Combes, 19 L. J. C. P. 306. If there be adverse

(a) Binns v. Nichols, 2 Eq. 256.

(b) Rhodes v. Smethurst, 4 M. & W. 42.

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