CHAP. V. PRECAUTION of Chancery.(y) But in some cases it will be the duty of the executor to continue the trade so far as may be essential to ARYMEASURES. complete orders in hand and wind up the concern. (~) An executor should immediately after the funeral, without loss of time, request payment of all claims due to the estate, and, if not paid, should sue for the amount, unless there be reasonable grounds for doubting the success of proceeding, and if he delay, and allow the statute of limitations to become a bar, he would be personally liable for the loss to the estate. (a) If the assets be considerable, and it become necessary to deposit the same in the hands of bankers, rather than incur the risk of burglary or robbery, then the executor should be well assured of their responsibility, and should pay in the assets to his separate account, as executor, perfectly distinct from his private account, by which means he would avoid personal responsibility in case the banker should fail. (b) If an executor vest the assets in the funds, he will not be liable to make good a loss by the fall of stock. (c) But the safer course, unless indemnified by the residuary legatee, is to pay any balance of assets not immediately wanted into Court; (d) and he ought not to lend the assets on personal security or doubtful realty. (e) and suits. 11. Of prosecuting Actions and Suits.-An executor or admi- 11. Of prosenistrator must take care expeditiously to enforce claims due to the cuting actions estate, so as to prevent loss 'by a plea of the statute of limitation or other consequence of delay. (f) If there be any doubt upon the claim or the expediency of proceeding for its recovery, he should require the directions of all persons interested. In the next volume will be considered what claims can be enforced by an executor or administrator. It will suffice here to observe, that the right to sue for torts to the person, and even a promise of marriage, die with the person of the deceased; (g) (y) Ex parte Garland, 10 Ves. 119; 2 Williams, 1101. () Marshal v. Broadhurst, 1 Cromp. & J. 405; 1 Tyrwh. 350; 2 Williams, 1103. (a) Hayward v. Kinsey, 12 Mod. 573; 2 Williams, 1111. (b) Wren v. Kirton, 11 Ves. 377; Fletcher v. Walker, 3 Madd. 73; Masserg v. Banner, 4 Madd. 413; 1 Jac. & Walk. 241, S. C.; 2 Williams, 1117, 1118. (c) Hutchinson v. Hammond, 3 Bro. Ch. Rep. 147; Toller, 428. (d) Eagleson v. Kingston, 8 Ves. 406. (e) Wilkes v. Stewart, Coop. 6; Powell v. Evans, 5 Ves. 844. (f) Supra, (a); Hayward v. Kinsey, 12, Mod. 573; 11 Vin. Ab. 309; 2 Williams, 1111; so the merely employing an attorney to demand payment of a bond debt, but not suing, whereby the debt was lost, subjected the executor to pay the amount out of his own funds, Lawson v. Copeland, 2 Bro. Ch. R. 156; and see Goodfellow v. Burchett, 2 Vern. 299; Toller, 426. (g) Chamberlain v. Williamson, 2 Maule & S. 408; 1 Chit. Pl. 5 ed. 21, 22, 78, 79; but see proposed alterations in some respects of the rule actio personalis moritur cum persona in the now pending bill. CHAP. V. PRECAUTION but the payment of debts and compensation for many injuries ARY MEASURES. to personal estate may be enforced by an executor or admini 12. Of resisting claims, actions, and sui strator. (h) At law, executors or administrators, when plaintiffs, are not personally liable to costs, when they have sued only on contracts alleged to have been made with their testator, although they be nonsuited, or have a verdict against them, (i) but it is otherwise, if a count be introduced upon a supposed contract with himself, though in his representative character; (k) and although no personal liability for costs affects the executor, yet the estate is liable, and therefore a residuary legatee is not a competent witness, although he have released his claim for the amount of debt sued for by an executor. (i) In equity, an executor, whether plaintiff or defendant, who, in performance of his duty, has incurred costs, will be allowed them out of the estate. () 12. Of resisting Claims, Actions, and Suits.—As, on the one hand, an executor or administrator is bound to use due endeavours to recover assets, so, on the other hand, he is bound to resist all unfounded claims, the payment of which would diminish the fund for creditors, legatees, or next of kin; as, if he pay a bond debt, which he knew he might have resisted on the ground of usury, or other illegality, such as future cohabitation; (m) or if he pay a debt contracted by the widow, in the name of a testator after his death, though unknown. (») But it is optional whether an executor will plead or take advantage of the statute of limitations, (o) though a Court of Equity will, at the instance of a creditor or legatee, direct that defence to be set up. (p) A general direction in a will to pay all debts, or a devise of land to be sold to pay all debts, will not revive a debt already barred by the statute of limitations, (9) but the latter, or any will creating a trust, would suspend the future operation of the statute as to debts not already completely barred. (r) The whole of the law upon the subject of devastavits would lead us beyond the scope of the present undertaking. (s) The exercise (h) 1 Chit. Pl. 22, 79, 80. (i) Baker v. Tyrwhit, 4 Campb. 27. (1) 2 Williams, 1252, 1253; post, 531. (n) Giles v. Dyson, 1 Stark. R. 32; Blades v. Free, 9 Bar. & Cres. 171. (0) 2 Williams, 1110. (p) Shewen v. Vauderhon, 1 Russ. & M. 349. (9) Burke v. Jones, 2 Ves. & Beames, 275; and see Chitty on Bills, 8 ed 613. (r) Ex parte Ross in re Coles, 2 Glynn & Jam. 331; and see post, chap. ix. on statutes of limitations. (s) See in general 2 Williams, 1104 to 1130. of the power to prefer a particular creditor, and the control of that power will be presently considered. CHAP. V. PRECAUTIONARYMEASURES. executor or ad 13. When or not an Executor will be allowed his Costs.—An 13. When costs executor or administrator would be allowed out of the estate his allowed to an costs of an unsuccessful action bonâ fide brought or defended ministrator. () by him where there was a reasonable ground to institute or defend the action, and no laches or misconduct can be justly imputed to him. (u) But an executor conducting suits as solicitor for the legatees under the will of his testator, will not be allowed his costs in the first instance, if it appear that he had conducted the suits in a negligent and tardy manner. (r) So where an executor misconducts himself, and gives a false account, he will have to pay interest as well as costs; (y) and if an executor, having assets in hand, unnecessarily delay payment, and defend a suit, and afterwards suffer judgment by default for principal, interest, and costs, he will personally have to pay the two latter. (~) But in general the costs of a bonâ fide suit or defence are not to fall personally on the executor. (a) In doubtful cases it is prudent to require and take the directions and indemnity of the parties beneficially interested, or, where there will clearly be a residue, of the residuary legatee, as to the adoption of proceedings or defending them; and for this purpose, especially in cases of foreign claims, when the expense of a commission to obtain evidence, or on any other account, the suit would be attended with great expense, it would be prudent, though not absolutely necessary, to convene a meeting of creditors and legatees, and those entitled to the residue, and act with their concurrence. Executors, who plead a plea, which, on the trial, is proved false, (unless he have also pleaded a plea to the whole action, which has been found true,) is personally liable to pay costs to the plaintiff; (b) as if he plead ineffectually nonassumpsit or plene administravit, and do not succeed on any plea that goes to the whole action. (c) But he will be allowed such costs out of the assets, unless he has been guilty of misconduct in resisting a clear demand. (d) (t) See several cases as to costs, Chit. Eq. Dig. tit. Executors, 409, 410. (u) Baker, executor, v. Tyrwhitt, 4Camp. 27, where Lord Ellenborough so ruled; Wekett v. Raby, 2 Bro. C. C. 386, and see 1 Stark. 32; 2 Williams, 1252. (x) Wilson v. Carmichael, 2 Dow. and Clark, 51, A. D. 1830. (y) Crackley v. Bethune, 1 Jac. & W. 586, 589. (*) Toller, 6 ed. 426, Seaman v. Everard, VOL. I. 2 Lev. 40; Hall v. Hullet, 1 Cox's Rep. 134. (a) Wekett v. Ruby, 2 Bro. C. C. 386, in error, reversing decision below as to costs. (b) Marshall v. Wilder, 9 B. & Cres. 655; 2 Williams, 1219. (c) Marshall v. Wilder, 9 Bar. & Cres. 655. (d) 2 Williams, 1252, 1253; see further post. N N CHAP. V. PRECAUTION. ARY MEASURES. 14. When exe 14. Submission to Arbitration.-An executor or administrator should not refer a dispute to arbitration, at least without expressly restricting the arbitrator from awarding against him cutor ought not personally; nor indeed is any reference even with that qualifito submit to ar- cation, but without the consent of creditors and legatees promise, or give and of the next of kin, prudent; for if an executor refer gene bitration or com time. 15. When he may pay all creditors equally. 16. Executors rally, and the arbitrator should award him to pay, he will be personally liable, although assets have not actually come to his hands. (e) So if an arbitrator should award that a debt claimed by an executor as due to the estate is not due, and the same be thereby lost, the executor will be personally liable to pay the amount. (f) Also if an executor compromise or give time and take a new security, and the debt be thereby lost, he must sustain it. (g) But an executor, to get rid of a bad tenant, may release an arrear of rent and even give him money out of the assets to obtain possession, and if it appear he has bona fide acted for the best, he shall be allowed both.(h) 15. Of general Compromises with Creditors.-But an executor (when there are some assets but not enough to pay all) may and ought properly, even without bill filed, to convene a meeting of creditors and propose an equal distribution, and if upon the faith of an agreement to that effect he executed an assignment of assets, one of the creditors, who assented, cannot afterwards refuse to come in, nor could he sue the executor. (1) 16. Accounting.—An executor should at all times be ready, accounting. (k) on the reasonable application of a creditor or legatee or next of kin, to render a just and explicit account of the assets and his administration, or he may be liable to pay interest or costs. (1) But there is not any regular way of calling an executor to account but by bill, and which ought not to be filed without formal demand of an account and refusal or unreasonable delay in rendering the same. (m) 17. What are 17. What are Assets in Iland at Law.-As an executor canassets in hand. not compel a creditor to take goods in payment of any claim, (e) Taylor v. Lyon, 5 Bing. 200. (g) Toller, 6th ed. 425; Goring v. 2 Lev. 189; 2 Jones, 88; Keilw. 52; Barker v. Talcot, 1 Vern. 474. (h) Blue v. Marshall, 3 P. Wms. $81; Toller, 429. (i) Brady v. Sheil, 1 Campb. 147; Steinman v. Magnus, 11 East, 390. (k) See in general 1 Chit. Eq. Dig. 409. (1) Pearse v. Green, 1 Jac. & W. 135. (m) In mre. v. Burke, 1 Ball & B. 75. it should seem that goods are not actually assets, unless they have actually come to the possession of the executor or administrator, and might have been sold by him for money if he had used due diligence. (n) As to debts due to the estate and choses in action they are not assets in hand until actually reduced into possession, (o) though if the executor should release a debt or damages, or take a fresh bond or note to himself, that would be deemed in law equivalent to an actual receipt, and charge him accordingly.(p) Property vested in the testator as a trustee for others, and terms attending the inheritance of the testator, are not assets, although the legal interest has vested in the executor or administrator.(q) Nor at law or in the Ecclesiastical Court are lands devised for the payment of debts or legacies, assets in respect of which either can be sued at law, but only in a court of equity, and not even in the Ecclesiastical or Spiritual Court, which has no cognizance of lands; and therefore, in case of such a devise, the creditor can, as respects such equitable assets, only proceed in a Court of Equity, and this although the testator has expressly declared that the produce of the sale of the real estate shall be deemed personalty. (r) This constitutes a most important distinction between legal and equitable assets. (s) The words in a will, "In the first place, I will and direct all my just debts and funeral expenses to be paid," and afterwards devising the real estate specifically, constituted a charge on such real estate and equitable assets, but no proceeding at law can be sustained against or in respect of such assets. (t) Where bond or specialty debts have exhausted the personal estate, then simple contract creditors, and even legatees, may, in equity, under the doctrine of marshalling the assets, obtain satisfaction in a Court of Equity out of the real estates, to the extent of the fund subtracted by the bond and specialty creditors. (u) The modern act against fraudulent devises, and subjecting the lands of traders to the payment of even simple contract debts, CHAP. V. PRECAUTIONARY MEASURES. (n) See cases 2 Williams, 1021; but see the judgment of Lord Ellenborough in Crosse v. Smith, 7 East, 258; 6 Mod. 181; Com. Dig. Assets, D. (0) Godolp. Pt. 2, c. 24, s. 5; Jenkins v. Plume, 1 Salk. 207; Williams v. James, 1 Campb. 364. (p) Coke v. Jenner, Hob. 66; Hosier v. Arundell, 3 Bos. & Pul. 7; Partridge v. Court, 5 Price, 419. (q) 2 Williams, 1031, 1032. (t) Williams v. Williams, 3 Ves. J.; 417. (u) As to marshalling assets in general, see Woodes. Vinerian Lectures; and Chit. Eq. Dig. 419 to 422. |