intestate's goods in his house by his administrator for three months after the death of the intestate, is not sufficient to authorize an execution against them in such a case (a). Formerly, where testators, by their wills, appointed executors without making express disposition of the residue of their personal estate, the executors became by law entitled to the whole residue, and courts of equity to a certain extent followed the law; but now, by 1 Will. IV. c. 40, executors shall be deemed by courts of equity to be trustees for the persons entitled under the statute of distributions, in respect of the residue not expressly disposed of, unless it shall appear by the will or codicil, that the executor was to take the same beneficially. But by sect. 2, it is provided, that the executor's right shall not be affected where there is not any person entitled to the residue. For the decisions under this statute, which have no place in a treatise on the law of Nisi Prius, see Chitt. Stat. i., 1143 (2nd ed.) In an action of indebitatus assumpsit, brought by the plaintiff, as executor of J. S., deceased, for money due to the testator, but received by the defendant, after the testator's death, it appeared in evidence, that before the will was found administration had been granted, and that the administrator had made a warrant of attorney to the defendant to receive the money, which he had done accordingly, and had paid it over to the administrator without notice of the will. Holt, C. J., was opinion, that although all acts done by an administrator, where there is a will, are void, and consequently in this case an action might have been maintained against the administrator, yet the defendant, having paid over the money without notice of the will, was not liable (b). Trevor, C. J., had ruled differently in Jacob v. Allen, Salk. 27: but in Sadler v. Evans, 4 Burr. 1986, Lord Mansfield, C. J., expressed his disapprobation of the decision in Jacob v. Allen, and recognized Pond v. Underwood. When the action for money had and received shall be brought against the principal, and when against the agent, see ante, p. 108 et seq. The property of a deceased person vests in the executor from the time of the death; in an administrator from the time of the grant of the letters of administration. Where, therefore, A. had obtained probate of a will, by which he was appointed executor, and after notice of a subsequent will, sold the goods of the testator: it was held, that the rightful executor, in an action of trover, was entitled to recover the full value of the goods sold, and that A. was not entitled, in mitigation of damages, to show that he had administered the assets to that amount (c). But the title of an (a) Gaskell v. Marshall, 1 M. & Rob. 132. (b) Pond v. Underwood, Ld. Raym. 1210. See Allen v. Dundas, ante, p. 766. (c) Woolley v. Clark, 5 B. & Ald. 744. See Wms. on Exors. 237 (5th ed.) in notå, post, p. 799. administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate; and 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 (d), or trover (e); but not in detinue (f). In actions for trespass to chattels real, an entry must, it seems, have been made before action (g). An administrator may also obtain the benefit of a contract, intermediately made, by a person acting on behalf of the intestate's estate, and for its benefit (h), by suing on the contract (i); and may bring an action for money had and received against a stranger, who has paid over the money of the intestate in discharge of the intestate's debts and funeral expenses (k). So e converso, if one sanctions an expensive funeral, ordered by a relation of the deceased, and afterwards takes out administration, he is liable in the capacity of administrator, for the expenses (1). But it has been held, that where a landlord is entitled to a term of years, and dies without appointing an executor, a distress for rent made after his death and before administration granted cannot be justified (m). An administrator may also bring ejectment, and before administration granted (n). In what Cases the Executor's Interest is transmissible.—The interest vested in B., the sole executor named in the will of A., is (if B. has proved the will (o)) transmissible to C., the executor of B.; that is, the executor of an executor having proved the will is the executor or personal representative of the first testator (p). By 25 Edw. III. stat. 5, c. 5—" Executors of executors shall have actions of debts, accounts, and of goods carried away of the first testators; and execution of the statutes merchants, and recognizances made in courts of record to first testator, in the same manner as the first testator should have had if he were living-and the executors of executors shall answer to others for as much as they have recovered of the goods of the first testators, as the first executors should do, if they were living." The executor of the administrator of A. is not the personal representative of A. (q); for the administrator of A. is merely the officer of the ordinary, in whom the deceased has not reposed any trust, and, therefore, on the death of such administrator, it results back to the ordinary to appoint another. Neither is the administrator of the executor of A., the personal representative of A. (r). In these cases, when the (d) Thorpe v. Stallwood, 12 L. J., C. P. 241; 5 M. & G. 760, S. C. (e) Long v. Hebb, Style, 341; 2 Roll. Abr. 399, tit. Relation (A.). (f) Crossfield v. Such, 8 Exch. 825. (g) Barnett v. Earl of Guildford, 11 Exch. 19. (h) Morgan v. Thomas, 8 Exch. 302. (i) Foster v. Bates, 12 M. & W. 226; Bodger v. Arch, 10 Exch. 333. (k) Welchman v. Sturgis, 13 Q. B. 552. (0) Hayton v. Wolfe, Cro. Jac. 614. (r) Ley v. Anderton, Sty. 225. course of representation from executor to executor is interrupted by an intestacy, it becomes necessary that the ordinary (Court of Probate) should grant a new administration of the goods of the deceased, not administered by the former executor or administrator, as the case may be. Such administrator, usually termed an administrator de bonis non, is the legal personal representative of the deceased. The English executor of a foreign executor is not the representative of the original testator (s). Where an Administration de bonis non is necessary.— An administration de bonis non is necessary:-1. Where the executor of the deceased, having proved the will, dies intestate. Note.-If an executor die before probate, although he should have administered part of the personal estate of the testator, an immediate administration, and not an administration de bonis non, must be granted (†). 2. Where there are several executors, and the surviving executor, having proved the will, dies intestate (u). 3. Where there are several executors, and all renounce except one, who proves the will and dies intestate, without the others having retracted their renunciation (x). 4. Where an administrator dies before he has administered the whole personal estate of the deceased. In assumpsit by an administrator de bonis non the promise was alleged in the declaration to have been made to J. H. the first administrator of the intestate, without stating any promise to the plaintiff. After verdict for the plaintiff, an exception was taken in arrest of judgment, that it was not sufficient to allege the promise made to the former administrator, between whom and the plaintiff there was not any privity; and that it ought to have appeared on the record, that the promise was made either to the intestate or to the plaintiff. But the court refused to grant a rule to show cause, observing, that there was a privity of estate in law between the former administrator, from whom the plaintiff deduced his title, and the plaintiff (y). By 17 Car. II. c. 8, made perpetual by 1 Jac. II. c. 17, s. 5"Where any judgment after a verdict shall be had, by or in the name of any executor or administrator, in such case an administrator de bonis non may sue forth a scire facias and take execution upon such judgment."-It has been held to be within the equity of this statute, that an execution commenced by an administrator may be perfected by an administrator de bonis non (z). By the Common Law Procedure Act, 1852, s. 129, et seq., a writ of revivor or a suggestion on the roll are in most cases substituted for the proceeding by scire facias. (s) Twyford v. Trail, 7 Sim. 92. (t) Per Holt, C. J., in Wankford v. Wankford, Salk. 305. (u) Bro. Abr. Executors, pl. 149. VOL. II. Exch. 633. (y) Hirst v. Smith, 7 T. R. 182. (z) Clerk v. Withers, Salk. 323. See Wms. on Exors. 427 (5th ed.) G III. Of limited or temporary Administrations. 1. During the Minority of Executor.-An infant, however young, may be an executor; but administration shall be granted to another during his minority. At the common law, such administration. determined as soon as the infant executor attained the age of seventeen years, for then the infant was considered as capable of administering (a). But by 38 Geo. III. c. 87, s. 6—" Where an infant is sole executor, administration with the will annexed shall be granted to the guardian, &c. or to such other person as the (spiritual) court shall think fit, until such infant shall attain the age of twenty-one years, &c." A general administrator, ratione minoris ætatis, shall not only have an action to recover debts and duties, and be liable to all actions, &c., but may also grant leases (b), provided it be not to the prejudice of the infant (c). An administrator, durante minore ætate of an administrator, may act and sue until the administrator be of the age of twenty-one years; for administrators are by the statute, and one is not a legal person in the eye of the law capable to act for another as trustee until twenty-one (d). If an administrator durante minore ætate bring an action, he must aver in the declaration that the infant is still under age (e); though no such averment is necessary in an action against such administrator (f). But if the defendant do not take advantage of the omission by plea or demurrer, he cannot object to it after joining issue on another point, which admits the continuance of the authority (g). 2. During the Absence of Executor beyond Sea.-When the executor, or next of kin, is out of the realm, administration may be granted during his absence; for the debt due to the intestate might be lost, if such an administration could not be granted. Clare v. Hedges, cited 2 P. Wms. 580. Such limited administration is grantable at common law before probate has been obtained, or letters of administration granted to the absent executor or next of kin, but not after. To remedy this, by 38 Geo. III. c. 87, s. 1If at the expiration of twelve calendar months after the death of the testator, the executor, to whom probate has been granted, is residing out of the jurisdiction of the king's courts, the [Ecclesiastical] court, which has granted the probate, may, upon the application of any creditor, next of kin, or legatee, on affidavit, grant a special administration to such creditor, &c. for the purpose of being made a party to a bill in equity, to be exhibited against him and to carry the decree into effect, and no further, or otherwise. By sect. 4, the court of equity, in which the suit shall be depending, (a) Prince's case, 5 Rep. 29, b. (b) 6 Rep. 67, b. (c) Bac. Abr. Executors (B. 1.), 2. (d) Freke v. Thomas, Salk. 39. (e) Pigott's case, 5 Rep. 29. (f) Walthall v. Aldrich, Cro. Jac. 590. (g) Bac. Abr. Executors (B. 1), 2; Beale v. Simpson, Ld. Raym. 408. may appoint any person to collect the debts due to the estate, and give discharges. In an action by a person to whom such administration is granted, the absence of the executor in parts beyond the seas ought to be averred in the declaration (h). The plaintiff, having taken out letters of administration under the preceding statute, and having been appointed by the Court of Chancery, under sect. 4, to collect the debts of the deceased, brought an action to recover a debt due to the testator; the defendant pleaded, that on a day prior to the commencement of the action, the executor, to whom probate of the will had been granted, died. On demurrer, the plea was held bad by Rooke and Chambre, Js. (Alvanley, C. J., diss.), on the ground, that the authority of the special administration continued until the appointment of a new representative, notwithstanding the death of the executor (i). However, where a common law administration has been granted to one as the attorney, and for the benefit of the absent executor named in a will, he, and not the executor, is the legal representative of the testator, and he continues to be so during the life of the executor, or, at all events, until he himself takes out probate; but the grant ceases ipso facto on the death of the executor (k). An administration durante absentiâ, granted at common law, is at an end the moment the executor, or next of kin, returns (1). But if in such a case a debtor of the deceased has paid the temporary administrator, without notice of the return of the executor or next of kin, such payment is good (m). Declarations made by the executor, previous to the proceedings for the appointment of a temporary administrator under the act, are not evidence against such administrator in an action brought by him; but the acts of the executor are (n). 3. Pendente Lite, or Pending Litigation.-When a suit is commenced in the Ecclesiastical (Probate) Court touching the validity of a will, or right of administration, an administration may be granted pending the suit, and the person to whom it is granted may bring actions to recover debts due to the deceased, averring that the suit is still depending (0), or he may bring ejectment (p); and such administrator may be sued, inasmuch as he is for the time complete administrator (g). 4. During Lunacy.-Where a sole executor, or next of kin, happens to be a lunatic at the time of the testator's or intestate's decease, the practice is to make a limited grant of administration to his committee, if he has been found a lunatic by inquisition (r); (h) Slater v. May, 2 Ld. Raym. 1071. (i) Taynton v. Hannay, 3 B. & P. 26. (k) Suwerkrop v. Day, 8 A. & E. 624. (1) Wms. on Exors. 444 (5th edit.). (m) Clare v. Hedges, cited 2 P. Wms. 580. (n) Rush v. Peacock, 2 M. & Rob. 162. (r) In the goods of Phillips, 2 Add. 336, n. (b). |