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192 Retainer by Executor and Administrator-Payment of Legacies.

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crees and orders of the Court of Chancery, and rules of
[*193]
courts of common law, and all orders of the Lord Chan-
cellor, or Court of Review in matters of bankruptcy, and of the
Lord Chancellor in lunacy, whereby any sum of money, or any
costs or expenses, shall be payable to any person, have the effect
of judgments at common law (a).

4. Debts by special contract (by specialty), as on bonds, cove-
'nants, and other instruments under seal. Rent due ranks in the
same degree with debts on specialty (b): however, voluntary
bonds are postponed to simple contract debts (c), but take prece-
dence of legacies. A demand arising from a covenant is equally
a debt by specialty, whether the breach be the non-payment of a
specific sum, or it is to be compensated by damages (d).
5. Debts by simple contract are last in order. They include debts
on writings not under seal, as bills or notes, and on binding
verbal promises, and on obligations raised by the law (e). Dama-
ges for dilapidations, payable by the late incumbent of a benefice
to his successor, are, it would seem, to be postponed to the debts
of the deceased of every description (f).

The executor to whom his testator dies indebted, may retain to that extent, or pay himself in preference to all other creditors whose debts are of equal degree with or of lower degree than his own (g); so may an administrator, unless he has entered into articles to pay debts of equal degree with his own, without preference, which terms are usually imposed by the Ecclesiastical Court (h). These rules are liable to modifications, which may be found in the able and comprehensive treatise of Mr. Williams, On Executors, which has been so frequently quoted in the preceding pages, and in that of Mr. Ram, On Assets.

The next duty of the executor is the payment of the Legacies. It follows from the whole of the personal estate being vested in the executor, that a direct gift of personal estate cannot be made by will to any person other than the executor, it can only be by way of legacy, and no gift of a legacy is perfect without the assent of the executor. The safety of the executor requires this, for he is liable to the creditors to the [*194] whole extent of the personal estate (i). If the executor refuse his assent to a legacy without a cause, he may be compelled to give it by the Court of Chancery, which now exercises the principal jurisdiction

(a) 1 & 2 Vict. c. 110. § 18.

(b) Williams on Executors, 809, 810. (c) Jones v. Powell, 1 Eq. Abr. 143-4; the decisions to this effect have all been in suits in the Courts of Equity; see Ram on Assets, 357, n. (d), where the distinctions in regard to voluntary bonds may be seen. This subject will be resumed.

(d) Plumer v. Marchant, 3 Burr. 13811384; Williams on Executors, 815. The executor must preserve sufficient to pay future debts by specialty, but contingent debts, such as debts on bonds or covenants, to save harmless, are not to stand in the way of payment of debts of inferior degree,

ibid. 818, et seq.

(e) Williams on Executors, 822.
(f) Degge, p. 91; Williams, p. 823.
(g) 10 Mod. 496, 497.

(h) See Williams, p. 841.

(i) 2 Bla. Comm. 512. Bracton, at the conclusion of his chapter on the administration of the estates of deceased persons, lays this down as the rule. De bonis defuncti, primo deducenda sunt ea qua sunt necessitatis, (funeral expenses and servants' wages,) postea quæ sunt utilitatis (debts), et ultimo quæ sunt voluntatis (legacies).

Limitations of Chattels, and of Chattel Interests.

194

over legacies (a). All questions as to legacies as being matters testamentary, were, originally, of ecclesiastical jurisdiction exclusively; the Roman law contained a complete body of law in relation to legacies, and to this the ecclesiastical courts naturally resorted. Our entire system of law, in relation to legacies, as will be more fully noticed hereafter, is confessedly founded on the corresponding doctrines of the Roman jurisprudence; and since legacies have become the subject of the jurisdiction of the Court of Chancery, many of our ablest judges, amongst whom I may name Sir William Grant, have not scrupled to refer directly to the Roman law as of a weight equivalent to authority on the subject of legacies.

The courts of common law for a time exercised jurisdiction by action for enforcing of the payment of legacies. The ground on which such actions were sustained, was not in respect of any common law right arising from the gift of the legacy, but on express or implied promises on the part of the executor to pay (b); and an action at law may now be brought for recovery of a specific thing given to a legatee, if the executor has given his assent to the legacy (c); but the courts of common law have long since renounced all jurisdiction for the recovery of general legacies (d). I proceed shortly to notice (though the subject will be again adverted to) the general doctrine as to what limitations of personal estate are allowed at common law in deeds and wills.

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Neither the reason of the rule, nor the rule itself prevailed to prevent interest in chattels real being given to commence at a future day without any intervening estate. But by the ancient rules of the common law no future property, to take place in expectancy, could be created in goods and chattels by deed, the whole vested in the first taker (e); yet in wills, limitations of personal goods and chattels in remainder, after a bequest for life, were permitted. Originally that indulg. [*195] ence was only shown when merely the use (usus fructus) of the goods, and not the goods themselves, was given to the first legatee, the property being supposed to continue all the time in the executor (f); but that distinction has for some time been disregarded as regards chattels capable of enjoyment in succession (g), and now such goods and chattels as furniture, books, and the like, may be devised to one for life, with a limitation over to another (h). No kind of personal property, not even a term for years, was ever capable of being entailed, so as to be pre

(a) Com. Dig. Administration, (C. 8.) (b) Atkins v. Hill, Cowper, 284, and Hawkes v. Saunders, ibid. 289.

(e) Williams, p. 1516.

(d) Since the case of Deeks v. Strutt, 5 T. R. 690, no attempt has been made to recover a pecuniary legacy at law.

(e) 2 Bla. Comm. 398, et v. Tissen v. Tissen, 1 P. W. 502. The reason, as given by Sir William Blackstone, was, that to have allowed such carving of interests would have occasioned suits, and hindered the freedom of commerce.

(f) Y. B. 37 Hen. VI. 30; Bro. Devise, 13; Plowd. 521-2; 1 P. Wms. 2; 2 Freem.

145, 206; 1 Eq. Cas. Ab. 360.

(g) 2 Freeman, 206. 307. et v. ibid. 68; Hyde v. Parratt, 1 P. Wms. 2-6; Duke of Norfolk's Case, 3 Ch. Ca. 33; 2 Bla. Comm. 398. Sir W. Grant, in Randall v. Russell, 3 Mer. 195, considered that such gifts were to be treated as of the usufruct only, and upon that he seems to have founded his judgment.

(h) See Upwell v. Halsey, 1 P. Wms. 652; and 2 Bla. Comm. 398. This was brought about by means of the Court of Chancery, (see 2 Freeman, Append. p. 307,) as will be noticed hereafter.

195 Limitations of Estates pur auter vie-Donations mortis causa.

served to the issue. Two things seem essential, says Mr. Hargrave (a), to an entail within the statute de donis: one requisite is, that the subject be land, or some other thing of a real nature; the other requisite is, that the estate be an estate of inheritance; therefore, neither estates pur auter vie in lands, though limited to the grantee and his heirs during the life of cestui que vie, nor terms for years, are entailable any more than personal chattels; because as the latter, not being either interests in things real or of inheritance, want both requisites, so the two former, though interests in things real, yet not being also of inheritance, are deficient in one requisite. However, adds Mr. Hargrave, estates pur auter vie, terms for years and personal chattels, may be so settled, as to answer the purposes of an entail, and be rendered inalienable almost for as long a time as if they were entailable in the strict sense of the word. Thus estates pur auter vie, (that is, since the power of devising real estate was established, as will be noticed hereafter,) may be devised or limited in strict settlement; and such as have interests in the nature of an estate tail may bar their issue, by alienation of the estate pur auter vie, the having of issue not being an essential preliminary in this case as in the case of a conditional fee. But the manner of settling terms for years, is different; for in them no remainders can be limited, though they may be entailed by way of executory devise, or by deed of trust, as effectually as estates of inheritance, if it is not attempted to make them inalienable beyond the period allowed by law, as will be explained hereafter (b). However, even then, when what is equivalent to an estate tail [*196] is given to the first or any subsequent taker, it vests in him the entire property (c). This rule is not confined to cases in which the words, if applied to real estate, would create an express estate tail, for it applies also to cases in which an estate tail would arise by implication (d); it likewise applies to those cases in which by the effect of the rule in Shelley's case, before noticed (e), the terms of the bequest would, as regards real estate, create an estate tail. If the executory limitations of personal estate are on contingencies too remote, the whole property is in the previous taker (f). A gift for life of specific things, quæ ipso usu consumuntur, is a gift of the property, and there can be no limitation over after a life interest in such articles; where the use and the property can have no separate existence, the old rule, that there can be no limitation over of a chattel, must prevail (g).

Besides formal legacies given by will, there is also permitted a deathbed disposition of property, called a Donatio mortis causa; that is, when a person in his sickness, apprehending his dissolution near (h), delivers,

(a) Note (5) to Co. Litt. 20 a.

(b) "Trusts of terms for years ought to be carried as far as the rules of law will possibly permit, being now become common settlements upon marriage, many estates being held only on terms for years," per L. C. Haywood v. Maunder, A. D. 1687; 2 Freeman, 98.

(c) Hargrave, note cited above.

(d) I do not notice the distinction which formerly prevailed, (2 Roper. Leg, 473.) by reason that the words "dying without is

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Distribution of Personal Estate on Intestacy.

196

or causes to be delivered, any personal goods or chattels to another, or puts the physical means of dominion over them into his power, to keep them for himself or for some one else, in case of the donor's decease. The subject of the gift must be personal property in possession or in action, bonds and mortgage deeds so delivered, are effectual to pass the debt, bills or checks drawn by the deceased on his bankers, to pass the money. The delivery of a key has been deemed to amount to a delivery of the trunk and its contents. In the event of the donor recovering, the property reverts to him. If the donor die, the property belongs to the donee without the assent of the executor, though not as against creditors (a). This method of donation is as old as the time of Bracton, and plainly came to us from the Romans (b).

I proceed to the consideration of how the personal estate of a deceased person is to be applied where it is not disposed of by will. *Originally, where there was no will, the residue of the effects of the [*197] deceased, after payment of his debts, became the property of the person to whom administration of the estate was granted. The ecclesiastical court endeavored to compel the administrator to distribute the residue amongst the next of kin of the intestate, and took a bond from him for that purpose; but such bonds were held to be void by the courts of law, on the ground that by the grant of administration, the authority of the ecclesiastical court was executed, and that it had no further authority. The hardship of this privilege on the next of kin, induced the legislature to interfere (c), by directing that the residue, after payment of just expenses and debts, should be distributed among the next of kin of the intestate according to certain definite rules. In the case of a husband, administrator to his wife, the law was left as it stood, he therefore still keeps the whole (d). As the courts of law have no authority under the statute of distributions, a more particular consideration of this subject is reserved for another place.

(a) 2 Bla. Comm. 514, and the note of Sweet, p. 52; Williams on Executors, p.

612.

(b) Just. Inst. ii. 7. 1; Bla. Comm. ubi sup. ; et v. supra, p. 33, and Bracton, 60 a.

(c) By statute 22 and 23 Car. II. c. 10; Williams, p. 1169.

(d) So declared by 29 Car. II. c. 3, § 25 (Statute of Frauds).

ADDITIONAL NOTE TO CHAPTER V. BOOK II., supra p. 187.

Obligatio autem quæ, ut mater, actionis originem ducit et initium ex aliqua causa præcedente, sive ex contractu vel quasi, sive ex maleficio vel quasi. Ex contractu vero oriri poterit multis modis, sicut ex conventione per interrogationes et responsiones (i. e., per Stipulationem, fo. 99 b. § 2. ut si dicatur promittis? promitto, &c.); ex conceptione verborum quæ voluntates duorum in unum trahit consensum, sicut sunt pacta conventa, quæ nuda sunt aliquando, aliquando vestita. Quæ si nuda fuerint exinde non sequitur actio, quia ex nudo pacto non sequitur actio. Oportet igitur quod habeat vestimentum-et hujusmodi causa, ex contractu vel quasi, semper erit civilis. Item nascitur obligatio ex maleficio vel quasi, et maleficium pervenit ex delicto et injuria, &c. Bracton, fo. 99 a.

It is curious to observe in what a different sense many of the Roman maxims have been applied in our law. The maxim, falsa demonstratione rem non perimi, with the Romans applied to the demonstratio in a formula, Gaius, iv. § 58; with us, it is applied to a gift of a legacy.

*198 Laws relating to Bankrupts and Insolvents-Early Statutes.

*CHAPTER VI.

LAWS RELATING TO BANKRUPTS AND INSOLVENTS.

The Early Statutes relating to Bankrupts.

Bankruptcy confined to Traders.

Commissioners of Bankrupt their Office under 13 Eliz. & 1 Jas. I.—Distribution of Estate, real and personal, amongst the Creditors of the Bankrupt.

Consolidation of Bankrupt Laws by Statute 6 Geo. IV. c. 16.

The later Statutes-Court of Bankruptcy created-Permanent Commissioners appointed in London-Court of Review-Permanent Commissioners appointed in the Country. Application of Bankrupt Laws to Joint Stock Companies by Stat. 7 & 8 Vict. c. 3.

Laws relating to Insolvents-Court for the Relief of the Insolvent Debtors-Stat. 1 & 2 Vict. c. 110-Mode of proceeding under that Statute-The Vesting Order-The Assignees. The Stat. 5 & 6 Vict. c. 116, as to persons who may not have been sued by their Creditors— The Stat. 7 & 8 Vict. c. 96.

The Stat. 7 & 8 Vict. c. 70, for facilitating private Compositions between Debtors and their Creditors.

AN account of the law regarding real and personal property would not be complete without shortly adverting to the laws affecting the property, real and personal, of Bankrupts and Insolvents (a). These laws are wholly of statutory introduction. The common law knows no distinction as regards debtors, whether traders or others, unless, indeed, in respect of such privileges as were given by the lex mercatoria, which will be noticed in the next Chapter. The early statutes relating to bankrupts, (34 & 35 Hen. VIII. c. 4, 13 Eliz. c. 7, and 1 Ja. I. c. 15,) treated those who were the subject of their provisions as offenders. Bankrupts were completely divested of the disposition of their property. By the 13 Eliz. c. 7, bankruptcy was confined to such persons only as had used the trade of merchandize, in gross or by retail; and this distinction has become so completely interwoven with all our laws upon

the subject, that even those who take the most extended *views

[*199] in regard to the law of debtor and creditor, have not yet, it would seem, been able to disengage their minds from its influence. The execution of the laws as to bankrupts was deputed to commissioners to be appointed for the purpose, and so it continued until lately, as will presently be more particularly noticed. Who were to be considered as traders within the meaning of the bankrupt laws was pointed out; so what were to be considered as acts of bankruptcy were specified; these provisions have been varied by later Acts, but for such particulars I must refer the reader to the ample treatises which have been published on the subject of bankruptcy. By the statute 13 Eliz. c. 7, 1 Ja. I. c. 15, and

(a) The grounds and policy of these laws, as they affect the relation of debtor and creditor, it, is of course, beyond my purpose to inquire into; but the student will do well, as a help to the understanding the effect of the late statutes upon the pre-existing law, to refer to some of the short treatises which have been published on the subject: that which I have used and found to answer my

purpose, is the article in the Law Magazine, No. I. (N. S.), on the law of debtor and creditor, which carries the law down to 7 & 8 Vict. c. 96, 9th August, 1844. There seems to be great reason to regret that Lord Cottenham's bill was not substituted for the lastmentioned Act; but it is pretty clear that we have not yet come to the end of legislation on this important subject.

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