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By stat. 55 Geo. 3. c. 184. s. 37. "Persons administering "personal estates, without obtaining probate or letters of ad"ministration within six calendar months after the death, " or within two calendar months after termination of suit, if "there be any, which shall not be ended within four calendar "months after the death, shall forfeit the sum of 100%., and "10 per cent. on the duty."

II. Of the Nature of the Interest of an Executor or Administrator in the Estate of the DeceasedIn what Cases it is transmissible; and where an Administration de bouis non is necessary.

EXECUTORS or administrators so entirely represent the personal estate of the testator or intestatem, that they are liable to the payment of all debts, covenants, &c. of the deceased, as far as the assets which have come to their hands will extend to pay (5).

The executors" more actually represent the person of the testator, than the heir does the person of the ancestor; for if a man bind himself, his executors are bound though they are not named; but the heir is not bound, unless he be expressly named.

Executors may release, or take a release, before probate (6), if they prove afterwards. So executors may commence an action before probate, and it is sufficient if at the time

m 1 Inst. 209. a. b.

n 1 Inst. 292. b.

o 1 Inst. 209. a.

p 1 Rol. Abr. 917. (A) pl. 1. Plowd. 281. a. S. P.

q 1 Rol. Abr. 297. (A) pl. 2.

(5) "It is a maxim and principle, that an executor, where no default is in him, shall not be bound to pay more for his testator than his goods amount unto." Went. Off. Exe. c. 19.

(6) Before probate and before any seizure, the law adjudges the property of the goods of the testator in the executors. Hence if any person takes the goods of the testator before the executors have seized them, the executors shall have an action of trespass or replevin: by Walsh, J. and Dyer, C. J. Plowd. 281. a. So if a

2 Inst 398,

of declaring they produce in court the letters testamentary (7).

Each executor has the entire controul of the personal estate of the testator, may release, or pay a debt, or transfer any part of the testator's property, without the concurrence of the other executor. And it seems, that the same rule holds with respect to administrators (8).

If two have a lease for years as executors, and one sells the whole, this shall bind the other; and the whole shall

↑ Per Sir J. Strange, M. R. 2 Ves, 267. s Willand v. Fenn, see note (8).

man die possessed of goods, and a stranger takes and converts them to his own use, and afterwards administration is granted to J. S.; J. S. may maintain trover for the conversion before administration granted to him. 2 Roll. Abr. 399. (A) pl. 1,

(7) So where an executor, before probate, files a bill in a court of equity, and afterward proves the will, such subsequent probate makes the will good. Per Talbot, C. 3. P. Wms, 351. So where plaintiffs, after bill filed, took out letters of administration, and charged the same by way of amendment to the bill, having obtained an order for such amendment, it was holden good; for the letters of administration, when granted, relate to the time of the death of the intestate. Humphreys v. Humphreys, 3 P. Wms. 351.

(8) In Willand v. Fenn, E. 11 G. 2. B. R. MSS. a question arose, whether the release of one administrator would bind his companion? The case was argued in E. 11 G. 2. when the court, entertaining doubts, directed a second argument. The second argument was heard Trin. 11 & 12 G. 2. when Lee, C. J. expressed a strong opinion in favour of the affirmative, observing, that it was extremely difficult to form a distinction between executors and administrators upon any reasonable foundation; and that although it had not ever been determined at law, that the administration survived, yet having been so determined in equity, in Adams v. Buckland, 2 Vern. 514. and by Lord Talbot in the case of Hudson v. Hudson, he thought those authorities were so strong, that they ought not to be departed from. The other judges were inclined to the same opinion, but as the case was new, and of general consequence, they ordered it to be argued again. According to Sir J. Strange, M. R. in Jacomb v. Harwood, 2 Ves. 267. the case was decided in the affirmative after the third argument; but, from a MS. note in my possession, it appears to have been compromised before the third argument took place. In Mr. J. Gundry's MS. note, 13 Gundr. 33 a. it is said to have been adjudged for defendant; that is, that the release of one administrator did bind his. companion.

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pass; for each had the entire power of disposing of the whole, both being possessed in the right of their testator'.

So if one dispose of all the goods of the testator without the other".

As an executor is not entitled in his own right, but in auter droit, to the property of the deceased, the goods of a testator, in the hands of his executor, cannot be seized in execution for the proper debt of the executor (9). But if an executrix use the goods of her testator as her own, and afterwards marry, and then the goods are treated as the goods of the husband, they may be taken in execution for the husband's debt. Executors and administrators have a joint interest in the estate of the deceased. Hence, if there are two or more executors or administrators, and one or more of them die, the administration of the estate of the deceased belongs to the survivor or survivors; and it seems, that an action may be brought by a surviving administrator without procuring a new grant of letters of administration.

A probate, as long as it remains unrepealed, cannot be impeached in the temporal courts. Hence, payment of money to an executor, who has obtained probate of a forged will, is a discharge to the debtor of the intestate; although the probate be afterwards declared null, and administration be granted to the intestate's next of kin; for the law will not compel a person to pay a sum of money a second time, which he has once paid under the sanction of a court having competent jurisdiction (10).

t Pannel v. Fenn, 1 Rol. Abr. 924. (O) b Hudson v. Hudson, Ca. T. Talb. 127. pl. 1 Gouldsb. 185. S. C.

u Dyer, 23. b. in marg.

x 2 Inst. 236.

y Farr v. Newman, 4 T. R. 621. Buller, J dissentiente.

Adams v. Buckland, 2 Vern. 514.

c l'er Sir J. Strange, M. R. 2 Ves. 268. cites Rastal, 560. which was replevin by a surviving administrator, but no judgment.

z Quick v. Staines, 1 Bos. and Pul. 293. d Allen v. Dundas, 3 T. R. 125. a 3 Atk. 510.*

(9) "If an executor become bankrupt, the commissioners cannot seize the specific effect of his testator.' Per Lord Mansfield,

C. J. 3 Burr. 1369.

(10) In like manner, it is no defence to an action for a debt due, that the plaintiff is a trader, and has committed an act of bankruptcy, of which the defendant had notice, no commission having issued nor proceedings had for that purpose; for though voluntary payments under such circumstances are not protected, yet payments enforced by coercion of law are valid against the assignees, in case any commission should afterwards be taken out. Foster v. Allanson, 2 T. R. 479.

In an action of indebitatus assumpsite, 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 of 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 (11).

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) transmissible to C. the executor of B.; that is, the execntor of an executor having proved the will) is the executor or personal representative of the first testators. By 25 Edw. 3. stat. 5. c. 5. "Executors of executors shall have actions of debts, ac"counts, and of goods carried away of the first testators; "and execution of 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."

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The executor of the administrator of A. is not the personal representative of A; 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.

e Pond v. Underwood, Per Holt, C. J. London sittings, M. 1705. Ld. Raym. 1210.

f Hayton v. Wolfe, Cro. Jac. 614.
g Bro. Abr. tit. Administration, pl. 7.
h Bro. Abr. tit. Adm. pl. 7.

(11) Trevor, C. J. had ruled differently in Jacob v. Allen, London sittings. M. 2 Ann. Salk. 27.; but see Sadler v. Evans, 4 Burr. 1986. where 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. 88. u. 38.

Neither is the administrator of the executor of A. the personal represe tative of A. In these cases when the course of representation from executor to executor is interrupted by an intestacy, it becomes necessary that the ordinary 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.

Where an administrator de bonis non is necessary.-I shall here briefly enumerate the cases where an administration de bonis non is necessary.

1. Where the executor of the deceased having proved the will, dies intestate.

N. If an executor die before probatek, although he should have administered part of the personal estate of the testator, an immediate administration must be granted.

2. Where there are several executors, and the surviving executor, having proved the will, dies intestate.'.

3. Where an administrator dies before he has administered the whole personal estate of the deceased.

In an 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 recard, that the promise was made either to the intestate or the plaintiff. Kenyon, C. J. and Ashhurst, J. refused to grant a rule to shew 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.

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Stat. 17 Car. 2. c. 8. made perpetual by stat. 1 Jac. 2. 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 bois non may sue forth a scire facias, and take execution upon such judgment."

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And it has been holden to be within the equity of this statute, that an execution commenced by an administrator may be perfected by an administrator de bonis non".

i Ley v Anderton, Sty. 225. k Per Holt, C. J. Salk. 305.

m Hirst v. Smith, 7 T. R. 182.

n Clark v. Withers, Salk. 323.

1 Bro. Abr. Executors, pl. 149.

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