Before quitting this subject, we may notice, that the doctrine and limits of representation laid down in the * statute of distributions (by which [* 650] no representation among collaterals extends after brothers' and sisters' children () seem to have been principally borrowed from the civil law: whereby it will sometimes happen, that personal estates are divided per capita, and sometimes per stirpes; whereas the common law knows no other rule of succession but that per stirpes only. They are divided per capita, to every man an equal share, when all the claimants claim in their own rights, as in equal degree of kindred, and not jure repraesentationis, in the right of another person. As, if the next of kin be the intestate's three brothers, A., B., and C.; here his effects are divided into three equal portions, and distributed per capita, one to each: but, if one of these brothers, A., had been dead, leaving three children, and another, B., leaving two; then the distribution must have been per stirpes; viz. one third to A.'s three children, another third to B.'s. two children; and the remaining third to C., the surviving brother: yet if C. had also been dead, without issue, then A.'s and B.'s five children, being all in equal degree to the intestate, would take in their own rights per capita; viz. each of them one fifth part (o).

The Statute of Distributions expressly excepted and reserved the customs of the city of London and the province of York, and all other places having peculiar customs of distribution. But, as by a recent act (p), this exception is repealed, and those customs abolished, save as respects the estates of persons who may have died on or before the 31 December, 1856, it seems unnecessary here to do more than notice the fact of their former existence, under which the distribution of intestates' estates*was made somewhat differently than under the statute (7).

[* 651] If a

We return now to the appointment of executors and administrators. bastard, who, being nullius filius, has no kindred, die intestate without leaving wife or child, his goods become the property of the crown. In such a case, administration is granted to the solicitor of the treasury. It is very common, however, in such cases, for the lords of the treasury to resign their rights in favour of some relation of the bastard's father or mother.

interests of

executor and

The interest vested in the executor by the will of the deceased, may be continued and kept alive by the will of the same executor: so that the executor of The respective A.'s sole executor, or of A.'s sole surviving executor, is to all intents and purposes the executor and representative of A. himadministrator. self (r); but the executor of A.'s administrator, or the administrator of A.'s executor, is not the representative of A. (s). For the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another, in whom he has equal confidence; but the administrator of A. is merely the officer of the court, prescribed to him by act of parliament, in whom the deceased has reposed no trust at all: and therefore, on the death of that officer, it results back to the court to appoint another. And, with regard

(n) If therefore A., the brother of the intestate, be dead leaving only grandchildren, and B. be dead, leaving children, and C. still be living, the grandchildren of A. shall have no share, but one-half will be given to the children of B., and the other half to C. 1 P. Wms. 25.

(0) Prec. Chanc. 54.

(p) 19 & 20 Vict. c. 94.

(q) The customs will be found stated in 2 Will. Ex. 1412.

(r) Stat. 25 Edw. 3, st. 5, c. 5; 1 Leon. 275. (8) Bro. Abr. tit. Administrator, 7.

Administration de bonis non. Administrator de bonis non,

to the administrator of A.'s executor, he has clearly no privity or relation to A.; being only commissioned to administer the effects of the intestate executor, and not of the original testator. Therefore in both these cases, and whenever the course of representation from executor to executor is interrupted by any one administration, it is necessary for the court to commit administration afresh, of the goods of the deceased not administered by the former executor or administra*And this administrator, de bonis non, is the only legal representative of the deceased in matters of personal property (t). But he may, as well as an original administrator, have only a limited or special administration committed to his care, viz. of certain specific effects, such as a term of years, and the like; the rest being committed to others (u).

etc.

[* 652]

tor.

Fifthly, of the

of executors

Having thus shown what is, and who may be, an executor or administrator, we will proceed, lastly, to inquire into some few of the principal points of their office and duty. (420) These in general are very much the office and duty same in both executors and administrators; excepting, first, that and administra- the executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and then he differs still less from an executor: and secondly, that an (t) Styl. 225.

tors.

(u) 1 Rol. Abr. 908; Godolph. p. 2, c. 30; Salk. 36.

(420) It may be safely assumed that the powers, rights, duties and liabilities are declared and defined by statute in all of the States. It is no part of the plan of this work, or in the notes, to give the details of the statute law. And it will not be possible to do more than to briefly notice a few of the very numerous decisions in the American courts.

If the will is valid in form and substance, the executor will take such an interest in the testator's property as will enable him to carry such will into effect. And, in ordinary cases, or where the will so provides in terms, the executor will be entitled to the possession and control of the personal estate of the testator, with the power of disposing of it according to law and the directions of the will. Pleasants v. Davidson, 34 Texas, 459; Duffey v. Neale, Taney, 271: Cook v. Burton, 5 Bush (Ky.), 64; Potter v. Van Vranken, 36 N. Y. (9 Tiff.) 619'; Burton v. Hintrager, 18 Iowa, 348; McCollum v. McCollum, 33 Ala. 711; Naylor v. Moffatt, 29 Mo. (8 Jones) 126.

An executor, as legal owner of the credits and choses in action of his testator, may transfer, in the usual way, negotiable paper which is a part of the personal estate. Booyer v. Hodges, 45 Miss. 78; Riddick v. Moore, 65 N. C. 382; Hough v. Bailey, 82 Conn. 288; Munteith v. Rahn, 14 Wis. 210; Grace v. Hannah, 6 Jones' Law (N. C.) 94; Hamrich v. Craven, 39 Ind. 241.

Money due for rent accruing prior to the testator's death goes to his executor as a part of the estate; but rent accruing afterward goes to the heir or devisee if the estate be solvent. Mills v. Merryman, 49 Me. 65; Fay v. Holloran, 35 Barb. 295; Wadsworth v. Allcott, 6 N. Y. (2 Seld.) 64; King v. Anderson, 20 Ind. 385; Foltz v. Prouse, 17 Ill. 487; Kohler v. Knapp, 1 Bradf. Surr. 241.

It is the duty of an executor to carry out the wishes of the testator as directed in his will, if this is not in violation of the rules of law. And, in the absence of express directions, he ought to act in accordance with the requirements of the law. An executor ought to invest the funds of the estate when so directed by the will. Gilman v. Gilman, 2 Lans. 1.

He ought not to use the funds of the estate in his own business. Ivey v. Coleman, 42 Ala. 409; Johnson v. Hedrick, 33 Ind. 129; Powell v. Cooper, 42 Miss. 221; Parker's Estate, 64 Penn. St. 307.

An unauthorized loan of such funds is a conversion of them. Johnston v. Maples, 49 Ill. 101; Walls v. Grigsby, 42 Ala. 473; Baskin v. Baskin, 4 Lans. 90.

He ought not to sell the assets upon credit without taking proper security. Raseman v. Pless, 65 N. C. 374; Hasbrouck v. Hasbrouck, 27 N. Y. (13 Smith) 182.

executor may do many acts before he proves the will (x), but an administrator may do nothing till letters of administration are issued; for the former derives his power from the will and not from the probate (y), the latter owes his (a) Wentw. ch. 3; 1 Will. Ex. pt. 3, q. 2. (y) Comyns, 151.

An executor has no authority to incur debts which will be obligatory upon the estate he represents, unless, perhaps, in the case of mere incidental expenses in the course of discharging his duties. Funderburk v. Gorham, 46 Ga. 296; Dickson v. Compton, 24 La. Ann. 83; McMahon v. Harbut, 35 Texas, 451; Farley v. Hord, 45 Miss. 96; McMahon v. Allen, 4 E. D. Smith, 519; May v. May, 7 Fla. 207.

Ordinarily the fees of attorneys and counsel employed by an executor in relation to the business of the estate should be paid by the estate, and not by him personally; although it is otherwise where the expenses were incurred for his actual benefit, though ostensibly for the benefit of creditors of the estate. Wood v. Goff, 7 Bush (Ky.), 59; Abingdon v. Tyler,

6 Coldw. (Tenn.) 502.

An executor who, without any fault on his part, is robbed of money belonging to the estate, is not personally liable to refund the amount. Fudge v. Durn, 51 Mo. 264; State v. Meagher, 44 id. 356.

One executor is not liable for the acts of his co-executor in relation to the trust estate unless he concurs in such acts. Fulton v. Davidson, 3 Heisk. (Tenn.) 614; Robinson's Estate, 7 Phila. (Pa.) 61; Wood v. Brown, 34 N. Y. (7 Tiff.) 337.

An executor de son tort is one who, without lawful authority, undertakes to act as executor of a person deceased by intermeddling with the estate or converting it. Brown v. Durbin, 5 J. J. Marsh. 170; Howell v. Smith, 2 McCord, 286; Bacon v. Palmer, 12 Conn. 213; Mitchel v. Lunt, 4 Mass. 654; Wilson v. Davis, 37 Ind. 141; Wilbourn v. Wilbourn, 48 Miss. 38.

But a person is not rendered an executor de son tort by mere acts of kindness in preserving the estate, such as locking up the property, taking care of animals, making an inventory to prevent loss by fraud, burying the deceased in a proper manner, providing for his children, etc. Bennett v. Ives, 30 Conn. 329, 332; Brown v. Sullivan, 22 Ind. 359; Emery v. Berry, 28 N. H. 473, 483; Magner v. Ryan, 19 Mo. 196, 200.

An executor de son tort is not chargeable with any assets except such as come to his hands; as he has no right, like a lawful executor, to reduce the other assets, he is not liable for not reducing and administering them. Kinard v. Young, 2 Rich. Eq. (S. C.) 247.

The acts of an executor de son tort are legalized by his taking out letters of administration and are viewed in the same light as though he had been rightful administrator at the time when the goods came to his hands. Rattoon v. Overacker, 8 Johns. 126; Priest v. Watkins, 2 Hill, 225; Matter of Faulkner, 7 id. 181; Shillaber v. Wyman, 15 Mass. 322; Magner v. Ryan, 19 Mo. 196; Stagg v. Green, 47 id. 500; Alvord v. Marsh, 12 Allen (Mass.), 603.

But, while letters testamentary relate back to the death of the testator and legalize the intermediate acts of the executor, still this will only cover and legalize any acts that he might have lawfully done had he been executor at the time. Bellinger v. Ford, 21 Barb. 312.

The erection of suitable grave-stones or monuments is the right and duty of the executor, and this will be an expense which he is authorized to incur and pay out of the funds of the estate. Ferrin v. Myrick, 41 N. Y. (2 Hand) 315, 325; 53 Barb. 76; Donal v. Me Whorter, 44 Miss. 124, 129; McGlinsey's Appeal, 14 Serg. & R. 64; Fairman's Appeal, 30

Conn. 205.

It is a general, if not a universal rule, in this country, that an executor shall make a proper inventory of the testator's estate. Matter of Butler, 38 N. Y. (11 Tiff.) 397; Griswold v. Chandler, 5 N. H. 492; Scott v. The Governor, 1 Mo. 686.

The rule is not uniform in the several states, as to what property shall be inventoried. In some of them nothing but personal estate is included, while in others real estate must be specified. See 3 Redf. on Wills, 213-225, 3d ed.

The collection of debts due to the estate as a part of the assets is one of the first and most important duties of an executor. Where there is danger of loss he ought to act promptly, and take the proper steps for the collection of the demand. Roberts v. Summers, 47 Ga. 435; Oglesby v. Howard, 43 Ala. 144; Cooley v. Vansyckle, 1 McCarter (N. J.), 496.

tort.

entirely to the appointment of the court. If a stranger takes upon him to act as executor, without any just authority (as by intermeddling with the goods of the deceased (2), and many other transactions) (a), he is called in law an Executor de son executor of his own wrong, de son tort, and is liable to all the trouble of an executorship, without any of the profits or advantages; but merely doing acts of necessity or humanity, as locking up the goods, or burying the corpse of the deceased, will not amount to such an intermeddling as will charge a man as executor of his own wrong (b). Such a one cannot bring an action himself in right of the deceased (c), but actions *may be brought against him. And, in all actions by creditors [* 653] against such an officious intruder, he shall be named an executor, generally (d); for the most obvious conclusion which strangers can form from his conduct is, that he has a will of the deceased, wherein he is named execu tor, but has not yet taken probate thereof (e). He is chargeable with the debts of the deceased, so far as assets come to his hands (ƒ): and, as against creditors in general, shall be allowed all payments made to any other creditor in the same or a superior degree (g), himself only excepted (h). And though, as against the rightful executor or administrator, he cannot plead such payment, yet it shall be allowed him in mitigation of damages (i); unless, perhaps, upon a deficiency of assets, whereby the rightful executor may be prevented from satisfying his own debt (k). But let us now see what are the power and duty of a rightful executor or administrator.

To bury deceased.

First, he must bury the deceased in a manner suitable to the estate which he leaves behind him. (421) Necessary funeral expenses are allowed, previous to all other debts and charges; but if the executor or administrator be extravagant, it is a species of devastation or waste of the substance of the deceased, and shall only be prejudicial to himself, and not to the creditors or legatees of the deceased (7).

Secondly, the executor or the guardian, as administrator durante minore ætate, or the administrator durante absentia, or cum testamento annexo, must prove the will. In order to do this, he must make an estimate of the value of the personal property belonging beneficially to the deceased, without taking any account of the debts, * and on the amount so estimated, to the [* 654] accuracy of which, according to the best of his belief, he must pledge his oath, he must pay the duty imposed by law (m). An administrator must make a like estimate (n) for a similar purpose.

These duties, and the expenses of the administration, including (if there be one) the expenses of a suit, are the next payments which an executor or administrator may make, and stand in preference to the debts.

To make inventory.

Thirdly, the executor or administrator is to make an inventory (0) of all the goods and chattels, whether in possession or

action, of the deceased; which he is bound to deliver in to the public authorities upon oath, if thereunto lawfully required. (422)

To collect assets.

Fourthly, he is to collect all the goods and chattels so inventoried (423); and to that end he has very large powers and interests conferred on him by law; being the representative of the deceased (p), and having the same property in his goods as the principal had when living, and the same remedies to recover them. And if there be two or more executors, a sale or release by one of them shall be good against all the rest (q); but in case of administrators it is otherwise (r). Whatever is so recovered, that is of a saleable nature and may be converted into ready money, is called assets in the hands of the executor or administrator; that is sufficient or enough (from the French assez) to make him chargeable to a creditor or legatee, so far as such goods and chattels extend. Whatever assets so come to his hands he may convert into ready money, to answer the demands that may be made upon him: which is the next thing to be considered; for,

Fifthly, the executor or administrator must pay the debts of the deceased. (424) As regards the contract debts of persons who shall

To pay debts in due order.

[ * 655 ] die on or after the 1st January, 1870, whether they arise by specialty or simple contract, they are, as we have seen, to be treated as of equal degree (s). Therefore, the rules of payment by the executor or administrator will be different hereafter to those which now obtain.

We will, therefore, shortly, first state the order of payment which is at present to be observed, and then note the change introduced for the future. First, all debts due to the crown by record or specialty (t) are to be paid in priority to every other.

Secondly, those debts which are by particular statutes to be preferred to all others; such were formerly the forfeiture for not burying in woollen, now repealed by 54 Geo. 3, c. 108; and such are those owing for letters to the postoffice (u).

Thirdly, debts of records,-judgments, decrees, statutes, and recognizances, if registered in accordance with 23 & 24 Vict. c. 38, s. 3.

Fourthly, debts by specialty made upon good consideration.

Fifthly, simple contract debts incurred upon good consideration.

(p) Co. Litt. 209. (q) Dyer, 23.

(r) 1 Atk. 460.

(8) 32 & 33 Vict. c. 46. The latter part of the act contains these words: "All the creditors of such persons, as well specialty as simple contract, shall be treated as standing in equal degree and be paid accordingly out of the assets," whether legal or equitable. These words taken alone might seem to place

(422) See ante, 844, note 420.

(423) See ante, 844, note 420.

judgment debts upon the same footing as other debts, but the scope of the act seems hardly to warrant this construction.

(t) i And. 129. See 33 Hen. 8, c. 39.

(u) 9 Anne, c. 10, an obviously obsolete act. Other instances may be found under the fol lowing acts: 18 & 19 Vict. c. 63, s. 23 (The Friendly Society's Act); 26 & 27 Vict. c. 57 (Regimental Debts); 57 Geo. 3, c. 29. s. 51 (Local Metropolis Act).

(424) In this country there is no general and uniform rule as to the order in which debts shall be paid; and there is no mode of determining the rule in any particular State, except by an examination of its statutes and decisions.

It is as general a rule as any to first pay the expenses of the last sickness, and funeral and probate charges; and next of those debts due to the United States and the State in which the deceased resided. See 3 Redf. on Wills (3d ed.), 249, 252, 258.