each of them has a joint and entire authority over the whole of the testator's personal estate. Hence, if a testator die possessed of a lease for years, having appointed two or more executors, and one of them grant(d) all that belongs to him in the term to a purchaser, the whole estate in the term passes, each executor having an entire authority and control over the testator's chattels real: and though two or more executors prove the testator's will, any one of them may make a valid assignment(e), surrender, or underlease(ƒ) of any leasehold for years, of which the testator died possessed, without the concurrence(g) of his co-executor. Where all the executors are made parties to a deed(h), puporting to pass a chattel interest, it will be binding on all, if executed by any one of them, though not by others.

36. The interest of an executor is derived, not from the probate(i), but from the testator, and the executor, before probate, may assign, or underlet, any chattel real belonging to the testator at the time of his death; and although the executor die without proving the will, an assignment or underlease made by him shall bind, for acts legally done(j) by an executor cannot be avoided, because he omitted to obtain probate, provided the will shall be ultimately proved. Where a testator, who was possessed of a lease for years, demised the premises for a shorter period, retaining a reversion, it was(k) decided, that the reversion vested in the executor immediately on the testator's decease, and then became assets in his hands for its value. If a lease be made to a person for his life, with remainder to his executors for twenty-one years, the chattel vests in the lessee(1) himself, as well as if it had been limited to him and his executors.

A remainder in a term of years, though never vested in the testator in possession, shall go to his executor. Where a lease for years is bequeathed to J. S. for life, and after his decease(m) to B., who dies

(d) 1 Dyer, 23, B., pl. 146; Pannel v. Fenn, Cro. Eliz. 347; Moore, 350, S. C.; 1 Ro. Abr. 924, O., pl. 1; Simpson v. Gutteridge, 1 Madd. Rep. 617.

(e) 1 Dyer, 23, B., pl. 146; Pannel v. Fenn, 1 Ro. Abr. 924, O., pl. 1.

(f) Doe dem. Hayes v. Sturges, 7

Taunt. 217.

(g) Simpson v. Gutteridge, 1 Madd. Rep. 616.

(h) Simpson v. Gutteridge, 1 Madd. Rep. 616; 2 Prest. Abstr. 22.

(i) Jacomb v. Harwood, 2 Vez. Sen. 265; Hudson v. Hudson, West, 155; 1

Atk. 461; Comber's case, 1 P. Wms. 766; Rex v. Stone, 6 T. R. 298, by Lawrence, J.; 3 Dyer, 367, A., pl. 39; 3 Prest. Abstr. 146.

(j) Brazier v. Hudson, 8 Simons, 67; 1 Williams's Exec. 173; Wankford v. Wankford, 1 Salk. 309.

(k) Prattle v. King, Thos. Jones, 169, 170.

(1) Co. Litt. 54, B.; Sparke v. Sparke, Cro. Eliz. 666; Owen, 125, S. C.; Gravenor v. Parker, Anders. 19; Moore, 480; and see 1 Williams's Exec. 481.

(m) 1 Williams on Executors, 480;

before the tenant for life, although the residue never vested in B. in possession, yet it will devolve on his executor: and in like manner contingent and executory interests, as well as possibilities, in chattels real, accompanied by an interest(n), are transmissible to the personal representatives of an individual dying before the contingency, on which they depend, takes effect.

37. The estate of a testator in leaseholds for years vests in his executor in interest, from the moment of the testator's decease, but not in possession (o) until the executor enters; and consequently where personal representatives do not enter into possession, they are only chargeable in their representative capacity (p), to the extent of the assets which have come to their hands; and if an executor be charged generally as assignee of a lease for years, in an action for breach of covenant by non-payment of rent, he may discharge himself from personal liability, by pleading that he is no otherwise assignee, than by being executor(q), and that he has never entered or taken possession of the demised premises; or he may discharge himself from all liability as executor, by alleging that the term is of no value, and that he has administered all the assets which came to his hands; but if, instead of relieving himself by pleading, he takes issue upon the question, whether he is assignee or not, and it be proved that he is executor, and takes the term in his representative capacity, such evidence establishes the fact, that the term vests in him by assignment, and renders him personally answerable. However, the act of one executor, in taking possession of a chattel real belonging to the testator, does not render a co-executor, who has not entered(r), answerable to the landlord in an action for use and occupation, as a joint occupier of the premises.

38. Each executor having a complete control over the testator's chattels, it follows that a surviving executor continues to have the same dominion after the decease of his co-executor; and the executor of a sole, or surviving(s) executor, is the representative of the original testator, and has the same authority as the original executor; and though the testator's will be proved in the Prerogative Court, the

Wentw. 189; Lampet's case, 10 Rep. 46;
Manning's case, 3 Rep. 95; 3 Prest.
Abstr. 152.

(n) Fearne, 554; Purefoy v. Rogers, 3 Saund. 388, C. note 9.

(0) Wentw. 228.

(p) Howse v. Webster, Yelv. 103; Helier v. Casebert, 1 Lev. 127; Nation e. Tozev, 4 Tyrw. 561; 1 Cro. M. &

Rosc. 172.

(9) Wollaston v. Hakewill, 3 Mann. & Gr. 297; 3 Scott, 593; Green v. Ld. Listowell, 2 Irish Law Rep. 384.

(r) Nation v. Tozer, 4 Tyrw. 561; 1 Cro. M. & R. 172, S. C.

(s) 2 Bla. Comm. 506; Barr v. Carter, 2 Cox, 429.

chain of representation is continued by probate of the will of a surviving executor out of a diocesan(t) court. However, the executor of a creditor, who is plaintiff in a creditor's cause in Equity, must procure a Prerogative probate(u) before the usual decree for an account will be pronoueced, and the Accountant-General (v) cannot pay money to the creditor of a deceased creditor, without a Prerogative probate.

On the death of a sole or surviving executor intestate, an administration (w), de bonis non, must be obtained to the original testator, and where there are several executors, and one alone proves the will, and the rest renounce, yet if a renouncing creditor be the survivor, the representation(x) will not be transmitted to the executors of the person who proved the will, but administration, de bonis non, of the effects of the original testator, must be obtained.

If, however, there be two or more executors, and one of them alone proves the will, a suit in Equity relating to the testator's assets may(y) be prosecuted by, or against the executor who proved, without making his co-executors parties, although they have not renounced. Where an executor who has acted under a will dies before probate, his executor cannot(z) prove the will of the original testator, but letters of administration must be procured, with the will of the original testator annexed.

39. The title of administrators is derived wholly from the Ecclesiastical Court, and the property of the intestate only (a) vests in them from the time of granting letters of administration; but such grant of administration has the effect of vesting chattels real in the administrator, so as to enable him to maintain actions in respect of such property for all matters (b) affecting it subsequently to the intestate's death, and to render him liable to account for the rents and profits during the same period. The authority of one of several administrators rests on the same (c) foundation as the authority of one of several executors, and consequently, upon the decease of an administrator, the right will survive to the remaining(d) administrator.

(t) Fowler v. Richards, 5 Russ. 39; but doubted by Sir L. Shadwell, in Jernegan v. Baxter, 5 Simons, 568; and see 1 Williams on Executors, 191.

(u) Youngv Elworthy, 1 My.&K. 215. (v) Thomas v. Davies, 12 Ves. 417; Young v. Elworthy, 1 My. & K. 215. (w) 2 Bla. Comm. 506.

(x) Arnold v. Blencowe, 1 Cox, 426. (y) Davies v. Williams, 1 Simons, 5; Cramer v. Morton, 2 Molloy, 108.

(z) Isted v. Stanley, 3 Dyer, 372, A.;

Hayton v. Wolfe, Cro. Jac. 614; Day v. Chatfield, 1 Vern. 200; 3 Prest. Abstr. 146; Willms. Exec. 146.

(a) Woolley v. Clarke, 5 B. & Ald. 744; 1 D. & Ry. 409; Bacon v. Simpson, 3 Mees. & W. 78-81.

(b) The King v. Inhabitants of Horsley, 8 East, 410.

(c) Williams v. Fenn, West's Rep. 159, note; Hudson v. Hudson, West's Rep. 155; 1 Atk. 416.

(d) Hudson v. Hudson, Forr. 127.

A demise in an ejectment may be laid in the name of an executor, on a day prior to his obtaining probate, or in the name(e) of an administrator prior to the grant of letters of administration. So an executor may distrain for rent due(f) to his testator, before probate, though he cannot avow, in consequence of the necessity of his making profert of the letters testamentary; but where the reversion of a term for years devolves on an executor, he may avow (g) before probate, for rent which accrued due after the testator's death.

So

After obtaining administration, the administrator may maintain(h) trespass or trover for a wrong done to the intestate's property, before the letters of administration were granted, for otherwise an injury might be committed in the intermediate period, without remedy. an administrator may sue for goods of the intestate, which were sold and delivered by an agent(i), after the death of the intestate, and prior to the grant of administration; and the administrator may ratify the acts of the agent in such sale, though ignorant of his name. However, an administrator cannot(j) support a distress for rent made by him in his representative capacity, before the grant of administration.

An executor may commence an action before proving the will, and it is sufficient if he has probate at the time of declaring; but letters(k) of administration must be issued before an administrator can institute an action, as his title to sue commences with the grant of administration.

After obtaining letters of administration, a person may recover back possession of a() chattel real, which he surrendered to the landlord before administration was granted, because a rightful administrator cannot be bound by an act done by him, whilst merely an executor "de son tort."

40. If a chattel real be limited to a person, and the heirs of his body, the absolute (m) interest in the term vests in the grantee, and

(e) Roe dem. Bendall v. Summersett, 2 W. Bla. 692; Lessee Patten v. Patten, Alc. & Nap. 493.

(f) Whitehead v. Taylor, 10 Ad. & Ell. 210; 2 P. & Dav. 367.

(g) Wankford v. Wankford, 1 Salk. 307; 1 Willms. on Exec. 311.

(h) Tharpe v. Stallwood, 7 Jurist. 492, C. B.; Long v. Hebb, Style, 341; Year-Book, 36 Hen. VI. fo. 7, pl. 4; 18 Hen. VI. fo. 22, pl. 7; 2 Ro. Abr. 554, Trespass, T. pl. 2; Bro. Abr. Relation, pl. 34 & 46; Middleton's case, 5

Rep. 28, A.; Locksmith v. Cresswell, 2
Ro. Abr. 399, Relation, A. pl. 1.

(i) Foster v. Bates, 7 Jurist. 1093, Exch.

(j) Keane v. Dee, Alc. & Nap. 496, note; 1 Willms. on Exec. 493.

(k) Martin v. Fuller, Comb. 371; Wooldridge v. Bishop, 7 B. & Cress. 406; 2 Mann. & Ry. 431, note.

(1) Doe dem. Hornby v. Glenn, 1 Ad. & Ell. 49; 3 Nev. & M. 837, S. C.; Bacon v. Simpson, 3 Mees. & W. 78.

(m) Leventhorpe v. Ashbie, 1 Ro. Abr.

will be transmissible to his personal representatives, if not otherwise disposed of by him.

A testator having devised his real estates to J. S. for life, with remainder to trustees, to preserve contingent remainders, with remainder to the heirs of the body of J. S., by a codicil after reciting the subsequent purchase of a leasehold interest for years, bequeathed the same to trustees for such estate, and in such manner and form as his real es tates had been given by his will, it was determined(n), that as J. S. took an estate-tail in the real estates, he was entitled to the absolute interest in the leasehold bequeathed by the codicil.

41. An underlease of a testator's term for years, made by an executor bonâ fide, is effectual at law, and the rent reserved will be assets in the executor's hands. In Equity there are many circumstances which will justify an executor in making(0) such an underlease, instead of selling the premises; but as such an act is not regularly within the province of an executor, it is incumbent on persons accepting an underlease from executors, to show that the act was for the benefit of the persons beneficially interested in the property.

A lease by an administratrix was set aside in Equity, where the next of kin of the intestate(p) required that the interest should be sold, and the undertenant had notice of the demand.

Where a church-lease vested in an administratrix, who granted an underlease of the premises, and covenanted to renew from time to time, to the under-tenant, under a penalty of seventy pounds, as often as the head-lease should be renewed, both (q) Lord Eldon and Lord Redesdale held the covenant for renewal to be so unreasonable and improvident, that unless combined with the option of paying the penalty, it could not be supported against the interest of the children of the intestate, or even against the administratrix herself, and the decree was affirmed, by which a bill, seeking specific performance of the covenant for renewal, was dismissed.

A chattel interest in a dwelling-house being devised to trustees upon trust absolutely to sell, and the trustees, who had also been appointed executors, and obtained probate, having unsuccessfully endeavoured to sell the premises, they, in(r) their capacity of executors,

611, L. pl. 1; Purefoy v. Rogers, 2 Saund. 388, K. note 9; Donn v. Penny, 1 Meriv. 20.

(n) Brouncker v. Bagot, 1 Meriv.

271.

(0) Keating v. Keating, Rep. temp. Sugden, 133-136.

(p) Drohan v. Drohan, 1 Ball & B. 185; Keating v. Keating, Rep. temp. Sugd. 133.

() Magrane v. Archbold, 1 Dow's Parl. Ca, 107; and see Hackett v. M‘Namara, Rep. temp. Plunket, 283.

(r) Evans v. Jackson, 8 Simons, 217;