CH. 29. Sect. 17. within three months, and to render an account of his proceedings therein," as administrators must do, unless the executor be residuary legatee; and then he may give bond to pay " the debts and legacies of the testator." 66 7. And by the same act, any executor being a residuary legatee may bring an action of account against his co-executor or executors of the estate of the testator, in his or their hands, and may also sue for and recover his equal and proportionable part thereof." And the said act of March 9, 1784, extends this last clause in substance, to co-administrators to recover part by action of account, if the other administrator get into his hands too much of the estate, and refuses to pay debts. 8. Before this act, executors gave no bonds to account. Executors and administrators have the property of the deceased's goods by relation from the time of his death, but cannot 4 T. R. 521. devise them, nor can they be taken in execution for their own debts, unless they treat them as their own. Cro. El. 377. -1 Com. D. 329.-Wentworth 86. 1 Bos. & P. 293. 8 Johns. R. 126.Battoon's case. The probate court must appoint the admr. to sell real estate, 4 Day's Ca. 137. His account must state items, &c. ib. 9. Taking out administration makes all acts legal, though before tortious; but will not defeat a suit before commenced against the deft. as executor de son tort. ART. 3. Rights and duties of executors and administrators1. These are generally expressed in the statutes above cited. But some particular cases deserve further attention. By the law of Massachusetts, any executor, who does not join in proving the will and giving a bond as above, has no power to intermeddle in the estate. By the same law, an executor or administrator may retain for his own debt, due him from theestate, when it is sufficient to pay all debts. Where not so, he can, by reason of the insolvent acts, come in only for his Insolvent act, share. Nor is there by our law, any preference of debts, June 15,1784. except funeral charges, debts to government, and those becoming due in the deceased's last sickness. A judgment debt is not preferred to a simple contract debt. Also, in practice, on the same statute law, the executor or administrator usually has his reasonable allowance for his time and trouble in settling the estate, made to him by the judge of probate. Mass. act, Mar. 4, 1784. Ch. 8, a. 5, § 2. Also, by statute law the executor or admr. has power by the mere form of leave of court, to sell even all the real a. 10, s.11, 14. estate, for the payment of the deceased's debts and legacies. And by the same act, if by neglecting to raise money out of the estate, or to apply what he has in his hands, the deceased's real or personal estate is taken in personal execution, the same is deemed waste in such executor or admr. Also, by this act he may sell even all the real estate, and put the proceeds at interest, if the judge of probate and the court think fit. The opinion till lately was, that it was the natural consequence of these powers and duties, for the executor or admr. to have 14 Mass. R. 500.-4 Mass. R. 354. judgment to recover any part of the real estate, in order to be enabled thus to dispose of it; but the law is now viewed as altered. Cн. 29. Art. 4. §3. By another act, he has the same power over real es- Mass. act, tate mortgaged to the deceased, that he has over a pledge of Feb. 11, 1789. personal estate, and a like power over such real estate, as he, the executor or admr., shall take in execution for the deceased's debts, except where either must be sold to pay debts; then there must be leave of court, as above; and if he takes land for a debt, he becomes siezed to the use of the widow and heirs, &c. of the deceased and these lands are to be distributed as personal estate. 4. Another consequence has resulted in practice, and in some measure necessarily, from these provisions: that is, for the executor or admr. to have possession for a time, of the real estate (as well as the personal) of the deceased at a reasonable rent. This rent he is charged with in his account by the judge of probate; and in case of any dispute about it, the law enables the judge to appoint commissioners to ascertain the amount of this rent. But only the executor or admr. can have power so sell real estate on license of court; a sale by a stranger is void. 503. § 5. These and other statute provisions in Massachusetts, 12 Mass. R. and the practice naturally growing out of them, form quite a complete system of probate laws, to all general purposes; whence, as relative to these subjects, the English statutes and practice in probate and chancery courts are excluded. Some English decisions and precedents, however, will apply here, as being very useful explanations of our laws (as they are often worded as the English acts are on these subjects.) And in several cases of less importance, these English decisions are a part of the law of the land; because they are on points, on which our statutes and practice are yet silent; or to which at most, they very remotely have reference. Some of these may be here noticed. Appeal from probate decree, and held & Mass. R. an admr. cannot charge in his account of administration, the ter v. Brewsexpenses of supporting a minor child. Decree reversed. 131, Brews ter. 290.-Bul. N. ART. 4. English authorities adopted here, &c. § 1. Where 1 Esp. 289, administration is granted to a wrong person, it is only voidable; P. 141.-3 where in a wrong county, it is void: so when granted to one Salk. 22.-1 when it should be to another, the acts of the former are good; Com. D. 355, but when granted to one, when there is a lawful executor, -6 Co. 19.such admr's. acts are void. So if there be a will though con- 2 Lev. 183.cealed. And an administration repealed, does not avoid acts 2 Esp. 337. done under it. 356, 360, 364. 386.-1 Salk. 2. By the English law, if a feme executrix marry A, and 2 Bac. Abr. they get judgment for a debt due to the testator, and she dies, 328. CH. 29. 8 Co. 270, Needham's case.--3 Salk. 306, 163. Salk 299, Wankford v. Wankford. not the husband, but the admr. de bonis non of the testator, shall have execution or sue the judgment. And so did we formerly practice, at least in some cases, but lately it has been held there is no privity between the parties. 3. Assets. If administration be granted to the debtor, it does not discharge the debt; but he must account for it in all cases. But if the creditor make the debtor his executor, it is a release in law to the debtor, of the debt: for it is his own act. Yet the debt is assets, and making him executor does not give him the debt as a legacy, but is a payment and release, and he holds the debt as assets, as so much being in his hands Hob. 10-2 as the property of the deceased; and the reason is given by Show. 401- Holt C. J. Salk. 306," that when the obligee makes the 185-3 T. R. obligor his executor, though it is a discharge of the action, 558.-Jones yet the debt is assets," as "if H be bound to J. S. in a bond 345.-Cro. of £100, and then J. S. makes H his executor; H has actually received so much money, and is answerable for it. And Co. Lit. 264. if he does not administer so much, it is a devastavit." The action is released, but the duty remains. Plow. 184, Car. 373. This seems to be the true explanation of the scores of dictums and decisions in the books, "that if the creditor make the debtor, or one of several joint and several debtors, his executor, it is a release, and extinguishment of the debt." It is a mere discharge, or rather suspension of the action only, while it would be absurd for the person representing the creditor, to sue himself as the debtor, or while as such person it may be presumed he has in his hands the amount of the debt, as owing it as debtor, or one of the joint, or joint and several debtors, in his own right, to himself in âuter droit. Co. Lit. 264. But what is the effect of this discharge or suspension of the action? A mere suspension of the action only, not of the Cro. El. 114. right, while the reason of the suspension continues. If a debtor be appointed admr. this suspension exists, as he cannot as admr., sue himself as the real debtor. Yet, if before the debt be paid, he be removed as admr. as he may be, the debt 3 T. R. 559. must be lost to the estate of the creditor, if his subsequent -1 Salk. 299. -8 Co. 136. 8 Co. 136. 1 Salk. 306. 1 Sid. 79. 1 Com. D. 326. 8 T. R. 168, Dean v. New admr. put in the place of him removed, cannot sue the debtor. But thus to sue him is necessary, reasonable, and common practice. A personal right once extinct or suspended is gone. But a right may remain and an action recur, though suspended for a time, as every action is every Sunday, as no debtor can be sued on that day. Nor does this construction exclude any intention there may appear to be in the will, to give the debt as a legacy to the debtor; and then it is not assets. § 4. The obligee may sue one of two joint and several hall.-5 East obligors, though he covenant with the other not to sue him. 5. Hence a debtor made executor must account for his debt to the residuary legatee &c. obligor executor, who accepted by before probate: this is a discharge. The obligee made the ecutor during A's minority, does not discharge the debt. CH. 29. Art. 4. Churchhill v. § 6. Two executors join and give a release of a debt due to Salk. 319, the testator's estate, but one only receives the money. The English books decide, that both are liable to the testator's creditors; but only he who receives the money is liable to his legatees. How far this principle holds here, is not decided. The one not receiving need not join. 7. After one has generally admitted himself to be admin- 1 Ld. Raym. istrator, he cannot plead he was a temporary one only, and his 265, Sparks v. administration is ended; but one sued as administrator gen- Crafts, & 408. erally, may plead he is such only during A's minority; but he must also shew A is still under age and adininistration continues. Somerset. §8. Where lands are devised the executor before probate 2 W. Bl. 694, of the will may lease them. The executor's power arises from Bendest v. the will, and not from the ordinary; and he may declare be- 5 Burr. 2608. fore probate, Cro. Jam. 15. This was a devise by implica--Lofft. 81. tion, being a devise to his daughter Mary after the death of his daughter Betty, by which the devisor intended her a life. estate. The will alone gives the executor a good title to the goods. Probate is necessary only to enable him to sue for debts, and 1 D. & E. 480. Pish. 9. As to leasehold estates. Where the deft. is charged Salk. 316, as executor, judgment must be de bonis testatoris, though he Buckley r. might have been charged as assignee in the debet and detinet, because of his taking the profits himself: 2. Wherever the rent is of more value than the land the executor may plead it; for then he is accountable in no way for the term to the testator's creditors, or to his legatees; and as to tenancies from 3D. & E. 13, year to year, as long as both parties please; and if a tenant dies ter. intestate, his administrator has the same interest the intestate had, and the lessee of such an administrator may declare in ejectment on a term for years. If an executor sell, surrender, Lofft 68. or merge a term for years, it is still assets, Toller 141, 142. Doe v. Por Billinghurst v. Speerman. -2 Salk. 464. 1 Ld. Raym. § 10. Assets. If an executor pay interest on the testator's See Assets. debts, it is prima facie, though not conclusive evidence of assets, 1 Salk. 297, 5D. & E. 8, n. And if the executor or administrator be sued for rent, he may plead no assets; and that the rent is of more value than the land or premises. Estates per auter vie are assets only for paying debts, not legacies, in England; nor is it distributable, but by our law it falls into the mass of the pro 96. CH. 29. 589.-Salk. 310, Roch v. Leighton. 5 D. & E. 6. -3 East 2, 7, Hope v. Bague & al. and 7 D. & E. 453. perty of the deceased. Judgment against an executor on confession or default admits assets, and on devastavit he is estopped to say he has not assets, and the jury also is estopped to 1 Ld. Raym. find no assets. Administrator's promise to pay the intestate's debts is nudum pactum if no assets. The plt. got judgment against the testator, and judgment of execution in scire facias against his executors, the defts.; then sued them on this last judgment in debt in the detinet, suggesting a devastavit. Held, first, the executors being conclusively fixed with assets by this last judgment, the issue on non detinet lay on them to prove the due administration of such assets. A declaration in the detinet only, against an executor is cured by verdict, but if not, the plt. on such a declaration may take judgment de bonis testatoris; that is, may waive the better judgment de bonis propriis, and take the less de bonis testatoris. By our law, after such judgment against executors or administrators the deceased's estate may be rendered insolvent, and then such judgment will be paid in proportion; hence, not conclusive for the whole. Lands in Georgia assets in the hands of the executor, and may be followed by the creditor in the hands of the devisees &c. 2 Cranch 407. 3D. & E. 125, Dundass. 11. Payment on a forged will &c., or administration Allen, adm. v. repealed &c. seems to be now well settled, that bona fide payment in such cases by debtors of the debts to the deceased, are valid. As where a will was forged and proved, and a debt was paid to the executor by a debtor to the intestate. Held, he was discharged, though the probate was afterwards annulled and administration granted to the intestate's next of kin. While the probate remained, this will could not be impeached, and the executor had a right to the payment, and a court of law would have inforced it, and per Buller J. the probate is a judicial act. The payment of a debt to an administrator de facto is valid, though the administration be after8 East 187. wards repealed and administration granted to another. Assets in choses in action, see Ch. 24. 12 Mass. R. Burrill & al. § 12. The heir is not liable while the executor or adminis399, Royce v. trator is liable. 2. No action lies against the heirs before letters of administration be granted, and when they may be, granted. By our laws, the executor or administrator while he exists, has in his hands the whole estate of the deceased if wanted for fulfilling his contracts: 3. It is only when the creditor can in no way sue the administrator, that he has a right to sue the heirs. Mass. Acts, 1789. Feb. 14, 1791. Feb. 14, 1793. 13. By these acts executors and administrators must be sued within four years after they give bonds in the probate office for debts the deceased owed, suable within said four years, provided the executor or administrator give and post notice |