deceased's estate (t), although, formerly, it was held otherwise. It used to be thought that if an executor took a bill of exchange from a debtor of the testator, a new debt was thereby created which must be declared on as such. But modern cases have gone to establish firmly the more rational rule that wherever the money recovered will be assets, the executor may sue for it, and declare in his representative capacity (u); but not all the executors may always join in suing on such a contract, whether they all made the contract or not (v).

Further, it appears that if a legal personal representative takes a bond from a simple contract debtor of the estate, he may not sue upon it in his representative capacity although it be given to him as such, for the bond extinguishes the debt and creates a new and personal obligation of a higher kind (x).

And so, where a covenant is entered into with the deceased for the covenantor to perform certain duties by a given date and the covenantee dies before the time for performance, his legal personal representative generally has a right of action on the covenant (y).

If A. contract to deliver a horse to B. or his assigns on a given day, and B. dies before the day, his executor can sue for breach (2). Further, a right may vest in the personal legal representative which the deceased could not claim, since it was not, in any sense, in existence. Thus, where a lease is made to B. for life, the

(t) King v. Thom, 1 T. R. 487; Partridge v. Court, 5 Price, 412; Catherwood v. Chabaud, 1 B. & C. 150; 25 R. R. 339.

(u) Cowell v. Watts, 6 East, 410-412; Heath v. Chilton, 12 M. & W. 637; Abbott v. Parfitt, L. R. 6 Q. B. 346.

(v) Heath v. Chilton, 12 M. & W. 632; 1 Wms. Exors. 764-5, where the above cases are also cited.

(r) Hosier v. Arundell, 3 Bos. & Pull. 7; Partridge v. Court, supra ;

Price v. Moulton, 10 C. B. 561. And see, also, Murray v. E. I. Co., 5 B. & A. 204; 24 R. R. 325.

(y) Chapman v. Dalton, Plowd. 286; Wentw. Off. Ex. 188, 215; 1 Wms. Exors. 767; Husband v. Pollard, cited in 2 P. Wms. 467; Vin. Abr. Exors. (X) pl. 10.

(2) Chapman v. Dalton, supra. But see, also, Bro. Abr. Deputy; Anon., 1 Leon, 316; 1 Roll. Abr. 915, Exors. (X) pl. 2; 1 Wms. Exors. 768, 769.

remainder to his executors for years (a); or where a lease for years is bequeathed by will to C. for life and afterwards to D. who dies before C. Here, although D. never had the term in himself, yet it shall devolve upon his executors, who may maintain an action in respect of it (b).

It has been held that if no time be set for the redemption of a pledge, the pledgor must redeem during his life, and that his executors cannot, generally, redeem (c).

With regard to torts the law is much the same.

If an injury is done to the estate of the deceased after his death, his legal personal representative can generally claim damages against the wrong-doer therefor, and in such case he may bring the action in his own name or in his representative capacity. Nor does it matter whether the property has been in his actual possession or not (d).

Consequently, he may bring trover against a person having effects of the deceased in his possession, and can insist on such person surrendering them without an inventory or receipt (e); and even if a legatee takes possession of the thing bequeathed without the executor's assent, he is liable to an action for trespass by the executor (ƒ).

And an executor, as such, can maintain quare impedit for a disturbance in his own time, or ejectment, where the deceased had a lease for years, or from year to year,

(a) Wentw. Off. Exors. 189; Co. Litt. 54 b; 1 Wms. Exors. 769.

(b) Wentw. Off. Exors. 181. (c) Ratcliff v. Davies, 1 Bulstr. 29; Kemp v. Westbrook, 1 Ves. Sen. 278. But see Story's Equity, § 1032; Story on Bailments, § 348; and 1 Wms. Exors. n. (c), pp. 769, 770.

(d) Bollard v. Spencer, 7 T. R. 358; Hollis v. Smith, 10 East,

294; Grimstead v. Shirley, 2 Taunt. 117. And see Bro. Trespass, 303; Hudson v. Hudson, Latch, 214.

(e) Cobbett v. Clutton, 2 Car. & P. 471.

(f) Bac. Abr. Exors. (L) 3. See, also, Adams v. Cheverel, Cro. Jac. 113; Wilbraham v. Snow, 2, Saund. 47, n.; Hole v. King, Com. Rep. 163; Jenkins v. Plombe, B Mod. 181; Fraser v. The Swansea Canal Co., 1 Ad. & El. 354.

upon an ouster after his death (g). And since the Land. Transfer Act, 1897, it would seem that similar power may be now exerciseable in respect of the realty (). But in respect of all the above rights it is to be remembered that the legal personal representative may lose his rights by suffering them to become statutebarred.

For the purposes of the Statute of Limitations relating to realty, an administrator claiming the estate or interest of a deceased person, of whose chattels he shall be appointed administrator, shall be deemed to claim as if there had been no interval of time between the death of such deceased person and the grant of letters of administration (i). Accordingly, with regard to the deceased's leaseholds, time begins to run from the date of death, not from the date of grant of letters of administration (); and, since the Land Transfer Act, 1897, the same rule will now hold in regard to the real estate ().

But under the other Statutes of Limitations, if time had not commenced to run during the deceased's life, it does not begin to run against the administrator before the grant of the letters of administration (); but in the case of an executor it runs from the date of the testator's death, or the earlier or later date on which the cause of action arose (m).

If a creditor dies intestate on the day a debt becomes payable to him, and there is no evidence to show whether he died before or after the moment when the debt became payable, the Statute of Limitations does not run against his administrator until letters of administration have been taken out (n).

(g) Smallwood v. Bp. of Coventry, Cro. Eliz. 207; Slade's Case, Co. Pt. IV. 95 a; Moreton's Case, 1 Ventr. 30; Doe v. Porter, 3 T. R. 13; 1 R. R. 626.

(h) 60 & 61 Vict. c. 67, ss. 1-4. (i) 3 & 4 Will. IV. c. 27, s. 6. (j) Davies v. Williams, 34 Ch. D. 558.

(k) 60 & 61 Vict. c. 67, s. 2 (2). (1) Murray v. E. I. Co., 5 B. & Ald. 204; 24 R. R. 325; Burdick v. Garrick, L. R. 5 Ch. Ap. 241.

(m) Burdick v. Garrick, supra ; Hickman v. Walker, Willes, 27; Walker on Exors. 132.

(n) Atkinson v. Bradford Bdg. Soc., 25 Q. B. D. 377.

And even where one's suit is not barred by the statute, relief may be refused on the ground of acquiescence, or upon some other equitable ground (o); but lapse of time will not itself bar an executor's executor of his right to have an account of the original testator's estate taken with a view to ascertain his own liabilities as an accounting party (p).

Where there are several executors, on the death of one, whether before or after probate, the entire right of representation survives to the others.

When the surviving executor, or when a sole executor, dies after probate, his executor, and the executor of such executor, becomes in point of law the executor of the original testator, and is accordingly entitled to all the benefits of contracts entered into with such original testator. But if the sole or surviving executor of a testator dies before probate, the executor of such deceased executor does not become executor to the original testator, for he cannot prove the will, and, therefore, cannot recover debts due to the estate (g). In such a case administration of the goods, &c., of the original testator, cum testamento annexo, must be taken out.

An administrator durante minore ætate of the executor of an executor is the representative of the original testator; for such administrator is in loco executoris (r).

When an administrator dies, or when a sole or surviving executor dies intestate after taking out probate of his testator's estate, no right of representation passes to his administrator; in such a case administration de bonis non must be obtained (s). The administrator de bonis non becomes the sole representative of the original

(0) 3 & 4 Will. IV. c. 27, s. 27.

(P) Smith v. O'Grady, L. R. 3 P. C. 311; Walker on Exors. 132.

(a) Wankford v. Wankford, 1 Salk. 308.

(r) Anon., Freem. 288, pl. 335. (s) Tingrey v. Brown, 1 B. & P. 310; 4 R. R.805; Elliott v. Kemp, 7 M. & W. 311; Moseley v. Rendell, L. R. 6 Q. B. 338; 40 L. J. Q. B. 111. See, also, 1 Addison on Contracts [1892], 236.

testator, and consequently stands in the same position as to the exercise of rights as the original legal personal representative (t).

A married woman may be appointed executrix, and, by the Married Women's Property Act, 1882, she has all the powers of a feme sole, and may act as executrix or administratrix without reference to her husband, nor does he become liable unless he acts or intermeddles in the administration (u).

Besides those rights and benefits which arise directly out of contract or tort, there are many choses in action and interests closely akin thereto which also pass upon the death of the person intended to be benefited thereby to his legal personal representative.

Thus, contingent and executory interests, whether in real or personal estate, pass to the representative of the person dying before the contingency on which they take effect arises (v).

Thus, a devise to B., if B. die without issue then living, or en ventre sa mère, then 3,500l. to C. on marriage or attaining twenty-one, such legacy being charged on the real estate. C. married (having attained twenty-one) and died in lifetime of B., who afterwards. died without issue. It was decreed that the legacy should be raised for the benefit of C.'s administrator (w).

This and other cases cited below establish the principle that contingent and executory interests, although they do not vest in possession, may vest in right so as to be transmissible to executors or administrators (a).

(t) Hirst v. Smith, 7 T. R. 182; 4 R. R. 415; Suwerkrop v. Day, 8 Ad. & E. 624.

(u) 45 & 46 Vict. c. 75, ss. 18, 24. (v) Fearn. Cont. Remd. 554; 2 Saund. 380, note to Purefoy v. Rogers.

(w) King v. Withers, Cas. temp. Talb. 117.

(x) Pinbury v. Elkin, 1 P. Wms. 564; Chauncey v. Graydon, 2 Atk. 616; Peck v. Parrott, 1 Ves. Sen. 236; Barnes v. Allen, 1 Bro. C. C. 181; 3 Ves. Jun. 208; Perry v. Woods, 3 Ves. Jun. 204; Massey v. Hudson, 2 Meriv. 130; 16 R. R. 158. See, also, 1 Wms. Exors. 771-773, where all the above cases are referred to.