(A) EXECUTOR DE SON TORT.

Where a lessee died intestate during the term, and his widow entered and paid rent, and afterwards the defendant, her son-in-law, took the premises, with the assent of the landlord, and paid rent and continued to occupy during the remainder of the term,-Held, first, that there being no assignment in writing, he was not chargeable as assignee in fact; and, secondly, that he could not be considered assignee in law, for, though the widow might have been chargeable as executrix de son tort, the defendant had not made himself executor de son tort by taking the premises after her. Paull v. Simpson, 15 Law J. Rep. (N.s.) Q.B. 382; 9 Q.B. Rep. 365.

The agent of an executor de son tort, collecting the assets, knowing them to belong to the testator's estate, and that his principal is not the legal personal representative, makes himself liable to account as executor de son tort, notwithstanding he has duly accounted for his receipts to his principal; on the ground that the doctrine, that the receipt of the agent is the receipt of the principal, does not apply

to the acts of a wrong-doer. Sharland v. Mildon, 15 Law J. Rep. (N.S.) Chanc. 434; 5 Hare, 469.

An executor de son tort is subject to all the liabilities, but entitled to none of the privileges of a rightful executor. Carmichael v. Carmichael, 2 Ph. 101.

(B) RIGHTS, Duties, and DisaBILITIES.
[See Conversion and Re-conversion.]

(a) Indemnity against Covenants.

A testator held long leaseholds, some as original lessee and others as assignee. They were sold in a suit-Held, that the executors were entitled to be indemnified against the eventual breaches of the covenants, either by a retainer in court of part of the assets, or by a security of the legatees to refund. Reference directed to ascertain the liabilities in respect of the covenants and what amount should be set apart, with liberty to the legatees to propose a proper security. Dobson v. Carpenter, 12 Beav. 370.

(b) Setting off Debts due to Deceased.

To assumpsit for money received to the use of plaintiff as administrator, and on an account stated with him as administrator, with promises to him as administrator, defendant cannot plead a set-off for money due from the intestate in his lifetime. Schofield v. Corbett, 11 Q.B. Rep. 779.

An executor is entitled to set off against a legacy a debt due from the legatee to the testator, though such debt may have been barred by the statute before the testator's death. Courtnay v. Williams, 15 Law J. Rep. (N.S.) Chanc. 204.

One of the creditors of an insolvent died intestate, leaving the insolvent one of his next-of-kin:-Held, that the administrators of the creditor were not entitled to retain the debt out of the insolvent's distributive share of the creditor's estate. Bell v. Bell, 17 Sim. 127.

(c) Carrying on Trade.

To authorize executors to carry on or to permit to be carried on a trade, the property of a testator which they hold in trust, there ought to be the most distinct and positive authority and direction given by the will for that purpose. Kirkman v. Booth, 18 Law J. Rep. (N.s.) Chanc. 25; 11 Beav. 273.

(d) Allowances to.

A bill instituted by a testator was revived by his executors, and was afterwards dismissed, with costs, to be paid by the executors and retained out of the assets. The state of the assets required the executors to pay a considerable sum out of their own monies:-Held, that they were not entitled to interest thereon. Lewis v. Lewis, 13 Beav. 82.

FB died at the house of H, of a contagious disease, and, under the advice of medical men, H removed from his house with his family while it was cleansed, and the room where F B died fumigated. H, also, to prevent infection, destroyed all the furniture in the room where F B died; and his executor paid to H 160l. as a compensation for his loss, &c.; and upon exceptions to the Master's report disallowing the payment,-Held, it being both necessary to remove and a duty to destroy the

furniture, that an implied contract existed, and that the executor was entitled to be allowed the payment, but that the parties were entitled to further inquiry; and the exception was allowed, with costs.

A physician attended F B during several of the last years of his life without any payment being made to him, but upon some understanding that remuneration was to be made by a legacy, which was not done. The executor paid to the physician 1007. as a remuneration for the services

performed, which the Master disallowed. Upon exceptions to the report,-Held, that there was nothing to raise an implied contract; that the executor had placed himself in the situation of the physician, and was not entitled to have the payment allowed; and the exception was overruled, with costs. Shallcross v. Wright, 19 Law J. Rep. (N.s.) Chanc. 443; 12 Beav. 558.

A sum of 271. for wages due to the servants of a testator at his death, and another sum of 167. for keeping a house for the repairs of which the testator's estate was liable, were allowed to an executor in passing his accounts (under the circumstances of the case) on his own affidavit and without vouchers. Caton v. Rideout, 19 Law J. Rep. (N.S.) Chanc. 408.

(C) LIABILITIES.

(a) For Sums improperly dealt with.

An executor held chargeable with interest on sums retained by him and mixed with his own monies at his bankers; the sums being retained out of the income of the testator's residuary estate, in order to satisfy a debt which there was probable ground to believe due to the testator's estate from a person entitled to a share of such income, but which turned out not to be due to the extent supposed. Melland v. Gray, 2 Coll. C.C. 295.

A, on behalf of the Crown, took out administration to the estate of B, who, it was alleged, had died without leaving any next-of kin; and, as such administrator, sold out a sum of stock belonging to B, and paid the proceeds into the Treasury. Some years after a suit was instituted by the next-of-kin of B against A, and a decree obtained in his favour: -Held, that interest was payable on the proceeds of the sale of the stock since the time of the sale. Turner v. Maule, 18 Law J. Rep. (N.S.) Chanc. 454. Executors by proving the will take upon themselves the obligation of seeing that the assets are got in and properly invested; and it is the duty of each to watch over, and, if necessary, to correct the conduct of the other; and therefore it is no ground of immunity to an executor that he has been passive in permitting a debt due from his co-executor to the testator's estate, or a balance in his hands, to remain outstanding or uninvested, whereby the same has been eventually lost.

Two of three executors who had allowed their co-executor to retain in his hands for a period of six years a sum of money due by him to the testator, and which was afterwards lost to the estate by the bankruptcy of such co-executor, were held liable to make good that sum to the estate.

A direction in a will that executors shall call in securities not approved by them will not authorize a continuance of that kind of investment which a court of equity would not sanction. Stiles or Styles

v. Guy, 19 Law J. Rep. (N.s.) Chanc. 185; 1 Mac. & G. 422; 1 Hall & Tw. 523.

(b) As Assignee of a Lease.

When a lease for years, by which the rent reserved is more than the value of the premises, vests in an executor, the executor is liable as assignee for the amount of rent which the premises could have been let for.

To a declaration in debt on a lease, for rent at 901. a-year for two years and three quarters, due from defendant as assignee, the defendant pleaded "that he ought not to be charged with the said rent otherwise than as executor of W, who died possessed of the term; that he, the defendant, entered upon the said premises as such executor, and that he had not at any time since the death of the said W derived any profit or advantage as such executor or otherwise, by or from the said premises; that the said premises had not since the death of the said W yielded any profit whatever; that the said premises did not vest in the defendant by assignment or otherwise than as such executor, and that he has no assets to be administered." Replication, "that the defendant did after his entry upon the said premises derive great profit and advantage by and from the said premises, which have yielded to him profit (to wit) to the amount of the said rent sought to be recovered." It was proved that the premises could have been let for 601. a-year, and the jury found a verdict for the plaintiff for 1654. (being rent at 607. a-year for two years and three quarters):-Held, that after verdict the plea must be taken to contain the allegation, that the defendant could not have derived any profit whatever from the premises, and that the verdict was properly found for the plaintiff for 1651.

Held also, that the plea was to be construed as applicable distributively to each part of the sum demanded in the first count of the declaration; and thus, though the action was debt and the only plea to the first count was found for the plaintiff, yet he was only entitled to a verdict for so much of the sum claimed in the first count as could have been derived from the premises. Hopwood v. Whaley, 18 Law J. Rep. (N.S.) C.P. 43; 6 Com. B. Rep. 744.

(c) As to Value of Testator's Property. Executors are not chargeable with the value of their testator's property, as stated by himself and others in deeds to which the executors are not parties. Rowley v. Adams, 2 H.L. Cas. 725.

(d) To Costs.

Executors who are plaintiffs will not be exempted from paying the costs of issues on which they have failed, unless the defendant has been guilty of deception or misrepresentation. It is not enough that the conduct of the defendant has been such as to induce the executors to go on. Birkhead v. North, 16 Law J. Rep. (N.S.) Q.B. 284; 4 Dowl. & L. P.C. 732.

(D) ASSETS.

(a) What constitute.

A testator, by his will, after devising his real estate to his executors for the benefit of his wife and children, expressed himself as follows:- -"My executors are charged with the payment of my just

on request, and remaining unpaid to B, and to the defendants, as executors, at the commencement of the suit. Replication, as to parcel of the causes of set-off, the Statute of Limitations, and as to the residue, that the plaintiff was not indebted to B, nor is indebted to the defendants, as executors. Verification:-Held, on special demurrer to the replication, that the latter part of it was bad, and should have concluded to the country.

Quare-whether the replication was not also bad for duplicity.

Held, also, that the plea was a good answer to the action. Blakesley v. Smallwood, 15 Law J. Rep. (N.S.) Q.B. 185; 8 Q.B. Rep. 538.

In an action against A and B as executors, A cannot plead that B is not an executor.

In an action for use and occupation against defendants as executors, declaration that defendants, as executors, were indebted to the plaintiff for the use and occupation of certain premises held of the plaintiff by the defendants, as executors, under a demise thereof to the testator, and thereupon defendants, as executors, promised to pay:-Held, upon demurrer to a plea, that the declaration was good under the statute 11 Geo. 2. c. 19, and sufficiently charged the defendants de bonis testatoris. Atkins v. Humphrey, 15 Law J. Rep. (N.s.) C.P. 120; 3 Dowl. & L. P.C. 612; 2 Com. B. Rep. 654.

To a declaration charging the defendant as executor, a plea, that the defendant never was executor, nor ever administered any of the goods or chattels of the deceased, may conclude to the country. Wood v. Kerry, 15 Law J. Rep. (N.s.) C.P. 122; 3 Dowl. & L. P.C. 642; 2 Com. B. Rep. 515.

A judgment of assets quando acciderint affects all assets which at the time of such judgment are in the hands of the executor not administered, as well as those which may come into his hands subsequently.

Where, therefore, in an action against an executor, the defendant pleaded plene administravit præter, and the plaintiff replied that assets had come to the defendant's hands since plea pleaded,-Held, that such replication was unnecessary and bad. Smith v. Tateham, 17 Law J. Rep. (N.s.) Exch. 198; 2 Exch. Rep. 205; 5 Dowl. & L. P.C. 732.

In debt on bond against the defendant as executrix of S, who was executrix of the obligor, the defendant pleaded that S died intestate, absque hoc, that the defendant was the rightful executrix of S. On demurrer, held, that the plea was good in form, but that it afforded no answer to the action, as it admitted that the defendant as executrix de son tort had received all the assets not administered by S, but did not shew that the defendant had no assets in her hands unadministered of the original testator, either independent or in consequence of a devastavit by S, out of which she could satisfy the debt. Meyrick v. Anderson, 19 Law J. Rep. (N.S.) Q.B. 231.

The first two counts of the declaration charged the defendant as executor of J H in respect of principal and interest due from the testator to the plaintiff. The third count stated that the defendant as such executor as aforesaid was indebted to the plaintiff in 2007, for interest for the forbearance at interest by the plaintiff to the defendant as such executor as aforesaid at his request of monies owing from the defendant as such executor as aforesaid to

the plaintiff:-Held, that the declaration was bad on the ground of misjoinder, and that the words " at his request" in the third count could not be rejected as surplusage. Bignell v. Harpur, 19 Law J. Rep. (N.S.) Exch. 168; 4 Exch. Rep. 773.

(c) Practice.

In 1825 Henry Wyatt and his son Henry E, who had previously carried on business as brewers, admitted another son, George, into partnership. By the partnership deed, it was agreed that the plant, &c., which was stated to have been valued at 63,000l., exclusive of the stock and debts, should be the capital, to a moiety of which the father was to be enttiled. His surplus monies in the business were stated to amount to 48,9157., on which he was to receive interest. He died in July 1826, having, by his will, given his surplus capital to his executors, in trust to invest the same in government or other security, and pay the income to his wife, and after her death to set apart two legacies of 12,0001. each for his two daughters and their children. He gave his interest in the business and the stipulated ordinary capital to his sons Henry E, George, and William, who was a minor, and he directed his executors to carry on the business, in conjunction with his two sons, until William attained twentyone, and he empowered them to sell his share in the brewery during his minority. He charged his freehold and other property with the payment of his surplus capital, and directed mortgages of his real estate for securing the legacies. The will was not proved till December 1827, the executors having in the mean time left the surviving partners in the undisturbed possession of the partnership property; and the business, although they did not take any active part in it, was carried on with their concurrence. Disputes having arisen between the surviving partners, the adult legatees filed a bill in 1827 for administration, which, through the interference of the executors, was abandoned. In 1828 the executors joined in deeds whereby the partnership was dissolved, and Henry E assigned his interest to George, in consideration of 20,0004, and the executors released Henry E from all claims in respect of any surplus capital. The business, which was afterwards sold with the sanction of the Court, was found to be insolvent, and the partnership property turned out to be wholly unproductive to the testator's estate. The executors then filed a bill for administration of the estate; and in January 1831, a bill was filed by the children of the testator's two daughters, seeking to charge the executors with wilful default in not having obtained payment of the legacies out of the surplus capital. By several decretal orders, made in both causes, accounts were directed to be taken as to the accuracy of the recitals in the partnership deed, the value of the plant, and the surplus money due to the testator at his death; and accounts were directed to be taken of the partnership dealings and transactions; and if the Master should find that he was unable to take such accounts, by reason of the non-production of books of account, he was to state the circumstances. The Master, having reported that he could not take the accounts for non-production of books, he was, by another order, directed further to inquire by whom the partnership property was pos

sessed at the death of the testator, and how disposed of, and whether the executors, with due diligence, and without their wilful default, might have possessed themselves, out of the partnership property, of sufficient to pay the two legacies of 12,000l. The Master again reported that he was unable to take the accounts, by reason of the non-production of the books; he found, however, on the evidence before him, large sums to have been due to the testator at his death, and large partnership assets, and that the executors might, with due diligence, and without their wilful default, have possessed themselves out of the partnership property of a sufficient sum to pay the two legacies. The Court, upon exceptions, negatived the finding of wilful default:-Held, by the House of Lords, that there was no just ground of appeal against the order directing further inquiries as to sufficiency of assets and wilful default of the executors.

If an order directing inquiries be deemed unnecessary, the party objecting should promptly apply to the Court to discharge it; as a Court of appeal would not listen to objections taken after the delay and expense of the inquiries were incurred; and if it did, it would reject the information so obtained.

Held, also, by their Lordships, affirming the order of the Court below upon the exceptions, that the Master's findings of the sufficiency of assets and wilful default, were displaced by his former findings, confirmed by the Court, of the impossibility of ascertaining the testator's surplus capital; that there was no reason for thinking that the surplus capital could, if at all, have been realized, without putting an end to the business, which the executors could not do without breach of their duty; that though the executors had not properly performed their duty, still, as it had not been satisfactorily made out that there ever were partnership assets out of which the legacies could have been recovered or secured, the executors ought not to be charged with wilful default. Rowley v. Adams, Adams v. Rowley, Wyatt v. Adams, 2 H.L. Cas. 725.

If a trustee be sued for an account in the Court of Chancery, and it should appear that he had properly expended sums of money for the protection and safety, or for the maintenance of his cestui que trust, at a time when the cestui que trust was incapable of taking care of himself, the Court will allow him credit for such sums.

A party had exhibited violent conduct as well during the lifetime of his mother as subsequently, and was considered to be of unsound mind, and, upon the proper medical certificates, was removed from prison (where he had been confined by order of a magistrate on account of a threat to murder a person,) to a lunatic asylum. He escaped from the asylum, and was afterwards, on an inquisition, found by a jury to be of sound mind. In a suit, afterwards instituted by the party, and pray. ing the usual executorship accounts, against the executor of the will of the party's late mother, under which the party took beneficially, it was held that the executor was entitled to an inquiry before the Master, under what circumstances the executor interfered to take care of the party, and to place him in an asylum, and how long the party was maintained in such asylum, and what

sums were properly expended by the executor for the protection and support of the party whilst he remained in such asylum, and under what circumstances the commission of lunacy was sued out and prosecuted.

Held, also, that where facts have occurred after filing the answer to an original bill against an executor for an account, the defendant is justified in filing a cross-bill to put those facts in issue. Nelson v. Duncombe and Duncombe v. Nelson,, 15 Law J. Rep. (N.s.) Chanc. 296; 9 Beav. 211.

An executor having a promissory note for 400l. as part of the assets, retained it in his possession without taking any proceedings to recover the amount or interest for seven years; and at the end of that time, when the sole residuary legatee came of age, the executor delivered the note to him. The residuary legatee, ten years afterwards, filed his bill against the executor, charging him with breaches of trust in the administration of the estate. The Court under such circumstances refused to charge the executor with the amount of the promissory note, or to direct an inquiry whether any loss had resulted to the estate by reason of the executor not having taken proceedings to enforce payment of the note.

In such a case the executor would only be chargeable if the amount of the note could have been recovered during the seven years between the death of the testator and the time when the plaintiff attained his majority; and in case it were found to have been recoverable during that time, still the executor would not be chargeable unless it could not be recovered during the ten years which elapsed after the note was delivered to the plaintiff. East v. East, 5 Hare, 348.

In a creditors' suit to administer the estate of an insolvent testator, his executor and son claimed to be allowed the amount of principal and interest due on a bond alleged by him, and admitted by the testator (as proved by a single witness) to have been given to the former for arrears of salary; and also the amount of principal due on two other bonds for valuable consideration from the testator to two creditors, which amount they had lent, after the testator's death and before the institution of the suit, to the executor personally, and from which they had released the testator's estate, but for which no part of the testator's assets had been paid or delivered to them by the executor:-Held, on exceptions to the Master's report, that on such evidence as the above an issue ought to be directed to try the consideration of the bond given by the testator to his son: and it being admitted that the executor had at the time of the transactions between himself and the bond creditors sufficient assets of the testator in his hands to satisfy the amount of those debts, that the executor was entitled to prefer them to others of equal degree, and to be allowed the payment of them in passing his accounts. Also, that

it was immaterial to consider whether the assets had been converted into cash for the purposes of those transactions; and that they were not invalidated by the omission of an actual payment of cash or delivery of goods of equivalent value by the executor to those creditors.

The executor, who was the defendant in the suit, was ordered to be the plaintiff at law in the trial of the issue. A motion by him that he might be