and afterwards take out administration, he shall be bound by the antecedent gift: (m) but, if the executor make a fraudulent gift of them, they shall continue assets. (n) Such deeds and writings as relate to terms for years, or other chattels, or are securities for debts, belong to the executor. (o) [155] Also, the property in the coffin, shroud, and other apparel of the dead body, remains in the executor. (p) Chattels, whether real or personal, may be held not only in severalty, but also in joint-tenancy. Thus, if a lease for years be granted, or a horse be given, to two or more persons absolutely, they are joint-tenants of it; and unless the jointure be severed, it shall be the exclusive property of the survivor. (q) If the jointure be severed, as by either of them assigning his interest, or selling his share, the assignee or vendee, and the remaining lessee or part owner, shall be tenants in common without any jus accrescendi, or right of survivorship. (r) So if a sum of money be given by will to two or more, equally to be divided between them, they shall be tenants in common. (s) On the principle also of encouraging husbandry, and commerce, stock on a farm, although occupied jointly, or stock of a partnership in trade, shall always, independently of any express contract to that effect, be considered as common, and not as joint property; and therefore in these instances there shall be no survivorship, but the interest of the party dying shall vest in his executor. (t) At law, it is true, the remedy survives, yet [156] the duty does not survive; and, therefore, if one of two joint merchants die, the action for money due to them survives for the survivor, and the executor of the deceased cannot join in an action. But the survivor, on recovery, is liable to an action of account by the executor. (u) Such actions, however, are in a great measure superseded, by the more effectual jurisdiction of a court of equity in matters of account. Chattels personal in the hands of an executor may, in certain cases, be changed into chattels real, and so vice versá; as, if a debt be due to J. S. as executor, on statute, recognizance, or judgment, and he sue out execution, and take the lands of the debtor in extent, the personal duty is, in that case, converted into a chattel real: on the other hand, if such estate by extent, or a mortgaged term, devolve on an executor, and the debtor or mortgagor pay the money due, such chattels real are turned into chattels personal. (x) CHAP. III. OF THE INTEREST OF THE EXECUTOR OR ADMINISTRATOR IN SUCH OF THE CHATTELS AS WERE NOT IN THE DECEASED's. POSSESSION AT THE TIME OF HIS DEATH. SECT. I. Of his interest in choses in action. I PROCEED now to treat of such of the testator's effects as were not in his possession at the time of his death; and in (u) Martin v. Crump, Salk. 444. (x) Off. Ex. 75. 3 Bl. Com. 420. Kemp v. Andrews, Show. 188. this class I am first to consider choses, or things in action, as well those where the cause of action accrued in the testator's lifetime, as those where it accrued after his death. In regard to the first, the executor is entitled to the testator's debts of every description, either debts of record, as judgments, statutes, and recognizances; or debts due on special contracts, as for rent; or on bonds, covenants, and the like under seal; or debts on simple contracts, as notes unsealed, and promises not in writing, either express or implied; and all such debts, when received by the executor, shall be assets in his hands. (a) [158] An executor is also entitled, pursuant to stat. 4 Ed. 3, c. 7, to a compensation in damages for a trespass committed on the testator's goods in his lifetime; and by the equity of that statute, for a conversion of the same, or for trespass with cattle in his close; (b) or for cutting his growing corn, which is a chattel, and carrying it away at the same time; (c) and by the same liberal construction of the abovementioned statute, the executor is also entitled to a debt accrued to the testator under the stat. of 2 & 3 Ed. 6, c. 13, for not setting out tithes; (d) to a quare impedit, for a disturbance of his patronage; (e) to ejectment, for ejecting him; (f) and, in short, to every other injury done to his personal estate previously to his death. An executor shall also have damages for the breach of a covenant to do a personal thing; (g) and although the covenant sound in the realty, as for not assuring lands, or for felling, stubbing up, lopping, or topping timber trees, (gg) yet if it be broken in the testator's lifetime, the executor shall (a) Off. Ex. 65. 3 Bac. Abr. 59. Com. Dig. Admon. B. 13. (b) 3 Bac. Abr. 59. Com. Dig. Admon. B. 13. Off. Ex. 70. Lat. 168. (c) Emerson v. Emerson, 1 Ventr. 187. 407. Moreton's case, 1 Ventr. 30. (e) Off. Ex. 66, 67. (g) Lat. 168. 3 Bac. Abr. 59. be entitled to damages; (h) and an executor may sue for damages incurred by loss of interest on deposit money, and the expence of investigating title, where a vendor omits to make out a good title within the stipulated time, and the vendee dies; (hh) and the damages in any of these cases, when recovered, shall be regarded as assets. So the executor of the assignee of a bail-bond shall re[159] cover on that instrument, inasmuch as it is a vested interest. (i) So an executor is entitled to damages against a sheriff for permitting a party in execution on a judgment recovered by the testator to escape; even although the escape happened in the testator's lifetime. (k) An executor may also demand damages of a sheriff for not returning his writ, and paying money levied on a fieri facias; (1) or for a false return stating that he had not levied the whole debt, when in fact he had. (m) So if the testator in his lifetime were entitled to a writ of error, or audita querela, or to the antiquated remedies of attaint, deceit, or identitate nominis, the executor has a right to recover such compensation as the testator might have claimed; and whatever he so recovers shall be assets in his hands. (n) So, an executor is entitled to replevy goods of the testator; (0) or to recover damages of an officer for removing goods taken in execution before the testator, who was the landlord, had been paid a year's rent. (p) And, in general, an executor has a right to a compensation, whenever the testator's personal estate has been damnified, and the wrong remains unredressed at the time of his death. [160] But an executor has no right to an action for an in (h) Com. Dig. Admon. B. 13. Com. Dig. Covenant, B. 1. Lucy v. Levington. 1 Ventr. 176. Ib. Cooke v. Fountain, 347. Lucy v. Levington, 2 Lev. 26. Off. Ex. 65. (hh) Orme v. Broughton, 10 Bing. 533. (i) Com. Dig. Admon. B. 13. Fortes. 367. (k) Com. Dig. Admon. B. 13. Spurstow v. Prince, Cro. Car. 297. (1) Com. Dig. Admon. B. 13. Spurstow v. Prince, Cro. Car. 297. (m) Williams v. Crey, 1 Salk. 12. (n) 3 Bac. Abr. 60. Off. Ex. 71. (0) 1 Sid. 82. Off. Ex. 66. (p) Com. Dig. Admon. B. 13. Palgrave v. Windham, Stra. 212. jury done to the person of the testator; (q) nor for a prejudice to his freehold; as for felling trees, or cutting the grass, for the trees and grass are parcel of the same. (r) An executor shall also have the benefit of any equitable title of the testator in respect to personal property; and money recovered by the executor by decree in a court of equity shall be assets. (s) In all the above-mentioned cases, I suppose the cause of action to have accrued before the death of the testator. But where it accrues after that event, the executor is equally entitled to the debt or damages. Therefore, if A. contract to deliver certain goods to B. on a certain day, and they are not delivered in the lifetime of B., but after his death to his executor, he shall be possessed of them in that character, and they shall be assets in his hands; as in case the contract had not been performed, damages recovered for the non-performance would have been so considered. (t) So if A. covenant with B. to grant him a lease of certain land by a certain day, and B. die before the day, and before the grant of the lease, A. is bound to grant it to the executor of B., and it shall be vested in him as ex[161] ecutor and consequently be assets. (u) Or, if A. refuse to grant the lease, he is liable to make a compensation to the executor of B. in damages, which shall also be assets. (v) So where a father possessed of a term for years held of the church, renewable every seven years, assigned the lease to his son in trust for himself for life, remainder in trust for the son, his executors, administrators, and assigns; and the father covenanted to renew the lease every seven years as long as he should live. The son died and the seven years elapsed, when the executors of the son filed a bill to compel the fa (q) Lat. 168, 169. 1 And. 243. Mason v. Dixon, Jon. 174. (r) Emerson v. Emerson, 1 Ventr. 187. Off. Ex. 68. (s) 3 Bac. Abr. 59. Harecourt v. Wrenham, Moore, 858. Ratcliff v. Graves, 2 Chan. Ca. 152. Brownl. 76. (t) Off. Ex. 82. (u) Off. Ex. 82. 11 Vin. Abr. 231. L. of Ni. Pri. 158. Supra, 144. (v) Plowd. 286. |