CHAP. VII. HOW EFFECTS WHICH AN EXECUTOR TAKES IN THAT CHARACTER MAY BECOME HIS OWN. THE property which an executor takes in his representative capacity may, in certain instances, be converted into his own. As first, in regard to the ready money left by the testator. On its coming into the hands of the executor, the property in the specific coin must of necessity be altered; for when it is intermixed with the executor's own money, it is incapable of being distinguished from it, although he shall be accountable for its value; and therefore a creditor of the testator cannot by fieri facias on a judgment recovered against the executor take such money as de bonis testatoris in execution. (a) So, if the testator died indebted to the executor, or the executor not having ready money of the testator, or for any other good reason, shall pay a debt of the testator's with his own money, he may elect to take any specific chattel as a compensation; and if it be not more than adequate, the chattel by such election shall become his own: (b) consequently if by such election he acquire the absolute ownership of the chattel and die, his executor may defend himself in an action of detinue [239] brought for the same by the surviving executor of the first testator. But if the debt due to him from the testator amount to the full value of all his effects in the executor's hands, there is a complete transmutation of the property in favour of the executor, by the mere act and operation of law in the former case his election, and in the latter the mere operation of law, shall be equivalent to a judgment and execution, for he is incapable of suing himself. (c) (a) Off. Ex. 89. : 185, infra. (c) Plowd. 185. So in the case of a lease of the testator devolved on the executor, such profits only as exceed the yearly value shall, as it has been already stated, be held to be assets: it therefore follows, that if the executor pay the rent out of his own purse, the profits to the same amount shall be his. (d) There are likewise other means of thus changing the property: as if the testator's goods be sold under a fieri facias, the executor, as well as any other person, may buy such goods of the sheriff; and in case he does so, the property, which was vested in him as executor, shall be turned into a property in jure proprio. (e) If the executor among the testator's goods find, and take some, which were not his, and the owner recover damages [240] for them in an action of trespass or trover, in this, as in all similar cases, the goods shall become the trespasser's property, because he has paid for them.(ƒ) If the grantee of the next presentation to a living die after the church becomes void, and before presentation, his executor shall have the benefit of presenting. Nor shall it be regarded as assets, since it is incapable of being sold.(g) But if in that case a stranger shall present, and procure his clerk to be admitted, damages recovered by the grantee's executor in a quare impedit shall be assets. (h) (d) Off. Ex. 90, 91. (e) Ibid. 91. (f) Ibid. (g) Off. Ex. 73. Shep. Touchst. 496. (h) Off. Ex. 73. CHAP. VIII. OF THE INTEREST OF AN ADMINISTRATOR, GENERAL AND SPECIAL-OF A MARRIED WOMAN EXECUTRIX OR ADMINISTRATRIX OF SEVERAL EXECUTORS OR ADMINISTRATORSOF THE EXECUTOR OF AN EXECUTOR-OF AN ADMINISTRATOR DE BONIS NON-OF AN EXECUTOR DE SON TORT. As an administrator has the office and quality of an executor, the interest of the one in the property of the deceased is in all respects the same as that of the other. (a) The interest of special or limited administrators is also, during its continuance, the same as that of an executor; (b) but they are not invested (as will be shewn in its proper place), with the same powers and authority as belong to him. (c) If a married woman be an executrix, or administratrix, the husband has a joint interest with her in the effects of the deceased; such as devolves the whole administration upon him, and enables him to act in it to all purposes, with or [212] without her assent. (d) Therefore it is held that he may surrender or dispose of a term which was vested in her in that capacity, and such surrender or disposition shall be binding upon her. (e) So a gift, or release of any part of the deceased's personal property by the husband alone shall be equally available; (ƒ) but the wife has no right to administer without the husband: and such acts as have been just mentioned, if performed by her without his concurrence, will (a) Off. Ex. 259. Off. Ex. Suppl. 48. 5 Co. 83. Blackborough v. Davis, 1 P. Wms. 43, vide Hudson v. Hudson. 1 Atk. 460, and Jacomb v. Harwood, 2 Vez. 267, and infra. (b) 2 Fonbl. 387. (e) 11 Vin. Abr. 104, 105. 3 Bac. Abr. 13, 14. (d) Yard v. Eland, Ld. Raym 369. Com. Dig. Admon. D. Wankford v. Wankford, 1 Salk. 306. Off. Ex. 199. Ankerstein v. Clarke, 4 Term Rep. 617. (e) Thrustout v. Coppin, Bl. Rep. 801. (f) Yard v. Ellard, Salk. 117. Off. Ex. 208. be of no validity. (g) In case of the husband's death, the interest never having been divested, shall survive to her; but if she die, it shall not survive to the husband, inasmuch as it belonged to him merely in her right, as representative of the deceased. (h) And although, generally speaking, a feme covert cannot make a will without the assent of her husband, yet without his assent she may make a will, and continue the executorship in respect to the property thus vested in her in auter droit. (i) Hence, if the wife of A. have debts due to her in her own right, and be also executrix to B., and make a will without her husband's assent, appointing an executor, the will, in respect to the goods and credits which belonged to her as the executrix of B., shall be valid, and her executor may prove it in opposition to the husband. But as to the debts due to her in her private capacity, the will shall be [243] void, and the husband may take administration: she shall be considered as dying testate in regard to the property of which she was possessed as executrix, and as intestate in regard to that to which she was entitled in her own right. (k) If there be several executors or administrators, they are regarded in the light of an individual person. They have a joint and entire interest in the testator's effects, which is incapable of being divided, (/) and in case of death, such interest shall vest in the survivor. (m) So also an executor of an executor, in however remote a series, has the same interest in the goods of the first testator, as the first and immediate executor. (n) An administrator de bonis non has also the same interest in (g) Wankford v. Wankford, Salk. 306. Off. Ex. 207, 208. Com. Dig. Admon. D. vide supra, 9. (h) Off. Ex. 208. Com. Dig. Baron and Feme, F. 1. Dy. 331. (i) 2 Bl. Com. 408. Off. Ex. 199. 3 Bac. Abr. 10. Off. Ex. Suppl. 20. (k) Off. Ex. 202. (1) Com. Dig. Admon. B. 12. Dy. 23 b. 3 Bac. Abr. 30. Jacomb v. Harwood, 2 Vez. 267, and vide infra. (m) 9 Co. 36. Dy. 160. Eyre v. Countess of Shaftsbury, 2 P. Wms. 121, vide supra, 37. (n) Com. Dig. Admon. G. Off. Ex. 259. 11 Vin. Abr. 240. Burn. Eccl. L. 273. Shep. Touchst. 464. such of the effects as remain unadministered, as was vested in the executor, or antecedent administrator. An executor de son tort has no interest whatever in the property, and therefore can maintain no action in right of the deceased. (0) [244] But if the executor de son tort take out administration, it shall to most purposes qualify the wrong, and vest the same interest in him as in other administrators, and consequently such as shall have relation to the time of the intestate's death. (p) (0) 11 Vin. Abr. 215. Parker v. Kitt, 12 Mod. 471, 472. 2 Bl. Com. 507. (p) 11 Vin. Abr. 214, 217. Parker v. Kitt, 12 Mod. 471, 472. Kenrick v. Burges, Moore, 126. Pyne v. Woolland, 2 Ventr. 179. 3 Bac. Abr. 25, 26. Curtis v. Vernon, 3 Term Rep. 590. Ibid. 2 H. Bl. 26. |