holding them alieno jure, they will not be liable to his bankruptcy. (g)

But the testator may by his will qualify the power of his executor to carry on trade, and may limit it to a specific part of the assets, which he may sever from the general mass of his property for that purpose; and then, in the event of the bankruptcy of the executor, the rest of the assets will not be affected by the commission, although the whole of the executor's private property will be subject to its operation. (h)

If the executor of a trader only dispose of the stock in trade, it will not make him a trader, or subject to a commission of bankruptcy. Thus, where the executor of a [488] wine-cooper found it necessary to buy wines to refine the stock left by the testator, this was held not to constitute him a trader. (¿)

If an executor become a bankrupt, his bankruptcy does not divest him of his legal right of executorship, nor does the commissioners' assignment affect the assets, except in regard to such beneficial interest, as the bankrupt himself may be entitled to. But, although a bankrupt executor may strictly be the proper hand to receive the assets, if his assignees be possessed of any part of the property, the Court of Chancery will, for the benefit of creditors and legatees, appoint a receiver for the same; or will direct the bankrupt himself to be admitted a creditor for what he shall be indebted to the estate; nor is this practice incongruous, as he acts in auter droit. Yet to prevent embezzelment, the court, on such proof, will order the dividends to be paid into the Bank, subject to the demands on the testator's estate. (k)

(g) See Ex-parte Garland, 10 Ves. jun. 110. Supra, 166, and Cooke's B. L. 4th edit. 67, and Whitmarsh's B. L. 2d edit. 268.

(h) Ex parte Garland, 10 Ves. jun. 110.

(i) Cooke's B. L. 4th edit. 67, and Whitmarsh's B. L. 2d edit. 16.

(k) Cooke's B. L. 133, 134, 135, 137. Stone, 131. Ex-parte Ellis, 1 Atk. 101. Ex-parte Butler, ib. 213. Butler v. Richardson, Ambl. 74. Ex-parte Markland, 2 P. Wms. 546. Ex-parte Leek, 2 Bro. Ch. Rep. 596. Vide also sup. 429, and Whitmarsh's B. L. 2d edit. 269.

So where A. a bankrupt, and also B. claimed to be executors of a creditor of A., and a suit was pending in the ecclesiastical court in regard to the executorship; the Lord Chancellor permitted B. to prove the debt under the com[489] mission, and directed the dividends to be paid into the Bank, to abide the event of the litigation. (7) And where an executor, in consequence of his bankruptcy becomes destitute, and incapable of exercising his functions, and elects to relinquish his interest in the testator's property, the Court of Chancery will permit a creditor of the testator to file a bill for himself, and to call in the outstanding assets for the purpose of administering them. (m) And a receiver has been appointed before answer upon an affidavit of misapplication and danger to the property in the hands of an executor, and the co-executor's consenting to the order. (n)

An executor being out of the jurisdiction in Scotland, a receiver was appointed under the 36 Geo. 3, c. 90, but administration having been granted, a motion was made on the part of the administrator for an injunction to restrain the receiver from acting. The Lord Chancellor referred it to the Master to reconsider the appointment of a receiver, regard being had to the circumstance of administration having been granted. (o)

A writ of ne exeat regno against a feme covert administratrix, cannot be sustained. (p)

(1) Ex-parte Shakeshaft, 3 Bro. Ch. Rep. 198.

(m) Burroughs v, Elton, 11 Ves jun. 29.

(n) Middleton v Dodswell, 13

Ves. 266.

(0) Faith v. Dunbar, Coop. Rep.

200.

(p) Pannel v. Tayler, 1 Turn. 96.

SECT. V.

Of remedies against executors and administrators in the Ecclesiastical Court.

LEGATEES, and the next of kin may proceed against the executor or administrator in the ecclesiastical court. That court has not only jurisdiction of the probate of wills, and the granting of administrations, but has also, as incident to the same, authority to enforce the payment of legacies; (a) and, according to the statute, the distribution of an intestate's effects. In respect to legacies, the cognizance of them in former times belonged exclusively to that judicaThe Court of Chancery, till Lord Nottingham extended the system of equitable jurisprudence, administered no relief to legatees. (b) In regard also to distribution, equity, as the act of parliament contains no negative words, has a concurrent jurisdiction with the ordinary, and in both [490] cases as being armed with larger powers, affords a more effectual relief. (c)

ture.

As a court of equity, and the spiritual court have in these points a concurrent jurisdiction, whichever of them has first possession of the cause, has a right to proceed. (d) But where it appears that the ordinary cannot administer complete justice, equity, without regard to such priority, will interpose. As, where a husband sues in the spiritual court for a legacy bequeathed to the wife, the Court of Chancery will grant an injunction to stay the proceedings, since the ecclesiastical judge has no authority to compel a settle

ment. (e) So a legacy given to an infant is more properly cognizable in equity, since that jurisdiction can alone secure the money for the child's benefit. (ƒ)

The spiritual jurisdiction extends to legacies only of personal property; therefore, if land be devised to be sold for the payment of legacies, they can be sued for only in a court of equity, because they arise out of the real estate. (g) Equity has also the exclusive cognizance of those cases in which there is a will, and the residue is undisposed of: for [491] then as we have seen, (h) the executor is a trustee for the residue, and the ordinary cannot compel a distribution of it, because he cannot enforce the execution of a trust. (¿) Nor has he a power to compel the debtor of an intestate to pay his debt into court, although such debtor be the person applying for a distribution, for that would be to hold a plea of debt; but in that case he may refuse to proceed to a distribution till the party shall bring it in. (k) So, it seems, that if a legatee take a bond from the executor for payment of the legacy, and afterwards sue him in the spiritual court for the same, a prohibition will be granted; for by taking the obligation the nature of the demand is changed, and becomes a debt recoverable in the temporal courts. (1)

In case a legatee, or the next of kin elect to sue in the spiritual court, the executor or administrator must there exhibit an inventory of the property, if he has not done so before, and bring in an account. (m)

(e) Hill v. Turner, 1 Atk. 516. Jewson v. Moulson, 2 Atk. 420. Nicholas v. Nicholas, Prec. Chan. 548. 2 Ves. jun. 676. Meales v. Meales, 5 Ves. jun. 517, in note. See also 10 Ves. jun. 577, and supra, 321. (f) Howell v. Waldron, 1 Vern. 26. Anon. 1 Atk, 491.

(g) 4 Bac. Abr. 446. Dyer, 151. Palm. 120. Cro. Jac. 279, 364. Cro. Car. 16. 2 Roll. Abr. 285. Bastard v. Stockwell, 2 Show. 50.

(h) Supra, 351, 479.

(i) 2 Fonbl. 2d edit. 414, note (d.)

ad fin. Petit v. Smith, 5 Mod. 247. Hatton v. Hatton, Stra. 865. Petit v. Smith, Ld. Raym. 86. Rex v. Raines,ib.363. Farringtonv.Knightly, 1 P. Wms. 546, 547, 549.

(k) Clerke v. Clerke, Ld. Raym.

585.

(1) Goodwin v. Goodwin, Yelv. 38. Luke v. Alderne, 2 Vern. 31. Sed Doddridge, J. contra. 2 Roll. Rep. 160. Vide. Sadler v. Daniel. 10 Mod. 21.

(m) 4 Burn. Eccl. L. 425.

Of the nature of an inventory I have already treated. (n) It is to contain a full, true, and perfect schedule of the de[492] ceased's effects. The account is to state in what manner they have been disposed of. (0)

Neither an executor nor an administrator can be cited by the ordinary ex officio to account. (p) The executor, we have seen, is bound by his oath to make an inventory of the personal estate, and exhibit the same into the registry of the spiritual court at the time assigned him for that purpose, and render a just account, when lawfully required, that is to say, at the suit of a legatee; and in such case he is bound not only to produce an account, but also to prove the different items of it. (q) But he is not by the condition of the bond given in pursuance of the stat. 22 & 23 Car. 2, c. 10, bound to distribute the surplus of the estate after payment of debts, &c., until a decree directing him so to do has been made by the court into which his inventory and account has been exhibited. (qq)

The payment of sums under forty shillings shall be proved merely by his oath, if there appear no fraud by dividing greater sums into less. Of the payment of sums to a higher amount vouchers must also be exhibited. (r) The adverse party shall be at liberty to disprove such account. If it be false, the executor shall be liable to the penalties of perjury. (s)

After the death of an executor, sums under forty shillings shall not be allowed on the oath of his representative; for such payments can be substantiated only by him who made them. (t)