BOOK THE FOURTH. OF THE ESTATE OF SEVERAL EXECUTORS OR ADMINISTRATORS Among several each hath the whole estate: CHAPTER THE FIRST. THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR CONSI- NISTRATORS. IF there be several executors or administrators, they are executors, &c., regarded in the light of an individual person (a). They have a joint and entire interest in the effects of the testator or intestate, including chattels real (b), which is incapable of being divided; and in case of death such interest shall vest in the survivor (c), without any new grant by the Ecclesiastical Court (d). Consequently, if one of two executors or administrators grant or release his interest in the testator's or intestate's estate to the other, nothing shall pass; because each was possessed of the whole before (e). So, if one of (a) 3 Bac. Abr. 30, tit. Exors, (D. 1.) (b) Anon. Dyer, 23, b. Com. Dig. Admon. (B. 12.) (c) See the judgment of Parke, B., in Nation v. Tozer, 1 Cr. Mees, & R. 174. 4 Tyrwh. 563. (d) Hudson v. Hudson, Cas. temp. Talb. 127. Ante, p. 413. See infra, p. 857, as to the distinction taken by some authorities between Executors and Administrators. (e) Godolph. Pt. 2, c. 16, s. 1. several executors release but his part of the debt, it has been held that the whole is discharged (ƒ). Again, if two men have a lease or term of years, as executors, and the one of them grant all his right and interest, and all that appertains to him by virtue of the lease to A., the whole term of years passes; because every executor has an entire authority and interest; otherwise of other jointtenants of a term (g). Therefore, if a lease of a thousand acres of land comes to two executors, no partition or division can be made between them, as between joint lessees of land, where each hath but a moiety in interest, though possession of and throughout the whole; but among executors each hath the whole; and, therefore, if he grants his part he grants the whole (h). Yet one executor may demise or grant the moiety of the land for the whole term, and so may the other: And by this means they may settle a moiety for each in some third person intrusted for them (i). Since several executors have a joint and entire interest in all the goods of their testator, including chattels real, it follows, that the act of one, in possessing himself of the effects, is the act of the others, so as to entitle them to a joint interest in possession, and a joint right of action, if they are afterwards taken away (k). tors cannot sue on a promise Again, since several executors or administrators have a Several execujoint and entire interest in the estate in action of the deceased, it follows, that they cannot maintain an action in made jointly (f) Godolph. Pt. 2, c. 16, s. 1. But if one executor of several alone sell goods of the testator, he alone may maintain an action for the price, not naming himself executor: Godolph. ubi supra. Wentw. Off. Ex. 224, 14th edit. Brassington v. Ault, 2 Bingh. 177: So if goods be taken out of the possession of one of several executors: Godolphin and Wentworth, ubi supra. And, generally, if one executor alone contracts on his own account, he must sue alone on such contract, notwithstanding the mo- (g) Anon. Dyer, 23, b. Fannel (h) Dyer, 23, b. in margine. Godolph. Pt. 2, c. 16, s. 2. with one of them : Survivorship as to residue: surviving executors entitled to receive money without a discharge from the executor of deceased execu tor. right of the deceased, upon a contract made by the defendant jointly with one of themselves (1). Therefore, to an action of assumpsit by several executors, it was held a good plea in bar, that the promises were made by the defendant jointly with one of the plaintiffs: And Mr. Justice Buller said, "the promise was made jointly with one of the plaintiffs: How can he sue himself in a Court of Law? It is impossible to say a man can sue himself" (m). A very important consequence of the doctrine of survivorship of estate among co-executors exists in cases where they are entitled to the residue of the testator's effects after pay. ment of debts and legacies: For it is established, as it will hereafter more fully appear (n), that if one of them dies before the joint interest in the residue is severed, his share will survive to his co-executors, to the exclusion of his own executors or administrators (o). Although the principles above stated have been long established, yet it appears to have been a rule in the Accountant-General's Office, until lately, not to pay out money to surviving executors without a discharge from the personal representative of the deceased executor: Thus by an order made in the case of Moodie v. Bainbridge (p), August 12, 1820, the Accountant-General was directed to pay R. L. or his personal representative a certain sum in respect of a legacy bequeathed to him by the testator in the cause: R. L. died, leaving an executrix and two executors: The executrix died, leaving an executor: And the AccountantGeneral refused to pay the legacy under a power of attorney (7) Godolph. Pt. 2, c. 16, s. 2. v. Adams, 1 Younge, 117. But see post, p. 863. (m) Moffat v. Van Millingen, 2 Bos. & Pull. 124, note (c). S. C. 2 Chitt. 539. Fitzgerald v. Boehm, 6 B. Moore, 332. As to bringing the action by the surviving executors after the death of that executor who was a co-contractor with the defendant, see Rose v. from the surviving co-executors of R. L. without a discharge from the executor of the deceased executrix, that being the rule of the office: But on an application to the Court, an order was made by Sir J. Leach, V. C., to pay the legacy to the surviving executors. With respect to the power of one of several executors or administrators over the estate of the deceased, that subject will be more conveniently further discussed hereafter together with the power of executors and administrators generally (q). (q) Infra, p. 818, et seq. Power of one of several executors, &c. over the estate. Executor of executor. Administrator de bonis non. OF THE ESTATE OF AN EXECUTOR OF AN EXECUTOR, OR OF AN executor of an executor, in however remote a series, has the same interest in the effects of the first testator as the An administrator de bonis non is entitled to all the goods and personal estate, such as terms for years (d), household goods, &c. which remain in specie, and were not administered by the first executor or administrator (e). Also it is holden (a) Wentw. Off. Ex. c. 20, p. 462, 463, 14th edit. Com. Dig. Administration, (G.) (b) Wentw. Off. Ex. c. 20, p. 461, 14th edit. It is difficult to see on what principle this doctrine rested; especially as it was held at common law, that execution might be sued out on a judgment or statute by an executor of an executor: Ibid. (c) Wentw. Off. Ex. c. 20, p. 462, 14th edit. Infra, p. 833. (d) Whether an administrator de bonis non be entitled to an estate pur auter vie, under the Statute of Frauds, sect. 12, is a matter of doubt: Oldham v. Pickering, Carth. 376. Ripley v. Waterworth, 7 Ves. 445, 451. Ante, p. 605. But see the stat. 1 Vict. c. 26, s. 6, ante, p. 607, 608. (e) Wankford v. Wankford, 1 Salk. 306, by Lord Holt. Bac. Abr. Executors, (B. 2.) 2. L. was possessed of furniture and other property, and on his death, intestate, in 1827, the furniture was removed by his widow to another |