[where there are two executors, and one only of them proves (power being reserved to the other), and the proving executor dies, and the other (after due citation) does not appear, the executor of the proving executor continues the chain of the executorship (e). But the executor of A.'s administrator, or the administrator of A.'s executor, is not the representative of A. (f). For the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another, in whom he has equal confidence. But the administrator of A. is merely the officer of the court, in whom the deceased has reposed no trust at all; and therefore, on the death of that officer, it results back to the court, to appoint another. Also, with regard to the administrator of A.'s executor, he has clearly no privity with or relation to A., being only commissioned to administer the effects of the intestate executor, and not of the original testator. Wherefore, in both these cases, and whenever the course of representation from executor to executor is interrupted by any one administration, it is necessary for the court to commit administration afresh, of such of the goods of the deceased as have not been administered by the former executor or administrator. And such an administrator de bonis non may, as well as an original administrator, have but a limited or special administration committed to his care, e.g., an administration limited to a term of years, or the like (g). And under the Land Transfer Act, 1897 (h), as previously noted, there may be a grant of administration in respect of the real estate only of the intestate, for the purposes of the devolution of such real estate under that Act into the personal representative.

Every person to whom administration is granted must,

(e) In the Goods of Reid, [1896] P. 129.

(ƒ) Bro. Ab. Administrator, 7.

(g) 1 Roll. Abr. 908; Godolph. p. 2, ch. 30; Salk. 36; Re Loveday, [1900] P. 154.

(h) 60 & 61 Vict. c. 65, s. 1 (3).

in addition to the affidavit of estate and oath, give a bond (and, if so required, with one or more sureties) conditioned for duly collecting and administering the estate; and if the condition of the bond be broken, the bond is assigned by the court to some person to be chosen for the purpose, who sues thereon in his own name, and recovers, as trustee for the parties interested. the full amount recoverable thereon (i).

IV. Our last general head of inquiry involves the consideration of some of the chief points relative to the office of an executor or an administrator. And we will, in the first place, refer to the well-known principle applicable without distinction to both executors and administrators, namely, that, in all matters in which the personal estate is concerned, they represent the person of the testator or intestate, as the heir (prior to the Land Transfer Act, 1897) used to do that of his ancestor (k); and they, together with the heir of a deceased party, were formerly described as his real and personal representatives. So that the executor or administrator has the same property in the chattels of the deceased (including his chattels real), as the deceased himself had when living ; and, in general, succeeds to his rights of action, and is subject (so far as the assets in his hands will extend) to his liabilities (). And this title of the executor will override even the title of a specific legatee of the chattel, e.g., in the case of a specific legacy of stock (m); but it is to be particularly noted, that upon contracts made by himself (although in his representative capacity) the executor is personally liable (n), with, in general, a right to recoup

(i) 20 & 21 Vict. (1857) c. 77, ss. 81 -83; 21 & 22 Vict. (1858) c. 95, s. 15; Sandrey v. Mitchell (1863), 3 B. & S. 405; In the Goods of Young (1866), L. R. 1 P. & D. 186. (k) Co. Litt. 209.

(7) 4 Edw. 3 (1330), c. 7; 3 & 4 Will. 4 (1833), c. 42.

(m) 33 & 34 Vict. (1870) c. 71,

s. 23.

(n) Ashby v. Ashby (1827), 7 B. & C. 444; Prior v. Hembrow (1841), 8 M. & W. 873; Evans v. Evans (1887), 34 Ch. D. 597; Hobbs v. Wayet (1887), 36 Ch. D. 256.

himself out of the estate. It must, moreover, be remembered, that by the Land Transfer Act, 1897 (o), Part I., ss. 1-5, as regards deaths after the 1st January, 1898, the beneficial real estates of a testator or intestate and which were devisable by him now vest in his executor or administrator (sect. 1); and may be disposed of by the executor or administrator exactly as if they were chattels real (sect. 2), but not by one alone of several executors; that the executor or administrator may assent to any devise contained in the will, and may convey the real cstate to the heir or devisee (according as either is entitled to it) (sect. 3); and that the executor or administrator may also appropriate any real estate to anyone entitled to a legacy, or to a share of the residuary estate, in or towards satisfaction of such legacy or residuary share (sect. 4). But these provisions do not alter (save as before expressed) the beneficial interests, or the mode of administration, or (under sect. 5) any liability to the death duties.

[The duties incumbent upon executors and administrators respectively are, moreover, very much the same; excepting, first, that the executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and then he differs still less from an executor; and, secondly, that an executor may do many acts before he proves the will (p), being acts proper for an executor to do (q), but an administrator may do nothing till letters of administration are issued (). For the former derives his power from the will and not from the probate, while the latter owes his power entirely to the appointment of the court (s). But once the letters of administration are, in fact, granted, they also will relate back to the death, so far as acts done

(0) 60 & 61 Vict. c. 65.

(p) Wentw. ch. 3; Whitehead v. Taylor (1839), 10 A. & E. 210. (q) Re Moore (1888), 13 P. D. 36.

(r) Lucy v. Walrond (1837), 3 Bing. N. C. 841.

(s) Comyn, 151.

[for the benefit of the estate are concerned (t). If any person takes upon him to act in the affairs of the deceased, without any just authority, as by intermeddling with his goods, he is called in law an executor de son tort; and is liable to all the trouble of an executorship, without any of its indemnities or advantages (u). But merely doing acts of necessity or humanity, as locking up the goods, or burying the corpse, will not amount to such an intermeddling as will charge a man as executor of his own wrong (). Furthermore, an executor de son tort cannot himself bring an action in right of the deceased; but actions may be brought against him (y), and he is chargeable with the debts of the deceased, so far as assets come to his hands (~), though, as against creditors in general, he is allowed all payments made to any other creditor in the same or a superior degree, himself only excepted (a). And though, as against the rightful executor or administrator, he cannot plead such payment, yet it shall be allowed him in mitigation of damages (); unless, perhaps, upon a deficiency of assets, whereby the rightful executor may be prevented from satisfying his own debt (c).

We shall now proceed to enumerate the specific powers and duties of executors, premising only that what is here stated as to the executor, applies in general to an administrator also. And these powers and duties are as follows:

1. He must bury the deceased in a manner suitable to

(t) Morgan v. Thomas (1853), 8 Exch. 302.

(u) 43 Eliz. (1601) c. 8; 5 Rep. 53; Meyrick v. Anderson (1850), 14 Q. B. 726; Sykes v. Sykes (1870), L. R. 5 C. P. 113; In re Lovett (1876), 3 Ch. D. 198; Attorney-General v. New York Breweries, [1898] 1 Q. B. 205.

(x) Dyer, 166; Serle v. Waterworth (1838), 4 M. & W. 9.

(y) Bro. Ab. Administrator, 8; Rowsell v. Morris (1873), L. R. 17 Eq. 20.

(z) Dyer, 166; Job v. Job (1877), 6 Ch. D. 562; Re Mary Mellor (1883), 8 P. D. 108.

(a) 1 Chan. Cas. 33; 5 Rep. 20; Moor. 527; Thompson v. Harding (1853), 2 El. & Bl. 630.

(b) 12 Mod. 441.

(c) Wentw. ch. 14.

[the estate which he leaves behind him; the necessary funeral expenses being allowed before all other debts or charges (d). But if he be extravagant, or misapply the assets, in this or in any other particular, such a misapplication is a devastavit, that is to say, a devastation or waste of the substance of the deceased; and shall only be prejudicial to himself, and not to the creditors or legatees of the deceased (e).

2. He must, in the next place, prove the will of the deceased, or (as it is otherwise expressed) take out probate ; and in default of any will, the person entitled to be administrator must also, at this period, take out letters of administration.] In order to obtain probate of the will or letters of administration, he is required to pay a certain stamp duty on the amount of the personal estate, a duty formerly called probate duty, and which used to be impressed on the probate or letters of administration. But latterly, by the Customs and Inland Revenue Act, 1881, ss. 27-30, it was paid on the affidavit required to be sworn to obtain the grant, and the grant itself carried on it merely a certificate of the due payment of the duty. And now, under the Finance Act, 1894 (57 & 58 Vict. c. 30), the duty payable is called estate dnty, in the case of all persons dying after the 2nd day of August, 1894, the old exemption of estates under 1007. being continued, and estates under 300l. paying a fixed duty of 30s., and estates under 500l. paying a fixed duty of 50s. And when the estate duty is paid, no affidavit duty is payable, nor the account duty which was formerly payable under the Customs and Inland Revenue Acts, 1881 and 1889.

3. [The executor must also make an inventory of all the goods and chattels ; or, in other words, of all the personal

(d) Bisset v. Antrobus (1831), 4 Sim. 512; Corner v. Shew (1838), 3 M. & W. 356.

(e) Shelly's Case (1694), 1 Salk. 296; Godolph. pt. 2, ch. 26, s. 2; Camden v. Fletcher (1838), 4 M. & W. 378.