CH. 29. age at the time of proving the will, administration may be granted with the will annexed, during the minority of such executor. So if an executor refuse the trust. § 14. And "when a feme sole shall jointly with one or more persons be appointed executrix or administratrix, and after such appointment, during the life of the other executor or administrator, marry, such marriage shall not make the baron an executor or administrator in her right, but shall operate as an extinguishment or determination of such woman's power and authority," and the other may proceed as if she were dead. 15. "And the executor of an executor shall not in consequence thereof become an executor of the first testator; but in every such case administration may be granted" on his goods and estate not administered on, with the will annexed, "to such person or persons as the judge of probate may think 2 Vern. 514, fit." So administration may be granted to two, and if one dies, the survivor is sole administrator, or on condition, or till one returns, by the English law. Hudson v. 1 Rol. 908. Stra. 917, Waller. 16. So if there be a doubt who ought' to be adminisWoolaston v. trator, or there is a dispute about the will, administration may be granted during such absence or pendente lite of necessity, and such administrator may bring actions. This was decided on a writ of error after three arguments. 1 Com. D. 362. 3 Mass. R. 514, Good win v. Jones, contra 4 Dallas 292, and Kirby 270.-— 2 Bl. Com. 503. 3 Wood's Con. 102. Fearne 308, 309, Allen 17. In this case it was decided, that if A receive administration in another state, as at Hartford in Connecticut, he cannot by virtue thereof sue or defend in the courts in this state. By Mass. act, Feb. 6, 1784, sect. 19, we avoid the very litigated point in England, whether an executrix marrying can administer without her husband's consent; but 1 Cranch 259, agrees with Goodwin v. Jones. Administration in a state is void in the District of Columbia; Fenwick v. Sears' administrators, and 3 Day's Cases 74, 303, agree with Goodwin v. Jones. The case in Kirby 270, was decided on immemorial usage in Connecticut; so had been the usage in Massachusetts till the decision in Goodwin v. Jones, and Morrill v. Dickey, 1 Johns Ch. R. 153. ART. 2. Executors, how appointed &c. 1. An executor is one appointed by the testator in his will, and has it when proved committed to his care to execute. He represents the adm. v. Dun- testator and is bound by his bond or contract, though not named in it, and if a contract or promise be made to the testator, his heirs or successors, his administrator or executors shall have it; and if a payment be made to an executor under a forged will regularly proved, the debtor is discharged. dass 3 T. R. 1 Salk. 103, Wakeford v. 2. He is complete executor before probate for all purWakeford.-poses but of bringing actions. He may release and be sued, 1 Salk. 163.-2 Bl. Com. 503.-5 Co. 28.-Stat. 1783, C. 24-Stat. Feb. 24, 1818. and alien goods in England. Here if he does these things, as release and alien goods, and afterwards gives bond and proves the will, the probate relates back to protect these acts, but if not proved, they must be acts in his own wrong. If several executors be appointed, none can intermeddle but such as give bonds. If no objection, a will may be proved by one witness. CH. 29. Art. 2. 129.-Cro. 36.-2 Bac. § 3. Who may be appointed executors. All persons may be Imp. 46, 47.-executors who can make wills, and many more; an infant Co. L. 128, may be an executor, though he cannot administer till he is Car. 9.-Cro. twenty-one years of age, as above. So a feme covert may be El.142.–Salk. executrix, but not jointly with others, as before; she must Abr 376. sue and be sued with her husband. So one outlawed may sue as an executor. An alien may be an executor or administrator, and even an alien enemy; but idiots and persons non 1 Cranch 259. compos mentis cannot be executors or administrators, for they cannot execute the trust. By the law of Virginia an execu- 5 Cranch 360. tor cannot act till he has given bonds. 66 -3 Cranch 315. sect. 16, and 4. Their duties by statute. Executors, by this act, must Mass. act. prove the will within thirty days after the testator's death, and Feb. 6, 1784, cause it to be recorded in the probate office, in the county A. D. 1818. where he last dwelt, and signify his, the executor's, refusal or acceptance; and for his neglect he forfeits £5 a month; and if the executor refuse the trust, the judge must commit administration of the estate of the deceased, with the will annexed, unto the widow or next of kin, to the deceased, or to one or more of the devisees, or in case of their refusal, to one or more of the principal creditors, as he shall think fit." And a power accompanied with an interest, vests in the executors Kerby 316. and administrators. Kellogg v. Williams. Liable for not proving a will, Ch. 148, a. 10, s. 5, and how. June 20,1794. § 5. Executor in his own wrong. By the same section it See post, art. 6, and post, is enacted, "If any person shall alienate or embezzle any of Frauds, also the goods or chattels of the deceased person, before he or she 43 El.— hove taken out letters of administration, and exhibited a true Mass. act, inventory of all the known estate of the person deceased, ev- Post, Insolery such person shall stand chargeable, and be liable to the vency. actions of the creditors and other persons aggrieved, as being 100, Pagget executors in their own wrong." The jury must decide if the v. Priest. facts be proved but what acts make this executor, is a question of law. When one is executor of his own wrong by reason of a fraudulent deed, see Fraud, post. 2 T. R. 97, act of A. D. $6. By the same act executors must give bond, which en- Sect. 17, and acts that " every executor named in a will, hereafter to be 1818, inproved, shall give bond to the judges of probate, with suffi- cludes real cient surety or sureties, to return upon oath, a true and per- rights and fect inventory of the testator's estate into the probate office, credits. estate and CH. 29. Sect. 17. within three months, and to render an account of his proceedings therein," as administrators must do, unless the executor be residuary legatee; and then he may give bond to pay “ the debts and legacies of the testator." 66 7. And by the same act," any executor being a residuary legatee may bring an action of account against his co-executor or executors of the estate of the testator, in his or their hands, and may also sue for and recover his equal and proportionable part thereof." And the said act of March 9, 1784, extends this last clause in substance, to co-administrators to recover part by action of account, if the other administrator get into his hands too much of the estate, and refuses to pay debts. 8. Before this act, executors gave no bonds to account. Executors and administrators have the property of the deceased's goods by relation from the time of his death, but cannot 4 T. R. 521.--devise them, nor can they be taken in execution for their own debts, unless they treat them as their own. Cro. El. 377. -1 Com. D. 329.-Wentworth 86. 1 Bos. & P. 293. 8 Johns. R. case. The probate court must appoint the 137. His ac- 9. Taking out administration makes all acts legal, though before tortious; but will not defeat a suit before commenced against the deft. as executor de son tort. ART. 3. Rights and duties of executors and administrators. 1. These are generally expressed in the statutes above cited. But some particular cases deserve further attention. By the law of Massachusetts, any executor, who does not join in proving the will and giving a bond as above, has no power to intermeddle in the estate. By the same law, an executor or administrator may retain for his own debt, due him from the estate, when it is sufficient to pay all debts. Where not so, he can, by reason of the insolvent acts, come in only for his Insolvent act, share. Nor is there by our law, any preference of debts, June 15,1784. except funeral charges, debts to government, and those becoming due in the deceased's last sickness. A judgment debt is not preferred to a simple contract debt. Also, in practice, on the same statute law, the executor or administrator usually has his reasonable allowance for his time and trouble in settling the estate, made to him by the judge of probate. Mass. act, Ch. 8, a. 5, § 2. Also, by statute law the executor or admr. has power by the mere form of leave of court, to sell even all the real a. 10, s.11, 14. estate, for the payment of the deceased's debts and legacies. And by the same act, if by neglecting to raise money out of the estate, or to apply what he has in his hands, the deceased's real or personal estate is taken in personal execution, the same is deemed waste in such executor or admr. Also, by this act he may sell even all the real estate, and put the proceeds at interest, if the judge of probate and the court think fit. The opinion till lately was, that it was the natural consequence of these powers and duties, for the executor or admr. to have 500.-4 Mass. R. 354. judgment to recover any part of the real estate, in order to be enabled thus to dispose of it; but the law is now viewed as altered. CH. 29. Art. 4. § 3. By another act, he has the same power over real es- Mass. act, tate mortgaged to the deceased, that he has over a pledge of Feb. 11, 1789. personal estate, and a like power over such real estate, as he, the executor or admr., shall take in execution for the deceased's debts, except where either must be sold to pay debts; then there must be leave of court, as above; and if he takes land for a debt, he becomes siezed to the use of the widow and heirs, &c. of the deceased and these lands are to be distributed as personal estate. 4. Another consequence has resulted in practice, and in some measure necessarily, from these provisions: that is, for the executor or admr. to have possession for a time, of the real estate (as well as the personal) of the deceased at a reasonable rent. This rent he is charged with in his account by the judge of probate; and in case of any dispute about it, the law enables the judge to appoint commissioners to ascertain the amount of this rent. But only the executor or admr. can have power so sell real estate on license of court; a sale by a stranger is void. 503. 5. These and other statute provisions in Massachusetts, 12 Mass. R. and the practice naturally growing out of them, form quite a complete system of probate laws, to all general purposes; whence, as relative to these subjects, the English statutes and practice in probate and chancery courts are excluded. Some English decisions and precedents, however, will apply here, as being very useful explanations of our laws (as they are often worded as the English acts are on these subjects.) And in several cases of less importance, these English decisions are a part of the law of the land; because they are on points, on which our statutes and practice are yet silent; or to which at most, they very remotely have reference. Some of these may be here noticed. Appeal from probate decree, and held & Mass. R. 131, Brewsan admr. cannot charge in his account of administration, the ter v. Brewsexpenses of supporting a minor child. Decree reversed. ter. 290.-Bul. N. ART. 4. English authorities adopted here, &c. 1. Where 1 Esp 289, administration is granted to a wrong person, it is only voidable; P. 141.-3 where in a wrong county, it is void so when granted to one Salk. 22.--1 when it should be to another, the acts of the former are good; Co Com. D. 355, 356, 360, 364. but when granted to one, when there is a lawful executor, 6 Co. 19.such admr's. acts are void. So if there be a will though con- 2 Lev. 183.cealed. And an administration repealed, does not avoid acts 2 Esp, 337. done under it. 2. By the English law, if a feme executrix marry A, and 2 Bac. Abr. they get judgment for a debt due to the testator, and she dies, 328. 386.-1 Salk. CH. 29. * Co. 270, Needham's case.--3 Salk. 306, 163. not the husband, but the admr. de bonis non of the testator, shall have execution or sue the judgment. And so did we formerly practice, at least in some cases, but lately it has been held there is no privity between the parties. act. $ 3. Assets. If administration be granted to the debtor, it does not discharge the debt; but he must account for it in all cases. But if the creditor make the debtor his executor, it is a release in law to the debtor, of the debt: for it is bis own Yet the debt is assets, and making him executor does not give him the debt as a legacy, but is a payment and release, and he holds the debt as assets, as so much being in his hands Hob. 10-2 as the property of the deceased; and the reason is given by Show. 401- Holt C. J. Salk. 306," that when the obligee makes the 185-3 TR. obligor his executor, though it is a discharge of the action, 558-Jones yet the debt is assets," as "if H be bound to J. S. in a bond 345.-Cro. of £100, and then J. S. makes H his executor; H has actually received so much money, and is answerable for it. And Co. Lit. 264. if he does not administer so much, it is a devastavit." The action is released, but the duty remains. Plow. 184, Car. 373. -1 Salk. 299. -8 Co. 136. This seems to be the true explanation of the scores of dictums and decisions in the books, "that if the creditor make the debtor, or one of several joint and several debtors, his executor, it is a release, and extinguishment of the debt." It is a mere discharge, or rather suspension of the action only, while it would be absurd for the person representing the creditor, to sue himself as the debtor, or while as such person it may be presumed he has in his hands the amount of the debt, as owing it as debtor, or one of the joint, or joint and several debtors, in his own right, to himself in auter droit. Co. Lit. 264. But what is the effect of this discharge or suspension of the action? A mere suspension of the action only, not of the Cro. El. 114. right, while the reason of the suspension continues. If a debtor be appointed admr. this suspension exists, as he cannot as admr., sue himself as the real debtor. Yet, if before the debt be paid, he be removed as admr. as he may be, the debt must be lost to the estate of the creditor, if his subsequent admr. put in the place of him removed, cannot sue the debtor. But thus to sue him is necessary, reasonable, and common practice. A personal right once extinct or suspended is gone. But a right may remain and an action recur, though suspended for a time, as every action is every Sunday, as no debtor can be sued on that day. Nor does this construction exclude any intention there may appear to be in the will, to give the debt as a legacy to the debtor; and then it is not S Co. 136.1 Salk. 306.1 Sid. 79. 3 T. R. 559. 1 Com. D. 326. 8 T. R. 168, Dean v. New assets. § 4. The obligee may sue one of two joint and several hall.-5 East obligors, though he covenant with the other not to sue him. |