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widow, as the residuary legatee for life named in the will, on the renunciation of the said executors; and she was lately dead, leaving effects of the deceased unadministered. Mr. Parsons, one of the executors, upon this, retracted his renunciation; and the court was now moved by counsel, to admit this retractation, and to decree probate of the will of the deceased to Mr. Parsons, as one of his executors.
In support of the motion it was submitted, that an executor, after a renunciation, and probate or administration granted, had still a right to probate whenever a vacancy occurred in the representation of the deceased. After a probate granted, this was said to be recognized by the practice of the office, which was in the constant habit of permitting one of several executors who had renounced, after the death of his co-executors who had proved the will, to retract that renunciation, and to take probate, as a matter of course. It was now contended, on the authority of a passage in Mr. Toller's Law of Executors (vol. 1, c. 3 § 1), that the same right accrued to an executor, after administration, with a will annexed, granted, although the office, it was said, had objected to this, on the ground of the possible inconvenience that might accrue, in other quarters, from chains of executorship once broken, being thus suffered to revive. Should this deceased, for in. stance, it was objected by the office, have been the surviving executor of other testators, and should administrations have been granted of their effects, on the renunciation of his executors, if the chain of esecutorship were to revive, as now proposed, there would be double and conflicting representations of such testators; the one by grant of administration, as above; the other, by the revived chain of executorship.
The Court was of opinion, upon this state of facts, that the objection raised by the office was a valid objection — and there being, so far as appeared, no instance of, or precedent for, a grant of this description in the office, declined acceding to the motion.
It was then prayed, that administration with the will annexed might issue to Mr. Parsons, the executor; by which means the objection raised by the office would be obviated. This would preclude, it was said, a revived chain of executorship, and, consequently, the occurrence of the inconvenience suggested by the office; and still give the representation to the executor, who was submitted to be entitled to it. But,
PER CURIAM, Parsons is not the residuary legatee — the wife was residuary legatee for life only ; and there is no residuary legatee substituted. Under these circumstances, as the next of kin are before the court, praying the administration, they have, clearly, I think, a preferable title to it.
GOODS OF PERRY.
[Reported 2 Curt. 655.] This was an application on behalf of the executor of an executor, to be allowed to renounce the probate of the will of the first testator, before taking probate of the will of the second testator. According to the ordinary practice of the office, the executor of an executor becomes, on taking probate of his will, the executor of the first testator.
Nicholl, in support of the motion.
Sir HERBERT JENNER. It has been for many years the practice in this court, that an executor, taking probate of the will of an executor, becomes executor of the will of the first testator, and is not permitted to renounce pròbate of the first will, and take probate of the second. I am not aware of any instance of departure from this rule, and unless there be some clear principle or authority, the general rule of practice must be observed.?
EXECUTOR DE SON TORT.
STOKES v. PORTER.
(Reported Dyer, 166 b.] STOKES brought an action of debt on bond against Porter as executor of the will of one H. Wyrral; the defendant pleaded ne unques executor, ne unques administer come executor, &c. The plaintiff averred that he administered as executor divers goods of the said H. W. &c., upon which issue was joined, and the jury found this special verdict, viz. “ that the said H. W. at the time of his death was possessed of
1 “There may, perhaps, be no case which expressly decides that an executor of a tes. tator cannot renounce the executorship of other persons of whom his testator may have been executor, but I can remember that when I was at the bar the question was often raised, and the notion was always sconted. The principle is very plain that a person cannot accept one part of the duties of an executor, and refuse the rest. And if no case has been reported, it must be because every one thought the point too clear to be worth reporting." — Per LORD ROMILLY, M. R., in Brooke v. Haymes, L. R. 6 Eq. 25, 30 (1868).
Cf. Hayton v. Wolfe, Cro. Jac. 614 (1621); 1 Wms. Exec. (8th ed.) 280.
divers parcels of goods and chattels, and showed what in certain, and the value, as of his proper goods, and that after his death the defendant received of one I. D. seven pounds of a debt which he owed to the said H. W. in his lifetime, for which he made him an acquittance ; and that also the defendant, after the death, and before the writ purchased, took and had in his hands all and singular the goods and chattels aforesaid, and the said seven pounds used, occupied, and disposed of at his will and pleasure to his own advantage and profit. And whether this use, occupation, and disposition be an administration in law, the jury pray the advice of the court, &c. and if it be, then they find that the defendant administered as executor, and assess damages and costs, &c.” And it was debated at bar and at bench; and it seemed to us three, 8. H. BROWNE, A. BROWNE, and Me, that it is sufficient administration. And first, the definition of the word administration is, an ordering, making, or a disposition, and more properly applied to an officer. And for a ground of the same argument I intend, that by occupation or possession, the goods of the dead give notice of the person who shall be charged as administering, be he ordinary or executor, and draw the charge to him, as debt against the dean only, guardian of the spiritualities during the vacancy of the fee, ad cujus manus bona intestatoris devenerunt, without the chapter, 17 E. 3 [Fitz. Ab. Tit. Bre. 822), T. 16 E. 2 [fol. 490], where the devenerunt was the issue. And see the Register, fol. 141, and 35 H. 6 [42 pl. 4], against the abbot of Saint Albans to whose hands, &c. and against one executor only, who had possession of the goods, the action well lies, &c. And in M. [T.] 8 E. 3 (52 b, pl. 42] in dower against one executor only who had the sole guardianship, it names him guardian and not executor; and that possession charges one as executor de son tort demesne, see 5 E. 4, in the Long Report, fol. 72, and 9 E. 4 [33 a, pl. 7], in debt against the executors, and 35 H. 6, fol. 42, by Moyle, and 50 E. 3, fol. 7 [b, pl. 15], and 33 H. 6 [31 b, pl. 5], where the wife took more of her apparel than was fitting for her degree without legacy or license, and it was holden an executorship de son tort demesne. And yet some possession is colorable, and still none in law to charge, &c. as expenses about the funeral ;one made coadjutor or overseer; one who has literas ad colligendum ; ? a man who is made executor by a will, which will afterwards is disproved by the proving of one later; and a feme covert made executrix who does not intermeddle, &c. and renounces after the death of her husband : and all those cases where a man has color by any authority and law to intermeddle, he may plead the special matter, sans ceo that he administered in any other manner, &c. But where he claims title or interest in the goods as by gift of the testator in his life, he shall not say sans ceo that he administered any other goods or in any other manner, but absq. hoc quoad ut executor, 9 E. 4 [33 a, pl. 7], 10 H. 7, fol. 28 [b, pl. 19]. Also the plaintiff
1 See Camden v. Fletcher, 4 M. & W. 378 (1838). — Ed.
would be without remedy for his debt if he should not have the action above. And if a lawful executor mal-administer, 8. by converting the goods to his own use, he shall be charged and shall be an executor by tort, and without authority by such malfeasance in many cases to avoid the charge would be unreasonable: and suppose the defendant himself in pleading had confessed the matter above found by the verdict sans ceo that he administered in any other manner, would he not be condemned? Credo quod sic, &c. And the receipt of the debt above is plainly a thing done as executor, for by no other color could he demand it; wherefore, &c. And afterwards before the next term, the defendant died before judgment given, wherefore the whole matter fell. But CatlyN, SAUNDERS, WHIDDON, and Wray, were of opinion with the three judges above, H. 15, of the present Queen [Dyer, 225 b, pl. 8]; but MANWOOD, e contra.'
[Reported 2 Leon. 223.] The case was, A. took a wife, and afterwards married Elizabeth Stamford, living his first wife, and by deed gave part of his goods to the said Elizabeth ; and as to the residue of his goods, being but of small value, he made the said Elizabeth his executrix, and died ; she refused the executorship, for which the ordinary committed administration to B. Gardy, Serjeant, asked the advice of the court, against whom the action of debt should lie? for, if the creditor impleadeth the administrator, he hath not assets ; if the executrix herself, she will plead that she hath renounced the executorship, and that administration is committed to B. And the opinion of DYER, Justice, was, That the gift is void by the common law, and also by the Statute of 13 Eliz., and then, if the gist be void any way, the creditor may have an action of debt against the said Elizabeth as executor of her own wrong: And see that such a gift is void by the common law, 43 E. 3, 2. And by MANWOOD, Justice, He who takes the goods of the dead, shall not be charged as executor of his own wrong, unless he doth something as executor: as to pay debts, make acquittances, &c. See 41 E. 3, 31; 32 H. 6, 7. DYER, If one takes the goods of the dead, and converteth them to his own use, he is chargeable as executor, and so it hath been adjudged in the time of this Queen, in the case of one Stokes, which was affirmed by Bendloes and Harper. See now Co. 2, Part 53,
1 See Bacon v. Parker, 12 Conn. 212 (1837); Taylor v. Moore, 47 Conn. 278 (1879).
The executor de son tort of A.'s executor is executor de son tort of A. Meyrick v. Anderson, 14 Q. B. 719 (1850).
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Reade's Case; where no lawful executor, or administrator is, there, if a stranger takes the goods of the dead into his possession, the same is a good administration to charge him as executor of his own wrong.
BRADBURY v. REYNEL.
(Reported Cro. El. 565.] DEBT against him as executor of Tyrrel. The defendant pleads that Tyrrel died intestate, and that certain of his goods came to the defendant's hands, and afterwards administration was committed to J. S. to whom he had delivered the said goods. — PER CURIAM. It is not any plea ; for if the administration bad been committed to him, it would not have purged the first tort. So here, although administration is committed to a stranger, in regard that he hath once made himself chargeable to the plaintiff's action, as being executor de son tort, &c., he shall never afterwards discharge himself by matter ex post facto. Wherefore, &c. - Adjournatur. - Et vide 21 Hen. 6, pl. 1; 8, 9 Edw. 4, pl. 47; 2 Rich. 3, pl. 20.1
the said been committedministration charge
(Reported 5 Co. 67.) READ brought an action of debt against Carter executor of Yong, which plea began in the Common Pleas, Hil. 44 Eliz. Rot. 401. The jurors found, that the said Yong made his testament and last will, and made one A. his executor; and the day of his death was possessed of goods above the value of the debt in demand, and died; and before the will was proved the defendant took the testator's goods into his possession, and intermeddled with them; and afterwards, and before the writ
1 “If, indeed, previously to an action brought against the defendants as executors de son tort, they had paid the money orer to the rightful administrator, that would have been a good defence ; because then they would have applied the money properly." Per BULLER, J., in Padget v. Priest, 2 T. R. 97, 100 (1787).
See Anon., 1 Salk. 313, p. 467, note, post ; Curtis v. Vernon, p. 469, post ; 2 H. Bl. 18 (1792).
So if an executor de son tort can prove a settled account with the rightful representative, before suit, it is a defence to a bill in equity for an account. So held by Wood, V. C., in Hill v. Curtis, L. R. 1 Eq. 90 (1865). And on the jurisdiction of equity over suits against executors de son tort, see Coote v. Whittington, L. R. 16 Eq. 534 (1873); Rousell v. Morris, L. R. 17 Eq. 20 (1873); In re Lovett, 3 Ch. D. 198 (1876).