NOTE. A lessee taking a reversionary lease from an executor, must show that it was given in the due course of administration. Keating v. Keating, Lloyd & G. (temp. Sugd.) 133 (1835).

A condition in a lease that executors or administrators shall not assign is good. More's Case, 2 Cro. El. 26 (1584); Roe v. Harrison, 2 T. R. 425 (1788). condition does not apply to executors unless they are specially named. 1 Ves. Jr. 294 (1791).

But such a Seers v. Hind,

RETAINER. An executor or administrator, being a creditor of the deceased, may retain goods of the deceased to pay his debt. The leading case on this topic is Woodward v. Darcy, Plowd. 184 (1558). See also Loane v. Casey, 2 W. Bl. 965 (1775). So an executor may redeem a testator's goods with his own money, and retain out of the testator's effects the value of what he pays. Anon., Dyer, 2 a (1514). See also Anon., Ib. 187 b (1560).

"As to the right of an executor to outstanding assets, the rules laid down in the books must be taken with some qualification. I cannot accede to the proposition that an executor has a right, in equity, to acquire, as a purchaser, an absolute title to specific chattels, by intending so to deal with them, and by paying the testator's debts to an amount exceeding the value of those chattels. Whatever may be the rule of law upon a plea of plene administravit, I apprehend that not to be the rule in equity. I do not agree, that, in equity, the executor has, under such circumstances, an absolute right to the property."- Per SIR J. L. Knight-Bruce, V. C., in Hearn v. Wells, 1 Coll. 323, 333 (1844).

See also 1 Wms. Exec. (8th ed.) 652–654.

An executor cannot, however, either directly or indirectly, be a purchaser from himself, and he must account in equity for any advantage that he may have received. See 2 Wms. Exec. (8th ed.) 942; 2 Woerner, Amer. Law of Adm. § 334. Quare, how far does this apply to specific chattels taken under the right of retainer.

A sale may be made to one who has been appointed executor, but has renounced. See Mackintosh v. Barber, 1 Bing. 50 (1822).

ASSETS. The property which is chargeable with the payment of the debts and legacies of a deceased person is called assets. Assets are of two kinds, — legal, and equi table. Legal assets are divided into real and personal.

I. LEGAL ASSETS. A. Real. Apart from Statute, an ancestor's estates in fee simple were liable in the hands of the heir, but only for debts by specialty in which the heir was named. By St. 3 & 4 Wm. & M. c. 14 (1691), the liability was extended to such estates in the hands of devisees. By St. 29 Car. II. c. 3, § 12 (1677), a like liability was imposed on estates pur auter vie in the hands of the heir as special occupant.

B. Personal. All the property and rights which are in the hands of an executor or administrator, in his capacity as representative, are personal assets. As all the testator's goods and chattels, including all surviving choses in action, pass to the executor or administrator, they are all legal assets. And if the executor or administrator, in his capacity as representative, has to go into equity to realize an asset, c. g., to collect a legacy, it is none the less a legal asset. Cook v. Gregson, 3 Drew. 547 (1856). But no real estate is personal assets, except that by St. 29 Car. II. c. 3, § 12, estates pur auter vie, where the heir is not named as special occupant, are assets in the hands of the executor or administrator.

II. EQUITABLE ASSETS. The assets of an intestate estate are only legal, but a man may direct by will that his real estate shall go for the payment of his debts generally. Such real estate is equitable assets. The administration of equitable assets is sometimes committed by the testator to his executors, sometimes to third persons.

The distinction in England between the different kinds of assets was important, owing to the different manner in which they were employed in discharge of debts. Speaking roughly, Legal Real Assets were applicable to the payment of specialty debts

only, Legal Personal Assets first to specialty, and afterwards to simple debts; Equitable Assets equally to specialty and simple debts.

In the United States, speaking generally, all a man's property, real and personal, is liable for all his debts. If any debts have precedence, it is without regard to the kind of assets out of which they are paid. The distinction between real and personal, and between legal and equitable assets, if it exists at all, is therefore of slight consequence in this country.

In the rest of this note, by assets will be meant Legal Personal Assets.

On the death of an executor or administrator, the administrator de bonis non takes all the assets existing as assets at the death of the original executor or administrator, but he does not take any property which has ceased to be assets.

All the chattels, real and personal, of the deceased, and all his surviving choses in action or claims in equity to money or other personal property are assets.

If any assets have been disposed of by the executor, e. g. in paying debts, they cease to be assets.

If the assets have been wrongfully transferred by an executor to one having notice, the administrator de bonis non may maintain a bill to have them conveyed to himself. Cubbidge v. Boatwright, 1 Russ. 549 (1826).

If the executor, in lieu of assets, takes a bond to himself as executor, that is a conversion of the assets to himself; the bond is not assets, and on his death it passes to his own administrator, and not to the administrator de bonis non. Hosier v. Arundell, 3 B. & P. 7 (1802). See Armitage v. Metcalf, 1 Ch. Cas. 74 (1666); Miller's Case, Freem. K. B. 283, 284 (1674). Cf. Caulkins v. Bolton, 98 N. Y. 511 (1885). But see Bogert v. Hertell, 4 Hill, 492 (1842).

But a promissory note taken by executors in payment for goods of the testator is, in England, deemed assets. Partridge v. Court, 5 Price, 412 (1818); affirmed (in Cam. Scacc.) 7 Price, 591 (1819). Catherwood v. Chabaud, 1 B. & C. 150 (1823).

So if an executor makes an underlease of a leasehold, the reversion remains assets, although perhaps the right to sue for a rent received may be personal to him. See Turner v. Hardey, 9 M. & W. 770, 773 (1842); Drue v. Baylie, Freem. K. B. 402 (1675). And although in Skeffington v. Whitehurst, 3 Y. & C. 1 (1838), it was held that the right to redeem a mortgage of leaseholds made by an executor, passed to his representative, and not to the administrator de bonis non, this was disapproved on the appeal in the House of Lords. Skeffington v. Budd, 9 Cl. & F. 219, 248 (1842).

If any of the goods or choses in action have been disposed of or collected by the executor or administrator, the proceeds are assets so long as they remain in the hands of third persons. Langford v. Mahony, 4 Dr. & W. 81, 107 (1843). And if a note taken by an executor is assets, it would seem that money taken by him would be assets also, whether it be retained in specie, or whether it be deposited with a banker in a separate account. See Goods of Hall, 1 Hag. Ecc. 139 (1827).

But the Supreme Court of the United States has held that the administrator de bonis non cannot recover from an agent of the executor a debt of the deceased collected by such agent. Wilson v. Anick, 112 U. S. 83 (1884). See Beall v. New Mexico, 16 Wall. 535 (1872); U. S. v. Walker, 109 U. S. 258 (1883). And the Supreme Court of Pennsylvania has held that the administrator de bonis non cannot demand from a bank the moneys which the original administrator deposited to his account as administrator. Slaymakers v. Farmers' Bank, 103 Pa. 616 (1883). See Potts v. Smith, 3 Rawle, 361 (1832).

See also Yaites v. Gough, Yelv. 33 (1603); Hirst v. Smith, 7 T. R. 182 (1797). In many of the United States the powers of administrators de bonis non are extended. See 2 Woerner, Amer. Law of Adm. §§ 351, 352.

At common law the claim on a devastavit did not survive against the executor or administrator of an executor or administrator, but a remedy was given by Sts. 30 Car. II. c. 7 (1678); 4 & 5 Wm. & M. c. 24, § 12 (1693). See Tucke's Case, 3 Leon. 241, page 646, post.

TENANT for term of life, remainder over in fee, by indenture demised, granted, and to farm let, for the term of fifteen years fully to be completed, rendering thereout annually during the aforesaid term twenty shillings to the lessor, his heirs, and assigns, without any warranty in the deed, or any express covenant that the lessee should enjoy the term. And within the term the lessor died, and he in the remainder entered upon the lessee, and he brought an action of covenant upon the indenture against the executors of the lessor, and showed the case as above, in the declaration, supposing the covenant broken by the execu tors, against the form and effect of the indenture aforesaid; and upon this the defendants demurred in law. And in Hilary Term, 9th of the present queen, the case was argued at the bar and bench. And by the opinion of all the Justices the plaintiff shall be barred. And defects were found in the declaration because the plaintiff had not alleged in fact that he was possessed, and afterwards expelled, &c., but by implication. Also the particular estate with the remainder over ought to have been certainly alleged, and not by implication, &c. Also the form of the writ should have been quod teneat conventionem, &c., de dampnis et de perditis occasione, &c. For the matter in law, three of the Justices, s. WELSHE, BROWNE, and DYER thought, that the executors should not be charged by this covenant in law, because the covenant in law ends and determines with the estate and interest of the lessee; and if it had been a covenant in fact or expressed, or warranty of the term expressed, it would be otherwise; and no cause of action is given against the testator in his lifetime: and for the argument of this case see the treatises de Natura Brevium, and the Register, and M. 4, [E. 3, 57, pl. 71,] and M. 7, E. 3, [65 a, pl. 67,] where the heir shall be charged in covenant, and the Statute of Bigamy [4 E. 1, St. 3, c. 6,] s. dedi et concessi, and M. 11, H. 6, [East, fol. 41 b,] 6 H. 7, [2 a, pl. 3,] and 2 H. 4, [6 b, pl. 25,] and 42 E. 3, [3, pl. 14,] and 20 [30] E. 3, [6 b, 14 a, b,] in ward, by The Queen