securities named by the act. 1
The liabilities of a personal representative are (a)
those which survive against him in his representative
character; (b) those which he imposes on himself by
his own act. The principle of law applicable to the
representative is clearly stated in a judgment by Lord
Justice Bowen. "By the English law an executor
represents the debts and property, but not the person of
the testator. It seems to have been thought that there
would be an injustice in making the executor stand in
the place of the dead man when the causes of action
were purely personal." ''
(a) Contracts entered into by the deceased are en-
forceable against his representatives to the extent of the
assets coming into their hands, unless the contract was
one personal to the deceased as a contract to marry,
or to do some work depending on confidence shown in
1 See Appendix A. Where the beneficiaries are all sui juris, it is
sometimes convenient to let the investments remain, and make a
division of securities with cash payments for equalisation. Tins
arrangement may or may not lie confirmed by deed.
5 J'hillijis v. llomfray, Law Kep., 24 Chancery Div., 450 (1883).
REPRESENTATIVE LIABILITIES 153
the particular person, such as to write a book. Where
the contract is joint, the burden of it passes to the sur-
vivor or survivors, unless, as is the better opinion, in
the case of partnership debts. A partnership debt
being several as well as joint, the assets of the deceased
partner may be resorted to by creditors of the partner-
ship. A covenant relating to land not of inheritance,
and a covenant, contract under seal, or bond or obliga-
tion under seal, now operate, by the Conveyancing Act,
1881, to bind the executors and administrators. 1 The
representative who is sued is, like the representative
suing, bound by the provisions of the Apportionment
Act, 1870. With regard to torts committed by the
deceased, such as libel, as a general rule the liability is
not transmissible to the representatives, and the doctrine
of actio personalis moritur cum persond applies. The law,
as laid down by the Court of Appeal in the case just
cited, is to the effect that, apart from cases of breach of
contract, a remedy for a wrongful act done by a deceased
person cannot be pursued against his estate, unless
property or the proceeds or value of property belong-
ing to another person have been appropriated by the
deceased person and added to his estate. By 3 and 4
Will. IV, c. 42, s. 2, an action of trespass or trespass on
the case may be maintained against the executors or
administrators for any wrong committed by the deceased
in his lifetime to another, in respect of his property, real
or personal, provided that such injury was committed
within six months before such person's death, and that
the action be brought within six months after the execu-
tors -or administrators shall have taken upon themselves
administration to the estate. It will be noticed that this
1 Sections 58, 59.
VOL. I 11
154 EXECUTORS AND ADMINISTRATORS
provision differs in two particulars from the part of the
section which gives the representatives a remedy for
injuries to the estate of the deceased. 1 The remedy is
only for injuries to real estate, and the limit of time
fixed for bringing the action is a year from the death.
(b) An executor or administrator may impose a
personal liability on himself beyond his representative
liability, and such liability may arise either from con-
tract or from tort. The main examples of the latter would
be the liability of an executor de son tort, 2 and of an
executor proper for devastavit, that is, for ' misapplication
of the assets under his control, as by investment in un-
authorised or wasting securities, but not for mere loss
without wilful default. As to express contract, it is
provided by the Statute of Frauds (29 Car. II, c. 3, s.
4) that no action shall be brought whereby to charge
any executor or administrator upon any special promise
to answer damages out of his own estate, unless the
agreement upon which such action shall be brought, or
some memorandum or note thereof, shall be in writing
and signed by the party to be charged therewith, or
some other person thereunto by him lawfully author-
ised. The statute does not apply to contracts other
than express contracts of the kind mentioned. Thus, if
an executor take possession of land formerly in the
occupation of the deceased, he may be personally liable
for rent due after the death. He may also become
liable, on general principles of equity, by admission of
assets, even though the estate be really insufficient to
meet the claims on it. Should he carry on the testator's
trade in the absence of express directions in the will to
that effect, he may be liable for any loss, while his
i P. 142. P. iii3.
PERSONAL LIABILITIES 155
fiduciary position gives him no right to take advantage
of any profit. He may, however, complete existing
contracts, and may receive dividends on stock or shares
standing in the name of the deceased. It is a question
of fact, which the courts have frequently had to decide,
whether the liability of an executor as shareholder is in
his personal or his representative character. A question
of some difficulty may arise how far an executor incurs
the liability of a trustee. He is a trustee for some pur-
poses and not for others. The most important cases in
which he incurs the liability of a trustee are after assent
to the legacies, when he becomes a trustee for the
legatees, and under 11 Geo. IV and 1 Will. IV, c. 40,
by which he becomes a trustee of any undisposed of
residue for the benefit of the next of kin, unless it be
clear that the will intends him to take it for his own
benefit. The intention is to be ascertained from the
words of the will itself. A gift of the residue
without reference to his office, to a person constituted
earlier in the will executor and trustee has been held to
be a gift for his own benefit. 1 An executor may
always be, and very commonly is, constituted by the
will a trustee, especially a trustee for sale. The near
approach of an executor or administrator to a trustee is
shown by the fact that in many Acts of Parliament, e.g.
the Trustee Acts, 1850 to 1888, the Succession Duty
Act, 1853, the Trust Investment Act, 1889, and the
Lunacy Act, 1890, the word "trustee," as used in the
acts, includes executor or administrator. The differ-
ence in the liability of executors and trustees as to
receipts has already been mentioned. 2
1 Williams v. Arkh, Law Rep., 7 House of Lords, 606 (1875).
2 P. 144.
166 EXECUTORS AND ADMINISTRATORS
As to practice, there is a provision in the Rules of
the Supreme Court, 1883, enabling executors and ad-
ministrators to sue and be sued on behalf of or as
representing the property or estate, without joining
the persons beneficially interested. 1 The representative
character of the plaintiff must appear on the indorse-
ment of the writ 2 If the representative character be
denied, it must be denied specifically. 3 Claims by or
against an executor or administrator as such, may be
joined with claims by or against him personally, pro-
vided the last -mentioned claims are alleged to arise
with reference to the estate in respect of which the
plaintiff or defendant sues or is sued as executor or
administrator. 4 A cause or matter is not abated by
reason of the death of any of the parties, if the cause of
action survive or continue ; and whether the cause of
action survives or not, there is to be no abatement by
reason of the death of either party between the verdict
or finding of the issues of fact and the judgment ; but
judgment may in such case be entered, notwithstanding
the death. The court or a judge has power to order
that the personal representative shall be made a party
or be served with notice, or to make an order for new
parties. 5 Where any change has taken place by death
in the parties entitled or liable to execution, it can only
issue by leave of the court or a judge. Similar rules
of practice are contained in the County Court Rules,
1889, and Ord. xxx. of those rules is chiefly occupied
with costs of forms and judgments where executors and
administrators are parties.
1 Ord. xvi, r. 8. a Ord. Hi, r. 4.
3 OnL xxi, r. 6. 4 OnL xviii, r. 4.
8 Ord. xvii, rr. 1, 2, 4. Ord. xlii, r. 23 (a).
CHAPTER XIII
ADMINISTRATION IN A COURT OF EQUITY
THE question of the validity of a will is, as has been
already stated, one for the consideration of the Probate
Division or a county court ; the question of the persons
entitled to take under a will or an intestacy and of the
meaning of words used in a will is for a court of equit-
able jurisdiction, generally by means of an action of ad-
ministration or an originating summons. The court of
equity thus becomes par excellence the court for the con-
struction of wills, though to a smaller extent, e.g. in
questions of pedigree and in bankruptcy, the Queen's
Bench Division and other courts deal with construction.
The jurisdiction of the court of construction follows and
is supplementary to that of the court of probate ; it only
begins when a grant of probate or administration has
been granted by the latter, and it accepts the decision
of the latter as to the grant. The usual courts which
determine the administration of the estate of a deceased
are (1) the Chancery Division of the High Court of
Justice, (2) a court having jurisdiction in bankruptcy,
(3) the Court of Chancery of the County Palatine of
Lancaster, (4) a county court in its equitable jurisdic-
tion.
158 ADMINISTRATION IN A COURT OF EQUITY
(1) In most cases the distribution of the assets of a
deceased person, real or personal, when it comes before
a court of justice at all, falls within the jurisdiction of
the Chancery Division, to which by a 34 of the Judi-
cature Act, 1873, are assigned all causes or matters for
the administration of the estates of deceased persons.
An administration action may be brought by any person
interested, as a legatee, devisee, next of kin, or creditor.
As a rule, all parties interested must be before the court.
The defendant, at any rate the principal defendant, is
usually the personal representative of the deceased.
The judgment or order pronounced at the hearing
ordinarily directs accounts to be taken of the personal
estate of the deceased, his debts and funeral expenses,
and (where there is a will and it is not a creditor's
action) of the legacies and annuities bequeathed, and an
inquiry to be made as to what parts of his personal
estate are outstanding or undisposed of. If the admin-
istration extend to real estate, the judgment or order
directs inquiries to be made as to what real estate the
deceased died seised of or entitled to, and as to the
incumbrances affecting the same, and if necessary directs
the real estate to be sold with the approbation of the judge.
Sometimes an account is directed to 1x5 taken of the rents
and profits received by the trustees. 1 The Judicature
Act, 1875, s. 10, provides that in the administration of
the assets of a person who died insolvent the same rules
shall prevail as to the respective rights of secured and un-
secured creditors, as to debts and liabilities provable, and
as to the valuation of annuities and future and contingent
liabilities, as may 1x3 in force for the time being under
the law of bankruptcy. The Rules of the Supreme
1 2 DanieU'a Chancery Practice, o. xvii, s. 3 (1 1).
ORIGINATING SUMMONS 159
Court, 1883, contain many provisions as to administra-
tion, the most important of which are those relating to
the procedure by originating summons, introduced as a
new remedy by the rules. By Order Iv, rule 3, the
executors or administrators of a deceased person or any
of them, and any person claiming to be interested in the
relief sought as creditor, devisee, next of kin, or heir-
at-law or customary heir, may (inter alios) take out, as
of course, an originating summons returnable in the
chambers of a judge of the Chancery Division for such
relief of the nature or kind following as may by the
summons be specified, and as the nature of the circum-
stances may require ; that is to say, the determination,
without an administration of the estate, of any of the
following questions or matters : (a) any question affect-
ing the rights or interests of the person claiming to be
creditor, devisee, legatee, next of kin, or heir-at-law ; (6)
the ascertainment of any class of creditors, legatees,
devisees, next of kin, or others ; (c) the furnishing of
any particular accounts by the executors or adminis-
trators, and the vouching (when necessary) of such
accounts ; (d) the payment into court of any money in
the hands of the executors or administrators ; (e) direct-
ing the executors or administrators to do or abstain
from doing any particular act in their character as such
executors or administrators; (/) the approval of any
sale, purchase, compromise, or other transaction ; (g) the
determination of any question arising in the adminis-
tration of the estate. It has been held that this
rule applies only to matters which before the rule would
have been determined by an administration action. 1
1 For other rules of practice see Ord. xvi, rr. 32-47, and ante,
p. 156. Costs are provided for by Ord. Ixv, r. 1, under which the
160 ADMINISTRATION IN A COURT OF EQUITY
The determination of any incidental position arising
respecting the management or administration of the
trust property or the assets of any testator or intestate
may by 22 and 23 Viet, c. 35, s. 30, be obtained by the
executor or administrator by petition or summons for
the opinion, advice, or direction of a judge of the
Chancery Division at chambers. In the administration
of assets the court follows a certain order in directing
the payment of debts. The order is (a) the general
personal estate, (b) real estate devised for the purpose
of paying debts, (c) real estate descended, (d) real or
personal property devised or bequeathed charged with
the payment of debts, (e) general legacies, lands com-
prised in a residuary devise, specific legacies and devises,
(/) property over which the deceased had a general
power of appointment The personal estate is not, how-
ever, the primary fund where it is exempted by express
words or manifest intention, or where the debt forming
the charge is in its nature real (as in the case of portions
to be raised out of lands by a power of appointment),
or where the debt was not contracted or adopted by the
deceased, or in cases coming within Locke King's Act
(17 and 18 Viet, c. 113) and the amending acts of
1867 (30 and 31 Viet, c. 69) and 1877 (40 and 41
Viet, c. 34). The effect of these acts is to make a
mortgage debt or any other equitable charge, including
a lien for unpaid purchase money, primarily payable
out of the mortgaged lands, whatever be their tenure,
and whether the deceased have died testate or intestate,
unless the deceased have by will or deed or other
document signified any contrary or other intention.
court ha* discretion to order an executor or administrator to pay
costs unnecessarily incurred.
CONVERSION 161
The act of 1867 enacts that the contrary or other inten-
tion must be express or by necessary implication, not
merely by a general direction for the payment of debts
out of the personal estate. These acts only apply
where the debt is on real or leasehold estate, and where
it was of the deceased's own contracting. As a rule
parol evidence is not receivable to show an intention of
exonerating the real estate. 1
It should be noticed that in administration of the assets
the court applies the doctrine of conversion, which has been
denned as " that change in the nature of property by which,
for certain purposes, real estate is considered as personal,
and personal estate as real, and transmissible and descend-
ible as such." To effect a conversion there must be an
imperative, not merely an optional, direction by the testa-
tor. Locke King's and the other acts do not apply to
real estate directed to be considered as personal estate
by the doctrine of conversion. If therefore land be
devised in trust for conversion, it is not the primary
fund for payment of a debt charged on it by the testa-
tor. Nor will the court presume conversion in favour
of a charity. The doctrine of conversion of course can-
not apply unless there be a will. If the purpose
of the conversion fails, as by lapse of legacies to
be raised out of land, a resulting trust of the property
intended to have been converted arises in favour
of the heir-at-law. This was first held by Lord
Thurlow in a famous case, 2 which was the foundation of
Lord Eldon's success at the bar. He succeeded in con-
vincing the court of the soundness of the proposition
1 The whole law of the order of administration of assets is fully
considered in the notes to the case of Duke of Ancaster v. Mayer, 1
White and Tudor's Leading Cases in Equity, 630.
2 Ackroydv. Sniit/ison, 1 Brown's Chancery Cases, 502 (1780).
162 ADMINISTRATION IN A COURT OF EQUITY
of law just stated. In many wills a clause postponing
conversion at the discretion of the trustees is inserted.
Such a clause is of great advantage where the property
to be converted is likely to be fluctuating in value. The
conversion which has been spoken of is conversion by
the act of the testator. There is another kind of con-
version, which is done by the act of the court. Where
personal estate is given in terms amounting to a general
residuary bequest to be enjoyed by persons in succes-
sion, the interpretation the court puts upon the bequest
is that the persons indicated are to enjoy the same
thing in succession, and in order to carry out that
intention the court as a general rule converts into
permanent investments so much of the personalty as
is of a wasting or perishable nature, such as annuities
or leaseholds, and also reversionary interests. 1 One of
the main objects of an administration is to satisfy the
creditors as far as the assets suffice. In accordance
with this object it is a rule of practice, known as
" marshalling the assets," that where one claimant has
more than one fund to resort to and another claimant
only one, the first claimant is to resort to that fund to
which the second cannot resort. Assets are not mar-
shalled in favour of a charity. The main reason for the
rule of marshalling was the desire of the court to put
specialty and simple contract debtors on an equal foot-
ing. This has, however, now been expressly done by
3 and 4 Will. IV, c. 104, and 32 and 33 Viet, c. 46.
The effect of these acts, and of the Judicature and
1 It should be noticed that property may be reconverted, i.r. rev. rt
to its original state. This generally happens when- tin- cl-.m-c pn-fi-rs
t-t take it in its original state ; for instance, where land is -lr\is.-d <>n
trust, to sell and pay tlic pnr<-lia>i-iininey to A, and A gives notice to
tin- trustees that he prefers the land, as he has a right t<> do.
INSOLVENT ESTATE 163
Bankruptcy Acts, has been to deprive the doctrines of
priority and marshalling of much of their former im-
portance.
(2) Provision is made by the Judicature Act, 1875,
s. 10, for the observance in the administration of the
estate of a person who dies insolvent of the same rules
as to the rights of secured and unsecured creditors, and
as to debts and liabilities provable, and as to the valua-
tion of annuities and future and contingent liabilities as
may be in force for the time being under the law of
bankruptcy. The Bankruptcy Act, 1883, enables the
estate of a person dying insolvent to be administered in
bankruptcy. The court possessing jurisdiction in such
matters is either the High Court on its bankruptcy side
or a county court. By s. 125 of the act, any creditor
whose debt would have been sufficient to support a
bankruptcy petition against a deceased debtor, had such
debtor been alive, ma}^ present to the court a petition
in the prescribed form, praying for an order for the
administration of the estate of the deceased debtor
according to the law of bankruptcy. The section and
the rules framed in accordance with it contain numerous
provisions for the carrying out of the administration.
There is in bankruptcy proceedings no limit of amount
beyond which a county court is deprived of jurisdic-
tion. 1
(3) An administration action may be brought in the
Chancery Court of the County Palatine of Lancaster
where a defendant in the action or the property the
subject of the action is within the jurisdiction of the
court. The jurisdiction is not exclusive, but concurrent
with that of the Chancery Division of the High Court.
1 See the work on Bankruptcy in this series.
164 ADMINISTRATION IN A COURT OF EQUITY
There is no limit of amount. The practice is in general
accordance with that of the High Court
(4) Equitable jurisdiction was first given to the
county courts in 1865 by 28 and 29 Viet, c. 99, the
provisions of which have been since superseded by the
County Courts Act, 1888. By s. 67 of that Act,
a county court is to exercise all the powers of
the High Court in actions or matters by creditors,
legatees (whether specific, pecuniary, or residuary),
devisees (whether in trust or otherwise), heirs-at-law, or
next of kin, in which the personal or real or personal
and real estate against or for an account or administra-
tion of which the demand may be made shall not exceed
in amount or value the sum of 500. Sections 68 and
69 provide for the transfer of actions or matters from a
county court to the High Court, and from the High
Court to a county court By s. 75 proceedings for
the administration of the assets of a deceased person arc
to be taken in the court within the district of which
the deceased person had his last place of abode in
England, or in which the executors or administrators,
or any one of them, shall have had their or his place of
abode. The district courts of the metropolis are, by
s. 84, to be treated as one district Proceedings by
originating summons are not competent in the county
court; but a practically identical method of obtaining
the decision of that court is provided by the County
Court Rules, 1889. 1 Under those rules the plaintiff
may renounce his right to an order for general adminis-
tration, and the judge may make an order determining
only certain questions submitted. These questions are
the same as those named in Ord. Iv of the Rules of the
1 Ord. vi, r. 6.
COUNTY COURT APPEAL 165
Supreme Court. The judge has a general discretion as
to making or refusing a general administration order.
Appeals lie from the High Court and the Chancery
Court of Lancaster to the Court of Appeal, and thence
to the House of Lords (in bankruptcy appeals only with
leave of the Court of Appeal). From county courts
the appeal lies without leave to a divisional court of
the High Court of Justice, whose decision is final, unless
leave to appeal be given.
CHAPTER XIV
CRIMINAL LAW
AT common law there could be no larceny of any instru-
ment concerning land. A will of lands could therefore
not be stolen, but a will of personalty could. This diffi-
culty no longer exists, for by 24 and 25 Viet, c. 96, s.
27, any person who shall, either during the life of the
testator or after his death, steal, or for any fraudulent
purpose destroy, cancel, obliterate, or conceal the whole
or any part of any will, codicil, or other testamentary
instrument, whether the same shall relate to real or
personal estate, shall be guilty of felony, and liable on
conviction to a maximum punishment of penal servitude
for life.
Forgery of a will with intent to defraud is a felony,
making the offender liable to the same punishment,
24 and 25 Viet, c. 98. It has been held that there
may be a conviction for the forgery of the will of
a living person and even of an imaginary person. By
24 and 25 Viet, c. 98, s. 21, it is felony, punishable
with a maximum term of fourteen years penal servitude,
with intent to defraud to demand, receive, or obtain, or
cause or procure to be delivered or paid to any person,
any chattel, money, security for money, or other pro-
CRIMINAL LAW 167
perty whatsoever, under, upon, or by virtue of any
forged or altered instrument whatsoever, knowing the
same to be forged or altered, or under, upon, or by
virtue of any probate or letters of administration, know-
ing the will, testament, codicil, or testamentary writing
on which such probate or letters of administration shall