Action in

in arrear.

now they shall be charged by the name of administrators. Gibs. 478.

24. By the 32 H. 8. c. 37. Forasmuch as by the order of the case of rent common law, the executors or administrators of tenants in fee simple, tenants in fee tail, and tenants for term of life, of rent services, rent charges, rent secks, and fee farms, have no remedy to recover such arrearages of the said rents or fee farms as were due unto the testators in their lives, nor yet the heirs of such testator, nor any person having the reversion of his estate after his decease, may distrain or have any lawful action to levy any such arrearages of rents or fee farms, due unto him in his lifetime as is aforesaid; by reason whereof the tenants of the demesne of such lands, tenements, or hereditaments, out of which such rents were due and payable, who of right ought to pay their rents and farms at such day and terms as they were due, do many times retain such arrearages in their own hands, so that the executors and administrators of the persons to whom such rents or fee farms were due, cannot have or come by the said arrearages of the same, towards the payment of the debts, and performance of the will of the said testators; it is enacted, that the executors and administrators of every such person to whom any such rent or fee farm shall be due, and not paid at the time of his death, shall have an action of debt for all such arrearages, against the tenant that ought to have paid the same, or against his executors or administrators; or may distrain for the same upon the lands and other hereditaments chargeable therewith, so long as they continue in the seisin or possession of the said tenant in demesne, who ought immediately to have paid the said rent or fee farm so being behind, to the said testator in his life; or in the seisin or possession of any other person claiming the same only from the same tenant by purchase, gift, or descent; in like manner and form as the testator might have done in his lifetime, and shall for the same distress lawfully make avowry upon their matter aforesaid. 1.

Provided that this shall not extend to any such manor, lordship, or dominion in Wales, or in the marches of the same, whereof the inhabitants have used time out of mind to pay unto the lord or owner thereof at his first entry into the same, any sum for the redemption and discharge of all duties, forfeitures, [314] and penalties, whereof the said inhabitants were chargeable to any of their said lords, ancestors, or predecessors, before his said entry. § 2.

And if any man having in the right of his wife any estate in fee simple, fee tail, or for term of life, in any rents or fee farms, and the same shall be due and unpaid in the said wife's life; the husband after the death of his wife, his executors and administrators, may have an action of debt for the said arrearages,

against the tenant of the demesne that ought to have paid the same, his executors or administrators, or may distrain for the same, as he might have done if his wife had been living, and make avowry upon his matter as aforesaid. 32 H. 8. c. 37. § 3.

And if any person shall have any rents or fee farms for term of life of any other person, and the same shall be due and unpaid in the life of such other person, and he dieth; then he to whom the same was due, his executors or administrators, may have an action of debt against the tenant in demesne, that ought to have paid the same when it was first due, his executors and administrators; or may distrain for the same upon such lands and tenements out of which the said rents or fee farms were issuing and payable; in like manner and form as he might have done, if such person, by whose death the aforesaid estate in the said rents and fee farms was determined and expired, had been in full life; and the avowry for the taking of the same distress to be made as aforesaid. § 4.

And by the statute of the 11 G. 2. c. 19. Whereas where any lessor or landlord, having only an estate for life in the lands, tenements, or hereditaments demised, happens to die before or on the day on which any rent is reserved or made payable, such rent or any part thereof is not by law recoverable, by the executors or administrators of such lessor or landlord; nor is the person in reversion entitled thereunto, any other than for the use and occupation of such lands, tenements, or hereditaments, from the death of the tenant for life; of which advantage hath been often taken by the under-tenants, who thereby avoid paying any thing for the same: for remedy thereof it is enacted, that where any tenant for life shall happen to die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, that the executors or administrators of such tenant for life shall and may, in an action upon the case, recover of and from such under-tenant

or undertenants of such lands, tenements, or hereditaments, if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent, according to the time such tenant for life lived of the last year, or quarter of a year, or other time in which the said [315] rent was growing due, as aforesaid; making all just allowances, or a proportionable part thereof respectively. $15.

25. An executor may sue another in the spiritual court touching his testator's goods, in this case, viz. if a man devise or bequeath corn growing, or goods, unto one; and a stranger will not suffer the executor to perform the testament: for this legacy, he shall sue the stranger in the spiritual court. Swin. 18.

But if a man take from the executor or administrator the

In what

courts to be

brought.

In what

case coexecutors must all

join.

Case where

one coexecutor refuseth.

goods of the deceased, for this they must use their action of trespass, and not sue in the spiritual court: for they cannot sue for the goods of the deceased in a court ecclesiastical, but at the common law. Swin. 18. 10 Mod. 21.

Also tenants may be sued at the common law by executors or administrators for rent behind, and due to the testator or intestate in his lifetime, or at the time of his death; and they may for the same distrain the land charged with the rent. Swin. 18.

26. All the executors do represent the person of the testator, and therefore they must all join in suit against others; and in suit by others they must all be made defendants, or at least so many of them as do administer: for though executors themselves must take notice by the will how many executors there be, and must frame their suit accordingly, creditors and strangers need not take notice of any more than do administer, and execute the office of executor. Went. 95.

T. 6 Ja. Smith and Smith. The mother and her son, an infant, were made executors, and administration was granted to her during the minority of her son: she married again, and then her husband and she as executrix brought an action of debt against the defendant, who pleaded in abatement that the infant was not named; and upon a demurrer to that plea, it was held that the plea was good: but if it had been set forth specially in the declaration, that there was another executor under age, though not joined in the action, it might have been otherwise. Yelv. 130. 1 Brownl. 101.

27. If one executor refuse to undertake the executorship, then is the other executor to be admitted alone, and may execute the will, or commence any suit or be sued alone, as if no other had been named executor. But if he alter his mind, and afterwards become willing, then (his former refusal before the ordinary not[316] withstanding) he may join with the other executor who proved the will; and if he release any debt due to the testator, the release is as sufficient, as if he had never refused. Which is to be understood, if he released before judgment; but after judgment, being no party to the suit, he cannot acknowledge satisfaction, because he was not privy to the judgment. Swin. 325.

In what ease one

And where there are several executors, and one of them refuseth before the ordinary, and the rest prove the will, he who refused may administer when he will, and therefore they who proved it ought to name him in every action; but if they all refuse, and the ordinary grants administration to another, then it is too late; for in such case they cannot afterwards prove the will. 9 Co. 38. Henslow's case. (z)

28. Co-executors being in law but as one person, therefore

(z) Vide supra, Probate, 10.

the act of one is the act of them all, and the possession of one is may do accounted the possession of all, and the payment of debts by or what all to one of them is the payment of or to all of them, and the sale may do. or gift of the testator's goods by one is the sale or gift of all; and likewise a release before judgment of one of them, is a release of all. Swin. 328. [See 2 Ves. 268.]

But it is not so with administrators: for they have but one authority given them by the bishop over the goods; which authority being given to many, is to be executed by all of them joined together. Lord Bacon's Tracts, 162. 1 Atk. 460.

Also one executor shall not be charged with the wrong or devastavit of his companion, and shall be no farther liable than for the assets which came to his hands. And therefore where an action was brought against two executors, and the jury found that the two and another were made executors, and that the third wasted the assets to the amount of 600l. and died, and that only 167. came to the hands of the two others; the court held, that they should be chargeable for no more than the 167.: for that it was the testator's folly to trust such a person, which must not turn to the prejudice of the other executors. 2 Bac. Abr. 395.

29. Regularly, one executor cannot sue another of his coexecutors, touching any thing relating to his testator's will, or that is within the power, interest, duty, or office of an executor. 2 Bac. Abr. 396. (a)

But if the residue of the personal estate, after debts and legacies be devised to both the executors, one of them may sue the other in the spiritual court for a moiety: for this is in the nature of a gift or legacy to him, and he may bring trespass against the other executor if he takes it out of his possession, or detinue if he detains it from him. 2 Bac. Abr. 396.

Or, in such case, he may have relief in equity.

One executor can

not sue another.

[317]

30. It seemeth to be now settled, that where a man maketh Co-exetwo executors, and deviseth to them the residue of his goods after cutor dying. debts and legacies paid, and one of them dieth, that the survivor shall have the whole. 2 Lev. 209. 1 Vern. 482.

So where a man devised all the rest and residue of his goods, chattels, and personal estate, to two persons, their executors and administrators, and one of them died; on a bill brought by his executor against the surviving devisee, it was held, that the survivor should take the whole to his own use, and should not be a trustee as to the moiety for the representative of him who is dead; and that they were to be considered as joint-tenants, where sur

(a) But if a debtor make his creditor and another person executors, and the creditor abstain from proving the will, or acting as executor, he may maintain an action against the other for his debt due by the testator. Rawlinson v. Shaw, 3 T. Rep. 557.

Executor

trator of an

executor.

vivorship takes place, as well in cases of chattels as in cases of inheritance. 1 Abr. Ca. Eq. 243. 12 Ves. 298.

31. The executor of an executor (where there is no joint exeor adminis- cutor) is executor to the first testator, and hath right to all the profit, and is liable to all the charge that the first executor had, or was subject unto. But the one testator's goods shall not stand charged for the other testator's debts, but each for his own. Swin. 329.

If two be appointed executors, and the one maketh his testament, wherein he nameth his executor, and dieth, his co-executor surviving; in this case, the executor of the executor is not to be joined with the executor surviving, neither in the execution of the will, nor in suits or actions. And if the executor of the executor have any goods or chattels in his hand, which did belong [318] to the first testator, the executor of the same testator surviving may have an action against the executor of the executor for the same for the power of the executor who died first was determined by his death, the other then surviving. Swin. 324, 325. Swinburne says, the executor of an executor cannot sell the land of the first testator. Swin. 329.

But in the case of Rolls and Mason, T. 10 Ja., where the devise was, that the executor should sell, it was held, that the executor of the executor might sell, though not in being at the time of the devise. 2 Brownl. 194.

Lands

The executor died.

So in the case of Garfoot and Garfoot, M. 15 C. 2. were devised to be sold by the executor. The youngest children, for whose benefit the sale was ordered, preferred a bill against the heir. The heir demurs; because it was but an authority in the executor, which is dead with him. But the demurrer was overruled. 1 Cha. Ca. 35.

But the administrator of an executor is not liable: as in the case of Tucker and Towel, M. 9 G. 2. There was a libel in the spiritual court for a legacy. The defendant pleaded that it was a legacy given by the will of the testator, whose executor is dead, and he the defendant is administrator of the executor, and therefore is not liable for the legacies. Which plea the spiritual court refused, and therefore he applies for a prohibition.-By lord Hardwicke chief justice: No doubt but the spiritual court hath a general jurisdiction in suits for legacies; but the question is, whether they have in this suit as it is now brought. And I think they have not. For if an executor dies intestate, there is no privity between his administrator and the testator; and in order to continue the privity, there are administrations de bonis non granted, which is the constant course. Now here is a suit against the administrator of the executor, who is not administrator de bonis non of the first testator: so that there is no privity. But it is said, that here is what amounts to an allegation that this