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As was shown in the article above referred to, the executor took the place of the heir as universal successor within the limits which still are familiar, shortly after Bracton wrote. His right to sue and the right of others to sue him in debt seemed to have been worked out at common law. It hardly needs argument to prove that the new rights and burdens were arrived at by treating the executor as standing in the place of the heir. The analogy relied on is apparent on the face of the authorities, and in books of a later but still early date we find the express statement, executores universales loco haeredis sunt,' or as it is put in Doctor and Student, “the heir, which in the laws of England is called an Executor."

Now when executors thus had displaced heirs partially in the courts, the question is what was their position with regard to the property in their hands. Presumably it was like that of heirs at about the beginning of the fourteenth century, but I have had to leave that somewhat conjectural. The first mode of getting at an answer is to find out, if we can, what was the form of judgment against them. For if the judgment ran against them personally, and was not limited to the goods of the deceased in their hands, it is a more than probable corollary that they held those assets in their own right. The best evidence known to me is a case of the year 1292 (21 Ed. I.) in the Rolls of Parliament. Margery Moygne recovered two judgments against Roger Bertelmeu as executor of William the goldsmith. In the first case he admitted the debt and set up matter in discharge. This was found against him except as to £60, as to which the finding was in his favor, and the judgment went against him personally for the residue. In the second case the claim was for 200 marks, of which the plaintiff's husband had endowed her ad ostium ecclesiae. The defendant pleaded that the testator did not leave assets sufficient to satisfy his creditors. The plaintiff replied that her claim was preferred, which the defendant denied. The custom of boroughs was reported by four burgesses to be as the plaintiff alleged, and the plaintiff had a judgment against the defendant generally. The defendant complained of these judgments in Parliament, and assigned as error that there came to his hands only £27 át most, and that the two judgments amounted to £40 and more. The matter was compromised at this stage, but enough appears for my purposes. If the defendant was right in his contention, it would follow in our time that the judgment should be de bonis testatoris, yet it does not seem to have occurred to him to make that suggestion. He assumed, as the court below assumed, that the judgment was to go against him personally. The limitation for which he contended was in the amount of the judgment, not in the fund against which it should be directed.

ordinary: "Obligetur decetero Ordinarius ad respondendum de debitis, quatenus bona defuncti sufficiunt eodem modo quo executores hujus modo erespondere tenerentur si testamentum fecisset.See the cases stated below. I know of no early precedents or forms of judgments against heirs. I wish that Mr. Maitland would give the world the benefit of his knowledge and command of the sources on the matter. Later the judgments against heirs was limited to assets descended. Townesend, Second Book of Judgments, 67, pl. 26.

6 Y. B. 20 & 21 Ed. I., 374; 30 Ed. I., 238; II Ed. III., 142. Id. 186. (Rolls ed.)

7 Lyndwood, Provinciale. Lib. 3, Tit. 13, C. 5. (Statutum bonae memoriae), note, at word Intestatis. Dr, and Stud. Dial. I, Ch. 19.

8 i Rot. Parl. 107, 108. It may be remarked, by the way, that an excellent example of trustee process will be found in this case.

There is some other evidence that at this time, and later, the judgment ran against the executor personally, and that the only limitation of liability expressed by it was in the amount. In the first case known to me in which executors were defeated on a plea of plene administravit it was decided that the plaintiff should recover of the defendants "without having regard to whether they had to the value of the demand." Afterwards it was settled that in such cases the judgment for the debt should be of the goods of the deceased, and that the judgment for the damages should be general. But whether the first case was right in its day or not, the material point is the way in which the question is stated. The alternatives are not a judgment de bonis testatoris and a general judgment against the defendants, but a judgment against the defendants limited to the amount in their hands, and an unlimited judgment against them.

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But if it be assumed that a trace of absolute ownership still was shown in the form of the judg

9 Y. B. 17 Ed. III. 66, pl. 83.

10 Y. B. 11 Hen. IV. 5, pl. 11. Skrene in 7 Hen. IV. 12, 13, pl. 8. Martin in 9 Hen. VI. 44, pl. 26. Danby in 11 Hen. VI. 7, 8, pl. 12. Dyer, 32 a, pl. 2. 1 Roll. Abr. 931, D. pl. 3. 1 Wms. Saund. 336, n. 10.

ment, when we come to the execution we find a distinction between the goods of the testator and those of the executor already established. In 12 Edward III. a judgment had been recovered against a parson, who had died. His executors were summoned, and did not appear. Thereupon the plaintiff had fieri facias to levy on the chattels of the deceased in the executors' hands (de lever ses chateux qil avoient entre mayns des biens la mort), and on the sheriff returning that he had taken 2os and that there were no more, execution was granted of the goods of the deceased which the executors had in their hands on the day of their summons, or to the value out of the executors' own goods if the former had been eloigned."

I now pass to two other rules of law for each of which there is a plausible and accepted explanation, but which I connect with each other and with my theme. In former days, I was surprised to read in Williams on Executors, that the property in the ready money left by the testator “must of necessity be altered; for when it is intermixed with the executor's own money, it is incapable of being distinguished from it, although he shall be accountable for its

What right, one asked oneself, has an executor to deal in that way with trust funds? In


value.” 12

11 Y. B. 13 Ed. III. 398-401 (A.D. 1338). Acc. 2 Rot. Parl. 397, No. 110 (Ed. III.). See also the intimation of Wychingham, J., in 40 Ed. III. 15, pl. 1. Fleta, Lib. 2, C. 57, § 6.

1 Wms. Exors. (7th ed.), 646. In the ninth edition this is qualified slightly by the editor in a note. (9th ed.) 566, 567 and n. (p).




this Commonwealth at least the executor would be guilty of a breach of duty if he mingled money of his testator with his own. Another passage in Williams shows that we must not press his meaning too far. It is stated that money of the testator which can be distinguished does not pass to a bankrupt executor's assignee. The principal passage merely was repeated from the earlier text-books of Wentworth and Toller. In Wentworth the notion appears to be stated as a consequence of the difficulty of distinguishing pieces of money of the same denomination from each other - a most impotent reason. There is no doubt that similar arguments were used in other cases of a later date than Wentworth.” But I prefer to regard the rule as a survival, especially when I connect it with that next to be mentioned.

As late as Lord Ellenborough's time it was the unquestioned doctrine of the common law that the executor was answerable absolutely for goods which had come into his possession, and that he was not excused if he lost them without fault, for instance, by robbery.16 Now it is possible to regard this as



1 Wms. Exors. 9th ed. 559. Howard v. Jemmett, a Burr. 1368, 1369, note; Farr v. Newman, 4 T.R. 621, 648.

14 Wentworth, Executors (14th ed. Philadelphia, 1832), 198.

15 Whitecomb v. Jacob, i Salk. 160; Ford v. Hopkins, 1 Salk, 283, 284; Ryall v. Rolle, 1 Atk. 165, 172; Scott v. Surman, Willes, 400, 403, 404. Rightly condemned quoad hoc in Re Hallett's Estate, 13 Ch. D. 696, 714, 715. See also Miller v. Race, 1 Burr. 452, 457 S.C. 1 Sm. L. C.

16 Crosse v. Smith, 7 East, 246, 258.

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