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merely one offshoot of the early liability of bailees which still lingered alive, although the main root had rotted and had been cut a century before by Chief Justice Pemberton, and by the mock learning of Lord Holt." It is explained in that way by Wentworth,18 who wrote before the early law of bailment had been changed, but with some suggestions of difference and mitigation. If this explanation were adopted we only should throw the discussion a little further back, upon the vexed question whether possession was title in primitive law. But it is undeniable that down to the beginning of this century the greatest commonlaw judges held to the notion that the executor's liability stood on stronger grounds than that of an ordinary bailee, and this notion is easiest explained as an echo of a time when he was owner of the goods, and therefore absolutely accountable for their value. In the Chancery, the forum of trusts, it is not surprising to find a milder rule laid down at an earlier date, and no doubt the doctrine of equity now has supplanted that of the common law."


There is no dispute, of course, that in some sense executors and administrators have the property in the goods of the deceased.20 I take it as evidence

17 King v. Viscount Hertford, 2 Shower, 172; Coggs v. Bernard, 2 Ld. Raym. 909. The Common Law, Lect. 5, esp. p. 195. Morley v. Morley, 2 Cas. in Ch. 2.

18 Executors (14th ed.), 234.

19 Lord Hardwicke in Jones v. Lewis, 2 Ves. Sen. 240, 241 (1751); Job v. Job, 6 Ch. D. 562; Stevens v. Gage, 55 N.H. 175. See Morley v. Morley, 2 Cas. in Ch. 2 (1678).

20 Com. Dig. Administration (B. 10). ed.) 558.

Cf. Wms. Exors. (9th

how hard the early way of thinking died that as late as 1792, the King's Bench were divided on the question whether a sheriff could apply the goods of a testator in the hands of his executor in execution of a judgment against the executor in his own right, if the sheriff was notified after seizure that the goods were effects of the testator. As might have been expected the judgment was that the sheriff had not the right, but Mr. Justice Buller delivered a powerful dissent.21 A little earlier the same court decided that a sale of the testator's goods in execution of such a judgment passed the title, and Lord Mansfield laid it down as clear that an executor might alien such goods to one who knew them to be assets for the payment of debts, and that he might alien them for a debt of his own. He added, "If the debts had been paid the goods are the property of the executor." 22

Another singular thing is the form of an executor's right of retainer. "If an executor has as much goods in his hands as his own debt amounts to, the property of those goods is altered and rests in himself; that is, he has them as his own proper goods in satisfaction of his debt, and not as executor." 23 This proposition is qualified by Wentworth, so far as to require an election where the goods are more than the debt." But the right is clear, and if not

21 Farr v. Newman, 4 T.R. 621.

22 Whale v. Booth, 4 Doug. 36, 46. See 1 Wms. Exors. (9th ed.) 561, note.

23 Woodward v. Lord Darcy, Plowden, 184, 185.

24 Executors (14th ed.), 77, 198, 199.


exercised by the executor in his lifetime passes to his executor. So when an executor or administrator pays a debt of the deceased with his own money he may appropriate chattels to the value of the debt.20 A right to take money would not have seemed strange, but this right to take chattels at a valuation in pais without judgment is singular. It may be a survival of archaic modes of satisfaction when money was scarce and valuations in the country common." But it may be a relic of more extensive title.

The last fact to be considered is the late date at which equity fully carried out the notion that executors hold the assets in trust. In 1750, in a case where one Richard Watkins had died, leaving his property to his nephew and niece, Lord Hardwicke, speaking of a subsequently deceased nephew, William Watkins, said that he "had no right to any specific part of the personal estate of Richard whatever; only a right to have that personal estate accounted for, and debts and legacies paid out of it, and so much as should be his share on the whole account paid to him; which is only a debt, or in the nature of a chose in action due to the estate of Wil

25 Hopton v. Dryden, Prec. Ch. 179. 77, note, citing 11 Vin. Abr. 261, 263; 179, 183; Burdet v. Pix, 2 Brownl. 50.

Wentw. Exors. (14th ed.) Croft v. Pyke, 3 P. Wms.

26 Dyer, 20; Elliott v. Kemp. 7 M. & W. 306, 313.

27 See, e.g., the application of the trusteed wool to the judgment in I Rot. Parl. 108. Assignment of dower de la pluis beale, Litt. § 49. Delivery of debtor's chattels by sheriff, St. Westm. II. Ch. 18. Kearns v. Cunniff, 138 Mass. 434, 436.

liam." 28 In M'Leod v. Drummond 29 Lord Eldon says that Lord Hardwicke "frequently considered it as doubtful, whether even in the excepted cases any one except a creditor, or a specific legatee, could follow the assets in equity. On the same page, Hill v. Simpson, 7 Ves. 152 (1802), is said to have been the first case which gave that right to a general pecuniary legatee.30 Hill v. Simpson lays it down that executors in equity are mere trustees for the performance of the will,31 but it adds that in many respects and for many purposes third persons are entitled to consider them absolute owners. Toward the end of the last century their fiduciary position began to be insisted on more than had been the case, and the common-law decisions which have been cited helped this tendency of the Chancery.




The final step was taken in M'Leod v. Drummond, when Lord Eldon established the rights of residuary legatees. "It is said in Farr v. Newman that the residuary legatee is to take the money, when made up: but I say, he has in a sense a lien upon the fund, as it is; and may come here for the specific fund." 34

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30 See also M'Leod v. Drummond, 14 Ves. 353, 354.

31 P. 166. Note the recurrence with a difference to their original position in the early Frankish law. I Law Quart. Rev. 164.

82 See also Scott v. Tyler, 2 Dickens, 712, 725, 726.

33 17 Ves. 152, 169.

34 See Marvel v. Babbitt, 143 Mass. 226; Pierce v. Gould, 143 Mass. 234, 235; Mechanics' Savings Bank v. Waite, 150 Mass. 234, 235.

I made the decree appealed from in Foster v. Bailey, 157 Mass. 160,

162. The particular form which it took, allowing the defendant, the administrator of an administrator, to retain one share of stock and a savings-bank book as security for what might be found due to his intestate on the settlement of his account, and directing him to hand over the rest of the assets, was consented to, in case the defendant had a right to retain anything. I made the decree on the assumption that the change in the position of executor and administrator which I am considering left their rights undisturbed. Of course if the liability were only to account for a balance, the executor of an executor would not be bound to hand over anything more, and could not be compelled to pay anything until the balance was settled. His duty, when established, would not be to deliver specific property, but to pay a sum of money. I do not know what evidence can be found on this point. It is fair to mention that the plea offered in 30 Ed. I. 240, by executor of executors, was that, "We held none of the goods of the deceased on the day when this bill was delivered." But that may be no more than a general form. "Bonz" probably only meant property.

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