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LATE ONE OF THE JUDGES OF HER MAJESTY'S COURT OF COMMON PLEAS.
BY THE RIGHT HONORABLE
WALTER V. VAUGHAN WILLIAMS, ESQ.
OF THE INXER TEMPLE, BARRISTER AT LAW.
SIXTH AMERICAN EDITION,
IN WHICH THE SUBJECT OF WILLS IS PARTICULARLY DISCUSSED AND
JUL 14 1951
Entered, according to Act of Congress, in the year 1877, by
J. C. PERKINS, In the Office of the Librarian of Congress, at Washington.
* BOOK THE THIRD.
OF THE QUANTITY OF THE ESTATE IN ACTION OF AN EXECUTOR
HITHERTO the subject as to the quantity of the estate of an executor or administrator has been confined to personal property of the testator or intestate in possession ; that is, where he had not only the right to enjoy, but had the actual enjoyment of the thing. But property in chattels personal may also be in action ; that is, where a man has not the occupation, but merely a right to occupy the thing in question; the possession whereof may, however, be recovered by a suit or action, from whence the thing so recoverable is called a thing, or chose in action.
Thus, if a man promises or covenants with me to do any act, and fails in it, whereby I suffer damage, the recompense for this damage is a chose in action ; for though the right to recover a recompense vests in me at the time of the damage done, yet there is no possession of it till recovered by course of law. (a)
By the term chose in action, as used in this treatise, is to be understood a right to be asserted, or property reducible into possession, either by action at law, or suit in equity. (6)
* The object of the present book will be to investigate what choses in action the estate of an executor or administrator com
(a) 2 Bl. Com. 397.
notice of his mortgage before A. did. And (6) A testator bequeathed a leasehold it was held by Sir L. Shadwell V. C. that estate to trustees, upon trust as therein the annuity was a chattel interest in mentioned; and first, he charged the es- equity and not a chose in action, nor subtate with the payment of an annuity to ject to any of the rules established with his daughter during all his interest in the regard to assignment of choses in action; estate. The daughter afterwards mort- and consequently that B. had not gained gaged her annuity, first to A. and after any priority over A. Wiltshire v. Rabwards to B. But B. gave the trustees bits, 14 Sim. 76. VOL. II.
prises ; and the subject may perhaps be separated conveniently into these four divisions : 1st, To what choses in action an executor or administrator is entitled, which the deceased himself might have put in suit. 2dly, As to the right of an executor or administrator to choses in action, where the action accrues after the death of the testator or intestate. 3dly, As to the title of an executor or administrator to the executory and contingent interests of the deceased. 4thly, What suits, commenced by the testator or intestate, may be continued by the executor or administrator.
CHAPTER THE FIRST.
TO WHAT CHOSES IN ACTION THE EXECUTOR OR ADMINISTRA
TOR IS ENTITLED, WHICH THE DECEASED MIGHT HAVE PUT IN SUIT.
It may be advisable to treat of the subject of this chapter in two subdivisions ; 1st, The general question as to what actions survive to the executor or administrator ; 2dly, Particular instances where the executor or administrator is entitled to choses in action, which the deceased might have put in suit, and where not.
SECTION I. The General Question as to what Actions survive to the Executor
With respect to such personal actions as are founded upon any obligation, contract, debt, covenant, or other duty, the All persongeneral rule has been established from the earliest times, for
al actions that the right of action on which the testator or intes- contractor
duty, &c. tate might have sued in his lifetime survives his death, survive: and is transmitted to his executor or administrator. (c) Therefore, * it is clear that an executor or administrator shall have ac
(c) i Saund. 216 a, note (1) to Wheat- estate which he represents. Tappan v. ley v. Lane. The right of executor to sue Tappan, 30 N. H. 50; Austin v. Munroe, is extended to administrators, by stat. 31 47 N. Y. 360; Ferrin v. Myrick, 41 N. Y. Edw. 3, s. 1, c. 11. (Holbrook v. White, 315; Bucklin v. Chapin, 1 Lansing, 443. 13 Wend. 591; Tobey v. Manufacturers In Massachusetts, by statute, all actions National Bank, 9 R. I. 239. The legal which would have survived if commenced representative of an intestate estate is the by or against the original party in his lifeonly party who can recover money due on time, may be commenced and prosecuted a policy of insurance upon the life of the by and against his executors and adminintestate. Lee v. Chase, 58 Maine, 432. istrators. Genl. Sts. Mass. c. 128, § 1. As a general rule, the executor or admin. See Norton v. Sewall, 106 Mass. 144, istrator cannot in his individual name sus. 145. tain an action for demands due to the