is put upon inquiry; and, it would seem there is no distinction in this respect between a devise to executors subject to a charge of debts, and a devise to them upon trust for the payment of debts. This rule or presumption, however, does not apply to executors selling leaseholds or personal estate of their testator. The distinction between real and personal estate in this respect appears to be that in the one case it is the exercise by trustees of a mere power of sale, and in the other it is the exercise by the executor of the right which the law gives him as executor to deal with assets vested in him in that character (d). And it would seem to follow that as to persons dying since the commencement of the Land Transfer Act, 1897, real estate vesting in the personal representatives under the Act will now stand on the same footing as chattels real in respect of the above rule or presumption. executor acted as such although expressed to convey as The mere circumstance that a conveyance or mortgage by Presumption an executor does not purport to be executed by him in that capacity but as beneficial owner, is not sufficient, in the absence of anything in the transaction to show the contrary, to raise the presumption that he was acting otherwise than in the discharge of his duties (e). (d) Re Whistler, (1887) 35 C. D. 561. (e) Corser v. Cartwright, (1875) L. R. 7 H. L. 731; Re Venn and Furze's Contract, [1894] 2 Ch. 101 ; and see Re Verrell's Contract, [1903] beneficial owner. E. CHAPTER XIV. Several executors or administrators have joint and entire interest : it cannot be divided: it survives without new OF THE ESTATE OF SEVERAL EXECUTORS OR ADMINISTRATORS. IF there be several executors or administrators, they are regarded in the light of an individual person. They have a joint and entire interest in the effects of the testator or intestate, including chattels real, which is incapable of being divided; and in case of death such interest shall vest in the survivor without any new grant by the Court. Consequently, if one of two executors or administrators grant or release his interest in the testator's or intestate's estate to the other, release to the nothing shall pass; because each was possessed of the whole before. So if one of several executors release but his part of the debt, it has been held that the whole is discharged (a). And if two executors have a term and one grant all that belongs to him the whole term passes (b). grant. One cannot other. Release by one is a discharge of the whole debt. Underlease by one passes the entirety. Possession of one entitles all to joint right of action. One cannot maintain action at law against the other. So the act of one in possessing himself of the effects is the act of the others, so as to entitle them to a joint interest in possession, and a joint right of action if they are afterwards. taken away (c). On the same principle of a joint and entire interest it follows that at law one cannot maintain an action in right of deceased against the other, or against a third person jointly with one of themselves, since he cannot sue himself (d); nor after the death of one of several executors, can his executor be sued by the surviving co-executor for a debt due to their testator (e). But if a debtor makes his creditor and another person executors, and the creditor neither proves the Will nor acts as executor, he may maintain an action against the other for his demand on the testator (ƒ). (a) Williams (10th ed.) 684. () Dyer, 23a. (e) Williams (10th ed.) 685. (e) Williams (10th ed.) 726. (ƒ) Rawlinson r. Shaw, (1790) 3. T. R. 557. If there are several executors appointed by the Will they must all join in bringing actions at law (g). But where one executor of several has alone proved the Will, he may sue without making the other executors parties, although they have not renounced (h). All must join in bringing actions at law. Ord. 16, r. 11, provides that no cause or matter shall be Effect of Ord. 16, r. 11. defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. But the Court has no power under Ord. 16, r. 11, to order a person to be added as plaintiff without his consent in writing. And in Drage v. Hartopp (i), where one of two executors having absconded, the other executor sued a mortgagor for personal payment, and in default of payment an account and sale, the Court refused on the interlocutory application of the defendant to add the absconding executor as defendant, as being unnecessary at that stage of the proceedings, it being immaterial for any purpose that he should be before the Court. (9) Williams (10th ed.) 725. (h) Williams (10th ed.) 726, and see Davies . Williams, 1 Sim. 5, 8, and Doe r. Wheeler, (1846) 15 M. & W. 623. CHAPTER XV. Transmission of interest to executor of an executor. Transmission of interest to an administrator de bonis non. What pro perty does not vest in administrator de bonis non. OF THE ESTATE OF AN EXECUTOR OF AN EXECUTOR AND OF AN ADMINISTRATOR DE BONIS NON. AN executor of an executor, in however remote a series, has the same interest in the effects of the first testator as the first and immediate executor (a). An administrator de bonis non is entitled to all the goods and personal estate, such as terms for years, household goods, etc., which remain in specie, and were not administered by the first executor or administrator. Also if an executor receives money in right of his testator, and lays it up by itself, and dies intestate, this money shall go to the administrator de bonis non, being as easily distinguished to be part of the testator's effects as goods in specie (b). Whatever property of the original testator or intestate is left unadministered on the death intestate of a sole executor, or on the death of the first administrator, as the case may be, vests in the administrator de bonis non of the original testator or intestate, and if such executor or first administrator had improperly retained assets as his own property, or in collusion with a vendee assigned over leasehold property for his own benefit, the same will be treated as assets unadministered and pass to the administrator de bonis non, who will be entitled to recover possession, or to have the sale set aside and a conveyance of the legal estate (c). If, however, the property in any of the effects of the deceased has been changed by the original executor or administrator, and has vested in him in his individual capacity, such effects will go to his own administrator or executor, and not to the administrator de bonis non (d). (c) Cubbidger. Boatwright, (1826) (a) See Williams (10th ed.) 687, and ante, p. 51. (b) Williams (10th ed.) 687. 1 Russ. 549. (d) Williams (10th ed.) 689. For instance, if an administrator makes an underlease of the intestate's term, reserving rent to himself, his executors, administrators and assigns, and then dies, his executor or administrator and not the administrator de bonis non of the intestate shall have the rent (e). So where A. was indebted to B. for rent, and B. died intestate, and C. his administrator having taken a promissory note for the rent also died, it was held that the note belonged to the administrator of C. and not to the administrator de bonis non of B. (f). So if the original executor or administrator, in his own name, and not in his representative capacity, recovers judgment and dies, his own executor or administrator must take execution of the judgment (9). But where the cause of action is such that the first administrator may sue in his representative capacity the right of action devolves upon the administrator de bonis non; for instance in the case of a bill of exchange endorsed generally and delivered to the first administrator it may be sued upon by the administrator de bonis non (h). In like manner the administrator de bonis non may stand in such privity of estate that he will be compelled to carry out an agreement entered into by the first administrator (i). (e) Drue r. Baylye, (1675) 1 Freem. 392; Kelly r. Shaw, (1850) 1 Ir. C. L. Rep. 225. (ƒ) Barker v. Talcot, (1687) 1 Vern. 473. (9) Williams (10th. ed) 691. (4) Catherwood v. Chabaud, (1823) 1 B. & C. 150, and see Moseley r. Rendell, (1871) L. R. 6 Q. B. 338. (i) Hirst v. Smith, (1797) 7 T. R. 182, per Kenyon, C.J.; and see Re Watson, (1884) 53 L. J. Ch. 305, as to the lien of a solicitor of a deceased executor or administrator upon documents, as against the administrator de bonis non, arising from such privity of estate. |