indorser, or acceptor, and adds words to his signature indicat- May avoid personal ing that he signs for or on behalf of a principal, or in a liability. representative character, he is not personally liable thereon; but the mere addition to his signature of words describing him as an agent, or as filling a representative character, does not exempt him from personal liability.” Sect. 31 (5). "Where any person is under obligation to indorse a bill in a representative capacity, he may indorse the bill in such terms as to negative personal liability." Sect. 41 (1) (c). "Where the drawee is dead presentment Presentment. may be made to his personal representative." Sect. 41 (2) (a) provides that presentment in accordance with the rules contained in s. 41 is excused and a bill may be treated as dishonoured by non-acceptance where the drawee is dead. 66 Sect. 45 (7). Where the drawee or acceptor of a bill is dead and no place of payment is specified, presentment must be made to a personal representative, if such there be, and with the exercise of reasonable diligence he can be found." dishonour. Sect. 49 (9). "Where the drawee or indorser is dead and Notice of the party giving notice of dishonour knows it, the notice must be given to a personal representative, if such there be, and with the exercise of reasonable diligence he can be found." Sect. 75 (2). "The duty and authority of a banker to pay Authority a cheque drawn on him by his customer are determined by notice of the customer's death." 66 of banker determined by notice of death. to foreign It may also be useful to refer to s. 72, which provides Requisites (inter alia) (1), “ The validity of a bill as regards requisites in having regard form is determined by the law of the place of issue, and the law. validity as regards requisites in form of the supervening contracts, such as acceptance, or indorsement or acceptance suprà protest, is determined by the law of the place where such contract was made. Provided that (a) Where a bill is issued out of the United Kingdom it is not invalid by reason only that it is not stamped in accordance with the law of the place of issue: As to when executor or (b) Where a bill, issued out of the United Kingdom, conforms as regards requisites in form, to the law of the United Kingdom, it may, for the purpose of enforcing payment thereof, be treated as valid as between all persons who negotiate, hold, or become parties to it in the United Kingdom." (2) "Subject to the provisions of this Act, the interpretation of the drawing, indorsement, acceptance, or acceptance suprà protest of a bill, is determined by the law of the place where such contract is made." As to when the personal representative may claim by administrator election, where the testator or intestate at the time of his death was entitled out of several chattels to take his choice of one or more to his own use, the following principles would seem to apply (c). may claim by election. As to allow. ing time for payment, compromis. ing, com If the thing, of which the election is given, is to be done unica rice, the election ought to be at the time. If nothing passed or vested in the grantee before his election it ought to be made in the life of the parties, as if a man gives to A. such of his horses as A. and B. shall choose, the election ought to be in the life of A. But where an interest vests immediately by the grant-as if a man gives one of his horses to A. and B., after the death of A. B. may choose which he will take, for an interest vested in them immediately by the gift-election may be made by the personal representative as well as by the party himself. If the election determines only the manner or degree in which the grantee shall have the thing, his personal representative as well as the party himself may make it; for in such case the interest vests immediately. As if a lease be granted to A. for ten or twenty years, as he shall elect, the personal representative is entitled to the election. So if the thing, of which election is given, is annual, and to have continuance, the personal representative may make the election. An executor or administrator may pay or allow any debt or claim on any evidence that he thinks sufficient. He may (c) See Williams (10th ed.) 713. mitting to debts or claims. also, if and as he thinks fit, accept any composition or any pounding, abandoning, security, real or personal, for any debt or for any property, and subreal or personal, claimed, and may allow any time for pay- arbitration, ment of any debt, and may compromise, compound, abandon, or settling submit to arbitration, or otherwise settle any debt, account, claim or thing whatever relating to the testator's or intestate's estate, and for any of those purposes may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things as to him seem expedient, without being responsible for any loss occasioned by any act or thing so done by him in good faith (d). Although an executor cannot discharge himself by accounting to his co-executor (e), yet it has been held that it is competent for an executor in a proper case to compromise a claim by his co-executor against the estate (f). If one of several executors or administrators dies the Survivorship powers of the office pass to the survivors (ee). It is necessary to determine from the language of the Will whether a power is given to the executors as individuals or whether it is annexed to their office. If it is annexed to their office it can be exercised by the proving executors, to the exclusion of a renouncing executor, or by the surviving executors: that is, by the executors for the time being (ff). Sect. 22 of the Trustee Act, 1893 (which replaced s. 38 of the Conveyancing and Law of Property Act, 1881), provides that where a power or trust constituted after or created by instruments coming into operation after the 31st December, 1881, is given to or vested in two or more trustees (which expression by 8. 50 includes the duties incident to the office of personal representative of a deceased person) jointly, then, unless the contrary is expressed in the instrument, if any, creating the power or trust, the same may be exercised or performed by the survivor or survivors of them for the time (d) Trustee Act, (1893) s. 21. (e) Hill v. Curtis, (1865) L. R. 1 Eq. 90, 98. (f) Re Houghton, [1904 ] 1 Ch. 622; but see De Cordova v. De Cordova, (1879) 4 App. Cas. 692, 703. (ee) Williams (10th ed.) 720. of office. As to powers annexed to the office. being. In Re Smith (g), Farwell, J., stated his opinion on the result of the authorities on this section of the Act, as follows: "Every power given to trustees which enables them to deal with or affect the trust property is primâ facie given them ex officio as an incident of their office, and passes with the office to the holders or holder thereof for the time being; whether a power is so given ex officio or not depends in each case on the construction of the document giving it, but the mere fact that the power is one requiring the exercise of a very wide personal discretion is not enough to exclude the prima facie presumption, and little regard is now paid to such minute differences as those between "my trustees," "my trustees A. and B.," and "A. and B. my trustees" the testator's reliance on the individuals to the exclusion of the holders of the office for the time being must be expressed in clear and apt language." (g) [1904] 1 Ch. 139, 144. CHAPTER XVII. OF THE POWER OF ONE OF SEVERAL EXECUTORS OR ADMINIS TRATORS. CO-EXECUTORS, however numerous, are regarded in law as an individual person; and, by consequence, the acts of any one of them, in respect of the administration of the effects, are deemed to be the acts of all; for they have all a joint and entire authority over the whole property (a). Hence the receipt of one is a valid discharge (b), so also one of several executors may release or pay a debt or transfer any part of testator's property, without the concurrence of the other executor (c), and may settle an account with a person accountable to the estate (d). As a general rule the Court will enforce an equitable security on part of the assets of a testator created by one of several executors in favour of a mortgagee for value in good faith (e), but on the other hand there are cases in which the Court has refused its assistance to persons seeking to enforce One of several joint personal representa in equity rights claimed by virtue of what has been done by a tives cannot sell or trans fer real estate authority of without |