in the hands of his lessee, demised at a rack-rent, and such other lands appertaining to the manor which belong to free or copy-holders. But the tenant in demesne before mentioned, signifies the person seized or possessed of the inheritance. By SECT. 2. of the statute last mentioned, it is provided, that the same shall not extend to any manor or lordship in Wales, whereof the inhabitants have used to pay to every lord or owner thereof, at his first entry into the same, any sum for the redemption and discharge of all duties and penalties, wherewith the inhabitants were chargeable to any of the lord's ancestors. SECT. 3. If any man shall have, in right of his wife, any estate in fee-simple, fee-tail, or for term of life, in any rents or fee-farms, and the same to be due and unpaid in the wife's life; the husband, after the death of his wife, his executors and administrators, shall have action of debt for the arrears, or may distrain for the same, as he might have done if his wife had been living. SECT. 4. If any person shall have any rents or fee-farms, for term of life of any other person, and the same be due and unpaid in the life of such other person, and he die; he to whom the same was due, his executors or administrators, may have an action of debt against the tenant in demesne, who ought to have paid the same when it was first due, his executors and administrators; or may distrain for the same upon such lands and tenements out of which the said rents or fee-farms were issuing and payable; in like manner and form as he might have done, if such person, by whose death the aforesaid estate in the said rents and fee-farms was determined and expired, had been in full life. Hence we may perceive that executors and administrators, by action at law, or distress, are enabled to obtain rent which was due to their testator or intestate; and as to persons who hold estates for term of life only, usually termed tenants for life, the executors and administrators of whom are now enabled to recover, by an action at law, rent which did not become due in the lifetime of their testator or in 14 testate; and as concerning those tenants for life, mention having lately been made, and in different parts of this work divers of them described, whereto we shall refer for a further description of them; here we may observe that lessees of tenants for life, before the making of the statute we are about to mention, had at the common law a most unreasonable advantage; for, at the death of the lessors, these under-tenants, the lessees, might if they pleased quit the premises and pay no rent to any body for the occupation of the land since the last quarter day, or other day assigned for payment of rent. To remedy which by statute 11 Geo. II. c. 19. (wherein it being recited, that where any lessor, or landlord having only an estate for life, in lands, tenements, or hereditaments demised, happened to die before or on the day on which any rent was reserved or made payable, such rent, or any part thereof, was not by law recoverable by the executors or administrators of such lessor or landlord: nor was the person in reversion entitled thereunto, any other than for the use and occupation of such lands, tenements, or hereditaments, from the death of the tenant for life; of which advantage had been often taken by the under-tenants, who thereby avoided paying any thing for the same); it is enacted, that where any tenant for life shall happen to die before or on the day on which any rent was reserved or made payable, upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, that the executors or administrators of such tenant for life, shall, in an action upon the case, recover of such tenant or under-tenants of such lands, tenements or hereditaments: if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent, according to the time such tenant for life lived of the last year or quarter of a year, or other time in which the said rent was growing due, making all just allowances. r Tenants for life are those who hold any messuages, lands or tenements, for term of life. Those may be created by deed or grant. And tenants by the curtesy of England and tenants in dower may be termed tenants for life. $ 10 Co. Rep. 127. To the end that a due regard be had to creditors, by the statute 22 & 23 Car. II. c. 10. called the Statute of Distributions, as was mentioned in the second section of the foregoing chapter; it is enacted, that no distribution of the goods of any person dying intestate be made, till after one year be fully expired after the intestate's death. · An administrator, as well as an executor, is allowed, among debts of equal degree, to pay himself first, by retaining in his hands so much as his debt amounts to. So if a person indebted to another, make his creditor or debtee executor, or if such creditor obtains letters of administration to his debtor, in these cases the law gives him a remedy for his debt, by allowing him to retain so much as will pay himself, before any other creditors whose debts were of equal degree. This is a remedy by mere act of law, and grounded upon this reason; that the executor cannot, without an apparent absurdity, commence a suit against himself as representative of the deceased, to recover that which is due to him in his own private capacity: but having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation of law, applied to that particular purpose. Else, by being made executor, he would be put in a worse condition than all the rest of the world besides; for, as he can commence no suit, he must be paid the last of any, and of course must lose his debt in case the estate of the testator should prove insolvent, unless he be allowed to retain it. But the executor shall not retain his own debt, in prejudice to those of a higher degree; for the law only puts him in the same situation, as if he had sued himself as executor, and recovered his debt; which he never could be supposed to have done, while debts of a higher nature subsisted. Neither shall one executor be allowed to retain his own debt in prejudice to that of his co-executor in equal degree; but both shall be discharged in proportion (4). The t 3 Black. Com. 18. t (4) If two persons be jointly and severally bound in an obligation, and one of them appoint the executrix of the power the administrator has, in favouring and preferring creditors in the course of paying debts, will be seen hereafter "; together with some other powers he has vested in him. SECTION II. The Particulars of what the Administrator is interested in by virtue of his Administration. HAVING shewn that the administrator, by virtue of his administration, hath interest in all the chattels, real and personal, of the intestate, and all the goods and chattels either in possession or action; we come now to consider what these are in particular. u See post. obligee his executrix, and die leaving assets, she is not compelled to resort to an action against the survivor, but is entitled to retain for the debt. Com. Dig. tit. Administration, c. i. Hob. 10. 3 Bac. Abr. 10. 2 Lev. 73. So if A. be indebted to B. and C. by several bonds, and die, and D. take out administration to A. and afterwards B. die, having appointed D. his executor, he may retain effects of which he is possessed as administrator of A. to satisfy the debt due to him as executor of B. 11 Vin. Abr. 261. 2 Brownl. 50. And if administration granted to a creditor, be afterwards repealed, at the suit of the next of kin, such creditor may retain against the rightful administrator. 11 Vin. Abr. 265. 1 Salk. 38. In an old case the court inclined to think, that an administrator might plead to an action of debt or bond, a retainer in satisfaction of a bond conditioned for the payment of money to trustees for the use of the administrator. Rockelly v. Godolphin, 2 Show, 403. S. C. T. Raym. 483. However the right of retainer is only admitted at law in cases in which the debt either is or has been a legally existing debt, for if it be a mere equitable debt, a court of law will not, in respect of it, permit the right to be exercised. De Tastet v. Shaw, 1 Barn. & Ald. 664. An executor is allowed in equity to retain for his whole debt as against other creditors of the same degree. Musson v. May, 3 Ves. & Bea. 194. Chattels comprehend all goods, moveable and immoveable; except such as are in the nature of freehold or parcel of it, and this word by the common law extends to all moveable and immoveable goods. But estates of inheritance, or freehold, cannot by the common law be termed goods and chattels. Chattels are either personal or real. Personal, as household stuff, goods and wares in a shop; carts, ploughs, horses, oxen, sheep and the like; and these are called personal in two respects; one because they belong immediately to the person of a man; the other, for that being any way injuriously withheld from him, he hath no other remedy to recover them but by personal action. Chattels-real, are such as either appertain, not immediately to the person, but to some other thing by way of dependency; as a box with charters of land, or such as are issuing out of some immoveable thing; as a lease, or rent for a term of years and chattels-real concern the reality, lands and tenements, interests in advowsons in statutes merchant, and the like a. But fishes in a pond, conies in a warren, deer in a park, pigeons in a dove-house, where the testator, or intestate had the inheritance, or but for life, in the pond, warren, park, and dove-house, are not chattels at all, nor go to the executor or administrator; but to the heir with the inherit'ance and therefore they are not to be put into the inventory of the goods and chattels of the party deceased. But if the testator or intestate have any tame pigeons, deer, rabbits, pheasants, or partridges, they shall go to the executors or administrators; and though they were not tame, yet if they For the particulars concerning estates of inheritance, see post. z Estates of freehold are either of inheritance or not of inheritance, and these not of inheritance are but for life only. Estates of freehold, not of inheritance, may be created by deed or grant; as where a lease is made of lands or tenements to a man to hold for the term of his own lfie or for that of any other person, or for more lives than one: in any of which cases he is styled tenant for life; only when he holds the estate a Co. Litt. 118. Co. |