where he had assets (that is, sufficient or enough, from the French assez, to make him liable to a creditor or legatee, so far as the testator's goods and chattels extended) to answer it; or loses the property; or suffers it to become irrecoverable, through wilful negligence; or trusts it to an agent who embezzles it; or keeps money in an unproductive state for a length of time; or sells the property much below the value; or delays selling it till it is spoiled or injured, without reasonable excuse for the delay. 2 Rob. Treat. on Wills, 264. And by the stat. 30 Cha. II. c. 7, made perpetual by the 4 and 5 Will. & Mar. c. 24, s. 12, the liability to answer for the abuse of the official trust, by a wilful wasting of the testator's effects, extends to an executor of an executor.

If executors retain money in their hands longer than is necessary, they shall be chargeable with interest and costs, if any have been incurred. But one executor shall not be answerable for money received, or detriment occasioned by his co-executor, unless it has been by means of some joint act done by them.

The release, or receipt, of one executor will bind his co-executor. On the contrary, where two or more administrators are appointed, one of them cannot alone, as in the case of executors, release the debts of the intestate, or otherwise dispose of his property, but they must all join in such

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release or disposition; for the authority delegated to them, by the ordinary, is a joint and not a several authority. Hudson v. Hudson, 1 Atk. 460.

Executors and administrators should take particular care not to assent to, or make promises of payment to legatees or creditors,* where the time has expired (namely, one year from the death of the testator), which is allowed by law, on condition of their forbearing to proceed for the recovery of the debt or legacy, as by such promise they render themselves personally liable to the legatee or creditor; but to create such personal liability, the promise must, to affect an executor, and even an administrator after letters of administration granted, have been reduced into writing, and signed by the executor; and by the statute of frauds, there must also have been an adequate consideration for the promise. They should also refrain from endorsing bills or notes of their testator, otherwise they will render themselves personally responsible, and it will not make any difference in relieving them from such personal liability, that they affixed to their signatures the words "as executors," or that they make use of any words of similar import.

* Any recognition of the property or right of the legatee, constitutes an assent; and the assent may be inferred from the executor's acts; and such constructive assent will be as available as an assent positively and expressly given.

Where it is necessary that executors should carry on their testator's trade, or any part or portion of it, for the benefit of the estate, they should obtain the sanction of the Court of Chancery; for, their continuing it in their representative capacity, they are liable to the legal debts belonging to the carrying on such trade, and, consequently, subject to the bankrupt laws, even though their names should not appear in the firm. And it makes no distinction in the application of this principle, whether the executors carry on their testator's trade by his express authority, or without any authority from him, but, in either case, they are liable to make good any loss by such trading; though if the trade turns out to be profitable, the benefit is wholly applicable to the purposes of the will. And where creditors are appointed executors, they should not perform an act of executorship before they ascertain that the legacy is equal to, or exceeds, their debt against the testator's estate, for the performance of the rights of executorship discharges the right of claim for the debt.

Where the legatee is an infant, or is abroad, the only safe way of payment of the legacy which an executor can adopt, is that prescribed by the 32d section of the Legacy-Duty Act, 36 Geo. III. c. 52, which authorizes executors, in such cases, H 2

to pay the legacy, after deducting the duty, into the Bank of England, with the privity of the Accountant-General of the Court of Chancery, to be placed to the account of the person for whose benefit the same shall be so paid.

An executor cannot be set aside on account of any legal disability-as, that he has become a bankrupt ; nor can the ordinary insist on his giving security; for the executor, being appointed by the testator, has been considered by him as a fit and qualified person. But if an executor becomes subject to any natural disability, as to insanity, idiotism, or the like, the Spiritual Court will grant administration. And if it appears that the executor is wasting the goods of the testator, or that he has become a bankrupt, the Court of Chancery will, on the application of a creditor, appoint a receiver of the testator's effects, in order to protect them; and he will be directed to pay over whatever balance may be in his hands. If, without reasonable cause assigned, an executor keep his testator's assets unproductive in his hands, or employs them in his own trade or behalf, he will be liable to pay interest for them. Where he refuses to account for, or to distribute the assets, he may be compelled to do so by a bill in equity.

THE DUTIES PAYABLE ON WILLS, LETTERS OF

ADMINISTRATION,

LEGACIES,

ANNUITIES,

AND RESIDUES.

These duties are payable pursuant to the provisions of the stat. 55 Geo. III. c. 184, and are secured by the following regulations :

No person shall take possession of, or in any manner administer, any part of the personal estate of any person deceased, without obtaining probate of the will, or letters of administration, within six months after the decease of the testator or intestate, or within two months after termination of any suit or dispute, respecting the will or the right to letters of administration (if there should be any such suit or dispute), which shall not be ended within four calendar months after the death of the testator or intestate, on forfeiture of £100, and, also, £10 per cent. on the amount of the stamp-duty payable on the same. s. 37.

And no probate or administration shall be granted, until the executor or administrator shall first make oath, before the surrogate, that the effects exclusively of any trust, but including leasehold estates for years, whether absolute or determinate on lives (if any), and without deducting any thing on account of debts due from the deceased, are under the value of a certain sum, to the best of his knowledge and belief.