value and damages to the lawful executors or administrators.40 These complementary provisions of the Revised Statutes referred to above remain on the statute book, and in reference to the old law they can not be understood separately or apart."

41

In the old law the executor de son tort played a very important part. The ecclesiastical courts could compel him to take out letters of administration or probate.42 If a man got goods of deceased in his hands after probate it did not make him an executor de son tort.13 The fiction of an executor de son tort was largely remedial in intention, and doubtless designed to enforce a constructive trust. In so far as an executor de son tort was recognized by the courts of common law, it furnishes an early example of a trust administered in a court of law, and as in the instance of a bailment shows how easily courts of law could have obtained an equitable jurisdiction had there been any real disposition to assert it.

The Revised Statutes in effect much altered the prior law relating to executors and administrators. Not only were executors de son tort expressly abolished, but any executor or administrator ceased thereafter to be the mere representative of the persona of the deceased, and was constituted a trustee for the creditors of the deceased. This was an immense and comprehensive change in the theory of the prior law relative to the status of executors or administrators. Before proceeding to consider the construction accorded by the courts to this section of the Decedent Estate Law, let us glance for a moment at the theory which underlies the existing law relative

to executors.

Executors. An executor is now defined as one appointed by the testator to carry the will into effect or execution after the testator's decease and to dispose of the property according to the tenor

40 2 R. S. 449, § 17, and see note 35, Appendix II, infra; Muir v. Trustees of the Leake & Watts Orphan House, 3 Barb. Ch. 477.

41 8 2706, Code Civ. Pro.; § 112, Decedent's Estate Law. Cf. Matter of Richardson, 8 Misc. 140, 142; and see 2613, Code Civ. Pro.; Matter of Fithian, 44 Hun, 457, 460.

42 Rayner v. Green, 2 Curteis, 248. 434 Burn's Ecc. Law, 307. 44 Dox v. Backenstose, 12 Wend. 542; Thomas v. Cameron, 16 id. 579; Porter v. Williams, 9 N. Y. 142, 149; McKnight v. Morgan, 2 Barb. 171; Matter of Raymond, 27 Hun, 508, 511.

45

49

46

of the will. In the older law he was openly said to answer to the "haeres designatus" or testamentarius of the civil law. This was during the period of the upbuilding of the modern law of executors. The early law of England knows no law of executors. The priest or a friend executes the wishes of a dying man." The recognition of the executor first appears in Glanvill. But it is only after the establishment of the ecclesiastical jurisdictions, alluded to in our Introduction, that we perceive in England a certain conflict between those legal conceptions of an executor which were founded on the Roman law relative to a universal succession50 and those other conceptions of an executor which were founded on the early Germanic law governing a Salman, who was a sort of trustee to distribute an estate. 51 These different theories relative to the office of the executor have received much learned consideration from historical jurists; but they may be readily detected, without their aid, from many of the assertions of the old writers who first treat systematically of the law of executors.52 This is not, however, the place to consider in detail the fundamental theories which have influenced the growth of the modern law of executors. It will suffice to point out, that the modern executor is not a universal successor like the Roman heres; nor is he a mere confidential agent like the Germanic "Salman." He is clearly a compound of both, and his present office is largely the result of the conflict between the ecclesiastical and the common law jurisdictions familiar to English-speaking political communities.53

In the Roman law the heir was a universal successor, and in taking over the "hereditas" or heirship the heir stepped into the shoes of the deceased, enjoying his rights and burdened with his responsibilities. The heir was a continuation of the persona of the deceased.54

45 2 Black. Comm. 503; Matter of Kear, 133 App. Div. 265, 269.

46 Terms de Ley; Tomlins' Dict. 47 2 Holdsworth, Hist. Eng. Law, 84.

48 Glanvill, L. VII, chap. 6.

49 Supra, pp. 19, 28.

50 Hereditas: Bonorum possessio. 61 Holmes, Early English Equity;

I Law Quar. Rev. 162; Holmes, Common Law, 340-352; 3 Holdsworth, Hist. Eng. Law, 444.

52 Wenthworth on Office of Executor (ed. 1589); Godolphin on Wills; Swinburne on Wills.

53 See Introduction, pp. 3, 26, 27, supra.

54 D. 50, 17, 59.

We doubtless find much of this principle of the Roman law in the application of the familiar common-law maxim, that the heir or executor is eadem persona cum antecessore.55 We find it sometimes asserted not only in Anglo-American law relative to executors but in spheres as remote as that relating to covenants running with the land. But we also find principles of the Germanic law relating to a Salman cropping out, not only in the law relating to executors, but in subjects as far removed as uses and trusts.57 Such is the sequence of legal institutions that there is never an abrupt fracture of the chain of development. Most legal institutions have a distinct growth.

66

In English law it was doubtless the executor" and the "heir " combined who divided between them the duties and the obligations of the Roman "heres." 59 In the Roman law there could be no will without the appointment of an heir,59 and this fact undoubtedly led to the assertion by the ecclesiastical courts in England, that there could be no will without an executor60-an assertion, however, ultimately repudiated, at first by courts of equity,1 and then generally.62

It has been even lately asserted that in English law the legal relationship between a deceased person and his executor is wholly different from that of the deceased person and his administrator, and "that the executor is the heir of the deceased." 63 But however true this may have been at the earlier stages of legal development, it is certainly less true now, and the present tendency is to regard both executors and administrators as mere officers of the ordinary, or Court of Probate, to distribute assets, with an accountability primarily to creditors and secondarily to the beneficaries under the will, or if no will, to those entitled by the Statute of Distributions. The

superior continuation of the juristic status of the deceased by executors tends to become a mere fiction.64 Neither executors nor administrators have any longer even preference as to payment of their own debts. They have both become unfavored officers of justice, accountable in the surrogates' courts for all their actions in respect of their testator's estate.66

69

67

Formerly there was a tendency to regard the title of an administrator as dating only from the granting of letters, although an executor's title dated from the death of testator.68 But now, as it is sometimes said, by relation the title of both takes effect from the death of decedent. The theory of relation being a mere fiction, has been justly criticized; for if an executor's title was by virtue of the will only, there was no room for the doctrine of relation in his case, and yet the theory of relation was applied to executors also.70 The difference between the date of the title of executors and that of administrators now tends to disappear in this State," although there is doubtless a distinction between title and authority. The title of the executor was formerly dependent wholly on the will, and not on the probate, whereas the title of the administrator

64 Wilson, Modern English Law, 40; 117, Decedent Estate Law; Jackson ex dem., etc. v. Robinson, 4 Wend. 436, 441; Porter v. Williams, 9 N. Y. 142, 149. Cf. Markby, Elements of Law, § 572.

65 2 R. S. 84, § 13; id. 88, § 33; §§ 2719, 2731, Code Civ. Pro.; O'Flynn v. Powers, 136 N. Y. 412, 419; Joseph v. Herzig, 198 id. 456, 462.

66 Joseph v. Herzig, 198 N. Y. 456, 462.

67 Williams on Executors (2d ed.), 264.

68 Williams on Executors (2d ed.), 172; Goodeve Pers. Prop. (3d ed.), 362, 363.

69 Babcock v. Booth, 2 Hill, 181, 184; Priest v. Watkins, 2 id. 225; Thomas v. Cameron, 16 Wend. 579; 2613, Code Civ. Pro. 70 Markby, Elements

of Law,

72

§§ 568, 569; Goodeve, Pers. Prop. (3d ed.,) 362; Kaufman v. Schoeffel, 46 Hun, 571, affd., 113 N. Y. 635. Cf. Throop on Verbal Agreements, 21.

71 Dox v. Backenstose, 12 Wend. 542; Porter v. Williams, 9 N. Y. 142, 149; McKnight v. Morgan, 2 Barb. 171; Matter of Raymond, 27 Hun, 508, 511.

72 Cf. Hartnett v. Wandell, 60 N. Y. 346 and Dodd v. Anderson, 197 id. 466, 471.

73 Hensloe's Case, 9 Rep. 38a; Graysbrook v. Fox, 1 Plowd. 281; Smith v. Milles, 1 T. R. 480; Murray v. Blatchford, 1 Wend. 583, 616; Van Horne v. Fonda, 5 Johns Ch. 388, 403; Hartnett v. Wandell, 60 N. Y. 346; Shep. Touch. 474; Throop on Verbal Agreements, § 21. Sed cf. Thomas v. Cameron, 16 Wend. 579.

was always dependent on the court.74 But at the present day the executor's authority, like that of the administrator, seems to depend, at least to some extent, on a decree,75 although in the case of a devise of real property no probate whatever is necessary to carry either title or authority to others than executors.

76

Construction of this Section. The remedy against a person who detains assets belonging to one deceased is now obtained by an action brought by the latter's executor or administrator duly appointed." Formerly such relief could be obtained only in equity78 or by a creditor who sued the detainer as executor de son tort. Since the Revised Statutes a creditor can no longer sue charging such recipient of assets, or a delinquent detainer of assets, as an executor de son tort.79

But where the executor or administrator refuses to sue, it would seem that a creditor may in some instances still bring an action to set aside a transfer as fraudulently made by the testator in his lifetime.80

74 Waukford v. Waukford, 1 Salk. 301; Shep. Touch. 474; Rockwell v. Saunders, 19 Barb. 473.

75 2 R. S. 71, § 16; § 2613, Code Civ. Pro.; Thomas v. Cameron, 16 Wend. 579; Campbell v. Browne, 5 Paige, 34, 36; Dodd v. Anderson, 197 N. Y. 466, 471; Matter of Kear, 133 App. Div. 265; Higgins v. Eaton, 178 Fed. Rep. 153, 155.

76 Dixon v. Cozine, 64 Misc. 602, 603; supra, pp. 303, 304.

77 8 112, Decedent Estate Law; Babcock v. Booth, 2 Hill, 181, 185; Muir v. Trustees of Leake and Watts Orphan House, 3 Barb. Ch. 477; Matter of Raymond, 27 Hun, 508, 511; Matter of Richardson, 59 N. Y. St. Rep. 483, 8 Misc. 140, 142;

The Nat. Bank of West Troy v. Levy, 40 N. Y. St. Rep. 331, 332; $8 2706-2710, Code Civ. Pro.

78 Pettibone v. Drakeford, 37 Hun, 628, 632; Matter of Blow, 32 N. Y. St. Rep. 290, 293.

79 § 112, Decedent Estate Law; McKnight v. Morgan, 2 Barb. 171; Bate v. Graham, 11 N. Y. 237; The Nat. Bank of West Troy v. Levy, 40 N. Y. St. Rep. 331, 332; Henderson v. Brooks, 3 T. & C. 445, 448; Leonard v. Clinton, 26 Hun, 288, 293. Cf. Vermilya v. Beatty, 6 Barb.

429.

80 Loomis v. Tift, 16 Barb. 541; Bate v. Graham, 11 N. Y. 237; Harvey v. McDowell, 113 id. 526, 531; N. T. Bank v. Wetmore, 124 id. 251.