executors or administrators.40 The rule of the common law, that personal actions abate or do not survive the death of the injured or injurer has been extensively changed by modern statutes. In all such cases it is, however, necessary to have reference to the precise statute making the change." 41 40 Wade v. Kalbfleisch, 58 N. Y. 282. Cf. Fowler's Pers. Prop. Law (2d ed.), 210; and see text under 120, Decedent Estate Law. 41 Debevoise v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 377; Bond v. Sinith, 4 Hun, 48; Kelsey v. Jewett, 34 id. II; §§ 118, 119, 120, Decedent Estate Law, infra. § 117. Administrators to have same rights and liabilities as executors. Administrators shall have actions to demand and recover the debts due to their intestate, and the personal property and effects of their intestate; and shall answer and be accountable to others to whom the intestate was holden or bound, in the same manner as executors. Formerly 2 R. S. 113, § 3. § 3. Administrators shall have actions to demand and recover the debts due to their intestate, and the personal property and effects of their intestate; and shall answer and be accountable to others to whom the intestate was holden or bound, in the same manner as executors.42 Commentary. The old law made some distinction between the acts which an executor could do before the will was proved and the acts which an administrator could do before he received his letters of administration. The executor might maintain actions, but the administrator might not do so before letters issued to him by the ordinary or surrogate. But after his appointment the powers of an administrator and his title to the goods of deceased were equal to those of an executor, and the administrator could therefore maintain all actions on the contracts of his intestate," except, as stated under section 116, the action of account.5 43 The office of an administrator is not so old as that of an executor. At first the King as parens patriæ administered in some sort; then on the rise of the ecclesiastical jurisdiction administration was transferred to the ordinary, or the officer having ordinary jurisdiction in causes ecclesiastical. By 31 Edw. III, Stat. 1, chap. II, the ordinary was compelled to depute the administration "to the next and most lawful friends of the intestate," and this statute is said to have originated the office of an administrator. As just stated above, the 46 42 Repealed by $ 130, Decedent Estate Law. 43 See Williams on Executors, 264; Thomas v. Cameron, 16 Wend. 579. Cf. Dodd v. Anderson, 197 N. Y. 466. 44 Williams on Executors, 556, 663; Wankford v. Wankford, I Salk. 301; Shep. Touch. 474; In re 46 Co. Litt. 96a; Scrutton, Rom. Law and Law of England, 166. 47 White, Outlines of Legal History, 166. 517 powers and title of an administrator after appointment came in course of time to be regarded as equal to those of an executor, including the right to maintain all actions affecting the title to the property of the deceased or arising on contracts of the deceased himself.48 In the first authorized revision of the old statutes of England extending to New York, we find that it was enacted that "administrators shall have actions to demand and recover as executors."49 This statute was in substance repeated in successive revisions,50 and it is in substance the present section.51 It is a useful statute as it does away with some very involved legal theories concerning the precise origin and extent of the title and powers of adininistrators. The statute is now express on this point, and the rights of action of an administrator are now co-extensive with the rights of action of an executor. Of course special powers may be given or devised to an executor by a will, and such special powers are not necessarily invested in administrators. 48 Supra, p. 516. 49 Chap. 19, Laws of 1787; 2 J. & V. 43, § 5, 6. 50 1 K. & R. 536, § 3; 1 R. L. 311, 4; 2 R. S. 113, § 3. 518 117, Decedent Estate Law. § 118. Actions of trespass by executors and administrators. Executors and administrators shall have actions of trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods of their testator or intestate in his lifetime. They may also maintain actions for trespass committed on the real estate of the deceased, in his lifetime. Formerly 2 R. S. 114, § 4: 84. Executors and administrators shall have actions of tresspass against any person who shall have wasted, destroyed, taken or carried away, or converted to their own use, the goods of their testator or intestate in his lifetime. They may also maintain actions for trespass committed on the real estate of the deceased, in his lifetime.52 66 53 Comment. It was a principle of the common law, that if an injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done. Thus, actions for misfeasance, malfeasance, tort, or any other cause ex delicto, such as trespass for taking goods or wherever the plea not guilty," died with the person." This rule was altered in favor of executors by the statute, 4 Edw. III, chap. 7, de bonis asportatis in vita testatoris. That statute was by equitable construction extended to administrators. It has been expounded largely and though it makes use of the word trespasses only, has been also extended to other cases within the equity or clear meaning of the statute.55 was 56 The ancient statute, 4 Edw. III, chap. 7,50 in common with other ancient statutes affecting the common law, was clearly extended to 52 Repealed by § 130, Decedent Estate Law. 53 Williams on Executors, 560; Hopkins v. Adams, 5 Abb. Pr. 351; Murphy v. N. Y. C. & H. R. R. Co., 31 Hun, 358, 359; Hegerich v. Keddie, 32 id. 141, revd., 99 N. Y. 258; Moore v. McKinstry, 37 Hun, 194, 197; Haight v. Hayt, 19 N. Y. 464, 467. 54 By 15 Edw. III, chap. 5, said to be extended to administrators (Zabriskie v. Smith, 13 N. Y. at p. 333), but this is an error, as this last act extended it to executors of executors only. Williams on Executors, 561. 55 Williams on Executors, 561; Lahey v. Brady, 1 Daly, 443, 445. 56 Amended, 15 Edw. III, chap. 5. New York as part of the English law set in force in the Province in the year 1664. It was accordingly revised and continued by Jones and Varick in their authorized revision of the statutes, in force in New York at Independence and adopted or continued in force by the first State Constitution. It passed from Jones and Varick's revision into the subsequently authorized revisions of the statutes in 18015 and 1813,59 and thence with modifications into the Revised. Statutes, and finally into this section of the Decedent Estate Law.61 60 57 Construction of this Section. It will be perceived from what has been just stated that this section is primarily 4 Edw. III, chap. 7, de bonis asportatis," with some slight changes of phraseology introduced by the various revisers. The enlargements, in particular by the Revised Statutes, were mainly matters which had arisen on the equity of the statute.63 The final words of the section in relation to trespasses on real property appear to have been added when enacting the Revised Statutes. It would seem that trespasses on real property before the ancestor's death might logically have been made to devolve on the heir or devisee. But the Revised Statutes, like the later English act, is now otherwise.64 The adoption of this celebrated statute, 4 Edw. III, chap. 7, seems to have been recognized in the opinion in Cortelyou v. Lansing, an opinion of great weight, but one reported by mistake, as the case was never really decided."5 But ever since its enactment in this State this statute is constantly invoked, though often sub silentio. It is in reality a most important act; enabling executors and administrators to have actions founded on trespasses or injuries to the prop |