part of the original draft of the Revised Statutes92 and were contained in art. 1, chapter VIII of part III of that revision, which related to "Suits by and against executors and administrators." Similar provisions were enacted by earlier parts of the Revised Statutes relating "to the rights and liabilities of executors." 93 Section 120 is generally treated as an independent enabling act. If cumulative, then this section must serve either to emphasize, or repeat the remedy given by the two preceding sections of this act. The original revisers' official notes throw no light on the construction of this section, as they favored the Legislature with no special explanation on the originals of this section. John C. Spencer, one of the revisers, however, published some comments on the Revised Statutes in the "Ontario Messenger" for 1830, in the course of which he said of these sections: "Actions for wrongs to the property, right or interest of another,95 may be brought by executors, &c., against the wrongdoer, or against his administrators, &c., in the same manner as suits upon contracts: except actions for libel, slander, assault and battery, false imprisonment and for injuries to the person." Judge Spencer's note is unfortunately only a repetition of the statute, and not an explanation of its import. It throws little light on the construction of this section. If not cumulative this section is an independent enabling act, and it is generally so regarded. Actions which Survive Under this Section in Favor of, or Against, a Deceased Person's Representatives. Whether cumulative or enabling, whether standing alone or to be read in conjunction with sections 118, 119 of this act, this section has been construed to support a variety of rights of actions in which damages are recovered, but which actions did not survive or were not formerly permissible by the the common law, after the death of the person injured or the death of tort feasor.96 This section has now been held to sanction or to revive actions for damages, based on the fraudulent 92 2 R. S. 447, 448, §§ 1, 2. 93 2 R. S. 114, § 4, now § 118, Decedent Estate Law; 2 R. S. 114, § 5, now 119, Decedent Estate Law; Hopkins v. Adams, 5 Abb. Pr. 351, 356. 94 §§ 114, 115, Decedent Estate Law; Smith v. New York & New Haven R. R. Co., 28 Barb. 605, 607. 95 2 R. S. 447, 448, §§ 1, 2. 96 See supra, pp. 508, 514; and Miller v. Young, 90 Hun, 132, 133. representations of a testator as to incumbrances on land; to revive actions for damages through a conspiracy to defraud," or for injuries done to the property, right or interest of another by means of a wrong or a fraud.". But such wrongs or frauds must still affect the property rights of plaintiff in some way in order to survive the death of the injured or that of the tort-feasor.1 But after a judgment ex delicto the judgment itself is ex contractu, and, as it will support an assumpsit, it held to survive as against the judgment debtor's representative. Actions for a mere penalty imposed by a statute for nonfeasance do not however survive under this section.3 Under the Revised Statutes it was said that whatever cause of action was assignable survived, but since the Code of Civil Procedure it is thought that this sole test no longer holds good in all cases under the various statutes separately regulating the assignability and the survival of causes of actions. Each statute is self-regarding. Survival in this connection refers only to natural death of a party and not to his civil death, or to a mere dissolution of a corporation. This section by its terms is to be read in connection with subdivision nine of section 3343 Code of Civil Procedure." 97 Haight v. Hayt, 19 N. Y. 464; Wickham v. Roberts, 112 App. Div. 742. 98 Lyon v. Park, 111 N. Y. 350, 355; Hadcock v. Osmer, 4 App. Div. 435. 99 Bond v. Smith, 4 Hun, 48; Byxbie v. Wood, 24 N. Y. 607, 612; Union Bank v. Mott, 27 N. Y. 633. 636. 1 Cregin v. Brooklyn Crosstown Railroad Co., 75 N. Y. 192; Scott v. Brown, 24 Hun, 620; Stokes v. Stickney, 96 N. Y. 323; Brackett v. Griswold, 104 id. 613; Hegerich v. Keddie, 99 id. 258, 264; Bennett v. Bennett, 116 id. 584, 588; Seventeenth Ward Bank v. Webster, 67 App. Div. 228; Gordon v. Strong, 158 N. Y. 407. 2 Carr v. Rischer, 119 N. Y. 117, 124; Blake v. Griswold, 104 id. 613, 617; Matter of Meekin v. B. H. R. R. Co., 164 id. 145. 3 Stokes v. Stickney, 96 N. Y. 323; Brackett v. Griswold, 103 id. 425. Cf. O'Brien v. Blaut, 17 App. Div. 288. 4 Byxbie v. Wood, 24 N. Y. 607, 612; Blake v. Griswold, 104 id. 613, 616; Rutherford v. Aiken, 3 T. & C. 60, 63; Graves v. Spier, 58 Barb. 349, 384; Murray v. Fay, 38 id. 14, 20. 5 Keeler v. Dunham, 114 App. Div. 94, 98; Blake v. Griswold, 104 N. Y. 613, 616; Fowler's Pers. Prop. Law (2d ed.), 211. 6 Shayne v. Evening Post Publishing Co., 168 N. Y. 70. Cf. D. G. Yuengling Brewing Co., 24 App. Div. 223; Matter of Murray Hill Bank, 153 N. Y. 199; People v. Troy Steel & Iron Co., 82 Hun, 303. 7 Formerly 2 R. S. 448, § 2. What Actions Do Not Survive. Under this section actions for libel, slander, criminal conversation, seduction, malicious prosecutions, or assault and battery do not survive the death of either the injured or the injurer; nor do actions for false imprisonment, or "other actionable injury to the person" only, survive. The intention was that the causes of action specially expected in this section should not survive, but that all other causes of action should survive." Formerly an action of replevin abated on the death of plaintiff10 and it did not survive against the executors or administrators of a defendant.11 But a recent statute covers the remedy, and by it such action now survives the death of either plaintiff or the wrongdoer.12 8 § 3343, Code Civ. Pro., subd. 9; Pulver v. Harris, 52 N. Y. 73, 75; Price v. Price, 75 id. 244; Larocque v. Conheim, 42 Misc. 613; Duncan V. St. Luke's Hospital, 113 App. Div. 68, 75. 9 Haight v. Hayt, 19 N. Y. 464, 467; Cregin v. Brooklyn Construction Railroad Co., 75 N. Y. 192, 194, 195. Cf. Stokes v. Stickney, 96 N. Y. 323, 327; Hegerich v. Keddie, 99 N. Y. 258, 262. 10 Burkle v. Luce, I N. Y. 163. Cf. Porter v. Van Vranken, 36 N. Y. 619, 625; Lahey v. Brady, I Daly, 443. 11 Hopkins v. Adams, 5 Abb. Pr. 351; Mosely v. Mosely, 11 Abb. Pr. 105; Webber's Exrs. v. Underhill, 19 Wend. 447; Lahey v. Brady, I Daly, 443, 445. 12 § 1736, Code Civ. Pro.; Burnham v. Brennen, 60 How. Pr. 310; Roberts v. Marsen, 23 Hun, 486. § 121. Action or proceeding by executor of executor. An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof, as such executor. [Added by § 16, chap. 240, Laws of 1909 amending the Decedent Estate Law.] Formerly 2 R. S. 448, § 11: § 11. An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof as such executor.13 Comment. Prior to the Revised Statutes, although an executor could not assign the executorship, yet the executor of a sole executor (who had proved the will) was to all intents and purposes the executor and representative of the first testator.14 This rule of law was changed by the Revised Statutes, 15 the provision of which continue on the statute book of this State in some form.16 The former fiction of law, that the executor was a continuation of the persona of the testator, to which we have alluded in these pages,17 doubtless, accounts in some measure for the old rule now abolished by the Revised Statutes, as just stated above. Under the existing law an executor of an executor derives no title or authority, from the will naming him, to represent the first testator. This former rule was intended to be and is abrogated by statute.18 13 Repealed by chap. 245, Laws of 1909, amending § 130, Decedent Estate Law. 14 Williams on Executors, 145, 146. 152 R. S. 71, §§ 15, 16, 17; id. 78, §§ 44, 45; 2 R. S. 448, § 11; see note 40, Appendix II, infra. 16 §§ 2613, 2643, 2692, 2693, Code Civ. Pro.; § 121, Decedent Estate 17 Supra, p. 447. 18 See note 40, Appendix II, infra; Matter of Moehring, 154 N. Y. 423, 430; Matter of Collyer, 124 App. Div. 16. § 122. Appraisal of estate of deceased person. Whenever by reason of the provisions of any law of this state it shall become necessary to appraise in whole or in part the estate of any deceased person, the persons whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into consideration actual sales of neighboring real estate similarly situated during the year immediately preceding the date of such appraisal, if any; and they shall value all such property, stocks, bonds, or securities as are customarily bought or sold in open markets in the city of New York or elsewhere, for the day on which such appraisal or report may be required, by ascertaining the range of the market and the average of prices as thus found, running through a reasonable period of time. This section was renumbered by § 16, the "Decedent Estate Law" of 1909. Laws of 1909. Formerly chap. 34, Laws of 1891. chap. 240, Laws of 1909, amending Originally it was $ 120, chap. 18, CHAP. 34. AN ACT in reference to the appraisal of the estate of decedents and others. Approved by the Governor, February 25, 1981. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Whenever by reason of the provisions of any law of this state it shall become necessary to appraise in whole or in part the estate of any deceased person, or of any insolvent estate in the hands of a receiver, or of any assignee for the benefit of creditors, or of any corporation in the hands of a receiver or otherwise, the persons whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into consideration actual sales of neighboring real estate similarly situated, during the year immediately preceding the date of such appraisal, if any; and they shall value all such property, stocks, bonds, or securities as are customarily bought or sold in open markets in the city of New York or elsewhere, for the day on which such appraisal or report may be required, by |