garet, and Dorothea, the children of C. D., who have suffered damage from the defendant's negligence in carrying the said

is proved, merely because death by negligence is established. (Duckworth v. Johnson, 29 L. J. Ex. 25.)

There are two other classes of torts to be considered, viz., injuries to the real estate of persons deceased, and injuries to their personal estate. With regard to injuries to the real estate, the 3 & 4 Will. 4, c. 42, provides (sect. 2), "that an action may be maintained by the executors or administrators of any person deceased, for any injury to the real estate of such person, committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall have been committed by such person within six calendar months before his death, and provided such action shall be brought within one year after the death of such person; and the damages, when recovered, shall be part of the personal estate. Either under that statute, or under 4 Edw. 3, c. 7, an action for injury to chattels real would lie.

Injuries to

real estate of testator;

With regard to injuries to the personal estate, an action was given to to personal executors and the executors of executors, by the joint effect of 4 Edw. 3, estate. c. 7, and 25 Edw. 3, c. 5, and to administrators, upon their institution, by the 31 Edw. 3, c. 2. It must be shown that the injury caused the estate of the deceased to be less beneficial to the plaintiff. But none of the authorities go so far as to say that where the cause of action is in substance an injury to the person, the legal personal representative can maintain an action merely because the person so injured incurred in his lifetime some expenditure of money in consequence of the personal injury. Thus where A. sued as the administratrix of B., who was run over by the defendants' engine at a level crossing, and injured, and compelled to incur medical expenses, so that his estate was diminished in value, the action was held not maintainable. (Pulling v. Great Eastern Rail. Co., 9 Q. B. Div. 110.) It will be observed, on a reference to the report, that the facts did not bring the case within 9 & 10 Vict. c. 93.

ACTIONS AGAINST EXECUTORS AND ADMINISTRATORS.

tives are liable on

the con

In the case of contracts.]-Personal representatives are, generally To what speaking, liable on contracts made by the testator for breaches, whether extent before or after death (Wollaston v. Hakewill, 3 M. & G. 320; Wilson v. personal Wigg, 10 East, 313); but contracts for personal services are, as a general representarule, rescinded by death, except so far as for past breaches. (Werner v. Humphrys, 2 M. & G. 853; Seboni v. Kirkman, 1 M. & W. 418; and see Stubbs v. Holywell Rail Co., L. R. 2 Ex. 311, 312.) An executor or administrator may be sued, as such, for goods sold to him or work done at his request, or for money received by him for the use of the plaintiff; and he may also be, where the contract is entered into by him as executor or administrator, sued on such claims in his own right. (Cor ner v. Shaw, 3 M. & W. 350.) Executors may be sued for money due on accounts stated as executors, and money paid at their request as executors. (Ashby v. Ashby, 7 B. & C. 444; Furhall v. Farhall, L. R. 7 Ch. 123.)

Before the Judicature Acts came into force an executor could not be sued at law for a legacy, unless being specific he had assented to it, or he had ceased to hold the legacy as executor, or, for forbearance by the legatee, he had promised to pay it. This is probably unaltered by those Acts. It is, however, still important to note those cases in which execu tors could have been sued at law, as in such cases there can be no doubt now as to the propriety of commencing actions in one of the Common Law Divisions. The cases were where the executor had assented to a

tracts of the deceased.

Executor not liable

on promise unless in writing.

Defence that the defendant was not executor, &c.

What will and will

not con

stitute an executor

de son tort.

Defence

that the defendant has duly administered all the assets.

C. D. by omnibus, whereby the said C. D. was killed in Corn-
hill, on the 15th of January, 1883.

Particulars pursuant to statute are delivered herewith.
The plaintiff claims £500.

specific legacy, and where, in the case of general pecuniary legacies, the executor admitted to the legatee that he had received the money, and that he held it to his use.

By the 4th section of the Statute of Frauds no action is maintainable against an executor or administrator, on any special promise to pay a debt of the testator, &c., out of his own estate, unless the contract is evidenced by some writing; and to charge the executor personally, there must be consideration for his promise to pay.

Formerly counts against an executor or administrator could not have been joined with counts against him personally, for claims against him on his own account. Now, however, such claims may be included in the same statement of claim, under the provisions of the Judicature Acts, and the Orders and Rules thereunder (see Order XVIII. r. 5), provide the personal claims are alleged to arise with reference to the estate of which the defendant is executor,

DEFENCES BY EXECUTORS AND ADMINISTRATORS.

Denial that defendant was executor, &c.]—An executor or administrator should be careful in pleading this defence, as, if the issue is found against him, the form of judgment against him would affect his own property, in the event of the testator's or intestate's being insufficient, on the ground that he must have known that the defence was unfounded. (See 2 Wms. Exors. 5th ed. 1789.) There is nothing in the Judicature Act which expressly alters this rule of law, except that among the forms of judgment given with the Rules of 1883 there is no form to meet such

a case.

In answer to this defence, it is sufficient to show that the defendant acted as executor de son tort. There are a variety of acts which will invest a person with this character. Evidence of slight acts of intermeddling with the property will be sufficient. A person dealing with a lease granted to the deceased is chargeable as assignee of the term. (See Williams v. Heales, L. R. 9 C. P. 177.) The following circumstances are enumerated by an eminent authority as insufficient to bind a person as executor de son tort, viz.:-Locking up the goods of the deceased; directing the funeral out of his effects; feeding his cattle; repairing his houses; providing necessaries for his children. (1 Wms. Exors. 7th ed. 261, 262.) The inference drawn from certain acts, on which a person is sought to be made executor de son tort, may be rebutted, by showing that he acted under the authority of the rightful executor (Sykes v. Sykes, L. R. 5 C. P. 113), or of a person to whom administration was afterwards granted. (Hill v. Curtis, L. R. 1 Eq. 90.)

Where a party sues or is sued as executor or administrator, his representative capacity must be specially denied if questioned. (R. S. C. Örd. XXI. r. 5, and Ord. XIX. r. 15.)

Plene administrarit.]—In defences which correspond with the former plene administravit, it has been essential that the defendant should allege that he had not, at the commencement of the suit or since, any goods of his testator or intestate. (Atkins v. Humphrey, 2 C. B. 654.) Where such a defence was open to an executor, &c., and he did not plead it. he was taken to admit assets, and in the event of the assets of deceased

Action by Executor for Damage done to the Testator's Estate by
Defendants' Negligence whereby Testator's Person was Injured.

1. The plaintiff is the executor of A. B.

2. On May 17, 1883, the defendants contracted for hire to

proving insufficient, he would be personally liable to make good the deficiency. The law is not apparently affected by the recent changes in procedure. The plaintiff may, on a defence of plene administravit being pleaded, sign judgment for debt and costs, to be paid out of future assets when they should come in (quando accederint). If the plaintiff joins issue on such a defence, and is successful, he will be entitled to judgment to the extent of the assets proved, and of future assets for the residue of the debt, if any. (2 Wms. Exors. 5th ed. 1790.) If he fails, semble he will not be entitled to judgment to be paid out of future assets. (Ib. 1794.) But see Hindley v. Russell, 12 East, 232.

The observation made above on the defence denying the executorship or the administratorship, viz., that the executor, &c., should be careful not to plead it, unless he thinks he has good ground for it, will apply equally to this defence, as he will, in the event of failing to establish it, be liable for the costs of it.

The order of distribution of

assets

changed.

The order of distribution which was formerly observed in administering assets under 22 & 23 Vict. c. 35, has been altered by the 32 & 33 Vict. c. 46, which provides that in the administration of the estate of every person dying after the passing of the Act, debts secured by bonds, or instruments under seal (specialty debts) shall have no priority over simple contract debts, "provided always that this Act shall not prejudice or affect any lien, charge, or other security which any creditor may hold for his debt." It has been held that the effect of this provision is to postpone a specialty debt to an unregistered judgment obtained against an executor on a simple contract debt. (Winchmire v. Winchmire, 20 Ch. D. 545; Williams v. Williams, L. R. 15 Eq. 270.) An unregistered judgment against the deceased is not entitled to any preference. (Kemp v. Waddingham, L. R. 1 Q. B. 355; Van Ghelmive v. Nerincka, 21 Ch. D. 189. A further change is made by the Judicature Act, 1875, sect. 10, which declares that in the administration by the Court of an insolvent estate, "the same rules shall prevail or be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively," as may at the time prevail in bankruptcy. As to the effect of this section see Williams v. Hopkins (18 Ch. Div. 370). An executor, &c., may pay a debt though barred by the Statute of Executor Limitations. (Lowis v. Rumney, L. R. 4 Eq. 451.) And if sued for a may pay debt so barred, he, by omitting to plead the statute, does not render barred himself liable to another creditor or creditors. (Williamson v. Naylor, 3 debt. Y. & C. 211.) Where a verdict was found against an executor on a plea of plene administravit, and an action of debt was afterwards brought on the judgment alleging a devastarit, the defendant (executor) was held estopped from showing that the devastavit was committed with the plaintiff's consent. Jewsbury v. Mummery, L. R. 8 C. P. 56, Ex. Ch.) A married woman, who has proved a will as executrix is, after her husband's death, liable for a derastavit committed by him. (Soady v. Turnbull, L. R. 1 Ch. 494.)

An executor was, by 30 Car. 2, c. 7, enlarged by 4 W. & M. c. 24, made liable for a devastavit by his testator or intestate. It has been held that the effect of these statutes is, that whatever act of an executor,

U

Defence that de

fendant has administered all the assets except a sum less than that sued for.

When exe

liable for

torts com

mitted by testator, &c., in his lifetime.

carry A. B. in safety to Huntingdon, but negligently ran the train in which they were carrying him into another train, whereby he was injured.

or of an executor de son tort, would have made him personally liable and chargeable with payment de bonis propriis, will now make his personal estate liable in the hands of his executor or administrator. (2 Wms. Exors. 7th ed. 1998, 1999; and Coward v. Gregory, L. R. 2 C. P. 153.) But the executor of an executrix de son tort is not liable for breach of contract committed by the person with whose property the executrix has meddled. (Wilson v. Hodson, L. R. 7. Ex. 84.)

Plene administracit præter.]-This defence consists of an allegation that the defendant has fully administered all the personal estate of the deceased except a certain sum named, and less than that claimed by the plaintiff, and that he had not, at the commencement of the suit nor since, any other personal estate. On this defence being pleaded formerly the plaintiff could join issue thereon and have judgment to the extent of the assets admitted, and of future assets “quando acciderint" for the residue of debt and costs. The defendant was at liberty to pay the amount admitted into Court.

In torts.]-In the case of torts the maxim "actio personalis moritur cum persona," applied in the sense that the liability of the testator or intestate ceased with his death. However, by sect. 2 of 3 & 4 Will. 4, c. 42, cutors, &c., "An action of trespass, or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased for any wrong committed by him in his lifetime to another in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person; and the damages to be recovered in such action shall be payable in like order of administration as the simple contract debts of such person." In a very curious case, Kirk v. Todd, 21 Ch. Div. 484, which illustrates the wisdom of pressing on an action of tort once begun, A. sued B. in tort, and B. died more than six months after the beginning of the action, which was continued against B.'s executors, but it was held that the action against the executors must be dismissed, the act complained of having occurred more than six months before B.'s death.

Married

woman as an execu

trix.

Under the Ecclesiastical Dilapidations Act (34 & 35 Vict. c. 43) there is a liability on the executors of a deceased incumbent to answer for dilapidations to the rectory, &c., to the successor.

The law regarding the acceptance of the office of executrix or administratrix has been much altered by recent legislation. Before the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), a married woman might be appointed as executrix, but she could not obtain a grant of probate without her husband's consent. Now (45 & 46 Vict. c. 75, ss. 1 and 24) any married woman, whether married before or after the passing of the Act, may accept the office and obtain the grant without her husband's consent, and where she takes a grant of letters of administration now, not her husband, but she will enter into the administration bond. If she should prefer the grant, we think that in principle her husband could not, as such, accept the office or obtain the grant against her will.

Formerly the husband of a feme covert executrix or administratrix, as well as the feme covert herself, was held liable for her derastavit. Now a woman married on or after January 1, 1883, is solely liable for her own devastarit, whether she becomes executrix or administratrix before or

3. By reason of the premises, the personal estate of A. B. was diminished at the time of his death, which occurred in November, 1883. He was unable to attend to his business, and lost profits, and incurred medical and other expenses.

after her marriage, and her husband will not be liable at all "unless he has acted or intermeddled in the administration of the estate" (s. 24). Who is liable for the devastavit of a feme covert marreid before January 1, 1883, who has obtained a grant before that date, is open to some question. (See Griffith's Married Women's Property Act, 5th. ed. pp. 142-143.)

Under the old law a wife who allowed her husband to take a grant of probate or letters of administration in her name was liable for his devastarit to the extent of her separate property. The husband's liability for his wife's derastarit was limited in some cases by the Act of 1874 (37 & 38 Vict. c. 50) to the assets he received through her. Under the new law, if a devastarit be committed by a woman before marriage, a subsequent marriage settlement, settling her property with a restraint upon anticipation, will have no validity as against any person requiring her to make good the devastarit. (45 & 46 Vict. c. 75, s. 19.) If the settlement were after the derastavit, the wife's separate property not restrained from anticipation must answer it, and the settlement itself may be attacked on any of the grounds (e.g., fraud) on which a settlement by a man might be attacked (s. 19).

By s. 23 of the Act 45 & 46 Vict. c. 75, "for the purposes of this Act, the legal personal representative of any married woman shall, in respect of her separate estates, have the same rights and liabilities and be subject to the same jurisdiction as she would be if she were living." Her executor will now, therefore, be the executor of her will, and not merely of the property appointed by her under a power. (Brownrigg v. Pilne, 7 P. D. 61.) Whether, if she should die intestate, her husband or her next-of-kin is entitled to administration, is a question on which there has been some difference of opinion. Mr. Wolstenholme seems to think that the next-of-kin is entitled. We think that is not so. The Act contains no express words, such as we should expect to find, taking away the husband's right, under 29 Car. 2, c. 3, s. 25, to the administration of her estate.

The position of a married woman when executrix.