General Principles.

executor, who is not executor; it does not bind the estate of the testator; and an execution on such a judgment would be void. Ibid.

within it, would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice. Ibid. 9. The act of congress relative to alien enemies, passed 6th July, 1798, having authorized the president to direct the confinement of alien enemies, necessarily conferred all the means for enforcing such orders as he might give in relation to the execution of those powers. Locking-mentary are obtained, the executor cannot obton v. Smith, 1 Peters' C. C. R. 466.

10. The marshals of the several districts are the proper officers to execute the orders of the president, under the act relative to alien enemies. Ibid.

11. It is to the department of state, that a reference must be made for the official acts of the president, in relation to such public measures as are not immediately connected with the duties of some other department. Ibid.

6. By the laws of South Carolina, administration durante absentia of the executor, cannot be granted after probate of the will, and letters testamentary granted. Ibid.

7. Until probate of the will and letters testa

tain any judgment, because it cannot appear that he is executor. There is, therefore, an absolute necessity for the appointment of some person, who, until probate, shall take charge of the estate. Ibid.

8. An executor who absents himself from the state after taking out letters testamentary, is still capable of performing, and is bound to perform all the duties of executor. There is no legal disability in him, and consequently there is no necessity for transferring to another those pow ers which the testator has conferred upon a per

12. The president may direct some other department to make known such measures as he may establish; after the president had estab-son selected by him. lbid. lished such regulations as he deemed necessary in relation to alien enemies, it was not necessary to call in the aid of the judicial authority, on all occasions, to enforce them; and the mar shal could not act without such authority. Ibid. 13. The provisions of the law of congress intended to make the judiciary auxiliary to the executive, in effecting its great objects; and each department was to act independently of the other, except that the former was to make the ordinances of the latter the rule of its decisions. Ibid.

9. The appointment of an executor vests the whole personal estate in him; he holds as trustee for the purpose of the will, but he holds the legal title in all the chattels of the testator. Ibid.

1. Virginia. On the issue of plene administravit, the jury must find specially the amount of assets in the hands of the executors; other wise the court cannot render judgment upon the verdict. Fairfax's Executors v. Fairfax, 5 Cranch, 19; Cond. Rep. 178.

2. An executor is liable for the amount of assets in his hands, and for no more. Ibid.

3. Maryland. A final account settled by an administrator in the orphan's court, is not conclusive evidence in his favour upon the issue of devisavit vel non. Beatty v. Maryland, 7 Cranch, 281; 2 Cond. Rep. 492.

10. The executor is, for the purpose of administering the chattels of the testator, as much the legal proprietor of them, as was the testator himself while alive. And this interest is incompatible with any power in the ordinary, to trans fer these chattels to any other person by the grant of administration. Such grant conveys no right, it is a void act. Ibid.

11. If administration be granted during the minority of an executor, it is because the executor is legally disqualified from acting, and indeed has not taken, and could not take upon himself the trust. He may, when of age, reject all the right and powers conferred by the will; and, consequently, the interest is not a vested interest. Ibid.

12. In the case of an absent executor, who has not made probate of the will, and qualified; and not being able, for these causes, to act as executor, and having power to renounce; the ordinary is not deprived of the power to appoint an executor durante absentia. But the absence of the executor, who has proved the will, is no reason for granting administration. Ibid.

13. The power of appointing an administrator durante absentia of an executor, who has proved the will, was not exercised by the ordinary in England, anterior to the statute 38 Geo. III.,'ch. 87, which first gave him that power. Ibid.

14. To give jurisdiction to the ordinary, a case which, by law, letters of administration may issue, must be brought before him. Ibid.

15. In a common case of intestacy, letters of administration must be granted by the ordinary to some person; and although they should be granted to one not entitled by law, still the act is binding, until annulled by the competent authority. Ibid.

4. South Carolina.-So long as a qualified ex-in ecutor is capable of exercising the authority with which he has been invested by the testator, that authority cannot be conferred, either with or without limitation, by the court of ordinary, on any other person. And if, during such capability of the executor, the ordinary grant administration, either absolute or temporary, to any other person, that grant is absolutely void. Griffith v. Frazier, 8 Cranch, 9; 3 Cond. Rep. 1. 5. If a judgment be rendered against one, as

16. If administration is granted on the estate of a person not really dead, the act is void. If on the estate of a deceased person, whose ex

General Principles.

ecutor is present, and in the constant perform-suming administration of the estate. Taylor v. ance of his executorial duties, such appointment Deblois, 4 Mason's C. C. R. 131.

is absolutely void. Ibid.

17. Letters testamentary, when once granted, are not revocable by the ordinary; he cannot annul them, or transfer the legal interest of the executor to any other person. Ibid.

18. The cases in which administration has been granted, notwithstanding the existence of a will, are cases in which it is not apparent that there is any other person possessing a right; or cases in which that person is legally disqualified from acting; as where administration is granted pending a dispute respecting a will, it is not certain that there is an executor or a will. Ibid.

19. Kentucky. It is generally true, that an executor, who by taking an inferior security, or unreasonably extending the time of payment, brings a loss upon his testator's estate, shall be liable. Hunter v. Bryant, 2 Wheat. 32; 4 Cond. Rep. 17.

20. The executor, who takes charge of the affairs of a man who was engaged in trade, must, on winding up his affairs, be allowed a latitude for discretion; and, in general, where there is manifest fidelity, diligence, and ordinary judgment displayed, courts will always, with some reluctance, enforce the rigid rules which they have been obliged, for the protection of estates, to impose on executors. Ibid. 32.

28. An executor is not liable to be charged as the trustee of a legatee in a foreign attachment. Ibid.

29. Trusts devolving on an executor, and trus property in the hands of the deceased, kept separate, are not assets in the hands of execu tors or administrators; and the statute of limitations of Massachusetts does not run against them. Trecothick v. Austin, 4 Mason's C. C. R. 16.

30. Executors in Massachusetts may, at their discretion, pay over legacies at any time within one year. Sullivan v. Winthrop, i Sumner's C C. R. 1.

31. When executors invested certain sums, less than the whole amount of the legacy, in the name of the legatee: Held, that this was assignment of the legacy pro tanto; and that the interest accruing upon those sums, within the year from the time of the investment, belonged to the legatee. Ibid.

32. Virginia.-An executor or administrator may submit any account of his testator or intestate, to arbitration; and if he adopts the award of the arbitrators, the award is binding, not only upon the executor, or administrator, but upon creditors of the estate which he represents. Strodes v. Patton et al., 1 Brockenb. C. C. R. 228.

21. Massachusetts.-A covenant by an ex- 33. Virginia.-A decree against an executor ecutor, on a conveyance of lands of his testator, is not conclusive, but is only prima facie eviin his capacity of executor, "and not other-dence against the heir or devisee. Garnett v. wise," is not binding on him in his individual capacity; although it may not be binding on the estate of the testator. Thayer v. Wendall, 1 Gallis. C. C. R. 37.

22. On a judgment against an executor de son tort, the real estate of the intestate cannot, in Massachusetts, be set off to satisfy the execution. Ibid.

23. An executor, as such, has a right to enter goods belonging to his testator, at the custom houses; and, as such, to give bonds for the duties, which bind the estate of the testator. United States v. Aborn, 3 Mason's C. C. R. 126.

24. If the executor becomes insolvent, the United States may, in equity, claim payment of the debt due for duties, from the sureties in the probate bond of the executor, where the executor has wasted the assets, and are not obliged to resort for payment to the surety on the custom house bond, in the first instance.' Ibid.

25. Pennsylvania.-Letters testamentary, issued under the authority of the state, are not available in another. Champlin, Ex'r, &c., v. Tilley et al., 3 Day, 303.

Macon, 2 Brockenb. C. C. R. 185.

34. Virginia.-The executor or administrator cannot discharge his own debt in preference to others of superior dignity; though he may give the preference to his own over others of equal degree. In some of the states this rule would not apply, as in those states there is no difference made in the payment of debts between a bond and simple contract debt. Page v. Patton, 5 Peters, 304.

35. District of Columbia.-The testator gave his wife all the proceeds of his estate for the maintenance of his children, and directed his debts to be paid out of particular portions of his real and personal estate. The wife took all the proceeds of the estate for the maintenance of herself and family, and for the education of the children. At the time of the decease of the testator, he was supposed to be wealthy; and the wife continued to live in the same manner after as before the decease of her husband. After her death, the surviving executor was charged with a devastavit for having allowed the expenditures of the widow of the testator to be so large. The auditor to whom the accounts of the executors were referred, made an estimate of the expenses of the family of the widow for twelve years, without having called for vouchers for all the items of the expenditures. The court 27. Massachusetts.-If a feme covert gives a held, the allowance of six thousand dollars out legacy in her will to her husband out of the of the personal estate, for the expenses of the separate property for his maintenance, under family for twelve years, must certainly be a very power of appointment in her will, the executors moderate charge. It was proper subject of inare not liable to be attached as trustees of the quiry for the auditor, and there is no ground husband, until after probate of the will and as-upon which this court could say the allowance

26. If a trustee, executor, or agent, buy in debts due by his cestui que trust, testator or principal, the profit on the purchase belongs to the person or estate for whom or which he acted. Prevost v. Gratz, 1 Peters' C. C. R. 364.

General Principles.

is exceptionable. From the nature of the ex- | debts, &c., is responsible for the money so colpenditure for the daily expenses of the family, lected; and creditors are not bound to pursue it could hardly be expected that a regular ac- the agent: but if there is reason to believe that count would be kept; and especially, under the the account of the agent has not been correctly large discretion given by the testator in his will settled, the administrator would be permitted to in relation to the maintenance of his family. show cause against the report of a commissioner Peter v. Beverly, 10 Peters, 532. in that particular. Green et al. v. Hanberry's Executors, 2 Brockenb. 403.

38. It is a well settled rule, that one executor is not responsible for the devastavit of his coexecutor, any farther than he is shown to have been knowing and assenting at the time to such | devastavit or misapplication of the assets: and 46. A general profert of letters testamentary merely permitting his co-executor to possess the is sufficient; and if the other party wishes to assets, without going farther and concurring in object to them as insufficient, he must crave the application of them, does not render him oyer of them: unless oyer be craved and grantanswerable for the receipts of his co-executor.ed, they cannot be judicially examined. Or, if Each executor is liable only for his own acts, and what he receives and applies; unless he joins in the direction and misapplication of the assets. Ibid.

General Principles.

A

cannot alter the rights of the party to whom it | whatever way the same may have been reultimately belongs. De Valengin's Adm'r, v.ceived; if the law does not permit him to reDuffy, 14 Peters, 282. tain it on account of some relations borne to the 51. The owner of property or of money re- testator, or to his executor, which defeats the ceived by an administrator, may resort to the rights of the executor or administrator; and letadministrator in his personal character, and ters testamentary or letters of administration charge him, de bonis propriis, with the amount obtained in either of the states or territories of thus received. He may do this, or proceed the Union, give a right to the person having against him as executor or administrator, at his them to receive and give discharges for such aselection. But whenever an executor or admi- sets, without suit, which may be in the hands nistrator, in his representative character, law of any person within the District of Columbia. fully receives money or property, he may be The right to receive from the government of the compelled to respond to the party entitled, in United States, either in the District of Columthat character; and shall not be permitted to bia, or in the state where letters have been throw it off after he has received the money, in granted, any sum of money which the governorder to defeat the plaintiff's action. Ibid. ment may owe to the testator or intestate at the 52. Letters testamentary to the estate of Ed-time of his death, or which may become due ward Coursault, a merchant, who had died at thereafter, or which may accrue to the govern Baltimore, were granted to Gabriel Paul, one of ment as trustee for a testator or intestate, in any the executors named in the will. The other way or at any time, is given by that act. executor, Aglae Coursault, the wife of Edward bona fide payment of a debt to the administra Coursault, did not qualify as executrix, nor did tor, which was due to the estate, is a legal disshe renounce the execution of the will. After-charge to the debtor, whether the administrawards, on the application of Aglae Coursault, tion be void or voidable. Ibid. stating that she was executrix of Edward Cour- 55. The certificate of the register of wills, an sault, accompanied with a power of attorney, nexed to the proceedings of the orphans' court given to her by Gabriel Paul, the qualified exe- of Maryland, giving letters testamentary to the cutor, who had removed to Missouri; the com- executor, showed that the will had been proved, missioners under the treaty of indemnity with and that the letters testamentary had been France awarded to the estate of Edward Cour- granted. This is proof that the person holding sault a sum of money, for the seizure and con- the letters testamentary is executor, as far as the fiscation of the Good Friends and cargo, by the law requires it to be proved, in an action of usFrench government. During the pendency of sumpsit upon a cause of action which arose in the claim before the commissioners, Aglae Cour- the time of the testator or of the executor. On sault died; and letters of administration, with the plea of the general issue in such an action, the will annexed, were, on the oath of Thomas and even in a case where that plea raises the Dunlop that the widow and executrix of Edward question of right or title in the executor, the cerCoursault was dead, granted by the orphans' tificate of probate or qualification meets the recourt of the county of Washington, in the Dis-quisition. A judicial examination into their va trict of Columbia, to the plaintiff in error, Elias Kane, a resident in Washington. The sum awarded by the commissioners was paid to Elias Kane, by the government of the United States. Gabriel Paul, the executor of Edward Coursault, brought an action against Elias Kane, for the money paid to him. Held, that he was entitled to recover the same. The letters testamentary granted in 56. The declaration in an action by an execuMaryland, entitled the executor of Edward Cour-tor for the recovery of money received by the sault to recover, without his having the letters of administration granted by the orphans' court of Washington repealed or revoked. Kane, Adm'r, v. Paul, Ex'r of Coursault, 14 Peters, 33. 53. At common law, the appointment of an executor vests the whole personal estate in the person appointed executor, which he holds as trustee for the purposes of the will; and he holds the legal title in all the chattels of the testator, and, for the purpose of administering them, is as much the proprietor of them as was the testator. The ordinary cannot transfer those chattels to any other person, by granting administration of them. Ibid.

54. The act of Congress of the 24th of June, 1812, gives to an executor or administrator, appointed in any state of the United States, or in the territories, a right to recover from any individual in the District of Columbia effects or money belonging to the testator or the intestate, in

lidity can only be gone into upon a plea in abatement, after oyer has been craved and granted; and then, upon issue joined, the plaintiff's title, as executor or administrator, inay be disputed, by showing any of those causes which make the grant void ab initio, or that the administration had been revoked. Ibid.

defendant after the decease of the testator, may be in the name of the plaintiff, as executor, or in his own name, without stating that he is executor. The distinction is, that when an executor sues on a cause of action which accrued in the lifetime of his testator, he must declare in the detinet, that is, in his representative capacity only; but when the cause of action accrues after the death of the testator, if the money when recovered will be assets, the executor may declare in his representative character, or in his own name. Ibid.

57. An administrator, appointed by, and deriving his authority from another state, is not liable to be sued in the District of Columbia, in his official character, for assets, lawfully received by him in the district, under and in virtue of his original letters of administration. Vaughn et al. v. Northup et al., 15 Peters, 1.

58. Every grant of administration is strictly

Actions by and against Executors.

confined in its authority and operation to the limits of the territory of the government which grants it, and does not, de jure, extend to other countries. It cannot confer, as a matter of right, any authority to collect assets of the deceased, in any other state; and whatever operation is allowed to it beyond the original territory of the grant, is a mere matter of courtesy, which every nation is at liberty to yield or to withhold, according to its own policy or pleasure, with reference to its own institutions, and the interests of its own citizens. Ibid.

59. The administrator is exclusively bound to account for all the assets which he receives under and by virtue of his administration, to the proper tribunals of the government under which he derives his authority. The tribunals of other states have no right to interfere with or control the application of those assets according to the lex loci. Hence it has become an established doctrine, that an administrator cannot, in his official capacity, sue for any debts due to his intestate, in the courts of another state; and that he is not liable to be sued in that capacity, in the courts of the latter, by any creditor, for any debt due there by his intestate. Ibid.

descends to his heirs; and this right cannot be divested or impaired by the unauthorized acts of the executor. Brush v. Ware et al., 15 Peters, 93. 64. An executor or administrator may apply by attorney to the court of common pleas, to order a sale of the real estate of the deceased, exhibiting, as the statute requires, a statement of the debts owing by the estate. Heirs of Piatt et al. v. Heirs of M'Culloch, 1 M'Lean, Č C. R. 80.

65. An executor has no power to convey the real estate of his testator, unless authorized by the will, or by the court of probate. Beard et al v. Rowan, 1 M'Lean, C. C. R. 140.

66. An executor, who is empowered by the will to sell and convey the real estate of his tes tator, "in such mode as, in his judgment, shall be best for the interest of the estate," cannot delegate to another the power to sell. Pearson v. Jamison, 1 M'Lean, C. C. R. 199.

67. A sale made by an attorney under such circumstances, does not divest the heir. Ibid.

68. Where, under the statute of Indiana, if an estate be insolvent, the executor or adminis trator may institute proceedings before the court of probate, to which creditors are bound to 60. The debts due from the government of the answer; and the executor or administrator is United States have no locality at the seat of not liable, unless he be guilty of fraud, negligovernment. The United States, in their sove- gence, or waste: such allegation must be conreign capacity, have no particular place of dom-tained in the declaration. Walker v. Johnson's cile, but possess, in contemplation of law, an Administrator, 2 M'Lean, C. C. R. 92. ubiquity throughout the Union; and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicile. Ibid.

61. The administrator of a creditor of the government, duly appointed in the state where he was domiciliated at his death, has full authority to receive payment, and give a full discharge of the debt due to his intestate, in any place where the government may choose to pay it, whether it be at the seat of government, or at any other place where the funds are deposited. Ibid.

2. Actions by and against Executors. 69. Upon the death of an assignee, under the bankrupt law of the United States, the right of action for a debt due to the bankrupt, vested in the executor of the assignee. Richards et al., Assignees, &c., v. Maryland Insurance Company, 8 Cranch, 84; 3 Cond. Rep. 45.

70. If the executor do not cause himself to be made a party to a suit brought in the lifetime, and in the name of the testator, and pending at the time of his death; it is to be considered as a voluntary abandonment of the action, so as to exclude the executor from the equity of the sta

62. The act of congress of June, 1822, authorizes any person to whom letters testament-tute of limitations. Ibid. ary or of administration have been granted, in the states of the United States, to prosecute claims by suit in the courts of the District of Columbia, in the same manner as if the same had been granted to such persons by the proper authority in the District of Columbia. The power is limited by its terms to the institution of suits, and does not authorize suits against an executor or administrator. The effect of this law was to make all debts due by persons in the District, not local assets, for which the administrator was bound to account in the courts of the District; but general assets, which he had full authority to receive, and for which he was bound to account in the courts of the state from which he derived his letters of administration. Ibid.

71. Virginia. It is not necessary that an executor of a will, made in Virginia, devising to him lands in Kentucky, should take out letters testamentary in Kentucky to enable him to maintain ejectment. Doe v. M·Farland et al., 9 Cranch, 151; 3 Cond. Rep. 317.

72. Tennessee. The courts of the United States have jurisdiction of suits by or against executors or administrators, if they are citizens of different states, although their testators or intestates were not otherwise entitled to sue or liable to be sued in these courts. The eleventh section of the judiciary act of September 24th, 1789, ch. 20, 1 Story's L. U. S. 1, 55, is not applicable to such cases. Childress Ex'r, v. Emory et al., Ex'rs, 8 Wheat. 642; 5 Cond. Rep. 547.

73. Debt against an executor in general, should be in the detinent only, unless he has made himself personally responsible, as by devastavit.

63. An executor has not, ordinarily, any power over the real estate. His powers are derived from the will, and he can do no valid act beyond | Ibid. his authority. Where a will contains no special 74. An action of debt lies against an executa provision on the subject, the land of the deceased on a promissory note. Ibid.