The hand-book of the law of legacies / containing a statement of the nature of legacies, and the accidents to which they are subjects; together with the rights of legatees, and the causes and manner of the ademption, cumulation, and abatement of their bequests

by Anonymous

LEGAL ASSETS OF CHOSES IN ACTION.

It is neither an improbable nor unfrequent occurrence, that, at the time of a testator’s death, much of his property is outstanding, which, if got in, would satisfy all the claims of the legatees, while, if it were neglected, they would lose half their bequests; and it is therefore necessary to consider the executor’s interest in what are called choses in action, as well those where the right of action accrued during the life time of the testator, as after his death.

Firstly, then, the executor is entitled to every debt that was due to the testator, whether they be debts due on judgment, statute, record, recognizance, or bond, or on special or simple contracts, rents, or covenants, under seal or promise, all of which constitute assets for the purposes of the will. He is also entitled, by the 4 Ed. III., c. 7, to damages for trespass committed during the testator’s life time, or for the conversion of the same, or for trespass with cattle in his close, or for cutting and carrying away his growing corn, or for a debt incurred by the not setting out of tithes, to an action of prevention against the disturbance of his patronage; as, when a living has been void at the death of the testator, and another has presumed to appropriate this chattel, then become personal, to his own use, by presenting to the living, or to an action of ejectment against him whom he has presented. An executor is also entitled to damages for breach of a covenant to do a personal thing, provided the breach occurred in the testator’s life time; and this, notwithstanding the covenant has reference to realty, as felling, stubbing up, lopping or topping timber trees; for the damages are of the nature of personalty, though that on account of which they were recovered is real. Equally, also, and on the same grounds, can he sue for the loss of interest occasioned by non-payments on deposit-money, for the expense of investigating a title, where the vendor omits to make out a good title within the stipulated time, and the vendee dies. The executor of an assignee may also recover on a bail bond. In fact, in all those rights which accrued to the vendee before his death, and the proceeds of which are all of a personal nature, does the executor equally enter; and he is bound to the legatees to recover, if possible, whenever policy or necessity dictate the attempt.