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.
EQUITABLE ASSETS.
According to the usual legal phraseology, the difference between legal and equitable assets is this; “legal assets are such as constitute the fund for the payment of debts, according to their legal priority; whereas, equitable assets are those which can be reached only by the aid of a court of equity, and are subject to distribution on equitable principles, according to which, as equity favours equality, they are to be divided pari passu among all the creditors.” This is a very important distinction, and of great consideration in the payment of debts, and it has accordingly been fully set out in the Hand-Book for the instruction of Executors and Administrators. There the difference is as to the distribution of equitable assets, but here we have to regard their attainment. The difference between the different species of legacies will be shown hereafter, but in this place we may look upon them in one light, and consider that there is both sufficient to pay the debts and satisfy the legacies, if the assets are all got in, and properly distributed. With respect to the debts, the legal assets are applicable in a certain order, while the equitable assets are equally shared among the creditors. But with respect to the legacies, saving the instance first alluded to, of specific legacies which are to be noticed hereafter, the assets, whether legal or equitable, are all distributed equally, that is, in full, if sufficient to satisfy in full, or in proportionate equality, according to the amounts of the legacies, and the means to pay them. Our business, therefore, here is to show what the executor is entitled to, and what he ought to obtain in order that the legatees may not suffer from his negligence.
The executor enters, then, fully into the equitable title of the testator, in respect of personal property, and this whether it accrues before or after his death. Thus, if an individual shall have contracted to deliver certain goods to the testator on a certain day, and the day does not arrive till after his death, and they are delivered to his executor, they will constitute assets in his hands, and should the individual who has covenanted to deliver them fail in his duty, the damages that shall be recovered in consequence will be equally available to the creditors or legatees. So, also, if any party has covenanted to grant a lease of certain land by a particular day, and the testator dies before the day, the executor is entitled to the lease, or to compensation in the way of damages in lieu of the lease. To such an extent, indeed, does this run, that in the case of Husband v. Pollard, where a father held a lease of the church, renewable every seven years, and he assigned it to his son in trust for himself for life, remainder in trust for the son, himself, his executors, administrators, and assigns, and the father covenanted to renew the lease every seven years as long as he should live; and the son died; and the father failed to renew the lease within the seven years; and the executor of the son filed a bill to compel him to renew; it was decided that he ought to do so, and he was compelled accordingly; and this lease became assets in the hands of the executors at the father’s death.
If a defendant in execution at the testator’s suit escape after the testator’s death, the executor shall recover damages for the escape, they will form assets; so also are goods replevied after the death of a testator. If a testator die possessed of a term for years in an advowson, the term rests in the executors, and, in the event of their being disturbed, any damages they may recover in consequence will be equally available, as also any other property recovered by a suit in equity. But when a cause of action accrued before the testator’s death, neither cause nor damages are to be considered assets until the proceeds are, by execution or otherwise, reduced into possession. Neither is the balance of an account stated with the executor to be so considered until paid. If, however, they be recovered and released by the executor, he will still be responsible for them, for the release is tantamount to an acknowledgment of receipt.
Should the cause of action accrue after the testator’s death, both the action and the damages become assets immediately, unless the breach of engagement affect the realty, in which case they belong to the heir. At the death of a joint merchant, all his interest in his choses in action, or things coming, though not yet come, to hand, through legal or equitable suit, and whether, therefore, they be legal or equitable assets, devolve, according to the amount of the testator’s interest in them, to the executor.
CONTINGENT AND DEPENDENT ASSETS.
Besides all these means by which property may be realised by an executor to pay the claims of the legatees, there are yet other more remote and uncertain sources from which he may in the course of time come into the possession of assets, which may enhance their interests. These consist in the peculiar conditions annexed to certain properties; properties again which may come to the testator’s estate in consequence of his being entitled to them as remainder man or contingent devisee, as his outliving some other individual, or happening to fulfil an engagement which that other has failed to perform. Or he may have been unconsciously entitled, as residuary legatee, to property, the surplusage of which has not been discovered, or recovered till after his death. Or property may have come to him through increase of some fund, or by assignment under some deed or covenant, or by limitation and selection.
An executor may become entitled to property in his official capacity by condition, as if the testator shall have granted a lease, or other chattel, to a certain person, on condition of his paying a sum of money, or doing some specific act, and it is discovered after the death of the testator that that person has failed in his part of the agreement, the chattels will then be assets in the hands of the executor. Or where the agreement is that the testator or his executors shall pay a certain sum, to avoid the grant, and the sum is paid. Or the testator may have pledged plate or a jewel, and the executor redeem it at the time and place appointed, before the day of redemption has passed. If he has redeemed with his own money, and, in consequence of the want of funds of the testator’s property, the chattel is obliged to be sold to pay the executor’s disbursements, and if it sell to more than they amount to, then the surplus above that amount will be assets in his hands, for the benefit of the creditors and legatees, or both.