for damages; in this cafe, until he hath recovered by execution, it fhall not be efteemed affets in his hands. And if the judgment be erroneous, and the execution avoidable; in this cafe, although it be recovered and gotten in poffeffion, yet it fhall not be esteemed affets. And therefore, if one sue another, and recover againfl him as adminiftrator of J. S. and after a teftament made by J. S. is produced and proved, and thereby an executor is made; in this cafe the money recovered by the adminiftrator fhall not be faid to be affets in his hands as to any of the creditors; becaufe the executor may recover it from him, or the debtor will have it again. And if the executor or adminiftrator never recover, or get the thing into his poffeffion, he fhall never be charged, especially where he has done his best to get it, and cannot. If one covenant to make a leafe for years to the deceased, his executors or adminiftrators, and after his death the leafe is made to the executor or administrator accordingly; in this cafe, this leafe fhall be faid to be affets in his hands, and he fhall be chargeable for fo much to any creditor. And if an executor renew, he fhall account for the new leafe as well as the old, for the benefit of the creditors d. And whatsoever the executor or administrator must be forced to fue for by the name of executor or adminiftrator, being recovered, fhall be efteemed affets in his hands. And if an executor recovers (as executor) things in chancery by equity, these things recovered fhall be affets f. ALTHOUGH the thing be extinct, and gone as to the executor and adminiftrator himself, yet it may have its being, and be accounted affets as to creditors and legatees. And therefore, if an executor or adminiftrator have a leafe for years of land, in the right of the deceased, and afterwards he purchases the fee-fimple of the land (whereby the leafe is drowned), yet in this cafe the leafe fhall continue to be affets as to creditors and legatees 5. And if an executor furrenders a term of years which he had as executor to him in reverfion, it is not extinct as to him, but shall still remain affets in the executor to fatisfy debts and legacies 1. And if the debtee make the debtor his executor, or the debtee die inteftate, and the adminiftration is committed to the debtor; c Shep. Touch. 473. d 2 Cha. Ca. 208, Shep. Touch, 473. f 1 Roll's Abr. 920. in in these cafes the debt fhall be faid to continue, and shall be efteemed affets for fo much as to other creditors. Yet, if there be fufficient affets to pay the teftator's debts, the debtor being made executor, is thereby difcharged of the debt *. THE goods and chattels of other men in the hands of the executor or adminiftrator, that were in the poffeffion of the deceased, if he had no right to them, or if he had, and they do not belong to the executor, will not make the executor or adminiftrator chargeable; for thefe fhall not be esteemed affets in his hands. And therefore, if the goods of another man be amongst the goods of the deceafed, and thefe come together into the hands of the executor or administrator'; these goods that are the goods of another fhall not be faid to be affets in the hands of the executor or adminiftrator. And if the executor receive a rent that belongs to the heir, this rent fhall not be faid to be affets in his hands: and hence it is, that if the deceased were outlawed at the time of his death, his goods and chattels are not to be accounted affets, for they are none of his '. A RELEASE of a certain debt due to the teftator makes it affets in the executor's hands; because it fhall be intended he would not have made the release unless the money had been paid to him ". And if an executor puts in fuit a bond of 100l. for performance of covenants, and the parties fubmit to an award, and it is awarded that the obligor fhall pay 7ol. in full fatisfaction, and that the executor fhall release, which is done accordingly; it feems, that the executor fhall be taken. to have affets to the value of the whole 100l. for though by the award he was compelled to release, it was his own act to fubmit to the arbitrament ". If a man hath a leafe for years worth 201. per annum at the rent of 51. and he die; in this cafe not the whole value of the land, but fo much as is above the rent, fhall be said to be affets in the hands of the executor or administrator °. As where an executor has a leafe for years of the value of Shep. Touch. 474. k Black. Com. 2 V. 512. 1 Shep. Touch. 474. m 1 Nelf. Abr. 262. 201. zol. a year, rendering rent of 10l. a year; it is affets in his hands only for 1ol. over and above the rent P.-By the ftatute of the 14 Geo. II. c. 20. before mentioned, it is enacted, that eftates pur auter vie, in cafe there be no fpecial occupant thereof, of which no devife fhall have been made according to the ftatute of the 29 Car. II. c. 3. or so much thereof as fhall not have been fo devifed, fhall go and be applied and diftributed in the fame manner as the perfonal eftate of the teftator or inteftate. And by this ftatute of Car. II. an eftate pur auter vie fhall be affets in the hands of the heir, if he has it as fpecial occupant. If there is a mortgage for years (whatever be the number), this is affets at law; because the whole intereft is not gone from the mortgagor, the reverfion in fee being left in him: but if it is a mortgage in fee, it is only affets in equity, because the legal estate is gone out of the mortgagors. If the heir of the mortgagee foreclofes the mortgagor, yet the land fhall go to the executor, unless the heir pays him the mortgage money; and then he may have the benefit of the mortgage'. When upon a mortgage, money is made payable to the heir or executor, in that cafe, before or at the day of payment, the mortgagor hath election to pay it to either; but after the day of payment is paft, and the mortgage forfeited by law, though equity doth give the mortgagor relief, fo as upon the payment of the money, he fhall have his land, yet equity will not revive the election of the mortgagor to pay it to the heir or executor; but then he fhall be forced to pay it to the executor; because it came out of the perfonal eftate of the teftator, and thither it fhall return. But if in the mortgage neither heir nor executor is mentioned, then, after the death of the mortgagee, the law determines it to be paid to the executor ". THE intereft which a master hath in a fervant is not effets in the hands of an executor; for a fervant whofe mafter is dead, is legally difcharged, and is not fervant either to the heir or executor w. But the intereft which one hath in an appren W tice, is a chattel perfonal, and fhall go to the executors *, of which we shall fee more hereafter ". Alfo the intereft in the liberty of a prisoner in execution for debt, is a chattel perfonal, and fhall go to the executors. b HAVING feen, in the former part of this fection, that the adminiftrator has very large powers conferred on him by the law, here we may observe, that all acts done by him, as long as the adminiftration continues in force, are good, and even though it be afterwards revoked or repealed. But there is a difference taken (6 Co. 18.) when an administration is repealed upon a citation, or upon an appeal. If it is upon an appeal, which fufpends the administration, all acts after such fufpenfion are void if it is repealed upon a citation, all the acts of the adminiftrator, till the repeal, are good; for by the citation the grant of the adminiftration is not fufpended; therefore, if the administration be repealed, all acts done by an administrator, which a rightful administrator might have done, fhall be allowed; for in them he acted in the place of a rightful administrator. But if there is any fraud, a creditor may have relief upon the ftatute of the 13 Eliz. c. 5. As it hath often been the cafe to the defrauding of creditors, that fuch persons who were to have the administration of the goods of others dying inteftate committed unto them, if they required it, would not accept the fame, but fuffered or procured the administration to be granted to fome stranger of mean eftate, and not of kin to the inteftate; from whom themfelves, or others by their means, took deeds of gift, and authorities by letters of attorney, whereby they obtained the estate of the inteftate into their hands, and yet stood not subject to any debts by him owing; it is enacted by the statute of the 43 Eliz. c. 8. That every perfon who fhall obtain any goods or debts of any perfon dying inteftate, upon any fraud as is above mentioned, or without fuch valuable confiderations as fhall amount to the value of the fame goods or debts, or thereabouts (except it be in fatisfaction of fome just and principal debt of the value of the fame goods or debts to him * Went. 55. y Pag. 5%. 2 Law of Teft, 341. a Comyns, 150. owing owing by the inteftate), fhall be charged as executor of his own wrong, fo far as fuch goods and debts will fatisfy. IF a ftranger takes upon him to act as executor, without any juft authority (as by intermeddling with the goods of the deceased, and many other tranfactions), he is called in law executor of his own wrong, de fon tort, and is liable to all the trouble of an executorship, without any of the profits or advantages but merely doing acts of neceffity or humanity, as locking up the goods, or burying the corpfe of the decealed, will not amount to fuch an intermeddling, as will charge a man as executor of his own wrong. Such an one cannot bring an action himself in right of the deceased, but actions may be brought against him. He is chargeable with the debts of the deceased fo far as affets come to his hands. and, as against creditors in general, fhall be allowed all payments made to any other creditor in the fame or a superior degree, himself only excepted. And though, as against the rightful executor or adminiftrator, he cannot plead fuch payment, yet it shall be allowed him in mitigation of damages; unless, perhaps, upon a deficiency of affers, whereby the rightful executor may be prevented from fatisfying his own debt. As the executor of his own wrong is liable to the fuit of the rightful executor, creditors, or legatees; fo alfo, in cafe of his death, are his executors or adminiftrators liable, by the ftatute of the 30 Car. II. c. 7. although in other cafes a perfonal wrong dies with him that did it d SECTION THE FIFTH. THE ADMINISTRATOR'S OFFICE AND DUTY IN PAYING DEBTS. Ν IN payment of debts the executor or administrator must obferve the rules of priority; otherwife, on deficiency of affets, if he pays thofe of lower degree first, he must anfwer thofe of a higher out of his own estate. And as to debts of equal degree, he may, as we have before feen, retain what is due to himfeiff. FIRST, The executor or adminiftrator may pay all funeral charges, and the expence of taking the letters of administration. But as to funeral charges it is faid, that in strictness, |