2. But we apprehend, that for most purposes this distinction. between the time of the vesting of the title or estate of an executor and that of an administrator has become of no practical importance. For it is now settled, beyond all question, that the title of the administrator, after his appointment, vests or relates back from the death of the intestate. Thus he may maintain trover or trespass for acts done before his appointment and after the death of the testator. So he may also waive the tort and recover the money resulting from a transaction; or he may ratify a contract made by procuration, or in any other form, before his appointment on behalf of the estate, so as to take the benefit of it, the same as if his authority had been of a date anterior. So also as to leasehold estate belonging to the intestate, the title of the administrator has such relation back as to enable him to maintain all actions for the recovery of rent or other dues to the estate, from the death of the intestate; and so as to render him liable to account for the rents and profits of it from the same period. The same rule applies to evictions and rights of entry accruing to the estate before the appointment of the administrator.7

Tharpe v. Stallwood, 5 M. & Gr. 760; Foster v. Bates, 12 M. & W. 226, 233, by Parke, B. But this rule does not apply to goods held by the deceased in a representative capacity, the title to which has devolved upon another. Elliott v. Kemp, 7 M. & W. 306.

Welchman v. Sturgis, 13 Q. B. 552.

Foster v. Bates, 12 M. & W. 226; Bodger v. Arch, 10 Exch. 333.

• Lord Ellenborough, Ch. J., in Rex v. Horsley, 8 East, 405, 410.

7 1 Wms. Exrs. 558, and note, by Fish. But rents accruing after the decease of the intestate belong to the heir, where the estate is exclusively of the realty. Stinson v. Stinson, 38 Maine, 593. And a payment of such rent to the administrator will be no discharge as against the heir. Haslage v. Krugh, 25 Penn. St. 97. The personal representative cannot maintain an action to recover possession of real estate except in those states where it becomes assets in his hands for the payment of debts. Stillman v. Young, 16 Ill. 318; Aubuchon v. Lory, 23 Mo. 99; Smith v. McConnell, 17 Ill. 135; Foltz v. Prouse, id. 487.

But the title of a mortgagee vests, at his decease, in his personal representa

3. But there are some exceptions to the general fiction of law, by which the title of the administrator is regarded as having relation to the death of the testator. The period of the statute of limitation, so far as the administrator is concerned, begins to run only from the time of the actual appointment, since there could be no laches before. And in detinue, as the action goes upon the ground of an actual detainer in specie at the time of bringing the action, the action cannot be maintained, it is said, unless the defendant continued to hold the chattel after the date of the plaintiff's appointment. And perhaps it is safe to affirm, that this relation of the title of the administrator to the date of the decease of the intestate, as it is made to prevent injustice and the occurrence of injuries where there would otherwise be no remedy, will only be applied in those cases where it will subserve the ends of justice, and never where it could have the opposite tendency.10

4. The American cases, for the most part, follow the doctrines already stated as obtaining in England, as to the time

tive, and a quitclaim deed from the heir conveys no title before foreclosure. Taft v. Stevens, 3 Gray, 504.

The title of an administrator to the real estate of his intestate vests only from the decree of insolvency, and does not relate back to the decease of such intestate, as in case of personalty. Lane v. Thompson, 43 N. H. R. 320. But in the case of an executor, even before probate of the will, he has the title to all the personalty as trustee for the legatees, creditors, and others, and he is the only representative of the estate. Lane v. Thompson, supra; Shirley v. Healds, 34 N. H. R. 407; Dawes v. Boylston, 9 Mass. 337; Clapp v. Stoughton, 10 Pick. 463. The letters of administration are regarded as the foundation of the authority of an administrator, but in the case of an executor, merely as authentication of such authority. Shaw, Ch. J., in Rand v. Hubbard, 4 Met. 252, 256. 'Murray v. E. I. Co. 5 B. & Ald. 204; Pratt v. Swaine, 8 B. & Cr. 285.

* Crossfield v. Such, 8 Exch. 825. A plea of the statute of limitations, depending upon lapse of time after the decease of the intestate, should aver the existence of an administrator, it is said. Benjamin v. Degroot, 1 Denio, 151; Judge of Probate v. Hairston, 4 How. (Miss.) 242.

Morgan v. Thomas, 8 Exch. 302; Leber v. Kauffelt, 5 W. & S. 445.

of the accruing of the title of the personal representative, whether it be an executor or administrator.11

SECTION II.

THE NATURE AND EXTENT OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR.

1. The executor or administrator may hold the assets in his own right, or en autre droit.

2. The primary presumption is that he holds them en autre droit. He who claims the contrary, therefore, must prove it.

a. and n. 2. The various modes in which this may be done.

3. Assignees in bankruptcy or creditors cannot ordinarily hold them. But lapse of time and acts of ownership will change the estate.

4. A term not allowed to merge, to the detriment of the estate.

5. The marriage of an executrix will not transfer assets in her hands to her husband.

6. An executor who is residuary legatee will become owner after debts secured.

7. The executor or administrator has no title to real estate, except sub modo.

8. In Massachusetts and most of the states the personal representative has no claim to the possession of real estate.

9. The executor may dispose of it by power under the will, but this is personal to himself.

10. Some of the states by statute and construction allow the administrator to recover for the heirs.

11. How far the personal representative may recover upon the bare possession of the deceased.

§ 17. 1. THE nature of the estate of an executor or admin

"Lawrence v. Wright, 23 Pick. 128; Admr. of Bullock v. Rogers, 16 Vt. R. 294; Rockwell v. Saunders, 19 Barb. 473; Johns v. Johns, 1 McCord, 132; Williams v. Seabrook, 3 id. 371. The letters of probate or of administration are not necessary to be proved in the trial of an action upon the general issue in favor of an executor or administrator, unless the plaintiff declares upon his own seisin as executor or administrator, or upon some title which accrued to him as such. In such cases, the authority of the personal representative becomes part of his title to maintain the action. But in all cases where he depends upon a right or title accruing to the deceased, his right to such in his capacity as

istrator, in the assets of the deceased, is, in some respects, peculiar, and not always capable of exact definition. The property is, in the first instance, always a special and limited one. But as the executor and administrator have the right to sell and dispose of any portion of the assets, or to convert them to their own use, thus making themselves chargeable for the amount, and subjecting them thus converted to the same incidents and liabilities, in all respects, as if they had never belonged to the estate of the deceased, it becomes important to consider the question in these two aspects.1

2. The personal representative of the deceased, in the first instance, and until there has been some change in his mode of holding the assets, must always be treated as holding them en autre droit, and not in his own right. It is therefore incumbent upon any one who would attach a right to these assets, in the hands of the executor or administrator, or set up a title derived from them or either of them in his private and personal capacity, to show, that the executor or administrator had ceased to hold them in his representative capacity. This may be shown in various modes.

a. By proving a sale, by the executor or administrator, in the ordinary mode, since such personal representatives of the estate have always, by virtue of their appointment, as such, a full power of sale over all the effects of the deceased; and any title derived from them by way of purchase is of the same force and validity, precisely, as if they were the absolute owners of the same,2 with the single exception, perhaps, of a collusive sale,

executor or administrator is conceded, unless it be denied by special plea. Clapp v. Beardsley, 1 Vt. R. 151; Aldis v. Burdick, 8 Vt. R. 21.

The general doctrine of the vesting of all personal property in the personal representative of the deceased from the date of the decease, is held in the following cases. Beecher v. Buckingham, 18 Conn. 110; Roorbach v. Lord, 4 Conn. 347; Ladd v. Wiggin, 35 N. H. R. 421.

11 Wms. Exrs: 562, et seq.

Whale v. Booth, 4 T. R. 625, n. Lord Mansfield, Ch. J., here said, "The

made by the executor or administrator, to convert the assets of the estate to his own use, and thus defraud the creditors or others entitled to the estate. Ready money, too, becomes the money of the personal representative of the estate, at once, since it has no such identity as will enable courts to treat it as the specific property of the estate. And where the executor pays money for the estate, he may take any portion of the estate in payment, and the part which he elects, not exceeding the amount paid by him, becomes absolutely his property. And where the personal representative pays debts of the deceased, in the order required by law, to the full value of the assets, they all thereby become his property. And it is said, in the English books, that if the executor have a valid debt of the testator, to the full value of the assets, they all thereby become his property, under his right of retainer. But we apprehend that no such absolute right, to the exclusion of other creditors to share ratably in the assets, exists in favor of an executor or administrator, in most of the American states. It has been held, that an executor or administrator having claims against the estate which he represents may submit them to the commissioners appointed to adjust the claims against the estate, or he may charge them in his account as moneys paid towards the debts due from the estate. But whether allowed or not by the commissioners, the

general rule both of law and equity is clear, that an executor may dispose of the assets of the testator; that over them he has absolute power, and that they cannot be followed by the testator's creditors. It would be monstrous if it were otherwise; for then no one would deal with an executor. He must sell in order to effect the will; but who would buy, if liable to be called to an account? It is also clear, that if at the time of alienation the purchaser knows they are assets, this is no evidence of fraud; for all the testator's debts may have been already satisfied; or if he knows that the debts are not all satisfied, must he look to the application of the money? No one would buy on such terms. There is one exception indeed, where a contrivance appears between the purchaser and executor to make a devastavit."

Woodward v. Lord Darcy, Plowd. 184.

Merchant v. Driver, 1 Saund. 307; Chalmer v. Bradley, 1 Jac. & W. 51, 64.