tlement made upon the wife during coverture will deprive her of the right of survivorship, as she is not competent to make any such binding stipulation at that time, and it could only be effected by some valid contract to that effect.27

4. In the event of the husband surviving the wife, he will be entitled to all her choses in action jure marito, and as her administrator, unless when they were secured to her separate use and she had disposed of them in her lifetime or by will.28 And it seems that in regard to personalty, and the avails of it, which is secured to the separate use and appointment of the wife, if she leave the same at her death undisposed of, it will belong to the husband jure marito, even before, or independent of administration. The American courts hold, also, that the husband, surviving the wife, is entitled to all her choses, as well in action as in possession.80 It has been before stated, that if the husband survive the wife, so that his marital right to her personal estate attaches, by survivorship, and then die before taking administration upon his wife's estate, or after taking administration but before recovering her personal estate, whether in possession or action, administration, either original or de bonis non, must be taken upon the wife's estate, but such administrator will, after

* Lanoy v. Duke and Duchess of Athol, 2 Atk. 444, 448. This question is extensively considered in Picquet v. Swan, 4 Mason, 443. See also The Fourth Eccl. Society v. Mather, 15 Conn. R. 587, where it was held, that no agreement, made between husband and wife during coverture, would in legal effect transfer, by way of gift or sale, the property in a note or other chose in action. And it seems that the assent of the wife's father, guardian, or trustee, to any such contract or settlement, will not give it any greater force, as against the wife, if she survive the husband. Stamper v. Barker, 5 Madd. 157.

"Stewart v. Stewart, 7 Johns. Ch. 229; Clay v. Irvine, 4 W. & S. 232. But in some of the states it is held that the wife's personal property, upon her decease during the life of her husband, goes to her next of kin, the same as a feme sole. Curry v. Fulkinson, 14 Ohio, 100; Dixon v. Dixon, 18 id. 113; Holmes v. Holmes, 28 Vt. R. 765.

recovering her personal estate, hold the same, in trust, for the husband's personal representative.31

5. In all cases where the husband had actually reduced the wife's choses in action to his own possession before her decease, he should sue in his own name for the recovery of them.32 And in all other cases he may recover them as her administrator for his own use,32 or in case of a joint judgment he may bring scire facias as survivor.33 Where the wife is entitled, as joint tenant, to choses in action in reversion, and dies during the continuance of the estate for life, her interest will go to the surviving joint tenant.34

Elliot v. Collier, 3 Atk. 526; s. c. 1 Ves. Sen. 15; 1 Wil. 168; Cart v. Rees, in Squib v. Wyn, 1 P. Wms. 381.

321 Wms. Exrs. 780, 781.

33 Co. Litt. 351 b; Forbes v. Phipps, 1 Eden. 502; Hore v. Woulfe, 2 Ball & B. 424.

"Trusts of Barton's Will, 10 Hare, 12.

CHAPTER VI.

REMEDIES BY THE EXECUTOR OR ADMINISTRATOR.

SECTION I.

CAUSES OF ACTION ACCRUING TO THE DECEASED, BOTH AT LAW AND IN EQUITY.

1. The personal representative may sue upon all causes of action not strictly personal.

2. In general, he must sue upon causes of action in favor of deceased, as executor, &c.

3. The difficulty of determining this question illustrated by a late English case. 4. Those executors only required to join in the action to whom letters have issued. 5. In causes of action accruing to the estate after the decease, the personal representative may sue, either in his private or representative capacity.

6. But causes of action in favor of the estate cannot be joined with those which are

not.

7, 8. When profert required. Representative character proved by the original letters, or a duly authenticated copy of the record.

9. Set-offs existing before the decease allowed at law, others of equitable cognizance.

10. Upon causes of action accruing to deceased, statute of limitations runs from time

of accruing.

11. New promise to the executor, &c., will remove the bar of statute of limitations. 12. Equitable relief pertains to the settlement of estates, but is largely enforced in the probate courts, although not exclusively there.

13. Courts of equity commonly enforce their own final decrees. But in some cases it is more consistent that they act in aid of the probate courts.

14. Courts of equity will enforce discovery of estate, unless the probate courts can

do it.

15. The recent English statute enables executors, &c., to remove doubts by resort to courts of equity.

16. One joint executor may sue another in equity, but not at law.

17. Statute of limitations and set-offs allowed in equity upon analogy to law.

18. Courts of equity here will not interfere to control the distribution of assets.

§ 27. 1. As a general rule it may be said, that the executor or administrator may sue upon every cause of action which existed in favor of the deceased, and which does not perish with the person. This is, indeed, nothing more than the merest truism, since, if the cause of action survives, it must necessarily go to the personal representative. Hence, it would seem, that any extended enumeration of the cases under this head would naturally carry us over the same ground which we have before discussed, under the head of the estate of the executor or admin. istrator in the choses in action of the deceased.1

2. The principal difficulty under this head arises upon the question, whether the action shall be brought by the personal representative, in his personal and private, or in his representative capacity. This question is, in general, answered by determining whether the cause of action accrued in the lifetime of the deceased, or since the decease. And although, in the main, that question is susceptible of a clear and easy solution, that is not always the case, since the cause of action may arise from acts of the testator or intestate, and at the same time not having been perfected during his lifetime, the ultimate right of recovery, the veritable cause of action, may accrue after the decease.

3. This subject is very fairly illustrated by a recent English case.2 A special contract was entered into by B to do the

1 Ante, § 24 et seq. We have before pointed out the remedy, where one or more of joint promisees or obligees decease, but leaving others surviving. Ante, § 25, pl. 14. But where the interest of the deceased in a covenant was entirely several and not joint, although the form of the covenant was joint, the cause of action will survive to the personal representative, notwithstanding there may be other covenantees surviving. Eccleston v. Clipsham, 1 Saund. 153, and notes. See also Sharp v. Conkling, 16 Vt. R. 355, 358, where the cases are extensively discussed.

The same rule, as to the surviving of causes of action in favor of joint owners, or joint tenants, applies in regard to actions ex delicto, as before stated in regard to those ex contractu. 2 Wms. Exrs. 1691.

Crosthwaite v. Gardner, 18 Q. B. Rep. 640; s. c. 12 Eng. L. & Eq. 474.

whole of a certain work for G for a stated sum. Before the completion of the work B died, and an arrangement was made between G and C, who afterwards became administrator of B, for the completion of the work, which C did on his own account. C brought an action, on the common indebitatus counts, for that portion of the work done by B, alleging that G was indebted to B in his lifetime, but the court held, that, as the contract was entire, no cause of action accrued during the life of B, the work not being completed; but that the right of recovery for the work done by B during his life, grew out of the arrangement made subsequent to his death, and that therefore the cause of action was misdescribed.

4. It is said in the English books that if there be more than one executor they must all join in the action, although some of them be within age, or have disclaimed the trust. But no such rule of law could be maintained in the American courts, those only being regarded as executors to whom letters testamentary have issued.

5. There are many causes of action which accrue to the personal representative after the decease of the testator or intestate where the action may be brought either in his personal or representative capacity, at his election. The general rule upon the subject is, that in all cases where the judgment when recovered

The rule in Vermont is, that upon causes of action accruing to the deceased the personal representative must sue in his representative capacity. Adams v. Campbell, 4 Vt. R. 447. So also in Pennsylvania. Kline v. Guthart, 2 Penn. R. 490-492.

* 2 Wms. Exrs. 1692. In some of the states the English rule is still adhered to. Hill's Exr. v. Smalley, 1 Dutcher, 374; Bodle v. Hulse, 5 Wend. 313; Judson e. Gibbons, id. 224. But that seems to be giving the will a degree of force to which it is scarcely entitled, independent of the probate. Upon the same prineiple a sole executor, who renounced the trust, where an administrator with the will annexed had been appointed, must still be joined in the suit, which we presume was never claimed. The rule has been changed by statute in New York, and placed on the basis indicated in the text. See also Moore v. Willett, 2 Hilton, 522.