of the American states. It is stated by Parker, Ch. J.,12 that a landlord has no right of distress for rent in Massachusetts, and we are sure the same is true in some others of the New England states, and we presume in all of them. In New York it seems to have existed from the earliest times.13 It exists also in Pennsylvania,14 and in many of the other states west and south.15 But the remedy has long since become a form of execution merely, to be carried forward by the officers of justice, and not by the party 16 on his own sole responsibility. In New York the assets of the estate are considered the common property of all the executors.17 And where lands are devised to three persons, and to the survivor or survivors in trust, and the same three persons are made executors, all living at the time must join in a conveyance, in order to pass the title, and one of the number acting as sole executor cannot convey the title.18 • SECTION II. DISPOSING OF THE ASSETS. 1. The executor, &c., has general power to dispose of all the personal effects of the deceased. Exceptions. 2 Things specifically bequeathed, after the assent of the executor, not under his control. But a bonâ fide purchaser of the executor will acquire good title. 3. And if the property consist of securities payable to two executors, who are special trustees under the will, one of them cannot dispose of the securities without the privity of the other. 4 and note 10. The executor, &c., prima facie entitled to pledge or mortgage the effects. "Wait, Appellant, 7 Pick. 100. 12 Lansing v. Rattoone, 6 Johns. 43. "Blanche v. Bradford, 38 Penn. St. 344. "Hatfield v. Fullerton, 24 Ill. Rep. 278. "Lansing v. Rattoone, 6 Johns. 43, citing Baron Gilbert. See also Grubb v. McCoy, 2 Met. (Ky.) Rep. 486. "Paff v. Kinney, 1 Bradf. Sur. Rep. 1. "Williams v. Mattock's Adm. 3 Vt. R. 189. 3. But where the party making advances is put upon inquiry his title may be impeached. 6. The purchaser cannot accept the assets in payment or security of a debt due himself. n. 16. Nor in any case where he understands the executor is acting mala fide. 7. Executor cannot purchase himself. All profit thus made belongs to the estate. 8. The power to sell leaseholds does not justify under-letting them. 9. Conditions, and covenants against alienation, do not extend to executors and administrators. 10. Equity will not relieve against forfeitures incurred by alienation. 11. The purchaser of assets, charged specially, must see to application of purchase money. Query? 12. The true rule seems to be, that the payment of the money to him who is selected to make the application will be sufficient. 13. But actual fraud upon the power will always vitiate the title of the purchaser. 14. Executor, &c., may indorse bills and notes; or sell choses in action at a dis count. 15. A special and personal trust or power, reposed in the executor, cannot be delegated. 16. In these cases, where an election is not personal, it devolves upon the personal representative. 17. The distinction between legal and equitable assets considered. Not important here. § 32. 1. THERE is no proposition in the law better established than that the personal representative may sell any or all the personal estate of the deceased. This is briefly but fully declared by Lord Mansfield,1 Ch. J., and is sufficiently set forth by us in another place. There being no question in regard to the general right of the executor or administrator to dispose of the personal property and effects belonging to the estate represented by them, it is only important to inquire into the precise qualifications and limitations which it has become necessary to affix to the rule in the course of its practical administration. 2. It has been made a question whether the personal répresentative can so dispose of chattels specifically bequeathed, as to 1 Whale v. Booth, 4 T. R. 625 in note to Farr v. Newman; ante, § 17, pl. 2, and note. Ante, § 17. convey good title against the legatee, where there are no debts against the estate requiring the sale. But some of the more recent cases than Humble v. Bill 3 seem to recognize the right of the executor, notwithstanding the reversal of that case. Upon principle, it would seem, as the title of the specific legatee is perfected by the assent of the executor to the bequest, which is a formal relinquishment of all claim upon the specific thing for the payment of debts, that after this assent the executor could not so dispose of the thing thus specifically bequeathed as to create a valid title, and such is evidently the opinion of two very eminent law writers. But as the purchaser of the executor does not derive title under the will, he will not be affected with notice of the specific bequest; and unless the executor had given a prior assent to the bequest, so as to perfect the title of the legatee, we perceive no reason why the title of a bonâ fide purchaser of the executor may not be held good against the legatee or his assignee; and such would seem to be the general course of the more recent decisions upon the point.7 3. But it has been determined, upon just consideration, that where a note or other security is given to two or more executors jointly, who hold the same under special trusts, that the legal title is in all the executors the same as if it had been given to them as trustees under an ordinary trust, and the concurrence of all the payees or trustees is necessary in order to transfer the legal title of such note or security to a purchaser.8 This was the * Humble v. Bill, 2 Vernon, 444, which in the Court of Chancery is decided în favor of the right of the executor to mortgage a term specially bequeathed, and that the legatee should redeem or be foreclosed; but the decree was reversed in the House of Lords. * Ewer v. Corbet, 2 P. Wms. 148; Burting v. Stonard, id. 150; Langley v. Lord Oxford, Ambler, 17. ⚫ 1 Wms. Exrs. 840, and note; 2 Sugden on Vendors, 56. * Brush v. Ware, 15 Pet. U. S. Rep. 93. ' Spackman v. Timbrell, 8 Sim. 253; Hertell v. Bogert, 9 Paige, 52. • Hertell v. Bogert, 9 Paige, 52. case where two executors and trustees, under a power contained in the will, sold a part of the real estate of the testator, and took a bond and mortgage upon the property to secure the purchasemoney, payable to them jointly. Afterwards one of them, without the privity of the other, and when the money was not wanted for the purposes of the trust, sold and assigned such bond and mortgage, and misapplied the proceeds, and failed, being largely indebted to the estate. It was held not to be a valid sale and transfer of the legal title; and that the purchaser could only claim to be protected in equity, so far as the money or securities given by him to the trustee of whom he purchased could be shown to have come to the use, or in aid of the purposes of the trust. 4. It seems to be considered in the English courts, that because the executor and administrator have full power to dispose of the effects of the estate by an absolute sale, that it must follow as a necessary consequence, that they may create a valid lien or mortgage upon the same. But the cases just cited, and some others already referred to in this section, are carefully reviewed by Lord Loughborough, Chancellor, in the case of Andrew v. Wrigley,10 and their extension of the powers of the executor in ' Lord Hardwicke in Meade v. Orrery, 3 Atk. 235, 239; Lord Thurlow in Scott v. Tyler, 2 Dick. 712, 725 ; Lord Eldon in M'Leod v. Drummond, 17 Vesey, 154. 10 4 Br. C. C. 125, and Mr. Eden's note upon the point, which is too valuable to be omitted. "The doctrine and cases upon this subject were much discussed in the late cases of Hill v. Simpson, 7 Vesey, 152; Hawkins v. Taylor, 8 Vesey, 209; M'Leod v. Drummond, 14 Vesey, 353, affirmed by Lord Eldon upon appeal, 17 Vesey, 152. The extent of the power of the executor over the property which he takes from his testator, as collected from several passages in the very luminous judgments delivered in those cases, may be thus shortly stated. Though executors are in equity mere trustees for the performance of the will, yet, in many respects and for many purposes, third persons are entitled to consider them as absolute owners. The mere circumstance, that they are executors will not vitiate any transaction with them; for the power of disposition is generally incident, being frequently necessary; and a stranger shall not be put to examine, whether in the particular instance that power has been discreetly exer disposing of the assets in his hands considerably limited. We are not prepared to say, that, as a general rule, the executor or administrator may not have power to mortgage or pledge the effects belonging to the estate, to a bonâ fide mortgagee or pledgee, who in good faith advances money in consideration of the contract and assignment of the executor, &c. It would seem that a mortgage or pledge under such circumstances, with nothing more, must be held valid, since no stranger can safely be said to be bound to know, from the mere fact, that the effects form part of the assets of the estate, that the personal representative, who attempts to dispose of them in that mode, is dealing unfairly with them, and going beyond the lawful demands of his office, since there are many occasions where the executor or administrator may have just reason to raise money in that mode, to meet the exigencies of his position. He may be compelled to pay a mortgage debt upon real estate, at a particular time, to save a foreclosure of the title, and the time may not be sufficient to effect that by a sale, or there may be other conditions or limitations which may impose a similar necessity upon him. And if there are any such emergencies sufficient to explain his conduct to the purchaser, he will not be regarded as acting in bad cised. In a greater variety of cases, also, an executor may be taken to be entitled even to pledge the assets. But though dangerous to restrain the power of purchasing from him, it seems to be clear, that the assets, when known to be such, shall in no case be applied to the payment of the executor's debt; and even if it appears that the person advancing the money upon a pledge of the assets has any knowledge of an intended application, not conformable to or connected with the character of executor, he shall be held liable; for though there is considerable difference between advancing money at the time upon security, and taking a security in discharge of an antecedent debt, yet, if it should appear in the transaction, that the borrower is about to apply the money raised on the testator's property to objects with which his affairs have no connection, the lender shall be held answerable." It seems to be recognized as a settled principle of the English law that the executor may assign the assets of the testator for the benefit of creditors. W. & S. Banking Co. v. Marston, 7 H. & N. 148. |