tion so sacred, or so clear of all defect of authority, but that positive fraud or collusion will avoid it. And the forms and endeavors of such collusion are so diversified that it would be idle to attempt to enumerate them. 14. It is scarcely necessary to say that it is competent for the personal representative to indorse notes and bills made payable to the order of the decedent.32 And the executor may sell choses in action, belonging to the estate, at a discount, without raising any implication of fraud.33 15. Whenever a power of a special and personal character is reposed in the executor or administrator, in the exercise of his own judgment and discretion, he cannot delegate the office to another delegatus non potest delegare. Therefore it is said. * Robinson v. Stone, 2 Str. 1260; s. c. nom. Rawlinson v. Stone, 2 Burrow, 1225; Walworth, Chancellor, in Hertell v. Bogert, 9 Paige, 52. * Gray v. Armistead, 6 Ired. Eq. 74; Bradshaw v. Simpson, id. 243; Wheeler v. Wheeler, 9 Cow. 34. And in the case of the bonâ fide payment of a debt due the estate to a married woman, executor, where the husband did not assent to her acting as such, or receiving the money, and where letters were subsequently granted to the co-executor and refused to her, it was held to have discharged the debtor as against the co-executor. Pemberton v. Chapman, 5 Jur. N. s. 567, in the Exchequer Chamber, affirming the decision of the Court of Queen's Bench; s. c. Ellis, B. & El. 1056. In this case the court were not fully agreed upon the point of the married woman having become executor, her husband having a negative upon her acceptance and not having given his assent. But the majority of the court, including also Mr. Justice Williams, of whom his brother Willes, said he had been consulted and concurred in the judgment, although not present at the argument, and that he "probably had considered the general subject more fully and deeply than any man alive "; the majority of the court, thus sustained, held the payment valid. It is not important here to suggest, that probably the same result could not be obtained in this country, where payments are not expected to be made to the executor, as a general thing, or under special authority, until after the probate of the will and the granting of letters of administration. This case seems to have gone considerably upon the bonâ fide character of the payment, the debtor having no knowledge of the dissent of the husband, although he did know the executrix to be a feme covert. that where a power of sale is given, it cannot be executed by attorney.34 16. An executor or administrator may sometimes claim by election, as where the title passes by grant to the executor, and is to be limited or restricted by a subsequent election. It is said that cannot be done by the personal representative, but that the election must be made by the deceased in his lifetime, where no title vests until after the election. We apprehend that where the election depends upon the personal taste and judgment of the donee, it must be made by the party himself, as where the gift or sale is of such a horse as A. B. shall prefer, it must wholly fail unless the election is made during the lifetime of the donee or vendee. But if a contract be payable in the alternative, at the election of the payee, the personal representative may make the election. So, also, as to the continuance of a lease from year to year.85 17. The distinction between legal and equitable assets, which is considerably discussed in many of the English cases, is not very material to be considered here. The distinction has generally been regarded as founded upon the nature of the tribunals by which they are administered.36 But in a recent case 37 in the House of Lords, it was declared by Lord Cranworth that anything which an administrator is entitled to receive, as such, virtute officii, can never be equitable assets; and in considering whether assets are legal or equitable, the question is not whether the estate is recoverable through the agency of the courts of law, or of equity, but whether it is money which the personal * Combe's Case, 9 Co. 75 a; Berger v. Duff, 4 Johns. Ch. 368; Williams v. Mattocks, 3 Vt. R. 189. 35 2 Wms. Exrs. 850, and cases cited. 1 Story, Eq. Jur. § 552, and cases cited, where the learned author thus defines the distinction: - 66 They are called equitable assets, because in obtaining payment out of them, they can only be reached through the aid and instrumentality of a court of equity." 37 Attorney-General v. Brunning, 6 Jur. N. s. 1083. representative is entitled to recover independently of any directions of the testator.88 It does not readily occur to us at the moment, how the distinction between legal and equitable assets can be of any practical effect in the settlement of estates in this country, where all the property of the testator is primarily liable for the payment of debts, and where, by consequence, real estate may equally be reached, without any direction of the testator for that purpose, as with it. The question is somewhat discussed by Chancellor Kent, in an early case; 39 but without presenting any intelligible distinction which could now be maintained. We conclude that all assets, whether legal or equitable, which are in law applicable, in any form or by any court, to the payment of debts, must be applied in the due course of administration, without regard to any special charge by the will. SECTION III. EXECUTOR OF AN EXECUTOR. 1. The English rule does not prevail here. 2. The estate, upon decease of the sole executor, is represented by the adminis trator de bonis non. 3. He cannot discharge any special trusts without special appointment. § 33. 1. THE English rule, that an executor of an executor shall perform the trusts reposed in the first executor, is so completely abandoned in this country, that we shall occupy no space in discussing the provisions of the law in regard to that question. 2. As we have before stated, where a sole executor deceases, the estate must be represented in future by an administrator de bonis non, and if the executor have wasted the estate, his executor will be liable to respond to the administrator de bonis non * 1 Story, Eq. Jur. § 552 b. * Moses v. Murgatroyd, 1 Johns. Ch. 119, 130. to the extent of all the specific assets of the first estate coming to his hands, and also for any liability incurred by the first executor beyond that, provided he have assets applicable to that purpose.1 3. The administrator de bonis non will not be able to discharge any special trust reposed in the executor, unless by special authority conferred for that purpose.2 SECTION IV. FEME COVERT EXECUTRIX OR ADMINISTRATRIX. 1. As a general thing, in America, the authority of a feme sole executrix or administratrix ceases upon marriage. 2. The rule of the English common law continued the office after marriage, but conferred the effective power upon the husband. 3. Whenever or however the authority of an administration ceases, the remain ing portion of the estate devolves upon the administrator de bonis non. § 34. 1. As a general rule, in the American states, where a feme sole is executrix or administratrix at the time of marriage, her powers cease from that time, and an administrator de bonis. non must complete the administration of the estate,1 unless there are other executors or administrators, in which case the administration will devolve upon them. 2. But where no statutory provision exists upon the subject, the marriage of a feme sole will not probably have the 1 Foster v. Wilber, 1 Paige, 537. It will be seen by this case and the authorities cited, that while the ecclesiastical courts had full jurisdiction to call administrators to account, they had no such jurisdiction in regard to executors. But no such distinction ever obtained in this country, since the separation from England. 2 Ross v. Barclay, 18 Penn. St. 179; ante, § 10. 1 Gen. Stat. Mass. ch. 101, § 4. The same rule obtains in some, and it is presumed in most, of the states, by express statutory provision. Gen. Stat. Vt. ch. 51, § 13. effect to terminate the office. She will retain the office in name, but the husband will, in fact, possess all the effective power of administration. The reason assigned for this is, that the husband being responsible for the acts of his wife, even in an official or fiduciary capacity, he must of necessity possess the power of controlling her acts, for his own security. The true reason will be found to exist in what the common law regards as the indispensable necessity to the proper creation of the family relation, - unity of authority and singleness of action, without which the result will ordinarily be confusion and discord. We believe that there is great wisdom in this rule of the common law; and that it is more important to the quiet and good order of society than is commonly understood. And it is certain that the same rule obtains, as one of the fundamental canons of Christianity, everywhere prominently avowed and put forth, both in the oracles of the New Testament and in the history of the Church. But the doctrine of the Roman Civil Law is something in contrast with this unity of authority and action in families; and it must be confessed that the rules of law deduced from Pagan Rome are becoming more popular, in America, than those of the English common law, and of the English and other national churches throughout the world. We believe this tendency here is more owing to the desire of keeping the wife's estate safe from the casualties resulting from the husband's business, than from any other cause; and to that extent we do not regard the tendency as objectionable, unless carried to a fraudulent extent. The American states have, to a great extent, escaped from all embarrassments in regard to the extent of the authority of femes sole executors or administrators after marriage, by declaring that it shall cease.2 * 2 Wms. Exrs. 867 – 870, and cases cited; Derbishire v. Home, 5 DeG. & Sm. 702, 709; s. c. 3 DeG., M. & G. 80; Lee v. Armstrong, 9 M. & W. 14; Procter v. Brotherton, 9 Exch. 486. The rule of the common law obtains in New York, |