They act as the personal representatives of the deceased, having in their hands his means, for the purpose of discharging his liabilities or executing his contracts, and of carrying into effect his will, if he have left one; and in general, they are liable only so far as these means, or assets in their hands, are applicable to such purpose. But they may become personally liable; and a clause in the Statute of Frauds, hereafter to be spoken of, refers to this subject. In England it is regarded as the peculiar province of a court of equity to administer justice in cases of legacies. (a) The law and practice on this subject varies somewhat in different States in this country.1 It is said that the promise of an executor to pay a debt, "whenever sufficient effects are received from the estate of the deceased, " must be construed to mean sufficient effects received in the ordinary course of administration, according to law. (b) If an executor or administrator receives, as such, a promissory note or bill of the deceased, and indorses the same, he is liable upon it personally. (c) If he makes a note or bill, signing it " as executor," he is personally liable, unless he expressly limits his promise to pay, by the words, "out of the assets of my testator," or "if the assets be sufficient, " or in some equivalent way;(d) but a note or bill so qualified would not be negotiable, because on condition. If an executor or administrator * submits a disputed question to arbitration in general terms, and without an express limitation of his liability, and the arbitral award that he shall pay a certain sum, he is liable to pay it whether he has assets or not. (e) But if the award be merely that a certain sum is due from the estate of the deceased, without saying that the executor or administrator is to pay it, he is not precluded from denying that he has assets. (/)
(a) Deeks v. Strutt, 5 T. R. 690, and see Jones v. Tanner, 7 B. & C. 542; Williams Ex'rs, 2007. Upon the assent of the executor to a bequest of a specific chattel, whether personal or real, the interest in it vests in the legatee, and he may recover it by an action at law. Doe v. Guy, 3 East, 120; Matthews v. Turner, 64 Md. 121; Eberstein v. Camp, 37 Mich. 177; Onondaga, etc. Co. v. Price, 87 N. Y. 547. And see Paramour v. Yardly, Plowd. 539. Whether an executor has assented to a bequest is a question of fact for the jury, and not a matter of law to be determined by the court. Mason v. Farnell, 12 M. & W. 647. In Connecticut and New Hampshire, it has been held that an action at law will lie against an executor upon a promise implied from the possession of assets. Knapp v. Hanford, 6 Conn. 170; Pickering v. Pickering, 6 N. H. 120. But it is believed that in jurisdictions where courts of chancery have existed, the doctrine of the English cases has been followed. See Kent v. Somervell, 7 G. & J. 265; Sutton v. Crain, 10 G. & J. 458; Van Orden v. Van Orden, 10 Johns. 30. - An action at law by a legatee for a legacy on an executor's promise, must be brought against the executor in his personal, not in his representative capacity. Kayser v. Disher, 9 Leigh, 357.
(b) Bowerbank v. Monteiro, 4 Taunt. 844.
1 By statute or practice, in many States in this country an action at law is allowed to obtain a pecuniary legacy, and even the assent of the executor is not always necessary. See Colt v. Colt, 32 Conn. 422, 451; Precott v. Morse, 62 Me. 447; Blackler v. Boott, 114 Mass. 24; Cowell v. Oxford, 1 Halsted, 432; Clark v. Herring, 5 Binn. 33.
When there is a contract with an executor or administrator, by virtue of which money has become due, and the money if recovered will be assets in his hands, he may, in general, sue for it in his representative capacity. (g) And so he may be sued as executor for money paid for his use in that capacity. (h)
Executors should pay the utmost respect to the directions in the will of their testator, but have nevertheless a certain discretion; thus where a will required the executor to invest certain funds in real estate securities, it was held that he might, in the exercise of a sound discretion, deposit the funds in a savings bank. (hh)
An administrator appointed to settle an estate which a former administrator or executor has left unsettled, is called an administrator de bonis non, and if there be a will it is annexed to his appointment as administrator. Among his duties is that of requiring and enforcing a transfer to himself from his predecessor of choses in action belonging to the estate; and for a loss caused by negligence in this respect, he is liable. (hi)
(c) Buller, J., King v. Thorn, 1 T. R. 489; Curtis v. Bank of Somerset, 7 Bar. & J. 25.
(d) Chids v. Monins, 2 Br. & B. 460; King v. Thorn, 1 T. R. 489; Dunne v. Deery, 40 Ia. 251; Woods v. Ridley, 27 Miss. 119; Forster v. Fuller, 6 Mass. 58, where the principle was applied to the case of a guardian. - As to covenants by executors or administrators, made professedly in their capacity as such, see Sumner v. Williams, 8 Mass. 162; Thayer v. Wendell, 1 Gallis. 37.
(e) Riddel v. Sutton, 5 Bing. 200.
(f) Pearson v. Henry, 5 T. R. 6.
(g) Cowell v. Watts, 6 East, 405; King v. Thom, 1 T. R. 487; Marshall v. Broadhurst, 1 Tyr. 348, 1 Cr. & J. 403; Heath v. Chilton, 12 M. & W. 632; Kane v. Paul, 14 Pet. 33; Abbott v. Parfitt, L. 1!. 6 Q. B. 346.
(h) Ashby v Ashby, 7 B. & C. 444. - But he is only liable personally in an action for money lent to him as executor, or had and received by him as executor. Rose v. Bowler, 1 H. Bl. 108; Powell v. Graham, 7 Taunt. 586; Jennings v. Newman, 4 T. R. 347; and see observations of the judges in Ashby v. Ashby, 7 B. & C. 444; Miles v. Durnford, 2 De G., M. & G.641.
(hh) Lansing v. Lansing, 4.'> Barb. 182.
(hi) Wilkinson v. Hunter, 37 Ala. 268.
With respect to covenants relating to the freehold, the rule of law is, that for the breach of a covenant collateral or in gross, whether such breach occur before or after the death of the covenantee, the personal representative must sue and not the heir; (i) for the breach of a covenant which runs with the land, the heir must sue if the breach occur after the covenantee's death, the personal representative if it occur before. (j) The doctrine of a continuing breach, for which the heir or assignee may recover if the ultimate and substantial damage is suffered by him, was established in England by the case of Kingdon v. Nottle, (k) but it has not been adopted in this country. (l) * In general, every right ex contractu which the deceased possessed at the time of his death, passes to his executor or administrator; (m)1