§ 353. In the first place, as to the liabilities of an executor or administrator, for the contracts and acts of the deceased.

1 Barrington v. Tristram, 6 Ves. 345. See Merritt v. Richardson, 14 Allen, 239.

2 Pearson v. Pearson, 1 Sch. & Lef. 10; Wood v. Penoyre, 13 Ves. 334.

3 Ibid.; Freeman v. Simpson, 6 Sim. 75.

4 Clark v. Sewell, 3 Atk. 99; Shirt v. Westby, 16 Ves. 393.

5 Beckford v. Tobin, 1 Ves. 310; Crickett v. Dolby, 3 Ves. 13; Acherley v. Wheeler, 1 P. Wms. 783; Newman v. Bateson, 3 Swanst. 689.

6 Heath v. Perry, 3 Atk. 101; Tyrrell v. Tyrrell, 4 Ves. 1; Crickett v. Dolby, 3 Ves. 10. See Pike v. Walley, 15 Gray, 345.

7 Wynch v. Wynch, 1 Cox, 433; Harvey v. Harvey, 2 P. Wms. 21; Acherley v. Wheeler, 1 P. Wms. 783; Incledon v. Northcote, 3 Atk. 430; Chambers v. Goldwin, 11 Ves. 2; M'Dermott v. Kealy, 3 Buss. 264, note; Mills v. Robarts, 1 Russ. & Myl. 555.

8 Ibid.; Leslie v. Leslie, Lloyd & G. t. Sugd. 1; Boddy v. Dawes, 1 Keen, 362.

9 Knight v. Knight, 2 Sim. & Stu. 490. See Fish's Estate, 1 Tuck. 122.

And in this respect the general rule is that the executor or administrator is liable in a suit upon any matter of contract which could have been enforced against his testator or intestate;1 as the implied promise of an innkeeper to keep safely the goods of his guest.2 And this rule ordinarily obtains, whether the executor or administrator be named in the contract or not,3 and whether the contract be to pay a debt which is uncertain and sounds in damages.4 Yet if the contract be personal in its nature, and the performance by the deceased himself be the essence thereof, his executors will not be liable, unless the contract have been broken by the deceased during his lifetime.5 Thus, if an author contract to write a book, and before completing it, die, his executors will be discharged therefrom.6

§ 354. Again, where the deceased has contracted jointly with others, the contract becomes chargeable only upon the survivors among the contractors, and not upon the executor of the deceased; unless he be the last of several joint contractors, in which case the executor of him who last dies is solely chargeable.7 But if the contract be joint and several, or several, the executor is liable if he be sued in a separate action, but he cannot be sued at law jointly with the other contractors.8

1 Sollers v. Lawrence, Willes, 421; 2 Williams on Executors, pt. 4, B. 2, ch. 1, § 1, p. 1224; Bac. Abr. Executors (P.) 1; Com. Dig. Administration (B. 14); Mellen v. Baldwin, 4 Mass. 480.

2 Morgan v. Ravey, 6 H. & N. 265 (1861).

3 Went. Off. Executor, ch. 11, p. 239, 243; Hyde v. Skinner, 2 P. Wms. 197; Toller on Executors, 463; Co. Litt. 209 a; Quick v. Ludborrow, 3 Bulst. 30.

4 Bac. Abr. Executors (P.) 2; Berisford v. Woodroff, Cro. Jac. 404; Clark v. Thomson, Cro. Jac. 571; Wilson v. Tucker, 3 Stark. 154; Quick v. Ludborrow, 3 Bulst. 30.

5 Hyde v. The Dean of Windsor, Cro. Eliz. 553; Marshall v. Broadhurst,

1 Tyrw. 349; Cooke v. Colcraft, 2 W. Bl. 856; Baxter v. Burfield, 2 Str. 1266; Stebbins v. Palmer, 1 Pick. 71; Harrison v. Conlan, 10 Allen, 86.

6 Marshall v. Broadhurst, 1 Tyrw. 349; s. c. 1 Cr. & J. 403.

7 Godson v. Good, 2 Marsh. 300; s. c. 6 Taunt. 594; Hamond v. Jethro, 2 Brownl. 99; Osborne v. Crosbern, 1 Sid. 238; Towers v. Moor,

2 Vern. 99; Calder v. Rutherford, 3 Br. & B. 302; Foster v. Hooper, 2 Mass. 572.

8 May v. Woodward, 1 Freem. 248; Hall v. Huffam, 2 Lev. 228.

In case of a partnership debt, which is a joint contract, however, executors may be sued in equity, though not in law,1 and the weight of opinion seems to be that a copartnership debt is also several, so as to give to a creditor a right to proceed against the executor, although the surviving partner be solvent;2 but this is doubtful. Yet if the surviving partner be insolvent, the executor undoubtedly would be liable.3

§ 355. Where a testator leaves an unexpired term of years, it vests in the executor, and he cannot ordinarily free himself therefrom without surrendering entirely his office.4 Yet he may do so, if the value of the premises is less than the rent, and there is a deficiency of assets, but while there are assets, he cannot renounce the term, but must hold it until they fail.5 If, however, the executor or administrator do not enter upon the demise, although he is bound to pay the rent as long as he has assets, he may plead plene administravit to an action therefor, if he have exhausted the assets, for he is liable as executor or administrator only in the detinet; 6 but if he enter upon the demised premises, he becomes liable as assignee of the term, and may be sued by the lessor, either personally or in his representative character, and in such case he cannot plead plene administravit, even although he be sued as executor, and the judgment is de bonis propriis. 7 Yet if the land prove to be of less value than the rent, he may plead such fact specially, and pray judgment whether he shall be chargeable in any other capacity than that of executor.1 He will, nevertheless, be chargeable with so much rent as the premises are fairly worth.2 For all rent which has accrued during the life of the testator, the executor or administrator is only liable in his representative capacity, and not personally, and the judgment is de bonis testatoris.3

1 Vulliamy v. Noble, 3 Meriv. 619.

2 Devaynes v. Noble, 1 Meriv. 530; s. c. 2 Russ. & Myl. 495; Sleech's Case, 1 Meriv. 539; Wilkinson v. Henderson, 1 Myl. & K. 582; 2 Williams on Executors, pt. 4, B. 2, ch. 1, § 2, p. 1240.

3 Ibid.

4 Billinghurst v. Speerman, 1 Salk. 297; Bolton v. Canham, Pollex. 125; s. c. 1 Vent. 271; Com. Dig. Administration (B. 10).

5 Went. Off. Ex. c. 11, p. 244, c. 12, p. 290; Wilkinson v. Cawood, 3 Anstr. 909; Reid v. Lord Tenterden, 4 Tyrw. 118; 2 Williams on Executors, pt. 4, B. 2, ch. 1, § 2, p. 1249.