§ 332. We now propose to consider the powers, duties, and liabilities of executors and administrators. And in the first place, as to the powers. An executor or administrator (for their powers are the same after administration is granted to the latter) has the same property in the personal effects and choses in action of the deceased as the latter had while living. He may, therefore, enter the house of the heir or devisee, for the purpose of removing any goods belonging to the deceased, provided the house be open, or the key in the door so that he can unlock it; but he cannot force his way into it by violence, nor can he even break open a chest containing papers, money, or goods belonging to the deceased; and if he cannot obtain them without force, he must bring his action.3 So, also, he has an absolute power to dispose of the whole personal estate, including chattels specifically bequeathed,4 so as to give a valid title thereto to every person dealing with him bond fide and without collusion, even against legatees and creditors.5 He may either mortgage, sell, lease, assign, or pledge all the assets, whether they be goods or choses in action,6 But if the party l Caroon's Case, Cro. Car. 8; Godolph. pt. 2, ch. 9, § 1; Purefoy v. Rogers, 2 Saund. 388, note k; Wentw. Off. Ex. 375; 1 Williams on Executors, pt. 1, B. 3, ch. 1; Hix v. Harrison, 3 Bulst. 210; Killigrew v. Killigrew, 1 Vern. 184; 3 Bac. Abr. by Gwyllim, p. 5, tit. Executors (A.) 2; Toller on Executors, 30, 31.
2 Godolph. pt. 2, ch. 6, § 2; Bac. Abr. Executors (A.) 5; Hills v. Mills, 1 Salk. 36.
3 Cobbett v. Clutton, 2 C. & P. 471; 2 Williams on Executors, pt. 3, B. 1, ch. 1, p. 664.
4 Humble v. Bill, 2 Vern. 444; Ewer v. Corbet, 2 P. Wms. 149; Andrew v. Wrigley, 4 Bro. C. C. 137; Burting v. Stonard, 2 P. Wms. 150; 2 Williams on Executors, pt. 3, B. 1, ch. 1, p. 670; Drohan v. Drohan, 1 Ball & Beat. 185.
5 Whale v. Booth, 4 T. R. 625, n. (a); Nugent v. Gifford, 1 Atk. 463.
6 Scott v. Tyler, 2 Dick. 725; Mead v. Orrery, 3 Atk. 239; M'Leod v. Drummond, 17 Ves. 152; Andrew v. Wrigley, 4 Bro. C. C. 138; Mead v, Byington, 10 Vt. 116.
with whom he deals fraudulently collude with him, - as if he know that the executor is violating his trust, and acts in fraud of parties beneficially interested, - the transaction will be wholly void for fraud.1 The mere fact that a personal creditor of an executor knowingly receives payment of, or security for, his debt out of the assets of the estate, will not of itself render the transaction void at law if there be no fraud ;2 but it will in equity, on the ground that the knowledge on the part of the creditor, that the executor is paying a private debt out of assets not personally belonging to him, is a notice of the misapplication, and necessarily involves the creditor in the wrong.3 Whenever there has been apparent collusion, however, not only creditors but also legatees may question the validity of the transaction.4
§ 333. Where the deceased is the lessee of property for a term of years, it becomes a question what are the rights of the executor in respect thereto. And the rule seems to be now settled, that he is at liberty to underlet or assign the lease, either for the whole term or for a portion thereof, unless the lease to the deceased contain an express condition, that neither he nor his executors nor administrators shall underlet or assign the lease on pain of forfeiture.5 For although a condition be contained therein, forbidding the lessee to underlet, but not expressly in terms forbidding his executor, the executor is not bound by the condition, but may underlet.6 So, also, the death of the lessee does not work a forfeiture of a lease, made on condition that the lease shall not be assigned, but the tenure becomes vested in the executor.1
1 Doe v. Fallows, 2 Cr. & J. 481; Scott v. Tyler, 2 Dick. 725; 1 Story, Eq. Jur. § 423, 424, and cases cited:
2 Whale v. Booth, 4 T. R. 625, n. (a) ; Farr v. Newman, 4 T. R. 642; Doe v. Fallows, 2 Cr. & J. 481.
3 1 Story, Eq. Jur. § 422, 423; Hill v. Simpson, 7 Ves. 166; Bonney v. Ridgard, 1 Cox, 145; Scott v. Tyler, 2 Dick. 724; Mead v. Lord Orrery, 3 Atk. 235; M'Leod v. Drummond, 17 Ves. 154; Wilson v. Moore, 1 Myl. & K. 126, 337.
4 1 Story, Eq. Jur. § 424; Hill v. Simpson, 7 Ves. 152 ; M'Leod v. Drummond, 14 Ves. 359.
5 2 Williams on Executors, pt. 3, B. 1, ch. 1, p. 677; Seers v. Hind, 1 Ves. Jr. 294; Anon., Dyer, 66 a, pl. 8; Phillips v. Everard, 5 Sim. 102; Roe v. Harrison, 2 T. R. 429.
6 Ibid.; Roe v. Harrison, 2 T. R. 425; Doe v. Bevan, 3 M. & S. 357; Sir William More's Case, Cro. Eliz. 26; Thornhil v. King, Cro. Eliz. 757; Lloyd v. Crispe, 5 Taunt. 249.
§ 334. Again, the right of action which a testator or intestate may have upon any choses in action survives to the executor. He may, therefore, bring an action ordinarily upon any obligation, contract, debt, covenant or duty, whether it be under seal or not, or whether it be written or unwritten, which could have been brought by the person he represents.2 But a right to bring an action for a tort to the person does not sur- vive to the executor.3 Nor can he have an action for a breach of contract, which solely affects the person of the testator or intestate, and does not operate to the injury of his personal estate.4 Thus, an executor cannot have an action for a breach of promise of marriage, when no damage has resulted therefrom to the estate ; nor for injuries affecting the life or health of the deceased.5 But he may have an action for all injuries affecting the personal estate, whatever the form of the action may be, whether it be trespass, or trover, or debt on a judgment, provided the subject-matter be damage to the estate, and not solely to the person.6
§ 335. Again, where there is a breach of a contract made with the executor or administrator, he may sue thereupon, either in his own name, or in his representative character.7 So, also, he may bring an action on a judgment recovered by him as executor or administrator, either in his own name, or in his representative character.1 But if he take a bond from a simple contract creditor, he cannot bring an action thereon in his representative character, though it be given to him as executor, because the bond, being an obligation of a higher nature than the simple contract, extinguishes it.2