THE ASSETS.
As it is of very little use for a man to find himself legatee of an
estate, out of which there is nothing to pay his bequest, so also
is it an equal evil if notwithstanding the existence of property to
constitute an estate the assets, or the produce of that property be
either uncollected or wasted, so that the legatees derive no benefit
from them. One of the first things, therefore to be considered, is,
whether there be any assets; and next, whether the executor has
collected them for distribution. From the various nature of property
arising out of the complex state of society, and the different periods
and the different circumstances at which, and out of which that state
of society and its customs arose, the legislators of the country in
their care to secure the safe possession and the right appropriation
of property, have endowed it with peculiar privileges, and made it
subject to certain contingences according to its kind. Hence it is that
the heir-at-law takes the whole of a property in fee tail, or entailed
freehold, as it is called in popular language, to the exclusion of
every one else; hence it is on the other hand, that by the custom of
_gavel kind_ which prevails in the county of Kent, all the children
of a proprietor are considered as heirs-at-law and inherit in equal
proportions; hence it is that copyholds are subject to different
rules to freeholds; and hence it is, also, that the several portions
of a man’s property, after his death, are often liable to different
contingencies, and have obtained the different denominations of assets.
These have been usually distinguished by the several terms of _real,
personal legal, and equitable_, assets. They may be more broadly
divided into assets, derived from real property, and those arising
from personalty; the real and equitable being chiefly dependant on
the former, and the legal, and personal from the latter of these two
species of property.
REAL ASSETS.
Though real assets more often partake of an equitable character, that
is, are subject to distribution according to the custom of a court of
equity, yet, there are also real assets which are of a legal nature
or subject to the rules of the common law. Until within a few years,
real estate could not be touched for the satisfaction of debts of
common specialty or simple contract; but that system is now obviated,
and funds which have descended to the heir in _fee simple_, that
is unentailed freeholds, and even an advowson so descended, may be
appropriated to the benefit of specialty creditors. An estate _pur
autre vie_, or an estate held upon the life of another, when there is
no special occupant, goes, according to the statute of frauds, and if
does not it descend to the heir through occupancy, will fall to the
executor and be assets in his hands for the satisfaction of claims, and
by the 14 Geo. II., c. 20 will be appropriated like any other chattel
interest. An estate _pur autre vie_ in incorporeal hereditaments--as a
rent, for instance, granted by one person to another, during the life
of a third party, and the grantor of which dies during the life-time of
the person who holds the property--goes to the executor.
“A., tenant for three lives to him and his heirs, assigned over his
whole estate in the premises by lease and release to B., and his heirs,
reserving rent to A., his executors, administrators, and assigns, with
a proviso that on non-payment, A., and his heirs might re-enter, and B.
covenanted to pay the rent to A., his executors and administrators; the
rent was held payable to A.’s executors and not to his heir, on the
ground that there was no reversion to the assignor, and the rent was
expressly reserved to the executor.” So that in the case of the heir
having entered, he would have been only trustee for the executor.
If a testator be a lessee, his executor will take the fish, rabbits,
deer, and pigeons, as accessory chattels partaking of the nature of
their principals, the land, the warren, the park, and the dove house.
If an executor succeeds to a lease of land for years, the assets are
comprised in the clear profits; but a reversion of a term forms assets,
according to its utmost value. And if he renew the lease, that will
form assets as well as the old lease. Should an executor be possessed
of a term in right of his office, and he purchase the reversion of the
freehold, he is accountable for the assets of the term, although it be
extinguished; and so also if the executor of the lessee, surrender the
lease, it shall be considered as assets, notwithstanding the term is
extinguished. A person held a term in right of his wife as executrix,
and he purchased the reversion; the term was extinct so far as she was
concerned, but it was considered with respect to a stranger, that is,
any other person, as assets in her hands. But where an individual, on
the marriage of his son, settled a lease for years, on him for life,
and on his wife, and then on the issue of the marriage; and the son
covenanted to renew the lease, and to assign it on the same trust; and
he renewed the lease in his own name, but made no assignment to the
trustees and died; the lease was held to be bound by the agreement on
the marriage, and that it was not assets, nor liable to his debts,
nor of course to his legacies. Neither is a lease for years granted
on condition of being void on non payment of rent, which occurs, and
the lessee afterwards dies. As little so is a term in the hands of the
executor of a _cestui que trust_.
A term for years held by a testator, cannot be relinquished by his
executor, when he has assets, unless he relinquishes the office
altogether; but he is bound to continue tenant as long as the term
continues, or as long as his funds hold out, if they will not continue
the whole term.
A leasehold in Ireland is considered as personalty in the property of
an English testator dying in England. A lease granted to A. and his
executors, and accordingly to the executors after the death of A.,
becomes assets. If a lessor also, covenant to renew a lease at request
of the lessee, who, however, dies within the term without making the
request, but it is made by his executors, the lessor is bound to renew
for the legal rights of the deceased survivor to his representatives,
whom the law presumes to be another self, and therefore implied
although not named.
The grant of the next presentation to an advowson during the life of
the grantee does not convey the presentation to his executors if he die
before the church becomes vacant, for it is equal to a lapsed legacy.
If rent be reserved on a lease for years, and the rent be in arrear
at the time of the lessor’s death, it is assets in the hands of the
executor. Trees felled during his life on land held by a lessee,
without impeachment of waste, are assets to his executor after his
death; but unless they are severed during the term, they belong to the
lessor as owner of the freehold.
The executor does not come into any corporeal hereditaments, as leases
for years of houses or lands, until he is in actual possession,
and they cannot therefore until then be esteemed as assets: the
dispossession of incorporeal hereditaments, such as leases of tithes,
is constructive, and ensues immediately on taking office; for it is
evident that in these there can be no personal entry, and as soon
therefore as tithes are set out, however remote the goods may be, he is
in legal possession of them; but if the lease be of a rectory, where
there are glebe lands as well as tithes, it would seem that he is not
in possession of the tithes till he enter upon the lands, which being a
corporeal hereditament, gives an opportunity of actual entry.
PERSONAL ASSETS.
Personal assets are either moveables not attached to the land or their
produce, and derive their appellation from being either attached to
the person of the owner, or from being capable of being moved about
with him. They are either animate as living creatures, or inanimate,
as vegetables, and include all the vast variety of property which
necessity or luxury has called into existence. Properly speaking they
are not assets until converted into money for the payment of debts or
legacies, though they may certainly constitute the subject of specific
legacies. As however they either form subjects of bequest, as they
are, or the means by which it is to be produced, we will follow the
arrangement into which they naturally fall.
Animate _chattels_, as before they are converted into assets they are
properly called, are divided into _domitæ_ and _feræ naturæ_, or such
as are tame or reclaimed, and such as are wild; the former admitting
of an absolute, the latter of only a qualified ownership--the former
embracing all kinds of farming stock and poultry, the latter all those
which, unsubdued to confinement, still enjoy their natural liberty,
and therefore cannot pass to representatives. Such also are fish in
any natural stream or reservoir of water; but fish in a tank, as well
as creatures in confinement, are capable of sale, and therefore of
transfer: and this is the case also with all the young, the weak, or
the lame, of all those wild creatures which, either from feebleness
or any other cause, cannot assume their natural liberty. Under this
specification come also all hounds, greyhounds, and spaniels, and all
the accessaries of falconry or the chase, as well as every thing kept
either for curiosity or from whim. An executor is also entitled to
appropriate as assets deer in a park, hares or rabbits in an enclosed
warren, doves in a dovecot, pheasants or partridges in a mew, fish in
a private pond, and bees in a hive of the testator, where lessee for
years of the premises to which they respectively belong, so long as
they continue in a state of subjugation, and no longer; for as soon as
they obtain their natural freedom, they pass into the class of _feræ
naturæ_, and are beyond the reach of his domain.
Vegetable chattels which may be appropriated as assets are the fruit of
a tree or plant when separated from the body of the thing that bears
it; or the tree or plant itself when severed from the ground, as grass
that is cut, and trees which are felled, or branches which are lopped.
Of the same character also are all those vegetable productions which
are produced by the exertion and skill of the owner or occupier, and
which are technically called emblements; extending to roots planted
or other artificial profit, and including corn, growing crops, hops,
saffron, hemp, flax, clover, saintfoin, and, in short, every other
yearly production in which art and industry combine with nature. The
executor has also been held entitled to hops though growing on ancient
roots, as cultivation was necessary to produce them. Manure, in a heap,
also, before it is spread on the land, is personalty; but afterwards
it becomes attached to the soil, and is consequently indirectly the
property of the owner of the soil.
The inanimate chattels, which constitute personalty, are furniture,
merchandize, money, (including stock in the funds, shares in public
companies, and property of similar kind) pictures, clothing and jewels,
and, in fact, every thing that can be moved from place to place. The
presentation to a living, if the living be occupied at the time of the
testator’s death, is, as has been stated, property of a real nature,
and of course goes to the heir; but if it be open or unoccupied, it
forms a personal chattel, and becomes assets in the hands of the
executor. Copyrights and patents are also considered as personal
chattels.
All these things become assets in the hands of the executor, in
whatever part of the world they may be, at the moment of the testator’s
death. But in order to their becoming so, it is necessary that the
testator must have professed an absolute property in them; and
therefore it is, that, if he, having been the obligee of a bond, has
assigned that bond with a covenant not to revoke, it does not become
part of his assets. Nor are goods bailed, as it is called, or delivered
for a particular purpose to a carrier, or to an innkeeper, to secure
in his inn; nor goods pledged, until the time of redemption shall have
passed. Neither are the goods of an outlaw assets at the time of his
death, for his executor has no right to touch them.
Chattels, however, whether real or personal, may be held in joint
tenancy as well as in common; so if a lease be granted, or a house be
given to more than one person absolutely, they are joint tenants of it,
and unless the jointure be severed, it shall be the exclusive property
of the survivor. But if the jointure of interest be severed by one
of the parties disposing of his share to another, that other person
becomes, with the previous owner or owners, a _tenant in common_,
instead of a _joint tenant_; and the principal of survivorship does
not hold, but the chattel, or the portion of it which belonged to
the testator, whatever it may be, falls to the executor, and becomes
assets. Thus, money left to two parties to be divided between them,
occasions a tenancy in common, because it can be divided without
injury to either; but not so with a horse or a house, for that could
not be severed without destruction to it, and a consequent defeat of
the testator’s will. But on the argument of convenience and justice,
and for sake of encouraging husbandry and commerce, the goods of
a warehouse or a shop, or the stock of a farm, although occupied
jointly, will, in the absence of any express contract to the contrary,
be considered as property in common; and on the death of any part
owner of such property, his share would fall to his executors, to
meet the claims of legatees, according to the will. So also, on that
principle of personalty which the law invariably recognises, and
that distinction which it invariably observes between the rights and
actions of individuals, and the attachment and nature of property,
the executor of a testator who has been joined in any action for the
recovery of property, cannot take his place in the action and carry it
on, however indolent or negligent the survivor in the action may be in
endeavouring to bring it to a fortunate conclusion; but he has a right
of action against him for the injury sustained by the property through
his negligence, and also to oblige him to account when the action
has terminated. In such a matter a court of equity will in general
interfere.
Occasionally it happens that chattels real are changed into chattels
personal, and thus become available for the payment of legacies; and
chattels personal are sometimes changed into chattels real; and
thus the legatees are deprived of the amount for the liquidation of
their claims. The former instance occurs when a debt has become due
to an executor by statute, recognisance, or judgment, and he has in
consequence taken the _lands_ of the debtor in execution; for here
the original property in the debt, which was money, and consequently
personalty, has been converted into realty, to which the heirs’ claim
supersedes that of the legatees. Chattels real, on the other hand, are
converted into personalty by the redemption of a mortgaged estate.
Had the mortgage which the testator held become foreclosed through
the negligence or inability of the mortgagor, the property would
have continued _real_ as it was at the time of his death, but by the
payment of the debt, the estate again becomes money, and consequently
a personal asset to meet the legacies, or any other claims upon the
testator’s estate.
LEGAL ASSETS OF CHOSES IN ACTION.
It is neither an improbable nor unfrequent occurrence, that, at the
time of a testator’s death, much of his property is outstanding, which,
if got in, would satisfy all the claims of the legatees, while, if
it were neglected, they would lose half their bequests; and it is
therefore necessary to consider the executor’s interest in what are
called _choses in action_, as well those where the right of action
accrued during the life time of the testator, as after his death.
Firstly, then, the executor is entitled to every debt that was due to
the testator, whether they be debts due on judgment, statute, record,
recognizance, or bond, or on special or simple contracts, rents, or
covenants, under seal or promise, all of which constitute assets for
the purposes of the will. He is also entitled, by the 4 Ed. III.,
c. 7, to damages for trespass committed during the testator’s life
time, or for the conversion of the same, or for trespass with cattle
in his close, or for cutting and carrying away his growing corn, or
for a debt incurred by the not setting out of tithes, to an action of
prevention against the disturbance of his patronage; as, when a living
has been void at the death of the testator, and another has presumed
to appropriate this chattel, then become personal, to his own use, by
presenting to the living, or to an action of ejectment against him whom
he has presented. An executor is also entitled to damages for breach
of a covenant to do a personal thing, provided the breach occurred in
the testator’s life time; and this, notwithstanding the covenant has
reference to realty, as felling, stubbing up, lopping or topping timber
trees; for the damages are of the nature of personalty, though that
on account of which they were recovered is real. Equally, also, and
on the same grounds, can he sue for the loss of interest occasioned
by non-payments on deposit-money, for the expense of investigating
a title, where the vendor omits to make out a good title within the
stipulated time, and the vendee dies. The executor of an assignee may
also recover on a bail bond. In fact, in all those rights which accrued
to the vendee before his death, and the proceeds of which are all of
a personal nature, does the executor equally enter; and he is bound
to the legatees to recover, if possible, whenever policy or necessity
dictate the attempt.
EQUITABLE ASSETS.
According to the usual legal phraseology, the difference between legal
and equitable assets is this; “legal assets are such as constitute
the fund for the payment of debts, according to their legal priority;
whereas, equitable assets are those which can be reached only by the
aid of a court of equity, and are subject to distribution on equitable
principles, according to which, as equity favours equality, they are
to be divided _pari passu_ among all the creditors.” This is a very
important distinction, and of great consideration in the payment of
debts, and it has accordingly been fully set out in the Hand-Book for
the instruction of Executors and Administrators. There the difference
is as to the _distribution_ of equitable assets, but here we have to
regard their attainment. The difference between the different species
of legacies will be shown hereafter, but in this place we may look upon
them in one light, and consider that there is both sufficient to pay
the debts and satisfy the legacies, if the assets are all got in, and
properly distributed. With respect to the debts, the legal assets are
applicable in a certain order, while the equitable assets are equally
shared among the creditors. But with respect to the legacies, saving
the instance first alluded to, of specific legacies which are to be
noticed hereafter, the assets, whether legal or equitable, are all
distributed equally, that is, in full, if sufficient to satisfy in
full, or in proportionate equality, according to the amounts of the
legacies, and the means to pay them. Our business, therefore, here is
to show what the executor is entitled to, and what he ought to obtain
in order that the legatees may not suffer from his negligence.
The executor enters, then, fully into the equitable title of the
testator, in respect of personal property, and this whether it accrues
before or after his death. Thus, if an individual shall have contracted
to deliver certain goods to the testator on a certain day, and the
day does not arrive till after his death, and they are delivered to
his executor, they will constitute assets in his hands, and should
the individual who has covenanted to deliver them fail in his duty,
the damages that shall be recovered in consequence will be equally
available to the creditors or legatees. So, also, if any party has
covenanted to grant a lease of certain land by a particular day, and
the testator dies before the day, the executor is entitled to the
lease, or to compensation in the way of damages in lieu of the lease.
To such an extent, indeed, does this run, that in the case of _Husband_
v. _Pollard_, where a father held a lease of the church, renewable
every seven years, and he assigned it to his son in trust for himself
for life, remainder in trust for the son, himself, his executors,
administrators, and assigns, and the father covenanted to renew the
lease every seven years as long as he should live; and the son died;
and the father failed to renew the lease within the seven years; and
the executor of the son filed a bill to compel him to renew; it was
decided that he ought to do so, and he was compelled accordingly; and
this lease became assets in the hands of the executors at the father’s
death.
If a defendant in execution at the testator’s suit escape after the
testator’s death, the executor shall recover damages for the escape,
they will form assets; so also are goods replevied after the death
of a testator. If a testator die possessed of a term for years in an
advowson, the term rests in the executors, and, in the event of their
being disturbed, any damages they may recover in consequence will be
equally available, as also any other property recovered by a suit
in equity. But when a cause of action accrued before the testator’s
death, neither cause nor damages are to be considered assets until
the proceeds are, by execution or otherwise, reduced into possession.
Neither is the balance of an account stated with the executor to be so
considered until paid. If, however, they be recovered and released by
the executor, he will still be responsible for them, for the release is
tantamount to an acknowledgment of receipt.
Should the cause of action accrue after the testator’s death, both the
action and the damages become assets immediately, unless the breach of
engagement affect the realty, in which case they belong to the heir.
At the death of a joint merchant, all his interest in his _choses in
action_, or things coming, though not yet come, to hand, through legal
or equitable suit, and whether, therefore, they be legal or equitable
assets, devolve, according to the amount of the testator’s interest in
them, to the executor.
CONTINGENT AND DEPENDENT ASSETS.
Besides all these means by which property may be realised by an
executor to pay the claims of the legatees, there are yet other more
remote and uncertain sources from which he may in the course of time
come into the possession of assets, which may enhance their interests.
These consist in the peculiar conditions annexed to certain properties;
properties again which may come to the testator’s estate in consequence
of his being entitled to them as remainder man or contingent devisee,
as his outliving some other individual, or happening to fulfil an
engagement which that other has failed to perform. Or he may have
been unconsciously entitled, as residuary legatee, to property, the
surplusage of which has not been discovered, or recovered till after
his death. Or property may have come to him through increase of some
fund, or by assignment under some deed or covenant, or by limitation
and selection.
An executor may become entitled to property in his official capacity
by condition, as if the testator shall have granted a lease, or other
chattel, to a certain person, on condition of his paying a sum of
money, or doing some specific act, and it is discovered after the
death of the testator that that person has failed in his part of
the agreement, the chattels will then be assets in the hands of the
executor. Or where the agreement is that the testator or his executors
shall pay a certain sum, to avoid the grant, and the sum is paid. Or
the testator may have pledged plate or a jewel, and the executor redeem
it at the time and place appointed, before the day of redemption has
passed. If he has redeemed with his own money, and, in consequence of
the want of funds of the testator’s property, the chattel is obliged to
be sold to pay the executor’s disbursements, and if it sell to more
than they amount to, then the surplus above that amount will be assets
in his hands, for the benefit of the creditors and legatees, or both.
Chattels may also accrue to an executor by remainder or increase, which
never came into the testator’s personal possession, as if a lease be
granted to a person for life, with remainder to his executors for a
certain period, the remainder will be assets in their hands. Likewise
where a lease is bequeathed by will to a person for life, and on his
death to another, and that other dies before the first, although
he never had any personal right in it, yet it will devolve to his
executors, and be assets. So, also, a remainder in a term for years,
though it never rested in the testator’s possession, and, though it
continue a remainder, shall go to the executor and be converted for
what it will obtain. Such, also, is the case with the young of cattle
or the wool of sheep, produced after the testator’s death, as also the
profits on lands devised over and above the rent, if he enter upon
them, and the testator has been a lessee for years. Such, also, is
the property in a trade in which the deceased has been a partner, and
in the articles of partnership of which a covenant has been made,
that his survivors should take his share. Or a testator may direct
his executors to carry on his trade, appointing either the whole or a
portion of his assets for its conduct, and then the proceeds will form
assets.
An executor may also come into the possession of assets as a
representative assignee, for if the testator shall have died an
assignee, his executor will take his place, and use the assets which
he derives, belonging to the testator, for the purposes of his will.
So if a legacy is bequeathed to a person and his assigns, and that
person die before its receipt, his executors will be entitled to take
it as his natural assignee. Such is the case also if a person be bound
to abide by the award of two arbitrators, and they award that he shall
pay to another person, or his assigns, a certain sum of money before a
day mentioned for that purpose, and that other person die before the
day, his executor or assignee is entitled to the money. This principle
however does not hold where any specific assignee is appointed, for
then that assignee, and not the executor of the party named, will take;
but where no specific assignee is named, the executor becomes the
assignee.
Limitation also often becomes a source whence an executor derives
assets. Thus in the case of _Pinbury_ v. _Elkin_, where a testator
directed that in case his wife should die without issue by him, his
brother after her decease, should have eighty pounds; and, after
testator’s death, the brother died in the life time of the widow,
and she afterwards died without leaving issue, it was held that the
possibility devolved to the executors of the brother, although he
died before the contingency happened, and the legacy went accordingly
with interest from the widow’s death. It was also held in the case of
_Chamey_ v. _Graydon_, that where legacies were bequeathed to children,
to be transferred to them at their respective ages of twenty-one
years, or days of marriage, and that any of them should die, or marry
without consent, his or her share should go to others at their age
of twenty-one years, Lord Chancellor Hardwick decreed that a share
accruing by the forfeiture of a child’s marrying without consent
vested in another child who attained twenty-one, but died before such
forfeiture, so as to entitle the personal representatives of such
deceased child to an equal share with other deceased children.
Where a person who has a legacy bequeathed to him out of a personal
estate, and which legacy is to be paid when he is of the age of
twenty-one years, and he dies before that time, his executors are
entitled to the legacy at the moment of his death, if it is intended to
carry interest, but if it is not to carry interest, then on the day on
which he would have been twenty-one. But if the legacy is to be paid
to the person to whom it is bequeathed at his age of twenty-one, or
if he shall attain the age of twenty-one, and he die before that time
the legacy will lapse. But if the interest is given before the time of
payment, that is held to _vest_ the legacy; and his executors would
consequently be entitled to the amount as assets.
With respect to the interest arising out of land, however, the rules
are totally different; for whatever the nature of the legacies to
which the land is to be appropriated, whether for a child or a
stranger, and with, or without interest, the charges on land, payable
on a future day, are not to be raised where the party dies, before
the day of payment, except where the time of payment is postponed on
account of the fund and not of the person. In the case of _Watkins_
v. _Cheek_, where a legacy was charged upon real estate, to vest
immediately on the testator’s death; and to be paid to the legatee on
attaining twenty-one, the interest being applied in the mean time for
maintenance, and the legatee died before attaining that age; it was
held that the express direction, that the legacy should vest on the
death of the testator prevented its sinking; and the representative of
the legatee was consequently entitled to the legacy. Where lands are
devised for the payment of portions, and any of the children entitled
die before the lands are sold, the representatives of that child will
be entitled to the money. In the case where a legacy is charged both
upon the real and personal estate, and the executor claims out of the
latter, he will succeed according to the rule of the spiritual court,
where the claim is determinable, though the infant legatee should die
before the time of payment, but the legacy will sink as far as it is
charged upon the land.
Election is also a means by which an executor may claim, as in the
instance where a testator was entitled to take his choice out of
several chattels, and he has failed to choose; but if nothing passes to
the grantee before his election, it should be made in his life time.
Should the election determine the manner or degree in which the thing
shall be taken, the executor may take it as well as the grantee, for
then there is an immediate interest; as, for instance, if a lease be
granted to a person for ten or twenty years, as he shall choose, the
executor may elect.
We have thus at some little length endeavoured to make it as clear as
possible what are the sources from whence the assets of a testator are
to be derived. We will now proceed to see how they are to be disposed
of when obtained, and ascertain what is technically called, the
“Marshalling of the assets.”