But if it be assumed that a trace of absolute ownership still was shown in the form of the judgment, when we come to the execution we find a distinction between the goods of the testator and those of the executor already established. In 12 Edward III. a judgment had been recovered against a parson, who had died. His executors were summoned, and did not appear. Thereupon the plaintiff had fieri facias to levy on the chattels of the deceased in the executors' hands (de lever ses chateux qil avoient entre mayns des biens la mort), and on the sheriff returning that he had taken 20s. and that there were no more, execution was granted of the goods of the deceased which the executors had in their hands on the day of their summons, or to the value out of the executors' own goods if the former had been eloigned.1

I now pass to two other rules of law for each of which there is a plausible and accepted explanation, but which I connect with each other and with my theme. In former days, I was surprised to read in Williams on Executors, that the property in the ready money left by the testator "must of necessity be altered; for when it is intermixed with the executor's own money, it is incapable of being distinguished from it, although he shall be accountable for its value." "2 What right, one asked oneself, has an executor to deal in that way with trust funds? In this Commonwealth at least the executor would be guilty of a breach of duty if he mingled money of his testator with his own. Another passage in Williams shows that we must not press his meaning too far. It is stated that money of the testator which can be distinguished does not pass to a bankrupt executor's assignee. The principal passage merely was repeated from the earlier text-books of Wentworth and Toller. In Wentworth the notion appears to be stated as a consequence of the difficulty of distinguishing pieces of money of the same denomination from each other, a most impotent reason.* There is no doubt that similar arguments were used in other cases of a later date than Wentworth.5 But I prefer to regard the rule

1 Y. B. 13 Ed. III. 398-401 (A. D. 1338), acc. 2 Rot. Parl. 397, No. 110 (Ed. III.). See also the intimation of Wychingham, J, in 40 Ed. III. 15, pl. 1. Fleta, Lib. 2, c. 57, § 6.

2 1 Wms. Exors. (7th ed.) 646. In the ninth edition this is qualified slightly by the editor in a note. (9th ed.) 566, 567 and n. (p).

3 I Wms. Exors. 9th ed. 559. Howard v. Jemmett, 2 Burr. 1368, 1369, note; Farr ". Newman, 4 T. R. 621, 648.

* Wentworth, Executors (14th ed. Philadelphia, 1832), 198.

Whitecomb Jacob, 1 Salk. 160; Ford v. Hopkins, 1 Salk. 283, 284: Ryall v.

as a survival, especially when I connect it with that next to be mentioned.

As late as Lord Ellenborough's time it was the unquestioned doctrine of the common law that the executor was answerable absolutely for goods which had come into his possession, and that he was not excused if he lost them without fault, for instance, by robbery.1 Now it is possible to regard this as merely one offshoot of the early liability of bailees which still lingered alive, although the main root had rotted and had been cut a century before by Chief Justice Pemberton, and by the mock learning of Lord Holt. It is explained in that way by Wentworth, who wrote before the early law of bailment had been changed, but with some suggestions of difference and mitigation. If this explanation were adopted we only should throw the discussion a little further back, upon the vexed question whether possession was title in primitive law. But it is undeniable that down to the beginning of this century the greatest common-law judges held to the notion that the executor's liability stood on stronger grounds than that of an ordinary bailee, and this notion is easiest explained as an echo of a time when he was owner of the goods, and therefore absolutely accountable for their value. In the Chancery, the forum of trusts, it is not surprising to find a milder rule laid down at an earlier date, and no doubt the doctrine of equity now has supplanted that of the common law.

There is no dispute, of course, that in some sense executors and administrators have the property in the goods of the deceased.5 I take it as evidence how hard the early way of thinking died that as late as 1792, the King's Bench were divided on the question whether a sheriff could apply the goods of a testator in the hands of his executor in execution of a judgment against the executor in his own right, if the sheriff was notified after seizure that the goods were effects of the testator. As might have been expected the

Rolle, 1 Atk. 165, 172; Scott v. Surman, Willes, 400, 403, 404. Rightly condemned quoad hoc in Re Hallett's Estate, 13 Ch. D. 696, 714, 715. See also Miller v. Race, 1 Burr. 452, 457, S. C. 1 Sm. L. C.

1 Crosse v. Smith, 7 East, 246, 258.

2 King v. Viscount Hertford, 2 Shower, 172; Coggs v. Bernard, 2 Ld. Raym. 909. The Common Law, Lect. 5, esp. p. 195. Morley v. Morley, 2 Cas. in Ch. 2.

Executors (14th ed.). 234.

4 Lord Hardwicke in Jones v. Lewis, D. 562; Stevens v. Gage, 55 N. H. 175. ↳ Com. Dig. Administration (B. 10).

2 Ves. Sen. 240, 241 (1751); Job v. Job, 6 Ch. See Morley v. Morley, 2 Cas. in Ch. 2(1678). Cf., Wms. Exors. (9th ed.) 558.

judgment was that the sheriff had not the right, but Mr. Justice Buller delivered a powerful dissent.1 A little earlier the same court decided that a sale of the testator's goods in execution of such a judgment passed the title, and Lord Mansfield laid it down. as clear that an executor might alien such goods to one who knew them to be assets for the payment of debts, and that he might alien them for a debt of his own. He added, "If the debts had been paid the goods are the property of the executor." 2

Another singular thing is the form of an executor's right of retainer. "If an executor has as much goods in his hands as his own debt amounts to, the property of those goods is altered and rests in himself; that is, he has them as his own proper goods in satisfaction of his debt, and not as executor." This proposition is qualified by Wentworth, so far as to require an election where the goods are more than the debt. But the right is clear, and if not exercised by the executor in his lifetime passes to his executor. So when an executor or administrator pays a debt of the deceased with his own money he may appropriate chattels to the value of the debt. A right to take money would not have seemed strange, but this right to take chattels at a valuation in pais without judgment is singular. It may be a survival of archaic modes of satisfaction when money was scarce and valuations in the country common. But it may be a relic of a more extensive title.

The last fact to be considered is the late date at which equity fully carried out the notion that executors hold the assets in trust. In 1750, in a case where one Richard Watkins had died, leaving his property to his nephew and nieces, Lord Hardwicke, speaking of a subsequently deceased nephew, William Watkins, said that he "had no right to any specific part of the personal estate of Richard whatever; only a right to have that personal estate accounted for, and debts and legacies paid out of it, and so much as should

1 Farr v. Newman, 4 T. R. 621.

2 Whale v. Booth, 4 Doug. 36, 46. See 1 Wms. Exors. (9th ed.) 561, note.

3 Woodward v. Lord Darcy, Plowden, 184, 185.

4 Executors (14th ed.), 77, 198, 199.

Hopton v. Dryden, Prec. Ch. 179. Wentw. Exors. (14th ed.) 77, note, citing II Vin. Abr. 261, 263; Croft v. Pyke, 3 P. Wms. 179, 183; Burdet v. Pix, 2 Brownl. 50. 6 Dyer, 2a. Elliott v. Kemp, 7 M. & W. 306, 313.

See, e. g., the application of the trusteed wool to 108. Assignment of dower de la pluis beale, Litt. § 49. by sheriff, St. Westm. II. c. 18. Kearns v. Cunniff, 138

the judgment in 1 Rot. Parl. Delivery of debtor's chattels Mass. 434, 436.

be his share on the whole account paid to him; which is only a debt, or in the nature of a chose in action due to the estate of William." In M'Leod v. Drummond 2 Lord Eldon says that Lord Hardwicke "frequently considered it as doubtful, whether even in the excepted cases any one except a creditor, or a specific legatee, could follow" the assets in equity. On the same page, Hill v. Simpson, 7 Ves. 152 (1802), is said to have been the first case which gave that right to a general pecuniary legatee. Hill v. Simpson lays it down that executors in equity are mere trustees for the performance of the will, but it adds that in many respects and for many purposes third persons are entitled to consider them absolute owners. Toward the end of the last century their fiduciary position began to be insisted on more than had been the case, and the common-law decisions which have been cited helped this tendency of the Chancery.

5

The final step taken was taken in M'Leod v. Drummond, when Lord Eldon established the rights of residuary legatees. "It is said in Farr . Newman that the residuary legatee is to take the money, when made up: but I say, he has in a sense a lien upon the fund, as it is; and may come here for the specific fund."7

Oliver Wendell Holmes.

1 Thorne v. Watkins, 2 Ves. Sen. 35, 36.

2 17 Ves. 152, 169 (1810).

8 See also M'Leod v. Drummond, 14 Ves. 353, 354.

P. 166. Note the recurrence with a difference to their original position in the

early Frankish law. I Law Quart. Rev. 164.

5 See also Scott v. Tyler, 2 Dickens, 712, 725, 726.

6 17 Ves. 152, 169.

7 See Marvel v. Babbitt, 143 Mass. 226; Pierce v. Gould, 143 Mass. 234, 235; Mechanics' Savings Bank v. Waite, 150 Mass. 234, 235.

I made the decree appealed from in Foster v. Bailey, 157 Mass. 160, 162. The particular form which it took, allowing the defendant, the administrator of an administrator, to retain one share of stock and a savings-bank book as security for what might be found due to his intestate on the settlement of his account, and directing him to hand over the rest of the assets, was consented to, in case the defendant had a right to retain anything. I made the decree on the assumption that the change in the position of executor and administrator which I am considering left their rights undisturbed. Of course if the liability were only to account for a balance, the executor of an executor would not be bound to hand over anything more, and could not be compelled to pay anything until the balance was settled. His duty, when established, would not be to deliver specific property, but to pay a sum of money. I do not know what evidence can be found on this point. It is fair to mention that the plea offered in 30 Ed. I. 240, by executors of executors, was that, "We held none of the goods of the deceased on the day when this bill was delivered." But that may be no more than a general form. "Bonz" probably only meant property.

SPECIALTY CONTRACTS AND EQUITABLE

DEFENCES.

T has been often said that a seal imports a consideration, as if a consideration were as essential in contracts by specialty as it is in the case of parol promises. But it is hardly necessary to point out the fallacy of this view. It is now generally agreed that the specialty obligation, like the Roman stipulatio, owes its validity to the mere fact of its formal execution. The true nature of a specialty as a formal contract was clearly stated by Bracton:

"Per scripturam vero obligatur quis, ut si quis scripserit alicui se debere sive pecunia numerata sit sive non, obligatur ex scriptura, nec habebit exceptionem pecuniæ non numeratæ contra scripturam, quia scripsit se debere."

Bracton's statement is confirmed by a decision about a century later. The action was debt upon a covenant to pay £100 to the plaintiff upon the latter's marrying the defendant's daughter. It was objected that this being a debt upon a covenant touching marriage was within the jurisdiction of the spiritual court. But the common-law judges, while conceding the exclusive jurisdiction of the spiritual court if the promise had been by parol, gave judgment for the plaintiff, because this action was founded wholly upon the deed. In another case it is said: "In debt upon a contract the plaintiff shall show in his count for what consideration (cause) the defendant became his debtor. Otherwise in debt upon a specialty (obligation), for the specialty is the contract in itself." 3

The specialty being the contract itself, the loss or destruction of the instrument would logically mean the loss of all the obligee's rights against the obligor. And such was the law. "If one loses his obligation, he loses his duty."4 "Where the action is specialty, if the specialty is lost, the whole action is lost."5 The

1 Bracton, 100, b.

upon a

* Y. B. 45 Ed. III. 24-30. To the same effect, Fitz. Ab. Dett. 166 (19 Rich. II.). 3 Bellewe (ed. 1569) 111 (8 Rich. II.).

4 Y. B. 27 Hen. VI. 9-1, per Danby.

5 Y. B. 24 Ed. III. 24-1, per Shardelowe, with the approval of Stonore, C. J., and Wilughby, J. To the same effect, Y. B. 3 Ed. III. 31, b−1 ; Y. B. 4 Hen. IV. 17--14: Y. B. 4 Hen. VI. 17-1; Y. B. 19 Hen. VI. 6-11.