Page:Harvard Law Review Volume 32.djvu/354

318 3i8 HARVARD LAW REVIEW Effect of Probate and Administration It is common knowledge that by statute an executor or adminis- trator may sue for a tort to the property of the estate committed during the Hfe of the deceased. This chose in action is as much an asset as a watch or a horse. But suppose after the death of the decedent and before the appointment of the personal representa- tive a similar wrong is done to the estate. If the deceased died intestate, the assets passed on death to the ordinary, who was usually the bishop. The statute of West- minster the Second, c. 19 (1285), recognized that personal property of an intestate passed immediately to the ordinary .^^ The Statute of 31 Edw. Ill (1357), c. II, required ''that in case where a man dieth intestate, the ordinaries shall depute the next and most lawful friends of the dead person intestate to admin- ister his goods; (2) which deputies shall have an action to demand and recover as executors the debts due to the said person intestate in the King's court. ... (4) And they shall be accountable to the ordinaries, as executors be in the case of testament, as well of the time past as of the time to come." By Stat. 22 & 23 Car. II, c. 10 (1670), the administrator became bound to distribute the surplus. The Probate Amendment Act, 21 & 22 Vict., c. 95, § 19 (1858), expressly vested the personal es- tate of an intestate until letters granted in the judge of the Court of Probate "in the same Manner and to the same Extent as hereto- fore they vested in the Ordinary." Though the property was in the ordinary, it was hardly possible for him to sue for a tort to the estate while he held title, for the object of Stat. 31 Edw. Ill, c. 11, was to take the administration from him.^^ Indeed, subdivision 4 of c. II made the administrator accountable as executor "as well " See Dyer, C. J., in Graysbrook v. Fox, i Plowd. 275, 279. 2* In Graysbrook 11. Fox, i Plowd. 278, Weston, J., said referring to the statute, 31 Edw. 3, c. 11: "And the reason thereof seems to be because the Ordinary is a spiritual Governor, wholly conversant in spiritual Causes, to whom it is inconven- ient to toil in the temporal Concerns of others, and therefore the Statute has given him Liberty to appoint others to take the Trouble of the Administration of the In- terstate's Goods, and they shall have Power as Executors, and may recover the Debts of the Intestate; and so it has remedied the said Mischief." Dyer, C. J., and Walsh, J., said on page 279: "And Administrators are appointed by the Ordinary for his Ease, and to discharge himself of the Burden of the Office."