Page:Harvard Law Review Volume 9.djvu/70

42 42 HARVARD LAW REVIEW, EXECUTORS. AT the present day executors and administrators hold the assets of the estate in a fiduciary capacity. Their rights and Habili- ties in respect of the fund in their hands, are very Hke those of trustees. But this way of regarding them is somewhat modern. I wish to call attention to several changes in the law which have taken place at different times and without reference to each other, for the purpose of suggesting that they are witnesses of an older condition of things in which the executor received his testator's assets in his own right. As usually is the case with regard to a collection of doctrines of which one seeks to show that they point to a more general but forgotten principle, there can be found a plausible separate explanation for each or for most of them, which some, no doubt, will regard as the last word to be said upon the matter. I have shown elsewhere that originally the only person liable to be sued for the debts of-the deceased, if they were disputed and had not passed to judgment in the debtor's hfetime, was the heir.^ In Glanville's time, if the effects of the ancestor were not sufficient for the payment of his debts the heir was bound to make up the deficiency out of his own property .^ In the case of debts to the king, this liability continued as late as Edward III,^ royalty like religion being a conservator of archaisms. The unlimited liability was not peculiar to England.* While it continued we may con- jecture with some confidence that a judgment against the heir was not confined to the property which came to him from his ancestor, and that such property belonged to him outright. At a later date, M. Viollet tells us, the French customary law borrowed the benefit of inventory from the Roman law of Justinian. The same process Early English Equity, i Law Quart. Rev. 165. The common Law, 348. Bracton 407^5,61,98 a, loi rtf, 1133. The article referred to in the Law Quarterly Review shows the origin and early functions of the executor. It is not necessary to go into them here. " Si vero non sufficiunt res defuncti ad debita persolvenda, tunc quidem haeres ejus defectum ipsum de suo tenetur adimplere : ita dico si habuerit aetatem haeres ipse." Glanville, Lib. 7, c. 8. Regiam Majestatem, Book 2, c. 39, § 3. Ass. Jerus., Bourgeois, ch. cxciii. 2 Beugnot, 130. Paul Viollet, Hist, du Droit Franj. 2d ed. 829.
 * 2 Rot. Pari. 240, pi. 35. St. 3 Ed. I., c. 19.