Page:Harvard Law Review Volume 9.djvu/71

43 EXECUTORS, 43 had taken place in England before Bracton wrote. But in the earliest sources it looks as if the limitation of liability was worked out by a limitation of the amount of the judgment, not by confining the judgment to a particular fund.^ As was shown in the article above referred to, the executor took the place of the heir as universal successor within the limits which still are familiar, shortly after Bracton wrote. His right to sue and the right of others to sue him in debt seemed to have been worked out at common law.^ It hardly needs argument to prove that the new rights and burdens were arrived at by treating the executor as standing in the place of the heir. The analogy relied on is apparent on the face of the authorities, and in books of a later but still early date we find the express statement, executor es U7iiversales loco hcsredis sitnt^ or as it is put in Doctor and Student, Now when executors thus had displaced heirs partially in the courts, the question is what was their position with regard to the property in their hands. Presumably it was like that of heirs at about the beginning of the fourteenth century, but I have had to leave that somewhat conjectural. The first mode of getting at an answer is to find out, if we can, what was the form of judgment against them. For if the judgment ran against them personally, and was not limited to the goods of the deceased in their hands, it is a more than probable corollary that they held those assets in their own right. The best evidence known to me is a case of the year 1292, (21 Ed. I.) in the Rolls of Parliament.'* Margery ^ Viollet, op. cit. The Common Law, 347, 348. " Hasres autem defuncti tenebitur ad debita praedecessoris sui acquietanda eatenus quatenus ad ipsum pervenerit, sci. de haereditate defuncti, et non ultra," &c. Bracton, 6i a. "Notandum tamen est, quod nullus de antecessoris debito tenetur respondere ultra valorem huius, quod de eius hereditate dignoscitur possidere." Somma, Lib. 2, c. 22, § 5, in 7 Ludewig, Reliq. Manuscript. 308, 309. Grand Coustum. c. 88. Compare also St. Westm. IL (13 Ed. I.) c. 19, as to the liability of the ordinary : " Obligetur decetero Ordinarius ad respondendum de debitis, quatenus bona defuncti sufficiunt, eodem modo quo executores hujusmodi respondere tenerentur si testamentum fecisset." See the cases stated below. I know of no early precedents or forms of judgments against heirs. I wish that Mr. Maitland would give the world the benefit of his knowledge and command of the sources on the matter. Later the judgment against heirs was limited to assets descended. Townesend, Second Book of Judgments, 67, pi. 26. 2 Y. B. 20 & 21 Ed. L 374, 30 Ed. L 238. 11 Ed. IIL 142. Id. 186. (Rolls ed.) 8 Lyndwood, Provinciale. Lib. 3, Tit. 13. c. 5. {Statutum bones memorice), note at word, Intestatis. Dr. & Stud. Dial, i, c. 19. of trustee process will be found in this case.
 * the heir, which in the laws England is called an Executor."
 * I Rot. Pari. 107, 108. It may be remarked, by the way, that an excellent example