Page:Harvard Law Review Volume 9.djvu/73

45 EXECUTORS. 45 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 I2 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 eiitre mayns des Mens 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.^ 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." ^ 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 conse- quence 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.^ But I prefer to regard the rule 1 Y. B. 13 Ed. III. 398-401 (a. d. 1338), ace. 2 Rot. Pari. 397, No. no (Ed. III.). See also the intimation of Wychingham, J, in 40 Ed. III. 15, pi. i. Fleta, Lib. 2, c. 57, § 6. 2 I 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). 8 I Wms. Exors. 9th ed. 559. Howard z/. Jemmett, 2 Burr. 1368, 1369, note; Farr V. Newman, 4 T. R. 621, 648. ^ Wentworth, Executors (14th ed. Philadelphia, 1832), 198.
 * Whitecomb v. Jacob, i Salk. 160; Ford v. Hopkins, i Salk. 283, 284; Ryall v.