Page:Harvard Law Review Volume 9.djvu/75

47 EXECUTORS, 47 judgment was that the sheriff had not the right, but Mr. Justice Buller dehvered a powerful dissent.^ A Httle 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." ^ 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 proposi- tion 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 m 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 Fair V. Newman, 4 T. R. 621. 2 Whale V. Booth, 4 Doug. 36, 46. See i Wms. Exors. (gch ed.) 561, note. 6 Hopton V. Dryden, Prec. Ch. 179. Wentw. Exors. (r4th ed.) 77, note, citing 11 Vin. Abr. 261, 263; Croft v. Pyke, 3 P. Wms. 179, 183; Burdet v. Pix, 2 Brownl. 50. 6 Dyer, za. Elliott v. Kemp, 7 M. & W. 306, 313. ^ See, <f. ^., the application of the trusteed wool to the judgment in i Rot. Pari. 108. Assignment of dower de la pluis beale, Litt. § 49. Delivery of debtor's chattels by sheriff, St. Westm. II. c. 18. Kearns v. Cunniff, 138 Mass. 434, 436.
 * Woodward v. Lord Darcy, Plowden, 184, 185.
 * Executors {14th ed,), 77, 198, 199.