REMEDIES FOR EXECUTORS.

ACTIONS.

4996. All Must Join.-As a general rule, if there are several executors, they must all join in bringing action, though some may be minors.

4997. Renounced Executors.—Executors who have renounced need not be joined in any proceedings; but,

4998. All Others.-Executors who have not renounced must be joined in any action having general reference to the estate, even though they may not have joined in proving the will; but,

4999. Individual Cases.—If one executor of several individually transacts business concerning the estate, he may have an action in reference to that particular business without the others joining.

5000. Proof of Debts. — Proof of debt, in a general action, must be supported by affidavit of an executor, in addition to the evidence of the testator's books.

ADVICE OF COURT.

5001. Any executor may apply by petition to an equity judge in Court, or by summons upon a written statement to any such judge in chambers, for advice touching the administration of the estate, such petition or written statement to be signed by counsel; and

5002. Advice Indemnifies.-When an executor has duly obtained advice from any judge, he is indemnified from any consequences arising out of such advice, unless he be guilty of fraud or misrepresentation in obtaining such advice (5250).

PECULIARITY AS TO SET OFF.

5003. In an action by an executor, in his own name, to recover money due to the testator in his lifetime, and received by the defendant after the testator's death, the defendant cannot set off a debt due to him from the testator, and the same rule holds with regard to any debt which may have become due by the defendant to the testator's estate after his death.

PROCEEDINGS.

5004. Proceedings may be taken by executors either in the local County Court, so far as its jurisdiction extends, or otherwise in one of the superior Courts, according to the circumstances, and suits in the County Court may be transferred to the Court of Chancery.

REMEDIES AGAINST EXECUTORS.

CIVIL COURTS.

5005. Formerly, the Ecclesiastical Courts were empowered to entertain suits against executors, but, with the institution of the Probate Court, all suits concerning the settlement of property after probate or administration must be commenced in the civil courts(5004).

IMMEDIATE ACTION.

5006. Creditors.-Though, as before stated, a legatee cannot claim a legacy, in law, till after assent of executor (4882), or otherwise till twelve months after death of intestate or testator, a creditor can legally sue an executor in respect of a debt due to him by the intestate or testator, from the moment when the debt arises.

5007. Proceedings.-When an executor fails to satisfy any of the creditors or legatees, the creditor or legatee may take action in the County Court against the executor when the matter does not exceed £50, or otherwise in one of the superior Courts; and suits may be transferred from the County Court to the Court of Chancery. 5008. Small Debts Courts.-The expression County Court" includes the Small Debts Courts of London; and 5009. Executor's Residence.-The particular Court to be proceeded in must depend upon the place of residence of the executor, or any one of the executors.

BANKRUPTCY OF EXECUTOR.

5010. A plea of an executor's bankruptcy is no bar to a claim against any available part of the testator's estate.

5011. Statutes of Limitations (6607).—If a debt is due by a testator upon which six years have nearly run out at the time of his death, the completion of the six years previously to action against the executor will not bar recovery; the six years, to be a bar, must have ended before the death of the testator; but,

5012, Unreasonable Delay.- Proceedings to recover a longstanding debt must be commenced promptly, otherwise an unreasonable delay may be successfully pleaded against the creditor.

5013. Exhausted Estate.-When the executor pleads that the estate is exhausted, he must prove that it has been exhausted by superior claims (4731) prior to the commencement of action by plaintiff.

JUDGMENT.

5014. Executor's Estate Liable.—When a creditor obtains judgment against an executor, as such, the executor's estate is liable, including costs, if there be not sufficient left of the estate of the testator.

PROTECTOR.

5015. Previously to probate or administration, but not afterwards, the Court of Chancery will appoint a person to protect the estate until probate or administration has been duly granted.

RECEIVER.

5016. If proof is adduced that a sole acting executor is bankrupt, or from any other cause incapable of managing the testator's estate, or that the executor has been guilty of misconduct, waste, or improper disposition of the testator's assets, the Court of Chancery will instantly interfere by appointing a "receiver" in lieu of the

executor; or,

5017. Unreasonable Delay.-If evidence is produced that the executor has assets in hand which should have been sooner distributed, he will be ordered to pay them into Court, even though there may be some colourable excuse for the detention; thus,

5018. Pending Action no Excuse.-An executor admitted that he had considerable assets in hand, but that he was holding the amount in anticipation of the adverse result of a pending action, but the Court would not entertain the plea, and compelled the executor to pay over forthwith, though the plaintiff eventually gained the action, and was paid by the Court from the fund so obtained.

ACCOUNTS.

5019. An executor may be compelled to produce documents and accounts in chambers, and to make affidavit as to the documents and accounts in existence concerning the estate.

5020. Mixed Accounts. It is the duty of an executor to keep separate accounts of the estate in his hands, so that if he mixes his own accounts with those of the estate, he must produce his own books for examination, and he risks being called upon to deposit them with the clerk of records.

PARTNERS OF EXECUTOR.

5021. If partners of an executor permit him to mix up the accounts of the estate with the partnership accounts, then those

accounts and the books of the partnership must be produced, and are liable to be retained in custody; but,

5022. If an executor mixes his accounts, as executor, with those of the partnership, and the partners can prove that they were not cognizant of the fact, then they have a good answer to any demand for production of their books.

5023. Cash in Hand.-Money in the hands of an executor's partner is legally interpreted to be in the hands of the executor himself.

LUNATIC EXECUTORS AND TRUSTEES.

5024. The Lord Chancellor is empowered to make orders for the resting of the lands or other property of lunatic trustees and executors in such person or persons, and in such manner and for such estates, as he shall think fit to direct.

FINAL POWERS OF COURT.

5025. If the proper administration of an estate be barred by the infancy or insanity of the executor, or because of uncertainty which executor was the survivor of several, or from any other cause, the Court of Chancery or County Court has power of appointment, how and by whom the administration shall proceed.

FRAUD.

5026. If an executor as such is guilty of fraud, and any party desires to proceed for criminal punishment thereof, the consent must first be obtained of the Attorney or Solicitor General, and also of any judge who may have previously tried any case in a civil court having reference to the subject.

TRUSTS AND TRUSTEES.

INTRODUCTION.

ANCIENT LAW.

5027. Personal Confidence Only.-Formerly, when a man appointed a trustee for any purpose, he did so entirely and solely upon the good faith and integrity of the person he appointed; for,

and

5028. No Law. There was, anciently, no law upon the subject ·

M M

5029. Discountenanced.—Trusts and trustees were rather looked upon with suspicion, and worthy only of discountenance, as being mere mediums for effecting the disposal of property in a clandestine manner for the purpose of evading some duty or responsibility connected with property (82); but,

5030. Honour Insufficient.—The mere honour of a trustee, without the stimulus of legal recognition and compulsion, proved, in the earliest times, to be but a very precarious security; so that,

5031. Rare Resort.-A resort to trustees, in the olden time, was never made without urgent necessity.

FIRST RECOGNITION.

5032. Bishop of Salisbury.-The first attempt to bring the law to bear upon the question of trusts was made in the time of Richard II. by the Bishop of Salisbury, who procured a subpœna, summoning a trustee to answer upon oath, to the Court of Chancery, for the fulfilment of his trust.

5033. Confidence Established.-Success having attended the first effort to make a trustee liable to the Court of Chancery, confidence in trusts was rapidly established; and

5034. Immediate Effect.-The immediate effect of the recognition of trusts, and the legal responsibilities of trustees, was to cause them to be resorted to with great freedom; so that,

5035. Half the Land.-It is said that previously to the time of Henry VII. more than "half the lands of the kingdom" became vested in trustees.

5036. Countless Cases.-Since the time of Richard II. there have arisen countless cases for adjudication concerning trustees; so that,

MODERN LAW.

PRECEDENTS AND STATUTES.

5037. Five Thousand Decisions.—The present law is based upon upwards of five thousand leading decisions; and

5038. Trustee Acts.-The various decisions are supplemented by

various Trustee Acts.

DEFINITIONS.

5039. Trusts. The modern accepted definition of a trust is "an