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ship which a man has in his own property, although for some purposes they are treated as owners to an extent sufficient to enable them to dispose of the property and transfer ownership in it. Nevertheless their title is in the right of another, and not their own, and the property in their hands is not liable for their debts, nor can it legally be sold or pledged in payment of, or as security for, their personal obligations.
In the case of executors, their title is derived from the testator's will, and not from the letters testamentary, and its quality is commensurate with the duties which are expressly or by necessary implication imposed upon them. But as to administrators it is quite different. Their title, power and authority are derived solely from the court which appointed them, and evidenced by the letters of administration issued to them. Another important distinction lies in the fact, as we shall see later on (post $$ 91, 98), that an administrator never takes title to any real property of the decedent, which passes directly to the heirs.
Where the testator appoints testamentary trustees and imposes active trust duties upon them, they take, from the will, the absolute legal title to all property as to which the trust pertains, while those for whom the trust was created, take simply a beneficial interest in the property and a right to enforce the trust. We shall discuss this matter in a subsequent section (post § 118), but it is a difficult and confusing subject to the layman, and, perhaps, the less said about it, the better.
The title of joint executors and administrators usually differs from that of joint trustees. We have seen (ante $$ 55, 56) that in the case of executors the act of one is the act of all and binds the estate. The whole title to the estate is lodged in each, to the extent that he may by his sole signature transfer ownership in the property. On the other hand, the title of the trustees is joint. They must all act together or not at all, and upon the death of one, the title vests in the survivors.
90. What personal property passes to the repre
There are some kinds of property which do nat survive the decedent's death, and hence do not come into the hands of his executors or administrators. Examples of such are, contracts for the personal services of the deceased, which none but he can perform; claims for injuries to his person, feelings or reputation, as slander, assault, false imprisonment and the like. But claims for injuries causing his death do survive and may be recovered for by the executor or administrator for the benefit of the surviving husband, wife or next of kin.
On the other hand causes of action for injuries to real property, such as waste, trespass and the like; contracts to convey lands, and the right to redeem from a mortgage, all descend to the heir and cannot be prosecuted by the representatives.
But apart from such instances, other causes of action arising from any obligation, contract or covenant, which might have been enforced by the decedent in his lifetime, survive to his executors or administrators, and may be prosecuted by them to the same extent as he could have done. Indeed, it may safely be asserted that, with the exception of those mentioned above, about every kind of personal property wherever situated so passes to the representatives, and they are entitled to the possession of it, and are given every remedy for its recovery and protection. Within this class are to be placed such items as bonds, mortgages, notes and bills, accounts, money stocks, goods, wares, utensils, furniture, cattle, provisions, and so forth. A seat on the Stock Exchange is a property right, notwithstanding that the rules of the Exchange do not recognize the ownership of a seat by the estate of a deceased owner, and goes to the executor or administrator. The good will of the decedent's business is an asset to be administered by his representatives; but his interest in partnership property is not. It passes to the surviving partner and the executor's sole right is to require an accounting from the survivor and to receive such sum as, upon the accounting, shall appear to be due to the estate of the deceased partner.
As to other kinds of property which the decedent owned jointly with another, the rule is that it goes to the survivor, to the exclusion of the deceased joint-owner's estate.
A policy of insurance upon the decedent's life payable to his estate, of course, belongs to the executor or administrator, unless the deceased bequeathed it by his will, in which case it does not. Neither does such policy so pass if made payable otherwise than to his estate or his representative. The same principles apply to the interest of the decedent in a mutual benefit association. Fire insurance policies covering buildings upon which a claim had accrued prior to the decedent's death, go to the executor, otherwise to the heir, but policies insuring personal property, of course, go to the representatives.
It will frequently be found that the decedent has deposited sums of money with a savings bank, in the name of another, or in his own name as trustee for another. Whether such funds belong to his estate depends upon the circumstances. Until the pass book is delivered to the beneficiary, or the depositor dies, the trust is revocable at any time. If he dies before the beneficiary without having effected a revocation of the trust, the beneficiary's interest is deemed to be established to the exclusion of the depositor's estate; but if the beneficiary dies first, the trust at once ceases.
Pension moneys which have accrued do not belong to the pensioner's estate, but inure to the benefit of the widow and children, or the children alone. If, however, the pensioner had received the pension in his lifetime, and had invested it in some other property, the exemption ceases, and in its new form it becomes an asset.
The subject matter of a gift mortis causa (see ante § 4) is not an asset; nor are securities or other property given by decedent in his lifetime to the one named as executor in his will, with directions to distribute the proceeds thereof.
While the foregoing is not a complete list of the various classes of property which go to the representative, it will give a fair idea of what he must administer and account for.
91. Same; lands and interest in lands.
Options for the purchase of real property and leases for a term of years, or from year to year,