CHAP. VIII.

SEC. IV.

executors.

through a chain of executors, the wills of the several testators must all have been proved in the same inferior ecclesiastical court where the will of the first testator term, through was proved, or the title will be defective. So if the will of the first testator was proved in the Prerogative Court, all the subsequent probates must be taken out of the same court, to transmit the term: if any of them have been taken in an inferior ecclesiastical court, and the executor be living, the will may be brought into, and proved in, the Prerogative Court.

Where several executors have proved a will, as each entirely represents the testator, so each may of course assign or surrender a term, which, as such executor, has become vested in him.

trustee.

Although, on any dealing with the inheritance, the There should old trustee of the term may be declared to stand pos- actual assignalways be an sessed thereof, "In trust, &c." yet it is the practice of ment to a new the most eminent conveyancers to require an actual assignment to a new trustee, and this practice cannot prudently be departed from.

SECTION IV.

Of the Assignment of choses in action, &c.

Bonds, and other choses in action, which are not as- Assignment of signable by law, are yet transferable in equity, which choses in

considers the assignor a trustee for the assignee. On

the assignment of a bond, notice must be given to the

action.

SEC. IV.

CHAP. VIII. obligor (1). Therefore, in the cases of money due on bond, the action to recover it must, notwithstanding the assignment, be brought in the name of the original obligee, and, for that reason, a power of attorney to sue in his name should always be inserted in the assignment. Book debts, and sums of money due on contract, are choses in action, and, though assigned, must be sued for at law in the name of the original creditor, though, in equity, the assignee sues in his own name. If the plaintiff in an action obtains a fieri facias, and attaches the goods of the defendant, they may be assigned to him by the sheriff, after an appraisement, in satisfaction, or in part satisfaction, of his debt. On the determination or dissolution of a partnership, one partner may assign his share in the partnership debts and effects to the other; but, as they are joint-tenants, the word "release" should also be made use of; indeed that word alone would pass the whole interest to the party, but the debts of the partnership must be sued for in the name of all the partners. Sums of money due on turnpike securities, corporation bonds, and canal shares, will, generally speaking, pass by assignment: with respect to canal shares, they are sometimes, by the act making the canal, declared to be real estate, and the form of the transfer is usually prescribed by the act.

Legacies, &c.

able.

Legacies, and sums of money due on mortgage, are how far assign- so far considered as capable of being completely assigned, as that, on payment of the money, the release or discharge is taken from the assignee only; and, after an assignment of money due on mortgage, where the estate remains vested in the assignor, he becomes a trustee for

(1) Buck, 300.

If a

SEC. IV.

the assignee without any express agreement for that CHAP. VIII. purpose, though it is always proper to insert one. bankrupt is entitled to the interest of a sum of money for life, placed out in the funds, or on real or other securities, his assignees may transfer the interest to a purchaser, during the bankrupt's life, by an assignment of "the interest or dividends, and yearly proceeds arising or "resulting from the money from time to time during "the life of the bankrupt, and all the right, title, "interest &c. of the assignees, habendum to the "purchaser, his executors, &c. for his own use and benefit."

payable to a

person abroad.

If a legacy be payable to a person abroad, a power of of a legacy attorney is usually given to enable some one in England to receive and give a discharge; but this is not a safe method, for the party who granted the power may revoke it (every power of attorney being in its nature revocable at pleasure),—or he may die before the discharge for the legacy be executed,-in which case, as the power would be determined, the discharge would be void. The safe and proper method is, for the legatee abroad to assign the legacy to some person in England, " To the "intent and purpose that he may be qualified and ena"bled to receive the legacy, and to make and execute a "sufficient release and discharge for the same;" or "upon trust to receive the money and give discharges "for the same, and stand and be possessed thereof in "trust for the legatee, his executors, &c." with a letter of attorney to give discharges, &c., and a proviso "that "the person paying shall not be bound to see to the application of the money."

In this case, if the legatee should die before the legacy is paid, and release given, still, the whole interest

SEC. IV.

CHAP. VIII. and property of the legacy being vested in the assignee, he would be capable of receiving and releasing it.

Persons having only particular estates, and

cumbrances,

In some circumstances, it is advisable for the owner of the lands, charged with a legacy or sum of money, when he pays it off, to have it assigned to a trustee, in order that the money may not be merged, but may remain a subsisting incumbrance upon the land, and be a part of his personal estate. In such a case, after reciting the deed or will by which the legacy or sum is charged, it may be assigned to a trustee for the owner of the estate, "In trust for the owner, his executors, admini"strators and assigns, To the intent that the same may "be preserved and kept on foot as a subsisting incum"brance on the lands and tenements charged with the << payment thereof."

Tenants for life, or in tail, or other persons having limited interests in lands, ought to take assignments in paying off in- this way of such incumbrances as are paid off by them; should take as in that case their personal representatives would stand assignments of in the place of the incumbrancers, and be entitled to receive the amount from the persons subsequently entitled to the lands.

them.

Legacies may

way of mortgage.

Legacies, and other sums of money, payable out of be assigned by real or personal estate, may be assigned by way of mortgage, either with a proviso that, on repayment of the loan, the legacy or sum shall be re-assigned, or In trust that the assignee shall receive the same, and, after deducting and retaining thereout his principal and interest, In trust to pay the surplus to the assignor: the latter is the preferable mode, as in that case the assignor's release is not necessary.

Celles que trust

If by deed or will lands are conveyed or devised to arise from sale trustees In trust to be sold, the persons entitled to the

of money to

SEC. IV.

money may sell or may assign their shares by way of CHAP. VII. mortgage as money or personal estate; but parties who have the sole interest in the money to arise by the sale of lands, may assign their of lands, may elect to have their shares considered as shares. land or real estate, and may convey them accordingly, but the election should be apparent and upon the face of the deed or instrument.

66

equitable inte

It is laid down in Sir Edward Sugden's treatise on Precautions to the "Law of Vendors and Purchasers," that "a pur- a person purbe observed by "chaser of an equitable right, of which an immediate chasing an possession cannot be obtained, should, previous to rest. completing his contract, inquire of the trustees in "whom the property is vested, whether it is liable to 66 any incumbrances; if the trustee make a false repre"sentation, equity would compel him to make good the "loss sustained by the purchaser. When the contract " is completed, the purchaser should give notice of the "sale to the trustee; the notice would certainly affect "the conscience of the trustee, so as to make him liable "in equity, should he convey the legal estate to any "subsequent purchaser; and it would also, perhaps,

give the purchaser a priority over any former incum"brancer who had neglected the same precaution." (1) Conformably to the concluding observation, it has been very recently held in two cases (2), that "a person

having a beneficial interest in a sum of money, in"vested in the names of trustees, assigns it for a va"luable consideration to A, but no notice of the assign"ment is given to the trustees; afterwards, the same person proposes to sell his interest to B, and B hav

66

(1) Sug. Vend. & Pur. p. 14, (ed. 1824.)

(2) Dearle v. Hall, and Loveridge v. Cooper, 3 Russ. 1.