Page:Harvard Law Review Volume 4.djvu/119

EQUITY JURISDICTION, 103 about that the estate of every deceased person had to be adminis- tered by a person appointed by the bishop of the diocese. If the person so appointed was nominated in the will of the deceased, he came to be known as the executor of the will {executor testamenti) ; if the appointment was made without any such nomination, he was known as the administrator of the estate of the deceased. Practi- cally, therefore, the modern executor is the hceres factuSy as the modern administrator is the hceres natiiSy of the Roman law. In strictness, however, as already stated, the original right of adminis- tration is in the bishop ; and this appears clearly from the fact that his appointments of executors and administrators always take effect as grants.^ The transfer of the jurisdiction over the estates of deceased persons from the secular to the ecclesiastical authorities indirectly brought about two material changes : first, heirship ceased to be a private right, and became an office, in the performance of which the heir as such had no personal interest; secondly, when heirship had ceased to confer any pecuniary benefit upon the heir, the absurdity of holding the latter personally liable for the debts of the deceased became manifest; and hence the doctrine that an heir was so liable became entirely obsolete, while the exhibiting of an inventory ceased to be a privilege, and became a duty. Two further remarks are called for respecting the transfer of the jurisdiction over the estates of deceased persons from the secular to the ecclesiastical authorities, namely, first, that in England it extended only to personal or movable property, feudalism having secured complete dominion over land; secondly, that it did not extend to the payment of debts, as to which executors and admin- istrators have always been amenable to the secular authorities. We are now prepared to inquire what remedy was furnished by the law of England to a creditor of a deceased debtor against the personal property of the latter, at the time when equity first as- sumed jurisdiction over creditors' bills. First, the remedy was an action by the creditor against the executor ^ of the deceased, as by the Roman law it was an action against the heir. Secondly, the executor was bound to pay the debts of the deceased out of his personal property, i.e., so far as such property would enable him 1 See Idem, pp. 212-13, 268-9. See also a learned and instructive article by Mr. Henry C. Coote, i Law Mag. and Law Rev. 252-267. 2 As there will be no occasion hereafter to distinguish between executors and admin- istrators, the term '* executor " will alone be used.