or securities, may invest in any of the investments in which cash may be invested under such order in the court; and by a general crder, made in pursuance of this authority, and dated 1st February, 1961, cash under the control of the court may be invested in Bank stock, East India stock, exchequer bills, £2. 108. per cent. annuities, and upon mortgage of freehold and copyhold estates in England and Wales, as well as consolidated, reduced, and new £3 per cent. annuities; and every trustee, executor, or administrator, when not expressly forbidden in the instrument creating the trust, may now invest any trust-fund in his possession or under his control by 30 & 31 V. c. 132, s. 2, in any securities the interest of which is guaranteed by parliament, and by 34 & 35 V. c. 47, s. 13, in ecnsolidated stock issued by the Metropolitan Board of Works. A trustee, if expressly empowered, may lend on personal security; but joint trustees may not lend to one of themselves, nor may trustees accommodate a person. The tenant for life is not to be favoured, and all the conditions annexed to a power under which trustees may be investing, must be strictly observed. Trustees may not, unless expressly authorized, invest in foreign funds, such as United States stock or bonds. If trustees lend upon mortgages, they should attend to the sufficiency of the value and the title of the borrower. Trustees may not lend on mortgage to one of themselves.

The Debenture Stock Act, 1871 (34 & 35 V. c. 27) enacts that where there is a power to trustees, executors, or administrators, to invest in mortgages or bonds of a railway or any other company, such powers shall, unless the contrary is expressed in the instrument creating the trust, include a power to invest in the debenture stock of such company.

Trustees are also, by 30 & 31 V. c. 142, s. 24, empowered to pay money into a county court to be invested as the act provides (see County Court).

As there are many cases in which the duties of a trustee are doubtful, and as he may be made personally liable for loss occasioned to the trust property by any unauthorized action of his, even though he act in perfect good faith and obtain the best possible professional advice, he should decline to act without the sanction of the court whenever his duty is not perfectly clear, and he will be allowed all costs and expenses incurred by him in an application for that purpose, but not the costs of an appeal.

CHAPTER XI.

Executors and Administrators.

As executor is he to whom a man commits the execution of his last will and testament.

If the testator make an incomplete will, without naming executors, or if he name incapable persons, or if the executors named refuse to act; in any of these cases the ordinary may grant administration to some person, and the duties of the administrator so appointed nearly coincide with those of an executor.

The personal property of a deceased person vests in his executor from the time of his death; in an administrator, from the time of the grant of letters of administration.

As to acts passed for the protection of executors and administrators, see the last chapter.

When a person dies intestate, the court of probate will grant administration to the next of kin. For example, of the goods of the wife to the husband, and of the husband's effects to the widow or next of kin, or to both, at discretion.

If a BASTARD die intestate, without wife or children, or if any other person die without kindred, the queen is entitled to the personal property as administrator; but in case of a bastard, it is now usual for the crown to grant administration to some relative of the bastard's father or mother, reserving a tenth part, or some small portion, as a recognition of its rights. The real estate falls to the lord of the fee, or the queen, subject to the wife's right of dower and incumbrances, and it is customary to dispose of it in the same way.

An executor may be appointed either by express words, or by words that amount to a direct appointment; but, though a person is appointed executor, he is not bound to act, unless he has performed the offices which are proper for an executor, as by paying debts due from the testator, or receiving any debts due to him, or giving acquittances, &c.

If there are many executors of a will, and only one of them prove the will, and take upon him the executorship, it is sufficient for them all; and even after the death of the acting executor, the right of executorship survives to them; but if two executors are appointed by will, and one of them prove the will, in the name of both, without the consent of the other, this will not bind him who refused the executorship, unless he administers.

If executors waste the goods of the testator, the court of Chancery will, on the application of creditors, appoint a receiver of the testator's effects, in order to protect them. Or if they retain money in their hands, they are chargeable with interest and costs, if any have been incurred; but they are not liable for the property of the deceased, unless it has been lost through wilful negli gence, or without taking reasonable care to prevent such defalcation. Neither is one executor answerable for money received or detriment occasioned by his co-executor, unless it has been by means of some joint act done by them.

If a creditor make his debtor executor, it is an extinguishment of the debt; for an executor cannot sue himself; but still, in

equity, an executor who was indebted to the testator is bound to account for his debt to the estate of the testator.

IL-DUTIES OF EXECUTORS AND ADMINISTRATORS.

The first thing to be done is to bury the deceased in a manner suitable to his rank in life and the estate he has left behind him. la strictness, no funeral expenses are allowed against a creditor except for the coffin, tolling the bell, parson, clerk, and bearers' fees, but not for the pall or ornaments. But if there are assets ficient, the allowance is regulated by the rank and property of the deceased.

It is the duty of the executor or administrator to apply for probate of the will or for letters of administration. Any will may now be proved in, or letters of administration granted by, the principal registry of the court of Probate, without regard to the abode of the testator.

A district registry of the court of Probate may grant probate of a will in common form or by letters of administration (Part II. chap. i. s. 3, p. 60). The will must be proved within six months after the death of the testator, under a penalty of £50, by 37 G. 3, c. 90.

Neither probate nor letters of administration will be granted until the probate duty payable in respect of the full value, without any deduction, of all the deceased's personal (including leasehold) property has been paid. The executor or administrator can at any time within three years of the death of the deceased obtain a return of probate duty in respect of any debts that have been actually paid, and the receipt of the payment thereof produced.

After obtaining probate, an inventory must be made of all the goods and chattels, whether in possession or action, of the deceased, which, if required, must be delivered upon oath, in the presence of two credible witnesses, and to which, if so delivered, no creditor is at liberty to object.

III.-DISPOSITION OF THE ASSETS.

All the debts and effects of the deceased collected in become assets in the hands of the executor, chargeable to creditors, legatees, and kindred of the deceased, and payable in the following order :

1. The executor must pay all funeral charges, the expenses of proving the will, and other necessary outgoings, incurred in the execution of the trust. 2. He must pay all debts due to the queen. 3. Such debts as are due by particular statutes; as money due for poor-rates, for post-office letters, or to a friendly society. 4. Debts of record on judgment of courts of law, and debts due on mortgage. 5. Debts due on special contracts, as for rent in arrear, and debts due on bond or covenant under seal, and debts on

simple contract, as promissory notes, bills of exchange, or verbal promises; for by 32 & 33 V. c. 46, all speciality and simple contract debts of deceased persons are to stand in equal degree after 1st January, 1870. And, lastly, legacies must be paid.

If an executor pays debts of a lower degree first, and should there be a deficiency of assets, he is bound to answer those of a higher nature out of his own estate.

With respect to the disposition of the residue of testators, it has been provided by 1 W. 4, c. 40, that executors, unless otherwise appointed in the will, shall only be deemed trustees of the undisposed residue for the benefit of such as would be entitled, under the Statute of Distributions, if the testator had died without a will. But this is not to prejudice the rights of executors to the residue, when there is not any person entitled to claim under the Statute of Distributions.

By 3 & 4 W. 4, c. 42, executors may bring actions for injuries committed to the real estate of the deceased during his life, and the contrary, against the executors for injuries to property, real or personal, by the testator. Executors suing in right of testator have been made liable to costs in case of nonsuit or verdict passing against them.

For procedure in Chancery in administration suits, see p. 78.

CHAPTER XII.

Husband and Wife.

MARRIAGE is a civil contract in which the wife, in respect of property and some other relations, partly loses her legal individuality, and becomes incorporated with, and subordinate to, her husband. Upon this principle, a man cannot grant anything to his wife without the intervention of trustees, or enter into cove nant with her; for the grant would be to suppose her separate existence, and to covenant with her would be to covenant with himself.

The sanctity of the marriage contract has been heretofore determined by the principles and rules of the ecclesiastical courts, conformable to which the court for Divorce and Matrimonial Causes is guided, except in proceedings to dissolve marriages. The courts of common law and equity view unlawful or incestuous marriages only as immoralities, excepting the case of bigamy, which, though it has been a matter of ecclesiastical jurisdiction as respects the annulling of the marriage, is, by the statute law, classed as a crime of which the law takes cognizance.

For the validity of marriage are requisite:-1. The mutual consent of the parties. 2. The absence of all legal disability, arising out of previous marriage, relationship, or corporal infirmity;

but corporal infirmity ensuing after marriage will not vacate the marriage, because there was no fraud in the original contract; and one of the ends of marriage, namely, the legitimate procreation of children, may have been answered. 3. The marriage rite must be solemnized, as prescribed by the Marriage Act, between persons of sound mind, of the age of fourteen in males, and twelve in females. Fraud will sometimes be a ground for annulling a marriage; as on account of banns having been published, or license obtained, under false names; but unless the name was assumed for the purpose of defrauding the other party or the parents, the circumstance of the marriage being in a fictitious name will not invalidate the contract. Error about the family or fortune of the individual, though produced by unfair representation, will not at all affect the legal validity of the marriage, 1 Phil. E. C. 137. And the wife gains her husband's settlement, though the marriage is brought about by fraud on the part of the parish officers, 8 B. & C. 29. Marriages may be dissolved by death or by divorce (see p. 62).

II.-POWERS OF THE HUSBAND.

All the personal property, as money, goods, and household furniture, that was the property of the wife at the time of marriage, becomes vested in the husband, and placed at his absolute disposal. Bat of real property, the freehold and inheritance of the wife, the husband can only receive the profits during her life. The law gives the like limited power over any real estate accruing to the wife during coverture.

A married woman has no authority to make a contract without the authority or assent of her husband, express or implied. If a wife sell or dispose of the goods of her husband, the sale is void; or if she buy goods without his consent, he is not chargeable with them. So, also, a note or bill drawn or endorsed by a married woman is void.

A husband may restrain his wife of her liberty in case of gross misbehaviour; but in case of unreasonable or improper confinement, the law will relieve the wife by habeas corpus.

If the wife be injured in her person or property, she can bring no action for redress without the concurrence of her husband; Deither can she be sued without making the husband defendant. An exception to the rule is, when the husband has been transported or banished; for then he is dead in law.

By 16 & 17 V. c. 83, husbands and wives are made admissible witnesses in any judicial issue or inquiry; but this does not extend to criminal trials (see Evidence and Part II. c. i. s. 4, p. 66).

In treason the wife is admitted as witness for the crown against the husband; so, also, in an indictment for forcible abduction and marriage; and in bigamy, though the first wife cannot be witness, the second may, the second marriage being void.