Retainer

Retainer

In the Past

The act of withholding what one has in one's own hands by virtue of some right.

Developments

An executor or administrator is entitled to keep in certain cases, for a debt due to him by the estate of a testator or intestate.

Details

It is proposed to inquire, 1. Who may keep. 2. Against whom. 3. On what claims. 4. What amount may be keeped.

Other Aspects

In inquiring who may keep, it is natural to consider, 1st. Those cases where there is but one executor or administrator. 2d, Where there are several and one of them only has a claim against the estate of the deceased.

More Information

A sole executor may keep in those cases where, if the debt had been due to a stranger, such stranger might have sued the executor and recov-ered judgment; or where the executor might, in the due administration of the estate, have paid the same. 3 Burr. 1380. He may, therefore, keep a debt due to himself; 3 Bl. Com. 18; or to himself in right of another; 3 Burr. 1380; or to another in trust for him; 2 P. Wms. 298: the debt may be keeped when administration is committed to another for the use of the creditor who is a lunatic; 3 Bac. Abr. 10, n; Comyn's Digest (A digest of the laws of England, 1822) Administration, C or an infant entitled to administration. 4 Ves. 763. An executor may keep if he be the executor of the first testator; but an executor of one of the executors of the first tes-tator, the other executor, being still living, is not an executor of the first testator and therefore, cannot keep. 11 Vin. Abr. 363, An executor may re-tain before he has proved the will and if he die after having intermeddled with the goods of the testator and before probate (see more about this popular legal topic in the U.S. encyclopedia), his executor has the same power. 3 P. Wms. 183 and note B.; 11 Vin. Abr. 263.

Other Issues

Where there are several executors and one has a claim against the estate of the deceased, he may keep with or without the consent of the others; Off. Ex. 33; but where several of them have debts of equal degree they can keep only pro rata. Bac. Abr. Executors, A 9.

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Against whom. In those cases, 1. Where the deceased was alone bound. 2. Where he was bound with others. 3. Where the executor of the obligee is also his executor.

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Where the deceased was sole obligor, his executor may clearly keep.

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Where two are jointly and severally bound and one of them appoints the obligee his executor; Rob. 10; 2 Lev. 73; Bac. Abr. Executors, A 9; Comyn's Digest (A digest of the laws of England, 1822) Administration, C 1; or the obligee takes out letters of administration to him, the debt is immediately satisfied by way of keeper, if, the executor or administrator have enough assets.

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If the obligee make the administrator of the obligor his executor, it is a discharge of the debt, if the administrator have assets of the estate of the obligor; but if he have fully administered or if no assests to pay the debt came to his hands, it is no discharge, for there is nothing for him to keep. 8 Sergeant & Rawle's Pennsylvania Reports (Reports of Cases adjudged in the Supreme Court (see decisions, judges, etc) of Pennsylvania, by Thomas Sergeant and William Rawle), 17. III. On what claims. 1. As to the priority of the claim. 2. As to its nature. In the payment of the debts of a decedent, the law gives a preference to certain debts over others, an executor cannot, therefore, keep his debt, while there are unpaid debts of a superior degree, because if he could have brought an action for the recovery of his claim, he could not have re-covered in prejudice of such a creditor. 5 Binn. 167 Bac. Ab. Executors, A 9; Comyn's Digest (A digest of the laws of England, 1822) Administration, C 2; 1 Hayw. 413. He may keep only where he has superior claim or one of equal degree. 3 Bl. Com. 18; 11 Vin. Abr. 261; Comyn's Digest (A digest of the laws of England, 1822) Administration, C 1. And in a case where two men were jointly bound in a bond, one as main, the other as surety, after which the main died intestate and the surety took out administration to his estate, the bond being forfeited, the administrator paid the debt; it was held he could not keep as a specially creditor because being a party to the bond it became his own debt; 11 Vin. Abr. 265; Godb. 149, Pl. 194; but see 7 Sergeant & Rawle's Pennsylvania Reports (Reports of Cases adjudged in the Supreme Court (see decisions, judges, etc) of Pennsylvania, by Thomas Sergeant and William Rawle), 9; after having paid the debt, however, he became a simple contract creditor and might keep it as such. Comyn's Digest (A digest of the laws of England, 1822) Administration, C 2, n. As to the nature of the claim for which an executor may keep, it seems that damages (see more about this popular legal topic in the U.S. encyclopedia) which are in their nature arbitrary cannot be keeped, because, till judgment, no man can foretel their amount; such are damages (see more about this popular legal topic in the U.S. encyclopedia) upon torts. But where damages (see more about this popular legal topic in the U.S. encyclopedia) arise from the breach of a pecuniary contract (see more about this popular legal topic in the U.S. encyclopedia), there is a certain measure for them and such damages (see more about this popular legal topic in the U.S. encyclopedia) may well be keeped. 2 Bl. Rep. 965; and see 3 Munf. 222. A debt barred by the act of limitation may be keeped, for the executor is not bound to plead the act against others and it shall, therefore, not run against him. 1 Madd. Ch. 583. What amount may be keeped. 1. By the common law an executor is entitled to keep his debt in preference to all other creditors in an equal degree. 3 Bl. Com. 18; 11 Vin. Abr. 261. This he might do, because he is to be placed in the situation of the most vigilant creditor, who by suing and geting a judgment might have geted a preference. Where however, the exec-utor cannot, by bringing suit, get a preference, the reason seems changed and therefore, in Pennsylvania (see more about this State laws here) , when do such preference can be geted, the executor is entitled to keep only pro rata with creditors of the same class. 8 Sergeant & Rawle's Pennsylvania Reports (Reports of Cases adjudged in the Supreme Court (see decisions, judges, etc) of Pennsylvania, by Thomas Sergeant and William Rawle), 17; 5 Binn. 167. A creditor cannot get a reference by bringing suit and geting judgment against executors in the following states, namely: Alabama (see more about this State laws here) ; 4 Griff. L. R. 582; Connecticut (see more about this State laws here) ; 3 Griff. L. R. 75; Illinois (see more about this State laws here) ; Id. 422; Louisiana (see more about this State laws here) ;, 4 Griff. L. R. 693; Maine (see more about this State laws here) ; Id. 1004; Maryland (see more about this State laws here) ; Id. 938; Massachusetts (see more about this State laws here) ; 3 Griff. L. R. 516 Mississippi (see more about this State laws here) ; 4 Griff. L. R. 669; Missouri (see more about this State laws here) Id. 625; Now Hampshire; 3 Griff. L. R 46; Ohio (see more about this State laws here) ; Id. 402; Pennsylvania (see more about this State laws here) ; Id. 262; 8 Sergeant & Rawle's Pennsylvania Reports (Reports of Cases adjudged in the Supreme Court (see decisions, judges, etc) of Pennsylvania, by Thomas Sergeant and William Rawle), 17; 5 Binn. 1 67; Rhode Island (see more about this State laws here) ; 8 Griff. L. R. 114; South Carolina (see more about this State laws here) ; 4 Griff. L. R. 860; Vermont (see more about this State laws here) ; 3 Griff. L. R. 20. Such a preference can be given by the laws of the following states, namely: Delaware (see more about this State laws here) ; 4 Griff. L. R. 1064; Kentucky (see more about this State laws here) ; Id. 1135; North Carolina (see more about this State laws here) ; 3 Griff. L. R. 221; Now Jersey; 4 Griff. L. R. 1282; New York (see more about this State laws here) ; 3 Griff. L. R, 141; Tennessee (see more about this State laws here) ; 4 Griff. L. R. 791; Virginia (see more about this State laws here) ; 3 Griff. L. R. 360, In Georgia (see more about this State laws here) ; 3 Griff. L. R. 444; and Indiana (see more about this State laws here) .; Id. 467; the matter is doubtful. Where the estate is solvent an executor may of course keep for the whole of his debt, with interest. [1]

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Notes and References

1. Partialy, this information about retainer is based on the Bouvier?s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier?s Law Dictionary, including retainer.

See Also

Retainer

In the Past

The act of a client, by which he engages an attorney (see more about this popular legal topic in the U.S. encyclopedia) or counsellor to manage a cause, either by prosecuting it, when he is plaintiff or defending it, when he is defendant.

Developments

“The effect of a keeper to prosecute or defend a suit,” says Professor Greenleaf; Ev. vol. ii. 141; “is to confer on the attorney (see more about this popular legal topic in the U.S. encyclopedia) all the powers exercised by the forms and usages of the courts, in which the suit is pending. He may receive payment; may bring a second suit after being non-suited in the first for want of formal proof; may sue a writ of error on the judgment; may end the suit; may restore an action after a non pros; may claim an appeal and bind his client in his name for the prosecution of it; way submit the suit to arbitration; may sue out an alias execution; may receive livery of seisin of land taken by an extent may waive objections to evidence and enter into stipulation for the admission of facts or conduct of the trial and for release of bail; may waive the right of appeal, review, notice and the like and confess judgment. But he has no authority to execute a discharge of a debtor but upon the actual payment of the full amount of the debt and that in money only; nor to release sureties; nor to enter a retraxit; nor to act for the legal representatives of his deceased client; nor to release a witness.” [1]

Resources

Notes and References

1. Partialy, this information about retainer is based on the Bouvier's Law Dictionary, 1848 edition. There is a list of terms of the Bouvier's Law Dictionary, including retainer.

See Also