PART III. cutor or administrator their claims against CAP. XI. the estate of the testator or intestate, such TIT. II. distributive share or legacy. executor or administrator will, at the expiration of the time named in the notices for sending in such claims, be at liberty to distribute the assets among the parties entitled thereto, having regard to the claims of which such executor or administrator has then notice, and will not be liable for the assets so distributed to any person of whose claim such executor or administrator shall not have had notice at the time of distribution of such assets. 1055. Action for a An action at Law wo ld not lie against the personal representative, as such, for a distributive share of an intestate's property, or for a legacy, other than a specific legacy to which the executor had assented, except in the County Courts for a sum not exceeding 501. But an action might be maintained against him for such a share or a general legacy, not as executor or administrator, but as admitting that he had possession of a definite sum belonging to the plaintiff. (2 Wms. Ex. 1746-8; Rosc. 727; Chit. Con. 246.) 1056. Action for trust money. Again, an action was not maintainable by a cestui que trust against his trustee, as such, for money in his hands; for, at Law, the property belonged to the trustee. But a cestui que trust might sue at Law for an ascertained sum of money admitted by the trustee to be in his hands and to belong to the cestui que trust absolutely. (Chit. Con. 260-1; Ad. Con. 34, 36) 1057. PART III. TIT. II. CAP. XI. son tort. If a person, who is neither executor nor Executor de administrator, interferes with the estate of the deceased in this country, in an officious and unnecessary manner, he constitutes himself what is called an executor de son tort, and becomes subject to all the liabilities of an executor. (1 Wms. Ex. 225–240; Ad. Con. 850.) But there are many acts which a stranger may do, where needful, without incurring any such liability; such as giving directions for the funeral of the deceased, making an inventory of his effects, providing necessaries for his children, or doing other acts of kindness which are due from one neighbour or friend to another. (Chit. Con. 9th ed. 338.) 1058. The executor of an executor de son tort is not liable for the acts of the deceased person in whose property the executor de son tort has intermeddled. (Wilson v. Hodson, L. R. 7 Ex. 84.) 1059. There may be an executor de son tort of a term alone. (1 Wms. Ex. 6th ed. 248; Williams v. Heales, L. R. 9 C. P. 177.) 1060. 438 TITLE III. RELATIONS OF LIFE IN RESPECT OF EMPLOYMENT. TIT. III. CHAPTER I. EMPLOYERS AND EMPLOYED; INCLUDING PART III. A CONTRACT of hiring and service need not be created or evidenced by writing, unless it is for more than a year. (Ad. Con. 382.) 1061. Legal im port of the term servant. Hiring, when presumed. The term servant legally applies not only to menial servants, but to other persons employed for hire in a person's domestic establishment, or in his business; such as tutors, governesses, and clerks. 1062. A hiring at reasonable wages may be presumed from the very fact of service, where it is customary to pay them, except in the case of near relatives. (Ad. Con. 382; Sm. Mast. and Serv. 113, 114.) 1063. If no time is limited for the duration of the service, either expressly or by implicadetermine tion, the hiring is a general one, and is Duration of service, and notice required to it. ordinarily deemed to be for a year certain, unless there are circumstances which give rise to a different presumption; and if the servant continues beyond the first or any subsequent year, a contract for a second or further year is implied. Where the hiring is for a year, and so from year to year so long as the parties please, not determinable by custom or agreement, a reasonable notice on either side is necessary to determine it, expiring at the end of the current year of the service. A quarter's notice is sufficient in all cases; but in many cases, a month's notice is enough. (See references infra, par. 1066.) 1064. Where an agreement is entered into to act as agent "for twelve months certain, after which time either party shall be at liberty to terminate the agreement by giving to the other a three months' notice," there at the close of the twelve months, the agreement can be determined by either party without any notice; and the stipulation as to a three months' notice only applies in case of the engagement being prolonged beyond twelve months. (Langton v. Carleton, L. R. 9 Ex. 57.) 1065. Whether verbally or in writing, a general hiring of menial or domestic servants, i.e., a PART III. TIT. III. CAP. I. TIT. III. CAP. I. PART III. hiring without any engagement as to the duration of the service, but at a yearly sum, is a hiring for a year, and so on from year to year, dissoluble by a month's warning (a) on either side, or payment by the master, or forfeiture or payment by the servant, of a month's wages. Quarterly, monthly, or weekly wages are, however, not inconsistent with a yearly hiring, but may be merely a mode of payment. But in the absence of indications to the contrary, a general hiring at monthly or weekly wages is but a hiring for a month or a week, and so on from month to month, or from week to week. (Sm. Merc. Law, 425-6; Sm. Mast. and Serv. 2nd ed. 46, 50, 52; 3rd. ed. 105; 2 Ste. Com. 239-240; Rosc. 11th ed. 278; Chit. Con. 8th ed. 533, 535; Ad. Con. 6th ed. 366-7, 371; Nicoll v. Greaves, 17 C. B. (N. S.) 27, 34.) 1066. It would seem that the indefinite engagement of a governess or a clerk is an engagement for a year, but determinable by three months' notice. (Pollock, C. B., in Fairman v. Oakford, 5 Hurl. & Norm. 635.) 1067. Unless there is an express or implied stipulation to the contrary, there is an implied condition in contracts for personal services, (a) This would seem to be a calendar month, if the wages are paid for a calendar month. |