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RETAINER. The act of withholding what one has in one's own hands by virtue 
of some right. 
     2. An executor or administrator is entitled to retain in certain cases, 
for a debt due to him by the estate of a testator or intestate. 
     3. It is proposed to inquire, 1. Who may retain. 2. Against whom. 3. On 
what claims. 4. What amount may be retained. 
     4.-1. In inquiring who may retain, 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. 
     5.-1. A sole executor may retain in those cases where, if the debt 
had been due to a stranger, such stranger might have sued the executor and 
recovered judgment; or where the executor might, in the due administration 
of the estate, have paid the same. 3 Burr. 1380. He may, therefore, retain 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 
retained when administration is committed to another for the use of the 
creditor who is a lunatic; 3 Bac. Abr. 10, n; Com. Dig. Administration, C or 
an infant entitled to administration. 4 Ves. 763. An executor may retain if 
he be the executor of the first testator; but an executor of one of the 
executors of the first testator, the other executor, being still living, is 
not an executor of the first testator, and therefore cannot retain. 11 Vin. 
Abr. 363, An executor may retain before he has proved the will, and if he 
die after having intermeddled with the goods of the testator and before 
probate, his executor has the same power. 3 P. Wms. 183, and note B.; 11 
Vin. Abr. 263. 
     6.-2. Where there are several executors, and one has a claim against 
the estate of the deceased, he may retain with or without the consent of the 
others; Off. Ex. 33; but where several of them have debts of equal degree 
they can retain only pro rata. Bac. Abr. Executors, A 9. 
     7.-II. 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. 
     8.-1. Where the deceased was sole obligor, his executor may clearly 
retain. 
     9.-2. 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; Com. Dig. Administration,, C 1; or the obligee takes out letters of 
administration to him, the debt is immediately satisfied by way of retainer, 
if, the executor or administrator have sufficient assets. 
    10.-3. 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 
assets to pay the debt came to his hands, it is no discharge, for there is 
nothing for him to retain. 8 Serg. & Rawle, 17. 
    11.-III. On what claims. 1. As to the priority of the claim. 2. As to 
its nature. 
    12.-1. In the payment of the debts of a decedent, the law gives a 
preference to certain debts over others, an executor cannot, therefore, 
retain 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 recovered in prejudice of such a creditor. 5 Binn. 167 Bac. Ab. 
Executors, A 9; Com. Dig. Administration, C 2; 1 Hayw. 413. He may retain 
only where he has superior claim, or one of equal degree. 3 Bl. Com. 18; 11 
Vin. Abr. 261; Com. Dig. Administration, C 1. And in a case where two men 
were jointly bound in a bond, one as principal, the other as surety, after 
which the principal 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 retain 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 Serg. & Rawle, 9; after having paid the debt, however, he became a 
simple contract creditor, and might retain it as such. Com. Dig. 
Administration, C 2, n. 
    13.-2. As to the nature of the claim for which an executor may retain, 
it seems that damages which are in their nature arbitrary cannot be 
retained, because, till judgment, no man can foretell their amount; such are 
damages upon torts. But where damages arise from the breach of a pecuniary 
contract, there is a certain measure for them, and such damages may well be 
retained. 2 Bl. Rep. 965; and see 3 Munf. 222. A debt barred by the act of 
limitation may be retained, for the executor is not bound to plead the act 
against others, and it shall, therefore, not operate against him. 1 Madd. 
Ch. 583. 
    14.-IV. What amount may be retained. 1. By the common law an executor 
is entitled to retain 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 obtaining a judgment might have obtained a preference. Where however, 
the executor cannot, by bringing suit, obtain a preference, the reason 
seems changed, and therefore in Pennsylvania, when do such preference can be 
obtained, the executor is entitled to retain only pro rata with creditors of 
the same class. 8 Serg. & Rawle, 17; 5 Binn. 167. A creditor cannot obtain a 
reference by bringing suit and obtaining judgment against executors in the 
following states, namely: Alabama; 4 Griff. L. R. 582; Connecticut; 3 Griff. 
L. R. 75; Illinois; Id. 422; Louisiana;, 4 Griff. L. R. 693; Maine; Id. 
1004; Maryland; Id. 938; Massachusetts; 3 Griff. L. R. 516 Mississippi; 4 
Griff. L. R. 669; Missouri Id. 625; Now Hampshire; 3 Griff. L. R 46; Ohio; 
Id. 402; Pennsylvania; Id. 262; 8 Serg. & Rawle, 17; 5 Binn. 1 67; Rhode 
Island; 8 Griff. L. R. 114; South Carolina; 4 Griff. L. R. 860; Vermont; 3 
Griff. L. R. 20. Such a preference can be given by the laws of the following 
states, namely: Delaware; 4 Griff. L. R. 1064; Kentucky; Id. 1135; North 
Carolina; 3 Griff. L. R. 221; Now Jersey; 4 Griff. L. R. 1282; New York; 3 
Griff. L. R, 141; Tennessee; 4 Griff. L. R. 791; Virginia; 3 Griff. L. R. 
360, In Georgia; 3 Griff. L. R. 444; and Indiana.; Id. 467; the matter is 
doubtful. 
    15.-2. Where the estate is solvent an executor may of course retain 
for the whole of his debt, with interest.