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son in his own right, should stand chargeable with the payment of all his just debts, as well as his personal estate, and should be liable to be taken in execution and satisfaction of the same. It further provided, that where the goods and chattels of any deceased person were insufficient to discharge his just debts due at the time of his decease, the superior court should grant license to the executor or administrator to sell all, or so much of the real estate, as should be necessary to satisfy his just debts. This appears to be the first law which made real estate liable to the payment of debts generally, in any part of this country. The effect of it was highly important and beneficial; but the provisions relating to the equitable distribution of the estates of persons dying insolvent were still defective, particularly as they were confined to persons dying intestate. To remedy these defects, a statute was passed, four years after, (8 W. & M. C. 36,) extending the former provisions to the estates of all persons dying insolvent, testate as well as intestate, and directing an equal distribution among all the creditors, “saving that debts due to the crown, and those incurred for the sickness and necessary funeral charges of the deceased, were to be first paid. It also authorized the executor or administrator, notwithstanding the allowance of the commissioners, “to contest the proof of any debt, at the common law.” This seems to have allowed an appeal from the decision of the commissioners to a court of law, only on one side, that is, when the executor or administrator was dissatisfied with their allowance of the claim. But where the claim had been disallowed by the commissioners, the rights of the creditors seem to have been absolutely foreclosed. From this time no further alteration was made in the law relative to the subject under consideration, until after the revolution which severed the American colonies from the parent state, a period of almost a century.
Upon the revision of the provincial code in 1784, the only new provision of importance which was introduced, was to authorize any creditor, whose claim should be either wholly or in part rejected by the commissioners, to have it determined by a court of law, provided he should give notice at the probate office within twenty days after the report should be made, and bring his action “as soon after as may be;” which last expression has been construed not to require that in every case the action should be commenced at the next term of the court of common pleas. (Guild v. Hale, Ex’r., 15 Mass. Rep. 455.) It also provides, that the executor or administrator, to whom the like privilege, (as was before observed,) had been given by the provincial statute, should give notice in the same manner and within the same time of his intention to avail himself of it. And instead of the expression “debts due to the crown,” in the provincial act, the legislature have substituted the words, “all rates and taxes, and debts due to the commonwealth.”
Such are the provisions of our insolvent laws, in relation to the property of deceased debtors. Their great object is the distribution of all the effects, pro rata, among the creditors, with exception of the privileged debts beforementioned, which are to be discharged in the first place by the executor or administrator. For this purpose all the personal estate of the deceased, and all the real estate of which he died seised in fee simple, or in tail, or as tenant pur auter vie, go to constitute a common fund. The whole is to be collected and reduced to money by the executor or administrator. The claims of the creditors, and the distribution of the effects, are adjusted and decreed in the probate court, and by proceedings under its authority. The law allows the executor or administrator an exemption from suits for the space of one year, to ascertain the condition of the estate. If he believes it insolvent, he will so represent it to the judge of probate. If the judge allows the representation, he awards a commission of insolvency, and the estate is then said to be apparently insolvent. The law will not, after this, permit any of the property to be seized upon by the creditors, under legal process, until the fact of actual insolvency shall be ascertained. But it is not until the return of the commission, the settlement of the administration account, and a decree of distribution by the judge, that there is legal evidence of an absolute insolvency. When this takes place, it only remains for the executor or administrator to distribute the property among the creditors, pursuant to the decree. The provisions of our insolvent laws, it may be here observed, have so far altered the course of pleading and other proceedings by executors and administrators in cases of insolvency, that English precedents are almost wholly inapplicable. In the English courts, the defendant, who is sued in that capacity, may plead payment of debts by record, specialty, or simple contract, where the plaintiff’s claim is not of a higher grade, and that he has no assets beyond. Or he may plead a retainer for his own debt, and the like, in bar of a demand of the same or an inferior degree. These pleas are called pleading a special plene administravit. He may also plead plene administravit generally, where he has appropriated the assets in payment of the debts in their order of priority, as far as they will go. Under our law the case is very different. The executor or administrator has no right to pay any except privileged debts in full, unless there is property sufficient to pay all the debts. He cannot therefore plead either a special or general plene administravit, at least according to the forms of the English practice. One consequence of this difference in our law is, that suffering a default by an executor or administrator is not conclusive evidence of assets, as in England. If the estate proves to be insolvent, even after a judgment recovered against him, he may plead the insolvency in bar to the scire facias (Colman v. Hall, 12 Mass. R. 570). On the whole, it is very manifest, that our insolvent laws are equitable and highly beneficial to the community; but at the same time, it must be admitted that they have enhanced, in no inconsiderable degree, the difficulty, and even the peril of administering and settling insolvent estates. With this view of the law of Massachusetts, we are now to notice some of the most important points in which the laws of the other states differ from it, or from the rules of the common law upon this subject. And here, as upon most other subjects of municipal law, considerable diversity will be found to exist. All the state legislatures have departed from the law of England, but in very different degrees. In those states in which courts of equity have been established, particularly in New York, Maryland, Virginia, and South Carolina, their aid has been frequently resorted to, in the settlement of insolvent estates. In the other states, these proceedings have been generally, if not wholly, conducted in the courts of probate, or orphan's court, either with the aid of commissioners, or by the agency of its own officers, according to the different views of the state legislatures. In the New England states, it may be observed, that Massachusetts has generally taken the lead in the most material changes from the common law. Her acts of legislation, upon this, as upon many other subjects, have been almost literally transcribed by New Hampshire, Vermont and Rhode Island. In Connecticut also, the general system is the same, with only some slight difference in the forms of proceeding. In all these states, the real, as well as personal property of deceased insolvents goes to constitute a general fund for the payment of debts; and no preference is given to one security over another. In New York likewise, the real property is liable to the
payment of all the debts; and no distinction is made between specialties and simple contracts. But judgments of all courts of record, if docketed in the manner prescribed by the statute, not only have a general preference, but are a permanent lien upon the land, for the space of ten years. This privilege, however, does not extend to recognisances, nor, (as it seems,) to decrees of the court of chancery. And this court may in some cases interpose, as in England, for the purpose of making an equitable distribution of real aSSetS. The law of New Jersey does not essentially differ from that of New York: though the relief afforded by equity is much more limited. In both the last mentioned states the course of pleading by executors and administrators is very analogous to that of the English practice; and the suffering a default is conclusive evidence of assets. By the law of Pennsylvania, lands of deceased insolvents are subjected to the payment of their debts; and the order in which they are to be discharged is prescribed, in case of deficiency of assets. It recognises the ancient common law, as stated by Bracton, and includes the wages of servants, with the expenses of the last sickness and funeral, in the most favored class of debts. After these are to be paid rents in arrear, not exceeding one year, next judgments, then recognisances, after these bonds and other specialties, then all other debts, without distinction, except debts due to the state, which, (contrary to the law of England, and most of the other states,) are postponed to all others. In order to effect this distribution, auditors are appointed by the orphan's court, whose power and duty are very similar to that of commissioners with us. The state of Delaware follows substantially the law of Pennsylvania, but with some unimportant variations. In Maryland, a more limited scale of precedence is established. Judgments and decrees of courts of equity are en