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2. THE executor, or the adminiftrator durante minore aeta→ te, or durante abfentia, or cum teftamento annexo, must prove the will of the deceased: which is done either in common form, which is only upon his own oath before the ordinary, or his furrogate; or per teftes, in more folemn form of law, in cafe the validity of the will be difputed w. When the will is fo proved, the original must be depofited in the registry of the ordinary; and a copy thereof in parchment is made out under the feal of the ordinary, and delivered to the executor or administrator, together with a certificate of it's having been proved before him: all which together is usually stiled the probate. In defect of any will, the perfon entitled to be administrator muft alfo at this period take out letters of administration under the feal of the ordinary; whereby an executorial power to collect and administer, that is, difpofe of the goods of the deceased, is vefted in him: and he muft, by ftatute 22 & 23 Car. II. c. 10. enter into a bond with fureties, faithfully to execute his truft. If all the goods of the deceased lie within the fame jurifdiction, a probate before the ordinary, or an administration granted by him, are the only [509 1 proper ones but if the deceafed had bona notabilia, or chattels to the value of a hundred fhillings, in two diftinct dioceses or jurifdictions, then the will must be proved, or admini stration taken out, before the metropolitan of the province, by way of fpecial prerogative; whence the courts where the validity of fuch wills is tried, and the offices where they are registered, are called the prerogative courts, and the preroga tive offices, of the provinces of Canterbury and York. Lyndewode, who flourished in the beginning of the fifteenth century, and was official to arch-bishop Chichele, interprets thefe hundred fhillings to fignify folidos legales; of which he tells us feventy-two amounted to a pound of gold, which in his time was valued at fifty nobles or 161. 13. 4d. He therefore computes that the hundred fhillings, which conftituted bona notabilia, were then equal in current money to 231. 3. od. This will account for what is faid in our antient

w Godolph. p. 1. c. 20. § 4.
8 4 Inft. 335.
VOL. II.

y Provine. l. 3. t. 13. c. item. ~. centum. & ftatutum. v. laicis,

books,

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BOOK II. books, that bona notabilia in the diocese of London, and indeed every where elfe, were of the value of ten pounds by compofition: for, if we pursue the calculations of Lyndewode to their full extent, and confider that a pound of gold is now almost equal in value to an hundred and fifty nobles, we shall extend the present amount of bona notabilia to nearly 70%. But the makers of the canons of 1603 understood this antient rule to be meant of the fhillings current in the reign of James I, and have therefore directed that five pounds shall for the future be the ftandard of bona notabilia, so as to make the probate fall within the archiepifcopal prerogative. Which pres togative (properly understood) is grounded upon this reafonable foundation: that, as the bishops were themselves originally the adminiftrators to all inteftates in their own diocese, and as the prefent adminiftrators are in effect no other than their officers or fubftitutes, it was impoffible for the bishops, or those who acted under them, to collect any goods of the deceased, other than fuch as lay within their [510] own diocefes, beyond which their epifcopal authority extends not. But it would be extremely troublesome, if as many adminiftrations were to be granted, as there are diocefes within which the deceased had bona notabilia; befides the uncertainty which creditors and legatees would be at, in case different administrators were appointed, to ascertain the fund out of which their demands are to be paid. A prerogative is therefore very prudently vested in the metropolitan of each province, to make in fuch cases one administration ferve for all. This accounts very fatisfactorily for the reason of taking out administration to inteftates, that have large and diffufive property, in the prerogative court: and the probate of wills naturally follows, as was before obferved, the power of granting administrations; in order to fatisfy the ordinary that the deceased has, in a legal manner, by appointing his own executor, excluded him and his officers from the privilege of adminiftring the effects.

24 Inft. 335. Godolph. p. 2. c. 22.
a Plowd. 281,

b can. 92

3. THE executor or administrator is to make an inventory of all the goods and chattels, whether in poffeffion or action, of the deceased; which he is to deliver in to the ordinary upon oath, if thereunto lawfully required.

4. HE is to collect all the goods and chattels fo inventoried; and to that end he has very large powers and interests conferred on him by law; being the reprefentative of the deceased, and having the fame property in his goods as the principal had when living, and the fame remedies to recover them. And if there be two or more executors, a fale or release by one of them fhall be good against all the reft; but in cafe of administrators it is otherwife f: Whatever is fo recovered, that is of a faleable nature and may be converted into ready money, is called affets in the hands of the executor or adminiftrator; that is fufficient or enough (from the French affez) to make him chargeable to a creditor or legatee, fo far as fuch goods and chattels extend. Whatever affets fo come to his hands he may convert into [ 511 ]. ready money, to answer the demands that may be made upon him (12): which is the next thing to be confidered; for,

5. THE executor or administrator must pay the debts of the deceased. In payment of debts he muft obferve the rules of priority; otherwise, on deficiency of affets, if he pays those of a lower degree first, he must answer thofe of a higher out of his own eftate. And, first, he may pay all funeral charges, and the expense of proving the will, and the like. Secondly, debts due to the king on record or fpecialty ". Thirdly, fuch debts as are by particular ftatutes to be preferred to all others; as the forfeitures for not burying in

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(12) The goods of a teftator, in the poffeffion of the executor, cannot be taken in execution of a judgment in an action brought against the executor in his own right. 47. R. 621.

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woollen, money due upon poors rates, for letters to the poft-office', and fome others. Fourthly, debts of record; as judgments, (docquetted according to the statute 4 & 5 W. & M. c. 20.) ftatutes, and recognizances "(13). Fifthly, debts due on fpecial contracts; as for rent, (for which the leffor has often a better remedy in his own hands, by diftreining) or upon bonds, covenants, and the like, under feal" (14) Lastly, debts on fimple contracts, viz. upon notes unfealed, and verbal promises. Among these fimple contracts, servants wages are by fome with reafon preferred to any other: and so stood the antient law, according to Bracton and Fleta, who reckon, among the first debts to be paid, fervi tia fervientium et ftipendia famulorum. Among debts of equal degree, the executor or administrator is allowed to pay himfelf firft; by retaining in his hands fo much as his debt amounts to. But an executor of his own wrong is not allowed to retain: for that would tend to encourage creditors to strive who should first take poffeffion of the goods of the deceased; and would befides be taking advantage of his own wrong, which is contrary to the rule of law'. If a [ 512] creditor conftitutes his debtor his executor, this is a releafe

or discharge of the debt, whether the executor acts or no'; provided there be affets fufficient to pay the teftator's debts: for, though this discharge of the debt shall take place of all legacies, yet it were unfair to defraud the teftator's creditors of their juft debts by a release which is abfolutely voluntary". Alfo, if no fuit is commenced against him, the executor

i Stat. 30 Car. II. c. 3.
k Stat. 17 Geo. II. c. 38.
1 Stat. 9 Ann. c. 10.

4 Rep. 60. Cro. Car. 363.

A Wentw. ch. 12.

Pl. 2. c. 26.

a l. 2. c. 56. § 10.

10 Mod. 496. See vol. III. p. 18. Rep. 30.

t Plowd. 184. Salk. 299.

1 Roll. Abr. 927.

u Salk. 303.

1 Roll. Abr. 921.

(13) To this clafs of debts must be added a decree of a court of equity. 3 P.Wms. 401.

(14) A court of equity will order voluntary bonds or other fpecial contracts, without confideration, to be poftponed to fimple contract debts. 3 P. Wms.222.

may

may pay any one creditor in equal degree his whole debt, though he has nothing left for the reft: for, without a fuit commenced, the executor has no legal notice of the debt "(15). w Dyer. 32.

2 Leon. 60.

(15) After a fuit is commenced, the executor or adminiftrator may ftill give a preference to other creditors of the fame degree, by confefling a judgment to them for the real amount of their. debts. 1 P. Wms. 295. But after a bill is filed by a creditor for a discovery of affets and payment of his debt, the executor or administrator may pay another creditor of equal degree without confeffing a judgment. 3 P. Wms. 401.

The courfe of adminiftration or payment of the debts according to their priority applies only to legal affets; but as natural equity requires that all the creditors of the teftator fhould be paid equally, when therefore the teftator leaves his real eftates to truftees or to executors, who thus become trustees for the payment of his debts, thefe are called equitable affets, because a court of equity will order all the creditors to be paid pari passu, or an equal share out of this fund. 1 Bro. 138. 2 Atk. 50.

And even where specialty creditors have received part of their debts out of the personal estate, a court of equity will restrain them from receiving any part of the equitable fund, till all the other creditors are paid an equal proportion of their debts.

Wms. 322.

The perfonal estate is faid to be the natural fund for the payment of debts, yet it will be exonerated if the teftator leaves by his will fufficient real property for the payment of his debts, provided it is the manifeft intention that the perfonal estate shall be exonerated, and that the real estate shall be alone applied to that purpofe. 1 Bro. 462. 2 Bro. 60.

If lands defcend to the heir charged by the teftator with his debts, there it fhall be liable to all his debts, although it fhall be confidered as legal affets, and they shall be paid according to their priority. 2 Atk. 290. 1 P. Wins. 430. The equity of redemption of lands, mortgaged in fee, is equitable affets; for the creditors can have no relief from it but in a court of equity. 2 Atk. 290.

All fpecialty creditors, where the teftator has bound himself and his heirs, have their election, whether they will refort to the heir, who

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