the rightful executor may be prevented from satisfying his own debt.(t)" But let us now see what are the power and duty of a rightful executor or administrator. 1. He must bury the deceased in a manner suitable to the estate which he leaves behind him. Necessary funeral expenses are allowed previous to all other debts and charges; but if the executor or administrator be extravagant, it is a species of devastation or waste of the substance of the deceased, and shall only be prejudicial to himself,(u) and not to the creditors or legatees of the deceased. 2. The executor, or the administrator durante minore ætate, or durante absentia, or cum testamento 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 surrogate; or per testes, in more solemn form of law, in case the validity of the will be disputed.(w) When the will is so proved, the original must be deposited in the registry of the ordinary; and a copy thereof in parchment is made out under the seal of the ordinary, and delivered to the executor or administrator, together with a certificate of its having been proved before him: all which together is usually styled the probate. In defect of any will, the person entitled to be administrator must also, at this period, take out letters of administration under the seal of the ordinary, whereby an executorial power to collect and administer, that is, dispose of the goods of the deceased, is vested in him and he must, by statute 22 & 23 Car. II. c. 10, enter into a bond with sureties faithfully to execute his trust. If all the goods of the deceased lie within the same jurisdiction, a probate before the *ordinary, or an *509] administration granted by him, are the only proper ones: but if the deceased had bona notabilia, or chattels to the value of a hundred shillings, in two distinct dioceses or jurisdictions, then the will must be proved or administration taken out before the metropolitan of the province, by way of special prerogative; (x) whence the courts where the validity of such wills is tried, and the offices where they are registered, are called the prerogative courts and the prerogative offices of the provinces of Canterbury and York. Lyndewode, who flourished in the beginning of the fifteenth century, and was official to archbishop Chichele, interprets these hundred shillings to signify solidos legales; of which he tells us seventy-two amounted to a pound of gold, which in his time was valued at fifty nobles, or 161. 13s. 4d. He therefore computes(y) that the hundred shillings, which constituted bona notabilia, were then equal in current money to 231. 3s. 04d. This will account for what is said in our antient books, that bona notabilia in the diocese of London, (2) and indeed everywhere else,(a) were of the value of ten pounds by composition: for if we pursue the calculations of Lyndewode to their full extent, and consider that a pound of gold is now almost equal in value to a hundred and fifty nobles, we shall extend he present amount of bona notabilia to nearly 701. But the makers of the canons of 1603 understood this antient rule to be meant of the shillings current in the reign of James I., and have therefore directed (b) that five pounds shall, for the future, be the standard of bona notabilia, so as to make the probate fall within the archiepiscopal prerogative. Which prerogative (properly understood) is grounded upon this reasonable foundation: that, as the bishops were themselves originally the administrators to all intestates in their own diocese, and as the present administrators are, in effect, no other than their officers or substitutes, it was impossible for the bishops, or those who acted under them, to col (v) Provinc. l. 3, l. 13, c. item. v. centum. &c, statutum v. laicis. () Wentw. ch. 14. () Salk. 198. Godolph. p. 2, c. 26, § 2. (w) Godolph. p. 1, c. 20, 24. (*) 4 Inst. 335. "It is held that the least intermeddling with the effects of the intestate-even milking cows, or taking a dog-will constitute an executor de son tort. Dy. 166. An executor of his own wrong will be liable to an action unless he has delivered over the goods of the intestate to the rightful administrator before the action is brought against him; and he cannot retain the intestate's property in discharge of his own debt, although it is a debt of a superior degree 3 T. R. 590. 2 T. R. 100.-CHRISTIAN. lect any goods of the deceased other than such as lay within their *own dioceses, beyond which their episcopal authority extends not. But it [*510 would be extremely troublesome if as many administrations were to be granted as there are dioceses within which the deceased had bona notabilia; besides the ncertainty 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 such cases one administration serve for all. This accounts very satisfactorily for the reason of taking out administration to intestates, that have large and diffusive property, in the prerogative court; and the probate of wills naturally follows, as was before observed, the powers of granting administrations; in order to satisfy the ordinary that the deceased has, in a legal manner, by appointing his own executor, excluded him and his officers from the privilege of administering the effects. 3. The executor or administrator is to make an inventory(c) of all the goods and chattels, whether in possession 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 so inventoried; and to that end he has very large powers and interests conferred on him by law; being the representative of the deceased, (d) and having the same property in his goods as the principal had when living, and the same remedies to recover them. And if there be two or more executors, à sale or release by one of them shall be good against all the rest; (e) but in case of administrators it is otherwise. (f) Whatever is so recovered, that is of a salable nature and may be converted into ready money, is called assets in the hands of the executor or administrator; (g) that is, sufficient or enough (from the French assez) to make him chargeable to a creditor or legatee, so far as such goods and chattels extend. *Whatever assets so come to his hands he may convert into ready money, to answer the demands that may be made upon him: which is the next thing to be considered; for, [*511 5. The executor or administrator must pay the debts of the deceased. In payment of debts he must observe the rules of priority: otherwise, on deficiency of assets, if he pays those of a lower degree first, he must answer those of a higher out of his own estate. 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 specialty.(h) Thirdly, such debts as are by particular statutes to be preferred to all others: as the forfeitures for not burying in woollen,(i) money due upon poor-rates, (k) for letters to the post-office,(l) and some others. Fourthly, debts of record; as judgments, (docketed according to the statute 4 & 5 W. and M. c. 20,) statutes and recognizances.(m)" Fifthly, debts due on special con (e) Stat. 21 Hen. VIII. c. 5. Dyer, 23. 1 Atk. 460. See page 244. (*) 1 And. 129. (1) Stat. 30 Car. II. c. 3. 22 The ecclesiastical courts do not compel all executors to give an inventory, ana always inquire into the interest of a party who requires one; but even a probable or contingent interest will justify a party in calling for an inventory; and, in such cases, that which is by law required generally must be enforced. There is only one case in which it could be refused; that is, if a creditor had brought a suit in chancery for a discovery of assets: there the ecclesiastical court might say the party should not proceed in both courts. Phillips vs. Bignell, 1 Phillim. 240. Myddleton vs. Rushout, ibid. 247. -CHITTY. 23 It has been determined, since the decision of Hudson vs. Hudson, 1 Atk. 460, both in law and equity, that there is no distinction in this respect between executors and administrators: one of the latter has all the power which one of the former has. Willand vs. Fenn, cited in Jacomb vs. Harwood, 2 Ves. Sen. 267.-COLERIDGE. 24 A final decree for payment of a debt, or other personal demand, is equal to a judg ment. Gray vs. Chiswell, 9 Ves. 125. Goate vs. Fryer, 2 Cox, 202. Courts of equity will not restrain proceedings at law by creditors who are seeking in that way to obtain payment by executors, until there is a decree for carrying the trusts of the will into execu VOL. I.-50 785 tracts; as for rent, (for which the lessor has often a better remedy in his own hands by distreining,) or upon bonds, covenants, and the like, under seal.(n) Lastly, debts on simp.e contracts, viz., upon notes unsealed, and verbal promises Among these simple contracts, servants' wages are by some(o) with reason preferred to any other: and so stood the antient law, according to Bracton(p) and Fleta, (q) who reckon among the first debts to be paid, servita servientium et stipendia famulorum. Among debts of equal degree, the executor or administrator is allowed to pay himself first, by retaining in his hands so much as his debt amounts to.(r) 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 pos session of the goods of the deceased; and would besides be taking advantage of his own wrong, which is contrary to the rule of law.(8) If a *cre*512] ditor constitutes his debtor his executor, this is a release or discharge of the debt, whether the executor acts or no ;(t) provided there be assets sufficient to pay the testator's debts: for though this discharge of the debt shall take place of all legacies,25 yet it were unfair to defraud the testator's creditors of their just debts by a release which is absolutely voluntary.(u)* Also, if no (n) Wentw. ch. 12. 1 Roll. Abr. 927. (P) L. 2, c. 26. () L. 2, c. 56, 10. (*) 10 Mod. 496. See book iii. p. 18. (t) Plowd. 184. Salk. 299. () Salk. 303. 1 Roll. Abr. 921. tion, under a bill filed by other creditors. Rush vs. Higgs, 4 Ves. 643. Martin vs. Martin, 1 Ves. Sen. 213. But, from the moment a final decree to that effect is made, it is considered as a judgment in favour of all the creditors; and there the court of equity could not execute its own decree if it permitted the course of payment to be altered by a subsequent judgment of a court of law. Largan vs. Bowen, 1 Sch. & Lef. 299. Paxton vs. Douglas, 8 Ves. 521. Between decrees and judgments the right to priority of pay ment is determined by their real priority of date.-CHITTY. 25 Such is certainly the rule at common law; and it has been questioned, formerly, whether it did not hold in equity. Brown vs. Selwyn, Ca. temp. Talb. 242. But it seems to have been long esteemed the better opinion that a debt due from a testator's executor is general assets for payment of the testator's legacies, (Phillips vs. Phillips, 2 Freem. 11. Anonym. c. 58. Îbid. 52;) and that in such cases, though the action at law is gone, the duty remains,-which may be sued for either in equity or in the spiritual court. Flud vs. Rumsey, Yelv. 150. Hudson vs. Hudson, 1 Atk. 461. Lord Thurlow (in Casey vs. Goodinge, 3 Br. 111) and Sir William Grant (in Berry vs. Usher, 11 Ves. 90) treated this as a point perfectly settled; and lord Erskine (in Simmons vs. Gutteridge, 13 Ves. 264) said a debt due by an executor to the estate of his testator is assets, but he cannot sue himself; and the consequence seems necessary that, in all cases under the usual decree against an executor, an interrogatory ought to be pointed to the inquiry whether he has assets in his hands arising from a debt due by himself; and any legatee has a right to exhibit such an interrogatory if it has been omitted in drawing up the decree to account. Some writers have, indeed, thought that the appointment of a debtor to be the executor of his creditor ought to be considered in the light of a specific bequest or legacy to the debtor, (see Hargrave's note (1) to Co. Litt. 264, b.;) yet, even if this really were so, it would be difficult to maintain the executor's right of retainer as against other legatees, (see post, p. 512:) but lord Holt (in Wankford vs. Wankford, 1 Salk. 306) said, "When the obligee makes the obligor his executor, though it is a discharge of the action, yet the debt is assets; and the making him executor does not amount to a legacy, but to payment and a release. If H. be bound to J. S. in a bond of 100%., and then J. S. makes H. his executor, H. has actually received so much money, and is answerable for it; and if he does not administer so much, it is a devastavit."-CHITTY. 26 The rule of law is correctly laid down upon the principle that a debt is merely a right to recover something by way of action; and, as the executor cannot sue himself, it must be taken that the testator meant to release the debt when he appointed as executor a person who could not sue for it. Upon the same principle, if a debtor should be appointed administrator, the legal remedy would be suspended during his lifetime, but no longer; because, when the technical difficulty ceases, there does not remain the same presumption of intention to release the debt forever; and therefore upon his death an administrator de bonis non may sue his representative. Lockin vs. Smith, 1 Sid. 79. Nor is this principle inconsistent with the latter part of the rule,—that the tes tator's creditors are not to be disappointed of their just debts by this voluntary release: the right of action is, indeed, gone; but the law will presume that the executor, in his individual capacity, has paid the debt to himself in his representative, and will consider suit is commenced against him," the executor may pay any one creditor in equa. the amount assets in his hands for which he will be personally liable to the action of any creditor; because the non-production of the same to answer the demand will, upon that presumption, be proof of a wasting of the testator's estate. The doctrine of the courts of equity upon this subject is in effect very different; but, commencing upon principles very analogous, they seem gradually to have departed more and more widely from the practice of the courts of law. At one time, looking to the intention of the testator, they considered the appointment as turning the debt into a legacy, or specific bequest, and, as such, they in general sustained it against the other legatees, because any specific bequest given to any other person would have been so sustained. But, as no legacies-not even specific-could stand against the demands of creditors, so this presumed legacy in the hands of the executor became a trust; and he was held answerable for it to them if the other assets were not sufficient. Upon the same ground of intention, if it appeared upon the will that the testator did not intend to discharge his executor,-as if he should have left a legacy and directed it to be paid out of the sum due from the executor,-in any such case the executor became, as to all the legatees, general and specific, a trustee to the amount of his debt, and was not discharged. Flud vs. Rumsey, Yelv. 160. Carey vs. Goodinge, 3 Bro. Ch. Rep. 110. Now, however, the general rule is that the executor is to be considered as a trustee for the legatees; or, if they have been satisfied by other assets, for the persons entitled to the residue of the testator's personal estate under the will. See Berry vs. Usher, 11 Ves. 90, and the cases collected in the note there. Simmons vs. Gutteridge, 13 Ves. 262. -COLERIDGE. 27 It is not enough that a suit has been commenced, (Sorrell vs. Carpenter, 2 P. Wms. 483) there must have been a decree for payment of debts, or an executor will be at liberty to give a preference amongst creditors of equal degree. Maltby vs. Russell, 2 Sim. & Stu. 228. Perry vs. Philips, 10 Ves. 39. But if an executor who has, in any way, notice of an outstanding bond, or other specialty affecting his testator's assets, confesses a judgment in an action brought for a simple contract-debt, should judg ment be afterwards given against him on the bond, he will be obliged, however insufficient the assets, to satisfy both the judgments; for to the debt on simple contract he might have pleaded the demand of a higher nature. An executor must not, by negligence or collusion, defeat specialty-creditors of his testator, by confessing judgments on simple contract-debts of which he had notice. Sawyer vs. Merrer, 1 T. R. 690. Davis vs. Monkhouse, Fitz-Gib. 77. Britton vs. Bathurst, 3 Lev. 115. And where the testator's debt was a debt upon record, or established by a judgment or decree, the executor will be held to have had sufficient constructive notice thereof; and it will be immaterial whether he had actual notice or not. If he has paid any debts of inferior degree, he will be answerable as for a devastavit. Littleton vs. Hibbins, Cro. Eliz. 793. Searle vs. Lane, 2 Freem. 104, S. C. 2 Vern. 37. Since the statute of 3 Will. and Mary, c. 14, simple contract-debts are let in to be paid pari passu with debts by specialty, when a testator has limited lands to his executors or trustees in trust for payment of his debts generally. Kidney vs. Coussmaker, 12 Ves. 154. But this rule seems to have been of earlier date than the statute. Foly's case, 2 Freem. 49. Hickson vs. Witham, ibid, c. 12, in appendix to 2d ed. 306. And it is now settled that a charge for payment of debts, which does not break the descent of real estate to the heir, will be equitable assets for the payment of all creditors alike. Shiphard vs. Lutwidge, 8 Ves. 30. Bailey vs. Ekins, 7 Ves. 323. Clay vs. Willis, 1 Barn. & Cress. 372. If, therefore, specialty-creditors sweep away the whole of the testator's personal assets, they will not be allowed to participate in the benefit of the devise until the creditors by simple contract have received so much thereout as to make them equal and upon the level of the creditors by specialty in respect of what they received out of the personal estate. Haslewood vs. Pope, 3 P. Wms. 323. And whenever a plaintiff is under the necessity of applying to the court of chancery for relief, the general rule of that court is to do equal justice to all creditors, without any distinction as to priority. Plunkett vs. Penson, 2 Atk. 293. Thus, the equity of redemption of a mortgage of a term for years has been held equitable assets, (Sir Charles Cox's case, 3 P. Wms. 341. Hartwell vs. Chitters, Ambl. 308. Newton vs. Bennet, 1 Br. 137. Clay vs. Willis, 1 Barn. & Cress. 372;) and so, perhaps, would an equity of redemption of a mortgage in fee, if mere bondcreditors contended for priority of payment, (for it is clear such assets could only be got at by aid of equity:) but it has been decided that, in such a case, judgment-creditor could not be compelled to come in pari passu with simple contract creditors, but that, as the judgment-creditors had a right to redeem, they must be paid in the first instance. degree his whole debt, though he has nothing left for the rest: for, without a 6. When the debts are all discharged, the legacies claim the next regard; which (w) Dyer, 32. 2 Leon. 60. (*) 2 Vern. 434. 2 P. Wms. 25. 2 Freem. 134. 2 Atk. 171 and there could be no marshalling as against them. Sharpe vs. Earl of Scarborough, 3 The personal estate of a testator is the primary fund for payment of his debts and When the owner of an estate has himself subjected it to a mortgage-debt, and dies, his Though a court of equity cannot prevent a creditor from coming upon the personal 28 The rules laid down in the text as to the order of payment apply only to what are It may be added here also that, by statute 11 Geo. IV., and 1 W. IV. c. 47 and 3 & 4 |