in possession or in action (desperate debts excepted), is assets in the hands of the executor or administrator, and makes him liable to creditors so far as such property extends (1), he may consequently sell so much of it as does not already consist of money, in order to answer the demands that may be made upon him. him. And on this subject it may be worth remark, that if there be two or more executors, a sale or release by one of them shall be good against all the rest (m). 5. [The executor or administrator must pay the debts of the deceased (n) ;] and in payment of debts [he must observe the rules of priority,] according to the several degrees which the law has established in this matter. [And, first, he must pay all funeral charges, and the expense of proving the will, and the like. Secondly, debts due to the Crown, on record or other specialty (o). Thirdly, such debts as are by particular statutes to be preferred to all (1) As to assets, vide sup. p. 210, n. (o). As to what shall be considered assets in particular cases, see Britton v. Jones, 3 Bing. N. C. 676; Clay v. Willis, 1 B. & C. 364; Hornidge v. Wilson, 11 Ad. & El. 645; Smedly v. Philpot, 3 Mee. & W. 573. (m) Dyer, 23. As to their liabilities inter se, see Styles v. Guy, 19 L. J. (Chan.) 185. It may be observed, however, that the Bank of England are authorized, before they allow a transfer of the stock of a deceased party standing in their books, to require that all the executors who have proved shall join (8 & 9 Vict. c. 97, s. 1). It has been doubted whether a sale or release by one of two or more administrators, is also good as against the rest (see per Lord Hardwicke, in Hudson v. Hudson, 1 Atk. 460); but in the courts of common law, at all events, exe cutors and administrators have been said to stand in this respect, as in others, on the same footing (per Sir J. Strange, Jacomb v. Harwood, 2 Ves. sen. 267). But the point may be said not to have been conclusively settled. See Selwyn, N. P. 11th edit. p. 784, in notis, and Williams' Lav of Executors, vol. 2, p. 855, n. (e), 5th edit. (n) By a recent statute, 17 & 18 Vict. c. 113, the heir or devisee of any real estate under mortgage is not to be entitled to have the mortgage discharged out of the personal estate, or out of any other real estate, of the deceased,-but the lands mortgaged shall be primarily liable. This, however, is to be without prejudice to the right of the mortgagee to obtain full payment, either out of the personal estate or otherwise. (0) 1 And. 129. [others;] of which there are some miscellaneous instances in the statute book (p). [Fourthly, debts of record ;] viz., debts due on judgments, statutes merchant and staple, and recognizances (q); and on decrees in equity, which are considered as on the same footing as debts of record (r). Fifthly, specialty debts, not of record, as those upon bonds, covenants and the like, under seal; or debt for rent, whether accruing under a sealed instrument or not (s). Lastly, debts on simple contract, viz., on contract by writing unsealed, or without writing (t). [Among these simple contracts, servants' wages are by some (u) with reason preferred to any other; and so stood the antient law according to Bracton (r) and Fleta (y), who reckon among the first debts to be paid, servitia 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 (z). 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 possession of the goods of the deceased; and would besides be taking advantage of his own wrong, which is contrary to the rule of law (a).] Also among several creditors of equal degree, whether by specialty or simple contract, he shall be first paid who first obtains judgment for his debt; and the executor or administrator cannot resist his action, on the ground that nothing will be left for the other creditors. He may resist (p) See 17 Geo. 2, c. 38; 33 Geo. 3, c. 54, s. 10, &c. (q) 4 Rep. 60; Cro. Car. 363. As to debts of record, vide sup. p. 141. (r) Shafto v. Powell, 3 Lev. 355; Morrice v. The Bank of England, 3 Swanst. 573. (s) 1 Went. Off. Ex. c. 12. As to specialty debts, vide sup. p. 129. As to simple contract debts, vide sup. p. 54. (t) Where an executor has to pay for dilapidations suffered by the tes- (2) Cock v. Goodfellow, 10 Mod. it, however, on the ground that there is not enough to pay a creditor of higher degree. And this defence he is bound to make, if he have notice that a higher debt is outstanding (b); for otherwise, on deficiency of assets, he must answer for it out of his own estate. And of debts of record he has notice by construction of law. But with respect to those by specialty, an actual notice is required in order to make him personally liable for a payment out of due order (c). If after exhausting the whole assets which have come to his hands, by the payment of debts in due order, he be afterwards sued by a creditor remaining unpaid, he is entitled to protect himself by an allegation that he has fully administered, which is called a plea of plene administravit (d); and upon this plea the creditor is entitled to judgment that he shall be paid out of any other assets that shall come to the defendant's hands, which is called a judgment of assets in futuro (e). 6. [When the debts are all discharged, the legacies (f) claim the next regard; which are to be paid by the executor so far as his assets will extend; but he may not give himself the preference herein, as in the case of debts (g). A legacy is a bequest, or gift of goods and chattels] (b) Dy. 32; 2 Leon. 60; Sawyer v. Mercer, T. R. 690. (c) See Smith v. Day, 2 Mee. & W. 684. (d) As to this plea, see Palmer v. Waller, 1 Mee. & W. 689; Smith v. Day, ubi sup.; Glaholm v. Rowntree, 6 Ad. & El. 710; Dawson v. Gregory, 7 Q. B. 757. By 13 & 14 Vict. c. 35, ss. 19-25, an executor or administrator, who finds difficulty in ascertaining or dealing with the outstanding debts and liabilities affecting the personal estate, may by order of the Court of Chancery (to be made on motion or petition of course) obtain a reference to take an account of such debts and liabilities and report thereon; after which the matter will be under the direction of the court, and the executor or administrator will be protected. (e) By the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, s. 91), proceedings against executors upon a judgment of assets in futuro may be had and taken in the manner provided by the Common Law Procedure Act, 1852, (15 & 16 Vict. c. 76,) as to writs of revivor. (As to writs of revivor, vide post, book v. c. x.) (f) As to legacy duty, vide post, p. 580, n. (z); Attorney-General v. Marquis of Hertford, 3 Exch. 670. (g) 2 Vern. 434; 2 P. Wms. 25. (including chattels real (h)) [by testament; and the person to whom it was given is styled the legatee. This bequest transfers an inchoate property to the legatee;] but his interest is not perfect without the assent of the executor (or administrator cum testamento annexo (i)); for (if I have a general or pecuniary legacy of 100l., or a specific one of a piece of plate, I cannot in either case take it without the consent of the executor (k),] or administrator with the will annexed. [For in him all the chattels are vested] in the first instance; [and it is his business first of all to see whether there is a sufficient fund left to pay the debts of the testator (1); the rule of equity being, that a man must be just before he is permitted to be generous; or, as Bracton expresses the sense of our antient law (m), “de bonis defuncti primo deducenda sunt ea quæ sunt necessitatis, et postea quæ sunt utilitatis, et ultimo quæ sunt voluntatis."] And in case of a deficiency of assets, all the general legacies must abate proportionably; nay, even [if the legatees have been paid, they are afterwards bound to refund a rateable part, in case debts come in more than sufficient to exhaust the residuum after the legacies paid (n). And this law is as old as Bracton and Fleta, who tells us, "si plura sint debita, vel plus legatum fuerit, ad quæ catalla defuncti non sufficiant, fiat ubique defalcatio, excepto regis privilegio (o).”] However, [a specific legacy (of a piece of plate, a horse, or the like), is not to abate at all, or allow anything by way of abatement, unless there be not sufficient without it (p);] (h) By the Succession Duty Act, 1853 (16 & 17 Vict. c. 51, s. 19), no legatee shall be chargeable with legacy duty in respect of any leasehold hereditaments of the testator, as belonging to the personal estate; but he is made liable to pay succession duty under that Act. (i) As to the remedy of a legatee against the executor, &c., in case of non-payment of a legacy, vide post, p. 225. (k) Co. Litt. 111; Aleyn, 39; Richards v. Browne, 3 Bing. N. C. 493. (1) Smith v. Day, 2 Mee. & W. 684. (m) L. 2, c. 26. (n) Newman v. Barton, 2 Vern. 205. (0) Bract. 1. 2, c. 26; Fleta, 1. 2, c. 57, s. 11. (p) 2 Vern. 111. But where the assets are deficient, debts are to be but, on the other hand, it is liable to ademption; which arises where the thing so bequeathed is afterwards disposed of in some other manner by the testator himself before his death; and where a specific legacy is thus adeemed, the legatee has no longer any claim under the will. [If the legatee dies before the testator, the legacy is] in general [a lost or lapsed legacy, and shall sink into the residuum.] But by a provision in the new Statute of Wills (q), (referred to in the chapter on Devises (r),) an exception to this rule is now introduced in the case where the bequest is to a child, or other issue of the testator, for any estate or interest not determinable at or before the death of the legatee, and the legatee leaves issue, who survives the testator, no intention to exclude such issue appearing on the face of the will. If a contingent legacy be left to any one, as when he attains, or if he attain, the age of twenty-one, and he die before that time, it is a lapsed legacy, even though he survive the testator (s). However, [a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy; an interest which commences in præsenti, although it be solvendum in futuro ; and if the legatee dies before that age, his representatives shall receive it out of the testator's personal estate (t).] But on the other hand, [if such legacies be charged upon a real estate, in both cases they shall lapse for the benefit of the heir,] unless there be something further in the will, sufficient to show an intention to the contrary (u). [And in case of a vested legacy, due immediately, and charged preferred to specific legacies. See Richards v. Browne, 3 Bing. N. C. 493. (q) 7 Will. 4 & 1 Vict. c. 26, s. 33. (r) Vide sup. vol. 1. p. 605. (s) Dyer, 59; 1 Eq. Cas. Ab. 295; 2 Bl. Com. 513. (1) Blackstone says (vol. ii. p. 513), that this distinction is bor rowed from the civil law, and cites Ff. 35, 1. 1, 2; and that its adoption in our ordinary courts of law is owing to its having been before adopted in the Ecclesiastical Courts; and cites 1 Eq. Cas. Ab. 295. (u) Duke of Chandos v. Talbot, 2 P. Wms. 601; vide Co. Litt. by Butl. 237 a, note (1). |