Their liability on account of the deceased. They are merely trustees of the property. from that period; and in ejectment by an administrator, the demise may be laid on a day after the intestate's death, but before administration granted . Executors and administrators so entirely represent the personal estate of the deceased, that they are liable to the payment of all his debts, covenants, &c., to the extent of the assets which come into their hands; but where no default is in them, their liability on account of the deceased, does not exceed the amount of the assets. Each executor and administrator has the entire control of the personal estate of the deceased, and may dispose of such property, and release and pay debts, without the concurrence of his co-executor or administrator d. But the interest which they have in the property of the deceased, is not absolute, as in the case of their own proper goods; they have their estate as such, in autre droit, merely under trust to apply it for the payment of his debts, and other legitimate purposes *. Therefore, if the executor becomes bankrupt, the goods of the testator, if distinguishable from the rest of the executor's property, do not pass under the commission. But where a person entitled to take out administration neglected to do so, and having remained in possession of the goods for twelve years, became a bankrupt; it was held, that the goods passed to the assignees as property in the possession, order, and disposition of the bankrupt, with the consent of the true owner §. It has been held, that the goods of a testator in the hands of his executor, cannot be seized under an execution against the executor in his own right 1. But where an executrix used the goods of her testator as her own, and having married, treated them as the property of her husband; it was held, that it was not R. v. Horsley, 8 East, 410. 209. a. S. N. P. 770. Pannell a Id. 771. 2 Ves. 267. e Pinchon's case, 9 Co. 88. b. 2 f Ludlow v. Browning, 11 Mod. 138. Viner v. Cadell, 3 Esp. 88. Per Lord Mansfield, in Howard v. Jemmett, 3 Burr. 1369. Fox v. Fisher, 3 B. & A. 135. Farr v. Newman, 4 T. R. 621, (Buller, J., dissentiente,) recognized by Lord Eldon, in M'Leod v. Drummond, 17 Ves. 168. competent to her to object to the goods being taken in execucution for her husband's debts 2. As no man can bequeath any property but what he has to his own use, an executor cannot bequeath the goods of his testator to a legateeb; yet, generally speaking, he may in his lifetime dispose of and alien the assets of the testator, and the creditors of the latter cannot follow them, unless there be collusion between the executor and the transferreed. By 1 Wm. IV. c. 40, where any person shall die after 1st of September, 1830, having by his will, or any codicil thereto, appointed executors, such executors shall be deemed by courts of equity to be trustees for the persons (if any) who would be entitled to the estate under the statute of distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will, or any codicil thereto, that the executors were intended to take such residue beneficially. By sec. 2, it is not to affect the rights of executors where there is not any person entitled to the residue by the statute of distributions. SECTION IX. OF THE DISPOSITION OF THE ESTATE OF THE DECEASED. for funeral 1.-Payment of funeral expenses.] Ir is the duty of the executor Allowance to bury the deceased in a manner suitable to the estate which he expenses leaves behind him; necessary funeral expenses are allowed where the estate of the deceased is insolvent. previous to all other debts and charges; but if the executor or administrator be extravagant, it will be deemed a devastavit or waste of the goods of the deceased, not only as against creditors, but even as it respects legatees or next of kin in distribution. In strictness, no funeral expenses are allowed in the case of an insolvent estate, except for the coffin, ringing the bell, and the fees of the parson, clerk, and bearers, but not for the pall or ornaments; and where 150l. were charged for the funeral of a testator who was in debt, the court refused to allow more than 101.; but in another case, where 601. were charged, Lord Hardwick said, "at law, where a person dies insolvent, the rule is, that no more shall be allowed for funeral expenses than is necessary: at first, 40s., then 57., and at last 107.;" but," said he, "the court is not bound down by such strict rules, especially when a testator leaves great sums in legacies, (as in this case,) which is a reasonable ground for the executor to believe that the estate is solvent; and as the testator directed his corpse to be buried at a church thirty miles from the place of his death, I am of opinion that 601. is not too much for the funeral expenses." d In Buller's Nisi Prius, it is said that the usual method is to allow 51.e Where the deceased was a small tradesman, 107. was held to be a reasonable allowance to the executrix for funeral expenses, as against a creditor. But in a late case, where 791. were expended on the funeral of a person who had been a captain in the army, and who at the time of his death was on half pay, and it appeared that assets to the amount of 1291. had come into the hands of the executrix; on an issue taken on a plea of plene administravit, the court held, that 791. was a larger sum than ought to be allowed as against a creditor. "The rule," said Mr. Justice Bayley, "as against a creditor is, that no more shall be allowed for a funeral than is necessary. · Id. Stackpole v. Stackpole, 4 Dowl. 227. Per Holt, C. J., in Shelly's Case, Salk. 296. The rule as against a creditor is, that no more shall be allowed for a funeral than is necessary. Per Bayley, J., 1 B. & Ad. 264. C Anon. Comber. 342. d Stag r. Punter, 3 Atk. 119. B. N. P. 143. See also Smith v. Davies, S. N. P. 780. f Reeves v. Ward, 2 Bing. N. C. 235. 1 Hodges, 300. In considering what is necessary, regard must undoubtedly be had to the degree and condition in life of the party." His lordship said that 107. (the sum mentioned by Lord Hardwicke) was at the present day less than what reasonably should be allowed; and intimated that 20l. was a proper allowance for the funeral under the circumstances a. Where 6007. had been expended on the funeral of a man of great estate and reputation in his county, the court allowed that sum as a debt to affect the trust estate b. A payment of 931. 12s. 6d. for mourning rings, distributed among the relations and friends of the deceased, was allowed by Lord Eldon to the executor, though the will gave no directions on the subject, but left it to the discretion of the executors o. But in a recent case, it was held that a demand for mourning Mourning furnished to the widow and family of the testator, was not such a funeral expense as could be claimed against the estate allowable. by the executor who gave the order for it, and consequently that a legatee who had not received his legacy, was a competent witness for the executor in an action brought against him for the recovery of such demand d. for the family not 2.-Of the order in which debts should be paid.] The funeral expenses are to be allowed out of the estate of the deceased before any other claims whatsoever, next to which the expenses of proving the will or taking out administration are to be allowed, including the costs of a suit in equity, which are considered as expenses in administering the estate. Then he must pay the debts of the deceased, and in doing so, he should be careful to observe the rules of priority, for if he pays those of a lower degree, first, on a deficiency of assets, he must answer for those of a higher degree, out of his own estate 8. Debts due to the crown by record or specialty, claim pre- Crown debts. Debts entitled to a preference by statute. Judgment debts. Judgments not docketed, rank as simple contract debts. cedence of all other debts; but debts due to the king, not by specialty, or which are not of record, are not to be preferred to debts due to the subject by specialty; such as money owing to the crown for the sale of minerals, money arising from the sale of estrays within the manors or liberties of the crown, arrears of rent due to the crown a. Next are debts which are entitled to a preference by certain statutes; such are debts for letters not exceeding 5l., due to the post office b; debts due from an overseer of the poor by virtue of his office; money, effects, or securities belonging to a friendly society, remaining in the hands of any of its officers at the time of his death. But money lent to an officer, or supposed to remain in his hands upon giving security, has been held not to be entitled to preference, which is given only in respect of money which got into the hands of officers independent of contract. Next in order of priority are debts of record, as judgments in courts of record, recognizances and statutes; and the privilege is not confined to the courts of Westminster, but extends to the judgments of all other courts of record having power by charter to hold plea of debt above 40s.f But a judgment by a foreign attachment in the lord mayor's court is not entitled to that privilege 8. The 4 & 5 W. & M. c. 20. s. 3. enacts" that no judgment not docketed and entered in the books kept for that purpose, according to that act, shall affect any lands or tenements as to purchasers or mortgagees, or have any preference against heirs, executors, or administrators, in the administration of the effects of the deceased." It has been held, that a judgment not docketed pursuant to the provisions of this statute, is to be considered only as simple contract debt in the administration of the estates of the deceased h; and if an heir or an executor 2 Com. Dig. Admin. C. 2. Bac. Ab. tit. Exec. (L. 2.). Went. 263. Erby r. Erby, 1 Salk. 80. b Stat. 9 Anne, c. 10. s. 30. 2 Bl. Com. 511. 17 G. II. c. 38. s. 3. d 33 G. III. c. 54. s. 10. Ex parte Stamford Society, 15 Ves. 280. f Went. Off. Ex. 271. Holt v. Murray, 1 Sim. 485. Hickey v. Hayter, 6 T. R. 384. Landon v. Ferguson, 2 Russ. 349. |