tended for the benefit of the creditors and next of kin; and the administrator will be obliged to account for the property mentioned in it; and he will also be obliged to show good cause for not collecting the debts that are mentioned to be due, unless he had the precaution to note them in the inventory as desperate. He is liable also to have the letters of administration revoked, (and it is the same with the letters testamentary of an executor,) if an inventory be not duly made and returned. And if any one or more of the executors or administrators returns the inventory, those who neglect to do it cannot afterwards interfere with the administration until they redeem their default. (a) 2 New York Revised Statutes, vol. ii. p. 83, secs. 9, 10. There is a similar exception in Massachusetts, Connecticut, Ohio, and probably in other states, in favor of the widow and family; and it extends to such small necessary family articles as are exempt from execution. The widow and children in Ohio, if any under fifteen years of age, or the children only, if no widow, are entitled to sufficient provisions or other property for their support for twelve months from the intestate's death, without having the same accounted for as part of the inventory. Statutes of Ohio, 1831. The Ohio Statutes as to emblements, declare that those sowed after March 1, and before December 31, shall go to the executor or administrator, if the decedent died within that period; but that those growing on the land on March 1, or between December 31 and March 1, shall go to the heir, devisee, or remainder-man, or reversioner, if the decedent died within that period. In Massachusetts, Connecticut, (Revised Statutes of Massachusetts, 1836, and of Connecticut, 1821,) and probably in those other states where the distribution of real and personal property is the same, the inventory is to exclude equally the real and personal estate. (a) N. Y. Revised Statutes, vol. ii. p. 85, secs. 17-23. her quarantine; but there is no statute provision in New York for the support of the children of an insolvent decedent. Johnson v. Corbett, 11 Paige, 265. 1 An executor de son tort (i. e., a stranger who takes upon himself an act as executor without any just authority, 2 Bla. Com. 507) is only liable for assets which come to his hands, and is not chargeable for not reducing assets to possession. Kinard v. Young, 2 Rich. Eq. 247. He can take no benefit from his wrongful executorship. De la Guerra v. Packard, 17 Cal. 182. Such executor is liable to account only to the executor or administrator, and not the next of kin. Muir v. Trustees of L. & W. Orphan House, 3 Barb. Ch. 477. His sale of goods will not change the title, though he afterwards administer. Wilson v. Hudson, 4 Harring. 168. A fraudulent donee, in possession after testator's death, is liable as executor de son tort. Sturdivant v. Davis, 9 Ired. (N. C.) 365. He cannot sue (when there is a rightful executor) nor be sued, except for fraud. Francis v. Welch, 11 Ired. (N. C.) 215. For his powers as to persons dealing with him bonâ fide, see Thompson v. Harding, 20 Eng. L. & Eq. 145. An administrator may compound with the creditor, and receive a less sum than is due the estate, if such a course was judicious and beneficial, or not prejudicial to the estate. Wyman's Appeal, 13 N. Hamp. 18. Kee v. Kee, 2 Gratt, 116. Mitchell v. Trotter, 7 Gratt. 136. Woolfork v. Sullivan, 23 Ala. 548. One of several executors may enter into an amicable action, and submit to arbitration, so as to bind the estate. Lank v. Kinder, 4 Harring. 457. Kendall v. Bates, 35 Maine, 357. After completing the inventory, the duty of the administrator is, to collect the outstanding debts, and convert the property into money, and pay the debts due from the intestate. He must sell the personal property, so far as it may be necessary for the payment of debts and legacies, beginning with articles not required for immediate family use, not specifically bequeathed. (b) 5 (b) The English rule is to convert the assets into cash by a public sale; and this was the rule declared in Covenhoven v. Shuler, 2 Paige, 122. But in Maryland, unless the sale of the assets be necessary to pay debts and legacies, or to make a satisfactory distribution, the rule is for the executors and administrators to divide the property specifically in kind between legatees and distributees. Evans v. Iglehart, 6 Gill & John. 171. By the N. Y. Revised Statutes, vol. ii. p. 87, secs. 25, 26, the executor may sell at either public or private sale; and he is allowed, except in the city of New York, to sell on credit not exceeding one year, with approved security; and he will be exempted from responsibility for losses, if he acts in good faith and with ordinary prudence. The statute has not defined what was intended by approved security. The English rule in equity is, that the executor must not rest on personal security; and if he does, it is at his own peril. But there are exceptions to the severity of that rule; and it will depend upon circumstances whether, under the New York statute, an executor or administrator acting in good faith, be bound to answer for the eventual failure of personal security. See a discussion of the subject in Smith v. Smith, 4 Johns. Ch. 284, 629. The weight of the modern English authority is, that investing trust moneys in personal security is a breach of trust. Lord Hardwicke, in Rider v. Bickerton, 3 Swanst. 80, note. Lord Kenyon, in Holmes v. Dring, 2 Cox's Cases, 1. Lord Loughborough, in Adye v. Feuilleteau, 3 Swanst. 84, note. Lord Eldon, in Walker v. Symonds, Ibid. 63. Where the will directed the executors to put on interest, to be well secured, £500, and they invested it in stock of the Bank of the United States, and it was lost by the bankruptcy of the bank, it was held to mean security by mortgage or judgment on realty, and that the bank security was no better than personal security, and the executors were held responsible for the money. Nyce's estate, 5 Watts & Serg. 254. An executor is responsible if he invests trust moneys otherwise than upon real security or in government stock. Bank stock will not do. Ackerman v. Emott, by Parker, V. Ch., in 4 Barb. (N. Y.) 626. But the executor may place money where the testator had been accustomed to place it, and without being responsible, if he acts with good faith. Tamlyn, 279. In Gray v. Fox, Saxton (N. J.) 259, the question what is due security in respect to trustees loaning money was learnedly discussed; and it was declared to be a well settled rule in the English chancery, and was adopted in New Jersey, that the loaning of trust moneys, and especially where infants were concerned, on private or per He has no right to take land in payment of debts due the testator; and if he takes bills, it will be at his peril, if he neglects to convert them into some property less perishable. Wier v. Humphries, 4 Ired. Eq. 264, Bailey v. Dilworth, 10 Smedes & Marsh. 404. See Powell v. Stratton, 11 Gratt. 792. 4 Bogart v. Van Velsor, 4 Edw. Ch. 718. Moore v. Hamilton, 4 Flor. 112. Hogan v. De Peyster, 20 Barb. (N. Y.) 100. Smyth v. Barnes, 25 Miss. 422. "In New York, the administrator of a person who made a sale of property fraudulent as to creditors, may maintain an action against the vendee, as his possession is made wrongful by statute. McKnight v. Morgan, 2 Barb. (N. Y.) 171. In paying * the debts, the order prescribed by the rules of * 416 the common law is, to pay, first, funeral charges, and (a) the expense at the probate office; next, debts due to the state; then debts of record, as judgments, recognizances, (b) and final decrees; next, debts due for rent and debt by specialty, as bonds and sealed notes; and lastly, debts by simple contract. Causes of action arising ex delicto, for wrongs for personal injuries, die with the person, and do not survive against his representatives. Executors and administrators are the representatives of the personal property of the deceased, and not of his wrongs, except so far as the tortious act complained of was beneficial to his estate. (c) The sonal security, was not due security, and such loans were at the risk of the trustees. The trustee must take adequate real security, or an investment in public stocks or funds. This was the opinion of the chancellor of New York, in Smith v. Smith, above cited. In Stickney v. Sewell, 1 My. & Cr. 8, executors were empowered to lend money on real or personal security; and it was held that money should be advanced to the amount only of two thirds of the value of freehold land, of a permanent value, and not upon houses or buildings, which are fluctuating; and the executor was held answerable for the deficiency. (a) As against creditors, the rule of law is, that no more shall be allowed for funeral expenses than is absolutely necessary, regard being had to the degree and condition in life of the deceased person. Hancock v. Podmore, 1 B. & Adol. 260. Palmes v. Stephens, R. M. Charlton (Geo.) 56. In Louisiana, the privileged claim of the lessor, as against the estate of the deceased lessee, comes in immediately after the funeral charges. Devine v. Pecquet, 4 Rob. 366. (b) A recognizance, as of special bail, is of higher dignity than a debt by specialty, and has preference. Moon v. Pasteur, 4 Leigh, 35. (c) Hambly v. Trott, Cowp. 371. The People v. Gibbs, 9 Wendell, 29. Hench v. Metzer, 6 Serg. & Rawle, 272. But for devastavits or wrongs to property, the personal representatives of the deceased, who committed the tort, were made answerable by the statute of 30 Car. II. ch. 7, and 4 and 5 W. & M. ch. 24; and doubtless the same law exists in this country. Executors and administrators are also made liable to answer for injuries to real property, in the character of torts or trespasses. N. Y. Revised Statutes, vol. ii. p. 114, sec. 4. Respecting the liabilities of co-executors, it is understood that one executor is not chargeable for a devastavit of his co-executor, and is chargeable only for the assets which have come to his own hands. Cro. E. 318. Str. 20. 4 Desaus. (S. C.) 65, 92, 199. 5 Conn. 19, 20. 11 Johns. 16, 21. 5 Johns. Ch. 296. 5 Pick. 104. 2 Molloy Ch. 186. But he is answerable for the acts of his co-executor when there has been connivance or negligence, or when he delivers over assets, or makes payment directly to his co-executor. 7 East, 246. 2 Molloy, 186.1 So one executor may dispose of the assets and bind the estate by sale or discharge. 9 Cowen, 34.2 Preston 1 Mesick v. Mesick, 7 Barb. (N. Y.) 120. Hall v. Carter, 8 Geo. 388. 2 Or released mortgaged premises from the lien of a mortgage. Stuyvesant v. Hall, 2 Barb. Ch. 151. Hoke v. Fleming, 10 Ired. 263. Shaw v. Berry, 35 Maine, 279. Money collected by an attorney for an administrator, it is said, in Sloan . Johnson, 14 S. & civil law gave no preference to creditors, except as to debts incurred for funeral expenses, and the expenses of the administration, and debts by mortgage. The heir paid himself first, and he might pay the first creditor who came. All the assets were considered as equitable. (d) When debts are in equal degree, the administrator may pay which he pleases first, and he may always prefer himself to other creditors in an equal degree. If a creditor commences a suit at law or in equity, he obtains priority over other creditors in equal degree, but an administrator may go and confess judgment to another creditor in equal degree, and thereby on Abstracts of Title, vol. ii. 22, 23. 11 Johns. 21. 9 Paige, 52. 4 Hill (N. Y.) 492. The better opinion would seem also to be, that administrators stand on the same ground in these respects as to their powers and responsibilities. 2 Vesey, 267. 1 Wendell, 583. 4 Wash. C. C. 186. 11 Johns. 21. Gayden v. Gayden, 1 McMullan (S. C.) 435. But where a note or other security is given to two or more executors jointly after testator's death, the title is in all of them equally, as if given to them as trustees, and the concurrence of all is necessary to transfer the title to the same. Smith v. Whiting, 9 Mass. 334. Hertell v. Bogert, 8 Paige, 52. In the case of Jones's Appeal, 8 Watts & Serg. 143, it was forcibly illustrated by the chancellor, that joint trustees are not answerable for the defaults of each other in cases of ordinary prudence and diligence in the trustee sought to be charged for his co-trustee. It was held by Lord Hardwicke, in 1 Atk. 526, that an executor was not bound in law or equity to plead the statute of limitations, to a demand otherwise well founded. But that dictum was shaken by a contrary dictum of Bailey J., in M'Culloch v. Dawes, 9 Dowl. & Ryl. 40. It is therefore left as an unsettled point, and the executor must at least exercise a very sound discretion in the case. But more recently it is held, in Hodgdon v. White, 11 N. Hamp. 208, that the administrator is not bound to plead the statute of limitations to a demand otherwise well founded. This is the sound doctrine. (d) Dig. 11, 7, 45. Ibid. 35, 2, 72. Code, 6, 30, 22, secs. 4, 5, 9. Wood's Institutes of the Civil Law, 186, 187. Brown's View of the Civil Law, vol. i. p. 307. M. R. 47, are not assets for the administrator de bonis non. It must be accounted for by the prior administrator. 3 Banks v. Wilkes, 3 Sandf. Ch. 99. Atcheson v. Robertson, 3 Rich. Eq. 132. But if an administrator be guilty of a want of due care in preventing the default of his co-administrator, the rule is otherwise. Johnson v. Corbett, 11 Paige, 265. Hengst's Appeal, 24 Penn. 413. As one executor may rightfully receive any part of the assets of the estate and give discharges therefor, without the concurrence of the others, each one who joins in any act putting it in the power of the others to misapply the estate, is, in the absence of other circumstances, regarded as assenting to the misapplication. Brice v. Stokes, 11 Vesey, 319. Joy v. Campbell, 1 Sch. & Lef. 328. Williams v. Nixon, 2 Beavan, 472. In Wilkin v. Hogg, 3 Giff. 116, a very strong clause exonerating each executor from responsibility for misapplications by any other was sustained and enforced in protection of an executor. So held in Kennedy's Appeal, 4 Barr, 149. Miller v. Dorsey, 9 Md. 317. Batson v. Murrell, 10 Humph. 301. Ritter's Appeal 23 Penn. 95. Contra, Patterson v. Cobb, 4 Flor. 481, q. v. and cases cited. See, also, West v. Smith, 8 How. U. S. 402, 412. In Missouri, a qualified doctrine prevails. Wiggins v. Lovering, 9 Mo. 262. defeat the creditor who first sued, by pleading the judgment, and nil ultra, &c. (e) 5 * The New York Revised Statutes (ƒ) have made some essential alterations in the English law, and in the former * 417 law of New York, as to the order of payment of the debts of the deceased. The order now established is as follows: 1. Debts under the law of the United States; 2. Taxes assessed; 3. Judgments and decrees according to priority; 4. Recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts, without any preference between debts of this fourth class. Nor is a debt due and payable entitled to preference over debts not due; nor does the commencement of a suit for the recovery of any debt, or the obtaining judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class. Debts not due may be paid, according to the class to which they belong, after deducting a rebate of legal interest upon the sum paid, for the unexpired time. The surrogate is authorized to give a preference to rents due and accruing upon leases held by the testator or intestate at his death, over debts of the fourth class, whenever he shall deem the preference beneficial to the estate. In suits against executors and administrators, the judgment, if there be a proper plea in the case, is to be entered only for such part of the assets as shall be a just proportion to other debts of the same class; and the execution is to issue only for a just proportion of the assets applicable to the judgment; and no execution is to issue until an account has been rendered and settled, or the surrogate shall otherwise order. (a) No executor or administrator can retain for his * 418 * (e) Williams's Executors, 679, 1213, 1214. See Shep. Touch. by Preston, vol. ii. pp. 475-480. Bac. Abr. tit. Executors and Administrators, L. 2, for a succinct view of the rules of the common law, touching the order of paying debts by executors and administrators. (ƒ) Vol. ii. p. 87, secs. 27, 28, 29, 30. (a) N. Y. Revised Statutes, vol. ii. p. 88, secs. 31, 32. The surrogate may decree the payment of debts, upon the application of a creditor, at any time after six months from the granting of the letters testamentary or of administration, and the payment of any legacy or distributive share, on the application of the party entitled, after the expiration of a year; and he may enforce payment by causing the bond of the executor or administrator to be prosecuted. On judgments obtained at law, against any executor or ad • See Lawson v. Hansbrough, 10 B. Mon. 147. Moye v. Albritton, 7 Ired. Eq. 62. Buruss v. Fisher, 23 Miss. 228. |