own debt, until it has been proved to and allowed by the surrogate, and it is not entitled to any preference over debts of the same class. (a) The executor or administrator may, by public notice, call upon the creditors to exhibit, within six months, their accounts and vouchers, verified by affidavit. The executor or administrator may go on and close the trust as to claims not exhibited within the time; and he will not be chargeable for any due disposition of the assets prior to a suit on such claims, though the next of kin or legatees may be liable to refund to such creditors. If claims be exhibited and disputed, they may be referred to referees by consent; and if not, the creditor must sue thereon within six months, or be barred forever. (b) 1

ministrator, application may be made to the surrogate, who is to cite the defendant, and having ascertained the sufficiency of the assets, to order execution. N. Y. Revised Statutes, vol. ii. p. 116, secs. 18-22. Ibid. p. 220. In Connecticut, the statute of limitations is suspended in personal actions for one year from the creditor's death, in favor of his executors and administrators. Acts of 1833, ch. 13. In England, it is a rule in chancery that the personal representatives have one year to pay legacies, except where explicit directions are given by the testator. Lord Eldon, 6 Vesey, 539. The statute law in this country, in several of the states, is the same. N. Y. Revised Statutes, vol. ii. p. 90, sec. 43. In New Jersey, the statute of June 12th, 1820, prohibits suits against executors, and administrators of insolvents, for debts due from the deceased, until six months from the death of the deceased, unless in cases of fraud, or for the physician's bill, funeral charges, and judgments against the decedent. By the Massachusetts Revised Statutes, in 1836, the creditor is not to sue the executor or administrator until the expiration of one year, except in special cases. It is a well-settled rule, that the time allowed by statute to executors and administrators, before suit brought, is excluded from the computation of time in the statute of limitations. Moses v. Jones, 2 Nott & McCord, 259. Dowell v. Webber, 2 Smedes & Marsh. 452. In England, it was decided, in the Prerogative Court of Canterbury, in 1754, that a creditor had a right to call for an inventory, but that the court had no jurisdiction at his suit to examine the particulars of an account. Brown v. Atkins, 2 Lee, by Philimore, p. 1.

(a) N. Y. Revised Statutes, vol. ii. p. 88, sec. 33.

(b) N. Y. Revised Statutes, vol. ii. p. 88, secs. 34-42. An executor or administrator may plead the statute of limitations, and will not be precluded from the benefit of the plea, though he may have previously acknowledged the debt, for he may have made it without due consideration, and in ignorance of the true state of the case. Nor is he bound to plead the statute, for he may know the debt to be just. The plea rests in his

1 An executor cannot relieve himself of responsibility by paying over a legacy to the guardian of the legatee before it is due. Swope v. Chambers, 2 Gratt. 319. As to interest on legacies, see Loring v. Woodward, 41 N. Hamp. 391, and Bradner v. Faulkner, 12 N. Y. 472.

2 Provisions of this sort have no force against the claims of the United States. U. S. v. Backus, 6 McL. 443.

1 Baggott v. Boulger, 2 Duer, 160. Dolbeer v. Casey, 19 Barb. (N. Y.) 149.

These alterations, in New York, in the rules at common law, are generally dictated by justice and policy; and those respecting equality of payment have long been the prevailing doctrine in the distribution of assets in chancery. The surrogates are clothed with new and enlarged powers, which are very convenient to the public in the settlement of these ordinary and popular trusts. To guard against the undue assumption of power surrogates are restrained from exercising any power or jurisdiction whatever, not expressly given by statute. (c) But I forbear to enlarge

discretion. Fritz v. Thomas, 1 Wharton, 66. Nor is he liable to creditors, if he exercises a reasonable discretion in compromising a debt. Pennington v. Healey, 1 Cromp. & Mees. 402. In New York, the surrogate is authorized by statute, 70th sess. ch. 81, to permit executors and administrators to compromise and compound debts due to their testator or intestate. The jurisdiction of the courts of equity to superintend the administration of assets, and decree a distribution of the residue, after payment of the debts, and charges, has been long established. Mathews v. Newby, 1 Vern. 133. Howard v. Howard, Ibid. 134. And when relief is sought in chancery by a creditor on a creditor's bill, it has been the settled doctrine of the court ever since the great case of Morris v. The Bank of England, (Cases Temp. Talb. 217,) that upon a decree being obtained, it was in the nature of a judgment for all the creditors, and the court will not permit any particular creditor, by proceeding at law, to disturb that administration of the assets. All the creditors are entitled, and should have notice for that purpose, to come in and prove their debts before the master; and on motion of either party, an injunction will be granted to stay all proceeding of any of the creditors at law. This subject was largely discussed, and the authorities and precedents examined, and the principle adopted, (and I believe for the first time in this country,) in Thompson v. Brown, 4 Johns. Ch. 619; and the decree in that case, which is given in the report of it, was drawn by the chancellor as explanatory of the relief to be afforded. The English rule and practice in chancery is still the same, with progressive enlargement. Drewry v. Thacker, 3 Swanst. 544. Clarke v. Earl of Ormonde, 1 Jacob, 108. But in ordinary cases, the plain, prompt, and cheap decretal administration of the assets in the probate courts is much to be preferred. The principal English cases and doctrine on the subject of the distribution and marshalling of assets in equity, are collected and digested in Mr. Justice Story's Com. on Eq. Jurisprudence, ch. 9. See, also, Mr. Ram's "Practical Treatise on Assets, Debts, and Incumbrances," which is the most ample view of any we have on the administration and distribution of assets in law and equity, supported by an overwhelming mass of cases on the subject.

(c) N. Y. Revised Statutes, vol. ii. p. 221. The statute of New York, 1837, ch. 460, gave new and specific directions to surrogates relative to the proving of wills, and taking

See ante, p. [416,] note.

See ante, p. [415,] note, as to the right of an administrator to compound debts.

It must be a very uncommon case to induce a court to open the account of an administrator after the lapse of twenty years. Taylor v. Benham, 5 How. U. S. 233. Where an administrator has settled an estate, and paid over the money in pursuance of the order of a court, and a will is subsequently discovered and proved, the executor cannot compel the administrator to an account. Relief may be had in equity against the distributees for the money received. Barkaloo v. Emerick, 18 Ohio, 268.

further on the subject. My principal object, in this part of the present lecture, was rather to notice the descent and distribution of personal property than to discuss the general powers and duties of executors and administrators; and it may here be gener ally observed, that what has been said concerning the rules of law as to the inventory, the collection of the property, and the payment of debts, applies equally to executors and administrators. In the jurisprudence of the other states, the administration of the assets is likewise subject to various local modifications. * 419 * In a few of the states, the English order of preference is preserved. (a) In most of them, that order is entirely disturbed, and a more just and equitable rule of distribution adopted. Expenses of the last sickness, including the physician's bill, and funeral and probate charges, have everywhere the preference; and generally debts due to the United States and the state are next preferred, and then all other debts are placed on an equality, and paid ratably in the case of a deficiency of assets; but with the exception, no doubt, of legal liens, if there be any such recognized by law. (b) In Louisiana, there is a particular detail of the

new security from administrators and guardians, and revoking the trust of administrators and guardians, and relative to their accounting, &c.

(a) In Virginia, North Carolina, South Carolina, Kentucky, Delaware, Georgia, and Indiana, the English order of preference is preserved, with the exception of a few slight variations. Thus, in South Carolina, no preference is given among debts in equal degree, except that mortgages, judgments, and executions are paid as legal liens, according to seniority. In Virginia and Kentucky, debts due on protested foreign bills are placed on a footing with judgments. By Act of Virginia, of March, 1831, debts due by specialty, and promissory notes, and other writings of decedent, are taken to be of equal dignity. In North Carolina, specialty and simple contract debts are placed on an equality. See Griffith's Law Register, h. t.; 12 Wheaton, 594; Chappell v. Brown, 1 Bailey (S. C.) 528; Braxton v. Winslow, 4 Call, 308; Mayo v. Bentley, Ibid. 528; Lidderdale v. Robinson, 2 Brock. 165; Bomgaux v. Bevan, Dudley (Gco.) 110; Palmes v. Stephens, R. M. Charlton (Geo.) 56.

(b) This is the case in the states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Ohio, Indiana, Illinois, Tennessee, Mississippi, and Alabama, with some small variations. Thus, in Alabama, debts due to sureties are preferred; and in New Jersey, debts due to the United States have preference, and debts due and judgments entered during the life of the decedent have preference. In Ohio, after funeral expenses and the expenses of the last sickness, a sum is allowed for the support of the widow and children for one year, and then liens on the land, by mortgage and judgment are preferred. The residue of the assets are distributed ratably among the creditors. In Georgia, after debts due to the public, are payable judgments, mort

1 The priority of the United States cannot be affected by statutes of distribution, nor by probate decrees. United States v. Duncan, 4 McL. 607.

order of propriety, which is special and peculiar, and minute even beyond the rule of the common law. (c) In Maryland, judgments and decrees have preference, and all other debts are equal; and in Missouri, expenses of the last sickness, debts due to the state, and judgments, have preference, and all other debts are placed on an equality. (d) In Pennsylvania, the order of administration is, to pay, 1. Physicians, funeral expenses, and servants' wages; 2. Rents not exceeding one year; 3. Judgments; 4. Recognizances; 5. Bonds and specialties; 6. All other debts equally, except debts due to the state, which are to be last paid. (e)

gages, and executions; the eldest first; next rents; then bonds and other obligations, and, lastly, open accounts. Act of Georgia, December, 1792. Act of New Jersey, 1820. Revised Laws of New Jersey, 766. Griffith's Reg. passim. Dane's Abr. of American Law, vol. i. p. 560. Public Acts of Connecticut, 1821. 5 Hammond, 483. Statutes of Ohio, 1831. Massachusetts Revised Statutes, 1836. Revised Laws of Indiana, 1838, pp. 181, 186, and of Illinois, edit. 1833, p. 648. In Tennessee, by Act of 18th October, 1833, ch. 36, the assets of persons dying insolvent are directed to be distributed ratably among all the creditors.

(c) Civil Code of Louisiana, art. 1051–1061.

(d) Griffith's Law Register, h. t.

(e) Frazer v. Tunis, 1 Binney, 254. The physician's bill first to be paid is not confined to medicine and attendance in the last sickness. Rouse v. Morris, 17 Serg. & Rawle, 328. But by statute of 24th February, 1838, in Pennsylvania, no preference is now given to judgment over bond and simple contract creditors in the distribution of the assets of decedents. Foreign judgments rank as simple contracts only. Judgments of other states rank in the same grade as judgments in the state. 4 Watts & Serg. 314. The preference given by the laws of almost all countries, in the payment of debts to the expenses of the last sickness, and funeral, and the wages of servants, is founded on considerations of humanity and decorum. The last item of privileged debts is usually confined to menial servants, and to the current wages of the last term of the contract. This is the rule in Scotland. 2 Bell's Com. 162-165. The Massachusetts Revised Statutes, in 1836, go into a minute and very specific detail of the duties of executors and adminis trators, in collecting, settling, and disposing of the estate of the deceased. Considering the burden, and the incessant calls for the assumption of those trusts, such details are judicious, very useful, and even benevolent. The established rule in the administration of the assets of the deceased persons, in regard to creditors, is to be drawn from the laws of the country where the assets are, and where the executor or administrator acts, and from which he derives his authority, and not by that of the domicil of the deceased. The residue of the assets is distributed according to the law of the domicil. Marshal C. J., in Harrison v. Sterry, 5 Cranch, 299. Tilghman C. J., in Milne v. Moreton, 6 Binney, 361. Chase C. J., in De Sobry v. De Laistre, 2 Harr. & Johnson, 224. Smith v. Union Bank of G. 5 Peters U. S. 523, 524. Varnum v. Camp, 1 Green (N. J.) 332. Story's Com. on the Conflict of Laws, sec. 513. See, also, infra, pp. 454, 455. But many of the foreign jurists, to whom Judge Story refers, maintained that the law of the domicil of the debtor, even in a conflict of the rights and privileges of creditors, ought to overrule the jurisprudence of the situs of the effects.

538

OF PERSONAL PROPERTY.

* 420 *3. Of the distribution of the personal estate.

[PART V.

1. When the debts are paid, the administrator (the husband as administrator excepted) is bound, under the English statute of distributions, of 22 and 23 Charles II. ch. 10, after the expiration of a year from the granting of administration, to distribute the surplus property among the next of kin. (a) He is first to account to the ordinary court of probates, surrogate or other proper jurisdiction, and which, in several of the United States, is appropriately termed the orphans' court. It is held, that he is not bound to distribute without a previous order for that purpose; (b) and the statute of distributions makes it the duty of the court of probates to decree distribution. (c) The statute de

(a) Mr. Robertson, in his Treatise on Personal Succession, Edinburgh, 1836, ch. 1 to 6, has gone fully, and with great research and learning, into the history of the law of successions in England, Scotland, and Ireland, and has traced the gradual relaxation of the restrictions on the power of bequests, and the alterations and improvements in the administration and distribution of intestates' estates, down to the present time. This interesting treatise is republished in the Law Library, vol. xii. edited by Thomas I. Wharton, Esq., of Philadelphia, and which is an extremely useful and valuable compilation to the American bar, for they have, by means of it, a ready access to a selection of the best English treatises on the various branches of the law.

(b) Archbishop of Canterbury v. Tappen, 8 Barn. & Cress. 151.

(c) By the New York Revised Statutes, the executor or administrator is bound, after the expiration of eighteen months, to account before the surrogate, under the penalty of attachment and a revocation of his power. N. Y. Revised Statutes, vol. ii. p. 92, sec. 52. In accounting, he must verify by vouchers, and may be examined upon oath; and his oath will, if uncontradicted, supply the place of vouchers as to items, each of which does not exceed $20, and not exceeding, in the whole, in behalf of any one estate, $500. Ibid. secs. 54, 55. This was adopting the rule in chancery, which had established that a defendant, on accounting before a master, might verify, on his own oath, items not exceeding in each case $20, and not exceeding in the whole £100 sterling. Remsen v. Remsen, 2 Johns. Ch. 501. The executor or administrator may be allowed for property perished or lost without his fault; and he is not to gain by the increase, nor lose by the decrease of the property, without his fault. He is also entitled, besides his necessary expenses, to the same rate of commission of five, two and a half, and one per cent., which had been adopted by the chancellor in 1817; though, if a compensation be provided by the will, it is to be taken as a full satisfaction, unless the executor elect to take the allowance provided by law. N. Y. Revised Statutes, vol. ii. p. 93, secs. 58, 59. 3 Johns. Ch. 44. The commissioners who revised the statutes of Massachusetts, in 1835, reported a similar allowance to be made. By statute of 17th April, 1838, the Revised Statutes of Massachusetts on this point were repealed; and the court in which the accounts of executors and administrators are settled, are to allow their reasonable expenses, and a just

1 The commission must be apportioned among the executors according to their respective services. Act of 1849, ch. 160, White v. Bullock, 20 Barb. (N. Y.) 91. The administrator may be allowed counsel fees for the successful defence of his right of administration. Ez parte Young, 8 Gill, 285.