Imatges de pàgina
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being the proper fund for payment of debts, a mortgage made by the testator must be discharged out of the personal estate, provided there is sufficient to pay the rest of the creditors and legatees. But, though a mortgage is personal in its creation, yet, if it has been contracted by another, and by the testator or intestate himself, it is payable out of the real estate, for the personal estate has received no augmentation thereby. Perkins v. Bayntum, 2 Ibid. 664, in notis.

Where there are only equitable assets, which is when a testator leaves his real property to trustees or executors for the payment of his debts, they are distributable to all the creditors, of whatever degree, in the same proportion; for, in equity, a debt by judgement or simple contract is equal. Ibid. 416. And even creditors whose demands are barred at law by the statute of limitations will be let in. 2 Vern. 141.

It being the object of a court of equity that every claimant upon the assets of a deceased person shall be satisfied as far as such assets can, by any arrangement consistent with the nature of the respective claims, be applied in satisfaction thereof, it has been settled that where one claimant has more than one fund to resort to, and another claimant only one, the first claimant shall resort to that fund on which the second has no lien. 2 Atk. 446. And, therefore, if a specialty

creditor, whose debt is a lien on the real assets, has received part of his debt out of the personal assets, he cannot receive out of the equitable fund till the simple contract creditors have been paid a portion of their debts, out of the real assets, equal to what the personal estate has been exhausted in payment of the specialty creditor. Galpin v.

Hencock, 2 Ibid. 436.

Creditors on specialty, where the deceased has bound himself and his heirs, may resort to the heir, or to the executor or administrator, at their option; but if, by having recourse to the personal estate, it is so far exhausted as not to leave sufficient for the payment of the simple contract creditors, as also the legatees, equity will enable these to recover from the heir the amount of what the specialty creditors had so taken from the personal fund. 1 Ves. 312.

It is the primary duty of the executor to pay his testator's debts; and for this purpose the assets must be first applied; but, as soon as the debts. are all liquidated, or discharged, the payment of the legacies next claim the executor's attention. These are to be paid by the executor or administrator, so far as the effects which remain after payment of the debts will extend; but he may not give himself the preference in this case, as he may in the case of debts, (2 Vern. 434,) but shall have

an equal proportion with the rest of the legatees. Chan. Rep. 354.

If an executor pays one legacy, as it is a presumption that he is possessed of assets sufficient to pay all the legacies, should there be any deficiency of assets, he must, if solvent, make up the deficiency out of his own estate; and the court will not permit him to bring a bill to compel the legatee, whom he voluntarily paid, to refund, (2 P. Wms. 292;) unless he has paid the legacy by compulsion, as where the legatee has recovered by decree, (2 Vern. 205;) or if debts of which he had no notice before the legacies were paid, are claimed after the assets are distributed. 1 Chan. Cas. 195.

For the recovery and protection of the rights and interests which the law confers on an executor, or administrator, (for their legal remedies are corresponding and co-extensive,) he is invested with adequate means. To whatever actions the testator might have been entitled, to enforce the performance of personal contracts, or to recover for injury or damage done to his personal estate, the same the executor or administrator is competent to bring in his representative capacity. And where executors or administrators are plaintiffs in their representative capacity, they pay no costs, either on a nonsuit or verdict, unless they fail in

their suit through mispleading, gross. misconduct, or wilful default.

They may release and take a release, pay or receive debts, demise lands, sell or mortgage terms of years, assign mortgaged terms, redeem pledges, sell or otherwise dispose of their testator's property, assent to or pay legacies, transfer bank stock from his name to their own, or that of such person as they may appoint, sue on behalf of their testator's estate, and prove under a commission of bankruptcy, and sign the debtor's certificate. In fact, executors and administrators are entitled to a remedy for every injury done to the personal estate of the deceased before his death. Com. Dig. Admin. B. 13. And to this right, temporary executors, and special or limited administrators, are entitled. But to injuries done to the person or freehold of the deceased, they have no title; for, in the first case, it is a rule of law, that all torts in personal actions die with the person who has a title to them; and in the second, the heir is entitled to the right of action. 2 Maul. and Selw. 408.

Executors are empowered to require security from legatees to refund, in case outstanding debts should appear after payment of the legacies. And every person to whom any distribution and share of an intestate's effects shall be allotted, under the statute of distributions, is compellable to give bond,

with sufficient sureties, in the spiritual court, that if any debt of the intestate should be afterwards sued for and recovered, that he will refund to the administrator his rateable part of that debt, and of the costs of suit and charges of the administrator. So, by a parity of justice, if it appears that they are wasting the estate, they may be compelled to give security to the legatees for the payment of their legacies.

5. The Responsibility of Executors and Adminis

trators.

With regard to the responsibility of an executor or administrator, it is almost needless to say that he is liable to make good, out of his own estate, all embezzlement or improper application of his testator's property. The law also makes him liable, in his own property, for numerous other less direct modes of abuse in his official trust, whether the same consists in a wilful wasting of the effects entrusted to him. As if he pays debts out of their order, having prior information of such debts of higher degree subsisting; or pays legacies without reserving sufficient to satisfy creditors; or releases the debts of the testator without a satisfaction; or changes the securities for debts; or reduces the estate by submitting to arbitration; or releases an action commenced; or incurs a charge of interest, by delay in the payment of a debt,

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