William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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always prefer himself to other creditors in equal degree. If a
creditor commences a suit at law, or in equity, he obtains pri-
ority over other creditors in equal degree; but an administrator
may go and confess judgment to another creditor in equal degree,
and thereby defeat the creditor who first sued, by pleading the
judgment and nil ultra, &c. (6).

The New York Revised Statutes (c), haTe made some es-
sential alterations in the English law, and in the ^former [ * 417 ]
law of New Tork, as to the order of payment of the debts
of the deceased. The order now established is as follows: L
Debts under the law of the United States; 2. Taxes assessed; &
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 debL due and payable entitled to preference over
debts not due; nor does the commencement of a suit for the re-
covery of any debt, or the obtaining a 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, ac-
cording to the class to which they belong, after deducting a re-
bate 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 prefer-
ence beneficial to the estate. In suits against executors and ad-
tort, were made answenihle by the RtatateB of 30 Car. IT. cb. 7. and 4 and 5
W. & M. ch. 24, and donbtleas the same law existe in this country. Execu-
tors 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.

{a) Dig. 11, 7, 45. Jhid, 35, 2, 72. Code, 6, ,30, 22, sec. 4, 5, 9. IToocra
Innh'ttUes of the Civil Law, 186, 187. Broum's View of the Civil Law, vol. i. p.

(b) See 8hep. T^ueh, by Preston, vol. ii. p. 475—480, and Bac. Ahr. tit. JEip-
eculors and Adminititraiors, L. 2, for a succinct view of the rules of the com-
mon law, touching the order of paying debts by executors and administrators.

(c) Vol. ii. p 87, sec. 27, 28, 29, 30.



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ministrators, tbe judgment, if there be a proper plea in the case,
is to be entered only for snch part of the assets as shall be a
jnst proportion to other debts of the same class; and the execu-
tion is to issne 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
[*418] otherwise order (a). No executor *or administrator

can retain for his own debt, until it has been proved to,
and allowed by the surrogate, and it is not entitled to any prefer-
ence over debts of the same class (b). The executor or ad-
ministrator may, by public notice, call upon the creditors to ex-
hibit, 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 snit
on such claims, though the next of kin or legatees may be liable
to refund to such creditors. If claims be exhibited ftnd disputed,
they may be referred to referees by consent; and it not, the cred-
itor must sue thereon within six months, or be barred for ever (c).

(a) N. y. Revised SiMuten^ vol. ii. p. 88, sec. 31, 39. The Rnrrognteinay de-
cree 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 adminis-
tration, and the payment ol any legacy or distributive share, on the applica-
tion 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 prose-
cuted. On judgments obtained at law, against any executor or administrator,
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, K
Reviaed Statutes, vol. ii. p. IJ6, sec. 18—22. Ibid. vol. ii. p 220. In Con-
necticut, the statute ot limitations is suspended in personal actions, for one
year from the creditor's death, in favour of his executors and administrators.
Acta 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 direc-
tions are given by the testator. Lord Eldon, 6 Vesey^ 5.39. 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, pro-
hibits 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 thind, or for the physician's bill, funeral charges, and judgments
against the decedent. By the Massachusfits Revised Statutes, m 1835, the cred-
itor is not to sue the executor or administrator until the expiration of one
year, except in special cases.

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

(c) New York Revised Statutes, vol. ii. p. 88, sec 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 ignor-
ance of tbe true state of the ca.se. Nor is he bound to plead the statute, for
he may know the debt to be just. The plea rests in his discretion. Fritz p.
Thomas, 1 Wharton, 66, Nor is he liable to creditors if he exercises a reason-


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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 re-
strained from exercising any power or jurisdiction whatever, not
expressly given by statute (a). But I forbear to enlarge further
on the subject. My principal object, in this part of the present
lecture, was rather to notice the descent and distribution of per-
sonal property, than to discuss the general powers and duties of
executors and administrators; and it may here be generally ob-
served, 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

able discretion in compromising a debt Pennington r. Healy, 1 Crompfon dt
Meeson, 402. The jurisdiction of the conrts of equity to superintend the
administration of assets, and decree a distribution of the residue, after pay-
ment of the debts and charges, has been long established, Matthews v.
Newby, 1 Vern. Rep. 133. Howard p. Howard, Ibid. 134. And when relief
is sought in chancery by a creditor on a creditor*s bill, it has been the set-
tled doctrine of the court, ever since the great case of Morris r. 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 coort> will not per-
mit any particular creditor, by proceeding at law, to disturb that adminis-
tration 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 proceedings
of any of the creditors at law. This subject was largely discu.<»ed, and the
authorities and precedents examined, and the principle adopted, (and I be-
lieve for the first time in this country,) in Thompson v. Brown, 4 Johns. Ch.
Rep. 619; and the decree in that case, and 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 Stoansf. Rep. 544. Clarke v. Earl of
Ormond, 1 Ja&th^s Rep. lOQ. 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 doctrines on the subject of
the distribution and marshalling of assets in equity, are .collected and di-
gested in Mr. Justice Stoiy's Co^nm. on Eq. Jurisprudence^ 513 — 552. See,
also, Mr. Ram's *' practical treatise of assets, debts and incumbrances,'' and
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

(a) N. r. Revised Statutes, vol. it. p. 221. The Statute of New York, 1837,
ch. 46r», gave new and specified directions to surrogates relative to the prov-
ing of wills, and taking new security from administrators and guardians, and
revoking the trust of administrators and guardians, and relative to their ac-
counting, &c.



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the assets is likewise subject to varions local modifica*
[ * 419 ] tiona *In a few of the states, the English order of

preference is preserved (a). In most of them, that order
is entirely distorbed, and a more just and equitable rule of dis-
tribution adopted. Expenses of the last sickness, 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 rate-
ably, in the case of a deficiency of assets; but with the excep-
tion, no doubt, of legal lei us, if there be any such recognized by
law (&). In Louisiana, there is a particular detail of the order
of priority, 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.

(a) In Virginia, North Carolina, South Carolina, Kentncky, Delaware,
Georgia, and Indiana* the English order of preference is preserved, with the
exception of a few slight variations. Thus, in South Carolina, uo preference
is given among debts in equal degree, except that mortgages, judgments, and
executions, are paid as legal lieus, according to seniority. Id Virginia and
Kentucky, debts due on protested loreign bills are placed on a footing with
judgments. By act of Virginia of Mardi, 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 GriffitJCa Law Eegisfer^ h. t 12 IVIuafon^ 594. Chapi>el r.
Brown, 1 Bailey's S C. Rep. 527. Braxton r. Winslow, 4 CnirA Rep. 3(W.
Mayo V. Beutley, Ibid. 528 Liddesdale v. Robinson, 2 Brockcnbrough, 165.
Bomganx r. Bevan, Dudley^ s Geo. R. 110. Palmes r. Stevens, R. M. Chart*
ton. Geo. R. 56.

(6) This is the case in the states of Maine, New Hampshire, Vermont,
MassachusseU, Rhode Island, Connecticut, New Jersey, Ohio, Indiana, I 111*
nols, Tennes.see, Mississippi, and Alabama, with some small variations.
Thus, in Alabama, debts due to sureties are preferred; and in New Jersej,
debts due to the United States have preference, and rents 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,
distributed rateably among the creditors. Act df Neio Jersey^ 1820. Reiiaed
La\DB of New Jemey, 766. Griffith'' h Reg. passim. Doners Abr. of American
Laws, vol. i. p. 560. Public Acts of Connecticut, 1821. 5 ffammond^s Rep. 483.
Statutes of Ohio, 1H31. 3fassackus€tts Revised Statutes, 1835. Revised Ltnes of
Indiana, 1838, p. 181, 186, and of Illinois, edit. 1833, p. 648. In Tennessee, by-
act of 18th October. 18,33, ch. 36, the assets of persons dying insolvent, are
directed to be distributed rateably amongst all the creditors.

(c) Civil Code of iMuiHiana, art. 1051—1061.

(d) Griffith's Law Hegister^ h. t.



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Bents, not exceeding one year; 3. Judgments; 4. Becognizances;
5. Bonds and specialties; 6. All other debts eqaally, except debts
due to the state, which are to be last paid (a).''

* (3.) Of the distribution of the personal estate, [ * 420]

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 IL ch. 10, after the
expiration of a year from the granting of administration, to dis-
tribute the surplus property among the next of kin (6). He is

(a) Frazer v. Tunis. 1 Binney^a Rep. 254. The physician's bill, first to be
paid, is not confined to medicine and attendance in the last sickness. Rouse v.
Morris, 17 Serff. <fe Jiawle, 328. But by statute of 24th February, 1834, in
Pennsylvania, no peference is now ^ven to judgment over bond and simple
contract creditors, in the distribution of the assets of decedents. The prefer-
ence giving 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 BeWa
Coin. 157, 158. The Masmchtisetts Reviseti Statutes, in 1835, go into a minute
and very specific detail of the duties of executors and administrators, in col-
lecting, settling, and disposing of the estate of the deceased. Considering
the burden and the incessant calls for the assumption ot 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 governed by 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 ot
the assets is distributed according to the law of the domicil. Marshall
Ch. J., in Harrison v. Story, 5 Cranch's Rep. 299. Tilghman, Ch. J., in
Milne v. Moreton, 6 Binney'a Rep. 361. Chase, Ch. J., in Dcsobry v. De
I^istre, 2 Harr. <j& Johnson^ 224. Smith v. Union Bank of G., 5 Peters' U. 8.
Rep. 523, 524. Vamum r. Camp, 1 Green's N. J. Rep. 332. Store's Oamm. on
the Conflict of Laws, 439 to 442. See, aljiO, infra, p. 454, 455. But many of
the foreign jnrist.s. to which Judge Story refers, maintain, 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 sHms of the effects.

(b) Mr. Robertson, in his Treatise on Per:H>nal Succession, Edinburgh, 1836,
ch. 1 to 6, has gone fully and with great research and learning, into the his-
tory of the law of successions in England, Scotland, and Ireland, and has
traced the gradual relaxation of the restrictions on tlie power of bequests,

" See note 16, ante, and the laws of the various states hereon.

The order of the application of the several funds to payment is : 1. The
general personal estate not expressly or by implication exempted. 2. Lands
expressly devised to pay debts. 3. Estates descended. 4. Devised lands
charged with tne payment of debts generally, whether devised in terms
general or special. 5. General pecuniary legacies pro rata. 6. Specific lega-
cies pro rata. Real estate devised, whether in terms general or specific.
Hoover v. Id., 5 Pa. St. 356; Tea's App., 23 Pa. St. 223. The above rules
apply in cases whether the deceased has left a will.

Taxes and funeral expen.ses are not debts due from deceased, but charges
imposed on the estate by law, and must be satisfied before any claim of the
United States as creditor, but expenses of last illness are debts due from de-
ceased, and payable after debt^ of the United States. United States o. Eggles-
ton, 4 Sawyer (Or.), 199..



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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 orphan's court It is held, that
he is not bound to distribute without a previous order for that pur-
pose (a) ; and the statute of distributions n^akes it the duty of
the court of probates to decree distribution (6). The statute

and the alterations and improvements in the administration and distribution
of intestate's estates down to the present time. This interesting treatise is,
republished in the Law Library, vol. xii. edited by Thomas J. 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.

(d\ Archbishop of Canterbury v, Tappen, 8 Bamw. & Cress. 151.

(6) By the New York Revised Sfafutes^ the executor or administrator is
bound, after the expiration of eighteen months, to account before the sur-
rogate, under the penalty of attachment and a revocation oi his power. N.
K Revised SiattUes, vol. ii. p. 92, sec. 52. In accounting, be must verify by
vouchers, and may be examined upon oath; and his oath will, if uncontra-
dicted, supply the place of vouchers, as to items, each of which does not ex-
ceed $20, and not exceeding in the whole in behalf of any one estate $500.
JMff. sec. 54, 55. This was adopting the rule in chancery, which had estab-
lished, that a defendant, on accounting before a master,* might verify, on bia
own oath, items not exceeding in each case, $20, and not exceeding in the
whole lOO;. sterling. Kemsen v. Remsen, 2 Johns. Ch. Rep. 501. The exe*
cutor 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 commissions, 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. Re^
vised Siaiutes, vol. ii. p. 93, sec. 58. 59. 3 Johns. Ch. Rep. 44. The commis-
sioners 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 Massjicfiusetts, on this point, were repealed, and the court in which the
accounts of executors and administrators are settled, are to allow .their rea-
sonable expenses, and a just and reasonable compensation for their sernces.
Assignees in trust are allowed an equitable compensation for their services,
according to circumstances. Jewett v. Woodward, 1 Edw. Ch. Rep. 195. In
Maryland, the commission is from five to ten per cent, in the discretion of
the court. 1 Peters* U. S. Rep. 562. 1 Harr. <& QUI, 13. In Pennsylvania,
the ordinary commission is five per cent., but it may exceed, or be less than
that, in the discretion of the court and under the circumstances. For re-
ceiving and paying out money it is two and a halt per cent., and sometimes
an additional half per cent is held to be a sufficient compensation for trouble.
In the estate of Miller, 1 Ashinead^s Rep. 323. Pusey v. Clemson, 9 Serg. it
RawU, 204. Stevenson *8 Estate, 4 Wliarton, 98. In Louisiana, the commission
to syndics cannot exceed 5 per cent, by act of 1817. That to executors is
two and a half per cent, on the whole amount received, and is shared amoni;
them all. Civif Code, art. 1676. In South Carolina the established commis-
sion is five per cent, with a ftarther allowance to be assessed by a jury, in
cases of extraordinary care and trouble. Logan r. Ix>gan, 1 JSTCorr/^s CSk.
Rep. 1. In England, it is a principle in equity, that if the testator, by will,
gives a compensation, the executor is not entitled to any other which may-
be allowed by law, unless he promptly elects to prefer it. 3 3ferivale*s Rep,
24. The mode of contesting the accounts before the surrogate, by the cred-



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declares, that after the debts, ^funeral charges, and jost [ *421]
ezpeoses' are deducted, a just and equal distribution of
what remaineth clear of the goods and personal estate of the in-
testate, shall be made amongst the wife and children, or children's
children, if any such there be; or otherwise to the next of kin to
the intestate, in equal degree, or legally representing their stocks;
that is to say, one- third part of the surplusage to the wife of the
intestate, and all the residue by equal portions, to and amongst
the children of the intestate and their representatives, if any of
the children be dead, other than such child or children who shall
have any estate by settlement, or shall be advanced by the in-
testate in his lifetime, by portion equal to the share which shall
by such distribution be allotted to the other children to whom
such distribution is to be mada And if the portion of any
child who hath had such settlement or portion, be not
equal to * the share due to the other children by the [ *422 ]
distribution, the child so advanced is to be made equal
with the rest (a). If there be no children, or their representatives,
one moiety of the personal estate of the intestate goes to the
widow, and the residue is to be distributed equally among the
next kin, who are in equal degree, and those who represent them;
but no representation is admitted among collaterals, after broth-
ers' and sisters* children*; and in case there be no wife, then
the estate is to be distributed equally amongst the children; and
if no child, then to the next of kin in equal degree, and their

itora, legatees, and next of kin, is specially detailed in the New York sta-
tates. N. V. RevUed Statutes, vol. ii. p. 93, sec 60—70. And the manner of
acconntrng before the sarrogate by executors, is also detailed in the case of
Gardner v. Gardner, 7 Paige, 112.

In Pennsylvania, the registers' courts have a similar jurisdiction over the
estates of testators and intestates; and the orphan's court, a species of equity
jurisdiction over executors and administrators, guardians and minors. But
the practice and rules in the orphan's tribunals were represented to be in a
state of deplorable confusion; (Duncan, J., 11 Serg. d Rawle, 432;) and in
January, 1831, the commissioners appointed to revise the statute code of
Pennsylvania, reported new revised statutes, containing a consolidation
of all the statutes, with* the suggestion of improvements, in relation to the
registers' and orphans' courts. In Ohio, testamentary jurisdiction, or pro-
bate powers, and the appointment and control of guardians, are annexed to
the courts of common pleas in the respective counties. Acts of 1831.

((]) Under this statute, the widow cannot come into hotchpot and claim
collation of advancements to the children. She only takes her share of
what remains after deducting the advancements. Ward r. Lant, Prec. in
Chancery, 182, 184. Ki.skudbright v. Kiskudbright, 8 Vesey, b\. This is
also the law in Tennessee under the North Carolina statutes of 1784, adopted
in that state. Brunson v, Branson, 1 dfeig^a R. 630.

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 68 of 108)