debts due on special contracts; as for rent (for which the lessor has often a better remedy in his own hands, by distreining), or upon bonds, covenants, and the like, under seal (n) (55). Lastly, debts on simple contracts, viz. upon notes unsealed, and verbal promises. Among these simple contracts, servants' wages are by some (o) with reason preferred to any other and so stood the ancient law, according to Bracton (p) and Fleta (q), who reckon among the first debts to be paid, servitia servientium et stipendia famulorum. Among debts of equal degree, the executor or administrator is allowed to pay himself first, by retaining in his hands so much as his debt amounts to (r). But an executor of his own wrong is not allowed to retain (56): for that would tend to encourage creditors to strive who should first take possession of the goods of the deceased; and would besides be taking advantage of his own wrong, which is contrary to the rule of law (s). If a *creditor constitutes his debtor his [ *512 ] executor, this is a release or discharge of the debt, whether the executor acts or no (t); provided there be assets sufficient to pay the testator's debts: for though this discharge of the debt shall take place of all legacies (57), yet it were (n) Wentw. ch. 12. (9) L. 2, c. 56, s. 10. a bill filed by other creditors. (Rush v. Higgs, 4 Ves. 643; Martin v. Martin, 1 Ves. sen. 213.) But, from the moment a final decree to that effect is made, it is considered as a judgment in favour of all the creditors; and there the court of equity could not execute its own decree, if it permitted the course of payment to be altered by a subsequent judgment of a court of law. (Largan v. Bowen, 1 Sch. & Lef. 299; Paxton v. Douglas, 8 Ves. 521.) Between decrees and judgments, the right to priority of payment is determined by their real priority of date. (See ante, p. 342, note; and further, as to the classification and priority of debts, see ante, p. 465.) (r) 10 Mod. 496. See Vol. III. p. 18. (s) 5 Rep. 30. (t) Plowd. 184; Salk. 299. (55) Mr. Christian observes, that a court of equity will order voluntary bonds or other special contracts, without consideration, to be postponed to simple contract debts. (3 P. Wms. 222.)" [See ante, p. 340, notes, as to bonds pro turpi causá; and as to the importance of a good and sufficient consideration, to support a bond, or other deed, see ante, pp. 296, 297, with the notes thereto.-ED.] (56) See ante, pp. 507 and 508, and Vol. III. p. 19. (57) Such is, certainly, the rule at common law; and it has been questioned, formerly, whether it did not hold in equity: (Brown v. Selwin, Ca. temp. Talb. 242:) but, it seems to have been long esteemed the better unfair to defraud the testator's creditors of their just debts by a release which is absolutely voluntary (u). Also, if no suit is commenced against him, the executor may pay any one creditor in equal degree his whole debt, though he has nothing left for the rest: for, without a suit commenced (58), the executor has no legal notice of the debt (w). (u) Salk. 303; 1 Roll. Abr. 921. opinion, that a debt due from a testator's executor is general assets for payment of the testator's legacies : (Phillips v. Phillips, 2 Freem. 11; Anonym. c. 58; ibid. 52 :) and that, in such cases, though the action at law is gone, the duty remains; which may be sued for either in equity or in the spiritual court. (Flud v. Rumsey, Yelv. 150; Hudson v. Hudson, 1 Atk. 461.) Lord Thurlow, (in Casey v. Goodinge, 3 Br. 111,) and Sir William Grant, (in Berry v. Usher, 11 Ves. 90,) treated this as a point perfectly settled: and Lord Erskine (in Simmons v. Gutteridge, 13 Ves. 264,) said, a debt due by an executor to the estate of his testator is assets, but, he cannot sue himself; and the consequence seems necessary, that, in all cases, under the usual decree against an executor, an interrogatory ought to be pointed to the inquiry, whether he has assets in his hands arising from a debt due by himself: and any legatee has a right to exhibit such an interrogatory, if it has been omitted in drawing up the decree to account. Some writers have, indeed, thought that the appointment of a debtor to be the executor of his creditor, ought to be considered in the light of a specific bequest or legacy to the debtor; (see Hargrave's note (1) to Co. Litt. 264 b;) yet, even if this really were so, it would be difficult to maintain the executor's right of retainer as against other legatees; (see post, p. 512;) but Lord Holt (in Wankford v. Wankford, 1 Salk. 306) said, "When i the obligee makes the obligor his ex (w) Dyer, 32; 2 Leon. 60. ecutor, though it is a discharge of the action, yet the debt is assets; and the making him executor does not amount to a legacy, but to payment and a release. If H. be bound to J. S. in a bond of 1007., and then J. S. makes H. his executor; H. has actually re- ceived so much money, and is answerable for it, and if he does not administer so much, it is a devastavit." (58) It is not enough that a suit has been commenced, (Sorrell v. Carpenter, 2 P. Wms. 483,) there must have been a decree for payment of debts, or an executor will be at liberty to give a preference, amongst creditors of equal degree. (Maltby v.Russell, 2 Sim. & Stu. 228; Perry v. Philips, 10 Ves. 39; and see the note to the last page.) But if an executor who has, in any way, notice of an outstanding bond, or other specialty affecting his testator's assets, confesses a judgment in an action brought for a simple contract debt, should judgment be afterwards given against him on the bond, he will be obliged, however insufficient the assets, to satisfy both the judgments; for, to the debt on simple contract, he might have pleaded the demand of a higher nature. An executor must not, by negligence or collusion, defeat specialty creditors of his testator, by confessing judgments on simple contract debts, of which he had notice. (Sawyer v. Merrer, 1 T. R. 690; Davies v. Monkhouse, Fitz-Gib. 77 ; Britton v. Bathurst, 3 Lev. 115.) And where the testator's debt was a debt upon record, or established by a of legacies. 6. When the debts are all discharged, the legacies claim 6. The pay mont the next regard; which are to be paid by the executor so judgment or decree, the executor will be held to have had sufficient constructive notice thereof, and it will be immaterial whether he had actual notice or not. If he has paid any debts of inferior degree, he will be answerable as for a devastavit. (Littleton v. Hibbins, Cro. Eliz. 793; Searle v. Lane, 2 Freem. 104; S. C. 2 Vern. 37.) Since the statute of 3 Will. & Mary, c. 14, (which, it is true, has been repealed by the statute of 11 Geo. IV. and 1 Gul. IV. c. 47, but only for the purpose of consolidating the whole provisions of the law, on this head, into one act;) simple contract debts are let in to be paid pari passu with debts by specialty, when a testator has limited lands to his executors or trustees, in trust for payment of his debts generally. (Kidney v. Coussmaker, 12 Ves. 154.) But this rule seems to have been of earlier date than the statute. (Foly's case, 2 Freem. 49; Hickson v. Witham, ibid. c. 12, in Appendix to 2nd edit. 306.) And it is now settled, that a charge for payment of debts, which does not break the descent of real estate to the heir, will be equitable assets for the payment of all creditors alike. (Shiphard v. Lutwidge, 8 Ves. 30; Bailey v. Ekins, 7 Ves. 323; Clay v. Willis, 1 Barn. & Cress. 372; 2 D. & R. 546.) If, therefore, specialty creditors sweep away the whole of the testator's personal assets, they will not be allowed to participate in the benefit of the devise, until the creditors by simple contract have received so much thereout as to make them equal and upon the level with the creditors by specialty, in respect of what they received out of the personal estate. (Haslewood v. Pope, 3 P. Wms. 323.) And whenever a plaintiff is under the necessity of applying to the court of Chancery for relief, the general rule of that court is, to do equal justice to all creditors, without any distinction. (Plunkett v. Penson, 2 Atk. 293.) Thus, the equity of redemption of a mortgage of a term for years, has been held equitable assets; (Sir Charles Cox's case, 3 P. Wms. 341; Hartwell v. Chitters, Ambl. 308; Newton v. Bennet, 1 Br. 137; Clay v. Willis, 1 Barn. & Cress. 372; 2 D. & R. 546 ;) and so, perhaps, would an equity of redemption of a mortgage in fee, if mere bond creditors contended for priority of payment; (for it is clear such assets could only be got at by aid of equity;) but it has been decided, that in such a case, judgment creditors could not be compelled to come in pari passu with simple contract creditors, but that, as the judgment creditors had a right to redeem, they must be paid in the first instance, and there could be no marshalling as against them. (Sharpe v. Earl of Scarborough, 3 Ves. 542.) Since this note was first published, the statute of 3 & 4 Gul. IV. c. 104, has been passed, by which it is enacted, that when any person shall die seised of or entitled to freehold or copyhold estates, which he has not, by his will, charged with or devised subject to payment of his debts, the same shall be assets to be administered in courts of equity for the payment of all the just debts of such person; but creditors by specialty, in which the heirs are bound, are to be entitled to priority of payment. The personal estate of a testator is the primary fund for payment of his debts and legacies; and it will not be enough for the personal representative to show that the real estate is charged therewith; he must satisfactorily show that the personal estate is discharged: (Tower v. Lord Rous, 18 Ves, 138; In case of deficiency of assets, far as his assets will extend; but he may not give himself the preference herein, as in the case of debts (x). A legacy is a bequest, or gift, of goods and chattels by tesgeneral legacies tament; and the person to whom it was given is styled the tionably abated. legatee: which every person is capable of being, unless par must be propor (x) 2 Vern. 434; 2 P. Wms. 25. [2 Freem. 134; 2 Atk. 171.—ED.] Bootle v. Blundell, 19 Ves. 548; Watson v. Brickwood, 9 Ves. 454; Barnewall v. Lord Cawdor, 3 Mad. 456) still, where such an intention is plainly made out, it will prevail: (Greene v. Greene, 4 Mad. 157; Burton v. Knowlton, 3 Ves. 108 :) and parties entitled, by descent or devise, to real estate, cannot claim to have the incumbrance thereon discharged out of their ancestor's or devisor's personal estate, so as to interfere with specific, or even with general legatees: (Bishop v. Sharpe, 2 Freem. 278; Tipping v. Tipping, 1 P. Wms. 730; O'Neale v. Meade, Ibid. 694; Davis v. Gardiner, 2 P. Wms. 190; Rider v. Wager, Ibid. 335 :) and, a fortiori, they could not maintain such a claim, when it would go to disappoint creditors. (Lutkins v. Leigh, Ca. temp. Talb. 54; Goree v. Marsh, 2 Freem. 113.) When the owner of an estate has, himself, subjected it to a mortgage debt, and dies; his personal estate is first applicable to the discharge of his covenant for payment of that debt: (Robinson v. Gee, 1 Ves. sen. 252:) and the case would be the same even although the mortgagor had entered into no such personal covenant, provided he received the money. (King v. King, 3 P. Wms. 360; Cope v. Cope, 2 Salk. 449.) The mere form of devising a mortgaged estate, subject to the incumbrance thereon, (but without expressly exonerating the other funds from liability in respect thereof,) will not affect the question as to the application of assets in discharge of the debt; those words con vey no more than would be implied if they had not been used. (Serle v. St. Eloy, 2 P. Wms, 386; Bootle v. Blundell, 19 Ves. 523.) This rule, however, does not apply where the mortgage debt was not contracted by the testator, and whose personal estate, consequently, was never augmented by the borrowed money; for such a construction would be to make the personal estate of one man answerable for the debt of another. (Evelyn v. Evelyn, 2 P. Wms. 664; Earl of Tankerville v. Fawcett, 1 Cox, 239; Basset v. Percival, 1 Cox, 270; Parsons v. Freeman, Ambl. 115; Tweddel v. Tweddel, 2 Br. 154.) But any one may, of course, so act as to make his personal assets liable to the discharge of debts contracted by another. (Woods v. Huntingford, 3 Ves. 152.) Though a court of equity cannot prevent a creditor from coming upon the personal estate of his deceased debtor, in respect of a debt which might be demanded out of his real estate; still the other creditors will have an equity to charge the real estate for so much as, by that means, is taken out of the personal estate. (Colchester v. Lord Stamford, 2 Freem. 124; Grise v. Goodwin, Ibid. 265.) And if a bill has been filed for administration of the assets, should it appear that a specialty creditor has been paid out of the personal estate, it is not necessary to file another bill for the purpose of marshalling the assets; but the court will, without being called on, give the requisite directions. (Gibbs v. Augier, 12 Ves. 416.) ticularly disabled by the common law or statutes, as traitors, papists (59), and some others. This bequest transfers an inchoate property to the legatee; but the legacy is not perfect without the assent of the executor: for, if I have a general or pecuniary legacy of 1007., or a specific one of a piece of plate, I cannot in either case take it without the consent of the executor (y). For in him all the chattels are vested (60); and it is his business first of all to see whether there is a sufficient fund left to pay the debts of the testator: the rule of equity being, that a man must be just, before he is permitted to be generous; or, as Bracton expresses the sense of our ancient law (z), “ de bonis defuncti primo deducenda “sunt ea quæ sunt necessitatis, et postea quæ sunt utilitatis, "et ultimo quæ sunt voluntatis.” And in case of a deficiency of assets, all the general legacies must abate proportionably, in order to pay the debts; *but a specific legacy (of a piece [ *513 ] of plate, a horse, or the like) is not to abate at all, or allow (y) Co. Litt. 111; Aleyn. 39. (59) This ground of disability no longer disgraces the statute book. (60) It has been much questioned, whether it was not the intention of the legislature, that a specific devise of stock in the public funds should be considered in the nature of a parliamentary appointment, and not want the assent of the executor; (Pearson v. The Bank of England, 2 Cox, 179;) though a different practical construction has been put on the statute creating government annuities; (Bank of England v. Lunn, 15 Ves. 578;) and it must now be taken to be the law, that stock, like all other personal property, is assets in the hands of the executor. The consequence necessarily follows, that it must vest in the executor, and, till he assents, the legatee has no right to the legacy. (Franklin v. The Bank of England, 1 Russ. 597; Bank of England v. Moffat, 3 Br. 262.) The assent of the executor is equally necessary whether a legacy be specific or merely pecuniary; (Flanders v. Clarke, 3 Atk. 510; Abney v. Miller, 2 (2) L. 2, c. 26. Atk. 598;) a court of equity, indeed, |