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debts due on special contracts; as for rent (for which the
lessor has often a better remedy in his own hands, by dis-
treining), 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 pre-
ferred to any other : and so stood the ancient law, according
to Bracton (p) and Fleta (9), 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 pos-
session 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 suffi-
cient to pay the testator's debts: for though this discharge
of the debt shall take place of all legacies (57), yet it were

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a bill filed by other creditors. (Rush (55) Mr. Christian observes, that
v. Higgs, 4 Ves. 643; Martin v. a court of equity will order volun-
Martin, 1 Ves. sen. 213.) But, from tary bonds or other special contracts,
the moment a final decree to that without consideration, to be post-
effect is made, it is considered as a poned to simple contract debts. (3 P.
judgment in favour of all the credi. Wms. 222.)” [See ante, p. 340, notes,
tors; and there the court of equity as to bonds pro turpi causa ; and as
could not execute its own decree, if it to the importance of a good and suffi.
permitted the course of payment to cient consideration, to support a bond,
be altered by a subsequent judgment or other deed, see ante, pp. 296, 297,
of a court of law. (Largan v. Bowen, with the notes thereto.-Ed.]
1 Sch. & Lef. 299; Paxton v. Douglas, (56) See ante, pp. 507 and 508,
8 Ves. 521.) Between decrees and and Vol. III. p. 19.
judgments, the right to priority of (57) Such is, certainly, the rule at
payment is determined by their real common law; and it has been ques-
priority of date. (See ante, p. 342, tioned, formerly, whether it did not
note; and further, as to the classifi. hold in equity: (Brown v. Selwin, Ca.
cation and priority of debts, see ante, temp. Talb. 242 :) but, it seems to
p. 465.)

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have been long esteemed the better


anfair 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.

(w) Dyer, 32; 2 Leon. 60.

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opinion, that a debt due from a tes- ecutor, though it is a discharge of the tator's executor is general assets for action, yet the debt is assets; and the payment of the testator's legacies: making him executor does not amount (Phillips v. Phillips, 2 Freem. 11; to a legacy, but to payment and a Anonym. c. 58 ; ibid. 52 :) and that, release. If H. be bound to J. S. in a in such cases, though the action at bond of 1001., and then J. S. makes law is gone, the duty remains ; which H. his executor ; H. has actually re- . may be sued for either in equity or in ceived so much money, and is answerthe spiritual court. (Flud v. Rumsey, able for it, and if he does not admiYelv. 150; Hudson v. Hudson, 1 Atk. nister so much, it is a devastavit." 461.) Lord Thurlow, (in Casey v. (58) It is not enough that a suit Goodinge, 3 Br. 111,) and Sir William has been commenced, (Sorrell v. CarGrant, (in Berry v. Usher, 11 Ves. 90,) penter, 2 P. Wms. 483,) there must treated this as a point perfectly set- have been a decree for payment of tled : and Lord Erskine (in Simmons debts, or an executor will be at liberty v. Gutteridge, 13 Ves. 264,) said, a to give a preference, amongst credebt due by an executor to the estate ditors of equal degree. (Maltby v.Rusof his testator is assets, but, he can- sell, 2 Sim. & Stu. 228 ; Perry v. not sue himself; and the consequence Philips, 10 Ves. 39; and see the note seems necessary, that, in all cases, to the last page.) But if an executor under the usual decree against an ex- who has, in any way, notice of an ecutor, an interrogatory ought to be outstandiug bond, or other specialty pointed to the inquiry, whether he affecting his testator's assets, conhas assets in his hands arising from a fesses a judgment in an action brought debt due by himself: and any legatee for a simple contract debt, should has a right to exhibit such an inter- judgment be afterwards given against rogatory, if it has been omitted in him on the bond, he will be obliged, drawing up the decree to account. however insufficient the assets, to

Some writers have, indeed, thought satisfy both the judgments ; for, to that the appointment of a debtor to the debt on simple contract, he might be the executor of his creditor, ought have pleaded the demand of a higher to be considered in the light of a spe- nature. An executor must not, by cific bequest or legacy to the debtor; negligence or collusion, defeat spe. (see Hargrave's note (1) to Co. Litt. cialty creditors of his testator, by 264 b;) yet, even if this really were confessing judgments on simple conso, it would be difficult to maintain tract debts, of which he had notice. the executor's right of retainer as (Sawyer v. Merrer, 1 T. R. 690 ; against other legatees; (see post, p. Davies v. Monkhouse, Fitz-Gib. 77 ; 512 ;) but Lord Holt (in Wankford v. Britton v. Bathurst, 3 Lev. 115.) Wankford, i Salk. 306) said, “When And where the testator's debt was a the obligee makes the obligor his ex- deht upon record, or established by a

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

of legacies.

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judgment or decree, the executor will Chancery for relief, the general rule
be held to have had sufficient con- of that court is, to do equal justice to
structive notice thereof, and it will be all creditors, without any distinction.
immaterial whether he had actual (Plunkett v. Penson, 2 Atk. 293.)
notice or not. If he has paid any Thus, the equity of redemption of a
debts of inferior degree, he will be mortgage of a term for years, has been
answerable as for a devastavit. (Lit. held equitable assets ; (Sir Charles
tleton v. Hibbins, Cro. Eliz. 793 ; Cox's case, 3 P. Wms. 341; Hartwell
Searle v. Lane, 2 Freem. 104; S. C. v. Chitters, Ambl. 308; Newton v.
2 Vern. 37.)

Bennet, 1 Br. 137 ; Clay v. Willis, 1
Since the statute of 3 Will. & Mary, Barn. & Cress. 372 ; 2 D. & R. 546 ;)
c. 14, (which, it is true, has been re- and so, perhaps, would an equity of
pealed by the statute of 11 Geo. IV. redemption of a mortgage in fee, if
and 1 Gul. JV. c. 47, but only for the mere bond creditors contended for
purpose of consolidating the whole priority of payment; (for it is clear
provisions of the law, on this head, such assets could only be got at by
into one act;) simple contract debts aid of equity ;) but it has been de-
are let in to be paid pari passu with cided, that in such a case, judgment
debts by specialty, when a testator creditors could not be compelled to
has limited lands to his executors or come in pari passu with simple con-
trustees, in trust for payment of his tract creditors, but that, as the judg.
debts generally. (Kidney v. Couss- ment creditors had a right to redeem,
maker, 12 Ves. 154.) But this rule they must be paid in the first instance,
seems to have been of earlier date and there could be no marshalling as
than the statute. (Foly's case, 2

against them. (Sharpe v. Earl of
Freem. 49; Hickson v. Witham, ibid. Scarborough, 3 Ves. 542.)
c. 12, in Appendix to 2nd edit. 306.) Since this note was first published,
And it is now settled, that a charge the statute of 3 & 4 Gul. IV. c. 104,
for payment of debts, which does not has been passed, by which it is enacted,
break the descent of real estate to the that when any person shall die seised
heir, will be equitable assets for the of or entitled to freehold or copyhold
payment of all creditors alike. (Ship- estates, which he has not, by his will,
hard v. Lutwidge, 8 Ves. 30; Bailey charged with or devised subject to
v. Ekins, 7 Ves. 323; Clay v. Willis, payment of his debts, the same shall
1 Barn. & Cress. 372; 2 D. & R. 546.) be assets to be administered in courts

If, therefore, specialty creditors of equity for the payment of all the
sweep away the whole of the testator's just debts of such person ; but credi-
personal assets, they will not be al. tors by specialty, in which the heirs
lowed to participate in the benefit of are bound, are to be entitled to pri.
the devise, until the creditors by sim- ority of payment.
ple contract have received so much The personal estate of a testator is
thereout as to make them equal and the primary fund for payment of his
upon the level with the creditors by debts and legacies ; and it will not be
specialty, in respect of what they enough for the personal representative
received out of the personal estate. to show that the real estate is charged
(Haslewood v. Pope, 3 P. Wms. 323.) therewith; he must satisfactorily show
And whenever a plaintiff is under the that the personal estate is discharged:
necessity of applying to the court of (Tower v. Lord Rous, 18 Ves. 138 ;

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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

In case of defi. ciency of assets,


(x) 2 Vern. 434 ; 2 P. Wms. 25. [2 Freem. 134 ; 2 Atk. 171.--Ed.]

Bootle V. Blundell, 19 Ves. 548 ; vey no more than would be implied Watson v. Brickwood, 9 Ves. 454 ; if they had not been used. (Serle v. Barnewall v. Lord Cawdor, 3 Mad. St. Eloy, 2 P. Wms, 386; Bootle v. 456 :) still, where such an intention Blundell, 19 Ves. 523.) This rule, is plainly made out, it will prevail : however, does not apply where the (Greene v. Greene, 4 Mad. 157; Bur. mortgage debt was not contracted ton v. Knowlton, 3 Ves. 108 :) and by the testator, and whose personal parties entitled, by descent or devise, estate, consequently, was never augto real estate, cannot claim to have mented by the borrowed money; for

; the incumbrance thereon discharged such a construction would be to make out of their ancestor's or devisor's the personal estate of one man anpersonal estate, so as to interfere with swerable for the debt of another. specific, or even with general legatees: (Evelyn v. Evelyn, 2 P. Wms. 664 ; (Bishop v. Sharpe, 2 Freem. 278; Earl of Tankerville v. Fawcett, 1 Tipping v. Tipping, 1 P. Wms. 730 ; Cox, 239; Basset v. Percival, 1 Cox, O'Neale v. Meade, Ibid. 694 ; Davis 270; Parsons v. Freeman, Ambl. 115 ; v. Gardiner, 2 P. Wms. 190; Rider Tweddel v. Tweddel, 2 Br. 154.) v. Wager, Ibid. 335 :) and, a fortiori, But any one may, of course, so act as they could not maintain such a claim, to make his personal assets liable to when it would go to disappoint credi- the discharge of debts contracted by tors. (Lutkins v. Leigh, Ca. temp. another. (Woods v. Huntingford, 3 Talb. 54; Goree v. Marsh, 2 Freem. Ves. 152.) 113.)

Though a court of equity cannot When the owner of an estate has, prevent a creditor from coming upon himself, subjected it to a mortgage the personal estate of his deceased debt, and dies ; his personal estate is debtor, in respect of a debt which might first applicable to the discharge of his be demanded out of his real estate ; covenant for payment of that debt: still the other creditors will have an (Robinson v. Gee, 1 Ves. sen. 252:) equity to charge the real estate for so and the case would be the same even much as, by that means, is taken out although the mortgagor had entered of the personal estate. (Colchester v. into no such personal covenant, pro- Lord Stamford, 2 Freem. 124 ; Grise vided he received the money. (King v. Goodwin, Ibid. 265.) And if a bill v. King, 3 P. Wms. 360 ; Cope v. has been filed for administration of the Cope, 2 Salk. 449.) The mere form assets, should it appear that a specialty of devising a mortgaged estate, sub. creditor has been paid out of the perject to the incumbrance thereon, (but sonal estate, it is not necessary to file without expressly exonerating the another bill for the purpose of marother funds from liability in respect shalling the assets; but the court will, thereof,) will not affect the question without being called on, give the reas to the application of assets in dis- quisite directions. (Gibbs v. Augier, charge of the debt; those words con- 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 1001., 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 (2), 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.

(2) L. 2, c. 26.


(59) This ground of disability no Atk. 598;) a court of equity, indeed, longer disgraces the statute book. will compel the executor to deliver the

(60) It has been much questioned, specific articles devised ; (Northey v. whether it was not the intention of the Northey, 2 Atk. 77 ;) but, as a general legislature, that a specific devise of rule, no action at law can be mainstock in the public funds should be tained for a legacy, (Deeks v. Strutt, considered in the nature of a parlia- 5 T. R. 692,) or for a distributive mentary appointment, and not want share under an intestacy. (Jones v. the assent of the executor; (Pearson Tanner, 7 Barn. & Cress. 544; 1 Man. v. The Bank of England, 2 Cox, 179;) & Ry. 424.) It was held, however, though a different practical construc- in Doev.Guy, (3 East, 123,) to be clear, tion has been put on the statute creat- from all the authorities, that the ining government annuities ; (Bank of terest in any specific thing bequeathed England v. Lunn, 15 Ves. 578;) and vests, at law, in the legatee, upon the it must now be taken to be the law, assent of the executor; and, therefore, that stock, like all other personal that, whenever an executor has given property, is assets in the hands of the assent (expressly, and not merely by executor. The consequence neces- implication,) to a specific legacy, sarily follows, that it must vest in the should he subsequently withhold it, executor, and, till he assents, the the legatee may maintain an action at legatee has no right to the legacy. law for the recovery of the interest so (Franklin v. The Bank of England, 1 vested in him. If a deficiency of asRuss. 597; Bank of Englandv. Moffat, sets to pay creditors were afterwards 3 Br. 262.)

to appear, the court of Chancery The assent of the executor is equally would have power to interfere, and necessary whether a legacy be specific make the legatee refund, in the proor merely pecuniary; (Flanders v. portion required. Clarke, 3 Atk. 510; Abney v. Miller, 2

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