upon the land only. This direction will save much dispute between executors and heirs, or their guardians.

"(3) The law respecting the order of payments is preserved, except in the case of specialties or sealed instruments, which are reduced to the same class with notes, &c. If there ever was any reason for giving them a preference arising from the supposed sanctity of a seal, or the inability of men to write, it would seem to have ceased. The difference between those debts has been for many years abolished in this state, in respect to their being a charge upon the real estate of the debtor. It is also a settled rule of the court of equity, to distribute assets without regard to specialties, vide 4 John. Ch. Rep. 619. Either this rule should be abrogated, or the common law should be altered; for upon such a subject there ought not to be different rules in different courts. Any creditor by filing his bill may now obtain the benefit of the equity rule; ought not such a temptation to accumulate costs upon an estate already insolvent, to be removed?"

IS 28. Same as § 31 R. S.]

Original note. "By the existing law, the commencement of a suit gives a preference to the claim so prosecuted, over others of the same class. But this may be defeated by the confession of a judgment to another creditor, thus giving to an executor the power of selecting his favorite creditor, who is to be paid at the expense of all the others! The injustice of this power is palpable. It was probably sanctioned in order to prevent one creditor from grasping all the estate by his vigilance. The better remedy would seem to be, to destroy the preference given to claims prosecuted, and thus the temptation to multiply costs, would be removed, while the reason for giving to executors the right of preferring creditors by a judgment, would cease. The principle of these sections is admitted by the existing law, which allows an executor to confess a judgment for the benefit of all the creditors, and thus destroy preferences.

[S 29 as reported; partially enacted in § 32 R. S.]

Original note. "This follows from the principle of distributing_the assets equally, as otherwise, a plaintiff would compel payment. It is the same rule that prevails in the court of chancery, which will restrain suits at law after a bill filed for an account, and a disclosure of assets; 4 John. Ch. Rep. 619. As the executor will have eighteen months to close his accounts, neither he or the estate should be subject to costs, or to be harassed during that time. Provision will be made in a subsequent section, for making judgments evidence of the debt, in the accounting of the executor, so that the plaintiff will have a better remedy in the decree of the surrogate, than by execution in the first instance."

[S 30. Same as § 33 R. S.] Original note. "An early exhibition of the administrator's claims will tend to an adjustment of the estate; its allowance by the surrogate will enable other creditors to know its extent. There can be no reason for retaining the preference of an administrator's debt over others, especially if the preference obtained by suit is abolished."

[S 34. Same as § 37 R. S.] Original note. "The object of this and the succeeding section, is to afford to administrators a short and cheap

mode of ascertaining the debts against an estate, and to make it the interest of creditors to adjust their claims amicably."

[S 36, 35, 36. Same as § 39, 40, 41 R. S., except the words after "provisions," in § 41 R. S., added by the legislature.] Original note. "The discretionary power of awarding costs is conformable to the rule in equity."

[S 37 partially enacted in § 42 R. S., which was first numbered § 43; a section which had been passed as § 42, being stricken out by act of Dec. 10, 1828, by which act 42 R. S. was also amended.] Original note. "The object of the foregoing provisions, is to compel creditors to be vigilant, and to prevent unnecessary costs."

[S 38. Same as § 43 R. S.] Original note. "Existing law."

[S 40. Same as § 45 R. S.] Original note. "Conformable to existing law; vide Preston on Legacies, p. 49-276."

IS 41. Same as § 46 R. S.] Original note. "Defining the sum which may be paid, which is left uncertain by the existing law." [§ 42, 43, 44, 45, 46. Same as § 47 to 51 R. S.]

Original note. "The provisions in our law respecting the payment of legacies, are quite defective. 1 R. L. 314, 315. The act which requires a bond in all cases to be given, to refund a legacy, operates, when the legatees are minors, either to prevent its payment, and to occasion its consequent retention in the hands of the administrator; or to subject the guardian and sureties to a certain loss, if debts should appear. For what is to be done with the legacy after it is paid? If applied for the benefit of the legatee, the fund for remuneration is gone; and if not so applied, it is useless to pay it. The same difficulties exist, but to a greater extent, from requiring bond to be given by next of kin, before distribution is made. They are almost universally minors, requiring the fund for their support. If it is exhausted, their guardians or sureties have to make up the deficiency. This system leads to sham sales of the property at nominal prices, in order to avoid responsibility, and thus infant heirs are left entirely at the mercy of the executor or administrator. We have therefore proposed to omit the provision requiring a bond from legatees and next of kin, after a year; and instead of it, to make it the interest of creditors to present their claims early (as it is their duty to be vigilant), and to look to the legatees and next of kin, if there be unnecessary delay in presenting claims.

"There are no provisions whatever in our law, to protect an executor for the payment of legacies where the legatees are minors, without suit. In 1 Johns. Ch. Rep. p. 3, it is decided that an executor paying to a guardian, does it at his peril. Some remedy seems indispensably necessary; and it is not perceived why the responsibility of a guardian may not be equivalent to that of an executor. The estate will be sooner settled by requiring and enabling an executor to pay over all moneys in his hands, as soon as possible. In England, legacies may be paid into the bank, where the sum is not trifling; and when it is small, it may be paid to the father. Vide Toller, 318, &c."

"ARTICLE III.-Of the duties of executors and administrators in rendering an account, and in making distribution to the next of kin."

$48. Same as § 52 R. S.] Original note. "3d § of act of R. L. p. 311, recognizes the right of creditors, &c., to compel an account."

[S 49. Same as § 53 R. S., except the words "in case of disobedience,” inserted by the legislature.] Original note. "12th section of act concerning courts of probates, &c., p. 448, as to the principle of enforcing order."

[S 50, 51. Same as § 54, 55 R. S.] Original note. "This is the settled rule on accounting in the court of chancery. See the decision of Chancellor Kent, in 2 Johns. Ch. Rep. 595; and deemed useful to be enacted, as well for information, as to restrain improper allowances." [S 53 substantially enacted § 57 R. S.] Original note. "New; taken from the laws of Maryland, and declaratory of existing law."

[S 54. Same as § 58 R. S., except the words "in all cases," and "shall be made," inserted by legislature in last clause.] Original note. "Laws of 1817, p. 292, directed a rate to be established by the court of chancery; which was done on the 16th October, 1817, by a general rule. Vide 3 Johns. Ch. Rep. 630; which is adopted in the above section. The part in reference to expenses, is in the words of the act, and conformable to the exposition by Chancellor Sanford, 1 Hopkin's Rep. p. 43."

S 55. Same as § 59 R. S.] sary."

Original note. "New: obviously neces

[S 56. Same as § 60 R. S.] Original note. "Vide note to § 63." $ 59, 60. Same as § 63, 64 R. S.] Original note. "It has been suggested by a gentleman well acquainted with the subject, that the appointment of auditors will often save parties much trouble and expense, and facilitate the settlement of accounts."

IS 63. Same as § 67 R. S., except that the words "four weeks," were altered by the legislature to "three months."]

Original note. "It is a source of great anxiety to administrators and their sureties, that there is no way provided for a final settlement without resort to the court of chancery. The 3d section of the act concerning executors, &c., p. 311, contemplates a settlement on citation, and the 11th section of the act relative to the court of probates, &c., 1 R. L. 448, authorizes the surrogate to call the administrator to account, and an account rendered on such citation, would perhaps be conclusive on the parties who appeared, but not upon others. Defects in vouchers, which might be supplied at the time, and explanations which could be given while the subject was fresh, can not ordinarily be supplied or given after the lapse of years. The policy of allowing creditors to delay is not perceived, especially when the interests of trustees, who are acting for the benefit of others, are jeoparded by it. Our present system seems throughout to invite creditors to sloth and delay, while it leaves administrators quite unprotected. The above provisions are proposed to remedy this defect. It is hoped that they are so guarded, that the just rights of all will be protected; and if there be any hazard of injury to creditors, it must be determined whether it be not a less evil than those attending the present system. Our law now recognizes the principle, in allowing an executor to file

a bill in equity for a settlement, the decree upon which is conclusive. The danger of allowing the settlement in the first instance before a surrogate is not perceived, so long as the right of appeal to the court of chancery is retained: thus, in truth, only substituting another mode of commencing the proceedings."

[$ 68, 69. Same as $ 72, 73 R. S., except a slight transposition in § 73 R. S.] Original note. "The object of these sections is to retain any chattels the family may desire to preserve, and to take out of the hands of the administrators as speedily as possible the effects of the estate, so as to close his accounts."

[$ 71, (75 R. S.) Introductory clause substantially the same. Sub. 1. Same as enacted.

Sub. 2, the words after "distributed," reported as follows: "equally, to every of the next of kin of the deceased who are in equal degree, and those who represent them."

Sub. 3 R. S. inserted by the legislature.

Sub. 3 and 4, same as sub. 4 and 5 R. S. except the word "wife," changed by the legislature to "widow."

Sub. 5, same as sub. 6. R. S. except the word "wife," wherever it occurred was altered to "widow," and the following words after "children," "and no representatives of them," and after "widow," "and a mother," were inserted by the legislature. Original note to sub. 5. "This is intended as a substitute for the proviso in the 16th section of the act, 1 R. L. 315, and is in conformity to the interpretation which the. courts have given it. See 2 P. Wms. 345; 1 Atk. 455." Sub. 6, same as sub. 7 R. S. Original note to sub. 6. "Declaratory of the existing law. Toller, 302."

Sub. 7, same as sub. 8 R. S. Original note to sub. 7. "Existing law. Toller, 302."

Sub. 8 and 9, same as sub. 9 and 10 R. S. Original note to sub. 9. "This subdivision is an interpretation of the terms legally representing their stocks,' used in the original, and expresses their effect."

Sub. 10, 11, same as sub. 11, 12 R. S. Original note to sub. 11. "This is the established construction of the statute, conformable to the rule of the civil law." Sub. 13 R. S. adopted from the Revisers' note.]

Original note to section. "The 16th section of the act concerning executors, &c. p. 314, was copied nearly verbatim, from the English statutes of 22 and 23 Car. II, cap. 10, and 1 Jac. II, cap. 17, both of which are stated by Lord Hardwick, in one of the cases above referred to, 'to be very incorrectly penned.' The Revisers have conformed these parts of the section which were most defective, to the decisions, but have made no alterations in principle. The term 'deceased,' has been substituted for 'intestate,' in order to provide for the case where there is a will which does not bequeath the estate, and omitting the part respecting advancement as being more proper for a separate section. The Revisers respectfully suggest that the following subdivision might with great propriety be added. It is found in the laws of several states.

66

8. If the deceased leave a wife, and no child, parent, grandchild,

brothers or sisters, or a brother's or sister's child, such widow shall be entitled to the whole of the surplus.

"The Revisers also suggest the following subdivision, as fixing the interpretation to the statute, and declaratory of the existing law, on a point which seems, from the authorities, to be involved in some doubt; viz. the cases in which posthumous children and relatives may take under the statute. That such children and relatives may take in some cases, is settled; but the proper limitations of the rule, and who are to be considered as such, is unsettled. (See Barnardisten's Cases in Chancery, 272, and 1 Ves. Sen. 156.)

"9. Descendants and next of kin of the deceased, in existence at the time of his death but born thereafter, shall take in the same manner as if they had been born in the lifetime of the deceased, and had survived him.

"In the laws of Maryland, (Laws of 1798, chapter 101, and chapter 11 of the act,) a provision will be found, that was intended for the same purpose as the above, though its terms and effect are different."

[S 74. Same as § 78 R. S. except the words "within the meaning of the two last sections, nor shall those sections apply in any case where there shall be any real estate of the intestate to descend to his heirs," added by the legislature.]

Original note. "1 R. L. 314, § 16. The above three sections are substantially taken from the laws of Maryland; and are supposed to express the intent of the statute more clearly than the present act. It seems useful to declare what shall not be advancements. The decisions on this subject are very various, and somewhat complicated; but the principle above stated, seems to have governed them."

[S 76. Same as § 80 R. S. except that the legislature inserted the words "a distributive share is to be paid," instead of "any such distribution is ordered to be made," as reported.] Original note. "It would seem from 1st John. Ch. Rep. p. 3, that payments of distributive shares cannot be made to guardians of minors. But what is to be done with them? The above provision seems to guard the interests of infants, as guardians must give security, and it is left to the discretion of the surrogate to judge of the propriety of the payment."

[$ 78, 79. Same as § 82, 83 R. S. except that the words "then known," in § 83 R. S. were inserted by the legislature.] Original note to § 79. "New. The utility of the provision, it is supposed, will be obvious."

1

"TITLE IV. Of the powers and duties of executors and administrators, in relation to the sale and disposition of the real estate of their testator or intestate."

[S 1. Same as enacted, except the words "who granted the same,” before "for authority," omitted by the legislature. By amendatory act of 1830, chap. 320, § 22, the words "and shall have rendered an account of their proceedings to the surrogate, and the same shall have been allowed and settled, were stricken out.] Original note. "Part of 26th section and of 23d section of act concerning court of probates, &c., p. 453 and 450, 1st vol. The time in which application is to be made, limited in conformity to the suggestion of Ch. Kent, in 6th John. Ch. Rep. 360."