cept as to debts incurred for funeral expenses, and the expenses of the administration, and debts by mortgage. The heir paid himself first, and he might pay the first creditor who came. All the assets were considered as equitable. When debts are in equal degree, the administrator may pay which he pleases first, and he may always prefer himself to other creditors in an equal degree. If a creditor commences a suit at law, or in equity, he obtains priority over other creditors in equal degree, but

own hands. Cro. E. 318. Str. 20. 4 Dessaure S. C. Rep. 65. 92. 199. 5 Conn. Rep. 19, 20. 11 Johns. Rep. 16. 21. 5 Johns. Ch. Rep. 296. 5 Pick. Rep. 104. 2 Molloy's Ch. Rep. 186. But he is answerable for the acts of his co-executor when there has been connivance or negligence, or when he delivers over assets, or makes payment directly to his co-executor, 7 East's Rep. 246. 2 Molloy's Rep. 186. So one executor may dispose of the assets and bind the estate by sale or discharge, 9 Cowen, 34. 4 Wendell, 491. Preston on Abstracts of Title, vol. 2. 22. 23. 11 Johns. Rep. 21. 9 Paige's Rep. 52. 4 Hill's N. Y. Rep. 492. The better opinion would seem also to be, that administrators stand on the same ground in these respects as to their powers and responsibilities. 2 Vesey, 267. 1 Wendell, 383. 4 Wash. C. C. U. S. 186. 11 Johns. Rep. 21. Gayden v. Gayden, 1 M'Mullen's S. C. Rep. 435. But where a note or other security is given to two or more executors jointly after testator's death, the title is in all of them equally as if given to them as trustees, and the concurrence of all is necessary to transfer the title to the same. Smith v. Whiting, 9 Mass. Rep. 334. Hertell v. Bogert, 9 Paige's Rep. 52. In the case of Jones' appeal, 8 Watts & Serg. 143, it was forcibly illustrated by the chancellor, that joint trustees are not answerable for the defaults of each other in cases of ordinary prudence and diligence in the trustee sought to be charged for his co-trustee.

It was held by Lord Hardwicke, in 1 Atk. 526, that an executor was not bound in law or equity to plead the statute of limitations, to a demand otherwise well founded. But that dictum was shaken by a contrary dictum of Bailey, J., in M'Culloch v. Dawes, 9 Dowl. & Ryl. 40. It is therefore left as an unsettled point, and the executor must at least exercise a very sound discretion in the case. But more recently it is held, in Hodgdon v. White, 11 N. H. Rep. 205, that the administrator is not bound to plead the statute of limitations to a demand otherwise well founded. is the sound doctrine.

This

a

Dig. 11. 7. 45. Ibid. 35. 2. 72. Institutes of the Civil Law, 186, 187. vol. i. p. 307.

Code, 6. 30.22. sec. 4, 5. 9.

Wood's

Brown's View of the Civil Law,

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.a

The New-York Revised Statutes,b have made some essential alterations in the English law, and in the *former law of New-York, as to the order of pay- *417 ment of the debts of the deceased. The order now established is as follows: 1. Debts under the law of the United States; 2. Taxes assessed; 3. 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 debt due and payable entitled to preference over debts not due; nor does the commencement of a suit for the recovery 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, according to the class to which they belong, after deducting a rebate 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 preference beneficial to the estate. In suits against executors and administrators, the judgment, if there be a proper plea in the case, is to be entered only for such part of the assets as shall be a just proportion to other debts of the same class; and the execution is to issue only for a just proportion of the assets applicable to the judgment; and no execution is to issue until an account has been rendered

a Williams' Executors, 679. 1213, 1214. See Shep. Touch. by Preston, vol. ii. p. 475-480. Bac. Abr. tit. Executors and Administrators. L. 2, for a succinct view of the rules of the common law, touching the order of paying debts by executors and administrators.

Vol. ii. p. 87. sec. 27, 28, 29, 30.

and settled, or the surrogate shall otherwise order.a *418 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 preference over debts of the same class.b The executor or administrator may, by public notice, call upon the creditors to exhibit, 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

a N. Y. Revised Statutes, vol. ii. p. 88. sec. 31, 32. The surrogate may decree 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 administration, and the payment of any legacy or distributive share, on the application 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 prosecuted. 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. Y. Revised Statutes, vol. ii. p. 116. sec. 18-22. Ibid. vol. ii. p. 220. In Connecticut, the statute of limitations is suspended in personal actions, for one year from the creditor's death, in favour of his executors and administrators. Acts 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 directions are given by the testator. Lord Eldon, 6 Vesey, 539. 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, prohibits suits against exec. utors and administrators of insolvents, for debts due from the deceased, until six months from the death of the deceased, unless in cases of fraud, or for the physician's bill, funeral charges, and judgments against the decedent. By the Massachusetts Revised Statutes, in 1835, the creditor is not to sue the executor or administrator until the expiration of one year, except in special cases. It is a well settled rule, that the time allowed by statute to executors and administrators, before suit brought, is excluded from the computation of time in the statute of limitations. Moses v. Jones, 2 Nott & M'Cord, 259. Dowell v. Webber, 2 Smedes & Marshall, 452. In England, it was decided in the prerogative court of Canterbury, in 1754, that a creditor had a right to call for an inventory, but that the court had no jurisdiction at his suit to examine the particulars of an account. Brown v. Atkins, 2 Lee, by Phillimore, p. 1.

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

due disposition of the assets prior to a suit on such claims, though the next of kin or legatees may be liable to refund to such creditors. If claims be exhibited and disputed, they may be referred to referees by consent; and if not, the creditor must sue thereon within six months, or be barred for ever.a

N. Y. 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 ignorance of the true state of the case. Nor is he bound to plead the statute, for he may know the debt to be just. The plea rests in his discretion. Fritz v. Thomas, 1 Wharton, 66. Nor is he liable to creditors, if he exercises a reasonable discretion in compromising a debt. Pennington v. Healy, 1 Crompton & Meeson, 402. In New-York the surrogate is authorized by statute, 70th sess. ch. 81, to permit executors and administrators to compromise and compound debts due to their testator or intestate. The jurisdiction of the courts of equity to superintend the administration of assets, and decree a distribution of the residue, after payment of the debts and charges, has been long established. Mathews v. Newby, 1 Vern. Rep. 133. Howard v. Howard, Ibid. 134. And when relief is sought in chancery by a creditor on a creditor's bill, it has been the settled doctrine of the court, ever since the great case of Morris v. 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 court will not permit any particular creditor, by proceeding at law, to disturb that administration 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 discussed, and the authorities and precedents examined, and the principle adopted, (and I believe for the first time in this country,) in Thompson v. Brown, 4 Johns. Ch. Rep. 619; and the decree in that case, 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 Swanst. Rep. 544. Clarke v. Earl of Ormond, 1 Jacob's Rep. 108. 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 doctrine on the subject of the distribution and marshalling of assets in equity, are collected and digested in Mr. Justice Story's Comm. on Eq. Jurisprudence, 513-552. See, also, Mr. Ram's "Practical Treatise of assets, debts and incumbrances," which

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 restrained from exercising any power or jurisdiction whatever, not expressly given by statute. 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 personal property, than to discuss the general powers and duties of executors and administrators; and it may here be generally observed, 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 adminis

trators.

In the jurisprudence of the other states, the adminis tration of the assets is likewise subject to various *419 local modifications. *In a few of the states, the English order of preference is preserved. In most

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. Y. Revised Statutes, vol. ii. p. 221. The Statute of New-York, 1837, ch. 460, gave new and specific directions to surrogates relative to the proving of wills, and taking new security from administrators and guardians, and revoking the trust of administrators and guardians, and relative to their accounting, &c.

In Virginia, North Carolina, South Carolina, Kentucky, Delaware, Georgia, and Indiana, the English order of preference is preserved, with the exception of a few slight variations. Thus, in South Carolina, no preference is given among debts in equal degree, except that mortgages, judgments and executions, are paid as legal liens, according to seniority. In Virginia and Kentucky, debts due on protested foreign bills are placed on a footing with judgments. By act of Virginia of March, 1831, debts due by specialty and promissory notes, and other writings of decedent,