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.& In Pennsylvania, the order of administration is, to pay, 1. Physicians, funeral expenses, and servants' wages; 2. Rents not exceeding one year ; 3. Judgments; 4. Recognizances ; 5. Bonds and specialties; 6. All other debts equally, except debts due to the state, which are to be last paid.b

Griffith's Law Register, h. t.

• Frazer v. Tupis, 1 Binney's 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 Serg. g Rawle, 328. But by statute of 24th February, 1838, in Pennsylvania no preference is now given to judgment over bond and simple contract creditors, in the distribution of the assets of decedents. Foreign judgments rank as simple contracts only. Judgments of other states rank in the same grade with judgments in the state. 4 Watts of Serg. 314. The preference given 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 Bell's Com. 157, 158. The Massachusetts Revised Statutes, in 1835, go into a minute and very specific detail of the duties of executors and administrators, in collecting, settling, and disposing of the estate of the deceased. Considering the burden and the incessant calls for the assumption of 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 drawn from 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 of the assets is distributed according to the law of the domicil. Marshall, Ch. J., in Harrison v. Sterry, 5 Cranch's Rep. 299. Tilghman, Ch. J., in Milne v. Moreton, 6 Binney's Rep. 361. Chase, Ch. J., in Desobry v. De Laistre, 2 Harr. of Johnson, 224. Smith v. Union Bank of G., 5 Peters' U.S. Rep. 523, 524. Varnum v. Camp, 1 Green': N. J. Rep. 332. Story's Com. on the Conflict of Laws, 439 to 442. See, also, infra, p. 454, 455. But many of the foreign jurists, to whom Judge Story refers, maintained 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 situs of the effects.

*(3.) Of the distribution of the personal estate.

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 II. ch. 10, after the expiration of a year from the granting of administration, to distribute the surplus property among the next of kin.a He is 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 purpose ; b and the statute of distributions makes it the duty of the court of probates to decree distribution. The statute declares, that after the debts,

a Mr. Robertson, in his Treatise on Personal Succession, Edinburgh, 1836, ch. 1 to 6, has gone fully and with great research and learning, into the history of the law of successions in England, Scotland, and Ireland, and has traced the gradual relaxation of the restrictions on the power of bequests, and the alterations and improvements, in the administration and distribution of intestate's estates, down to the present time. This interest. ing 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.

• Archbishop of Canterbury v. Tappen, 8 Barnw. f Cress. 151.

. By the New York Revised Statutes, the executor or administrator is bound, after the expiration of eighteen months, to account before the surrogate, under the penalty of attachment and a revocation of his power. N. Y. Revised Statutes, vol. ii. p. 92. sec. 52. In accounting he must verify by vouchers, and may be examined upon oath ; and his oath will, if uncontradicted, supply the place of vouchers, as to items, each of which does not exceed $20, and not exceeding in the whole, in behalf of any one estate, $500. Ibid. sec. 54, 55. This was adopting the rule in chancery, which had established, that a defendant, on accounting before a master, might verify, on his own oath, items not exceeding in each case, $20, and not exceeding in the whole 1001. sterling. Remson v. Remson, 2 Johns. Ch. Rep. 501. The executor 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 on. titled, besides his necessary expenses, to the same rate of commissions of

*funeral charges, and just expenses, are deducted, a just and equal distribution of what remaineth clear

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. Revised Statutes, vol. ii. p. 93. sec. 58. 59. 3 Johns. Ch. Rep. 44. The commissioners 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 Massachusetts, on this point, were repealed, and the court in which the accounts of executors and administrators are settled, are to allow their reasonable expenses, and a just and reasonable compensation for their services. 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. f. Gill, 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 receiving and paying out money it is two and a half per cent., and sometimes an additional half per cent. is held to be a sufficient compensation for trouble. In the Estate of Miller, 1 Ashmead's Rep. 323. Pusey v. Clemsen, 9 Serg. f. Rawle, 204. Stevenson's Estate, 4 Wharton, 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 among them all. Civil Code, art. 1676. In South Carolina, the established commission is five per cent., with a further allowance to be assessed by a jury, in cases of extraordinary care and trouble. Logan v. Logan, 1 M'Cord's Ch. Rep. 1. In England, it is a principle in eqnity, that is 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 preser it. 3 Merivale's Rep. 24. The mode of contesting the accounts before the surrogate, by the creditors, legatees, and next of kin, is specially detailed in the New-York statutes. N. Y. Revised Statutes, vol. ii. p. 93, sec. 60—70. And the manner of accounting before the surrogate by executors and administrators, is also detailed in the case of Gardner v. Gardner, 7 Paige, 112. The decree of the surrogate on a final settlement of the executor's accounts is final, (subject to an appeal to the chancellor), as to payments to creditors, legatees, next of kin, and concludes all parties. Wright v. Trustees of Methodist Episcopal Church, 1 Hoffman's Ch. Rep. 214. 215.

In Pennsylvania, the registers' courts have a similar jurisdiction ove intestates of testators and intestates; and the orphan's court has, a species of equity jurisdiction over executors and administrators, guardians and minors. Case of Paterson's estate, 1 Watts f. Serg. 293. But the prace


of the goods and personal estate of the intestate 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 intestate 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 made. And if the portion of any child who hath had such settlement or portion, be not equal to *the share *422 due to the other children by the distribution, the child so advanced is to be made equal with the rest. 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 of kin, who are in equal degree, and those who represent them: but no representation is admitted among collaterals, after brothers and sisters' children ;b and in

lice and rules in the orphans' tribunals were represented to be in a state of deplorable confusion ; (Duncan, J., 11 Serg. f-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 probate powers, and the appointment and control of guardians, are annexed to the courts of common pleas in the respective counties. Acts of 1831.

a 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 v. Lant, Prec. in Chancery, 182. 184. Kiscudbright v. Kiscudbright, 8 Vesey, 51. This is also the law in Tennessee under the North Carolina statute of 1784, adopted in that state. Brunson v. Brunson, 1 Meig's Rep. 630.

• The construction of the statute which declares that there shall be no representation among collaterals, after brothers' and sisters' children, is,

case there be no wife, then the estate is to be distributed equally among the children ; and if no child, then to the next of kin, in equal degree, and their lawful representatives, in the manner already mentioned. It is further provided, that if any child shall die intestate after the death of the father, and without wife or children, and in the lifetime of the mother, every brother and sister, and their representatives, shall have an equal share with her.

This is the substance of the English statute of 22 and 23 Charles II., which was borrowed from the 118th novel of Justinian ; and, except in some few instances mentioned in the statute, it is governed and construed by the rules of the civil law.a

(2.) The next of kin is determined by the rule of the civil law; and under that rule the father stands in the first degree, the grandfather and the grandson in th esecond ; and in the collateral line, the computation is from the intestate up to the common ancestor of the intestate, and the person whose relationship is sought after, and then down to that person. According to that rule, the intestate and his brother are related in the second degree, the intestate and his uncle in the third degree. The half blood are admitted equally with the whole blood, for

they are equally as near of kin ; and the father *423 succeeds to the whole personal estate of a child,

who dies intestate, and without wife or issue, in exclusion of the brothers and sisters; and the mother would have equally so succeeded as against the collaterals, had it not been for a saving clause in the act, which excludes her from all but a rateable share.

She is ex

that it means the children of the brothers and sisters of the intestate. [f, therefore, the intestate dies without issue, and leaves an aunt, and children of uncles and aunts, the aunt succeeds to the whole estate. Bowers v. Littlewood, 1 P. Wms. 593.

• Seo vol. i. p. 542, noto; and also, Carter v. Crawley, T. Raym. Rep. 496. Palmer v. Allicock, 3 Mod. Rep. 58. Edwards v. Freeman, 2 P. Wms. 436.

b Sir John Strange, in Lloyd v. Tench, 2 Ves. 213.

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