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[estate, including the chattels real, whether in possession or in action, of the deceased. And, since the Land Transfer Act, 1897, even the real estate must be included, though the duty thereon will not necessarily be paid by the executor. And this inventory he is to deliver into the court, upon oath, if and when thereunto lawfully required (f).
4. He is to collect all the goods and chattels so inventoried ; and, to that end, is to bring actions, if necessary, against all persons who withhold them (9).] And inasmuch as all the personal estate of the deceased, whether in possession or in action, is assets in the hands of the personal representative, and liable as such to pay the creditors of the deceased, the executor is allowed to sell so much of the personal estate as does not already consist of money (and under the Land Transfer Act, 1897, even real estate) in order to answer the demands that may be made upon him. On this subject we may remark, that if there be two or more executors who have proved the will, a sale, receipt, or release by one of them will be good against all the rest (h), save that (by the specific rules of certain corporations, e.g., the Bank of England) the concurrence of all the executors may be sometimes required to the transfer of the stock standing in the name of the deceased R). But the concurrence of all the personal representatives is required in a sale or transfer of real estate which has vested in them by virtue of the Land Transfer Act, 1897, unless the sanction of the Court has been obtained. The distinction can hardly arise in the case of an administrator ; for he (as we have seen) is in general a single administrator (k).
5. [He must pay the debts of the deceased ; and in pay
(f) 21 Hen. 8 (1529), c. 5; Griffiths v. Antony (1836), 5 Ad. & El. 623.
(g) Webb v. Adkins (1854), 14 C. B. 401; Farley v. Briant (1839), 3 A. & E. 839.
(h) Dyer, 23.
(i) 33 & 34 Vict. (1870) c. 71, s. 23.
(K) Hudson v. Hudxon (1737), 1 Atk. 460 ; Wms. Exors., p. 364, 9th ed.
[ment of debts must observe the rules of priority, according to the several degrees which the law has established in this matter ; but he may in his discretion pay a debt which is barred by the Statutes of Limitation (1). And, first, he must pay all funeral charges, and the expense of proving the will, and the like ; secondly, debts due to the Crown, on record or other specialty (m); thirdly, such debts as are, by particular statutes, to be preferred to all others, e.g., income tax, poor-rates, and the like (n); fourthly, debts of record, such as debts due on duly registered judgments (o) and recognizances (p); and amongst debts of this degree are to be reckoned also decrees in equity and orders in bankruptcy (9); fifthly, all other debts pari passu—whether they are on simple contract (that is, on contract by word of mouth or by writing unsealed), or whether they arise or are secured by any bond, deed, or other instrument under seal, or otherwise made or constituted a specialty debt (r). And although, under the Real Estate Charges Acts (s), mortgage debts are now a primary charge on the real estate comprised in the mortgage, that is no exemption to the executor from the duty of seeing that these debts are paid, or at all events provided for (t).
Among debts of equal degree, the executor, if a creditor of the testator (but not now an administrator who is a creditor) is allowed to pay himself first, by retaining so much of the legal assets in his hands as his debt amounts to (u), which right is called his right of retainer ;
(1) In re Greares, Bray v. Tofield (r) 32 & 33 Vict. (1869) c. 46; (1881), 18 Ch. D. 551.
Shirrejf v. Hastings (1877), 6 (m) 1 And. 129.
Ch. D. 610. (n) 17 Geo. 2, c. 38; 38 & (8) Vide supra, vol. 1. p. 177. 39 Vict. c. 60, s. 7.
(t) Bowles v. Hyatt (1888), (0) 23 & 24 Vict. c. 38, and 38 Ch. D. 609. 27 & 28 Vict. c. 112.
(u) Glaholm v. Rountree (1837), (p) 4 Rep. 60; Cro. Car. 363. 6 A. & E. 710; Campbell v.
(9) Shaftov. Powell (1694), Campbell (1880), 16 Ch. D. 198 ; 3 Lev. 355 ; Morrice v. The Bank Vorton v. Compton (1885), 30 of England (1736), 3 Swanst. 573. Ch. D. 15.
[and the executor is in that particular different from the heir, who is not entitled to retain his debt (). But an executor of his own wrong is not allowed to retain, for that would tend to encourage creditors to strive who should first take possession of the goods of the deceased ; and besides, would be permitting them to take advantage of their own wrong, which is contrary to the policy of the law (y).] Also, among several creditors of equal degree, he shall be first paid who shall first obtain judgment against the executor for his debt ; for the executor or administrator cannot resist the action on the ground that nothing will be left for the other creditors. But he may resist it, on the ground that there is not enough to pay some creditor of higher degree (if there should be any such).] Which latter defence he is bound to make, if he have notice that a higher debt is outstanding (2) ; for otherwise, on a deficiency of assets, he must answer for it out of his own estate. And of all debts of record, he has notice by construction of law (a).
If an executor, after exhausting in a due course of administration) the whole assets which have come to his hands, be afterwards sued by a creditor remaining unpaid, he is entitled to defend himself by proving that he has fully administered the assets ; and this is called the defence of plene administravit (1). Upon which plea, the creditor is only entitled to judgment for payment of his debt and costs out of any future assets that shall come to the defendant's hands, that is to say, to judgment out of assets quando acciderint. But executors (including administrators) have now been protected generally in their administration of estates; for under the Law of Property Amendment Act, 1859 (c), in the case of leases subject to
(a) Davidson v. Midge (1883), 24Cl. D. 654; (1884),27 Ch. D. 478.
(y) 5 Rep. 30.
(2) Dy. 32; 2 Leon. 60; Sawyer v. Mercer (1787), 1 T. R. 690.
(a) 2 Bl. Com. p. 511.
(6) Palmer v. Waller (1836), 1 M. & W. 689; Dawson v. Gregory (1845), 7 Q. B. 757.
(c) 22 & 23 Vict. c. 35.
onerous rents and covenants, they may obtain protection against all liability for such rents on assigning the lease to a purchaser, and following in other respects the course pointed out by the Act (ss. 27, 28); and, under the same Act (s. 29), on giving the prescribed notices to creditors and others, they are enabled to distribute the assets among the parties entitled. Moreover, under the same statute (s. 30), or now under Ord. LV. rr. 3—10 of the Rules of the Supreme Court, 1883, they may obtain the advice or direction of the Court respecting their administration of the estate ; and (under the last-mentioned order), a partial or even a complete administration of the estate, may be obtained on originating summons.
6. [When the debts are all discharged, the legatees claim, and are entitled, to be next paid ; and they are to be paid by the executor so far as the assets will extend, the legacy duty (where any) being first paid thereon (d). But the executor may not, if a legatee, give himself any such preference as in the case of debts (e). And upon the subject of legacies, it will be convenient to consider here some particular rules of law regarding them.
A legacy is a bequest by will of goods or chattels, such bequest being, in general, subject (as above indicated) to legacy duty ; but in case the chattel is a leasehold or chattel real, the duty is succession duty, and not legacy duty ($). Every bequest of goods or chattels transfers to the legatee, on the death of the testator, an inchoate property in that which is given ; but his interest therein is not perfect without the assent of the executor. For if I am entitled to receive a pecuniary legacy of 1001., or a specific one of a piece of plate, I cannot in either case take the legacy without the consent of the executor (9), in whom all the chattels are in the first instance vested ; and it is his business to see, whether there is a sufficient fund to (d) 44 Vict. (1881) c. 12, ss. 36 ($) 16 & 17 Vict. (1853) c. 51,
S. 19. (e) 2 Vern. 434; 2 P. Wms. 25. (g) Co. Litt. 111; Richards v.
Browne (1837), 3 Bing. N. C. 193.
[pay all the debts of the testator (h), or, as Bracton expresses the sense of our antient law, “de bonis defuncti primo deducenda sunt ea quæ sunt necessitatis, et postea quæ sunt utilitatis et ultimo que sunt voluntatis” (). Also, in case of a deficiency of assets, all the general pecuniary legacies must abate proportionably ; nay, even if the legatees have been paid, they must refund a rateable part, in case debts come in afterwards, which more than exhaust the residue after legacies paid (k), which law is also as old as Bracton and Fleta, who tell us, “ si plura sint debita, vel plus legatum fuerit, ad quæ catalla defuncti non sufficiant, fiat ubique defalcatio, excepto regis privilegio” (1). However, a specific legacy of a piece of plate, or of a horse, or the like, is not to abate at all, unless there be not sufficient without such abatement to pay the debts of the deceased (m) ;] but, on the other hand, a specific legacy is liable to ademption, which arises where the thing so bequeathed is afterwards destroyed or disposed of in some other manner by the testator himself before his death. And where a specific legacy is thus adeemed, the legatee has no longer any claim under the will (n).
Also, if the legatee die before the testator, the legacy is in general lost or lapses, and shall sink into the residue ; but by a provision in the Wills Act, 1837, s. 33, referred to in the chapter on Devises, an exception to this rule has been introduced, in cases where the bequest is to a child, or other issue of the testator, for any estate or interest not determinable at or before the death of the legatee, and the legatee leaves issue, who survive the testator, and no intention to the contrary appears on the face of the will (o).
(h) Smith v. Day (1837), 2 M. & W. 684. (6) L. 2, ch. 26,
(k) Newmın v. Barton (1690), 2 Vern. 205.
(1) Bract. 1. 2, ch. 26; Fleta, 1. 2, ch. 57, s. 11.
(m) 2 Vern. Ill.
(n) In re Gibson, Matthew8 v. Foulsham (1866), L. R. 2 Eq. 669.
(0) Vide supra, vol. 1. p. 368.