J. K. was not annexed to the office of executor, and that he was entitled to it, although he had declined to act in the trusts of the will. (v)

Nor has an executor a right to give himself a preference in regard to a legacy, as in the instance of a debt.

In the case of a legacy to a trustee, given as a token of regard and a recompence for his trouble, payable within twelve calendar months after the decease of the testatrix, no refusal or neglect to act where necessary appearing, and the trustee dying nineteen months after the testatrix without having acted, the trustee was held entitled to the legacy. (w)

The rules above stated in respect to the abatement and refunding of legacies, in the case of legatees in general, apply equally to the case where the same person is both executor and legatee, (x) and although the bequest were merely as a recompence for his executing the trust. (y)

SECT. IX.

Of the testator's appointing his debtor executor-when the debt shall be regarded as a specific bequest to him—when

not.

If a creditor appoint the debtor his executor, the effect of such an appointment is to be considered, first at law, and then in equity. In point of law, such nomination shall operate as a release, and extinguishment of the debt; on [348] the principle that a debt is merely a right to recover the amount by way of action, and as an executor cannot

(v) Dix v. Reed, 1 Sim. & Stu. 237.

(w) Brydges v. Wotton, 1 Ves. & Bea. 134.

(x) 2 Bl. Com. 502. Plowd. 545,

in note.

(y) 4 Bac. Abr. 417. Fretwell v. Stacy, 2 Vern. 434. Attorney-General v. Robins, 2 P. Wms. 25.

maintain an action against himself, his appointment by the creditor to that office discharges the action, and, consequently, discharges the legal remedy for the debt. (a) Thus, if the obligee of a bond make the obligor executor, this amounts to a release at law of the debt: (b) If several obligors be bound jointly and severally, and the obligee constitute one of them his executor, it is an extinguishment of the debt at law, and the executor is incapable of suing the other obligors. (c) The debt is in like manner released where only one of several executors is indebted to the testator, for one executor cannot maintain an action against another; (d) and after the death of such executor, the surviving executors cannot sue his representative for the debt. (e) Nor is the case varied by the executor's dying without having proved the will, or having administered, (ƒ) or even by his refusal to act with his co-executors, (g) unless he formally renounced the office in the spiritual court: such a renunciation, indeed, shall prevent the release of his debt: for he could no more be compelled to accept a release, than a deed of grant. (4)

In all these cases the legal remedy is destroyed by the act of the party, and, therefore, is for ever gone; (i) but the [349] effect is different where it is suspended merely by the act of law; (k) as if administration of the effects of a creditor be committed to the debtor, this is only a temporary privation of the remedy by the legal operation of the grant: (1) Thus, if the obligor of a bond administer to the obligee, and die, a creditor of the obligee having obtained

administration de bonis non may maintain an action for such debt against the executor of the obligor. (m) So, if the executrix of an obligee marry the obligor, such marriage is no release of the debt, for the testator has done no act to discharge it, and the husband may pay it to the wife in the character of executrix. If he do not, the remedy is suspended merely by the legal effect of the coverture, and on her death, the administrator de bonis non of the testator will be equally entitled to that debt, as to any others outstanding, (n) it seems also that the naming of a debtor executor durante minoritate is no discharge of the debt, since he is only executor in trust for the infant till he comes of age. (0)

In equity, the consequence of the testator's nominating his debtor executor is to be regarded, first, with reference to creditors; and then to legatees.

As against the testator's creditors, equity will never permit him by constituting his debtor executor to disappoint them: Therefore, where the testator has not left a fund sufficient for the payment of his own debts, in that case, the debt of his executor shall be assets; the duty remaining, although the action at law be gone, and the executor shall be liable to account for such debt in the spiritual court, or in a court of equity. It were highly unreasonable that the claims of creditors should be defeated by a release, which was absolutely voluntary. (p) In respect to legatees equity will, generally speaking, allow the appointment of a debtor exe[350] cutor to operate as a discharge of his debt. For the debt is considered in the light of a specific bequest or legacy to the debtor, for the purpose of discharging the debt, and therefore, though like all other legacies, it shall not be paid, or retained till the debts are satisfied, yet the executor has a right to it exclusive of the other legatees. (q)

(m) Lockier v. Smith, Sid. 79. (n) Crosman's case, Leon. 320. Crosman v. Reade, Moore, 236. Wankford v. Wankford, Salk. 306.

(0) 11 Vin. Abr. 400. Caweth v. Phillips, Lord Rayın. 605.

(p) Wankford v. Wankford, Salk.

302, 306. Off. Ex. 31. 2 Bl. Com. 512. Plowd. 186. Shep. Touchst. 497, 498. Simmons v. Gutteridge, 13 Ves. 264.

(q) 2 Bl. Com. 512. Harg. Co. Litt. 264 b, note 1.

But this rule with reference to legatees, is subject to a great variety of exceptions. In equity such debt shall not be released, even as against legatees, if the presumption arising from the appointment of a debtor to the executorship be contradicted by the express terms of the will: or by strong inference from its contents. As where a testator leaves a legacy, and directs it to be paid out of a debt due to him from the executor; such debt shall be assets to pay not merely that specific legacy, but all other legacies. (r) In like manner, if he leave the executor a legacy, it is held to be a sufficient indication, that he did not mean to release the debt. And in such case, the executor shall be trustee to the amount of the debt for the residuary legatee, or next of kin. (s) So where a testator bequeathed large legacies, and also the residue of his estate, to his executors, one of whom was indebted to him by bond in three thousand pounds, it was decreed that this debt should be added to the surplus, and that both executors were equally entitled to it. (t) So where a debtor to the testator was appointed executor, although without a legacy, yet it appearing by the tenor of the will, that the testator considered him in the light of a mere trustee of his whole property, his debt was clearly held not to be discharged. (u) So where A. mortgaged his estate to B. who paid no money in consideration of the mortgage, but gave him a bond for 1307. and then A. died, having appointed B. his executor, the bond was decreed to be assets in the hands of B. and applicable, after payment of the funeral expences and legacies, to the exoneration of the real estate in favour of the heir. (w)

(r) 3 Bac. Abr. 11. Flud v. Rumcey, Yelv. 160.

(s) Carey v. Goodinge, 3 Bro. Ch. Rep. 110.

(t) Brown v. Selwyn, Ca. temp.

Talb. 240. 4 Bro. P. C. 180. 3 Bac.
Abr. 12.

87.

(u) Berry v. Usher, 11 Ves. jun.

(w) Fox v. Fox, 1 Atk. 463.

[351] SECT. X.

Of the residue undisposed of by the will, when it shall go to the executor when not.

If the testator make no disposition of the residue, a question arises, to whom it shall belong, and this is a subject which involves in it a great variety of distinctions. (a) But a great alteration in the law as respects the executor's right to the residue, has lately been made, by which many of the distinctions, established in decided cases will not for the future be considered as law. By the 1 Wm. 4, c. 40, it is enacted, that when any person shall die after the 1st September 1830, an executor shall be deemed by courts of equity to be a trustee for the persons who would be entitled to the estate under the statute of distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will, that the executor was intended to take such residue beneficially; but the executor's right is not to be affected or prejudiced, in cases where there is not any person, who would be entitled under the statute of distributions, in respect of any residue not expressly disposed of. As, however, questions may still arise in cases where the testator died previous to the 1st September 1830, it is expedient that the distinctions hitherto taken, should be preserved in this Work. The result of the numerous cases on this subject appears to be this:

The whole personal estate of the testator is, in point of law, devolved on the executor; and if, after payment of the funeral expences, testamentary charges, debts, and legacies, there shall be any surplus, it shall vest in him beneficially.

(a) 1 P. Wms. 550, note 1. 2 Fonbl. 131, note (k). 3 Bac. Abr. 67. 11 Vin. Abr. 407.