fore the day of payment, it is doubtful whether the court will marshal the assets, so as to turn such legacy on the personal estate in which case it would be vested and transmissible; but, as against the real estate, it would sink by the death of the legatee. (m)

As against real assets descended, the wife shall stand in the place of specialty creditors for the amount of her para[423] phernalia; (2) but, whether she shall be so entitled as against real assets devised, seems to be a point unsettled, (0) excepting in the case of a real estate charged with payment of debts in aid of the personal estate, in which the court decreed her paraphernalia to the wife, in prejudice of the charged estate. (p)

A court of equity will not marshal assets in favour of a charitable bequest, so as to give it effect out of the personal chattels, it being void so far as it touches any interest in land. (q)

Under a devise of real and personal estate in trust to pay debts and legacies, some of which were void under the stat. 9 Geo. 2, c. 36, as a charge of charity legacies upon the real and leasehold estates and money on mortgage; on a deficiency of assets the other legatees were preferred to the heir. (r)

(m) Prowse v. Abingdon, 1 Atk. 482, and Pearce v. Taylor, before Lord Thurlow. C. Trin. Vac. 1790, cited 1 P. Wms. 679, note 1.

(n) Tipping v. Tipping, 1 P. Wms. 729. Snelson v. Corbett, 3 Atk. 369. Graham v. Londonderry, ib. 393.

(0) 2 P. Wms. 554, note 1. Probert v. Clifford, Ambl. 6. Incledon v. Northcote, 3 Atk. 438. 3 Bac. Abr. 87. Lord Townsend v. Windham, 2 Ves. 7. Vide supra, 231.

CHAP. IX.

OF A DEVASTAVIT.

HAVING thus discussed what belongs to the discharge of an executor's duty, I am now to consider, what shall amount to such a violation or neglect of it as shall make him personally responsible.

This species of misconduct is styled in law a devastavit; that is, a wasting of the assets. (a)

And where an executrix in respect of her receipts as such, was considerably indebted to the estate, an annuity to which she was entitled under the will, was ordered, as it became due, to be applied in payment of such debt, and her solicitor was declared to have a lien for his taxed costs, upon any payment of the annuity to which she might be entitled, after payment of what was due to the estate. (b)

An executor may incur this charge in a variety of modes, not only by plain and palpable acts of abuse, as giving away, embezzling, or consuming the property, without regard to debts or legacies; but also by misapplying it in extravagant expences in the funeral; (c) in the payment of debts out of their legal order, to the prejudice of such as are superior; or by an assent to, or payment of a legacy, when there is not a fund sufficient for creditors. (d) Or by disbursements in the schooling, feeding, or clothing of an intestate's children subsequently to his decease. (e)

So if the executor release or cancel a bond due to the tes[425] tator, or deliver it to the obligor, this shall charge him to the amount of the debt, whether in point of fact he

(a) Off. Ex. 157. 3 Bac, Abr. 77. Com. Dig. Admon. I. 1. 11 Vin. Abr. 306.

(b) Skinner v. Sweet, 3 Madd. Rep. 244.

(c) Vide supra, 246.

(d) Off. Ex. 158. Spade v. Smith, 3 Russ. 511.

(e) Giles v. Dyson, 1 Starkie, 32.

received it or not. (f) If he release a cause of action accrued in right of the testator, whether before or subsequently to the testator's death, this also will, generally speaking, (g) be a devastavit. (gg) If he submit to arbitration a debt, or any other demand he may be entitled to in right of the testator, and the arbitrator do not award him a recompence to the full value, this, as being his own voluntary act, shall bind him to answer the difference. (h) If an executor take an obligation in his own name for a debt due by simple contract to the testator, he shall be equally chargeable as if he had received the money; for the new security has extinguished the whole right, and is quasi a payment. (i) If, in the character of an executor, he commence an action in which he has a right to recover, and afterwards agree with the defendant to receive a specific sum at a future day as a compensation, and the party fail to pay it, the executor, in that case, is liable on a devastavit for the value. (k) Thus, where the executor of an obligee took in payment a bill of exchange drawn on a banker for the money, who accepted the bill, and before payment failed; on the executor's afterwards bringing an action on the bond, and this matter being disclosed in evidence, it was [426] held to be a payment. (7) So if an executor pay money in discharge of an usurious bond, or any other usurious contract entered into by the testator, it shall involve him in the same consequences. (m)

Such acts also of negligence and careless administration as tend to defeat the rights of creditors, or legatees, fall under the same denomination. As if the executor delay the payment of a debt payable on demand with interest, and

suffer judgment for principle and interest incurred after the testator's death; unless he can shew that the assets were insufficient to discharge the debt immediately, (n) he shall be held guilty of a devastavit.

If the executor lose any of the testator's chattels, he shall be responsible for their value. (o) And in a case where the executor had lost a bond due to the testator, the Court of Chancery was inclined to charge him with the debt: but directed only, that he should prosecute a suit instituted by him against the obligor, with effect, in order to recover the money on the bond, and respited judgment in the mean time. (p) If the executor apply merely by an attorney to the obligor of a bond to pay the debt, but bring no action, he shall be charged with the amount of it. (q) He shall, in like [427] manner, be personally answerable, if, by delaying to commence an action, he has enabled a creditor of a testator to avail himself of the statute of limitations. (r)

If an executor appoint an agent to collect the testator's effects, and the agent embezzle them, it shall be a devastavit by the executor. (s) If a term be assigned by an executor in trust, to attend an inheritance, it shall in equity follow all the estates created out of such inheritance, and all the incumbrances subsisting upon it; (t) but as by such assignment the term ceases to be assets at law, the executor shall be responsible to the creditors for a devastavit. (u) If an executor retain money in his hands for any length of time, which by application to the Court of Chancery, or by vesting in the funds, he might have made productive, he shall be charged with interest upon it. (w) If he permit rent to run

(n) Seaman v. Everad, 2 Lev. 40, and see Hall v. Hallet, 1 Cox's Rep. 134.

(0) Vide Goodfellow v. Burchett, 2 Vern. 299. (p) Ibid.

(9) 3 Bac. Abr. 60. Lowson v. Copeland, 2 Bro. Ch. Rep. 156.

(r) Hayward v. Kinsey, 12 Mod. 573. 11 Vin. Abr. 309.

(s) Jenkins v. Plombe, 6 Mod. 93.

(t) Supra, 410.

(u) Charlton v. Lowe, 3 P. Wms. 330. Willoughby v. Willoughby, 17 Term Rep. 763.

(w) 2 Fonbl. 2d edit. 184, note p. Bird v. Lockey, 2 Vern. 744. Perkins v. Baynton, 1 Bro. Ch. Rep. 375. Littlehales v. Gascoyne, 3 Bro. Ch. Rep. 73. Franklin v. Frith, 433, et vide ibid. 107.

in arrear, and it is lost through his negligence, he will be charged with the amount so lost. (x)

If he lay out the assets on private securities, all the benefit made thereby shall accrue to the estate, yet the executor shall answer all the deficiency. (y)

And where an executor sold houses and applied part of the money in payment of debts, &c. and paid the rest into his bankers, mixing it with his own money, instead of vesting the same in stock as directed by the will, and the bankers failed, he was held liable to pay the money to the legatees. (≈)

If an executor sell the testator's goods at an undervalue, although it be an appraised value; (a) or if he delay disposing of them, by which they are injured, he is personally bound to make a compensation. (b) If he omit to sell the goods at their full price, and afterwards they are taken out [428] of his hands, he shall be liable to the extent of the value of the goods, and not merely to what he recovers in damages; for there was a default on his part. (c) But if, without any imputation on him, the goods are taken out of his possession, although he recover not such damages as the goods were really worth, he shall be responsible for no more than he recovers. (d) If the goods be perishable, and on his part there has been neither neglect in keeping them, nor delay in selling them in case they are impaired, he shall not answer for their first value, but only for what they were worth at the time of the sale. Yet if the goods be taken out of his possession, he must sue the party taking them, that he may exempt himself from any greater claim than the damages he shall recover. (e)

In case of an executor's investing money in the funds, and appropriating the same, he shall not be answerable for a loss