We shall afterwards observe upon Resulting Trusts, including Trusts which arise from Purchases made in the name of a third Person; or with notice of a Trust.

in the consideration of a Court of Equity.

The whole Jurisdiction of Courts of Equity in the administration of Assets is founded on the principle, that it is the duty of the Court to enforce the execution of Trusts; and that the Executor or Administrator (t) who has the Property in his hands is bound to apply that Property in the payment of Debts and Legacies, and the remainder according to the Will, or in case of Intestacy according to the Statute of Distributions. The sole ground on which Courts of Equity proceed in Cases of this kind is the Execution of a Trust (u).

Even where the Testator directed that the Executor should not be compelled by Law to declare the amount of a Residue bequeathed by the Testator, the Court directed an account against him (x).

It is plain that Executors or Administrators have not any legal or beneficial Interest in the Personal Estate, but are invested only with a legal Power over it, just as every Trustee has a legal Power over

(t) An Administration taken out here will not extend to Colonies; but an Agent there who gets in Assets under an exemplification of the Probate, and a Letter of Attorney from the Executor, is chargeable as much as if the Executor had got them in himself. Atkins v. Smith, 2 Atk.

(u) Adair v. Shaw, 1 Sch. & Lefr. 261; and see 2 P. Wms. 161, 211. Elliott v. Collier, 1 Ves. 16. S. C. 3 Atk. 527. Hovey v. Blakeman, 4 Ves. 607. Ripley v. Waterworth, 7 Ves. 452; and see 7 Ves. 197

(x) Gibbons v. Dawley, 2 Chan. Cas. 198.

his Trust Property (y); for it will not pass under general words in a grant of their Property (z); it is not liable for their Debts either on an Execution (a), or Bankruptcy (b); nor (unless under particular circumstances) vests in the Husband of a Feme Executrix or Administratrix (c); nor is it forfeitable for their crimes (d). If they had any legal or beneficial Interest in the Personal Estate they would have a power of bequeathing it by Will, but this they have not, except, indeed, that the Executor of an Executor who has proved (e), represents the original Testator; but the Executor of an Administrator, or the Administrator of an Executor, does not (ƒ).

decree a distribution of

The doctrines as to the administration of Assets are clearly settled; but as Lord Hardwicke, even in his time observed, "points with regard to Assets are numerous enough (g)." It seems, however, that the right of the Court to Assets was not fully settled till about the time of the Lord Keeper North, who overruled a Demurrer to a Bill for that purpose (h), as did also his successor, Lord Jefferies, in a Case where a Bill was filed by an Executor against a Creditor to take an Account of Assets, and settle the priorities of Creditors,

which was demurred to as multifarious; but the Demurrer was overruled, and the Bill not only held to be proper, but a safe way for an Executor to take (i). From that time such Suits became frequent ; and it has been held that an Account may be decreed of an Intestate's personal Estate, notwithstanding an Account before taken, and a Distribution decreed, in the Spiritual Court (k).

After a Suit for an Account of Assets is instituted against an Executor in a Court of Equity, he has not been allowed payments voluntarily made without Suit (1); and it has also been holden, that a Judgment confessed by an Executor, pending a Bill in Equity, shall not be allowed upon an Account of Assets (m). Certainly, Debts paid by an Executor or Administrator after a final Decree upon an account taken, will not be allowed (n), though in such case they are permitted to stand in the place of the Creditors so paid (0).

If there be two Creditors, and one files a Bill, and obtains a final Decree, and a Report of the Master, and that Report has been confirmed, and then the other brings a Bill, and obtains a final Decree, and his demand is confirmed, the Executor must pay him first who used the first diligence.

If a Decree be obtained on a Creditor's Bill (p) for the Administration of Assets, and some of the Creditors sue at Law, the Court will interpose by Injunc

(i) Buckle v. Atles, 2 Vern. 37.

(A) Bissell v. Axtell, 2 Vern. 47.

(1) Bright v. Woodward, 1 Vern. 369. S. P. 2 Ch. Cas. 202. Darston v. Earl of Oxford, Prec. Ch. 188. Joseph v. Mott, Prec. Ch. 79.

(m) Surrey v. Smalley, 1 Vern. 457; but see Goodfellow v. Burchett, 2 Vern. 299. (n) Perry v. Phelips, 10 Ves.

34.

(0) Jones v. Jukes, 2 Ves. jun. 518.

(p) Ashley v. Pocock, 3 Atk. 208.

tion to restrain them; but until a Decree is obtained no Injunction can issue (q). If before a Decree obtained, several Creditors proceed by different Bills in Equity, for satisfaction of their demands, the Court will not stop the Suits because of the priority which may be gained, although this creates an entanglement and difficulty upon the Estate; but after a Decree obtained, an Injunction would be granted, because the Executor could not plead it at Law (r).

When a Bond-Creditor files a Bill on behalf of himself and others, or for his own particular Debt, the course of the Court is, to direct an Account of all the Bond-Debts of the Testator or Intestate, with liberty to come for a satisfaction; and in such Case the Court will not after a Decree for a Sale suffer another Bond-Creditor, who has obtained Judgment, to proceed against the Estate (s).

If a simple contract Creditor files a Bill for the payment of his own Debt only, the Court does not direct a general Account of the Testator's Debts; but the course appears to be, to direct an Account of the Personal Estate, and of that particular Debt; and whether the Balances in the hands of the Executor would, by reason of any Specialty or other Debts due from the Testator, be the respective Balances coming from them to be applied in a course of Administration, and then the Plaintiff's Debt will be ordered to be paid out of such Balance (†).

If the Court, on a Bill by a Bond-Creditor, decrees

(q) Martin v. Martin, 1 Ves. 213. Mocher v. Reed, 1 Ball & Beat. 320; and see Paxton v. Douglas, 8 Ves. 520.

(r) Martin v. Martin, 1 Ves. 213.

(s) Ibid. 214.

(t) Attorney-General v. Cornthwaite, 2 Cox, 44.

a Sale, in which the Heir joins, and another BondCreditor brings an Action at Law to have satisfaction out of it, and the Heir pleads riens per descent he will be charged with the Sum of Money for which the Estate sold, he having joined in the Conveyance; nor would the Common Law Court take notice that it was done by a Sale in Equity; but upon a Bill by the Heir at Law he would have an Injunction (y).

If Creditors omit to file a Bill against a Devisee in Trust of Lands to compel a Sale, they will not be allowed to disturb a fair Purchaser who has been in quiet Possession for a length of time, sixteen years, for instance, of the Trust Estate (≈).

The payment of Debts is the leading duty of an Executor. The order in which Assets are administered, and the question, what is a good legal Debt, are pure questions of Law, the consideration of which is not within the plan of this Work. No question that can arise as to such Debts, in the administration of legal Assets, is determined in a Court of Equity until it is first ascertained whether the Debt be good at Law; and if the Court has a doubt, the Bill is retained, with liberty to the Plaintiff to proceed at Law (a); on this head, therefore, it is only necessary to inake a few observations.

A Debt due by Bond, and a Debt due for Rent, stand upon the same footing in the administration of Assets (b).

In the usual administration of Assets, a Bond-Creditor must be paid before a Simple Contract Creditor, (a) Hartwell v. Hartwell, 4 Ves. 815.

(3) Martin v. Martin, 1 Ves.

214.

(2) Elliott v. Merriman, 2 Atk. 43. S. C. Barn. 78.

(b) Showell v. Coledrop, 17 May 1745. MS. overruling the Case in 1 Ves. 490. 1 Ray. 515.