The expense of obtaining confirmation falls to be paid out of the deceased's general estate.(1)

2. Wages to domestic and farm servants, including reapers and other occasional servants for agricultural labour, for the term. current at the death, whether a year, half year, or month; also the wages of gardeners where they combine outdoor labour with domestic service. The wages or salaries of clerks, managers of merchants and manufacturers, and of servants of skilled artisans are not preferable debts.(m) But by the Bankruptcy Amendment Act, 1875, it is provided that "the wages of clerks and shopmen and servants employed by a bankrupt shall be entitled to the same privilege as the wages of domestic servants, to an extent not exceeding four months' wages prior to the date of sequestration being awarded, or, where sequestration is not awarded, prior to the concourse of diligence for distribution of the estate of a party being notour bankrupt, and not exceeding the sum of £50; and the wages of workmen employed by a bankrupt shall be similarly entitled to an extent not exceeding two months' wages prior to the same respective dates."(n)

3. The house rent of the deceased for the year current at his death, also taxes due to the crown.(0)

Sums due by ministers of Established Church to Widows' Fund are preferable even to funeral expenses. The creditors of the deceased have a preference over those of the next-of-kin within a year.(p)

The executor should be particular in ascertaining that there is a sufficiency of assets for the discharge of all the preferable debts before he pays any of the ordinary debts, as if he should pay any of the latter, without having sufficient to pay the former, he will have to pay the former out of his own estate. As a general rule, an executor should pay no debt of the deceased except on decree, unless fully satisfied of the debt being legally due, and in any event not till the expiration of six months from the death, except in the case of privileged debts before mentioned (q); a fortiori he should not till then distribute the estate among the next-of-kin. An executor is safe in paying primo venienti after the six months, provided he is not interpelled by creditors and has reason to

(1) Hog, 14th May, 1800; 4 Pat. App. 581.

(m) Bell's Prin. § 1404.

(n) 38 & 39 Vict. c. 26, § 3; Bell's Com. 2, 149.

(0) Bell's Prin. §§ 1405-1409.
(p) Act 1695, c. 41.

(9) Bell's Prin. § 1900; M'Laren, § 1981; Ersk. 3, 9, 4; Beith, 30th Nov. 1875, 3 R. 185.

believe that the estate is solvent.(r)

In that case also he may

pay a debt due to himself by retention.(s) But where the estate is likely to prove insolvent, or where the executor is exposed to double distress by creditors, he may either institute a process of multiplepoinding for the judicial distribution of the estate he has reduced into possession,(t) or he may himself apply to the proper Court for sequestration, or allow the estate to be wound up by a judicial factor under the Bankruptcy Act.(u) So long as the executors are willing to act, the Court will not appoint a judicial factor.(v) The Court will not appoint the executor to be factor.(w)

205. The Powers Inherent in the Office of Executor.-As a general rule, executors duly confirmed, possess, at common law, all the powers which were competent to the deceased when alive,(x) and no person interested in the succession can defeat them in the execution of their office, except by bill of suspension and interdict.(y) They have therefore full power to uplift and receive the whole moveable estate contained in the inventory, and to pay all debts and charges which can be shown to affect the estate where it appears to be sufficient(2); to call for all documents of debt due to the deceased, and for statements from bankers and others alleged to be in possession of his funds (a); to pursue and defend actions, charging the estate with expenses reasonably incurred (b); to refer doubtful claims to arbitration,(c) and also claims for tradesmen's accounts and the like, where the question to be determined is as to the amount only(d); also to employ law agents to transact the ordinary duties of trust management at the expense of the trust.(e) But expenses occasioned by the executor's own negligence will be chargeable

(r) More's Executors, 24th Jan. 1835, 13 Sh. 313.

(s) Elder, 2nd July, 1859, 21 D. 1122.

(t) Gardner, 28th Nov. 1810, F.C. 59; M'Laren, §§ 1981-2138.

(u) 19 & 20 Vict. cap. 79; A of S. 25th Nov. 1857.

(v) Petition, Macfarlane, 6th Mar. 1857, 19 D. 656.

(w) Pennycook, 20th Dec. 1851,

14 D. 311.

(x) Miles, 1 Dec. 1830; 9 Sh. D. B. 111.

(y) Hog, 1838, 16 Sh. 1275; Barnet, 14th Dec. 1831, 10 S. 128. (2) M'Laren, § 1834.

(a) Maclauchlan, 9th July, 1857, 19 D. 960.

(b) Graham and others, 22nd Nov. 1860, 23 D. 41.

(c) More's Executors, 24th Jan. 1835, 13 Sh. 313; M'Kersies, 25th June, 1872, 10 M. 861.

(d) Thomson's Trs. 13th Dec. 1867. (e) Hay, 19th Feb. 1861, 23 D.

594.

against himself. (f) One of a number of executors may claim for the whole number in a sequestration.(g) An executor must not stop short of actual diligence against debtors if that be necessary to recover any part of the executry estate.(h)

An executor is not a trustee in the sense of a depository for behoof of legatees, who are merely creditors. He is entitled to retain as much as will pay any debt due to himself before any other creditors whose debts are of equal degree, for the reason that he cannot sue himself, and would therefore be in a worse position than all the rest of the creditors.(?)

An executor may indorse a promissory-note or bill made payable to the deceased or his order.

206. Personal Liability of Executors.-Executors, as trustees, are accountable for the due collection and distribution of the estate to the extent of the inventory.(j) The liability is incurred (1) to the creditors of the deceased, and (2) to his next-of-kin or beneficiaries.

In the first class the liability depends on the nature of the deceased's obligations to the creditor; in the second, on the nature of diligence prestable from executors.(k)

1. Liability to creditors of the estate, is incurred by executors personally (all questions respecting the liability of the deceased's estate being here necessarily excluded), either (1) by their own adoption of the deceased's engagements as current contracts, or (2) by negligence, consisting in the inequitable disposal of funds with which they were bound to pay the creditors.

In the first case the liability of the executor is subject to the same rules of law as affect contracts of his own making, the criterion of liability being furnished by the terms of the obligation, and, if indefinite, personal liability is in no case presumed. Executors were held liable to a law agent, employed by one of them in relation to the business of the executry, although it was alleged that his employment was contrary to the orders of the others.(l) And where executors qua executors accepted a bill it was held that M. 399. Murdoch, 17th Feb. 1826, 4 S. 479.

(f) A. B. Petition, 21st Dec. 1855, 18 D. 286; Law, 20th July, 1876, 3 R. 1192; Macpherson, 8th Dec. 1869, 8 M. 246.

(g) Watson, 27th June, 1848, 10 D. 1414. [362. (h) Forman, 2nd Feb. 1853, 15 D. (i) Jamieson, 24th Jan. 1872, 10

35.

(j) Renton, 14th Nov. 1851, 14 D.

(k) M'Laren, § 2311; Bell's Prin. § 1900; Bell's Com. 2, 80.

(1) Stewart, 20th May, 1823, 2 S.

320.

want of funds formed no defence in a question with onerous holders.(m)

In the second case, the liability for injuries caused by the executor's own improper acts or negligence is purely personal, since he is ex hypothesi not acting under the protection of the powers implied in his office. Thus, gratuitous trustees were found personally liable for damage sustained by a creditor in consequence of their having created an illegal preference in favour of another creditor(n); also for having conveyed the entire succession without providing for payment of all the deceased's obligations.(0) But as a creditor, in virtue of his right to have the deceased's estate made forthcoming, may insist in any claim against the executors competent to a beneficiary,(p) the grounds of liability will be further illustrated under the next question.

2. Liability to personal representatives-being responsibility for actual intromissions, and for such diligence in respect to matters omitted as they might be expected to employ in their own affairs(q). Any delay in the recovery of debts due to the estate will be at the executor's own personal risk(r). Executors are chargeable with interest on outstanding debts after the lapse of a year unless the failure to recover be not attributable to their neglect. (s) They are liable for delay in the recovery of assets, although personally interested in the estate as creditors(t); also for discharging a security and improperly consenting to the liberation of a debtor(u). Money left by the deceased in the hands of one of his executors, or invested on personal security, is no justification for not bringing it into a position of security.(v) Such a position may be one of personal obligation. A man of means, unable for a time to find an eligible investment for funds held by him as trustee under a deed which directed him to invest the same "on heritable security, railway debentures, the public funds, or other good securities," was held entitled to retain the money in his own hands under a personal obligation to repay and to execute at any

(m) Eaton, &c., 25th May, 1837,

15 S. 1012.

(n) Young, 15th June, 1841, 3.D. 1020.

(0) Cruickshank, 24th April, 1845; 4 Bell, 179; Lamond, 8th March, 1871, 9 M. 662.

(p) M'Laren, § 2315.

(q) Ersk. 3, 3, 36.

(r) M'Laren, §§ 1954-2347.

(s) Campbell, 15th June, 1840, 2 D. 1084; M‘Laren, § 2348.

(t) Forman, 2nd Feb. 1853, 15 D. 362.

(u) Abercrombie v. Innes, 1723; Rob. Ap. Cas. 457.

(v) Moffat, 31st Jan. 1834, 12 Sh.

369.

time any formal deed that might be required-he meanwhile paying into bank four per cent. as interest on the money.(w) Executors were found not liable for the loss of money placed by the deceased in bank until an investment was obtained(x). Trustees and executors investing on personal security, bills or personal bonds, are liable to replace the money with interest, but they are not liable for loss by robbery, fire, or other casualty.(y) They are liable for money placed by them in bank, unless bank is in good credit(2); to replace money inadvertently or from error in fact or in law, paid to a person not entitled to receive it, unless such person had a legal title at the time, or that blame attached to the beneficiary himself. (a) Executors are liable in a joint responsibility only where it amounts either to culpa lata or to supine negligence (b). They are not jointly responsible for fraud or gross mismanagement.(c) They are responsible for the safe custody of documents belonging to the estate. (d) An executor depositing funds to his own credit is liable in penal interest(e); and if he mixes the funds with his own property, the beneficiaries are entitled to any portion of the blended property which he cannot show to be his own.(f) Executors misappropriating trust monies are guilty of a punishable offence.(g) Executors who had not kept a separate bank account for the executry estate were, under certain circumstances, found only liable for interest on their intromissions at four per cent.(h) Where funds were lost in the hands of the executor's agent after realisation, the loss was held not to diminish the free executry on which legitim was to be calculated.(i) A widow decerned executrix, but who, without confirmation or making up inventories intromitted with the deceased's effects, was held personally liable for a debt.(j)

207. Death of Executor.-The office of executor is personal

(w) Russell, 20th Nov. 1869, 7 S.L.R. 99.

(x) Pearson, 19th Nov. 1825, 4 Sh. 205.

(y) M'Laren, §§ 2349, 2350, 1972. (*) Pearson supra.

(a) M'Laren, § 2353.

(b) Thomson, 16th Feb. 1838, 16 Sh. 560; M'Laren, § 2368.

(c) M'Laren, § 2372.

(d) M'Lauchlan, 9th July, 1857,

19 D. 960.

(e) Clark, 17th Dec. 1856, 19 D 187; but see Russell supra.

(f) M'Laren, § 1977.

(g) Acct. of Court, 8th Dec. 1853, and 7th Feb. 1854, 16 D. 163, 489. (h) Malcolm, 10th Dec. 1869, 8 M. 272.

(i) Dalhousie, 26th March, 1868, 6 M. 659.

(j) Cunningham, &c., 8th Feb. 1827, 5 S. 315.