32 33 2. The executor, or the administrator durante minore aetate, or durante absentia, or cum testamento annexo, must prove the will of the deceased: which is done either in common form, which is only upon his own oath before the ordinary, or his surrogate; or per testes, in more solemn form of law, in case the validity of the will be disputed. (w) When the will is so proved, the original must be deposited in the registry of the ordinary; and a copy thereof in parchment is made out under the seal of the ordinary, and delivered to the executor or administrator, together with a certificate of its having been proved before him; all which together is usually styled the probate. In defect of any will, the person entitled to be administrator must also at this period take out letters of administration under the seal of the ordinary; whereby an executorial power to collect and administer, that is, dispose of the goods of the deceased, is vested in him: and he must, by statute 22 & 23 Car. II. c. 10., enter into a bond, with sureties faithfully to execute his trust. If all the goods of the deceased lie within the same jurisdiction, a probate before the ordinary, or an [509] administration granted by him, are the only proper ones: but if the deceased had bona notabilia, or chattels to the value of a hundred shillings, in two distinct dioceses or jurisdictions, then the will must be proved, or administration taken out, before the metropolitan of the province, by way of special prerogative; (x) whence the courts where the validity of such wills is tried, and the offices where they are registered, are called the prerogative courts, and the prerogative offices, of the provinces of Canterbury and York. 34 Lyndewode, who flourished in the beginning of the fifteenth century, and was official to archbishop Chichele. interprets these hundred shillings to signify solidos legales; of which he tells us seventy-two amounted to a pound of gold, which in his time was valued at fifty nobles, or 16l. 13s. 4d. He therefore computes (y) that the hundred shillings, which constituted bona notabilia, were then equal in current money to 231. 2s. Od. This will account for what is said in our ancient books, that bona notabilia, in the diocese of London, (z) and indeed every where else, (a) were of the value of ten pounds by composition ; for if we pursue the calculations of Lyndewode to their full extent, and consider that a pound of gold is now almost equal in value to an hundred w Godolph. p. 1. c. 20 § 4. X 4 Inst. 335. y Provinc. 1.3. t. 18. c. item, v.centum, &c. statutum v. laicis. z 4 Inst. $35. Gedolph. p. 2. c. 22. a Plowd. 281. payment of his debts), which the court allowed, he being a man of great estate and reputation in his county, and buried there, but this was not come semble against creditors. Bull. N. P. 143. 1 Salk. 296. Chitty. (32) The executor must prove the will, or person who administers take out administration, within six months after deceased's death, under penalty of 501. 37 Geo. III. c. 90. s. 10. As to the probate in general, see Toller, 49 to 71. (33) When a will is to be thus solemnly proved, two witnesses are indispensible. It is not necessary that such witnesses should have read the will, or heard it read, if they can depose on oath, that the testator declared that the writing produced was his last will and testament, 4 Burn. Ec. L. 205. Godolph. 66. ; or that he duly executed the same in their presence. Toll. Ex. 57. The widow or next of kin are cited to be present, and the judge, if satisfied, pronounces for the validity of the testament. Godolph. p. 1. c. xx. s. 4. If a will be disputed, it ought to be lodged in the registry of the prerogative court for safe custody. 2 Phillimore E. C. 250. Chitty. (34) As to bona notabilia in general, Toller, 52, 3. 2 Saund. index, Administrators. If there are bona notabilia in both provinces, the archbishop in each shall grant probate accordingly. 1 Salk. 39. 2 Lev. 86. Off. Ec. 48. And if in England and Ireland, probates shall be granted in both countries. Dyer, 305. Bac. Ab. Executors and Administrators, E. 3. Codex. 472. If the testator died beyond sea, though the goods be in one diocese only, the archbishop is to grant the probate. Roll. Ab. 908. 3 Bac. Ab. 35. Chitty. and fifty nobles, we shall extend the present amount of bona notabilia to nearly 701. But the makers of the canons of 1603 understood this ancient rule to be meant of the shillings current in the reign of James I., and have therefore directed (b) that five pounds shall for the future be the standard of bona notabilia, so as to make the probate fall within the archiecopiscopal prerogative. Which prerogative (properly understood) is grounded upon this reasonable foundation; that as the bishops were themselves originally the administrators to all intestates in their own diocese, and as the present administrators are in effect no other than their officers or substitutes, it was impossible for the bishops, or those who acted under them, to collect any goods of the deceased other than such as lay within their own diocese, beyond which their episcopal authority extends not. But it [510] would be extremely troublesome, if as many administrations were to be granted, as there are dioceses within which the deceased had bona notabilia; besides the uncertainty which creditors and legatees would be at, in case different administrators were appointed, to ascertain the fund out of which their demands are to be paid. A prerogative is therefore very prudently vested in the metropolitan of each province, to make in such cases one administration serve for all. This accounts very satisfactorily for the reason of taking out administration to iutestates, that have large and diffusive property, in the prerogative court: and the probate of wills naturally follows, as was before observed, the power of granting administrations; in order to satisfy the ordinary that the deceased has, in a legal manner, by appointing his own executor, excluded him and his officers from the privilege of administering the effects. 3. The executor or administrator is to make an inventory (c) 35 of all the goods and chattels, whether in possession or action, of the deceased; which he is to deliver in to the ordinary upon oath, if thereunto lawfully required. 4. He is to collect all the goods and chattels so inventoried; 36 and to that end he has very large powers and interests conferred on him by law; being the representative of the deceased, (d) and having the same property in his goods as the principal had when living, and the same remedies to recover them. And if there be two or more executors, a sale or release by one of them shall be good against all the rest; (e) but in case of administrators it is otherwise. (f) 37 Whatever is so recovered, [511] that is of a saleable nature, and may be converted into ready money, is called assets in the hands of the executor or administrator; (g) that is, sufficient or enough (from the French assez) to make him chargeable to a creditor or legatee, so far as such goods and chattels extend. Whatever assets so come to his hands he may convert into ready money, to answer the demands that may be made upon him: which is the next thing to be considered; for, b can. 92. e Dyer, 23. 39 (35) See Toller, 45, 6-247 to 254. (36) See Toller, 258. b. 3. ch. 1. s. 3. (37) Since the case of Hudson v. Hudson, 1 Atk. 460. it has been settled that there is no distinction of this kind; an administrator has all the power that an executor has. See 2 Ves. 267. Selw. N. P. 790. (38) The goods of a testator, in the possession of the executor, cannot be taken in execution of a judgment in an action brought against the executor in his own right. 4 T. R. 621. 43 5. The executor or administrator must pay the debts of the deceased. In payment of debts he must observe the rules of priority: otherwise, on deficiency of assets, if he pays those of a lower degree first, he must answer those of a higher out of his own estate. And, first, he must pay all funeral charges, and the expense of proving the will, and the like. Secondly, debts due to the king on record or specialty. (h) Thirdly, such debts as are by particular statutes to be preferred to all others; as the forfeitures for not burying in woollen, (i) 40 money due upon poor-rates, (k)" for letters to the post-office, (/) and some others. ** Fourthly, debts of record; as judgments, (docquetted according to the statute 4 & 5 W. & M. c. 20.) statutes and recognizances. (m) Fifthly, debts due on special contracts: as for rent (for which the lessor has often a better remedy in his own hands, by distreining), or upon bonds, covenants, and the like, under seal. (n) * Lastly, debts on simple contracts, viz. upon notes unsealed, and verbal promises. Among these simple contracts, servant's wages are by some (0) with reason preferred to any other and so stood the ancient law, according to Bracton (p) and Fleta, (q) who reckon among the first debts to be paid servitia servientium et stipendia famulorum. Among debts of equal degree, the executor or administrator is allowed to pay himself first, by retaining in his hands so much as his debts amount to. 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 would besides be taking advantage of his own wrong, which is contrary to the rule of law. (s) If a creditor constitutes his debt[512] or his executor, this is a release or discharge of the debt, whether the executor acts or not; (1) provided there be assets sufficient to pay the testator's debts: for though this discharge of the debt shall take place of all legacies, yet it were unfair to defraud the testator's creditors of their just debts by a release which is absolutely voluntary. (u) 5 Also, if (39) See in general the order of payment, Toller, 258 to 299. (40) The 30 Car. II. c. 3. is repealed by 54 Geo. III. c. 108. (41) This statute provides, that the executors of any person dying in the office of overseer of the poor, shall pay over all sums of money received by virtue of his office before any other debts are satisfied. 17 Geo. II. c. 38. s. 3. (42) Money due from a deceased treasurer or collector to paving commissioners, under the metropolis act, 59 Geo. III. c. 29. s. 51.; money due from an officer of a friendly society, 33 Geo. III. c. 54 s. 10. 1 Mont. B. L. 523. (43) To this class of debts must be added a decree of the court of equity. 3 P. Wms. 401. 2 Saik. 507. 2 Fonbl. 412. n. t. (44) A court of equity will order voluntary bonds or other special contracts, without consideration, to be postponed to simple contract debts; upon the principle that a man ought to be just before he is generous, or that he ought not to make gifts before he has paid his debts. SP. Wms. 222. (45) Because, as the executor cannot sue himself, the legal presumption arises that the testator intended to release his debt. It is the same if the debt be on bond. 8 Co. 136. And if several obligors be bound jointly and severally, and the obligee make one of them his executor, it is an extinguishment of the debt at law, and the executor is incapable of suing the other obligors. Off. Ex. 31. 11 Vin. Abr. 398. And where only one of several executors is indebted to the testator, it is the same, for one executor cannot maintain an action against another, nor his representative after his death. Plowd. 264. Leon. 320. But a formal renunciation in the spiritual court shall prevent the release of his debt. Salk. 307. Toll. Ex 348.-If a debtor be appointed administrator, no presumption of this kind can arise in respect of him; and, therefore, though the legal remedy is suspended during his life, yet after his death his legal representative may be sued for the recovery of the debt, by an administrator de bonis non. 1 Sid. 79. 1 Salk. 303. Toll. Ex. 349. So, if the executrix of an obligee marry the obligor, if the husband do not pay it to the wife, the re no suit is commenced against him, the executor may pay any one creditor in equal degree his whole debt, though he has nothing left for the rest; for, without a suit commenced, the executor has no legal notice of the debt. (w) 46 6. When the debts are all discharged, the legacies claim the next regard; which are to be paid by the executor so far as his assets will extend; but he may not give himself the preference herein, as in the case of debts. (x) 47 medy is suspended during the coverture, but on her death the administrator de bonis non of the testator is entitled to the debt, Leon. 320. Moore, 236. Salk. 306.; and, it seems, that naming 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. 11 Vin. Abr. 400. Ld. Raym. 605. In Equity, the debt of the executor shall not be released, even as against legatees, if the presumption arising from his appointment be contradicted by the express terms of, or strong inference from, the will; as, where the testator directs a special legacy to be paid out of such debt. Yelv. 160. Toll. Ex. 350. If he leave the executor a legacy, it indicates that he did not mean to release the debt; and in such case the executor is trustee to the amount of the debt for the residuary legatee or next of kin. 3 Bro. Cha. Rep. 110. Ca. Temp. Talbot, 240. 4 Bro. P. C. 180. Bac. Ab. Executors. A. 10. So, an executor without a legacy, where it appeared that the testator considered him a mere trustee of his whole property, was held not to be discharged from his debt. 11 Ves. 87. 13 Ves. 262. Chitty. (46) The practice of an executor's, or administrator's giving a preference to one over other creditors, by confessing a judgment to him in an action brought for the purpose, even after action commenced against him by an adverse creditor, and pleading such judgment in bar puis darien continuance, is still legal. 1 Marsh. Rep. 280. 401. Sir James Mansfield said, he wished it were more generally known (for he believed that lawyers in the courts of law were not aware of it), that through the medium of a court of equity, the creditors of a deceased insolvent may always be compelled to take an equal distribution of the assets. It was only necessary for a friendly bill to be filed against the executor or administrator, to account; after which the chancellor would injoin any of the creditors from proceeding at law. Campbell, N. P. 148. The course of administration, or payment of the debts according to their priority, applies only to legal assets, that is, such as the executor takes as executor; but as natural equity requires that all the creditors of the testator should be paid equally, when therefore the testator leaves his real estate to trustees or to executors, who thus became trustees, for the payment of his debts, these are called equitable asoets, because a court of equity will order all the creditors to be paid pari passu, or an equal share, sut of this fund. 1 Bro. 138. 2 Atk. 50. And even where specialty creditors have received part of their debts out of the personal estate, a court of equity will restrain them from receiving any part of the equitable fund, till all the other creditors are paid an equal proportion of their debts. 3 P. Wms. 322. The personal estate is said to be the natural fund for the payment of debts, yet it will be exonerated if the testator leaves by his will sufficient real property for the payment of his debts, provided it is the manifest intention that the personal estate shall be exonerated, and that the real estate shall be alone applied to that purpose. 1 Bro. 462. 2 Bro. 60. 6 Ves. Jun. 567. If lands descend to the heir charged by the testator with his debts, there it shall be liable to all his debts, although it shall be considered as legal assets, and they shall be paid according to their priority. 2 Atk. 290. 1 P. Wms. 430. The equity of redemption of lands, mortgaged in fee, is equitable assets, for the creditors can have no relief from it but in a court of equity. 2 Atk. 290. All specialty creditors, where the testator has bound himself and his heirs, have their elec. tion, whether they will resort to the heir, who has lands by descent, or to the executor, for payment of their debts; and although a court of equity will not interpose its authority, and compel the specialty creditors to apply to the heir, yet if they exhaust the personal fund, or leave insufficient for the discharge of the simple contract creditors, it will enable these to stand in the place of the specialty creditors, and to recover from the heir at law the amount of what they have drawn out of the personal fund. 1 Ves. 312. This is called marshalling the assets, the rules relative to which are ably collected in 3 Wooddes. Vin. L. 488. A court of equity will marshal the assets, or throw the amount of the specialty debt upon the real estate, against the heir in favour of legatees, but not against a devisee; as he is equally an object of the testator's favour. In that case, if there is a deficiency in the personal assets, the legatees must abate in proportion. 1P. Wms. 678. 5 Ves. 359. If a person mortgages an estate and dies, the heir at law shall have the estate exonerated, or the mortgage discharged by the personal representative out of the personal estate, provided it does not interfere with other debts and legacies, for the personal estate had been aug mented to that extent in consequence of the mortgage; for the same reason the heir at law shall not have the benefit of the personal estate to discharge a mortgage, which was not brought upon the estate by the testator or intestate. 2Cox's P. Wms. 664. 2 Bro. 101. If a testator, having mortgaged an estate, devise it by will, and permit other lands to descend to his heir, the devisee shall have the estate devised to him exonerated out of the personal estate, and if that is insufficient, by the heir at law. 2 Atk. 430. Chitty. (47) As to legacies in general, Toller, 299 to 350. and Roper on Legacies. rec WO A legacy is a bequest, or gift, of goods and chattels by testament; and the person to whom it was given is styled the legatee: which every person is capable of being, unless particularly disabled by the common law or statutes, as traitors, papists, and some others. This bequest transfers an inchoate property to the legatee; but the legacy is not perfect without the assent of the executor: for if I have a general or pecuniary legacy of 100l. or a specific one of a piece of plate, I cannot in either case take it 48 For in him all the chattels are without the consent of the executor. (y) vested; and it is his business first of all to see whether there is a sufficient fund left to pay the debts of the testator: the rule of equity being, that a man must be just, before he is permitted to be generous; or, as Bracton expresses the sense of our ancient law, (z) “ de bonis defuncti primo dedu "cenda sunt ea quæ sunt necessitatis et postea queæ sunt utilitatis, et [513] "ultimo quæ sunt voluntatis." And in case of a deficiency of as 49 sets, all the general legacies must abate proportionably, in order to pay the debts; but a specific legacy (of a piece of plate, a horse, or the like), is not to abate at all, or allow any thing by way of abatement, unless there be not sufficient without it. (a) Upon the same principle, i the legatees had been paid their legacies, they are afterwards bound to refund a rateable part, in case debts come in, more than sufficient to exhaust the residuum after the legacies paid. (b) And this law is as old as Bracton and Fleta, who tell us, (c) si plura sint debita, vel plus legatum fuerit, "ad que catalla defuncti non sufficiant, fiat ubique defalcatio, excepto regis "privilegio." If the legatee dies before the testator, the legacy is a lost or lapsed legal cy, and shall sink into the residuum. 50 And if a contingent legacy be left to any one; as when he attains, or if he attains, the age of twenty-one; and he dies before that time: it is a lapsed legacy. (d) But a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy, an interest which commences in præsenti, although it be solvendum in futuro: 51 and if the legatee dies before that age, his representatives shall 2 l. 2. c. 26. y Co. Litt. 111. Aleyn. 39. (48) In Deeks v. Strutt, 5 T. R. 690. it was determined that no action can be maintained in a court of law to recover a legacy, though it had before been decided that an action of assumpsit might have been brought against an executor in his own right, if in consideration of assets in his possession, and of forbearance, he had promised to pay the legatee the legacy. Cowp. 284. 289. But if the executor assent, an action at law may be maintained for a specific legacy, as for a lease or any other chattel. 3 East, 120. But he is not bound to pay the legacies without security from the legatees to refund, if any outstanding debts should appear. Chan. C. 144. 257. If he is wasting the estate, he may be compelled to give security for the payment of legacies. 1 Chan. Chitty. Rep. 257. (49) Toller, 339. (50) Unless otherwise provided by the will. But it will not be transmissible in such circumstances to the representatives of the legatee, though it be given to him, "his executors, adminis trators, or assigns," 17 Ves. 347. 4 Ves. 418. unless it appear that the testator so intended, as those are merely the usual words of annexation. See further, Toller, 171, 172. 238. 303, 4. 306. 357. 454. and see Roper on Legacies. (51) If the legacy be given when, or if the legatee attain a certain age, or to him at that age, the time is said to be annexed to the substance of the legacy, and it is not vested or transmissible to his representatives if the legatee die before that age; but if it is payable at that age, or when, or if he attain it, the time is said to be annexed to the payment only, and the legacy is vested and transmissible though he should die without ever arriving at that age. 2 Atk. 128. 1 Burr, 227. This is a trifling distinction, and understood or attended to by few testators who make their own wills. If the testator gives a legacy without referring the time to the payment, it will notwithstanding be vested, if he gives the interest until that time, because that will shew his intention, 2 Bro. 3. 2 P. Wms. 612. n. 1., and the legatee's legal representatives are entitled to it immediately on his death. 1 Ves. 118. But this rule will not extend to a maintenance less than the interest. 3 Bro. 416. But if lands are devised, when the devisee attains a certain age, |