1. Funeral charges (18), expenses of probate, or taking out letters of administration".

2. Debts due to the king (19), by record (20), or specialty (21).

3. Forfeiture for not burying in woollen'; debts due to the post-office, not exceeding 57.*; debts due from an overseer of the poor, by virtue of his office'.

4. Debts by mortgage; by judgments in the Court of King's Bench, Common Pleas, and Exchequer, doggeted (29) according to the directions of stat. 4 & 5 W. & M. c. 30); by judgment in other courts of record; by decrees in courts of equity"; (23) according to their respective pri

orities.

5. Recognisances at common law; statutes merchant and staple; and recognisances in the nature of statutes staple, pursuant to stat. 23 H. 8. c. 6. (24).

6. Arrears of rent due at the death of the testator or intestate, either on a parol lease (25) or lease by deed (26); debts by specialty, as bonds (27); damages upon covenants broken (28), &c.

7. Debts by simple contract, as bills of exchange (29), promissory notes, &c.

8. Legacies, &c.

hi Roll. Abr. 926. (S) pl. 1. Dr. &

Stud. Dial. 2. c. 10.

iStat. 30 Car. 2. c. 3. s. 4.

Stát. 9 Ann, c. 10. s. 30.

1 Stat. 7 G. 2. c. 38. s. 3.

m Symmes v. Symonds, 1 Bro. P. C, 66.

n Searle v. Lane, 2 Vern. 88.

o 4 Rep. 59 b. 60 a. 1 Rol. Abr. 925. 5 Rep. 28 b.

(18) In strictness no funeral expenses are allowed against a creditor except for the coffin, ringing the bell, parson, clerk, and bearers' fee; but not for the pall or ornaments. Per Holt C. J. in Shelley's case, Salk. 296. The usual method is to allow 51. Bull. N. P. 143. This sum was allowed by Lord Hardwicke C. J. in Smith v. Davis, Middlesex Sittings after M. T. 10 G. 2. MSS. But if there are assets, the allowance shall be according to the estate and degree of the deceased. In Stagg v. Punter, 3 Atk. 119. the testator having desired to be buried at a church 30 miles distant, and it not being clear that there would be a deficiency, Lord Hardwicke C. allowed 601. for funeral expenses. So in Offley v. Offley, Prec. Ch. 26. 600l. were allowed in respect of the testator's quality, and his having been buried in his own country.

(19) See the notes from (19) to (29) in the following pages.

(19) The king, by his prerogative, shall be preferred by execus tors in satisfaction of his debt before any other. 2 Inst. 32.

(20) Fines and amerciaments, in the king's courts of record, are debts of record. Went. Off. Exec. ch. 12.

(21) By stat. 33 H. 8. c. 39. it is enacted, "that all obligations and specialties for any cause concerning the king shall be. taken domino regi, and shall be of the same force and effect as a statute staple."

(22) At common law, executors and administrators were bound at their peril to take conusance of debts of the testator upon record*. Hence to an action on a judgment recovered against testator or intestate, executors or administrators could not plead, that they had exhausted the assets in payment of debts of an inferior nature without notice of the judgment. To obviate the mischiefs to which personal representatives were liable, from the difficulty of finding such judgments, the stat. 4 & 5 W. & M. c. 20. s. 2. directs, "that the proper officers of the courts of common pleas, king's bench, and exchequer, shall make a dogget of all judgments entered in the respective courts." The mode in which the dogget is to be made, is detailed in the second section; and by s. 3. "judgments not doggeted as the second section directs, shall not have any preference against executors and administrators in the administration of their testator's or intestate's estates." The construction which has been put on this section is, that judgments not doggeted are thereby placed on a level with simple contract debts. Hickey v. Hayter, 6 T. R. 384. Hence, to an action on a simple contract debt of testator or intestate, the personal representative cannot plead an outstanding judgment recovered against testator or intestate, in C. B., B. R., or Exchequer, if it has not been doggeted as the statute directs. Steele v. Rorke, 1 Bos. & Pul. 307.

If a judgment be satisfied, or only kept on foot to injure other creditors, or if there be any defeasance of the judgment yet in force, then the judgment will not avail to keep off other creditors from their debts. Went. Off. Exor. c. 12.

Between one judgment and another, precedency or priority of time is not material, but he who first sueth the executor must be preferred, and before execution sued, it is at the election of the executor to pay whom he will first. Went. Off. Exor. c. 12.

(23) It is now become the established doctrine, that a decree of the Court of Chancery is equal to a judgment in a court of lawt: and where an executrix of A., who was greatly indebted to divers persons, in debts of different natures, being sued in chancery by some of them, appeared and answered immediately, admitting their demands, (some of the plaintiffs being her own daughters,) and other of the creditors sued the executrix at law, where the decree not being pleadable, they obtained judgments; yet the decree of the Court of Chancery, being for a just debt, and having a real priority in point of time, (not by fiction and relation to the first day Littleton v. Hibbins, Cro, Eliz. 793. † 3 P. Wms. 401. n. (F.).

of term,) was preferred in the order of payment to the judgments; and the executrix protected and indemnified in paying obedience to such decree, and all proceedings against her at law stayed by injunction. Morrice v. The Bank of England. Decreed first at the Rolls by Sir Joseph Jekyll, Aug. 1735, which decree was affirmed by Lord Talbot C.* Nov. 1736, and Ld. Talbot's decree was afterwards affirmed in parliament†, May 24, 1737. See also Shafto v. Powell, 3 Lev. 355.

(24) This must be understood of recognisances and statutes forfeited, where the recognisances are for keeping the peace, good behaviour, &c. and the statutes are for peforming covenants, &c. A recognisance not enrolled was considered in Bothomley v. Fairfax, 1 P. Wms. 334. as a bond (the sealing and acknowledging of the recognisance supplying the want of delivery), and to be paid as a specialty debt.

(25) Arrears of rent on a parol lease, which is determined, are in equal degree with a bond debt; because the contract remains in the realty, though the term be determined. Newport v. Godfrey, 3 Lev. 267. and 2 Ventr. 184. See an exposition of this case by Holt C. J. in Cage v. Acton, Ld. Raym. 516.

(26) A debt due for rent reserved upon a demise by deed, or by parol, is in equal degree with a bond debt. Gage v. Acton, Carth, 511.

(27) A bond with a penalty conditioned for the payment of a less sum of money on a day, not arrived at the death of testator, may be pleaded by his executor as a specialty debt §, as well as a forfeited bond; but there is this distinction between them, that in the case of a bond forfeited, the penalty is the legal debt, and assets may be covered to that amount; but in the case of a bond not forfeited, as the executor by discharging it may save the penalty, the assets can be covered only to the amount of the sum mentioned in the condition. Where there are several debts by specialty, all due and payable at the death of the testator, if suit is not commenced by any of the creditors, and notice thereof given to the executor, he may give the preference to whom he pleases, and if he be a creditor himself, he may pay himself first. Went. Off. Exor.

c. 12.

Any voluntary bond is good against an executor or administrator, unless some creditor be thereby deprived of his debt. Indeed, if the bond be merely voluntary, a real debt, though by simple contract only, shall have the preference; but if there be not any debt, then a bond, however voluntary, must be paid by an executor. (28) Covenants running with the land are binding on the executors, although not expressly named. See Went. Off. of Exors. p. 178. ed. 1763.

(29) See Yeomans v. Bradshaw, Carth. 373.

Ca. Temp. Talb. 217.

+ 4 Bro. P. C. 287. ed. Fo. 2 Bro.

P. C. 465. Tomlin's ed.

Brown v. Holyoak, Barn. 290.

VOL. II.

G

§ Lemun v. Fooke, 3 Lev. 57.

Bank of England v. Morrice, Str.

1029.

VI. Admission of Assets (30).

WHILE an executor is passive, he is chargeable only in respect of the assets; but if he promises to pay a debt of the testator at a future day, he thereby makes it his own debt, and it shall be satisfied by his own goods.

A judgment against an executor by default is an admission of assets to satisfy the demand; and if a fi. fa. be sued out on such judgment, and the sheriff cannot find goods of the testator sufficient to answer the demand, the sheriff may return a devastavit.

The preceding case has been considered as a leading case on this subject: hence, where A. having executed a bond for the payment of a sum of money at her death; and the defendant having brought an action on the bond against the plaintiff as the executor of A. who pleaded non est factum, which was found against him, and judgment thereon: on a bill filed by the plaintiff to have the bond and judgment set aside, Lord Hardwicke C. being of opinion, that the bond was good, it became a question, whether the plaintiff was not entitled to relief, on the ground that there was a deficiency of assets. Lord Hardwicke decided, that the plea of non est factum, and verdict thereon, amounted to an admission of assets; and that the case was the same with the preceding case of a judgment by default.

So where in debt in the detinet against defendant' (as ex

o Per Yelverton J. in Goring v. Goring, Yelv. 11.

p Rock v. Leighton, from Holt's MSS. 3 T. R. 690. Salk. 310, S. C. but not accurately reported..

q Ramsden v. Jackson, 1 Atk. 292.

r Skelton v. Hawling, 1 Wils. 258, and MSS. See also 1 Saund. 219. d. where this case is correctly stated by Serjt. Williams, who examined the roll.

(30) All sperate debts, mentioned in the inventory, shall be deemed assets in the executor's hands; but the executor may discharge himself by shewing a demand and refusal of them. Shelley's case, per Holt C. J. Salk. 296. In the inventory, which the defendant had exhibited in the ecclesiastical court, were inserted several debts due and outstanding, which defendant charged herself with when received or recovered: Lord Hardwicke C. J. put the defendant on proof, that she could not recover those debts; for she ought in her inventory to have set forth which debts were sperate and which desperate. The defendant proved by a witness who went to demand several of them, that he could not recover them; and accordingly they were allowed as desperate. Smith v. Davis, Middlesex Sittings after M. T. 10 G. 2. MSS.

etutor of A. administratrix of B.) upon a judgment by default, obtained by plaintiff against A. as administratrix, suggesting that goods of the intestate had come to the hands of A. as administratrix, which she had wasted; defendant pleaded, 1. Non detinet, on which issue was joined; 2dly, that defendant had fully administered the goods of A. Replication, that the defendant had goods of A. sufficient to satisfy, &c. and issue. The jury on the last issue found assets of A. in the hands of defendant. On the other issue, the plaintiff produced the judgment by default against A., on which he relied as evidence of assets admitted by A., and a devastavit by A. Lee C. J. (delivering the opinion of the court) said, that he could not do it better than in the words of Holt C. J. in Rock v. Leighton. Having read that case from Holt's notes, he observed, that it appeared from that case, that if an executor will not take advantage by pleading, but suffers judgment to go by default, such judgment is an admission of assets, and is as strong against an execu tor, as if assets were found by verdict on a plene administravit; and, notwithstanding the objection, which had been raised on the ground of the statutes 30 Car. 2. c. 7. (31) and 4 & 5 W. & M. c. 24. s. 12. he was clear, that the action in the case then before the court was well brought.

On the authority of the preceding cases of Rock v. Leighton, Ramsden v. Jackson, and Skelton v. Hawling, it was holden', that where an executor (to an action of debt on bond) had pleaded payment, which was found against him, and judgment accordingly, it operated as an admission of as

s Erving v. Peters, 3 T. R. 695.

(31) By stat. 30 Car. 2. c. 7. s. 2. (made perpetual and enlarged by 4 & 5 W. & M. c. 24. s. 12.) "The executors and adminis"trators of executors of their own wrong, or administrators who "have wasted and converted the assets of the deceased to their "own use, shall be chargeable in the same manner as their testa"tor or intestate would have been if living." A doubt having arisen upon the preceding clause, whether it extended to the executors and administrators of any executor or administrator of right, who, for want of privity, were not before answerable for the debts due from the first testator or intestate, although such executor or administrator of right had been guilty of a devastavit or conversion, it was enacted by stat. 4 & 5 W. & M. c. 24. s. 12. “that the exe"cutor and administrator of such executor or administrator of right, "who should waste or convert to his own use the estate of his tes"tator or intestate, should be chargeable in the same manner as "his testator or intestate would have been."