the rules of law as to the precedence of debts, by directing his executors to make an equal distribution of the assets among all his creditors (m). A question of no little difficulty is raised in Story's Conflict of With respect to Laws, § 524, viz., Suppose a debtor dies domiciled in foreign assets. England, and leaves assets in a foreign country by the law of which all debts stand in an equal rank, and administration is duly taken out in the place of his domicil, and also in the place of the situs of the assets. What rule is to govern in the administration of the assets? The law of the domicil? or the law of the situs? That eminent writer states his own opinion to be (in accordance with the decisions of the American courts, though at variance, as he admits, with that of many foreign jurists), that in regard to creditors the administration of assets of deceased persons is to be governed altogether by the law of the country where the executor or administrator acts, and from which he derives his authority to collect them. But in the case of Wilson v. Lady Dunsany (n), the Master of the Rolls (Sir J. Romilly) declined to adopt this opinion, and held that the personal assets of a testator must be administered on the principle of the law of his domicil. In that case the testator had died domiciled in Ireland, leaving personal assets partly there and partly in England; and, a question having arisen as to the priority of the claims of his creditors, his honor laid it down that he must treat *the case in the same way as if he were sitting in the Court of Chancery in Dublin. In Cook v. Gregson (o), where the testator had also died domiciled in Ireland, leaving assets both in Ireland and England, and the same executors in both countries, it was held by Kindersley, V.-C., that an Irish judgment had priority over English simple contract creditors, as against Irish assets remitted to England by the executors and being there administered: His honor said that if the executors in the two countries had been different persons, the duty of each would have been first to pay the debts owing in the country in which he was executor, and then he might send any surplus to the other country; and that the duty of the Irish executor was to pay the Irish debts first, according to their order of priority; and that, therefore, the Irish assets remitted here ought to be administered here as if they had remained and were being administered in Ireland. -It will be observed that in this case the Irish judgment creditor only sought to touch the Irish assets: And therefore it was unneces(m) Turner v. Cox, 8 Moo. P. C. 288. (0) 2 Drewr. 286. (n) 18 Beav. 293. sary to apply the law as laid down by the Master of the Rolls in Wilson v. Lady Dunsany: But the observations of the V.-C. appear to put the question as though it were rather dependent on the situs of the assets than on the domicil of the deceased (p). The view of the vice-chancellor seems to be the right one. Thus in the late case of Re Klæbe (q), it is laid down that if a man dies domiciled in England possessing assets in France, the French assets must be collected in France and distributed according to the law of France. If the French creditors are entitled according to that law to be paid in priority, that rule must be observed, because it is the lex fori and for no other reason. But if it should happen that a man died domiciled in France leaving assets in England, those assets can only be collected under an English grant of administration, and being so collected, must be distributed according to the law of England . . . the rule is, that all creditors are to be treated equally, subject to what priorities the law may give them, from whatever part of the world they come. In that case Mr. Justice Pearson, after referring to the cases of Cook v. Gregson (r), Eames v. Hacon (s), and Blackwood v. The Queen (t), so far as such cases bear upon this question, concludes his judgment by saying, "There seems to be some mistake in the case of Wilson v. Lady Dunsany (u): it is unfortunate that the case was ever reported." It should be observed, that by the constant rule of the Court of Chancery, a solicitor, in consideration of his trouble, Priority of soliciand the money in disburse for his client, has a right to tor's lien. be paid out of the duty decreed or fund recovered for the plaintiff, and a lien upon it, before the specialty creditors of the deceased plaintiff ; neither can his executor or administrator controvert this rule, by insisting upon applying the assets in a course of administration (~). (p) See Carron Iron Co. v. Maclaren, 5 H. of L. 455, 456, by Lord St. Leonards. And this view is borne out by the observations of Mr. Westlake in his work on Private International Law, 3rd edit. section 110, where he says that "every administrator, principal or ancillary, must apply the assets reduced into possession under his grant in paying all the debts of the deceased, whether contracted in the jurisdiction from which the grant issued, or out of it, and whether owing to creditors domiciled or resident in that jurisdiction, or out of it, in that order of priority which, according to the nature of the debts or of the assets, is prescribed by the laws of the jurisdiction from which the grant issued." (g) 28 C. D. 175. (x) Turwin v. Gibson, 3 Atk. 720. Lloyd v. Mason, 4 Hare, 132. crown. To all other debts of whatever nature, as well of a prior as of Debts due to the a subsequent date, such as are due to the crown by record or specialty, claim the precedence (y). So that if there be not come to the executor or administrator goods of greater value than will suffice for the satisfaction of these, he is not to pay any debt to a subject and if he be sued for any such, he may plead in bar of this suit that his testator or intestate *died thus much indebted to the king, showing how, &c., and that he hath not goods surmounting the value of that debt (z). But the debts due to the crown, which are so privileged, are confined to such as are due by matter of record or by specialty, &c. (a), (which are of the same nature; for by statute 33 Hen. VIII. c. 39, it is enacted, that all obligations and specialties, taken to the use of the king, shall be of the same nature as a statute staple). And, therefore, sums of money owing to the king on wood sales, or sales of tin, or other his minerals, for which no specialty is given, shall not be preferred to a debt due to a subject by matter of record (b). So, though fines and amercements in the King's Court of Record are clearly debts of record (c), and entitled to such preference, yet amercements in the King's Courts Baron, or Courts of his Honors, which are not of record, have no such priority (d): nor have fines for copyhold estate, nor money arising from the sale of estrays within his manors or liberties ; for these are not debts of record (e). So, also, the arrears of rent due to the crown, whether it be a feefarm rent, or a rent reserved on a lease for years, shall, it appears, be regarded in the light of a debt by simple contract (ƒ). Again, it was held, that a recognizance in the Court of Chancery by a guardian in the matter of a minor, is not to be considered a debt due to the crown (g). But it seems, that if the king's debt, and likewise that of a subject, be both inferior to debts of record, the king shall be preferred (h). (y) Magna Charta, c. 18, 2 Inst. 32. Littleton v. Hibbins, Cro. Eliz. 793. Swinb. Pt. 6, s. 16. Wentw. Off. Ex. 261, 14th edit. Com. Dig. Admon. (C. 2). (2) Wentw. Off. Ex. 261, 14th edit. Godolph. Pt. 2, c. 28, s. 3. (a) Wentw. Off. Ex. 262, 14th edit. Godolph. Pt. 2, c. 28, s. 3. Com. Dig. Admon. (C. 2). (b) Ibid. 3 Bac. Abr. 79, 80, tit. Exors. (L.) 2. (c) Godolph. Pt. 2, c. 28, s. 3. (d) Wentw. Off. Ex. 263, 14th edit. Com. Dig. Admon. (C. 2). 3 Bac. Abr. 80, tit. Exors. (L.) 2. (e) Ibid. (f) Com. Dig. Admon. (C. 2). Wentw. Off. Ex. 264, 14th edit.; but see infra, p. *869. (g) Ex parte Usher, 1 Ball & Beat. 199. (h) Bac. Abr. ubi supra, n. (u). By statute 55 Geo. III. c. 184, s. 45, the commissioners of stamps are authorized, in certain cases, to give credit for the *duties on probates and administration; and by s. 48, it is provided, that the duty for which credit shall be so given shall be a debt to the crown, and shall be paid in preference to any other debt whatsoever. 3. Next in order are certain specific debts, which are, by particular statutes, to be preferred to all others. Such were formerly forfeitures for not burying in woolen under the statute of Charles, now repealed by stat. 54 Geo. III. 3. Debts to which particular statutes give priority: c. 108; and such were debts for letters, not exceeding 5l., to the Post Office (i). to Again, by stat. 17 Geo. II. c. 38, s. 3, it is enacted, that if any overseer shall die before the expiration of his office, "his money due executors, or administrators shall, within forty days parish by overseers of the poor. after his decease, deliver over all things concerning his office to some churchwarden, or other overseer of the same place: and shall pay out of the assets left by such overseer all sums of money remaining due, which he received by virtue of his said office, before any of his other debts are paid and satisfied." Likewise, it was provided by statute 33 Geo. III. c. 54, s. 10 (k), that if any person appointed to any office by any friendly Officers of a society, and having in his hands any money, or effects friendly society. or securities belonging to the same, shall die, or become a bankrupt or insolvent, his executors, administrators, or assignees shall, within forty days after demand made by the order of any such society, or the major part of them assembled at any meeting, deliver all things belonging to such society to such persons as they shall appoint, and shall pay out of the assets or effects of such person all sums of money remaining due, which such person received by virtue of his said office, before any of his other debts are paid, and all such assets and effects shall be bound to the payment thereof accordingly. This provision of the statute preferring the claim of friendly societies to those of all other creditors, it should seem, is not favored (1): and it has been held to be confined to persons duly and formally appointed officers of the society; and that it does not extend. (i) 9 Ann. c. 13, s. 30. 2 Black. Comm. 511. Repealed by the stat. 1 Vict. c. 32. (k) Repealed by the stat. 10 Geo. IV. c. 56. (See the remarks of Lord Eldon in [*856] [*857] to any person to whom the money of the society has been paid as banker, or to whom the money has been lent upon security, paying interest (m). And money lent to any officer of the society duly appointed, or suffered to remain in his hands upon giving security, has been determined not to be within the preference given by the act; the preference being given only in respect of money which got into the hands of officers, independent of contract (n). Notwithstanding the censures which this enactment has met from eminent judges, it has, in substance, been continued in the subsequent Friendly Societies Acts, and is contained in that now in operation (38 & 39 Vict. c. 60, s. 15, sub-s. 7). By stat. 26 & 27 Vict. c. 57, special and minute provisions are made for the preferential payment of regimental debts, and Regimental debts. the distribution of the effects of officers and soldiers in Treasurer, &c. to sioners. case of death. Another instance may be adduced in the case of money due from the deceased as treasurer or collector to paving compaving commis- missioners under the Metropolis Act, 57 Geo. III. c. 29, s. 51 (local act), by which it was enacted, that the executors or administrators, &c., of any treasurer, collector, or other officer, &c., should out of the estate and effects pay the commissioners, &c., all such sums of money as had been collected by the deceased, and due to the commissioners, in preference to any other debt or debts (except debts due to the king's majesty). It may here be observed that the words of these acts are very Whether these large, sufficient, as it seems, to give to the debts, which debts have pre- are the subject of them, precedence to those due to the crown: but, perhaps, they would not be so cedence of the crown. construed (o). It may be convenient here to notice an important provision in section 10 of the Judicature Act, 1875, that "in the administration by the Court of the assets of any person who may die after the commencemant of this Act, and whose estate may prove to be insufficient for the payment in full of his debts and liabilities, and in the winding up of any company under the Companies Acts, 1862 and 1867, whose (m) Ex parte Lancaster Society, 6 Ves. 98. Ex parte Ashley, 6 Ves. 441. Ex parte Corser, ibid. Ex parte Ross, 6 Ves. 802. (n) Ex parte Stamford Society, 15 Ves. 280. Ex parte Buckland, Buck. 214. (0) 6 Ves. 99, by Lord Alvanley, in Ex parte The Lancaster Society. |