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But in Kansas, he is not required to pay the taxes, unless the land is needed for the payment of debts. Reading v. Wier, 29 Kan. 429. If the land is in the administrator's possession he should pay the taxes out of the rents, but if there are none, he may afterward be allowed the cost of redemption from tax sale. Cummings v. Bradley, 57 Ala. 224. Taxes on property mortgaged to the estate should be paid by the executor, if the mortgagor neglects to do so. Whittaker v. Wright, 35 Ark. 511. In California, taxes assessed on land in the administrator's possession pending the administration must be paid by him, and must be presented for that purpose like other debts. People v. Olvera, 43 Cal. 492.
Repairs, &c.—Cultivation of land. In general, where the will gives the executor no power over the real property, he cannot be allowed for insurance or repairs paid by him. Walker's Appeal, 116 Pa. St. 419; Cornwell v. Deck, 2 Redf. 87. And repairs and insurance paid by the executor cannot be credited to him as payments made to the devisees in the absence of any agreement between them. Aldridge v. McClelland, 9 Stew. (N. J.) 288. But they are allowable in his account, if necessary to preserve the property until the executor can execute the testamentary power of sale, Howard v. Francis, 3 Stew. (N. J.) 444; or where the real property is required for the payment of debts. Kimball v. Sumner, 62 Me. 305. And even taxes, repairs, and insurance of a house occupied by the widow and children as a dwelling may be allowed. Matter of Rolph, 2 Connoly 191. And where the executor is authorized by the will to make repairs, he may have allowance for expenses incurred in good faith, although they exceed the value of the improvement, Estate of Millenovich, 5 Nev. 161; or although the decedent's title to the land proves
defective. Pinneo v. Goodspeed, 120 Ill. 524. Plate glass may be allowed as a necessary repair, where real estate is given to the executor in trust. Hancox v. Meeker, 95 N. Y. 528. But the power of a testamentary trustee to make repairs will not include large and costly improvements. Matter of Odell, 1 Connoly 9. And the Probate Court has no power to authorize the making of such improvements by an executor as such. Burke v. Coolidge, 35 Ark. 180.
In some states the executor is allowed the expense of cultivating crops on the testator's plantation, Byrd v. Wells, 40 Miss. 711; Bautz v. Bautz, 52 Md. 686; Pinckard v. Pinckard, 24 Ala. 250; even including his own labor and services, Wattles v. Hyde, 9 Conn. 10; but not for his personal clothing, even under a direction in the will to cultivate the land. Johnson v. Henagan, 11 S. C. 93. And his expenses in cultivating the crop are not chargeable against the crop itself, but only against the income. Hardee v. Cheatham, 52 Miss. 41.
Payment and preference of debts. American note on p. *868, ubi infra.
Taxes in lifetime of decedent-Debts due to the public. The statutory priority of taxes belongs to those assessed in the lifetime of the deceased, Griswold v. Griswold, 4 Bradf. 216; Coleman v. Coleman, 5 Redf. 524; and not to taxes assessed after his death, Wilcox v. Smith, 26 Barb. 316; and the preference of taxes does not include an assessment, although assessed in the lifetime of the deceased, and payable as a personal debt out of his personal estate. Seabury v. Bowen, 3 Bradf. 207. And it is subject to the lien of an existing mortgage made by the deceased to secure debts, Commissioners . Greenwood, 1 Desaus. 450; as well as to the widow's dower and to existing judgment liens. Hargrove v. Lilly, 69 Ga. 326. And the statutory priority does
not include taxes that have been collected by a deceased collector and not accounted for. Spilman v. Payne, 84 Va. 435.
Debts due to the state were held to be preferred by the common law prior to the statute, in Maryland. Murray v. Ridley, 3 H. & McH. 171. The statutory priority of "debts due to the public" is subject to existing liens. Baxter . Baxter, 23 S. C. 114. Such debts include the liability of a surety on the bond of the state treasurer, Id.; and even, in Georgia, a debt due to a railroad owned by the state and operated
as a means of a state revenue, State v. Dickson, 38 Ga. 171; and, by express statute, debts to a state bank. Mahone v. Central Bank, 17 Ga. 111; Central Bank v. Little, 11 Id. 346. But such debts are not preferred without express statute. Bank of South Carolina v. Gibbs, 3 McCord 377; Fields v. Wheatley, 1 Sneed 351. And the statutory priority of debts due to the public from decedent's estates does-not apply in the case of an assignment by the debtor under the insolvent laws. State v. Harris, 2 Bailey 598.
Of the payment of debts of record-1. Judgments. 2. Decrees. 3. Statutes and recognizances.t
Next in priority, in the order prescribed for payment of debts, come those which are debts of record (g). And debts of this nature are of two sorts, to which belongs a subdivision of precedence.-1. Judgments in courts of record; 2. Recognizances and statutes.
to recognizances and other debts of record, as well as
Judgments in courts of record (r), whether obtained compulsorily against the testator or intestate, or confessed by him, their precedence are in a precedent degree, not only to all debts, but to recognizances and statutes (though the latter are also to specialties. debts of record), and must be preferred by the executor or administrator, whether prior in point of time or not (s). Therefore, he must discharge a later or more puisne judgment in preference to a statute or recognizance in time precedent (t).
The next consideration is, what shall be considered judgments, so of as to be entitled to this precedence. The privilege is judgments are en- not confined to judgments of the Supreme Court of Judicature, but extends itself to juggments in all other
titled to this pre
courts of record.
A judgment, which is entered up against the testator or intestate after his death, when that happens between verdict and judgment (u), shall be considered as if entered up in his lifetime, and entitled to priority of payment by his executors or administrators accordingly (x). But where his death happens between interlocutory and final judgment, it is otherwise: for such judgment is not to be entered against the testator or intestate, but against his executor or adminis
+ See American note at end of this Section.
(9) Wentw. Off. Ex. 265, 14th ed. (r) I. e., judgments docketed or entered according to the statutes now in force. See post, p. *862, note (7).
(8) Wentw. Off. Ex. 266, 270, 14th edit. 1 Roll. Abr. 926. Exors. (R.) pl. 1, 2.
(t) Wentw. Off. Ex. 267, 14th ed.
(u) R. S. C. 1883, Ord. XVII., r. 1, which on this point is founded on s. 139 of the Common Law Procedure Act,
1852, which was a re-enactment of 17 Car. II. c. 8, s. 1, now repealed.
(x) Burnet . Holden, 1 Lev. 277. Colebeck v. Peck, 2 Lord Raym. 1280. It is presumed that these cases, which were decided on 17 Car. II., will be authorities on the construction of the latter portion of Ord. XVII. r. 1, notwithstanding the words of Ord. XLI. rr. 3 and 4, which are to the same effect as r. 56 of the Rules of Hilary Term, 1853.
trator (y). And it is the same where the death happens after the writ of inquiry is executed, and before final judgment (2).
Formerly, a judgment signed after the testator's death, at any time during the term in which he died, or the subsequent vacation, was, by relation, a judgment of the first day of the term (a), and therefore it was considered that, if the defendant died after the first day of the sittings and before the trial, the case was within the remedy of the stat. 17 Car. II. c. 8 (aa). But now, by R. S. C. 1883, Ord. XLI. r. 3, it is provided that where any judgment is pronounced by the court or a judge in court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the court or a judge shall otherwise order, and the judgment shall take effect from that date: Provided that by special leave of the court or judge a judgment may be ante-dated or post-dated. And by r. 4 it is provided, that in all cases not within rule 3, the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that day (b).
A judgment in a foreign country is considered, in our courts, merely as a debt by simple contract (c). And it is settled that an Irish judgment is not, since the Union, entitled to priority as an English judgment (ɗ).
what are not.
Effect of judg ments against ex
*A judgment against the executor or administrator himself is not. to be considered within the same class as those which are recovered against the deceased (e). Such a judgment stands altogether on a different footing. It may be briefly stated in this place, that, with respect to other creditors of the deceased, a creditor, who has obtained a judgment against the executor, has no priority, except with regard to debts of equal degree with that upon which he has obtained judgment (ƒ). Among such,
(y) Weston v. James, 1 Salk. 42. 2 Saund. 72 r, 6th edit. 1 Com. Dig. Pleader (2 D. 9). Smith v. Eyles, 2 Atk. 386, by Lord Hardwicke.
(2) Goldsworthy . Southcott, 1 Wils. 243.
(a) Bragner v. Langmead, 7 Term. Rep. 20.
(aa) Jacobs v. Miniconi, 7 T. R. 31. (b) See ante, p. *782.
(c) Dupleix v. De Roven, 2 Vern. 540. Walker . Witter, Dougl. 1.
(d) Harris v. Saunders, 4 B. &. C. 411. Ferguson v. Mahon, 11 A. & E. 179 that is no priority against English assets; for a foreign judgment would be allowed, on an administration here, any priority which it had by the law of the country under whose grant foreign assets have been remitted to England. (e) Wentw. Off. Ex. 270, 14th edit. (f) And this is so notwithstanding the provisions of s. 10 of the Judic. Act, 1875, which affects only the rights
his debt is allowed the precedence, because the executor ought to pay that creditor first who uses the first diligence (g). Therefore, the executor may plead in bar to an action by a simple contract creditor, that there is a judgment unsatisfied which another simple contract creditor has obtained against him, the executor, and that it will exhaust the assets to satisfy that judgment: But such a plea is not allowable in an action by a creditor of superior degree, as upon a bond of which the executor had notice, or a judgment which has been docketed or entered (h). It must, however, be observed, that, as between the executor himself, and the creditor who has obtained judgment against him, such judgment (except in the instance of judgment of assets in futuro) must be satisfied, at all events, without reference to the state of the assets, or the claims of superior creditors: for, if the estate of the deceased is insufficient to satisfy it, the executor may be compelled to do so de bonis propriis (i).
*If a judgment be satisfied, and is only kept on foot to wrong other creditors; or if there be a defeasance of the judgment yet in force; then this judgment will not avail to keep off other creditors from their debts (4).
Stat. 23 & 24 Vict.
c. 38, s. 3: judgeted to have no
ments not dock
It is enacted by stat. 23 & 24 Vict. c. 38, s. 3, "that no judgment, which has not already been, or which shall not hereafter be, entered or docketed under the several Acts now in force (1), and which passed subsequently to the stat. 4 & 5 W. & M. c. 20, so as to bind lands, tenements and hereditaments, as against purchasers, mortgagees or creditors, shall have any preference against heirs, executors, or administrators in their administration of their ancestors', testators' or intestates' estates."
It has been held, in conformity with the case of Gaunt v. Taylor (m), decided on 4 & 5 W. & M. c. 20, that the statute applies only to judg ments against the testator or intestate, and not to judgments obtained against the executor or administrator (n).
of the class of secured creditors as conflicting with the class of unsecured creditors, and does not affect the rights inter se of the members of those classes: Re Maggi, 20 C. D. 545.
(g) Ashley v. Pocock, 3 Atk. 208. Dollond v. Johnson, 2 Sm. & Giff. 301.
(h) See infra.
(i) See infra, Pt. V. Bk. II. Ch. I. Abbis v. Winter, 3 Swanst. 579, note.
(k) Wentw. Off. Ex. 268, 14th edit. See infra, Pt. V. Bk. II. Ch. I.
() Viz., stat. 1 Vict. c. 110, s. 19. Stat. 2 & 3 Vict. c. 11. Stat. 3 & 4 Vict. c. 82, and stat. 18 & 19 Vict. c. 15. (m) 3 M. & Gr. 886.
(n) Jennings v. Rigby, 33 Beav. 198. Re Williams' Estate, L. R. 15 Eq. 270. In which case it was decided by Wickens, V.-C., that the effect of the stat.