bishop, within three months of the avoidance of the benefice, directs the diocesan surveyor to inspect and report to him what sum is required to make good the dilapidations to which the estate of the late incumbent is liable, the executors or administrators of such late incumbent having a right of entry with their surveyor upon the premises of the vacated benefice until the final settlement of the question of dilapidations. The surveyor sends a copy of his report (when made) to the new incumbent, and also to the executors and administrators of the late incumbent, and to this report it is competent to such executors and administrators, as well as to the new incumbent, within one month's time (t), to state in writing their objections and transmit them to the bishop. The bishop shall in uncontested cases, as soon as conveniently may be after the time for the transmission of objections has expired, and in contested cases after consideration of the whole matter, make an order stating the repairs and their cost for which the executors or administrators of the late incumbent are liable, and shall send a copy of such order to the new incumbent, another copy to such executors or administrators, and a third copy to the registrar of the diocese (u). The sum stated in the order as the cost of the repairs, is a debt due from the executors or administrators of the late incumbent, and is recoverable as such at law or in equity (x). The sum so stated in the order made by the bishop as the cost of the repairs, is a debt payable to the new incumbent out of the assets of the late incumbent pari passu with the debts of his other creditors (y). Payment of lega cies before contingent debts, or debts of which an executor has no notice. Avery important question arises with respect to contingent debts; viz., whether an executor or administrator can pay legacies, or deliver over a residue, where there is an outstanding covenant, or like obligation of the testator, which may or may not be broken hereafter: And a further question occurs, connected in some degree with the present inquiry, viz., whether, under any circumstances, an executor can be allowed payments made to legatees, as against creditors of whose claims he had no notice. But it will be more convenient to consider these points hereafter, together with the subject of the Payment of Legacies generally (z). (f) The bishop may, however, if he thinks fit, for special reasons, receive objections at a later period, sect. 33. (u) Sects. 34, 35. (x) Sect. 36. (y) Re Monk, 35 C. D. 583. (2) Post, Pt. III. Bk. III. Ch. IV. § I. executor de son tort. It may be proper, in conclusion, to consider the subject of the Priority of debts priority of the debts of the deceased with reference to with respect to an the character of an executor de son tort. It has appeared in a former part of this work, that if a creditor brings an action against such an executor, the defendant may give in evidence, under a plea of plene administravit, payments by himself of just debts of the deceased which have exhausted all the assets which have come to his hands (a), although it *will afford him no defense, that after action brought and before plea pleaded, he delivered over such assets to the rightful executor or administrator (b). Nevertheless, he is justified, even after action brought, in applying the assets which are in his hands to the payment of a debt of a superior degree. Thus in the case of Oxenham v. Clapp (e), the plaintiff declared in assumpsit against the defendant as executrix for work and labor done by him as the attorney of the deceased: The defendant pleaded, that since the exhibiting of the bill she had exhausted the assets which had come to her hands in the payment of a bond debt of her testator: The plaintiff replied, that the defendant was executrix of her own wrong, that she had never been called on to pay, nor had paid the money due upon the bond, and that at the time of exhibiting the bill she had sufficient assets to satisfy the plaintiff: The defendant's rejoinder merely repeated the allegation in the plea, that she had paid the money due on the bond: Whereupon the plaintiff demurred; and, after argument, the Court of K. B. gave judgment upon the demurrer for the defendant. However, Lord Tenterden observed in this case that he was not prepared to say, that if it had been alleged that the payment had been voluntary, the defendant could have justified paying a debt of equal degree with that of the plaintiff because that might have been taking an undue advantage of her own wrong. It may be inferred from that which has been shown in this section with respect to a rightful executor, that when it is laid down that an executor de son tort may defend himself, in an action by a creditor, by showing that he has applied all the assets come to his hands in the payment of debts, it must be intended that such debts were of equal or superior degree to those upon which the action is brought (d). (a) Ante p. *218. (b) Ante, p. 219. + Payment of debts- When to be made. In most of the United States the per (c) 2 B. & Adol. 309. (d) 2 Black. Comm. 507, 508. sonal representative is allowed one year after issue of letters to him within which to pay the debts of the deceased. As to this, see Limitation of actions, ubi infra, vol. 3. The payment of debts must, in general, precede the distribution to legatees or next of kin, and executors will become liable to creditors for any loss occasioned by their disregard of this rule, State v. Roth, 47 Ark. 222; McIntosh e. Hambleton, 35 Ga. 95; Dean 2. Partis, 11 Ala. 104; although the debts are foreign debts, De Sobry v. De Laistre, 2 Harr. & J. 224; and although the inability of the estate to pay debts is due to subsequent events, such as the outbreak of civil war, McIntosh. Hambleton, ubi supra; and even, it has been held, although they have settled their account and obtained a discharge from the Probate Court. Thomas v. Riegel, 5 Rawle 266. But they will not be liable for such payment made by order of the court to a residuary legatee, although the order was made on their own mistaken representations as to the sufficiency of the estate. Witters. Sowles, 32 Fed. Rep. 130. So, the rights of resident creditors to have land of the deceased sold for the payment of his debts will be preferred to the claims of heirs for whose benefit a bill has been filed by a foreign administrator to enforce a vendor's lien of the intestate against the land. Bonnell . Holt, 89 Ill. 71. What debts are payable-Order for payment. An executor or administrator will be allowed credit in his account for the payment of lawful debts. Except where the statute requires formal allowance (See American note, p. *881, ubi infra), an order of the court for payment is not necessary. In New York, the surrogate is by statute expressly authorized to make such order, Code C. P. § 2717; and the order may be made on the application of an assignee of the creditor, as well as of the origi nal creditor. Estate of Moderno, 28 Abb. N. C. 57. Disobedience to such order is a breach of the administration bond, Thayer v. Clark, 48 Barb. 243; and renders the administrator individually liable to the creditor, in Michigan. Palm's Appeal, 44 Mich. 637. In an action on the bond the order of the Probate Court is conclusive as to the debt. Thayer v. Clark, ubi supra. Where a debt is barred by the Statute of Limitations, the executor may be injoined from paying it. Butler v. Johnson, 111 N. Y. 204, revg. 44 Hun 206. But if he pays such debt in good faith and without objection of any party interested in the estate, he may be allowed for it. Ritter's Appeal, 23 Pa. St. 95. And such payment has been held good, even where it was made in disregard of a notice from a devisee requiring the executor to plead the statute or give the devisee an opportunity to set up the defense. Payne v. Pusey, 8 Bush 504. So, he may be allowed for the payment of a gaming debt without knowledge of its character. Coffee v. Ruffin, 4 Coldw. 487. But where he pays without protest a doubtful claim (United States legacy tax) afterward adjudged to be invalid, he will be personally responsible. Matter of Peyser, 5 Dem. 244. Provision is made in many states for the payment or protection of contingent debts, or debts not yet due. See American note, p. *881, ubi infra. And the court may, in a proper case. direct the retention of funds to provide for such a debt, e. g., for the contingent deficiency on a mortgage, Williams v. Eaton, 3 Redf. 503; or may modify an order for payment of debts, so as to include a judgment rendered in the United States court after the original order for payment, which rendered the estate insufficient and made a pro rata payment necessary. Ames v. Slater, 27 Minn. 70. Executor's contracts. For the liability of the estate of the deceased, as well as the individual liability of the executor or administrator, on contracts made by him as such, see pp. *1661, et seq., ubi infra. Interest-Set-off. Debts of the deceased are to be paid with interest before any distribution is made to next of kin or legatees. Williams v. American Bank, 4 Met. 320; Bowers v. Hammond, 139 Mass. 360. And, in general, debts belonging to the preferred class are entitled to interest before debts of an inferior class are paid. Schultz's Appeal, 11 Serg. &. R. 182. If land is sold for the payment of debts, the interest is reckoned up to the return day of the order of sale. Ramsey's Appeal, 4 Watts 71. In some states where formal allowance of claims is provided for (see American note, p. *881, ubi infra) interest from the date of allowance included in the order for payment, Estate of Glenn, 74 Cal. 567; Mowry v. Peck, 2 R. I. 60; Bowen v. Evans, 70 Ia. 368; Estate of McCune, 76 Mo. 200; unless the estate is insolvent. Camp v. Grant, 21 Conn. 41. But see, as to the effect of a statute making the right to interest dependent on presentment within the year, where the delay was waived by the executor, Croninger v. Marthen, 83 Ky. 662. As to the availability, by way of setoff against debt due to the estate of the deceased, of claims which have been barred for want of due presentment, see American note, p. *881, ubi infra. And as to set-off generally against debts owing by or to the estate, see vol. 3, ubi infra. The negligent disregard of rights of set-off belonging to the estate of the deceased in making payment of the debts will render the personal representative responsible individually. Payment by note-Depreciated currency. Where payment of debts of the estate is made by the individual note of the executor or representative, it operates no discharge of the estate unless paid. Dunne v. Deery, 40 Ia. 251; Douglas v. Fraser, 2 McCord Ch. 103. But see, contra, Huss v. Rice (Ky.), 17 S. W. Rep. 869. And as to the right to credit in his account for such payment, see Estate of Dunne, 58 Cal. 543; as to the personal liability created by such note, see, p. * 1661, n., ubi infra. And even where depreciated currency is received in payment and so accepted by the creditor, he cannot afterward revive the debt, Trammel v. Philleo, 33 Tex. 395; Caruthers v. Corbin, 38 Ga. 75; but the executor will only be credited with the value of the currency paid by him at the time of payment. Caruthers v. Corbin, ubi supra. The amount to be charged or credited in accounting will be considered more fully hereafter, p. *1759, n. Subrogation of executor. Where an executor or administrator advances money for the payment of claims, he may reimburse himself out of the fund afterward received, Dunson v. Payne, 44 Tex. 539; although the advances may be made (by widow) before letters issued. Jenks v. Terrell, 73 Ala. 238. He is entitled to credit therefor in his account, Rogers v. Weaver, 5 Ohio 536; and to be reimbursed after his removal, Chamberlin v. McDowell, 15 Stew. (N. J.) 628; and is subrogated to the creditor's rights as against the real property of the deceased, De Concilio v. Brownrigg (N. J. Ch.), 25 Atl. Rep. 383; Leddell v. McVicker, 6 Halst. 44; Clayton v. Somers, 12 C. E. Gr. 230; Gaw v. Huffman, 12 Gratt. 628; and such right is available as a defense to objections against the use of the rents for that purpose by an administrator pendente lite. Woolley v. Pemberton, 14 Stew. (N. J.) 394. The right to subrogation gives the executor in such case the position of the original creditor, and no better one, i. e., disallowed as a credit if it is disallowed as a claim, Meeker v. Swift, 45 Mo. Ap. 186; payable pro rata if the claim is a general debt, Byrd v. Jones, 84 Ala. 336; and preferred if it has such preference, Chamberlin . McDowell, 15 Stew. (N. J.) 628; or to a lien securing the debt paid, Kelly . Ball (Ky.), 19 S. W. Rep. 581; Furth v. Wyatt, 17 Nev. 180; although he was under no obligation to discharge it. Jefferson v. Edrington, 53 Ark. 558. So, where he has procured the mortgage to be assigned to a third person to secure such advance. Burnett v. Lyford (Cal.), 28 Pac. 855. So, children consenting to the payment of a mortgage debt out of personal property entitled to exoneration are subrogated for that purpose to the creditors' charge on the land. Pease v. Egan, 43 N. Y. S. R. 105. So, on payment of the widow's exemption out of lands sold for a mortgage debt, they are subrogated to the rights of the creditor against the personal property. McCord . Wright, 97 Ind. 34; Crowley &. Mellon, 52 Ark. 1. Where the representative has redeemed real property from a tax sale, he may even be subrogated to the preference belonging to the state. Matter of Le Baron, 3 Dem. 37. But a mortgagee who vol untarily pays the taxes cannot be subrogated to the rights which the executor would have had against assets in his hands if he had paid them. Leviness c. Cassebeer, 3 Redf. 491. But it is held in some states that where an administrator voluntarily pays a debt secured by a judgment or trust deed under the belief that the estate is sufficient, he will not be entitled to subrogation. Seaton v. Alcorn, 51 Miss. 72; Evans v. Halleck, 83 Mo. 376. So, where it is paid by a third person at the executor's request and under a misrepresentation of the executor that the estate was solvent. Win ston v. Young (Minn.), 53 N. W. Rep. 1015. Subrogation of surety. Where the administrator of a deceased surety pays the debt, the estate will be subrogated against the principal debtor as if the debt had been paid by the surety in his lifetime, Ward's Appeal, 100 Pa. St. 289; Partee v. Mathews, 53 Miss. 140; or if the deceased was indebted jointly with others, the administrator may have contribution against them. McWilliams v. Lea, 76 Ga. 838. So, if the heirs pay certain moneys for the maker of a note to procure the release of their intestate as indorser on the note, they will be subrogated to the rights of the holder of the note. Benedict v. Chase, 58 Conn. 196. So, if a surety of the decedent pays his debt, he will be entitled to subrogation against the estate, e. g., a joint bond, as a specialty creditor, Goodyear v. Watson, 14 Barb. 481; or as a judg ment creditor on a judgment rendered against both surety and intestate, Id.; or against the administrator and the heirs, as sureties or parties secondarily liable. Place v. Oldham, 10 B. Mon. 400. So, generally, on a payment for others who are entitled to be indemnified by the estate of the deceased. Campau v. Miller, 46 Mich. 148. But the surety on an administration bond must look first to the administrator as principal, before he can obtain relief against assets of the intestate. Hazen v. Durling, 1 Gr. Ch. 133. And the Probate Court cannot allow as a claim against the decedent's estate a debt paid by the administrator's surety on a judgment recovered by a creditor against the administrator and surety on the bond, although the surety by paying for his own protection the debt of the intestate (for which land had been sold) may be subrogated to the creditor's right to the purchase money. Werneke v. Kenyon, 66 Mo. 275. |