creditor on behalf of all the creditors, the judgment directs accounts to be taken of the debts, funeral and testamentary expenses, and of the portions of the estate which have come to the executor's hands, and of the portions outstanding and undisposed of, and directs the assets to be applied in payment of the liabilities in the order thereinafter mentioned, and orders the further consideration of the cause to be adjourned. The judgment is obeyed or worked out in chambers, and the chief clerk certifies, and after he has made his certificate the cause is usually ripe for hearing on further consideration, the nature of which will vary with the circumstances of the case. After the decree has been made the legal personal representative should not exercise any of his powers without the permission of the Court.

When the statement of claim against an executor in an administration Wilful suit alleges that he has committed wilful default, but the judgment at default. the trial gives no relief on that footing (the claim to such relief not being, however, dismissed), the Court can, at any subsequent stage of the proceedings, if evidence of wilful default is adduced, direct further accounts and inquiries to be taken and made on that footing. (In re Symons, Luke v. Tonkin, 21 Ch. Div. 757.) But in order to obtain relief on the footing of wilful default, it must be charged in the pleadings, and the plaintiff ought to be prepared to prove one or more cases of wilful default at the hearing. If these conditions are not complied with, owing to the plaintiff's ignorance of the wilful default, he might obtain leave from the Court to sue as for wilful default in a second action. (Lancing v. Gee, 10 Ch. Div. 715.) Defendants might (after an ordinary administration decree) bring a second action upon the wilful default without the leave of the Court.

The order in which the debts are paid is as follows: (1) funeral and Payment of testamentary expenses; (2) debts due to the Crown; (3) certain debts. statutory debts, as poor rates; (4) debts due on judgments obtained against the deceased and registered; (5) debts due on statutes and recognizances; (6) specialty debts, but now see 32 & 33 Vict. c. 46; (7) unregistered judgments against the deceased, and simple contract debts, pari passu; (8) voluntary bonds and covenants held by volunteers. The debts admitted are those which become due before the signing of the certificate of the chief clerk.

To acquire any priority a judgment against the deceased must be registered, otherwise it will have no priority over simple contract debts. (Van Ghelnie v. Nerwick, 21 Ch. Div. 189.)

A judgment obtained against the legal personal representative as such only gives the creditor (if more than one, in order of date of their judg ments) priority over other debts of the same degree. (Williams v. Williams, L. R. 15 Eq. 270; Hanson v. Stubbs, 8 Ch. Div. 154.) The same rule applies, although the deceased died insolvent. (Re Maggi, 20 Ch. Div. 545.)

Whether a holder (not for value) of a bill or note for which no consideration has been given is entitled to payment in an administration suit. like a creditor whose debt arises as a voluntary bond or covenant, is not quite settled. (Co. v. Barnard, 8 Hare, 310; Dawson v. Kearton, 3 Sm. & Giff. 191.)

An executor's right of retainer for his own debt, which does not extend Executor's to equitable assets, is not determined by an administration decree, but right of it is voided by the appointment of a receiver. See Richmond v. White, retainer. 12 Ch. Div. 361, which decides that the right is not lost by the fact of the moneys being paid into Court by a third person after administration decree. The right does not extend to real estate. (Walters v. Walters, 18 Ch. Div. 183.)

If the personal estate should prove insufficient for the payment of the debts, or the real estate is devised as the primary fund for their pay

Order of adminis tration.

New rules

as to procedure.

ment (which is a rare occurrence), and in various other cases, it may become necessary to have recourse to the real estate of the deceased, which the Court will administer for the purpose.

It is not necessary here to trace the successive stages by which land became assets for the payment of debts. But it should be noted that if the heir or devisee before action should convey the land for value, the land would cease to be liable in the hands of the purchaser. The vendor, in such case, would be personally liable. (Spackman v. Turnbull, 8 Surr. 253.) Whether the result would be similar if the heir or devisee merely made an equitable mortgage of the land, was, for a time, not settled, but now it is pretty clear that it would. (British Mutual Investment Company v. Smart, L. R. 10 Ch. 567.)

In the absence of directions by the deceased to vary the order, the order in which the property of the deceased is applied towards the payment of his debts is as follows: (1.) The general personal estate not specifically bequeathed; (2.) Real estate devised for the payment of debts; (3.) Real estate descended to the heir; (4.) Real or personal estate devised or specifically bequeathed, and charged with the payment of debts; (5.) General pecuniary legacies; (6.) Real estate devised, and specific legacies not charged with debts; (7.) Property over which the testator had a general power of appointment, which he has actually exercised.

Whenever one of these classes is called upon to contribute towards the payment of the debts, the contribution is pro ratâ.

Whether a defaulting trustee or executor who becomes bankrupt will be allowed any of his costs of the action is very doubtful. The balance of authority is against the allowance. (Lewis v. Trash, 21 Ch. Div. 862; Hannay v. Basham, 23 Ch. Div. 195; contra, Clare v. Clare, 21 Ch. Div. 865.)

The process of administering estates in Chancery has lately been much abused. In many cases the whole estate has been administered by the Court, although nothing of the kind was necessary or desirable, and nothing of the kind was required by the parties, who, perhaps, only differed upon mere incidental questions arising in the winding-up of the estate of the deceased. The judges have, of late, set their faces against this practice, and have even disallowed the costs of unnecessary actions. (Croggan v. Allen, 22 Ch. Div. 101.) The new Rules of Court (1883) tend in the same direction, for it is provided by Order LV., II., 3—12, as follows:

The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument, or any of them, and any person claiming to be interested in the relief sought, as creditor, devisee, legatee, next of kin, or heir-at-law, or customary heir of a deceased person, or as cestui que trust under the trusts of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable in the chambers of a judge of the Chancery Division, for such relief of the nature or kind following as may by the summons be specified, and as the circumstances of the case may require (that is to say), the determination, without an administration of the estate or trust, of any of the following questions or matters:

(a.) Any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next of kin, heir-atlaw, or cestui que trust;

(b.) The ascertainment of any class of creditors, legatees, devisees, next of kin, or others;

(c.) The furnishing of any particular accounts by the executors, or administrators, or trustees, and the vouching (when necessary) of such accounts;

(d.) The payment into Court of any money in the hands of the exe-
cutors, or administrators, or trustees;
(e.) Directing the executors, or administrators, or trustees, to do, or
abstain from doing, any particular act in their character as
such executors, or administrators, or trustees;

(f.) The approval of any sale, purchase, compromise, or other trans-
action;

(9.) The determination of any question arising in the administration of the estate or trust.

Any of the persons named in the last preceding Rule may in like manner apply for and obtain an order for :

(a.) The administration of the personal estate of the deceased; (b.) The administration of the real estate of the deceased;

(c.) The administration of the trust.

The persons to be served with the summons under the last two preceding Rules in the first instance shall be the following, that is to say:(A.) Where the summons is taken out by an executor or administrator

or trustee :

(a.) For the determination of any question under sub-sections (a), (e), (f) or (g) of Rule 3, the person or one of the persons whose rights or interests are sought to be affected;

(b.) For the determination of any question under sub-section (b) of Rule 3, any member or alleged member of the class;

(c.) For the determination of any question, under sub-section (c) of Rule 3, any person interested in taking such accounts;

(d.) For the determination of any question under sub-section (d) of Rule 3, any person interested in such money;

(e.) For relief under sub-section (a) of Rule 4, the residuary legatees
or next-of-kin, or some of them;

(f.) For relief under sub-section (b) of Rule 4, the residuary devisees,
or heirs of some of them;

(g.) For relief under sub-section (c) of Rule 4, the cestuis que trust,
or some of them;

(h.) If there are more than one executor or administrator or trustee, and they do not all concur in taking out the summons, those who do not concur.

(B.) Where the summons is taken out by any person other than the executors, administrators, or trustees, the said executors, administrators or trustees.

The Court or judge may direct such other persons to be served with the summons as they or he may think fit.

The application shall be supported by such evidence as the Court or a judge may require, and directions may be given as they or he may think just for the trial of any questions arising thereout.

It shall be lawful for the Court or a judge upon such summons to pronounce such judgment as the nature of the case may require.

The Court or judge may give any special directions touching the carriage or execution of the judgment or the service thereof upon persons not parties as they or he may think just.

It shall not be obligatory on the Court or a judge to pronounce or make a judgment or order, whether on summons or otherwise, for the administration of any trust or of the estate of any deceased person, if the questions between the parties can be properly determined without such judgment or order.

When any summons under Rules 3 and 4 of this Order has been taken out every subsequent summons relating to the same estate or trust shall be marked with the name of the judge to whom for the time being the matter is assigned, and in case any such subsequent summons shall be

New rules as to procedure.

Defence of C. D.

The defendant C. D. says:

1. He does not admit the plaintiff's claim.

2. He does not admit assets.

3. Payment was made by the deceased.

4. In the alternative the claim was released by deed, dated the 1st of November, 1883.

Defence of E. F.

The defendant E. F. says:

1. The personal estate of the testator is sufficient to pay the plaintiff his debt, if established.

2. This defendant is not heir-at-law or devisee of the testator.

Claim for Administration on the Footing of Wilful Default.

1. The plaintiff is residuary legatee of A. B., of the city of Bath, who died March 3rd, 1882, having made his will, dated March 2nd, 1882, and appointed the defendants his executors, who proved his will April 6th, 1882.

2. The defendants have been guilty of wilful default in not getting in certain property of the testator.

3. The wilful default on which the plaintiff relies is as follows:

C. D. owed to the testator £1,000, in respect of which no interest had been paid or acknowledgment given for five years before the testator's death. The defendants were aware of this fact, but never applied to C. D. for payment until more than a year after testator's death, whereby the said sum was lost.

marked with the name of another judge it shall be the duty of the executors, administrators, or trustees to apply for the transfer to such first-mentioned judge of such subsequent summons.

The issue of a summons under Rule 3 of the Order shall not interfere with or control any power or discretion vested in any executor, administrator, or trustee, except so far as such interference or control may necessarily be involved in the particular relief sought.

The plaintiff claims:

(1) Account of testator's personal estate on the footing of wilful default.

(2) Administration of the testator's personal estate.

Action by Next of Kin claiming Administration of the Personal Estate of the Deceased.

1. A. B. made his will, dated the 1st of January, 1880, whereby he appointed C. D. his sole executor, and bequeathed the residue of his personal estate to the children of his brother E. B.

2. A. B. died on the 2nd of January, 1880, and C. D. proved his will on the 30th of January, 1880.

3. E. B. died in Ontario, Canada, on the 7th of December, 1879, and all his children predeceased him. None of the said children left any issue.

4. C. D. died on the 1st of January, 1883, having by his will, dated the 1st of January, 1882, appointed the defendant his executor, who proved his will on the 1st of February,

1883.

5. The plaintiffs are the lawful nieces and next of kin of A. B., who left no brother or sister him surviving.

The plaintiffs claim to have the personal estate of A. B. administered.

Action of Mortgagee for Administration of the Estate of a
Deceased Mortgagor.

1. By deed, dated 1st of June, 1880, A. B. mortgaged the Hope Farm, in the county of Cornwall, to the plaintiff to secure £1000, and interest.

2. £1,200 is now due to the plaintiff on that security; but the Hope Farm is insufficient to discharge the plaintiff's claim.

3. A. B. died on the 20th of May, 1881. The defendant X. is his executor, and the defendant Y. is his heir-at-law.

The plaintiff claims to be paid the amount due to him, or to have the real and personal estate of the said A. B. administered.