Webster v. Hammond & Stevenson

The plaintiff appealed to the general court, and Chase, Ch. J. delivered the following opinion of the court: Before I consider the question I would make a few general remarks. Every executor or administrator is obliged by his duty, oath and law, to administer the goods and chattels of the testator or intestate, which come to his hands, according to law. The law, before the act of 1785, c. 80. established the order in which debts due from the testator or intestate to private persons, should be paid. 1.

Debts of record (and decrees in chancery, 2 Vern. 89.) of which the executor or administrator was obliged to take notice at his peril; for if he paid previously any other debts, he thereby became guilty of a devastavit, ¹³⁴ and liable to pay such debts of record and decrees de bonis propriis. The person who first sueth execution' must be first preferred. Before execution, the executor or administrator may prefer which he pleases. If two or more issued scire facias, the executor or administrator may confess assets to which of them he pleases, and plead generally plene administramt to the other scire facias.

Swinb. 402. 2. Debts by specialty, or for rent, or on foreign bills of exchange, or inland bills or negotiable notes, &c. since 1766, of which the creditor ought to give timely notice to the executor or administrator. By timely notice, I understand information before he has given judgments in actions of debts of an inferior nature. An executor or administrator may prefer any of these creditors he pleases, in the same manner as creditors of record. 3.

Debts on simple contract, of which the creditor ought to give notice. 1 Went. 133. 2 Went. 73. 110. Law of Test. 430. Godolph. 215—225. 1 Com. Dig. 245. 2 Bl.

Com. 511. Swinb. From this legal order of paying debts the executor or administrator cannot depart. If he pays a debt on simple contract, after notice of a debt by specialty or decree, or on bills of exchange made in certain cases, equal to specialties by act of assembly, or for rent, and there should be a deficiency of assets, he is answerable to the amount of such improper and illegal payment out of his own proper goods.

Bull. 141. 178. Fitzg. 76. The law gives an executor or administrator certain privileges which he cannot be deprived of even in equity, unless by fraud. He may pay or retain in his hands to pay his own debts, in preference and prejudice of