Act of March 3, 1819-January 1, 1820. R. C. ch. 104. or distributees of their testators or intestates respectively. Sep. 1671, act 4, 2 Stat. Larg. 288; Feb. 1727, c. 11, 4 Stat. Larg. 224; Ibid. 25. § 50. Nevertheless, if the testator direct his estate not to be appraised, it shall be sufficient to return an inventory thereof only; and, if he direct his estate not to be sold, the same shall be preserved in specie, unless a sale be necessary for the payment of his debts. May 1730, 4 Stat. Larg. 283; Ibid. 26. § 51. The dead victuals and liquors, which, at the death of any testator or intestate, shall have been laid in for consumption in his family, shall not be sold by the executor or administrator, but shall remain for the use of such family, without account thereof being made. If, however, before its final consumption, any child shall leave the family, such child shall have a right to carry with him or her an equal share of what shall then be on hand. Any live stock, which may be necessary for the food of the family, may be also killed for that use, at any time before the sale, division or distribution of the estate. 1785, c. 61, 12 Stat. Larg. 150; 1792, c. 92, R. C. 27. § 52. The sale and conveyance of lands devised to be sold, shall be made by the executors, or such of them as shall undertake the execution of the will, (w) if no other person be thereby appointed for that purpose, or if the person so appointed shall refuse to perform the trust, or die before he shall have completed it; but, if none of the executors named in such will shall qualify, or, after they have qualified, shall die before the sale and conveyance of such lands, then, in those cases, the sale and conveyance thereof shall be made by such person or persons to whom administration of the testator's estate, with the will annexed, shall be granted.† 21 Hen. 8, c. 4, and Ibid.(1) 28. § 53. If any person shall die after the first day of March, the servants and slaves of which he was possessed, whether held for life or for other interest, and which were employed in making a crop, shall be continued on the plantation in the occupation of the decedent, until the last day of December following, and then delivered to those who shall have a right to demand the same; and their crops shall be assets(r) in the hands of the executors and administrators, subject to debts, legacies and distribution; the levies and taxes, their tools, the expense of feeding them and their families to that time, and de (w) Devises consummated before the 1st of Jan. 1787, [when the act of 1785, c. 61, took effect] are governed by the 21 Hen. 8, c. 4, under which, a conveyance by part of the executors named in the will is justified, where the others refuse to take upon themselves the charge or administration thereof. Geddy et al. v. Butler et ux. 3 Munf. 345, 349; Nelson v. Carrington et al. 4 Munf. 332. As to powers of sale by implication, see Patton v. Randall, 1 Jacob & Walker, 189; and Peter v. Beverley, 10 Peters, 532. If the agreement for the sale be signed by the vendee, and one of the two acting executors, the other may, by acts in pais (such as delivering possession, &c.) make the contract his own. Nelson v. Carrington et al. 4 Munf. 332, 341. By act of Feb. 20, 1840, it is enacted, "that if any executor, by reason of his removal from office, or from any other cause, be disqualified to make sale and conveyance of lands devised to be sold as authorized [by this section,] then the sale and conveyance of such lands shall be made by such person or persons to whom administration of the testator's estate, with the will annexed, shall be granted." Ses. Acts of 1840, c. 57, p. 49. (1) See Green, J. in Jones v. Hobson, 2 Rand. 498-500; and Adams v. Taunton, 5 Madd. R. 435. Where executors are directed by will to sell lands, and they renounce the executorship, an administrator with the will annexed, may sell under the authority of this act; and although the will directs the executors to sell, "provided the said land will sell for as much as, in their judgment, will be equal to its value." Brown v. Armistead, 6 Rand. 594; and see Broadus et al. v. Rosson et al. 3 Leigh, 12; Peter v. Beverley, 10 Peters's R. 564. (x) Not merely for the payment of debts; this act makes them personal property, subject to the disposition of the will. See Fleming v. Bolling, 3 Call, 75, 82; Shelton's ex'r v. Shelton, 1 Wash. 61-62. For the common law doctrine, as to emblements, see Graves v. Weld, 5 Barn. & Adolph. 105, in which the subject is elaborately discussed. Act of March 3, 1819-January 1, 1820. R. C. ch. 104. livering them well clothed, being first deducted. And, if such slaves or servants be held by the testator or intestate for his or her life only, in that case, the executor or administrator shall be obliged to deliver, to those who are entitled in remainder or reversion, three barrels of indian corn for every such servant or slave, old and young, to be allowed in their accounts of administration. Nov. 1711, c. 2, 4 Stat. Larg. 21; Oct. 1748, c. 5, 5 Stat. Larg. 464; May 1730, c. 8, § 11, 4 Stat. Larg. 284; 1785, c. 61, 12 Stat. Larg. 150; 1792, c. 92, R. C. 29. § 54. If a testator or intestate shall die on or after the first day of March, all the emblements of his land, which shall be severed before the thirty-first day of December following, shall, in like manner, be assets in the hands of the executors or administrators; but all such emblements, growing on the lands at that day, or at the time of the death of the testator or intestate, if that event happen after the thirty-first day of December and before the first day of March, shall pass with the land to the heir, devisee, reversioner or remainder-man. Ibid. 30. § 55. If there be a tenant for life of lands or slaves let or hired to another, at the death of such tenant for life, if that event happen after the first day of March, the lessee or person hiring shall hold the lands and slaves, until the last day of December following, paying rent or hire to that time, and, in case of slaves, delivering them well clothed. 1785, c. 61, 12 Stat. Larg. 151; 1792, c. 92, R. C. 31. § 56. The rent of land or hire of slaves shall be apportioned between the executor or administrator of him, who, having a freehold, or other uncertain estate in the land, and the use for life or for other uncertain term in the slaves, shall die before the rent or hire become due, and him who shall succeed to the lands and slaves, as heir, devisee, or person in reversion or remainder, unless, in a case of a devisee, the contrary be directed by the testator.(y) 11 Geo. 2, c. 19, § 15, and Ibid. 32.57. The appoinment of a debtor executor shall in no case be deemed an extinguishment of the debt, (2) unless it be so directed in the will. 1785; 1792, c. 92, R. C. 33.58. No distribution shall be made of an intestate's estate, until nine months after his death;(1) nor shall an administrator() [administratrix, exe (y) See note (a) to Ex parte Smyth, 1 Swanton's R. 337-350, in which the principal cases are reviewed. (2) See Fleming v. Bolling, 3 Call, 75. (1) See Garthshore v. Chalie, 10 Ves. 13; Davis v. Blackwell, 9 Bing. 5. (2) If an administrator takes upon himself to distribute the fund, and it should turn out afterwards, that there are other persons entitled to a portion thereof, he will be liable to them for their rateable share; notwithstanding the distribution was made without notice of the existence of the subsequent claimants; since such distribution was at his peril, and he either did take, or might have required a bond from the first distributees, with security, for his indemnity. Lawrason v. Davenport, 2 Call, 95, 100-1; Ruth et al. v. Owens, 2 Rand. 507. Where a decree is made against an executor, &c. for having distributed the assets improperly, he may be subjected in the first instance, without resorting to those who have so improperly received them. Where personal property of a testator or intestate has been distributed to legatees or distributees, of the decedent, with the assent of his executor or administrator, it is not competent to a creditor of the decedent to levy his execution on such property, under a judgment obtained against the personal representative; such property not being of the goods and chattels of the decedent in the hands of his representative. Randolph v. Randolph, 6 Rand. 194. See David v. Frowd, 1 Mylne & Keene, 200. An executor is bound to pay all debts before he distributes the legacies; and if he distributes the legacies before he pays the debts, though they were unknown to him at the time of distribution, he must, nevertheless, answer the judgment, to the amount of the legacies, so delivered over. Kippen et al. v. Carr's ex'r, 4 Munf. 119; Swearingen's er'rs v. Pendleton's ex'x, 4 Serg. & Raw. 389, 394; Spode v. Smith, 3 Russell, 511; Mayo v. Bentley, 4 Call, 528. This rule applies in suits by creditors Act of March 3, 1819-January 1, 1820. R. C. ch. 104. cutor, or executrix, or other person to whom an estate shall have been committed for administration, (Feb. 17, 1823, c. 37, § 2,)] be compelled to make distribution at any time, until bond and security be given, by the persons entitled to distribution, to refund due proportions of any debts or demands, which may afterwards appear (aa) against the intestate, [or testator, (Ibid.)] and the costs attending the recovery of such debts; [but such bond shall be valid and sufficient, if executed by any responsible person, with security, though the party entitled to distribution be not an obligor. Ibid.] 22 and 23 Car. 2, c. 10; Oct. 1705, c. 33, 3 Stat. Larg. 373; Oct. 1748, c. 3, 5 Stat. Larg. 448; 1785, c. 61, 12 Stat. Larg. 151; 1792, c. 92, R. C.(1) against administrators who have distributed the fund. For the mode of relief to executors or administrators, see Bower's ex'r v. Glendening et al. 4 Munf. 219. And to creditors, see Burnley v. Lambert, 1 Wash. 308, 312; Sampson v. Payne's ex'r et al. 5 Munf. 176. The terms of this section have been extended by judicial construction to executors; [on the principle, 'tis presumed, that, a thing within the equity of a statute and the intention of the makers, is as much within the statute, as if it were within the letter. See Stowell v. Zouch, 1 Plowd. 365; Stradling v. Morgan, 205; Eyston v. Studd, 2 Plowd. 464.] Sheppard's ex'r v. Starke et ux. 3 Munf. 29, 41. Nor are executors bound to pay or deliver legacies, until bond to refund, &c. be given. Walden v. Payne, 2 Wash. 1,8; Stocall's ex'r v. Woodson et ux. 2 Munf. 303. And the legatees must be directed by the decree, to give bond and security to refund, &c. though their bill be taken for confessed. Rootes v. Webb, 4 Munf. 77; M'Rae's ex'r v. Brooks et ux. 6 Munf. 157. [See am. act of 1823.] It seems, that since the statute of distributions of 1785, the executor is not, in any case, entitled to the residuum of his testator's personal estate, not actually bequeathed away by the will; it belongs to the next of kin of testator. Paup's adm'r et al. v. Mingo et al. 4 Leigh, 163; and see Wilson v. Wilson, 3 Binney, 557, ante, tit. DESCENTS, &c. No. 22, note (2); and see 11 Geo. 4, and 1 Will. 4, c. 40, which gives the residue undisposed of to the next of kin, unless it appear by the will that the executor is to take it beneficially. What amount of security? is it within the discretion of the court, or must it cover the whole sum distributed or paid? See Kirkpatrick et al. v. Gibson's ex'ors, 2 Brock.'s R. 388. (aa) The literal requisitions of this section have not been pursued invariably; all that the court requires is a substantial compliance. If the condition be to refund, &c. "towards payment of such debts as the executor or administrator may hereafter be compelled to pay," 'tis sufficient. Moss et al. v. Moss's adm'r, 4 H. & M. 293; Bowles Bingham, 2 Munf. 447. It is a sufficient V. assignment of a breach of a bond thus conditioned, that the plaintiff on a day after the execution of the bond, had paid, by the consent of the defendants, a debt due from the estate, and which, as administrator, he was bound to pay, and that the defendants had not paid to him their respective parts, &c. Moss et al. v. Moss's adm'r, 4. H. & M. 293. A suit by an executor against the legatees for advances made to the estate beyond the assets, will not be entertained after a great length of time has elapsed since the qualification of the executor, and the estate has been distributed with the consent of the executor. Robertson et al. v. Archer, adm'r, 5 Rand. 319. What lapse of time, and acquiescence in executor's erroneous distribution of specific legacies, will bar suit by a specific legatee. See Parsons v. M'Cracken et ux. 9 Leigh, 495. (1) See act of February 16, 1825, c. 158, § 10, Ses. Acts 1824-5, p. 13. Sup. R. C. p. 218, by which it is provided, "That if any executor or administrator, more than twelve months after he shall have qualified to his office, shall hereafter disburse any of the assets of his testator or intestate to any legatee or distributee, who, the debts being paid, would be entitled thereto, and shall have taken from such legatee or distributee any refunding bond with security, good at the time when taken; and such executor and administrator, after the lapse of ten years from the time when the first executor or administrator of the estate qualified to his office, shall be sued by a creditor for any debt due from the testator or intestate, whereof such executor or administrator had not notice, at the time of such disbursement, or within the ten years aforesaid, such disbursement may be pleaded and shall be allowed as a lawful disbursement of so much of the assets aforesaid: Provided, That such refunding bond shall have been acknowledged or proved by one witness at least, and recorded in the court granting probat or administration; and in such case, the creditor shall have full power and authority to pursue the legatee or distributee, and his securities in such refunding bond, or their representatives; and may recover Act of March 3, 1819—January 1, 1820. R. C. ch. 104. 34. § 59. Executors and administrators shall be allowed, in their accounts, all reasonable charges and disbursements, (bb) which they shall lay out and ex from them so much as the executor or administrator ought to have recovered, if he had been compelled to pay the debt: Saving however, to all creditors being infants, married women or persons of non-sane memory at the time when their respective causes of action accrued, the period of three years after disability removed, within which time they shall be at liberty to bring their several actions, without any prejudice from the disbursement aforesaid." This last section, amended by act of, March 8, 1826, Ses. Acts 1825-6, c. 23, § 2, p. 24, Sup. R. C. c. 200, § 2, p. 260, by which it is provided, "That if any execu tor or administrator, after the expiration of one year from the time of his qualification, shall pay the legacies given by the will or any part of them, or make distribution of the estate of the testator or intestate, or of any part of it, he shall not, on account of each payment or distribution, be made liable out of his own estate, for any debt, claim or demand against the testator or intestate, whether it be a debt or demand of record or other wise; unless such executor or administrator was previously apprised either by the institution of a suit or by a notice in writing duly served, of the existence of such debt, claim or demand: Provided, That refunding bonds with sufficient security, shall have been taken by such executors or administrators, and shall have been filed in the clerk's office of the court which may have decreed the payment of such legacies, or the distribution of such estate, or which may have granted probat or letters of administration: the sufficiency of the surety or sureties in such bond, to be adjudged by his, her or their circumstances at the time: And provided also, That any person or persons, who may have established his, her or their claim, debt or demand, by a judgment or decree against the executor or administrator, shall afterwards be allowed to sue on such refunding bond, in the name of the obligee or obligees, their executors or administrators, for the benefit and at the costs of such creditor or claimant, and shall have the same remedy thereupon, that the executor or administrator would have had, if he or they had satisfied such decree or judgment." But by act of March 13, 1840, it is enacted, "That it shall be lawful for any legatee or distributee of a testator or intestate, after the expiration of two years from the qualification of an executor or administrator, to apply to the court which granted probat or administration, to make an order, requiring all persons who may have claims against the decedent, to exhibit the same for settlement within some period to be named therein; and upon the publication of such order for eight weeks, in one or more newspapers, as the court may direct, and posting the same at the door of the courthouse, on two several court days, it shall be lawful for the court, if there shall not appear to be any legal claims or debts against such estate, to order the executor or administrator to pay and deliver to the legatees or distributees, the whole amount of money and other estate due or belonging to them, without requiring from them any refunding bond; or the court may fix the penalty of the refunding bond, or the amount of money or the specific property which the executor or administrator may retain until such bond be given, so as efficiently to provide for any future costs or expenses of administration, or any supposed claim upon the said estate; and may order the whole estate to be paid and delivered to the legatees or distributees upon the execution of such bond; or may order all to be paid or delivered to them except that portion which may be allowed to be retained by the executor or administrator for want of such bond. And if any suit shall thereafter be brought against any executor or administrator, and he shall have paid or delivered such estate, or any part thereof to the legatees or distributees under any order so made, he may, under the plea of fully administered, prove the amount or portion of the estate so paid or delivered, which shall thereupon be deemed and taken to have been legally administered: Provided however, That such legatees or distributees shall be liable to any creditor who shall thereafter appear within ten years, and shall be made to contribute rateably to pay the amount of any claim or debt which such creditor may establish against them. That the executor or administrator, or any creditor, may take an appeal from any such order made in a county or corporation court to the next superior court of the county, which may hear all legal testimony introduced by the parties, and whose decision shall be final. That the courts of chancery in suits between legatees or distributees, executors or administrators, shall have power to dispense with the requisition of refunding bonds, agreeably to the provisions herein contained." Ses. Acts 1840, c. 52, § 3, 4, 5, p. 45-46. An action at law for a distributive share of an intestate's property, cannot be maintained against the administrator, nor against his executor, although he may have expressly promised to pay. Jones v. Tanner, ex'r, 7 Barn. and Cress. 542. (bb) They ought to be allowed, in their accounts, all reasonable charges and disbursements, incurred and made for the bene Act of March 3, 1819-January 1, 1820. R. C. ch. 104. pend in the funeral of the deceased, and other their administration, and may be allowed such recompense for their personal trouble, as the court, on passing their accounts, shall judge reasonable.(cc) March 1655, act 10, 1 Stat. Larg. 400; March 1657-8, act 102, Ib. 479; May 1730, c. 8, 4 Stat. Larg. 287; Oct. 1748, c. 5, 5 Stat. Larg. 466; and Ibid.(2) 35. § 60. The executors or administrators of a guardian, (3) of a committee, or of any other person, who shall have been chargeable with, or accountable for the estate of a ward, an idiot, or a lunatic, or the estate of a dead person, committed to their testator or intestate by a court of record, shall pay so much as shall be due from their testator or intestate, to the ward, idiot or lunatic, or to the legatees, or persons entitled to distribution, before any proper debt of their testator or intestate.(4) Oct. 1705, c. 33, § 13, 3 Stat. Larg. 375; 1785, c. 61, 12 Stat. Larg. 152; 1792, c. 92, R. C. fit of the estate; and a reasonable recompense for their personal trouble, in preference to the claim of any creditor of the decedent; it being a clear principle, that a creditor cannot claim more than the surplus of an estate after defraying ordinary expenses. Nimmo's ex'r v. The Commonwealth, 4 H. & M. 57. See M'Whorter v. Benson, 1 Hopkins, C. R. 28. (cc) The amount of this reasonable recompense greatly depends on the circumstances of each case. The usual amount is five per cent. on the sales and collections. Triplett's ex'rs v. Jameson, 2 Munf. 242. He may be allowed a commission for turning bonds, or other debts payable to his testator, into mortgages, (without an actual receipt of the money,) and delivering them to the legatees-and on money found in the house at the death of his testator, disbursed by him for the use of the family, or invested in bank stock, &c. Hipkins v. Bernard, 4 Munf. 83, 92. Under particular circumstances, seven and a half per cent. on receipts and disbursements was allowed; the real and personal estate having been kept together and managed by the executor, in obedience of the will. Fitzgerald v. Jones, 1 Munf. 150. And where the debts were very small and numerous, and the debtors much dispersed, ten per cent. was allowed. Cavendish v. Fleming, 3 Munf. 198, 202; and see M'Call v. Peachy's adm'r, 3 Munf. 288. Under peculiar circumstances, an executor was allowed expenses of administration, (including clerk hire, rent of counting room, postages, &c. in addition to his commission of five per cent. in general, this commission is in full for all charges of this character. Hipkins v. Bernard et al. 4 Munf. 83, 93. If the debtors reside in, or near the neighbourhood of the executors, [or administrators,] they should collect the debts themselves: they will not be allowed an additional commission for attorneys, unless under peculiar circumstances. Carter's ex'rs v. Cutting et ux. 5 Munf. 223, 241. But if a reward is given to the executors by the will, commissions will not be allowed. Jones ex'r v. Williams, 2 Call, 102; Weiss v. Dill, 3 Mylne & Keene, 26. (2) See act February 16th, 1825, c. 8, § 8, S. R. C. 217, regulating the time when their accounts must be settled, and fixing the penalty for neglecting to comply, &c. Ante, No. 2. An executor or administrator, however meritorious his administration, is not entitled to commission, if he fail to settle and return his accounts of administration, according to this act, which is imperative. Wood's ex'r (And. Stevenson) v. Garnett, 6 Leigh, 271. On appeal by an administrator from a decree in favour of a creditor of decedent, the court of appeals declared, "that in the accounts of the administration of the appellant, a credit ought to have been allowed him for the proper debts of his testator paid by him, so as not to subject him to a devastarit, and that so much of the decree as denied him those credits were erroneous;" therefore it reversed the decree pro tanto. Of the debts of the testator which had been paid by the administrator, a large portion were simple contracts. Held, the claim of the appellee creditor of decedent was, by the decree aforesaid of the court of appeals, determined to be a debt by simple contract only; and therefore, as against such creditor, the administrator has a right to retain the amount of his own simple contract demand against the testator. Sherman, adm'r v. Christian et al. 9 Leigh, 571. The settlement of an administration account under an ex parte order of the court which granted administration, is prima facie evidence in favour of the administrator against creditors of decedent. S. C. (3) See Black et al. v. Scott, ex'r of Leslie et al. 2 Brock. R. 325, and post. tit. GUARDIAN AND WARDS, No. 12. (4) Where the executor of one who had been executor of another, is sued for a debt due by the first executor to the estate of his testator, in order to entitle the plaintiff to rank as a creditor of the first dignity under this section, the pleadings must state distinctly, that the claim is against the second |