5 Bac. Abr. Executors (L. 2).
6 2 Black. Comm. 511. In Massachusetts the priority of debts is regulated by statute. See Gen. Sts. ch. 99, § 1.
§ 342. In respect to debts of the same class, and which are entitled to no legal or equitable precedence over each other, the executor or administrator is privileged to pay them in any order he may elect, and may give precedence to whichever he chooses.1. He may, therefore, give a preference to his own debt over all others of an equal degree.2 But he cannot retain payment for the whole of his own debt out of equitable assets,3 but only out of legal, and in such case he is limited to his proportional part.4 Again, if the testator appoint his debtor to be his executor, the debt becomes thereby extinguished; for the executor could not maintain an action against himself for it.5 But the rule that when a creditor is appointed executor by his debtor his right of action is suspended, applies only when the executor has received assets, and does not apply at all where the debt arises upon a negotiable instrument which has been legally transferred by the executor.6
§ 343. In the next place, after payment of all the debts, it is the duty of the executor or administrator to pay the legacies. Before payment of the legacies, however, the testator is bound to pay all vested debts, and if he do not, and the estate is not sufficient to pay the debts, he renders himself personally liable therefor to the extent of his misappropriation. So, also, if there be only contingent debts against the estate, it would seem that the executor cannot pay legacies, without assuming contingent liabilities, and, therefore, he would not be bound to pay over the legacies until all contingent liability on the debt was gone, unless upon the legatee's giving him ample indemnity therefor, as by a security to refund the legacy, if debts should afterwards appear.1 Again, if the executor pay over legacies in ignorance of the existence of any debts outstanding against the estate, he cannot ordinarily plead in defence to an action for such debts,plene administravit, for he is bound to pay debts before legacies.2 He may, however, in such a case, compel the legatees by will to refund.3 And if a great lapse of time have taken place, and the creditors have been guilty of great laches, it would seem that such a plea would be good.4
1 Lyttleton v. Cross, 3 B. & C. 322; Lepard v. Vernon, 2 Yes. & B. 53; Waring v. Danvers, 1 P. Wms. 295.
2 Woodward v. Lord Darcy, Plowd. 184; Dyer, 2 a; Warner v. Wains-ford, Hob. 127.
3 See Lowe v. Peskett, 16 C. B. 500; 32 Eng. Law & Eq. 427.
4 Anon., 2 Cas. Ch. 54; Hopton v. Dryden, Prec. Ch. 181.
5 Co. Litt. 264 b; Went Off. Executors, ch. 2, p. 73; Fryer v. Gild-ridge, Hob. 10; Dorchester v. Webb, Cro. Car. 373; Wankford v. Wank-ford, 1 Salk. 299; Errington v. Evans, 2 Dick. 457; Cheetham v. Ward, 1 Bos. & Pul. 630.
6 Lowe v. Peskett, 16 C. B. 500; 32 Eng. Law & Eq. 427.
§ 344. Where a legacy is given generally, without specifying the time of payment, the executor is not bound to pay it over until the lapse of a year from the testator's death; and this is allowed him for the sake of convenience, and to enable him to see whether the assets are sufficient without it, to pay the debts.5 The legacy, however, vests in the legatee on the death of the testator, and if the legatee die before recovering it, his personal representative will be entitled to it.6
§ 345. If the assets be not sufficient to pay all the legacies, the specific legacies take precedence of the general legacies, and in case there are more than enough assets to pay the specific legacies, but not enough to pay the general legacies, the latter alone are abated, so as to give to each general legatee his proportion of the overplus.7 A specific legacy is a legacy of some identified thing, distinguished from all others of the same kind; as a legacy of the " diamond ring presented to me by A."8 A general legacy is a legacy of something indeterminate or not specific, as a legacy of a "diamond ring," or of "£1000," which is satisfied by a delivery of any diamond ring, or £1000 in any form of money or stock.1 An executor has no power to give himself a preference in respect to the payment of a legacy to himself, as he has in the payment of a debt.2
1 Hawkins v. Day, Ambl. 160; 3 Meriv. 554; Nector v. Gennet, Cro. Eliz. 466; Simmons v. Bolland, 3 Meriv. 549; Vernon v. Egmont, 1 Bligh (n. s.), 571.
2 Davis v. Blackwell, 9 Bing. 5; s. c. 2 Moore & Scott, 8; Norman v. Baldry, 6 Sim. 621; Richards v. Browne, 3 Bing. N. C. 493.
3 Nelthrop v. Hill, 1 Cas. Ch. 136; Davis v. Davis, 8 Vin. Abr. 423, tit Devise (Q. d); 1 Roper on Legacies, 398, 3d ed.
4 Ibid.; Chelsea Water Works v. Cowper, 1 Esp. 275.
5 Garthshore v. Chalie, 10 Ves. 13; 2 Williams on Executors, pt. 3, B. 3, ch. 2, § 5, p. 880; Forbes v. Ross, 2 Cox, 115.
6 Ibid.; Collins v. Macpherson, 2 Sim. 87.
7 Clifton v. Burt, 1 P. Wms. 679; 2 Black. Comm. 513; Toller, 339; 2 Williams on Executors, pt. 3, B. 3, ch. 4, § 2, p. 972.
8 2 Williams on Executors, pt. 3, B. 3, ch. 2, § 3, p. 838; 2 Fonbl. Eq. B. 4, ch. 2, § 5, note (o); Purse v. Snaplin, 1 Atk. 416.
§ 346. The general rule in respect to general legacies is, that no preference shall be given to one over another, but that, in case of a deficiency of assets, they shall all abate proportionally.3 But this rule only applies to legacies to volunteers, without valuable consideration; and in cases where there is any valuable consideration to support a legacy, as if it be in consideration of a relinquishment of dower, or of any legal claim, existing at the time of the testator's death, it will take precedence of other general legacies.4 So, also, if the manifest intent of the testator be to give a priority to any particular legacy, his intention must be carried into effect.5
§ 347. Where a legacy is left to an infant, the executor cannot, without the sanction of a court of equity, pay it to him, or to any one on his account, but he must keep it until the infant become of age, and then pay it over to him personally.6 And if the executor pay it over to the father, or any one else, he will be responsible.7 Again, an executor cannot pay to the infant any part of the capital of the legacy for any purpose except for mere necessaries.8 But in respect to the interest, he may pay over whatever a court of equity would have ordered him to pay over;1 and a court of equity will always order that the interest be paid over to the infant for his maintenance, in case the bequest is vested so that he could take it immediately, if he were of age, provided his parents are unable to maintain him, and not otherwise.2 If the legacy be contingent, a court of equity will not order the executor to pay the interest to the infant, unless perhaps by consent of the legatees over.3
2 Toller, 387; 2 Williams on Executors, pt. 3, B. 3, ch. 4, § 2, p. 972.
3 Shirt v. Westby, 16 Ves. 396; Coppin v. Coppin, 2 P. Wms. 296; Fretwell v. Stacy, 2 Vern. 434; Apreece v. Apreece, 1 Ves. & B. 364; Blower v. Morret, 2 Ves. 420.
4 Heath v. Dendy, 1 Russ. 543; Davies v. Bush, Younge, 341; Burridge v. Bradyl, 1 P. Wms. 127; Blower v. Morret, 2 Ves. 420; Davenhill v. Fletcher, Ambler, 244.
5 Lewin v. Lewin, 2 Ves. 415; Marsh v. Evans, 1 P. Wms. 668; Attorney-General v. Robins, 2 P. Wms. 23.
6 Dagley v. Tolferry, 1 P. Wms. 285; Cooper v. Thornton, 3 Bro. C. C. 97; Rotheram v. Fanshaw, 3 Atk. 629; Philips v. Paget, 2 Atk. 80.
7 Ibid.; See Miles v. Boyden, 3 Pick. 213.
8 Davies v. Austen, 3 Bro. C. C. 178; Lee v. Brown, 4 Ves. 362; Walker v. Wetherell,' 6 Ves. 473.
§ 348. Where a legacy is left to a married woman, it should be paid over to her husband, whether she live with him or be separated by divorce.4 But if the wife be separated from her husband, without criminality on her part, a court of equity would interfere, and oblige the husband to make a settlement on her, as the condition of the payment of the legacy to him.5 But although the husband should refuse to make a settlement on the wife, it seems that he would be entitled to receive the interest on the legacy.6.
§ 349. Where the legatee is abroad, and has been unheard from for such a number of years as to create a presumption of his death, the legacy may perhaps be paid to the succeeding party entitled to it,7 but it is safer for the executor to take a bond of indemnity.
§ 350. Whether, if a will should contain a direction or power to raise money out of the rents and profits of the estate, the executor would be authorized to sell or mortgage the estate in case the. annual rents and profits would not satisfy the purposes of the trust, without entailing serious delays and inconveniences, is a question upon which entirely opposite opinions have been held. By the older cases, the executor was restrained to the application of the annual rents and profits,1 but the later cases admit a power to sell or mortgage, where it is required to carry out the manifest objects of the trust.2 If, therefore, a testator should direct a gross sum to be paid out of the rents and profits of an estate at a fixed time, or for a definite purpose, which must be accomplished within a certain time, and the annual rents and profits would be inadequate to pay such sum within the intended time, a power to sell or mortgage would be allowed in equity.3
1 Ibid.; 1 Roper on Leg. 768, 3d ed.; Lee v. Brown, 4 Yes. 362.
2 Greenwell v. Greenwell, 5 Ves. 194; Collis v. Blackburn, 9 Yes. 470; Stretch v. Watkins, 1 Madd. 253; Andrews v. Partington, 3 Bro. C. C. 60, 401; Hoste v. Pratt, 3 Ves. 733; Maberly v. Turton, 14 Yes. 499; Hawkins v. Watts, 7 Sim. 199.
3 Lomax v. Lomax, 11 Ves. 48; Errington v. Chapman, 12 Ves. 21; Cavendish 9. Mercer, 5 Ves. 195, n.; Evans v. Massey, 1 Y. & J. 196.
4 Palmer v. Trevor, 1 Vern. 261; Stephens v. Totty, Cro. Eliz. 908; Green v. Otte, 1 Sim. & Stu. 250; Carr v. Eastabrooke, 4 Ves. 146.
5 Brown v. Elton, 3 P. Wms. 202; Lady Elibank v. Montolieu, 5 Ves. 737; March v. Head, 3 Atk. 720; 1 Roper on Leg. 773, 3d ed.
6 Sleech v. Thorington, 2 Ves. 562.
7 Dixon v. Dixon, 3 Bro. C. C. 510; Mainwaring v. Baxter, 5 Ves. 458.