§ 339. In the.next place, as to the duties of executors and administrators. The first duty of the executor is to bury the deceased in a manner suitable to his condition and estate.3 He is not, however, entitled to expend an extravagant sum therefor, but is limited to such expenses as, considering the apparent estate and rank of the deceased, seem reasonable and proper.4 If he exceed these, and the estate prove to be insolvent, he cannot recover therefor.* An executor is not, however, limited to any specified sum, but each case must be regulated by its peculiar circumstances.6
§ 340. In the next place, it is the duty of an executor to prove the will, or to take out letters of administration, to make an inventory of the personal estate, and to collect the effects belonging to the estate; this he must do with diligence.7 If, however, he omit to make an inventory, this fact cannot be taken advantage of against him, after the lapse of an unreasonable length of time.8
§ 341. In the next place, it is the duty of the executor or administrator to pay the debts due from the estate of the deceased. Ordinarily the executor or administrator is only bound to pay the debts out of the personal estate; and it is in respect to the personal estate solely that we shall consider his duties. The first class of debts which he is bound to pay, is the funeral expenses, as far as they are reasonable and proper.1 The second class is for the expenses of probate and taking out administration, and of any suit, which it may be necessary for him to bring,2 together with the fees of the attorney and solicitor.3 The third class of debts consists of debts due to the state or crown by record or by specialty; not including debts which are of any other kind.4 The fourth class embraces any debts to which priority is given by statute. The fifth class embraces all debts of record, and comprises, 1st. Judgments of a court of record against the deceased, which take precedence of other debts of record, whether they be prior in point of time or not.5 This class does not include judgments against the executor or administrator, which are only entitled to a priority over debts of an equal degree, upon which judgment has not been obtained.6 It does not matter, however, whether the judgment be upon a specialty or simple contract; it is in either case equally entitled to precedence.7 2d. Recognizances and statute securities, such as statutes merchant, statutes staple, and recognizances in the nature of statutes staple, are entitled to the next priority after judgments.8 The sixth class embraces debts by specialty, under which are reckoned debts by bond, by covenant, and breaches of contracts under seal, and debts by mortgage, where there is bond or covenant for the payment of money.1 One specialty debt does not take precedence of another, merely because the former is overdue and the latter not due.2 But a specialty, which is contingent, as a bond of indemnity, is postponed to debts of an inferior degree,3 until breach .of condition.4 The seventh and last class of debts consists of those created by a contract not under seal; and of these, debts to the state or king must be first paid,5 and next the wages of laborers and domestic servants.6
1 Macnamara v. Jones, 2 Dick. 587; Potts v. Leighton, 15 Ves. 277; Hide v. Haywood, 2 Atk. 126. 2 Pannel v. Fenn, Cro. Eliz. 348. 3 2 Black. Comm. 508; Shelly's Case, 1 Salk. 296.
4 Ibid.; Edwards v. Edwards, 2 Cr. & Mees. 612; Hancock p. Podmore, 1 B. & Ad. 260; Stag v. Punter, 3 Atk. 119.
5 Stag v. Punter, 3 Atk. 119.
6 Edwards v. Edwards, 2 Cr. & Mees. 612; Reeves v. Ward, 2 Scott, 395; s. c. 2 Bing. N. C. 235; Stag v. Punter, 3 Atk. 119; Hancock v. Pod-more, 1 B. & Ad. 260.
7 2 Williams on Executors, pt. 3, B. 2, ch. 1, § 1, 2, 3; Hooker v. Bancroft, 4 Pick. 50; Walker v. Hall, 1 Pick. 20; White v. Swain, 3 Pick. 365; Oglesby v. Howard, 43 Ala. 144.
1 The King v. Wade, 5 Price, 621; 2 Black. Comm. 508. 2 2 Black. Comm. 511; Loomes v. Stotherd, 1 Sim. & Stu. 458; 2 Williams on Executors, pt. 3, B. 2, ch, 2, § 1.
3 Turwin v. Gibson, 3 Atk. 720.
4 Littleton v. Hibbins, Cro. Eliz. 793; Went. Off. Ex. 261; Com. Dig. Administration (C. 2); 2 Williams on Executors, pt. 3, B. 2, ch. 2, § 1, p. 721; Erby v. Erby, 1 Salk. 80.
5 The Sadlers' Case, 4 Co. 59 6, 60 a; Harrison's Case, 5 Co. 28 b; Went. Off. Ex. 271; Searle v. Lane, 2 Vern. 89.
6 Ashley v. Pocock, 3 Atk. 308; 2 Williams on Executors, pt. 3, B. 2, ch. 2, § 2, p. 729; Scott v. Ramsay, 1 Binn. 221; Center v. Billinghurst, 1 Cow. 33; Leiper v. Levis, 15 S. & R. 108.
7 Toller, 264; 2 Williams on Executors, pt. 3, B. 2, ch. 2, § 2, p. 73
8 2 Williams on Executors, pt. 3, B. 2, ch. 3, § 2, p. 732, 733.
1 Galton v. Hancock, 2 Atk. 435; Jones v. Powell, 1 Eq. Cas. Abr. 84; Lomas v. Wright, 2 Myl. & K. 769; Broome v. Monck, 10 Ves. 620; Benson v. Benson, 1 P. Wms. 130; Turner v. Wardle, 7 Sim. 80.
2 1 Roll; Abr. 927, tit. Executors; 2 Williams on Executors, pt. 3, B. 2, ch. 2, § 2, p. 744, 745.
3 Harrison's Case, 5 Co. 28 b; Philips v. Echard, Cro. Jac. 8; Milles v. Sherfield, Cro. Jac. 102; Lancy v. Fairechild, 2 Vern. 101; Hawkins v. Day, Ambl. 160; Read v. Blunt, 5 Sim. 567.
4 Cox v. Joseph, 5 T. R. 307; Musson v. May, 3 Ves. & B. 194. The executor or administrator is bound to pay a debt by bond before simple contract obligations, though the bond be not yet due. Woodshaw v. Fulmerstone, 1 Leon. 187; Lemun v. Fooke, 3 Lev. 57. But in Norman v. Baldry, 6 Sim. 622, Shadwell, V. C, is reported to have said that he had always understood the law to be, that an executor who had paid simple contract debts of his testator, a bond being in existence, but not then payable, ought to be allowed those payments. The editor of the last (6th) English edition of Williams on Executors, thus comments on this position: "Probably the learned judge did not intend to apply the observation so generally as it is stated in the report, but to confine it to the case of a bond payable on a contingency; with respect to which the law so understood is in accordance with all the authorities. The true rule, it is submitted, appears to be, that where it is uncertain whether any thing will ever become payable on the special security, it shall not stand.in the way of the payment of simple contract debts; but where a sum will certainly become due, though on a future day, the special security is entitled to priority, like any other obligation of its class. See acc. Atkinson v. Grey, 1 Sm. & G. 577, 581." In this case of Atkinson v. Grey, it was held that a covenant by a surety for payment of a debt at a future day is not a contingent, but an actually existing debt, which must be provided for before simple contract creditors are paid. "I have not been able," said the Vice-Chancellor, " to follow the argument that, the covenant being one in the way of suretyship, a surety is not called upon to pay at all if the principal debtor should pay, and that this makes the debt contingent."