Ill 
EXECUTOR. 
to defraud the teftator's creditors of their juft debts by a 
releafe which is abfolutely voluntary. Salk. 303. 1 Rol. 
Abr. 921. Bur if a perfon dies inteftate, and the ordinary 
commits adminiftration to a debtor, the debt is not there¬ 
by extinguilhed, for he comes in only by the alt of law, 
not by the alt of the party. 1 Cka. Rep. 292. 
If no fuit is conjmenced againft him, the executor may 
pay any one creditor in equal degree his whole debt, 
though he has nothing left for the reft ; for, without a 
fuit commenced, the executor has no legal notice of the 
debt. Dyer, 32. Pending a bill in equity againft an exe¬ 
cutor, he may pay any other debt of a higher nature, or 
of as high a nature, where he has legal aftets: but where 
there is a final decree againft an executor, if he pays a 
bond, it is a mifpayment; for a decree is in nature of a 
judgment. 2 Salk. 507. If there be feveral debts due on 
feveral bonds from the teftator, his executor may pay 
which bond debt lie pleafes, except an altion of debt is 
actually commenced againft him upon one of thofe bonds ; 
and in fuch cafe, if, pending an allion, another bond-cre¬ 
ditor brings another allion againft him, before judgment 
obtained by either of them, he may prefer which he will 
by confefting a judgment to one and paying him, which 
judgment he may plead in bar to the other adtion. Vaugh. 
89. But this judgment confelfed muft be before plea. 
The ufual way is, if there is time, and an executor or 
adminiftrator is delirous of preferring another creditor of 
equal degree with him who fues, is, inftantly, before plea 
to confefs a judgment, and then plead it, with a plene ad- 
mijlravit ultra. 
On a Jcire facias againft an executor, he cannot plead 
fully adminiftred, but muft plead fpecially that no goods 
of the teftator came to his hands, whereby he might dif- 
charge the debt; for he may have fully adminiftred, and 
yet be liable to the debt, where goods of the teftator’s af¬ 
terwards come to his hands. 1 Lill. 368. Cro. Eliz. 375. In 
Jcire facias againft executors, upon a judgment againft their 
teftator, they pleaded plene adminifravit, by paying debts 
upon bonds ante notitiam: it was adjudged no plea, for at 
their peril they ought to take notice of debts upon record, 
and firlt pay them ; and though the recovery be in ano¬ 
ther county than that where the teftator lived ; but where 
an adtion is brought againft executors in another county 
than where they live, and they not knowing thereof, pay 
debts upon fpecialty, it is good. Cro. Eliz. 793. Where 
day of payment is part, the penalty of a bond is the fum 
due at law, but where the day of payment is not come, 
the fum in the condition is the debt, and the executor 
cannot cover the alfets any further. Bank of England v. 
Morrice, widow. Annaly, 224. 
A bill may be exhibited in the chancery againft an exe¬ 
cutor, to difeover the teftator’s perfonal eftate ; and there¬ 
upon he fhall be decreed to pay debts and legacies. If a 
perfon being executor, and his teftator greatly indebted, 
be defirous to pay the aftets as far as they will go, and 
that his payments may not be afterwards queftioned, he 
may bring a bill in equity againft all the teftator’s credi¬ 
tors, in order that they may, if they will, conteft each 
other’s debts, and difpute who ought to be preferred in 
payment. 2 Vcrn. 37. Where there are only equitable 
aftets, they muft be equally paid amongft all the credi¬ 
tors; for a debt by judgment, and limple contrail, is in 
confcience equal. 2 Peere William, 416. And it is held, 
that bonds, and other debts, (hall be paid equally by 
executors, where a perfon has devifed lands to them to 
be fold for the payment of his debts. 1 P. Wins. 430. A 
debt devifed by the teftator, is not to be paid by the 
debtor to the legatee, but to the executor, who alone can 
give a fufficient difcharge for it, and is anfwerable to the 
legatee it there be fufficient alfets. If an executor pays 
out the'aflets in legacies, and afterwards debts appear, of 
which he had no notice, which he is obliged to pay, the 
executor by bill in chancery may force the legatees to 
refund. Chan. Rep. 136. One legatee paid (hall refund 
againft another, and againft a creditor of the teftator, that 
can charge the executor only in equity ; but if an execu¬ 
tor pays a debt upon fimple contrail, there fhall be no re¬ 
funding to a creditor of a higher nature. 2 Vent. 360. 
The following extracts from Mr. Cox’s notes to his 
edition of Peere Williams’s Reports, will ferve as a gene¬ 
ral fummary of the determinations, relative to the appli¬ 
cation of the different funds of a teftator’s eftate, in pay¬ 
ment of his difterent debts.—The perfonal eftate of a tef¬ 
tator fhall in all cafes be primarily applied in difcharge 
of his perfonal debt (or general legacy), unlefs he by ex- 
prefs words, or manifeft intention, exempt it.—Every 
loan creates a debt from the borrower, whether there be 
a bond or covenant for payment or not. So the perfonal 
eftate fhall be liable, although fuch perfonal debt be alfo 
fecured by mortgage.—So lan Is fubjelt to or devifed for 
payment of debts, fhall be liable to difcharge fuch mort¬ 
gaged lands either defeended or devifed, even though the 
mortgaged lands be devifed exprefsly fubjelt to the in¬ 
cumbrance.—'So lands defeended fhall exonerate mort¬ 
gaged lands devifed.—And unincumbered landsand mort¬ 
gaged- lands both being fpecifically devifed (but exprefsly 
“after payment of all debts”) fhall contribute in difcharge 
of fuch mortgage. But in all thefe cafes the debt being 
confidered as the perfonal debt of the teftator himfelf, the 
charge on the real eftate is merely collateral. The rule 
therefore is otherwife where the charge is on the real 
eftate principally, although there be a collateral perfonal 
fecurity, or where the debt, although perfonal in its crea¬ 
tion, was contracted originally by another. 
With refpetl to the priority of application of real aftets, 
when the perfonal eftate is either exempt or exhaufted, 
it feems that, firft, the real eftate exprefsly devifed for 
payment of debts fhall be applied ; fecondly, to the ex¬ 
tent of fpecialty debts, the real eftate defeended ; thirdly, 
the real eftate fpecifically devifed fubjedl to a general 
charge of debts. It being the objelt of a court of equity 
that every claimant upon the aftets of a deceafed perfon 
fhall be fatisfied, as far as fuch aftets can, by any arrange¬ 
ment confiftent with the nature of the refpellive claims, 
be applied in fatisfallion thereof; it has been long fettled 
that where one claimant has more than one fund to refort 
to, and another claimant only one, the firft claimant fhall 
refort to that fund on which the fecond has no lien. If 
therefore a fpecialty creditor, whofe debt is a lien on the 
a real aftets, receive fatisfallion out of the perfonal aftets, 
a fimple contrail creditor fhall (land in the place of the 
fpecialty creditor againft the real aftets, fo far as the latter 
fhall have exhaufted the perfonal aftets in payment of his 
debt. And legatees fhall have the fame equity as againft 
aftets defeended. So where lands are fubjelted to pay¬ 
ment of all debts, a legatee fhall (land in the place of a 
fimple contrail creditor, who has been fatisfied out of 
perfonal alfets. And where legacies by will are charged 
on the real eftate, but not the legacies by codicil, the 
former (hall refort to the rent aftets upon a deficiency of 
the perfonal aftets to pay the whole. But from the prin¬ 
ciples of thefe rules, it is clear that they cannot be ap¬ 
plied in aid of one claimant, fo as to defeat the claim of 
another, and therefore a pecuniary legatee (hall not (land 
in the place of a fpecialty creditor as iagainft land devifed, 
though he fhall as againft land defeended. But fuch 
legatee (hall Hand in the place of a mortgagee who lias cx- 
haufled the perfonal aftets to be fatisfied out of the mort¬ 
gaged premiies though fpecifically devifed; for the appli¬ 
cation of the perfonal aftets in cafe of the real eftate mort¬ 
gaged, does not take place to the defeating of every legacy. 
It is now fettled that the court of chancery will not 
marfhal aftets in favour of a charitable bequeft fo as to 
give it effelt out of the perfonal chattels, it being void fo 
far as it touches any intereft in land. Attorney-general 
v. Tyndal, Amb.ti 14. And it is to be obferved, that none 
of the rules above-mentioned fubjelt any fund to a claim 
to which it was not before fubjelt; but only take care 
that the election or one claimant (hall not prejudice the 
claims of the others. 2 Atk. 438. 1 Vcz. 312. 
When. 
