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other creditors, is to direct the bond-creditors to be paid out of the real estate, that the personal might be left to others.

LORD CHANCELLOR [HARDWICKE] thought himself not warranted to set up a rule of equity, contrary to the common rules of the court, merely to support a bequest which was contrary to law. It would be contrary to the express direction of the testatrix, who desires first, that her legacies and debts should be paid out of the personal; that is, the natural fund; and if the heir or devisee of the real estate is sued by a bond-creditor, he may stand in the place of that creditor to be reimbursed out of the personal. In Dalton v. James, the legacies were particularly chargeable on both estates; and the court will always for the furtherance of justice, as in the case of debts, or, to comply as far as is consistent with law with the intention of testator, in the case of legacies, when there are two different funds for payment of debts and legacies, order each particular to be paid out of that fund it legally may. But the assets cannot be so marshalled to support a legacy contrary to law.

NOTE

ON THE RIGHT OF THE EXECUTOR TO WAIVE THE DEFENCE OF THE STATUTE OF LIMITATIONS.

IN ENGLAND. If an executor pays a debt justly due from his testator, but barred by the Statute of Limitations, he is not guilty of a devastavit, Lowis v. Rumney, L. R. 4 Eq. 451 (1867); and in a suit subsequently brought for the administration of the estate such payment will be allowed him, Hunter v. Baxter, 3 Giff. 214 (1861), even against the devisees of the real estate upon whom other debts are in consequence thrown, Louis v. Rumney.

But an acknowledgment by an executor will not keep a debt alive so that it can be proved directly against an heir or devisee, Putnam v. Bates, 3 Russ. 188 (1826). See also Briggs v. Wilson, 5 De G. M. & G. 12 (1854). And in Fordham v. Wallis, 10 Hare, 217 (1852), it was held that a simple contract debt which had been kept alive against the personalty by the conduct of the executors, was not entitled under the doctrine of marshalling to stand in the place of specialties against the real estate; but this seems opposed to Lowis v. Rumney; and see Darby & Bos. Sts. of Lim. 87-90.

An executor may retain a debt due to himself from the testator though barred by the Statute, Hill v. Walker, 4 K. & J. (1858); and this right is not lost by failure to assert it before a decree in an administration suit, Stahlschmidt v. Lett, 1 Sm. & G. 415 (1853).

But after decree in an administration suit, the executor, except as to his own debt, loses his right to waive the defence of the Statute, Phillips v. Beal (No. 2), 32 Beav. 26 (1862); and the defence of the Statute may be insisted upon, either by the residuary legatee, Shewen v. Vanderhorst, 1 Russ. & Myl. 347 (1831); Moodie v. Bannister, 4 Drew. 432 (1859); or by another creditor, Fuller v. Redman (No. 2), 26 Beav. 614 (1859). But if the administration suit has been brought by a creditor, the plaintiff's debt is not open after decree to an objection that it is barred under the Statute, made either on behalf of the residuary legatee, Briggs v. Wilson, ubi sup., or of a creditor, Fuller v. Redman (No. 2).

But in an administration suit, if neither the executor nor any one beneficially interested in the estate interpose the bar of the Statute to any claim, the court will not interfere mero motu, Alston v. Trollope, L. R. 2 Eq. 205 (1866). And in Combs v. Combs, L. R. 1 P. & D. 288 (1866), administration was granted to a creditor whose debt was barred by the Statute.

IN AMERICA. The matter is very much affected by the Statutes for settling estates. In some States, the executor can waive the bar of the Statute of Limitations, Walter v. Radcliffe, 2 Desaus. 577 (1808); in others not, Peck v. Botsford, 7 Conn. 172 (1828). In some States it is held that he cannot waive the defence if the claim is barred at the time of his appointment, but can, if it has not become barred till afterward, Seig v. Acord, 21 Grat. 365 (1871); Byrd v. Wells, 40 Miss. 711 (1866). See Smith v. Pattie, 81 Va. 654 (1886).

And it has been sometimes held, contrary to the English cases supra, that an executor cannot retain for a debt from the testator to himself which is barred by the Statute. Rogers v. Rogers, 3 Wend. 503 (1829); Hoch's Appeal, 21 Pa. 280 (1853).

As in England, it has been held in North Carolina, that on a creditor's bill for the administration of an estate, any creditor can interpose the objection of the Statute to the claim of any other creditor. Wordsworth v. Davis, 75 N. C. 159 (1876).

So, in Pennsylvania, on proceedings in the Orphans' Court, Kittera's Estate, 17 Pa. 416 (1851). But cf. Ritter's Appeal, 23 Pa. 95 (1854).

And the law seems to be the same on the settlement of estates in New York, Matter of Kendrick, 107 N. Y. 104 (1887); and cf. Partridge v. Mitchell, 3 Edw. Ch. 180 (1838).

On an application however to sell land for the payment of debts, the heir or devisee is not bound by an executor's waiver of the defence of the Statute, and this not only in New York and North Carolina, Mooers v. White, 6 Johns. Ch. 360 (1822); Bevers v. Park, 88 N. C. 456 (1883), but also in States, e. g. Alabama, where it would seem that the executor has entire control of the defence of the Statute as to the personal assets, Steele v. Steele, 64 Ala. 438 (1879).

But in some States the heir is bound by the executor's waiver, Hodgdon v. White, 11 N. H. 208 (1840); Trimble v. Marshall, 66 Iowa, 233. And even in North Carolina, if a judgment has been obtained in a suit against an administrator, the heir is bound by it, in the absence of fraud, though the administrator might have pleaded the Statute in the suit, but did not, Speer v. James, 94 N. C. 417 (1886).

See 2 Woerner, Amer. Law of Adm. § 401.

In most of the States, there are Statutes requiring claims to be presented against the estates of deceased persons within a certain time, and generally executors have no power to waive these special Statutes of Limitation. 2 Woerner, § 400.

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