of the Rolls, Sir J. Romilly, that the personal assets of the testator must be administered according to the law of his domicil. This was a case where the testator died domiciled in Ireland, leaving personalty both in Ireland and in England. The learned judge said, that as to all the assets, he must decide precisely the same as if he were sitting in a court of equity in Dublin. But in a late case before Vice-Chancellor Kindersley, it was said, in regard to a case similarly circumstanced, that the Irish assets should be administered according to the Irish law; and the same also as to any surplus remitted to Ireland, the place of domicil, to be there administered. But from the tenor of the remarks of the learned judge, it is to be inferred that he regarded it to be the duty of the personal representative, in every jurisdiction, so far as creditors are concerned, to distribute the assets within his control, according to the law of that jurisdiction, paying all debts, in full, if practicable, and then remit any surplus to the place of domicil, to be there disposed of among the legatees, or next of kin, in conformity with the law of that place. It is certain, we think, that the course here indicated is the one which prevails, to a great extent, if not universally, in the American states, as we have stated more fully elsewhere.9 4. It seems to be beyond question, that the testator has no power to direct his executor to pay all his debts equally, and thus defeat legal preferences.10 The order of paying debts is a matter in regard to which no testamentary power exists, that not extending beyond that of directing the particular property upon which the burden may be imposed. But as before stated," case, that the distribution of all the personal effects should be made according to the law of the place of the domicil of the decedent, and that the authority to make such distribution must be derived from the proper tribunals where the property is situated. In this last case the question arose exclusively between distributees, and not among creditors. • Cook v. Gregson, 2 Drewry, 286. Ante, § 2 and notes. 10 Turner v. Cox, 8 Moo. P. C. C. 288. 11 Ante, § 36, n. 1. all legal preferences are subject to any existing lien upon the property at the time of the decease of the testator or intestate, whether that lien be one created by law or by contract.12 5. There are many cases where special preferences are created by statute. Thus, in England, debts due the post-office, not exceeding £5; debts due from an overseer of the poor for moneys received by virtue of his office, and moneys in the hands of the deceased belonging to any Friendly Society, with some others, are preferred by special statutory provisions. We are not aware that such preferences exist in the American states to any considerable extent. It is held in Kentucky, under their statute of 1839, that the personal representative of the father, who had acted as natural guardian of his child, and in that capacity had received moneys belonging to the child, must first pay such moneys as a preferred debt.18 6. In some of the states docketed judgments are entitled to priority of payment.14 By this is meant, that such debts shall have priority according to the order of docketing, and not according to the date of such judgments.15 A justice judgment, if docketed, will be entitled to preference.16 But a foreign judgment, or one recovered in another state, cannot be docketed, and is not entitled to preference in payment.17 But a judgment against an executor or administrator is not entitled to pref "Turwin v. Gibson, 3 Atk. 720; Lloyd v. Mason, 4 Hare, 132. By the English statutes the preferences in favor of the Crown are limited to debts of record and by specialty, but this limitation, as we have before stated, does not obtain in regard to debts due the United States, and, we presume, not to any considerable extent, as to debts due the several states. The preferences, in the American statutes, generally, but not always, are irrespective of the form of the debt. "Curle v. Curle, 9 B. Monr. 309. 142 Rev. Stat. N. Y. 87. "Ainslie v. Radcliff, 7 Paige, 439. "Stevenson v. Weisser, 1 Bradf. Sur. Rep. 343. "Brown v. Public Admr. 2 Bradf. Sur. Rep. 103. erence in payment, but will take the same order as the cause of action.18 Decrees in the courts of equity stand on the same footing as judgments in the courts of law.19 But a mere interlocutory judgment, as one to account, will not secure a priority, it must be a final judgment for payment of a defined sum.20 So, too, the ordinary decree of foreclosure is not a judgment for payment, but only for foreclosure, and will not give priority." SECTION III. THE PAYMENT OF DEBTS GENERALLY. 1. No distinction made, in America, between specialties and simple contract debts. 2. Voluntary bond or covenant postponed to creditors. But a voluntary settle ment upon wife and children may create a valid debt. 3. Breaches of trust treated as merely simple contract debts. 4. All debts treated as due at the decease of the testator or intestate. 5. Contingent undertakings are not to be regarded as debts, until the contingency transpires, but they should be provided for before payment of legacies. 6. Indemnities regarded as debts, after breach of the condition. 7. All estates here are settled, either as solvent or insolvent. I. Solvent estates or those so treated must pay all creditors. 1. In such cases the representative may pay debts in any order he chooses, 3. Power of the personal representative to compromise debts, &c., or submit 18 Parker v. Gainer, 17 Wendell, 559; 2 Wms. Exrs. 900. By the present English statute (1 Vic. c. 110, § 19) no judgment-lien can be created until special notice of such claim shall be filed with the Master of the Court of Common Pleas at Westminster, and all docketing of judgments is there abrogated in future. 19 Shafto v. Powel, 3 Lev. 355. 20 Smith v. Eyles, 2 Atk. 385. 21 Wilson v. Lady Dunsany, 18 Beav. 293, 299. II. All doubtful estates settled as insolvent. 1. Most estates settled in this form. Report of commissioners, accepted by court, creates final judgment from which appeal lies. 2. Otherwise, it becomes conclusive as to debts due from the estate. 3. This need not embrace expenses of funeral and last sickness. 4. The court should declare a dividend on debts unless estate ample; or this may be deferred till after settlement of first administration ac count. 5. The creditors must obtain a final decree in their favor, in the probate court, and may then sue the administration bond. 6. The probate court is the exclusive forum for determining all questions affecting faithful administration. 7. A final decree on the account of administration may be regarded as equivalent to a decree in favor of the creditors. Such decree may be rendered on failure of appearance. 8, and n. 19. But the bond for faithful administration cannot be sued in the common-law courts, until all breaches complained of have been established by decree of the probate court. 9. The personal representative may present claims, in his own favor, before the commissioners, or on rendering his administration account. 10. The personal representative secure in disposing of assets according to decree of the court. 11. But he cannot retain from a legacy the indebtedness of the legatee. Query? 12. The bond for faithful administration may be put in suit by any one showing a prima facie breach. 13. Giving a bond for payment of debts and legacies conclusive admission of assets for that purpose. §38. 1. As there is no distinction made in most of the American states, in regard to the order of payment, between specialty and simple contract debts, most that is found in the English books upon this subject may be omitted here. 2. It may be stated, as a general rule, that a bond, or covenant, merely voluntary, shall be postponed till after the payment of all bona fide debts, owing for valuable considerations; but such bond or covenant, if not in the way of the payment of 1 Post, § 42, where it will appear that a simple contract, in the form of a note or bill, or, indeed, in any other form, will not constitute a good donatio mortis causa, not being upon consideration, and not implying a good consideration like a contract under seal. the creditors, should be paid by the personal representative, in preference to legacies,2 since even a voluntary bond or covenant creates a binding obligation, during the life of the testator, but his will only takes effect at his decease. But a bond and mort gage to secure the payment of money expressed to have been borrowed by the husband from the trustees of a settlement, made, during coverture, upon the wife and children, is not to be regarded as merely voluntary, and it will make no difference whether the money was paid over to the trustees by the husband and then borrowed of them, or a bond given expressive of such facts, without the form of paying over the money.1 3. Breaches of trust are ordinarily regarded as simple contract debts, and are entitled to payment as such,5 unless the debt and breach of trust both arise from the violation of an obligation under seal, where such debts are entitled to preference. 4. It has been often held, that it will make no difference, in regard to the duty of the personal representative to pay debts, whether they are due presently or only in future. All the actual indebtedness of the deceased is to be liquidated, as of the day of the death of the debtor, except only that such debts as carry interest by the terms of the contract, will be entitled to demand interest, until there has been unreasonable delay in making payment, and then the interest for the damages caused by the delay of the executor or administrator should be borne by him, unless it has been saved to the estate, being in the nature of a devastavit. 5. Contingent debts, however, cannot be recognized by the personal representative as imposing any duty of payment, until 2 Jones v. Powell, 1 Eq. Cas. Ab. 84, pl. 2; Cray v. Rooke, Cas. temp. Talb. 153; Watson v. Parker, 6 Beavan, 283; Cox v. Barnard, 8 Hare, 310. Tanner v. Byne, 1 Sim. 160. By Sir John Leach, V. C., in Tanner v. Byne, 1 Sim. 160, 169. • Gifford v. Manley, Cas. temp. Talb. 109; Benson v. Benson, 1 Peere Wms. |