press promise, to be of any avail, as the foundation of an action against the personal representative, must, it would seem, be upon some sufficient consideration, independent of the debt itself, such as having assets and the delay to sue; both. 43. A payment by a joint contractor, after the death of his co-contractor, although sufficient to take the case out of the effect of the statute of limitations as to a co-contractor still living, will not have that effect as to one already deceased.74 And it will make no difference that the surviving co-contractor was also the executor of the deceased one.75 44. Neither will any acknowledgment or payment upon the debt, on the part of the personal representative of the deceased co-contractor, have any effect in removing the bar as to the survivor.76 45. But where the testator never came within the state, that be considered that the promise of one executor to pay a debt of the testator, barred by the statute of limitations, will remove the bar as to all, and a similar rule obtains in many of the other states. Hord's Admrs. v. Lee, 4 Monr. 36; Head v. Manners, 5 J. J. Marsh. 255. The distinction goes upon the question, whether the mere acknowledgment of the debt by the personal representative will be sufficient to remove the bar. Most of the American cases, as well as the English, require an express promise to produce that effect. Peck v. Botsford, 7 Conn. R. 172; Cayuga Bank v. Bennett, 5 Hill, 236; Hammon v. Huntley, 4 Cowen, 493; Forsyth v. Ganson, 5 Wend. 558; McIntire v. Morris, 14 Wend. 90; Oakes v. Mitchell, 15 Maine R. 360; Thompson v. Peter, 12 Wheaton, 565. And in Pennsylvania it seems to be considered that a prior express promise to pay the debt, made by the personal representative, is no unimpeachable answer to the plea of the statute. Fritz v. Thomas, 1 Wharton, 66; Reynolds v. Hamilton, 7 Watts, 420. But see Johnson v. Beardslee, 15 Johns. 3, where it is held that the express promise of one or more of the executors will bind all absolutely and irrevocably. But to make the promise of any effect, it must appear the person making it was executor at the time. Larason v. Lambert, 7 Halst. 247, 255. "Atkins v. Tredgold, 2 B. & Cr. 23. Way v. Bassett, 5 Hare, 55; Brown v. Gordon, 16 Beavan, 302. "Slater v. Lawson, 1 B. & Ad. 396. fact will remove the operation of the bar of the statute, whenever the statute contains such an exception.77 46. But, as we have before intimated, it is no excuse that the debtor died before the statute bar became effectual, and that no personal representative had been appointed until just before the suit brought, for if the statute once begins to run it will continue to run until the bar is complete, unless there is some exception in the statute which arrests its operation.78 47. One sued in his representative capacity cannot set off debts due him in his personal right, or vice versa.79 But an executor, sued upon an account stated by him as executor, may set off any debt due the testator, since the account must be regarded as stated on account of the debts due from the testator.80 48. Upon an action against the personal representative, if there is any deficiency of assets he must plead it, for a judgment against him generally is presumptive of assets to satisfy it.81 But if the representative plead plene administravit, the judgment for the debt, with such a plea upon the record, only binds the defendant to the extent of assets proved in his hands.82 49. And if the defendant have only assets applicable to debts entitled to prior payment, he should show that in defence.88 50. The inventory of the effects of the deceased is prima facie evidence of what came to the hands of the executor or administrator, and will impose upon him the burden of showing how "Douglas v. Forrest, 4 Bing. 686; Story v. Fry, 1 Y. & Coll. C. C. 603. T8 Rhodes v. Smethurst, 4 M. & W. 42; s. c. 6 id. 351; Freake v. Cranefeldt, 3 My. & Cr. 499. "Bishop v. Church, 3 Atk. 691; Gale v. Luttrell, 1 Y. & Jer. 180. 80 Blakesley v. Smallwood, 8 Q. B. 538; Rees v. Watts, 11 Exch. 410, 415. But query, whether the account stated shall not be presumed to embrace all the dealings between the parties? Wheatley v. Lane, 1 Saund. 219 b, and note. 82 1 Saund. 219 b, and note; Cousins v. Paddon, 2 Cr., M. & Rosc. 547, by Parke, B. 82 2 Wms. Exrs. 1770, 1771. he has disposed of the same.84 And all debts in favor of the estate which appear upon the inventory, without any intimation that they are desperate, will be presumed good until the contrary be proved.85 The early practice of the English courts was for the personal representative to mark upon the inventory all choses in action, either sperate or desperate. And it was, for a time certainly, the American practice to inventory the choses in action, indicating whether they belonged to the class of collectible or uncollectible. The more recent practice here is, we think, to inventory choses in action in a very general way, and without any very definite indication of their character. 51. Costs, whether in favor or against the personal representative, are controlled mainly in the different states by statutory provisions. The general rule, and certainly the general reason and justice of the case, would seem to incline to the conclusion that where the personal representative prevails in the suit, whether as plaintiff or defendant, he should be allowed to receive full costs, the same as any other party.8 And the rule is the same, although he plead different pleas, some of which are decided against him, provided the suit is finally decided in his favor.87 52. But there seems to have prevailed, in the American states, considerable diversity of opinion in regard to the liability of executors and administrators for costs, where controverted suits * Giles v. Dyson, 1 Stark. N. P. C. 32. Shelly's Case, 1 Salk. 296; Smith v. Davis, Bull. N. P. 140. But see Giles v. Dyson, 1 Stark. N. P. C. 32, where it is intimated that further proof may be required to charge the executor or administrator with the collection of debts due the estate. As to the effect of the inventory in proof of assets, see ante, § 30. *Cockson v. Drinkwater, 3 Doug. 239. Ragg v. Wells, 8 Taunt. 129; Edwards v. Bethel, 1 B. & Ald. 254. See also Marshall v. Willder, 9 B. & C. 655, 657; O'Hear v. Skeeles, 22 Vt. R. 152, where it is held, that under the Vermont statute executors and administrators stand upon the same ground as other suitors in regard to costs; and we see no reason why they should not. were finally decided against them. The English rule seems to have been that they must pay costs, the same as any other party, when cast in the suit.88 And the English cases all agree that the judgment shall be given for costs de bonis propriis.88 But the American cases seem to go upon the ground that costs are in the nature of a penalty or punishment, and that an executor or administrator ought not to be subjected to their payment, where it is apparent he acted in good faith in bringing and prosecuting the suit.89 But the rule in Massachusetts at an early day seems to have conformed to the English rule.90 And where the suit is founded upon some act or omission of the executor himself, and the suit might be brought against him in his private capacity, he will be held liable to costs upon failure.91 And in New York the rule seems to have been generally maintained that executors and administrators must pay costs upon failure of the suit, the same as any other party.92 SECTION II. BY RESORT TO A COURT OF EQUITY. 1. Courts of equity do not generally relieve upon claims not surviving at law. 2. But in some cases of mistake and error, relief in equity will be granted. 3. Equity will grant an account of the avails of waste against personal representative. 4. Courts of equity charge the personal representatives of trustees for breaches of trust, 89 Hancocke v. Prowd, 1 Saund. 336 a, 336 b, and note; Dearne v. Grimp, 2 W. Bl. 1275. * Frogg's Exr. v. Long's Admr., 3 Dana, 157; Morse v. M'Coy, 4 Cow. 551; Evans v. Pierson, 1 Wend. 30; Robert v. Ditmas, 7 id. 522. "Hardy v. Call, 16 Mass. Rep. 530; Brooks v. Stevens, 2 Pick. 68; Healy v. Root, 11 id. 389. " Barker v. Baker, 5 Cow. 267; Chamberlin v. Spencer, 4 Cow. 551. 92 Hogeboom v. Clark, 17 Johns. 268; Cuylers v. Kniffin, 2 Wendell, 243; Rudd v. Long, 4 Johns. 190; Brown v. Lambert, 16 Johns. 148; Kellogg v. Wilcocks, 2 Johns. 377; Salisbury v. Philips, 12 id. 289. 5. Equity will enforce a debt against the personal representatives of a deceased partner. Mode of procedure. 6. Reference to two cases, where these principles are more fully discussed. 7. It is not the professed rule in courts of equity to grant relief against the representative of a deceased joint contractor, unless the obligation were substantially several. 8. But in fact the English equity courts allow the remedy in all cases of joint contracts, on the presumed ground that it was intended to be several as well as joint. 9. The estate of a deceased partner not released until payment, or clear consent. 10. The mere continuance of the dealing with, or accepting interest of new firm, not sufficient. 11. Courts of equity will decree the renewal of lease against personal representative who has entered into possession, and has assets. 12. How far the heir or devisee may insist upon the conversion of personal into real estate. 13. The specific legatee may insist upon the executor removing all encumbrances. 14. All payments of assessments on shares to be made by legatee, if imposed after decease of testator. 15. The grounds upon which relief may be given upon a contract for legacy. 16. But where the nature and extent of the legacy rests in discretion, no action lies. 17. Courts of equity will not decree the execution of a gift, but will of contracts to assign or to grant annuities. 18. Equitable remedies against representative, to same extent as against decedent. 19. In England, courts of equity exercise control over executors and administrators as trustees. 20. In America, they sometimes act in aid of the probate courts. 21. Occasions where resort to courts of equity is needful. (1.) Where it is required to fix the construction of the will. (2) To recover general legacies, or a distributive share, but not specific legacies. (3.) Creditors' bills, and bills to prevent connivance and conspiracy. (4.) Bills for an account against representative and surviving partner. (5.) Writs of ne exeat and similar process, but not against femes covert. 22. Statutes of limitation and lapse of time, how far operative. 23. Will not bar a legacy, but may, if aided by circumstances. 24. No occasion to appoint receivers, to take charge of effects, in America, the powers of probate courts being entirely adequate. 25. The executor may pay the amount of contested legacy into court and have costs. 26. Where executors waste the estate, legacy due them will be retained. § 40. 1. COURTS OF EQUITY will not ordinarily interpose for the purpose of affording relief against the personal represent |