But one executor shall not be answer able for money received, or detriment occasioned by the other, unless it has been by some act done between them jointly. An executor or administrator has the same remedy for recovering debts and duties, as the deceased would have had if living. Neither an executor nor admin istrator can maintain any action for a per sonal injury done to the deceased, when such injury is of such a nature for which damages may be received ; in actions, however, which have their origin in breach of promise, although the suit may abate by the death of the party, yet it may be revived either by his executors or ad ministrators, who may also sue for rent in arrear, and due to the deceased in his life-time. By the custom of merchants, an executor or administrator may indorse over a bill of exchange, or promissory note. An executor or administrator may also, on the death of a lessee for years, assign over the lease, and shall not be answerable for rent after such assign ment, nor shall he be liable for rent due after the lessee's death, from premises which in his life-time he had assigned to another.
An executor, or administrator, is bound only by such covenants in a lease as are said to run with the land. The executor, or administrator, previous to the distri bution of the property of the deceased, must take an inventory of all his goods and chattels, which must, if required, be delivered to the ordinary upon oath. He must then collect, with all possible con venience, all the goods and effects con tained in such an Inventory ; and what ever is so recovered that is of a saleable nature, and can be converted into money, is termed assets, and makes him respon sible to such amount to the creditors, le gatees, and kindred of the deceased.
The executor, or administrator, having collected in the property, is to proceed to discharge the debts of the deceased, which he must do according to the fol lowing priorities, otherwise he will be personally responsible. 1. Funeral ex penses, charges of proving the will, and other expenditures incurred by the exe cution of his trust. 2. Debts due to the
King on record, or by specialty. 3. Debts due by particular statutes, as by 30 Geo. II. c. 23 ; forfeitures for not bu rying in woollen, money due for poor rates, and money due to the post-office. 4. Debts of record, as judgments, statutes, recognizances, and those recognized by a decree of a court of equity, and debts due on mortgage. 5. Debts on special contract, as bonds or other instruments under seal ; and also rent in arrear. 6. Debts on simple contract, viz. such as debts arising by mere verbal promise, or by writing not under seal, as notes of hand, servants' wages, &c.
The executor is bound at his peril to take notice of debts on record, but not of other special contracts, unless he receives notice. If no suit be actually commenc ed against an executor or administrator, he may pay one creditor in equal degree the whole debt, though there should be insufficient remaining to pay the rest : and even after the commencement of a suit, he may, by confessing judgment to other creditors of the same degree, give them a preference. Executors and ad ministrators are also allowed, amongst debts of equal degree, to pay themselves first; hut they are not allowed to retain their own debt to the prejudice of others in a higher degree ; neither shall they be permitted to retain their own debts, in preference to that of their co-executor, or co-administrator, of equal degree, but both shall be charged in equal propor tion. A mortgage made by the testator must be discharged by the representative out of i he personal estate, if there be sufficient to pay the rest of the creditors and legatees: where such mortgage, how ever, was not incurred by the deceased, it is not payable out of the personal estate.
EraceToar devise, is defined a future interest, which cannot vest at the death of a testator, but depends upon some con tingency, which must happen before it can vest ; it is called so to distinguish it from a remainder, from which it differs ill being less strictly restrained by technical rules.