1832. DAVIS V. ministrator durante minore ætate, had paid certain debts, and had delivered over the residue: and The Governor and Company of the Chelsea Waterworks v. Cowper (a), BLACKWELL. where it was held, that, on plenè administravit, the Defendant might shew he had paid over the residue to the residuary legatee, after discharging debts and legacies the year after the testator's death. Wilde Serjt. shewed cause. The Defendant must be presumed to be aware of a lease to the testator which did not expire till after his death. If so, he was not warranted in paying legacies till he had ascertained and discharged all outstanding liabilities. At all events, payment of the legacies within six months was premature. Brooking v. Jennings only decides, that an executor durante minore ætate may pay over the residue to the executor who comes of age; and in The Governor and Company of Chelsea Waterworks v. Cowper, the creditor did not make his claim till thirty years after the executor had paid over the assets: after such a lapse of time, it is a presumption that even a bond has been discharged. In Wilkins v. Pry (b), the Master of the Rolls laid it down, "That an executor to the extent of assets is liable to be sued upon his testator's covenants, without regard to his having, or not having the possession of the lease. Even if the testator had, before his death, assigned the lease, the executor would not be the less liable to be sued upon the covenants. He cannot, by assigning it away himself, get rid of his liability to be sued. There is, therefore, a reason why he should require a covenant of indemnity, just as much as there was, why the testator himself should have required such a covenant; because, as the testator was bound by the personal covenant, the executor is bound to the extent of assets by the same covenant." The (a) 1 Esp. 275. (b) 1 Meriv. 265. lessor 1832. DAVIS lessor has no remedy except on his covenant, while the executor might have required an indemnity before paying the legatees. Plenè administravit, is a plea not established by mere payment of legacies; the Defendant BLACKWELL. must shew that they were paid in proper order; so that even a verdict for the Defendant could not have been sustained on this evidence. Spankie. The replication raises no issue of a devastavit, which it should have done, if the Plaintiff meant to rely on the objection that the legacies were paid out of their due order. It is the duty of an executor to pay legacies, and the Defendant ought not to suffer for discharging that duty promptly. By the statute of distributions, 22 & 23 Car. 2. c. 10., administrators may proceed to wind up the intestate's affairs at the expiration of a twelvemonth from his death. The same practice may properly be prescribed to executors: and here the testator had been dead more than a twelvemonth before the Defendant paid the legacies. Where an executor has no notice of bonds, he is justified in paying simple contract debts. Harman v. Harman. (a) And the same principle ought to be applied with respect to the payment of legacies. The Defendant here received no actual notice, and he cannot be presumed to have implied notice of his testator's liability, for the testator did not occupy the house in question, and, upon assignment, the lease would pass out of his hands. TINDAL C.J. The only question is, whether the Defendant has shewn by evidence that he has duly administered the effects of his testator; for it lies on him to shew affirmatively that he has done so, and it is not necessary for the Plaintiff to reply a devastavit. Now, (a) 3 Mod. 115. V. 1832. DAVIS V. it appears that the will was proved in May 1830, and that after some debts had been paid, the Defendant, in November 1830, made over all that remained to the BLACKWELL, residuary legatee; thus allowing only six months to elapse before he so disposed of the whole of the assets. That cannot be deemed an administering of the assets in due course of law, so as to afford an answer to the Plaintiff's demand. It is not clear, indeed, that payment of legacies would in any case be an answer to a demand of a debt; for all the text books lay it down, that "after the payment of debts, it is the duty of the executor to pay legacies," and if he pays legacies first, he does it at his own hazard. I am not, however, prepared to say that after such a length of time as elapsed in the case of the Chelsea Water Works Company v. Cowper, the laches of the creditor might not be deemed a waiver of his right against the executor; it is not necessary here to decide that point: it is certain, however, that in the case of administrators, the statute 22 & 23 Car. 2. c. 10. leads us to infer that no payment of legacies would be a discharge against a claim of debt. By s. 8. of that statute it is enacted, "That no such distribution of the goods of any person dying intestate be made till one year be fully expired after the intestate's death; and that each and every one to whom any distribution and share shall be allotted, shall give bond with sufficient sureties in the said courts, that if any debt or debts truly owing by the intestate shall be afterwards sued for and recovered, or otherwise duly made to appear, then and in every such case he or she shall respectively refund and pay back to the administrator, his or her rateable part of that debt or debts, and of the costs of suit and charges of the administrator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said administrator to pay and satisfy the said debt 1832. DAVIS ข. debt or debts so discovered after the distribution made as aforesaid." That section leads to the inference that payment of legacies would not be a bar in an action against an administrator for a debt due from the in- BLACKWELL. testate: if it would not in an action against an administrator, there is no reason why it should in an action against an executor; for, though an executor should not provide himself with a bond of indemnity, as an administrator is enjoined to do, the spiritual court would decree that the legacy should be refunded, if debts were afterwards discovered. I will not say that such a defence might not be made if the debt were claimed after a great lapse of time, but six months does not appear to me to be a reasonable time for ascertaining the existence of debts; and the legacies having therefore been paid prematurely, this rule must be discharged. PARK J. I am of the same opinion. It is admitted that there is no case precisely in point, and perhaps that is because executors seldom pay so precipitately. But I do not agree that the twelvemonth from the time of the death pointed out by the statute of distribution in the case of administrators, affords any guide for the case of executors; for if so, an executor might defer taking out probate with a view to elude the creditor. Brooking v. Jennings, and Harman v. Harman, only decide that the executor may pay simple contract debts where he has no notice of a specialty creditor; and in a note to the case of Harman v. Harman, the editor says, the Court were of opinion, that where the payment of a simple contract debt is compulsive, it is a good payment without a notice, but not where the payment of such debt is voluntary. But in the Chelsea Water Works Company v. Cowper, Lord Kenyon, as to other payments, puts in a qualification, which applies expressly to this case; "Provided it be not done too precipitately;" that is the question. I think the executor has been too pre cipitate 1832. DAVIS ข. BLACKWELL. cipitate in this case, and that therefore the rule must be discharged. GASELEE J. I think the executor has been premature in paying the legacies. In the Chelsea Water Works Company v. Cowper, thirty years elapsed before the creditor preferred his claim. Without saying what is the proper time for the payment of legacies, or whether in any case the payment of them before debts can be justified, I think the payment here was too soon. BOSANQUET J. I think the rule must be discharged. The executor is to pay specialty debts, simple contract debts, and legacies, and to pay them in that order. Cases may occur in which he may be justified in paying a simple contract debt first, because when the simple contract creditor proceeds before the executor has notice of the specialty, he cannot plead the specialty debt in bar. But the demand of a legatee stands on a different footing, because, in the language of courts of equity, he is no more than a volunteer, who cannot be satisfied till all debts are discharged. No precise time has been fixed for the payment of legacies; but in the case of the Chelsea Water Works Company, Lord Kenyon thought that after a great lapse of time the laches of the creditor might justify the executor in paying them, provided he was not too precipitate. With respect to administrators, they are required by the statute not to pay over the residue in less than twelve months after the death of the intestate; but that period cannot be applied to the case of an executor, so as to justify him in paying over when a twelvemonth has expired from the death of the testator, for by deferring the taking out of probate he might mislead the creditors, and give them little or no opportunity of giving notice of their claims. The real question there fore |