Administration of Estates. repose in its nature, and after the period assigned the lien is absolutely discharged, though the existence of the debt was known to the heirs or purchasers, (a) and even though a voluntary conveyance is made to defraud creditors. (b) Though, by the act of 1834, the widow and heirs, if the real estate is to be charged, must be made parties, yet this lien is not discharged by a judgment against personal representatives alone. (c) Order of payment of debts.-The order of the payment of debts of decedents is as follows: 1. Debts due the United States, which are entitled to precedence by act of congress, (d) and which are to be preferred to those in the order established by the act of assembly, (e) though such preference is not thereby given. (ƒ) Notice of such debt must be, however, given to the executor or administrator, otherwise payments are to be made according to the act of assembly, and such payments will not amount to a devastavit. (g) 2. Funeral expenses, medicine furnished and medical advice given during the last illness of the decedent, and servants' wages not exceeding one year, payment of all of which may be compelled within a year after the letters of administration are granted. (h) In the term "servants" are comprised domestic servants, persons who make part of a family, and who are employed to assist in the economy of a house or its appurtenances. (i) But this preference is extinguished where security is taken, as by a servant's obtaining a single bill for his wages. (k) 3. Rents for not exceeding one year. 4. All other debts equally, except (a) Kerper v. Hock, 1 W. 14; Quiglay v. Beatty, 4 W. 13; Hemphile v. Carpenter, 6 W. 22; Seitzinger v. Fisher, 1 W. & S. 293; Bailey v. Bowman, 6 W. & S. 118. (b) Shorman v. Farmer's Bank, 5 W. & S. 373. (c) Murphy's Appeal, 8 W. & S. 165; Beaner v. Phillips, 9 W. & S. 131; Atherton v. Atherton, 2 Barr. 113. (d) Act of March 3, 1797, §3; Fisher v. Blight, 2 Cr. 353; U. S. v. Hooe, 3 Ib. 73. (e) Purd. Dig. 475. (f) Conn. v. Lewis, 6 Binn. 266; Fisher v. Blight, ib. Supr. (g) Ib.; 16 Johns. 79. (h) Act of 1834; Purd. Dig. 475. (i) Ex parte Meason, 5 Binn. 167; Boniface v. Scott. 3 S. & R. 351; Miller's Est. 1 Ash. 323. (k) Silver v. Williams, 17 S. & R. 292. Administration of Estates. 5. Debts due to the commonwealth, which are to be paid last. (a) Payment of none of these can be compelled until one year after letters of administration issue. (b) Where however the laws of a decedent's domicil give a preference to its own citizens over the citizens of Pennsylvania, the like preference is to obtain in favor of the latter. (c) This order of payment relates to personal assets only; and judgments and mortgages recorded in the lifetime of the decedent, (d) which were a lien on the real estate at the time of the party's death, are nevertheless entitled to priority of payment in the proceeds of such real estate, according to date of their lien, (e) and so where the commonwealth obtains a judgment in the lifetime of the party, notwithstanding its postponement to other creditors by the act of assembly, (f) still on the sale of real estate it is the duty of a lien creditor to see that the proceeds are first applied to the discharge of his lien, and he will be considered, in regard to the debtor, as paid all that a due attention to his interests will en title him to receive. (g) After the personal estate is exhausted in the payment of debts, the executor or administrator, on application to the Orphans' Court, will be permitted to sell such part of the real estate as may be further necessary for the satisfaction of debts and legacies, without notice to heirs, &c.; (h) but where the assets have been once sufficient, such an order will not be granted. (i) Where a creditor is executor or administrator he is not enti tled to retain his debt to the prejudice of others of equal degree, but that he takes pro rata with the rest. (k) Marshaling assets.―The questions arising in the marshaling of assets in equity are not of frequent occurrence in Pennsylvania, though the English doctrine may, as a general rule, be understood to be accepted. The rule with regard to the priority of application (a) Act of 1834; Purd. Dig. 475. (d) Adams' Appeal, 1 P. R. 447. (b) Ib. 476. (e) Moliere v. Noe, 4 Dall. 454; Girard v. McDermott, 5 S. R. 128. (f) Ramsey's Appeal, 4 W. 71. (g) Binney v. Comm. 1 P. R. 240; Beaner v. Phillips, 9 W. & S. 21. (h) Act of March 29, 1832, § 31; Purd. Dig. 891. (i) Pry's Appeal, 8 W. 233. (k) Ex parte Meason, 5 Binn. 167. (c) Ib. Administration of Estates. of real estate after the exhaustion of personal is to apply 1. Real estate devised for the payment of debts: 2. Real estate descended: 3. Real estate specifically devised subject to a general charge of debts. (a) Where one creditor has a lien on two funds, and another has a lien upon only one of them, the latter has the right in equity to compel the former to resort in the first instance to the other fund. (b) Debts, after the personalty has been fully administered, are to be paid out of land, to the exclusion of legacies with which it had been charged. (c) Remedies.-The remedies for the enforcement of payment of debts are against the executor or administrator at common law, where the right of action survives; upon the administration bond, and in the Orphans' Court, where the estate is insolvent, or money has been paid into that court. What actions survive.-All personal actions, except actions for slander, libel, ånd for injuries to the person, survive against executors and administrators, and if any such suits have been commenced during a party's lifetime they do not abate by his death, but his executor or administrator may be compelled by scire facias to become a party to such actions. (d) No legal proceedings are in any way destroyed by the death, resignation, or removal of executors or administrators, but their successors may be made parties in like manner. (e) The death of a defendant after a sequestration under order of the Orphans' Court, does not abate it; (f) nor is a domestic attachment in any wise affected by it; notice, however, of the pendency of the attachment must be given to the personal representatives. (g) Though formerly a foreign attachment would not lie against executors, as it was supposed that it might interfere with the distribution of assets; yet now, by act of assembly, legacies and distributive shares, except due to married women, may be attached in the hands of an executor or administrator, by creditors of the parties interested therein. A foreign attachment brought against the decedent him (a) Comm. v. Shelby, 13 S. & R. 348. (b) Cowden's Est. 1 Barr. 273. Administration of Estates. self, during his lifetime, will not abate by his death after final judgment. (a) Wherever any injury to the person or to property, thougn accompanied by actual force, has been productive of benefit to a decedent or to his estate, or has added to the assets in the hands of his representatives, an action for the recovery of damages, or for chattels where they exist in specie, may be had. (b) Thus replevin, detinue, and in some cases, perhaps, trover, will lie, where goods have come into hands of the executor or administrator, or money had and received where they have been sold. (c) Where an immediate injury to personal property, or some special damage is caused by the breach of a promise of marriage, it seems that the same rule applies. (d) It was held, however, prior to the act of assembly of 1834, (e) that trespass vi et armis for seizing a vessel, could not survive against the administrator of a defendant. (f) On application to the Orphans' Court, the executor or administrator may be required to execute any written or parol contract for the conveyance of land, which might have been enforced in equity, left incomplete by the death of his decedent. (g) By such proceeding, however, the right of dower is not divested. (h) Pleading etc. therein. - Judgment is generally, in actions against an executor or administrator as such, to be satisfied out of the decedent's assets only, but he will be liable out of his own estate : 1. Where he has wasted the decedent's goods; in which case if the sheriff return that there are no goods of the decedent, and that the executor has wasted them, or if judgment be obtained in an action of debt suggesting a devastavit, execution can be taken out against his own goods. (i) Formerly, also, if the executor pleaded falsely, or neglected to aver that the assets were insuffi (a) Fitch v. Ross, 4 S. & R. 564. (b) Reed v. Cist, 7 S. & R. 184; Heach v. Metzer, 6 S. & R. 272; Reist v. Heilbrenner, 11 S. & R. 131; Keste v. Boyd, 16 S. & R. 272; Penrod v. Morrison, 2 P. R. 126. (c) Ib. (d) Lallimonde v. Simmons, 13 S. & R. 183. (e) P. D. 476. (f) Nicholson v. Elton, 13 S. & R. 415. (g) Act of 1834; Purd. Dig. 475. (h) Riddleberger v. Mentzer, 7 W. 141; Covert v. Hertzog, 4 Barr. 145. (i) Swearingen v. Pendleton, 4 S. & R. 393. Administration of Estates. cient, and there were no sufficient assets, he would in some cases be liable for the whole debt, and in all for the costs. But the severity of the common law in this respect is now much mitigated, and since the revised act (a) an omission to plead plene administravit in an action brought against the executor or administrator, is no admission of assets; and no mispleading or lack of pleading will make him liable for any debt or damages recovered beyond the amount of assets that have actually come into his hands. (b) (2.) Where he promises upon sufficient consideration to pay any debt of his decedent himself, in which case he alone will be liable (c); and so it is upon all contracts and promises made by him, though exclusively for the benefit of the estate. (d) The executor or administrator is not bound to plead the statute of limitations where he believes the debt to be due (e); and therefore a payment of a debt so borrowed is not a devastavit. (f) But the parties interested in the estate have in some cases been allowed to make use of the statute against the will of the administrator. The acknowledgment, nevertheless, by an executor or administrator of a debt barred by the statute does not stop its running. (g) A set off arising from the falling due of a debt or demand after the death of the party, can only be made by or against his representatives, where the estate is solvent. (h) Judgment. It is a rule that the surviving parties to an action are competent to litigate it, and therefore where one of several joint defendants dies before judgment, and judgment nevertheless is taken against all, it is irregular as to all. (i) If the decease occur after judgment, then execution cannot be taken out against the personalty of the decedent, but the debt nevertheless is a lien on his real estate, and may be revived by scire facias. (k) A judg (d) Friez v. Thomas, 1 Wh. 71; Grier v. Houston, 8 S. & R. 402. (e) Smith Est. 1 Ash. 352. (c) Geyer v. Smith, 1 Dall. 347. (f) In re McFarland, 4 Barr. 129. (g) Fritz v. Thomas, 1 Wh. 66; Forney v. Benedict, 5 Barr. 226. (h) Bosler v. Exchange Bank, 4 Barr. 32. (1) Comm. v. Miller, 8 S. & R. 456; Lewis v. Ash, 2 Miles 110; Ins. Co. v. Spang, 5 Barr. 113. (k) Ib.; Stoner v. Stroman, 9 W. & S. 89. |