In the jurisprudence of the other states, the administration of the assets is likewise subject to various local modifi*419 cations. In a few of the states, the English order of

preference is preserved. (a) In most of them that order is entirely disturbed, and a more just and equitable rule of distribution adopted. Expenses of the last sickness, including the physician's bill, and funeral and probate charges, have everywhere the preference; and generally debts due to the United States and the state are next preferred,' and then all other debts are placed on an equality, and paid ratably in the case of a deficiency of assets; but with the exception, no doubt, of legal liens, if there be any such recognized by law. (b) In Louisiana,

(a) In Virginia, North Carolina, South Carolina, Kentucky, Delaware, Georgia, and Indiana, the English order of preference is preserved, with the exception of a few slight variations. Thus, in South Carolina, no preference is given among debts in equal degree, except that mortgages, judgments, and executions are paid as legal liens, according to seniority. In Virginia and Kentucky, debts due on protested foreign bills are placed on a footing with judgments. By act of Virgiana, of March, 1831, debts due by specialty, and promissory notes, and other writings of decedent, are taken to be of equal dignity. In North Carolina, specialty and simple contract debts are placed on an equality. See Griffith's Law Register, h. t. 12 Wheaton, 594. Chappell v. Brown, 1 Bailey's S. C. Rep. 528. Braxton v. Winslow, 4 Call's Rep. 308. Mayo v. Bentley, ibid. 528. Lidderdale v. Robinson, 2 Brockenbrough, 165. Bomgaux v. Bevan, Dudley's Geo. Rep. 110. Palmes v. Stephens, R. M. Charlton's Geo. Rep. 56.

(b) This is the case in the states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Ohio, Indiana, Illinois, Tennessee, Mississippi, and Alabama, with some small variations. Thus, in Alabama, debts due to sureties are preferred; and in New Jersey, debts due to the United States have preference, and rents due and judgments entered during the life of the decedent, have preference. In Ohio, after funeral expenses and the expenses of the last sickness, a sum is allowed for the support of the widow and children for one year, and then liens on the land, by mortgage and judgment, are preferred. The residue of the assets are distributed ratably among the creditors. In Georgia, after debts due to the public, are payable judgments, mortgages, and executions; the eldest first; next rents; then bonds and other obligations; and, lastly, open accounts. Act of Georgia, December, 1792. Act of New Jersey, 1820. Revised Laws of New Jersey, 766. Griffith's Reg. passim. Dane's Abr. of American Law, vol. i. p. 560. Public Acts of Connecticut, 1821. 5 Hammond's Rep. 483. Statutes of Ohio, 1831. Massachusetts Revised Statutes, 1836. Revised Laws of Indiana, 1838, pp. 181, 186, and of Illinois, edit. 1833, p. 648. In Tennessee, by act of 18th October, 1833, ch. 36, the assets of persons dying insolvent are directed to be distributed ratably among all the creditors.

1 The priority of the United States cannot be affected by Statutes of Distribution, nor by Probate decrees. United States v. Duncan, 4 McL. 607.

there is a particular detail of the order of priority, which is special and peculiar, and minute even beyond the rule of the common law. (a) In Maryland, judgments and decrees have preference, and all other debts are equal; and in Missouri, expenses of the last sickness, debts due to the state, and judg ments, have preference, and all other debts are placed on an equality. (b) In Pennsylvania, the order of administration is, to pay, 1. Physicians, funeral expenses, and servants' wages; 2. Rents not exceeding one year; 3. Judgments; 4. Recognizances; 5. Bonds and specialties; 6. All other debts equally, except debts due to the state, which are to be last paid. (c)

420

*(3.) Of the distribution of the personal estate. 1. When the debts are paid, the administrator (the husband as administrator excepted) is bound, under the English

(a) Civil Code of Louisiana, art. 1051–1061.

(b) Griffith's Law Register, h. t.

(c) Frazer v. Tunis, 1 Binney's Rep. 254. The physician's bill first to be paid is not confined to medicine and attendance in the last sickness. Rouse v. Morris, 17 Serg. & Rawle, 328. But by statute of 24th February, 1838, in Pennsylvania, no preference is now given to judgment over bond and simple contract creditors in the distribution of the assets of decedents. Foreign judgments rank as simple contracts only. Judgments of other states rank in the same grade as judgments in the state. 4 Watts & Serg. 314. The preference given by the laws of almost all countries, in the payment of debts to the expenses of the last sickness, and funeral, and the wages of servants, is founded on considerations of humanity and decorum. The last item of privileged debts is usually confined to menial servants, and to the current wages of the last term of the contract. This is the rule in Scotland. 2 Bell's Com. 162-165. The Massachusetts Revised Statutes, in 1836, go into a minute and very specific detail of the duties of executors and administrators, in collecting, settling, and disposing of the estate of the deceased. Considering the burden, and the incessant calls for the assumption of those trusts, such details are judicious, very useful, and even benevolent. The established rule in the administration of the assets of the deceased persons, in regard to creditors, is to be drawn from the laws of the country where the assets are, and where the executor or administrator acts, and from which he derives his authority, and not by that of the domicil of the deceased. The residue of the assets is distributed according to the law of the domicil. Marshall, Ch. J., in Harrison v. Sterry, 5 Cranch's Rep. 299. Tilghman, Ch. J., in Milne v. Moreton, 6 Binney's Rep. 361. Chase, Ch. J., in De Sobry v. De Laistre, 2 Harr. & Johnson, 224. Smith v. Union Bank of G. 5 Peters's U. S. Rep. 523, 524. Varnum v. Camp, 1 Green's N. J. Rep. 332. Story's Com. on the Conflict of Laws, § 513. See, also, infra, pp. 454, 455. But many of the foreign jurists, to whom Judge Story refers, maintained that the law of the domicil of the debtor, even in a conflict of the rights and privileges of creditors, ought to overrule the jurisprudence of the situs of the effects.

statute of distributions, of 22 and 23 Charles II. ch. 10, after the expiration of a year from the granting of administration, to distribute the surplus property among the next of kin. (a) He is first to account to the ordinary court of probates, surrogate or other proper jurisdiction, and which, in several of the United States, is appropriately termed the orphans' court. It is held, that he is not bound to distribute without a previous order for that purpose; (b) and the statute of distributions makes it the duty of the court of probates to decree distribution. (c)

(a) Mr. Robertson, in his Treatise on Personal Succession, Edinburgh, 1836, ch. 1 to 6, has gone fully, and with great research and learning, into the history of the law of successions in England, Scotland, and Ireland, and has traced the gradual relaxation of the restrictions on the power of bequests, and the alterations and improvements in the administration and distribution of intestates' estates, down to the present time. This interesting treatise is republished in the Law Library, vol. xii. edited by Thomas I. Wharton, Esq., of Philadelphia, and which is an extremely useful and valuable compilation to the American bar, for they have, by means of it, a ready access to a selection of the best English treatises on the various branches of the law.

(b) Archbishop of Canterbury v. Tappen, 8 Barnew. & Cress. 151.

(c) By the New York Revised Statutes, the executor or administrator is bound, after the expiration of eighteen months, to account before the surrogate, under the penalty of attachment and a revocation of his power. N. Y. Revised Statutes, vol. ii. p. 92, sec. 52. In accounting he must verify by vouchers, and may be examined upon oath; and his oath will, if uncontradicted, supply the place of vouchers as to items, each of which does not exceed $20, and not exceeding in the whole, in behalf of any one estate, $500. Ibid. sec. 54, 55. This was adopting the rule in chancery, which had established that a defendant, on accounting before a master, might verify, on his own oath, items not exceeding in each case $20, and not exceeding in the whole £100 sterling. Remsen v. Remsen, 2 Johns. Ch. Rep. 501. The executor or administrator may be allowed for property perished or lost without his fault; and he is not to gain by the increase, nor lose by the decrease of the property, without his fault. He is also entitled, besides his necessary expenses, to the same rate of commission of five, two and a half, and one per cent., which had been adopted by the chancellor in 1817; though if a compensation be provided by the will, it is to be taken as a full satisfaction, unless the executor elect to take the allowance provided by law.1 N. Y. Revised Statutes, vol. ii. p. 93, sec. 58, 59. 3 Johns. Ch. Rep. 44. The commissioners who revised the statutes of Massachusetts in 1835, reported a similar allowance to be made. By statute of 17th April, 1838, the Revised Statutes of Massachusetts on this point were repealed; and the court in which the accounts of executors and administrators are settled, are to allow their reasonable expenses, and

The commission must be apportioned among the executors according to their respective services. Act of 1849, c. 160, White v. Bullock, 20 Barb. 91. The administrator may be allowed counsel fees for the successful defence of his right of administration. Ex parte Young, 8 Gill, 285.

The statute declares, that after the debts, funeral *421 charges, and just expenses are deducted, a just and equal distribution of what remaineth clear of the goods and personal estate of the intestate shall be made among the wife and children, or children's children, if any such there be; or otherwise the next of kin to the intestate, in equal degree, or legally representing their stocks; that is to say, one third part of the surplusage to the wife of the intestate, and all the residue, by equal portions, to and amongst the children of the intestate and their representatives, if any of the children be

a just and reasonable compensation for their services. Assignees in trust are allowed an equitable compensation for their services, according to circumstances. Jewett v. Woodward, 1 Edw. Ch. Rep. 195. In Maryland, the commission is from five to ten per cent., in the discretion of the court. 1 Peters's U. S. Rep. 562. 1 Harr. & Gill, 13, 84. In Pennsylvania, the ordinary commission is five per cent., but it may exceed, or be less than that, in the discretion of the court, and under the circumstances. For receiving and paying out money it is two and a half per cent., and sometimes an additional half per cent. is held to be a sufficient compensation for trouble. In the Estate of Miller, 1 Ashmead's Rep. 323. Pusey v. Clemsen, 9 Serg. & Rawle, 204. Stevenson's Estate, 4 Wharton, 98. In Louisiana, the commission to syndics cannot exceed five per cent., by act of 1817. That to executors is two and a half per cent. on the whole amount received, and is shared among them all. Civil Code, art. 1676. In South Carolina, the established commission is five per cent., with a further allowance to be assessed by a jury, in a case of extraordinary care and trouble. Logan v. Logan, 1 M'Cord's Ch. Rep. 1. In England, it is a principle in equity, that if the testator, by will, gives a compensation, the executor is not entitled to any other which may be allowed by law, unless he promptly elects to prefer it. 3 Merivale's Rep. 24. The mode of contesting the accounts before the surrogate, by the creditors, legatees, and next of kin, is specially detailed in the New York statutes. N. Y. Revised Statutes, vol. ii. p. 93, sec. 60-70. And the manner of accounting before the surrogate by exccutors and administrators is also detailed in the case of Gardner v. Gardner, 7 Paige, 112. The decree of the surrogate on the final settlement of the executor's accounts is final, (subject to an appeal to the chancellor,) as to payments to creditors, legatees, next of kin, and concludes all parties. Wright v. Trustees of Methodist Episcopal Church, 1 Hoffman's Ch. Rep. 214, 215.

In Pennsylvania, the registers' courts have a similar jurisdiction over the estates of testators and intestates; and the orphans' court has a species of equity jurisdiction over executors and administrators, guardians, and minors. Case of Patterson's Estate, 1 Watts & Serg. 293. But the practice and rules in the orphans' tribunals were represented to be in a state of deplorable confusion; (Duncan, J., 11 Serg. & Rawle, 432;) and in January, 1831, the commissioners appointed to revise the statute code of Pennsylvania, reported new revised statutes, containing a consolidation of all the statutes, with the suggestion of improvements in relation to the registers' and orphans' courts. In Ohio, testamentary jurisdiction, or probate powers, and the appointment and control of guardians, are annexed to the courts of common pleas in their respective counties. Acts of 1831.

dead, other than such child or children who shall have any estate by settlement, or shall be advanced by the intestate in his lifetime, by portion equal to the share which shall, by such distribution, be allotted to the other children to whom such distribution is to be made. And if the portion of any child who

hath had such settlement or portion, be not equal to 422 the share due to the other children by the distribution,

the child so advanced is to be made equal with the rest. (a) If there be no children, or their representatives, one moiety of the personal estate of the intestate goes to the widow, and the residue is to be distributed equally among the next of kin, who are in equal degree, and those who represent them; but no representation is admitted among collaterals, after brothers' and sisters' children; (b) and in case there be no wife, then the estate is to be distributed equally among the children; and if no child, then to the next of kin, in equal degree, and their lawful representatives, in the same manner already mentioned. It is further provided, that if any child shall die intestate after the death of the father, and without wife or children, and in the lifetime of the mother, every brother and sister, and their representatives, shall have an equal share with her.

This is the substance of the English statute of 22 and 23 Charles II., which was borrowed from the 118th novel of Justinian; and except in some few instances mentioned in the statute, it is governed and construed by the rules of the civil law. (c)

(2.) The next of kin is determined by the rule of the civil law; and under that rule the father stands in the first degree,

(a) Under this statute the widow cannot come into hotchpot and claim collation of advancements to the children. She only takes her share of what remains after deducting the advancements. Ward v. Lant, Prec. in Chancery, 182, 184. Kircudbright v. Kircudbright, 8 Vesey, 51. This is also the law in Tennessee, under the North Carolina statute of 1784, adopted in that state. Brunson v. Brunson, Meig's Rep. 630.

(b) The construction of the statute which declares that there shall be no representation among collaterals, after brothers' and sisters' children, is, that it means the children of the brothers and sisters of the intestate. If, therefore, the intestate dies without issue, and leaves an aunt, and children of uncles and aunts, the aunt succeeds to the whole estate. Bowers v. Littlewood, 1 P. Wms. 593.

(c) See vol. i. p. 542, note; and also, Carter v. Crawley, T. Raym. Rep. 496. Palmer v. Allicock, 3 Mod. Rep. 58. Edwards v. Freeman, 2 P. Wms. 436.