text:
    Frederick Parker, administrator, &c., with the will annexed of George A. Corlies, deceased, and trustee, v. William R. Stevens, administrator, &c., of Joseph T. Allen, deceased, et al.
    [Filed November 9th, 1900.]
    1. A general demurrer' for want of equity need not more specifically state tbe grounds of demurrer where it appears, from complainants’ bill, , that his right to any relief is doubtful.
    .2. An administrator oum testamento annexo.de bonis non has no right to bring a suit in chancery against the original executor of his testator ■for-negligence in failing to gather in the assets of said testator.
    On demurrers to bill.

      Mr. Frederick Parker, for the complainant.

      Messrs. Hawkins & Durand, for the defendant William R. Stevens.

      Mr. James Steen, for the defendant E. W. Allen.
   Reed, Y. C.

The complainant filed this bill as administrator de bonis non cum testamento annexo of George A. Corlies, deceased.

Abner was one of the executors of George A. Corlies, who died in December, 1866. The complainant is his successor, and as such seeks in this suit to hold these defendants for the negligence of Abner Allen, while living, and of his representatives after his death.

The negligence consisted in failing to foreclose a mortgage held by the estate while the mortgagee remained in possession, letting the property run down, and without paying interest on the mortgage. This mortgage was foreclosed by the administrator de bonis non, and there was a deficiency of $11,535.99. The demurring defendants in the suit are the heirs-at-law and next of kin, and the administrators of Abner Allen; and the devisees, legatees and executors of Sarah E. Allen, a deceased heir-at-law and next of kin of Abner Allen. The other defendants have neither demurred nor answered.

The primary question is whether the complainant, as administrator cum testamento annexo de bonis non, has a right to pursue the original executor for his negligence in failing to gather in the assets of the testator.

In Carrick’s Administrator v. Carrick’s Executor, 8 C. E. Gr. 364, it was held by Chancellor Zabriskie that an administrator de boms non could only administer such personal property as remained in specie in the form in which it existed at the death of tfye deceased. He held that such an administrator could not sue for money into which the original executor or administrator had converted the property of the deceased.

The cases cited in support of that view show that this was the settled doctrine of the English courts. Carrick’s Administrator v. Carrick’s Executor was cited with approval in McDonald v. O’Connell, 10 Vr. 820, and followed in Bradway v. Holmes, 5 Dick. Ch. Rep. 311; Thiefes v. Mason, 10 Dick. Ch. Rep. 456, and Hartson v. Elden, 13 Dick. Ch. Rep. 478.

If the first executor or administrator is not liable to the succeeding administrator for the fruits of any of the assets converted by him, he cannot upon principle be liable for a failure to collect any of the assets. The assets themselves passed to the administrator de bonis non, but not the right to sue his predecessor for negligent conduct in respect of them.

It was held in Beall v. New Mexico, 16 Wall. 535, that an administrator de bonis non could not maintain a suit upon the original administration bond.

Courts of states like our own, where the limited power of the administrator de bonis non is recognized, hold that, without statutory aid, the administrator de bonis non cannot sue the ■original executor or administrator for a devastavit whether willful or negligent.

It was held in Williams v. Cubage, 36 Ark. 307, that the former could not sue the latter for waste. In Eubank v. Clark, 78 Ala. 78, it was held that only creditors of distributees-of the deceased could sue the former personal representatives for an account and settlement of the assets wasted or misapplied by him. The same rule is recognized in Blizzard v. Filler, 20 Ohio 479, and Hanifan v. Needles, 108 Ill. 403.

In connection with the last case it is to be observed that there is an Illinois statute containing provisions similar to those of sections 128 to 131 of our Orphans Court act. By those provisions the appointed successor of an executor who has been discharged for one of the causes mentioned in section 128 may bring suit against the discharged executor for a breach of trust or waste permitted in respect to the assets which shall have come to his possession.

It was held in Hanifen v. Needles, supra, and is manifest in the language of our statute that there is no such' power given to the new appointee where the original officer-is removed by death and not by judicial decree. It was so held in Hartson v. Elden, supra.

It is therefore quite clear that the right to sue for a devastavit of the deceased executor resides in the creditors of or'the beneficiaries under the will of the deceased testator.

In this connection the course of legislation in- this state touching this matter is not without interest.

In 1877 an act was passed (Gen. Stat. p. 11/-27) which gave to-the executor or administrator of a deceased executor who died ■ without settling his account, power to exhibit an account of the receipts and disbursements by the said executor of the assets of the estate.of the testator or so much thereof as remained un- • settled at the time of the death of the said executor. The statute provided that this account should be settled in the same manner as other accounts. This act was in existence when this bill was filed, but was repealed by the act of 1898. P. L. of 1898 p. 537.

It also appears in the bill that the administrators of Abner Allen, apparently under the power conferred by the act of 1877, filed an account in the orphans court to which exceptions were filed by certain-creditors. Upon the hearing the orphans court made a decree surcharging the estate with six thousand and odd dollars on account of the devastavit in respect to the mortgage. Whether this decree was conclusive in respect to the amount for which the estate-of Abner Allen can be held, is a question which need- not now be settled. The only pertinent point being that for this or for any other losses accruing from the negligence of the executor, no suit will lie at the instance of the administrator de bonis non.

The demurrers -in this ease do not set up the inability of the administrator de bonis non to bring suit as one of the grounds for demurrer. The demurrer being in the usual form, of course sets up that the complainant is not entitled to any equitable relief. The query is whether, under the rule which requires that every demurrer whether general or specific shall state the particular grounds of the demurrer, this point should be considered on this argument. The construction given to this rule in Essex Paper Co. v. Greacen, 18 Stew. Eq. 504 was that only in cases where the defect in the bill is obscure or latent to such an extent that a court after inspecting the complainant’s bill can readily discern it, need a demurrant make a more explicit statement of the grounds of his demurrer than the simple statement of want of equity; that a statement of a want of equity will constitute a sufficient specification where the court finds, on looking at the complainant’s bill, that his right of relief is doubtful or uncertain.

The latter statement is applicable to the present bill; for, in view of the cases in our courts which have dealt with the extent of the power of an administrator de bonis non to sue the original executor, a reading of the bill will at once raise a doubt of the complainant’s right to any relief.

It may be further remarked that the suit cannot be retained as one brought by the complainant as trustee.

It is true that the bill states that he was appointed administrator de bonis non, and trustee, and that he qualified as such. The provision of the will of the testator is not disclosed in the bill, and so the power conferred upon'the trustee is not apparent. Nor is there any allegation that the mortgage, touching which the neglect is charged, was ever set apart as part of the trust estate, and so was held by the executor as trustee. Schenck v. Schenck, 1 C. E. Gr. 175. There must be a decree for the demurrants.


source: Caselaw Access Project

author: Reed, Y. C.

license: Public Domain

text:
    Winfield S. B. Parker, administrator, &c., v. Eugene Fay et al.
    [Filed November 21st, 1900.]
    An administrator de' toms non, &c., may foreclose a mortgage in his own name, given to his predecessor, the executor of the owner thereof, and no other persons than those interested’ in the equity of redemption need be made parties defendant.
    On demurrers to bill.

      Messrs. Parker & Van Gelder, for the complainant.

      Mr. Thomas P. Pay, for the defendants.
   Reed, Y. C.

The complainant is the administrator de bonis non of Eliza Maria Lane. He files a bill to foreclose a mortgage given to Joseph Cooper, executor of Eliza Maria Lane.

Demurrer is filed to the bill upon the ground that the complainant, as administrator de bonis non, cannot bring suit to enforce the mortgage given to his predecessor as such, and that the creditors or next of kin of the intestate should be parties complainant, and if not proper parties complainant, should be made parties defendant to the suit.

There has been some contrariety of view in r'espect to the question to whom the right to collect a note or bond, made payable to an executor or administrator as such, and remaining uncollected at the time of the death of such executor or administrator, passes; whether to the administrator or executor of such deceased executor or administrator, or to the executor de bonis non of the original testator or intestate.

The latest English case bearing upon this subject is that of Catherwood v. Chabaud, 1 Barn. & C. 149. In that case an administrator de bonis non had brought an action upon a bill of exchange, which had been endorsed jointly and delivered to an antecedent administrator of the testator for a debt due the intestate. It was held that the administrator de bonis non had the right to sue. In giving' judgment, Chief-Justice Abbott (afterward Lord Tendenton) said: “It has been decided in a variety of modern cases that an administrator may sue as such upon the promise made to him in his representative character; and that principle governs my opinion in the present case; for, where the cause of action is such that the representative may sue in his representative character, the right of action devolves upon the administrator de bonis non of the intestate.”

Mr. Justice Best remarked, “It is not necessary to decide that the administrator of the preceding administrator could not have sued; it is sufficient to say that the administrator de bonis non might sue, and this observation may serve to reconcile the various cases which have been referred toand Chief-Justice Abbott remarked: “There is much’ weight in the distinction which has been taken by my brother Best. There may be cases where the administrator of an administrator might and ought to sue, viz., if the first administrator had made himself debtor to the intestate’s estate for the amount of a debt due to that estate.”

This statement of the doctrine in respect to the relative rights of administrators of an administrator on the one hand, and of an administrator de bonis non on the other, has never, so far as I know, since been disturbed in the English courts.

• In the case of Williams v. Collins, 1 B. Mon. 58, Chief-Justice Robinson, citing Catherwood v. Chebaud and other English cases, says: “The rational doctrine recognized by a majority of modern adjudications seems to be this—that notes of an administrator as such, may, if uncollected or undisposed of by him in his lifetime, become assets in the hands either of his own personal representative or of the administrator de bonis non of his estate, the one or the other, should there be collision between their claims, being entitled to preference, according to the proper result of the inquiry, whether the first administrator had become beneficially entitled to the notes as a creditor, in consequence of .advances or otherwise, or by having charged himself or been charged with the amount of them.”

This rule is restated in Maraman v. Trunnel, 3 Metc. (My.) 146.

In the case of Newhall v. Turney, 14 Ill. 338, it was held that an administrator of an administrator could sue on a note given to the preceding administrator, as administrator. It was, however, remarked that “We hold that the action was properly brought in the name of the personal representative of the payee; there is no occasion to inquire whether it might not have been brought by the administrator dé bonis -non.” In Sheets v. Pabody, 6 Blackf. 120, it was held that an administrator de bonis non could sue upon a promissory note made payable to the former administrator.

This duality of right of action flows from the duality of character of an administrator or executor, with whom the contract is made as sueli. The rule is entirely settled that, as to contracts made with his intestate or testator, whether broken during the-lifetime of the intestate or testator or thereafter, his personal representative must sue in his representative character. In respect, however, to contracts made with him as executor or administrator, be has the privilege of suing in his individual right or in his representative capacity. Myers v. Weger, 33 Vr. 432. His right to sue in his individual character would, upon his death, pass his interest to his own administrator, while his right to sue in his representative character, being predicated upon the fact that the asset recovered would belong to the estate, would confer upon the administrator de bonis non a right of action.

In Hemphill v. Hamilton, 6 Eng. Ark. 425, the English doctrine in respect to the right of an executor or administrator was reviewed, and it was said: “The case of Bull v. Palmer, 2 Lev. 165, in which it was held that where an executor or administrator makes a contract, in which the money when collected would be assets in his hands, he may elect to sue in his representative right, was reaffirmed and established upon a more permanent and enlarged basis, and the rule is equally well settled that where the cause of action is such that the first administrator may sue in his representative character, the right of action survives to the administrator de bonis non,” citing 1 Wms. Ex. 631, and Catherwood v. Chebaud, supra.

It had long before been held by the supreme judicial court of Massachusetts in the case of Solomon v. Holker, 15 Mass. 374, that in an action bjr an administrator de bonis non, the promise might be laid to have been made to the first administrator, citing the case of Hirst, Administrator de bonis non, v. Smith, 7 Durnf. & E. 182.

It is quite clear in the present case that the deceased executor, to whom the mortgage was made, could have prosecuted the-bond and mortgage in Iris' representative capacity as ‘ well as in his personal character; that in the former capacity the debt due would have become assets of the estate of which he was the representative. Therefore it follows from the rule established by the cases already cited that a right to sue resides in the administrator de bonis non. None other need be made a party complainant, and none bnt those interested in the equity of redemption need be made parties defendant.

The demurrer is overruled.


author: Reed, V. Q.

text:
    Henry S. Ehret v. The Camden and Trenton Railroad Company.
    [Filed November 27th, 1900.]
    A trolley railway, upon a country highway, is not an additional servitude upon the land of the abutting owner who owns to the middle of the road.
    On demurrer.

      Mr. Charles K. Chambers and Mr. Mark B. Sooy, for the complainant.

      Mr. Eoivard Flanders, Mr. Samuel Belden and Mr. David J. Pancoast, for the. defendant.
   Reed, V. Q.

The question presented by these demurrers is whether a trolley railway upon a country highway is an additional servitude upon the land of the abutting owner, who owns to the middle of the road. The bill is filed to enjoin the construction of such a road in front of complainant’s property. Erom the bill it appears that the complainant owns land in the township of Beverly, in Burlington county, fronting, ■ as described in the deed set out in the bill, one hundred and seventy-nine feet on a public road, also called Warren street, leading from the city of Beverly to the city of Burlington. The charge is that the defendant, under a certificate of incorporation under the act of 1893, for the formation of trolley companies, and under an ordinance of the township of Beverly, is about to construct a line of passenger railway, to be operated/by electricity, over the said road and over the land of the complainant lying in said road, without making compensation to complainant.

The question, then, is whether a trolley road to be constructed under the act of 1893 imposes a burden upon the land of an abutting owner in excess of the public easement which arose by the creation of the highway. The law is settled that a trolley road in a city does not entitle to compensation. Roebling v. Railway Co., 29 Vr. 666. If it imposes an additional servitude upon land over which a country highway runs, it must be because the easement in the public, in the case of a- highway in a township, differs from the easement of a street in a pure municipality; and the difference must be in respect to the propriety of the use in either highway or street for such a method of locomotion. Now, a street may be put to many uses which are disconnected from its primary purpose, of affording a passage for vehicles and pedestrians. These uses spring out of the necessities of a congested urban community. It may be admitted that some of these secondary uses may be imposed upon land of an abutter upon a street, without compensation, and may not be imposed upon an abutter along a highway. However that may be, I fail to perceive any difference in the easement which the public has in a country road, on the one hand, or a city street, on the other, which would make a trolley operated under'the act of 1893 an additional servitude in the one instance and not in the other. I am not speaking of a road built and run in the manner pictured by the late chancellor in his opinion in the case of West Jersey Railroad Co. v. Camden, Gloucester and Woodbury Railway, 7 Dick. Ch. Rep. 31, 35. Nothing in the bill intimates that the cars or motive power, or speed or tracks are to be different from other roads known under the name of trolley railways. So it must be assumed that the road is to be used as an ordinary street railroad, the motive power of which is electricity. The features of such a road are that its tracks are laid so as not to interfere with the use of the surface of the road by other vehicles; that its cars are of such size and run at such a speed as not to interfere with other traffic; that such stops are made as will accommodate those living along the line of the road. So used, I do not perceive the least difference in the adaptability of such a road to the uses of a highway, whether it be a country road or a municipal street.

Its design is to serve the primary purposes of a highway, namely, to enable people to pass from ‘one place to another.

If a distinction is to be drawn between highways and streets, upon what line shall they be distinguished? If density of population along the highway is to be the criterion, how closely must the houses stand—must they be within fifty feet, fifty yards, or five hundred yards, to destroy the right of an abutting owner to damages ? If the test is to be a corporate test, and all roads lying within townships to be within one class, and all roads within other municipalities within the other class, what is the substantial basis of difference ? I can perceive none.

Then again, as pointed out by Yiee- Chancellor Grey, in his opinion, when this case was before him upon an order to show cause why an injunction should not issue, a rural community in a short time may become an urban community, and thus the abutter upon a highway, who now has a right to damages for the location in front of his premises of a street railway, the next year may be stripped of that right, by the fact that neighbors have built in his vicinage, or because the lines of a borough have been extended so as to include his property.

In the case of Zehren v. Milwaukee Electric Railway and Light Co., 99 Wis. 83, it was held that an electric road in a highway was different in its purpose-and effect from an electric road in a street. The force of the opinion, however, was spent in considering the right to change the grade of the highway, for the sole purpose of the electric road, so as to seriously impair the right of access of abutting owners.

It was held that the power of a municipality to change road grades will be controlled by the courts where it appears that the change is not for municipal purposes, but exclusively for the benefit of a private corporation.

It was also held that the electric road was an additional servitude, but the distinction between highways and streets was not elaborated.

The court was content to rely upon the case of Pennsylvania Railroad Co. v. Montgomery County Passenger Railway, 167 Pa. St. 62. It was held in that case that the construction of a street passenger railway upon the surface of a highway, within a township, imposed an additional servitude. In the opinion in that case the difference in the easement of the public in a city street and in a country highway was illustrated by Pennsylvania eases, in one of which it was held that a pipe line could not be laid in a highway, and in the other that it could be laid in a street, without imposing an additional •servitude.

The illustrative use, it is perceived, belongs to the second class of servitudes already mentioned. The purpose of a street railroad, on the other hand, is to subserve the primary purposes of a highway. The case mainly deals with the inability of the township authorities, under their legal organization, to give consent to an electric railroad to carry passengers over a highway, through a township, on a journey from one city or borough to .another, because it is in no sense a township purpose, But, as I must assume that the structure to be constructed on this highway is to serve the public within the township in exactly the same manner as within a municipal corporation, I cannot perceive why the-road does not serve the people of a township in the same way'as the people of a city. • • •

• I am of the opinion that the bill states no ground for relief.


text:
    Frank W. Smith v. Edward D. Boyd.
    [Filed January 2d, 1901.]
    1. A deed of all her property was made by a newly-married woman to her former guardian, in trust, to pay the income to the settler during her life, and in case she died childless to pay $5,000 to a lady with whom the settler had lived and still lived.—Held, that although the deed was, by its terms, irrevocable, it is, under the conditions, voidable.
    2. As the deed was advised by the defendant with the intention of benefiting the complainant, the costs of the suit should be paid out of the trust funds.

      Mr. Frank 8. Katzenbach, for the complainant.

      Mr. James 8. Aitkin, for the defendant.
   Reed, Y. C.

The complainant is a daughter of Charles Y. Mead. She was left an orphan when seven years of age. Her uncle, Edward D. Boyd, was appointed her guardian. She was twenty-one on May 36th, 1894. From the death of her father «he resided with Mr. and Mrs. R. B. Conover, with whom also lived her uncle and. guardian, Mr. Boyd. After she attained her majority, her guardian settled his accounts with her and took a release from her. Securities to the amount of about -$30,000 were turned over to her, and with her concurrence were left in the hands of James ■S. Aitkin, an attorney, who had attended todhe trust matters.

After she had arrived at legal age, she continued to live with Mrs. Conover as before. On Sunday, May 1st, 1898, she went ■to Bordentown, without the knowledge of her friends or her ■former guardian, and was married to Fred. De Forrest-.Smith. • On the next day she returned to the Conovers, and on Monday •■ or Tuesday, .told Mrs. Conover of her marriage. ■ On May 13th, she went with Mr. Boyd to the office of Mr. Aitkin and signed a paper drawn by the latter gentleman, from instruction communicated to him by Mr. Boyd. By this instrument she assigned her property to Mr. Boyd, in trust, for the following purposes:

“To have and to hold the said several bonds and mortgages and shares of stock in trust, to receive and invest the principal sums from time to time as paid in, and to sell the stocks and to appropriate and pay the net income arising from the said fund so invested to the said Frank W. Smith, during the term of her natural life. And in further trust of and after the death of the said Fred. D. Smith (her husband), to transfer and give the said fund so invested as directed to her child or children, and in case I shall die without leaving a child, then jn further trust to pay from the said trust funds the sum of $5,000 to Sarah E. Conover. The rest of the said fund to go to Fred. D. Smith, my husband. And if my said husband shall be then dead, then to my heirs at law. And in further trust that in case of the death of my said husband, in my lifetime, the said party of the second part (the trustee) shall and will, at the written request of the said party of the first part, reassign, transfer and set over the said trust funds free and discharged of the trust to him the said party of the first part.”

Then follows the clause—

“I do hereby constitute and appoint the said Edward D. Boyd, my true and lawful atttorney, irrevocable in my name or otherwise, to have, use and take all lawful ways and means for the recovery of all the said moneys and interests above mentioned.”

This instrument is attacked upon the grounds—first, of undue influence; second, of mistake; third, of want of independent advice; fourth, of its improvidence; fifth, of the absence of the power of revocation.

In respect to the last ground it is clear, for the complainant admits it, that she was told when she executed the paper that it was irrevocable during her husband’s life. There was, therefore, no mistake in failing to insert in the instrument a power of revocation. Indeed,the substantial purpose of the instrumentwas that it should be, during the life of the husband, beyond the power of the settler to revoke the trust. Her right to her property, free from any interference from her husband, was complete under the statute before the instrument was made. The purpose was to protect her against the solicitations of her husband. If the trust was revocable, she would have been in a position as unsecure against the cajolery and coercion of her husband as if no trust had been created; or it would have been as easy for him to persuade her to revoke the trust as it would have been to induce her to turn over the property to him, or to use it for his advantage.

Nevertheless, the act of an owner of property which irrevocably puts it beyond his control, is always regarded as an important factor in determining whether a settlement should be permitted to stand. The absence of a power of revocation, in the language of Lord-Justice Turner, in Toker v. Toker, 3 De G., J. & S. 487, 491, is a circumstance to be taken into account, and is of more or less importance according to the other circumstances of each case. Hall v. Hall, L. R. 8 Ch. App. 430.

The complainant was a woman whose business affairs had always been in the hands of her uncle. After she attained her majority and settled with him as trustee she very properly left her investments under his supervision, as they had been before. She would naturally rely upon him for advice in any course of conduct which she wished to adopt concerning her property.

Then, again, from her seventh year, she had made her home with Mr. and Mrs. Conover, with whom she had lived upon the most kindly footing. Indeed, they had stood to her in loco parentis; she would naturally be powerfully influenced by any suggestion of theirs in respect to the disposition of her property. She says that the suggestion that she should put her property beyond her own power to spend it for herself and her husband came from Mrs. Conover. She, indeed, insists that Mrs. Conover importuned her to do so in repeated conversations with her. She also says that the suggestion that she should provide that Mrs. Conover should be benefited, in case of the settler’s death without children, to the extent of $5,000, came from Mr. Boyd, her uncle. Mrs. Conover says that she does not recall having first suggested to the complainant this disposition of her property. She thinks that it first came from the complainant. Mr. Boyd also says that the proposal to make Mrs. Conover a beneficiary was first spoken of by the complainant.

I have no doubt that the parties give the order of the conversations ¡which, lecl up to the execution of the trust instrument, as they now recall it. The complainant probably exaggerated the extent of the alleged importuné, to which she was subjected, and Mrs. Conover probably fails to recall who first broached the subject in the conversations between herself and the complainant.

I think it most probable that the propriety of putting the property out of the reach of her husband’s solicitation was first intimated to the complainant. I think so because it was a reasonable and natural thing for either Mrs. Conover'or'Mr. Boyd to do. It, in my judgment, was a prudent and creditable suggestion for either of them to make. The girl had made a hasty marriage, without their knowledge or advice, to one whom they undoubtedly thought would, if he could, get control of her property and fritter it away; or would influence her to use up the corpus of her estate, so that in the end she would be left penniless.

While I think it is probable that the proposition came from these people of age and business experience, who would naturally think of it, rather than from the girl without business experience, who had made the unannounced marriage, I yet see nothing whatever of fraud in the suggestion. It was made with the very best intention and for what was conceived to be for the welfare of the girl for whom they had cared for so many years. Indeed, her contest now to annul the purpose then accomplished is probably one which will bring to her deep-regret in the future.

But the question is not whether the execution of the instrument was wise, but whether she has a right to unsettle the trust which she then created. I am constrained to the conclusion that, under the conditions surrounding its execution, the trust must be declared void. She relied in making it upon the advice of those who had stood to her in the most confidential relations. She saw no one with whom to counsel, aside from the attorney who drew the assignment. He had been the adviser of the trustee during the existence of the trust. It is undoubtedly true that he fully advised her of the irrevocable character of the assignment during her husband’s life.

I have no doubt that he also read it to her before she signed it. When he had done this his function ceased. He was not called upon to .advise her as to the prudence of making- an irrevocable trust. That he took for granted was settled when he received instructions to draw the paper. He did all that he was called upon to do, and did it in the fairest possible way.

Nevertheless, she did not have that independent advice, in respect to the policy of her conduct, which the cases require. This circumstance, in connection with the facts that Mrs. Conover was given in the instrument a contingent interest, and Mr. Boyd was made her trustee, present conditions which constrain me to advise a decree annulling the trust deed. But as the trust was created without fault of the defendant, and with the best intentions, they should not be burdened with the costs of this litigation. The costs should be paid out -of the estate.


text:
    George W. Hammell, administrator, &c., of Edward H. Stokes, deceased, with the will annexed, v. Marion H. Swan et al.
    [Filed January 11th, 1901.]
    A testator excepted from the residue all bonds and mortgages of every kind whatever that he might have at the time of his decease, and directed his trustee to keep the principal securely invested in good bonds and mortgages on real estate, &c.—Held, that certain corporate bonds, secured by general trust mortgages, were excepted from the residue.
    On bill for construction of codicil to the will of Edward H. Stokes, deceased.

      Mr. Barton B. Hutchinson; for the complainant.

      Mr. Garret D. W. Vroom, for the defendants.
   Reed, Y. C.

The will of Edward H. Stokes was executed February 10th, 1870, and the codicil thereto on November 22d, 1881. Mr. Stokes died February 17th, 1900, possessed of personalty valued at nearly $500,000, of which $327,521.26 was in the shape of bonds, secured by ordinary mortgages upon real estate. These bonds and mortgages were in the possession of deceased at the time of his death.

As a part of his personalty was property which is now the subject of this suit. It comprised, first, eighteen first mortgage five per cent, twenty-five year gold bonds of the New York and New Jersey "Water Company, bearing date April 20th, 1895. part of an issue of $2,000,000, all secured by a general trust mortgage, made by the New York and New Jersey Water Company to the State Trust Company, as trustee for the bondholders ; secondly, ten first mortgage five per cent, gold bonds of the Trenton Gas and Electric Company, dated March 1st, 1897, each of which is a part of an issue of $2,000,000, secured by a general trust mortgage, given by the Trenton Gas and Electric Company to' the Colonial Trust Company, as trustee for the bondholders; thirdly, four first mortgage six per cent, gold bonds of the Newark Gas Company, dated September 3d, 1895, being a part of a series of $4,000,000, secured by a general trust mortgage, made by the Newark Gas Company and Orange Gas Light Company to Eugene Yanderpool, Marcus L. Ward and Andrew Kirkpatrick, trustees for the bondholders.

The question submitted is whether these three classes of bonds form a part of the trust created by the tenth clause of the codicil, or fall into the residue, under the sixteenth clause of the will.

By the sixteenth clause of the will the testator devises and bequeaths to his wife, Parmelia Sargent Stokes, all the residue of his estate not otherwise bequeathed.

The tenth clause of the codicil reads thus:

"Tenth. Whereas, by clause sixteenth, of my above mentioned last will and testament, I did give, devise and bequeath to my wife, Permelia Sargent Stokes, all of the residue of my estate not otherwise mentioned in this my last will and testament, after paying therefrom the legacies and other matters before named in this my last will and testament, including my funeral charges, and what expenses that may accrue in my sickness. Now, therefore, I do hereby except from the said residue of my estate all bonds and mortgages of every kind whatever that I may have at thi time of my decease, and the same I do dispose of as follows:
“I give and bequeath all bonds and mortgages not hereinbefore mentioned and otherwise disposed of, to Lewis Parker, Jr., in trust, nevertheless, to receive the interest and income arising therefrom, and to pay the same half-yearly to my children, Marion H. Stokes, Edward A. Stokes and John W. Stokes, in equal shares, for and during the term of their natural lives, and upon the decease of any or all of my said children then to pay the equal one-third part of the said principal sum to their surviving lawful heirs. And it is my will that my said trustee shall keep the said principal sum securely invested in good bonds and mortgages, on real estate within the State of New Jersey only, worth at least double the amount invested thereon.”

It is quite clear that the testator did not include in the exception bonds unless secured by mortgages; the descriptive words couple the two in a way which Is well understood as meaning bonds each of which was secured by a mortgage. These corporation bonds secured by a general trust mortgage were not in the mind of the testator at the time of the execution of the codicil, for they were, according to date, issued thereafter. That, however, makes no difference, if they are included in the following language: “Bonds and mortgages of every kind I may have at the time of my decease.” These were bonds secured by a mortgage.

But it is insisted that the directions given to the trustee, to whom they were bequeathed, indicate that these bonds are not of the kind which was in the mind of the testator. After power given to the trustee to collect and disburse the income from these mortgages, the testator directs his trustee to kqep the principal sum securely invested in good bonds and mortgages on real estate within the State of New Jersey, worth at least double the amount invested thereon.' The argument is that the use of the word “keep” indicates that the principal is to be invested by the trustee in the same kind of securities it was invested in at the time of the testator’s death; therefore, as it was to be kept invested in ordinary real estate mortgages, it was the principal of such mortgages he had in mind in drafting the exception.

Fow, it is to be observed, that the use of the word “keep” may mean the preservation of a certain condition in the future. Directions to a person to keep his money invested does not necessarily mean that it is already or has been invested; it may mean that it is to be invested, and the investment is to be continued as uninterruptedly as possible. If some of the bonds owned by the testator had been secured by mortgages upon real estate, worth less than twice the amount of the sum invested, or had been invested upon real estate elsewhere than in Few Jersey, no one, I presume, would insist that those bonds and mortgages were excluded from the exception, on the ground that the principal was to be kept secured by the mortgages upon real estate in Few Jersey and worth at least double the amount invested thereon. Yet, it is perceived, that the same argument could be employed—less forcibly, yet still employed—in insisting that ■bonds owned by the testator, ah the time of his death, upon real estate elsewhere, or upon real estate worth less than twice the amount invested, would fall into the residue and not into the trust estate.

I am constrained to the conclusion that the three classes of corporation bonds go to the complainant, as trustee.


author: Eeed, Y. C.

text:
    Lewis Roy, administrator, &c., of Martin Sipley, deceased, v. Philip W. Squier, executor of Elizabeth R. Sipley, deceased.
    [Filed January 28th, 1901.]
    1. When an executrix, who has so far administered the personal estate of her testator as to convert it into money, dies, and administration de bonis non is granted, such administrator has no right to demand of the executor of the deceased executor that part of the estate converted into money. He is entitled only to such chattels or choses in action as have not been so converted and exist as they were at the death of the first testator.

      2. Suck administrator is not entitled to call in question the maladministration of his predecessor. That right resides in those who take under the will.

      Mr. William H. Morrow, for the complainant.

      Mr. Irwin W. Shultz, for the defendant,
   Eeed, Y. C.

Martin Sipley died July, 1891, leaving a will, by which he bequeathed to his wife, Elizabeth E. Sipley, all the tangible personal property of which “I shall die possessed of, including stock of farm, farming tools and utensils, household goods, grain and hay, but not to include notes, bonds and mortgages, cash, that is money, and evidences of debt of any kind,” to her absolutely.

He also bequeathed to her the equal undivided one-half part of “all the residue of my estate, both real and personal, of whatever kind and wherever situated, for and during her natural life.”

He also gave her the remaining equal undivided one-half part of such residue of his estate, to hold “the income, interest and avails thereof to her use for her natural life, there to end without obligation to make reparation and rebuilding without impeachment for waste, voluntary or permissive, as, by law, tenants for life are required to do or incur, except payments of taxes, and without liability to make good any loss or losses that may be incurred, or may result from non-collection of evidences of debt of any kind, that may come to her hands at my decease, as executrix, or that may result from investment dr re-investment of the same or any part thereof.” He also authorized his wife as executrix of his will to “collect all money due or to grow due on any note or notes, bonds and mortgages and other evidences of debt, at her discretion, and re-invest the same in her name as executrix, that shall come to her hand as such executrix, the use, income and interest whereon I have given and bequeathed to her; but she shall exercise her best judgment in collecting and investing the same so that the body of the same shall be safe and secure so far as in her judgment she can make the same safe and secure.”

He directed that after the death of his wife the one-half of the residue given to her, after the payment of certain pecuniary legacies, should go to his brothers, Charles L. Sipley and Henry B. Sipley, in equal shares, as tenants in common.

By a subsequent clause of his will he directed that if the personal estate in such one-half share shall be insufficient to pay the money legacies, then any deficiency should be charged on the real estate comprised in that said one-half of the residue.

The widow, Elizabeth R. Sipley, proved the will and administered the estate. She accounted in the orphans court of Warren county September, 1892, showing a balance in her hands amounting to $5,158.09.

Elizabeth R. Sipley died in September, 3899, leaving a will, in which she appointed the defendant, Philip W. Squier, her executor, who has duly proved her will. At the death of Mrs. Sipley there remained in her hands certain securities belonging to the estate of Martin Sipley, which she had never collected.

In January, 1900, the complainant, Lewis Roy, was appointed administrator de bonis non cum testamento annexo of the estate of Martin Sipley, the original testator. This bill is filed by Lewis Roy, as such administrator de bonis non, to recover of the executor of the widow the estate of Martin Sipley.

The purpose of the suit, as disclosed by the prayer of the bill, is to discover the .amount of assets the debts paid, and also that Squier may be decreed to deliver to Roy all of the mortgages and other evidences of indebtedness belonging to the estate of Martin Sipley, deceased, at the time of his death, or which after his death came to the hands and possession of Elizabeth R. Sipley, his executrix, and any and all renewals of the same, or which came to the hands of Philip Squier, her executor, after her decease, and for an accounting by Squier for the moneys and assets of the estate of Martin Sipley, which came to the hands of the widow, his executrix, after his death, and all her payments and disbursements on account of the estate; and that Squier may be decreed to pay over to the complainant such balance when the same shall have been ascertained.

The specific assets in the hands of Squier which existed in the same shape as when thej'- originally came to the hands of Elizabeth E. Sipley, are the John and Elizabeth Eyan mortgage for $145.66, with included interest, the Hill mortgage for $300, and interest, and the Hough mortgage for $150, with interest. In respect to these the right of the administrator de bonis non to their possession is. entirely clear, for they remained in the hands of the administratrix of Martin Sipley unadministered.

All the remaining assets seem to have been administered by Elizabeth E. Sipley. Even a note of Ira M. Hendershot for $647, which admittedly belongs to the estate of Martin E. Sipley, is made payable to the widow individually, and not as executrix, and was so made at her own request. This would appear to be an administered asset of the estate. In all the assets except the two mortgages and note mentioned, Eoy has no interest.

It has been held by a line of eases from Carrick’s Administrator v. Carrick’s Executor, 8 C. E. Gr. 364, down to Parker v. Stevens, 16 Dick. Ch. Rep. 163, that the English rule obtains in this state; and that rule is, that an administrator de bonis non can only administer such personal property as remains in specie in the form in which it existed at the death of the deceased.

But the act of 1897 (P. L. of 1897 pp. 192,193) is invoked by the complainant. The original act of which this act is an amendment provided that no executor of an executor shall, as such, administer on the estate of the first testator, but on the death of the sole or surviving executor of a last will and testament, letters of administration, with the wills annexed of the assets of the first testator left unadministered, shall be issued, &c. The act of 1897 has not been recognized in the recent cases as at all modifying the common law rule already mentioned. The act is an amendment of the second section of the act concerning executors and administrators of estates, approved March 27th, 1874. Gen. Stat. p. 1425. The act of 1897 adds to the section as it stood in the act of 1874 these words:

“and every administrator who has been and shall be so appointed, shall be entitled to demand and receive of the executors of such deceased sole or surviving executor, all the unadministered assets of the first testator,” &e.

It is perceived that the right of the administrator de bonis non is still expressly confined to the recovery of the unadministered assets, and there is no enlarging force given to the term “unadministered.”

The consideration of like statutory language arose in the-supreme court of the United States, in considering 'a statute of the District of Columbia, which provides that the court shall further have power to do and require any asset or estate of the decedent which remains unadministered to be delivered to the newly-appointed administrator de bonis non. In United States v. Walker, 109 U. S. 258, the court said, respecting this statutory language: “We think the meaning of this act is plain. When it was passed the words ‘assets or estate of the decedent which remained unadministered’ had a uniform and settled meaning in the statute law of Maryland in force in the District of Ooltunbia, and that meaning, as we have seen, was assets or estate remaining in specie and unchanged in form. The act must be construed as using the words in their well-settled signification,, unless the contrary appears.”

As to all the unadministered assets, therefore, the complainant has no right to call the defendant to an accounting; that right resides in those who take under the will of Martin Sipley. The right to recovery is confined to the specific assets. Even as to these specific assets, as part of the entire balance of the-estate, the defendant disputes the complainant’s title to the possession thereof, on the theory that the widow was given absolutely an undivided one-half right, title and interest in the property designated as assets, and that, upon her death happening, the administrator de bonis non of her husband’s estate is not entitled to receive the specific securities, but only one-half of the principal securities when the same are reduced to money or otherwise divided. But it seems apparent that the testator contemplated no division of the residue in the lifetime of the widow, and, in fact, no division was made. The act of division and final distribution seems to belong, incidentally, to the administration of the estate; and the administration will be continued as to those assets which have been changed in specie by the representative of the executrix, and as to those which have not been changed in specie by the administrator de bonis non of the first testator. This view of the scope of the relief which can be afforded under this bill prevents-a decision of the important question argued in the cause, namely, whether the widow was justified in paying off the principal of two bonds secured by mortgage on the real estate comprised in the residuum. The testator, when he acquired title to the Hendershot farm, assumed to pay this mortgage as part of the consideration; but the first grantee from the mortgagor had taken title subject to the mortgage, not assuming a personal liability. The amount of these payments of the obligees aggregate nearly one-half of the corpus of the residue, and there can evidently be no settlement of the claims of the pecuniary legatees and of the residuary legatees and devisees of the second portion of the residue without an adjudication with respect thereto. As already observed, the administrator de bonis non is not entitled to call in question the maladministration of his predecessor. Any decree in his favor would still leave the estate of the executrix liable, over to the creditors or distributees of the original testator. The widow, as life tenant of the residuary real and personal estate, was trustee for the remaindermen and legatees. Hunt v. Smith, 13 Dick., Ch. Rep. 26. She is responsible to them for any mismanagement as trustee. The difficulty in the way of the administrator de bonis non procuring an accounting was encountered in Hunt v. Smith, supra, on a bill filed by an administrator de bonis non to recover from the administrator of the executrix under a will, not essentially unlike the present one. It was sought in that case to recover administered assets and to charge the estate for converted and wasted assets. The decree was made, but it was made upon a cross-bill filed by a residuary legatee, and the right of the complainant was limited to a recovery of the specific assets, while the residuary legatee was allowed to follow the real estate into the hands of the heirs of the wife.

In the absence of the residuary legatees, as parties to this bill, I find it impossible to do more than say that the complainant is entitled to the three specific securities which remain in the same shape as when they came to the hands of the executrix of Martin Sipley.


author: Stevens, V. C.

text:
    The First National Bank of Freehold v. John I. Thompson et al.
    [Submitted November, 1900.
    Filed February 2d, 1901.]
    1. Where an administrator who was conducting the business owned by decedent agreed with a bank, which was also a creditor of the estate, that if it would discount a'note for him, he would pay other creditors of the estate who were pressing, and the creditors were so paid; on its transpiring that the estate was insolvent, held, that the bank was entitled to be subrogated to the claims of the paid creditors to the extent to which the administrator himself would have been entitled to recover for moneys advanced for such payments.
    2. An administrator who advances .money to pay claims against the estate is entitled to reimbursement only as to such claims as were rightfully paid.
    3. Where a creditor of an estate advanced money to the administrator to pay off certain claims, the creditor was not entitled to reimbursement from the estate as to a portion of the sum advanced, which the administrator used for individual purposes, though the agreement was that it was all to be used for the estate.
    4. A creditor of an estate advanced money to an administrator under agreement that it should be used in payment of claims against the estate, and the money, was mixed with other funds, from which the administrator paid some individual claims.—Held, that in determining the rights of the creditor as against the estate for the money advanced, it was to be treated as a trust fund, and it would be assumed that the payment of individual claims was. from individual funds.
    5. Where an administrator of an insolvent estate, who was also an heir, paid claims which were charges on the realty, he being unauthorized to pay such claims, the presumption was that the payment was not as administrator, ■ but as heir. Therefore, creditors who had- loaned him money under. agreement that it was to be employed in paying claims against the estate were not entitled, as against other creditors, to be subrogated to the rights of those whose liens were so discharged, though such right might have existed as against the heirs, the intestate not • being bound personally', to pay such charges.
    6. Where an administrator of an insolvent estate, who was also one of the heirs, advanced money in paying claims which were charges on the realty, and likewise personal obligations of the intestate, ■ he was only entitled to a pro rata allowance for his payments so far as they were payment of a personal obligation. Therefore, creditors who loaned the administrator the money so advanced, under agreement that it was to be used in paying claims against the estate, were not entitled to be subrogated to the rights of those creditors whose liens had been discharged.
    7. The bank was not entitled to be subrogated to the rights of creditors whose claims, which were liens on the realty, had been discharged by such payments on the ground that creditors having liens might pay off other liens for the purpose of preserving their securities, since it was a loan on its part to the administrator, and not a payment of other creditors.
    8. Where premises were insured five years after the owner’s death, and a note for premiums was given by the heirs and endorsed by the administrator, the insurer had no claim against the estate, the title being in the heirs, and it appearing that they had insured on their own account and for the benefit»of a mortgagee.
    9. Where one having a claim against an estate entered into an agreement with the heirs, one of whom was also administrator', whereby claimant agreed to accept a stipulated consideration in full settlement of all claims “against the estate of J. I. T., his heir's or administrator,” the release was valid as to any claim against the administrator, though he was not an express party in his official capacity.
    10. Orphans Court act, sections 70 to 94 (Gen. Stwt. pp. 2870, 2377), treats the fund derived from the sale of a decedent’s real and personal property as a blended fund from which debts are to be paid. Section 77 provides that, on order obtained by the personal representative within one year after decedent’s death, the decree shall vest in the purchaser all the title of the intestate. After land was sold in partition proceedings by the heirs more than a year after the intestate’s death, the administrator made application, under rule 155, which allows the chancellor, on application in partition sale, where the personalty is insufficient to pay the debts, to make such order, touching the disposition of the proceeds, as shall be necessary for the ascertainment and payment of the debts.—Held, that there was no distinction between the proceeds from the sale of personalty in such proceedings and the sale of realty, and therefore a waiver of the statute of limitations by the administrator in an action on a claim applied alike to the entire proceeds, and not merely to the proceeds from the personalty.
    11. Orphans Court act, section 77 (Gen. Stat. p. 2S7S), provides that where land is sold by an order of the orphans court, not obtained within one year after the ancestor’s death, the purchaser takes only such estate as the heirs were seized of at the time of the making of the order. Land was sold in partition proceedings by the heirs more than a year after the ancestor’s death, and the administrator made application that the proceeds be devoted to payment of debts.—Held, that a creditor of an heir who issued attachment after the decree of sale, but, before the sale, attained a priority over creditors of the estate, as the decree transferred the attachment to the proceeds.
    12. Where the court of chancery assumes jurisdiction of the entire settlement of an estate by reason of a bill filed against the heirs and administrator by a creditor, the assets will be applied as they would be applied in the probate court.

      13. Gen. Biat. p. 2J¡.0S provides that an administrator, who in good faith pays a just claim not presented under oath, shall be allowed therefor, or if the estate is insolvent, and such creditor was paid in full, the administrator shall be allowed a pro rata allowance. Gen. Btat. p. 2/¡l/f § 250 empowers the orphans court, on application of a creditor any time before distribution, to extend the time for presentation of claims.—Held, that where an estate was thought to be solvent, and orders were made limiting and barring creditors, but afterwards, in partition by the heirs, the administrator made application that the proceeds be subjected to the debts, and a creditor filed a bill against both heirs and administrator, the administrator was entitled to a pro rata allowance for payment of debts, not verified by oath, made before the filing of the bill.
    On bill.

      Mr. Eusebms W. Arrowsmilh, for the administrator of Joséph I. Thompson.

      Mr. 'Frederick W. Hope, for the Second National Bank of Bed Bank.

      Mr. William II. Vredenburgh, for the First National Bank of Freehold.

      Mr. Frank P. McDermott, for Wade T. Little.

      Mr. Edmund Wilson, for W. A. French.

      Mr. James E. Degnan, for Allaire & Son.
   Stevens, V. C.

Joseph I. Thompson died intestate in January, 1893. He was the owner of several parcels of land and, among other things, of a hotel property at Atlantic Highlands. His personal property consisted chiefly of farm stock and implements and of the furniture of the hotel.

He left four children—-‘John I. Thompson, Cornelius J. Thompson, Margaret M. Biker and Eleanor S. Benton. John I. Thompson took out’ letters of administration.

When Joseph I. Thompson died, and for some time after-wards, it was thought that his estate was solvent. It has since proved to be insolvent.

The" personalty on the farm sold for $877.19. The residue of the personalty sold for $3,109.64.

In September, 1898, a partition bill was filed. On March 39th and on April 36th, 1899, sales in the partition suit were had, from which the net sum realized was $10,583.50. Soon .afterwards the administrator presented a petition, under rule 155, 'asking for the proceeds of the land sold to be applied to the payment of the debts of the decedent. On June 17th, 1899, the First National Bank of Freehold, claiming to be one of the creditors of the estate, filed its bill against the administrator and heirs-at-law, praying that the administrator might be decreed to account for the personalty and for the proceeds of the realty in this court, instead of the orphans court. It was conceded by the counsel representing the conflicting interests of the various creditors that such an accounting would be proper, in view of the intricacy of the case, and on February 31st, 1900, .a decree was made accordingly. The administrator filed an account and a statement of claims. Exceptions were taken thereto. A hearing was had, at the same time, on the petition in the partition suit, on the answers in the administration suit and on the exceptions.

The questions requiring solution are numerous and complicated.

(1) The decedent had for many years prior to his decease conducted a hotel at the Highlands, known as Thompson’s Pavilion Hotel. After his death, apparently by consent of all the heirs, his son and administrator, John I. Thompson, conducted this same business up to, or nearly up to, the time when the property was sold. The decedent had contracted a large number of debts, and, at the time of his decease, owed (inter alia) money to the Atlantic Highlands Bank, the First National Bank of Red Bank and the Second National Bank of Red Bank. John I. Thompson, shortly thereafter, opened an account, as administrator, in the Second National Bank of Red Bank. On February'34th, 1893, he transferred, from the account standing in his father’s name, to his account as administrator, $29.92, and, on the samé day, he deposited to the credit of this account, of his own money, $2,521.87. After that he continued to make deposits, principally of money received in the hotel business. Out of the moneys thus deposited he paid hotel bills of his own and debts of the estate. Among the decedent’s creditors was, as I have said, the Second National Bank, to which the sum of $3}555.04 was Owing on various discounted notes. In July, 1893, the administrator saw the cashier of that bank and told him that there were debts pressing the estate; that he had some money on hand, but that he needed it all in the running of the business; that if, however, the bank would agree to discount a note for him later, he would pay, out of the money then in hand, the claim of the First National Bank and the claims of some other creditors of the estate who were annoying him. The bank agreed to do this and the administrator paid out of the moneys thus deposited several of these creditors, and, among others, the First National Bank and the Atlantic Highlands National Bank.

On November 3d, 1893, the Second National Bank, in accordance with its agreement, put to the credit of his account the sum of $7,855.39, the proceeds of a note of $8,000, which he had presented for discount a few days before. When the bank placed this sum to his credit it charged him, however, with the amount of his father’s indebtedness ($3,555.04); and, so in fact, he got only the difference, viz., $4,200.35. He had at this time in addition a bank balance between $500 and $600. He does not appear to have made any other deposit until March, 1894, except a deposit of $125 made in January. Out of the moneys thus placed to his credit he paid the First National Bank, in addition to what he had already paid it, $496.92, and the Atlantic Highlands National Bank $727.05. He also paid other claims against his father’s estate and various debts of his own.

The note of $8,000 was subsequently reduced to $7,500, the principal now owing. The bank claims to be subrogated to the rights of the creditors whom Thompson paid out of the proceeds of the $8,000 note.

The creditors actually paid were of two classes—unsecured, creditors, like the banks and others, and creditors secured by mortgage or tax lien. As to the unsecured creditors the claim is that the banks are entitled to stand in their place, not indeed! to the extent to which they have been paid, but to the extent to which they ought to have been paid; for it is conceded: that the estate being insolvent, no unsecured creditor was entitled ,to be paid in full. As to the secured creditors, the claim is-that as they were entitled to be paid in full, the banks are-entitled to whatever was actually paid to them. As will be seen hereafter, these two kinds of claims rest upon entirely different grounds.

The law on the subject is entirely settled in this state. Subrogation is either legal, that is, given by the law, or it arises out of convention or contract. Legal subrogation is allowed only in eases where the person advancing money to pay the debt of a third person stands in the situation of a surety or is-compelled to pay the debt to protect his own rights. Shinn v. Budd, 1 McCart. 238; Bigelow v. Cassedy, 11 C. E. Gr. 558. Conventional subrogation results from an agreement, made-either with the debtor or creditor, that the person paying shall be subrogated. Receiver v. Wortendyke, 12 C. E. Gr. 660; Kocher v. Kocher, 11 Dick. Ch. Rep. 547. In the ease in hand, the bank did not pay any creditor. When it lent the money, it dealt with the debtor only and did not bargain, for subrogation. It lent money to pay debts of the estate, but it did not agree with the administrator that it should be substituted to the place of the creditors as against the estate. If the claim of the banks rested here, it would consequently fail. I think it is clear, however, that they are entitled to subrogation on another ground. The principle is thus stated by Mr. Sheldon (§ 206) and the text is borne out by the cases cited:

“Though creditors who have made advances or rendered services to a trust estate, must ordinarily look to the trustee personally for their payment, yet if the trustee would be entitled to reimbursements from the estate for his payment, and he is insolvent or a non-resident, equity will substitute the creditors to the rights of the trustee and allow them to. be paid directly out of the estate.”

And the reason for this rule obviously is that the creditor’s money has gone into the estate and he should he permitted to follow it there; and if the estate is liable to reimburse the executor for it, as between the insolvent executor and the creditor, the -creditor is the one who should have it; for his equity is superior to that of the general creditors of the executor. The case of De Concillio v. Brownrigg, 6 Dick. Ch. Rep. 532, fully supports this view and, indeed, appears to go a step further. Upon much the same equity, it is held that the proceeds of a business carried on by executors as trustees, constitute a fund in their hands for the payment of trade creditors, as cestuis que trusteni, and that, therefore, a court of equity will pursue the fund and reclaim it from any one whose title does not depend upon an innocent purchase for value. Laible v. Ferry, 5 Stew. Eq. 791, 800.

It has also been held that if the personal assets prove insufficient and the executor has paid debts out of his own money to the value of the land, he may, if the land is ordered to be sold, retain the proceeds for his own indemnity. Livingston v. Newkirk, 3 John. Ch. 312.

These principles control the case in hand. The money was lent to John I. Thompson, who is proved to be insolvent. It was lent to him to pay the debts of the estate. To the extent that it has been rightfully used for this purpose, the banks are entitled to be subrogated to the position of the administrator. But it must be remembered that by virtue of this subrogation, it has the administrator’s right and nothing more. The question then arises, how far is the administrator entitled? In the first place, he is only entitled to reimbursement^ to the extent that he ought to have paid the claims. As the estate is insolvent it will have to be determined what dividend each unpreferred creditor is entitled to and the administrator will be entitled to reimbursement only to the extent of that dividend. In the second place, the banks can only claim such proportion of the money lent as was actually used in paying the debts of the estate. If the administrator used a part of the money in his own business, it is obvious that the banks have no claim to reimbursement for that, even though, at the time the money was lent it was understood that it was all to go to pay estate debts. There will be a reference to a master to ascertain just how much of the money was applied to this purpose. It seems to me that, under the evidence in this case, what was paid prior to November 2d, 1893, by the administrator on account of the estate, with his own money, cannot enure to the benefit of the Second National Bank. The bank can only have the benefit of payments made with its money. Debts of the estate were undoubtedly paid with the money of the bank, and, to the extent that they were rightfully paid, it is entitled to subrogation. The Freehold bank will, on this principle and to-this extent, be entitled to subrogation, in respect to debts of the estate actually paid by the administrator, though not presented under oath. As will be shown hereafter, an oath is not'indispensable.

Where a person holding money in a fiduciary capacity mixes it with his own and draws out of the mixed fund, the court will presume that he applies his own moneys to his own debts and the moneys held in trust to the debts of the trust. This is on the principle that when a man does an act which may be rightfully performed, it will not be presumed that it was intentionally and in fact done wrongfully. Knatchbull v. Hallett, 13 Ch. Div. 693. I do not see why this rule may not be applied to the case in hand. In a sense, the money When lent, became the money of the administrator. Suit to recover it would be brought against him personally and not against him in his representative character. But as it was lent for a specific purpose and might, as I have shown, be followed, it should be followed on the same principle and in the same way that á trust fund is followed. Accordingly the master in stating the account will assume that so long as there was money in the account belonging to the administrator personally, it was that money and not the money of the bank which went to pay his individual indebtedness.

(2) I next consider the case of another class of creditors, viz., those whose debts were secured. They were mortgage creditors and those municipalities to which taxes were due. The claim of the banks as to payment made to creditors of this class is, that as such creditors were entitled to exhaust their liens, in other words, to be paid in full, if there was realized from the property enough to so pay them, they (the banks) are entitled to be paid- whatever was actually paid by the administrator out of their money, and not merely a dividend.

The principle already stated is here, too, applicable. That principle is that the banks will, in respect of payments made on account of the estate, be entitled only to such share of the fund now in court as the administrator is entitled to.

I think that as far as the personal property of the intestate is concerned, it is very plain that the administrator would have no claim upon it for reimbursement in full, on the theory that he was authorized to relieve the real estate from liens. It was plainly his duty to devote the personalty to the payment of debts; not to the payment of charges on realty which had become vested in the heirs, and which, after the expiration of a year from intestate’s death, those heirs might, at any time, alien, free from the lien of intestate’s creditors.

The claim is made, however, that, as to the real estate turned into money, the banks stand in a different position. It is said that their money having been used to reduce or pay off liens upon it and it having presumably brought, when sold, a price just so much higher, it is only equitable that the administrator, and therefore they, should have the benefit of these payments to their full extent. The argument could be more plausibly urged in a contest between the administrator and the heirs, than between the administrator and the creditors. The creditors do not claim under the heirs, but by a title paramount *to them; for the heirs take subject to the statutory lien. We must here distinguish between the debt evidenced by the bond and the encumbrance upon the land. As to the former, the administrator could pay it just as he could pay any other debt, and get a pro rata allowance. But the question is, could he properly discharge a mere lien upon real estate? He would discharge it, of course, either with the intestate’s personal estate or with his own money. He would not, as I have already said, be justified in paying out personalty for the benefit of realty; for this would be giving to the heirs the money belonging to creditors. In point of fact, he did not use the intestate’s money to pay with. What he used was his own money—either money which the banks had lent him or money which he had otherwise obtained. As he was heir as well as administrator the presumption would be that he had paid as heir. But if the case were otherwise, and he paid, or thought he was paying, as administrator, still he would not be entitled to anything more than a pro rata allowance for his payments, regarded as payments of a personal obligation. In discharging the lien he did not perform any common law duty and he did not perform any statutory duty. His common law duty I have stated. His statutory duty was to take the necessary steps to sell the realty, if the personalty proved 'deficient. The impolicy of allowing an administrator to use up personalty in relieving real estate from liens—often a doubtful experiment—instead of distributing it among creditors, is so obvious that nothing short of an express statutory direction would justify him-in doing so. Whether as incidental to his duty to sell, when ordered to do so by the orphans court, an administrator may use money of the estate to preserve the land until the sale, I do not consider. No application to sell was made.

It may be argued that the creditors having a lien upon the land, under the principle stated in Haston v. Castner, to which I shall refer hereafter, may discharge other liens for the purpose of preserving their securities and thus become entitled to subrogation, just as a subsequent mortgagee who pays off prior encumbrances is entitled. This argument, if sound, does not apply to the Freehold bank for it was not a creditor of the intestate. It does not apply to the Second National Bank, for that bank did not itself pay off the liens. All it did was to lend money to the administrator on the faith of the endorsed notes.

(3) I next take up the claim of Allaire & Son for premiums. It is made in respect of insurance on the hotel property procured in 1898, five years after intestate’s death. The hotel premiums' for that year amounted to $673:96; $273.96 were paid in cash and a note of $400 was given by the heirs for the balance. This note was endorsed by Thompson as administrator. I think it quite plain that Allaire & Son have no claim against the estate for this payment. The title to the property insured was in the heirs, who appear to have insured on their own account and for the benefit of the mortgagee. The administrator, as such, is not liable, on the note. Hellier v. Lord, 26 Vr. 367. The heirs are. The administrator could not claim reimbursement out of the assets, first, because he did not pay the note, and second, because if he had, he would have paid as heir and not as administrator. Consequently Allaire & Son have no claim to be subrogated.

(4) The next claim to be considered is that of Sarah Thompson. Sarah and Emeline, sisters of intestate, had, with some intermissions, from 1853 down to the time of his death, acted as housekeepers in the hotel. They put in under oath a joint claim amounting to upwards of $20,000. Emeline died in 1894. In January, 1895, Sarah, and the four children of the intestate, entered into an agreement under seal by which it was stipulated that as a settlement and compromise of the claim which she had filed against the estate, said children would pay her annually thereafter, during her life, the sum of $600. The question to be considered is, what is the effect-of this paper? The insistment is that it operated to release the heirs, but not the administrator, because he was not, as such, a party to it. The agreement purports to have been made by and between Sarah Thompson of the first part and John, I. Thompson, Cornelius J. Thompson, Eleanor I. Benton- and Matilda Riker of the second. It is signed and sealed by all of them. John I. Thompson, as administrator, was not, in express terms, a party. After reciting that she had filed a claim against the estate, which was not admitted by the parties of the second part, “who are the next of kin and heirs-at-law of the said Joseph I. Thompson, deceased," and that the parties have mutually agreed “to a settlement and compromise of the said alleged claim," the instrument proceeds as follows:

“Now* therefore, the party of the first part for herself, her heirs, executors, administrators and assigns hereby agrees to accept and does accept in full settlement, payment and discharge of all demands, claim and claims she has and claims to have against the estate of the said Joseph I. Thompson, his heirs or administrators, by reason of the said services, or otherwise, the sum of $600 heretofore received by her from said heirs, and the further sum of $600 annually during the lifetime of the said party of the first part, payable in equal quarterly payments on the first days of January, April, July and October, in each year, for and during the lifetime of the said Sarah Thompson, party of the first part.”

Then follows an express covenant by the parties of the second part to make these payments. It will thus be seen that we are dealing with a claim duly presented and verified, and a subsequent “settlement and compromise” of it.

It is therein declared that Sarah accepted the annuity in full settlement of all claim “against the estate of Joseph Thompson, his heirs or administrators.” It cannot be denied that the covenant to release is good as against the heirs. Smith v. Emery, 7 Halst. 61; National Bank at Dover v. Segur, 10 Vr. 173. But the question is whether it operates as a release in favor of the administrator. I think it does. It is founded on a valuable consideration, a considerable portion of which had, at the time of Sarah’s death in the summer of 1900, been paid.

The general rule is that in the case of deeds and other specialties, inter partes, a third person, a stranger to the deed, cannot sue thereon, although the covenant be made expressly for his advantage (Chit. Cont. (11th Am. ed.) 77), but this rule has its exceptions. In National Bank, at Dover v. Segur, supra, it was held that a third person, not a party, might enforce a covenant made for his benefit if it clearly appeared on the face of the instrument that it was the intention to give him the right to sue. It was conceded that, on the authorities, there must be something more than the covenant itself to evidence this right. Chief-Justice Beasley said that the rule that the mere fact that the covenant, made in terms, with a person not a party, did not of itself manifest an intention to confer the right, was entirely technical; that it rested more upon authority than right reason, and that it should not be pushed beyond the very letter of the eases to which it was applied.

How John I. Thompson was a party to the instrument in question, but was not, in so many words, a party in his character of administrator. The claim, however, which was being settled' was, in the language of the paper, a claim “filed against the estate,” that is, a claim which had been presented under oath to the administrator. It was from this claim that Sarah discharged not only the “estate” of Joseph I. Thompson and his heirs, but also his “administrator.” I have been referred to no case and I do not believe that any can be found in which, under such circumstances, it has been held that the administrator, being, in fact :a party to the release, could not, merely because he is not designated “administrator” in the premises of the instrument, take advantage of it. If he was .in fact a party to it, why should he not have the right to enforce its provisions just as he finds them ? To hold otherwise would be, as it seems to me, to evince more partiality for artificial rules than was, according to the late chief;justice, shown by Lord Coke when he laid, down the one in question.

I was referred to the case of Shipman v. Lord, 13 Dick. Ch. Rep. 385, where a discharge of claims was held not to include the discharge of a security. The obvious difference between that case and this is, that in that case the court could find no clear evidence of an intention to relinquish the Burnham agreement, whereas, in the 'case at bar, the instrument, in plain language, releases the estate and the administrator of the estate, in consideration of the unqualified covenant on the part of the four heirs (liable only, without the covenant, to the extent of the lands descended) to pay $600 annually during the life of the covenantee. I think, therefore, that the estate is discharged.

(5) I next take up the claim of Wade T. Little. The objection against this claim is that it is barred by the statute of limitations. Mr. Little was the manager of intestate’s hotel. His claim is for services rendered in that capacity from April 1st, 1882, to January 1st, 1893. He gives credit for payments on account, made as late as the year 1892. He presented his claim under oath to the administrator in October, 1893, before the decree barring creditors was entered (April 28th, 1894) and, .as his evidence shows, before the rule to limit creditors expired (October 26th, 1893). He recovered judgment by default for $6,167.48 against the administrator on February 10th, 1900. The administration suit was not begun until June 17th, 1899. That a personal representative may waive the benefit of the statute of limitations has been often decided in this state. Pursel v. Pursel, 1 McCart. 514; Boynton v. Sandford’s Executors, 1 Stew. Eq. 184; Shreve v. Joyce, 7 Vr. 44. That the administrator has done so in the present case cannot be disputed, for he did not plead it, and has otherwise recognized the claim as subsisting. The insistment is, however, that while such waiver may be good as against the personal estate in his hands, it is of no effect as against the land. As to the personalty there can, I think, be no doubt. As to the realty the case presents this situation. When the intestate died, and for some time after, the estate was thought to be solvent and no application to •sell was made to the orphans court. The administrator did not move in the matter until after the land had been sold in the partition suit. Then he applied to this court, under rule 155, for an order directing that the proceeds of the sale be applied to the payment of decedent’s debts.

The rule, so far at least as it applies to partition, appears to be found in section 20 of the Sales of Land act (Gen. Stat. p. 2984), which provides that

“In all suits in the court of chancery for the partition or sale of lands, where the personal estate of the ancestor, from whom the said lands descended, is insufficient to pay his just debts, it shall be lawful for the chancellor to direct such lands to be sold, freed from the lien of such debts and to make such order touching the disposition of the proceeds of sale as may be necessary for the ascertainment and payment of such deficiency thereout, before the distribution of the fund.”

Section 77 of the Orphans Court act (Gen Stat. p. 2878), provides that where lands are sold by order of the orphans court, on the application of the personal representative, the deed of conveyance shall vest in the purchaser all the estate that the testator 'or intestate was seized of at the time of his .death, if the order he obtained within one year thereafter, and if the order be not obtained within that time, then the conveyance shall vest in the purchaser all.the estate that the heirs or devisees of the testator •or intestate were seized of at the time of the making of the said ■order.

Ill the case in hand the decree for sale made in the partition suit does not contain a direction that the lands shall be sold free from the lien of the debts. Such a decree was not necessary, for the sale did not take place within the year. Being held at the instance of the heirs after the expiration of the year and operating by the statute (Gen. Stat. p. 245 §§ 18, 89) “as an effectual bar both at law and in equity against the owners and against all and every person claiming by, from or under them,” it necessarily had the same effect as an alienation by the heirs themselves. Up to the time of the alienation there was a lien (Haston v. Castner, 4 Stew. Eq. 697); but thereafter the creditors could look only to the proceeds. These proceeds are not, either by the above-quoted statute or by the rule, paid directly to the creditors. They are given to the personal representative and he makes distribution.

The question then is this, where the administrator is unwilling to plead the statute, must he distribute the personalty according to one rule and the realty according to another? It seems to me that he must distribute both species of assets in th'e same way. If the creditor is entitled to the one, he is also, in the same measure, entitled to the other. Sections 81 and 92 of the Orphans Court act provide that the estate, real and personal, in case the same shall be insufficient to pay all his or her debts, shall be distributed among his or her creditors, in proportion to the sums that shall be due to them respectively. The only exception is that the debts which by the act are made preferred shall be first paid. There is in these provisions no hint that the creditor entitled to a share of the personalty may stand in a different position as to the realty. The very fact that it is the executor or administrator on whom is east the duty of distribution, militates against the notion that the distinction exists. The provisions of the Orphans Court act, from section 70 to section 94-, treat the fund derived from the sale of the personal and real assets as a blended fund, and the only direction is to pay debts out of this fund. Except in the case of insolvent estates it is for the executor or administrator alone to say what claims he will allow. If he pays claims that he ought not to-have paid, the proper remedy of the legatee, devisee or distributee is to except to their allowance when he presents his account. He may, as I have said, waive the statute of limitations and although by doing so, he may diminish the share of the personalty and perhaps of the realty, those entitled to the residuary estate cannot object. When he makes application to sell lands, the orphans court is, in general, without power to determine the validity of the claim on which he bases his application. Miller v. Pettit, 1 Harr. 421; Vreeland v. Vreeland’s Administrator, 1 C. E. Gr. 512; Smith v. Smith’s Administrator, 12 C. E. Gr. 445; Middleton v. Middleton, 8 Stew. Eq. 115; First Baptist Church v. Syms, 6 Dick. Ch. Rep. 367. It is, indeed, provided (section 86) that any creditor or person interested may, in the ease of insolvent estates, file exceptions to the account and exhibition of claims, and I see no reason why a creditor may not except to any claim exhibited on the ground of its being outlawed. But it is further provided (section 87) that the creditor, whose claim is excepted to, may elect to proceed at law or in equity; and'if he does so elect the orphans court is ousted of its jurisdiction. If he sue at law and the executor does not plead the statute, then the judgment is conclusive of the validity and amount of the claim. So that even here the personal representative may recognize the claim if -he will. It does not by any means follow that because the heirs, in an action against them, may plead the statute, therefore the administrator riiust. This would be to assert that in all cases where lands are to be sold the discretion of the executor is taken away even as to payment out of personalty; but this is manifestly not the law. I think, therefore, the claim of Little must be allowed.

(6) The claim of French & Company is next to be considered. This firm issued an attachment against Margaret Riker and Eleanor Benton, two of the heirs of Joseph I. Thompson, after the decree for the sale of the land in the partition proceeding January 24th, 1899, and before the sale (April 26th, 1899). The question is whether this attachment is a prior lien upon the proceeds of sale. I think it is. Bockover v. Ayres, 7 C. E. Gr. 13, is a direct authority on this point. It was there held that a judgment against a devisee is unaffected by a sale and conveyance under an order of the orphans court for the payment of testator’s debts and that the purchaser thereunder takes the land subject to the lien. Warrick v. Hunt, 6 Halst. 1, had previously settled the principle. It is said, however, that the case of Morse v. Hackensack Savings Bank, 2 Dick. Ch. Rep. 279, reversing the decision in 1 Dick. Ch. Rep. 161, is an authority to the contrary. It plainly is not. The only point there decided by the court of appeals was that the purchaser, under a power •of sale contained in a will, became seized, under the devisor, by u title paramount to the title of the heir by descent. This is because the heir takes, and takes only, subject to the exercise ■of the .power. But in the case of an order of the orphans court, made after the expiration of a year from testator’s or intestate’s ■death, the statute itself declares that the estate which vests in the purchaser shall be only that of which the heir or devisee was seized at the time of the making of the order. After the expiration of the year, therefore, and up to the time of the ■order, the heir may alien or encumber. If he encumbers, the ■encumbrance is paramount. The land at the time of the partition sale was subject to the lien of the attachment in question. Had it been partitioned the shares of Margaret Riker and Eleanor Benton, set off to them in severalty, would have remained subject to this lien. When their shares were converted into money, the lien was, by the supplemental decree made in this case, transferred to the proceeds of sale and so stood as a prior lien upon those proceeds. It appears to me that as long .as the heirs were seized of the land, the judgments and attachments against them would fasten themselves upon it. The decree for sale did not of itself divest the seizin. The master’s deed took effect as an actual conveyance from the date of the sale. Morse v. Hackensack Savings Bank, 2 Dick. Ch. Rep. 279. If any other judgments or any attachment, proved in this case, were recovered against the heirs before the sale, they are subject to the same observations. It is said that the attachment suit was not prosecuted. If it be insisted that the lien does not now .exist I will hear counsel further.

(7) I must next consider who are entitled to distribution. The intestate died in January, 1893. An order to limit creditors was made January 26th, 1893. A decree barring creditors was made April 28th, 1894. The only other steps which the administrator took in. the settlement of the estate were to file an inventory and sell the personal property. He did not apply to-have the estate declared insolvent or to sell the lands. The-partition bill was filed September 3d, 1898. The original parties were the heirs-at-law; but several creditors were subsequently brought in, I suppose, under the act of 1884. Gen. Stat. p. 2432. In this suit it was only possible (1) to convert the-land into money, (2) under the act of 1884, to direct payment to be made to the creditors having liens upon the undivided shares of the heirs, and (3) to pay over any balance remaining to the administrator of the intestate, to be used by him in the-payment of debts. To obtain more complete relief, the First Hational Bank of Freehold, on June 17th, 1899, filed a creditor’s-bill against the administrator and the heirs. Some of the creditors of the intestate came in as parties and filed answers. The-bill charged that the estate was insolvent and prayed that the administrator might account in this court, and that the proceeds of the sale of the lands might, with the personalty, be applied in the payment of the debts. On February 20th, 1900, a decree-was made that the administrator file an account and a list of the claims; and the creditors were ordered to present their demands within forty days from the date of the order, with a direction, however, that no creditor who had already presented his-claim under oath to the administrator should be required to present another claim to the master. These orders were complied with. The question now to be considered is, how distribution shall be made.

It is well settled that the court of chancery has jurisdiction-over the administration of estates concurrent with the orphans-court (Coddington v. Bispham, 9 Stew. Eg. 575), although it will not ordinarily interfere with the jurisdiction of that court, unless for some special cause. Frey v. Demarest, 1 C. E. Cr. 236; Rutherford v. Alyea, 9 Dick. Ch. Rep. 412. Here it is evident that a special cause exists in the very complicated situation. In Coddington v. Bispham, Chief-Justice Depue, after stating that whenever a bill is filed against executors, by a creditor or legatee, touching the administration of the estate, the suit is for the benefit of all parties and the court may assume the general administration of the estate, says that in the course of such administration the assets will be applied as they would be applied in the probate courts. This being so, we must look to the Orphans Court act, to find the rule of distribution in the case of an insolvent estate.

The former rule was that only those creditors who exhibited their claims, under oath, within the time limited by the order of the orphans court, would be permitted to participate (Gould v. Tingley, 1 C. E. Gr. 501; Lewis v. Champion, 13 Stew. Eq. 61); such exhibition having been made by statute a condition on which the title of the creditor to share in the fund was to depend. Van Dyke v. Chandler, 5 Halst. 58. But the act of 1890 (Gen. Stat. p. 2408; P. L. of 1898 p. 739 § 68) seems to have modified this rule. It provides that if an executor or administrator, in good faith, pay any claim not presented under oath, and it*is proven that the claim is a just one, the executor shall have allowance for it, if there be sufficient estate to pay the debts of equal degree in full, and if the estate is not sufficient,

“then the said executor or the administrator shall be allowed for the pro rata amount such creditor would have been entitled to receive if the said claim or demand had been presented to such executor or administrator duly verified.”

The creditor must be paid in full, if the estate be solvent. If the provision for the payment of a pro rata amount does not apply to the case of insolvent estates, it is meaningless. The question then arises as to the limit of time within which the executor or the administrator is permitted to make payment of claims not verified by oath. As the statute itself prescribes no limit, it can only be found in the nature of the proceeding itself. He would seem to have power to .pay, at least up to the time that he, by application in writing, under section 82 or 91 of the former, or section 99 or 109 of the present act, represents the estate, real and personal, to be insufficient to pay its debts.

By the act of 1893 (Gen. Stat. p. 2414 § 250; P. L. of 1898 p. 756 § 112), the orphans court is empowered, on the application of any creditor of an insolvent estate, at any time before distribution made, to extend the time within which claims maybe presented by creditors. Thus it will be seen that the present policy of the law regulating distribution in cases of insolvency is, in one way or another, to allow claimants to share in the assets, if they make their claims, and such claims are allowed, at any time before distribution. By the administrator’s account filed in the administration suit, no debts appear to have been paid later than 1896. This was nearly three years before the bill was filed. The administrator is therefore entitled to a pro rata allowance, on the principles hereinbefore stated, for payments made by him of debts of the decedent not verified by oath, including, of course, bond debts.

There should be a reference to a master to report (1) the amount of money applicable to the payment of claims, (2) the claims duly verified and presented to the administrator before the expiration of the rule to limit creditors, it being the time fixed by this rule and not the date of the decree barring •creditors that is controlling (Young v. Young, 16 Vr. 197); (3) the claims against the decedent’s estate which were not presented under oath, but which, being just claims against the •estate, the administrator actually paid; (4) the claims (if any), being just claims against the estate, not included in the foregoing category, which were presented in compliance with the order of this court; (5) the claims against the heirs, which, because they became liens upon their shares of the real estate before the partition sale, are entitled to precedence; (6) the ■creditors who, on the principles hereinbefore stated, are entitled to be subrogated to the position of the administrator and the .amounts in respect of which they are entitled to subrogation; (?) what money advanced by creditors was used to pay the •decedent’s debts. On this reference the master may use the testimony taken in the cause. If any further questions arise, •or remain undisposed of, they may be brought to my attention •on the coming in of the report.