goods of the testator d (33). But if it be found that he had nothing in his hands, the judgment shall be, that the plaintiff shall take nothing by the writ, and shall not have judgment of the debt; for he hath waived this advantage by taking of the issue, and judgment is to be given upon the verdict,Where a testator is much indebted, and the executor is desirous to be rid of the assets, his safest way is, to file a bill in chancery against the creditors, to the end they may, if they think fit, contest each other's debts, and dispute who ought to be preferred in payment f.

SECTION VI.

Of Accounting before the Ordinary.

By the statute of the 22 & 23 Car. II. c. 10. the ordinaries shall and may proceed and call administrators to account for and touching the goods of any person dying intestate, and upon hearing and due consideration thereof, order and make just and equal distribution of what remains clear (after all debts, funeral, and just expences, of every sort, are allowed and deducted); and the same distributions decree and settle, and compel such administrators to observe and pay the same, by the due course of his majesty's ecclesiastical laws: saving to every one, supposing himself or themselves aggrieved, their right of appeal, as has been always in such cases used. But by the statute of the 1 Jac. II. c. 17. sect. 6. it is provided, as was before mentioned,

d 1 Roll's Abr. 929.
e Ibid.

f 2 Vern. 37.

(33) Or the plaintiff on such a plea may immediately take judgment of assets quando acciderint. Noell v. Nelson, 2 Saund. 226.

that no administrator shall be cited according to the said act of the 22 & 23 Car. II. c. 10. to render an account of the personal estate of his intestate (otherwise than by an inventory or inventories thereof), unless it be at the instance or prosecution of some person in behalf of a minor, or having a demand out of such personal estate as a creditor or next of kin, nor be compellable to account before any of the ordinaries or judges, by the said act empowered and appointed to take the same, otherwise than is aforesaid; any thing in the said act to the contrary notwithstanding.

The account must be passed before the same judge, or his surrogate or successor, that grants the administration.

If any person having interest shall call the administrator to exhibit a true, full, and perfect inventory of the goods of the deceased which have come to his hands, and to give an account of his administration thereof; he who is called in such case, is bound personally to exhibit such inventory and account, and (if the adverse party demand it) to take a corporal oath of the truth thereof. And as proofs made upon the account, at the instance of some one or more persons having interest, do not bind others who are not parties to the suit; therefore to prevent multiplicity of actions, it behoves the administrator, when he is cited by any one of the parties to render an account, to cite the next of kindred in special, and all others in general, having or pretending to have interest in the goods of the deceased, to be present, if they think fit, at the rendering and passing the account. And then upon their appearance, or contempt in not appearing, the judge will proceed to give sentence; and the account thus determined will be finali.

An executor or administrator shall be allowed all reasonable expences, as well in law-suits, as for other honest purposes: And this reasonableness of expences to be such, as that he may receive thereby neither

"Oughton's Ordo Jud. 345,

i Ibid. 354.

G

profit (34) nor loss k. And therefore he shall be allowed his expences in secular courts, over and above such costs as were allowed there 1.

In an action of debt upon a bond entered into by an administrator to the ordinary, upon taking letters of administration, the question was, Whether an administrator, by virtue of this obligation, was bound to go, and give in his account in the spiritual court without being cited? And by Holt, chief justice, who delivered the opinion of the court, 1. It appears by the statute of Edward III. that an executor was compellable to account before the ordinary, and so was an administrator ; but that the ordinary was to take the account as given in, and could not oblige them to prove the items of it, nor swear to the truth of them. So it was if a creditor sued in the ecclesiastical court; for he had a proper remedy at common law. But if a legatee had sued for an account in the ecclesiastical court, the defendant before the statute was compellable to prove the whole account; for the legatee had no other remedy, and the ecclesiastical court, which had a jurisdiction of legacies, could not otherwise do right: yet in such a case, if the executor would pay him, he could not sue further, for he had right done him, and the executor was not liable, but of necessity that right might be done. 2. A person entitled to distribution on the 22 Car. II. is in consequence entitled to sue for an account as a legatee was; for the next of kin is a legatee by the statute, and, as a statute legatee, shall have the same remedy as the other legatee might before the statute. The condition of an adFloyer's Proctor's Pract. 37.

k Lind. 178.

(34) It is a general rule that an executor or trustee is not entitled to a compensation for personal trouble and loss of time. Burden v. Burden, 1 Ves. & Bea. 170. Brocksopp v. Barnes, 5 Madd. 90. If therefore the nature of the trust be such that an executor or trustee ought not to undertake it without remuneration, a special case must be made in a court of equity, before the trust is accepted, in order to induce a relaxation of the general rule. See Marshall v. Holloway, 2 Swanst. 432.

ministration bond was, to account when required; therefore he was not to account before he was legally cited, which could not be ex officio; and therefore the statute of Jac. II. whereby the ordinary is prohibited from citing him ex officio, had really no effect at all, for the law was so before: but since the statute of Car. II. the condition of administration bonds being, that he account at a day certain, he must account accordingly at his peril, and that without citation or suit; and this account must be in court; and if he comes at the day and no court is held, he shall be excused; for he may plead he was there ready, and no court held. But then this account is not examinable, unless a party interested comes and controverts it m.

It is said the ordinary hath but a lame jurisdiction, and there being no negative words in the statute of Car. II. a bill for distribution properly lies in chancery". And where the surplus of the personal estate for want of distribution by a will is distributable, there can be no suit for it in the spiritual court.-Where a man died intestate, and his widow took out letters of administration to him; the intestate's brother cited the widow into the spiritual court, to make distribution of her deceased husband's estate. The widow there suggests, that the brother had goods of the intestate in his hands to the value of 2001. And upon this the spiritual court orders him to bring the 200l. into court, to the end it may be distributed. And for not bringing it in, they excommunicate him. Upon which he moves in the King's Bench for a prohibition; and it was granted as to the whole process that compelled him to bring in the 200l. For by the court, the spiritual court hath power to make distribution of the estate, when it comes in, but not to fetch it in; because that is to hold plea of debt; but the spiritual court might refuse in this case, to proceed to distribution, until the brother had brought in the 2001. but they cannot excommunicate him for not bringing it in '.

m 2 Salk. 315.

A 2 Vern. S62.

• 5 Mod. 247. Str. 865.

P Clerke and Clerke, L. Raym. 585.

CHAPTER III.

OF MAKING DISTRIBUTION.

By the statute 22 & 23 Car. II. c. 10. after debts and funeral expences are paid, the surplusage of intestates' estates (except the estates of femes covert; that is, married women, to which their husbands have a right as before mentioned) shall, after the expiration of one full year from the death of the intestate, be distributed in the following manner : one-third shall go to the widow of the intestate, and the restdue in equal proportions to his children, or if the children be dead, to their representatives, that is, their lineal descendants. But no child of the intestate (except his heir at law) on whom he settled in his lifetime any estate in lands, or pecuniary portion equal to the distributive shares of the other children, shall have any part in the surplusage with their brothers and sisters; but if their estates, so given them by way of advancement, are not quite equivalent to the other shares, the children so advanced shall now have so much as will make them equal' (1). But the heir at law shall

should not be barred of any thing a husband should give or leave by deed or will, and he died intestate, and a freeman of London; it was held, that the wife's shares by the statute and custom were not a satisfaction of the covenant contained in the settlement. Kirkman v. Kirkman, 2 Bro. Cha. Rep. 95.

r 2 Black. 515, 516.- If the intestate husband covenanted to leave his wife a certain sum; and her distributive share comes to above that sum, the latter is a satisfaction; and this hath been considered rather a performance than satisfaction of the covenant. 1 P. Will. 324. Note 1. 4th edit. But where there was a proviso in a settlement that the wife (2).

(1) This statute applies only to the case of actual intestacy; for where there is an executor and consequently a complete will, though the executor may be declared a trustee for the next of kin, they take as if the residue had been actually given to them. Therefore in such a case, a child advanced by her father in his lifetime, cannot be called upon to bring her advancement into hotchpot. Walton v. Walton, 14 Ves. 324.

(2) The rule is, that if, on a division of the covenantor's