7 Paige Ch. 439 | New York Court of Chancery | 1839
The only question which arises on this appeal is as to the meaning of the word priority as used in the third subdivision of the twenty-seventh section of the article of the revised statutes relative to the duties of executors, &c., in the payment of debts and legacies, (2 R. S. 87.) That section directs the payment of debts in classes; and the next section provides that no preference shall be given to one debt over any other debt of the same class, except as to the debts specified in the third class. This third class of debts, as to which a preference is allowed to one debt over another debt of the same class, embraces all judgments docketed and decrees enrolled, against the deceased ; which are to be paid according to the priority thereof respectively. The most natural reading of this clause of preference certainly is that which has been given to it by the surrogate; that is to refer the term priority to the time when the judgment was docketed, or the decree was enrolled.
I agree with the counsel for the appellant that, according to the settled law in England, as it existed there at the time of our declaration of independence, one judgment against the decedent had no preference over another judgment in payment out of his personal estate; provided both were docketed at the time of his death. And that the personal representative had the right to retain for a junior judgment due to himself, or to give a preference to one judgment creditor over another, without regard to any priority in point of time of the docketing of their several judgments; unless some proceedings had taken place, subsequent to the death of the decedent, by which one judgment creditor had ob«
Whether the late Chancellor Kent overlooked this distinction, between judgments against the decedent and judg
But it is evident from the note of the revisers that they considered the case of Thompson v. Brown as settling the law differently from what I have supposed it to have previously been, on both of these questions. They understood the decision in that case to be that judgments and decrees,
The decision of the surrogate in ‘this case, that, by the provisions of the revised statutes, judgments docketed and decrees enrolled are entitled to preference in payment, out