
    W. J. & A. Marvin against S. Stone, 2d, & D. Hopkins.
    An executor assigns a judgment in favor of his testator, and covenants as executor, that so much is due upon it; held, that the covenant is personal, and binds him in his own right
    In construing a covenant, it must be considered with the context, and must be performed according to the intention of the parties as derived from both.
    Accordingly, where S. & D., two of H.’s executors, as such, assigned a judgment to M in favor of H. against E. who was also executor, and S. & D. covenanted, as executors, that there was due and unpaid upon the judgment, to the assignors, at the time of the assignment, §698; held, that the covenant was broken eo instanti that it was made ; for H. having appointed E. his executor, and he having accepted the trust, this extinguished the judgment, and so there was nothing due or unpaid thereon within the meaning of the covenant; for the covenant meant, 1. that it was due : 2. that it was due to the assignors as executors ; 3. due at the time; 4. due upon the judgment
    
    It is a general rule, that if a creditor appoint his debtor his sole executor, or one of his executors, and the debtor accept the trust, this operates as a release or extinguishment of the debt.
    But a qualification, universal as the rule is, that where there is a deficiency of assets to pay debts, the debt due from the executor is not discharged ; but shall be considered a part of such assets.
    In the latter case, it has, in judgment of law, been paid to the debtor executor, and is considered as money in his hands.
    Clioses in action are, generally, not deemed assets till actually received by the executor.
    But if he releases the debt, it is assets; and he shall be adjudged to have received it.
    The appointment, by a creditor, of his debtor an executor, is considered in the nature of a specific bequest to him of the debt, and as such must give Way to creditors.
    But a specific bequest takes preference of general legacies, and, as such, the bequest of the debt will be preferred.
    On a deficiency of assets to pay debts, all the general legacies must abate proportionably; but a specific legacy is not to abate at all, unless there be a deficiency without.
    Whenever, from the whole will, it appears that the testator did not intend to discharge the debt, by making his debtor an executor, the latter is a trustee to the amount of the debt for the legatees or next of kin.
    But making a judgment debtor executor with others, and in the will bequeathing all judgments that may be in the hands of his executors to others, does not show such intention.
    The debt, when assets for legatees, &c. would be considered money in the hands of the debtor executor.
    
      Covenant. Cases cited illustrating the proposition that though the letter of a covenant be fulfilled, yet an action lies, if its spirit and intent be violated. The Attorney General, arguendo.
    
    Action of covenant, tried at the Ontario Circuit, in June, 1822, before his Honor, (the late) Mr. Justice Platt, when a verdict was taken for the plaintiff by consent, subject to the opinion of the Court, on the following case, with liberty to either party to turn the case into a special verdict.
    The declaration was upon an indenture made by the defendants, as follows:
    
      ' “ This indenture made the 17th day of November, 1819, between Simon Stone, 2d, an executor, and Doratha Hopkins, executrix of the last will and testament of Caleb Hop kins, late of Pittsford, in the county of Ontario, deceased, of the one part, and William Marvin, John Marvin, and Alexander Marvin, of Albany, of the other part. Whereas Caleb Hopkins, in his lifetime, did, in August term, A. D. 1816, recover by judgment in the Court of Common Pleas, in and for the county of Ontario, against Augustus G. Elliot, of Pittsford, aforesaid, the sum of 1000 dollars of debt, and also 10 dollars for his damages, as, by the record, &c. Now this indenture witnesseth, that for and in consideration of the sum of 698 dollars, &c., paid, &c., to the said S. S. executor as aforesaid, and the said D. H. as executrix as aforesaid, they have assigned, &c., to the said W. M., J. M. and A. M., &c., the said judgment, &c., and all the benefit and advantage, sum and sums of money, that may be had, obtained or gotten, by reason or means of said judgment, or any proceedings to be had thereon. And the said S. S. execu-' ecutor, arid D. H. executrix, as aforesaid, do covenant with the said W. M., J. M. and A. M. that they have not received nor will they receive the said moneys due on the said judgment, nor any part thereof; and that there is now due and unpaid upon the said judgment, the said sum of 698 dollars ; neither shall or will release or discharge the same or any part thereof, but will own and allow of all lawful proceedings for the recovery thereof, they, the said W. M., &c., saving the said S. S. and D.. H. harmless from all costs that may happen to them thereby. In witness, &c.”
    The declaration contained several counts in which the breach assigned was, that at the date of the indenture, there was not due and unpaid upon the judgment, the sum of 698 dollars; but that the judgment was fully released and extinguished, and Elliot wholly dischargedfrom the payment thereof, to wit, on the 27th day of February, 1818 ; because Caleb Hopkins, the plaintiff in that judgment, on the 26th day of September, 1817, duly made his last will and testament, and appointed Augustus G. Elliot, the defendant in. that judgment, together with the defendants in this suit, executors thereof; and afterwards died without revoking the same, and that Elliott accepted the appointment, duly proved the will, and took upon him the execution thereof. There was also a count assigning the breach generally, by negativing the words of the covenant.
    The defendants pleaded the general issue, and several special pleas, denying that Elliott was discharged from the judgment in manner and form as the plaintiffs alleged, affirming that, at the date of the indenture, there was due and unpaid on the judgment, 698 dollars, denying that Hopkins appointed Elliott his executor, and averring that Elliott did not accept the appointment of executor, and did not prove the will, and did not take upon him the execution thereof.
    There was also a notice of special matter, to be given in evidence on the trial, viz. that the sum of 698 dollars was paid to the defendants by the plaintiffs, in consideration of their assigning the judgment against Elliott; that they assigned the same as executors of Hopkins, and received the money as such executors; and before any notice on the part of the plaintiffs, that they claimed the repayment of the money, they paid out. and expended, the same in satisfaction and discharge of divers debts and demands against Hopkins, as assets in their hands, and above and beyond the assets in their hands; that the plaintiffs, having judgments and other incumbrances against the real property of Elliott, of a younger date, purchased the judgment in favor of Hopkins, in order to let in their judgments that Elliot always acknowledged the sum of $698 was due and unpaid upon the judgment, and always expressed his intention to pay it.
    At the trial, the plaintiffs proved the indenture, and the will of Caleb Hopkins, dated 26th of September, 1817, by which a large real property, situated in the county of Ontario, was devised, and a large personal property bequeathed, subject to the payment of debts, and Elliott and Stone appointed executors, and Doratha Hopkins, executrix, which will was proved by one of the subscribing witnesses, on the 27th day of February, 1818, and letters testamentary then granted to the executors and executrix, named in the will. It was agreed that this will should be made a part of the case. After bequeathing several legacies, it contained these word's : 11 In addition to the above legacies or sums, I will and order, that all sums of money, bonds adjudgments, that may be in the hands of my said executors, that have not been disposed of, in and by my aforesaid will, shall be equally divided between my two sons,"«fee., to be paid, «fee. Also all lands, goods and chattels, that have not been disposed oí by me, in the above will and testament, shall be equally divided between my two sons.”
    The'defendants’ counsel objected that they should not be put on their defence, until the plaintiffs showed that there were assets of Caleb Hopkins in their hands sufficient to pay his debts, or that there were no debts and also contended that the construction of this covenant was not as the plaintiffs supposed, that the money was absolutely due and payable on the judgment, but that it had not been paid ; and that the very words of the covenant showed, that its being collectable was uncertain and contingent. His Honor overruled the objections, reserving them, and directed the defendants to proceed with their defence.
    A variety of evidence was then given by both parties, touching the question whether the defendants had fully administered the estate of their intestate; whether there was a deficiency of assetsand a deposition of Elliott was read by consent, stating that the Marvins had sold all Ms real estate upon junior judgments; that he intended to pay the judgment assigned to the plaintiffs; but had been prevented by poverty, «fee. But as the arguments went chiefly, and the opinion of the Court wholly, upon grounds independent of the defendant’s evidence and the plaintiff’s proof in reply, it is not deemed material to detail either.
    Verdict for the plaintiffs for-$>800, subject, (fee.
    The cause was briefly opened by Mr. H. B. Davis for the plaintiffs, who confined himself to a statement of the facts and the points, which latter were as follows:
    1. The covenant is personal, upon the defendants.
    2. It is broad enough for the case; the true intent of the parties, and the legal construction of the covenant being, that the judgment assigned was not released, extinguished or otherwise discharged; that the amount was due and payable, and might without any existing legal impediment, be collected by the assignees.
    3. The appointment by Hopkins of Elliott as his executor, and Elliott’s acceptance of the appointment, was a release and extinguishment, or payment, in law, of the judgment.
    4. If the judgment is not released, on failure of funds to pay debts, yet it can only exist as between creditors and executors of the testator, being assets in their hands, and could not be enforced by scire facias, by the defendants against their co-executor; and is wholly extinguished and inoperative in the hands of the assignees, who could not have execution on it for their benefit.
    5. The evidence derived from the depositions of Elliott was improperly admitted, it being wholly irrelevant.
    He was followed on the same side by
    
      Talcott,
    
    (Attorney General.) There is nothing in the covenant, nor is there any evidence in the case, to show that at the time of purchasing the judgment, the plaintiffs had any knowledge that Elliott was an executor.
    We admit that this sum of $698 was never actually advanced or paid by Elliott, or any person in his behalf, either to the testator or to his co-executors. The defendants contend that, therefore, it is “ due and unpaid," and so there is no breach of the covenant. We answer, that the debt, as such, is, in judgment of law, under the circumstances of this case, extinguished, paid or satisfied, so far forth, at least, that it cannot be said to be due within the true intent, meaning and spirit of the covenant.
    The Court therefore will have two general questions presented to them: 1. What is the true construction of the covenant ? 2. Did the appointment of the judgment debt- or as one of the executors, and his acceptance of the trust, produce such an affect upon the judgment, or the situation of the debtor, or the other executors in relation to it, as is inconsistent with the spirit and intent of that covenant?
    
      
      First, then, as to the construction of the covenant. Covenants are to be construed according to their spirit and intent. This spirit and intent is to be gathered from the whole context. The rule laid down, as taken from Portlier, is: we ought to interpret one clause by the others contained-in the same act, 'whether they precede or follow it. If, after all, it remains doubtful which of two meanings is the true one, the law has then furnished another rule. That construction is to be adopted which is most strongly against the covenantor, and most beneficial to the covenan tee.
    
    Having ascertained by the application of any, or all of these rules, what the spirit and intent of the covenant are, it must be performed according to that spirit and intent; and a performance which is strictly according to the letter of the covenant, if it violate the spirit and intent, is as much a breach as if it violated the letter also. If a man act contrary to the intent of the covenant, it shall be a breach though he perform the words. Examples : If I covenant to deliver so many yards of cloth, and I cut it in pieces, and then deliver it, it is a breach ; for the law regards the real and faithful performance of all contracts. So if one covenant to leave the trees on the land, and he cuts them down, and leaves them there. The defendant, a common brewer, covenanted that the plaintiff should have seven parts of all the grains made in his brew house (for seven years) and afterwards put great quantities of hops into the malt, of which the grains were made, by means of which the grains were spoiled; the grains were, however, delivered in this condition. Upon action of covenant, it was objected that it would not lie, because the covenant was fulfilled by the delivery of the grains, and that the only remedy for the plaintiff was an action on the case for that fraud. But the Court held that it was the intent, that the plaintiff should have them for the use of his cattle ; of course, that he was to have them in such a state that his cattle would eat them; that when hops were mixed with them, cattle would not eat them ; therefore, though the grains were, in fact, delivered so as to comply with the letter of the covenant, they were not delivered in such a state as to answer the spirit of it, and it was consequently broken, and the action maintained.
    
    To apply those rules of construction to the present case: To whom, and how is the judgment due according to the covenant ?
    To whom due.—The defendants say that there is due $698 on the judgment. They described themselves as executor and executrix of the plaintiff in the judgment, to whom it would be due, if living. When, therefore, they represent themselves in the capacity of persons who have succeeded to the rights of him to whom it was due in his life, they, of course, represent that by virtue of their succession to his rights, it is now due to them. If they do not represent it as due to them, how came they to assign it ? Can a man assign a debt to. which he has no title 7 And when he assigns a debt, and covenants generally that it is due, does he not covenant that it is due to himself who assigns it 7 The spirit and intent of the covenant, therefore, is, that it is due to them.
    
    Next, how and in what maimer, and to what extent and effect due to them 7 Due to them as debts of a testator are usually due to executors ; for they disclose no circumstances in the covenant, to show that this is not an ordinary case.
    
      Due to them upon the judgment as such ; for such are the words of the covenant.
    
      Due to them in such a manner that they had a right to assign it ; for they undertake to assign it. They covenant that they have not received, and will not receive any of the moneys due on the judgment, and will not release and discharge the same, or any part thereof.
    
      It was, therefore, a covenant that the debt was so due to them that they might receive the moneys, and had power to release and discharge the debt.
    
    They covenant to own and allow all lawful proceedings for the recovery of it, the plaintiffs saving them harmless from costs; these proceedings to be in their names. Else, why the covenant to own them ? Else, why stipulate for an indemnity against costs 7 They would not be subject to costs, unless the proceedings were in their names. 
      They therefore covenanted, in intent and meaning, that it was so due to them that lawful proceedings might properly be instituted in their names for the recovery of it.
    
    The spirit of the whole covenant, as gathered from the context, is therefore this: That the debt is due to them as debts are ordinarily due to executors, and so due that they have the right and power to collect or discharge it; and that lawful and effectual proceedings for its collection may properly be instituted in their names.
    Having thus ascertained the spirit and intent of the covenant, the next question is—
    
      2. Did the appointment of the judgment debtor, as one of the executors, and his acceptance of the trust, produce such an effect upon the judgment, or the situation of the debtor, or the other executors, in relation to it, as is inconsistent with that spirit and intent't
    
    The general rule is, that if a creditor appoint his debtor his executor, such appointment, unless the executor renounces, will operate as an extinguishment or discharge of the debt.
      
       This rule is not peculiar to the common law, but seems to be a rule of general reason, resulting from the nature of such contracts, and adopted by every finished system of jurisprudence. Si debitor creditori vel creditor debitori succedat, sine dubio, extinguitur obligatio ; una cum obligationibus accessoris pignoritm et fidejussorum, eo quod confusio talis pro solutione valet, ut nemo potest apud eundem pro eodem obligatus manere.
      
       By confusion is meant the concurrence of two qualities, in the same subject, which mutually destroy each other. This takes place when the creditor becomes heir of the other, or vice versa.
      
       The same consequence ensues when the creditor succeeds to the debtor by any other title which renders him subject to his debts; and when the debtor succeeds, by whatever means, to the rights of the creditor. In all these cases, the quality of debtor and creditor concur in the same person.
    It is evident, that, by the concurrence of the opposite characters of debtor and creditor in the same person, the two characters are mutually destroyed; for it is impossible to be both at once, A person can neither be his own creditor, nor his own debtor. Hence, indirectly, results the extinction of the debt, when there is no other debtor ; for as there can be no other debt without a debtor, and the confusion having extinguished the character of debtor in the only person in whom it resided, and there being no longer any debtor, there cannot be any debt.
    In accordance with these principles, Courts of common law have held, 1. That if the obligee of a bond make the obligor, his executor, this amounts to a release, at law, of the debt. 2. The same consequence results, when the obligor (as here) is only one of several executors; for one executor cannot maintain an action against another. 3. The same doctrine applies to the case of a judgment debtor as to a debtor on bond.
    
    But it will be said, that to permit a testator to disappoint his creditors of the funds for satisfying their debts, by appointing his debtor executor, is against the principles of justice and equity; and it has, therefore, been held, that the debt shall be assets in the hands of the executor, when the other assets are insufficient for the purpose of discharging those debts. It will then be contended, on the other side, that the assets in this case are insufficient; that, therefore, the debt itself is assets, from which the inference will be deduced, that the debt cannot be considered as extinguished, but that it is due and unpaid, within the covenant.
    We admit the law to be so settled, and well settled. Assets, however, are to be presumed, till the want of them is proved. Here the want of them has not-been proved. In truth the contrary appears. But if there were not sufficient assets, without this debt, so that the debt is considered as assets, it is so far from supporting the inference that the judgment is not discharged, that it is the very doctrine which, of all others, shows that the judgment, as such, is discharged; for Elliott is accountable, not in the capacity of judgment debtor, but as executor. It is admitted that there may be found scattered through the books, expressions of Judges sometimes, at first view, apparently inconsistent with each other, and sometimes, perhaps, a little deficient in perspicuity. This has arisen from the difficulty of expressing without circumlocution, the precise effect produced upon the debt, by constituting the debtor executor. But the current of decisions has been uniform, and there is one princi pie running through them all, viz. that the debt is assets, foi the payment of creditors. “ It was never doubted but a debt-due from an executor to a testator shall be assets in the executor's hands, to pay debts.” And per Powell, J. ‘ Some books say the action is gone, some say the debt is gone, and some say the debt remains; but they will be all reconciled by this, that the debt will be assets.”
    
    It will be contended on the other side, that this debt is not discharged because it is assets. It is material to inquire, therefore, what assets are, and when and how a debt due to the testator becomes assets 1 “ And it. is to be observed, that a right for which a good remedy by action is given, is not yet assets, until it be recovered and reduced into possession.” If a man is indebted, by obligation, £100, to a testator, this obligation is not assets in the hands of the executors, until it be recovered by them. Bonds and specialties are no assets till the money is paid. Debts due to a testator upon a judgment, statute, or specialty, are not assets till actual recovery and receipt.
    
    This doctrine is also supported by the more modern authorities. Toller says, in relation to choses in action, “ The executor is entitled to the testator’s debts of every description, whether debts of record, as judgments, statutes and recognizances,.or debts on special contract, &c., &c., and all such debts, when received by the executor, shall be assets in his hands. And it was held by Ld. Bllenborough, in 1815, that debts due to an intestate are not to be considered as assets, until actually paid ; and that, on a plea of plene administravit, it was necessary to prove that the amount had been received.
    
    There are, indeed, some cases in which an executor must account for a debt as assets which he has never actually received ; but all these cases are put upon a ground which fortifies our argument, viz. that the executor has so conducted as, in judgment of law, amounts to a receipt, and gives riso to that presumption, juris et de jure, which is incapable of contradiction, that the debt has been received by him. Take the case of a release by him. Per Periam, “ If an executor release an account, and it can be proved that so much was due, it is assets ; for the law presuméth he hath received so much as he doth release.,
      
       If an executor release a debt, or discharge one in execution, it shall be accounted, " ° 1 in law, assets received.
      
       Damages recovered may be assets, though never actually received, as by being released by the executor; for this amounts to a receipt. In no other case, therefore, is an executor liable for -a debt, due to the testator, as ussets in his hands, unless the debt has been actually received, or has been placed in such a situation that in judgment of law, it is considered as received.
    Apply this doctrine to the present case. The defendants say the debt is assets. If so, the judgment itself has ceased to be an outstanding debt; because, in order to become assets, it must be considered as received ; and here, as the same hand which is to pay is also to receive, in judgment of law, it is considered as received:
    
    This is supported not only by the authorities already cited, but is strongly fortified by other courses of reasoning founded upon other classes of cases bearing upon the same point. Dauby, Choke & Mode, Justices, held that when a creditor makes his debtor and another his executors, and has no other goods but the same debt, the executor debtor shall be charged with the same to those to whom the testator was indebted ; and he shall be charged to account for the sam,e before the ordinary. For what is an executor to account before the ordinary ? He is to declare what goods and chattels, belonging to the testator, he has received, and what debts and legacies he has paid. This shows that he does not account for the whole inventory already filed, but only for such part of it as has been actually received, or is deemed to be received in judgment of law. The Court, therefore, when they said he must so account for his own debt, must have held that the debtn was, in judgment of law, to be considered as collected or received by him in his capa- , 1 city of executor, and tne money in his hands as such.
      Where there had been a decree against an executor to account, Ld. Eldon said, “ a debt due from an executor is assets, for the same plain reason, that an executor who is a creditor may retain. The consequence seems necessary that under the usual decree against an executor, an interrogatory should be pointed to the inquiry, whether he has assets in his hands arising from a debt due by himself
    
    Again, it may be said, if an executor does not administer the amount of his debt, it is a devastavit. An executor can be guilty of a devastavit in relation to debts due the testator in only two ways : 1. Where he releases the debt, or does not take the proper measures' to collect and receive it. 2. Where, when it is collected and received, he does not properly administer it. An executor cannot take any measures to collect and receive a debt of himself. He cannot, therefore, commit a devastavit in the first manner by neglecting to take proper measures. It must be committed in the second mode, and as that can only be done when the debt is collected and received, the debt in this case must, in judgment of law, be deemed to be collected and received by him, and in his hands as executor to be administered.
    If the testator leave the executor a legacy, it is held to be a sufficient indication that he did not mean to release the debt due from the executor, and in such case, says Toller, the executor shall be a trustee to the amount of the debt, for the residuary legatee or next of kin. No man can properly be a trustee of a judgment against himself, i. e. of the judgment itself. It is incident to a trust, that a trustee, should have the power of transferring or assigning the trust property to a cestuy que trust having the whole beneficial interest, unless specially prohibited from doing so, or unless the doing so would or might defeat the particular object of the trust.
    Apply that doctrine here, and what shall we have ? an assignment of a judgment by the judgment debtor himself! The language of Toller is scrupulously accurate and points to the very doctrine for which we contend. He speaks of a trustee to the arnouid of the debt, not of the debt itself. Then that amount must be considered in his hands as executúr, and received on the judgment. The result of the cases stated in Bridgman, is, that if a debtor be made executor, the debt is totally extinguished. But it seems that it is only parting with the action; for the executor is considered as a trustee for the money, and such money is considered in equity, as part of the testator’s personal estate. Here the ownership of so much money is taken from him, who owes in his private capacity, and transferred to his official capacity, so as to make, a part of the fund which ought to receive it. Of course, then, the debt is paid to the fund.
    Hence, because the debt is assets ; because the executor is to account; because he may commit a devastavit in relation to it; because he is trustee of the money; and because the money ceases to belong to him in his individual capacity, but is considered part of the testator’s estate; the debt must be considered, in judgment of law, received by the executor, the money in his hands as executor, and the judgment as such, therefore paid.
    But we rest not solely upon these general principles, and inferences deducible from them, however convincing and irresistible we may think them to be. There are opinions of the ablest Judges directly in point. In Wankford v. Wankford,
      
       the question was, whether the appointment of an obligor to be executor of the obligee, was such a discharge of the obligation that the administrator, cum testa~ mentó annexo, of the obligee, could not sue the representatives of the obligor after his death: held, that he could not ; and, by Holt, for two reasons: 1. By the appointment of the obligor executor, he became entitled to receive the money, and he being the person who was to pay it, the same hand was to pay and receive, which operated an extinguishment. 2.
      
       “ That when the obligee makes the obligor his executor, though it is a discharge of the action, yet the debt is assets, and the making him executor amounts to payment and a release. If H. be bound to J. S. in a bond of £100, and then J. S. makes H. his executor, H. has actually received so much money, and is answerable for it; and if he does not administer so much, it is a devastavit.” In Stevens, admr. v. Gaylord,
      
       Jackson, J. (delivering the opinion of the Court) says, “As soon as the debtor is appointed administrator, if pe acknowledges the debt, he has actually received so much money, and is answerable for it. This is the result with respect to an executor, and the same reason appliés to an administrator, as the same hand is to receive and pay, and there is no ceremony to be performed in paying the debt, and no mode of doing it but by considering the money to be now in the hands of the party as administrator.” He after-wards says, “ The consequence is, that he and his sureties in the administration bond, are liable for the amount of such debt, in like manner as if he had received it from any other debtor.”
    It would be a waste of time to enter into an argument to' show that if these authorities are to be relied upon, and the amount is in the hands of the executor, as such, it amounts to payment, as Ld. Holt says, and that the judgment which has thus produced this amount, in his hands, is not a judgment due and unpaid. One authority, however, even on so p]ajn a point. It is said in Winship v. Bass et al., “ there is no doubt that formerly by the common law of England, when a debtor was made executor, the debt was discharged, unless a different intent of the testator could be inferred from the will itself. The reason given in some of the books is, that the same person is to pay and receive, and as the executor cannot maintain an action against himself the debt shall be considered as paid. But to avoid manifest injustice to creditors, the same law held that the debt thus considered to be paid, should be assets, &c.” Again; speaking of an administrator,
      “ the remedy at law may be suspended during his administration, but will revive after it ceases; and indeed he may be charged on his administration bond as having received the amount of his debt; for having voluntarily assumed the trust which prevents any other from receiving, and being unable to sue himself, he shall be considered as having paid the debt, and holding the amount in his hands as administrator.” «
    If, after this, it can be supposed the judgment against Elliott is to be considered, in point of law, due and unpaid, we ask to whom is it due ? To Elliott himself? “ A man cannot be his own creditor and his own debtor, and if so, the other executors had no interest, and could not assign.” To the other executors ? “ One executor cannot owe his co-executor in that capacity. They cannot sue each other. After Elliott’s death, they could not sue his representatives. They are not liable for his devastavit as to this debt. They are not liable to account to creditors for it; for they cannot collect it, and having no personal interest in ft themselves, it cannot be due to them. To the creditors of Hopkins? How ? to all jointly&emdash;the whole ? or each proportionably according to his debt ? Shall each one sue him in debt on judgment, or can any one sue him in debt on judgment ? No one can tell to whom this judgment, as a judgment debt, is due, and support that opinion either by reason or authority.
    
      J. C. Spencer, for the defendants, made the following points:
    1. The appointment of Elliot an executor, did not absolutely discharge the judgment.
    
      2. If it did, it would not be a breach of the covenant.
    3. If the covenant imports that the judgment was valid and subsisting, it is satisfied by the facts in the case, showing a deficiency of assets; and also by its being valid in equity for the next of kin.
    4. In any event, the plaintiffs being volunteers, cannot question the validity of the judgment.
    He said that considerable reliance might be placed, in the concljision, upon the assumed fact, that the real estate was devised to the executors for the payment of debts; but we contend that such is not the true construction of the language in the case. The words are, "by which a large real property, situated in the then county of Ontario, was devised; and a large personal property bequeathed, subject to the payment of debts." We say, the expression, "su1~jeet to the pa~yrnent of debts," applies only to the last antecedent, personal property. In Eagles v. Carey, the expressions, “I will all my debts shall be paid before any of my legacies, or gifts hereinafter mentioned,” were held not to charge the testator’s land with the payment of debts. We deem it only necessary to refer to the whole will, to show tkat the testator never devised his real estate to pay his debts, and we contend, that if any ambiguity arises from the language of the case, it is entirely removed by a reference to the will.
    But whether there were assets or not, for the payment of debts, we hold to be quite immaterial. The judgment against Elliott was as much assets for the next of kin, as for creditors ; and creditors and next of kin stand precisely on the same footing. If this judgment can be made available to either, the words of the covenant are satisfied.
    The authorities cited, as collected in Bridgman’s Index,  are Hudson v. Hudson,
      
       and Wankford v. Wankford.  The language of the Chancellor in Hudson v. Hudson,is certainly very strong, that the debt is totally extinguished. But it is to be remarked, that this was used by way ’ v v of argument, and was not a decision on any point' in the case; and, what is remarkable, the very next case in Atkyns, Fox v. Fox,
      
       is a decision on the very point, directly the contrary, viz. that, notwithstanding at common law, the making an obligor executor extinguished the debt; yet, in this case, the bond shall be considered as assets in the hands of the executor, to be applied, after paying funeral expenses and legacies, to the exoneration of the real estate, in favor of the heirs.” This is a very strong case. It proceeds upon the familiar principle in equity, that the heir has a right to call on the executor to apply the personal estate in discharge of a mortgage, as the first fund. The Chancellor, Fox v. Fox, makes the bond of the executor personal property, applicable to the payment of funeral expenses and legacies, and belonging to the heir; but this could not be so, if it were absolutely extinguished, in the language used in Hudson v. Hudson. That language, then, should be taken with the qualification annexed in Fox v. Fox, at commonlaw, and then the case of Hudson proves nothing.
    The case Wankford v. Wankford, so much relied upon by the Attorney General, merely proves, what has not been denied, that, at common law, an. action, cannot be sustained on a bond given by an executor to his testator; although the reasons given are extremely questionable, and may induce the Court to relax the rule, “ according to the exigencies of society, and the lights and improvements of the age.” Yet it not denied that the older authorities are so. But, in that case, the observations of Powell, J. at page 302, are worthy of remark. “He said that some books say, the action is gone, some say the debt is gone, but they will all be reconciled by this, that the debt will be assets.” Probably the true question between the parties on this part of the case is, what is meant by the books’ saying, the debt is assets in the hands of the executor 1
    
    The Attorney General has cited several cases to show the meaning of the term assets, and that a debt is not to be deemed assets, until it is collected. In Termes de la Ley,
      
       “ assets are said to be, when a man makes executors, and leaves them sufficient to pay, or some commodity, or profit is come to them in right of their testator.” Toller says, “ the personal property that is of a saleable nature, and may be converted into ready money, is called assets in the hands of the executor or administrator, that is, sufficient, from the French assez, to make him chargeable to a creditor and legatee, or party in distribution, as far as such goods and chattels extendand in the .case of Fox v. Fox, before mentioned, it will be observed that the Chancellor calls the bond assets in the hands of the executor, to be applied for . the benefit of the heir. There are a great variety of cases where executors are made chargeable as for assets, that never came to their hands ; as where by negligence or delay in collecting debts, or prosecuting for them, they have become desperate ; all which would seem to show, that a security may be assets, before it is collected; and, in this case, why is not the judgment against Elliott as much assets in the hands of the other two executors, Messrs. Hopkins and Stone, as in Elliott Could they avoid accounting for it to creditors, by saying that it was not assets ■? It is doubtless true, that in the cases cited by the Attorney General, particularly those from Massachusetts’ Reports, the Courts. have.said that they will hold the executor liable for. the debts mves his testator, as assets in his hands, on the ground that he is presumed to have paid himself. In the case of a solvent and responsible executor, as all those cited appear to have been, this was sufficient for the purposes of the suit. But because the Courts have, in such cases, made that presumption, it by no means follows that, such is the only ground of the liability of the executor.; or that, such liability is limited to his personal responsibility only. It is sufficient to say, that in none, of the cases, was the question presented, whether the Courts would enforce a security which was valid, and woirld be effectual against the property of. an executor, who was insolvent, and against whom there were no other means, of proceeding to collect the debt. ?
    The Attorney General contends, that the executor is liable quasi executor, and not as debtor ; Toller,
      
       gives the reason why the debt of an executor shall be assets to pay creditors, viz. that it is highly unreasonable that the claims of creditors, should be defeated by a release absolutely voluntary ; and, the same reason is given in 2 Black. Com. 512; but. upon the ground taken by the Attorney General, the object of the rule.of law would entirely fail in every case, where the executor was. insolvent, although a valid and sufficient security fpr the debt, existed ; for though, according to. his doctrine, the testator, cannot release the executor, as it would, be a fraud on his creditors, yet he may discharge the only remedy for collecting the debt. In other words, he would he permitted to do that indirectly, which he is not allowed to do directly.
    In many of the cases cited on the other side, and in all the elementary books, the executor is called a trustee for creditors, legatees and the,next of.km, and there is no doubt he is, such. Now the securities and liens which a trustee has, arp incident to the principal trust, and belong as much to the cestny que ¡trust, as. the debt itself. If A. should ass%n to F, in trust for B, a debt owing by Z. of $500, which is.sec.ured by a mortgage, can there be a. doubt that B; would b,e entitled to compel the trustee F. to foreclose, the mortgage if"it was necessary to collect the debt? The very point is decided in Jackson v. De Lancey.
      
       Kent, J. says, in that case, “ Even if the technical legal estate in the inertgage, had descended to the heir, he would have been but a mere trustee for all the- children, to whom the beneficial interest was devised; and they would have been entitled to use his name to recover the money, or to jforeclose the mortgage, or to gain possession.” The case cited by him in 2 Yesey Senior, p. 45, is to the same point. If it had been the mortgage of the heir himself, it is presumed it would have made no difference. The powers of a Court of Equity would have been abundantly sufficient to enforce the security,. The case of Orr v. Kaines,
      
       shows that where an executor is insolvent, the Court will make a legatee whom he has paid, refund. In Crane v. Drake,
      
       a ereditor was. allowed to pursue the specific fund sold, to a purchaser. If,.then, the executor-be a trustee for creditors, and next of kin, to whom the- debt belongs, why should not a mortgage given by him, be enforced for their benefit, if it was the only means of collecting the debt 1 And if a mortgage, why not a judgment ? The technical difficulties arising from the executor being defendant, and the representative of the plaintiff, if they are insurmountable at law, are easily overcome in Equity, where a bill, might be filed to charge the land held by such judgment. It is an old head of Equity, that the Court will lend its aid to enforce judgments at law, where there are any obstructions. Its jurisdiction will be exercised-whenever, upon principles of unh versal justice, the interference of a Court of Judicature is necessary to prevent a wrong,- andthe positive-law is silent.
    
    The familiar case of a judgment and execution creditor, , . , - _ , ° , , . seeking, the aid' of a Court of Equity to charge choses in action, that had been fraudulently assigned, and could not be levied, on by execution-at law, is in point to show the power and'practice of that Court, in enforcing judgments at law; and. the case of Egdell v. Heywood
      
       is very much in point, to show that when the:remed"y at law is obstructed, in consequence of technical difficulties, equity will interpose to give effect to a judgment at law, and on the express ground that the ordinary remedies there cannot be had. Thus, a bond from a woman to her intended husband is enforced in p¡gUjty; although void at law, and extinguished by the in termarriage.
    
    If this reasoning, and the inference from the authorities be correct, then is it established that a creditor of Hopkins, in case of a deficiency of assets, would be entitled to the aid of a Court of Chancery to enforce the judgment against-Elliot’s lands; and, of course, the judgment must be valid, due and unpaid, if there were such deficiency of assets.
    Without now entering into that question, we contend that the next of kin stand in the same situation with creditors and legatees; and are equally entitled to the remedies which a creditor may have.
    The position taken on the other side, that the appointment of a debtor executor, is a specific bequest, is conceived, at this day, to be entirely exploded. The authorities clearly establish that he is merely a trustee ; that his name implies it.
      
    
    The remark in Toller, 350, that an executor has a right to his debts exclusive of legatees, rests upon 2 Bl. Com. 512 and Hargrave’s note on Co. Litt. 264, a. Blackstone, in P^ace cited, states the doctrine, and refers to Salkield, 303, which is the case of Wankford, and contains no such rale. Hargrave, in his note, considers the appointment of an executor, as a specific bequest to him, to pay the debt, but does not say a word as to his having a preference over the legatees. Toller, keeping in view this idea of the executor being an exclusive legatee, proceeds to state several cases °f exceptions in Equity, and to give the reasons for them : and, so far from the rule being as he states it, the case of Brown v. Selwin,
      
       is in point to show that the executor is a írustee even f°r a residuary legatee, and must account to him for his debt. We say that the cases he puts as exceptions, with many others already cited, show the rule itself' in Equity, to be different from what he states it; and prove that the executor is not considered á legatee in that Court. For instance, the case of Berry v. Usher,
      
       cited on the other side, is put by Toller on the ground that, “ although without a legacy, (to the executors) yet it appearing, by the 
      tenor of the will, that the testator considered him in the light of a mere trustee of his whole property, his debt was clearly held not to be discharged.” This case was directly opposed to Toller’s rule, and he was bound to get rid of it; and if he cannot do this, it must overthrow the rule. Now he has assigned a ground of distinction, which none of the able counsel in the case thought of; which the Master of the Rolls does not recognize, or even allude to, and which is really unfounded in fact. Upon examining the case it will be seen, that Usher had many and various duties to perform, as executor, such as payment of money and interest to two persons, for long periods. Toller also quotes the case of Fox v. Fox, with a “ so where,” <fcc., as if that was a case of an executor being a mere trustee; whereas that case cannot possibly be reconciled with this rule, nor explained upon any of the exceptions which he has stated; and it is utterly at war with Hargrave’s idea of a specific bequest to pay the debt. Toller also cites the case of Carey v. Goodinge, as an exception to his rule, and puts it upon the ground of legacies having been given to the executors, as a sufficient indication that the testator did not mean to release the debt. Now, although it is true legacies were given in that case, yet that does not appear to have occurred to the counsel for the defendants, as being worthy of their notice, and the Chancellor, Lord Thurlow, gives no such reason, but says expressly, that the appointing of a debtor executor was no more than parting with the action, which he thought had been a settled point; and, therefore, declared the debt of the executor a trust for the next of kin. What right has an elementary writer to assign a reason for a decision which the Court not only did not give, but which would make the decision proceed upon a ground so different from that given by the Court, as in effect to contradict it ? We rely much upon this case, and upon the reason assigned by the Chancellor, and we consider it conclusive until it is shown to be overruled.
    The last clause of the will disposes of “ all sums of money, bonds or judgments, lands, goods or chattels, not before bequeathed or devised, to the two sons of the testator.” These bequests, we contend, are broader, if possible, than « ¿/¿c res; anc¿ residue of my estate,” and that they make the two sons legatees of the judgment against Elliot. These legacies meet completely even the rule laid down by Toller, at page 350. They not only furnish a “ strong inference” that the testator did not intend to bequeath the debt to Elliott, but they afford irresistible evidence that, he meant to give it to his sons. In addition to the cases cited by him, I would add Errington v. Evans,
      
       where it is said, “ if an obligee makes an obligor one of the executors, and takes no notice of the bond, but devises the residue of the estate to others, I am clear it'is not an extinguishment of the debt, though at law it will be so, because a personal demand, once suspended, is not to be resumed,” The latter part of this remark, it is contended, would be applicable only were we seeking to enforce a judgment in a Court of law. But we ask no such thing. We say that if it can be enforced in Equity, it is sufficient to satisfy the words and the spirit of the covenant; and if it be valid in Equity, for the benefit of legatees, then we say the executors would be decreed trustees for their benefit; and that its being a lien on land would be an incident attending that trust which a Court of Equity would sustain and enforce, if the benefit of the trust can be obtained only in that way. The authorities already cited, and the arguments urged, we think establish that a Court of Equity would declare the judgment a lien on the lands of Elliott.
    Talcott, (Attorney General,) in reply.
    The ground is not materially changed by the argument for the defendant. Most of it had been anticipated; and, indeed, the greater part of t-’'e principles it contains, as deducible from cases, were insisted upon as favoring the plaintiffs rather than the defendants.
    As to the construction of the will in relation to the real estate, the Court will judge from an inspection of i. But even admitting the construction contended for by the defendants to be true, it could make no difference with the case, in principle. For a moment let us examine the origin and reason of the English doctrine, as to marshalling assets.
    
      It grows out of a set of familiar principles. 1. The heir cannot be disinherited by implication. 2. The real estate is not liable for the payment of the ancestors’ debts, (except in cases of liens,) unless expressly charged with them ; but debts and legacies must be paid out of the personal property. 3. The will of the owner of property is to be carried into effect, when not contrary to law:
    When a man dies, justice requires, in the first place, that his debts should be paid. If he has given a legacy in his will, he of course intends that the legatee should have it, and after the payment of debts, the claim for the legacy must be satisfied. If, however, he makes nó provision for the payment of the debts or legacies out of his real estate, the common law of England presumes that the legacies were given under an idea that the personal estate was sufficient for all purposes. If it turns out otherwise, the legacies must abate, because they were given under a mistake; and it was not the will of the testator that the legatees should have them at all events, but only in cáse the personal estate was large enough to pay debts and legacies too. If the testator charges his debts on his lands, then the performance of his will does not depend solely on his personal estate, and Equity very properly marshals assets in favor of legatees. But in this state the law itself subjects the real estate of the testator to the payment of his debts ; and if, in England, Equity will marshal assets, whenever the real estate is so subjected, why not do it here 1 What difference in principle does it make, whether it is So subjected by the act of the party, in a particular case, or by the act of the law which applies to all cases ?
    
    But, says the counsel, this is all immaterial; for, admitting there are sufficient assets to pay all debts, still this judgment is as much assets for the next of kin, as for creditors, and should be distributed among them. For this he relies on the case of Fox v. Fox.
      
       That case, upon an examination, will be found tó have proceeded upon its peculiar circumstances; and to show that the case itself is not considered, in England, as furnishing the general rule, but rather as an exception to the general rulé, it is necessary only to refer to 11 Vesey, Jun. 90, note (a) where it is saú], of this case¡ u jjn¿er f]ie circumstances of Fox v. Fox, the executor could not be permitted, in Equity, to avail himself of that character, at the same time insisting upon his mortgage, the only consideration for which was the debt.” It is true that where a debt is due from an executor, a Court of Equity, under the particular language of the will, many times raises a trust for residuary legatees, and even for next of kin ; but the true rule is that laid down by Toller, Blackstone, Hargrave, and indeed, by all the elementary writers, and is substantially this: that making the debtor executor is, prima facie, a bequest to him of the debt; but this legacy will not be permitted, any more than other legacies, to interfere with the payment of debts ; yet being in the nature of a specific legacy, it will, in general, and unless there is some peculiar provision or language in the will, take precedence of legacies at large ; and so, too, it will take place of the rights of the next of kin, unless the phraseology of the will is sufficient for a Court of Equity to raise a trust in their behalf.
    The cases put as exceptions, by Toller, &c., are, in truth, so; and the remarks made upon them, by the counsel on the other side, when compared with the cases themselves, will be found erroneous. The case of Berry v. Usher, was a case of clear trust.
    But it is said that the provisions of the will, in this case, show that, as to this judgment, the executor was a trustee only. The clause alluded to is that directing “ that all sums of money, bonds or judgments, that may be in the hands of my said executor, that may not have been disposed of, in and by my aforesaid will, shall be equally divided between my two sons.”
    But this clause extended only to judgments in the hands of the executors. Now the judgment in this case never could be in the hands of the executors. As to Elliott, it was not a judgment in his hands as such. (A judgment is in the hands of a plaintiff, or some person claiming under him, not in the hands of the defendant.) It was not in the hands of the other executors. They could not sue it, or institute any proceedings for its collection. It was not, therefore eon templated by that, language of the testator. But suppose it had been; was it a judgment so due and unpaid that the executors had a right to assign it, when the will directed them to divide it between the two sons ?
    But if it is assets, as contended by the defendant, still, we repeat, the judgment debt, as such, is considered as paid, and the amount in the hands of the executor, in his capacity of executor.
    
    But to this it. is objected, that, it would, in some cases, drive the creditors of a testator to rely on the personal security of an executor, who might be insolvent. This objection might be made to the general power of an executor, in ordinary cases. He has always the power .to discharge a judgment obtained by the testator. He, by this, however, may make himself liable for a devastavit. So where the judgment is against himself, if he does not pay it, he is liable for a devastavit, and the same remedy exists against him in the one case as in the other. The doctrine as to the right to securities by a cestuy que trust, is inapplicable to the case of executors, and furnishes no limitation of their powers.
    It seems to be admitted, on the other side, by the remarks on Errington v. Evans, and other remarks in the course of the argument, that the debt is extinguished at law ; but the counsel contend, that it is not extinguished in Equity. Here it must be remembered that the question is a question at law, and must, therefore, be decided by the rules of laxo, and not by any different rules of Equity.
    But how could the claim be enforced in equity? Not as a judgment. The cases where Courts of Equity interfere to assist a judgment or execution, a.re cases where the party has a right to an execution on the judgment. He is then helped by the intervention of a Court of Equity to reach property which he could not otherwise reach ; but the Court will not give him a right to issue execution on an extinguished judgment, for the sake of helping him to take a particular species of property, or otherwise, when ho has no right to take any kind of property by such process..
    
      But who could.apply to a Court of Equity in a tase like this ? Not the other executors ; for they have no interest m the debt. They have no power to collect it, are not accountable for it, and though the non-payment of it by Elliott should be a devastavit in him, an executor is liable only for ' his own devastüvit and not for that of his co-executors, The other executors, therefore, being without interest in the subject matter, could not maintain proceedings, in Equity, (whatever creditor's or next of kin might do,) and if so, they had not the power to assign any such right; and, as to them, the judgment is extinguished in Equity as well as at law-.
    Again : even admitting Elliott to be a trustee, the other executors are not cestuy que trusts. If he is a trustee, he is-for creditors, legatees, or next of kin. Now no person can assign an interest in trust property, but the trustee or cestuy que tnist; and as the defendants Were neither, they had nothing to assign. And it seems to be very clear, that where a person is neither the absolute or conditional owner of a debt, not a trustee or cestuy que trust of it, there is nothing dué to him; and if he covenant that the debt is due to him, (as the fair, and only fair interpretation of this covenant,) the covenant is broken eo instanti that it is made.
    
      
      
         6 John. 50.
    
    
      
       7 East, 240, 1. Com. Dig. Covenant, (D).
    
    
      
      
         2 Com. on Cont. 532.
    
    
      
      
         8 John. 406. Bac. Abr. Covenant, (F).
    
    
      
       Co. Litt. 183. 2 Bos. & Pull. 22. 9 East, 16.
    
    
      
      
         1 Sid. 48. Com. Dig. Covenant, (D).
    
    
      
      
         Com. Dig. Covenant, (F) (E 1). Sir. T. Ray, 464, in Griffith v. Goodland; & see Hopkins v. Young, 11 Mass. Rep. 302.
    
    
      
       2 Jones, 191, Griffeth v. Goodland.
      
    
    
      
       Toller’s Law of Exrs. ch. 4, s. 9, p. 347.
    
    
      
       Voet, Pand. Lib. 16, tit. 3, s. 19.
    
    
      
      
         Poth. on Cont part 3, ch. 5, s. 1, &c. 1 Evans’ Poth. 425.
    
    
      
       Id.
    
    
      
      
         8 Co 136.
    
    
      
       Off Ex 31. Plowd 204.
    
    
      
      
        Thomas v. Thompson, 2 John. 471.
    
    
      
      
         Per Ld. Talbot Cas. Temp. Talb. 241.
    
    
      
      
        Wankford v. Wankford, 1 Salk. 302.
    
    
      
      
         Brediman’s Case, 6 Co. 58, 59.
    
    
      
      
         Owen, 36, Sav. 119, pl. 188, S. P.
    
    
      
      
        Noel v. Nelson, 1 Vent. 96. 2 Vern. 299, S. P. arg.
    
    
      
       Com. Dig. Assets, (D). Off. Ex. 92. Bac. Ab. Executors, &c. (H) 2 vol. 417.
    
    
      
       Toller’s L. Ex. ch. 3, s. 1, p. 157.
    
    
      
      
        Giles et al. v. Dyson et al., 1 Starkie, 32.
    
    
      
      
         Brightman v. Keighley Cro. Eliz. 43.
    
    
      
      
         Per Hobart, Hob. 59.
    
    
      
       Off Ex.70.
    
    
      
       Plowd 186.
    
    
      
       2 Fonbl. B. 4 Pt. 2. ch. 3, sec. 4, p. 412, 2 ed.
    
    
      
      
        Simmons v. Gutteridge, 13 Ves. 264
    
    
      
      
         L. Ex. 350
    
    
      
       Bridgm. Index, tit. Executors, &c. X.
    
    
      
       1 Salk 305, 6.
    
    
      
       id. 306.
    
    
      
       11 Mass. Rep. 269.
    
    
      
       12 Mass. Rep 201.
    
    
      
      
         Id. 203.
    
    
      
       Toller L. Ex. 348 Book 3, ch.4 sec. 9.
    
    
      
       1 Vern. 457.
    
    
      
       Tit. Executors pl. X.
    
    
      
       1 Atk 461.
    
    
      
       1 Salk. 299
    
    
      
       1 Atk. 463.
    
    
      
       Bridgm. Index, tit. Estate, real and personal, H.
    
    
      
       Tit assets.
    
    
      
       L. Ex 137.
    
    
      
       Toll. L. Ex. 427.
    
    
      
       L. Ex. 349
    
    
      
       Moses v. Murgatroyd, 1 John. Ch. Rep. 127, 128.
    
    
      
       1 John. Rep. 559.
    
    
      
      
         2 Ves Sen. 194.
    
    
      
      
         2 Vern 616.
    
    
      
      
         Mitf. Pl. 2d ed. 103, 104, ch. 2. Coop. intr to his essay on Pl. in Ch xxxiv.
    
    
      
      
         1 Fonbl. 11.
    
    
      
       3 Atk 352.
    
    
      
       Sugd. L. V. 162
    
    
      
      
         Simmons v. Gutteridge, 13 Ves. 262. Askwirth v. Chamberlain, 1 Ch. Rep. 138. Field v. Clark, id. 242. Carey v. Goodinge, 3 Br. Ch. Cas 110. Bennet v. Bachelor, id. 28. Brown v. Selwin, Cas. Temp. Talb. 240. 4 Br. Parl. Cas. 179, S. C. Errington v. Evans, Dick. 456.
    
    
      
       Cas. Temp. Talbot, 240. 4 Br. Parl. Cas 180, and vid. Fort. 240.
    
    
      
       11 Ves. 87.
    
    
      
      
         3 Br Ch. Cas. 110.
    
    
      
      
         Dick. 456.
    
    
      
       1 Atk 463.
    
    
      
      
         Dick 456.
    
   Curiq, per Sutherland J.

(after stating the facts.) The case turns upon the construction of the covenant, and the effect and operation of appointing Elliott an executor. There is no dispute as to any material fact. The covenant was not denied, on the argument, to be a personal one upon which the defendants are responsible in their individual character, and not as executors.

1. What, then, is the true construction of the covenant ? It is unnecessary to cite authorities, to show the rule of interpretation, that the whole covenant, with its context, is to be taken into consideration; and that is to be considered the covenant, which, from such consideration appears to have been the true intent and meaning of the parties. If the intention of the parties be doubtful, that construction is to be adopted which is most beneficial to the covenantee. Testing this covenant by these rules, and there can be no doubt, 1. That if the judgment assigned was satisfied or extinguished by operation of law, it was as much a breach of the covenant as though it had been paid in money or discharged by a release; for if it was satisfied, in judgment of law, neither the sum of $698, nor any other sum, was due upon it: 2. That the covenant implies that the sum due and unpaid is due to the covenantors at the time of the assignment: 3. That it was due to them as the representatives of Caleb Hopkins, the plaintiff in the judgment: and 4. That it was due upon the judgment.

2. The breach of the covenant is said to be the necessary result of the judgment creditor’s appointing the judgment debtor one of his executors, and his acceptance of the trust.

It is undoubtedly true, as a general rule, that if a creditor appoint his debtor his executor, or one of his.executors, and be do not renounce the trust, such appointment shall operate as a release or extinguishment of the debt, or the action for it, upon the ground that such must have been the intention of the testator; because, by making the debtor an executor, he voluntarily destroys the only remedy or means by which the debt can be collected. The rule is universal, that when the remedy is suspended by the act of the party entitled to it, it is destroyed forever. The consequence is the same, if the debtor is a co-executor with others; for one executor cannot sue another. (Thomas v. Thompson, 2 John. Rep. 471. Toll. L. Ex. 272, Loud. ed. 1800, ch. 4, s. 9. 8 Rep. 136. Bac. Abr. Executors, &c., (A) 10. 2 Bl. Com. 512. Plowd. 184. Wankford v. Wankford, 1 Salk. 299. 11 Mass. Rep. 259. 12 id. 201. Off. Ex. 31, 32.)

But there is one qualification as universal as the rule itself ; that where the testator does not leave funds sufficient for the payment of his debts, the debts due from the executor shall not be discharged ; because the testator shall not be permitted, by a voluntary release, to defraud his creditors of their just claims. In such a case, therefore, the debt due from the executor, shall be considered assets in his hands, for the payment of the debts of the testator. By consi(jering it assets, the difficulty is avoided as to the means of enforcing payment. It cannot be assets in the hands of the executor, until it ceases to be a debt due to them, and has, either in fact, or in judgment of law, been paid to, and received by them. Choses in action, or debts due to the testator upon judgment, statute or specialty, are not assets till actual recovery and receipt. (6 Rep. 58. Noel v. Nelson, 1 Ventr. 94. Com. Dig. assets, (D). Bac. Abr. Executors & Administrators, (H) 2. Toll. L. Ex. 272. 1 Starkie, 32. 2 Vern. 299.) If an executor release a debt due to the testator, in judgment of law, he shall be considered as having received it, and it shall be assets in his hands. (Cocke v. Jennor, Hob. 66. Cro. Eliz. 43.)

Ifj then, there be a deficiency of assets, in this case, and of consequence, the debt due from the executor becomes assets, in judgment oflaw, is ceases to be an outstanding debt, and becomes money in the hands of the executor. The judgment against Elliott, therefore, was paid and discharged ; and the covenant of the defendant, that the sum of $698 was due and and unpaid, was broken.

The opinion of Holt, Ch. J. in Wankford v. Wankford, (1 Salk. 306,) is explicit upon this point. He says, “ when the obligee makes the obligor his executor, though it is a discharge of the action yet the debt is assets; and the making him executor, does not amount to a legacy, but to payment and a release. If A. be bound to B. in a bond for £100, and IhenB. make A. his executor, A. has actually received so much money, and is answerable for it. And if he do not administer so much, it is a devastavit.

This subject is very ably and perspicuously treated by Mr. Justice Jackson, in Stevens v. Gaylord, (11 Mass. Rep. 259.) In page 269, upon this particular point, he says, as soon as the debtor is appointed administrator, (if he acknowledge the debt,) he has actually received so much money, and is answerable for it. This is the result with respect to an executor; and the same reason applies to an administrator, as the same hand is to receive and pay, and there is no ceremony to be performed in paying the debt, and no mode of doing it, but by considering the money to be now in the hands of the party in his character of administrator.” The sureties in the administration bond were, accordingly, held liable for the amount, as though it had been actually received. So also, in Winship v. Bass, (12 Mass. Rep. 199,) it was held that the sureties of an executor, who was a debtor to the testator, at the time of his appointment, were responsible for the debt, upon the principle, that it must be considered as having been actually received by the executor.

But it is contended by the defendant, that, even admitting there are assets sufficient for the payment of the debts of the testator, the result is still the same ; for a debt due from an executor, to the estate of his testator is assets for the next of kin, as well as for creditors; and they are entitled to, and can obtain the fruits of it in Equity, if not at law. The general rule, I apprehend, to be otherwise. The appointment by a testator of his debtor as executor, is considered in the nature of a specific bequest to him of the debt, not to be paid unless there are sufficient assets to pay the debts. But if there are, then to take preference of the general legacies. This is the general doctrine as laid down by Toller, 274, (London ed. of 1800,) in support of which he cites 2 Blackstone’s Commentaries, 512, and Hargrave’s note on Co. Litt. 264, b, note (1.) It was said by the counsel for the defendants, that these authorities did not support the doctrine for which they were cited ; that although Blackstone does state such to be the rule, yet no such doctrine is to be found in the case to which he refers as his authority; (the case of Wankford v. Wankford, 1 Salk. 303.) Now upon an examination of that case, it will be found that Mr. Justice Powell, in his opinion, does state the doctrine, in terms, as laid down by Blackstone and Toller. After remarking, that the extinguishment of the debt in' such cases takes place, not by way of release, but as a legacy or gift by the will, and where that specific debt, or any part of it, is expressly devised by the will to pay a legacy, it will, be assets to pay- su.ch legacy, because the testator intend to extinguish the debt; he says, “But where there is no such special devise, the-debt shall be extinguish-eel, notwithstanding any other legacies ,” That is, the ap? pointment of his, debtor an executor is prima fade,, evidence of the testator’s intention to give him the-debt by way of lega cy; and where that presumption is not repelled by some provisions of the will, inconsistent- with- such intention,, the ex-tinguishment shall take effect, although there may not be as, sets to pay the other- legacies. The note of Hargrave, also, sustains the doctrine of Toller. “ Still; however, (ho- says) when the creditor makes the debtor his executor, it is to be considered- but as a specific bequest or legacy, devised to the debtor to pay the debt-; and, therefore, like other-legacies,it is not tobe paid or. retained till the other debts are-satisfied.”

Now, if it is. to be considered as a specific bequest, then it is entitled to. priority of satisfaction over the general legacies. For in case of a deficiency of assets, to pay. the debt; all the general legacies must abate proportionably. But a specific legacy is not to abate at all, unless there be npt.sufficient without it. (2 Bl. Com. 513.)

Whenever, from the whole will, it appears, that it was not - the intention of the testator to discharge the debt;, by making- his debtor his , executor, then the executor- shall be trustee to the amount of. the debt for the legatees or next of kin. (Toll. L. Ev. 274; Carey v. Goodinge, 3 Br. Ch. Cas. 110; Cas. Temp. Talb. 340.) Now, no such intention appears from the provisions of this will. It is not to be inferred from that part which directs, that- all sums of money,.bonds or judgments', that may be in the hands of his-executors, shall be divided between his two sons ; because a judgment against one of his-executors never could be in, the. hands of his executors, as a judgment.

But admitting that the-judgment is. assets for-the next of kin; if' it is assets, it- ceases to be a judgment, and, in contemplation of law, has become money in the hands of the executor. Nothing, therefore, can,he due and.'unpaid- upon it; nor can it-be assigned;

Judgment for the plaintiffs,  