
    David Hutchison v. John Bates, Ex’r. and Thomas Robertson and others, creditors, of Robert Bates, deceased.
    Columbia,
    Dec. 1828
    Priority of judgment against the executor gives no right to priority of payment out of the assets, where the estate is insolvent. In marshalling the assets, debts take rank according to the footing on which they stood at the death of the testator, to which period the order of payment must be referred.
    The costs of a judgment, obtained against the executor, do not rank with the debt on which the judgment was founded, but are postponed, it seems, to debts of every degree, which were incurred by the testator in his life time.
    A bond due by the testator, but which has not become payable, even when the assets are marshalled, ranks in equal degree with bonds which were both due and payable in his life time.
    Tried before Mr. Justice Gantt, at York, Spring Term, 1828.
    This was an appeal from the decree of the ordinary for York District. The plaintiff was a creditor by specialty of the defendant’s testator, and after the death of the latter, obtained ju¿¡gmf!Ut against the executor, the defendant. He subsequenl-ci(;ed the defendant before the ordinary to account for his ad~ j j ministration. Thomas Robertson, who was also a creditor by specialty, on which he had obtained a judgment against the executor, junior to the present plaintiff’s, was made a party to the account. Allen Bates and David K. Bates, minors, and children of John Bates, the executor, were creditors by two bonds, neither of which was payable at the testator’s death, or at the date of plaintiff’s judgment, and one of which had more than twelve months to run when the account was taken; and they were also made parties by their father and guardian. On taking the account, the assets were found insufficient to satisfy the several debts above specified; and the ordinary decreed, that the plaintiff should be paid rateably with the other creditors, interest and costs of suit to be added to the principal of the debts.
    The plaintiff appealed to the Court of Common Pleas; and moved to reform the decree of the ordinary, on the following grounds.
    t. That as plaintiff held the oldest judgment, he was intitled to priority of payment over the other creditors.
    2. That at least the judgment took precedence of the bonds due to the children of the executor, which were not due at the death of the testator, nor even at the time when the judgments were signed.
    3. That in any case, the plaintiff was not bound to accept a rateable portion of the costs of his judgment, but should be permitted to resort to his remedy at law against the executor.
    The presiding Judge affirmed the decree of the ordinary; and the plaintiff now moved to reverse his decision.
    F. L. 494.
    Rogers, for the motion.
    Clendinen, contra.
    
   Colcock, J.

delivered the opinion of the Court.

There is no ground on which the decree of the ordinary can be impeached, except that which relates to the allowance of the costs on the judgment, obtained after the death of the testator. The creditors now before us stood on the same footing at the death of the testator : they were all bond creditors at that time ; and to that period the executor must refer, in marshalling the assets according to the directions of the act of 1789. If the estate were solvent, the plaintiff would be intitled to his costs ; . „ . , , , j but in the case of an insolvent estate, where an executor is sued, and pleads outstanding debts of a superior, or equal grade, in which case the creditor comes in pro rata, to allow the creditor, who sues, to add his costs to his demand, would be to permit him to diminish the fund out of which the other creditors were to be paid, without any fault on their part; for neither they nor the executor could prevent the creditor from suing. As to the bonds, which weré not due, they are as much debts of the testator as if they had been due. A bond payable at a future day is a debt; it is debitum in presentí, though solvendum in futuro. It is ordered that the decree of the Ordinary be so reformed as to disallow the claim for costs.

Decree reformed.  