majority">Dorsey, C. J.,

delivered the opinion of this court.

To the bill of revivor filed in this case, the appellant hath set up in his answer, three distinct defences. The first is, that he “avers that his said testator informed him within a short time before his death, that he had made a settlement of the above-mentioned case, and had fully and finally closed the same, by agreeing to take to himself a certain proportion of the proceeds of sale.” As this statement of a settlement is not responsive to any of Ihe allegations contained in the bill of revivor, and is utterly irreconcilable to the whole tenor of the proceedings in the Court of Chancery, in the life-time of the appellant’s testator, we are at a loss to discover how such a communication made by the testator to the appellant, could in *440any case, much less in this, interpose the slightest obstacle to the relief sought against the appellant.

The second defence relied on in the appellant’s answer, is the plea of limitations, grounded on the lapse of time inter-vening between the abatement of the suit by the testator’s death, and the filing of the bill of revivor. Without inquiring, whether, under any ordinary circumstances, such a lapse of time would present an absolute bar to the revival of the suit,- or recovery of the claim of the appellees; we are of opinion, that the statements in the bill of revivor, in relation to the loss of the original papers in Chancery, sufficiently account for the delay attending the filing of the bill, and that to deny to the appellees, under the circumstances of this case, their right of reviving their suit, and recovering their claim on the ground of the lapse of time complained of, would be unjust and inequitable, and therefore should not be sanctioned by a court of equity, even conceding such a defence were there otherwise available.

The third defence is plena administravit, by the executor, the appellant. In support of this plea, the appellant hath produced, a variety of testimony, and all his administration accounts settled with the Orphans court, by which his letters testamentary were granted. If the executor had done all that the law requires, as a protection to him in the payment of debts and legacies ; and the payments for which allowances have been made to him by the Orphans court, had been made in the due and regular administration of the assets of his testator, and without the appellees having communicated to him their claim in the mode prescribed by law, he might, with some degree of confidence, have relied on his plea of plena administravit. But unfortunately for him, he stands in no.such attitude. It no where appears in the record before us, that he gave the notice to creditors to exhibit their claims, as required of him by the 13th sec. of the 8th sub-chapter of the act of 1798, ch. 101,—and consequently, is entitled to none of the protection otherwise extended to him by the 15th sec- of the same sub-chapter of the same act of Assembly. But suppose it.were conceded that the executor *441had given to the creditors of the testator the requisite notice to exhibit their claims, is he then entitled to the exemption from liability for the claim of the appellees, of which he seeks to avail himself by his plea of plene administravit? We think not. The executor has not, in the due course of his administration, made all the payments to legatees, for which he has been allowed by the Orphans court, before he acquired a knowledge of the claim of the appellees. But, on the contrary, several of such payments, far exceeding in amount the subject of the present controversy, were made by him after the subpoena issued on the filing of the bill of revivor, had been served upon him: and it is apparent upon the face of the last of the appellant’s accounts passed by the Orphans court, that such payments were made by the appellant out of assets which came to his hands, after service of process to compel his appearance to the bill of revivor, filed against him by the appellees.

But it is insisted, that these payments of the four legacies of $5,000 each, must, notwithstanding, have priority over the claim now before us, because the appellant and his co-residuary legatee, more than four months before those legacies were payable, under the testator’s will, by an instrument of writing, under their hands and seals, had bound themselves for the payment, semiannually, of interest on the legacies, from the time they became due until paid; “ the principal of said legacies to be paid by the executor, in due course of administration, out of the funds coming into his hands, whereon said legacies are chargeable.” That these co-residuary devisees lost nothing by such an agreement, is manifest; because, in the absence of any such agreement, interest on the legacies from the time they became payable, must have been paid out of the residuum of the testator’s estate bequeathed to his two residuary devisees. That said residuum was of value, is apparent from the executor’s last account, in which he obtains a credit for $3,000, as paid in full for his brother, Richard S. Sleuurl’s share of the residue of the testator’s estate, meaning of necessity, after payment of all debts and legacies. That this agreement was entered into *442■ by the residuary legatees for their own benefit, nobody can doubt who reads the record now before us.

. What possible influence this agreement can have upon this • case, we are unable to comprehend. It is not intimated that any conflict has arisen or can arise between the appellees, who prefer the present claim and the residuary legatees for interest paid- by them under the agreement.

For the payment of the four legacies in question, the only ' responsibility assumed under the agreement by the executor and his co-residuary legatee, was that “ the principal of said legacies to be paid by the executor in due course of administration, out of the funds coming into his hands, whereon said legacies are chargeable.” Against this stipulation, the appellees have sought nothing; they are perfectly content that the assets in the hands of the executor, should have been applied accordingly. Of the claim of the appellees, the executor was fully notified before the payment of those legacies, and before his receipt of the assets, wherewith the legacies were paid. What then was the executor’s duty ? What “ the due course of administration” of the funds thus coming to his hands? Certainly, to pay the debts first, and then apply the balance in his hands to the payment of legacies. But this, the natural order of things, the appellant seeks to pervert, and to give to legatees that priority of payment always heretofore conceded to creditors. For such an innovation, no authority has been attempted to be referred to, and it is believed that none can be found. In determining on the validity of the plea of plena aclministranit, the existence of the creditor’s debt is admitted.

But suppose we are wrong, (which appears to us impossible,) in the construction we have given to this agreement, and that in express terms, it personally bound the appellant and his coobligor for the payment of the aforesaid legacies, it would not, in the slightest degree, change the opinion we have expressed. Whilst an executor, acting in the faithful discharge of his duties, and in the due course of administration of the assets of the deceased, will have extended to him every favor and protection *443whidi it is in the power of a Court of Chancery consistent with equity and justice to confer; yet, when an executor, departing from the line of his duty, enters into a contract by which, whether for his own benefit, or the benefit of him with whom he contracts, it matters not which, he binds himself personally for the payment of a debt or legacy, which with the assets then in his hands, and in a due course of administration, he was not then in a condition to pay, he must take the consequences of his own gratuitous act, and abide the result.: all he can ask or expect at the hands of a court of equity, is that he may be permitted to assert the rights of the creditor or legatee with whom he contracted, in the same manner as if such contract had never been entered into. To impair, destroy, or change the rights or priorities of other creditors or legatees, arising under a due course of administration of the assets of the testator, such a contract cannot have the slightest operation, or with the consequences imputed to it, be countenanced for a moment by a court, either of law or equity. The unjust and fraudulent consequences that would probably result from the toleration of such a power in the hands of an executor, are so obvious to the mind of every lawyer, that to give examples or illustrations of the manner in which they might be produced, would be a useless waste of time.

As another and independent bar to the appellee’s right to recover, the appellant relies upon the 2d section of the act of 1823, ch. 131, by which it is enacted, “ that in all cases where a claim or claims against a deceased person’s estate, shall be known to the executor or administrator of such estate, and such claimant or claimants shall delay, neglect, or refuse to bring in his, her or their claim or claims legally authenticated, after notice given as directed in the thirteenth section of the eighth chapter of the act to which this is an additional supplement., and within the time limited in such notice, such claimant or claimants shall be in the same situation to all intents and purposes with regard to his, her or their claims, as those whose claims are unknown to the executor or administrator, any thing *444contained in the original act, to which this is an additional supplement, to the contrary notwithstanding.”

The only answer that need be given to this new ground of defence, is that this section of the act of Assembly, never was designed to apply, and by the judicial tribunals of the State never has been held as applying to cases where the notice to the executor or administrator has been given through the medium of a lis pendens or been in due time followed by it. Numerous cases must arise and have arisen where the authentication of claims in the particular mode prescribed by the acts of Assembly vras impracticable, and for the recovery of which, resort to a court of justice was the only alternative left to the creditor for the recovery of his claim. If the act of 1823, is to receive the literal construction now contended for, it would be in the power of the executor or administrator, on almost every estate to prevent any judgment or decree being rendered against them, by making a final distribution of the estate pending the litigation. And a creditor might be, in like manner, defeated, if pending a suit in Chancery against the executor or administrator in whose exclusive knowledge rested the existence and justice of the claim, a final distribution of the deceased estate were made, although at the time of the distribution, the executor or administrator well knew that nothing was wanting but the filing his own answer in Chancery, (which in a few days he must he compelled to file,) conclusively to establish the creditor’s claim. A construction fraught with such inconsistency and injustice is never to be imposed upon an act of the legislature, if it be susceptible of any other just and rational interpretation.

The decree of the Chancellor appealed from in this case, is hereby affirmed with costs; and the cause is remanded to the Court of Chancery, that such further proceedings may be had in relation thereto, as shall be necessary to secure to the said appellees the full benefit of the said decree and the affirmance thereof by this court.

DECREE AFFIRMED AND CAUSE REMANDED.

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