¶1 (dissenting). The question presented upon this appeal relates to the construction to be placed upon the provisions of section 13, 2 R. S. 84, which is as follows: “ The naming of any person executor in a will shall not operate as a discharge or bequest of any just claim which the testator had against such executor, but such claim shall be included among the credits and effects of the deceased in the inventory, and such executor shall be liable for the serme as for so much money in his hands at the time' such debt or demand becomes due, and he shall apply and distribute the same in the payment of debts and legacies, and among the next of kin, as part of the personal estate of the deceased.”
¶2 Prior to the enactment of the statute cited, and at common law, if a creditor appointed his debtor an executor of his will, it operated as a release or a bequest of the debt, unless the debtor renounced his executorship. (Soverhill v. Suydam, 59 N. Y. 140; 2 T. & 0. 460, 465.) It is said by Rapadlo, J., in the ease cited in the opinion delivered in the Court of Appeals, that “ the statute was intended to, and did abolish this rule, and that it was enacted in order to obviate the incongruity of requiring the executor to proceed against himself for the collection of the debt.” This is also obvious from the note of the Revisers to the section cited. (3 R. S. [2d ed.] 640.)
¶3 Such being the purpose of the statute, it is not apparent how it can be extended by construction so as to charge an executor absolutely with the debt, under all circumstances, whether the demand be good or bad, whether the executor be solvent or insolvent, or whether he has or has not a defense to the claim and it is just and proper, or otherwise.
¶4 If the object was as stated in the opinion of the learned judge in the case cited, then the debt manifestly occupies the same position as any other demand in favor of the estate, and the executor is subject to the same rule as is applicable to him in regard to other claims against debtors. If it was not. *7 collectible, the executor is exonerated, and the statute meant merely to hold the executor as liable for the debt as moneys in his hands when he was personally able and had means to pay the same. The object of the enactment is an important element in its interpretation, and that being determined by the case cited, and any construction beyond that being too far reaching and not consistent with that object, we are of the opinion that the authority is directly in point and should be decisive upon the question considered.
¶5 This construction is also supported by reading the statute cited in connection with other provisions relating to and defining "the duties and obligations of executors. In the case of other assets coming to the hands of the executor, if they are good they should be collected, and he would be responsible for due diligence in enforcing payment thereof, and it would be open for him to prove upon an accountiug that they were without value during the period that he was entrusted with the estate. Various provisions of the statute sustain this view. Section 69 (3 ft. S. [6th ed.] 100), which relates to accountings, provides that allowances shall be made to executors and administrators for property “ perished or lost ” without their fault. Ho exception is made so that it shall not apply to an executor’s debt, and to hold it is inapplicable to any debt that is lost without fault is to restrict its construction, which could not have been intended.
¶6 The demand here was of no value and was lost without any fault of the executor. Section 70 (3 R. S. [6th ed.] 101) declares that neither executors nor administrators “ shall sustain any loss by decrease without their fault, of any part of the estate, but they shall … be allowed for such decrease upon the settlement of their accounts.” Ho proviso is made that this section is not to apply to a debt against an executor. The construction claimed is also in conflict with section 14 (3 R. S. (6th ed.) 733), which declares that in actions against executors in which the inventory shall be given in evidence, the plaintiff or defendant may rebut the same by proof “ that such property has perished or been lost.” And the next see *8 tion, fifteen, provides that in such action “ the defendant shall not be charged for any demands or rights of action specified in their inventory, unless it appears that such demands or rights of action have been collected, or might have been collected with due diligence.”
¶7 The statutes referred to were passed mostly at the same time, and to establish a system applicable to estates and the accounting and acts of executors and administrators, and they must all be swept away and rendered of no avail if section 14 is susceptible of the construction claimed by the appellant’s counsel. The greater or more extended provisions must yield to a single enactment, instead of that being construed in conformity with the general purposes of the law and the evident intention of the law makers.
¶8 The statute in question was the subject of judicial interpretation in the Supreme Court, and in Everts v. Everts (62 Barb. 577) it was held that it did not apply to all claims against an executor, but to any just claim. It is said in the opinion of the court by Mullin, J., “ The executor is prima facie chargeable, but it is competent for him to show the claim unfounded and unjust.” It proceeds then to say: “It is not every claim which the testator had against the person named as executor, that becomes ‘ assets ; ’ but it is any ‘just claim.’’ … * The validity or justice of the claim must, when denied, be, in some way, determined, … . * and it must be tried in the surrogate’s court, in the same way, and for the same reason, that claims against the estate in favor of the executor, must be tried in that court.”
¶9 The same doctrine is held by the General Term in the third department of the Supreme Court in Brownell v. Akin (6 Hun, 378). In that case it was decided that when the defendant was appointed, and had qualified as an executor, and was indebted to the estate at the time, that in an action brought to recover the same, a writ of ne exeat could not be issued.
¶10 In Adair v. Brimmer (74 N. Y. 539), relied upon by the appellant, one of the executors had received the amount of his legacy without paying his debt, and also much more of the *9 estate which he had squandered, and afterward became insolvent. The principal question was whether the conduct of the co-executor in permitting him to receive and squander the estate, was of such a character as to charge him with the loss thus occasioned, and whether in the joint accounts the debts of some of them should be credited as uncollectible, and it was held that funds advanced to one executor in excess of the share to which he is entitled as legatee, if made by and with the consent of the others, must be deemed assets remaining in the hands of all the executors, and they were severally and jointly accountable therefor as such.”
¶11 It will be seen that the distinct question now presented did not arise. Norms it presented in any of the other cases cited from this State. We have examined the Massachusetts cases, and while it is held that the common-law rule as to the discharge of executors from liability for their own debts did not prevail in that State, there was no statute on the subject, and the decisions are not applicable to the case now considered. In the case of Norris v. Towle (54 N. H. 290), the administrator became insolvent after his appointment, and afterward took the benefit of the Bankrupt Act, and his estate did not pay fifty per cent of his debts. It was held that under the statute of that State, which provides that a debt due from the administrator to the estate should be assets and accounted for as other debts, and he was bound to account for the whole debt, and it made no difference whether he was solvent or insolvent at the time he was appointed administrator. The facts differ from the case at bar, and the statute is not the same as the one now under consideration. Nor is it apparent whether the statute in New Hampshire is affected by other statutes bearing upon the subject, as in the case here. Some other authorities are cited, but none of them present the precise question as to the solvency of the executor or administrator.
¶12 The weight of authority in thiá State is clearly adverse to the appellant’s claim. In principle no reason exists why an executor should be held to any other or different obligation in regard to a debt due from him, than he should in regard to *10 any other assets which may come into his hands. Mo stricter rule should he imposed in his own case than in any other. Primarily, it is presumed that his debts are paid to the estate, and that he has the money to distribute. But this, as in the case of any other demand, is open to inquiry and investigation; and he has a right to show that he was, and is insolvent and unable to meet the obligation. The statute was not intended to embrace a case where the debt was worthless, and there was an utter inability to pay the same. Any other or different construction would place an insolvent executor in a most unfortunate position. The debt he owed, which was of an ordinary character, would be converted into one for which he would be liable to arrest and imprisonment, and by virtue of the statute, he would become an embezzler of moneys which he had never collected or received as executor, and which he would have been unable by any diligence, effort or means within his power to obtain. While guilty of no wrong, he would still be liable to be punished and treated as a wrong-doer and a criminal. The legislature could not thus have intended to add to the cases of imprisonment and for punishing the debtor, when its entire policy has been in an adverse direction and to restrict, and not to increase, eases where punishment should' follow inability to meet pecuniary engagements. Such a policy would be contrary to its uniform course and the spirit of the age.
¶13 It is suggested that the criminal intent would be wanting to convict of embezzlement. The statute in question declares that the executor shall be Hable “ as for so much money in his hands.” He has themoneyaccordingtothestatute, andif he does not pay it, and hi law appropriates it to his own use, he thus brings himself directly within chapter 208 of the Laws of 1877. It is also said that he should decline to serve and thus escape liabihty. The answer is that there is no statute which disqualifies him or prohibits his serving. He may be a good and safe executor, as he appears tb have been here, although he has no pecuniary means. And if objected to on the ground of in~ solvency, he may be required to give security. In the latter contingency his bondsmen would be Hable, and thus compelled *11 to pay for a deficiency which did not exist and had no reality. Nor would it be a defense that he never had the money in his hands, for the statute says that he did have it, and the surrogate must decree accordingly if he strictly follows the statute. Clearly the statute never could have been intended to convert a worthless debt into a demand, the payment of which might be enforced by imprisonment, and by making sureties liable, who never intended or expected to assume any such obligation, and who were not understood to assume it at the time they became sureties.
¶14 The general principle may also be invoked in support of the views which we have expressed that a trustee in the discharge of his duty should not be held responsible for money that he receives, except in case of negligence and a failure to discharge such duty. In regard to the right of the appellant to prosecute the claim against the executor, we think that in case the executor becomes able to pay the debt a further accounting may be had, and that the decree is not conclusive. (3 R. S. [6th ed.] § 79, p. 102.) Nor does it interfere with an equitable action to enforce payment of the demand. As the executor acted as trustee, it is not entirely apparent how he could avail himself of the statute of limitations as a bar to any future accounting.
¶15 The judgment of the General Term should be affirmed.
¶16 All concur for reversal except Miller and Finch, JJ., dissenting.
¶17 Judgment reversed.