500 WATKINS v. DOESETT.—1 BLAND.

BLAND, C., 30th July, 1828.—This case (standing ready for hear-
ing, the solicitors of the parties were fully heard and the proceed-
ings read and considered.

The object of this bill is not to repel a claim made by the exe-
cutor of Walter Clagett against these plaintiffs: but to restrain
the defendant, as administrator fie bonis non of Samuel W. Clagett,
from officiously making sale of that which had been the property
of his testator, (but which had, long since, been legally delivered
over to these plaintiffs to whom it had been bequeathed,) for the
purpose of paying the claim, which Walter, by reason of his over-
payment, as is alleged, had against the estate of his testator
Samuel.

An executor who overpays is allowed, for such amount, to take
the place of the creditor whose claim he has thus paid beyond the
assets of his testator. He is, by substitution, regarded as one
of the creditors of his testator: but such executor must establish
the claim so overpaid against the heir or devisee by the same kind
of testimony which might have been required of the original
532 * creditor himself. Robinson v. Tonge. 3 P. Wills. 400; Gist
v. Cockey, 1 H. & J. 139. (d) Had Walter Clagett, who thus be-
came a creditor of Samuel W. Clagett, made this claim: the cir-
cumstance of his having delivered up the surplus, and the great
length of time which had elapsed, from the delivery on the 9th of
April, 1819, until the institution of this suit, without accounting
for the unqualified manner of the delivery, and the delay, would
have been considered as a complete bar. But in this case, the
Statute of Limitations, as such, cannot properly be applied: be-

(d) Ex PARTE STKEET.—This petition was filed by John Street on the 3d of
April, 1806, under the Act of 1785, ch. 73, s. 4, stating, that John Cook de-
ceased had devised his land to be sold for the payment of his debts without
authorizing any one to make the sale; that the personal estate of Cook had
been exhausted; and that the petitioner, as his executor, had paid debts to a
much greater amount than the assets which came to his hands. The real
estate was accordingly decreed to be sold. After which the case having
been brought before the Court for further directions, as to the distribution
of the proceeds of sale among the creditors:

KILTY, C., 17th June, 1809.—The rule as stated by the auditor, of giving a
priority to claims against the deceased to those which arise to the executor
from an overpayment of the personal estate, was established by the late
Chancellor. It has been departed from since, in cases where such overpay-
ment was made on account of a judgment or other lien; even so far as to
put the executor in the place of such creditor to the extent of his lien. In
the present case the overpayment does not appear to have been made ex-
pressly on account of any such judgment; but inasmuch as there were
claims on judgments paid by the executor exceeding the amount of the
overpayment, and the other claims now exhibited are not entitled to any
preference, it is thought proper to let the executor's claim come in equally
with others.