Page:Harvard Law Review Volume 5.djvu/130

114 114 HARVARD LAW REVIEW. far as the judgment is a lien upon the debtor's land; 1 but the moment the debtor dies, his judgment creditors are entitled, at common law, to be paid out of his personal estate in priority to other creditors; and the reason is that, when a debtor dies the common law ranks his creditors according to the nature of their debts, debts created by matter of record being the highest, and simple contract debts being the lowest. Judgment creditors, there- fore, of a deceased debtor have a priority, not because they have obtained judgments for their debts, but because their debts are debts of record. The ranking of the creditors of a deceased debtor depends, however, entirely upon the nature of their debts at the moment of their debtor's death. Indeed, their nature cannot afterwards be changed without a destruction of them ; and if, therefore, the executor of a deceased debtor converts a debt due by the latter into* a debt of a higher nature, he thereby destroys it, and the new debt becomes his own. How is it, then, that a judgment against an executor always gives the creditor a priority? The answer has just been suggested, namely, the judgment binds the executor personally. Moreover, an executor cannot prevent the recovery of a judgment against him, if he has sufficient assets to pay the debt, after paying debts of a higher nature; and, as the law compels him to pay a judg- ment so recovered, even if he pays it out of his own pocket, of course it must protect him, to that extent, against the claim of any other creditor, the existence of whose debt would not have pre- vented the recovery of the judgment, i.e., against the claim of every other creditor whose debt, before the recovery of the judg- ment, was not of a higher nature than that of the judgment creditor. It is true that, in form, a judgment against an executor is commonly, in the first instance, de bonis testatoris, — not de bonis pro pr Us ; but, as every judgment against an executor de bonis testatoris is conclusive proof that the executor has sufficient goods of the testator to satisfy the judgment, the judgment is in effect de bonis propriis? 1 If an execution is issued on the judgment, the creditor may also acquire a lien on personal property of the debtor, but not otherwise. See Finch v. Winchelsea, 3 P. Wms. 399, note. See also 1 Archbold's Practice (13th ed.), 522. 2 What is said in the text suggests another important distinction between judgments against an executor and judgments against his testator, namely, that the former have priority according to their respective dates, while the latter all stand upon the same footing.