At the time of his death George Stover held a note against James Barr for $4,561.91 and he named Barr and the other two respondents executors of his will. The executors filed with the surrogate an inventory of the estate of the deceased in which the note against Barr was entered as follows: "Note of James Barr, dated April 1st, 1874, for $4,561.91, balance due at this date $3,753.11, which note we consider very doubtful of collection of any part." At the time of the death of the testator, Barr was utterly insolvent and he has ever since remained so, and has been unable to pay any part of the balance due from him upon the note. Upon the accounting before the surrogate the creditors claimed that Barr should account for the balance due upon the note as so much money in his hands under the following provision of the Revised Statutes (2 R.S. 84, § 13): "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, *Page 4 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 same 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." The surrogate held that Barr was not liable to account for this balance as so much money in his hands and his decision was affirmed by the General Term.
We are of opinion that the courts below errred. Before the Revised Statutes the general rule at common law was that the appointment by a creditor of his debtor as his executor extinguished the debt, so that the executor was in no way bound to account for the same as assets. The provision of the Revised Statutes which we have quoted was intended to abrogate this common law rule and introduce a new system in reference to such debts. It was the obvious purpose of the statute not only to save the executor's debt from extinguishment, but, in order to obviate all difficulty, doubt and embarrassment, to cause it to be regarded as money in his hands. Such is the plain reading of the statute. The language is free from doubt and ambiguity, and needs no construction or interpretation. If it had been intended simply that the debt should be placed upon the footing of any other debt due the deceased and merely to save it, for what it was worth, from extinguishment the section could have stopped at the word "inventory," and the balance thereof would have been without any purpose or meaning. But it goes further; it not only provides that the debt shall not be discharged and shall be included in the inventory, but it also provides that the debtor executor shall be liable for the debt as for so much money; and not only that, but that he shall apply and distribute the money in the payment of debts and legacies and among the next of kin. We perceive no room for doubt; the statute says the debt shall be treated as money, and the courts have no right to say it shall not be so treated. This construction will not necessarily involve an insolvent executor in hardship and embarrassment. If a debtor unable to pay his *Page 5 debt is named executor he may decline to accept the office. While the debt must be treated as money in his hands for the purpose of administration it will not for all purposes stand on the same footing as if he had actually received so much money. If wholly unable to pay the money in pursuance of the order or decree of the surrogate on account of his insolvency, he cannot be attached and punished for contempt as he could be if the money had actually been received from some other debtor. It is also clear that an executor unable to pay his own debt, and thus unable to comply with the decree of the surrogate charging him with it as so much money in his hands, would not be guilty of embezzling the money and could not be convicted of crime as he could be if he embezzled money or property which actually came into his hands. There would be the absence of all criminal intent and actual wrong-doing without which the crime could not be committed.
It would be well for a surrogate in a decree which charges an executor with a debt as so much money under the provision of law above quoted, to specify the charge thus made separately so as to save all the rights of the executor and to protect him against consequences which perhaps ought not to follow from such a charge; and this can now be accomplished under section 2545 of the Code of Civil Procedure, which provides that the surrogate must file in his office his decision, upon any case tried before him, in writing, stating separately the facts found and the conclusions of law.
It was stated upon the argument of this case that this executor had been required to give security for the performance of his duties. Whether his sureties could be held for this debt as so much money actually received by him we are not now called upon to determine, and do not determine.
We are, therefore, of the opinion that the surrogate should have charged Barr with the balance due upon his debt and the interest thereon as so much money in his hands, and should have ordered him to apply and distribute the same as so much money.
The judgment of the General Term and the decree of the surrogate should be reversed and the case should be remitted *Page 6 to the surrogate, and the appellant should recover her costs out of the estate.