John McLean

“ That an administrator or executor may retain the amount of his debt out of the assets in his hands, is a principle which grew out of the necessity of the case. If such a right did not exist, the executor or administrator would be, in many cases, without remedy. ”

“ It is a right which he may postpone, if in doing so he does no injury to the estate; and such a question can only be made by the devisees or their heirs. If he shall pay debts, not on interest, and permit his own to run on interest, it may become a question whether he be entitled to interest. But his right to pay himself, so long as assets shall remain in his hands, is clear.
The moneys arising from the sale of the Mansfield estate were applied in payment of debts under the orders of the court of chancery. ”

“ But this right of retainer must be exercised under certain restrictions. The executor or administrator cannot discharge his own debt in preference to others of superior dignity; though he may give the preference to his own over others of equal degree. In some of the states, this rule would not apply, as there is no difference made in the payment of debts between a bond and simple contract. ”

“ Holt, chief justice, in the same case said, 'If the obligor make the obligee, or the executor of the obligee, his executor, this alone is no extinguishment, though there be the same hand to receive and pay; but if the executor has assets of the obligor, it is an extinguishment, because then it is within the rule that the person who is to receive the money is the person who ought to pay it; but if he has no assets, then he is not the person that ought to pay, though he is the person that is to receive it ”

“ This point is urged with earnestness and ability by the defendant's counsel, and a number of authorities are referred to in support of it. Toller's Law of Executors, 295; 1 Com. Dig. 476; 3 Bac. 10; 3 Bl. Com. 18 ”

“ Several authorities are cited under this head. 4 Cranch, 326. 7 Wheaton, 13. 6 Charch, 28. 9 Wheaton, 730. 1 Washington, 128.
In a case where the right of applying payments existed and was exercised by either a debtor or creditor, and notice given, no change can be made in the credit, except by the consent of both parties. ”