Champlin, J.
The bill of complaint was filed April 27, 1887, to quiet title to real estate situated in the city of Detroit. The case was heard upon pleadings and proofs, and a decree rendered in favor of complainant, from which -defendant appeals.
The b.ll alleges and the answer admits that one Olney Cook, in his life-time, and at the time of his death, was the owner in fee of the land; that Cook died August 13, 1876, leaving a last will, by which he disposed of his property in the following language:
“ After all of my lawful debts are paid and discharged, the residue of all my estate, both real and personal, I give, devise, and bequeath to my beloved wife, Asenath Cook, and her heirs, forever.”
He appointed his wife executrix. This was in 1864.
In 1875 he added a codicil, the sole purpose of which was to appoint Boyal C. Remick executor of his will jointly with his wife.
This will was admitted to probate on September 4, 1876, and administration was granted to Asenath Cook and Royal C. Remick, executors, and it was ordered—
[38]*38“ That upon their giving a bond in the penal sum of $10,000, with sufficient sureties, and the same being duly approved, letters testamentary do issue to them.”
Royal O. Remick. declined in writing to act as executor,, and thereupon, on the second day of October, 1876, Asenath Cook filed in the probate court a bond, with Royal O. Remick as surety, in the penal sum of $1,000, reciting that she had been appointed sole executrix of the will, and conditioned that she should pay al) the debts and legacies of the testator,, and perform all orders and decrees of the probate court by her to be performed in the premises. This bond was approved by Albert H. Wilkinson, judge of probate, on the second day of October; 1876, and ordered filed, and thereupon letters of administration with the will annexed were issued to Asenath Cook.
The approval of the bond was entirely ex parte, and without notice of any kind to defendant as a creditor of Olney Cook, and was not based upon any preliminary order other than that of September 4, 1876, requiring a bond in the penal sum of $10,000 with sufficient sureties.
On June 12, 1877, defendant filed a petition in the probate court, setting forth that it was a creditor of Olney Cook to the amount of nearly $15,000; that the bond of Asenath Oook was insufficient; and praying that she be required to file a new bond. On the ninth day of July, 1877, the petition was granted, and she was required by the probate court to file a new bond in the penal sum of $20,000, within ten days thereafter, which she did not do, and was removed from the office of executrix on July 21, 1877.
The time for the executrix to comply with the order of the court by filing a new bond expired on the nineteenth of July, 1877; and on the eighteenth day of July, 1877, she gave a warranty deed of the land described in the bill of complaint to S. Titus Parsons, reciting a consideration of [39]*39$1,000. This deed was recorded on the twenty-fifth day of October, 1877.
On November 15, 1877, S. Titus Parsons and wife executed and delivered á deed of the land to Martha Lafferty, reciting a consideration of $5,000. This deed was recorded on the seventeenth day of November, 1877. Complainant took possession of the real estate covered by her deed about January 1, 1878, and has ever since had sole possession of the same.
On the removal of Asenath Cook as executrix, Henry 1).. Barnard was appointed administrator do bonis non, and on the third of September, 1877, qualified as such, and letters of administration with the will annexed were issued to him. Commissioners on claims were appointed by the probate-court on September 10, 1877, who allowed a claim in favor of defendant for 813,931. Their report was filed on the- twenty-first of March, 1878, and affirmed.
July 2, 1879, the administrator petitioned for license to sell said real estate and other lands, which was granted on September 30, 1879. Such proceedings were had under said license that on the fifth day of March, 1880, the land in question was sold at administrator’s sale, and bid off by Fraqcis Palms, and the land conveyed to him. The report of sale was made to the probate court, April 5, 1880, and confirmed by the court on April 21, 1880.
The defendant is a corporation duly organized under the laws of Michigan, and on December 10, 1880, Francis Palms conveyed said land to it, and it now claims title through him. No steps h.ave ever been taken by defendant to test the validity of its title, either at law or in equity.
The oral testimony introduced upon the trial proved that the sale by Asenath Cook to S. Titus Parsons pending the requirement to file a new bond was for the purpose of preventing any of the property in suit from being applied in payment of the debt of the testator to defendant, and as to [40]*40defendant was fraudulent and void. The complainant exchanged property she owned in Malden, Ontario, for this property. Her husband acted as her agent in the transaction, and dealt with S. Titus Parsons, who was a lawyer and the adviser of Mrs. Cook in the scheme to defraud the creditors of Olney Cook. Complainant claims that personally she had nothing whatever to do with the trade. Neither she nor her husband has ever lived upon the property, but they have rented it to other parties. She claims to be a bona 'fide purchaser from Parsons.
The complainant claims—
1. That Mrs. Oook, being the residuary legatee named in the will of Olney Cook, and having filed a residuary legatee’s bond, which was approved by the judge of probate, became, by reason thereof, the absolute owner of all the real ánd personal estate of Olney Oook, with the right to deal with it and dispose of it in the same manner as any other property of which she was owner.
2. That such property is not in any way under the supervision, dictation, or management of the probate court, or any other court, as a trust fund, and she cannot be called upon to account for it, either in the probate court or in chancery, and that the only protection the creditors have is in the bond filed by her as residuary legatee.
Several decisions of this Court are cited in support of these propositions: Hatheway v. Weeks, 34 Mich. 237; McElroy v. Hatheway, 44 Id. 399 (6 N. W. Rep. 867); Durfee v. Abbott, 50 Id. 278, 479 (15 N. W. Rep. 454, 559).
In Hatheway v. Weeks the residuary legatee filed a bill in chancery to be relieved from liability on his residuary legatee’s bond, on the ground of mistake in suppoiing that the assets were far greater than they proved to be, and prayed that the estate might be remitted to the ordinary course of administration. This Court held that it would open the door to grave abuses to grant the relief prayed; that the residuary legatee was not obliged to give this bond; and by giving it he obtained very decided advantages, which he [41]*41could have acquired in no other way. He had ample time to investigate and determine whether he would give this bond or not. Until it was approved and accepted by the probate court, it was subject to his control. Having given it, he is bound by the condition “to pay all the debts and legacies of the testator.”
In the opinion in this case the distinction between the two courses of ad ministration is pointed out. The whole is summed up as follows:
“ The executor or administrator is a mere officer of the law; he has no personal interest in the property; his powers are all given him by law, and he is accountable for the due and proper execution of those powers; while the residuary legatee, upon giving the bond, becomes sole and absolute owner of the estate of the testator, both real,-personal, and mixed, with all the rights and remedies of an absolute owner, and subject to none of the conditions, restrictions, or account-abilities of an executor.”
In McElroy v. Hatheway, 44 Mich. 399 (6 N. W. Rep. 867), two opinions were written. The bill was filed by one of the sureties upon the residuary legatee’s bond, and its purpose was to transfer the whole remedial jurisdiction over the settlement of the estate from the court of probate to the court of chancery, and to compel, by the authority of the latter court, the executor and residuary legatee and the co-sureties to discover and trace from the death of the testator until the present time all parts of the estate, and through a receiver to enforce an absolute surrender by the executor and legatee of the whole assets to the court, in order that it may assume to conduct the administration to final settlement.
Mr. Justice Graves, after stating the purpose of the bill as above, said:
“No such bill can be maintained. The court has no jurisdiction to override the title of a residuary legatee in the way and on the grounds set forth, and the complainant has mistaken his remedy, if he has any. There may be cases, no [42]*42doubt, when the court, proceeding in accordance with its own maxims, and keeping within the limits given to it in this State, would find some way for relieving the surety by hastening the principal, and preventing him from using his opportunity to oppress and defraud his surety.”
Mr. Justice Cooley, in concurring in dismissing the bill, said that—
“ It was decided in Hatheway v. Weeks, 34 Mich. 237, that, when a residuary legatee had given bond to pay the debts’ and legacies of th'e testator, the property of the estate became his, and he was at liberty to deal with it as he might with any other property of which he was owner. The protection of creditors and legatees was in the bond, and their remedy to sue upon it with permission of the probate court, if payment was not made with reasonable diligence. * * * The only ground on which this can be distinguished from an ordinary case of suretyship is that here there is a specific fund received from the estate, which it became the duty of Hatheway to apply to the satisfaction of legacies, and which is charged with a trust to that end. But, this is wholly inconsistent with the views expressed in Hatheway v. Weeks, and with the position of the residuary legatee under the statute after he has given the bond which was given here. The property he receives does not stand apart from any he may otherwise own, and is not under the supervision, dictation, or management of the court of probate, or of any other court, as a trust fund. It is a part of the legatee’s general property, as much as any he has bought or produced by his labor. The other legatees are neither obliged to look to it for their satisfaction, nor can they follow it specifically, and prevent his doing with it whatever his interest may seem to dictate.”
Durfee v. Abbott, 50 Mich. 278 (15 N. W. Rep. 454), was an action of debt brought upon a residuary legatee’s bond to recover the amount of an alleged indebtedness of the testator to one Culver. The sole evidence of the indebtedness to Culver which was produced upon the trial consisted in an order of the judge of probate purporting to be an allowance of Culver’s claim at a sum specified. The sole question decided was that the supposed allowance of the claim by the judge of probate was ineffectual, and the judgment based [43]*43upon it was erroneous. The reasons why it was ineffectual were—
1. That no proper notice of the proceedings to allow the claim was given to the principal and sureties in the legatee’s-bond.
2. That, in cases where the residuary legatee has given the-statutory bond, the appointment of commissioners on claims-is not essential, unless it may be when a claim is‘asserted which the executor disputes; that the settlement of claims is-the personal affair of the executor and the claimants, to be-disposed of in their own way, and at their own pleasure.
Mr. Justice Cooley in his opinion says:
“ Even the sureties could question them [his acts] only in case attempt was made to charge them personally upon his default in making payment. The giving of such a bond substantially completes the administration.”
Durfee v. Abbott, 50 Mich. 479 (15 N. W. Rep. 559), was an action of debt upon a residuary legatee’s bond brought by two legatees. The sureties defended upon the ground that the legatees each took the individual note of the executor for the amount of their legacies, payable in two years; thus-extending the time of payment without consent of the sureties. In deciding the case Mr. Justice Campbell said:
“ The probate court has no power to extend the time for paying legacies when the residuary legatee gives bond to pay debts and legacies. Such a bond puts an end to the administration in its ordinary course, and the debts and legacies become personal charges against him.’ ’
Wheeler v. Hatheway, 54 Mich. 547 (20 N. W. Rep. 579), was scire facias upon a residuary legatee’s bond to enforce payment of a legacy. Both parties brought error. The defendant brought error for excluding testimony upon cross-examination. The plaintiff claimed error in not being allowed interest on the legacy from the date of filing the-residuary legatee’s bond. This Court held that the interest should commence one year from, that date, and it was said:
“ Such would undoubtedly be the time when the legacy [44]*44would be payable, if the estate had been closed in the ordinary course of administration. In this case, however, the executor gave a residuary legatee’s bond, which had the effect to close the administration of the estate from the approval and filing of the bond.”
I have stated the questions which were involved in the foregoing decisions of this Court, and some of the reasoning upon which they were founded, for the purpose of calling attention to the fact that the points presented by this record for our determination have not been passed upon in those cases; and I shall expect to show that some of the expressions used in deciding them, if taken in their broadest sense, disconnected from the points in controversy, cannot be applied to the solution of the questions before us.
Passing for the present the question made as to the regularity and validity of the appointment of Mrs.-Cook as executrix, I shall consider the questions presented by this record, as follows:
1. Does the filing of a residuary legatee’s bond destroy and render nugatory the provisions of the statute, and in this case the last will of the testator, charging his estate with the payment of all his debts?
2. Does the filing of a residuary legatee’s bond, and its approval by the judge of probate, close the administration proceedings absolutely, so that the probate court has no further jurisdiction over the executor and over the administration of the estate of the testator?
These questions involve the proper construction of the statutes relating to wills, and of those relating to the administration of the estates of deceased persons in the probate court.
Section 5785, How. Stat., authorizes every person of full .age and sound mind to dispose of his or her estate by last will and testament in writing, and says:
“And all such estate not disposed of by the will shall descend as the estate of an intestate, being chargeable in loth cases with the payment of all his debts.”
[45]*45Section 5813 provides that—
“ All the estate of the testator, real and personal, shall be liable to be disposed of for the payment of his debts and the expenses of administering his estate.”
Section 5814 provides:
“If the testate r shall make provision by his will, or designate the estate to be appropriated for the payment of his debts, * * * they shall be paid according to the provisions of the will,” etc.
Section 5816 provides that—
“ The*estate, real or personal, given by will to any devisees or legatees, shall be held liable to the payment of the debts,” etc.
These provisions of the statute are as certain and positive as language can express, that the debts of the testator must be first paid before legatees are entitled to receive the legacies given by the will; and such debts are made a charge upon the estate of the testator. In this case the intent of the testator is plain that his debts shall be paid before the legatee is entitled to anything. The language of the will is:
“After all of my lawful debts are paid and discharged, the residue of all my estate, both real and personal, I give, devise, and bequeath to my beloved wife, Asenath Cook, and her heirs, forever.”
The testator has excluded his residuary legatee from taking anything until there should be a residue after payment of the debts, and, the debts far exceeding the whole value of the estate, there was nothing for her to take as a residuary legatee. Lyne’s Estate, L. R. 8 Eq. 482.
It is well-settled law that where a testator gives direction to pay debts, followed by a gift of the residue of the real and personal estate, the intention is indicated that the debts are to be paid out of the testator’s real as well as personal estate, and they are charged upon such residue. Cole v. Turner, 4 Russ. 376; Greville v. Browne, 7 H. L. Cas. 689; [46]*46Wheeler v. Howell, 3 Kay & J. 198; Gyett v. Williams, 2 Johns. & H. 429; In re Bellis’ Trusts, L. R. 5 Ch v. 504; Bray v. Stevens, 12 Id. 162; In re Brooke, 3 Id. 630; Withers v. Kennedy, 2 Mylne & K. 607; Soames v. Robinson, 1 Id. 500; Shakels v. Richardson, 2 Colly. 31.
The statutes above quoted are founded upon equitable principles, and declare that all the testator’s property, real •and personal, shall be chargeable with the payment of all his debts. The whole estate is therefore legal assets, to be administered as the law prescribes; and it is no longer necessary to go into chancery to subject real estate to the payment ■of debts, or to secure equality of distribution among specialty and other creditors. By the force of the statute an equitable lien is created in favor of creditors of the testator, and they have the right to have this lien enforced upon proper occasion in the proper tribunal. The bond required to be given by an executor, whether it be the bond required by section 5835 or by section 5836 of Howell’s Statutes, infra, is not intended to destroy this equitable lien, but is an additional security to the creditors for the payment of their debts. The debts are made a charge upon the estate by •statute, and the bonds are required in the procedure for administering the estate by the executors to secure the faithful performance of the trust arising from the appointment to and acceptance of the office.
Section 5835, How. Stat., enacts :
“Every executor, before he shall enter upon the execution of his trust, and before letters testamentary shall issue, shall give bond to the judge of probate in such reasonable sum as he may direct, with one or more sufficient sureties, with conditions as follows:
“ 1. To make and return to the probate court, within three months, a true and perfect inventory of all tbe goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him.
“ 2. To administer, according to law and to the will of the [47]*47testator, all his goods, chattels, rights, credits, and estate which shall at any time come to his possession, or to the possession of any other person for him, and out of the same to pay and discharge all debts, legacies, and charges chargeable on the same, or such dividends thereon as shall be ordered and decreed by the probate court.
“ 3. To render a true and just account of his administration to the probate court within one year, and at any other time when required by such court.
“4. To perform all orders and decrees of the probate court by the executor to be performed in the premises.”
Section 5836, as amended by Act No. 169, Laws of 1887, reads as follows:
“ If, however, the executor named in any last will and testament, or the administrator with the will annexed of any estate duly appointed, shall be residuary legatee, instead of the bond prescribed in the preceding section, he may give a bond in such sum and with such sureties as the court shall direct, with a condition only to pay all the debts and legacies •of the testator, and in such case he shall not be required to return an inventory.”
There is nothing in this section which modifies the foregoing sections, charging the property in the hands of the executor with the payment of the debts. That remains the same, whether the executor qualifies under section 5835 or 5836. The effect of the section is to place the assets of the testator in possession and control of the residuary legatee who has filed a bond to pay the debts and legacies, with the right of disposition so long as he remains executor. His title to the property, however, is derived from the will of the testator, and is held Eubjeet to the payment of the debts of the testator. The statute confers no absolute title upon him discharged of the claims of creditors, but by filing the residuary legatee’s bond and the grant of letters testamentary to him he becomes invested with the right to take possession of the assets of the testator for the purpose of paying the debts, and may convert the real estate into money to enable him to pay the debts, without being obliged to apply for leave to [48]*48sell to the probate court, as otherwise he would be required to do. His title and right to the possession are qualified, ánd subject to be defeated by a removal from office, in which case the property of the testator undisposed of would revert to the estate, and become vested in the administrator de bonis non.
The main difference between the administration of the estate by an executor who is a residuary legatee, giving bond for the payment of debts, and the executor giving the other bond required by statute, is that in the former case no inventory is required, and sales of both real and personal property can be made without application to the probate court for leave to sell. In the former case the executor is less under the supervision of the probate court than the latter, but in both cases the duty to pay the debts of the testator remains, and is attached to the office of executor, and the performance of this duty can be enforced in a proper way, — by the probate court, where he has power to enforce obedience to his orders and decrees; by the court of chancery, where the jurisdiction of the probate court is incomplete or insufficient.
The condition of the bond to pay the debts, given by an executor who is a residuary legatee, differs from the bond given by any other executor only in this: In one case he agrees to pay the debts unconditionally, whether there are sufficient assets or not; and in the other he agrees to pay the debts out of the assets; and, if there are sufficient assets for that purpose, there is no difference in the quality or extent of their obligations. In exempting the executor from the duty otherwise imposed, of returning an inventory, the statute did not intend to place the executor beyond the pale of responsibility in case he should violate his duties as executor, or neglect to perform them.
It has been said that the effect of the statute wa3 to vest the absolute title to all the assets in the legatee, and that [49]*49they became and are his personal and individual property as fully as any other property which he owns; that creditors have no claims upon it whatever, and he cannot be called upon in any court or in any case to render an account of his offieial.acts as executor; that the administration is closed; and that the creditors’ sole remedy is upon the bond.
It appears to me, however, that these positions cannot be sustained by reason or upon authority. There is nothing in the statute which declares that he shall become the absolute owner of the assets, and that such assets, on the filing and approval of the bond, become his individual property. On the contrary, the statute declares that all of the estate in the hands of the executor shall stand charged with the payment of all the testator’s debts. His office of executor is not terminated on the filing and approval of the bond to pay the debts and legacies. On the contrary, that is the condition precedent to his right to receive letters testamentary, which is his authority to act at all in the administration of the estate. He cannot be sued personally for a debt due from the testator, but only officially, as executor. How. Stat. §§ 5902, 5929, 5946, 5947; Jenkins v. Wood, 140 Mass. 67 (2 N. E. Rep. 780). And if commissioners on claims are appointed, no action can be brought against him, except in a few specified cases, until the time limited for payment of debts hás expired. And his individual property cannot be taken in execution upon a judgment against him as executor, at least until after the time for the payment of debts has expired. How. Stat. § 5929; Farr v. Newman, 4 Term R. 621; Peckham v. Berrien Circuit Judge, 74 Mich. -- (41 N. W. Rep. 926).
His office, therefore, continues, and he may be removed for failing to file a new bond by the probate court, or failure to comply with any lawful order or decree of that court. How. Stat. §§ 5842, 5858, 6005, 6008. If-he cannot be called upon to make any report to the probate court, and if the administration of the estate is closed by giving a bond to pay [50]*50•debts and legacies, then the probate court has no further jurisdiction over him or the estate. If the bond is the. only remedy of the creditors, and the probate court has no further jurisdiction over him or the estate, he may resign or remove from the jurisdiction immediately after his appointment, and the probate court would have no authority to appoint a successor. What object could possibly be accomplished by appointing an administrator de bonis non? The Title to the property, according to this theory, has passed to ■the legatee, and become as absolutely his own as any other .property which he has procured by his labor or money, and hence cannot be brought back into the body of the estate, and there is absolutely nothing for an administrator de bonis non to administer.
The residuary legatee may foist upon the judge of probate ■a bond with an insufficient penalty, or with irresponsible sureties. He may neglect to file a new or sufficient bond, if required, and in the very face of the creditors and of the court he may transfer the property with the fraudulent intent to cheat the creditors, and place the property of the testator beyond their reach, with the avowed purpose of not paying the debts, and point the creditors to the worthless bond as their only remedy. A construction of a statute that leads to such injurious consequences and fraudulent results should be avoided, if possible; the more so as it is not by the letter of the law, but by construction alone, that such results are reached.
Such construction of section 5836 abrogates effectually the statutes relative to the administration of the estates of testates, through the interposition of the probate court, and at the .same time nullifies the will of the testator.
Hnder our statutes, the assets of an estate are not regarded ■as administered until they have been collected and applied as required by law or the will of the testator, and until it is fully administered the probate court has jurisdiction in the [51]*51matter of the proceedings, and in this case it was competent for the court to require the executrix to file a new bond, and to remove her for failure to comply with the order.1 Holbrook v. Campau, 22 Mich. 288; Levering v. Levering, 2 Atl. Rep. 1, 1 Cent. Rep. 502, and notes.
It is true that executors take personal property of the testator as owners in their official capacity, for they have no principal behind them for whom to act. But they hold it in their official capacity as executors, and if they die, resign, or are removed, the assets undisposed of by them fall back into the estate of the deceased, and may be sued for and recovered by the administrator de bonis non with the will annexed. How. Stat. § 5861; 1 Williams, Ex’rs (6th Amer. ed.), 703. In Bidwell v, Whitaker, 1 Mich. 472 it was said that the word “lien,” in its largest sense,—
“ Embraces every case in which property is charged with the payment of any debt or duty. To be charged with the payment of any debt or duty is equivalent to being liable for the payment of any debt or duty. Either form of expression imports a right in rem.”
The lien of creditors created by statute upon the assets of deceased persons has been recognized by the decisions of this Court. Burns v. Berry, 42 Mich. 176 (3 N. W. Rep. 924); Winegar v. Newland, 44 Id. 367 (6 N. W. Rep. 84); Pierce v. Holzer, 65 Id. 263 (32 N. W. Rep. 431); Hoffman v. Beard, 32 Id. 218.
Under our system the settlements of estates of deceased persons are essentially proceedings in rem (Howard v. Moore, 2 Mich. 326), as they are in most of the other states, in which the res is the decedent’s estate, and the jus ad rem is in the creditor. Upon the death of a person leaving creditors, the debts, previously personal obligations, become immediately property obligations, with all the force of a lien upon the debtor’s estate. Grignon v. Astor, 2 How. 319. Now, [52]*52if it be conceded that a residuary legatee’s bond takes the place of the estate left by the deceased, then, of -course, it would follow that the res would be destroyed, and the proceedings thereafter would be in personam. But this is not conceded. It is the very point in dispute. The statute nowhere declares that such' bond shall have the effect to-release the lien of the creditors. In the absence of such statute, the bond can only be considered as a cumulative remedy in behalf of the creditors.
It is urged that this view is unjust to the residuary legatee, as by giving the bond he undertakes to pay all the debts,, whether the assets are sufficient for that purpose or not. The-answer to this is, that the giving of such undertaking is-entirely voluntary on his part. The court cannot compel him to give it, and, if he had rather give the bond than make and return an inventory of the estate, he is at liberty to do so, knowing the risk he is assuming when he enters into it. There is no injustice in holding him to a responsibility which he voluntarily assumes
The question under consideration early came before the courts of Massachusetts. By the statute of that state, passed in 1783 (chapter 32, § 3), it was enacted that the real estate of which any one shall die seized shall stand chargeable with all the debts of the deceased. By another section of the statute, which is the same as ours, it was provided that when the executor was also residuary legatee he might give a bond conditioned to pay all of the debts and legacies of the testator, in which case he should not be required to return an inventory. In Gore v. Brazier, 3 Mass. 523, it was held that this section has no application to the lien on the-testator’s estate, real or personal, and that this lien remains in full force, and the benefit to be derived by the creditor or legatee from the bond was merely cumulative. In this case there was a residuary legatee who had given bond to pay all debts and legacies. The executor, acting upon the theory [53]*53“that he became the owner of all the property of the testator, conveyed certain land, of which the testator died seized, to Samuel and Henry Brazier, who sold the same to plaintiff, with covenants of warranty. A creditor of the testator obtained judgment against the executor, and levied upon the .land, had the same appraised, and received possession. Thereupon the plaintiff brought his action for breach of covenant with warranty. The court held that the property was liable to be seized for the debt of the testator, and gave judgment for plaintiff.
The principle asserted in Gore v. Brazier, that the creditor has a lien upon the assets, and that the residuary legatee’s bond is merely cumulative, was approved in the recent •decision of the ease of Collins v. Collins, 140 Mass. 502 (5 N. E. Rep. 632).
In that case John Collins made a will, by which he gave to 'his wife, to be held in trust for Beulah Collins, his granddaughter, who was then an infant, a legacy of $500. He gave the residue of his estate to his wife, Margaret Collins, and appointed her sole executrix. John Collins died, and his will was admitted to probate February 2, 1872, and letters were issued to Margaret Collins, March 4, 1872, she giving a bond as residuary legatee to pay debts and legacies. The executrix filed no inventory of the estate, and no account .in the probate court. She died December 1, 1872, and the defendant was appointed administrator de bonis non with the will annexed, and gave the usual bond. He also filed a first .and final account, which was allowed. This was in 1873.
Beulah Collins became of age in 1884, and, the legacy not having been paid, she commenced an action against the administrator to recover it. She had previously obtained leave of the probate court to bring suit upon the bond, but no suit had been brought. The court said:
“ The first defense relied on is that the executrix was •residuary legatee, and gave bond to pay debts and legacies, [54]*54and that by so doing she made the estate her own, so that it could not be followed into the defendant’s hands by a legatee haying no specific charge upon it.
“ The result of this contention, if correct, would seem to be that no administrator de bonis non could be appointed in such cases, or, at least, that property not specifically bequeathed or charged would not come to his hands. But we are of opinion that it is not correct. It is true that the bond made the executrix personally liable upon it to the extent of its penalty, but that is not sufficient to exonerate the estate, unless the statutes provide that it shall have that effect. We find no such provision. On the contrary, it is expressly provided in Pub. Stat. c. 129, § 7, that the lien of creditors on the real estate shall be preserved, except on such part as shall be sold to a bona fide purchaser for value. And it is at least open to argument that the words, ‘and all estate not so sold may be taken on execution by a creditor not otherwise satisfied, in like mariner as if a bond had been given in the other form,’ are not confined to real estate.
“However this may be, the purpose of the section was to confirm the doctrine of Gore v. Brazier, 3 Mass. 523, 543, to the effect that ‘ the lien on the testator’s estate, real or personal, * * * remains in full force, and the benefit to be derived by a creditor or legatee from the bond is merely cumulative.’ Or, in the language of the commissioners on the revision of the statutes in 1835, who introduced the section, ‘the whole estate of the deceased is put into his [the executor’s] hands as the fund out of which the debts are to be paid.’ Commissioner’s note to chapter 63, § 20.
“It is true that it had been decided before the Revised Statutes that, when an executor had given bond to pay debts and legacies, the probate court could not grant a license to an administrator de bonis non to sell real estate for the payment of debts, at least as against a bona fide purchaser from the executor. * * * But this exception is shown to be consistent with the principle quoted from Gore v. Brazier, by the fact that it also is adopted by the statute. * * * It is true that giving bond made it the executrix’s duty to set apart a fund for the trust, but a duty to pay and payment are unfortunately not the same thing. We have already shown that the liability upon the bond was only cumulative.”
It was at one time strenuously contended that an executor duly appointed and qualified took the absolute title of the [55]*55personal assets left by the testator, and held it the same as-his own individual property, because he had the right to dispose of it, and give a good title to the purchaser, and that,, therefore, an execution could be levied upon such assets in his: hands issued upon a judgment against him personally. But this contention was refuted in the masterly arguments of the judges of the court of king’s bench in the case of Farr v, Newman, 4 Term R. 645.
The instances where the executor becomes fully invested with the title to the goods of the testator in his hands are-laid down in 1 Williams, Ex’rs, bottom pp. 646-649. One of' the cases is where he has paid the debts out of his own funds. The assets become his to an equal amount; and, by parity of reasoning, if the executor be residuary legatee, and has paid all the debts and legacies, the assets become his absolutely. The error has been in regarding the bond to pay debts and legacies as payment. But, as remarked in Collins v. Collins, the duty or agreement to pay and payment are not the same-thing, and it is only by payment that the duty is discharged and the absolute title passes.
In Jenkins v. Wood, 140 Mass. 67 (2 N. E. Rep. 780), in speaking of a residuary legatee who was executor, and had given bond to pay debts and legacies, the court held that the-liability of such person was as executor, and said:
“ That he is so liable, and that the bond is collateral is-that liability to secure its enforcement, is too obvious and well settled to be questioned;” citing Jones v. Richardson, 5 Metc. 247; Colwell v. Alger, 5 Gray, 67; Holden v. Fletcher, 6 Cush. 235; Sank v. Stanton, 116 Mass. 435; Jenkins v. Wood, 134 Id. 115.
In Holden v. Fletcher, 6 Cush. 238, it was held that—
.“The bond which the defendant gave for the payment of c all the debts,’ must be construed (like the usual bond given by an executor or administrator) with reference to the other-provisions of law concerning his liability.”
[56]*56In Jones v. Richardson, 5 Metc., at pages 250, 251, Chief Justice Shaw, said:
“Perhaps it may he said that, by the express condition of the bond, the executor and his sureties are bound to pay the debts and legacies; that creditors or legatees have a remedy, in the name of the judge of probate, on the bond; apd that such is their only remedy. But this is opposed both by the statute and by a long course of decisions. It is provided by .the Rev. Stat. c. 63, § 4, that the giving of such bond, to pay debts and legacies, shall not (with certain exceptions) discharge the lien on the real estate of the testator, etc.
“ But in order to charge the real estate, or the goods and personal estate, of the testator, it is necessary to obtain a judgment against the executor; and this shows conclusively that the bond was intended as a cumulative, not an exclusive, remedy, and that the creditors and legatees were left to the usual remedy against the executor as such. 'Otherwise it would happen that, although the testator left ample property, yet, if the executor and the sureties on his bond should become insolvent, the legatee would be without remedy. That such a bond is collateral security only, leaving the legatee to any other remedy he may have, has been decided as the true construction of a similar provision in Stat. 1783, c. 24, § 17, by a series of cases.”
The doctrine of the Massachusetts cases is that the lien created by statute is not extinguished by the giving of the bond to pay debts and legacies, but that such bond is cumulative, and that the administration is not closed, but is still under the jurisdiction of the probate court. The later decisions also hold that the case of Gore v. Brazier, enunciates the correct principle, and that the additional section inserted in the Revision of 1835 was only declaratory of what the court held to be the law without it, namely, that the filing of such bond did not extinguish the lien, but that it was cut off by a sale of the property by the executor to a purchaser in good faith.
The Michigan Revised Statutes of 1838 followed very closely the Massachusetts Revised Statutes of 1835, and included the section which has been inserted by the revisers [57]*57referred to in Collins v. Collins, supra. But in the Revision of 1846 many important changes were made. The section following that authorizing the residuary legatee to give a bond to pay debts and legacies, whereby it was provided that the giving of such bond should not discharge the lien on the real estate, except only such part as had been sold by the executor to a purchaser in good faith, was dropped out.
Commissioners who by the statute of 1838 were appointed ■only in case of insolvent estates were by the Revision of 1846 made the tribunal for hearing and adjusting claims in all cases, except where there were no debts, or the whole estate •did not exceed in value $150, which was assigned for the support of the widow; and if commissioners were appointed no suit could be brought against the executor until the time limited for payment of debts had expired, with exceptions in favor of real actions and replevin.
Claims of creditors were barred if not presented to the commissioners within the time fixed by the probate court when the commissioners were appointed, and the probate court was required to fix the time within which the executor should dispose of the estate, and pay the debts and legacies, not exceeding one year and six mpnths in the first instance. The time might be extended, not exceeding four years in all. When the time limited had expired, the probate court might order notice to be given to the creditors of the time limited for the payment of debts; and, if the creditor did not demand his debt or dividend from the executor within two years, his claim was barred. If the appointment of commissioners were omitted, claimants were authorized to sue the executor.
In 1850 the law was amended so that the appointment of commissioners was discretionary with the judge, except when requested in writing by the executor or administrator to do so, and if none were appointed the duties devolving ■upon the commissioners were to be performed by the judge of [58]*58probate, but tbe right of bringing suit was retained. The bond cannot be prosecuted by a creditor until after the time for payment of debts limited by the probate court has expired (How. Stat. §§ 5994, 5997; Biddle v. Wendell, 37 Mich. 452), unless a decree of distribution is sooner made upon a settlement of the estate by the executor or administrator.
Suppose the executor, who is a residuary legatee, and has given bond to pay debts, desires that claims shall-be adjusted by commissioners, is he not entitled to have them appointed,, and if they are appointed are not the creditors obliged to prove their claims before the commissioners on peril of being barred? He may desire to know the extent of his liability, and when he will be released from further claims. Must he be denied any relief in a court of probate? Has he not a right to the same time in which to pay debts as he would have, had he given the other bond required by law? And is he not entitled to the same protection against being harrassed by suits until the time to pay debts has expired? Is he not entitled to the aid of the court to reach concealed or embezzled property or assets under section 5876, or under section 5878, with reference to property intrusted by the executor to a person who refuses to account for it ? JDoes the giving of such bond so close tbe administration that all rights, remedies, and jurisdiction of the probate court are cut off which are provided for by chapter 228, How. Stat. ? •
The only view which I can take of the effect upon the course of administration in the probate court which the giving of the residuary legatee’s bond has, is that it excuses the executor from returning an inventory, and as a consequence it confers upon him the right to dispose of both the real and personal estate without being licensed thereto by the probate court. He receives the estate of his testator in his official capacity for administration; that is, to convert it into money and pay the debts and legacies. His authority to sell is derived from his letters testamentary and the force of the [59]*59statute. The act must be his official act, no less chan if he was an executor acting under a license, and qualified by giving the ordinary bonds. His individual deed would only convey his individual interest, given to him by the will, and that would be only the residuum after debts and legacies are paid; and the sale of his individual interest would not diseharge the lien of creditors, any more than a sale by any other legatee or heir would discharge such lien. Burns v. Berry, 42 Mich. 176 (3 N. W. Rep. 924); Winegar v. Newland, 44 Id. 367 (6 N. W. Rep. 841); Hoffman v. Beard, 32 Id. 218.
If I am correct in this position, then the deed executed by Asenath Cook in her individual capacity on the eighteenth day of July, 1877, to S. Titus Parsons, even had he been, a bona fide purchaser, did not discharge the lien of creditors upon the land, but only conveyed her individual interest as legatee, and which, as appears by the admitted facts in the record, was nothing; the debt proved against the estate being much more than the total assets of the estate.
Section 5864, How. Stat., enacts:
“ All acts of an executor or administrator, as such, before the revocation of his letters testamentary or of administration, shall be as valid to all intents and purposes as if such executor or administrator had continued lawfully to execute the duties of his trust.”
Had Mrs. Cook conveyed the land as executrix, such act, at least as to a • bona fide purchaser, under the authority of the above section, would have been regarded as valid and binding, and as such would have cut off the lien of creditors.
The complainant, Martha Lafferty stands in no better position than her grantor, S. Titus Parsons. She has obtained no greater interest than her grantor had. Her situation is not one that entitles her to the special protection of a court of equity. An examination of the public records of recorded conveyances would not have shown any title whatever in Asenath Cook. They would have shown that Olney Cook [60]*60uied seized of the land, and a purchaser thus put upon inquiry would have ascertained from the records in the probate court that Asenath Cook had been appointed sole executrix, and had given a bond to pay the debts and legacies as a residuary legatee, in the penalty of $1,000; that she had been required to give a new bond, but the day before the time limited therefor she made her individual deed of the land in question to S. Titus Parsons, and at the same time a petition was on file claiming that the testator owed defendant nearly $15,000; that she neglected to comply with the order, and instead had conveyed away her interest in the land; had been removed, and an administrator de bonis non appointed ^o administer the estate. Commissioners on claims had also been appointed, and the administrator de bonis non was proceeding in the execution of his trust.
A purchase from Parsons, under such circumstances, would appear upon its face to partake very much of a speculative character, and the purchaser can hardly be accredited with that good faith which entitles her to protection as an innocent purchaser. She must be chargeable with notice of whatever defects appear in the proceedings of the probate court affecting the jurisdiction, and, if the lien of creditors had not been discharged by lawful acts of the executor, the land in her hands was charged with the payment of the debts, and might be sold for that purpose.
The administrator de bonis non had the right to apply to the probate court for license to sell the land in question, and the probate court had authority to grant such license. A sale made in pursuance to such authority, under and in accordance with the statute, does not constitute a cloud upon complainant’s title, but under the facts disclosed by this record the complainant’s claim constitutes a cloud upon the title of the purchaser at the administrator’s sale.
It is not necessary to decide upon the validity of the tax-deed held by the defendant.
[61]*61It is claimed by the defendant that the probate court haa no jurisdiction to issue letters testamentary to Asenath Cook, for two reasons:
1. No notice of the time and place when the bond given by the party named as executor and residuary legatee was to be considered was given by the judge of probate to the creditors.
2. The bond given was with only one surety, when the statute requires more than one; its language being that the bond shall be given with sureties.
We do not consider it necessary to decide these points upon the record before us, as what has been said disposes of the case. We may, however, suggest that, if the court had jurisdiction to make the appointment, the fact that there was but one surety would not render the acts of the executrix void after letters testamentary had been issued to her. The defective bond would be an irregularity, which could be corrected in the probate court under the statute. Section 5864, above cited; Slagle v. Entrekin, 44 Ohio St. 637 (10 N. E. Rep. 675).
Upon the first point we suggest that, if the construction of the complainant is correct, the giving of the residuary legatee’s bond discharges the lien, closes the administration, and the creditors have no other remedy than an action upon the bond for the payment of their debts. Then the creditors are vitally interested in the sufficiency of the bond and the responsibility of the sureties. In a case of such importance to them, they would have a right to be heard before the bond was' approved. Notice to parties whose rights are to be affected lies at the foundation of legal proceedings, and is the touch-stone of jurisdiction. Nothing is plainer than, if the giving of the bond is to have the effect contended for, that notice should be given, and that it is a prerequisite to the approval of the bond which has such important consequences. The estate could not be swallowed up by the executor, and a paper bond, with its naked promise to pay the debts, be substituted in its stead, without the creditors having their day [62]*62in court upon the question of the sufficiency of the substitute to which they must look for their pay.
Great care is required of probate courts in taking executors’ bonds. Ordinarily the judges duty requires him to fix the penalty with reference to the amount of the assets, and not to the liabilities, of the testator; but in the residuary legatee’s bond the case is reversed, and the penalty must be fixed with reference to the debts and legacies. The legacies appear upon the face of the will, but there is no way in which the court is informed of the amount of the debts. Unless some notice is given to creditors at the time and place where he will fix the amount of the bond which a residuary legatee proposes to give, so that they may in some way inform the court, it must necessarily be a matter of guess-work with the court in fixing the penalty.
Other points have been suggested which are claimed to be fatal to the defense; but as they have not been discussed or raised in the brief of counsel, and as the complainant has the burden of making such a case as entitles her to equitable relief, we have thought best to place our decision upon the merits of the case as presented.
The decisions of this Court have thus far been upon the extent of the liability of the principal and sureties upon such bonds, and upon that question there has been no difference of opinion, either in this or in any other court that I am aware of, where the question has been raised.
I have less hesitancy in stating what I believe to be the true doctrine upon the subject under consideration, as this is the first time a dispute concerning the title acquired by the residuary legatee who has given such bond has been brought before us for adjudication.
For the reasons stated, it is my opinion that the bill of complaint should be dismissed, with costs of both courts.
Morse and Long, JJ., concurred with Champlin, J.