patent granteth to the sheriff custodiam comitatus, without any express words to make a deputy, yet hath the sheriff power to make a deputy or under sheriff who may execute all the ministerial parts of the office; for experience, says my Lord Hobart, proves that many sheriffs cannot execute it themselves; from the antiquity, therefore, and the necessity of this office, the law takes notice of him, and on his being appointed the law implicitly gives him power to execute all the ordinary offices of the sheriff himself that can be transferred by law." It would thus appear that our statute in regulating the method of appointing an under-sheriff recognizes the office, and the right as well as the duty of its incumbent to execute all the ordinary offices of the sheriff. An under-sheriff is a public officer, who, by virtue of his appointment in the manner provided by our statute, is empowered to perform the ordinary duties of the office. Meyer v. Bishop, 12 C. E. Gr. 141, 142.

We are of opinion that an under-sheriff is "a person who holds and exercises the office of a sheriff" within the meaning of section 36 of the act above mentioned. The evil which the act is aimed at would never be reached if the sheriff can delegate the exercise of the ordinary offices of a sheriff to one not subject to the restrictions imposed upon a person who holds and exercises the office of a sheriff. The legislature has specifically provided that the office of sheriff and any other civil office are incompatible, and the sheriff cannot remove the inconsistency by appointing a person to do the very thing which the law prohibits him from doing. If this be not so, then the person holding the office of sheriff could, through his official alter ego, exercise the office of sheriff in contravention to the legislative policy concerning it.

The demurrer to the plea of the respondent is overruled.

ELLA DEATON, APPELLANT, v. BENJAMIN F. DORSEY, ADMINISTRATOR CUM TESTAMENTO ANNEXO OF THE LAST WILL AND TESTAMENT OF JAMES H. MORRIS, DECEASED, APPELLEE.

Submitted December 5, 1908-Decided June 28, 1909.

*

A testator in his will provided as follows: "I give to my wife during her natural life all the income from my real and personal property after all the taxes and necessary repairs shall have been paid, and after her death then my daughter Martha E. Morris is to become the owner of all that may be remaining of said real or personal property after my wife's funeral expenses and just debts are paid during her natural life, then after her death the said property is to revert to my daughter's nearest surviving heirs." Held, that the clause "during her natural life" refers to the duration of the estate in testator's daughter, thus limiting the daughter's right to a life estate. Held, further, that a suit at law cannot be maintained against the executor of the deceased husband to enforce payment of the wife's just debts by virtue of the provision of his will, and that the executors of the husband have the right to require the just debts of the wife to be first established by a suit against the wife's executor.

On appeal from the District Court of the city of Camden.

Before Justices GARRISON, PARKER and VOORHEES.

For the appellant, Wilbert V. Pike and Raymond R. Donges.

For the appellee, Francis D. Weaver and John B. Kates.

The opinion of the court was delivered by

VOORHEES, J. This is an appeal from the District Court of the city of Camden. The state of the case settled by the judge of that court sets forth:

"This is an action brought to recover from the estate of James H. Morris, deceased, the sum of two hundred and seven dollars ($207), balance claimed by the plaintiff for services.

rendered to Martha Morris, widow of said James H. Morris, in her lifetime, as housekeeper at wages alleged to have been agreed upon by contract with Mrs. Morris.

James H. Morris, of Camden, New Jersey, died early in 1896, having first made his last will and testament, duly proved before the surrogate of Camden county on March 3d, 1896, and of record in said surrogate's office in Book S of Wills, pages 50, &c., wherein and whereby he did, among other things, provide:

"First. It is my will and I do order all my just debts and funeral expenses to be duly paid as soon as conveniently may be after my death.

"Second. I give devise and bequeath to Martha Morris my beloved wife during her natural life all the income from my real estate and personal property after all the taxes and necessary repairs shall have been paid, and after her death then my daughter Martha E. Morris is to become the owner of all that may be remaining of said real estate or personal property after my wife's funeral expenses and just debts are paid during her natural life then after her death the said property is to revert to my daughter nearest surviving heirs."

The executor named having died before the testator and the widow having renounced, letters of administration cum testamento annexo were, on March 3d, 1896, granted to John E. Gumby, and on March 16th, 1905, letters were granted to Benjamin F. Dorsey as substituted administrator with the will annexed. The net income of the real and personal property of the testator was paid over by the administrator to testator's widow, Martha Morris, until the latter's death on January 18th, 1907.

This suit is brought for that, as is alleged, on April 2d, 1903, Mrs. Morris engaged the plaintiff, Ella Deaton, as housekeeper, at an agreed weekly wage of $3; on August 27th, 1905, after Mrs. Morris had been stricken with paralysis, she raised the weekly wage to $1, and on December 20th, 1906, to $5; that the plaintiff performed the services as agreed, and at Mrs. Morris' request expended for the household, in August, 1906, the sum of $3, making the total

amount accrued to her under the contract $673, on which she received on account, from time to time, $466, leaving a balance claimed by her of $207. The plaintiff duly presented her claim to the defendant administrator for the said balance as due to her under the terms of James H. Morris' will; the administrator refused payment and notified her to enforce her claim by suit.

The case was tried before the court without a jury. The foregoing facts were established to the satisfaction of the 'court, in accordance with the statement in the demand filed by testimony on the part of the plaintiff. Witnesses also testified that Mrs. Morris, shortly before her death, told them, separately, that she owed Ella Deaton about $200 for her services as housekeeper. No testimony was offered to controvert the testimony of these witnesses.

For the defendant, the record of the last will and testament of Martha Morris, who died on January 18th, 1907, was offered, wherein it was provided:

"Item 1. It is my wish and I order and direct that all my just debts be paid.

"Item 2. In consideration of the faithfulness and constant attention and care of Ella Deaton to me during my recent years and illness, I give and devise to her, the said Ella Deaton, the house and lot known as No. 1807 South Tenth Street, Camden, New Jersey, and also lot No. 1809 South Tenth Street, Camden, New Jersey."

It was also in evidence that Martha E. Morris, the daughter named in the will of James H. Morris, died about eighteen months after her father's death, by reason whereof his estate goes to a grandniece; that Mrs. Morris was familiar with the terms of her husband's will, but that the plaintiff did not know that Mrs. Morris had made any provision for her in her will.

On the ground that the provision made by Martha Morris in her will for the plaintiff was intended and is in satisfaction of any claim for personal attention and care of Martha Morris, rendered by Ella Deaton to her in her lifetime, judgment was rendered by the court in favor of the defendant.

The action is brought upon the theory that the second item of the will of James H. Morris confers a right of action against his executors in favor of the creditors of his widow. It will be observed that no such right is expressly given. The provision concerns the disposition of testator's property. His wife's interest is limited to a life estate, with provision that "after her death then my daughter Martha E. Morris is to become the owner of all that may be remaining * * * after my wife's funeral expenses and just debts are paid during her natural life." The clause "during her natural life"" refers to the duration of the estate in his daughter, thus limiting the daughter's right to a life estate, and does not refer to the period within which such debts shall be paid. The clause in the will is thus essentially a mere disposition of testator's property with provision that his daughter's remainder shall be diminished by the payment of his wife's funeral expenses and just debts. The will merely provides for an estate in remainder in the daughter after the satisfaction of the just debts of Mrs. Morris, so far as the property of the testator may extend, after. the ascertainment of those debts. The theory of the plaintiff's case is that by the provi.sion in Mr. Morris' will now in question he imposed on his executors the duty of determining what claims against the estate of his widow are to be regarded as her "just debts." We are unable to adopt this theory in view of the existing provision of our statute for the ascertainment of the demands against a decedent's estate. The only persons authorized by law to exercise this power are the executors or administrators of the alleged debtor, and, in case of dispute, the existence and amount of debt must be settled in suits between the creditors and the debtor's estate. The judgments in such suits will determine the debts and their amounts. Whether a debt was contracted, whether it has been paid, whether there are set-offs to be allowed, whether there is a recoupment or counter-claim, are matters which must be litigated between the debtor's estate and the claimant. Moreover, if the will were so construed as to authorize the husband's executors to audit claims