Smith v. Wyckoff , 11 Paige Ch. 49 ( 1844 )

The Chancellor.

This case steers clear of all the conflicting decisions as to what shall be considered as evidence of the intention of a testator to charge his real estate, with the payment of debts or legacies, in exoneration of his personal property. But even if the debts charged upon the farm devised to the defendant Lambert Wyckoff, in this case, had been the proper debts of the testator himself, I think there is sufficient in this will to show that he intended that his wife, and his son Nicholas, and his two daughters, should take all the personal estate, bequeathed to them respectively, exonerated from the payment of these particular debts; unless this Bushwick farm, devised to his son Lambert, should prove insufficient for that purpose.

From this will, it is perfectly evident that the testator did not consider himself as providing for debts owing from him individually, in the devise of this farm to his son charged with the payment of the several debts mentioned in the will. What he considered as his own individual debts, if he had any such, are left wholly unprovided for in the will; and must of course form a charge upon the personal estate not specifically bequeathed to his widow and his son Nicholas. And a part of the fund for the payment of such individual debts, if there are any, consists of debts due from the devisee of the Bushwick farm, to his father, which are expressly charged upon those premises. It is not distinctly averred in the bill that the note of $5000, given to the testator of the complainants, by Lambert Wyckoff and his father, in November, 1837, is the identical note described in the will, as a note of $5000 which the testator had signed for the use of the devisee, in favor of Edmund Smith ; though there can be no reasonable doubt of the fact. But even if this was a different note, it is also expressly charged upon the demised premises by the subsequent clause of the will, which subjects the Bushwick farm to the payment of every other note, or obligation for the payment of money, which the testator had signed with Lambert Wyckoff the devisee, for the payment of which the testator was, or his personal representatives, might be liable. Thé note in question certainly is one signed by Peter Wyckoff with his son Lambert, for the payment of which the testator was liable at the time of the making of his will; and which his executors must pay out of the personal estate, if the same cannot be collected from the devisee or out of the proceeds of the farm devised to him. Nor can the devisee, who takes the farm under the provisions of this will, raise the question whether the notes signed by him with his father, and thus made a specific charge upon the devised premises, were in fact given for debts which the devisee in justice and equity is bound to pay. For if he claims the farm under this will, he must take it subject to the payment of such debts as the testator thinks proper to charge him with, as a condition of such devise.

This is not a proceeding under the revised statutes to charge a devisee of real estate with the general debts of the testator; in which case the creditor is required to wait until the expiration of the three years allowed to the personal representatives of the decer dent to apply for an order to sell the real estate for payment of debts; and where the remedy against, the personal estate must be exhausted before the real estate, in the hands of heirs or devi-sees, can be resorted to. None of the objections founded upon, the provisions of the revised statutes, therefore, can be sustained. Nor are the heirs at law of the testator necessary parties, even if he left any real estate not specifically devised. For the Bushr wick farm is in equity the primary fund for the payment of the debt of the complainants. And if this debt should be collected by them out of the personal estate of the decedent, or out of real estate descended to his heirs at law, the legatees of the personalty, or the heirs at law of the real estate, whose property had been thus applied would be entitled to be subrogated to the rights of these complainants, as against the prim'ary fund. To avoid such circuity of suit, therefore, a court of equity permits,, and sometimes requires a creditor, who has two funds to resort to for payment of his debt, to proceed at once against the primary fund; without subjecting the owners of the secondary fund to useless litigation. Where the testator, therefore, has charged his real estate, or any part of it, with the payment of his debts, in exoneration of his personalty, the creditors may come at once into this court to obtain satisfaction of’ such debts out of such primary fund; although they may have a perfect remedy at law against the personal estate in the hands, of the executors.

Nor is the objection that the complainants have not exhausted their remedy at law against Lambert Wyckoff, as the surviving maker of the note, well taken. The note given to the testator of the complainants, by Peter Wyckoff and his son Lambert, was a joint and séveral note. The complainants therefore had the right to proceed either against the surviving maker of the note, upon his personal liability as one of the joint and several makers, or against the estate of the deceased maker, at their election. Here, if they had proceeded against the devisee, at law as the surviving maker of the note merely, any judgment which they might have recovered against him, for this debt, would have been junior and subordinate, as a lien upon his real estate, to the $6000 judgment, recovered by John Wyckoff against him in 1842. And if they had sued the executors of the deceased maker, at law, they would have done palpable injustice to the legatees of the personal estate, as the owners of the fund which was only secondarily liable for the payment of the debts specifically charged by such deceased maker upon the Bush wick farm. Independent-of the principle upon which ordinary creditors’ bills are sustained in this court, after the remedy at law against the debtor has been exhausted, these-complainants had a right to file their bill at once against the devisee of the real estate which the deceased maker of this joint and several note had charged with the payment of this debt, in exoneration of his personal property.

The objection that it appears by the bill of the complainants that there was a debt due to H. Onderdonk, for $1500, which was also a specific lien upon the Bushwick farm, and that he ought to have been made a party, was not raised by the demurrer ; nor was it raised ore tenus, upon the argument of the demurrer in the court below. It cannot, therefore, avail the appellants here as a ground for reversing the decretal order appealed from. I am inclined to think the bill is technically defective in this respect, according to the decision of Lord Kenyon in the case of Morse v. Sadler. (1 Cox’s Cas. 352,) and of this court in Hallet v. Hallet, (2 Paige’s Rep. 22.) Where the creditors whose debts are charged upon real estate are named in the will, it appears to be proper that any one of them who files a bill to obtain satisfaction of his debt out of the real estate thus charged should make the other creditors who are thus known and whose debts are still due, parties to the suit, so that the purchaser may get a good title, and that the property may not be sacrificed by a sale which will not cut off the claims of creditors who are not made parties. But where the names of the creditors are not specified in the will, and the complainant is not able to ascertain that there are any other creditors, of who they are, an averment to that effect appears to be sufficient. At least it will be an answer to any objection for a want of parties, until the defendant, by his answer, distinctly points out what other persons have specific liens upon the real estate, thus charged, as creditors; so as to enable the complainant to make them parties. In this case I think it may fairly be inferred from the bill, that H. Onderdonk, whose bond debt of $1500 was charged upon the Bushwick fárm, is still a creditor whose debt remains unpaid. If so, he should have been made a party, either as a complainant or a defendant in the suit. For this reason, although the decretal order appealed from must be affirmed with costs, it must be without prejudice to the right of the appellants to raise the objection in their answer, that he is not made a party; unless the complainants shall amend, by making him a defendant in the suit, or by inserting an averment in their bill "that his debt has been paid, so as to be no longer a specific lien upon the farm devised to Lambert Wyckoff.

The proceedings are remitted to the vice chancellor.