Wambaugh v. Gates , 11 Paige Ch. 505 ( 1845 )

The Chancellor.

The decree in this case is clearly erroneous, and inequitable, in relation to the rights of some of the-defendants in the former suit, who are not parties to this suit. For, by directing the master to proceed and sell the premises, devised to S. Boyer, under the former decree, and to charge. ,the debt of the present complainant upon the proceeds of such sale, for which debt the premises were not holden in the hands of Poult-ney and Ellicott, they are indirectly made liable not only for the payment of the complainant’s debt, but also of all the costs of the litigation in this suit, to which they were not parties. The whole extent to which the devised property, in the hands of Poult-ney and Ellicott could be made liable, in any event, consistently with the principles of justice and equity, was the amount of the four legacies, which were mere equitable liens thereon in the hands of the devisee, together with the costs of the suit to compel payment of such legacies. And if the complainant in this suit has any claim to any part of the proceeds of the devised premises, to be applied in payment of his demands against theestate of the testator, it can only be upon that part thereof which is due to the leg-, atees; as an interest carved out of the devisecl property for their benefit. That error, however, is one of which these appellants have no right to complain. And the defendants in the former suit, who are not parties to the decree in this case, and therefore not bound by it, must apply in the suit to which they are made pay-ties, or in some other way, to stay any irregular and uncpnscip^-tious proceeding in that suit, or under the decree made therein, to deprive them of their property, beyond the amount'of the legacies and the costs; in consequence of the erroneous directions contained in the decree in this suit.

By the common law, lands aliened by the heir at law before suit brought, were not liable in the hands of hopa fide purchasers thereof for the debts of the decedent. The same principje is distinctly declared by the provisions of the revised statutes. The 51st section of the article relative to suits against legatees, &c., (2 R. S. 455,) declares that lands aliened in good faith by any heir, before suit commenced against him, shall not b,e liable to execution, nor be in any manner affected by a decree against such heir. And the 61st section of the same article makes the same provision as to lands aliened by a devisee before suit brought against him. Neither the lands devised to Samuel Boyer, por those devised to Philip Boyer, all of which lands had .been aliened, to Poultney and Ellicott, long before the commencement of .this (or any other suit by the complainant, were liable for the payment of his debt. And the time for obtaining an order from the surrogate, to sell, had expired nearly six years before the filing of the bill in this case. The objection that the grantees .of Philip Boyer were not made parties to this suit, therefore, is not well taken. For if they had been made defendants they might have pleaded the alienation to them of the lands devised to Philip, as well as those devised to Samuel, in bar of any claim upon them, or upon the lands so aliened.

But if Philip Boyer had been living, he would have been a necessary party. For the statute requires all the heirs, or all the devisees of the testator where the devisees are liable for-his debts, to be sued jointly. (2 R. S. 454, § 42. Id. 456, § 60.) I infer from the bill and answer, however, that Philip died out, of -.the state, and insolvent, and without leaving .any property here. .And if that was so, the objection that his personal representatives are not parties is. not tenable. Th.e children of John B.oyer, .to whom the farm in Pennsylvania.y/as devised, might .be ¡deemed necessary, parties,Tor.Jhe purpose of.enforeing.contribution, if:it appeared that, by the laws of that state, lands devised were liable for the simple contract debts of the testator. But there is not sufficient appearing, either in the bill or the answer, in this case, to enable me to say they were necessary parties; especially as it appears, from the answer of the defendants, that the children of John were not residents of this state. The legacy to John Boyer was not specifically charged upon the real estate, but was payable out of the personal estate merely. And the statute does •not contemplate a joint proceeding against such a legatee and the heirs or devisees of the testator, even where the personal estate has been paid out to the legatee, leaving the debts unpaid. The personal representatives of John Boyer, therefore, .couldnot be necessary parties to this suit, even if it was shown that the legacy to John Boyer had been paid to him out of the personal estate. And as he took no interest in the real estate of his father, either by devise or descent, he was not bound to contribute to ■the payment of the debts of his father, either as an heir or a ■devisee.

The three daughters of the testator, who are parties to this suit, if they are liable for the debt of the complainant, can only be charged with the payment of such debt upon the ground that their legacies were interests in the real estate, carved out of that part of it which was devised to their brother Samuel; and that they are devisees of an interest in the testator’s real estate, to the. extent of their several legacies, which are an equitable charge upon the farm devised to Samuel. But Upon the same ground J. Barnes, who became entitled to his wife’s legacy by survivor-ship, which legacy was also an equitable lien upon the same farm, is a necessary party to this suit; as his interest in the estate of the testator is equally bound to contribute to the payment of the complainant’s debt. And the other daughter of the testator, who had a legacy of the same amount, payable out of •the real estate devised to Philip, appears also to be a necessary party. Whether the interests of any of these legatees, can be reached by the creditors, after the estate devised, and upon which their legacies were an equitable lien, had been aliened by the -devisees, is a question which it is not necessary to decide at this time. I am satisfied the bill in this cause is not properly-framed, nor with the proper parties, to charge any of the defendants as devisees.

In the case of Butts v. Genung, (5 Paige’s Rep. 254,) this court decided that, under the provisions of the revised statutes, a creditor of the decedent could not file a bill against the personal representatives and the heirs, or devisees, jointly, to obtain satisfaction of his debt. And that to entitle a creditor to a decree against the heirs or devisees, he must show by his bill, either that the personal estate of the decedent was not sufficient originally to pay the debts, or that such creditor had exhausted his remedy against the personal representatives, without being able to obtain satisfaction of his debt. The bill in the present case is wholly defective in these respects. It merely states that the testator, at the time of his death, was possessed of considerable personal estate, but without alleging that it was not sufficient to pay his debts. Nor is the want of a proper allegation in the bill, on this subject, supplied by any proof in the case. For aught that appears, the personal estate of the testator was sufficient to have paid all his debts, if it had been applied to that purpose by the executor's. The devisees of the real estate, or of any interest therein, cannot therefore be called on to contribute any thing, for the payment of debts, until it is shown that the complainant has taken all proper steps to obtain satisfaction from the executors, or from the legatees of the personal property, if it has been paid over to them, leaving the debts unpaid. (2 R. S. 453, §§ 33, 36. Idem, 455, §§ 56, 59.)

The issuing of the execution) upon the judgment, recovered against the executors, did not exhaust the remedy against them for personal estate which had come to their hands and had been misapplied by them. For, under that execution, the sheriff could only levy the debt out of the personal property which still remained in their hands, and which was the proper subject of sale upon execution. The return of such an execution unsatisfied, therefore, was no evidence that there was not in fact sufficient personal property, originally, to satisfy the judgment, or that the debt ’could not be recovered from the executors personally, if thé 'compláitíarit ’had taken the 'proper step's to call them to Kccourit before the surrogate. It does not appear, in this casé, whether the execution was issued with or without-an order o'f thé surrogate. Biit as it would be illegal to issue it without stich an order, the presumption of law is that an application was madé to the surrogate, and that he made an order allowing such ekeciitibn to issue, in conformity to the statutory provision on this subject. (2 R. S. 88, § 32.) The complainant, therefore, was bound tó procééd against the surviving executor - person all y, for the satisfaction of his debt, before he could resort to the in'terests of these legatees .in the real estate upon which their legacies were liens; ifdhose interests could be reached in-any-way, under the circumstances of this case.

The decree of the vice chancellor was-therefore clearly erroneous; and it'must be reversed. The bill, as 'to all'the appellants except Samuel Boyer, must be 'dismissed with costs, but without prejudice to their rights in any future litigation. -'But as ’to the defendant; Samiiel Boyer, the' surviving executor,'I think there is sufficient in the pleadings ánd proofs to entitle the complainant to á decree for relief against him. It is very evident that the sale of the devised premises; upon the execution against the executors; and the bidding in of the-property “for’an amount beyond whatkvas'dtie dpon 'the jüdgmént; when neither óf the defendants in the judgment had any'estate'Or intéresfin ’such property, either in their-own rights or otherwise, were founded in mistake; It is true; the judgment 'against the defendants was personal; so far as the costs of the suit were concerned ; and if the title td the devised'premises had been in either of the defendants in'siich judgment; at the time of the docketing-’thereof, I am not prepared to say that the purchaser would not have obtained the legal title under that sale. But 'the añ'swer and the proofs in this cause show that the whole Of the'devised ‘property hád'been transferred, to Poultney and Ellicott, previous to the recovery of the judgment. The complainant, therefore, ' if 'he'desires'itj’is entitled to' a decree setting aside the :sale''bf "the1 'devised pi-emises, upon'the' execution,'and thé deed-executed "tjy’tíu? Slhéfiíí,,an3'décÍaring‘íthé'jfi'dg'iñ'ént':iii!íülÍ'ibfé'é'ins%gaínst S. Boyer, as the surviving executor, notwithstanding such sale; and referring it to a master to take an account of the personal estate of the testator, which came to the hands of the executors, or which they might have received and applied to the payment of the complainant’s debt, by due diligence; and charging him with interest on the value of such estate, after the expiration of eighteen months from the death of the testator; to the end that upon the coming in of the report of the master, such a decree may be made against S. Boyer, for the satisfaction of the debts due to the complainant, as may be just; and reserving the question of costs between those parties, and all other questions and directions as to them or their rights, in,the meantime.