Ross v. Cowden , 7 Watts & Serg. 376 ( 1844 )

The opinion of the Court was delivered by

Kennedy, J.

John H. Cowrden, the defendant in error, who was the plaintiff in the court below, was made by his father, in his will, the residuary devisee and legatee of all the real and personal estate, and the sole executor thereof. The residuum of the personal estate exceeded greatly the amount of the debts owing by the testator and the amount of the legacies given by his will. The legacies, however, have been adjudged during the present term to be payable out of the real estate devised to the defendant in error as well as the personal, and therefore a charge upon it. The great excess of the estate of the testator devised and bequeathed to the defendant in error, beyond what was sufficient to pay the debts and legacies, would seem to be a reason why they were not all paid long since; for it is highly probable that the large estate given to the defendant in error by his father’s will, with the addition of what he had previously acquired, induced a' general belief on the part of the legatees, as also the few creditors of the testator, that his means of payment were almost inexhaustible, and that, whenever they should want payment, they would obtain it without any delay or difficulty. And it being upwards of seven and a half years since the testator died, it cannot be supposed for a moment that payment of the debts and legacies could not have been obtained some five or six years ago, if the creditors and legatees had only insisted on it; but, considering all secure beyond the possibility of danger or doubt, they chose to lie by and permit the defendant in error to dissipate and apply or waste all the estate, as if it had been his own originally. Possessing such superabundant means for the payment of the debts and legacies as he did, and no claim made by suit against him on account of either for seven years or upwards after the death of the testator, furnished strong ground for the rest of the world to conclude that the debts and legacies were all paid, and that everything in possession of the defendant in error, or coming to him, even as executor nominally of the will of his father, was absolutely and exclusively his own; and under this construction it is fair to presume that, as such, he obtained credit with the world. But in this instance it appears by the record of the judgment that the debt which was attached was a debt coming to him in his own right, and not as executor, though it would appear to have been a debt owing to the testator originally, but was reduced to possession by the defendant in error taking a security and judgment in his own right for the payment of it. Under all the circumstances of this case, the debt attached may well be considered as a debt owing to the defendant in his own right, and liable to be attached as such under the Act of Assembly authorizing debts due to a defendant, against whom a judgment has been obtained for money, to be recovered by process of attachment, and applied towards payment of the judgment.

Judgment reversed, and judgment for the plaintiff in error.