Ticknor v. Harris

Parker, C. J.

The plaintiffs rely upon the statute of July 2, 1822, providing that the estate of every person dying testate shall stand chargeable, among other things, with the just debts which be owed, in the same manner in which intestate estates are charged. 1 N. H. Laws 357. Another statute of the same date, relative to the descent and distribution of intestate estates, enacts that they shall stand chargeable with the just expenses of the administration, &c., the just debts which the deceased owed, and with the support of the infant children until they arrive at the age of seven years, and that the residue of the personal estate, if any, shall be distributed to the widow and heirs, &c. 1 N. H. Laws 353.

It is a general principle pervading our legislation that the estate of an individual, real and personal, with certain exceptions in the case of poor debtors, is liable for the payment of his debts. It applies as well during the lifetime of the debtor as afterwards, but in both cases it is to be made effectual by the force of other special provisions of the law for that purpose.

If a debt may be said to exist when the remedy is barred *281 by statute, the property of the debtor cannot be .applied to the payment of it, whether the statute be applicable to the estate of a living debtor, or that of one who has deceased.

In Wilkinson vs. Leland, cited for the plaintiff, it is said that the title to lands which vests in the heir and devisee, is “ encumbered with all the liens created by the party in his life-time, or by the law at his decease that “ it is not an unqualified although it be a vested interest,” and that “it confers no title except to what remains after every such lien is discharged.” It is stated in the same opinion that “the laws of Rhodc-Island in all cases make the real estate of persons deceased chargeable with their debts, whether inhabitants or notbut it is farther said, “If the authority to enforce such a charge by a sale be not confided to any subordinate court, it must, if at all, be exercised by the legislature itself.” 2 Peters' S. C. Rep. 660.

The general provision of the law making estates liable to the payment of debts, was inserted on account of different rules having prevailed at common law ; and we must look to the particular statutes for our authority to administer this general principle, and for the manner in which it is to be made effectual.

The estate of John Harris was administered as an insolvent estate, and this was a legal mode of administration, notwithstanding it proved to be solvent. By the provisions of the act regulating the settlement and distribution of insolvent estates, all demands which the deceased owed at his death, whether payable or not at the time, might be presented and allowed by the commissioner appointed for the purpose, and paid through the intervention of the administrator by a sale of the property of the deceased.

There are provisions for an objection by the executor or administrator, and for an appeal from the decision of the commissioners by the creditor, and for the prosecution of suits in such cases against the executor or administrator. The 7th section provides that all claims exhibited, rejected *282 and not prosecuted, and all demands which might have been exhibited, but were not, shall be forever barred, and that no action against any executor or administrator of any such estate shall ever be sustained otherwise than in this act is provided. There is then a proviso, “ that nothing herein contained shall be construed to impair any remedy of a creditor against the heirs or devisees of any such estate, whose demand could not be allowed by the commissioners, because the same depended upon a contingency which had not happened before or during the time allowed to the creditors to prove their demands.” 1 N. H. Laws 364.

The claim of the plaintiff depended upon a contingency which had not. happened at the expiration of the commission. He is, therefore, within the saving of this proviso, if he has by any other law a remedy ; and the question is, what remedy he has against the heirs or devisee of the estate.

We have no statute upon this subject. By the common law the executor was to collect and convert the personal estate into money, and pay the debts according to their priority ; but lands, unless expressly made chargeable, or assets, descended upon the decease to the heir, unless devised. In the latter case the devisee became entitled to them.

The executor or administrator could not sell the lands for payment of debts, unless expressly charged for that purpose.

When, however, the ancestor bound himself and his heirs in an obligation, the obligee might sue the heir or executor at his election, and have execution of the land descended to the heir.

But if the heir, before an action brought against him, had aliened the assets, the obligee was without remedy ; and if the ancestor had devised the lands, the creditor by the common law could not reach them in the hands of the devisee, and had no remedy against heir or devisee.

To remedy the evils arising from this state of the law, the statute of the 3 and 4 Wm. & Mary, ch. 14, made pro *283 vision that where the heir ha,d aliened, he should be liable to such debts to the value of the land descended, in an action of debt; and the same statute, reciting that several persons had by bonds or other specialties bound themselves and their heirs, and had afterwards by will disposed of their lands to defraud their creditors, enacted that such dispositions should be deemed and taken only as against such creditor or creditors as aforesaid, his heirs and their heirs, &c., to be fraudulent and void. And that such creditors might be ena.~ bled to recover their said debts, enacted that, in the cases before mentioned, “ every such creditor shall and may have and maintain his, her and their action and actions of debt upon his, her and their said bonds and specialties, against the heir and heirs at law of such obligor or obligors, and such devisee and devisees, jointly by virtue of this act,” and that the devisee should be liable for a false plea, in the same manner as the heir. Bac. Abr., Heirs, &c., F, vol. 3, p. 26, 27; 6 Mass. R. 151 , Hays vs. Jackson.

By this statute the heir who had aliened was liable in an action -of debt, and the devisee also in an action of debt. No provision is made by it for maintaining any other action.

It is very clear that, by this statute, devisees as well as heirs were liable to the suit of creditors by bond and specialty only. A.nd in the argument of Judge of Probate vs. Brooks, 5 N. H. Rep. 84 , I suggested that as a reason why the statute could never have been adopted here, being contrary to the policy of our laws, which give no preference to creditors by specialty. The court, however, held otherwise, and if that statute were not adopted there would seem to be no remedy against a devisee here. And I am of opinion, upon farther consideration, that the remedy is extended to all creditors here by the 3d section of the act of 5 Geo. 2, “ for the more easy recovery of debts in His Majesty’s plantations and colonies in Americawhich enacts that after the 29th of September, 1732, the houses, lands, negroes, and other hereditaments and real estates, situate and being within. *284 any of the said plantations, belonging to any person indebted, shall be liable to and chargeable with all just debts, duties and demands, of what nature or kind soever, &c., and shall and majr be assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other specialty, and shall be subject to the like remedies, proceedings and process, &c. See N. H. Prov. Laws 235.

This statute having been made expressly for the colonies, is adopted by our constitution as one of the laws which had been used and practised on hére, and may be considered as part of our common law, being in amendment of it.

By the operation of this colonial statute, then, and by the proviso in the statute relative to estates administered in the insolvent course, any creditor whose demand depended upon a contingency, so that it could not be allowed by the commissioner, has a remedy here by the common law against the heir; and, by the statute 3 and 4 of Wm. <f Mary, a farther remedy against the heir and the devisee.

This action includes two devisees, and against them we see no reason why it may not well be maintained.

But it includes also others, who are children of John Harris, and who, it is averred in the declaration, have legacies by his will.

The plaintiff’s counsel argue that it may be supported against them, by the force of the term devisees in the exception, because that term is used to include those who have personal estate by the will, as well as those who have real estate. There is no doubt that the terms legatee and devisee are sometimes used as synonymous. The former is perhaps more often used as including the latter. It is so used in the clause of the statute cited by the plaintiff’s counsel, providing that where there is no heir or legatee of any estate of a person deceased, the same shall accrue to the State. 1 N. H. Laws 352.

But the term devisees, in the proviso of the statute for the *285 settlement of insolvent estates, cannot be considered as including legatees of personal estate, because such construction would be useless. The proviso is, that the act shall not impair the remedy of creditors, whose demands depend on a contingency against the heirs or devisees. It gives no new rights, and creditors had no right of action against legatees before its passage, which the act could impair.

There is no provision by the common law, or by any English statutes in amendment of it before the Revolution, or by our statutes, for the maintenance of an action at law by a creditor of an estate against a legatee, to recover his debt.

It is the duty of the executor or administrator first to discharge all the debts, and when they are paid he is to pay the legacies. If there is not sufficient to pay both, the legacies abate to the extent of the deficiency ; and “if the legatees have been paid their legacies, they are afterwards bound to refund a ratable part, in case debts come in more than sufficient to exhaust the residuum after the legacies paid.” See 2 Black. Com. 513.

The legacies are reached, for the payment of debts, through the executor or administrator, by retaining until the debts are paid, or if more come in afterwards, by recalling sufficient.

Our statute, respecting the settlement of insolvent estates, has cut off this remedy, so far as contingent demands which could not be allowed by the commissioner are concerned, by its provision that no suit shall be sustained against the executor or administrator otherwise than as is provided in that act. 5 N. H. Rep. 82 . As no judgment can be had against him, he has no occasion to recall any thing from the legatees to answer such demands, and the statute, in taking away this remedy through the administrator, has provided no other by which the legatees are made liable.

This is otherwise in Massachusetts. See 22 Pick. 505 ; 1 Metcalf 387.

Our statute, by saving the remedy against the heirs and *286 devisees, makes the real estate chargeable in their hands, but it goes no farther.

We have found no case where a legatee was held to contribute to an heir. Probably none is to be found, as in all but insolvent estates it is the duty of the administrator to pay, and he may recall the legacies for the purpose.

If a legatee were bound to contribute, or to pay the heir or devisee, that would not give the creditor a direct remedy against the legatee.

There is, perhaps, good reason why creditors should not have a direct remedy against legatees, as many legacies are very small, and more evil might result from authorizing suits directly against them, than accrue from the present state of the law upon this subject.

No way seems to be provided for a creditor to reach a distributive share of the personal estate in the hands of the heirs, where the suit against the administrator is taken away. See 13 Mass. R. 390 .

Perhaps the statute should be amended, so that, in case of estates actually solvent, a remedy should remain against the executor or administrator upon demands which could not be allowed by the commissioner.

Another question in the case is, whether the action should be brought against the heirs and devisees jointly, although the heirs take nothing by descent. The statute says the creditor may maintain his action against the heirs and devisees jointly.

Some of the cases -in equity would, on a first inspection, seem to hold that it is necessary to bring a joint bill or action against the heirs at law and devisees, although the heir have nothing. 1 P. Wms. 99, Gawler vs. Wade; 2 Atk. 125, Warren vs. Stawell; 1 Chitty's Pl. 40.

But we do not see the necessity of it, when it clearly cannot be maintained against the heir; and if the heir have nothing, he may plead Hens per discent. See 2 Tidd's Pr. 855.

*287 By heirs must have been intended those who actually inherited ; for, being an action ex contractu, if not maintained against all those sued, the plaintiff could not have had judgment against any of the defendants until the passage of a statute within a few years past. 11 Johns. R. 102, Livingston’s Exrs. vs. Tremper; 2 Saund. 7, note 4.

There is a case, 5 Day 419 , Booth vs. Starr, where a grantee in a deed, the covenant of warranty having been broken after the settlement of the estate of the grantor in the insolvent course, reached the surplus estate in the hands of the guardian or trustee of the heir by a bill in chancery.

But we need not consider at this time whether a creditor of an estate represented insolvent, whose demand depended upon a contingency, and could not therefore be allowed, can in any case come into equity to enforce payment against legatees who have received their legacies.

In the case in Connecticut, the rights of legatees were not in question ;—the estate was held in trust by a guardian of the heir; and there was no remedy at law against any devisee.

Upon the case now before us, the defendants are entitled to judgment upon the demurrer. But the plaintiff may, perhaps, have leave to amend, by discontinuing against all the defendants except the two who take the real estate as devisees.