This case came before the Court on a rule to show cause, why the
Sheriff should not be directed to postpone the sale of lands taken
in execution in the hands of the purchasors from John Smith, the
eldest son of Robert Smith, the intestate, till all the lands
remaining unsold in the hands of the other children of Robert
Smith, should be sold by virtue of the execution.
After argument, the President stated the circumstances of the
case, and delivered the opinion of the Court, in the following
manner.
Shippen, President:
The facts agreed on both sides in this cause, are, that Robert
Smith died intestate indebted to several persons, and possessed of
a considerable real estate, but not of sufficient personal estate
to pay his debts; that his administrators applied to the Orphan's
Court for an order to sell certain parts of the real estate,
sufficient to pay the debts and maintain the children; that such
order was accordingly obtained, and that part of the real estate
was sold for that purpose; that a subsequent application was made
to the Orphan's Court for a division of the remainder among the
children; that the part alloted to John Smith, the eldest son, on
that division, was by him sold and conveyed to bona fide
purchasors; and that John Smith was himself an administrator, and
neglected to discharge all the debts out of the sum arising from
the sale of the lands ordered to be sold by the Orphan's Court, but
wasted the money, and is supposed insolvent. [481-Continued.]
Some of the creditors of Robert Smith, whose debts remained
unpaid, have since obtained judgments, and issued executions
against the lands of the intestate, as well those sold by John
Smith, under the order of division, as against the lands remaining
unsold in the hands of the younger children.
Three questions have arisen upon the argument.
1. Whether, upon the death of the intestate, his lands
were bound to the payment of the debts, in such a manner, as that
they may be taken in execution and sold, notwithstanding the heir
may have previously sold and conveyed the same to bona fide
purchasors?
2. Whether the purchasors from one of the heirs, is bound
to contribute to the other heirs?
3. Whether the purchasors under the order of the Orphan's
Court, are likewise bound to contribute?
I. In order to solve the first question, it will be necessary to
take into view the several acts of Assembly which subject lands to
the payment of debts.
The act of 1700 subjects all lands of debtors to sale on
judgment and execution against them, their heirs, executors, or
administrators.
Page 1 U.S.
481, 482
The act of 1705 repeats the same provision, with the
restriction, that, if the clear yearly profits will pay the debt in
seven years, the land shall be delivered to the Plaintiff upon a
reasonable extent. Under these acts the real estates of debtors
have been held liable to sale by execution, whether they be living,
or dead; if living, under a judgment and execution against
themselves; if dead, under a judgment and execution against their
heirs, executors, or administrators. By the Intestate Act, passed
likewise in 1705, there is a particular provision in case of
intestacy, that the Administrator may sell such parts of the real
estate as the Orphan's Court should allow of, as sufficient to pay
the debts, maintain the children, and improve the residue of the
estate. By this act the surplusage, or remaining part of the
intestate's lands, not sold, or ordered to be sold, by virtue of
that act, is directed to be divided among the intestate's widow and
children, in the proportions therein expressed. Although the
surplusage only is here directed to be divided, yet the
construction has always been, that where there are no debts, or
where they have been otherwise satisfied, the division shall
notwithstanding take place, the act being considered as a general
law of descents and distribution. It is contended, on one side,
that the word surplusage in the latter act implies strongly that
the remaining part only of the real estate, after payment of debts,
is vested in the heirs, and that they shall take nothing till the
debts are paid; or, if they do take them, it must be cum onere. On
the other side, it is said, that the act was made for a particular
purpose, that the word surplusage relates only to the remainder of
the lands not ordered to be sold by the Orphan's Court, and that
there are no words which express or imply the surplusage to mean
after payment of debts. Upon the former construction, however, it
is urged, that, immediately on the death of the intestate, there is
a Lien created on all the real estate in favor of the creditors.
Without entering into the doctrine of Liens under the words of this
act, which would only affect the estates of persons dying
intestate, I would choose to consider the question on broader
ground; that is, how far, and in what manner, the real estate of
deceased persons, whether they die testate or intestate, is bound
by our laws to the payment of their debts. That such real estates
are a fund for the payment of debts, is not controverted; but, it
is contended, that they are no otherwise a fund after the death of
the debtor, than in his life time; and that as he himself could
have aliened before judgment, so his representatives could likewise
alien, and that the lands are not specifically bound, till judgment
against the executors or administrators; that
Page 1 U.S.
481, 483
if, indeed, they are then unsold, they remain a fund, but if
aliened, no remedy remains except a personal one against the
seller.
The real and personal estates are both funds for the payment of
debts. The personal estate, there is no doubt, is immediately bound
on the death of the debtor; it goes into the hands of the executor,
or administrator, and is assets in his hands for the payment of
debts; specific personal property, being in its nature perishable,
may be sold for that purpose, and the executor, or administrator,
is personally bound to answer for the value. In the case of the
administrator, he must give security before the administration is
committed to him: In the case of an executor, being intrusted by
the testator, he gives no security in the first instance; but, in
case of probable insolvency, he may be compelled likewise to give
security. In both cases, the whole personal estate, or its value,
is bound, from the moment of the debtor's death, to the payment of
his debts. The real estate is likewise confessedly a fund for the
payment of debts. It is a fund, however, that does not actually go
into the hands of the executor, or administrator, as assets in the
ordinary course; but it is a fund, made such by positive law, in
another form; that is, creditors may issue executions, and sell it
for the payment of their debts, on a judgment against the executor,
or administrator; for, it is not necessary, nor has it been usual,
to bring the action against the heir. The lands, however, go into
the hands of the heir or devisee, who gives no security, and
between whom and the creditors there is no privity: They are made a
fund for the payment of all debts, and must necessarily have been
intended by the Legislature to be a certain, and not a precarious
fund; for, since it is declared, that the creditors may take them
in execution on a judgment against the executor, or administrator,
it must be meant that they should have the fruit of that execution;
and as there is the same reason under the law, that they should be
equally liable with the personal estate from the death of the
debtor, they must necessarily be liable in such a manner as to be
answerable at all events, which can no otherwise be, than by
considering them as specifically liable in whosever hands they may
be. If it were otherwise, they would prove no fund at all; for the
devisee, or heir, knowing that if judgments were obtained, he
should lose his land, would, in every instance, where he
apprehended debts beyond the amount of the personal estate,
immediately sell them, and thereby entirely defeat the intent of
the Legislature, in making them a fund for the payment of
debts.
The mischief of this doctrine is still more striking, if we
consider, that the estates of the inhabitants of Pennsylvania, out
of the city of Philadelphia, are chiefly real estates, and if they
were immediately alienable by the heirs, without being afterwards
liable for the ancestors debts, few creditors to any amount would
ever recover their debts, although perhaps the debts may really
have been contracted on the credit of the lands.
Page 1 U.S.
481, 484
Another consequence might likewise follow, that where the father
dies indebted leaving sufficient real estate, and but little
personal, if the heir, or devisee, being likewise indebted on his
own account, takes the land in the manner contended for, then his
creditors by obtaining judgement against him, before his father's
can obtain judgement against the executors, will recover their
debts out of his father's lands, whose creditors would in that case
be entirely cut out. This would certainly be too unjust, and
repugnant to the spirit of our laws, ever to receive the sanction
of a court of justice. On these grounds, it is, as I take it, that
lands, of deceased persons, have always heretofore been considered
as liable to be taken in execution for debt, in the hands of a
purchasor from the heir, or devisee. It is a construction of the
law that has so long prevailed, that it would be now very dangerous
to unsettle it, as many titles to land may depend upon it. Although
there may not have been any express determination of this point,
yet a point has been determined which is within the reason of the
case. A widow's right of dower commences with her marriage; it is
held so sacred a right that no judgment, recognizance, mortgage, or
any incumbrance whatever, made by the husband after the marriage,
can at common law affect her right of dower: even the king's debt
cannot affect her. Yet it has been held under our acts of Assembly,
for making lands chattles for the payment of debts, that as to
lands taken in execution after the death of the debtor, the widow
is barred of her dower. If the widow whose right initiated with the
marriage, shall lose her dower in favor of creditors, by much
stronger reason the heir, whose right did not commence till the
death of the debtor, should be barred from taking the land
discharged of the debts. II. the second question in this case is,
whether, after a bona fide sale by one of the heirs, the purchasor
is bound to contribute in aid of the other heirs, whose land
remains unsold? Where there is equal equity in two contending
parties, it is always an unpleasant talk to decide between them;
and, in that case, there can be no satisfactory rule but the
strictum jus. If there should, however, be any laches on one side,
and none on the other, this, even on equitable principles, will
have considerable weight in the decision. The rules of
contribution, as they appear in Herbert's case in 3 Co, 13, are
these - If a man is seized of three acres of land and enters into a
recognizance, or statute, and enscoffs A of one acre, and B of
another, and the third descends to the heir; in this case, if
execution is sued only against the heir, he shall not have
contribution; for, coming to the land without consideration, he
sits in the place of his ancestor, and shall not have contribution
against any purchasor: But, if execution be sued against one of the
purchasors, he shall have contribution against the other purchasor
and the heir. So,
Page 1 U.S.
481, 485
if judgment be obtained against a man that dies leaving two
daughters, who make partition, in this case, if one only is
charged, she shall have contribution; for, as one purchasor shall
have contribution against another, so one heir shall have
contribution against another heir, for they are in equali jure. The
dictum, that the heir shall not have contribution against any
purchasor, clearly means any purchasor from the ancestor, and
cannot consistently with the case stated in Coke mean any other. If
then, one parcener shall have contribution against another
parcener, it is most clear, that one co-heir under our laws of
descent, shall have contribution against another co-heir. But a
distinction is made between a co-heir and a purchasor under him.
Every purchasor, except in some special cases, stands in the shoe
of the person he purchased from, and cannot have a better title
than he had; and, as to contribution, he holding under one of the
co-heirs, must be considered as in equali jure with the other
co-heirs.
One of the special cases, where a purchasor stands in a more
favorable light than the person purchased from, is where there is a
secret trust, and the purchase is made without notice, and there
the purchasor shall hold the land discharged of the trust. But
there appears no similarity between that case and this, where the
law of the land, having made real estates chattles for the payment
of the debts of the ancestor, every purchasor from the heir must be
presumed cognizant of it, and is bound to take care, if he will
make the purchase, to be secured against such debts. If he neglects
this, he seems to confide in the seller that he hath both the will
and ability to do it.
The hardship upon purchasors may, in particular instances, be
great, but it may generally be prevented by a proper caution. Where
there has been a suspicion of outstanding debts, it has been very
usual to make the purchase under an execution. At any rate, the
fundamental security which the law has given to creditors should no
be destroyed, or the title of co- heirs affected, by the omissions,
or temerity, of purchasors.
It is here suggested, that there may be probably sufficient in
the hands of the younger children to pay the debts, without calling
on the purchasors. But, is it reasonable, is it just, or can it be
legal, that the younger children should be stript of all their
fortunes, and that the share alloted to the eldest son, who had no
better right of exemption than they, should not bear part of the
burden? especially, as those younger children had no participation
in the sale, or wasting the money; nor was it by any precaution
whatever in their power to prevent either; whereas it was in the
power of the purchasors to be indemnified, if they had thought
proper. Such a doctrine would enable the elder son, in most cases,
to lay the whole burthen upon the younger children, who are
frequently helpless; and, during their minority at least, prevented
from standing an equal chance with him.
Page 1 U.S.
481, 486
III. The remaining point to be considered, is, whether the
purchasors under the order of the Orphan's Court are likewise bound
to contribute? These purchasors, I acknowledge, appear to me to
stand in a very different light from the voluntary purchasors from
the eldest son. The law, for the benefit of the families and
creditors of persons dying intestate, has vested the Orphan's Court
with a power to direct the sale of certain parts of the intestate's
real estate for the payment of his debts. The same law has directed
the means of information to be given to the court, to prevent
imposition and the unecessary dismemberment of the real estate. The
power given to the Orphan's Court by this act is very great, and
ought to be discreetly exercised; but when the sale is made under
their order, it is certainly a good one. The administrator is
vested with as complete a power to sell the specified part of the
real estate, as he has by the common law to sell the personal; and
the purchasors from him ought to hold as securely in the one case,
as the other. To say, that, because the administrator is to exhibit
upon oath an account of the debts, therefore the purchasors are to
look to the payment of those debts, is in effect saying, that the
purchasors are to look to the legal exercise of the power vested in
the Orphan's Court, who may, unquestionably, impose such terms upon
the administrator, as are necessary to secure to the creditors and
children, the consideration money arising from the sales; and such
security has in fact been required in many instances by the
Orphan's Courts in Pennsylvania. Besides, if the purchasor is to
look to the payment of the debts, he must, likewise, look to the
other objects for which the land is to be sold; that is, the
education and maintainance of the children, and the proper
improvement of the residue of the estate; which no law founded in
reason could require.
The case of these purchasors, however, is not regularly before
the court; their lands have not been taken in execution, neither
are they comprized within the rule.
The rule, as it stands, must be discharged.
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