
    MARGARET KEEFE v. EDMUND MALONE.
    Equity. —
    No. 4612.
    I. This bill was filed in equity by a creditor, for want of personal assets, to subject the real estate to the satisfaction of his claim; the defendant in the suit was the executor, and he was also the devisee of the real estate sought to be reached. The complainant had obtained a verdict in ,au action at law against the said executor fixing the amount of his debt, but no judgment was entered on such verdict, for the reason that there were no personal assets in the hands of the executor; and it was held that although the executor and devisee were the same person, ho was not concluded by the verdict, nor was it evidence against him, because his capacity as executor was distinct from his capacity as devisee.
    II. A verdict in an action at law against an executor or administrator is good only as against personal assets; and if it should appear to the court that there are not assets sufficient to discharge the whole amount, the judgment can be perfected only for such amount as he may have, or if there are other claims entitled to distribution, for a just proportion of the same; and if there should be no personal estate whatsoever, there can be no judgment; and such verdict against the executor cannot be used as evidence in a subsequent suit against said executor in his capacity of devisee.
    STATEMENT OE THE CASE.
    The complainant filed her bill on tbe 15th of September, 1875, setting forth the facts that a certain John Malone had died on or about the 1st day of June, 1871, seized and possessed of certain real and personal estate, and leaving a last will and testament, in which, after directing the payment of his debts and funeral charges, and providing for the payment of two legacies of $5 each, he devised and bequeathed all the rest and residue of his property, real and personal, to his son, Edmund Malone, (the defendant,) his heirs and assigns, aud named and appointed the said Edmund his sole executor; that letters testamentary on the estate of the said John were duly issued to the said Edmund, and that under the will he took possession of the real and personal estate of the deceased, and that he had partially paid the debts of the testator; that tlie deceased, at the time of his death, was indebted unto complainant in a large sum; that the executor had refused to pay the same; that she thereupon brought suit against him on the law side of the court, and that on the 9th flay of February, 1875, upon the trial, she recovered a verdict for $1;620 in the said cause, which was numbered 10,795 on the docket of law causes.
    The bill further alleged that the said claim was unpaid and unsatisfied; that the personal estate of the deceased was wholly insufficient to satisfy the same; and that unless the real estate of the deceased devised to the said Edmund Malone, being part of lot 14 in square 719, be subjected to its payment, she would be without relief in the premises.
    The bill prayed for an account, &e., and for a sale of the realty and the satisfaction of complainant’s debt out of the proceeds, and for general relief.
    The defendant interposed h demurrer to the bill, assigning for cause, that it did not appear by the bill that complainant had exhausted her remedy against the personal estate of the deceased, nor what amount of said personal estate would be applicable to said alleged indebtedness.
    The demurrer was overruled, and the defendant answered, admitting that he had qualified under the will as executor, and had as devisee taken possession of the real estate; that all the personal estate of the deceased which had come into his hands was the sum of $5; that he had paid the funeral expenses and some small debts of the deceased, and that the complainant’s claim was wholly unpaid; that he had spent certain sums for improvements on the real estate devised to him since it came into his possession, and he asked that this amount, with the amount of debts and funeral expenses paid, be allowed him in case of a sale.
    He further set up in the answer that on the trial at law a paper-writing, purporting to have been signed by the deceased, was introduced in evidence, and that it was on this written acknowledgment that the jury found their verdict; that he had never seen the paper until the time of the trial, and that its production was■ a surprise; and lie further averred that the said paper-writing was a forgery, and that there was no foundation for the claim; that judgment on the verdict is only good against the personal estate, and is no evidence whatever in this proceeding against the real estate; and the answer finally pleaded the statute of limitations.
    Upon the hearing at the special term a decree was passed dismissing the bill, and from this decree the complainant appealed.
    The case came on for hearing at the last general term, and the court directed a reargument.
    
      Hugh T. Taggart and Frank T. Browning, with whom was W. D. Davidge, for complainant.
    Where there is an insufficiency of assets in the hands of an executor or administrator" to pay debts, a court of equity will decree a sale of the real estate which has descended to an heir or been left to a devisee. (Tyson v. Hollingsworth, 1 H. & J., 469; 4 G. & J., 295; 10 G. & J., 65.)
    
    In the latter case Gibson v. McCormick — it was held suffi“cient in the bill to charge the existence of the debt and the exhaustion of the personal estate, and that it is not necessary to provide for the coming in of other creditors, nor to take a preliminary account of the disposition of the personal estate in passing a decree for a sale.
    In 4 Gill and Johnson the.court says that the personal estate of a deceased debtor is the natural fund for the payment of debts, and must in ordinary cases be first resorted to.
    In the present case complainant followed that remedy until it became clear that the personal estate was insufficient. Until this was demonstrated the right of action against the devisee was not complete. (2 Hill Ch., 457.)
    The devisee is not entitled to any allowance for improvements. He simply holds the property as a trustee.
    In Gibson v. McCormick, 10 G. & J., 65, above cited, it is held that a purchaser from a devisee is bound to take notice of the existence of claims, and will buy at his own risk. The devisee deals with the property at the same risk.
    The devisee is a mere volunteer holding the estate subject to all the equity to which it was‘liable in the testator’s hands. (3 Marsh., 53(h)
    The defendant is estopped from again • putting in issue matters that have been once tried and determined on the law side of the court. He then had the opportunity of making a defense, and the capacity iu which he was sued was immaterial. He was the real and only party in interest, aud was bound to exhaust his defenses. In doing, so he was endeavoring to protect the real estate in his hands from ultimate liability.
    As to the estoppel, see 3 Abbott’s N. Y. Dig., 461; Big. on Est, p. 26; Freem. on Judg., p. 262; Chicago v. Robbins, 2 Black, 423; Corcoran v. Chesapeake and Ohio Canal Company, 4 Otto, 741; Duchess of Kingston's Case, 2 Sm. L. Cases.
    . The proceedings on the law side of the court cannot be collaterally impeached. It must be done directly by bill in chancery, petition for new trial, or writ of error. (Christmas v. Russell, 5 Wall., 304.)
    The plea of the statute can only be insisted upon to the time of bringing the action against the defendant as executor. (Peck v. Wheaton, Mort. & Yerg., 353; Hill v. Tucker, 13 How., 467.)
    In Hill v. Tucker, 13 How., 467, the court refers to the ease of Nixon v. Aspden, 4 How., 467, and to Stacey v. Thrasher, 6 How., 44, in which it says that the court treated fully the question as to the privity between administrators deriving their commissions from different political jurisdictions, and held that as between them there was no privity, and discusses the distinctions between the executor of a testator and one called upon to administer the estate of an intestate; and it is held that there is a privity between executors and the same responsibility as to creditors, though they may have qualified iu different sovereignties; and the court held that where a man had died in Virginia, owning property in said State aud in tbe State of Louisiana:, and named certain parties as executors of his will, some of whom resided in one State and some in tbe other, and who qualified each in their respective States, and a creditor having sued the executors in Louisiana on a judgment recovered agaiut those in Virginia, a plea of the statute would not be allowed. But the language of the will creates a charge upon the land for the payment of debts, and the statute is not a bar in such a case. (Bank v. Beverly, 1 How., 151.)
    The decree should be reversed; the court should aid tbe verdict, and a decree be entered for the sale of the land as prayed.
    
      William F. Mattingly, for defendant.
    It has been uniformly decided that a judgment at law against the executor is no evidence at all against the heir at law or devisee in a proceeding against the real estate. (Gaither v. Welch, 3 G. & J., 256; Binley v. Staley, 5 G. & J., 432; Collinson v. Owens, 6 G. & J., 4; Hardwood v. Rawling's Heirs, 4 H. & J., 126; Duvall v. Green, 4 H. & J., 270.)
    Although the executor and devisee are the same person, this cannot alter the rule, because in one suit he is a party as executor, in the other as devisee. The subject-matter of the suit is different, being the personal estate in one case and real estate in the other. (Aspden v. Nixon, 4 How., 497.)
    A court of equity will not lend its aid to enforce the collection of a judgment obtained by fraud and forgery.
   Mr. Justice Wylie

delivered the opinion of the court:

Malone, the defendant, was both executor and devisee under the will of his father. There was no personal estate except a very small amount, and the whole of the testator’s real estate was given to him by the will.

The plaintiff brought an action at law against him, as executor, to recover the amount of a debt which she claimed to be due her upon a certain paper, which she set up as having been signed by the testator a short time prior to his death. The defendant appeared to the action, and on the trial attempted to show that this paper was a forgery; but the verdict was against him for the amount claimed.

No further proceedings were had in the action, nor was a judgment of any kind ever entered in pursuance of the verdict, for the reason, doubtless, that it was manifest there were no personal assets in the hands of the executor to be reached by such proceedings. The plaintiff having thus obtained a verdict at law against the defendant as executor, subsequently filed the present bill in equity against him in his character of devisee, with a view to subject the real .estate to the payment of this debt.

In this suit defendant pleaded the statute of limitations, and disputed also the validity, of the complainant’s claim. The latter relied mainly on the effect of the verdict, claiming that it -was conclusive. The coui’t below held that the verdict was not conclusive, and for other reasons dismissed the bill.

Unless that verdict was conclusive, we think the decree below should be affirmed; for a great preponderance of evidence is against the validity of the claim, and before the institution of this suit it was barred by the statute of limitations.

In Ingle v. Jones, 9 Wall., 495, the court say: “It is insisted by the counsel for the appellants that the judgment is erroneous in form, and is iu fact only interlocutory. This objection is well taken. According to the statutes of Maryland, which are in force in the county of Washington, the judgment, under the circumstances, should have been entered only for assets as they should thereafter come into the hands of the administrator. But this fact is immaterial. The case is governed by the local law. That law makes the proceeding against the administrator and the heir, when the latter proceeding is necessary, entirely independent of each other. The duties of the administrators are confined to the personal estate, and never beyond it. If that be insufficient to discharge the debts, and it be necessary to resort to the realty of the deceased for that purpose, a proceeding against the heir must be instituted. In that event, whatever has been done by the administrator is without effect as to the property sought to be charged. A judgment against the administrator is not evidence against the heir. The demand must be proved iu all respects as if there had been no prior proceeding to effect its collection, and the statute of limitations may be pleaded with the same effect as if there had been no prior recover}’ against - the personal representative.” (Stats. of Md., 1786, 1798; Collinson v. Owens et al., 6 G. & J., 4; 8 Pet., 528.)

In this opinion the court refers to the local law under the statutes of Marylaud for the grounds of its decision in that case, without quoting its language. But since, in the present suit, the defendant bears the duplex character of executor and of devisee, and in the action at law' had the opportunity of defending against the claim of the plaintiff, and did make such defense, it is important to ascertain from the statutes exactly the effect of a verdict against the personal representative.

By the act of 1798, ch. 101, sub-ch. 8, sec. 7, it is enacted that “in no action brought against an executor or administrator shall it be necessary for him to plead plene administravit, or anything relative to the assets, or for the plaintiff or plaintiffs to reply to such plea.” The next section following is in these words: “And if the verdict of the jury on the.issue joined he against the executor or administrator, or if he shall be willing to confess judgment, and the debt or damages which the deceased (if he or she were alive) ought to pay be ascertained by verdict or confession, or otherwise, the court before whom the action was brought shall thereupon assess the sum -which the executor or administrator ought to pay, regard being had to the amount of assets in his hands and the debts due to other persons; and if it shall appear to the said court that there are assets to discharge all just claims against the deceased, the judgment shall be for the whole debt or damages found by the jury, or confessed, or otherwise ascertained, and costs; and if it shall appear to the court that there are not assets to discharge all sueli just claims, the judgment shall be for such sum only as bears a just proportion to the amount of the debt, or damages and costs, regard being had to the amount of all the just claims and of the assets; that is to say, as the amount of all the said claims shall he to the assets, so shall be the amount of the said debt or damages and costs be to the sum required, for which judgment shall be given.”

Section 9 proceeds to provide the instrumentalities and direct the methods by 'which the objects of the preceding section are to be carried into effect.

The object, therefore, of an action at law against an executor or administrator, in this District, is to reach the personal estate in his hands, and the subject-matter of such an action is the personal 'assets. If the personal estate be sufficient to pay all debts, the plaintiff may have a judgment for the whole amount of his claim, and a fieri facias may be issued and levied upon the personal property of either the deceased or of the executor. If the persoual estate be insufficient to pay all the debts, then the judgment will not be for the whole amount of the verdict, but only for a proportional part. If it appear to the court that there is no personal estate whatever, then there can be no judgment for any amount, and that -was the case in the present instance. There was no judgment on the verdict, and, under the circumstauees, there could be no judgment. And a verdict alone, -without a judgment, can never be set up as res adjudícala in a subsequent suit.

Besides this, in Aspden v. Nixon, 4 How., 407, the Supreme Court of the United States held, in accordance with the view taken by the vice-chancellor in Burrs v. Jackson, that to render a former adjudication conclusive, it must be for the same matter, between the same parties, aud for the same purpose. This opinion was cited and recognized in Washington Steam-Packet Company v. Sickles, 24 How., 383.

Other authorities can be found which apply the doctrine of estoppel with greater latitudejhan this, but this court is bound absolutely by the decisions of its own superior.

The decision in Corcoran v. Chesapeake and Ohio Canal Company, 4 Otto, 741, has been pressed and relied on as a later and contrary decision upon this subject. Mr. Corcoran was trustee, named in a deed of trust from the Chesapeake and Ohio Canal Company to secure a large amount of bonds which had been issued by the company. He was also a holder of many of the bonds in his own right. He brought suit in this court, on behalf of himself and others in like situation, to recover arrears of interest which he claimed to be due on these bonds. The same matter had been decided by the Court of Appeals of Maryland in a suit in which he was made a party defendant, in his capacity of trustee, and the decision was against him there. This adverse decision was pleaded by the company in answer to his bill in this court, and it was held by the Supreme Court, that the decision in Maryland was conclusive against him here, notwithstanding he was now suing in his individual capacity and the Maryland decision was against him in his capacity of trustee.

But the difference between that case and the one we are now considering is this, and it is fundamental: that in Mr. Corcoran’s case the subject-matter of the controversy was the same in both suits, viz., the interest coupons of the company’s bonds; in the present case, the subject-matter of the action at law was the personal estate of the testator, and the subject-matter of the suit in equity is the real estate of the debtor.

The reason assigned for holding the Mai’yland decree conclusive is stated with great force and clearness by Mr. Justice Miller, as follows:

“ It would be a new and very dangerous doctrine in the equity practice to hold that the cestui que trust is not bound by the decree against his trustee in the very matter of the trust for which he was appointed. If Corcoran owned any of these bonds and coupons then, he is bound because he was representing himself. If he has bought them since, he is bound as privy to the person who was represented. (Kerrison v. Stewart, 98 U. S., 155.)”

In the present case the defendant is not bound as to the real estate by the verdict in the action at law, because in that action he represented only the personal estate, but in this the real estate is the subject-matter of the controversy.

Decree below affirmed.  