
    *Poindexter’s Ex’ors v. Green’s Ex’ors.
    December, 1835,
    Richmond.
    (Absent Tucker, P., and Brooke. J.)
    Equity Jurisdiction — Land Devised Charged with Debts —Case at Bar. — P. as surety for M. by covenant binding’ his heirs, warrants title of slaves to G. and after, by will, charges his real estate with his debts, and devises it subject to such charge; the slaves being recovered from Q.'s executors by title paramount, and sold under a decree in chancery for 1940 dollars, G.’s executors, without establishing their claim in an action at law against P’s executor, file bill in equity against him and P.’s devisees, suggesting deficiency of personal assets, and praying an account thereof, and that the debt of 3940 dollars may be satisfied out of the real estate: Held, the case is properly relievable in equity.
    Bill for Discovery and Account — Against Executor— By Creditor at Large- -Quere. — Whether a creditor at large can maintain a bill in chancery against the executor of the debtor, for a discovery and account of assets, and satisfaction?
    Will — Charge of Debts — Land Devised. — Testator by his will, directs that all his just debts shall be first paid: this is a charge of the debts on the real estate devised, for which testator was bound as surety, as well as debts for which he was bound as principal.
    Life Tenant — Liability of — Claim against Estate- — Testator devises and bequeaths his estate to his wife for life, remainder to others; and the wife was executrix; a claim arises against testator’s estate upon a covenant, and is ascertained, after the death of the tenant for life and executrix: Held, the tenant for life’s estate is not bound to contribute to the payment of such debt, or to keep down the interest thereof.
    Appellate Practice — Commissioner’s Report — Omission from Record. — Report of an account in Ghancery not excepted to by either party; decree according to the report; on appeal taken, the report is omitted from the record, according to the statute of 1825-6, ch. 15, § 11. Held, either party may call for the report in this court, and have it brought up; butif neither party does so, no objections can be considered, which the report would be necessary to explain or to support.
    By deed dated the 12th June 1767, and duly recorded in the county court of Lunen-burg, Abram Maury mortgaged a parcel of 130 acres of land in that county, and three slaves, two of whom were females, to Spiers Bowman & Co. to secure a debt he owed them, of ¿331. 12. 2.
    ^Afterwards, by deed executed by Abram Maury, Matthew Maury and Philip Poindexter, dated the 18th February 1783, one of the female slaves mortgaged to Spiers Bowman & Co. and three other female slaves, her children, were sold and conveyed to William Green ; and A. Maury, M. Maury and P. Poindexter covenanted, jointly and severally, for themselves, their joint and several heirs, executors and administrators, to warrant the title to Green. M. Maury and Poindexter were, in fact, the sureties of A. Maury, in this covenant of warranty.
    Spiers Bowman & Co. brought a suit against Abram Maury, in the county court of Lunenburg, to foreclose the mortgage, shortlj’ before the revolution; but, as they were british subjects, resident in G. Britain, the suit was suspended by the war. After the treaty of 1794, they revived their suit against the executors of Maury, who was then dead, and who by his will had empowered his executors to sell his real estate, and especially directed the payment of this debt to Spiers Bowman & Co. The county court decreed a sale of the mortgaged land to satisfy the debt; and it was accordingly sold in January 1807, and the proceeds applied in part discharge of the debt and interest; but there still remained a balance due to-the mortgagees, of 2367 dollars.
    Hopkirk, surviving partner of Spiers Bowman & Co. then exhibited his bill against the executors of Maury, the mortgagor, and Green, the purchaser under the deed of February 1783, in the circuit court of the U. States for the district of Virginia, — setting forth the previous history of the transaction ; alleging that Green was then in possession of sundry slaves, which were the increase of the female slaves mortgaged to Spiers Bowman & Co. by the mortgage of June 1767; and praying a decree for the sale of those slaves to satisfy the balance of the mortgage debt. Green appeared and answered the bill; but he died pending the suit, and it was revived against *his executors. The court decreed, that the slaves held by Green and by his executors, which were the increase of the mortgaged slaves, should be sold by the marshal, and the proceeds applied to the satisfaction of the mortgage debt. The slaves, now seven in number, were accordingly sold in December 1814, for 1940 dollars, and the net proceeds of sale were paid to Hopkirk.
    Whereupon, Green’s executors exhibited a bill in the superiour court of chancery of Richmond against Abram Maury’s executors, James Batte who, upon the death of Poindexter’s widow and executrix, had qualified as his executor, and the devisees in remainder of Poindexter’s real estate, — setting forth the deed of February 1783, executed by Abram Maury, Matthew Maury and Poindexter, conveying and warranting the slaves therein mentioned to Green, and binding the heirs of the warrantors; exhibiting the record of the suit of Hopkirk surviving partner of Spiers Bowman & Co. against them, in the federal circuit court, wherein they were evicted of the title to the increase of the slaves which had been so-sold, conveyed and warranted, to Green ; exhibiting the will of Poindexter, whereby he charged his real estate with his debts; representing, that the personal estate of Poin-dexter was whollj’ insufficient to pay the debt of 1940 dollars, the value of the slaves, which Poindexter had joined in warranting to Green; that Abram Maury’s executors had left Virginia, and it was unknown whither they had removed; that Matthew Maury had also long since left the state, and it was likewise unknown whither he had removed, or whether he was living or dead; and that A. Maury, M. Maury and Poindexter, having by the deed of February 1783, covenanted, jointly and severally, for themselves and their joint and several heirs &c. to warrant the slaves thereby sold and conveyed to Green, his executors were entitled to a decree against Poindexter’s executors and devisees, for *the whole debt of 1940 dollars due them on the covenant of warranty. Therefore, the bill prayed accounts of the real and personal estate of Poindexter, and that his real estate in the hands of his devisees, should, if necessary, be subjected to the claim of the plaintiffs, for the above mentioned sum of 1940 dollars with interest.
    The executors of Abram Maury were proceeded against as absent defendants, and the bill regularly taken pro confesso as to them.
    Batte, the surviving executor of Poindex-ter, answered, and stated, that he could not say with certainty, whether the personal estate of his testator was sufficient to discharge the claim set up in the bill; and he insisted, that, as the claim therein asserted was strictly legal, and a claim for unliqui-dated damages, the plaintiffs were not entitled to relief in equity.
    The devisees in remainder of Poindexter also answered, and stated, that Poindexter’s widow, Mary Poindexter, was also named an executrix of his will, that she had qualified as such, and afterwards married Green, the testator of the plaintiffs, whom she survived for a short time, and died leaving estate of her own; that the testator Poindexter by his will, bequeathed certain personal property to his wife absolutely, and then devised and bequeathed to her all the residue of his estate, real and personal, for life, with remainder to these defendants; and that thus, all the personal estate of Poindexter came to the hands of Green and wife, and Green, in right of his wife, held and enjoyed the whole of it, during his life, part under the absolute bequest thereof, to his wife, and an estate for her life in the residue, as well as in the testator’s real estate. And these defendants insisted, that, as Green had, by his intermarriage with Poindexter’s widow, executrix and legatee, become possessed of and enjoyed the property out of which the debt now claimed by his executors, *ought to have been satisfied, therefore they were not entitled to the relief they asked in their bill.
    Hereupon, Green’s executors filed a supplemental bill, making the executor of Mary Green, relict of their own testator, and relict and executrix of Poindexter, party defendant, and praying such relief against him, as the court should hold them entitled to. And this defendant appeared, and answered the bills.
    P. Poindexter, by his will, directed, that all his just debts should be first paid, out of such part of his estate as his executors should think proper to sell and pay them out of, and empowered them to sell such part as they should think fit for the purpose. He then gave his wife Mary, all the estate that came by her, clear of any in-cumbrance, in absolute property; and all the residue of his estate, that should be left after payment of his debts, for and during her life; remainder to the defendants in this cause, charged as his devisees. It appearing in the progress of the cause, that Matthew Maury died in Virginia, and it being suggested that he left real and personal estate, another supplemental bill was filed, making the persons said to be accountable for the same, parties defendants; but it turned out, in the sequel, that there was no estate of Matthew Maury to be found.
    The court having, upon a hearing, ordered accounts of the administration of Poindexter’s estate by Batte his surviving executor, of the administration of the same estate by Green and wife who vías the deceased executrix of Poindexter, and of the administration of Mrs. Green’s estate by her executor, — it appeared, by two reports of the commissioner, that the surviving executor had assets in his hands to the amount of 2723 dollars, principal and interest; and that the estate of Mary Green, the deceased executrix of Poindexter, was charged with the balance of the debt claimed by the plaintiffs, and that her executor had ample assets to pay that balance.
    *The defendants charged in these reports, took no exceptions to them ; and, therefore, the accounts were not made a part of the record sent to this court, being omitted in pursuance of the provisions of the statute of 1825-6, ch. 15, Supp. to Rev. Code, ch. 103, | 11, p. 132.
    
    The chancellor, upon the final hearing, decreed, according to the commissioner’s reports, that the surviving executor of Poindexter, and the executor of Mary Green his deceased executrix, should pay the plaintiffs, the sum of 1940 dollars with interest from December 1813, and the costs; that is, that the surviving executor should pay the plaintiffs 2723 dollars with interest from the 31st November 1824 (that being the amount of assets appearing by the reports to be in his hands), and that the executor of Mary Green should pay them the balance of the debt, interest and cost decreed, which should remain after applying the payment decreed to be made by the other defendant. From this decree, the surviving executor of Poindexter appealed to this court.
    The cause was argued here, by Taylor and John Robertson for the appellant, and Leigh for the appellees.
    And Stanard was retained as counsel for the executor of Mary Green, who did not appeal.
    1. The counsel'for the appellant moved, that the last report made by the commission er should be brought *up; which was ordered. And they shewed, by that report, that in decreeing 2723 dollars with interest &c. against the appellant, the court had decreed compound interest. They also shewed, that the debt of 1940 dollars, ought to have borne interest from December 1814, instead of 1813. Whereupon, Leigh admitted, that the decree ought to be corrected in these particulars.
    2. The appellant’s counsel then made other objections to the decree, which could neither be supported, explained nor answered, without having the first report of the commissioner before this court. Leigh said, this court could not consider such objections, unless the appellant’s counsel would move to bring up that report. This they declined "to do.
    3. The last report (which was brought up by order of this court) shewed, that the money in the hands of Poindexter’s surviving- executor, arose from the profits of some few slaves which had accrued during the long pendency of the suit in the court of chancery; and that only one of those slaves was living at the date of the last report. The appellant’s counsel said, that if the decree was right in principle, that slave should have been subjected to the plaintiff’s demand; and inferred from the circumstance of there being no decree against the appellant for the value of that slave, that the decree must be wrong or incongruous. Leigh answered, that it did not appear, whether or no, the slave was liv--ing at the time of the decree; and, besides, the appellant had no right to complain, that he was not charged with the value of this slave;- — -that the objection could only avail for the other defendant, the executor of Mrs. Green, who was decreed to pay the balance which should be left unpaid by the appellant; and he acquiesced in the decree.
    4. The appellant’s counsel next insisted, that the personal estate bequeathed by the will of Poindexter to his widow, and the life estate in the residuum thereby given *to her, ought to be made to contribute to the payment of this debt; and that as Green, by his marriage with the widow, acquired the whole of her interest, his estate ought to be held to such contribution; at least, it was his duty to keep down the interest of this debt, accruing during his life, — -upon the same principle, that where an estate under mortgage is devised to one for life with remainder to another, the tenant for life must apply the rents accruing in his time, to keep down the interest of the mortgage debt.
    To which it was answered, that it was plain from Poindexter’s will, that the estate he gave his wife absolutely, clear of any incumbrance, was, as between her and his legatees and devisees in remainder, exempt from his debts: that, as to the application of the life estate given to the widow to pay this debt, or of the profits thereof to keep down the interest of it, that could not have been done, since the debt was not ascertained to be due, till after the death of both Green and his wife: that the ground on which Mrs. Green’s estate was held liable for the balance of this debt, and only for the balance, after applying to it the amount of assets in the surviving executor’s hands, could only be ascertained by bringing before the court the first report of the commissioner, in which her estate was charged with that balance; neither, without that report, could it be ascertained, whether Green got any part of the property bequeathed to his wife by her first husband’s will. It might appear by that report, that that property had been settled on Mrs. Green to her separate use; or that she incurred a debt to her first husband’s estate, in the course of her administration previous to her second marriage; or that Green and wife had discharged other debts of Poin-dexter, to a large amount, — which, indeed, was the truth of the case. And the appellant’s counsel declining to call for the report, and no exception having been taken to it in the court of chancery by any party, this court must *take it, that the chancellor was right in making his decree against the parties according to the reports.
    5. But the main question was, whether the bill shewed a case which was properly relievable in equity?
    The appellant’s counsel said, that Green’s executors having recovered no judgment at law against Poindexter’s executors, were creditors at large; and coming alone to assert their single claim against the personal assets of their deceased debtor, not for an account and distribution of the assets among themselves and the other creditors, they could not be entertained in equity; for to admit them to do so, would be to assert a jurisdiction in the courts of equity in every case of a demand against a dead man’s estate. They cited M’Kay v. Green, 3 Johns. Ch. Rep. 56, and Thompson v. Brown, 4 Id. 619, 631. Moreover, Green’s executors came into equity, to assert a claim for unliquidated damages for the breach of a covenant of warranty; and, they said, it was well settled, that courts of equity were not the proper tribu-’ nals for the trial of claims sounding in damages. Livingston v. Livingston, 4 Johns. Ch. Rep. 287; Webster v. Crouch, 6 Rand. 519; Robertson v. Hogsheads, 3 Leigh 667. This bill, however, professed to have for its object, to charge the real estate of Poindexter in the hands of his devisees; but, in fact, there were sufficient personal assets to satisfy'the claim, and the suggestion in the bill to the contrary, could not help the case; and as to the allegation, that Poindexter’s will charged his real estate, it was doubtful, whether it provided for debts not his own but for which he was only bound as surety; and, besides, the bill, in that aspect, ought to have called all the creditors before the court, for a rateable distribution of the real equitable assets.
    Leigh said, that this was a claim founded in a contract, namely, a covenant of warranty, and no otherwise a claim for damages than every claim in assumpsit on simple contract; and, in truth, the claim was a liquidated *one. This bill, as against the personal representative of Poindexter, was “for satisfaction of a duty out of assets;” which lord Hard-wicke said, in Bishop v. Church, 2 Ves. sen. 106, a plaintiff might maintain “either on a debt due in point of law, and for which there was a legal remedy, or where equitable; for though, in general, a legal demand cannot be turned into an equitable, yet if a demand is made out of assets, he is entitled to an account of assets here; and then this court will not put him to sue doubly, in one court to have an account of assets, in the other satisfaction, but gives remedy here.” And, he contended, any creditor by contract might maintain a bill in equity against the personal representative of his debtor, for an account of assets, and satisfaction. 1 Madd. Ch. Pract. 579-581; Ashurst v. Eyre, 2 Atk. 51, 3 Id. 341; Plun-ket v. Penson, 2 Atk. 51; Clarke v. Or-monde, and Beauchamp v. Huntley, Jacob 108, 546, 4 Condens. Eng. Ch. Rep. 47, 259. But, however this might be, the creditor here went into equity, alleging a deficiency of personal assets, and claiming- to charge the real estate in the hands of the devisees, on the grounds, that the real estate was bound for the duty, by the covenant of warranty binding the heirs, and that the de-visor had charged his lands with all his debts. The devisees were trustees for the creditors; and there could be no doubt, that such a case was proper for relief in equity, and indeed, that equity alone could administer the relief. It was true, it turned out that there was a sufficiency of personal assets; but the personal representative himself, in his answer, expressed his doubts whether there was or not; and the personal assets to satisfy the decree arose out of profits which accrued pending the suit.
    
      
      Creditors at Large — Fraudulent Conveyances — Impeachment — Former Rule. — Previous to the statutory enactments, it was the settled rule of the courts, that a creditor at large could not resort to a court of equity, to impeach any conveyance made by his debtor, on the ground of fraud. If real estate was the subject of the conveyance, a judgment was regarded as sufficient. If goods and chattels or any equitable interest therein, although incapable of being levied on, were embraced in the conveyance, the creditor was required to take out execution and have it levied or returned, so as to show that his remedy at law had failed, Wallace v. Treakle, 27 Gratt. 486; Chamberlayne v. Temple, 2 Rand. 384; Kelso v. Blackburn, 3 Leigh 300; Rhodes v. Cousins, 6 Rand. 189; Tate v. Liggat, 2 Leigh 84.
      It is said in Duerson v. Alsop, 27 Gratt. 236, citing the principal case, that whatever doubt there may be as to the right of a single creditor at large to bring a suit in a court of equity for an account of assets and the payment of his debt, there is no difficulty as to the jurisdiction where the bill is filed in behalf of the complainant and all other creditors who may come in and prove their claims.
      Same — Same—Same—Present Rule. — But the statutes in Virginia and West Virginia now authorize suits by creditors at large. Va. Code 1887, sec. 2460; W. Va. Code, ch. 133, sec. 2. See Wallace v. Treakle, 27 Gratt. 479 (followed in Johnston v. Straus, 26 Fed. Rep. 68, 69); Tuft v. Pickering, 28 W. Va. 330; Watkins v. Wortman, 19 W. Va. 82.
      See monographic note on “Creditors’ Bills” appended to Suckley v. Rotchford, 12 Gratt. 60.
    
    
      
      Wills — Charge of Debts on Lands, — See mono-graphic note on “Marshaling Assets” appended to Carrington v. Didier, 8 Gratt. 260.
    
    
      
      Life Tenant — Duty to Pay Interest on Encumbrances. —In Simmons v. Lyles, 32 Gratt. 757, the court said: “One of the duties devolving almost universally upon a tenant for life is to prevent the buildings and fences from going to decay by proper and suitable repairs, and also to keep down the interest accruing upon existing encumbrances. The rule with regard to the interest is said to be so inflexible that the tenant is required to pay it, even if it takes the whole of the rents and profits of the estate. Poindexter's Ex’ors v. Green's Ex'ors, 6 Leigh 504.”
    
   CARR, J.

The general question, whether any creditor at large can file a bill in equity against an executor, for an account of assets, and satisfaction of his claim, *was very much discussed at the bar. It is a question of great importance, never settled by any decision of this court; and I should regret exceedingly that we have but a bare court, if it were necessary to act upon it in this case; but I do not think it is necessary. The bill of sale of February 1783, binds the parties, their heirs &c. jointly arid severally. Philip Poindexter, by his will, charged his whole estate, real and personal, with the payment of his debts. The bill is filed against his real and personal representatives ; it calls for a discovery of the personal assets, charges that they are insufficient to satisfy the claim, and prays, in case of such deficiency, a sale of the land. This makes the question of jurisdiction to rest on ground very different from the general point discussed at the bar. A charge of this kind in a will, converts the real estate into equitable assets, which can be reached only by a bill in chancery; and in such a case, the door of equity is open to creditors of every description to come in and call for an execution of the trust. A suit at law to establish the debt, is never considered a necessary prerequisite to such bill. The books are full of cases of creditors at large, whether by bond, note or open account, coming into equity for satisfaction out of the land, where it is made equitable assets by the will. In such cases, it is proper to make the personal representatives parties also, that the personal fund, which is the natural one for payment of debts, being before the court, proper inquiries may be made, and care taken, that so far as it will go, it shall be applied in ease of the real estate. I cannot think it worth while to cite cases for this every day doctrine and practice of the court.

But does it affect the right of coming into equity, that the claim sounds in damages? Equity looks at the substance, not the forms, of things? It is true, the claim sounds in damages ; but it is for damages for the loss of property bought on a warranty of title, where there sis a clear standard by which to measure the claim. The plaintiff’s testator held certain slaves, which he had purchased upon the covenant of Poindexter to make good the title. These were taken from him by the decree of a court, under a prior lien, and they sold under the hammer, for 1940 dollars. Does it make any difference in equity, whether you call this damages, or by any other name? Every action of assumpsit sounds in damages, yet equity constantly receives such creditors upon a bill for satisfaction out of equitable assets. I do not think there is any weight in this objection.

The next objection to the decree, is, that the life estate of Mary Green was not made to contribute. The testator gave to his wife all the estate that came by her, to do as she pleased with it, free of all incum-brances ; and then gave her all the rest of his estate, left after paying his debts, for life. It is compared to the case of an estate incumbered by a mortgage, which is given to A. for life, remainder to B. in fee; where the rule is, that A. shall keep down the accruing interest on the mortgage, even if it takes the whole of the rents and profits, and shall not be permitted to throw it upon the remainderman. The rule is unquestionably so; but I think the analogy fails entirely. The mortgage is a certain existing incumbrance fixed upon the land, carrying an annual interest. The testator knowing of this charge, gives the land to one for life, and to another in fee. “As a question of intention,” says lord Thurlow, in Tracy v. Hereford, 2 Bro. C. C. 139, ‘the testator considered it as a fund to be divided, and that each tenant for life should leave the estate to his successor, in as good a condition as he found it; his intention was to give it subject to all reprizes; all reprizes must, therefore, be borne by each tenant, for life.” Again, in Ld. Penrhyn v. Hughes, 5 Ves. 107, lord Loughborough, after laying down the rule as perfectly settled, that tenant for life must keep down the accruing interest, says — “The *ground is, that the estate in the hands of tenant for life, liable to incumbrances, is in the first place amesnable, and may be made so by an application by the reversioners, to all the interest accrued upon incumbrances prior to that estate for life. It is very hard, I admit. He may lose all his interest. But it must always be remembered, that both the tenant for life, and the incumbrancers, have a right to have the estate sold ; and if so, then the tenant for life will have his interest in what remains of the money-produced by the sale; and it will be divided, as the law provides, in the proportions their interests bear to the estate.” Where is the resemblance between such a case and the one before us? The testator here, gives his estate to his wife for life, subject to his debts. If creditors sue and get judgments, of course, they must come out of the estate, and it may be, that this executrix paid many in this way. But the claim of the plaintiffs was one which Poindexter’s estate was not bound for, absolutely: he had warranted the title of the slaves sold by Maury: it was only in the event of that title proving bad, and the slaves being lost in consequence of the defect, that his estate would be liable; and this liability must be established by a suit. Until it was so established, the tenant for life, who was also executrix, was. not called on to pay it, and would not have been justifiable in paying it. This did not happen in her lifetime. She was never, therefore, in default in this respect; never bound for the debt during her life; and of consequence, I think, her life estate cannot be called on to contribute, when, in after time, the claim was established. On her death, Batte, the surviving executor, qualified and took possession of Poindexter’s estate.; and in his hands it is certainly liable, and the first fund to be applied in the discharge of Green’s claim.

I do not consider the accounts or reports at all before us, farther than merely to look at them on the subject of *the compound interest and other errors in detail; which, it was admitted, ought to be corrected.

The other judges concurred. Decree reversed with costs, for the acknowledged errors in the details, and a corrected decree for the appellees entered.  