
    Foster and Wife, and Others v. Crenshaw’s Executors.
    Argued Nov. 23d, 1810,
    and reargued Sept. 20th, 1811.
    g. Debts of Decedent — Liability for — Lands Devised Lands devised (without any specific charge by will or deed) ought not to be charged in equity to # satisfy a bond debt of the devisor, until the personal estate is exhausted, including a remainder in slaves, expectant upon an estate for the life of the testator’s widow.
    a*. Joint Bond- Judgment against One Obligor — Charging Other Obligor in Equity — Parties.-—A "judgment at law being obtained against one of two obligors, in a joint and several bond., and no proceedings to enforce it appearing, a Court of equity ought not to charge the lands of the other obligor, in possession of his devisees, without having made the obligor, against whom the judgment was rendered, or his representatives, parties to the suit.
    , 3. Chancery Practice — Debts of Decedent — Apportionment of Barden. — When lands, held by several devisees in the same will, are charged in eciuity to satisfy a bond debt of the devisor, the decree shonld be against the lands of all the devisees, (or the money received, or claimed, in lien thereof,) in ratable proportions, and not against the land of one only, with liberty to that one to sue the others for contribution.
    The appellees filed their bill in the late high Court of chancery, against the executors and devisees of John Shelton, deceased; (praying, also, that the representatives of John Pendleton, deceased, “if it should appear ’x'necessary,” should be made defendants;) setting forth that on the 25th day of November, 1782, John Shelton and John Pendleton, bound themselves and their heirs, to Charles Crenshaw, in the penal sum of 2,0001. in gold or silver, conditioned for the delivery of certain negro slaves; that a suit being instituted thereon in the district of Henrico, against the said Shelton and Pendleton, judgment was rendered against the said Pendleton, at the September term, in the year 1799, for 6591. Is. 6d., by way of damages ; that the said suit abated as to the said Shelton, who departed this life some time in the year 1798, having, by his last will, devised and bequeathed a considerable real and personal estate to Anne Shelton, his widow, and to his children and co-heirs, Walter, John, Alexander, Turner, Harriet, and Edwin, Shelton, and appointed the said Anne Shelton his executrix, and Henry Toller, James Parker, and Edward Winston, executors; “that all, or some, of the said executors, but especially the said Anne Shelton, have taken possession of the personal estate of the said John Shelton, deceased, and pretend that there is not a sufficiency thereof for the discharge of the bond aforesaid; that they are endeavouring to throw the burden of the said bond on the estate of the said John Pendleton, who is, also, dead, and whose property is greatly embarrassed; that the said Anne Shelton has wilfully sold the property of her said testator at an under value, and caused it to be purchased for the benefit of herself, or of her children ; and that there are several tracts of land belonging to the devisees aforesaid, under the last will aforesaid, which are liable to the bond aforesaid; it being, in truth, immaterial, as to the satisfaction thereof, whether the personal estate be, or be not, sufficient.” The prayer of the bill, therefore, was, that the executors of John Shelton be compelled to discharge the bond out of the assets in their hands, or account for the same, so as not to obstruct or delay the direct remedy against the lands; that a statement be rendered, by the devisees, of the various *tracts or parcels of land devised to them ; and that the said lands be sold for the satisfaction j>f the bond aforesaid._
    
      ' Anne Shelton, (who afterwards became the wife of the appellant, Foster,) by her answer, averred, that she had never qualified as executrix; that no part of the personal estate of the testator ever came to her hands, except a small quantity of household furniture, and some few plantation utensils, (among which was a wheat fan,) and a stock of 30 or 40 hogs, all of which (except the wheat fan, which she sold for eight dollars, and the furniture, which remained in her possession) were sold since the death of the testator, under executions against his property. She further stated, that a number of negroes, belonging to the said John Shelton, were sold during his lifetime, under execution, and purchased, on the 20th of September, 1797, for her benefit, and paid for by Stephen Southall, with money which he held as her trustee under the will of her father, Turner Southall; that, at the same time, the said Stephen purchased for her six beds and furniture, which were sold to satisfy taxes and fees due from the said John Shelton ; that, in his lifetime, the said John Shelton conveyed to a trustee, for her benefit, during her life, certain negroes, (some of whom were part of those before mentioned,) with their future increase-, in consideration of her relinquishing her right of dower in certain tracts of land, as mentioned in the conveyance, which was exhibited; that, on the 3d of November, 1798, (after his death,) a negro woman was sold to satisfy an execution in favour of Nathaniel Pope, and sundry other specified articles were sold to satisfy an execution in favour of Cochran’s executors, which executions were issued and levied during his life; that the property so sold was purchased by James and John Parkers, who suffered this defendant to take it, upon her advancing, out of her own funds, the money they had given for it; that the only real property which this defendant held under the will of the said John Shelton, *was a tract of land in Hanover county,' devised to her for life, 1 ‘on her paying her son, Walter Shelton, fifteen pounds annually, to the amount of 2101. ;” which sum she has fully paid, except about 401., and she considered it unjust that this tract of land should be sold, and herself deprived of a provision made for her by the will of her husband.
    Henry Toller and Edward Winston, by their answers, denied that they had ever qualified as executors, or intermeddled with the estate. No answer was filed by James Parker, and no proceedings against him appear in the record, except a decree nisi, which does not appear to have been served.
    The separate answer of Walter Shelton described the lands devised to him by the will of John Shelton, as consisting of the reversion in the plantation devised to Mrs. Shelton for life, and one hundred acres in Goochland county, both of which he had sold (the reversion to Mrs. Shelton, and the land in Goochland to Matthew Anderson) before the institution of this suit, and before he knew that the claim of the complainants existed.
    The plaintiffs replied, generally, to the answer filed, and sundry depositions were taken, which, in substance, confirmed the statements in the answers. In June, 1801,, the cause was set for hearing, “as to the defendants, Anne Shelton and Henry Toller, on the plaintiffs’ motion.”
    In October, 1803, Parke Street, on motion by counsel, was admitted a party complainant in the cause, and filed his bill, praying that satisfaction might be decreed to him out of the estate of John Shelton, in the hands of the defendants, for three bonds, conditioned each for the payment of twenty-five pounds, assigned to him by John Tre-villian, the 24th of May, 1800; but without stating whether the heirs were bound in those bonds, or not; and no copies of them' were inserted in the record.
    To this bill an answer was filed by Mrs. Foster, late Mrs. Shelton, stating several circumstances which induced her to believe that those bonds were discharged ^before their assignment. On this-subject no depositions were taken on either side, and no replication to this answer appears in the record.
    On the 3d of June, 1805, the cause (which abated as to James Parker, by his death) came on to be “partly” heard on the bills, answers, exhibits, and examinations of witnesses; and Chancellor Wythe decreed, “that, towards satisfaction of the plaintiffs’ demand, the defendant, Anne Shelton, pay eight dollars, admitted by her to have been received by herself for a wheat fan be-, longing to the said John Shelton’s goods that so much of the land, called- — —, in the county of Hanover, as may be sufficient to satisfy the plaintiffs, Crenshaw and wife, one hundred and sixty pounds, with interest thereon, at the rate of five per cen-tum, from the 25th day of February, 1783, be sold at public auction, subject to the defendant, Anne Shelton’s, right of dower in the premises, after the expiration, of one hundred and fifty days from this time,, and advertising the day and place of the sale, for three weeks, in some Richmond newspaper, for ready money, to be deposited in the bank of Virginia until the further order of the Court; and ■ — -- were appointed commissioners for that purpose, who, or any two of whom, might act, and report their proceedings to the Court; liberty being reserved to the plaintiff, Parke Street, to resort to the Court for a just dividend of the money so to be raised, if it shall be found necessary; and to the defendant, Anne Shelton, and to the defendants, devisees of the said John Shelton, to require of the *defendant Walter Shelton, who sold the land in Goochland, the proportion which he ought to pay of the plaintiffs’ demands; and also-the plaintiffs, if they shall think proper, to institute an inquiry into the liability of the slaves, in the answer of the said Anne Shelton mentioned, or any of them, to the claims of the plaintiffs.”
    From this decree the defendants, Foster and wife, appealed.
    Nicholas, for the appellants.
    Peyton Randolph and Wickham, for the appellees.
    
      
      Debts of Decedent — Personalty Primarily Liable.— It is a well-settled rule of equity courts almost universally recognized that the personal estate of the deceased is the natural and primary fund for the payment of the debts; and the lands will not be -charged without first taking an account of such personal estate and directing it to be applied to that object: thus, it is error for the court to charge the proceeds of the sale of land with the debts of the intestate, without first taking an account of the entire personal estate 'which comes to the hands of the administrator, and directing its application to the discharge of such debts. Elliott v. George, 23 Gratt. 783. citing the principal case as authority. For further information on this point, see mono-graphic no ten on “’Debts of Decedents” appended to Shores v. Wares, 1 Rob 1, and “Marshaling Assets” appended to Carrington v. Didier, 8 Gratt. 280.
    
    
      
       Judgment against Personal Representative — Heirs Not Parties — Effect.—A judgment (by default at least) against a personal representative in a suit to which the heirs or devisees of the decedent are not parties, it is not evidence against such heirs or devisees in a suitor proceeding by the creditor to subject the real estate, descended or devised, to the payment of the debt; and the reason assigned is, that there is no privity between the representative and such heirs or devisees. It was so held by this court at an early day (1810) in Mason v. Peter, 1 Munf. 437, and the decision has been since repeatedly recognized as authority. Brewis v. Lawson, 78 Va. 40, citing among others, the principal case. To the point that a judgment against a personal representative is no evidence against the heirs or devisees of the real -estate — because there is no privity between the personal representative and the party to whom the real estate has descended or been devised--the principal case is also cited in Laidley v. Kline, 8 W. Va. 230; Bank v. Good, 21 W. Va. 462; foot-note to Mason v. Peter, 1 Munf. 437\ foot-note to Robertson w. Wright, 17 Gratt. 535.
    
    
      
      Chancery Practice — Debts of Decedent — Appointment of Borden in First Instance. — To the point that the lands of all the devisees should hear their ratable portion ol'the debts of the decedentin the first instance, instead of decreeing against one, and turning him around upon the others for contribution. the principal case is cited in Ryan v. McLeod, 33 Gratt. 374. See further, monographic note on “Marshaling Assets" appended to Carrington v. Didier, 8 Gratt. 360. The principal case is also cited in whitiock v. Gordon, 1 Va. Dec. 249.
    
    
      
      Note. Two affidavits, 'bearing- date the 31st of May, 1805, are inserted in the transcript of the record, from which it appears that Poster and wife claimed a considerable credit against the sum recovered at law by Crenshaw’s Executors; but in what manner it became reduced to 1601. does not appear. The bond executed by Shelton and Pendleton was joint and several, and conditioned to be discharged by payment by Shelton. It was, therefore, contended, in the argument, that, as Shelton was the principal, and Pendleton only the security, a Court of equity ought to give relief against the estate of the former, without the necessity of making the representatives, of the latter parties to the suit. — Note in Original; Edition.
    
   The —— day of January, 1813, the following' opinion of this Court was pronounced.

‘ ‘The Court not deciding, at present, upon a principle of such general importance, as that under which the land in the proceedings mentioned was decreed to be sold, to discharge the claim of the ap-pellees, (a principle deserving great consideration, and which, in event, may not be necessary to be decided in this cause,) is of opinion that the decree in question is erroneous, in the following particulars: 1st. In proceeding to sell or charge the land now in question, without having directed an account to be taken of all the goods, chattels, rights, and credits of John Shelton, deceased, including the remainder in the slaves conveyed in trust, for the use of his wife for life, by the deed among the exhibits; all of which should be first applied to pay the claim in controversy, before the lands of the said John Shelton should be charged therewith; liberty being reserved to the appellees, or to any of the devisees, other than'the female appellant, to institute an inquiry into her title to the slaves claimed in and by her answer in the proceedings contained.” “2dly. In so decreeing, without having proceeded against the executor of James Parker, if he left any, or shown that the said James Parker never qualified as the executor of John Shelton, deceased. 3dly. In having proceeded so to decree, *without having made the representatives of John Pendleton parties to the suit, and regularly proceeded against them, who, or the said John Pendleton, in his lifetime, may have already paid the debt in question, or a part thereof; and whose assistance is, consequently, necessary, to prevent the appellants, possibly, from being compelled to pay the said debt a second time. 4thly. In having charged the appellants, as devisees aforesaid, on the ground only of a judgment obtained against the said John Pendleton; whereas, according to the decision in the case of Mason’s devisees v. Peter’s administrators, a judgment, even against the executors of the said John Shelton, would not have been sufficient for that purpose. 5thly. In having charged the lands of the appellee, Mrs. Foster, solely; whereas, according to the decision last mentioned, the lands of all the devisees, or the money received or claimed in lieu thereof, ought to have borne their ratable proportion of the debt claimed; and that by a direct decree in the first instance, instead of turning the appellants round to seek a contribution by another suit; and in not holding (if any decree at all were to be made affecting the devisees) the said William Shelton ratably liable, as aforesaid, on account of the money received for the Goochland lands, and for the annuity upon, and one sixth part of the reversionary interest in, the Hanover land, in discharge of all the said lands, and the interest acquired therein, by the respective purchasers; (Mrs. Foster included; )and who, as to the same, having purchased them bona fide, and before the institution of this suit, should not be affected, in relation to the same, by any decree. 6thly. In proceeding so to decree before the infant devisees of the said John Shelton were before the Court, to defend their interests, or had answered and disclosed to the Court, whether any, and what proportion, o,f their father’s estate had come to their hands. 7thly. In admitting the plaintiff, Parke Street, to the participation in the money to be raised by virtue of the decree aforesaid, before he had shown that *the bonds or notes, in his bill mentioned, were such as bound the lands of John Shelton; and in proceeding to decree in his favour, without giving the appellants, or the other devisees of John Shelton, an opportunity to show, by the proper proceedings, that the said bonds or notes were paid off to, or otherwise discharged in equity as to, John Trevillian, from whom the said Street derived them; on the grounds stated in the answer of the female appellant.”

‘'The decree is, therefore, reversed, so far as it is in conflict with the foregoing principle, and affirmed as to the residue: and the cause is remanded to the Court of chancery to be finally proceeded in.” 
      
       1 Munf. 437.
     