
    TUOHY, EXECUTOR, vs. MARY MARTIN ET AL.
    In Equity. —
    No. 3737.
    I. A devise of land after payment of debts is a charge on the land, and when the personal assets are exhausted, the executor may file a bill for the sale of the real estate to pay such debts, and the creditors-need not be made parties to such bill.
    II. When a testator devises lands after his debts are paid, and in a subsequent part of the will directs that a particular lot shall be sold .at public auction and the proceeds applied to the expenses of a monument to be erected at his grave, it was held that the cost of the monument was a first lien upon such lot, and to that extent was a limitation upon the preceding general clause in respect to the payments of debts.
    STATEMENT OE THE CASE.
    John A. Gately made Ms will January 11,1873, and directed therein, “after Ms debts and funeral charges were paid,” first, that a marble monument should be put upon his grave, the expense thereof not to exceed $1,000, and that part of his property situated on the corner of B and Twelfth streets northeast be sold for cash, at public auction, and that the proceeds-thereof should be applied to the payment thereof. The lot thus designated is situated in square 1010. The second devise is to his brother, Patrick Gately, and Ms heirs, and comprehends the balance of testator’s property in said square 1010. The third devise is to his sister, Mrs. Mary Martin, of his property in square 419 in fee-simple. These are the only devises necessary to be stated in order to comprehend the decision.
    The complainant, who is the executor, had a monument erected, the cost of which, $1,000, is due the contractor. The personal estate has been exhausted, and there still remain debts due to certain creditors amounting to several hundred dollars. The complainant represents that there is no personal property out of which to pay these debts, and he therefore prays for leave to sell all the real estate. The land devised to Mrs, Martin in square 419 is encumbered with a mortgage for $1,000, and she claims that an account should be taken of the debts, and the amount chargeable against the property so devised to her be ascertained, and she be allowed to pay it, and have said property conveyed to her, subject to the aforesaid mortgage. Patrick Gately, the ocher devisee, answers to the same effect with reference to the property devised to him in square 1010. The report of the auditor, who stated the account, shows debts amounting, in the whole, to the sum of $843.72. The value of the property in square 419 is $2,500, that in square 1010 is $1,750, of which $500 is because of a new house in course of erection by the said Patrick Gately, commenced since the death of the testator. Exceptions were filed to the auditor’s report, and the court, on the 14th of February, 1876,, ordered that the property in square 1010 be specifically charged with the payment of the $1,000 as the cost of the monument, and with the sum of $120.53 and interest for the debts and expenses,_ and that the residue of such debts and expenses be chargeable to the property devised to Mary Martin, and that they have leave to retain the property devised to them by paying to the clerk of the court said sums respectively. From this decree Mary Martin has appealed. The grounds of her appeal cannot be better stated than in the learned brief of her counsel, which is given below in full.
    
      John W. Frazee for complainant:
    1st. This is a bill filed by the executor in behalf of certain creditors of John A. Gately, deceased.
    2d. The real estate of John A. Gately is specifically devised, one portion to Patrick Gately, and the other to his sister, Mary Martin.
    3d. The devise to Patrick Gately is specifically charged in the will with the cost of a monument.
    4th. The devise to Mary Martin was encumbered during the life-time of the testator.
    5th. The debts proven and allowed by the special auditor aggregate $843.72.
    6th. The defendants, Patrick Gately and Mary Martin, have been in possession of the property devised to each, respeetively, for more than three years, and have received the, rents, issues, and profits from the same.
    7th. The time allowed the defendants, Gately and Martin, in which to redeem the estate devised to them, respectively, by the decree of February 14,1876, has expired.
    8th. No authorities are herewith cited as reference, as the Only question involved in the appeal is “ the apportionment of the debts found to be due the creditors.”
    
      Thomas Jesup Miller for Mrs. Martin:
    The bill should be dismissed — '
    1st. Because there is no proper party plaintiff.
    The bill is filed by an executor to have the real estate of his testator sold for the payment of his debts; it is not a creditor’s bill, though it aims to address itself to the-jurisdiction of the court for administering assests. (Hammond vs. Hammon. 2 Black., 306.) The creditors are none-of them parties to and so not bound by the proceedings in the suit. This jurisdiction of chancery is-founded upon the-principle that- it is the duty of the court to enforce the execution of trust; that heirs and personal representatives are bound to apply the property in their respective hands to the payment of debts and legacies. Obviously, then, a ereditoris the proper party to call for the exercise of this jurisdiction. The executor cannot maintain this suit. His duty is to deal with the property committed to him by the will, (Bush vs. Ware, 15 Pet., 93.) When that has been accounted for and. disposed of, his duty and his powers end. The effect of sustaining this bill would be to give to personal representatives the power to administer real as well as personal assets. “ Such-a doctrine is at war with the spirit of all the decisions of this court on the subject.” Collinson vs. Owens, 6 G. & J., 9.
    2d. No sale could well be made of the property in square-No. 419 unless Michael Gately and the children of Michael Gately were parties defendant, owing to the words of the will devising that, and owing as much to the language of the auditor in passing upon that devise.
    Even should the court entertain the bill as one to administer asrets, the decree below was erroneous—
    
      1st. In making the cost of the monument a first lien upon the property in square 1010, and thereby increasing the proportion of the debts of the deceased to be borne by the property in square 419.
    Certainly “ the general rule of marshaling assets is first to apply the personal estate; then land descended to be sold for the payment of debts; then lands devised; and, lastly, estates specifically devised, even though they are generally charged with the payment of debts.” Chase vs. Lockeman, 4 G. & J., 185; Wyse vs. Smith, 4 G. & J., 295.
    In this case the personal property having been exhausted, and the only two parcels of real estate having been specifically devised, the debts would have been, even had the will not made them, (Fenwick vs. Chapman, 9 Pet., 469,) the first charge, and they should be marshaled between the two parcels in the ratio of the values in the first instance, and thereafter the balance of that in square 1010 might be applied to paying for the monument.
    2d. In marshaling the debts and estimating the value of the property in square No. 1010 at $1,250, whereas the only evidence was that it was worth $1,750, the new house on the land, by whomsoever built, in equity as well as at law, became a part of the reality uponvthe maxim cujus est solum ejus cst usque ad cmhim, (Mott vs. Palmer, 1 Comst., 564; Hill vs. Shoemaker, 1 MacA., 310,) and therefore became subject to the debts of the deceased.
    3d In allowing the claim of Hugh Downey for $209. The claim was for money due to him for services of himself and wife, room-rent, damages, &c., amounting to $289.50. The auditor disallowed, as not proved, five items, amounting to $77, reduced another item $15, and allowed credit for a sum paid to him, $20, making $112, which, deducted from $289.50, by the auditor’s system of arithmetic, confirmed by the court, leaves $209. An additional reduction ought to have been made of $70 for the services of Downey’s wife, which he certainly cannot recover in his own name.
    4th. In allowing the sum of $843.72. The bill represented as due $972.87. The auditor rejected of these the «void legacy of $300, and some $200, owing to errors, &c., additional. A large part of this difference is made up of J. W. Frazee’s (attorney) fee, $200, costs of this suit taxed by clerk, $37.70, and auditor’s fee, $100; The body of the report does not mention thése claims; the evidence throws no light upon them. In point of fact, these claims are for plaintiff’s personal costs in this cause and his attorney’s fee. The auditor was ordered to “report the legal charges against the estate.” His compensation should be fixed by the court under Eule 79. Perhaps it might be proper for the auditor to recommend to the court that his fee, taxed costs, and a fee for plaintiff’s attorney should be paid by the defendants, but certainly they do not belong in this schedule.
   Mr. Justice MacArthur

delivered the opinion of the court:

An objection is taken to the bill of complainant because it is filed by the executor instead of the creditors. The personal assets are exhausted, and the object of the bill is to have the real estate sold and the proceeds applied to the payment of debts. Whether an executor can apply for this relief depends in a great measure upon the language of the will. It reads as follows: “And after my debts and funeral charges are paid, I desire,” &c. It has often been decided that a devise of real estate after payment of debts is a charge on the land. The cases to this effect are reviewed in Fenwick vs. Chapman, 9 Pet., 469, and the Supreme Court recognized and established the doctrine. There can no longer be any doubt that when land in a devise is charged in a previous clause of the will with the payment of debts and funeral charges, they constitute a lien upon the land, and when the personal property is exhausted it becomes equitable assets, and must pass through the hands of the executor before it can be applied to the benefit of creditors. The duty of the executor is then to look to the land in order to carry out the intention of the testator. In the casé already cited the court clearly intimates that, where lands are devised charged with a lien for the payment of debts, the creditors need not be made parties to a bill by the executor for leave to sell the land for that purpose. In such suit the creditors may be allowed to make themselves parties, and may, for good cause shown, have the executor enjoined from selling, except on such terms as will be fair and reasonable; otherwise a court of equity will direct him to carry out the manifest intention of the testator.

The will also contains a clause in the following words: “First, I desire that after my decease a marble monument be put upon my grave, the expense thereof not to exceed one thousand ($1,000) dollars, and that part of my property situated on the. corner of B and Twelfth streets northeast be sold for cash, at public auction, and the proceeds thereof “be applied for that purpose.” This is the same land that is subsequently devised to Patrick Gately. The devise to Mrs. Martin comprised other property, situated on Seventh street. The decree of the court below decided that the cost of the monument was a first lien upon the lot devised to Patrick Gately, and ought to be deducted from the value of the lot in marshaling the assets. We have seen that the debts were charged generally upon the real estate. But the testator afterward directs with great particularity that this lot should be sold at public auction, and the proceeds applied, not in the first instance to the payment of creditors, but to the expense of a monument. This would seem to imply as strongly as any language could, short of an express declaration, that this particular parcel of land was to be sold in the first place to provide the means for carrying out the deceased’s will regarding a monument, and is to this extent a limitation upon the preceding general clause in the will in respect to the payment of his debts. He undoubtedly believed that his real and personal property were more than sufficient in value to satisfy all just claims against his estate. The devise to Mrs. Martin, his sister, was liable to an incumbrance for about the same amount as he imposed upon the lot devised to his brother, and this was probably the reason of that proviso, and he clearly intended that both should be liable in precisely the same extent to the payment of debts upon a deficiency of personal assets. The decree permitting the .devisees to redeem upon paying the proportion named ought to be affirmed.

Humphreys, J.,

expressed himself dubitante on one point, that is, whether any charge ought to be made upon Mrs. Martin’s devise until the exhaustion of the estate specially encumbered by the expense of the monument.  