
    Mason’s Devisees v. Peter’s Administrators.
    Monday, October 22, 1810.
    1. Chancery Practice — Marshaling Assets — .Iudgment against Executor. — A simple contract creditor, baying obtained a iudgment by defaul t against an executor, cannot maintain a suit in equity, for marshaling assets, against devisees of the landed property, until he has fully prosecuted his claim at law, against the executor and his securities.
    2. Executor — Judgment by Default against — Effect.— A judgment by default, against an executor, is prima facie admission of assets.
    3. Heirs — Evidence against---Judgment against Executor. — A judgment against the executor is no evidence against the heirs or devisees of the real estate.
    4. Devisees — Decree—Pro Rata. — A decree against devisees holding by several and distinct devises, ought not tobe joint, but pro rata.
    5. Chancery Practice — Lands Descended — Decree for Sale, — Quaere, whether, and under what circumstances, a Court of Equity can decree a sale of land descended or devised, (without any specific lien, or any charge, either general or special, by a conveyance or will of the ancestor or devisor,) to satisfy a bond, or a simple contract creditor, claiming on the principle of marshaling assets? Especially, can such decree be made, in any such case, where the rents and profits of the lands are sufficient to keep down the interest accruing on the debt?
    Upon an appeal from a decree of the Superior Court of Chancery for the Williamsburg District.
    The suit was originally brought in the late High Court of Chancery, by David Ross & Co. and Walter Peter, against the executors and devisees of James Mason, deceased, and having abated by the death of Walter Peter, was revived on behalf of James Freeland and Robert Kennan, his administrators. Its object was to obtain satisfaction, of certain simple contract claims upon the estate of the said James Mason, out of the lands devised to his sons; the bill suggesting that the executor refused to pay them on the pretence “that there had not come to their hands sufficient of the personal estate of their testator, for the payment of his whole debts, and that they must first discharge the specialties, and such claims as are considered entitled to a preference in the distribution of the assets.” The plaintiffs contended, that the devisees having had the benefit of 438 the personal estate applied *for their ease, in discharge of debts which would otherwise have been a lien on the real estate, and the same (the personal estate) being of sufficient value and amount to discharge and satisfy all the debts due by simple contract, the creditors by simple contract were entitled in equity to compensation for the same, and that so much of the real estate ought to be sold, as' shall be sufficient to replace the personal estate applied or used in payment .of debts, due by bond, and other specialties of equal or higher dignity.”
    No copy of the will of James Mason was inserted in the record : but, from the bill and answers, the devisees appear to have been entitled to separate tracts of land by several and distinct devises. The claim of David Ross & Co. rested on an open account, against which the act of limitations was pleaded. That of Walter Peter was also by open account originally; but a judgment by default had been obtained upon it against the executors in the County Court of Greensville, in November, 1786; on which judgment no execution had been issued.
    William Mason (who seems to have been the only acting executor) having died, the surviving executors, and the devisees, in their respective answers, denied any knowledge of the claim of the said Walter Peter, and generally averred that the judgment was obtained in their absence; “but they were informed and had reason to believe the same was unjust.”
    The late Chancellor referred the accounts between the plaintiffs and James Mason, deceased, to one of the Commissioners of the Court, directing him “to state and report them, with the proofs thereof, and also an account of the administration of the said James Mason’s goods, chattels and credits, distinguishing particularly the debts which, chargeable on his real estate, were paid out of the personal estate.” In compliance with this decretal order, Master Commissioner Rose made a report, setting forth the judgment obtained in Greensville Court as the only proof of Walter Peter’s claim, and a statement of the administration account, shewing a balance of 531. 14s. Id. in favour of William Mason, the acting executor; together with a list of debts stated “to have been paid out of the personal estate in satisfaction of debts chargeable on the real estate; to the amount of 7,1691. 11s. 3d. except that 1,4331. 5s. was credited for real estate sold by the testator’s direction in his will.”
    *Upon this report, the Court of Chancery for the Williamsburg District, on the 21st July, 1804, dismissed the bill as to the plaintiffs David Ross & Co. ; and as to the defendants the surviving executors; but decreed, that the defendants, the sons and devisees of James Mason, deceased, out of the lands in the bill mentioned, devised to them by the will of their father, should, on or before the 1st day of January, then ensuing, pay to the plaintiffs, administrators of Walter Peter, the amount of the judgment obtained by him as aforesaid, with interest and costs; and, in case of default of such payment, that certain commissioners should expose to sale, by auction, for ready money, the lands aforesaid, or so much thereof as would be sufficient to pay the said monej', interest and costs, and pay the proceeds of such sale to the said administrators. The plaintiffs David Ross & Co., and the defendants Edmunds and George Masons, two of the devisees, prayed an appeal from this decree, which was granted; but no bond was given by David Ross & Co. for prosecuting the appeal.
    Wickham, for the appellants,
    made several objections to the manner in which the cause had been conducted, but relied chiefly on the merits, as being decidedly in their favour. The judgment in Greensville County Court was no proof of the justice of the plaintiffs claim; being obtained by default, and it not appearing whether any writ had been served on the defendants. But, if the executors were bound by that judgment, the heirs or devisees were not. They do not claim through the executor; but by rights altogether collateral. If the executors by their answer in this suit had admitted the plaintiffs’ claim, the devisees would not have been bound by such admission. Surely, then, an admission in another suit cannot bind them.
    A simple contract claim cannot stand on a better footing than a bond: and, if a bond creditor had sued an executor, and obtained judgment, and afterwards had sued the heir at law, would the heir have been bound by the judgment? Could he not still have pleaded that the bond was not the act and deed of his ancestor? Suppose even one of two joint devisees were sued on the bond, and admitted the claim; could not the other plead in like manner, notwithstanding the greater privity 440 between two such devisees? *'Certainly, then, the claim of the plaintiff Walter Peter, as against the present appellants, is wholly unsupported.
    2. Each devisee should have been charged pro rata, instead of jointly; since, in their answers, they say they are several devisees.
    A Court of Equity derives great part of its jurisdiction from the power of discriminating, so as to do equal justice. In a suit against legatees for contribution, each legatee is charged in proportion to the property received by him. It has been decided in the Federal Court that, if one legatee be insolvent, he is nevertheless charged with his share, and the other legatees only pro rata; so that the creditor loses the part for which the insolvent legatee is responsible. The whole claim is not to be fixed on the competent legatees. But surely, where there is no pretence of insolvency, one legatee should not be compelled to pay for the rest. Such a decree would drive him to file a bill against the other legatees. But a Court of Equity ought so to decree as to put an end to the controversy, and not to multiply litigation.
    3. In this case the Chancellor ought not to have decreed a sale of the lands, but only an extent, which is all that a bond creditor can have at law. Surely, a simple contract creditor coming to marshal assets, can only be entitled to stand in the shoes of the bond creditor.
    George K. Taylor, for the appellees,
    in answer to the first point, observed that a judgment must be presumed to be fair until the contrary appears ; in the same manner as an administration account settled by Commissioners is to be considered prima facie correct, unless errors of fallacies be pointed out.  If so much respect be due to an account, rendered perhaps by an executor himself, a judgment of a Court of Record is not entitled to less. Here, the executors and devisees are jointly sued. The executors do not allege that no writ was ever served upon them. If such had been the case, would they not have said so? But, instead of this, they only say they believe the judgment was unjust, and that it was obtained in their absence! Ought they not to have pointed out w’hat injustice or error they complained of, in order that the plaintiff might have had an opportunity of controverting it?
    *2. The Chancellor was not incorrect in making a joint decree against the devisees: for this plain reason. The will (under the act of Assembly) was a nullity against creditors,  The case in the Federal Court concerning legatees was verj' different from this. Regatees are considered as innocent sufferers claiming under legal title: but the claim of devisees is nullified by the law.
    3. As to the power of the Court to decree a sale of the lands in a case like this, Mr. Taylor cited Clifton v. Burt, 1 P. Wms. 679, note I. 3 Bl. Comm. 436, 438, as to the general powers of a Court of Equity; Stileman v. Ashdown, 2 Atk. 608,  an example of a sale to satisfy a judgment creditor; Manaton v. Manaton, 2 P. Wms. 234, 235, the same measure resorted to in favour of bond creditors, though the lands were not devised for payment of debts; and Powell v. Robins, 7 Ves. jun. 211, in which case the lands would have been sold at the suit of simple contract creditors, if the defendant, the devisee, had not been an infant: but liberty was reserved to the plaintiffs to apply for a sale when the infant should come of age. In Galton v. Hancock, 2 Atk. 439, an account was directed to be taken of the real assets descended upon the heir, and that the same should be applied to pay off and exonerate the mortgage upon the estate devised to the defendant. How, otherwise than by a sale, could this be done? In Donne v. Lewis, 2 Bro. Ch. Cas. 263, Rord Thurlow lays down the order of applying assets to the payment of debts; according to which opinion, when the personal estate is exempt or exhausted, first, the real estate expressly devised for the purpose is to be applied; secondly, (to the extent of the specialty debts,) the real estate descended; and, thirdly, the real estate specifically devised subject to a general charge of debts,  It follows inevitably, that Lord Thurlow meant that all the several descriptions of property specified by him might be sold by the decree of a Court of Equity.
    Such are the authorities in England: but, in this country, the reasons for a sale are still stronger ; because there estates generally bring good rents; but here it is otherwise.
    Wickham, in reply,
    did not conceive it necessary in this case to examine Mr. Taylor’s authorities concerning the marshalling of assets, and the power of decreeing a sale. But, on principle, he did not see the Court of Equity’s right. They 442 have no such **right in the life-time of the debtor: why, then, should they have it after his death? But, as to the proof of the claim;
    There never has been an adjudication that the heir is bound by the admission or default of the executor; neither can a judgment be presumed to have been right, except against the parties. Yet here there was no admission at all; for no writ appears in the record.
    If there was any admission, it was equally an admission of assets. The plaintiff, therefore, has no right to come into equity. In every case of a simple contract creditor’s applying to marshal assets, it will be found there was no judgment against the executor. No instance can be found where such a creditor relied on such a judgment as evidence against the heir or devisee. Lee, Executor of Daniel, v. Cooke,  is not like this case: for there a privity existed between the vendor and vendee. So, in Anderson and Starke v. Fox,  there was privity between the executor and legatee ; but there is no privity between heir and executor. What this judgment was founded upon does not appear. By what human means can we shew it was unrighteously obtained? Our claim is not only collateral to that of the executor, but prior in point of time.
    I hardly expected it would be contended that this decree is correct in being joint, and not pro rata.
    The defendants have confessed the real assets devised. In a suit, at law, against devisees, the judgment is never peremptory, except for a false plea. A Court of Law then does equal and exact justice. Yet Mr. Taylor would invert the rule, as to a Court of Equity, and drive the devisees to bring another suit against each other for contribution. He says the case of devisees is different from that of legatees, because, under the act of Assembly, the devise is void. But it is void against such creditors only as have a right at law to come against the real estate. In this case, Peter claims on the ground that his remedy is merely equitable, being only a simple contract creditor. If his right was good at law, why did he come into Equity?
    JUDGE TUCKER having suggested that Peter had a complete remedy, at law, against the executor and his securities; the judgment by default having been an admission of assets, Mr. Taylor begged leave to make a few additional observations.
    *The failing to proceed to subject the executor at law, is no objection to the present claim in equity; because it appears that, in fact, the executor had no assets. The judgment by default was only prima facie an admission of assets even at law; for in Ruffin v. Pendleton the executor was allowed to plead “fully administered’’ to the action for the devastavit. A contrary doctrine is held, indeed, in the English books: but there they acknowledge the estoppel arising from the executor’s failing to plead to be odious even at law, but not applying to bind a Court of Equity. In this country the Chancellors and County Courts .universally have given the executor relief, (where he failed to file the plea of fully administered,) upon the terms of his paying the costs.
    In the present case, then, as it appears, from the commissioner’s report, that William Mason, the acting executor, had fully administered; for what purpose should Walter Peter have prosecuted him farther? And now, after the lapse of 24 years since the date of his judgment, is it reasonable that a Court of Equity should drive him from its presence to a Court of Law again? Can the plaintiff, at this distance of time, maintain an action of debt upon his judgment? If he can, may not the defendants defeat it by the act of limitations? Would he not, then, by the act of this Court, be completely devested of all right to recover a just debt? and why? because he was not wiser than all the Courts of Equity in this land.
    Mr. Taylor moreover observed, as to the proof in this cause, that a judgment may be given in evidence against persons not parties or privies; as if the common and ordinary case of one creditor’s suing an executor and obtaining judgment: other creditors are bound by such judgment.
    As to the power of the Court to decree a sale of the land; the Court of Equity is influenced by the circumstances of each case. Where the rents and profits are sufficient to pay the debt, a sale is not to be decreed: but where they are insufficient, a sale is best for all parties.
    Wickham. All I contend for is, that, in a naked case, of a judgment by default against an executor, if no equitable 444 excuse ^appears, he is bound. Does this record (admitting the judgment to have been regularly obtained) shew any excuse for the executor’s failing to plead at law. On the contrary, it does not appear that he has fully administered according to law; for one of the debits is for a simple contract claim of the executor himself against his testator, amounting to 5991. 13s. lOd. ; of which he could not avail himself after suffering judgment by default. The rule is that, of creditors in equal degree, he who sues first is entitled to be paid first; and the only means by which the executor can give a preference is by confessing judgment in favour of the creditor who subsequently sues. As the executor could not bring a suit against himself, he had a right to retain in his own favour, in the same manner as the creditor who sues first is entitled to a preference; but, having suffered judgment by default, in favour of Peter, he loses that advantage.
    Mr. Taylor’s argument, that the judgment is conclusive against us, is in conflict with his argument that it is not conclusive against the executor. If conclusive as to the amount of the debt, it must be conclusive as to the assets. The case ot Erving v. Peters, 3 Term Rep. 685, has settled the point that, if an executor plead payment to an action on bond, and omit to plead fully administered, it operates as an admission of assets, in an action, founded on the judgment, suggesting a devastavit. Neither is there any hardship in this; since, according to Chisholm v. Anthony, 1 H. & M. 27, he might have amended his plea, on motion, at any time before the trial.
    I never have understood the law as settled in this country, that an executor may obtain relief in equity, in all cases, where he failed to plead at law. The doctrine that a Court of Equity might give relief in every case where injustice was done, of which it was to be the judge, has been overruled by this Court. And why should that doctrine stand in the case of an executor only? It has been decided by the late Chancellor that an executor, if he thinks himself in danger, may apply to the Court by filing a bill of conformity against the creditors; in doing which he assumes the point that, without the previous interposition requested of the Court, he would be liable for a devastavit by failing to plead at law.
    Friday, November 9.
    The JUDGES, TUCKER and FLEMING (JUDGE ROANE having been absent at the argument of the cause) pronounced their opinions.
    
      
      Marshaling Assets. — See monographic note on “Marshaling Assets" appended to Carrington v. Didier, 8 Gratt. 260.
    
    
      
      Heirs — Evidence against — Judgment against Executor. — In Brewis v. Dawson, 76 Va. 40, BURKS, J., delivering the opinion of the court said: “A judgment (at least by default) against a personal representative in a suit to which the heirs or devisees of the decedent are not parties, is not evidence against such heirs or devisees in a suit or 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 Tjy this court at an early day (1810) in Mason v. Peter, 1 Munf. 487, and the decision has been since repeatedly recognized as authority. See Foster, etc., v. Crenshaw, 3 Munf. 520; Chamberlayne, etc., v. Temple, 2 Rand. 384, 396; Shields v. Anderson, 3 Leigh 729, 736; Street v. Street, 11 Leigh 498, 508; Robertson v. Wright, 17 Gratt, 534, 540. And Chief Justice Marshall, in delivering the opinion of the supreme court in Deneale v. Stump, 8 Peters 531, said: ‘It is understood to be settled in Virginia, that no judgment against the executors can bind the heirs, or in any manner affect them. It could not be given in evidence against them.’ The same principle has been affirmed by the courts of other states. See Harwood v. Rawling, 4 Har. & Johns; Davis v. Green, Id. 270; Birely v. Staley, 5 Gill & J. 432, 453; Sargent v. Davis, 3 La. Ann. 353, 354; McCoy v. Nichols, 4 How. (Miss.) 31, 38; Osgood v. Manhattan Co., 3 Cowen, 612, 622; Boykin v. Cook, 61 Ala. 472.”
      To the point that a judgment against a personal representative is no evidence against the heirs or devisees of the real estate, the principal case is also cited in Foster v. Crenshaw, 3 Munf. 520; Shields v. Anderson, 3 Leigh 736; Street v. Street. 11 Leigh 508; Robertson v. Wright, 17 Gratt. 534, 540, and foot-note; Laidley v. Kline, 8 W. Va. 230; Bank v. Good, 21 W. Va. 462.
    
    
      
       Devisees — Decrees—Pro Rata. — The principal case was cited in Ryan v. McLeod, 32 Gratt. 374, to the point that each heir shall be held responsible only for his portion of the debts of the decedent.
      The principal case is also cited in Lewis v. Overby, 31 Gratt. 620.
    
    
      
       Main v. Murray, not reported.
    
    
      
       Lee, Ex’r of Daniel, v. Cooke, 1 Wash. 306.
    
    
      
       Anderson and Starke v. Fox, 2 H. & M. 245, Atwell's Adm’rs v. Milton, 4 H. & M. 253.
    
    
      
       1 Rev. Code, p. 48, c. 51, s. 2.
    
    
      
       Ambl. 13, S. C.
    
    
      
       See also Davis v. Topp, cited in the note, 2 Bro. Ch. Cas. 259, and Wride v. Clarke, cited ibid. 261.
    
    
      
       1 Wash. 304.
    
    
      
       2 H. & M. 245.
    
    
      
       2 Wash. 184.
    
    
      
      Note by tbe Reporter. See also ante, p. 11. et Seattle case of Gordon’s Administrators v. The Justices of Frederick, in which it was decided that an executor shall not be presumed guilty of a devastavit till it is found against him by a verdict.
    
    
      
       2 Bac. Abr. 729; (Gwill. edit.) tit. Execution, Letter H.
    
    
      
       Ibid. 291, tit. Debt, Letter G.
    
    
      
      Note by the Reporter. It would seem, by analogy, from the case of Atwell’s Adm’rs v. Milton, 4 H. & M. 253, that a judgment against an executor or administrator Is at least prima facie evidence against the legatees or distributees of the personal estate; though liable to be rebutted by shewing it was fraudulently or irregularly obtained.
    
   JUDGE TUCKER.

Walter Peter, in his life-time, brought a bill against the executors and devisees of James Mason, the object of which was to obtain satisfaction for a simple contract debt due to him from James Mason, deceased, out of the real estate devised to his several sons, the personal estate being exhausted by the payment of debts of superior dignity. He had before obtained a judgment (by default) against the executors, for his debt, but does not appear to have proceeded even so far as to sue out execution upon that judgment. The record in that case is either very imperfect, or the judgment was obtained without even suing out a writ; and the executors who answered speak of it as having been unjustly obtained, and without their knowledge. There is no other proof of the debt. By the account stated by the Commissioner, there appears to be a balance due to the executor William Mason, who alone acted.

The first question that appears to me to arise in this case, is, whether the plaintiff Peter had not a plain and adequate remedy at law? He had obtained a judgment, by default, against the executors. Such a judgment amounted to an admission of assets in their hands. He might have sued out execution thereupon immediately; and, upon the return of nulla bona, he might have brought an action for a devastavit against the executors; and, finally, he had a remedy at law against their securities. After the several decisions of this Court in the cases of Maupin v. Whiting, Pryor v. Adams, and Terrel v. Dick, and those of Turpin v. Thomas, and Morris and Overton v. Ross, and some others, I cannot conceive that such a bill as the present can be sustained in a Court of Equity. B'or any thing that appears, or can appear, by this record, Mr. Peter had his remedy in his own hands at law ; and if, without any good reason, he thought proper to abandon it there, he cannot, under such circumstances, come into a Court of Equity.

The second question is, whether, supposing him entitled to come into a Court of Equity, against the devisees, he is, upon the proofs in this record, entitled to a decree against them. And I am clearly of opinion that he is not. There is not a syllable of proof of his claim, in the record, except the judgment, which, 446 *being against the executors only, is no proof against the devisees of land. For there is no privity between an executor, and the heir, or devisee of the-land; however it may be (on which I mean not to give an opinion) between an executor and legatee of personals; of whom the executor may require security to refund, in certain cases, before he pays, or gives up the legacy.*

One of the points insisted on by Mr. Wickham, was, that the Chancellor, instead of decreeing that the devisees should be jointly chargeable, ought to have directed a valuation of their lands respectively, and charged them pro rata. And I am of that opinion.

I deem it unnecessary to give any opinion upon the other points which were argued in this cause; as these are sufficient, in my opinion, to decide that the decree be reversed, and the bill dismissed.

JUDGE FLEMING.

I have no difficulty in saying that I concur in the opinion just delivered, in every particular, for the reasons therein stated; that the bill ought to be dismissed: and the last point, made in the cause, in Mr. Wickham’s statement, strikes me very forcibly; which is that, admitting the appellants (devisees of James Mason, their father) to be liable for the debt, it ought to have been apportioned among them, according to the value of their respective devises; of which an account ought to have been taken by Commissioners appointed for that special purpose; in order to prevent suits between the devisees themselves. But, as the principal point seems clearly in favour of the appellants, no farther notice need be taken of the latter.

Decree reversed, and bill dismissed. 
      
       1 Call, 224.
     
      
       Ibid. 382.
     
      
       Ibid. 546.
     
      
       2 H. & M. 139.
     
      
       Ibid. 408.
     