
    *Kinney’s Ex’ors and Devisees v. Harvey and Worth and Others.
    March, 1830.
    (Absent Brooke, P., and Coalter, J.)
    Chancery Practice — Answer—Caption—Dual Character of Respondent. — A defendant in equity is charged as executrix and as devisee of a decedent: in the caption of her answer, she professes to answer only as executrix; but, in the body of her answer, she in fact answers as devisee: Held, such answer places her before the court in her character of devisee. „ , , „ , '
    
    „ , , „ , Administratorst — Advances to Estate — Subrogation to Rights of Creditors Satisfied.— Bill by creditors against ex’ors and devisees, to charge their demands on decedent’s real estate, the same being charged with debts by his will; on the settlement of the ex’or’s accounts, it is found he is largely in advance to the estate, for payments made by him to creditors, beyond the available assets by him received; though there is a much greater amount, due the testator’s estate, of debts not desperate: Held, the ex’or shall rank as a creditor on the real, by substitution in the place of the creditors, whose demands he has satisfied out of his own
    Ciiancery Practice — Bill to Charge Debts on Realty Devised — Parties.—Upon a bill by certain creditors of a decedent, to charge the debts due them on the debtor’s real estate in the hands of his devisees, the court ought always to make an order to call in all creditors, to receive their dividends of the real assets.
    This was an appeal from a decree of the superiour court of chancery of Staunton, upon a bill exhibited by the appellees, Harvey & Worth, Baker & Comegys, and John Thompson, merchants of Philadelphia, against the appellants Ann Kinney and Erasmus Stribling, executors of Jacob Kinney deceased, late of Staunton, and the same Ann Kinney with Jacob, Francis and Ann Stribling, his devisees, setting forth, that the plaintiffs in Kinney’s lifetime, had placed certain claims they had against one Gideon Morgan, in Kinney’s hands for collection, as their attorney at law and agent; which claims, though originally several and distinct, had been blended together by Kinney in the course of his agency, in the same securities obtained by him from the debtor, with the approbation of his clients and principals; and that Kinney, by his conduct in this agency, had incurred a personal liability to them, for large balances, and died without paying the same, or rendering any account: ^Shewing, that Kinney, by his will, charged his real estate, in the hands of his devisees, with all his just debts: Praying, therefore, an account of Kinney’s transactions in the agency and collection confided to him; an account also of the administration of his personal estate by his executors, andan account of his real estate in the hands of his devisees; ,and a decree fdr the balances which should be found due to the plaintiffs, against Kinney’s executors, if his personal assets should be sufficient to discharge the same, and if not, that the debts found due them might be charged on the real estate.
    The defendants filed a joint answer, the caption of which was-thus: “The answer of Ann Kinney and Erasmus Stribling executors of Jacob Kinney deceased, and of Erasmus Stribling as guardian ad litem for his infant children,” (meaning Jacob, Francis and Ann Stribling). Mrs. Kinney, the executrix, was the widow and principal devisee of the testator: and though, in the caption of the answer, she professed to answer only in her character of executrix, yet the sequel of the answer related to all the allegations of the bill, and as well to the real as the personal estate. It submitted the question of the court, whether the testator’s will, charged his debts on his real estate. It admitted the fact of Kinney’s agency for the plaintiffs, as alleged in the bill. And Stribling stated, that he was the sole acting executor; that he had administered all the personal assets of his testator’s estate, which had come to his hands, excepting some outstanding claims for monies due the estate, the recovery whereof he had as yet been unable to accomplish; and that the estate was indebted to him in a large balance, for debts paid by him over and above the available assets he had received: and he claimed to be substituted in the place of the creditors, whose claims he had discharged, for satisfaction out of the real estate ; in effect, to rank as a creditor on the real estate in proportion to the balance due him on his accounts of administration:
    *It appeared, that Kinney died in 1812. His will, clearly, charged his real estate with his debts; and, subject to debts, devised it to his wife, part in fee, and part for life with remainder to his grand-children, the defendants, Jacob, Francis and Ann Stribling. The executors qualified in April 1812.
    The accounts prayed in the bill having been directed by the chancellor, were taken and reported by a commissioner. 1. Of the accounts between Kinney’s estate and Harvey & Worth, Baker & Comegys, and Thompson, respectively, the commissioner made several statements, founded on different principles, and shewing different results : those stated on the principle which was approved by the chancellor, shewed balances due from Kinney’s estate to the plaintiffs, amounting, in the aggregate, principal and interest computed to the date of the decree, exclusive of five per cent, commission allowed Kinney for collection, to about 8533 dollars., 2. The commissioner reported an account of the executor Strib-ling’s administration of Kinney’s estate; shewing a balance due to that executor of about 4684 dollars, with interest from December 1819, for monies advanced by him, in payment of his testator’s debts, beyond the amount of available assets that had come to his hands. 3.’ An account of the outstanding debts due to Kinney’s estate, which the executor represented as separate, amounting, principal and interest computed to December 1819, to about 2497 dollars; and of other outstanding debts due to the estate, which, though somewhat doubtful, might ultimately be recovered, amounting, principal and interest, to about 8641 dollars; total amount of outstanding debts 11138 dollars. And 4. An account of the real estate left by Kinney, and devised by his will, estimated at about 9275 dollars.
    The chancellor, upon a hearing, settled the principle upon which the accounts between Kinney’s estate and the plaintiffs ought to be adjusted, and declared the balance due to them respectively, amounting, in the aggregate, principal and interest computed to the date of the decree, (as above “mentioned) to about $533 dollars: and considering the personal estate, as being (with regard to these creditors) in effect exhausted, he directed a sale, by the marshal of the court, of so much of the real estate as would be sufficient to discharge the debts, principal and interest, so declared to be due the plaintiffs, and the costs of suit, with orders that the proceeds of the sales should be brought into court. And, without taking any notice of the claim of the executors, to be substituted in the place of the creditors of his testator, whose claims he had satisfied out of his own means, and thus to rank on the ' real estate in proportion to the balance due him on his account of administration, the chancellor recommitted that account to the commissioner, with directions to state and report an account of collections of the outstanding debts due the estate, made by the executor since the former report.
    The defendants appealed to this court; where the cause was argued by Johnson, for the appellants, and the Attorney General, for the appellees.
    I. The first point discussed, was the principle on which the accounts between Kin-ne3'’s estate and his clients and principals, ought to be adjusted; as to which this court disapproved the principle of the chancellor’s decree; but the point depended on the peculiar facts of the case, and involve no general question of law or equity.
    II. The next was a point of practice. Johnson objected to the decree for the sale of the real estate, that all the devisees were not as such convented before the court at the time of the decree; for that, though Mrs. Kinney had joined in the answer with the other defendants, she had only answered in her character of executrix, and was not before the court in her character of devisee.
    To this it was answered by the Attornej' General, and resolved by the court, that though Mrs. Kinney described herself in the caption of the answer only as executrix, 3’et as the answer itself was responsive to all the allegations of “'the bill, and related to the real as well as the personal estate, she thereby placed herself before the court in the character of devisee as well as executrix.
    III. Johnson insisted, that the chancellor ought to have substituted the executor Stribling in the place of the creditors whose claims he had satisfied out of his own pocket, and thus let him in to rank on the real estate, in proportion to the balance due him on his account of administration; and, moreover, that the chancellor, instead of providing only for the satisfaction of the debts due to the appellees, out of the real estate, ought to have directed all the unsatisfied creditors of the estate to be called in, that they might participate of the real assets, in just and equal proportions.
    The Attorney General answered, that it did not appear, that there were any other unsatisfied creditors, and considering the time which had elapsed since the testator’s death, and tliat no other creditors had appeared to charge the real estate devised, it was almost certain there were none: And that as to the claim of the executor Stribling, there being- outstanding debts due the testator’s estate, to the amount of 2497 dollars, which the executor admitted to be separate, and other debts to the amount of 8641 dollars which he did not allege to be desperate, it must have been owing to his own negligence, that he had not already collected enough to reimburse the balance of 4684 dollars due him for his advances; and that he ought to be left to look to these outstanding debts as the fund to reimburse the balance due him, since it was hardly possible but that he was justly chargeable with a sum equal to the balance reported to be due to him, either on account of outstanding debts actually collected, or of negligence in regard to those debts. Besides, the chancellor had only ordered the sale of the real estate: he had not disposed of the proceeds; he had ordered them to be brought into court, retaining the power to call in the other unsatisfied creditors, if it should appear proper, and to let in the executor Stribling to rank on the real, if upon the further account of his administration, any balance should appear to be justly due to him.
    *Johnson replied,
    that there was no way to ascertain whether there were other unsatisfied creditors, but to call them in, and to give them an opportunity to exhibit their claims. That there was no proof, and indeed no allegation, of any negligence in the executor with respect to the outstanding debts: that he ought, at all events, in the actual state of the case, to be allowed his rateable dividend of the real assets, else that which was the only certain fund, mighr be exhausted in the satisfaction of the debts due to the appel-lees ; and, hereafter, whatever should be collected out of the outstanding debts, would still be to be accounted for, and applied in due course of administration. That it was true, the chancellor’s decree left this point open, or rather passed it by without notice; but, on this appeal from an interlocutor decree, it was the province of this court to settle all the principles of the cause.
    
      
      Chancery Practice — Answer.—See generally, mono-graphic note on “Answers in TScniity Pleading” appended to Tate v. Vance, 27 Gratt. 571.
    
    
      
      Administrators. — See generally, monograpliic note on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6. . „ .
    
    
      
      . „ . tSame — Advances to Estate — Subrogation to Rights of Creditors Satisfied. — See principal case cited, in Morgan v. Fisher, 82 Va. 422; Powell v. White, 11 Leigh 332 (note by president collecting cases on subrogation). See'generally, monographic note on “Subrogation” appended to Janney v. Stephen, 2 Pat. & H. 11.
    
    
      
      Chancery Practice — Administration of Assets — Parties. — See principal case cited in Stephenson v. Taverners, 9 Gratt. 406.
    
   PER CURIAM.

The decree is erroneous, inasmuch as the real estate sought to be subjected to the demands of the appellees, constitutes an equitable fund, out of which all the creditors of the testator Kinney, are entitled to satisfaction, pari passu; and, among others, the executor Stribling, as standing in the place of the creditors whose claims he has discharged, and appearing to be a creditor to a large amount, unless it shall appear, that since the report of the commissioner, he has been reimbursed in whole or in part, by the receipt of personal assets of his testator. And opportunity should have been given to all the other creditors of the testator, coining in and agreeing to bear their proportions of costs, to prove their debts before the commissioner, within a reasonable time prescribed by the chancellor, and to participate equally of the equitable assets.

Decree reversed.  