Armour v. Kendall

• Decision Date: 10 December 1885
• Citation: 15 R.I. 193,2 A. 311
• Parties: ARMOUR and others v. KENDALL and others.
• Court: Rhode Island Supreme Court

2 A. 311

15 R.I. 193

ARMOUR and others

v. KENDALL and others.

SUPREME COURT OF RHODE ISLAND.

Filed December 10, 1885.

Bill in equity to subject a legacy to the payment of a judgment.

James M. Ripley and John D. Thurston, for complainants.

Thomas C. Greene and John F. Lonsdale, for respondents.

DURFEE, C. J. The complainants are creditors of Henry L. Kendall, of New York, and Henry S. Whitcomb, by judgment confessed by said Kendall and Whitcomb in Illinois. The defendants are executors of the will of Henry L. Kendall, late of Providence, who died July, 1883, bequeathing by said will $10,000 to Henry L. Kendall, of Chicago, who was his nephew. Henry L. Kendall, of Chicago, and Henry S. Whitcomb, were indebted to the testator at the time of his decease, and still continue indebted to the estate in an amount exceeding the legacy, to-wit, to the amount of $12,500, with interest. They have no visible property. The object of this suit is to subject the legacy to the payment of the complainants' judgment. The defense is that the legacy is not chargeable in favor of the complainants so long as the debt to the estate remains unpaid.

Where a legatee is a debtor to the estate, he is entitled to only the excess, if any, of the legacy over the debt. Williams, Ex'rs, 1304; Jeff's v. Wood, 2 P. Wms. 128; Smith v. Kearney, 2 Barb. Ch. 533, 549; In re Bogart, 28 Hun, 466, 468; Willes v. Greenhill, 29 Beav. 376, 382; Smith v. Smith, 3 Giff. 263. The right, it has been said, is rather a right to pay out of the fund in hand than a right to set-off. It has also been said that the right rests upon the equitable principle that the legatee is not entitled to the legacy while he retains a part of the assets out of which it ought to be paid. The legacy is accordingly regarded as applied pro tanto in the payment of the debt, and it has been so held that it may be so regarded, even when the debt is barred by the statute of limitations. Courtenay v. Williams, 3 Hare, 539, 639, note; Coates v. Coates, 33 Beav. 249; In re Bogart, supra. In Smith v. Smith the principle was applied where the legacy was to a member of an insolvent firm which was indebted to the estate. The vice-chancellor said: "It seems to me that the principle which governs the case is this: that the legatee shall not be entitled to receive out of the estate of the testator any part of the bounty intended for him by the testator until he has paid all his obligations in the shape of debts which may be due to that estate." See, also, Ex parte Stephens, ...