Bruce v. Farrar

• Decision Date: 18 June 1931
• Citation: 158 S.E. 856
• Court: Virginia Supreme Court
• Parties: BRUCE et al. v. FARRAR et al.

158 S.E. 856

BRUCE et al.

v.FARRAR et al.

Supreme Court of Appeals of Virginia.

June 18, 1931.

If the will so provides, the executor has dominion over the real as well as personal estate, the executor being purely the creature of the devisor.

If it becomes necessary to administer the intestate's personal estate, such estate is administered by an administrator— a personal representative created by law. The administrator has no control whatever over the real estate, and his duties relate only to the administration of the personal estate.

Appeal from Circuit Court, Charlotte County.

Bill by Lela Bruce and others against Meredith Farrar and others. From the decree, plaintiffs appeal.

Affirmed.

Argued before PRENTIS, C. J., and CAMPBELL, HOLT, EPES, and GREGORY, JJ.

Allen & Jefferson, of Victoria, for appellants.

J. Kent Early, of Charlotte, and Chas. J. Faulkner, of Chase City, for appellees.

CAMPBELL, J.

Appellants, Lela Bruce, Ales Bruce, and Alma Jones, filed their bill alleging that their father, J. A. Farrar, died intestate, seized and possessed of a tract of land containing 376³/₄ acres, and cash and tangible property amounting to $1,243.43; that decedent left as his heirs and distributees, a widow, Ellen Farrar, appellants, and two sons, Meredith Farrar and J. S. Farrar; that at the time of his death, Meredith and J. S. Farrar were indebted to decedent, by simple contract debts evidenced by notes, in an amount exceeding or equaling the value of their undivided interests in the real estate of which decedent died seized and possessed; that at the time of J. A. Farrar's death, Meredith and J. S. Farrar were also indebted in large amounts to Pennington, Owen & Ralls, First State Bank of Chase City, and others; that judgments have been obtained and duly docketed, the judgment of Pennington, Owen & Ralls prior to, and the other judgments subsequent to, the death of J. A. Farrar; that J. S. Farrar departed this life subsequent to the death of J. A. Farrar; that the creditors of Meredith and J. S. Farrar are seeking to subject their respective interest in the real estate to the payment of their debts.

The bill prays, among other things, that the estate of J. A. Farrar, deceased, both personal and real, be administered by the court and distributed among his heirs at law; that the indebtedness of Meredith and J. S. Farrar to the estate be ascertained and deducted from their share of the estate before their creditors are permitted to subject their respective interests in the estate to the payment of the judgment liens.

The cause was referred to a master commissioner, who, among other things, was required to report the respective proportions in which the heirs at law of J. A. Farrar were entitled to share or participate in the distribution of the estate both real and personal. The commissioner reported that the indebtedness of Meredith and J. S. Farrar to the estate creates an equitable lien on their interest in decedent's real estate superior to the judgment liens docketed against them.

Pennington, Owen & Ralls, and First National Bank, on behalf of themselves and all other lien creditors, excepted to the finding of the commissioner, on the ground that the lien debts of record against the interest of Meredith and J. S. Farrar in the real estate of decedent are superior in dignity to the simple contract debts due by them to the estate, and that the lien creditors are entitled to priority in payment. The chancellor sustained the exception to the report of the commissioner, and decreed that the lien creditors are entitled to have priority in payment out of the interests of Meredith and J. S. Farrar in the real estate they inherited from their deceased father, when the same is sold.

The ruling and judgment of the court is assigned as error.

Appellants admit in their petition for an appeal that the transaction between the decedent and his two sons created the relation of debtor and creditor, and therefore no question of advancement, as is provided for by section 5278 of the Code, is involved in this case.

In Virginia it is provided by statute, section 5264 of the Code: "When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to such of his kindred, male and female, as are not alien enemies, in the following course: First. To his children and their descendants. * * *"

In the exercise of his right of appointment, a devisor having title to real estate may name the executor of his estate, and such personal representative is clothed with such legal powers as the will confers. If the will so provides, he has dominion over the real as well as the personal estate. The executor is purely the creature of the devisor. On the other hand, when any person having title to any real estate of inheritance dies intestate, such real estate descends and passes, under the statute of descent, directly to the heir, without the intervention of a personal representative, subject only to the debts of the ancestor. If it becomes necessary to administer the personal estate of the decedent in case of intestacy, such estate is administered by an administrator—a personal representative created by law. The administrator has no control whatever over the real estate, and his duties relate only to the administration of the personal estate.

The main contention of appellants is that the law favors the equal distribution of the decedent's estate among those entitled thereto, and therefore the administrator has the right to set off the debts owing by the sons, upon the principle of an equitable lien.

No Virginia authority has been found to sustain this contention. In other jurisdio-tions, the question as to the superiority of legal over equitable liens has frequently arisen and the decisions are in hopeless conflict.

One line of cases holds that it is the policy of the law that since realty and personalty pass to the same persons, they are to be considered as one common fund, and the heir indebted to the estate takes the real estate, burdened with the right of retainer or set-off, or else charged with an equitable lien in favor of the other heirs. See authorities cited in the note of 7 Ann. Cas. 563.

The other line of cases holds that upon the death of the ancestor, real estate descends directly to the heir, subject only to statutory regulations regarding decedent's debts; that the administrator is not concerned with the realty of decedent; that the indebtedness of the heir to the estate cannot be set off against his interest in the realty; that there is no equitable lien on real estate acquired by inheritance for simple contract debts due decedent.

In Smith's Ex'rs v. Hardy, 153 Va. 744, 151 S. E. 171, 173, Mr. Justice Holt, dealing with the right of executors to offset the amount going to a distributee against a debt due by the distributee to the estate, said:

"When an heir or distributee is indebted to his decedent's estate, the amount of such indebtedness should ordinarily be deducted by the executors or administrators from his share therein." This we conceive to be the true rule affecting the right of the distributee to share in the distribution of the personal estate of the decedent, but it sheds no light on the question herein involved.

In Marvin v. Bowlby, 142 Mich. 245, 105 N. W. 751, 754, 4 L. R. A. (N. S.) 189, 113 Am. fit. Rep. 574, 7 Ann. Cas. 559, the facts are somewhat similar to the facts in the case at bar. Jacob Bowlby died leaving real and personal estate. Elmer Bowlby, his son, owed his father $3,362.62, for which the administrator obtained a judgment against him, but before its lien attached, the said Elmer had executed mortgages on a portion of his interest in his father's real estate. The administrator filed a bill alleging that the personal estate of his decedent had been exhausted in the payment of debts; that the real estate was in his possession as administrator, and it would be necessary to sell the same; that the mortgages executed by Elmer Bowlby constituted a cloud on the title to this real estate; and that inasmuch as he was insolvent, it would be necessary to apply his distributive share in the real estate to the judgment which complainant had obtained against him; and complainant prayed that this might be done and the mortgages set...