Dodson v. Taylor

• Citation: 21 A. 293,53 N.J.L. 200
• Parties: DODSON et al. v. TAYLOR et al.
• Decision Date: 02 February 1891
• Court: United States State Supreme Court (New Jersey)

21 A. 293

53 N.J.L. 200

DODSON et al.

v. TAYLOR et al.

Court of Errors and Appeals of New Jersey.

Feb. 2, 1891.

(Syllabus by the Court.)

Error to supreme court.

Mr. Vroom, Mr. Rellstab, and Mr. Landing, for plaintiffs in error.

Mr. Murphy and Mr. Baches, for defendants in error.

DIXON, J. To a declaration against the heirs and devisees of James Taylor, deceased, the defendants demurred on two grounds—First, because the declaration contains no averment of the want of sufficient personal property to pay the claim; and, second, because it seeks to charge the defendants upon an indorsement by their ancestor of a promissory note which had not matured at the time of his death, the defendants insisting that such a contingent liability is not enforceable against heirs or devisees. The supreme court having given judgment for the plaintiffs, the defendants sued out a writ of error from this court. The statute upon which the action must rest is, "An act for the relief of creditors against heirs and devisees," passed March 7, 1797, (Pat. Laws, p. 243; Revision, p. 476,) enacting as follows: "Section 1. That all and every creditor or creditors, whether by simple contract or specialty, and whether the heirs are mentioned therein or not, shall and may, by virtue of this act, have and maintain his, her, and their action and actions against the heir and heirs at law of any debtor who hath already died, or shall hereafter die, intestate, seised of any messuages, lands, tenements, or hereditaments, against the heir and heirs at law and devisee and devisees of such debtor, in case such debtor made any last will or testament; * * * and, moreover, all such creditors shall be preferred, as in actions against executors and administrators."

In support of their first ground of demurrer, the defendants contend that there is a general design manifested in the laws of this state to have personal property applied to the payment of debts before real estate is resorted to for that purpose, and that, in furtherance of this design, the statute in question must be read as if it contained a clause restraining the creditors of a deceased debtor from suing his heirs and devisees until his personal assets have proved insufficient to satisfy their claims. In proof of this design, the demurrants refer to the doctrine derived by us from the common law and the ancient statutes of England, that the personal property of decedents is the primary fund for the payment of debts,—a doctrine which has been observed, not only in the courts of this state, but also in its legislation, by the statutes requiring refunding bonds from the legatees and distributees, and by those empowering the orphans' court to decree the sale of lands for the payment of debts only when the personal estate is inadequate. They refer also to the rule, prevalent here from very early times, that writs of fieri facias shall direct the sheriff to make the debts or damages and costs out of the defendant's goods and chattels, if possible, before selling his lands. But the existence of this general policy does not warrant the courts in placing so important a limitation upon a right which the legislature saw fit to grant by this statute in absolute terms. By the common law of England, an action might be brought against heirs, upon any specialty of their ancestor expressly binding his heirs, and by St. 3 & 4 W. & M. c. 14, passed more than a century before our act of 1797, an action of debt might be brought against devisees upon such a specialty. Yet, notwithstanding the prevalence in England of the same views with regard to the primary application of personal assets, it was always considered, not only that the plaintiff, in an action against heirs or devisees, was not obliged to aver that the decedent's goods and chattels were exhausted, but even that a plea by the defendants that there were personal assets sufficient to pay the plaintiff was bad. Jeffreson v. Morton, 2 Saund. 7a, note; 2 Archb. Pr. 1084. The relief afforded to the heirs or devisees was that they might stand in the place of the bond creditor, and reimburse themselves out of the personal estate. Clifton v. Burt, 1 P. Wins. 679. With accurate knowledge, undoubtedly, of this course of decision, Justice Paterson drafted, our statute of 1797, enlarging the right of action against heirs and devisees, but...