La Foy v. La Foy

• Decision Date: 30 June 1887
• Citation: 10 A. 266,43 N.J.E. 206
• Court: New Jersey Supreme Court
• Parties: LA FOY and others v. LA FOY and others.

10 A. 266

43 N.J.E. 206

LA FOY and others

v. LA FOY and others.¹

Court of Errors and Appeals of New Jersey.

June Term, 1887.

(Syllabus by the Court.)

Appeal from court of chancery. Bill for partition.

Philip W. Cross, for appellants. Charles T. Glenn, for respondents.

VAN SYCKEL, J. The bill in this case was filed for the partition of the real estate of John B. Manzagot dit La Foy, among his devisees. The only question that need be considered in this case is whether the debt of a devisee to the testator can be charged on the lands devised to him, in the absence of language in the will making such debt a charge. The ground upon which an executor is permitted to restrain, as against a legatee, so much of his legacy as will satify a debt due from the legatee to the testator, is clearly stated in Jeffs v. Wood, 2 P. Wms. 128, where the master of the rolls says: "The legatee's demand is in respect of the testators assets, without which the executor is not liable; and it is very just and equitable for the executor to say that the legatee has so much of the assets already in his own hands, and consequently is satisfied pro tanto." In Courtenay v. Williams, 3 Hare, 552, ViceChancellor Wigrah, says: "The executors may say to the legatee: 'We admit your right to the legacy; you have assets of the testator in your hands; pay your legacy pro tanto out of those assets.' Again, the executor may say: 'You ask for a portion of the assets of the testator, but you are yourself a debtor to testator's estate, and his assets are diminished pro tanto by your default. It is against conscience that you should take anything out of the estate until you have made good what you owe to it, and the equity of a trustee to impound the interest of a cestui que trust in the trust fund under such circumstances is clear.'" The case of Cherry v. Boultbee, 4 Mylne & C. 442, show? how absolutely this doctrine rests on the fact that the legatee may be compelled to resort to the aid of the law to recover his legacy from one who is entitled to receive the debt the legatee owes to the testator. In that case Lord Cotteniiam remarks: "It must be observed that the term 'set off' is very inaccurately used in cases of this kind. In its proper use it is applicable only to mutual demands, debts, and credits. The right of an executor of a creditor to retain a sufficient part of a legacy given by the creditor to the debtor to pay a debt due from him to the creditor's estate, is rather a right to pay out of the fund in hand than a right of set-off. Such right of payment, therefore, can only arise where there is a right to receive the debt so to be paid; and the legacy or fund so to be applied in payment of the debt must be payable by the person entitled to receive the debt." Our own courts have placed the right of the executor to retain upon this equitable basis. Snyder v. Warbasse, 11 N. J. Eq. 463; Brokaw v. Hudson's Ex'rs, 27 N. J. Eq. 136.

The devisee of lands occupies no such relation to the executor as that which exists between legatee and...