McCarthy v. Mullen

• Decision Date: 09 January 1912
• Citation: 82 N.J.L. 379,82 A. 51
• Parties: MCCARTHY et al. v. MULLEN.
• Court: New Jersey Supreme Court

82 A. 51

82 N.J.L. 379

MCCARTHY et al.

v. MULLEN.

Court of Errors and Appeals of New Jersey.

Jan. 9, 1912.

(Syllabus by the Court.)

Congar v. Brady, 62 N. J. Law, 641, 42 Atl. 415, overruled.

Error to Circuit Court, Sussex County.

Action by Charles J. McCarthy and David W. McCarthy against Mary Mullen, executrix. Judgment for plaintiffs, and defendant brings error. Reversed, and judgment rendered.

Theodore E. Dennis, for plaintiff in error.

Coult & Dolan, for defendants in error.

PITNEY, C. The defendants in error, who were plaintiffs below, by their declaration averred that one Thomas Flynn in his lifetime was indebted to them for goods sold and delivered, money loaned, etc., and being so indebted departed this life leaving a last will and testament, whereby he devised and bequeathed to Timothy Flynn all his estate, both real and personal; that the said Timothy Flynn thereby became possessed of more than sufficient real and personal property to meet the debt so due and owing from the said Thomas Flynn to the plaintiffs; and that thereafter the said Timothy Flynn departed this life leaving a last will and testament, whereof Mary Mullen, the defendant, is the sole executrix; that Thomas Flynn in his lifetime promised the plaintiffs to pay to them the said Indebtedness, yet the said Thomas Flynn in his lifetime, and the said Timothy Flynn, his devisee, since the death of the said Thomas, and the said Mary Mullen, executrix, since the death of the said Timothy, have not paid the same or any part thereof, but on the contrary have refused and still do refuse to pay the same. The defendant demurred, on the ground that the declaration disclosed no ground of recovery against her as executrix of Timothy Flynn. The circuit court overruled the demurrer, and after assessment of the damages rendered final judgment in favor of the plaintiffs. To review this judgment, the defendant sued out the present writ of error.

As will be seen presently, the action, if it have legal foundation, must rest upon the "act for the relief of creditors against heirs and devisees," passed March 7, 1797, as a part of what is known as Judge Paterson's Revision, and which still remains unrepealed. Paterson's Laws, p. 243; 2 Gen. Stat. 1895, p. 1679. The court below, in overruling the demurrer, did so upon the ground that by this act the liability imposed upon a devisee of the original debtor is of a personal nature, and survives against the personal representatives upon the death of such devisee; relying upon the decision of the Supreme Court in Congar v. Brady, 62 N. J. Law, 641, 42 Atl. 415.

Before proceeding to deal with this question (which is the only question that has been argued before us), we may first dispose of the suggestion that arises out of the averment of the declaration that Timothy Flynn became possessed of certain personal property upon the death of Thomas Flynn. Defendants in error do not rely upon this as a ground of recovery against the executrix of Timothy Flynn, nor is it sufficient to warrant such a recovery. An action at law would not lie against Timothy, as legatee, for the debt of Thomas. The creditor should sue Thomas' executor, or if barred of such suit should proceed as provided in the orphans' court act (P. L. 1898, p. 742, §§ 77, 78). It is not averred that Timothy Flynn was the executor of Thomas; and were this true it. would not render his executrix liable in this action, for under our statute concerning executors (2 Gen. Stat. 1425, pi. 2) the executor of an executor does not represent the first testator. Nor is it averred that Timothy Flynn, in consideration of having received the property of Thomas Flynn or for any other consideration, made Thomas' debt his own by expressly promising to pay the same. There is no averment of any promise either by Timothy Flynn or by the defendant, his executrix. It is clear, therefore, that the declaration raises no other question than whether the action may be maintained under the "act for the relief of creditors against heirs and devisees." In considering this question, it is to be borne in mind that the declaration does not aver either (1) that Timothy Flynn in his lifetime sold or aliened any of the lands that came to him by devise from Thomas, or (2) that Timothy by his will devised those lands or any of them to the defendant.

In Congar v. Brady, 62 N. J. Law, 641, 42 Atl. 415, suit was brought against an heir at law of a deceased devisee of the original debtor. A demurrer to the declaration presented the question whether by virtue of the statute the defendant was chargeable with the payment of the obligations of the original debtor to the extent of the value of the lands so descended. This question was answered in the negative, the opinion declaring: "An examination of the statute will at once disclose that although it makes the devisee of a deceased debtor liable for his debts, no action is given against any successor to the title of such devisee. The right of action is not given for the purpose of creating and enforcing a lien upon the lands devised. It is not the land, but the devisee who is made liable for the indebtedness. That liability is purely personal, and survives, if at all, not against the heirs, but against the executors and administrators of the devisee upon his decease."

It seems to us that if the statute by proper construction does create a purely personal liability on the part of the devisee, that liability would, on general principles, survive against his personal representative upon his decease. To quote from Williams on Executors, *1721: "The general rule has been established from very early times, with respect to such personal claims as are founded upon any obligation, contract, debt, covenant, or other duty, that the right of action on which the testator or intestate might have been sued in his lifetime survives his death and is enforceable against his executor or administrator. Therefore it is clear that the executors or administrators are answerable, as far as they have assets, for debts of every description due from the deceased, either debts of record, as judgments, statutes, or recognizances; or debts due on special contract, as for rent or on bonds, covenants, and the like, under seal; or debts on simple contract, as notes unsealed, and promises not in writing, either expressed or implied."

In at least two previous decisions the Supreme Court had expressed views at variance with the decision in Congar v. Brady, above cited. In St. Mary's Church v. Wallace (1829) 10 N. J. Law, 311, it was held upon much consideration that in an action against surviving heirs of a deceased obligor the heirs of a deceased heir having lands by descent should be joined in the action, or their nonjoinder might be pleaded in abatement. This was upon the ground that (where the lands have not been aliened prior to suit brought) the heirs are responsible for the debt only with respect to and to the extent of the lands descended; that if the lands have passed through more than one descent the heir of the heir is liable; and that where there are several heirs all ought to be joined in the suit, to the end that they may have contribution from each other. The learned opinions delivered by Chief Justice Ewing and Mr. Justice Ford wholly negative the theory that (except for false pleading or the like, or the alienation of the lands prior to suit brought), there is any personal liability on the part of the heir. In Muldoon v. Moore (1893) 55 N. J. Law, 410, 26 Atl. 892, 21 L. R. A. 89, the decision proceeded upon the ground that, in an action under our statute, a creditor of a deceased obligor may recover in an action against the heir or devisee either: (1) If defendant plead properly, a special judgment requiring the debt to be made only out of lands descended or devised to defendant which have not been by him bona fide aliened before the commencement of the action; or (2) if defendant plead falsely or improperly or fail to plead, a general judgment for the debt as if it were a debt of the defendant; or (3) if the lands have been bona fide aliened before action brought, a like general judgment, but only for the value of those lands.

In view of these conflicting decisions respecting the proper construction of our act, it may be proper to briefly review the practice in England, both under the common law and under Act 3 & 4 Wm. & Mary, cap. 14, upon which our statute was for the most part modeled.

At the common law, heirs were liable on specialties of the ancestor only when he had assumed by express mention of "his heirs" to bind them; and then they were held liable (except for false pleading or the like) only for the lands descended to them. Prior to the act of Parliament, the heir might alien the lands free of any charge by reason of the ancestor's debt, and he was not in that event even bound to answer for their value (at least not in an action at law), but if suit was brought on the obligation before alienation, the lands were bound in the hands of the heir, and the obligee upon recovery could have execution on the lands descended, even in the hands of an alienee pending suit. But he could have no further recovery, unless the heir had made himself personally liable by false pleading or otherwise. The hardship upon creditors consequent upon allowing the heir to alien before suit brought and without being responsible even for the value of the lands, was relieved by the act of Wm. & Mary, which provided that where the heir did thus alien he should be liable to the value of the lands descended, but that the lands aliened should not be liable. The same act for the first time gave a remedy against devisees, for since devisees did not come within the words of the obligation (not being in the description of "heirs"), they could formerly enjoy the land or alien it free from any claim of creditors (at least at law) against either the alienee or themselves; for...