Robards v. Wortham

• Decision Date: 31 December 1831
• Citation: 17 N.C. 173
• Parties: NATHANIEL ROBARDS AND DELPHIA WASHINGTON. EXECUTORS OF JOHN WASHINGTON, v. JAMES L. WORTHAM, ET UX.
• Court: North Carolina Supreme Court

17 N.C. 173

NATHANIEL ROBARDS AND DELPHIA WASHINGTON. EXECUTORS OF JOHN WASHINGTON,

v.JAMES L. WORTHAM, ET UX.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1831

1. Where a testator in his lifetime subscribed for stock in the Roanoke Navigation Company, and died without completing the payments, and by his will gave specific legacies, and created a fund for the payment of his debts, it was held, the fund for the payment of debts and the undisposed of residue being exhausted, that the stock in the hands of the heir should be subjected to the payment of the balance due upon the subscription, in exoneration of a specific legacy.

2. Descended lands must exonerate a specific legatee from the payment of all debts for which the heir is bound.

3. The devisor cannot restrain the creditor from subjecting the personal estate ; but where the latter has a right to resort to both the personal and real assets, and exhausts the former, a legatee will be substituted to the rights of the creditor against the heir.

4. If the heir pay the specialty debt of the ancestor, he may indemnify himself out of the residue of the personal property.

5. But the legatee cannot be indemnified out of the real estate, unless the debt paid by his legacy be a charge upon the heir.

6. And a subscription to the stock of the Navigation Company being a simple contract debt, the legatee, on payment of it, has no right to indemnify from the real estate.

7. But the subscription creating a specific lien, and being the ancestor's debt, the heir has a right to an indemnity from the residue, and a specific legatee from the real estate.

8. Where land is devised to be sold for the payment of debts, and the surplus given away as cash, it is primarily liable, even between the heir and the residuary legatee.

9. But where the land is charged with the debts, it is taken as only auxiliary to the personal estate, unless the contrary clearly appears to have been the intention of the testator.

10. Real assets in the hands of the heir, as well as personal estate, are the primary funds for the payment of specialty creditors and specific liens ; and by specifically bequeathing the personal estate, the testator declares his intention that the land shall bear its own burden.

11. So by a devise of the land the testator declares his intention to exempt it. and hence a devise to the heir prevents the land from being subjected in exoneration of the specific legacies.

12. It is a question of intent; but to change the order of liability requires a clear expression to that effect.

13. And where the testator devised land to be sold for the payment of debts, and gave the surplus to his wife, and also gave her a large legacy and small legacies to others, and directed his executors, in case of a deficiency of the fund for the payment of debts, to sell such property as his wife

might point out, it was held that this direction charged the wife's legacy as between her and the other legatees, but did not exonerate descended real estate.

JOHN WASHINGTON in his lifetime subscribed for twenty-five shares of stock in the Roanoke Navigation Company, upon which he paid $65 per share, leaving $35 on each share unpaid at hisdeath.

By his will, of which he appointed the plaintiffs executors, he devised as follows:

"I give and bequeath to my beloved wife, Delphia, the land whereon I now reside, with all the appurtenances thereon belonging, known by the name of Potter's Bridge plantation, to her and her heirs forever.

"I give and bequeath to my beloved wife the following negro slaves (thirty in number). I give my wife all my household and kitchen furniture, and all my live-stock of every kind whatsoever, and all my plantation tools and utensils, such as wagons, carts, etc.

"I give and bequeath to Mary H. Wortham my negro woman Rhody and her son Burrel, to her and her heirs forever.

"I give and bequeath to James L. Wortham my three stills, and my library of books of every sort, and my blacksmith's tools now in his possession.

"And as to my just debts, I would have them paid as soon after my decease as can with convenience be done, and for that purpose authorize and request my executors hereinafter named to sell my two tracts of land, one lying on the Nap of Reed's Creek, etc., one other tract of land in Halifax County, Commonwealth of Virginia, lying on Little Blue Wing. Should not the proceeds of the land be sufficient to pay my just debts, that my executors sell other property such as my wife shall direct, to complete the payment of my debts. And it is my will and desire that should an overplus remain of the proceeds of the sales aforesaid, then the same shall be and remain with my wife, to her and her heirs forever."

After his death the directors of the Navigation Company obtained a judgment against the plaintiffs, his executors, for the sum of $1,124.96, being the balance of principal and interest due on his subscription, and upon the payment of the amount of the judgment, issued a certificate that "the late John Washington is the owner of twenty-five shares of the capital stock of the Roanoke Navigation Company, on which has been paid $100 per share."

The plaintiffs in their bill averred that the fund created by the testator for the payment of his debts had proved insufficient for that purpose, and alleged that the stock, being real assets, had descended to the

wife of the defendant James, who was the only child of the testator, and prayed that it might be subjected to the payment of the debt in exoneration of the specific legacy to the plaintiff Delphia.

The answer admitted all the facts above cited.

RUFFIN, J. Descended lands must pay all debts for which the real estate is liable, in exoneration of all but residuary legacies, or of other lands specifically devised for the payment of debts. And if the creditors go upon the personalty, the legatees may have an indemnity out of the realty. This is an old rule of the court of chancery. (Ch. Ca., 2 pl. 4.) It is founded on this: that a man who is able to pay all hisdebts, and has something over to give away, may give it as he chooses. He cannot, indeed, restrain the creditor from resorting to any fund made liable to him by law. But if the creditor will, through mere caprice or convenience, go upon that fund which the testator meant for a particular donee, instead of that other left open alike by the law and the testator for his satisfaction, the donee shall be reimbursed out of the latter. And as to debts due by specialty in which the heir is bound, this principle has been extended to the protection of pecuniary legatees —much more specific legatees. Hanby v. Roberts, Amb., 127; Galton v. Hancock, 2 Atk., 430; Aldrich v. Cooper, 8 Ves., 396. If, therefore, the heir be made to pay such a debt, he may reinstate himself out of the executor, if there be a residue; because both at law and in this Court that is liable before land; but if there be no residue, but only things given away in legacies, he cannot, but must rest under the burden. E cowverso, if such legacies be applied to the discharge of such a debt, the legatee shall be reinstated by standing in the place of the satisfied creditor. Hanby v. Roberts, supra. It follows that in no case in England can the legatee be reimbursed out of the land for a simple contract debt paid out of his legacy; for the heir was not liable for that to the creditor, to whose rights and remedies only is the legatee substituted. It is the same here; because simple contract creditors can have recourse to the land only after exhausting the personalty, and therefore the legatee cannot ask the land to replace that personalty—which would be an absurdity, as was held in Miller v. Johnston, 7 N. C., 194.

This is a debt by simple contract, as the subscription does not purport to have been made by deed, and the...