Stone v. Todd

• Decision Date: 17 February 1887
• Citation: 8 A. 300,49 N.J.L. 274
• Parties: STONE v. TODD and others.
• Court: New Jersey Supreme Court

8 A. 300

49 N.J.L. 274

STONE

v. TODD and others.

Supreme Court of New Jersey.

February 17, 1887.

(Syllabus by the Court.)

On rule to show cause why a new trial should not be granted.

Stephen B. Todd died intestate, January 25, 1883, leaving the defendants, his brothers and sisters, surviving him, his heirs at law. This action was brought January 18, 1886, by the plaintiff, to recover for services rendered by her as housekeeper to the decedent from May, 1859, to January 25, 1883, the date of his death, for which she claimed at the rate of $50 per month, amounting in all to more than $14,000. The estate was large, and either the personal or real estate ample to pay all debts, including the entire claim of the plaintiff. The pleadings, besides the denial of indebtedness, raise several special defenses. The material points were that the claim was, in whole or in part, barred by the statute of limitations; that the plaintiff did not present her claim to the administrators, who had, at the time the suit was brought, sufficient assets in hand to pay all debts; and accord and satisfaction by an alleged agreement between the plaintiff and defendants prior to the suit. There was a rule to bar creditors which had expired before this action was brought, but there had been no distribution of the personal estate remaining in the hands of the administrators. At the trial, in the Union county circuit, the jury give the plaintiff $10,000 and the court, on application, granted a rule to show cause why a new trial should not be granted.

R. V. Lindabury, for plaintiff.

J. P. Osborne and A. A. Clark, for defendants.

SCUDDER, J. There is no dispute between these parties that, if the plaintiff have a legal cause of action, she might bring suit against the administrators after the expiration of the rule to bar creditors, for the distributive shares had not been paid over to the persons entitled to the same, and were assets in the hands of the administrators for the payment of a ratable proportion of the claim of any creditor who should not have presented the same within the time limited in the rule to bar creditors. Revision 765, 766. The contention is that the personal estate is the primary and only fund for the payment of this debt, if anything be due, because it is sufficient to pay the entire claim of the plaintiff, and until it is exhausted she has no right of action against the heirs at law of the deceased to whom his real estate has descended.

There are two methods provided by our statutes in which lands which have descended to heirs at law may be taken for the payment of the debts of the decedent: (1) By an order of the orphans' court, obtained within one year after the decease, notwithstanding any alienation made or attempted, on insufficiency of the personal estate to pay debts, (Revision, 766, 770;) or (2) by action brought by creditors against the heirs to fix their liability in regard to any lands, tenements, or hereditaments which have descended to them, (Revision, 476, 1, etc.)

The usual method to subject the lands of a debtor after death to the payment of his debts which are not specific liens and incumbrances is by the order of the orphans' court in the ordinary course of administration. As it is more convenient, and best preserves the rights of all creditors in one proceeding, it is most frequently used. But it is not the creditor's only remedy, nor is he compelled to take it in the first instance. Gases that have been cited to the contrary are founded on statutes which make lands liable for the debts of an ancestor where the personal estate shall be insufficient to pay all legal demands against him. Such are Selover v. Coe, 63 N. Y. 438; McLean v. McBean, 74 Ill. 134; Woolvidge v. Page, 1 Lea, 135; and others cited on the argument. It is in such cases, and in those states where such laws are found, that it may be said "that since the personalty constitutes the primary fund for the payment of the, debts of a deceased person, no liability can be imposed on heirs at law, by reason of their inheritance, save upon a deticiency of personal assets." Schouler, Ex'rs, par. 445.

There is no doubt that at common law, and by statute, authorizing execution against lands, the personal estate is primarily liable for the payment of debts, and that in the equitable application of assets it is charged before lands, and it may be even called upon to pay debts secured upon land in exoneration of such lands. Whitehead v. Gibbons, 10 N. J. Eq. 230; Keene v. Munn, 16 N. J. Eq. 398.

These points, however, which were so strongly pressed in the argument before us, are aside from the direct issue in this case, which is, what effect must be given to the "Act for the relief of creditors against heirs and devisees," (Revision, 476?) When this act, in section 1, says "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, or their action and actions against the heir and heirs at law of any debtor who hath already died, or shall hereafter die, intestate, seized of any messuage, lands, tenements, or hereditaments," etc., what shall stay the plaintiff, who stands in the position of acreditor, in her action against these defendants, who holds lands by inheritance from her alleged debtor? It is not sufficient to say that she has another and more convenient remedy. This may or may not be true. The time has passed for her to present her claim within the period limited by the order of the orphans' court, and for the restraint upon alienation under the statute; and, if it were certain that there was another and a better remedy, the court cannot dictate to suitors where they have a choice of remedy. This act invoked by the plaintiff is an old statute, passed March 7, 1797, and has stood without alteration since its enactment, except in its extension, by the supplement of 1853, to the case of non-resident heirs and devisees. The first section to which I have referred is copied from different sections of 3 & 4 Win. & Mary, c. 14, (1691,) (1 Evans, Eng. St. 462,) with the additions made by Mr. Patterson in his Revision, p. 291, extending its remedy to debts by simple contract as well as specialties, and whether the heirs are mentioned therein or not. We need not refer to other particulars of the statute which do not apply to this case. We have here, as defendants, the heirs at law who have not aliened the estate cast on them. The remarkable change made in this law was the power to bind lands of an ancestor in the hands of heirs for simple contract debts; and, whether the heirs were mentioned therein or not, prior to these statutes, and at the common law, the heirs were liable only for specialty debts of the ancestor to the extent of the value of the land descended. Davy v. Pepys, Plow. 438; Buckley v. Nightingale, 1 Strange, 665; Barber v. Fox, 2 Wms. Saund. 134; 3 Bac. Abr. 460. A colonial act, passed December 2, 1743, (All. 129,) made real estate chattels to be seized, sold, and disposed of for the satisfaction of debts. Before that it seems they could not be sold, but only extended upon an elegit. This act was repealed and extended by subsequent legislation. Warwick v. Hunt, 11 N. J. Law, 1. The act of 1797 charged heirs and devisees with the debts of those whose lands they took, by descent or devise, to the amount of the value of the. lands. With proper pleading, they could protect themselves against further liability. The legislature have the power to pass such a law. Watkins v. Holman, 16 Pet. 25.

Mr. Griffith, in his Law Register,—volume 4, p. 1289, (1822,)—says this law should be abolished, because it breaks in upon and defeats the real intent of the act of 1799, which was that lands should be liable for the debts of the decedent, but only under the control of the orphans' court. At the same time he complains because there is not an adequate lien in either case to prevent the land from alienation. But the act of 1797 still remains among our statutes, and has been recognized in its provisions by our courts. Since then the act of December 12, 1825, has given a lien on the real estate of the ancestor or devisor for one year after the decease.

Skillman v. Van Pelt, 1 N. J. Eq. 511, says: "Although it [this act] extends the remedies to all debts of the ancestor or the devisor, whether by specialty or otherwise, yet it preserves the vital principle that the purchaser bona fide shall be absolutely protected."

Den v. Jaques, 10 N. J. Law, 259, reversed on another point, held, in an action of ejectment, that land aliened before suit brought by a creditor cannot be taken in execution on judgment against an heir for the debt of his ancestor.

In St. Mary's Church v. Wallace, 10 N. J. Law, 311, it was decided that the heirs of a deceased heir, having lands by descent, should be joined in an action against surviving heirs on the bond of their deceased ancestor.

Stillwell v. Tomlinson, 36 N. J. Law, 359, was a suit against the heirs for a debt of the ancestor, and gave a proper form of pleading in such case.

In New Jersey Ins. Co. v. Meeker, 37 N. J. Law, 282, there is a full examination of our statute, and the English statute from which, in part, it is taken, on demurrer to an action for breach of covenant against incumbrances contained in a deed of conveyance. It was held that an action of covenant would lie under this statute against heirs and devisees.

Fredericks v. Isenman, 41 N. J. Law, 212, was an action on a bond against the heir at law under this act. A recovery was had, limited to the value of the lands in the condition in which they were at the time of the descent cast.

In none of these cases is there an intimation that the creditor must first proceed against the executor or administrator, and...