Badger v. DanielBadger v. Daniel
- Reporters:
- Before:
- Rodmán
1. A judgment obtained against a guardian in 1871 in favor of his ward, is conclusive evidence against him and the sureties upon his bond of the amount of his indebtedness to the ward at that time.
2. Where, in pursuance of a decree, upon final settlement of a testator‘s estate and more than two years after his death, an executor paid legacies to parties entitled without notice of any outstanding debt of his testator and took good and sufficient refunding bonds from the legatees; It was held, in an action upon a guardian bond to which the testator was surety, that the executor was not liable. Held further, that the acceptance of a legacy, in such case, does not operate to discharge the testator‘s estate from a liability incurred by his suretyship on the bond of the guardian of such legatee, to the extent of sums received by the guardian as guardian; but the value of the legacy so received and such other sums as may be made out of other legatees must be applied to its discharge, before subjecting lands in possession of devisees of the estate.
Held further, 1st—That the act (
3. Where a legatee (and devisee) executed a refunding bond upon receipt of his legacy, and sold and conveyed land devised to him within two years after the testator‘s death; Held, (1) That his surety was liable primarily (to the extent of the terms of such bond) as between him and the purchaser of the land, for an outstanding debt of the testator, whether evidenced by judgment or not. (2) Such purchaser holds the land as the devisee did; and, therefore, the conveyance to him is void and the land liable as assets for the payment of
4. Each devisee or heir is liable for the debt of his devisor or ancestor in proportion to the respective values of the land; and the whole debt to an amount not exceeding the value of the devise to one, may be made out of him, he being entitled to contribution from the others, which may be decreed in an action where they are all parties.
5. And each devisee, heir, &c., is a surety (to the extent of what he receives) for the other sharers in the estate, to the creditors thereof.
6. An executor is not chargeable with the value of slaves destroyed as property by emancipation while in his possession; nor is a legatee, to whom they were delivered and retained.
7. Where a guardian sold land which was devised to his ward to J for $10,000, and afterwards bought it back from J, paying for it with his ward‘s money; and the land was subsequently sold under a decree to re-imburse the ward, and the ward became the purchaser at $8,000; Held, that the price bid by the ward was a proper credit to the guardian upon the charge made against him for the original price.
8. The liability of a devisee for the payment of the devisor‘s debt is contingent upon the insufficiency of the personal estate; and it was held, in an action to subject the devised land and before such insufficiency was ascertained, that the plea of the statute of limitations was no defence.
(*BYNUM, J. Concurring: Remarks upon the decision in Brown v. Pike, and re-affirms the ruling therein made.)
(Brown v. Pike, 74 N. C. 531; Stack v. Williams, 3 Jones Eq. 13; Hinton v. Whitehurst, 68 N. C. 316; Bond v. Billups, 8 Jones 423; Strickland v. Murphy, 7 Jones 242, cited and commented on.)
This action was brought on the 9th of October, 1871, against the defendant, guardian of the femes plaintiff, and the sureties upon his bond; it was alleged among other things that in consequence of the failure of the guardian to account, the plaintiffs recovered a judgment for $20,690.44 against him at Fall Term, 1871, and now seek to subject
The defendant was appointed guardian of plaintiffs in 1855, and executed a bond with sureties. The defendant and his sureties are insolvent, except Andrew Joyner, surety, who died in September, 1856, leaving a last will and testament, appointing defendant B. F. Moore and another, executors (Moore being now sole executor), and devising lands and bequeathing personal property to his son Henry Joyner, to his daughter Mrs. Austin and her children (the femes plaintiff), to his daughters Mrs. Eppes and Mrs. Daniel, and to Robert O. Burton and his children (who are the grand-children of testator, and upon the death of either before arriving at the age of twenty-one years, or without issue, it was provided that his share should be equally divided among the survivors). He made certain advancements of personalty during his life time; and in respect to the slaves in his possession for distribution he provided in his will that the rates of valuation fixed in a schedule annexed thereto, should be observed, and upon a petition filed by his legatees in November, 1856, for a division of the slaves, the executor delivered them over to the parties entitled, in pursuance of the order of the Court; and they were retained by the legatees until they were emancipated. In November, 1858, the legatees filed a petition against the executor for a final settlement of the estate, and he distributed the same under a decree made in February, 1859; paying to said Daniel as guardian of plaintiffs, and to the other legatees, or their guardians, considerable sums of money, and taking from each a good and sufficient refunding bond conditioned that in case any debts truly owing by said Andrew Joyner be sued for, or otherwise duly made
For about twenty years previous to the death of Andrew Joyner, the defendant Moore (executor) was his attorney, and their relations were of a friendly and social character, and said defendant had ample means of knowing and in fact did know his habits of business. The said testator was regarded by the public, and by said defendant was known to be a man of unusual prudence in the management of his financial affairs. At the time of the settlement of the estate as aforesaid, the defendant executor had no knowledge or cause to believe that his testator was surety on said guardian bond, or in any other manner; the defendant guardian at that time was the owner of a large real and personal estate, and solvent. After the qualification of the defendant, as executor, he advertised for creditors as required by statute (
The plaintiffs in their complaint demanded judgment against the defendant executor for the amount of the said judgment; and that the land devised to the said grand-children (Burton‘s) be sold, and the proceeds thereof together with the amount which may be recovered against the defendant Hervey as surety to the refunding bond of Henry Joyner deceased, be applied to the pro rata payment of said judgment, &c.
By eliminating the additional facts and conclusions of law as found by the referee, and arranging them in the order in which they are discussed in the opinion, they are as follows:—
1. At Fall Term, 1871, upon the report of a commissioner
Upon these facts the referee held that said judgment concluded all of the defendants as to the debt and default of the defendant guardian; but so much thereof as was rendered on account of the purchase money for the land, was extinguished by the election of plaintiffs to follow the land, leaving a balance of $12,916.53, to which the plaintiffs are entitled according to their respective interests therein. Defendants excepted.
2. The refunding bonds executed by the legatees to the executor were, when taken, (Feb. 23, 1859) good and sufficient as to the amount of the penalties thereof, and the sureties thereto; and the referee held that the plaintiffs were not entitled to recover against the executor. Defendants Burton and Whitfield excepted, for that, the referee exonerates the executor from all liability; whereas by reason of his failure to take proper measures to lessen the liability of his testator as surety upon said guardian bond, and by reason of his paying over to the plaintiffs while said liability existed, he is chargeable with any debt to the plaintiffs arising from said suretyship.
3. The defendant, H. J. Hervey, was surety upon the refunding bond of the legatee Henry Joyner; and the referee
4. The said Henry Joyner, during his life time, conveyed the land, devised to him by the will, to the defendant Whitfield on the 1st of March, 1857, less than two years after the testator‘s death; and the referee held that the conveyance was void, and the land liable as assets in the hands of its present proprietor to the claim of the plaintiffs. Defendant Whitfield excepted.
5. The defendant Burton excepted (2) because the referee did not hold that the devises and bequests to plaintiffs by the testator, and their acceptance of the same, constituted a release of all liability of the testator by reason of his said suretyship.
6. The defendant Burton in exception 6 insisted that the referee erred in including in said balance alleged to be due plaintiffs, the funds received by the guardian after the marriage, or arriving at full age, of the femes plaintiff; whereas said guardianship terminated on the dates of marriage, &c., and defendants are not liable for any default of the guardian, thereafter.
7. Exceptions 3, 4, 5, of Burton,—for that the referee did not credit the amount due by the guardian to his wards with the amount of real and personal property received by the wards from the estate of Andrew Joyner; for that, in the sum as fixed by said judgment, is included the personal property derived by the femes plaintiff from said estate; and for that, the referee erred in not taking an account of said estate and charging the plaintiffs with what came into their hands with compound interest, in exoneration pro tanto of said Joyner‘s estate.
8. Defendant Burton in exception 12 insisted that the
9. Exception 14 of defendant Burton,—for that, the referee has not credited the debt found by him to be due the plaintiffs with the sum of $15,000 found by him to be the value of the “Graham tract” of land in 1871, at the time of the purchase by plaintiffs. The facts in respect to this transaction are embodied in the opinion. See also paragraph 1, supra.
10. The defendant Burton excepted (13) for that, the referee held that the plea of the statute of limitations was not a good defence.
The report of the referee was modified and sustained, and a decree made declaring the respective amounts due plaintiffs, and the respective liabilities of defendants, and appointing a commissioner to sell the land devised to certain devisees; and the cause was retained for further orders.
RODMAN, J. 1. The first exception to the report of the referee is joined in by all the defendants; it is that he admitted the judgment recovered against the guardian Daniel in the Court of Equity for Halifax county at Fall Term, 1871, as conclusive evidence of the amounts then owing by the guardian to his several wards and excluded evidence tending to impeach it as erroneous.
By the terms of the reference the referee was authorized to state the indebtedness of the guardian to his several wards “as it may appear upon any judicial proceedings theretofore had between them (obviously alluding to the judgment aforesaid); or upon a statement of the guardian account without reference to such judicial proceedings.” The referee being of opinion that the judgment was conclusive did not state an account independently of that. He probably felt bound by the decision in Brown v. Pike, 74 N. C. 531, as did the Judge who confirmed his report in this respect.
The decision was earnestly questioned by Mr. Batchelor for the defendants, and we were requested to reconsider it. We have done so, and the majority of the Court are of opinion that the decision was right. Individually, I think otherwise, and that the words “in like manner,” do not mean “with the same force and effect,” but are surplusage. This exception is overruled. While the exceptions of Burton and Whitfield respectively raise the same questions, or nearly so, they do so in a different order and without regard to any dependence of the questions on each other. It
2. (Exception 8 of Burton and 2 of Whitfield) Moore the executor of Joyner is liable for the debt to plaintiffs, because having paid off all debts of his testator except the present one, after the expiration of two years from his qualification, he delivered to the several legatees their slaves, without taking any refunding bonds; and their other personal legacies, taking refunding bonds in penalties less than the value of the legacies, but in the aggregate exceeding the amount of the plaintiffs’ claim. It is admitted that except as to the amount of penalty the bonds were sufficient.
The act (
3. (Exception 10 of the Burtons). The liability of Hervey surety to the refunding bond of Henry Joyner. Joyner received a legacy and was also devisee of certain lands which he sold to Whitfield on the 1st of March, 1857, which was less than two years after the death of the testator, in September, 1856. The referee holds that Hervey is liable primarily as between him and the purchaser of the land from Henry Joyner, and in this opinion we concur. It is no defence for Hervey that no judgment ascertaining the debt has been heretofore recovered against the executor of Andrew Joyner. The executor is a defendant in this action, one object of which is to establish the debt against him, and all interested in contesting the debt, have an opportunity of doing so.
As to the extent of Hervey‘s liability:—By the terms of his bond it is confined to a ratable portion of the plaintiffs’ debt, supposing all the other legatees responsible for their respective portions. Their insolvency can not extend his liability beyond the terms of his bond. This exception is overruled. It will be in place to say here that we agree with the referee, that Hervey is liable for his ratable portion of the value of the slave sold by H. Joyner. The exception to that charge is overruled.
4. (Exception 4 of Whitfield). It is of course conceded that the sale by Henry Joyner, of the lands devised to him, to Whitfield having been made within two years after the death of Andrew Joyner was void as to the plaintiffs. Whitfield held the land as Henry Joyner did, and sales by Whitfield after the two years, passed unincumbered estates to his vendees, Whitfield holding the price paid him in lieu of the land and subject to its liabilities. Those to whom he
The liability of an heir for the debts of his ancestor by reason of assets by descent, does not seem to have been essentially changed since the time of Coke, three hundred years ago, but the method by which the creditor enforces it, has been very much changed. As all the devisees are parties to this action, contribution between them will be provided for in the decree. Those if any who sold their land after the two years and have become and are now insolvent, are liable to judgments in favor of all devisees who by consequence of such insolvency shall be compelled to pay more than what would otherwise have been their ratable portions.
It is a consequence of this doctrine that each legatee, or distributee, or devisee, or heir, is, to the extent of what he receives either in personalty or land from the testator or intestate, a surety to all creditors of the testator or intestate, for all the other sharers in the estate; so that if one of two distributees or heirs squanders his property, the other is bound to make the debt good, although it may take every dollar he has received from the common ancestor. To some, this may seem harsh and inequitable, but we take
5. (Exception 2 of Burton.) The legacies to the femes plaintiff were clearly not intended in satisfaction of the debt by the testator, Andrew Joyner, now sued on. (1) It does not appear that the testator knew of his indebtedness to the plaintiffs by reason of his suretyship for Daniel, which was contingent, and in fact most of it arose after his death. (2) He provides by his will for the payment of all his debts. 2 Williams Executors 1167. This exception is overruled.
6. (Exception 6 of Burton.) If the referee has charged Joyner as surety of Daniel with any sums received by Daniel, after his guardianship as to any of the wards ceased, by their arrival at full age or marriage, we think he erred. Such sums were properly chargeable against Daniel, but the surety is only liable for what the guardian received as guardian. This exception seems to be founded in fact and is therefore sustained.
7. (Exceptions 3, 4, 5, of Burton). If we understand
The general rule certainly is that the personal estate of a testator is to be applied to the payment of his debts in preference to his lands. If the executor had paid this debt he would have paid it out of the personal estate and diminished pro tanto each legacy. 2 Williams Executors 1532, 1526, n. 2; Hinton v. Whitehurst, 68 N. C., 316. We see nothing in this case to take it out of the general principle. If all the legatees had remained solvent, each would have contributed pro rata to make up the plaintiffs’ debt, and the plaintiffs would have lost only their pro rata share; and they are now entitled to personal judgments against all of such legatees who have not some special defence, and they may make such judgments available if they can. But they are not entitled to go upon the lands of the testator as in the hands of his devisees by special execution to make any portion of his debt, until they have applied to the payment of that debt the value of the legacies to them (excepting the slaves), and such other sums as they may be able to make out of the other legatees. The reason for excepting the slaves will be mentioned presently. Passing them by, the rule has been long settled. An heir sued on the bond of his ancestor can not plead that there are personal assets in the hands of an administrator, but if he pay the bond debt, he may come on the personal assets for indemnity. 2 Williams Executors, 1532, notes n and o.
As to the slaves: It seems that with the exception of one sold by Henry Joyner, they were all kept by the legatees until they were lost by emancipation. It is settled law, that if this destruction of them as property by vis major had happened while they were in the hands of the execu
It may be said of this rule, as was said above of a similar rule applied to devisees or heirs of land, it makes each, to a certain extent, a surety for all the others, so that the misfortune or extravagance of one legatee may cause another to lose perhaps his whole legacy. The only remedy for such a hardship, if it be one, is as was there suggested. This exception is sustained.
8. (Exception 12 of Burton.) We are of opinion that the sale to Bockover was bona fide, and upon a valuable consideration, and having been made more than two years after the death of the testator, he holds free from any liability for the plaintiffs’ debt.
9. (Exception 14 of Burton.) In respect to the Graham land: This land was devised to the plaintiffs and sold by their guardian to Henry Joyner for about $10,000 (the sum is not intended to be accurate). Afterwards the guardian purchased it from Joyner, taking a deed to himself, and paid for it mostly with money (or notes) belonging to his wards. After this the plaintiffs filed a bill in equity, and obtained a decree declaring their guardian a trustee of the land for them to the extent that he had used their money in the purchase, and directing the land to be sold and the proceeds applied as far as might be necessary to reimbursing the plaintiffs. It was sold under this decree and purchased by the plaintiffs for, say $8,000 (this sum is not stated as
10. (Exception 13 of Burton.) But for the act suspending the statute of limitations, it is probable that some of the plaintiffs would be barred. On that act we concur with the referee. As to Whitfield, he was made a party in 1875, and the action against him was begun only at that date. But as his liability did not or does not accrue until a failure of the personal estate derived from the testator to pay the plaintiffs’ debt, he is not protected by the statute.
Judgment reversed and case remanded to be proceeded in according to law.
BYNUM, J.—Concurring. The decision of this Court in Brown v. Pike, 74 N. C., 531, was earnestly called in question upon the argument. Since it was made, the legislature has once met and adjourned without regarding it as of such injurious consequence as to call for its interference. The act of 1844,
Error. Judgment reversed and case remanded.