156 Va. 542 | Va. | 1931
delivered the opinion of the court.
Appellants, Lela Bruce, Ales Bruce and Alma Jones, filed their bill alleging that their father, J. A. Farrar, died intestate, seized and possessed of a tract of land containing 376^4 acres, and cash and tangible property amounting to $1,243.43; that decedent left as his heirs and distributees, a widow, Ellen Farrar, appellants and two sons, Meredith Farrar and J. S. Farrar; that at the time of his death, Meredith and J. S. Farrar were indebted to decedent by simple contract debts evidenced by notes in an amount exceeding or equalling the value of their undivided interests in the real estate of which decedent died' seized and possessed; that at the time of J. A. Farrar’s death,
The bill prays, among other things, that the estate of J. A. Farrar, deceased, both personal and real, be administered by the court and distributed among his heirs at law; that the indebtedness of Meredith and J. S. Farrar to the estate be ascertained and deducted from their share of the estate before their creditors are permitted to subject their respective interests in the estate to the payment of the judgment liens.
The cause was referred to a master commissioner, who, among other things, wa's required to report the respective proportions in which the heirs at law of J. A. Farrar were entitled to share or participate in the distribution of the estate both real and personal. The commissioner reported that the indebtedness of Meredith and J. S. Farrar to the estate creates an equitable lien on their interest in decedent’s real estate superior to the judgment liens docketed against them.
Pennington, Owen and Ralls, and First National Bank, on behalf of themselves and all other lien creditors, excepted to the finding of the commissioner on the ground that the lien debts of record against the interest of Meredith and J. S. Farrar in the real estate of decedent are superior in dignity to the simple contract debts due by them to the estate, and that the lien creditors are entitled to priority in payment. The chancellor sustained the ■ exception to the report of the commissioner, and decreed that the lien creditors are entitled to have priority in payment out of the interests of Meredith and
The ruling and judgment of the court is assigned as error.
Appellants admit in their petition for an appeal that the transaction between the decedent and his two sons created the relation of debtor and creditor, and therefore no question of advancement, as is provided for by section 5278 of the Code, is involved in this case.
In Virginia it is provided by statute, section 5264 of the Code: “When any person having title to any real estate of inheritance shall die intestate as to' such estate, it shall descend and pass in parcenary to such of his kindred, male and female, as are not alien enemies, in the following course: First, to his children and their descendants: * * * ”
In the exercise of his right of appointment, a devisor having title to1 real estate may name the executor of his estate, and such personal representative is clothed with such legal powers as the will confers. If the will so provides, he has dominion over the real as well as the personal estate. The executor is purely the creature of the devisor. On the other hand, when any person having title to any real estate of inheritance dies intestate, such real estate descends and passes, under the statute of descent, directly to the heir, without the intervention of a personal representative, subject only to the debts of the ancestor. If it becomes necessary to administer the personal estate of the decedent in case of intestacy, such estate is administered by an administrator—a personal representative created by law. The administrator has no control whatever over the real estate, and his duties relate only to the administration of the personal estate.
The main contention of appellants is that the law favors the equal distribution of the decedent’s estate among those entitled thereto, and therefore the administrator has the right to set off- the debts owing by the sons, upon the principle of an equitable lien.
One line of cases holds that it is the policy of the law, that since realty and personalty pass to* the same persons, they are to be considered as one common fund, and the heir indebted to the estate takes- the real estate, burdened with the right of retainer or set-off, or else charged with an equitable lien in favor of the other heirs-. See authorities cited in the note of 7 Anno. Cases, p. 563.
The other line of1 cases holds that upon the death of the ancestor, real estate descends directly to* the heir, subject only to statutory regulations regarding decedent’s debts ; that the administrator is not concerned with the realty of decedent; that the indebtedness of the heir to the estate cannot be set off against his. interest in the realty; that there is no equitable lien on real estate acquired by inheritance for simple contract debts due decedent.
In Smith’s Ex’rs v. Hardy, 153 Va. 744, 151 S. E. 171, 173, Mr. Justice Holt, dealing with the right of executors to off-set the amount going to a distributee against a debt due by the distributee to the estate, said:
“When an heir or distributee is indebted to his decedent’s estate the amount of such indebtedness should ordinarily be deducted by the executors or administrators from his share therein.” This we conceive to be the true rule affecting the right of the distributee to share in the distribution of the personal estate of the decedent, but it sheds no light on the question herein involved.
In Marvin v. Bowlby, 142 Mich. 245, 105 N. W. 751, 754, 4 L. R. A. (N. S.) 189, 113 Am. St. Rep. 574, 7 Ann. Cas. 559, the facts are somewhat similar to* the facts in the case at bar. Jacob Bowlby died leaving real and personal estate. Elmer Bowlby, his son, owed his father $3,362.62, for which
“It is a recognized doctrine that the distributive share derived from personal property of an heir indebted to an estate may be retained by the administrator in payment of such debt. * * * The doctrine is founded upon principle as well as upon authority. It is, in fact, the collection of a debt due the estate. Personal estate is assets in the hands of the administrator. He is required by law to convert personal property into money, to collect all debts due the estate from all debtors, including heirs. The heir has no title or claim to personal estate except a distributive share in the surplus after payment of debts and expenses of -administration.
“No such doctrine hasi prevailed as to real estate. The title to the real estate vests in the heir at the date of the death of the ancestor. Real estate is not assets in the hands of a personal representative, and, unless otherwise charged by the terms of a will, is subject only to the contingency of a sale of so much thereof as may be necessary to pay the debts of the, estate in case there is not sufficient personal estate for that purpose. This statutory contingency is a modification of the
To the same effect is the opinion in La Foy v. La Foy, 43 N. J. Eq. 206, 10 Atl. 266, 3 Am. St. Rep. 302, a case in which it was attempted to1 charge a debt of a devisee upon lands devised to him by the testator, there being no language in the will making such a debt a charge. The court said :
“The devisee of lands occupies no such relation to1 the executor as that which exists between legatee and executor. No act
The same doctrine obtains in Massachusetts, as will appear from the following language of the court in Dearborn v. Preston, 7 Allen, 192:
“* * * the rule of law upon the subject is so well known and established that there can be no doubt of the legal right of a devisee of real estate to take and hold it absolutely, free from any lien or charge of encumbrance as security for anything which he owed to the testator, and may still owe to his legal representatives. It was very early detennined that in the division among the heirs of the real estate of a person who. died intestate, no deduction would be made from, the share of any one of them for or on account of any debt due from him to the intestate, and that there was no lien or charge in any form subsisting upon such share as security for such debt, or which could in any way be enforced towards the payment of it.”
The Arkansas court deals with the subject thus in Wheeler, etc., Co. v. Knox, 136 Ark. 95, 206 S. W. 46, 48:
“The conflict existing in the decisions of other States cannot be entirely reconciled. The courts themselves are divided as to where the weight of authority lies, as will be discovered by reference to the following authorities” (citing the principal cases). “In this State, it is firmly established that the real estate of the intestate descends directly to the heirs upon the
In Manning’s Ex’r v. Brown (N. J. Err. & App.), 20 Atl. 381, the court said:
“I think there are cases holding that as between the administrator, having in his hands the personal assets of the intestate, and the distributee of the estate, such administrator may retain so much of the distributee’s share as will satisfy the indebtedness of a distributee to the intestate. But this is not such a case. The administrator is not in possession of these
In an opinion filed with the record, the learned chancellor, Honorable Robert A. Hutcheson, reaches this conclusion:
“I am of the opinion that the cases following the doctrine of Marvin v. Bowlby are more in harmony with the recognized principles of Virginia law on the subject of liens, and of descent and distribution, than the contrary school. It will be noticed in the quotations from cases holding the opposite view (and the annotations on the subject in A. L. R. state that it is generally true of cases taking that view), that the statutes of descent and distribution in these States make no distinction between real and personal property, but both are considered as one common mass or fund and pass alike into the possession and control of an administrator, or probate court, for the purpose of administration and of distribution of the surplus among heirs. In Virginia the whole personal estate goes into the hands of an administrator and nothing passes to the distributees unless and until all debts of the decedent have been paid and the costs of administration; then, if there is a surplus, it is divided among the same persons and in the same proportions as real estate. The real estate descends directly to the heirs in parcenary at the moment of the death of the ancestor, but subject to the contingency that if personal assets are not sufficient for the payment of debts, creditors may bring a suit in equity for a sale of so much of the real estate as may be necessary for that purpose. Under this state of the law,
“The exceptions to the commissioner’s report will be sustained.”
The above conclusion meets with our approval and we adopt it as a part of this opinion.
We find no error in the decree of the Circuit Court and it must be affirmed.
Affirmed.