Bryant v. Hunter

3 Wash. C. C. 48 | U.S. Circuit Court for the District of Pennsylvania | 1811

WASHINGTON, Circuit Justice.

The first question is, whether the devise to Mrs. Hare, was a satisfaction or performance in whole, or in part, of the marriage contract, and was accepted? The general rule is, that a devise of land, is not a satisfaction, or part performance, of an agreement to pay money. But, in this case, A. Hare, by the marriage contract, bound himself to assure to the trustees of his intended wife, a sufficient real or personal estate, to secure the payment of 5,000 dollars for her sole use. in case she should survive him, or should, • by his last will, within the said year irom the date of the bond, bequeath to her such estate as should be fully adequate to the intended provision. He accordingly makes a provision for her by will, and, though not made within the year, this circumstance is immaterial; a will being ambulatory- This provision is to all intents and purposes, a performance • or part performance of the contract; and, although he does not so declare in his will, yet, that he intended it, is not to be questioned; for, it is inconceivable, that he should have meant to give, as a bounty to his wife, nearly half his estate, and to have left this large debt to sweep away the provision intended for his son. The reference in the bond to a provision in land, or other property, to be made by will, differs this from all the cases that were cited; and, we must presume, that the will was intended to comply with the condition of the bond. The nuncu-pative will amounts to an express acceptance of the devise; as it disposes of all the property of every kind, vested in her by the will of her husband, or otherwise. This property, consisted of land and personal estate, the latter very trifling, particularly, after the plate and other things devised by her, were deducted. The court has no authority for limiting her words to the personal property; because, the will could not, in point of law, pass the real estate; a circumstance which most probably she did not know. Is this question concluded, by the decision of the question of law in the Kentucky courts'; We think not. It is Rue, the exeeiitor of A. Hare, by his plea, put this point directly in issue; but, at law, it could not be tried; for, if the provision made by the will, amounted not to full performance, we do not see how the verdict could have been otherwise than it was. But, in equity, and especially when the plaintiff is seeking relief against the real estate, this court must decide on equitable principles.

Second question. Is the plaintiff entitled to claim, in this court, the whole amount of principal, as well as the interest which accrued during the coverture? The judgment at law, is for the whole sum; but, if it be inequitable, a court of equity will not, in granting relief to the plaintiff, allow him more than he is justly entitled to. • We admit, that if the judgment would be conclusive upon the court of equity in Kentucky, it is conclusive upon this court. But, that is not the case, and the inconclusiveness of the judgment arises, not from the circumstance of the court in another state being called upon to execute that judgment, but, from the peculiar principles and rules which reguKite a court of equity, which differ from those which prevail in courts of law. We shall therefore direct an inquiry, as to this subject.

Third. What relief is the plaintiff entitled to, in respect to the personal estate of A. Hare? Certainly, to the application of it to discharge the whole sum due, in aid of the real estate devised to Margaret Hare, in part performance of the marriage contract. Consequently, the defendants, the executors of A. Hare, must account for the personal estate, which has come to their hands.

Fourth. What relief is the plaintiff entitled to, against the real estate of A. Hare, in case the personal estate should not be sufficient to pay what is justly due, under the marriage contract, after deducting the value of the real estate devised to Mrs. Hare ? As to the lands devised to Mrs. Hare, there is no ground for charging them in the hands of the heirs of Mrs. Hare, to make up such deficiency. It would be absurd to say, that they were liable in her own hands, and of course, they cannot be so in the hands of her heirs. We know of no principle, which will subject the real estate of the creditor, in the hands of her devisee or heir, to satisfy the representatives of the personal estate of the' same creditor. As to the 1,000 acres of land devised to John Hare by his father, the plaintiff is clearly entitled to have any deficiency in the payment of his debt made up out of that estate, since, upon the opinion given on the first point, Mrs. Hare did not take the land devised to her as a bounty, but in part performance of the contract of A. Hare, under the marriage settlement. And; since it is possible that the plaintiff’s claim may exhaust the whole of the personal estate, so as to deprive the defendant, Hunter, of personal assets sufficient to pay the debt-due to him, the assets must be so marshalled as to apply this real fund, or so much of it as may be necessary, fully to discharge the plaintiff’s debt, and to leave so much of the personal estate, as may be sufficient to pay the debt due to the defendant, Hunter.

Decree: This cause came on, &c.; whereupon the court, being of opinion that the real and personal estate devised to Mrs. Hare, by the will of A. Hare, her husband, are to be considered as made in part performance of the marriage contract, dated, &c., amongst the exhibits in this cause, according to the value of the property so devised at the time of the death of the said A. Hare; and that the plaintiff is entitled to full satisfaction of the principal sum and interest justly due, by the said contract, in case the value of the estate devised to the said Margaret Hare, by her said husband, at the time of the death of the said A. Hare, together witlmsuch sums as have, since the death of the said A. Hare, been received by the said Margaret Hare, and by the plaintiff, as her administrator, were insufficient fully to discharge the same, out of so much of the personal estate of the said A. Hare, in the hands of the defendants, as will remain after satisfying the just claims of the defendant, George Hunter, for moneys due to him by the said A. Hare; and in case the same should be insufficient fully to satisfy the said principal sum, and interest, due to the complainant, then, out of the 1000 acres of land, devised by the said A. Hare to his son John; it is therefore decreed and ordered, that the commissioner of this court, do state an account of the balance now due to the plaintiff, upon the above principles, and that he also state the value of the estate devised to the said Margaret Hare, by her husband, at the time of his decease, as also to allow, what to him may seem a reasonable provision for the said Margaret Hare, during her marriage, in lieu of the 300 dollars, agreed to be paid to her by the said A. Hare; and for ascertaining the value of the lands devised to the said Margaret Hare. Commissions are awarded to the parties for taking depositions to prove the same, and also, the advances made to the •said Margaret Hare by her said husband; either party giving to the other- days’ notice of the time and place of executing the said commissions; and further, that the said commissioner do state an account of moneys ■due to the defendant, George Hunter, by the said A. Hare, stating specially such further matters as either party may require, or the ■said commissioner may deem material. The ■court reserves the question of interest to the final hearing.

[NOTE. On the accounting it appeared that -a bond of one Hustin had been assigned by Hare to complainant, to facilitate its exchange 'by the latter as Hare’s agent for a quantity •of tobacco; that, pending the exchange, Hare died, and complainant, who was unable to sell the tobacco, deposited it with a person who had 'been the factor and correspondent of Hare in his lifetime, but what further became of the tobacco did not appear. The final decree charged one half of such bond as an offset against 'the bond in suit. [On appeal from the final decree, the supreme -court reversed the decree below, and held that, Mrs. Hare never having made‘an election to reject the provision under the will of her husband, and rest alone on her bond, complainant had the right' to do so; that in demanding payment of the bond he had made such an election, •and was entitled to the satisfaction demanded; that the actual maintenance of Mrs. Hare ■was equivalent to the payment of the sum secured by the bond for her separate maintenance. and therefore interest on the bond during her husband’s life should not be computed; that in payment of the bond the personal residue should first be exhausted, and next the realty; and that the evidence to set off against the bond in suit the one-half of the Hustin bond was entirely insufficient. Hunter v. Bryant, 2 Wheat. (15 U. S.) 32.]