47 Ky. 332 | Ky. Ct. App. | 1847
delivered this opinion on the 15th December, 1847, but it was suspended until 29th June, 1848,
In the proceedings upon a hill filed by Bull’s executors under the act of 1839, “to regulate the administration and settlement of estates,” (3 Stat. Law, 240,) the question having been presented whether the will of the testator directing certain of his debts to be first paid, can under the statute, be effectual to secure to those debts more than a prorata payment, the decree deciding this question alone, has by consent, been brought before this Court for revision.
The will of the testator made in 1841, devises his whole estate to his wife, directs his executors to pay a certain debt out of the first money arising either from the collection of debts or the sale of property, authorizes them to sell and convey any of his property, real or personal, at their discretion, for the payment of his debts, and then authorizes them to pay certain debts other than that first referred to, as early as practicable. The wife and four others are appointed executors.
It is contended that the act of 1839, in enacting that in the administration of estates, all debts shall be of equal dignity and shall be paid as thereinafter declared, ratably in proportion to their amounts, and in providing for such ratable payment not only out of the personal estate, but in case of its deficiency, out of the real estate also, was intended to regulate the order of payment so far only as that was a mere question of dignity between different debts — that it was not intended to affect the
But it is to be recollected that the Court of equity took, and indeed sought jurisdiction of the assets in such cases, in order to give effect to its favorite principle of equality. The question as to the power or right of the testator, was whether he could devise his estate for the payment of debts. This being allowed or not prohibited by law, the Court of equity took hold of the estate as a trust, and administered it for the payment of debts according to its own principles and the presumed intention of the testator, though in violation of thelegal rule of administration. The effect then was, that the debtor might, by his will, withdraw his estate from the legal rule of administration and subject it to the equitable rule. But this power had its real efficacy and existence in the power and disposition of the Court of equity to enforce its own principles. It rests upon the justice and equity of appropriating the whole of the debtor’s property to the payment of all of his debts fully, if the property be sufficient, and ratably if there be a deficiency; and it by no means follows that because an indebted testator might, by his will, remove his estate from the operation of the legal rule and place it under the equitable rule, he might withdraw it from the operation of both, and make a disposition of it which violated both law and equity. No doubt the
Wherefore, the decree is affirmed.