13 Ala. 611 | Ala. | 1848
Lead Opinion
We do not deem it necessary elaborately to consider the doctrine, that a trust for the benefit of creditors, attaches to a devise of real estate, where the words “ after my debts are paid,” or other equivalent terms are used by the testator. This doctrine owes its introduction into
It is natural enough that terms not the most significant and direct, should be seized upon to create a trust upon the real estate of a testator for the payment of his debts, where the creditor, according to the law, could not otherwise subject it to liability. There are few men who do not cherish an innate sense of justice, and are pleased to see it accorded to others; no matter how unwilling they may be to render it, where it costs a sacrifice of interest or feeling. Judges are but men, and, with the most honest intentions, sometimes unconsciously yield to the extraneous influences which operate on others. Hence we have no difficulty in accounting for the implication of a trust upon grounds often unwarrantable, in cases analagous in point of .fact to the one now before us. But in this State, where all distinction in dignity as it respeets the debts of a deceased person, is abolished, and a debt by simple contract is placed on the footing with one which is evidenced by a record, if the latter is not a lien on the debtor’s estate, it cannot be expected that the courts should be astute in creating trusts by construction.
According to the common law, if a testator devotes his land to the payment of his debts, without particularizing or distinguishing them, it is regarded but a fair construction of his will, to suppose that he intended to embrace all the debts which were recoverable at the time of his death: But is it
The cases of Fenwick v. Chapman, 9 Pet. Rep. 461; Peter v. Beverly, 10 Pet. Rep. 562; Bank of the U. S. v. Beverly, et al. 1 How. Rep. 134, we think are in harmony with the English decisions, and perhaps go quite as far in implying a trust for the payment of the testator’s debts, and in the consequences deduced from it. See also Lewis’s Ex’rs v. Bacon’s Legatee and Ex’r, 3 Hen. & M. Rep. 89.
In Hines v. Spruill, et al., 2 Dev. & Bat. Eq. 93, the testator by his will, gave to his two sisters all his land, “ together with all cattle, horses, and other appurtenances thereto, except so much thereof as will pay my just and lawful debts, which I think may be done from the crop now growing thereon.” He also gave to the same persons all his negroes : Held, that the will did not create a charge upon any part of the property for the benefit of creditors, beyond that
It is enacted, by a statute passed in 1806, that the lands, tenements and hereditaments of the testator or intestate, shall stand chargeable with all the debts of the deceased, over and above what the personal estate shall be sufficient to pay. In 1803, 1818, 1820, and 1822, acts were passed authorizing the sale of the lands belonging to the estate of a deceased person, upon application to the orphans’ court, either upon a deficiency of personal property, or where it would be more beneficial to the estate to sell the lands than the slaves, &c. See Wyman, et al. v. Campbell, et al. 6 Port. Rep. 219. It is also provided, that whenever an executor, Sfc. shall fail to apply to the orphans’ court for the sale of real estate, for the purpose of paying debts of the deceased, the judgment creditor may proceed by scire facias, and subject the lands to the payment of his demand; and if an executor, $* c., shall fail to apply for leave to sell real estate, three months after reporting the estate insolvent, he shall be deemed guilty of a devastavit, and himself and sureties may be sued on his bond. Clay’s Dig. 197. So it is made lawful for executors, $*c., to rent at public outcry, the real estate of any decedent until he makes a final settlement of his accounts; and the proceeds shall be assets in his hands. Id. 199. And by a statute subsequent to the testator’s death, the orphans’ court granting letters testamentary, <fcc., is required to take into the estimated value of the estate, the real estate of which the testator, &c., may have died siezed or possessed of, and shall require of the executor, &c., a bond with security under such penalty as the law previously required. Id. 229.
These several legislative provisions may suffice to show that lands in this State are subjected to the payment of the
In Darrington v. Borland, 3 Porter’s Rep. 9, two points material to the present inquiry are determined. First— That a testator may charge his real estate beyond what it is charged by the general law. Second — That by postponing the distribution between his devisees until his debts are paid, it is so charged. If the question were now presented to us for the first time, we should be inclined to think that the intention to extend the charge created by the general law, could not be inferred from the terms of the will in that case; and we do not desire to be understood as giving our sanction to such an interpretation. Is it at all probable that the testator in that or the present case intended to withdraw his debts from the influence of the statutes of limitation and non-claim, and allow their payment at any future period, though his executor had performed and closed his trust, or wasted the assets which should have been applied to their extinguishment ? We cannot think that the testator in either case intended to keep the adjustment of his estate open for an indefinite period, or that the statutes of limitation and non-claim were in any way presented to his mind.
Although the question of these statutory bars was not raised upon the record in the case last cited, yet the opinion of the court is expressed as to the effect of the supposed trust upon them; and it was said that either of them might be successfully relied on, by the devisees. Mr. Justice Story says that “ a general direction in a will of personal estate to pay debts, will not stop the running of the statute of limitations, or if
The statute of non-claim differs in its effect and consequences from the statute of limitations, technically so called —it must be insisted on by the personal representative, and cannot be safely waived. It requires claims against the estates of deceased persons to be presented to the executor or administrator within eighteen months, &c. “ and all claims not so presented within the time aforesaid, shall be forever barred from a recovery: Provided, that the provisions of this section shall not extend to persons under age, femes covert, persons insane or non compos mentis, to debts contracted out of the State, nor to claims of heirs or legatees, claiming as such.” Clay’s Dig. 195, § 17. This enactment was not designed merely as a security for the estate against neglected and dormant claims, but was intended for the benefit of heirs, distributees and devisees, whom the policy of the law requires should be placed in a condition in which they may safely act with property apparently their own. The Br. B’k at Decatur v. Hawkins, at this term.
It is provided by statute in Massachusetts, that the real estate of a deceased person may be sold by his executor, <fcc.when the goods and chattels in his hands shall be insufficient for the payment of debts with the charges of administering, upon obtaining a license therefor from either one of several courts specifically mentioned. Rev. Stat. of Mass., ed. of
Such being the object and policy of the statute of non-claim, we are inclined to think that its effect is to throw upon the creditors the necessity of presenting their demands to the executor, or administrator, before any trust by implication can become operative against the heir or devisee. Have not the legislature very significantly indicated that the heir or devisee shall take the estate freed from all implied trusts for the payment of the testator’s debts, if they are not presented to the personal representative within the time prescribed ? If this be so, it is an indispensable duty of the courts to sustain— not to defeat the legislative will.
Such is the authority and duty of an executor in respect to the real estate of his testator, that no disposition could be made of it by will, which would withdraw it from liability to pay the testator’s debts, if its appropriation should become necessary. If devised, the devisee takes it cum onere — subject to the provisional duty and authority of the executor. It may well be questioned whether by any other than express terms, or language most significant and direct, a testator in this State can throw upon his heirs or devisees, the burthen of paying claims, other than those excepted from the influence of the statute, where the creditor omits to present and enforce them against the personal representative.
The construction contended for by the plaintiffs’ counsel would make it difficult, if not impossible, for an heir or devisee, or a purchaser from either, where the will, according
Whatever construction might be placed- by an English chancellor upon the different clauses of the will from which it is attempted to deduce a trust, in view of our statute law,
It is a matter not unworthy of consideration in a proper case, that in this country, where land is so abundant, it is much less appreciated than at least one description of personal property; and as it can be so easily obtained, it is often most beneficial for a testator’s estate, that it should furnish by a sale the means of paying his debts. Besides, considerations of humanity and benevolence may make it desirable, and even a duty, to provide for retaining the slaves in his family. Under such circumstances, would it not be unjust to raise a trust which would render inoperative the statutes of non-claim and limitations, from the mere fact that the will made the lands primarily liable for the.payment of the testator’s debt, when he never could have contemplated such a consequence.
The cases of Duval’s Heirs v. McLoskey, 1 Ala. Rep. 708, and Inge, et al. v. Boardman, 2 Id. 331, bear no analogy to the present. There the creditors had specific liens under mortgages, which invested them with the legal estate. The lands of the debtors were pledged — the mortgagee had a remedy in equity, by which this pledge and lien could be made available. This remedy did not require a presentment of the mortgagee’s claim to the administrator, to authorize its enforcement. If the creditors had looked to any other portion of their debtor’s estate, then it would have been necessary to have presented their claims to the executor within the time directed by the statute.
Having determined that the testator did not create a devise by implication for the payment of his debts, so as to arrest the operation of the statutes of limitations and non-claim
Concurrence Opinion
—
I concur in affirming the decree of the chancellor, because, the language employed in the will, when construed with respect to the existing law of the land, creates no trust which, under the circumstances of this case, the court of ehaucery has jurisdiction to enforce.
I do not propose to enter into a discussion in support of the views I entertain, which do not accord with some of the conclusions attained in the opinion of the Chief Justice ; but will content myself by briefly stating them, so that my position may not be misunderstood, should similar questions again come before the court.
By the statute law of this State, “lands stand chargable with all the debts of the deceased, over and above what the personal estate shall be sufficient to pay,” (Digest, 191, § 1,) and the mode is pointed out how a sale is to be effected, in cases where the will does not authorize a sale by the executor. Ib. 224, <§> 16, et seq. He may rent the real estate until final settlement. Ib. 199, <§> 36. And unless the executor or administrator apply for leave to sell the real estate within three months after the estate is declared insolvent, he is guilty of a devastavit. Ib. 198, § 27. County courts may, when the estate would be less injured by a sale of land than of slaves, order the former to be sold. Ib. 195, § 18. In the granting of letters testamentary or of administration, the judge of the orphans’ court is required to take the land into the estimated value of the estate, and to require bond in double the value of the whole estate. Digest, 229, § 44. These various enactments, with others which might be referred to, show the design of the legislature in vesting in the
At the common law, real estate of deceased persons was not liable to the payment of their simple contract debts, unless such estate was charged by will, and as this provision sometimes operated very harshly, the chancery courts of England, as was said to prevent men’s sinning in their graves, very eagerly sought and seized upon any expression in a will, in cases where the personal estate was insufficient for the payment of the debts, from which to educe the conclusion, that the testator intended to charge his land with the payment of his debts. Hence these courts, from an early period, endeavored to give effect to a general direction by a testator for the payment of all his debts, by construing it into a trust for their discharge out of his real estate. 1 Roper on Leg. 573; 6 Cruis. Dig. Tit. 31; ch. 16, § 7. Thus commenced a series of judicial decisions which has been continued down to the present time, settling and establishing beyond controversy the English doctrine to be, that a general introductory, or prefatory direction by a testator for the payment of debts, followed by a disposition of his estate both real and personal, will, if necessary amount to a trust for the payment of his debts out of the real estate. Troth v. Vernon, Prec. Ch. 430; 2 Vern. 690; Ib. 709; 1 Bro. C. C. 273; 3 Ib. 157; 2 Ves. Jr. 328; 3 Ib. 545; 2 M. & Cr. 695.
But it is said, in such cases the trust is raised by implication only, as being necessarily intended by the testator, and that it may be rebutted if other parts of the will are inconsistent with an intention on the part of the testator to create such a trust. Palmer v. Graves, 1 Keen, 550; Price v. North, Phill. 86; Hill on Trustees, 345. Now the reason, which in my opinion lies at the foundation of this series of English authorities, does not apply .in this State, where, as I have shown, such ample provision is made by law for charging the real estate with the payment of all the debts of the
I confess, that upon the argument of this cause, my mind was strongly inclined to yield to the weight of the English authorities, which have been followed in many of the States,, but upon more thorough investigation, I am satisfied they are opposed to the spirit and policy of our statutes, and the proper and expeditious administration of estates, and that the-reason which in my judgment lies at their source no longer exists*