21 Conn. 148 | Conn. | 1851
We see no ground upon which the present suit can be maintained.
1. It is, in the first place, said, that upon the death of the testator, the legal title to the personal property vested in the plaintiffs, as executors; and that they are accountable to the creditors and legatees for all that comes into their hands. This is undoubtedly so; and that title still remains in them, unless they have parted with it, in whole or in part. Beecher v. Buckingham, 18 Conn. R. 120, 1. Perkins, admr. v. Stone & al. 18 Conn. R. 277. Roorbach v. Lord & al. 4 Conn. R. 347. Taber v. Packwood, 1 Day, 151.
But, in the present case, the testator, by his will, gave to his wife one-half of all his personal property, and the use of one-half of his real estate, with permission to take his household furniture at a specified valuation, or deliver any part of it to his children, at such price as might be agreed upon, by them. The residue of his property was given to his children.
This provision made for the wife, was clearly beneficial to her; and her assent will be presumed until the contrary is shewn. As soon as the assent of the executors is given to this bequest to her of the personal property, her title becomes perfected, and her share rendered liable to be taken on execution for the payment of her debts.
But it is claimed, that this assent has never been given. It is indeed found, that it has never been done, by any explicit act or declaration. This is not required. It may be implied, as well as expressed. It is found by the committee, that very soon after the death of the testator, an arrangement was made, by her and the plaintiffs and the other children of the deceased, that Edwards Johnson, one of the plaintiffs, with his family, should move into the house with her, and occupy the furniture and other moveable property at pleasure, with the intent that such arrangement should continue for her life; and that they have so occupied and possessed the property, ever since the arrangement was made; that William S. Johnson accepted the trust, as to the share of his mother, and acted under it; and that Edwards
It is also found, that there has been no division or distribution of the property. Nor was that necessary to the perfection of her title. Until that is done, the parties hold as joint tenants; and her undivided moiety in the joint property, is as much liable to be taken upon execution as any property which she might own in severalty. It is, therefore, unimportant to enquire, whether the property levied upon was owned by her in severalty, or jointly with all, or some part of the other owners. In either case, her interest may be taken; and we are not called upon, in the present suit, to determine the extent of that interest.
But suppose the plaintiffs have never parted with their legal title, and they still remain, in contemplation of law, the owners of the property levied upon, by the defendants; why have they not adequate remedy at law, in an action of trespass or trover? We see nothing to distinguish it, in that respect, from the ordinary case, where one person has unlawfully taken the goods of another, upon an execution against a third person. The remedy, in such case, for the party injured, is at law, and not in chancery.
2. Again, it is said, that the property may be needed, by the plaintiffs, for the payment of the debts of the deceased. But is it not averred in the bill, that it is in fact so needed; and the report of the committee shews the reverse. The inventory of the personal estate, as sworn to by one of the plaintiffs, exceeds the sum of 35,000 dollars, while all the debts and liabilities of the deceased are less than 20,000 dollars. One-half of the balance, even after deducting the debts due from the plaintiffs, is more than sufficient to satisfy all the executions in favour of the defendants.
But were it otherwise, the question again recurs, why sue in equity? It is not claimed, that the defendants are insolvent, and unable to respond in damages for all the property which they may illegally take and convert to their own use. The money collected in that form, for aught that appears,
3. It is stated in the bill, that if the property taken by the defendants, should not be wanted for the payment of the debts and liabilities of the deceased, yet it embraces family relics, gifts from deceased friends, family pictures, and other property of like description, of great interest and value to the plaintiffs, which they are exceedingly anxious to retain. It is unnecessary to enquire what might be done in relation to family pictures, possessing no intrinsic value, and of no use to any one, except the family relatives; because it does not appear from the report of the committee, that any such articles have been taken, by the defendants. The only articles falling within that description of property in the bill, which have been levied upon, are the ottomans, lamp, vases, and china tea set. Now, we know of no law exempting such property from execution, whether purchased by the debtor, or presented to her as family presents. Besides, these articles are presents to Mrs. Johnson, and yet she is no party to the present suit.
But there is still another fatal objection to the plaintiffs’ claim upon this ground. They do not even offer to pay the value of the articles which they seek to protect. It may be unpleasant to them to have these articles sold upon execution; and it may be as unpleasant to the defendants to be defrauded of their debt. So it may be very painful to the feelings of a debtor, reduced to poverty, by misfortune, to have the family mansion, long occupied by him and his ancestors, taken from him, and himself and his family turned houseless upon the world; yet we know of no authority in a court of equity, to interfere and say, that the creditor shall not collect his debts.
4. Again, it is averred in the bill, that if she has any interest in the estate, which can be taken on execution, she has more than sufficient to pay all her debts, other than the property in question. If she has the means of paying the debts of the defendants, why does she not do it, and thereby exonerate the property which has been taken? There is no averment in the bill, nor claim made, that the defendants have ever refused payment, or endeavoured to do any thing more than is required to enforce payment.
5. It is further said, that the property in question was given to William S. Johnson, in trust for his mother; and therefore, is not liable to be taken for the payment of her debts.
To this claim several answers may be given. In the first place, the property is not so given, as to place it beyond the reach of her creditors. He has but a naked trust, without any discretionary power as to the appropriation; and the mere circumstance that she has but an equitable interest, does not shew, that it may not be taken for her debts. It is the policy of our law, that all the property of a debtor should be responsible for his debts. And his equitable estate may be taken, as well as his legal, provided it is subject to his controul. Davenport v. Lacon & al. 17 Conn. R. 278. Again, if the legal rights of the trustee have been invaded, he has adequate remedy at law. And finally, what right has Edwards Johnson, one of the plaintiffs, to sue for property given to his brother, in trust for his mother? He is not a trustee, and has no interest, either legal or equitable, by reason of the trust.
The claim set up, that she has no interest in the estate of her late husband, which can be taken, to satisfy her debts, comes with a peculiarly ill grace from him, when it appears, that these debts, which the defendants are now endeavouring to collect, were by her contracted, solely for his use and benefit; and the defendants were induced to part with their money, relying upon his representations that she was abundantly responsible for all her debts, by reason of a large amount of property given to her, by the will of her late husband.
Finally, it is alleged in the bill, that the defendants threaten, and are about to levy a part of their executions upon the real estate of the deceased; and that such levy would not only be illegal, but would greatly embarrass the
The claim in relation to the embarrassment, if well founded, would be entitled to but little favour, since the time limited for the settlement of the estate, has long since expired; and no disposition is manifested, by the plaintiffs, to complete the final settlement, during the life of their mother. To interfere, in the manner claimed, would enable them, by their delay, effectually to shield the property of their mother from the claims of her creditors.
But further: we are unable to see in what manner the levy of an execution upon her life-estate in the realty, can affect their proceedings in relation to the settlement of the estate, so far as the personalty is concerned. If, as they claim, she has no interest which can be legally taken, it furnishes no ground for the interference of a court of equity, by way of injunction. The proper place for the trial of the validity of a title, by virtue of the levy of an execution, is in an action of ejectment.
Other objections have been urged, on the part of the defendants, as to the form of the bill; but we deem it unnecessary to consider them; and we advise the superior court to dismiss the bill.
Bill dismissed.
