86 Tenn. 539 | Tenn. | 1888
This is a bib filed by' a minor ward against Ms guardian, S. M. Howard, and the sureties on his bond. The bill seeks an account with the guardian and his removal, alleging that he has wasted the estate and failed to make true settlements. The bond of the guardian was made in 1868, and is in the sum of $8,000, with two sureties — J. TI. Meaeham and J. J. Beeves. Both of these sureties are dead, and defendant, J. Q-. Smith, is the administrator of Meaeham and the executor of Beeves, and this suit is against him in both his official characters. The heirs at law of Meaeham and the devisees and legatees under' the will of Reeves are made defendants. The bill seeks to subject lands descended or devised to the satisfaction of any decree obtained against the personal representatives of the two sureties, and which is not satisfied out of the'personal estate.
An account was stated by the Master with the guardian, and confirmed by the Chancellor. No such clear mistake is pointed out by the appellants as will justify us, under the well-settled rules of this Court, in disturbing this decree. Turley v. Turley, 1 Pickle, 251.
The objection that the decree is for an amount in excess of the amount of the liability stated in the bill is not supported by the bill. Two distinct decrees are prayed for in the bill — one for the amount supposed to be due from the guardian upon his general account, and for which his general bond is supposed to be liable, and a decree is likewise
It is obvious that this sum is not in excess of the allegation in the bill, which sought interest upon the supposed balance of $2,500. There was a decree against the personal representative of the estates of the two sureties, but the plea of fully administered ivas found in his favor as to both estates. There was a decree to sell certain lands which had descended to the heirs of the surety, Meaeham. From this decree these heirs have appealed.
It is insisted that this decree to sell lands of the intestate, which have descended to his heirs, is erroneous, because the personal estate which came to the hands of the personal representative has not been exhaused in the payment of debts, but was paid over to the distributees, and that the personalty so paid to the distributees to that extent will exonerate the lands descended. After the payment of such debts as had been filed with the administrator, or brought to his notice, there remained several hundred dollars; and this fund, after the lapse of three years, was paid over to the distributees, refunding bonds being taken
The question for settlement is as to the validity of this decree in view of the facts concerning the personalty paid over to the heirs as distribu-tees upon refunding bonds. The weight of English authority is, that the administrator cannot, ordinarily, exonerate himself from liability to a creditor of the intestate by showing that be had distributed the fund to the distributees, even though he had not notice of the creditor’s debt. Lomax Executors, Vol. I., side-page 114, and authorities cited.
The administrator, in such case, had to protect himself by looking to the distributee, or to such bond as he had given. But in this State such
It is clear, therefore, that when the administrator has, without notice of debts, paid over the funds in his hands, after the time has expired within which domestic creditors may bring suit, and has taken solvent refunding bonds, and reported them to the County Court., that he is exonerated from liability as to such assets, and that the plea of fully administered should be found in his favor upon suit by a creditor.
But does it follow that the finding of fully administered, in such a case, would alone entitle the creditor to subject lands descended? We think it would not.
The bill in this case is filed under the Act of 1827. Code,' §§ 2267, 2268, 2269, and 2270. This act, in express terms, requires that before any decree, ordering lands of an intestate to be sold, shall be pronounced, that “ it shall be made to
Now, where the personal estate has been paid over to the distributees, as in the case under consideration, it obviously has not been “ exhausted in the payment of bona fide debts.” This requirement that the personalty shall be shown to have been exhausted in payment of debts, upon which rests the remedy in equity against lairds descended, is in entire harmony with the policy of the law as contained in the statutes giving relief at law. There could be no relief at law against the lands of the heir while the personalty remained unap-plied in payment of debts. The loss of the assets by the administrator, and the insolvency of his sureties, furnishes no ground of relief against the heir, either in law or equity. Act of 1787, Code, § 2263; Peck v. Wheaton, Mart. & Yerg., 353; Bennett v. Coldwell, 8 Bax., 483.
"We think that it clearly follows that the creditor cannot subject the lands descended, but must rely upon his remedy against the distributee or go upon the refunding bond, which stands in the place of the assets, and is given him in lieu of the responsibility of the administrator and his bond. Lands descended are exonerated to the extent' of such personalty in the hands of the distributee, and this so whether the refunding bonds be now solvent or not. The heir is no more surety for the solvency of the distributee who received the person
This is an important distinction to observe. That in some casés this remedy against the heir may be fruitless by reason of an incumbrance which would not be valid as against a debt of the intestate, or by reason of dower or homestead rights which have accrued, is no sufficient reason for departing from the policy of the law which only suffers the lands of an intestate to .be subjected when the personalty has been exhausted in the payment of debts.
It is next urged that, inasmuch as the lands descended were subsequently partitioned, and that
Many of the same questions already disposed of arise with reference to the liability of the estate of the other surety, J. J. Keeves. A considerable personal estate was paid over to the legatees by the executor upon proper refunding bonds. The personalty thus paid over exonerates the land to that extent.
The complainant ignored all effort to reach the personalty in the hands of the Meacham heirs, upon the ground that the refunding bonds had become ■ insolvent, but was permitted by the Chancellor to sue out writs of naive facias in the cause, returnable to the next term, requiring the legatees of Reeves and their sureties upon their several refunding bonds to show cause why judgments should
That suit may be brought upon these bonds in the Chancery Court we have no doubt. But this bill is not framed for relief upon these bonds, and many of the sureties are not parties. The proper practice, we think, would be to require the filing of either an original or supplemental bill upon the footing of the decree against the executor, and the plea of fully administered found in his favor. The decree ordering writs of scire facias was, therefore, erroneous.
His Honor, the Chancellor, not deeming the lands exonerated by the refunding bonds, proceeded to decree a sale of realty; and it appearing that a part of the realty of the estate had been sold for division among the devisees, he likewise pronounced a decree against the devisees and the guardians of such as were minors for the amount of the proceeds of the sale. Both these decrees were erroneous as premature.
The personalty paid over to the legatees exonerated these lands, or the land fund, at least partially.
There is, of course, no objection to a decree for a sale of realty, devised or descended, before actual application of personalty to the extent it is available in exoneration of the lands, when it is
.But tbe insufficiency of the personalty to exonerate the lands was not ascertained by report of the Master or otherwise. If a sale of the realty of the Reeves estate shall prove to be necessary, and the devisees shall so desire, the store-house and lot will be first sold, .as being less onerous upon the parties. If that is insufficient, there is no doubt of the power of the Court to render a ■ decree against the devisees for the porceeds Q£ eighty-five acre tract heretofore sold for ¿livision.
A novel question arises as between the estates of the two sureties, growing out of the partial exoneration of the lands of each estate by reason of personalty for which bonds were given: To what extent does such exoneration of the lands of one estate affect the rights of the creditor as against the other estate? The exoneration of lands descended does not operate as a payment, and the creditor will have a right to collect from the other estate the part of his debt not actually •paid,. The second surety will reap no benefit from the partial or entire exoneration of the lands of the estate of the other security. This is the benefit flowing from the double surety upon the guardian’s bond.
The next assignment of error is, that the Chan-, cellor decreed a sale of lands free from equity of redemption, the bill not praying therefor. This is not error, • If the lands were or shall
The decree of the Chancellor will be modified, as herein indicated, and remanded for such further accounts, proceedings, and decrees as may be necessary upon the principles of this opinion. The costs of t^iis appeal will be paid by appellee Maxwell.