2 Rawle 185 | Pa. | 1828
The opinion of the court (Huston, J. dissenting,) was delivered by
— A majority of the court are for adhering to the decision in Allison v. Wilson’s Executors, 13 Serg. & Rawle, 330, without absolutely assenting to the propriety of it on original grounds; For myself, I cannot bring my mind to doubt its propriety on any ground. The opinion of the court was not, as has been supposed, rested exclusively on the authority of Craig v. Leslie, 3 Wheat. 563. An intimate knowledge of the eminent men with whom I wás associated, enables me to say, the result would have been the same, had that case never been decided. They were too familiar with the principle on which it depends, to let it escape them; and too sensible of the danger to be apprehended from a contempt of precedent, to disregard it. That case was particularly noticed by the judge, who delivered the opinion of the court; not as absolutely ruling the cause, but, as enabling him to to refer to the learning of the subject, without the appearance of a display. There has been no attempt here to contest the positions of Judge Washington; and the attempt to distinguish between the case of a volunteer, and that of a purchaser, has failed. A purchaser from a volunteer, acquires no additional equity; his is the case of a volunteer still. And this is emphatically the case of a purchaser at sheriff’s sale, who, by the express provisions of the act of assembly, acquires nothing but the interest of the debtor. This ground failing, the argument is necessarily reduced to a dependence on our peculiar usages; by which it is supposed, that a judgment is a lien on every possible interest in land, whether immediate.or remote, actual or contingent. This takes for granted, that the legatee had, in fact, an interest in the land. I shall attempt to show, that, according to the apprehension of even simple and unassisted reason, .he had not. But, it is proper to remark, that both the major and minor are untrue. The interest of a mortgagee, judgment creditor, owner of a legacy charged on land, creditor of an intestate estate, mechanic, or máterial man, or of a preferred creditor, under an assignment to trustees, (to each of whom the land is debtor,) is not the subject of judgment and execution. Nothing is such but an immediate interest; as, for instance, the estate of a tenant by the curtesy initiate; or of a widow, whose interest is put, by the intestate acts, on the footing of a rent charge. The only thing peculiar to a judgment with us, is, that it binds an equitable, or even an inchoate, interest; but that interest must be ah estate in the land.
If, then, in a devise to sell, and distribute the price, there is a plain inartificial intent to give an interest merely personal, what beneficial purpose could we effect, by declaring it to be an estate in the land? That equality of-distribution among creditors, is more consistent with natural justice, is manifest, from the eagerness of every chancellor to treat the proceeds of land sold, for the payment of debts, as equitable assets. As regards the case before us, there certainly would be no natural justice, in giving a preference to the creditor who first obtained a judgment against the legatee. As it is, he will come in pari passu, under tbe intestate acts, instead of sweeping the whole from the other creditors. It is said, the interest of the children, if personal, would be exempt from execution. But, so is the interest of a mortgagee, and every other sort of creditor, whose debt is secured by a lien; their interest can be reached only through the person. It ha3 been objected, that recourse "to the person might bé ineffectual, as the legatee himself could not compel the executor to perform the trust. This would be an imposing argument, did the law depend on our discretion. ‘ But, it seems to me, the case of an executor is within the purview of the acts, to compel assignees to settle their accounts, which empower the court to displace a negligent trustee, and appoint another in his stead. There would, therefore, be no peculiar expediency, even here, in subjecting the interest of the legatee to execution. On the other hand, in addition to the inconvenience inseparable from entails, and executory devises, as well as those other intricate and perplexing limitations, of which real property alone is susceptible, there would be substantial injustice, in attributing to such a legacy the qualities of land, and thus subjecting it to curtesy, and dower, instead of giving the husband or wife an absolute ownership; and particularly, in excluding brothers and sisters of the half blood from the succession. Other mischiefs would undoubtedly be produced; but these are sufficient, to demonstrate the justice and policy of the decision in Allison v. Wilson’s Executors, as applicable to devises of this sort, even in Pennsylvania.
Whatever may be our opinion of the fitness and policy of the rule, I submit, that we have no authority to dispense with its obligation. One would think, that, having been firmly established by the English court of chancery, previous to the American revolu
The defence was, however, sustained on exceptions to the form of the action, which it is proper, though not at all necessary to examine.
Granting the action to lie, it was said, that it ought to have been brought in the name of the legatee for the use of the purchaser at sheriff’s sale. An. action could be sustained, if at all, by the purchaser, only on the ground of his having had an estate in the land, and his consequent ownership of the price of it when turned into money. The promise to be implied from such a consideration, would be to him in his own right, and consequently an action on it would be in his own name.
It is also supposed, that an action could be maintained against the executors only in their representative character. As to this, I take an action for a legacy to be in all respects on a footing with an action for a distributive share of an intestate’s estate; and I take it to be a rule subject to no exception, that an executor is chargeable as such, only on the covenant, or engagement of his testator. It is held, that a testator cannot bind his executor, where he has not bound himself; and, on a covenant, that the executor should pay ten pounds, it was held, that an action did not lie. Cro. Eliz. 232. The propriety of this decision has been doubted, and with reason, because the testator bound himself, although for the act of another, and on a consideration in his life time. This being so, the period of performance was immaterial to the existence of the responsibility.
We are of opinion, that the interest of George Brenizer, under his father’s will, did not pass to the plaintiff by the sheriff’s sale;
— I have n.ot been able to see this matter in the point of view taken by the rest of the court.
I admit the doctrine is established in England and in Virginia, that land devised to be sold, and the price paid over to a particular person, is to be taken as personal property; and, that money directed to be laid out in land, is to be'taken as land. But I do not admit, that the whole law on this subject is to be found in Roper v. Ratcliffe, 9 Mod. 167, 181; and still less, that it is to be got from Craig v. Leslie, 3 Wheal. 563. The desire to give full effect "to the statutes against papists may have influenced the first case, though 1 do not say it did; and it may be, that in the latter, some idea, that the law of Virginia was rigid or illiberal, induced the court to consider the question.as an abstract matter of general law, which it was not. I •will not foretcl'what our successors may" say of that case; nor say, whether it is right to be more liberal in the construction of English aliens, than they have been to others.
But I believe it to be perfectly immaterial what the law on this subject is in other countries; if it has not been the law here, I see great objections to introducing it. In England, it is adhered to strictly in one case: money devised to be laid out in land, does not go to creditors,'unless their debts bind land. In this we need not follow them, for here all debts bind land. It, even there, is not a common law doctrine; it is one depending on the system of conveyancing, of devising peculiar to that country, and not so applicable to this.- It seems to me, it cánnot be adopted to any good purpose, unless where there is a Court of Chancery. It is greatly complex, and in some of its features, inconsistent. It is far from being universal in all cases. To descend to particulars: the rule does not apply where the object for which the sale was to be made ceases. The power to sell is then at an end, and lands continue lands. 1 Binn. 528. 8 Wheat. 531. 6 Johns. Rep. 73. 1 Br. Ch. 86. It ceases where the title to the money and the land, come by descent to the same person, for a bill would not lie by a man against .himself, to compel a sale.
The rule ceases to exist where the intention is obscure or uncertain. Money devised to be laid out in land, may, by the owner of it, pass by a will not attested to pass lands. Edwards v. Warwick, 2 P. Wms. 171. Nay, it may be disposed of by parol.' Ibid.
The husband shall be tenant by the curtesy of the money of the wife to be laid out in land. 2 Vern. 536. 1 P. Wms.172. But the wife shall not be dowableof the husband’s money tó be so laid out. This I suppose was because the law was not settled by women.
No act of record is necessary to change its description. An act in pais, even the intention to be collected from circumstances will
The husband may elect to take'it as money against the heir at law of the wife. 1 P. Wms. 172. 3 Atk. 254.
The intention to give it as personal estate, though not distinctly expressed, if it can be collected from the will of the person entitled to it, will make it personal. 3 Atk. 254. 1 Br. Ch. 236., And, says the chancellor, “I hardly know any thing that is not sufficient to show such intention.” Ibid. If got from the trustees by a decree, it is personal. So, if the trustees pay it to the person entitled, without suit. Ibid. The result of all the cases is, that the slightest intention to take it as money, will make it so. Ibid.
I might swell the listad infinitum. The amount is, that to keep off all but bond creditors, to favour the heir at law, and to give a tenancy by the curtesy, it is land. For all other purposes, money to be laid out in land, is money. The slightest act, any colour of intention, changes it even against these. Length of time alone will do it. “ If,” says the chancellor, “ it is subject to be laid out as land for fifty years, shall the heir come for it at the end of that term ? It would lead to infinite inconvenience.” Can the court decide that it is land or money, as a jury may say, appears to have been the intention of the owner?
But, it is said, the devise to a person and his heirs to sell, breaks the descent to the heir, and he can never claim. This is true, only with great limitations, as will appear from the cases cited above. The power to spll ceases when the object ceases. It ceases when the right to the money and the land unite in the same person. It always ceases where one of the devisees dies, so that the legacy lapses; and so far the heir takes. And where the money to be raised is to go to the heir, the descent is never broken for a moment. Cook v. Duckenfield, 2 Atk. 565, 568. 1 Br. Ch. 504, 515. But there are difficulties in the-way here which do not exist in England. There, in all cases it descends to one heir at law, (except in case of parceners;) here, it almost always goes to more than one. We have no heir at law, except where only one person stands in the same relation to the deceased. Here, we have no court who can compel a sale by the executor; one heir may ask a sale, another ask to take as land. Which is to prevail, or who decide?
Our only remedy is, to bring an ejectment against the executor, and take the land into possession, if he will not sell; and then those interested may not agree to sell, and a partition follows. We come to this, then, that a person may have a fight to land on which he can support an ejectment, nay, a real action, and which then will descend to his heirs; and yet, it can neither be levied on nor
In many thousand cases, the children, or some of them, have sold their interest' in lands devised to be sold, and the money divided among them. These de'eds have always been recorded, and hitherto supposed to pass the right to the land or the money; and the purchasers have sold again, or their creditors have sold by execution. But, by the present doctrine, the deed is unnecessary, and the recording illegal, and a copy from the record no evidence; for a deed of a, sale of personal property is not injured by being put on record, but is not helped, even as to the preservation of its contents. A child, entitled to half of a large estate, is in debt; the executor may not choose to sell; the other children, or one of them, may forbid him; the child is imprisoned, and applies for the benefit of the insolvent law; assigns and is discharged; but still the creditor cannot get his money, for the assignees cannot compel the executor to sell; and they cannot sell,-for there is no right in, or to the land; and yet, they could sell a reversion expectant on lives, or even on an estate tail. '
But if the descent is broken, where does it leave the heir? He could not bring an ejectment against the executor refusing to sell. If the executor sells, and applies the money to his own purposes, the right of the heir to recur to the land is gone; the will it is said, destroyed it; but if he had a legacy charged on it, the legatee would be safe. A deviseo of half the proceeds then, is worse off for all present and practical-purposes, than any devisee of any specific legacy in the will, and, though a. child, is less secure.
A man devises lands to be sold, one half of the proceeds go to his daughter; she marries and has two children, and dies; the husband marries again, and has ten children; one of the first wife’s children dies, the land being yet unsold; if land, the brother of the full blood gets all; but being personal estate, he gets one-eleventh, and the rest goes to strangers to the blood under which it comes. This if the husband does not interfere; but on the death of his wife, it is the husband’s, and he may give it all to the children of the second marriage, though it is still latid; and then they may elect to keep it land; and the legal heirs of the devisee, portionless, see strangers the owners of land which would belong to them but for a fiction of the Court of Chancery in England.
In old settled and rich countries, lands are always improved, and can at all times be sold for a fair price. Here, the reverse is the case. In many parts of this state, a tract of land, which would be
I could pursue this for a week, and every result will produce any thing but justice to the family, or convenience to the community. The law has been held always, that while it continues land, the child sells its share as land, and the deed is recorded, and the purchaser has'the right to the land, if not sold, by the executor, or to the money if it is sold. So it has been levied on and sold. It has gone to the assignees of an insolvent debtor who have sold; and no inconvenience has been experienced, or is suggested. The change is made solely to conform to the law of England and Virginia; no matter if it deprives the children of any benefit from the estate of their father, or if it occasions that estate to be transmitted to strangers; or, if it injures creditors, as well as devisees; and it has none of the benefits derived from’ it in England, where it shuts out a class of creditors, if money is to be turned into land, or lets in all if the land is turned into money.
Judgment affirmed.