32 Colo. 365 | Colo. | 1904
Lead Opinion
delivered the opinion of the court.
The executor, heirs and devisees of the testatrix move to dismiss the appeal, and also contend that the case cannot be considered on error for reasons based substantially upon the following grounds: (1) That the plaintiffs in error are not aggrieved by the decree from which they appeal; (2) that no question is involved, nor is the subject-matter of controversy or the judgment rendered such as to give this court jurisdiction on appeal; (3) that the questions which the plaintiffs in error sought to have adjudicated by their several answers and defenses were not within the jurisdiction of the county court to determine in a proceeding by the executor for leave to sell real estate to pay debts,'and that the value of their several alleged property rights severally exceeded the constitutional limit of the court to adjudicate.
The first proposition is clearly untenable. Plaintiffs in error were made parties to the proceeding because, it was alleged, they claimed an interest in the property which the executor sought to have sold for the payment of estate indebtedness. The object in maldng them parties was to cut off their alleged
We shall not attempt to determine whether any question is involved, or the subject-matter of controversy such, or a judgment rendered adverse to plaintiffs in error in an , amount which would vest this court with jurisdiction to entertain the appeal by virtue of the law regulating appeals to this court— sec. 406a, Mills’ Ann. Code. The Civil Code, sec. 388a, provides that if the supreme court does not have jurisdiction to entertain an appeal, but would have, had the action come up on writ of error, the appeal shall be dismissed and the cause redocketed on error. The judgment appealed from is final. The constitution, by sec. 23, art. YI, expressly provides that writs of error shall lie from the supreme court to every final judgment of the county court. This provision is supplemented by the statute — sec. 1091,
In a certain sense the jurisdiction of the county court to entertain the defenses interposed by plaintiffs in error and adjudicate the questions thereby raised, may be involved, but a decision of the case as argued by counsel for the respective parties depends principally upon the determination of these two propositions: (1) The general scope and authority of the county court in proceedings by an executor to sell real estate to pay debts; and (2), did the defense upon ^which plaintiffs in error severally predicate their right to a decree directing a sale of the several tracts of realty described in the petition in such order as would protect their equities, state facts sufficient to entitle them to this relief? We limit the discussion of the defenses interposed by plaintiffs in-error to this one, because we do not deem it necessary to pass upon the others at this time. In discussing these two propositions we shall not. attempt to determine the many questions argued by counsel, because, by determining the two main questions involved, it will appear they either have no application or are disposed of in the two propositions determined.
In the settlement of estates of deceased persons the county court is vested with original and unlimited jurisdiction — sec. 23, art. VI, constitution; Lusk v. Kershow, 17 Colo. 481; Wyman v. Felker, 18 Colo., 382. One of the functions which the county court is authorized to exercise in the settlement of estates is authority to entertain a proceeding by an executor
The only specific limitation on any defendant is, that he shall not be permitted to put in issue the decedent’s title or interests in the lands described in the petition — sec. 4758, supra. Authority conferred upon a court for a particular purpose carries with it, by implication, such incidental powers as are 'requisite to the complete execution of the poiver expressly granted.- — Hyland v. Baxter, 98 N. Y., 610. Logically, then, it must follow that in proceedings to sell real estate to pay debts of a deceased, the constitutional limitation of value does not apply, and the authority of the county court, in order to enable it to fully discharge the functions conferred by law, must extend to the adjudication of all questions in such proceedings except the one limited, involving the rights of those before the court interested in the real estate sought to be sold, whose rights therein will be injuriously affected by a decree of sale. — 1 Woerner’s Law of Administration, §§142, 150, 154; Lowry’s Appeal, 114 Pa. St. 219; Appeal of Miskimins, 114 Pa. St. 530; 2 Woerner’s Law of Administration, § 487; Callahan v. Griswold, 9 Mo. 775; Payne v. Pendleton, 32 Miss. 320; Pearce v. Calhoun, 59 Mo. 271; Titterington v. Hooker, 58 Mo. 593.
Generally speaking, the marshaling of assets consists of arranging the order that distinct pieces of property, in which several are interested, shall be resorted to for a specific purpose, so that the equities of each-will be protected as far as possible, without substantial prejudice to the rights of either. The doctrine is fully recognized and enforced in courts charged with the administration of estates, and is based upon the broad principle that no one will be permitted to arbitrarily exercise a right to the injury of another. It is an equitable remedy peculiarly
The sufficiency of the defense of the several plaintiffs in error upon which they predicate their right to a decree marshaling the several tracts of realty described in the petition depends on the construction of the will, in so far as it fixes the status of the parties to the proceeding instituted by the executor, in connection with the ultimate facts stated in the defense under consideration. "When the will was admitted to probate, title to the property of Class 2 vested in Henry C. Brown, subject only to the payment of estate indebtedness — sec. 4670, 2 Mills’ Ann. Stats.; Childs v. Insurance Co., 25 Colo. 360. He could convey that title subject to the rights of the estate creditors. He was devised a life estate in the hotel with full power to incumber the fee. This devise, by operation of law, was also subject to estate indebtedness. According to the will, the interest of the other heirs and devisees in the hotel was entirely contingent, for it depended upon the action or non-action of Henry C. Brown in designating who should take the remainder. "Whatever interest is now vested in them in this property under the will by virtue of the deed of waiver executed by Henry C. Brown is subject to unpaid estate indebtedness, and by the express terms of the will is subject to the incumbrances placed thereon by Henry C. Brown. They
Certain of plaintiffs in error have become the owners of the interest of Henry C. Brown in specific parcels of Class 2. Others are his judgment creditors, and have acquired a lien on his interest in the remainder of the property described in the petition as it existed on the date when they filed transcripts of their judgments for record. He has incumbered the property devised other than that owned by plaintiffs in error by mortgages and deeds of trust. He still owns the property of Class 2 so incumbered, subject, however, to the payment of the indebtedness secured by such mortgages and deeds of trust. Whether the deed of waiver has terminated his interest in the hotel so that it cannot be reached by the plaintiffs in error, who are his judgment creditors, is immaterial. That property, so far as the other heirs and devisees are concerned, is expressly subject to the payment of the incumbrances placed thereon by him before the execution of the deed of waiver to them, and if he still has an interest in that property, the judgment liens of plaintiffs in error have attached.
From this resume we conclude that all the real estate of which Mrs. Brown died seized is subject to the payment of estate indebtedness. The individual property of Henry C. Brown is liable for the payment of his individual debts. The rights of all the devisees and heirs in the property described in the petition only attach to that undisposed of. Henry C. Brown will not be permitted to take property which he has disposed of to pay his debts. The other heirs and devisees cannot resort to property in which they never had an interest, for the purpose of paying off debts against an estate in which they claim to be interested. They are bound by the incumbrances placed on the hotel, and must discharge them out of
In brief, the entire case on the two propositions considered is simply this: The court had jurisdiction to entertain the defense interposed by plaintiffs in error. All property of which Mrs. Brown died seized is subject to the payment of estate indebtedness. The heirs and devisees cannot require property of plaintiffs in error to be subjected to the payment of such indebtedness in order to free their own property therefrom, or to the detriment of the individual creditors of Henry C. Brown. The rights of
Counsel for the executor appears to rely upon the proposition that no conveyance by a devisee is of any validity until after all debts against the estate are paid, and an order for distribution made. In support of this contention he cites section 4798, 2 Mills’ Ann. Stats. It is true that the executor of an estate can make no distribution until after the estate indebtedness is paid, but that does not prevent a
So far we have proceeded upon the theory that all indebtedness scheduled in’ the petition constitutes liabilities against the estate, but we must not be understood as so deciding. The value of the property covered by the several mortgages and deeds of trust is sufficient to satisfy the indebtedness thereby secured as well as the judgment creditors of Henry C. Brown. For this reason it is not necessary to determine the questions raised on the defenses of waiver, laches and estoppel, or whether the indebtedness to the Clark heirs and trust company can legally be charged against the estate. The title of the heirs and devisees in the property incumbered by the several mortgages and deeds of trust is subject to such incumbrances; but on account of the value of the property so incumbered it will not be necessary to resort to that owned by plaintiffs in error to satisfy the indebtedness secured by such incumbrances. If the property so incumbered is disposed of in the order indicated in this opinion, there will be ample left, after such indebtedness is discharged, to satisfy the individual judgment creditors of Henry C. Brown and the claim of the Clark heirs. The creditors cannot complain of being confined to the property pledged for their security so long as their indebtedness is paid in full; so that an adjudication of these questions is not material to the rights of any of the parties to the proceeding on the record now before us.
The judgment of the county court is reversed
Reversed and remanded.
Steele, J., not participating.
Rehearing
On Petition for Rehearing.
It is argued that the plea for
marshaling assets was insufficient, because that remedy cannot be invoked except where there is a ■common fund and a common debtor. Where assets are to be marshaled for the payment of indebtedness only, the rule contended for may be correct. In the case at bar, however, the rights of the parties do not depend alone on the conditions under which assets are marshaled to satisfy indebtedness. The underlying principle upon which the doctrine of marshaling assets is based is the protection of equities. That principle has been recognized and applied, so that the burden of yielding property to pay estate indebtedness will fall upon those who, according to their several rights, should discharge that burden. It seems to be assumed that the decision is contrary to Erle v. Lane, 22 Colo. 273. We cannot see how that case has any application whatever to the one at bar. It only determined that the dividend on the claim of an estate creditor should be computed upon the balance remaining unsatisfied after application of the proceeds of a sale of property held as security for such claim, and not upon the entire claim as probated. That question is not involved in the present case. Nor does Ross v. Duggan, 5 Colo. 85, have any application, because, as between the parties to the present proceeding, no question of rights in so far as the order of disposition of the several pieces of property is concerned, is in any manner dependent upon notice to, or intention of, either of the parties. Aside from
It is said that the benefit of the reversal should be limited to plaintiffs in error. We think such is the effect of the order of reversal, because they are the only ones before the court complaining of the judgment. In order, however, that there may be no question on this score, we now direct that the judgment of the county court is reversed as to the plaintiffs in error.
Petition for rehearing denied.
Steele, J., not sitting.