89 Va. 96 | Va. | 1892
delivered the opinion of the court.
An agreed statement of the facts of the case is signed by the counsel on both sides, and certified by the clerk, from which the following case appears :
One Ambrose E. Woodroof, by deed dated the 24th of May, 1861, conveyed a tract of land situated in Amherst county, called “Pedlar Farm,” of 597 acres, to Creed T. Wills and E. J. Davis, trustees, to secure to the Lynchburg Hose and Fire Insurance. Company a loan of $3,000, for which he gave his bond of same date. The benefit of this bond and the trust deed subsequently was assigned to one John W. Wood-roof, after it had been partly paid. Jennie P. Woodroof, the wife of the grantor in the said trust deed, did not unite in the deed in trust, and in 1875 she was divorced a vinculo matrimonii from her said husband, who had left the state and settled in California. On the 17th of August, 1875, the said Ambrose E. Woodroof conveyed with general warranty the said Pedlar farm to one Alfred M. Woodroof, trustee, for the sole and separate use of the said Jennie P. Woodroof, his wife, the consideration being stated to be, not only his love and affection for her, but her releasing her contingent right of dower in certain property, and assigning other property, which had been her separate estate; and the deed is silent as to any incumbrance on the said land. After Mrs. Woodroof’s divorce she took her maiden name of Pleasants, and remained in possession of the said land for a number of years, when, in 1887, she married one Joel W. Flood. John W. Woodroof, the assignee of the $3,000 bond of May 24, 1861, died, leaving a will, of which James $. Dillard is the executor. After the death of John W. Woodroof and the qualification of his executor, and the marriage to Joel W. Flood in February, 1888, Dillard, the executor, called on Davis, the surviving trustee in the deed in trust of May 24, 1861, to enforce ,the
As Dillard, executor, was plainly entitled to over $3,000 out of the deferred payments, he made an arrangement with T. Fauntleroy, trustee, to advance him, for the purposes of his estate, the.net amount of the first bonds, and gave said Fauntleroy an assignment of his interest in and right to the proceeds of said bond. At May term, 1889, said Fauntleroy filed his petition in the case, setting out this transaction, and by the decree of that term he was declared to be entitled to the proceeds of that bond at one year from 17th of January,. 1889, with authority to withdraw the same (leaving an attested copy), and collect the same to his own use, reporting such collection promptly to the court. The court further decreed that Davis, trustee, should collect the bond for the second instalment when due, or earlier if the obligor should desire to anticipate its maturity, in whole or in part, and requiring him to deposit all sums collected in the First National Bank of Lynchburg, as the same should come to his-hands, taking interest-bearing certificates, payable to the order of the court in the cause, and that he report his transactions-to the court from time to time.
At this stage of the case (June, 1889,) Mrs. Flood died intestate, and without ever having had issue. Tier heirs-were James W. Pleasants and others, the appellants. Mrs. Flood had a considerable personal, legal, separate estate, and administration was taken on this in Appomattox county, where she and her husband, Joel W. Flood, had resided. The original suit was revived in the name of her administrator, and the heirs filed their supplemental bill and bill of
Thomas Fauntleroy withdrew the first bond for $1,956.13, as authorized by the decree of May term, 1889, which matured 17th of January, 1890, and demanded payment. On the 10th of May, 1890, in term, Joel W. Flood filed his petition, setting out the facts with regard to said Fauntleroy having become the owner of said bond, and having made himself a party by petition to the cause, and the death of Mrs.
The case was submitted by consent to the judge of the circuit court for decision and decree in vacation. On the 22d of July, 1890, the judge certified to the clerk his decree, which, after bringing the case on, on the facts as above set forth, and on the motion of T. Fauntleroy, trustee, for leave to sue at law on the bond, is as follows: “ The court, being of opinion that the purchase by Firs. Jennie P. Flood of the Pedlar farm, at the sale thereof made by Eo. J. Davis, surviving trustee, in January, 1889, was simply a method of getting rid of the liens in excess of its value, and holding the land freed therefrom, and that there was no such expression of intention on her part to shift the primary liability from the real estate to the personal estate, doth deny the exoneration prayed for in the said supplemental bill and bill of revivor, and doth ascertain and declare that the Pedlar farm is primarily bound, in the hands of the heirs of Jennie P. Flood, deceased, for the payment of so much of the out
It is conceded to be a general rule that, as between the real and personal representatives of all persons deceased, the personal estate in the hands of the executor or administrator is the primary and natural fund which must be resorted to in the first instance for the, payment of debts of every description, contracted by the testator or intestate; and, if the creditor proceeds against the real estate descended or devised, the heir or devisee who has sustained the loss shall be allowed to stand in the place of the specialty creditor, to reimburse himself out of the personal estate in the hands of the executor or admin
There i§ no dispute about these principles, but the appellants insist that, however this may be and is, by the act of Mrs. Flood in making herself personally responsible by bond for this debt, she has made the personalty the primary fund to this debt of hers. ‘Up to the point when Mrs. Flood bought at the judicial sale made January 17, 1889, there was no debt due from her personally on account of this Dillard debt. It was in no degree her debt. It was a debt subjecting the real estate, and that only. The real estate was not only primarily, but solely, the fund which could be looked to. By her purchase and the execution of her bonds to pay this debt, upon the delivery of the land to her unincumbered she bound her
Judgment affirmed.