10 F. 23 | U.S. Cir. Ct. | 1879
This is a bill by the widow of John N. Pulliam, against the executor and the legatees and devisees, for a general account of the administration of the estate, to recover certain legacies and devises made to her, and to charge the executor with certain alleged breaches of his trust.
J. N. Pulliam died in Payette county, Tennessee, October 20, 1865, leaving a will, in which he gave his wife one section of his lands in Arkansas, “she making her own selection,” all the money he might have on hand in her possession at the time of his death, she not being required to give bis executors any account of the same, certain specified articles of personal property of which she was to be put into possession at the time of Ms death, together with all the notes he received of her at her marriage. The will also provided, among other things, that the executors should, after payment of these legacies, pay all the testator’s just debts out of the remainder of his estate, the balance of the estate to be equally divided among all his children; and his sons Joel L., John J., and Alfred B. Pulliam were named as executors. The will is dated February 23, 1863. The defendant J. J. Pulliam alone qualified as executor, and only in Tennessee, the other
A decree for an account is a matter of course, and upon the single charge that an executor has proved the -will may be founded every inquiry necessary to ascertain the amount of the estate, its value and the disposition, made of it, the situation of any part remaining un-disposed of, the debts of the testator, and any other circumstances leading to the account required. Desty, Fed. Proced. Eq. rule 73 and note, p. 303; Williams, Ex’rs, 1732; 2 Daniell, Ch. Pr. (4th Ed.) 857; Gresley, Eq. Ev. 168; Law v. Hunter, 1 Russ. 100; Walker v. Woodward, Id. 110. And these authorities show that, as to the details of the account, it is improper to introduce proof, except such as may be necessary to settle the principles which are to govern the master, until the cause is before him for that purpose.
In thus proceeding against an executor a court of equity treats him as a trustee for the legatees and devisees to execute the trusts of the will. Williams, Ex’rs, 1717. He is an express trustee, and the statutes of limitation do not bar the remedy. Lafferty v. Turley, 3 Sneed, 157; Carr v. Lowe, 7 Heisk. 85; Decouche v. Savetier, 3 Johns. Ch. 190, 215, 222; Wallis v. Cowell, 3 Ired. L. 323; Taylor v. Benham, 5 How. 233, 276. Lapse of time, however, as in all other cases in equity, will, under certain circumstances, operate as a bar. Lupton v. Janney, 13 Pet. 381; Burton v. Dickinson, 3 Yerg. 112; Piatt v. Vattier, 9 Pet. 416; McKnight v. Taylor, 1 How. 161; Maxwell v. Kennedy, 8 How. 210; Boone v. Chiles, 10 Pet. 177.
The common-law presumption of payment after 20 years furnishes the analogy most frequently applied: this has been reduced to 16 years in Tennessee. Blackburn v. Squib, Peck, 60; Thompson v. Thompson, 2 Head. 404. But in Lafferty v. Turley, supra, 27 years was held not to defeat the right to an account in a case like this. In Burton v. Dickinson, supra, at the stating of the account between the parties those interested were present, received their shares of the property, and executed receipts; and 12 years were, therefore, held to be a bar. So, in Lupton v. Janney, supra, there being no charge in the bill of any fraud against the executor, it was dismissed, not having been filed until 12 years after the final settlement in the orphan’s court. Here the executor made his first and only settlement on July 19, 1872, and this bill was filed July 7, 1876, less than four years after; so that, if we adopt Mr. Justice Story’s dictum as announced
It is true, the plaintiff could have filed this bill at any time alter the expiration of the two years allowed the executor by law to settle the estate, (Tenn. Code, § 2311,) and she might possibly have maintained a bill for an account at any time after the six months allowed to ascertain the condition of the estate, (Code, § 2274;) but, considering her rights under this will, she might well delay any demand for an account until the executor had collected the assets and paid the debts, presuming that he would do his duty; and certainly he had no right to require that she should ask for a settlement in a court of equity before he himself considered the estate ready for settlement in a court where, by law, he was bound to settle.
There can be no doubt, therefore, that the plaintiff here is entitled to an account; and our only duty now is to determine, so far as we can, the extent to which it shall go, and the principles that shall guide the master in stating it. Field v. Holland, 6 Cranch, 8; Dubourg v. U. S. 7 Pet. 625.
And, first, what effect is to be given to the settlement made by the executor with the county court of Fáyette county on July 19, 1872, and which was examined and approved by that court at its October term, 1872? It does not appear whether the notice required by section 2298 of the Tennessee Code of the making of this settlement was ever given. The settlement of accounts by executors and administrators is regulated in detail by statute, including a requirement for notice to the parties interested; and section 2305 provides that a settlement, when so made and recorded, shall be prima facie evidence in favor of the accounting party. Gode, §§ 2295, 2305, and note. The defendant insists that the plaintiff must successfully attack the account by showing errors in it, and only to the, extent that she surcharges and falsifies it by such errors can he be required to account again; that this settlement has the verity of a judicial record, and must be here so considered. There is no question but that it has this effect in the state courts wherever the settlement is called in question. This statute is not a mere rule of evidence, but a declaration of the force and effect of the judicial decree in the county court approving the settlement. Snodgrass v. Snodgrass, 1 Bax. 161; Milly
Has the general rule of equity jurisprudence, that a legatee or devisee is entitled as a matter of course to an account against an executor on a hill filed for that purpose, been changed by the statute ? The jurisdiction does not depend upon the right of a court of equity to surcharge and falsify accounts between individuals for fraud or mistake, or to open settled and stated accounts on like grounds of equitable relief, but attaches from other sources; that is to say, it has been acquired by the assumption on the part of courts of equity of jurisdiction over the assets of deceased persons, and the accounts when taken are mere incidents to the relief. Beyond this it has plenary jurisdiction over these matters which no other court has to administer the trusts of the will. Story, Eq. Jur. § 530 at seq; Tol-lei;, Ex’rs, 479, § 4. The jurisdiction of the ordinary to take an account, under the English statutes, in force at the time our federal courts were organized, was very much restricted, and out of these restrictions has grown the necessity for equitable relief. Toller, Ex’rs, 489, § 5. I cannot find that in administering this relief courts of equity paid any attention to settlements made in the ecclesiastical court, as such; indeed, I doubt if such settlements as are made in our probate courts under statutes conferring upon them more or less extended jurisdiction, were known to any court at that time other than a court of equity. In case a legatee elected to go into the spiritual court the executor was obliged to exhibit an inventory and bring in an account. All legatees and parties interested were cited to appear at the making of the account, for it was not conclusive on such as were absent and had not been cited. Id. 491, 495. After the ordinary had investigated the account, if true and perfect, he pronounced for its validity, and in case all parties interested! had been cited such sentence was final, and the executor was subject to no further suit. Id. 495. But the jurisdiction of the ordinary was' very liipited, and. the conclusive nature of the account so made before him applied only to matters within that jurisdiction.
Can this principle be applied to settlements made in our probate courts, so widely differing in their powers and jurisdiction in the several states, to limit and confine the remedial powers of a federal court of equity? It seems to be settled by the Tennessee eases,above cited, that this statute was passed for the very purpose of imposing such a limitation on the state courts. But the jurisdiction of the-
But while this is true it does not follow that this settlement is to have no effect whatever in taking the account to which the plaintiff is entitled. Irrespective of this statute there is abundant authority for the position that before the master it maybe treated, so far as the court by the decree of reference shall adjudge, as evidence against the executor to the extent that it contains admissions by him, and in his favor to the extent that it is not shown to be incorrect. There is great conflict of authority as to the exact weight to be given to it, but it is rather a matter of practice in taking the account than a rule of evidence. The earlier cases in Tennessee give such settlements no effect at all. Greenlee v. Hays, 1 Tenn. 300; Bashow v. Blackmore, Id. 348; Stephenson v. Yandel, 5 Hayw. 261, (Cooper’s note;) Stephenson v. Stephenson, 3 Hayw. 123. The cases since the statute of 1822, above referred to, (Code, § 2305,) have heretofore been noticed. In Newton v. Poole, 12 Leigh. 112, 142, it is said that it has long been the rule of our courts to treat these settlements in the probate courts as prima facie evidence, and it rests mainly upon the established practice of the country, and a presumption that the accounting officers have done their duty. And see Nimms v. Com. 4 Hen. & Munf. 57; McCall v. Peachy, 3 Munf. 388, where it is said the executor will not be required to produce here the vouchers he has filed in the county court but may use copies of them. In Wood v. Barrington, 1 Dev. Eq. 67, it is said that a settlement by the county court is no way binding on the next of kin. It may and possibly should have some weight in taking the account, particularly where the executor is dead. It is not a stated account. It is possible that the case of Lupton v. Janney, 13 Pet. 381, which holds that such an account is prima facie evidence, and even our state statute, was intended to go no further than give it the weight which these authorities would seem to authorize without the statute; but the adjudications have extended the operation of' the statute further than this, and invested the settlement with the verity of a judicial record. And it is this construction, so much relied on here by the defendant, that trenches
Under the facts and circumstances of this case, I would not order this account to stand before the master as a settled account, for the reason that it is not shown that the plaintiff had notice, which was always essential. But the old mode of taking accounts before the master, by tediously proving every item, has been abrogated, and the sixty-first rule of the English chancery practice, adopted in 1828, requires the accounting party to state his account in the form of debit and credit, which, being verified by the affidavit of the party, stands as a basis for the account, in which the other party must show error by proof before the master. 2 Daniell, Ch. Pr. 1222. The seventy-ninth equity rule of this court is almost an exact copy of the sixty-first English rule. The defendant, by his deposition, has proved his account as stated in the county court to be correct, and under this rule of the court he could, without any leave of the court, offer it before the master as his account, and it will be so treated now.
By this settlement it appears that there came into the hands of the executor $26,590.02, which he has paid out. Of these disbursements he paid to his brother, the late Joel L. Pulliam, some $21,101.15, on 12 notes he held against his father, aggregating, without interest, $17,-659. These notes, which are produced in evidence, bear various dates, from April 21, .1856, to June 2, 1862. The defendants also produce three papers which are called settlements, all in the handwriting of the said Joel L. Pulliam, which it is proved were among the papers of his father. They are dated April 21, 1856, November 18, 1859, and January 1, 1863, and are informal statements of indebtedness, with calculations of interest and credits referring to these notes, and showing how the amounts of the notes are arrived at.
It is alleged in the bill that these notes, or some of them, were paid during the life-time of the father, and that they, with these
, But there can be no dispute that the plaintiff’s notes were assets in the hands of -the executor, liable under the law to the payment of debts, in the absence of other assets for the purpose.- The proposition suggested in the bill, that the wife could claim them by survivor-ship, was not seriously pressed at the hearing, and has no support under the facts of the case.
It is conceded by counsel for the plaintiff that the notes of Joel L. Pulliam were not barred, at the time of the testator’s death, by the common statute of limitations of six years. This being so, they were good vouchers to the executor, unless barred by the dead man’s statute, by which it is provided that all claims against a decedent shall be
By the Code, “if any creditor, after making demand of his debt or claim, delay to bring suit for a definite time, at the special request of the executor or administrator, the time of such delay shall not be counted in said period of limitation.” Code of Tenn. § 2280, and notes. The payments made after the bar attached are sought to be justified by a special request under this statute, and which is as follows :
- “To J. L. Pulliam, Somerville, Tennessee: In the matter of your claims of all descriptions against the estate of our father, John 27. Pulliam, in settlement of which estate I am acting as executor, I request that you do not enforce same by suit or legal proceedings, as the assets of the estate are not yet collected by me sufficient to pay the debts due and owing by John 17. Pul-liam. By your delaying to sue it shall not prejudice your claims, as I will not avail myself of the statute of limitations applicable to executors, adminstra-tors, etc.
“May, 27, 1868.
J. J. Pulliam.”
This request for delay is special, but the question is whether or not the time to be deducted is fixed and definitely ascertained. It is said by the plaintiff there is no demand shown; but the request implies a previous demand. Puckett v. James, 2 Humph. 565, 567; Bank v. Leath, 11 Humph. 515. The executor is not bound to plead the general statute of limitations, and, if the bar had n'ot attached in the life-time of the decedent, he might waive it. Batson v. Murrell, 10 Humph. 301. But there is no such discretion to waive the dead man’s statute, and it enures to the benefit of legatees, who may always set it up. Brown v. Porter, 7 Humph. 373, 383; Batson v. Murrell, supra; Byrn v. Fleming, 3 Head, 658, 663; Wharton v. Marberry, 3 Sneed, 603; Wooldridge v. Paige, 1 Memph. L. J. 212; Woodfin v. Anderson, 2 Tenn. Ch. 331. In the last case the words were these: “I request that no suit shall be brought on this note, and agree that the statute shall not run against it.” Held, not good. These are almost the very words of the last clause of the paper be-
The original act of 1789, chapter 23, § 4, read: “If any creditor, who, after making demand of his debt, shall delay to bring suit, at the special request of the executor or administrator, that then and in that case the said debt or demand shall not be .barred during the time of such indulgence.” In the case of Trott v. West, 9 Yerg, 433; S. C. Meigs, 163, the request was to delay “for a short time,” with a promise “to pay soon,” accompanied by a partial payment. It was held not to comply with the requirements of this statute, the court saying: “The proviso clearly means that the special request shall stipulate for special delay, for a definite time of indulgence, during which the statute shall not bar the claim.” In Puckett v. James, 2 Humph.. 5 64, the testator owed a debt for. certain land he had purchased, and the executor requested another creditor to delay a debt due him “until the land was paid for,” which he agreed to do. The court held that this was for a definite time of indulgence:
“Hot, to be sure,” says tlie court, “for a particular length of time named in the request, but for the time that might elapse until he could accomplish a certain event named and stipulated in the request. There is nothing vague or indefinite in the period here fixed, for, if the land were paid for, the statute would run from that period in the same way that it would if a particular day of a specified year had been named.”
By this decision it was first adjudged that the definite time to be deducted may be measured by the occurrence of some event agreed upon as the basis of such measurement. In McWhirter v. Jackson, 10 Humph. 209, there was this indorsement on the claims: “The within account is accepted, and will be paid when means sufficient come to my hands.” The circuit court charged the jury that this was sufficient under the statutes; but on writ of error the supreme court affirmed the judgment solely on the ground that by the promise the administrator had made himself personally liable, having admitted that he had collected money enough to pay the judgment; the court holding that the case was not governed by the act of 1789. In the case of Bank v. Leath, 11 Humph. 515, the requést made by the executors was that the creditor should not sue “until they could procure a statement of the account between the testator and the bank; ” and this was held to be a stated event and sufficient. In McKizzack v. Smith, 1 Sneed, 470, the administrator requested delay, and promised to pay “as soon as money enough should be collected;” and at another time, “as soon as Joseph Miller could collect some money.” The
It is to be observed that the doubt here thrown upon the former construction of the act of 1789 has been since set at rest by the Code, which changes the pld statute by inserting the words “for a definite time,” so that now there can be no doubt on that point. This distinction between the act of 1789 and section 2280 of the Code is noticed in Birdsong v. Birdsong, 2 Head, 603, where the rule is stated to be “that the delay agreed upon at the request of the administrator to avoid the bar, must be for a definite time, * * * or to an event which may occur, and thereby render the period certain.” A payment of part and a promise to pay the balance was held to be no request at all.
The first reported ease after the Code is Chestnutt v. McBride, 1 Heisk. 389. The administrator, when requested by the creditor to have his claim settled, said, “Hold on! your claims are good;” and the court, in holding this to be insufficient, said: “It does not show a special request to delay, for a definite time of indulgence, or for any special period that can, by reasonable intendment, bo reduced to certainty.” In Cook v. Cook, 10 Heisk. 464, the court, without deciding the point, intimates plainly that a request “to bo patient until I get shut of a big law suit in which I am engaged, and I will go ahead and pay off all claims,” was not sufficiently definite. It was held that the creditor must make demand within two years after the time agreed on for delay expires, whieh was not done in that ease. In Galloway v. Murray, 1 Tenn. Leg. Rep. 216, there seems to have been in words no special request for delay, and the question was whether one would be implied from the facts. The defendant, in a conversation with the plaintiff on the subject of a settlement, told him “that he wanted to settle the whole matter at once, but did not request any delay.” The “clear import,” says the court, “of defendant’s language was that he would settle as soon as Mrs. Partee came up from Mississippi. No express request for delay was made further than these words import.” There was no question about the definiteness of the time in this case, — that was sufficiently fixed, under all the cases; the only question being whether there was a special request for delay, and it was held there was. The latest case reported is Langham v. Baker, 2
“Yet it bas not been held that a general request for delay from time to time, or an assurance that the debt is good, will save the operation of the statute of two years. Such were the requests in this case; and when the statute is complete it is a devastavit in the executor or administrator to pay such barred debt for which he will be held liable.”
These are all the cases on this particular subject of the definiteness of. the time, but' there are others illustrating the rigidity with which the courts adhere to these statutes to protect dead men’s esr tates. Although the common statute does not run against a dis-tributee, the administrator being an express trustee, yet, if the administrator die, this statute of two years attaches in favor of his representatives; the administrator is himself bound by it, as to his own debt, and must pay himself within the two years by settling with the clerk and having his debt allowed; and the state is itself barred by it, even for taxes, which is not so as to the other statutes of limitation. Galloway v. Murray, supra; Brown v. Porter, 7 Humph. 373; Hamner v. Hamner, 3 Head, 398; Byrn v. Fleming, Id. 658; State v. Crutcher, 2 Swan, 514. The Massachusetts cases under a similar statute, referred to in Trott v. West, supra, are to the same effect. Dawes v. Shed, 15 Mass. 6; Waltham Bank v. Wright, 8 Allen, 121; Jenney v. Wilcox, 9 Allen, 246; Bradford v. Forbes, Id. 365; Wells v. Child, 12 Allen, 333.
Having gone over these cases with the utmost care, I am of the opinion that the paper offered in evidence here does not show that any definite time was agreed upon for the duration of the delay, and that it is impossible to say from it, by reference to any event, how long the delay should continue. He gives as his reason for asking delay the fact that he had not yet collected assets to pay the debts of the testator. If any implication can possibly be based on the language of this paper, it is that the collection of sufficient assets to pay all the debts of the testator is the event which is to fix the duration of the time of indulgence. This may never happen, and according to the position taken by the defendants has not yet happened, now quite eleven years from the date of this paper. It was apparent to. these defendants — on their theory of this case, that the executor had nothing to do with the real estate — then, as now, that this event would never happen. The fatal defect of this paper, in this regard, is too obvious to.require further consideration. '
It was suggested that the proof shows that there were then pending
“It is manifest from the decisions that there has been a departure from the strict letter of the statute in order to administer it in its spirit, and to meet the right and justice of the eases as they may arise. The statute was never intended as a snare by which to entrap the unwary and credulous creditor, and when such a case is presented, if clearly within the equity of the statute, no reñned and technical construction should be allowed to defeat the right. After the administrator has negotiated for delay and obtained it, with or without a special verbal request, and the effect of it has been to paralyze the vigilance of the creditor, and the administrator seeks advantage of his own wrong, certainly the statute must be held to protect the creditor and save the bar. In such case we hold the spirit of the law is answered.”
This doctrine is urged in the argument here, but it does not apply. Such a case is not presented by this record. This creditor can make no pretence of having been paralyzed by this transaction or by this executor. This paper is in the handwriting of Joel L. Pulliam. He is proved to have been an eminent and able lawyer, familiar with the administration of estates, and capable of taking care of himself; and the executor was his brother, acting under his guidance and in his interest.
We come now to the determination of the rights of the plaintiff under the will, as against the executor, in relation to the notes the testator received of her at their marriage, and other property bequeathed to her. Of course the plaintiff must take all the property subject to the rights of creditors, it being impossible for the testator to give his property to his wife, exempt from liability to them, whatever power he had to direct the order in which the property should bo liable. Wills of both real and personal property, in the United States, are made subject to the rights of creditors; and to the extent that it is necessary to appropriate the property to the satisfaction of their demands the intended bounty is defeated. 2 Cooley’s Black. Com. 378, note 10. This is a matter to be determined upon the taking of the account, and the executor is liable only so far as assets have come or should have come into his hands sufficient to pay these bequests to the wife after the payment of all debts, for the payment of which he shall be allowed in the settlement.
The master, in taking the account, will therefore allow her these two and other notes which she may show came to the testator by his marriage with the plaintiff and were collected by the executor. If the judgment against E. S. and Darling Allen for $250, mentioned in thé settlement, was on a note coming by the marriage, it will also be allowed. The Carney note will not be allowed, as she proves no> claim to it. The specific articles of personal property will be allowed to her, unless it is shown either that they did not come into the hands of the executor, were necessarily absorbed in the payment of debts, or that she has received them. He will be credited with all she received.
As to the $10,000 of money admitted to be in her possession at the time of the testator’s death, the will gives it to her in the plainest terms. It may have been assets for creditors on failure of all other resources, but it was not her duty to surrender it to the executor. No creditors are here asking to have it applied to their debts, and the executor, as to the creditors, has settled his accounts and been discharged; nor does it appear that there are any creditors unpaid not barred by tne statute of limitations.
The next question to be determined is that relating to the real estate. It appears that the testator had a quantity of land in Arkansas and some in Tennessee. It is not denied, and cannot be, that this will charges the debts of the testator upon all the other
This was the domicile of the testator, and the administration in chief was here; all other administrations were ancillary to this. The administrator or executor at the domicile may always lawfully receive and give acquittances for assets in another state. Wilkins v. Ellett, 9 Wall. 740; Trecothick v. Austin, 4 Mason, 16, 32; Swatzel v. Arnold, 1 Woolw. 384, 389. In the last case it is said by Mr. Justice Miller that the impediment to the exercise of full powers, even by an administrator, in a jurisdiction foreign to that of granting his letters, is essentially technical and formal, and should not be strained beyond its necessary application. The supreme court of Tennessee says in Young v. O’Neal, 3 Sneed, 55, that “as an executor or administrator has no authority to sue for or collect the assets of which the deceased may have died possessed in a foreign country, the law does not impose on him the duty of doing so. He has no title to or authority over the assets in another state; neither is he responsible therefor.” And it was held that a voluntary payment to a foreign administrator was not good. But in Wilkins v. Elicit, supra, the supreme court of the United States repudiates that doctrine, and holds that “the original administrator, with letters taken out at the place of the domicile, is invested with the title to all the personal property of the deceased for the purpose of converting the effects of the estate, paying the debts, and making distribution of the residue, according to the law of the place or directions of the will, as the case may be. * * The difficulty does not lie in any defect of title to the possession, but in the limitation or qualification of the general principles, in respect to personal property, founded upon the policy of the foreign country, to protect home creditors.” Now, it is just as competent for a testator to convert his lands hito personalty by will, and invest his executor with the duty of so administering it, as it is for the law to confer upon an administrator the title to personalty in a foreign jurisdiction. Lands charged with the payment of debts are always considered per
It is manifest that the testator did not contemplate such a disastrous separation of these trusts, and that the will does not readily accommodate itself to such an arrangement. It is almost absolutely essential to the rights of this plaintiff that the same person should have the execution of the will everywhere; and no just man, when he came to consider whether he should accept this trust, would for a moment have hesitated to decline, if he supposed at the time that by
In Gaines v. New Orleans, 6 Wall. 642, 713, the purchasers of the testator’s land sought to protect their title b5 showing that creditors were entitled to it under the administration laws, but the court says “they cannot substitute themselves for the creditors of the estate and use them as a means to get protection.” The same principle applies here. This executor cannot protect himself against a broach of trust by showing that creditors had remedies against the trust which they did not set up. The law imposed on him an impartial administration of his trust.
I am therefore of the opinion that the defendant J. J. Pulliam is liable to the plaintiff for a failure to sell the lands in Arkansas under the powers granted to him by the will for that purpose, in order that he might exonerate her legacy by applying the lands first to the payment of the debts.
The extent of his liability will be now considered. By this will the lands were converted into personalty for the payment of debts, and are to be regarded, for all the purposes of this case, as money at the
But the plaintiff had specifically devised to her. one section of the Arkansas lands, she making her own selection out of all the lands in that state. This selection she has never made, and it is argued that the executor is not chargeable, because, until she does select, he cannot sell. This might do if the executor had shown that his efforts to execute the will had been impeded by her failure to select. But he repudiated all. obligations on himself in relation to these lands, and cannot complain that she made no selection, and his liability cannot be excused Cn this ground; but he is not liable for the section devised to her. It is to be presumed that if the executor had proceeded to discharge his trust she would have selected the most valuable section of all the lands, and equity will treat this as having been already done. The master will therefore ascertain the' value by sections, and deduct from the whole value that of the best section, and charge the
By this will the testator bequeathed to Alfred B. Pulliam his Isbell plantation, valued at $6,000, to be taken into account as part of his estate received from the testator. It is claimed by the plaintiff that this land is also charged under the will with the debts of the estate in exoneration of her legacy. This is undoubtedly true, and in that respect it occupies no other attitude than does the Arkansas land, and its value must be charged against the executor in the same way. The fact that it is specifically devised does not relieve it from the burden put upon it by the testator in favor of the plaintiff. By such devise an equity is no doubt created that this land shall not be touched for debts until all the other property has been exhausted. Darden v. Hatcher, 1 Cold. 513. Nor does the statute of limitations protect the land. He held it under the will and is bound by its trusts. It may be that, as between him and the executor, the statutes of limitation would protect the land against the exercise of the power of sale for debts, but the equities between these devisees is not of that character which is barred by the statute of limitations. As against the executor the plaintiff has a right to an account, charging him with the value of the land just as if he had sold it to the best advantage in the execution of his trust.
But it appears by a paper offered as proof that on the twenty-second day of June, 1883, subsequent to the date of the will, the testator by deed of gift, in consideration of love and affection, conveyed an undivided half of the Isbell plantation to Alfred B. Pulliam, to whom the will devises the whole. Alfred B. Pulliam says in his answer that he went into possession soon after his father died, and has been in possession ever since. It is manifest, then, that he did not go into possession under the deed, at least until after his father’s death. He also says in his answer that he acquired by deed of gift from his father one-half of said land, the deed being made in 1868, and being of record. This answer was filed in July, 1877. It does not exhibit the deed, nor is it proved or produced otherwise than by its production by his counsel at the hearing. It is said in the answer that it was registered as required by law. It appears by the certificates upon it that on the twentieth of July, 1872, the day after the final settlement of the executor was filed in the county court, and
.It further appears, in reference to this Isbell plantation, that the testator and Joel L. Pulliam originally purchased it jointly, each owning an undivided half. The deed to them is dated June 30, 1856, and conveys the land absolutely for $4,400, acknowledged to be paid.
The theory of the defendants is that Alfred B. Pulliam took one-undivided half of the land under the deed of gift, discharged of all liability for the purchase money due; that he took the-other half under the will subject to'an encumbrance for the whole of the purchase money, and because there would be nothing left after paying the encumbrance, the executor had no duty to perform, and is not to be charged with anything on account of this land. But it does not legally appear here that Alfred had any deed of gift; and, if it had taken effect, it is questionable whether he could claim that half discharged of its liability for the purchase. money as against his co-devisees. It was the executor’s duty to sell this land for the payment of debts. If the debt for the purchase money was a valid and subsisting one, not barred by the statute of limitations, he could have paid it, and it was his duty to pay it, and he would be entitled to credit in his accounts for the amount paid. If the debt became barred by the
If the creditor within the two years and six months had filed a bill to enforce his lien, and it were in fact a valid and subsisting lien for a debt due by the testator, and by the proceedings the executor was divested of his title in the land, or the devisees became divested of their title, so that the executor could not execute his power of sale, then he would be discharged from any further liability as to the land, unless it could be shown that by neglecting to sell and pay off the encumbrance the plaintiff had been sacrificed. But he sets up no such defence, his theory being that as executor he had nothing to do with the land. But he should have defended against any encumbrance, if invalid, and defeated it; if valid, he should have paid it, if his accounts show that he had assets for the purpose or could have raised a fund by the sale of property.
I cannot say from this record whether Isbell had a debt against the testator. None is proven, nor are the bonds produced, nor is there any proof that they were a lien on the land or valid. It does appear by the recitals in the obligation of March 11, 1858, that J. J. Pulliam was a surety on the purchase-money notes; if this be so, it is possible there was not even an equitable vendor’s lien. I think, in taking an account like this, the defendant may before the master prove any fact which will excuse him from liability, and he may therefore make such proof as he may be able on this subject of' the encumbrance and the master will report the facts. He will, however, charge the executor with the full value of the whole land, as already directed in the matter of the lands in Arkansas, and report the facts as to this alleged debt to Isbell, and the alleged, encumbrance, and the present condition of the title and ownership of the Isbell plantation.
The question of the post-nuptial contract of October 20,186Q, arising on the original bill, does not seem to me to be a practical one. The condition of this estate does not indicate the possibility of any residuum after paying the legacies to which the plaintiff is entitled
The defendants file a cross-bill, in which they allege that during the late war their father was' possessed of some $20,000 or $30,000 of gold coin, which he buried for safety near the residence of the plaintiff’s mother, in an adjoining county to Fayette county, where their father and these defendants lived, but in the state of Mississippi; that this money has been fraudulently appropriated by the plaintiff; and that she should be held to account for it to them in this suit.
If we admit as competent all the proof offered on this subject, it falls far short of even tending to show that the plaintiff possessed herself of any of her husband’s buried treasure, if such he had at his death. It is plain that much of the proof, if not all of it, by which it is sought to charge her with this gold, is wholly inadmissible. It consists entirely of declarations of her husband that he had gold buried of which she knew, most of them made when she was not present; and if she were present and heard such declarations, she would not be bound hy them, and her knowledge of its hiding place would not prove that she appropriated it. It is incredible that twenty-five or thirty thousand dollars of gold should be buried, not far from the residence of these defendants, by their father, and they not make any further effort to recover or trace it than they are shown by this record to have made, if they believed it was there at the time of his death. The proof of any admissions by her oí a knowledge of this gold is unsatisfactory, and it is not shown that she ever admitted that she got it. Her husband’s statements that he had such gold, and had buried it where his wife and her brother could find it, will neither prove as against her that there was such hidden treasure within her power, nor that, taking advantage of her knowledge,' she took it into her possession. 1 Greenl. Ev. § 185, note 2; Smith v. Scudder, 11 S. & R. 325; Birdseye v. Flint, 3 Barb. 500; 1 Greenl. Ev. §§ 197, 197a, 199, 200. The duress of the relation of husband and wife will often secure acquiescence in the false statements of each other. She accounts for the money shown to
Nor can Joel L. Pulliam be charged with the possession of any of this treasure by the declarations of his father that he had placed some of the paper money injured by its burial in his hands to be redeemed at the treasury. The rights of the parties must depend upon their respective interests in the property shown to have had an existence at the time of the testator’s death, and not upon any speculations as to what became of large quantities of gold which he boasted of having buried during the war, and which each of these parties affect to believe the other has obtained and appropriated. The cross-bill will be dismissed when a final decree is entered.
The question of interest is reserved. The master will calculate it as he may think lawful on the facts before him, and report his action and the reasons for it. On the coming in of the report, and its confirmation, the plaintiff will be entitled to a personal decree against the executor for whatever amount may be found in her favor on account of the legacies given her by the will, less so much of said legacies as were necessarily paid in the discharge of lawful debts. This disposes of her equity against the executor. Her equities against the other legatees and devisees are simple. She is entitled to be subrogated to the rights of creditors, so far as her legacies have gone to pay their debts, but no further. It is not her legacy which is charged upon the residuum of the estate, but the debts, and she is entitled to charge the lands or other property only so far as debts have been paid with her money. To that extent (and the master will report how this is) her claim will be a lien on the lands, to be satisfied first out of those devised to the residuary legatees, and last out of the Isbell plantation. I do not see that ■ she -has any equity against Joel L. Pulliam’s estate for the money paid him, which was wrongfully paid, because barred by the statute of limitations. She must look to the executor for that, and has no claim to recover it back from the creditor. If the debts were fraudulent, as charged in the bill, she would have that right, but they are not. There being no regular master in chancery in this court, J. B. Clough, Esq., one of the commissioners of the court, will be appointed special master to take the account.