1 Paige Ch. 188 | New York Court of Chancery | 1828
The Chancellor :—The application to amend the original decree in this cause, if it had been made in time, might have been allowed, provided there was an obvious omission or mere mistake in drawing up the decree. If the complainants ever had any remedy of this kind, which is somewhat doubtful as to part of their claim at least, it has been lost by
The question whether the personal property specifically bequeathed is to be applied in satisfaction of the judgment before the lands specifically devised can be resorted to, was reserved by that decree, and will now be disposed of. The personal property is the primary fund for the payment of the debts of the testator; and, as a general principle, must be exhausted before the lands can be resorted to for that purpose.
Where there is a specific lien on the land devised, as in the case of a mortgage, or where the land is devised on condition of the payment of debts, or the debts are directed to be paid out of the estate devised, and where it appears from the will, that it was obviously the intention of the testator that the legacy should be received entire, and the debts paid out of other funds, the court will marshal the property in such manner as to carry that intention into effect. But a judgment is not a specific lien upon anything. It is a general lien upon all the property of the debtor ;
After the master had ascertained the amount chargeable on the lands devised to Thomas Rogers, jun., and his children, he must state an account between the devisees thereof, and Halsey Rogers, crediting the latter with the amount thus ascertained to be chargeable thereon, and charging the value of the timber cut by him, or by his permission or directions, and the rents and profits received, or which might have been received by him; and charging interest as directed in the former decree. And on confirmation of the master’s report, if a balance is found due from Halsey Rogers, he must pay that balance into court for the benefit of those devisees; and if there is still a balance due to him, the land must be sold to satisfy that balance.
Upon the principles and grounds on which the original decree in this cause was made, the complainants are entitled to recover against the defendant, Halsey Rogers, their costs of this suit to be taxed, excepting the costs of their application to amend the original decree, and such other costs as have heretofore been disposed of in the progress of the suit.
As to the lands devised to the other defendants, after the amount of the judgment debt, which is justly chargeable on such pieces of land respectively, shall have been ascertained by the master, Halsey Rogers, or either of those devisees, must have liberty to go before the master and have an account taken in relation thereto, on the same principles *as those on which the account is directed to be taken in relation to the lands devised to Thomas Rogers, jun., and his children; to the end that on the coming in of the master’s separate report as to that account, a decree may be made for the sale of the land, or of such parts thereof as may be necessary to satisfy the amount of the judgment justly charge
Hoes v. Van Hoesen, 1 Comst. 120; McCampbell v. McCampbell, 5 Litt. 95; Hull v. Hull, 2 McCord, Ch. 302; Stewart v. Ex'r of Carson, 1 Desaus. 500, 513. See further Am. Ch. Dig. by Waterman, tit. Assets.
Haleys v. Williams, 1 Leigh, 140; Morris v. Mowatt, 2. Paige 586; Edmeston v. Lyde, post, 637.