47 F. 250 | U.S. Circuit Court for the Southern District of Georgia | 1891
This case depends upon the following statement of facts: One Anderson was the assignee, under the laws of New York, of the estate of De Leon, and committed a devastavit thereon. William Schley, late of this district, was the surety upon the assignee’s bond; and after the death of Schley, who died testate, Collis, who had been substituted as assignee of this New York estate, brought suit there, on the bond of the defaulting assignee, and obtained judgment for the sum of $7,000. The record of the proceedings there was brought to this district, and suit instituted in the circuit court, at common law, against the executors of William Schley, to-wit, Thomas M. Norwood and J. W. Schley, on their testator’s obligation as surety for'Anderson, assignee, and a verdict and judgment were rendered against them as executors. The execution was issued upon that judgment, and was levied upon a certain estate known as “Richmond Hill,” near Augusta, claimed by the complainant in the bill now before the court, which was duly advertised for sale. This complainant is Philip A. Schley. He was the brother of William Schley, and he claims an estate for life in Richmond Hill by virtue of the following item of the will of William Schley:
*251 “Item 5t7i. I direct that my old home, known as • Richmond Hill,’ in Richmond county, Georgia, shall be held by my executors as trustees for and during the lives of my sister Mary Ann Haines, and my brother Phillip A. Schley, and during the life of the survivors of them; my purpose being to give them a boma as long as they live. ”
The plaintiff insists that Richmond Hill cannot be lawfully sold under execution for the debts of William Schley, sued to judgment, after the specific legacy made by the clause of the will above quoted was assented to by the executors, and after the property had long been in his possession. He had been in possession of this property long anterior to the death of William Schley, and continuously since then. It is in dispute whether he was there by the express assent of the executors, or as a tenant by sufferance; but, in the view the court has of the law, that fact is not important to be settled at this time. The rule, as announced by the supreme court of Georgia in Parker v. Chambers, 24 Ga. 527, may be deduced from the following extract from that decision:
“The objection that no evidence was submitted to the jury to prove the assent of the executor to the legacy to Ghloe Parker and her children caímos be sustained. The executor allowed the property to remain in tiie possession of the tenant for life, and that was an assent to the entire legacy. It was in her possession as the death oí the testator, and remained there, with the assent of the executor, of course.”
In Jordan v. Thornton, 7 Ga. 520, the court observes:
“It was further claimed before the court below that there was no assent to the legacy by the executor proven., and therefore the plaintiff had no right of action. The court held that assent might he implied from possession; and as there was some evidence of possession, both in the tenant for life and hi the plaintiff, after her death, ho left that question to the jury. And this view of the case we affirm. Assent to a legacy is necessary to enable a legatee to sue at law for his legacy. It is not necessary to show an express assent; it may be implied from facts and circumstances. The assent, it is true, must be clear and unambiguous. The possession of the property willed does make out a clear cast- of assent by implication.”
—-Citing 2 Williams, Ex’rs, p. 986; Math. Pres. Ev. 267; 3 Prest. Abst. (2d Ed.) 145; Richardson v. Gifford, 1 Adol. & El. 52, 3 Nov. & M. 325; and other authorities.
For the purposes of this investigation, therefore, the court concludes that the assent to this specific legacy was made by the executors.
And, moreover, these executors may not be beard to deny this. It is in evidence that one of the executors took a benefit under the will. He received certain property thereby, and mortgaged it for Ms purposes. That mortgage is in evidence, and it concludes the executor, because it contains recitals which show that the executor relied for his title to the mortgaged property upon the will itself; and the authorities seem to be plain and conclusive that he who accepts a benefit under a will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it. Hainer v. Legion of Honor, 78 Iowa, 245, 43 N.W. Rep. 185; Eichelberger's Estate, 135 Pa. St. 160, 19 Atl. Rep. 1006, 1014; Scholl’s Appeal, (Pa) 17 Atl. Rep. 206; Vanzant v. Bigham, 76 Ga. 759; Taliaferro v. Day, 82 Va. 79. All the
“This is a proceeding at law to subject to the payment of a judgment against the administrator, obtained in 1854, a negro man, who had been distributed in 1848 to the claimant, who was one of the heirs at law of the defendant’s estate. If the legal lien of the judgment upon the property had not attached before the distribution, it is not subject thereto, unless there was fraud in the distribution. If the suit on which the judgment was rendered was pending at the time of the distribution, the question whether the distribution was made to delay and hinder the creditor in the collection of his debt ought to have been submitted to the jury. But the record discloses no such fact. There is no legal reason why the legal title of the claimant to the property which had passed to him without fraud nearly six years before should be disturbed by the judgment. This property is unquestionably liable, ratably, to pay the plaintiff’s judgment, if the administrator has not assets or is not solvent; but it must be subjected by a different kind of proceeding, before a tribunal that can bring all the heirs of the estate before it, and compel those who are solvent to contribute, ratably, to the payment. If some are solvent, those who are able to pay may be compelled to contribute to the extent off the ass'ets, if necessary, received by them.”
It follows, therefore, we think, conclusively, that the plaintiff here has no right to single out this specific legacy, and "fasten his entire debt upon that. The judgment should have been, under the pleading, de bonis testatoris. Williams, Ex’rs, 1388, 1389; Code Ga. § 3573. Specific legacies are favorites of the law. When- no specific provision is made for the payment of the testator’s debts in the will, the personal estate is primarily liable. If that is insufficient, a lapsed devise may be applied thereto, and, if debts still remain, specific devises must contribute pro rata. Morse v. Hayden, 82 Me. 227, 19 Atl. Rep. 443; Ruston v. Ruston, 2 Dall. 245.
It appears that this property was returned for taxes by the plaintiff for 17 or 18 years, and it appears that the executors were absolutely silent about it, although they were obliged to make an inventory of the real property lying outside of the county of Chatham, in which their ex-
There are several other questions which have been presented in argument, but the court has indicated enough to justify in its opinion the conclusion that this is a case which should be inquired into more carefully upon sworn testimony, taken in the usual manner, in equity, and upon fuller consideration. It is not one of those cases which should be disposed of on a preliminary hearing. We think, therefore, that the injunction restraining the sale under execution should be made permanent, and the case proceed as usual in equity.