86 Va. 581 | Va. | 1890
delivered, the opinion of the court.
This case is as follows: On the 4th day of March, 1865, Charles A. Scott died intestate, leaving surviving him his widow, Pocahontas B. Scott, and four infant children, Elizabeth R., Eannie B., Mary B., and Nannie L. Scott, the eldest eight years of age. He owned at the time of his death a valuable and productive farm of some 1,740 acres, situated in the county of Albemarle, called “ Scotland,” stocked with a large amount of personal property. His debts were small, except two, which he owed as security for his brother, John L. Scott. These were contracted in 1854, for $5,000, to Samuel Stillman and R. W. Ashlin, and in 1885, for $1,000, to R. W. Ashlin, surviving partner of Stillman & Ashlin, upon both of which a large amount of interest had been paid. Just at the time of his death his dwelling-house, and all, or nearly all, of his furniture, and his family’s clothing, and other supplies, were destroyed by fire, applied by Sheridan’s raiders; and in a month thereafter the war ended, annihilating all the currency of the country, freeing its slaves, (in the language of the learned counsel,) plunging his inexperienced widow and tender young children, all girls, into a sea of troubles, without a house to live in, without a bed to sleep on, without clothing to wear, without money to pay for wearing apparel, without slaves to work the farm, and all society in an abnormal state of almost chaotic disorganization and disruption. All necessaries, especially such as the mother andher children stood in dire need of, were scarce and high, and could be had, if at all, only for ready money. Hnder these circumstances the widow supplied the pressing needs and necessary wants, according to her estimates, of herself and her children, by the sale as occasion required or suggested, of the produce then upon the farm, especially the tobacco on hand. With the money thus obtained, she supported her children and herself, and cultivated the farm, as best she could under the new and changed condi
At the March rules, 1867, Mrs. Scott, as administratrix and guardian, filed her bill in the circuit court of Albemarle county, setting forth the security debts above mentioned, with other matters concerning the estate, and asking for the sale of a part of the land, that the proceeds might be reinvested in part for her children, and that her dower might be assigned to -her. In the proceedings under this bill the widow’s dower was assigned to her, and, upon an order of reference to inquire as to the expediency of selling the land for the benefit of the infants, the commissioner returned a report setting forth the debts above mentioned, which had been matured to judgments. This report was in 1870, March 9th, and the said judgments were recovered at the October term, 1869, of the circuit court of Albemarle county. At the August rules, 1871, the said administratrix and guardian filed her first amended bill, asking for a sale of all the real estate and for a settlement of her administration accounts. Under this amended bill all of the real estate was sold on the 28th of May, 1872, to one "W". E. Benger for $33,800; $9,000 was paid in cash, and the residue of the purchase money was upon a credit. By petition the widow asked to have her dower commuted, which was done, the creditors consenting, and by decree in the cause the sale was confirmed, and $5,000 of the cash payment decreed to the creditors and $3,500 decreed to the widow in part of her commuted dower right, the whole being ascertained as $8,292 08, which sums were paid accordingly.
Subsequently the purchaser, W. E. Benger, defaulted, after paying interest on the debt to some extent, and a resale was ordered at the February term, 1876, and the special commissioner making this sale reported that the widow had purchased
In' August, 1886, the exceptions of the heirs to the commissioner’s report were sustained as to the crops of 1865 and the dower, and the report was recommitted. The commissioner corrected his accounts as suggested, and again reported, making the balance against the administratrix $7,844 45 as of October 6, 1877, and the amount of Mrs. Scott’s dower $2,065 75, and reported an account of the debts. To' this report the creditors excepted, and at the October term, 1887, the commissioner, at the request of the court, filed a special statement, showing the amount due by Mrs. Scott, adding to the former statement a charge for 500 bushels of wheat made in 1865, and to this the Scott heirs excepted, claiming 2,100 bushels of wheat of that year. The court, by its decree at the October term, 1887, overruled said exceptions, and decreed, in accordance with the special statement aforesaid, that the liability of Mrs. Scott, as administratrix, as of October 6, 1887, was $3,637 40, of which $1,649 96 was principal as between her and the heirs, and for this amount the court decreed personally against Mrs. Scott and her security, the same to be apportioned ratably between the creditors. And the court further decreed that the real estate of Charles A. Scott was liable for the debts of the appellees, and ordered a sale thereof to pay the said debts. But it being shown and conceded in the record that P. B. Scott and J. R. Barksdale are insolvent, and that executions upon this decree will be utterly unavailing, the court was of opinion that
The third section of chapter 127 of the Code of 1873 provides that all real estate of any person who may hereafter die, as to which he 'may die intestate, shall be assets for the payment of his debts, etc., in the order in which the personal estate is ordered to be applied, and is as follows: “ (3) All real estate of any person who may hereafter die, as to which he may die intestate, or which, though he die testate, shall not by his will be charged with or devised subject to the payment of his debts, or which may remain after satisfying the debts with which it may be so charged, or subject to which it may be so devised, shall be assets for the payment of the decedent’s debts, and all lawful demands against his estate, in the order in which the i^ersonal estate of a decedent is directed to be applied.”
The personal property is made by law the primary fund for the payment of debts, and, as was said by Judge Richardson in a late ease in this court (Alexander v. Byrd, 85 Va., 690): “ It is true that there should be no distribution, either to the widow or to the other distributees, until the debts are paid, and there can be no resort for their payment to the realty until the personalty has been exhausted. But when that has been exhausted, either by devastavit or distribution, the realty in the hands, not of the widow, because she takes and holds her life-estate in one-third thereof by a title which is paramount to the rights of creditors, but of the heirs, must be subjected to the payment of the ancestor’s debts. They, and not she, are in possession of something to which the creditors have a better right, and must refund.” Citing Lewis v. Overby, 31 Gratt., 601, and Ryan v. McLeod, 32 Gratt., 367. The real estate is made assets in the same order as the personal estate, so that while the personalty is first liable, and is therefore pri
It is no answer to the lawful demands of a creditor to plead that there was personal property sufficient to pay the debt, but it has been distributed to the heirs, or has been wasted by the custodian to whom it was by law committed for due administration, who is now insolvent, together with all his bondsmen, and the land held by the heirs is therefore exempt from the debts of the ancestor. Davis v. Newman, 2 Rob., 667; Lewis v. Overby, supra. In the case of Ryan v. McLeod, 82 Gratt., 875, supra, Judge Staples said: “The statute makes all the real estate of the decedent in the hands of his heirs assets for. the payment of- debts, to be applied in the order in which the personal estate is applied. As long as any part of it so remains, it is difficult to see how the claim of the creditor can be resisted, unless he has in some way forfeited his right by laches or other causes. There is no injustice in this. The creditor knows that the' personal estate is the primary fund for the payment of debts, and that he has no right to resort to the realty, except in ease of' deficiency. He is not acquainted with the condition of the estate, he knows nothing of its assets or
In this case the alleged laches of the creditor is wholly unsustained. The surviving obligor and principal debtor was living for some years after the death of Scott. Four years after Scott’s death the creditors brought their suit and recovered judgment at law. "Within two years after the death of Scott the first suit was brought (cited above), which was, in effect, a creditors’ bill. Norvell v. Little, 79 Va., 141. In this ease, last named, the bill was filed by the widow and heirs of John Little deceased, for settlement and distribution of his estate. The prayer was that the creditors be convened, their debts ascertained and paid, and the surplus distributed. Lewis, P., delivering the opinion of the court, said : “ The object of the suit was to convene the creditors, to ascertain and pay the debts of the estate, and to make distribution of the surplus. It was, therefore, substantially a ‘ creditors’ suit,’ and time ceased to run against the claims of the creditors certainly upon •the entry of a decree for an account.” Citing Harvey’s Adm’r v. Steptoe’s Adm’r, 17 Gratt., 289; Bank of the Old Dominion v. Allen, 76 Va., 200. Into this creditors’ suit these creditors promptly came and asserted their claims, and at the first sale, made soon after to Benger, they were paid $5,000 out of the
But the appellees assign error, under rule 9 of this court, as against them, because the court has decreed that the widow’s dower was purchased at too high a price by the decree of 1872, and the court has ordered a re-sale and re-estimate of the widow’s dower, which if after the re-sale, must appear to be as great as under the first sale, or the deficit must he charged to the creditors, because they consented by counsel to the decree in question. This is clearly erroneous. The sale to Benger was made, and could be made, only on the consent of the widow, whose claim to dower was a vested right—a freehold in the land paramount to the claims of her husband’s creditors—equal to one-third of the whole for her life, if not assigned, but which had in this suit been assigned to her. She consented to sell her part of the farm upon a price agreed in the suit, to which the creditors and the heirs were all parties, and the court so decreed. The rights of the parties thus fixed and ascertained ought not to be disturbed, now, either on complaint of the heirs or of the widow, and the creditors do not complain. And so much of the decree as re-opens that question, so long settled, brings unnecessary chaos into a cause already fully litigated and too long protracted; and the decree will as to this be corrected, and, as corrected, affirmed, and the cause remanded to execute the decree of sale, if necessary, under its terms—that is, if there is a failure to pay the debts by the administratrix—and for the payment of the debts, and a final settlement of all matters in dispute.
Decree amended and aeeirmed.