49 N.J.L. 274 | N.J. | 1887
The opinion of the court was delivered by
There is no dispute between these parties-that if the plaintiff have a legal cause of action she might-bring suit against the administrators after the expiration of the rule to bar creditors, for the distributive shares had not been paid over to the persons entitled to the same, and were assets in the hands of the administrators for the payment of a ratable proportion of the claim of any creditor who should not have presented the same within the time limited in the rule to bar creditors. Rev., pp. 765, 766. The contention is that the personal estate is the primary and only fund for the payment of this debt, if anything be due, because it is sufficient to pay the entire claim of the plaintiff, and until it is exhausted she has no right of action against the heirs-at-law of the deceased, to whom his real estate has descended.
There are two methods provided by our statutes in which lands which have descended to heirs-at-law may be taken for the payment of the debts of the decedent: first, by an order of the Orphans’ Court, obtained within one year after the decease, notwithstanding any alienation made or attempted on insufficiency of the personal estate to pay debts (Rev., pp. 766, 770); or, secondly, by action brought by creditors against the heirs to fix their liability in regard to any lands, tenements or hereditaments which have descended to them. Rev., p. 476.
The usual method to subject the lands of a debtor after death to the payment of his debts which are not specific liens
It is in such eases and in those states where such laws are found that it may be said “that since the personalty constitutes the primary fund for the payment of the debts of a deceased person, no liability can be imposed on heirs-at-law by reason of their inheritance, save upon a deficiency of personal assets.” Schouler’s Ex. & Ad., § 445.
There is no doubt that at common law, and by statute authorizing execution against lands, the personal estate is primarily liable for the payment of debts, and that in the equitable application of assets it is charged before lands, and it may be even called upon to pay debts secured upon land in exoneration of such land. Whitehead v. Gibbons, 2 Stockt. 230; Keene v. Munn, 1 C. E. Green 398.
These points, however, which were so strongly pressed in the argument before us, are aside from the direct issue in this case, -which is, What effect must be given to the “ act for the relief of creditors against heirs and devisees?” Rev., p. 476. When this act, in section 1, says “ that all and every creditor or creditors, whether by simple contract or specialty, and whether the heirs are mentioned therein or not, shall and may, by virtue of this act, have and maintain his, her or their action and actions against the heir and heirs-at-law of any debtor who hath already died or shall hereafter die intestate seized of any messuage, lands, tenements or hereditaments,” &c., what shall stay the plaintiff, who stands in the position
It is not sufficient to say that she has another and more convenient remedy. This may or may not be true. The time has passed for her to present her claim within the period limited by the order of the Orphans’ Court, and for the-restraint upon alienation under the statute; and if it were-certain that there was another and a better remedy, the court cannot dictate to suitors when they have a choice of remedy.. This act invoked by the plaintiff is an old statute, passed March 7th, 1797, and has stood without alteration since its. enactment, except in its extension, by the supplement of 1853, to the case of non-resident heirs and devisees. The first section to which I have referred is copied from different sections of 3 and 4 Wm. & M., c. 14 (1691); 1 Evans’ Eng. Stat. 462, with the additions made by Mr. Paterson in his Revision (page 291) extending its remedy to debts by simple contract as well as specialties, and whether the heirs are mentioned therein or not. We need not refer to other particulars of the-statute which do .not apply to this case. We have here, as defendants, the heirs-at-law who have not aliened the estate-cast on them. The remarkable change made in this law was. the power to bind lands of an ancestor in the hands of heirs for simple contract debts, and whether the heirs were mentioned therein or not. Prior to these statutes, and at the common law, the heirs were liable only for specialty debts of the ancestor to the extent of the value of the land descended. Davy v. Pepys, Plowd. 438; Buckley v. Nightingale, 1 Str. 665; Barber v. Fox, 2 Wm. Saund. 134; 3 Bac. Abr. 460. A colonial act, passed December 2d, 1743 (Allin. 129), made real estate chattels to be seized, sold and disposed of for the satisfaction of debts; before that it seems they could not be sold, but only extended upon an elegit. This act was repealed and extended by subsequent legislation. Warrick v. Hunt, 6 Halst. 1. The act of 1797 charged heirs and deviseeswith the debts of those whose lands they took by descent or-devise to the amount of the value of the lands. With proper-
Skillman v. Van Pelt, Saxt. 511, says: “ Although it [this act] extends the remedies to all debts of the ancestor or the devisor, whether by specialty or otherwise, yet it preserves the vital principle that the purchaser, bona fide, shall be absolutely protected." Den v. Jaques, 5 Halst. 259, reversed on another point, held in an action of ejectment, that land aliened before suit brought by a creditor cannot be taken in execution on judgment against an heir for the debt of his ancestor. In St. Mary’s Church v. Wallace, 5 Halst. 311, it was decided that the heirs of a deceased heir having lands by descent should be joined in an action against surviving heirs on the bond of their deceased ancestor. Stilwell v. Tomlinson, 7 Vroom 359, was a suit against the heirs for a debt of the ancestor, and gave a proper form of pleading in such case.
In New Jersey Insurance Co. v. Meeker, 8 Vroom 282, there is a full examination of our statute and the English statute from which, in part, it is taken, on demurrer to an action for breach of covenant against encumbrances contained in a deed of conveyance. It was held that an action of covenant would lie under this statute against heirs and devisees. Fredericks v. Isenman, 12 Vroom 212, was an action on a bond against the heir-at-law, under this act; a recovery was had, limited to the value of the lands in the condition in which they were at
Another cause urged for new trial is that the services of the plaintiff were rendered on the mere expectation of a legacy, and not upon any understanding or contract that they would be thus compensated or otherwise paid for. The law is very clearly stated in Grandin v. Reading, 2 Stockt. 370, that where a person renders services to another, relying solely upon his. generosity, and expecting to be compensated by a legacy, he cannot, when disappointed in his expectation, maintain an action at law for the value of those services. See, also, Smith v. Smith, 4 Dutcher 208. There is, upon such facts, no express or implied contract that can be enforced. It is like the case of children serving their parent before or after their majority; such service is presumed to be gratuitous, unless it be proved affirmatively that there was a contract, or understanding, of circumstances showing a reasonable and proper expectation that there should be compensation. The law will not presume a hiring or a promise to pay where this family relation is shown to exist between the parties. Ridgway v. English, 2 Zab. 409; Updike v. Ten Broeck, 3 Vroom 105; Prickett v. Prickett, 5 C. E. Green 478. But in ordinary cases the law will raise the presumption of a promise to pay from the mere fact of service, and it will prevail unless a contrary intention and understanding of the parties be shown. In this case the plaintiff came into the employment of the decedent as a stranger and as his housekeeper;
There was evidence tending to show such agreement between the parties, and the verdict of the jury will be sustained, unless there is a decided preponderance of proof in favor of the party against whom it is found. There is nothing in the proofs to show that the services were gratuitous, while the presumption from the services rendered, and the acts and words of the decedent, repel the inference that she was not to be paid.
Upon the plea of accord and satisfaction the jury have also said, by their verdict, that this was not proved to their satisfaction. There was a proposition for a settlement, made by the heirs, to pay or secure to her the interest of $5000 during her life, but the evidence is conflicting as to the acceptance of this proposition, and there is a doubt whether there was an accord or agreement of mind to accept any sum in satisfaction of this claim; and it is quite certain that if there were an accord, it was merely executory and not executed. This is not sufficient to bar the action. Oliver v. Phelps, Spenc. 180; S. C., 1 Zab. 597.
The time for which a recovery may be had is another point of dispute in the case. The jury have allowed compensation
It is difficult to determine the exact measure of damages, and whether an excessive amount has been given by the verdict. As the plaintiff had served the intestate faithfklly for so many years, and helped him to accumulate a large amount of property, he evidently had the purpose of giving her sufficient to support her for the balance of her life, and with this she was satisfied. He had himself named the sums of $20,-000 and $15,000 to others as the amount he intended to give her, either in gross or by securing to her the interest thereof for life. These amounts seem large, but he best knew what the value of her services had been to him, and while loose
Believing that the deceased would have dealt justly by the plaintiff if he had secured.to her, by will, the interest of $15,000 for life, a sum named by him, the equivalent at his death, in cash, at her age, would be about $7500, for her nearly twenty-four years’ services. If the plaintiff will make the reduction to that amount the verdict for that sum may stand; if not, the rule for new trial will be made absolute.