| Mo. | Jan 15, 1875
delivered the opinion of the court.
This cause was heard at the November term, 1872, of the Laclede Circuit Court, on a demurrer to the following per tion:
Plaintiff states that he is the administrator of the estate of Lemuel Elam, deceased, late of said county, and that letters of administration were duly granted him by the County Court of said county, and that the defendants, Eugene Hooker and Eunice Hooker, are the heirs at law, and only heirs at law, of W. A. Hooker, deceased, late of said Laclede county, who died intestate, and as such heirs at law they are the owners in fee simple, subject to the dower of their mother, of the following described real estate situated in said county, viz: The south-west quarter of the south-west quarter, and the north-east quarter of the south-west quarter, and the west half of lots one and two of the north-east quarter, and the north-west quarter of the south-east quarter, all in section number four (4,) township number thirty-four (31.) range number sixteen (16,) west of the fifth principal meridian ; and which said real estate descended to them from the said ¥m. A. Hooker, deceased, who was their father; and that the defendants now are, and for a long time past have been in possession of said real estate.
Plaintiff states that letters of administration were duly granted by the County Court of Laclede county on the estate of said W. A. Hooker, deceased, to one C. B. Churchill,, and that some time after the expiration of three years after the grant of letters of administration as aforesaid, the said estate was reported by the said administrator as set-
Plaintiff further states that said Lemuel Elam, in liis life-time, obtained a judgment against the administrator of said ¥m. A. Hooker in the Circuit. Court of Laclede county, Mo., for the sum of $519 75 debt, and $280 08 damages and costs of suit; and that after the death of said Hooker, and after letters of administration were granted on his estate, said judgment of the Circnit Court was exhibited at the said County Court for allowance and classification, and that the same was allowed for a large sum, viz: $902 17, and was classed in the fourth class of demands; and plaintiff states that said judgment so allowed by the said County Court is still in full force, and that neither the same, nor any part thereof, has been paid or satisfied by the administrator of said Hooker, deceased, nor by any one else; and plaintiff further states the administrator of the said Hooker did not pay any part of said judgment or allowance, although ordered to pay off the demands established against Hooker’s estate; and he is informed and so believes-that all the personal property of the said ¥m. A. Hooker which came to the hands of this said administrator was exhausted and disposed of in paying the demands against said estate, and in defraying the expenses of administration.
Plaintiff charges that said Churchill, who was administrator of the estate of ¥m. A. Hooker, deceased, is insolvent, and that he has no adequate relief at law. Plaintiff therefore prays the court to render judgment in his favor for the amount of said judgment or allowance, established as aforesaid against the estate of said Hooker, deceased, with interest thereon at the rate of ten per cent., the “plaintiff averring that rate of interest was the rate of interest of the demand upon which judgment was rendered, and for the costs of proceedings in the Circuit Court aforesaid adjudged against the defendant in that suit,” and that if said judgment shall not be paid that the same shall be levied of the aforesaid
The demurrer states the following grounds of objection: 1st. That said petition contains no equity, and alleges no matter which entitles plaintiff to any equitable relief, and does not state facts sufficient to constitute a cairse of action ; 2nd. That it is manifest upon the face of said petition that plaintiff has an ample and adequate remedy at law, which he is now at liberty to pursue, or which by his own laches and neglect he has failed to pursue in the proper time and appropriate way.
The question presented for determination in this case is whether, under our law, on a failure of personal assets and after final settlement, a bill in equity will lie on behalf of a creditor of an intestate against his heirs to whom lands have descended from him, to have such lands sold to satisfy the demands of such creditor. Whenever real estate is by statute made liable for the payments of the debts of the deceased, it constitutes legal assets, (1 Sto. Eq., § 552, Ed. 1873.) and it has been said that the true test as to whether the assets are legal or equitable is not whether the executor or administrator, but whether the claimant, can reach them without resorting to a court of equity. (2 Will. Exrsn., 1520.) In this State any creditor may, in default of other assets, proceed to 'subject real estate to the payment of his demand, and the court exercising probate jurisdiction may, of its own motion in a proper case, order it to be done. Wherever the doctrine of marshalling assets in administration obtains, courts of equity follow the same rules in regard to legal assets which are adopted by courts of law, and give the same priority to the different classes of creditors which is allowed at law. (1 Sto., Eq., § 553.) Under our statute, demands against the estate of any deceased persons are divided into six classes, and are required to be paid in the order in which they are classed, and no demand of one class shall be paid until all previous classes are satisfied. This order of
We are of opinion that the precise and simple yet effective provisions of our administration law, whereby the
That an estate by descent renders the heir liable for the debts of his ancestor to the value of the property descended, and that he holds the lands subject to the payment of the ancestor’s debts, is a proposition approvingly stated by this court in the case of Metcalf vs. Smith’s heirs, (40 Mo., 576); but this statement was made in contradistinction to the common law rule by which land descended or devised was not liable to simple contract debts of the ancestor or testator, nor by a specialty unless the heir was expressly named. In that case it appears that one Smith died in 1843, seized of certain land; that in 1852, and before the final settlement which took place in 1857, a proceeding in partition was instituted ’by the heirs of Smith, under which, said land was sold and a portion thereof purchased by the plaintiffs, Metcalf and Snyder. In September, 1853, suit was instituted against the administrator of Smith for a breach (occurring in 1848) of the covenants in a deed executed by Smith in 1843. The plain■tiff in that suit obtained judgment, and on the petition of the administrator the land previously sold by the heirs in partition was sold to satisfy this judgment. At the execution sale, Mrs. Tyler, the owner of the judgment, bought the land, and Metcalf and Snyder paid her the amount of the judgment, and received from her quit-claim deeds for the premises. They then instituted suit against the heirs of Smith for the amount paid by them to protect and perfect their title. The money received°by the heirs from the partition sale should have gone to pay the debts of the estate, but as the funds arising from the partition sale were