228 Mass. 541 | Mass. | 1917
This is a bill to marshal the assets of a Massachusetts testator for the benefit of his widow. It comes before this court upon a reservation of the bill as amended and a demurrer thereto.
The amended bill alleges in substance that the plaintiff, now living in England, is the lawful widow of James Tod, who died on January 26, 1915, a resident of and domiciled at Malden, Massachusetts, without issue and testate; that the testator in round numbers left an estate of $23,000, made up of real estate in England worth $15,000, real estate in Massachusetts worth $4,000, and personal property in Massachusetts worth $4,000; that the estate owed no debts except a note of $5,000 to the defendant William G. Mitchell and funeral expenses of $300 which the executors have paid out of the personal property in Massachusetts; that under the law of the United Kingdom of Great Britain and Ireland the real estate in England is liable for all debts of the testator wherever incurred, for the funeral expenses and for the expenses of administration in England and Massachusetts; that on April 20, 1915, the will of James Tod was allowed by the Probate Court for the Coünty of Middlesex, and ancillary administration of the estate was granted in England on January 1, 1916; that the defendants,
The plaintiff prays that the defendant William G. Mitchell be restrained from collecting any part of his claim against the estate out of the assets of the estate in Massachusetts, that he be required to collect his claim out of the assets in England; that the defendants as executors be restrained and enjoined from paying any part of the debt or expenses of administration of the said estate out of the assets in Massachusetts and be required to collect the same out of the assets of the estate in England.
The doctrine of marshalling assets in behalf of legatees, distributees and creditors, rests upon the equitable rule that where a claimant has a right in the nature of a lien to two funds to which he may resort and another claimant has an interest in only one of them, the last claimant may compel the former to exhaust the fund to which the second cannot resort before coming upon the one available to both. Cheesebrough v. Millard, 1 Johns. Ch. 409. Carter v. Tanners Leather Co. 196 Mass. 163, 166. Lewis v. United
Rice v. Harbeson, 63 N. Y. 493, Willey v. St. Charles Hotel Co. 52 La. Ann. 1581, Anonymous, 9 Mod. 66, Bowaman v. Reeve, Prec. Ch. 577, Peters v. Erving, 3 Bro. C. C. 54, and Wright v. Nutt, 3 Bro. C. C. 326, all cited by the plaintiff, are cases where foreign creditors with a fund available at their own domicil unsuccessfully sought to share a local fund with creditors resident at the domicil of the debtor, and, indirectly, are authority for the rule established in this Commonwealth that a Massachusetts creditor may collect his debt out of the assets within the Commonwealth regardless of the question whether the administration of the estate be a principal or ancillary administration. Newell v. Peaslee, 151 Mass. 601. Cowden v. Jacobson, 165 Mass. 240. Rackemann v. Taylor, 204 Mass. 394, 397. Putnam v. Middleborough, 209 Mass. 456, 457.
The real estate in England is not in the possession or control of the executors of the will in this Commonwealth; the executors are not accountable for it here, and they are bound to administer it under the direction of the court which appointed them. Putnam v. Middleborough, supra.
There are no facts in the bill alleged, or from which it can be inferred, that the courts of England in the ancillary administration of the estate would not direct the Massachusetts creditor to resort to the Massachusetts fund or that it would not order the real estate to be sold and distributed under its. direction to the legatees named in the will in conformity to the expressed desire of the testator. Freke v. Lord Carbery, L. R. 16 Eq. 461. Pepin v. Bruyere, [1900] 2 Ch. 504. Duncan v. Lawson, 41 Ch. D. 394. Murray v. Champernowne, [1901] 2 Ir. R. 232.
Moreover, a creditor who can hold two funds is not required to address himself first to that one which he alone can claim, when to do so would result in unreasonable delay and inconvenience or would involve litigation in the collection of his debt. Farwell v. Bigelow, 112 Mich. 285, 289, and cases collected in Carter v. Tanners Leather Co. 196 Mass. 163 at page 168. In any event the creditor in the case at bar might well be put to litigation as between
It follows that the bill does not state a case for' relief and the entry must be, bill dismissed with costs.
So ordered.