38 Barb. 598 | N.Y. Sup. Ct. | 1860
This action is brought to recover of the defendants, as administrators, the amount of two legacies bequeathed by Jeremiah Tooley, deceased, to his daughters Florida and Hannah. The plaintiff is the husband of Florida, and claims to recover her legacy, as owner, by virtue of his marital rights, and Hannah has assigned to him her right of action for her legacy. There are two counts in the complaint, one on each legacy. They are alike, except in the allegation relating to the right in which the plaintiff claims to recover. By the will of the testator provision is first made for his wife, then legacies are given to eight of his children, and lastly he orders and directs that his youngest son, Eichard, pay or cause to be paid ad and every of the above sums
Bichard took possession of the personal property, afterhis appointment, and administered as aforesaid. In 1850 said Bichard died, in the county of Oswego, leaving a widow, who afterwards married the defendant Thomson, and the latter in right of his wife was duly appointed administrator of the goods &c. of said Bichard, by the surrogate of Oswego county.
Fimbria Tooley, one of the sureties, died in 1855, and in 1857 the defendant Louisa Tooley was duly appointed his administratrix, by the surrogate of Oneida county. Enos Austin, the other surety, died in 1843, and in 1845 there was a final settement and accounting and distribution of his estate by and before the surrogate of Oneida. After the death of Bichard Tooley, the defendant Jeremiah Tooley was appointed administrator of that part of the estate of Jeremiah left unadministered by said Bichard.
It is charged in the complaint that Bichard died insolvent. That'nothing remains of the estate of Jeremiah, deceased, which the present administrator can reach, nor can he obtain any thing from the estate of said Bichard, although he died largely indebted to the estate of said Jeremiah. Bichard did not pay the said legacies, nor did he account before the surrogate as such administrator, by reason whereof the con
One of the principal grounds of demurrer is that the duty of paying the legacies is imposed on Richard as devisee, not as administrator with the will annexed, and he was never liable as administrator, on his bond; especially when there were no assets in the hands of the administrator when suit was brought. That neither Richard nor the administrator of the surety is liable on the bond. If the defendants are right in this proposition it disposes of the case and renders further examination unnecessary.
In Harris v. Fly, (7 Paige, 421,) the testator gave to his son his farm in fee, subject to a life estate devised to his wife. He gave legacies of $1000 each to his two daughters, to be paid them by his son, the devisee of the farm. The testator appointed his son and two others executors, and authorized them to dispose of so much of his personal property as was necessary to pay his debts, and expenses of administration. The will concludes as follows: “ And finally, all the rest and residue of my estate and effects real and personal, not herein-before mentioned or otherwise effectually disposed of, after payment of all my debts, legacies and personal expenses and other charges and deductions as aforesaid, I give and devise unto my son Aaron.” Aaron was the devisee of the farm. The chancellor says : “ the testator does not in terms create an equitable charge upon the devised premises, for the payment of the two legacies to the daughters. But that was not necessary, as the charge of a legacy upon the real estate
It was held in Hoes v. Van Hoesen, (1 Comst. 120,) that the general rule is that the personal estate of a testator is the primary fund for the payment of legacies, and a testator is presumed to act upon this legal doctrine, unless a contrary intent is distinctly manifested by the terms and provisions of the will; and .that when the personal estate is not in terms exonerated, and is not specifically given'away by the will, it will be deemed the primary fund for the payment of legacies, notwithstanding such legacies, by the terms of the will, are expressly charged upon the persons to whom the real estate is devised. The charge upon the devisee in such case will be deemed in aid and not in exoneration of the primary fund.
These cases establish three propositions applicable to the case in hand: 1st. That the legacies for which the action is brought are an equitable charge on the land devi’sed to Bichard ; 2d. That Bichard having accepted the devise, was personally liable for the said legacies; and 3d. That the personal estate must be first exhausted before resort is had to the real.
The personal estate referred to in the last proposition is not
The plaintiff in this suit does not seek to charge the real .estate with the legacies for which he sues, as he might have done, and thus settled the whole question in a single action.
While the ¡jersonal estate is primarily liable, if the legatee is compelled to resort to a court of equity, it is not only proper but necessary that the bill be so framed that complete justice may be done, and the rights and liabilities of all the parties finally settled in a single suit if it is practicable to do so.
In Dodge v. Manning, (1 Comst. 289,) the devisee who was charged with the payment of the legacies, and the purchasers of the real estate on a sale under a mortgage given by the devisee, after the death of the testator, on the land equitably chargeable with the payment of the legacies, were parties defendant, and the court of appeals ordered judgment against them, charging the lands purchased by them with the payment of the legacies and costs, so far.as there might be a deficiency after the remedy against the devisee was exhausted.
Although the defendant is right in his position that the land devised to Richard Tooley is, in equity, chargeable with the payment of the legacies, yet it is not true, that the remedy of the plaintiff is confined to the land. The personal estate bequeathed to him, and his own personal estate, are primarily liable, and must be exhausted before resort can be had to the real. (McLachlan v. McLachlan, 9 Paige, 538.)
It was competent for the plaintiff to have united the purchasers of the real estate as parties defendants, but he was not obliged to do so. Whether he can hereafter resort to the owners of the land, is not necessary now to inquire. It is enough that he is right in attempting to reach in the first instance the personal estate. The personal estate of Jeremiah Tooley, the testator, is first liable. That property, it
In Dodge v. Manning, (cited supra,) the chancellor, after holding that the personal must be exhausted before resort to the real, says: “As it appears from the inventory that the testator left personal estate sufficient to pay the legacy, the complainant was bound to show that this personal estate was exhausted in the payment of debts of the testator, or that those who were accountable for it were irresponsible, before she (the legatee) could resort to the real estate in the hands of those claiming under the mortgage executed by the devisee.”
It is shown in this case, by the complaint, that the personal estate of Jeremiah Tooley is consumed, and .that the party liable for it is insolvent, and thus a case is made which would justify a resort to the real estate. So far then as an
The case then stands thus: the bond is valid; the principal is dead and his estate insolvent. Both of the executors are dead; the estate of one is distributed, and neither administrators nor next of kin are made parties; the administrators of the insolvent principal and of the other surety are before us. Under these circumstances, can this action be maintained without bringing in other parties P In Story’s Eq. PI. 138, it is said if the obligee of a bond to which there are other parties, the principal obligor being dead, were to seek by bill in equity the full payment of the bond from the sureties, all the sureties must be joined. But if he should seek only for his proportion, from one surety alone, the same objection might not apply unless the absence of the other parties might be a prejudice to him. In Bland v. Winter, (1 Sim. & Stu. 247,) it was held that to a bill filed by an obligee of a joint and several bond, for payment of his debts, all the obligees must be made parties. The action, in that case, was brought against the executor and grantee of the surety only, to set aside the conveyance of certain
It was held in Valentine v. Farrington, (2 Ed. Ch. P. 53,) that when the bond is joint and several it is only necessary to make the surviving obligor a party; citing Haywood v. Ovey, (16 Mad. Ch. Rep. 113,) Bland v. Winter, (cited supra,) and Edwards on Parties, 99-102. The last two authorities do not sustain the position of the learned vice chancellor. On the contrary, the case of Bland v. Winter is directly against him, and the cases cited in Edwards on Parties are quite clearly against him.
There is an obvious propriety in requiring all the obligors in a bond to be brought in who are able to respond to the plaintiff. It avoids circuity of' action, and enables the court to settle the rights, not only of the plaintiff and defendants, but of the defendants among themselves. It seems to me, therefore, that those parties who represent the other surety, or who are’ liable to contribute toward his share of the debt, are necessary parties in this suit. To avoid misapprehension, I repeat that upon the allegations of the complaint, I consider the estate of Jeremiah and Richard Tooley, and their administrators, to be out of the case, both being insolvent, and that this must be deemed to be an action in equity to enforce the bond against .the obligors 'therein. Being so treated, I am of the opinion that those representatives or persons taking the estate of the co-obligor, Austin, are necessary parties to the suit.
. It is insisted by the defendants’ counsel that all the legatees named in the will should be parties plaintiff, or that the complaint should be filed on behalf of the plaintiff and all
The general rule is that one legatee may sue alone for his legacy. But when the assets are not sufficient to pay all, then all interested in the fund should be made parties, or the suit prosecuted for their benefit, (Story’s Eg. PI. 107-109 ;) or if the legatees prosecute severally, the court will permit but one to be prosecuted, and allow all to come in under the decree. (1 Paige, 416.) And when the object of the suit is to charge the legacies on the real estate, all the legatees must be parties. (Hallett v. Hallett, 2 Paige, 15:)
For the reasons suggested, I am of the opinion the demurrer is well taken. Without assuming to decide what the form of action in this case should be, or who should be parties, it may be proper to state the conclusions to which we have arrived in the examination of the case. They are: 1. That but a single suit is necessary in order to enable all entitled to shares of the fund to recover such shares, which should be in behalf of all who may see fit to come in. 2. That as the legacies are or may be a charge on the real estate, the owners of it should be parties defendant, so that a decree may pass against them, in case of the personal being insufficient to pay all the legacies. 3. All the obli
Morgan, J. concurred.
Allen, J. dissented.
Order reversed.
Allen, Mullin and Morgan Justices.]