# Graff v. Smith’s Admors.

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1789.
GRAFF verʃus SMITH's Admors.
cafe came before the Court on a rule to fhew caufe, why the Sheriff fhould not be directed to poftpone the fale of lands taken in execution in the hands of the purchafors from John Smith, the eldeft fon of Robert Smith, the interftate, till all the lands remaining unfold in the hands of the other children of Robert Smith, fhould be fold by virtue of the execution.
After argument, the president ftated the circumftances of the cafe, and delivered the opinion of the Court, in the following manner.
SHIPPEN,Preʃident :––The facts agreed on both fides in this caufe, are, that Robert Smith died inteftate indebted to feveral perfons, and poffeffed of a confiderable real eftate, but not of fufficient perfonal eftate to pay his debts ; that his adminiftrators applied to the Orphan's Court for an order to fell certain parts of the real eftate, fufficient to pay the debts and maintain the children ; that fuch order was accordingly obtained, and that part of the real eftate was fold for that purpofe ; that a fubfequent application was made to the Orphan‘s Court for a divifion of the remainder among the children ; that the pare alloted to John Smith, the eldeft fon, on that divifion, was by him fold and conveyed to bona ƒide purchafors ; and that John Smith was himfelf an adminiftrator, and neglected to difcharge all the debts out of the fum arifing from the fale of the lands ordered to be fold by the Orphan's Court, but wafted the money, and is fuppofed infolvent.
Some of the creditors Robert Smith, whofe debts remained unpaid, have fince obtained judgments, and iffued executions againft the lands of the interftate, as well thofe by John Smith, under the order of divifion, as againft the lands remaining unfold in the hands of the younger children.
Three queftions have arifen upon the argument.
1. Whether, upon the death of the interftate, his lands were bound to the payment of the debts, in fuch a manner, as that they may be taken in execution and fold, notwithftanding the heir may have previoufly fold and conveyed the fame to bona ƒide purchafors?
2. Whether the purchafors from one of the heirs, is bound to contribute to the other heirs?
3.Whether the purchafors under the order of the Orphan's Court, are likewife bound to contribute?
I. In order to folve the firft queftion, it will be neceffary to take into view the feveral acts of Affembly which fubject lands to the payment of debts.
The act of 1700 fubjects all lands of debtors to fale on judgment and execution againft them, their heirs, executors, or adminiftrators. ​
The act of 1705 repeats the fame provifion, with the reftriction, that, if the clear yearly profits will pay the debt in feven years, the land fhall be delivered to the Plaintiff upon a reafonable extent.
Under thefe acts the real eftates of debtors have been held liable to fale by execution, whether they be living, or dead; it living, under a judgment and execution againft themfelves; if dead, under a judgment and execution againft their heirs, executors, or adminiftrators.
By the Interftate Act, paffed likewife in 1705, there is a particular provifion in cafe of interftacy, that the Adminiftrator may fell fuch parts of the real eftate as the Orphan's Court fhould allow of, as fufficient to pay the debts, maintain the children, and improve the refidue of the eftate. By this act the furplufage, or remaining part of the interftate's lands, not fold, or ordered to be fold, by virtue of that act, is directed to be divided among the interftate's widow and children, in the proportions therein expreffed.
Although the ʃurpluʃage only is here directed to be divided, yet the conftuction has always been, that where there are no debts, or where they have been otherwife fatisfied, the divifion fhall notwithftanding take place, the act being confidered as a general law of defcents and diftribution.
It is contended, on one fide, that the word ʃurpluʃage in the later act implies ftrongly that the remaining part only of the real eftate, aƒter payment oƒ debts, is vefted in the heirs, and that they fhall take nothing till the debts are paid; or, if they do take them, if muft be cum onere.
On the other fide, it is faid, that the act was made for a particular purpofe, that the word ʃurpluʃage relates only to the remainder of the lands not ordered to be ʃold by the Orphan's Court, and that there are no words which exprefs or imply the furplufage to mean aƒter payment oƒ debts.
Upon the former conftruction, however, it is urged, that, immediately on the death of the inteftate, there is a Lien created on all the real eftate in favor of the creditors.
Without entering into the doctrine of Liens under the words of his act, which would only affect the eftates of perfon dying inteʃtate, I would choofe to confider the queftion on broader ground; that is, how far, and in what manner, the real eftate of deceafed perfons, whether they die teʃtate or inteʃtate, is bound by our laws to the payment of their debts.
That fuch real eftates are a fund for the payment of debts, is not controverted; but, it is contended, that they are no otherwife a fund after the death of the debtor, than in his life time; and that as he himfelf could have aliened before judgment, fo his reprefentatives could likewife alien, and that the lands are not fpecifically bound, till judgment againft the executors or adminiftrators ;–– that, ​
1789.
if, indeed, they are then unfold, they remain a fund, but if aliened, no remedy remains except a perfonal one againft the feller.
The real and perfonal eftates are both funds for the payment of debts. The perfonal eftate, there is no doubt, is immediately bound on the death of the debtor ; it goes into the hands of the executor, or adminiftrator, and is affets in his hands for the payment of debts; fpecific perfonal property, being in its nature perifhable, may be fold for that purpofe, and the executor, or adminiftrator, is perfonally bound to anfwer for the value. In the cafe of the adminiftrator , he muft give fecurity before the adminiftration is committed to him. In the cafe of the executor, being intrufted by the teftator, he gives no fecurity in the firft inftance; but, in cafe of probably infolvency, he may be compelled likewife to give fecurity. In both cafes, the whole perfonal eftate, or its value, is bound, from the moment of the debtor's death, to the payment of his debts. The real eftate is likewife confeffedly a fund for the payment of debts. It is a fund, however, that does not actually go into the hands of the executor, or adminiftrator, as affets, in the ordinary courfe ; but is a fund, made fuch by pofitive law, in another form ; that is, creditors may iffue executions, and fell it for the payment of their debts, on a judgment againft the executor, or adminiftrator ; for, it is not neceffary, nor has it been ufual, to bring the action againft the heir. The lands, however, go into the hands of the heir or devifee, who gives no fecurity, and between whom and the creditors there is no privity: They are made a fund for the payment of all debts, and muft neceffary have been intended by the Legiflature to be a certain, and not a precarious fund ; for, fince it is declared, that the creditors may take them in execution on a judgment againft the executor, or adminiftrator, it muft be meant that they fhould have the fruit of that execution ; and as there is the fame reafon under the law, that they fhould be equally liable with the perfonal eftate from the death of the debtor, they muft neceffarily be liable in fuch a manner as to be anfwerable at all events, which can no otherwife be, than be confidering them as fpecifically liable in whofever hands they may be. If it were otherwife, the would prove no fund at all; for the devifee, or heir, knowing that if judgments were obtained, he fhould lofe his land, would, in every inftance, where he apprehended debts beyond the amount of the perfonal eftate, immediately fell them, an thereby entirely defeat the intent of the Legiflature, in making them a fund for the payment of debts.
The mifchief of this doctrine is ftill more ftriking, if we confider, that the eftates of the inhabitants of Pennʃylvania, out of the city of Philadelphia, are chiefly real eftates, and if they were immediately alienable by the heirs, without being afterwards liable for the anceftors debts, few creditors to any amount would ever recover their debts, although perhaps the debts may really have been contracted on the credit of the lands. ​
1789.
Another confequence might likewife follow, that where the father dies indebted leaving fufficient real eftate, and but little perfonal, if the heir, or devifee, being likewife indebted on this own account, takes the land in the manner contended for, then his creditors by obtaining judgment againft him, before his father's can obtain judgment againft the executors, will recover their debts out of his father's lands, whofe creditors would in that cafe be entirely cut out. This would certainly be too unjuft, and repugnant to the fpirit of our laws, ever to receive the fanction of a court of juftice.
On thefe grounds, it is, as I take it, that lands, of deceafed perfons, have always heretofore been confidered as liable to be taken in execution for debt, in the hands of a purchafor from the heir, or devifee. It is a conftruction of the law that has fo long prevailed, that it would be now very dangerous to unfettle it, as many titles to land may depend upon it.
Although there may not have been any exprefs determination of this point, yet a point has been determined which is within the reafon of the cafe. A widow's right of dower commences within her marriage ; it is held fo facred a right that no judgment, recognizance, mortgage, or any incumbrance whatever, made by the hufband after the marriage, can at common law affect her right of dower : even the kings's debt cannot affect her. Yet it has been held under our acts of Affembly, for making lands chattles for the payment of debts, that as to lands taken in execution after the death of the debtor, the widow is barred of her dower. If the widow whofe right initated with the marriage, fhall lofe her dower in favor of creditors, by much ftronger reafon the heir, whofe right did not commence till the death of the debtor, fhould be barred from taking the land difcharged of the debts.
II. the fecond queftion in this cafe is, whether, after a bona ƒide fale by one of the heirs, the purchafor is bound to contribute in aid of the other heirs, whofe land remains unfold?
Where there is equal equity in two contending parties, it is always an unpleafant talk to decide between them ; and, in that cafe, there can be no fatisfactory rule but the ʃtrictum jus. If there fhould, however, he (illegible text) on one fide, and none on the other, this, even on equitable principles, will have confiderable weight in the decifion.
The rules of contribution, as they appear in Herbert's caʃe in 3Co. 13. are thefe––If a man is feized of three acres of land and enters into a recognizance, or ftatute, and enfeoffs A of one acre, and B of another, and the third defcends to the heir ; in this cafe, if execution is fued only againft the heir, he fhall not have contribution ; for, coming to the land without confideration, he fits in the place of his anceftor, and fhall not have contribution againft any purchafor: But, if execution be fued againft one of the purchafors, he fhall have contribution againft the other purchafor and the heir. So, ​
1789.
if judgment be obtained againft a man that dies leaving two daughters, who make partition, in this cafe, if one only is charged, fhe fhall have conftribution ; for, as one purchafor fhall have contribution againft another, fo one heir fhall have contribution againft another heir, for they are in equali jure. The dictadon, that the heir fhall not have contribution againft any purchaʃor, clearly means any purchaʃor ƒrom the anceʃtor, and cannot confiftently with the cafe ftated in Coke mean any other. If then, one parcencer fhall have conftribution againft another parcener, it is moft clear, that one co-heir under our laws of doʃcent, fhall have contribution againft another co-heir. But a diftinction is made between a co-heir and a purchafor under him. Every purchafor, except in fome fpecial cafes, ftands in the (illegible text) of the perfon he purchafed from, and cannot have a better title than he had ; and, as to contribution, he holding under one of the co-heirs, muft be confidered as in equali jure with the other co-heirs.
One of the fpecial cafes, where a purchafor ftands in a more favourable light than the perfon purchafed from, is where there is a fecret truft, and the purchafe is made without notice, and there the purchafor fhall hold the land difcharged of the truft. But there appears no fimilarity between that cafe and this, where the law of the land, having made real eftates chattles for the payment of the debts of the anceftor, every purchafor from the heir muft be prefumed cognizant of it, and is bound to take care, if he will make the purchafe, to be fecured againft fuch debts. If he neglects this, he feems to confide in the feller that he hath both the will and ability to do it.
The hardfhip upon purchafors may, in particular inftances, be great, but it may generally be prevented by a proper caution. Where there has been a fufpicion of outftanding debts, it has been very ufual to make the purchafe under an execution. At any rate, the fundamental fecurity which the law has given to creditors fhould not be deftroyed, or the title of co-hiers affected, by the omiffions or temerity, of purchafors.
It is here fuggefted, that there may be probably fufficient in the hands of the younger children to pay the debts, without calling on the purchafors. But, is it reafonable, is it juft, or can it be legal, that the younger children fhould be ftript of all their fortunes, and that the fhare alloted to the eldeft fon, who had no better right or exemption than they, fhould not bear part of the burthen? efpecially, as thofe younger children had no participation in the fale, or wafting the money; nor was it by any precaution whatever in their power to prevent either ; whereas it was in the power of the purchafors to be indemnified, if they had though proper. Such a doctrine would enable the elder fon, in moft cafes, to lay the whole burthen upon the younger children, who are frequently helplefs ; and, during their minority at leaft, prevented from ftanding an equal chance with him. ​
1789.
III. The remaining point to be confidered, is, whether the purchafors under the order of the Orphan's Court are likewife bound to contribute ? Thefe purchafors, I acknowledge, appear to me to ftand in a very different light from the voluntary purchafors from the eldeft fon. The law, for the benefit of the families and creditors of perfons dying interftate, has refted the Orphan's Court with a power to direct the fale of certain parts of the interftate's real eftate for the payment of his bets. The fame law has directed the means of information to be given to the court, to prevent impofition and the unneceffary difmemberment of the real eftate. The power given to the Orphan's Court by this act is very great, and ought to be difcreetly exercifed ; but when the fale is made under their order, it is certainly a good one. The adminiftrator is vefted with as complete a power to fell the fpecial part of the real eftate, as he has be the common law to fell the perfonal ; and the purchafors from him ought to hold as fecurely in the one cafe, as the other. To fay, that, becaufe the adminiftrator is to exhibit upon oath an account of the debts, therefore the purchafors are to look to the payment of thofe debts, is in effect faying that the purchafors are to look to the legal exercife of the power vefted in the Orphan's Court, who may, unqueftionably, impofe fuch terms upon the adminiftrator, as are neceffary to fecure to the creditors and children, the confideration money arifing from the fales ; and fuch fecurity has in fact been required in many inftances by the Orphan's Courts in Pennʃylvania. Befides, if the purchafor is to look to the payment of the debts, he muft, likewife, look to the other objects for which the land is to be fold ; that is, the education and maintainance of the children, and the proper improvement of the refidue of the eftate, which not law founded in reafon could require.
The cafe of thefe purchafors, however, is not regularly before the court ; their lands(illegible text) not been taken in execution, neither are they comprized within the rule.
The rule, as it ftands, muft be difcharged.