#### * Michael Brigden *versus*Bartholomew Cheever

A several action lies on the statute of 1783, c. 24, § 18, by a devisee, whose land has been taken from him by a creditor of the testator, against each of the other devisees and legatees liable to contribute, without first obtaining a decree from the Probate Court for an apportionment; although the executor gave bond to pay the debts and legacies, and has been guilty of waste in suffering such land to be so taken; and in such action the plaintiff shall recover only the proportion of the value of the defendant’s devise or legacy to the testator’s whole estate, without any addition on account of the death or insolvency of any other of the devisees or legatees.

The declaration was in *assumpsit,*and contained two counts. 1. The first was for 3000 dollars, laid out and expended by the plaintiff for the defendant’s use. 2. The second was a special count, setting forth a devise to the plaintiff of certain real estate in *Charlestown,*and another devise to the defendant of certain estate in *Princeton,*in and by the last will of *Moses Gill,*Esq., deceased ; and that the land devised to the plaintiff was taken to satisfy a judgment recovered by *Ward Nicholas Boylston*against the executor of the said last will; and then claiming contribution according to the statute of 1783, c. 24, ■§> 18, alleging a promise, &c.

The cause was tried upon the general issue, at the sittings here after the last October term, and a verdict was returned for the plaintiff, subject to be altered, amended, or wholly set aside, and a nonsuit entered, according to the opinion of the Court upon the following facts, proved or admitted at the trial: —

The late lieutenant-governor, *Moses Gill,*by his last will and testament, proved on the 3d day of June, 1800, devised to the plaintiff, in *444fee, certain real estate in Charlestown, in the county of Middlesex, of the value of 3140 dollars, into which estate the plaintiff, after the death of said *Gill,*and after the probate of his said will, entered and became lawfully seised thereof under the said will.

The said *Moses Gill,*in and by the same last will and testament, *devised to the*defendant, in fee, certain real estate in *Princeton,*in the county of *Worcester,*into which the defendant, after the death of said *Gill,*and after the probate of his said will, entered and became seised thereof under the said will, and is now in the lawful and undisturbed possession thereof; which estate, together with legacies to him of personal estate, is of the value of 7630 dollars.

In the year 1804, *W. N. Boylston,*as administrator of *[*451*] ** Thomas Boylston,*deceased, recovered, in the S. J. Court in the county of *Suffolk,*judgment against the estate of said *Gill,*the testator, in the hands of *Moses Gill,*the executor of said will, for the sum of 106,104 dollars *42*cents damage, and costs of suit; and having taken out execution thereon, caused the same to be duly levied on the estate so devised, as aforesaid, to the plaintiff; and-seisin of the same was lawfully given tc the said *Boylston,*in part satisfaction of said execution, the said *Boylston*still remaining in possession of the same, and no right of redemption remaining in the plaintiff.

The defendant’s counsel objected, — 1. That, by law, *the*action could not be maintained against the defendant, *one*of the devisees in said will, but should have *been*brought against all the devisees and legatees, who, by the statute aforesaid, are liable to contribute.

*2.*That, a bond having been given by the executor, to pay the debts and legacies, there should have been an application to the Probate Court for an apportionment upon the several devisees and legatees, before any action could be maintained.

3. Because waste was committed by the executor, in suffering real estate to be taken to satisfy the debts of the testator ; and t! at the plaintiff’s remedy ought, therefore, to have been upon the bond.

4. It was also objected that the damages were assessed upon a wrong principle ; the jury not having taken into the estimate all the legacies and devises, but having excluded therefrom those which had been given to persons who were dead, and who had become insolvent before the commencement of this suit; the sum so excluded amounting to the sum of 15,065 dollars, as would appear by the report of certain referees, appointed by a rale of this Court, to estimate the value of the estate, real and personal, left by said *Gill,*and the value of the gifts and legacies therein bequeathed.

If the Court should be of opinion that an action cannot, undei *445these circumstances, be maintained against the defendant* alone, or that the plaintiff’s proper remedy was [ *452 ] upon the executor’s bond, and not by this suit, then the verdict was to be set aside, and the plaintiff to become nonsuit. But if the Court should be of opinion that the action is well maintained, but that the damages ought to have been assessed upon a principle different from that which was adopted by the jury, then the verdict was to be amended, so as to reduce the sum to what the Court shall deem just, having reference to the report aforesaid ; otherwise, judgment was to be entered on the verdict, with additional damages, equal to interest from the time of taking the verdict.

The cause was argued at this term by *Ward*and *Bigelow*for the plaintiff, and *Dana*for the defendant,

and was afterwards continued *nisi*for advisement; and at the succeeding March term in *Suffolk*the opinion of the Court was declared, and judgment ordered to be entered as of this term.

Jackson, J.

The first objection suggested by the defendant is that a court of common law is not competent alone to carry into effect the provisions of the statute relied on ; and that there ought o have been a previous adjustment or apportionment made in the ^róbate Court, as a court of chancery, of the amount due from each respective legatee, devisee, or heir.

It is apparent that this controversy might have been better set tied in a court of chancery jurisdiction, where all the parties con cerned could have been brought at once into court, and their respective interests and liabilities adjusted, and where all of them would have been bound by the final decree. In this Court, the plaintiff, in order to show what is due from the devisee sued in one action, must show what is due from every other party liable to contribute. This is not only inconvenient, but may be hazardous, for the. plaintiff; as the absent parties are not concluded by this judgment, and in a new action against either of them it may appear, from other evidence, that his share is less than is now supposed, when the plaintiff will lose the difference.

*This is one of the numerous cases in which suitors [ *453 ] are exposed to loss and inconvenience for want of a *'*court with general chancery powers. But it is not for us to remedy the inconvenience. The statute of 1783 expressly gives to the plaintiff an action at law, to compel the contribution ; and the Probate Court is not authorized to take cognizance of the cause, or to make any decree relating to it. The powers of this Court are competent to the determination of this action, according to the provisions of the statute ; although we cannot at the same time settle *446the whole controversy between all the parties, in the manner thal would be most convenient and beneficial for all concerned.

The second objection is, that the action should have been brought against all the parties liable to contribute, and not against any one alone.

This is answered by the words, and the obvious intent, ■ of the statute: “ *All the other legatees, &{C., shall refund their average or proportional part, fyc.”*If an action could be maintained against them all jointly, the execution might be levied wholly on one ; whereas the statute plainly intends that, in the action given to the sufferer, he shall recover against each of the others only the proportional part of such defendant. The liability of each of the other devisees, and, of course, the implied promise arising from it, is, in its nature, several, like that of joint sureties, as to contribution among themselves. (1) Nor would there be less expense or inconvenience by allowing such a joint action ; as, after a recovery in such a suit, the contribution would still remain to be adjusted ; and there must be, on the whole, as many different suits in one case as in the other. No one devisee would be bound by the apportionment made in any suit for contribution against another devisee.

The third objection has still less weight in our minds. When the statute expressly gives this action, it is no answer to it to say that the plaintiff has another remedy.

The remaining question is that which has presented the greatest difficulty in this cause. But, on the whole, we are all satisfied that the defendant is liable only for his aliquot [ * 454 ] * part of the sum paid by the plaintiff, without regard to the amount due from those devisees who are dead or insolvent.

There is much weight in the argument of the plaintiff’s counsel, that he ought not to be in a worse situation than if the defendant’s land, instead of his, had been taken on the execution against the executor. But we can find no remedy, either at the common law or in the statute, for this apparent injustice. The same inequality sometimes occurs amongst joint sureties. In the case of *Cowell, Admr.,*vs. *Edwards,*before referred to, there were six sureties. The plaintiff’s intestate, who was one of them, had paid more than his proportion, and the action was brought against another co-surety, for one third of the sum paid, on a suggestion that the principal and three of the co-sureties were insolvent. But the Court held that, even if it were proved that the three other co-sureties were insol vent, the plaintiff could not, in a suit at law, recover more than one sixth against the defendant.

*447It seems more conformable to the principles of justice, that all the parties who are solvent should bear equally the loss arising from the insolvency of the others. This is the principle adopted in chancery; and it is also the rule of the civil law. In the latter, however, the surety who has paid cannot maintain an action for contribution against his co-surety ; but the object is attained, in the suit of the creditor against him, by the exception, or privilege, of *division,*as it is called, by which he may compel the creditor to resort to each of the sureties, who is then solvent, for his proportional part. (2)

In the present case, the devisees, who are liable by the statute to contribute, are not, strictly speaking, joint sureties for the executor, who is the principal debtor. Their obligation may be considered rather as resulting from a lien on the goods and estates of the tes tator, which have come to their hands respectively, and which were all previously charged with the debts of the testator.

In this view, it resembles a statute merchant, or staple, which binds the lands of the conusor, in whose hands soever * they may be after his death. If there are several pur- [ * 455 ] chasers of different parts of the land, and the execution be extended on the lands of one of the terre-tenants only, he may have contribution against the other tenants. But when we look into the process or manner of enforcing this contribution, it appears to be, like that of the civil law before mentioned, by compelling the creditor to resort, in the first instance, to all the lands liable for the debt; and he then holds the whole until his debt is satisfied out of the rents and profits. There is no action at law, by the first terre-tenant against the others, for the contribution. (3) This case, therefore, whilst it seems to prove the equity of the plaintiff’s claims, shows also that the common law furnishes no remedy to enforce them.

This apparent defect of justice, however, is not imputable to the common law. The plaintiff’s original liability, and the loss he has sustained, arise from the provisions of the statute; and the same statute has provided the only remedy which this Court can apply.

Perhaps it would not be found easy to make any statute provis ions which would obviate the apparent injustice of this case. II the original creditor, while seeking to recover his debt out of the effects of his deceased debtor, should be required to resort to all the legatees and devisees, or to enforce his demand ratably against each of them, this would impede, and in some measure defeat, his just and legal claims, for the benefit of those who claim only under *448the bounty of the deceased. On the other hand, if it should be attempted to make all the parties who remain solvent liable equally for those who are insolvent, in actions for contribution among themselves, it might be very difficult to decide what should constitute such insolvency, and how it should be proved. Provision must also be made for a resort to the future effects of such insolvent party; and, in short, it is to be apprehended that such a principle would not be easily applied in courts of common law, and that it would introduce much embarrassment and confusion.

* According to the statute now in force on the subject, each legatee and devisee must refund his proportional part of the loss sustained by the plaintiff by the levy of *Boylston’s*execution; and if any of them are unable to pay their proportions, the plaintiff cannot call on the others to indemnify him against that loss. The verdict, according to the agreement of the parties, must be amended so as to conform to this opinion, and judgment must be rendered for the plaintiff on the verdict so amended.

(1)

 2 *B & P.*268, *Cowell, Admr.,*vs. *Edwards.*

(2)

*Inst.*lib 3, tit. 21, § 4.— *Cod*lib. 8, tit. 41, *L.*10, 11.

(3)

 3 *Co.*11, 14.