The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-31
nersonal. excent such as was nositiyeIy OK.

IL sisted III bne Oruef OF appl1CatlOn. buJ DOT
II were equally bound in the course of admin
g. istration appointed by law. From the yer
II nature of that trust, it must have been COZ
d sidered, that 1t must require time to admir-
10 lister the estate, to give to creditors an
10 others interested in it, the benefit of the OF
10 sets, and to determine its condition. An
r positive provisions are made, looking to th
It necessary delays. The creditors are prohit
y tied from bringing suit until the expiration
IS of nine months after the grant of admins
& tratiOn. Two years are allowed for til
production of claims against the estate, an
y many other delays are necessarily inciden
t to the administration and final settlemen
t of it, During all this time, the personalt
t is subject to all the accidents which may il
Q any way affect it. To suppose that tn
|, Legislature intended that the rights o
, creditors against the real estate, should b.
1 fixed by the condition of the personality a
the time of the testator's death, or even o
the grant administration, when they wer,
4 prohibited from sueing, and when in th'
3 course of administration to which they were
compelled to submit, all the personal assets
might be lost to them, without their fault
would be to convert the administration in
to an instrument of oppression, and to de-
feat the very policy plainly intended by the
!, statutes-tO give to creditors the benefit OF
all the property of the deceased, by debar
ring them of their rights against most ma
terial part of it. 1t would be clearly con-
trary to that policy to say that the credi-
tors rights were to be determined by the
condition of the estate at o time when they
had no power to enforce their debts by suit
or otherwise, and that they should accept
the mere fact of its sufficiency at that time
as satisfaction of their debts against the
estate, without regard to the circumstances
which caused the assets to be lost to them
| 1t was by and through the administration
of the estate, that the creditors debts were
to be paid. They were compelled to await
the course of that administration ; and
hence it is manifest that their rights should
be determined by the condition of the estate
at the time when they were to have the as
sets applied to the payment of their debts,
in the due course OF administration and
that they should not be lost by reason of its
condition at a time when they were power
less to have the assets applied to the pay
ment of their debts, or in any manner to OBJ
tain the benefit of them.
| According to the argument OF counsel for
the appellant, if the personal assets were
| sufficient in value at the time of the testa-
| tors death, and, afterwards and before they
could be applied in the due course of admin
istration, to the payment of the debts, they
became deprecated, without any fault of
the creditors, or of the Executor, so that
| they were insufficient to pay the debts; or
| if by the act of God. or other sufficient legal
cause, they were destroyed and totally lost
the loss would fall on the creditors, and the
real estate would be ex0nerated from the
debts Ii this were correct view of the
subject, the result would be that part of
the fund charged by law with the payment
of the debts would be preserved to the use
OF the. heir and the creditors, who were
intended by law to have the benefit Of that
fund, in case of the insufficiency OF the per-
sonalty, would be deprived of that right,
without fault on their part, and without
remedy, the land remaining to the benefit of
those who were bound in law to appropriate
it to the discharge of the ancestors debts.
This would be to discharge part of the
fund intended by law to be subject to the
payment of debts, and in palpable violation
of the policy of the law, and of the purposes
of natural justice intended to be accom-
plished by it.
1t appears therefore, to be evident that
the sufioiency of the personal assets which
the law contemplates as exoneratlng the
real estate from the debts, must be tested by
th condition of the personally as developed
in the due course of administration, and
when, in that way the assets are to be ap-
piled to the payment of the debts. No time
is positively fixed by the statutes, when the
deficiency is to be ascertained; but it is
clear that it must be referred to the course
of administration for in no other way |
could the policy of subjecting the real es-
tate to the payment Of the debts, be made
effectual, or the necessity of the application
be judicially ascertained.
The authorities relied on by counsel for
the appellant, do not sustain the view, on
this point, contended for by them.
The cases in p. Wms 49l, and Noel VS..
Robinson / Vernon, 94, were cases between
legatees; and it was held that the legatees
who had been paid their lagacies in full
would be compelled to refund, in proportion
to an unpaid legatee, if there was an origi-
nal deficiency of assets to pay all the lega-
cies, and the Executor was insOlvent; but
not, if there was no such original deficiency
and there had been a waste by the Executor;
the reason of the distinction being, that the
other legatees in the first instance, had re-
ceived more than their just proportion Ofthe
assets but i'll the second, no more than their
This is the rule as between
legatees. But the rule is different as be-
tween creditors and the legatees and it is
settled, that on waste by the Executors a
legatee who has been paid, must refund in
behalf of creditor Hardwick VS.. Mynd, l
Anst 112, Anon. /, Vernon 1872. Lapton VS..
Lapton, John Ch. r. GA. Mr.. Williams
states the rule thus "When the testatOr's
funds, at the time of his DEATH are not
sufficient to pay both debts and legacies, it
IS clear that an unsatisfied creditor can COM
Del satisfied legatee to refund whether the
egacy was paid to him voluntarily or by
and he has the same right, al
hough the testator's funds, at the time of
lis death, was sufficient to pay both debts
md legacies WINS. Exors. 1908, 1909, Is
amer. edit.) And the legatees are liable to
creditor, when the Executor has misap- Z
lied or wasted the assets and become in
olvent. Stuart VS.. Kipam Barb Sup
;Ourt, Rep. 493 and if the undisposed of
ssets are exhausted and are insufficient to
ay the debts. Doriocourt VS.. Jacobs,
"a. Ann. 2l4. Judge Story states the reason Y
these distinctions to be, that legatees are
lways cOmpellable to refund in favor of
reditors /; because the latter have priority
right of satisfaction out of the assets. l G
tory Eq. Jur 4 90, and the cases there cited.
md the same principle is applicable as be-
ween the creditor and the heir.
The case ofTurner VS.. Ellis, "a Miss, 173,
7hich is relied on, was apetition by an Ad-
Illustrator de bOnis non, to sell the real es-
ate of the deceased, for the payment of
ebts, and party who had purchased the
lnds from the heirs, pending the admins
ration, resisted the application to sell, on
be ground that the original Administrator
ad neglected to administer certain person
property and to apply it to the payment ,
the debts, in consequence of which the
state had become insolvent. 1t was held,
nat, if the personal estate had become in
consequence of the deyestant or
eglect of duty of the Administrator, the Z
cir at law could successfully resist the ap-
lication to sell the lands on that ground
nd that the creditors remedy was by an :