The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-31
THE DAILY CLARION.
DECISIONS OF THE HIGH COURT
OF
ERRORS AND APPEALS.
OCTOBER TERM, 1866.
Robert k. Evans. BY Guardian, }

eOD O Me CO~Tt.
This is an appeal, by the heir at law
Samuel w. Evans, deceased, from deer
of the Court of Probates ordering sale
the real estate of the deceased, for the pa
ment of his debts.
1t appears by the record, that the will
the deceased was admitted to Probate
january, 1860, by which he directed tn.
his property should be kept together unit
January, 1854, and that his debts should l
paid by the proceeds of the crops-that I'll
Executors received credit, of their invent,
ry, for the slaves and other personal prol
erty of the deceased, amounting to the SUI
of one hundred and fifty-five thousand do
Z lars, including five hundred bales of cotto
destroyed by the two armies during til
progress of the recent war, and that th
slaves were either lost to the estate b
emancipation by the Government, or by thoi
desertion to the Federal forces--that, bu
for these losses the property Of the estat
would have been amply sufficient to pay th
debts of the testatOr and in consequence
of these losses, the personcl estate was in
sufficient to pay the debts. Under thes
circumstances the Executors fled thei
petition, praying that the personal estat
should be decreed insolyent, and that tn
real estate should be decreed to be sold TO
the payment Of the debts. The petition
was granted in both respects, and this ap
peal is taken from so much of the decree al
orders sale of the real estate.
We are not called upon, in this case, tt
determine whether the credit allowed to the
Executors for the losses of personal proper
ty sustained by means of the war, or Of the
action of the Government was proper or not
OF whether the decree of the court declaring
the estate insOlvent, was correct or not, un
der tha atannao of tho caaa Nh nh.
lection is here urged on either of those
grounds and the action of the court, in
both these respects, must be here taken to
be correct. We are only to determine here
what is the result of these facts upon the
rights of the heir at law, and of the credit
Ors of the estate, respectively, ! in relation to
the real estate of the testator.g NTH
1t is insisted, in behalf of the appellant,
that the real estate Of the testator descended
Immediately on his death, to the heir who
was entitled to hold it subject to a condition
subsequent, that it should be necessary to pay
the testatOrs debts which necessity could
only arise by the personally being insuffi-
cient at The time 0J his death, to pay his debts
and if the personality at the time of his
for that purpose, that the heir then took the
estate exonerated from the debts, and that
no supervening insuficiency, resulting from
any cause whatever, could render the real
estate liable for the debts.
The earnestness with which these views
have been urged by eminent counsel, has
induced us to give them more consideration
than we supposed they deserved
sEs-wih first consider what were the gem
eral rules Of law in relation to the liability
of the property of deceased person for the
payment ofhis debtss
By the common law, all the personal prop
II. III, ;a1
came liable to his debts, but his real estate
of freehold descended to the heir, and was
chargeable only with debts due by specially
in which the deceased bound himself and
his heirs, and was not subject to the pay
menb of simple contract debts, nor even OF
special ties unless the instrument indicated
an intention to bind the heir. But these
rules have been materially altered by acts
of Parliament passed at various times and
by the act of 8 and 4, William w., Ch. lO4,
the land of every debtor, whether copy-hold
or freehold, which he had not charged with
or devised subject to the payment OF his
debts, is made assets to be administered in
Equity, for the payment of both simple
contract and speciality debts, reserving to
creditors by speciality in which the heirs are
bound, the same priority which they origi-
nally possessed, And now, by the law OF
England, legal assets, for the payment Of
the debts of the deceased, are defined to be
''those portions of the property Of the de-
ceased in which his Executor or heir may
gain possession, and in respect whereof, he |
may be made chargcable, by the process Of
the ordinary tribunals, and without the |
necessity ofequitable interference-and they !
consist, first, of the personal estate to which |
the EXeentor OF Administrator is entitled by |
virtue of his office and, secondly, of the
4 III Il NyN( n
where the devise is for the payment of the
debts. Adams Eq,, 252, 253. And Mr.. Jar
man says, that the result of these statutes
IS, "that every description of property now
constitutes assets" Jarman on Wills, 543,
a Amer. idit.)
In this state of the law, it has never been
doubted in England, that both the real and
arsonal estate were equally liable to credi-
ds and that it was discretionary with the
,reditor if his debt was of such nature as
% bind both the real and personal estate,
whether he would resort to the personally
N the hands of the Executor, or to the real
state descended or devised. WINS Exors.
532, Part 4, Book /, Ch. 2, \ /, Is Amer.
dit.) And, of fcourse, if there was defic-
ency in either, for any cause, to pay his debt
hat would not effect his right to proceed
gainst the other fund which was equally ,
liable for his debt,
Yet it is 1.-THE general rule of the English j
nd American law, that the personal estate {
J the primary fund for the discharge OF the
ebts, and is to be first applied and exhaus- {
ed, even to the payment of debts with
Thich the real estate is charged by mort {
age. 4Kent's Comm, 421, Is edit.) This s
ule had its origin in England in the supe- {
ior importance attached to real estate, un- s
er their political system; which continued
off ri boo ltvU
ule, above referred to was abolished by
tatute and it has been acquiesced in and {
anctioned, as a rule ofpractice by American |
Ourts generally, as a mere matter OF ex- {
edieney. But it has never been held, eth a
r in England or in this country, that the '
eal estate was not chargeable with the
ayment of debts, equally with the PERSONAL
', or that, in case of any deficiency of the a
ltter, without the fault of the creditor, the /
sal estate was not chargeable with the a
ebts. And, indeed, the rule of priority, 0
ppears to be mere rule of administration d
assets, where those of both kinds are adj t
lifted to be equally liable for debts, with t
lt regard to the condition of each other.
ee authorities cited in note to 2 WINS Exors. i
j26, 1882. il
The alteration of the rule in England +
roeeeded on the just policy to make the t
hole of a mans property, of which he died v
lied and possessed, liable to the payment t
his debts, because such a rule was not 4
,nsonant to principles of honesty and jus-
ce And, for the same reason, this policy a
IS been very generally, if NOT universally, a
lopted in the States of this Union. Chan Il
,IIor Kent says-that "the rule prevails s.
in the United States, that the C
nds descended to the heirs are liable, d
IualIy, in all cases, with the personal es-
te"
The Legislature of this State is in entire a
oordance with the rules and policy now