The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-06-01
THE DAILY CLARION.
DECISIONS OF THE HIGH COURT
ERRORS AND APPEALS.
OCTOBER TERN, 1866.

OCTOBER TERN, 1866.
Robert K. Evans, by Guardian,
10,346. VS..
E. s. Fisher, Executor.
Chief Jnst;ce Handy delivered tie Opin
ion Of tie Court.
(coNTNUED)
Paine VS. Pendlston, 80 Miss, 800, alsont
lied on, was o petition of like nature ali
it appeared, from the proceedings in re.
tion TO the administration that there wer,
assets in the hands of the Administrator
largely exceeding the amount of the deb
br0ughtagainst the estate, which had new
er been administered or accounted for BY
the Administrator. 1t was held, that that
was good ground for refusing to decree
sale of the lands and If the assets were
wasted by the Administrator, the creditors
remedy would be against the Administrator
and sureties ON his bond, and that the de
vestant would be no good ground for order
ing q sal sof the landS Anlesss sthe credit0r
had exhausted all REMEDY against the Ad-
ministrator and his sureties. 1t is to be OBJ
served that neither of these last two cases
gives any support to the position, that the
question of sufficiency of the personal assets,
is to be determined by the condition of the
estate at the time of the testators death,
but, on the contrary, they appear to recog-
nize the principles, that the sufficiency is to
be determined during the course of admins
tration. But they both hold, that, in case
of "a devastavit, the creditors remedy would
at least in the first instance, be upon the
Administrators bond; and the last holds
that the lands should not be decreed to be
sold, in such q case, unless the creditor had
exhausted his legal remedy against the Adj
ministrator and his sureties. Thus the ul
innate liability Of the lands for the pay
ment of the debts, in case of insufficiency of
the personally and of the insolvency of the
Administrator and his sureties, is recognized.
And that rule appears to be founded in good
reason, and to be sustained by the authori-
ties above cited.
The extent to which these cases go is, that
the lands will not be decreed to be sold in
the first instance when the insufficiency of
the personality has been occasioned by the
neglect of duty or the devastavit of the Ad-
ministrator. They do not touch the ques-
tion, here presented, of an insuficiency pro-
duced by causes for which the Executor
was not liable, and on account of which the
creditors were without remedy for we as
sumo that there was no liability on his part,
since it is conceded by both parties.
1t is plain that, as this case is here pre-
sented, there was no recourse of the credi-
tors against the Executor, and that no
remedy was left them but the sale of the
real estate for the payment Of their debts |
1t is not pretended that the loss of the per-
sonalty was In any wise attributable to the |
fault or laches of the creditors and hence,
all the rights which the law gave them,
against the estate of the testator, were re-
tanned in full force
w.. Aal 70 ~, |
where the creditors had two funds charge
able with the payment of their debts pri-
marily, the personal assets; and on the as
certained deficiency of that, secondarily,
the real estate, of the testator. The former
has besl lost without any fault, on the part
of the creditors, leaving their debts unsatis-
fed, and the simple question is whether the
fund secondarily liable should not be appro-
priated to the payment of the debts.
1t is said that the case is analogous to that
of levy on personal property sufficient to
satisfy an execution at law, where, after the
is takon out of the defendants possession
by the Sheriff. it is wasted or lost under circuEl-
stances which would render the Sneri1 nape; IN
which case the execution would Dc satisneu as 10
the defendant But this is expressly on the ground
Of the loss Of the property to the defendant and by
act Of the Sheriff which would render him Liable
for If the property be not actually taken from the
possession, or, after being taken it be
lost under circumstances showing no fault on the
|
from liability--as the act of God or of the public
enemy or the act of the law-the execution would
not be satisfied to the defendant Wade Watt
Noble and Mobley, at this term.
Here there was no taking of the property from
bhe of the heir by the creditors or for
their benefit for the cotton and negroes appear to
nave remained on the plantation of the test at0r in
with his will, until the cotton was
destroyed and the negroes deserted or were set q
free BY the act of the law Nor is tn re any liab
ty for the loss the part of the Executor, is
admitted. The creditors have, therefore, no re- t
,0urse on any one, on that account.
1t Is also said to be revoluble the principle t
# a person having large est and indebted to !
IN inconsiderable amount cor 4red to the value OF
mali part Of his property to dis wife or children,
eaving amply sufficient to pay his debts and af- G
erwards, at distance of time, his remaining s
cave sufficient to pay his debts-in which case, 1t
said the property conveyed would be exOnerated q
But the validity % such conveyance is az ieast
rould be on the equitable principle, that cred t
tor had lost his claim against the properly con
eyed by his laches in not pursuing his claim d
gainst the remaining property of the debtor for an
length Of time, when he might have b
one so andt would be negotiable to subject the
roperty conveyed after such laches. But we in o
end TO express no opinion upon such case, and if
My to say that bears no analogy to the case be-
ore us. There was no laehes imputable to the f
reditors in this case I; for there time, so @
lr as the record shows, when they could have n
objected the personal assets to the payment of Il
heir debts. But the property appears to have
sen "kept together in accordance with the tes II
ators win and that certainly is justification to
he Executor, and to the creditors, If they ac- tC
uiesced in it, SO far at least as the heir at law is C
encerled, In not selling the property for the pay tG
lent of the debts But the fact that the Executor
Tas allowed credit for all this property, and that Of
o objection Is made to the action of the court be-
wv in this respect must be taken conclusive in lie
he case as here presented, that no neglect or a.
mission Of duty was committed by the Executor, T
nd that fault is impuable to the creditors 1t W
lus be taken that the conduct Of both was with et
Againsit Is said that since the personal assets Ii
lost the estate through the action of the Of
it must be presumed that the Gov W
rnment will make reparation for the injury and OF
nat the compensation thus rendered will inure to
be benefit Of the creditors, and that they should m
Q remitted to that, because it was the primary b.
md for the payment Of their debts. Of
But that resource cannot be regarded, by the dt
w, as fund to which creditors must be remitted. TO
has existence in law, and depends wholly on az
le discretion of the Government, both to its re
sing granted and 10 the persons to whom gran III
ID and It is at best very problematical and eK v
,edingly improbable of ever being realized The 2
Rht Oh Creditors therefore, to proceed against 2
md which is clearly liable for their debts cannot Il
spend on what the law cannot regard as fund lie
ew that the law can take of the fund proceeding az
the personal estate here, is to consider It as
but Il this resource could be taken into sonsid.
alton in this case it should not affect the rights ie
the creditors. We have above seen that both WI
Q real and personal assets were equally bound or
the payment Of the debts and the general rule tr
su.h case Is, that the creditors may resort to co
ther when the other cannot be subjected. But 3 ha
rty whose rights affected by the subsection Of tic
fund IN which he Il interested. is not without as
medy under the doctrine Of marshaling OF de
be equitable rule, In reference to such cases Is
at If person having claim upon two funds
O0ses to resort to the only fund upon which an
Der has claim. that other person shall stand in
place, for 80 mu-h against the fund, to which
herwise he could not have access. White and II
ldors Eq, Cases, Pt l. Maginal. P 81 Aldrich Ts. III