The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-06-01

ROBERT X. EVANS, by his Guardian
l0,346. VS.
d. s. FISHER, Executor.
In this Case Mr.. Justice HarTis delivered Dis
seating Opinion as folloics:
do not concur in the opinion of the majority 0
tho court. in this case Tne point to be de cded,
whetherif at the time of the death Of the deceden
his personal assets were sufficient" to pay all hi
debts and liabilities funeral expenses and expense
OF tion-the title to The real estate yeste
in the heir by st itutes of descents and distr
buttons can bs divested or defeAted by the subse
quent waste hisapplicatlon, or destruction ofsucl
There is no principle Of public policy more obvlou
| than that which inculcates the proprety OF provi
1 ding owner for property under every possible
state Of things. Hence. upon the death of al indi
vidua the disposition of his estate 10 carefully pro
| vided for by the muncipal laws Of all enlightened
nations This indulgence Of disposing of 1t by will
| has long since been extended to the owner every
where and IL he lails to avail himself Of that in
diligence. or in other words dies intestate, bis es
| tate is disposed of by the law among those whose
| claims upon 1t are deemed strongest and in oon
formity With certain fixed rules varying according
to tho character the subject Thus If q man dies
intestte his real estate descends to his heir at law;
who Is defined to be person upon whom the law
casts this alta Immediately upon the death of The
ancestor aud this method of acquiring title to real
estate, by the single act aud operation OF law
atitutes what is denomnated by the laws of England
as title by descent, Il Tuck. Sect. 2d part 39T and
1861 whereas, bis personal estate is by The law pe
culiarly cons ituted as a fun for the payment of
his debts after atsfying which, 1t is dstibutable
among bis next OF kim according to the T mutual
claims upon his bunny. The charac er of this es
tie, together with the variety of individuals who
may be1ute ested in it. as credito 8, legatees or
distributes, GEMS to demand, that it also should
be vested by law in sone common agent, who shall
preserve it nom waste and dispose of it TO those
entitled to receive it according to the provisions of
that law, which has undertaken 10 provide for the
discharge of the du les omitted by the ines ate
The creation of this agent the law wisely leaves to
the disc elton Of the ancestor if he chooses to exer
else 1t he may make his own WILL ins cad of cOa-
fding this duty to the Probate Court under the
authority of the lay. II the ancestor BY will ap
comes invested with the title to the property in
fduciary character But if, either designedly, or
otherwise, the ancestor die, without executing his
the case of real estate assumes upon itself the duty
of apl ointment and vests this title and authority
oyert1e personal estate, in common agent for the
Tuck. Sect, 2d pat, p. 1918
At common law Exc cutOrs and Administrators
liable t, tie in interest creditors lesa
tees distributes to the extent of tie assets or
personal estAte vested in them by law and TIE be t
of the ancestor, was able t, creditors-on those
tohds covenants or OIL er epecia es by whIeh'the
decea,ed had bound himself and his heirs TO the
extent of the real asets or estate scendedt' m.
Ths heir not responsible to creditors generally
nor his titls by descent affected by any debt
Of his ancestor unless in cases where by act Of the
1cestor hims II, or by the act opera ion Of law
q lien had been created, or attached 10 his real |
estate in his lifetime as in cases of judgme ents,
,ases the personal tate in the hands of Executors
)r Administ ators is the primary and natural iund,
which must be resorted to in the first instance, for
racted by the testator or intestate. Williams on
1xors., p. l 26, note Q, and numerous authorities
ted, and page 1881, and note ~
ecognizances acsnowl. dyed by him, the heir was
lot liable in an action of debt but chargeable as
enant of the lands uDon sciere facias and not as
eir. But in cases where the ancestor bound him
elf and his heirs, nominatve, the heir, was liable
personally in an action debt to the extent OF the
ssets cal. descended and vested in him by opera
ion OF law.
This claim or chsrge against the heir was not
owever in the nature Of q lien on the land, and
herefore did not effe it in the hands of vendee
o whom the heir may have sold 1t, with or without
% ice 1t was charge upon the heir only in
espect Of the land though the land might be
cached by execution on judgment against the
sia IT. EdSn ssCr 6acO1 & Heir
Or f.
Thus stood the common law when the act of
William and Mary, and A., Oh. IA, gave right Of
ction against the devisee Of the debtor concurrent
with the heir to specially creditors, whose de-
lar dis vera recoverable by action of debt. I'd Jar
ian on Wills, p 8.
The subsequent act of 47th Geo Ill, let in the
laims of simpe contract creditors, upon the real
state of the decedent If at the time Of his death he
ras subject to the bankrupt laws
The statute OF It'll George 4th and ] William
IN Oh. A. extended only to speciality debts RI the
ecedent, and subjected the real estat of the an.
sstor, to the payment Of SIMPLE contract debts
enefally--as a. sets to be administered in Court
None of these acts, however, have any force Or
alidty here. The sct of William 4th was only
assed in 1888 more than ten years after the policy
this sta 'e had been fixed, by the legislation now
nder consideration-and the previous acts have no
caring upon the questions to be decided here, If
icy had ever been in force In this State.
In the case of Boarman VS.. Catlett, 18th s. & M,
152 this court held in accordance with previous
,cisions that no English sta ute, has any intrin
0 validity here" When the Mississippi territory
ss organized the ordinance secured the nhabi-
nts in the enjoyment of judicial proceedings, &C.
riding to the course of the common law. This
gether with the provisions in the constitution Of
ude all English statutes, and to adopt only the
mmon law, and the statutes of our own govern
ent, for the determination of the rights of the
tizens citing Morgan vs. Reading. :. & NJ: 3g9
70 also Sessions vs. Reynolds 7th S. n NJ. p. 1872
in any view therefore the statutes can have no
rec or application in this Discus ion. There is
tiee, before we come to notice the legislation of
is State) and thatis distiaction growing out of
Q sufIiriency, or deficiency of personal esate In
Q of a suflcieucy of personal estate at the
ath of the decedeat which has been wasted by
Executor, legatee of the personal estate is not
and t. refund TO another legatee because he has
ceived no more than was due to him. and the
her legatees must look to The Executor Bat he O
bound to refund to creditors, because the per-
nal estate being the primary and natural fund,
the payment of debts, is made assets, and stands
argeab e, trust fund, for that purpose, and tt
" bs followed ino the hands of legatees, or dis al
butees by creditors in equity.
N the csse of an insuflcienoy of personal estate,
pay debts or legacies the 1egatee whe has re- =
we'd his legacy, out of the personal estate, bound
refund to creditors, the who legacy is necessa
pay debts and also bO1nd, after debts paid
refund to the her legatees all ovor his just pro-
rlion tnder the deficiency existing at the dea b
the ancestor n
t at the death Of the ancestor, to pay his debts,
was subsequently, wasted by the Executor or IN
ustee or even where the real estate charged In
III the payment Of debts in the hands Of the Ex- O
ltor or Trustee, and the Executor or Trus ee III
sted the fund, provided for the payment of debts,
creditor could not subject the land in the hands L
the heir or devisee TO the payment of debts, but
9 compelled to resort to the defaulting Executor
Trustee. al
his doctrine is admitted by the opinion of the M
jority of The court far it relates to leg ltees
it is insisted that ditors in of snficiency
personal properly or assets for the payment OF
us, which have be wasted by the Admnis'ra m
are not driven like legasees, to their remedy Il
lnst Their aeianltRg agent and trustee but may ce
cases of Hardwick vs.. Myn5, l Anst 1l2
rnonl62 Supton vs.. Supt n, 2Jobn, Oh R. 614, 627 =
Villains on Exors., l3Os9. Stewart VS. Kissam.
arb. Sup. let r 493 Donocourt VS.. Jacobs =
Am. R, 2li and Story Eq. Jar. Sec. 92 are re- '
on
ha We carefully examined the csses referred to O
tny Others Of the same character Except the *
g Of Hardwiek vs MYnd, Anst liz, which am " "
lble t. find in the librsry) These authorities pI
y go to the extent that where there was sufic Sd
cy Of pesOns estate and assets which have betn eli
sted by the Admin strator that the legacss paid y;
the personal assets dedicated by the law, q ~ "
1t fund for the psym mt Of debts hrst may be re ~
cred or subj ctsd in equity BY creaitors in the da
Ids of legatees, Dotwithstandfng maladninistra- 8
l. They inv Jls log personal estate or n,
sts and not real estate in the hands Of the heir
isee- pI
(To be continued in our next.)