The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1869-10-18

fact that the devisec 10 trust Is the same per-
son who Is nominated as executor makes no
difference. "But thcn," said Lord Chanccl-
cited,) "this land may be considered q gin
OF the tcstator among all his creditors; and
as the tcstator, the donor, has not thought
1t to make any distinction between his credl-
tors, so this court, which Is In the nature Of
trustee for the .testator, will make mono
neither"
To the same principle may be referred the
cases Of Gibson VS.. Fhlcy,( a Maryland Chy.
decisions. 75) and Cross VS.. Cohen, 60 Gill,
257, cited BY the counsel for the junior judg,
ment creditors, who seek q pro rata distribu-
tion In this case. The language Of the court
of equity In those cases 10, that wherever
a trust fund comes under It's control, II will
strive to do justice to all the creditors, by
decrcelng ratabe distribution OF the fund,
when that can be done without violating the
plain and explicit tcrms Of the instrument
creating the trust. This IL the statement OF
rule OF equity In relation TO the construc-
ton OF an instrument Of writing; that is all.
Upon an examination Of the decisions
aud dictd where courts Of equity have ap-
piled to this question their own favorite
maxim Of equality, It will be found to ex-
tend no further than to cases between credi.
tors by speciality and creditors by simple con-
2is; Frcem., SOL; wliics R., 5e1; JAG. a
Walk, IS; Wride VS.. Clarke, 1 Dickens, $50;
2 Freem., 175; 8 Simons, 90.
In Day VS.. Washburn, "a How, $50, all
the creditors were creditors by simple con-
tract, and q ratable distribution was de-
creed. But Judge Nelson In delivering the
opinion OF the court says that II any Of
the creditors had reduced their claims to
judgment aud had Issued execution, they
would thereby have acquired q preference
over the rest in the distribution Of the assets.*
In Maryland this question appears to have
been settled ln the case Of Bireiy vs., Staley,
5 @. and l. 432, In which IL was held that
where creditors, claims to relief rest upon liens
to be acquired, through Judgment or cxecu-
| ton, II follows as q necessary consequence
that out Of the fund pursued, II land, they
must DO paid according to the seniority Of
their Judgments, or II personal property,
according to their respective prioritIes &C.
CURED by the delivery Of their II. .Ja.'s TO the
sheriff. See also Rcigle VS.. Letter, 8 Mary
land Rep, 405.
Blrely VS.. stalcy, It Is true, was a bill to
set aside voluntary conveyance, and Il may
be urged that Its authority, so far as II do
clared the fund In controversy TO be legal
assets, ought to be confined to cases of pre-
cisely the same character. But II In the pres
ent case the equity Of q Judgment creditor
Is based upon his right TO redeem an out
standing encumbrancc and thereby acquire
such remedy IN rem. as he would have had
at law II the remembrance had never existed
| II, In other words, he calls upon the court
to recognize the legal fact that judgme nt
at law Is n lien upon real estate, 1t Is diff
| hcult to conceive how he can ask the court
to stop there and not recognize the other
legal fact that Judgments at law arc liens
upon real estate according to their priorities
In time. A Judgment Is not lien Jurs natural
or Sin consciencc;" It becomes such, II at
all, by the sanction Of positive municipal
law, and In case like this the Judgment
creditor who files his bill or his petition In
vokes the court, as between himself and the
other Judgment creditors to act upon Its gen.
eral and fundamental maxim that equity
follows the law, and not upon its particular
and exceptional one that equality Is equity.
1t would be an interesting process to array
the cases, and learn from an historic review
Of them how the Technology appropriate to
the law Of administration has been trans
fused Into q subject TO which 1t Is entirely
foreign; how the distinctions between legal |
and equitable assets have come to be In |
yolved In the discussions as to the applica-
ton Of the proceeds OF q judicial sale of an |
Interest or estate In lands. But the limits Of |
this report will not permit IL.
The term "assets' as a designation Of |
personal property or money Is never proper |
except In two cases first, as description of |
the available effects OF decedent; and Sec |
ondly, In the law OF bankruptcy. So with |
the word 'distributlon;" 1t is borrowed from |
the law of administration.
Story, In treating OF the subject OF ad- |
ministration, as branch OF the concurrent |
Jurisdiction Of equity, In the ninth chapter of |
his Equity Jurisprudence, says, (sec. 53i;) |
SIN an accurate and legal sense all the per- |
sonal property OF the deceased which Is OF |
saleablc nature and may be converted into |
ready money Is deemed assets. But" he |
adds, "thc word Is not confined to such |
property, for all other property Of the de. |
ceased which Is chargcable with his debts or |
legacies, and is applicable to that purpose,
Is, In large sense, assets"
Here, however, he confounds two things
which are essentially diverse and have moth
Ing In common but an accidental identity of |
name. From the beginning, In the Law OF |
administration personal property Ia assets; |
real property is not assets. The liability of |
'thc personal property Of the deceased" Is q |
liability created by the common law. "Real |
assets" or 'asscts by descent" denotes |
property by reason OF which the heir is |
chargeable with an obligation created by his |
ancestor; the term belongs to different title |
OF the law. Though In point OF fact there |
are laws In existence which subject lands to |
the payment Of debts, either by proceedings |
Mt law or by proceedings In equity, yet the |
obligation imposed by such laws Is another |
thing altogether.
Again, a "creditor's bill, properly speak |
ing, Is either bill filed for an account Of |
decedent's assets aud a settlement of the es- |
tate, or else 1t is bill filed to set aside |
fraudulent conveyance. In cases like that |
now under consideration the only object Is to |
remove an obstruction In the way Of the |
legal remedy, an obstruction placed there by |
the act-the fraudulent act 1t may bc-of the |
IN Ia II an n ri
can be fraught with the power to predoml- |
nate over and defeat the will of the law and |
take away private rights In this case the |
whole amount OF money representing the |
outstanding legal title, which stands between
the creditors aud their remedy at law, Is less
than tifty dollars.
The mere fact that case Is cognizable by
a court Of equity does not make fund under
Its control equitable assets. Story admits |
that the Jurisdiction of courts of equity In |
tho administration OF assets Is founded |
mainly upon the duty of the court to enforce |
the execution Of trusts, Equity Jurlspru-
nence, section 532, and cases cited In note
IN loc.) He claims, however, that there are
other and auxiliary grounds, as account,
discovery, injunction. But ii will not be
pretended that any OF these exist In the case
now under consideration.
In favor OF pro rata distribution the
analogy OF our testamentary statutes has
been adduced.
The act of 1855, chapter 80, section 7, d.
rected the distribution Of personal property,
first, among Judgment creditors In full, and
II the assets were insufficient, then pro rata;
and If there were a surplus, 1t should be d.
vded among all other creditors, without
priority or preference; and II the real estate
had to be resorted to, the distribution was
to be the same. And the testamentary act
of l79s, chapter l0l, In providing for the
distribution Of personal assets, directs (sub-
chapter 8, section ID Judgments and de-
crees rendered In the lifetime of the dece-
dent to be paid in full In preference to the
simple contract and specially debts; and II
the personal assets be insufficient to pay
such Judgments and DEGREES In full, 1t further
directs a ratable distribution among them.
Why, 1t is asked, should not the same equi-
table principle be applied to real assets Of
an equitable character
To this question there are two answers;
l. This is not the case Of decedent's es-
tate.
2. Analogy Is never to DO resorted to ex-
cept In the absence of an express rule, and
certainly IL Would he very unsa fe To allow II |