Perrin and Others v. Lomax and Another.
May, 1843,
Richmond.
(Absent Cabell, P., and Stanakd, J.)
Deeds of Trust — To Secure Creditors — Conversion*— Contribution after Death of Grantor between Realty and Personalty — Case at Bar. — In 1810 a deed of trust was made, whereby it was witnessed, that for the purpose of securing to the grantor’s creditors their debts, and to make provision for the support, education and future settlement of his children, he conveyed his whole estate in trust for the payment of his debts, and for that purpose the trustees were empowered to sell from time to time such parts of the premises as to them might seem fit, or authorized to dispose of the same, or any part thereof, in such manner as might by them be deemed most beneficial and advantageous to all the parties interested: and out of the rents and profits, they were to support the grantor and his wife, and their family, during the joint lives of the grantor and his wife, and the survivor of them during the life of the survivor; and then the estate was in trast for such children of the grantor as he might leave at his death. After making this deed, the grantor died the same year (1810), leaving a widow, and three children by her. In 1811, the acting trustee sold a portion of the real property, 134 and the proceeds were ^applied towards the discharge of the debts. In 1814 one of the children died, whereby her interest in remainder in the whole estate passed to her mother and the two other children. In 1815 another child died, whereby his like interest (embracing that acquired through the child that had first died) passed to his mother and the surviving child. And in 1816 the widow died, whereby the interests in the remainder which she had so acquired, passed, as to the realty, to her surviving child, and as to the personalty, to her second husband, who survived her and became her administrator. At the period of the widow’s death, part of the real and part of the personal estate conveyed was undisposed of by the trustee; and thereafter he disposed of part of each to satisfy debts. Held, 1. the conversion in 1811, of part of the realty into personalty, being within the authority and discretion of the trustee, and made at a time when there was no conflict, but an identity of interest, amongst those entitled to the estate, cannot, by reason of circumstances thereafter arising, furnish any equity for a reimbursement of the realty out of the personalty, or for contribution in favour of the former against the latter. 2. That though, upon the widow’s death, the succession to the real fell into a different channel from the personal property, yet as the authority and discretion of the trustee in regard to sales of the property, whether real or personal, continued as before, no equity could arise between the realty and personalty for reimbursement of one to the other, neither being primarily, but the whole estate indiscriminately, subjected to payment of the debts by the provisions of the trust deed; which, and not the principles governing the administration of decedents’ estates, must give the rule upon the subject. But 3. that an equity of a different nature did, however, arise out of the provisions of the trust deed, so soon as the succession to the realty and the personalty so fell into different channels; and it was simply this, that the owners of the realty and personalty should contribute to the burthen of paying the debts remaining unsatisfied at the widow’s death, in proportion to the value of their respective interests: a.nd the exercise by the trustee of the authority and discretion vested in him, should not have the effect of disturbing the due apportionment of that burthen amongst those several interests.
Ralph Wormley the first died in 1806, having' by his will devised and bequeathed a large real and personal estate to his son Ralph, subject however to the payment of debts.
On the 8th of August 1810, the testator’s son Ralph (who will be called here-135 after Ralph the *second) made a deed of trust to John Tayloe and John T. Lomax, whereby it was witnessed, “that for the purpose of better securing to the creditors of the said Ralph Wormley the payment of their just debts, and at the same time to make adequate provision for the support, maintenance, education and future settlement of the children of the said Ralph,” and for the consideration of five dollars paid to him by Taylor and Lomax, he conveyed to them the estate so devised and bequeathed to him as aforesaid, “and all property, estate, rights, credits, goods and chattels whatsoever, and wheresoever being, of him the said Ralph,” upon the following trusts, that is to say, “in trust for the payment of just and lawful debts of the said Ralph; and for that purpose the said John Tayloe and John Tayloe *559Lomax are fully authorized and empowered to sell, from time to time, such parts of the premises as to them may seem fit, or authorized to dispose of the same, or any part thereof, in such manner as may by them be deemed most beneficial and advantageous to all the parties interested; and out of the rents, issues and profits of the said estates hereby conveyed, to support and maintain the said Ralph and his wife Eliza, and their family, during the joint lives of the said Ralph and Eliza, and the survivor of the said Ralph and Eliza during the life of such survivor; and from and after their death, then in trust for such child or children of him the said Ralph as he may leave at his death, and their heirs forever; and in default of such issue, in trust for such person or persons as he the said Ralph 'may, by last will and testament in writing, appoint; or in default of such appointment, then to the right heirs and distributees of him the said Ralph Wormley. And for the better performance of the trusts herein before mentioned, the said Ralph Wormley has constituted and does hereby constitute them the said John Tayloe and John 136 Taj'loe Lomax, and *the survivor of them, his true and lawful attorneys irrevocable, for him and in his name to sue for and recover, and give acquittances for, all debts, dues and demands which the said Ralph may now have owing, or which may hereafter be accruing, unto him the said Ralph; to implead and be impleaded, and to do every other lawful matter or thing touching the trust herein before created, which he the said Ralph might lawfully do by himself. ’ ’
Ralph Wormley the second, after making this deed, died in the latter part of 1810, survived by his wife Eliza, and three children, Elizabeth, John and Ralph the third, all of whom were by his said wife. The child Elizabeth died in 1814, and John in 1815. Afterwards, in October 1815, the widow Eliza married Carter Braxton. She died in 1816, leaving her husband Braxton and her son Ralph surviving her, and no other descendant. In 1824 this son (Ralph the third) died an infant, intestate and unmarried, whereby his estate became divisible into two moities, one for his paternal and the other for his maternal kindred.
In 1828 a bill was filed in the superior court of chancery at Eredericksburg, by the said paternal and maternal kindred, setting forth, that Lomax alone took upon himself the burthen of the execution of the trust; that at various times he sold considerable real and personal estate, and received rents and hires, and had paid off the debts of Ralph the second; that in a suit in the said court in the name of Ward and others, creditors of said Ralph the second, against Tayloe and others, the accounts of said Lomax as trustee had from time to time been settled by a commissioner and allowed, and the complainants, having examined the same, were content therewith; that the real estate left consists of a valuable tract of land called Rosegill, in Middlesex, and the personal estate left consistent of about 23 slaves, some stock, and a balance 137 of funds in the *hands of the trustee, arising from sales of real and personal estate, rents of land, and hires of slaves; and the complainants claim that the whole of the said real and personal estate, not required for the payment of debts, should be divided and distributed amongst them. They state, however, that Carter Braxton, as administrator of his wife, claims to share in the personal estate; and he is made a defendant, as well as Lomax the surviving trustee.
The answer of Lomax admitted, that the entire agency of the trust had devolved upon him (except as to the sale of one slave and the disbursement of the proceeds), and that he had from time to time settled accounts of his trust, in the suits by the creditors of Ralph the second against the trustees, all of which were consolidated in the name of Ward v. Tayloe; and the respondent expressed his belief that there would be a considerable surplus of estate of Ralph the second, after the payment of the creditors. He prayed, however, if the court made a decree for a division of the estate, that it would make provision for an adequate indemnification of himself and his cotrustee against the liabilities to which they were exposed.
Braxton, in his answer, said, that on the death of the infant Elizabeth, her mother became entitled to one third of the estate, that is, to one ninth of the estate of Ralph the second; and on the death of the infant John, his mother became entitled to one half of his estate, that is, to two other ninths of the estate of Ralph the second; and thus, at the time of the death of mrs. Braxton, the portion to which she was entitled of the estate of Ralph the second was one third thereof. He stated that the only real estate sold since the deaths of Elizabeth and John was a farm called The Cottage, which was sold for about 3000 dollars; while the personal estate sold since their deaths amounted to about 12000 138 ^dollars. And he insisted that the heirs of Ralph Wormley the third had no right to have the real estate relieved and reimbursed by the personal, (because of the palpable difference between the case of an executor and of a trustee,) but on the contrary, when the real and personal estates descended and passed to different parties, the trustees ought, and in equity would be compelled, to draw ratably on the two funds, the real and the personal, for the payment of debts; or, if this principle be not sanctioned, that the court should decree the respondent one third of the slaves and money remaining in the hands of the trustees.
The court of chancery, in 1828, decreed a division of the tract of land called Rosegill among the heirs of Ralph the third, making provision for the indemnity of the trustees against any debts which might after-wards be demanded against either Ralph *560the first or Ralph the second; and the court also directed certain accounts, to enable it to decree in respect to the personalty. The cause was afterwards removed to the circuit court of Stafford, and subsequently to Essex.
The report of the commissioner shewed, that there was brought into the accounts reported in Ward v. Tayloe, and applied towards the discharge of the debts of Ralph the second, the sum of 9172 dollars 41 cents, which was the proceeds of a tract of land called Pianketank, sold by the trustees in 1811. And then the report proceeded as follows: *
“After the deaths of Elizabeth and John, the following sums were received from the realty:
1815. Sales of wheat to Burke. 256 10
1816. Net proceeds of barley and corn of 1815, shipped to Baltimore in January and sold in June.. 934 46
Net proceeds of corn shipped to messrs. Donald & son. 813 95
139 *Corn furnished mrs. Braxton. 82 50
C. M. Braxton, sales of barley.. 7 20
Do. lot of corn. 40 00
1817. Sale of Cottage to A. New. 2982 50
Meadow to Nicholson . 240 00
Upland to %. Bres-ton. 516 03
- 3738 53
Tobacco to Nicholson. 408 78
Crops January 1817.2181 55
Rent of land from 1st Jan’y 1818 to 1828, inclusive, is 11 years, estimated at $300. 3300 00
$11443 07
And if interest be added, it would make upwards of 20,000 dollars which the realty had contributed towards the payment of debts up to 1st May 1835; a sum greatly exceeding all the trust subject in the hands of the trustee, viz.
Bonds &c. outstanding, after deducting decree of Carter v. Wormley.,. 5165 78
Slaves, in 1822 estimated at 2419 dollars 50 cents, (the commissioner has no warrant for the supposition, but,) if doubled in value, would make but. 6839 00
$12004 78”
It appeared that the sum of 5165 dollars 78 cents, above mentioned, consisted exclusively of a residue of the hires of the slaves which had accrued from the 1st of January 1829 to the 1st of January 1835. At the time of the decree in 1828, the proceedings in the suits between the creditors of Ralph Wormley and his trustees, together with the papers filed and the accounts taken in those suits, were, by consent of parties, referred to as a part of the record in this 140 suit, and the *court at that time confirmed those accounts. Hence the account returned in this case by the commissioner, of the transactions of the trustee, commenced with the balance due on the first of September 1828 according to a previous report, and no accounts of the trustee prior to that time were inserted in the record of this case.
In the progress of the cause an amended bill was filed, making the personal representatives of Elizabeth, John and Ralph the third, parties defendants. This amended bill, however, set forth that they all died infants and not at all indebted.
On the 26th of April 1837, the circuit court of Essex, declaring its opinion to be that the money and slaves of the trust fund in the hands of the defendant Eomax should be distributed as the personal estate of the deceased infants Elizabeth, John and Ralph Wormley, directed a division of the slaves, and decreed to the defendant Brax-ton, as administrator of his wife Elizabeth, one third thereof, and one third of the said sum of 5165 dollars 78 cents; and to the distributees of Ralph Wormley the third, the other two thirds.
Erom this decree, on the petition of the complainants, an appeal was allowed. The view taken in the petition was, that by the report of the commissioner, the aggregate amount of the personal estate in the hands of the trustee appeared to be far short of what had come to the hands of the trustee from the real estate, since the deaths of the two children of Ralph the second, and indeed since the death of their mother, his widow. And it was insisted that the decree was erroneous,
1st. Because it is a matter of plain equity, that the conversion of the estates of infants, after their deaths and the devolution of their rights on their heirs, which after events ascertain to be unnecessary; does not extinguish or impair their rights therein, so as to alter 141 *their rights of succession ; but there was a plain resulting trust to Ralph the surviving child, in the proceeds of the converted property; and consequently, in respect to the balance of 5165 dollars 78 cents, of a fund of upwards of 20,000 dollars resulting from the real estate, that stands in place of so much real estate of Ralph the third, and passed on his death to his heirs and distributees.
2ndly, Because, by principles analogous to the foregoing, (as the personal was the natural fund for the payment of debts,) the trustee and administrator of Ralph the second ought to have applied the slaves to that object; and if, for inconvenience, he has, by this power as trustee, applied the real estate of the heir to that object, the slaves ought, in a question between the real and personal representatives, to stand in the place of the land and have the same destination as the land would, or at least, in favour of the heir, be charged with a sum equal to that which had been taken from the real estate.
*561Stanard for appellants. If it was the purpose of any party to insist that what the commissioner has reported to have arisen from real estate did not so arise, there ought to have been an exception to the report on this ground. But the report is without exception, and must be considered correct. So considering it, the consequence follows, that what now remains in the hands of the trustee should pass as real estate. Por the rule is well established, that where a conversion is not made until after the death of the party making a trust, the surplus remaining after satisfying the purposes of the trust that he has created, and which would go to him if alive, is an interest in real estate, which passes as such to his heirs or dev-isees. Emblyn v. Ereeman, Prec. in Ch. S41; Roper v. Radcliffe, 10 Mod. 230; Digby v. Regard, 2 Dick. S00; Ack-142 royd v. Smithson and ^others, 1 Brown’s Ch. Rep. 503. These cases shew that where a conversion of lands is authorized for particular purposes, and the land is converted to a larger amount than is necessary for those purposes, the surplus money will descend as land. The surplus here must pass as land on another ground. Equity will not permit the real estate of infasts to be so converted into personalty, as to interfere with the course of descent. 1 Romax’s Digest 203; 1 R. C. of 1819, ch. 108, | 21, p. 410.
II. Since the death of mrs. Braxton, real estate has been applied to pay debts which are chargeable as well upon the realty as the personalty. What were the rights of the parties at her death? Suppose, upon that even, Ralph the third had filed a bill claiming an account of the trust subject, and it had then appeared that there were debts chargeable upon the trust subject, and that this subject consisted partly of real estate and partly of personalty. Surely Ralph would have been entitled to require that the personalty should be applied to pay the debts, unless, by the act of a party competent to do it, the personalty had been exonerated from its primary liability for the payment of debts. This primary liability of tfie personalty results from the creditor’s having a capacity to subject it primarily, while there are no means in his power to subject the real estate so long as there is personal property. But whether this or any other principle be the foundation of the rule, it is enough that the rule is established. The rule is not affected by the circumstance of there being a charge of debts upon the real estate as well as the personalty: to prevent its application, it must appear that there was a purpose not only to charge the realty, but to discharge the personalty. The cases, it is true, in which the doctrine has been principally discussed, are cases arising on wills. 1 Roper on Regacies 463; Samwell v. Wake, 1 Brown’s Ch. Rep. 144; Duke of 143 *Ancaster v. Mayer & others, Id. 454. And it may be said, this is not a case arising under a devise, but under a deed. But if the intention is to govern in the one case, it should govern in the other. It is in vain to say that the trustees had - power to sell by the terms of the deed: there is the same power under a devise. But the power is not allowed to be so exercised as. to affect the rights of others. Parties whose rights the testator did not contemplate affecting, shall not be affected. If, at the death of mrs. Braxton, the decision upon a bill by the heir would have been such as-has been supposed, then the subsequent acts of the trustees cannot change the rights of the parties. The case of an heir paying a bond debt, who is entitled to be reimbursed out of the personal assets, and the case of the heir or devisee of a mortgagor paying off the mortgage, who is entitled to like reimbursement, are both familiar, and the principle of those cases applies to this. What is the discretion in the trustees? A discretion to sell for the payment of debts, and limited to this purpose. Can it be held that this authorizes them to change the nature of the subject at their pleasure? In what respect does this differ from a case of rights devolved by the law; such a case, for example, as Godwin’s adm’r v. Godwin’s adm’x &c., 4 Reigh 410, where slaves were sold to raise a fund for the payment of debts, and it turned out afterwards that the funds were not wanting? The case will be exactly- the same, if we suppose slaves to be sold, and funds afterwards to come to hand from other personalty, which might have been applied to the payment of debts.
But if, at the death of mrs. Braxton, the right of her personal representative be not to one third of the personal estate charged with the whole debts, the charge must at least be of a ratable proportion of the debts, according to the amount due and the value of the respective estates at the time the rights devolve.
*Robinson for appellee Braxton.
Where land is conveyed by a deed of trust or mortgage to secure a debt, and, the debt not being paid, there is a surplus arising from the proceeds of sale, that surplus, not being disposed of by the deed, goes of course to the representatives of the grantor; and whether to his real or his personal representatives, depends upon the nature of the subject at the time of the grantor’s death. If, when he died, the land had been sold, and the surplus was in the hands of the trustees in money, that surplus would necessarily go to his personal representative. If, when he died, the land had not been sold, and he had an interest in the land subject to the debt, an interest entitling him to redeem on paying the debt, that interest passes to his heir or devisee. Then if the land be sold in the lifetime of the heir or devisee, and at the time of the death of the heir or devisee there is a surplus in the hands of the trustees in money, it necessarily goes to the personal representative of the heir or dev-isee. Wright v. Rose, 2 Sim. and Stu. *562323; 1 Cond. Eng. Ch. Rep. 477; Evans &c. v. Kingsberry &c., 2 Rand. 120. The circumstance that more than enough happens to be sold gives no equity, as between the heir and personal representative, to consider this surplus of money as land, but their rights depend upon the state of the subject at the time those rights accrue. The Commonwealth v. Martin’s ex’ors &c., S Munf. 12S. Upon the death of the party entitled to a surplus arising from a previous sale of lands, that surplus, being then a personal subject, goes to his personal representative; and if such party was entitled to rents and profits which had accrued from the lands before his death, those rents and «profits are also a personal subject, which goes to his personal representative. Levet v. Needham, 2 Vern. 138.
If, in such a case as has been supposed, a case in which the conveyance was of 145 real estate alone for the *simple purpose of paying debts, the surplus would go from the party entitled to his personal representative, a fortiori it must be the case here, where the grantor has blended his real and personal estate together, and conveyed the whole, without distinction, for the payment of his debts, for the support and maintenance of himself and his wife and family, and for the benefit of his children when the husband and wife should be dead. This case is much in favour of the right of the personal representative, than the case of Elanagan v. Elana-gan, decided by lord Camden, a statement of which is contained in Eletcher v. Ash-burner, 1 Brown’s Ch. Rep. 500, 5Ó1. There it was provided, that the debts were to be paid in the first place out of the personal estate, as far as it would extend, and in the next place by a sale of the real estate or a sufficient part thereof. Whereas here the trustees are fully authorized and empowered to sell such part of the estate, whether real or personal, as to them might seem fit. They might sell real estate first, or personal estate first, or such part of one and such part of the other as to them might seem fit. There, too, the power to sell was a limited power to raise so much money as should be sufficient to pay the debts and legacies; and after payment thereof, the real estate unsold, and the surplus proceeds of the part sold, were devised to" the testator’s father and brother. Whereas here, besides the power to raise by sale so much money as should be sufficient to pay the debts, the trustees are authorized and empowered to dispose of the estate, or any part thereof, in such manner as might by them be deemed most beneficial and advantageous to all the parties interested. And there, though the question was between the heir and personal representative in respect to the surplus arising from a sale decreed after the ancestor’s death, under an idea that a previous sale ' was insufficient, which (it appeared 146 afterwards) was in fact ^sufficient, the court nevertheless determined (there being no fraud) that the second sale could not be considered as improperly made, and the money must go to the personal representative. Eord Rosslyn, in adverting to this decision, says, it shews the court thought there was no equity between the representatives, but that they must take their respective rights as they find them. Oxenden v. Lord Compton, 2 Ves. jun. 77, 8; S. C. 4 Brown’s Ch. Rep. 239; Walker v. Denne, 2 Ves. jun. 176; Lord Compton v. Oxenden, 2 Ves. jun. 265; S. C. 4 Brown’s Ch. Rep. 403. A distinction may be supposed to exist between Elanagan v. Elana-gan and this case, upon the ground that the surplus there arose from a sale made under a decree of court. But is there any material difference between such a sale, and a sale under the power given by this deed? The trustees who acted here were a' court chosen by.that party under whom all interested claim, and who could give as much power and authority as could be conferred by a decree. And he has given such power. When, for the purpose of paying his just and lawful debts, they deem it proper to sell any part of the property, or when they dispose of any part of it because they deem it beneficial and advantageous to all interested, whether the part sold or disposed of be real or personal, their opinion, supposing they act without fraud, must bind all claiming under the deed, and the sale must be a valid sale. No injunction could be awarded to prevent the sale of any part of the property which the trustees saw fit to sell, if there were debts to be paid, or the sale was deemed by them beneficial and advantageous to those interested. And if in such a case no injunction could be awarded to prevent the sale, it must be impossible to hold afterwards that it was improperly made. And unless a court can say that the sale was improperly made, the surplus must go to the personal representative of the party who, at the time of the sale, is entitled to that surplus.
147 *The conversion from land into money being made in a regular and proper manner, the heir is not entitled to come into equity to reconvert the property, in order to give it a descendible quality. If he were, it would be contrary to all analogy. Where money is transferred with directions that it shall be laid out in land, but the court comes to the conclusion that the character of land is not by the grantor imperatively fixed to the property, but that an option is given to parties to retain the property in money or vest it in land, the moment the conclusion is arrived at that there was such option, that moment it is ascertained that the property will go to the real or the personal representative, according to its state at the death of the party entitled. Wheldale v. Partridge, 5 Ves. 388; S. C. 8 Ves. 227. When the fund is money, -and it is claimed that the owner has made it land, it must appear that he intended it at all events to be turned into land and descend as such. If this was not his fixed purpose; if there be any uncertainty as to his purpose; if there be any *563option to permit it to remain in the one form or be converted into the other, it does not become land until that option is exercised and the conversion made. On the other hand, where the fund is land, and there is an option to permit it to remain in that form or be turned into money, when that option is exercised and the conversion made, it becomes money, and passes to the personal representative.
The case of Walter v. Maunde, 19 Ves. 424, is very apposite to this. The will in that case (the provisions of whicü are stated in Cole v. Wade, 16 Ves. 27), gave the whole estate to trustees, for the payment of debts, funeral expenses and legacies, and then to dispose of the residue for the use and benefit of the testator’s relations and kindred, as the trustees in their discretion should think proper. The testator left it to their discretion to sell the same or such part thereof as they 148 *might think proper, and to convey the same in such manner and form as they might think proper, wholly or only partly converting the estate into money for the purpose of division, as they might think proper. The trustees died before distribution; and then the heir claimed the fund, upon the ground that there was no longer any person authorized to distribute it. It was decided in 16 Ves. 27, that the court of chancery might make the distribution ; and the manner of distribution was decided upon by the chancellor in 19 Ves. 427, 8. “Whatever the trustees did,” says lord Eldon, “towards and in a due execution of their power, with a view to the execution of the trust which is now disappointed, the court will also take to be property of the same nature and quality as it is found. Whatever therefore was converted into personal estate in the due execution of the trust, must be taken as personal estate.” These principles are further sustained by the case of Smith v. Claxton &c., 4 Madd. C. R. 484, and Dixon v. Dawson, 2 Sim. & Stu. 327; 1 Cond. Eng. Ch. Rep. 485.
Considering it clear that upon the death of mrs. Braxton, her rights in whatever was then real estate passed to her real representative, and in whatever was then personal estate to her personal representative, the true question in this case is, whether the real representative had a right at that time to require that the personal estate should be applied to pay the debts, in exoneration of the real estate? Upon this question, the cases relied upon on the other side are all cases of the administration of the assets of decedents’ estates. But we have no such case here. Ralph Wormley the second, at the time of his death, had no assets whatever which could pass from him to his executor or administrator. His whole estate, real as well as personal, had „been transferred by a conveyance made in his lifetime. And the case is no more one of the administration of 149 the 'x'assets of his estate, than it would have been if the conveyance, instead of being by Ralph Wormley, had been by another person, of the property of that other upon the same trusts that are declared in this deed, and that person had continued alive to this time. We certainly can have here no question of marshalling assets, in the sense in which that term has hitherto been used. In all cases of the administration of assets of a decedent, whether testator or intestate, and whether under the will or under the law, the rights of the parties are fixed at the time the will takes effect or the death occurs. To that period the court looks infixing their rights, no matter how long afterwards it may be that it has to decide upon them. How will such a principle apply here? Could any cestui que trust say, at the date of the deed, that the personal estate must be exclusively applied, and the real estate not at all, to the payment of debts? And if this could not be done, then it must be contended that the rights conferred by the deed are not to be ascertained from the deed, but depend upon subsequent events. Can this be so? Upon the deaths of Elizabeth and John, could either mrs. Braxton or the guardian of Ralph have obtained the decree of a court controlling the discretion conferred upon the trustees by the deed? Surely not. The court must have said, it was competent to the grantor to put the trustees in his place, and make their action binding upon all claiming under him; and their authority to sell such part of the estate as to them might seem fit, was not, by the terms of the deed, limited to the lives of Elizabeth and John.
It seems impossible to hold that at the death of mrs. Braxton, her third of the personal estate was charged with the whole debts then remaining. On the other hand, there may be difficulty in saying that after that time, when different parties were interested in the realty from him who succeeded to the personalty, the trustees still had the arbitrary right to sell; for 150 the debts remaining *due, such part of the estate either real or personal as to them might seem fit. A more equitable principle seems to be that suggested in the alternative presented by mr. Stan-ard, when concluding his argument; to wit, that the court should say, that there being at the death of mrs. Braxton a certain amount of debts due, chargeable alike on the whole estate, and the real estate going to her son and the personal to her husband, an account should be taken of the value of each kind of estate then remaining, and the debts made to fall in ratable proportions upon each. [Stanard. I do not go for charging the debts ratably.] Robinson. You contend, I know, that the personal estate remaining when mrs. Braxton died should bear all the debts; but if you should fail in this, then it was suggested by you that the two kinds of estate ought to be charged with ratable proportions of the debts. There is great force in this view of the subject; and if the power of sale is to be considered as existing after *564mrs. Braxton’s death only for the payment of debts, it is difficult to come to any other conclusion. For as the rights to the realty and two thirds of the personalty were then concentrated in Ralph Wormley, and the right to the other third of the personalty was then in the administrator of mrs. Braxton, there ought to be a right in them to pay off the debts, and there must be some correct principle on which this could be done; and no rule seems so fair as that of ratable proportions according to the value of the estate then falling to each. Bong v. Short, 1 P. Wms. 403; 2 Vern. 756; Headley v. Redhead, Coop. SO. It may be said that these were cases of the administration of assets; but there is nothing in the principle of contribution which should confine it to cases of that sort, or prevent it from being applied to a case like this. : 1 !
If the decree be reversed, an enquiry will be necessary to ascertain the value of each kind of estate existing at the time the rights were severed, and the amount ltd *of debts due at that time. For it -is apparent on the face of the commissioner’s report, that his statement of the sums made from the realty after the death of the infants is not to be relied on. The proceeds of wheat, barley, corn, tobacco and other crops are put down as sums received from the realty, though they must have arisen as much from the slaves as from the land. The land would not have produced the crops unless the slaves had worked it.
Braxton said, he was desirous of ending this litigation, and would not ask a reversal of the decree; but if it should be reversed, and the principle of ratable contribution just mentioned should be adopted, he was satisfied that principle would give him much more than the decree of the court below.
Patton in reply.
The argument of mr. Stanard and the authorities cited by him have sufficiently established, as a general proposition, that a man’s personal property is primarily bound for the payment of debts, from which nothing will relieve it but express exemption, or plain and manifest intention so to exempt it. This principle has not been controverted, in cases of the administration of assets. Is not this case one of that character? Concede that upon the death of Ralph the second, who had conveyed away his estate, there were no assets to be administered; was it so upon the deaths of his children Elizabeth and Jolpa? Clearly not. Upon their deaths, their shares descended and passed, not under the deed, but under the statute of descents and the statute of distributions. And if there had been an administration on the estate of either, and a suit by the administrator to recover his share ' of the personalty, he could have recovered nothing until all the debts were paid. As it regards . the conflicting rights of the real and personal representatives of Elizabeth ! 1S2 “and John, the case being one of . descent and distribution, their per- c : sonal estate must exonerate their real 1 estate. So upon the death of mrs. Braxton, her personal representative was entitled to-nothing as against her real representative, ! until all the debts charged upon her estate had been paid out of the personalty. Supposing the case can be looked at in this point of view, as one of descent and distribution, the proposition does not appear to-be controverted.
. [Robinson. If not controverted, it was-because the matter was not before presented in this point of view. But it will not aid the other side at all to consider this a case of the administration of assets, either of the estates of Elizabeth and John Wormley, or of mrs. Braxton. Let us suppose that either of them had had personal estate other than that derived under the deed from Ralph the second; nothing can be more plain than that such personal estate would not have been bound to exonerate the estate derived under that deed (though it were-altogether realty) from the debts of Ralph the second. The exoneration of real estate out of the personal estate of a decedent is-confined to cases where the debts are the proper debts of that decedent, — debts of his-own contracting. This is a well established principle, acted upon in the case of The Duke of Ancaster v. Mayer and others, 1 Brown’s Ch. Rep. 4S4, 464, (which mr. Stanard cited for another purpose) and in¡ numerous other cases. Lawson v. Hudson, 1 Brown’s Ch. Rep. 58; 3 Brown’s Pari. Cas. p. 424 of Tomlin’s edi. ; Evelj'n v. Evelyn, 2 P. Wms. 664, and cases there collected by mr. Cox in his note. In Scott v. Beecher and wife, 5 Madd. Ch. Rep. 96, (am. edi. 65,) a copyhold estate was mortgaged, and the mortgagor not only devised to his widow the copyhold estate, but bequeathed to her his personal estate, which was sufficient to pay all his debts, including the mortgage. She qualified as executrix, and afterwards died 153 without having *paid off the mortgage, but leaving outstanding personal assets of her husband’s estate sufficient to pay it off. In a contest after her death (which produced a severance of rights), it was held that her heir had no equity to have this mortgage paid off out of the mortgagor’s personal estate. It thus appears that if the deed of trust of Ralph the second had been upon real estate alone, the subsequent deaths of Elizabeth and John, or of mrs. Braxton, could give no right to her heirs to have the debts secured by the deed paid off out of the personal estate, even though that personal estate was derived from the party who contracted the debts. And the circumstance of personal estate being conveyed by the deed, alone with real estate, can only authorize each kind of estate to be subjected to debts according to the terms of the deed; which have already been considered.]
! . c Patton. In the cases just cited by mr. Robinson, the real estate was primarily and indeed exclusively bound. In our case, it is not exclusively bound: and the *565debts are due by the same person from whom both the real and personal fund are derived. My argument is, that the contest being between the heirs and personal representatives of Elizabeth and John Worm-ley, and the estate real and personal being derived from Ralph the second, the personal representatives of Elizabeth and John had no right to any part of the personal property as assets of their estates, until all the debts of Ralph the second, charged by him upon that personal property, were discharged. It is true, he had charged his real estate also. But the real estate was neither exclusively nor primarily charged with the debts by him. And it is that feature in this case which distinguishes it, clearly and plainly, from all the cases cited by mr. Robinson, and brings it more nearly within the influence of The Earle of Bel-vedere v. Rochfort, S Brown’s Par. Cas. p. 299 of Tomlin’s edi.
154 *No matter what may be the interpretation of the deed of Ralph the second, as to the discretion and power of the trustees to sell either real or personal property to pay debts, that power and discretion was given in reference only to the rights of his children and grantees, as to whom, in their lifetime, it was a matter of no consequence whether the real or personal estate was sold, as the3r were to have all that was left, whether real or personal. When, however, new rights and inconsistent interests grew up by their deaths, the deed could not operate to leave it to the trustees, in the exercise of a discretion for the benefit of the children, to defeat those rights and interests. As to the heirs and representatives of the grantees, the law threw on them the estates real and personal, subject to the charge for the payment of debts. As between them, the case is similar to a devise for the payment of debts and legacies, where, so far as the creditors are concerned, both real and personal estates are equally responsible, but as to the representatives themselves, the natural and primary obligation of the personal estate recurs. This argument is applicable, supposing mr. Robinson’s interpretation of the deed to be the true one.
But we do not admit that interpretation. We insist that the deed had no other effect than to give a power to sell the real estate, if necessary, for the payment of debts; that this power was only conferred to insure to the creditors full satisfaction, and was not intended to disturb the primary and natural obligation of the personal estate to pay the debts; and that if the trustees, for the more speedy and convenient payment of the debts, chose to sell the real estate for that purpose after the deaths of Elizabeth and John, their doing so could not affect or impair the rights of the infant heir (Ralph the third) to be reimbursed out of the personal estate. In equity, the trustees, after the deaths of Elizabeth and John, were quasi guardians of the 155 infant (Ralph the *third), and could not sell his real estate to pay the debts of his ancestor (Ralph the second), when there was ample personal estate to pay them, and especially when the effect was to throw the whole burden on the real estate, and to give one third of the amount, out of his estate, to the personal representatives.
Stanard. Much stress seemed to be laid on the case of Scott v. Beecher and wife. This case will be found to be a hasty decision of the vicechancellor, rendered upon slight argument, in support of which no authorities are cited; and the position broadly assumed in it is not tenable. Eor the widow7, as residuary legatee of John Tyson, took his estate subject to the payment of his debts, and among others the bond secured by the mortgage; and there can be no doubt that had the mortgage^ chosen to proceed at law upon the bond, instead of resorting to the mortgage, he might have had satisfaction out of the personal estate of the mortgagor in the hands of his executrix. The case admitted of a decision on another ground; viz. that the widow having the absolute dominion over the whole subject, and being sui juris in all respects, her conduct evinced an election on her part to continue the mortgage as a charge upon the real estate: and in the face of such election by the party under whom both claimed, her heir had no equity as against her personal representative. But that ground would not apply to a case like this, arising between the real and personal representatives of parties not sui juris, not clothed with any dominion over the subject, and not competent in law or in fact to manifest any intention or make any election whatever. Unless the decision in Scott v. Beecher and wife can be placed on this ground, it is inconsistent with the case of The Earl of Belvedere v. Rochfort. And if there be an inconsistency between the two, at least as much consideration is due to a decree 156 *in chancery affirmed in the house of lords, as to a hasty decision of a vice-chancellor.
It is somewhat remarkable that though mr. Robinson seemed to think that this case has nothing to do with the doctrines in cases arising under wills or relating to the administration of assets, the only two cases which he has adduced to support his new theory of contribution, in favour of which he seems willing to abandon the decree of the court below, are both cases arising under wills and relating to the administration of assets. No case, it is believed, can be found amongst the decisions of this court, in which it has been held that where a man by his will gives a slave or a horse to A. and a tract of land to B., the legatee of the chattel can claim contribution from the devisee of the land. But whatever may be the rule as to such a case, nothing is better settled than that a general or pecuniary legatee, or a residuary legatee can never call on the devisee of the land for contribution. As between them, the personal estate must always be first applied to the payment of debts, even though the *566legacy should thereby altogether fail. Clifton v. Burt, 1 P. Wms. 678; Harewood v. Child, cited in Cas. temp. Talb. 204, and approved by lord Hardwicke in Inchiquin v. Erench, Amb. 33; Tait v. Lord North-wick, 4 Ves. 816. And mrs. Braxton’s becoming entitled to one third of the unas-certained residuum of the personal estate of Ralph the second that might remain after the payment of his debts, does not place her in the relation of a specific but of a general or residuary legatee. • , 1 i s • ; i : :