Warren County NcArchives Court.....Robert Harwell, John Miller V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 29, 2009, 8:30 pm

Source: Nc Reports
Written: 1819

John L. Miller, by his Guardian William Miller v. Robert H. Harwell, surviving 
Executor of Thomas Miller, and against Marmaduke Johnson

From Warren

May Term 1819

Contribution between devisees and legatees. Testator devised his lands to 
Fleming, an alien, and three negro slaves to his brother Thomas. He appointed 
Fleming and Harwell his executors, and gave them power to sell such of his 
property as they might think necessary for the payment of his debts.

The executors sold the lands, and applied the purchase money to the payment of 
Fleming's debts. The negro slaves bequeathed to testator's brother Thomas were 
then sold to pay the testator's debts. They were sold upon a credit, and 
purchased by the guardian of Thomas, in trust for him. The guardian gave his 
own bond for the purchase money.

Thomas, the legatee, filed his bill against Harwell, the surviving executor 
(Fleming having died), charged him with a misapplication of the purchase money 
of the lands; that the lands were sold avowedly to pay the debts of the 
testator, and if the money had been applied to this object, it would not have 
been necessary to sell the negroes. The bill prayed as against Harwell, that 
he be decreed to deliver up the bond which he had taken for the purchase money 
of the negroes.

The bill was also filed against Johnson, the purchaser of the lands, charging 
him with notice of the trusts of the will, and with connivance in the 
misapplication of the purchase money; and prayed, as against him, that if 
Complainant could not be otherwise relieved, he, Johnson, might be decreed to 
pay to Complainant the value of the negroes.

To this bill the Defendants demurred, and showed for cause, that it appeared 
by Complainant's own showing, that he was not interested in the question made 
in the bill relative to the sale of the lands, or the proceeds of the sale, 
nor entitled to have the bond delivered up. The demurrer allowed, for 

The personal estate is primarily liable to pay debts; and although the 
testator might have subjected any particular part of his estate to this 
purpose, yet, in this case, he has not done so; he has given power to his 
executors to sell any part of the estate they pleased, to pay debts. This does 
not transfer to the real estate the liability of the personal to pay them; 
and, after the death of the debtor, the law directs the personal estate to be 
exhausted, before the lands shall be resorted to for satisfying debts.

The rule, therefore, does not apply in this case, "that where one claimant has 
more than one fund to resort to, and another claimant only one, the first 
claimant shall resort to that fund on which the second has no lien." In the 
life time of the testator, creditors might sue out their executions against 
his real, as well us his personal estate; but after his death, the lands go to 
the heir or devisee, and the personal estate to the executor, and creditors 
cannot pursue the first until the latter be exhausted in satisfying their 
simple contract debts; and the bill does not charge that Complainant's legacy 
was sold to pay specialty debts. The Court must, therefore, presume that it 
was sold to pay simple contract debts only. Heirs and devisees cannot be sued 
in the first instance for such debts, and the lands descended or devised to 
them cannot be subjected to their payment, except in the way pointed out in 
the act of 1784, ch. 11. 

If, then, the lands devised in this case had been sold, and simple contract 
debts paid with the proceeds, the devisees would have a right to call upon the 
legatee of the personal estate to make his devise good to him. 

But if the debts were specialty debts, Complainant could not stand in the 
place of specialty creditors, us against, the devisee of the lands, because 
such a devisee is as much a specific devisee, as the specific devisee of a 
chattel.

The principal rule in marshalling assets is, that when a creditor may resort 
to both the real and personal estate, and the legatee can only resort to the 
personal, if this be insufficient to pay both, the creditor will be confined 
to the real estate: or, if he has been satisfied out of the personal fund, the 
Court will permit the legatee to stand in his place, and receive satisfaction 
out of the real estate, to the amount taken from the personal.

But this rule operates only where the real estate is charged with the payment 
of the debts or legacies, or where the creditor has a lien upon it, except 
where the donee is heir at law, and then against him, the lands will be liable 
to the specialty debts in case of the personal estate.

Fleming must be considered a devisee of the land; for an alien can take; for 
whose benefit he takes, is a question in which Complainant has no interest.

The Complainant filed his bill in the Court of Equity for Warren, against 
Robert H. Harwell, surviving executor of the last will of Thomas Miller, 
deceased, and against Marmaduke Johnson, and therein charged, that Thomas 
Miller, late of Warren County, departed this life in April, 1806, having made 
and published the writing, his last will, of which he appointed Robert Fleming 
and Robert H. Harwell executors; who, after his death, proved the will in 
Warren County Court, and took out letters testamentary. That the testator 
devised as follows, to-wit: "I give and bequeath unto Robert Fleming, all my 
land which I now own; and also the property which I have in the store now 
occupied by Fleming and myself, to him and his heirs forever."

"I give and bequeath unto my brother, John L. Miller, three negroes, Pompey, 
Cheyney and Clarissa, and their future increase to him and his heirs forever."

"I will that all my just debts and funeral expenses be paid by my executors, 
out of my property, or the money arising by the sale of such as my executors 
may deem necessary to be sold."

That the tract of land devised to Robert Fleming, contained five hundred 
acres, and the stock in trade bequeathed to him, amounted to fifteen hundred 
dollars: that Robert Fleming was an alien, incapable of holding lands.

That some short time after the death of the testator, James G. Brehon 
recovered a judgment against Robert Fleming and Marmaduke Johnson, in Warren 
County Court, for one thousand pounds, or thereabouts, sued out his execution 
thereon, and the money was about to be raised out of the property of Johnson: 
to avoid which, and to indemnify Johnson against the payment of this money, it 
was agreed between Robert Fleming, Robert H. Harwell and Johnson, that the 
land devised to Fleming should be sold to Johnson for one thousand pounds or 
thereabouts; that in pursuance of this agreement Johnson discharged Brehon's 
judgment, and Fleming and Harwell, as executors of the last will of Thomas 
Miller, executed to him a deed for the land. That the parties pretended 
publicly, that this sale was made for the purpose of paying the debts of 
Thomas Miller: but in fact, it was made for no other purpose than to discharge 
Behon's judgment, and to keep Johnson indemnified.

That in consequence of this sale, and the application of the purchase money to 
the payment of the debts of Fleming, the debts of the testator were left 
unpaid. That Fleming Boon afterwards died, intestate and insolvent. That since 
his death, the creditors of Thomas Miller had sued Robert H. Harwell, the 
surviving executor, and recovered judgments to the amount of five hundred 
pounds and more; to satisfy which, the three negro slaves bequeathed to the 
Complainant, had been sold by Harwell, the executor, and purchased by William 
Miller, guardian to the Complainant, at the price of $1,123: That, the said 
purchase was for the benefit of the Complainant, and that William Miller gave 
his own bond for the purchase money, payable on the - day of -.   The bill 
prayed that Harwell, the executor might be decreed to deliver up to 
Complainant, William Miller's bond: that he and Johnson might he decreed to 
pay to the creditors of Thomas Miller, their respective demands, at least to 
the amount equal to the value of the land sold to Johnson, in order that such 
payment might he applied in exoneration of the specific legacy bequeathed to 
the Complainant: and that Complainant might have such other relief as in 
Equity he was entitled to.

To this bill, Harwell and Johnson demurred, and, for cause of demurrer, 
shewed, that it appeared by the Complainants own shewing, that he was not 
interested in the question made in the bill, relative to the land, or the sale 
or proceeds thereof; and that it appeared by his own shewing, that he was not 
entitled to have the bond of William Miller delivered up to him. They also 
answered and denied the fraudulent combination charged in the bill, relative 
to the sale of the land.

The case was sent to this Court, and the Judges were divided in opinion upon 
the questions arising on the demurrer. The Chief-Justice and Judge Hall being 
of opinion, that the demurrer should be sustained, and the bill dismissed; and 
Judge Daniel, (who sat for Judge Henderson) being of opinion, that the 
demurrer should be overruled, and relief be decreed to the Complainant.

Daniel, Judge: The bill is filed by a specific legatee, who claims to be 
placed in the shoes of the creditors of the testator, and to have reimbursed 
out of the sales of the real estate, the value of his specific legacy, which 
has been taken to satisfy their demands. It appears from the case, that the 
testator gave to his executors, a general power to sell so much of his 
property as would pay his debts; and this must be taken as a charge upon all 
his estates, both real and personal. He then gave the Complainant a specific 
legacy of some negroes, and devised his land to Robert Fleming, an alien. He 
appointed Robert Fleming and Robert Harwell, his executors, who, by virtue of 
the power given to them by the will, and in their character of executors or 
trustees, sold the land to Johnson, who had full notice of the trusts of the 
will. Johnson has not paid the purchase money to the trustees, nor to the 
creditors of the testator. He has applied the money to the payment of a debt 
which the trustee, Fleming, owed, and for which payment he was bound, as 
Fleming's security. He contends, that this payment, being made by the consent, 
or at the request of the trustee, discharges him from all further liability.

I will examine, 1st. Whether the complainant can be placed by this Court, in 
the situation of the creditors of the testator; and, 2dly, Whether he can 
sustain his bill against Johnson, under the particular circumstances of this 
case.

1st. It appears that the creditors of the testator had a lien on both the real 
and personal assets, for the payment of their debts. The Complainant, who was 
only a specific legatee, had no other lien, but on the specific properly 
bequeathed to him. It is said by Lord Hardwicke, that "It being the object of 
a Court of Equity, that every claimant upon the assets of a deceased person, 
shall be satisfied, as far as such assets can, by any arrangement consistent 
with the nature of their respective claims, be applied in satisfaction 
thereof, it has been long settled, that where one claimant has more than one 
fund to resort to, and another claimant only one, the first claimant shall 
resort to that fund on which the second has no lien." 2 Atk., 446. 1 Ves., 
312. If, therefore, a specialty creditor, whose debt is a lien on the real 
assets, receives satisfaction out of the personal assets, a simple contract 
creditor shall stand in the place of the specialty creditor against the real 
assets, 1 Vern., 455. 1 Eq. Ca. Ab., 144. 2 Vern., 763. 2 Atk., 436; and 
legatees shall have the same equity. Ch. Ca., 117. 1 P. Wms., 730. So where 
lands are subject to the payment of all debts, a legatee shall stand in the 
place of a simple contract creditor, who has been satisfied out of the 
personal assets. 3 P. Wms. 323. These authorities shew, that the Complainant 
has a right to stand in this Court in the place of creditors who have 
exhausted the fund set apart to satisfy him, and be reimbursed out of that 
fund which the creditors might have resorted to, but which they have left 
untouched.

2d. Has the Complainant, under the circumstances set forth in the bill, and 
admitted by the demurrer, a right to call on the Defendant, Johnson, for 
satisfaction? I admit that where the trust is general, as to pay debts, the 
purchaser, although he has notice of them, is not obliged to see the money 
applied. 1 Bro. Ch., 186. 2 Fonb., 148. But I hold the money should be paid, 
and without any collusion of the trustee to defeat the object of the trust. It 
is held, that purchasing from an executor shall never protect any person who 
has full knowledge that the money will be misapplied. 2 Br. Ch., 434. 4 Br. 
Ch.. 125, 130. 2 Vern. 616. 7 Ves., 152. Johnson has never paid the purchase 
money; or if he has, it was with a full knowledge of the trust, and in direct 
violation of it. The payment of Fleming's debt, to which he was security, 
cannot screen him from paying the purchase money properly. I think the 
Complainant has a right to resort to this money for satisfaction, and that the 
demurrer should be overruled.

Hall, Judge: This case comes on upon a general demurrer. The bill does not 
state that any of the debts which the specific legacy of the Complainant was 
sold to pay, were specialty debts that bound the heir or devisee. It is 
therefore proper to examine the question, as if that legacy had been sold to 
satisfy simple contract debts only. What difference there might be in the 
case, provided those debts had been due by specialty, and bound the heir and 
devisee, it is not necessary now to examine. Admitting the fact, that the 
debts discharged by the sale of Complainant's legacy, were simple contract 
debts, it cannot be successfully contended, that Fleming, the devisee, was 
bound to contribute, because, in this State, lands are bound for the payment 
of debts of all kinds. It is true, that the statute of 5 Geo. II, ch. 7, as 
well as our own statute law, imposes upon lands that liability, and an 
execution taken out would subject them, as well as the personal estate, in the 
hands of any person who is the owner of both. But after the death of that 
person, the lands cannot be legally subjected to an execution issuing upon a 
judgment obtained against his executor or administrator. The executor or 
administrator has nothing to do with the land. It descends to the heir, or 
goes to the devisee; and neither of them can be divested of it without notice, 
without being made a party to some proceeding instituted against him for that 
purpose. How this was done before the year 1784, or whether any regular mode 
was pursued, does not appear. It appears probable, that there was no regular 
mode; for the act of 1784, ch. II. in its preamble declares, that "Whereas 
doubts are entertained, whether the real estate of deceased debtors, in the 
bands of heirs and devisees, shall be subject to the payment of debts upon 
judgments obtained against executors or administrators, in order to remove 
such doubts in future, and to direct the mode of proceeding in such cases, be 
it enacted, &c." The act then directs a scire facias to issue, to give the 
heir or devisee notice, &c, and in the 5th section, power is given to the heir 
or devisee, to plead that the executors or administrators have assets in their 
hands to pay the judgment, or have wasted or concealed them: and to have an 
issue made up to try that fact. If upon the trial of such issue it shall lie 
found that they have assets, no judgment can be pronounced against the heir or 
devisee, upon the scire facias. So that it is clear, lands cannot be made 
liable to the payment of simple contract debts, except where there is no 
personal estate in the hands of the executors or administrators.

It would appear strange, then, to say that Fleming, as devisee, should 
contribute to the payment of simple contract debts, when the land devised to 
him was not answerable as long as there was personal estate. Heirs and 
devisees cannot be sued, in the first instance, for simple contract debts. 
Lands cannot be subjected to the payment of such debts, except in the way 
pointed out by the act of 1784. The act of 5 Geo. II, as well as an act of 
1777, makes lands liable: the act of 1784, points out the mode of proceeding 
against them after the death of the debtor.

But, it is said, the executors in this case were authorised by the will, to 
sell any part of the estate they pleased, for the payment of debts; and, as 
they thought proper to sell the land devised to Fleming, the proceeds of that 
sale are liable to the payment of debts, and therefore the Complainant is 
entitled to recover the full amount of his legacy, out of the proceeds of such 
sale. On this part of the case, it is to be observed, that the testator 
himself might have subjected any part of his estate he pleased to the payment 
of debts: if he has not done so, the law will do it for him. I think he has 
not done so: for, by giving the executors the power to sell the real estate, 
he has not transferred the liability of the personal estate to the payment of 
debts, to the real estate: in other words, the executors have not, by the 
will, power to ruin one legatee by selling his legacy, and place another in 
the full enjoyment of his legacy, because they do not think proper to sell it. 
The right of compelling contribution remains as it would, if one legacy was 
sold by execution and another not, which was equally bound for the debt. Let 
us then suppose, that the land in question had been devised to A B, and not to 
Fleming, and the executors had thought proper to sell it. Certainly A B would 
have a right to call upon the legatees of the personal estate to make his 
devise good to him, because it had been sold to satisfy debts for which it was 
not liable, but for which their legacies only, were liable. If this be 
correct, the money for which the land was sold being in the hands of Fleming, 
is where the law would place it: for, if that money had gone in discharge of 
debts, the Complainant's legacy would be bound to make it good. The reason why 
power is frequently given to executors to sell property at discretion to pay 
debts, is, that they may not be tied down to the slow mode of proceeding 
pointed out by law, by applying to Courts for permission to sell property, 
when they shall be notified of debts existing against the estate.

Another circumstance has been relied upon, and that is, that Fleming is an 
alien, and cannot hold lands. Whether he can hold lands or not until office 
found, I shall not enquire: I shall only refer, in support of the affirmative 
of the proposition, to Co. Lit. 2 B. 52 B., 129. Dyer 2 B. Powell on Devises. 
316, 10 Mod., 128. 7 Cranch, 619. 1 Mass. 256. Suppose, for the sake of 
argument, that the heirs at law are entitled: this suit is not brought by the 
Complainant in that character. It does not appear who the heirs at law are. 
The bill is brought by the Complainant to compel Fleming to make good bis 
legacy, which was sold for the payment of debts, or to contribute thereto. 
Whether the land be devised to an alien; if it be, whether the heirs at law be 
entitled, or whether it escheats, matters not. It is not liable to the payment 
of debts until the personal estate lie exhausted. Whatever view, therefore, I 
have been enabled to take of the subject, I am convinced the demurrer should 
be sustained and the bill dismissed.

Taylor, Chief-Justice: The facts forming this case are shortly these. Thomas 
Miller died in 1806, having first made his will, by which he appointed Robert 
Fleming and Robert H. Harwell his executors; both of whom qualified, and whom 
he directed to sell such part of his estate for the payment of his debts us 
they might think proper. He also devised to R. Fleming, one of his executors, 
a tract of land in Warren County, and bequeathed to him his stock in trade, to 
the amount of $1500; and to the Complainant, his brother, he bequeathed three 
negroes. After the death of the testator, Brehon recovered a judgment against 
Fleming, and M. Johnson, as his security, for about one thousands pounds, and 
an execution issued, which would have been levied upon Johnson's property; to 
avoid which, he and the two executors made an agreement, whereby he became the 
purchaser of the land for the price of one thousand pounds. This sale was 
ostensibly made for the purpose of paying the debts due from the estate, but 
was, in reality, the result of a combination between the executors and 
Johnson, to discharge Brehon's judgment. The consequence of the sale was to 
leave the debts unpaid, and to expose the Complainant's legacy, as the only 
fund out of which the creditors could obtain satisfaction. This has 
accordingly been sold, to satisfy the judgments against the executors, which 
the Complainant alleges, ought to have been paid by the sale of the land. 
William Miller, guardian of the Complainant, became the purchaser of the 
negroes in trust for the Complainant, and gave his bond for the payment of the 
purchase money. Fleming, who was an alien, died soon after the sale, 
insolvent. The prayer of the bill is, that the bond of William Miller may he 
delivered up, and the Defendants decreed to pay such sum of money as the 
Complainant is entitled to. 

The Equity relied upon in the bill, consists in this, that the Complainant has 
lost his legacy, because the price of the land was not applied to the payment 
of the debts. To support this ground of equity, it ought to be shewn that the 
land was liable to the payment of the debts, and that a specific legatee is 
entitled to call upon the devisee of the land, in exoneration of his bequest. 
If either no power had been given to the executors, to sell such property as 
they thought fit, for the payment of debts, or they had omitted to exercise 
the power, the Complainant's legacy would have been first liable, and on that 
proving deficient, the creditors would have resorted to the land. Had the 
debts been satisfied out of the Complainant's legacy, he could not stand in 
the place of the bond creditor, because the devisee of land is as much a 
specific devisee, as the specific devisee of a chattel. 3 P. Wms. 324. With 
less reason can such a claim be made where simple contract debts have 
exhausted the legacy. The principal rule in marshaling assets is, that when a 
creditor may resort to both the real and personal estate, and a legatee can 
only resort to the personal, if that be insufficient to pay both, the creditor 
will be confined to the real estate: or if he has been satisfied out of the 
personal fund, the Court will permit the legatee to stand in his place and 
receive satisfaction out of the real estate, to the amount of what has been 
taken from the personal. 1 P. Wms., 679. But this rule can only operate where 
the real estate is charged with the payment of debts or legacies, or where the 
creditor has a lien upon it, except where the donee is heir at law, and then 
against him, the lands will be liable to the specialty debts, in case of the 
personal estate. 3 Atk., 272. Amb., 127. In this case, there is nothing stated 
in the bill whence it can be inferred that the debts were due by specialty, 
and it must be taken for granted, that they were not so. They have therefore 
been paid out of the proper and primary fund, and this would he a sufficient 
reason for refusing relief. But if the debts had been due by specialty, 
contribution could not have been claimed against the specific devisee of land. 
I have considered Fleming as the devisee of the land, notwithstanding the 
statement in the bill that he was an alien; and I believe the law to be well 
settled, that, an alien may take by devise, although there be some cases and 
dicta to the contrary. The question occurred before Lord Hardwicke, in Knight 
v. Du Plessis, 2 Ves., 360. 7 Cranch, 618, who said he did not remember any 
doubt or distinction, made between a grant, conveyance, or devise to an alien; 
for an alien might take; the only consideration, therefore, would be, for 
whose benefit. And this opinion is adopted by the modern writers on devises. 
Powell 316. 3 Cruise, Title-Devise.

As the Complainant, then, would be entitled to no relief in this view of the 
case, it is to be enquired whether his claims are strengthened by the power 
given to his executors to sell, and the execution of the power by the sale of 
the land. The testator has not placed the burthen of the debts upon any 
particular part of the estate; it is, therefore, left to the operation of law, 
and it was entirely in the discretion of his executors as to what part should 
be sold. Had they disposed of the Complainant's legacy for that purpose, he 
could have no claims against Fleming, as the cases cited prove: and it is 
difficult to imagine that Harwell and Johnson should be responsible to him, 
the one for selling, and the other for purchasing land, which was chargeable 
with no claim, either of his or the creditors. Upon the supposition of the 
combination charged in the bill, between Johnson and the executors, no one can 
call them to account for the misapplication of the purchase money, who would 
not have an interest in the land if it had remained in Fleming's possession 
till his death. Whether this would be the heir at law of the testator, of 
Fleming, or the Trustees of the University, claiming by escheat, it is not 
necessary to determine. The Complainant is announced only in the character of 
a specific legatee, claiming satisfaction for his legacy. It is certainly not 
to be approved of, that the land should be sold avowedly to pay the debts of 
the estate, and afterwards, that the money should be applied to different 
objects; but if the transaction had been called by its true name, a sale for 
the benefit of Fleming, upon what ground could it have been assailed? The 
devise was to him: he was an inhabitant of the State, and a few years longer 
life and residence, would have entitled him to the rights of citizenship. It 
is altogether improbable, that the State, or any person claiming under her, 
would have disturbed him in the enjoyment of the land, had he chosen to keep 
it.

Long v. Short, 1 P. Wms., 403, has been cited by the complainant's counsel, to 
show, that the specific devisee of land should contribute with another 
specific legatee to the payment of debts. But in that case, both devises were 
derived from the game subject, which was separated into a fee and lease for 
years; and a devisee of a term for years being as much a specific devisee, as 
a devise of lands in fee, to defeat either would equally disappoint the intent 
of the testator: and the devisees were decreed each to contribute in 
proportion to the value of the respective premises. But the deficiency was 
made to fall upon the lands of inheritance, only so far as it arose from the 
payment of specialty debts; as to the simple contract debts, they were 
chargeable solely on the leasehold. The case does not prove anything towards 
establishing the point that the lands were bound to contribute in this case to 
the Plaintiff's legacy. Upon the whole, it appears to me, that the Defendants 
have equal equity with the Complainant. The land has been applied to the 
benefit of him to whom it was devised; and when the testator directed a sale 
for the payment of his debts, it is not to be presumed that he meant a sale of 
the lands, neither in point of law nor according to the usage of the country, 
which is rather to pay debts with personal property; and the Defendant having 
the law in their favor, the bill must be dismissed.

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