The following opinion was filed at the January term, 1873.
Lyon, J.
In the absence of any argument or brief on behalf of the defendants, it is not deemed necessary to enter into any extended discussion of the questions presented for determination by the demurrer to the complaint. We shall therefore add but little to a mere statement of the conclusions to which we have been impelled by the investigation of those questions, and in doing so we will not attempt to follow the order in which they are presented in the demurrer.
I. The action is not barred by the statute of limitations. It is brought upon a sealed instrument, and the cause of action accrued in this state March 7, 1854, which is less than twenty years before the action was commenced. Tay. Stats., [625]*6251524, § 15. Indeed it was commenced less than twenty years after the bond was executed.
II. No other ground of demurrer assigned is available to the defendant Colter, and, the action not being barred by the statute of limitations, beyond all question the complaint states a cause of action against him. • The rule is, that a joint demurrer by two or more defendants, on the ground that the complaint does not state a cause of action, is bad, if the complaint shows a cause of action against one of them. Webster v. Tibbiis. 19 "Wis., 438. Hence this demurrer should have been overruled for that reason, if for no other.
III. We find nothing in the statute which requires that administration should be had of the estate of James E. Chapman before an action can be maintained, by a creditor of the estate against the heirs, legatees or devisees of the deceased; and the very able argument of the learned counsel for the plaintiff has satisfied us that there is no rule of law which prohibits such an action in a case like this, before administration. The complaint shows that all debts and claims against James E. Chapman, or against his estate, have been paid and discharged, except the claim for which this action was brought, and all of his property, or at least, all of his property in this state, both real and personal, has gone into the hands of his devisee and legatee, Theophilus Chapman. What necessity can there be, then, for incurring the trouble, delay and expense of an administration of the estate ?
IY. We can perceive no good reason why Mary Elizabeth Burns, the other devisee named in the will of James E. Chapman, should be made a party to this action. She resides, out of this state, and has no property in it, and the court cannot get jurisdiction either of her person or her property. Besides, all of the personal property of the estate was bequeathed to the defendant Theophilus Chapman, and the same is primarily liable for the payment of claims against the estate, and is of ample value to pay this claim, if payment thereof be adjudged.
[626]*626Y. It is .claimed that there is a misjoinder of causes of action, in that a portion at least of the plaintiff’s claim did not .arise out of the sales of the land by the administrator under the license of the county court, on account of which the bond in suit was given. But we think the complaint shows that this position is not tenable. The administrator received $697 in all, $355 of which was the proceeds of the sales of land. It is a fair inference from certain averments in the complaint, .that the balance was received from sales of the personal estate. Such balance is $342. The debts and charges against the estate paid and directed tobe paid by the administrator, amount to $371.03. It was the duty of the administrator first to apply the proceeds of the personal estate to the payment of such debts and charges; and, in the absence of averment or proof on the subject, we must presume that he did so. It follows that the whole sum claimed in this action is part of the proceeds of such sales of real estate under the license.
YI. The objection that the complaint does not state facts .sufficient to constitute a cause of action, is disposed of by the views above expressed.
Upon the whole case, we are of the opinion that the demurrer should have been overruled.
By the Court.— The order of the circuit court sustaining the demurrer is reversed, and the cause remanded for further proceedings according to law.
On a motion for a rehearing, Messrs. Bushnell & Ciarle, for the respondent, argued, 1. That the original complaint con.tained all the material allegations of the amended complaint, and was demurred to upon the same grounds, and the questions of law raised by the present demurrer are res adjudicatae. Pierce v. Kneeland, 9 Wis., 30; Hill v. Hoover, id., 15 ; Dwight v. St. John, 25 N. Y., 203. 2. That the general rule that a joint demurrer of two or more defendants fails if a cause of action is stated against either of them, applies only to the ground “ that the [627]*627complaint does not state facts sufficient to constitute a cause of action” (Webster v. Tibbits, 19 Wis., 448 ; Willard v. Reas, 26 id., 544; Woodbury v. Sackrider, 2 Abb. Pr. R., 402; Peabody v. Ins. Co., 20 Barb., 339; People v. Mayor, etc., 28 id., 240); and that the objection to that ground of demurrer because the demurrer was joint, was not taken in the court below, and must therefore be regarded as waived, especially as by the practice of that court, if the objection had been taken there, an amendment would have been allowed immediately, without terms. 3. If Theoplvilus Chapman is liable upon the facts stated in the complaint, it is as legatee or devisee, and by virtue of the provisions of Tay. Stats., ch. 147. But the provisions of that chapter for a recovery by creditors against legatees (secs. 32, 33), clearly contemplate regular proceedings in the probate court to 'settle tbe estate, before suit brought; and they permit the creditor to recover only “ the value of any assets that may have been paid by any executor or administrator ” to the legatee or legatees. The complaint shows that there was no administration, and consequently that nothing was paid to defendant Chapman by an executor or administrator. -The complaint does not show that the deceased testator did not leave other lands than those in Wisconsin and Indiana ; and if other land descended, they are liable for the testator’s debts before bequests or devises. Tay. Stats., 1209, § 33; 4 Bac. Abr., 118. Under secs. 38, 39, 62, 63, 65 of ch. 147, Tay. Stats., it is plain that defendant Chapman is not liable as devisee, upon the allegations of the complaint, because it does not appear that “ the personal assets, and the real estate of the testator, descended to his heirs, were insufficient to discharge ” the debts ; nor does it appear “ that after due proceedings before the proper county judge, and at law, the creditor has been unable to recover such debts or some part thereof from the personal representatives of the testator, or from his next of kin, or legatees, or from his heirs.” On the contrary the complaint shows that the personal assets were sufficient to pay this debt, and that [628]*628no “ due proceedings ” have been bad ; -while it does not 'show whether or not any real estate descended to the heirs. As for sec. 61, ch. 101, Tay. Stats, (p. 1236), it clearly undertakes to provide an action only after the appointment and qualification of an executor or administrator. The reason for it is obvious.
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The following opinion was filed at the January term, 1873.
Lyon, J.
In the absence of any argument or brief on behalf of the defendants, it is not deemed necessary to enter into any extended discussion of the questions presented for determination by the demurrer to the complaint. We shall therefore add but little to a mere statement of the conclusions to which we have been impelled by the investigation of those questions, and in doing so we will not attempt to follow the order in which they are presented in the demurrer.
I. The action is not barred by the statute of limitations. It is brought upon a sealed instrument, and the cause of action accrued in this state March 7, 1854, which is less than twenty years before the action was commenced. Tay. Stats., [625]*6251524, § 15. Indeed it was commenced less than twenty years after the bond was executed.
II. No other ground of demurrer assigned is available to the defendant Colter, and, the action not being barred by the statute of limitations, beyond all question the complaint states a cause of action against him. • The rule is, that a joint demurrer by two or more defendants, on the ground that the complaint does not state a cause of action, is bad, if the complaint shows a cause of action against one of them. Webster v. Tibbiis. 19 "Wis., 438. Hence this demurrer should have been overruled for that reason, if for no other.
III. We find nothing in the statute which requires that administration should be had of the estate of James E. Chapman before an action can be maintained, by a creditor of the estate against the heirs, legatees or devisees of the deceased; and the very able argument of the learned counsel for the plaintiff has satisfied us that there is no rule of law which prohibits such an action in a case like this, before administration. The complaint shows that all debts and claims against James E. Chapman, or against his estate, have been paid and discharged, except the claim for which this action was brought, and all of his property, or at least, all of his property in this state, both real and personal, has gone into the hands of his devisee and legatee, Theophilus Chapman. What necessity can there be, then, for incurring the trouble, delay and expense of an administration of the estate ?
IY. We can perceive no good reason why Mary Elizabeth Burns, the other devisee named in the will of James E. Chapman, should be made a party to this action. She resides, out of this state, and has no property in it, and the court cannot get jurisdiction either of her person or her property. Besides, all of the personal property of the estate was bequeathed to the defendant Theophilus Chapman, and the same is primarily liable for the payment of claims against the estate, and is of ample value to pay this claim, if payment thereof be adjudged.
[626]*626Y. It is .claimed that there is a misjoinder of causes of action, in that a portion at least of the plaintiff’s claim did not .arise out of the sales of the land by the administrator under the license of the county court, on account of which the bond in suit was given. But we think the complaint shows that this position is not tenable. The administrator received $697 in all, $355 of which was the proceeds of the sales of land. It is a fair inference from certain averments in the complaint, .that the balance was received from sales of the personal estate. Such balance is $342. The debts and charges against the estate paid and directed tobe paid by the administrator, amount to $371.03. It was the duty of the administrator first to apply the proceeds of the personal estate to the payment of such debts and charges; and, in the absence of averment or proof on the subject, we must presume that he did so. It follows that the whole sum claimed in this action is part of the proceeds of such sales of real estate under the license.
YI. The objection that the complaint does not state facts .sufficient to constitute a cause of action, is disposed of by the views above expressed.
Upon the whole case, we are of the opinion that the demurrer should have been overruled.
By the Court.— The order of the circuit court sustaining the demurrer is reversed, and the cause remanded for further proceedings according to law.
On a motion for a rehearing, Messrs. Bushnell & Ciarle, for the respondent, argued, 1. That the original complaint con.tained all the material allegations of the amended complaint, and was demurred to upon the same grounds, and the questions of law raised by the present demurrer are res adjudicatae. Pierce v. Kneeland, 9 Wis., 30; Hill v. Hoover, id., 15 ; Dwight v. St. John, 25 N. Y., 203. 2. That the general rule that a joint demurrer of two or more defendants fails if a cause of action is stated against either of them, applies only to the ground “ that the [627]*627complaint does not state facts sufficient to constitute a cause of action” (Webster v. Tibbits, 19 Wis., 448 ; Willard v. Reas, 26 id., 544; Woodbury v. Sackrider, 2 Abb. Pr. R., 402; Peabody v. Ins. Co., 20 Barb., 339; People v. Mayor, etc., 28 id., 240); and that the objection to that ground of demurrer because the demurrer was joint, was not taken in the court below, and must therefore be regarded as waived, especially as by the practice of that court, if the objection had been taken there, an amendment would have been allowed immediately, without terms. 3. If Theoplvilus Chapman is liable upon the facts stated in the complaint, it is as legatee or devisee, and by virtue of the provisions of Tay. Stats., ch. 147. But the provisions of that chapter for a recovery by creditors against legatees (secs. 32, 33), clearly contemplate regular proceedings in the probate court to 'settle tbe estate, before suit brought; and they permit the creditor to recover only “ the value of any assets that may have been paid by any executor or administrator ” to the legatee or legatees. The complaint shows that there was no administration, and consequently that nothing was paid to defendant Chapman by an executor or administrator. -The complaint does not show that the deceased testator did not leave other lands than those in Wisconsin and Indiana ; and if other land descended, they are liable for the testator’s debts before bequests or devises. Tay. Stats., 1209, § 33; 4 Bac. Abr., 118. Under secs. 38, 39, 62, 63, 65 of ch. 147, Tay. Stats., it is plain that defendant Chapman is not liable as devisee, upon the allegations of the complaint, because it does not appear that “ the personal assets, and the real estate of the testator, descended to his heirs, were insufficient to discharge ” the debts ; nor does it appear “ that after due proceedings before the proper county judge, and at law, the creditor has been unable to recover such debts or some part thereof from the personal representatives of the testator, or from his next of kin, or legatees, or from his heirs.” On the contrary the complaint shows that the personal assets were sufficient to pay this debt, and that [628]*628no “ due proceedings ” have been bad ; -while it does not 'show whether or not any real estate descended to the heirs. As for sec. 61, ch. 101, Tay. Stats, (p. 1236), it clearly undertakes to provide an action only after the appointment and qualification of an executor or administrator. The reason for it is obvious. The appointment and qualification of an executor or administrator debars creditors from having an administrator of their own choice appointed. The neglect of an executor ór administrator to give creditors an opportunity to prove their claims, evinces such hostility toward them that in such case the law gives a right of action directly against the personal representative; .and if he has delivered assets to heirs, devisees or legatees, then it gives such action against them also. True, the creditor might himself have commissioners appointed, but be would still be largely subject to the movements of the personal representative, and would be greatly injured by delays or opposition caused by his hostility. Hence this statute gives a summary remedy in the circuit court. After a brief review of the' com.mon law on the subject, counsel argued that our statute (Tay. Stats., ch. 147), has revised the whole matter of the liability of the next of kin, legatees, heirs and devisees for debts of their decedent, and has thus repealed the common law, at least as applicable to a case like this. Smith’s Com., 904, § 78. Each modern change of the law upon this subject both in our own country and in England, so far as we have been able to ascertain, has been an advance in the direction of equality among creditors : and to insure this it has been held, as by the courts of Massachusetts and-New York, that a creditor must first exhaust his remedy in the probate court before he can sue the heir. The statute of New York provided that “ no suit shall be brought against the heirs or devisees of any real estate in order to charge them with the debts of the testator or intestate within three years after the granting of letters of administration,” etc. .2 R. S. of N. Y., 1828, p. 109, § 53. It does not prohibit the .bringing of such actions before administration granted. Yet [629]*629in tbat state tbe creditor must first exhaust bis remedy in tbe probate court before proceeding against tbe beir (Mersereau v. Byeress, 3 N. Y., 261; Stuart v. Kissam, 11 Barb., 271, and cases there cited), or be must show tbat tbe deceased left no assets in tbe state at tbe time of bis death, and none have come into any county since, and therefore be would be remediless there. Hollister v. Hollister, 10 How. Pr. R., 532. If Chapman may be sued in this case before administration because tbe common law gave such action, then all tbe rights and privileges of plaintiffs in such actions at tbe common law must follow. Our statute relating to tbe order of tbe payment of debts when assets are insufficient, only applies to assets received by an executor or administrator; and tbe order of preference given in cb. 147 applies only to debts recoverable as provided in that chapter. Tay. Stat., 1233, § 38, and 1723, §43. Tbe first judgment against next of kin, beir, legatee or devisee must then be first paid in full, even to tbe exclusion of other creditors in equal degree. 2 Wms. on Ex., 887; 2 Black. Com., 512 and note (36). Such action might be brought immediately after tbe ancestor’s death (Sneed v. Phillips, 2 J. J. Marsh., 131; Waller’s Ex'r v. Ellis, 2 Munf., 88); and thus one creditor might swallow up a whole estate to tbe exclusion of all others. And so creditors might sue tbe beir immediately after bis ancestor’s death, or at any time afterwards within tbe statute of limitations, even though tbe personal representatives of tbe deceased were in tbe mean time using all diligence to settle the estate in tbe probate court
Barber & Clemenison, contra.
Tbe appeal was finally disposed of at tbe June term, 1873.
This cause was decided at tbe last term without tbe benefit of an argument on tbe part of tbe defendants. Tbe learned counsel for the defendants having been delayed in tbe preparation of an argument by sickness, tbe writer assured him tbat it was not probable tbat the cause would be reached in tbe [630]*630consultation room before May, and that if his argument were then in our hands it would be in time. The cause was reached at an earlier date, and decided, the above conversation having been entirely forgotten. But we have carefully reviewed the whole case on this motion for a rehearing; and, while we have reached the conclusion that it was correctly decided in the first instance, we think it due to the counsel, to his clients, and to the court, that we give, briefly, our views upon the principal points urged in support of the motion for a rehearing of the cause.
I. A demurrer to the original complaint, setting forth various grounds of demurrer, one of which was that the complaint did not state facts sufficient to constitute a cause of action, was sustained by the court. The plaintiff acquiesced in such ruling, and amended his complaint. The defendants interposed substantially the same demurrer to the amended complaint, and this appeal is from the order sustaining the last demurrer. It is now claimed that the complaint was not materially amended, and that the decision of the court on the first demurrer is res adjudicóla on the question of the sufficiency of the amended complaint. An examination of the original and amended complaints discloses the fact that the averment in the latter that the defendant Chapman is the devisee of all the real estate of James E. Chapman situated in this state, is not contained in the original complaint. There are other points of difference between the two complaints, but it is not necessary to state them in detail. The demurrer to the original complaint may have been sustained because of the absence of these averments. The record does not inform us of the grounds upon which it was sustained. The complaint having been thus amended and changed, we are quite unable to perceive how the doctrine of res adjudicata can be applicable to the amended complaint. Indeed, it is only claimed to be applicable on the assumption that the two pleadings are alike. This hypothesis being erroneous, it is unnecessary to the decision of the case to consider and [631]*631decide what would be the rule of law, were the hypothesis' correct.
II. The counsel for the defendants seems to think that the-demurrer to the amended complaint was sustained only as to the defendant Chapman. This is a mistake. The demurrer was jointly interposed by both of the defendants, and was sustained generally — that is, it was sustained in favor of both of' them; and should final judgment be rendered on it, the same' will be for a dismissal of the complaint, with costs, in favor of both. This alone is an error for which the order appealed from must necessarily be reversed. It is not a mere technical error, made such by rules of practice, but it is a substantial' one, in that it is adjudged that no cause of action against the' defendant Colter is stated in the amended complaint, when in fact a sufficient cause of action against him is therein stated.
III. It will be observed that the amended complaint fails to aver that all of the real estate of which James E. Chapman-died seized, was disposed of by his will. It only avers that all such real estate in Wisconsin was so disposed of. He may have left real property in some other state or country, which, upon his death, descended to his heirs. It is claimed by the learned counsel for the defendants, in a very ingenious argument founded upon the several provisions of the statute relating to the subject, that if James E. Chapman left any real estate not disposed of by his will, the same is primarily liable for his debts, and that the plaintiff must exhaust his remedy against such real estate before he can maintain an action against the defendant Cha'pman as a legatee or devisee. If this is a correct view of the law, it would seem to follow that in- order to state a cause of action against the defendant Chapman, the plaintiff should aver that the testator left no real estate undis-posed of by his will, or, leaving real estate so undisposed of, that it is insufficient to satisfy the plaintiff’s demand.
Without discussing in detail the positions contended for in the argument, I will proceed to state my views as to the con[632]*632struction wbicb should be given to the several statutory provisions applicable to the case. Ch. 97 of the Revised Statutes, entitled “ Of wills of real and personal estate,” contains the following provisions:
“ SECTION 31. If the testator shall make provision by his will, or designate the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they shall be paid according to the provisions of the will, and out of the estate thus appropriated, or so far as the same may be sufficient.
“ Section 32. If the provisions made by the will, or the estate appropriated, shall not be sufficient to pay the debts, expenses of administration and family expenses, such part of the estate, real or personal, as shall not have been disposed of by the will, if any, shall be appropriated, according to the provisions of the law for that purpose.” (.Tay. Stats, 1208-9, §§ 32 & 33.)
It is argued that by virtue' of these provisions, if lands not devised descended to the heirs, they are liable for the debts of the testator to the extent of the value of such lands. It seems to me that no such result necessarily follows. This statute does not make the real and personal estate not disposed of by the will primarily liable for the debts of the testator, but only provides that the same shall be appropriated to the payment of such debts according to the provisions of law. It establishes the ultimate liability, but does not enact in what cases the liability shall become absolute. To ascertain the conditions which render a legatee or devisee liable for such debts, and the nature and extent of his liability, we must look for other provisions of the statute ; and those we ñnd in ch. 147, R. S., in the subdivision entitled, “ Of proceedings against next of kin, heirs, legatees and devisees, in certain cases.” Sec. 28 is as follows : “ Actions by creditors of any deceased persons to recover the value of any assets that may have been paid by any executor or administrator to any legatees of their testator, [633]*633may be brought against all of such legatees jointly, or against any single legatee separately.” Sec. 29 enacts that “In such action the plaintiff shall not be entitled to recover unless he shows, 1. That no assets were delivered by the executor or administrator to the next of kin; or 2. That the value of such assets has been recovered by some other creditor; or 3. That such assets are not sufficient to satisfy the demand of the plaintiff.”
A literal construction of this statute is contended for, and it is claimed that no action can be maintained under it against a legatee unless he has received assets from an executor or administrator. I am unable to perceive any good reason why a legatee should be liable to an action by a creditor of the testator on account of assets so received, and not. be so liable, if, as in this case, he took possession of the assets bequeathed to him without the intervention of the personal representative. I can not believe that the statute contemplates any such result The form of expression used in the statute may have been employed to indicate that it referred to those assets which go to the personal representative, that is, personal assets, and not to real assets, which descend to the heirs or devisees. However this may be, it seems to me that it would do violence to the spirit of the statute to hold that the form of expression employed therein limits the right of action to cases where the assets were actually delivered to the legatee by the executor or administrator. Suppose the next of kin had received sufficient assets to pay the debts of the estate, but had not received them from the executor or administrator. Does any one believe that in such case an action could be maintained against the legatee because the plaintiff could show that the next of kin had not received assets from the executor or administrator ? Yet such would be the logical result of the construction contended for by counsel.
But we proceed to examine other provisions of the same chapter. Section 85 exempts an heir from liability for the [634]*634debts of his ancestor, unless it appear that tbe personal assets of the latter are insufficient to pay the same. The word “ heir,” as here used, clearly means a person to whom real estate of the ancestor has descended. A clear inference is also to be drawn from this section, that personal assets in the hands of a legatee are liable for such debts before the real property which .descended to the heir is liable therefor. Section 58 provides that a devisee shall not be liable for the debts of his testator, unless the personal assets of the estate and the real estate which descended to the heirs, are insufficient to pay the same, and then the devisee is only liable for the deficiency.
The foregoing statutory provisions are not applicable to cases in which the testator by his will appropriates certain of his property to the payment of his debts, unless the property so appropriated is insufficient for that purpose.
Erom these and other provisions of the statute, I deduce the following rules:
1. The debts of a deceased person are primarily payable out of the personal assets of his estate.
2. As between legatee and the next of kin, the latter are first liable for such debts to the extent of the value of the assets received by them, and the legatee is only liable for the deficiency, such liability being also limited by the value of the assets which have come to his hands.
3. In the absence of personal assets, the debts must be paid out of the real estate.
4. The rule between legatee and next of kin, with the limitations above stated, is applicable to devisee and heir — the latter being primarily liable for the debts, and the devisee being liable only for the deficiency.
In the light of these rules the problem under consideration is readily solved. The defendant Chapman is sued as legatee under his father’s will, for the only debt which exists against the estate of the testator. The amended complaint shows that such legatee has received all of the personal assets belonging [635]*635to tbe estate, and more than sufficient in value to pay tbe plaintiff’s demand. It therefore states a cause of action against tbe legatee, as such.
It is believed that the' other material points in tbe case are sufficiently discussed in tbe former opinion; and it is sufficient to say that we adhere to tbe views there expressed.
Tbe motion for a rehearing must be denied ; but, under tbe circumstances of this case, I think that no costs, except tbe fees of tbe clerk of this court, should be imposed.
By the Court — Ordered accordingly.