Vincent v. Platt

5 Del. 164

• Court: Superior Court of Delaware
• Decided: July 5, 1849
• Status: Published

Opinion

By the Court :

Booth, Chief Justice.

By the common law, lands were not liable for the debts of deceased persons, unless the heir was bound fcr their payment, by the deed of his ancestor; and in such case, he was-bound only to the extent of the real estate which descended to him. The personal estate in the hands of the executor or administrator, was the fund for the payment of debts. In case of its deficiency, the creditors by simple contract lost their debts; because however great might be the value of the land, they could not have recourse to it. In this State, at a very early period under the Proprietary Government, the common law in this respect, was entirely changed. Laws were enacted, which made lands as liable for the payment of debts as chattels; and subjected them to be taken and sold upon execution process; or to be sold by executors and administrators for the debts of their decedents. It appears to have been the prac tice prior to the year 1720, for executors and administrators to have the lands of their testators or intestates appraised with the personal estate; and to account for their value, in the payment of the debts, or maintenance of the children of the deceased. By acts of the Colonial Legislature, passed in 1693, 1697 and 1700, (vol. 1, Delaware Laws, Appendix, 20, 24, 26,) it was expressly declared that all real and personal estate should be liable to be seized and sold by the executor or administrator of the deceased, by any lawful deed or conveyance duly executed, approved and acknowledged in open court; or by the judgment of a court of record; for the payment of the decedent’s debts. By subsequent acts, executors and administrators were restricted in the exercise of this power; and were prohibited from selling the land of their testators or intestates, unless an order of the Orphans’ Court was first obtained, upon exhibiting an inventory, and an account of the debts of the deceased; and showing that the personal estate was insufficient for their payment. It does not appear by any law on our statute book, until the act of 1829, (Dig. 234, see. 4,) that the executor or administrator was required to give security to pay the debts o.ut of the money arising from the sale, or to pay the surplus to the heir or devisee. The executor or administrator was the only person against whom suits were instituted for the recovery of debts due from the deceased. A judgment upon a verdict in such suits, or upon the confession of the executor or administrator, or upon the award of arbitrators, was a lien upon the lands of the testator or intestate; although at present, no judgment against an executor or administrator binds the .land, unless rendered upon a verdict, or upon the award of arbitrators appointed in the mode prescribed by the eleventh section of the act, on page 225 of the Digest. The land of the deceased, although it might be in the occupation of the devisee or heir, always was, and now is, a fund in the hands and under the control of the executor or administrator, for the payment of debts; and until payment of them be made, neither the devisee nor heir can have any part of the real estate. By the act for taking lands in execution for the payment of debts, passed in 1728, and now in force, (Dig. 204,) all lands and tenements, where no "sufficient personal estate can be found, were made liable to be seized and sold upon judgment and execution. By the sixth section, if the sale of the lands exceeds the debts or damages and costs, the sheriff must render the overplus to the debtor or defendant; and then, and not before, he shall be dis charged thereof, upon the record of the court to which he makes return of the execution. The land' being thus converted into money, the surplus becomes personal estate. To whom then, is this surplus to be paid ? To the executor or administrator, in whose hands it is answerable for the payment of debts ; or to the devisee or heir, who is not entitled to an appropriation of any part, either of the real or personal estate, until the debts of the decedent have been paid ? If the sheriff pays the devisee or heir, the payment is in opposition to the express words of the sixth section of the act of assembly, and cannot discharge the sheriff; because the devisee or heir is neither the debtor, nor the defendant. The heir may not be known; he may be out of the State; and in many cases it might be difficult to decide who is entitled as heir. But the executor or administrator is always ascertained by the record; is the only person entitled to the personal estate; and is bound to apply it in payment of debts. Under our practice, he is the only person against whom a suit is usually brought for claims against the estate; and although an action may perhaps, under some circumstances, be maintained against the devisee or heir alone, for the debt of the testator or intestate ; such an action has been seldom, if ever, instituted. Upon the insufficiency of the personal estate, the law converts the real into personal estate, for the purpose of paying debts. When that purpose, is accomplished, any surplus that may remain, will belong to the person who was entitled to the land, at the time of the conversion. But whether there will be any surplus after the payment of the debts, cannot be ascertained, until the executor or administrator has made a final settlement of his administration accounts ; and until then, neither the heir nor devisee is entitled to the money. It is urged in the argument of the present case, on behalf of the plaintiffs, that as the executor or administrator has not given security for the surplus arising under an execution, it ought not to be paid into his hands, because it may be lost by his insolvency, or be squandered. The same objection applies with equal force to the devisee, and to the heir. If any such damage is to be apprehended by payment to the executor or administrator; or if the debts of the deceased have been discharged ; the devisee or heir, or if such devisee or heir be under the disability of infancy or coverture, the guardian or husband, ought to give notice in writing to the sheriff, not to pay the surplus to the executor or administrator ; but to bring it into court. Upon a proper case being made out, the court would require the executor or administrator to give sufficient security; or if it clearly appeared, that all the debts of the deceased had been discharged, would direct the surplus to be paid to the devisee or heir; or, if there were even a remote probability that any debts remained unpaid, would require him to give security.

Mr. Bayard, for the heirs. Mr. Gray, for the sheriff.

In the case before the court, it appears that the executor has passed a further administration account before the register of Hew Castle county, in which he has charged himself with the surplus received from the sheriff. The plaintiffs have the right to apply to the register to order the executor to give further security. It appears that they permitted the sheriff to pay the surplus to the executor, without giving him notice or making an objection; and nothing is shown to this court, to create even a doubt, as to his ability to discharge his trust; or as to his fidelity.

The Court

are of opinion, that the payment made by the defendant, as sheriff, to the executor of Frederick Ford, deceased, is a legal payment; and therefore, that judgment be rendered for the-defendant.