Fairfield v. Fairfield , 81 Mass. 596 ( 1860 )

Dewey, J.

That the plaintiff is entitled to this form of relief is obvious from the Rev. Sts. c. 70, § 16, and confirmed by the opinion of this court in the case of Wood v. Leland, 22 Pick. 505. The case of the plaintiff, as respects his being a creditor of the estate of Esdras T. Fairfield, and a creditor whose debt accrued at such time and under such circumstances as entitles him to relief under the Rev. Sts. c. 70, § 14, is fully shown by the recitals in his bill. The only further question, is whether he has also stated a case entitling him to make these defendants parties to such bill. The statute provides that the creditor may recover his demand in such case of the devisees and legatees under the will, each of whom shall be liable to the creditor to an amount not exceeding the value whether of real or personal estate which he shall have received. The defendants are alleged to be such devisees and legatees, and as such are before the court, which on a future hearing will decide the extent of their liability and the manner in which it shall be enforced. The bill, as amended, alleges that the personal property was insufficient to pay the debts, and that the debt of the testator, which the plaintiff has been obliged to pay, was charged by the will upon the real as well as personal estate. It also alleges that the devisees have assented to and adopted the provisions of the will, thus connecting them with the will as devisees, independently of the further ground relied upon, that such acceptance of a beneficial devise should be presumed, it not having been formally declined or now disclaimed.

The manner in which this claim is to be enforced, and the mode of ascertaining the extent of the liability of devisees holding legacies and devises like those in which the present defendants have an interest, will be a matter for future consideration in the further progress of this bill. Demurrer overruled.