Gaither & Warfield v. Welch's Estate , 3 G. & J. 259 ( 1831 )

Buchanan,. Ch. J.,

delivered the opinion of the court.

The petition of the appellants appears to have been dismissed by the Chancellor, on the ground that the judgménts at law obtained by William Gaither, against the administrator of Nicholas Welch, were conclusive evidence of a sufficiency of personal assets in the hands of the administrator, to satisfy both their claims; and therefore precluded their proceeding against the real estate of the deceased, which could not be subjected to the payment of their claims, except upon an insufficiency of personal assets, which, by reason of those judgments, they were not permitted to show. As between Gaither and the administrator, the judgments being absolute, do certainly amount to an admission of assets, and the enforcement of them could not be resisted on the ground of a deficiency of assets. But as between a creditor and the heirs at law, in a proceeding to subject the real estate to the payment of his debt, a judgment, though absolute, against an executor or administrator of the ancestor, does not, we think, so stand in his way, but that the creditor may be let in, to show a deficiency of personal assets: and if in this case, Gaither had shewn himself to be a creditor, he would, on proof of a deficiency of personal assets, have been entitled to come in among other creditors, for a just proportion of the surplus proceeds of the real estate of Nicholas Welch, remaining after satisfying the lien for which the land had been sold, under a former decree of the Chancellor. The judgments alone against the administrator of Nicholas Welch, exhibited in the petition, would not, it is true, have furnished any such evidences of debt, as against the heirs at law, as to entitle him to payment out of the surplus proceeds of the real estate, even if he had been permitted to prove a deficiency of assets : and at the time of the rejection of the petition, he had offered no other evidence of his claim. But the fund proceeded against, being already in court, under a sale before made, it was not indispensably necessary that full proof of his claim should have been exhibited with the petition; but if the petition had not been dismissed on another ground, that proof might have come in, in the further progress of the proceedings, under an order nisi on the heirs at law, on the principle of the rule that appears to have been adopted by the Chancellor, in the case of Fenwick and Bird vs. Loughlin and Hawkins, in the Court of Chancery, and which we think a convenient rule. With respect to Joshua Warfield, the ether petitioner, there is no objection to the character of the evidence exhibited with the petition, in support of his claim. But he is himself the administrator of Nicholas Welch, and by his own showing, by his several accounts as settled in the Orphans Court, there appears to be in his hands, assets'to a much larger amount than sufficient to satisfy his debt; and if there are no other subsisting, unsatisfied claims against the estate, or not to an amount exceeding, together with his, the amount of the personal assets remaining in his hands, there is no pretence for his going against the real estate. But if there is in fact, a deficiency of personal assets, to meet the subsisting claims against the estate, notwithstanding the judgments obtained by Gaither, the other petitioner, are conclusive against him, as between Gaither and himself; yet we think they have not the effect to preclude him from shewing such deficiency, in order to let in his claim against the proceeds of the real estate. It is our opinion, therefore, that the petition ought not to have been dismissed; but that the petitioners should have been permitted to show a deficiency of personal assets, by the admissions of the heirs at law, or as they could, if such was the fact, and an opportunity offered them of establishing their respective claims.

DECREE REVERSED.