Peeples v. Horton , 39 Miss. 406 ( 1860 )

Handy, J.,

delivered the opinion of the court:

The bill in this case appears to be insufficient in the following particulars:

1. The judgment under which the slaves held by the complainant were sold was against Wiley Y. Grinstead, and was paramount to the right of his widow to whom he bequeathed the slaves, held by the complainant, and which were left by her in her will to the complainant. . All his property was liable to the execution in the hands of his widow; apd the execution creditor had the right to levy upon any part of it, regardless of the dispositions she bad made of it in ber will. If tbe execution was levied for tbe most part upon tbe slaves wbicb sbe bad bequeathed in ber will to tbe complainant, it would not create any right in tbe complainant to call upon tbe other persons who might have received legacies under ber will to contribute. All tbe legatees bad separate and independent rights, and tbe legacy of each was alike liable to tbe execution, without priority or equitable exemption; and it was simply a misfortune that a'judgment wbicb was paramount to all their rights was levied of tbe slaves left to one of them, to tbe exemption of those left to others in tbe will of Mrs. Grinstead. The doctrine of marshal-ling assets is not applicable to such a case.

2. But if the judgment bad been against Mrs. Grinstead and levied mostly upon tbe property of tbe complainant derived from ber will, this bill could not be maintained for contribution against tbe other legatees. Eor if ber estate was solvent, independent of tbe legacies left these parties, they were all entitled to tbe legacies they received, and are not liable one to another for contribution from their particular legacies, because the executor has committed a devastavit and not applied tbe assets in bis hands to tbe payment of the debt of tbe estate. Under such circumstances, they would not have been liable at tbe instance of the executor to suffer an abatement of their respective legacies upon bis demand upon them to pay the debt against the estate; but he would be liable for it as upon a devastavit. Toller on Exors. 341. And there is no precedent for the doctrine that, after payment in such a case, they would be accountable as between each other for contribution, after having paid tbe debt by means of their legacies.

But tbe bill does not allege that tbe estate of Mrs. Grinstead was insufficient to pay tbe debts, apart from tbe legacies left in ber will to these parties. And if, under any circumstances, tbe bill could be maintained — as we think it could not be — it is very clear that there could be no pretence for maintaining it against tbe co-legatees of tbe complainant, without an allegation that there were not assets left by Wiley T. Grinstead and by his widow sufficient to pay tbe debt, apart from tbe legacies left by the will of Mrs. Grinstead to these parties.

Decree affirmed;