Executors of Walker v. Campbell , 8 N.C. 304 ( 1821 )

No further evidence was offered on the trial to show the liability of Campbell's executor, but the will of Orme was introduced to prove a revival of the remedy against him and to show that the action as to him was not barred by the statute. Orme died in July, 1818, having first duly made his last will and testament, bearing date 20 June, 1818, which contains the following clause, viz: "I will and direct that my executors hereinafter named sell all my negro slaves except Katy and Maria and her child, and upon such credit as they may deem advisable, and that with the proceeds thereof, after paying my debts, that they redeem my bank stock, or such amount thereof as the said proceeds may enable them." The will was regularly admitted (305) to probate, and the executors therein named duly renounced the execution of said will, and administration with the will annexed was granted to the defendant Green. The writ in this case was issued 2 February, 1820. The jury found that the testator of the defendant, M. Campbell, did not assume within three years, and they further found that the testator of the defendant, Green, did assume within three years. On the part of the defendant Green a motion was made for a new trial, which was refused, and judgment was rendered in pursuance of the verdict, whereupon Green appealed. As the date of Orme's endorsement is not specified it must be understood to have been made on the same day with the note, viz, 16 April, 1812. The note became due 16 June of the same year, when the statute began to run and had taken away the remedy in 1815, three years before the death of Orme. His will directs his executors to sell certain negroes, and with the proceeds to redeem his bank stock after paying his debts; and the inquiry is whether this debt is revived by such a direction. I consider the law to be clear that the debt is not thereby revived, but that the remedy is entirely gone. The utmost extent to which any of the cases have gone has made debts payable only when lands have been devised in trust for that purpose; and as lands in England are not liable for simple contract debts when they are made chargeable with all debts, the executors who are directed to pay them are made trustees for that purpose. It is there appropriating a fund for the payment of debts which is not liable by law; but it may well be doubted whether such a doctrine if well established by the authorities would be applicable here, where lands are liable to the payment of all debts, after the personalty is exhausted. In this State as well as in England the personal estate is the primary and natural fund for the payment of debts, a fund which the (306) testator cannot exempt as against a creditor, though he may against the devisee of the land, by making that a fund for the payment of his debts. I should not hesitate to conclude that a bequest of personal estate in trust to pay debts would not revive a debt barred by the statute for the reason given in 3 P. Wms. 90, in notes; and in this State the same result would follow in relation to a bequest and devise of personal and real estate. But the only question now to be decided relates to a bequest of chattels, and it will therefore be sufficient for the purposes of this case to show that in all the authorities relied upon to establish the general position the trust was created of lands. The anonymous case in 2 N.C. 243, does not state what species of property was devised, and the cases it refers to in 1 Salk., 154, 2 Vern., 141, and 2 P. Wms., 373, are all cases of the devises of lands. In the last case from P. Williams, of Blakewayv. Ld. Strafford, the statute of limitations was pleaded to a bill to have the benefit of a devise in trust for the payment of debts, and the plea was overruled; but this decree was reversed in the House of Lords, who ordered the plea to stand for an answer (3 Bro. P. C., 305). There is a dictum of Lord Mansfield (in Cowp., 548) very much in favor of the doctrine contended for by the plaintiff, but there is reason to believe that it is very far from being settled. For when the case from 2 P. Williams was cited in proof of the position insisted on the Chancellor of Ireland doubted if there was such a determination as is there reported, and stated that a devise in trust for the payment of debts does not prevent the setting up the statute if it had run before the death of the testator; for if the statute has run in the lifetime of the testator the debts are presumed to be paid (1 Scho. and Lef., 110). The case before us, however, is not a devise in trust for the payment of debts, but simply a direction to the executors what they are to do with the proceeds of the surplus of slaves after the debts are paid. (307) The will has declared in relation to the debts what the law would have said without it, that they must be paid out of the personalty in the first place. The judgment must consequently be reversed and a new trial granted.