Wambaugh v. Gates ( 1847 )

This was a bill filed in the late Court of Chancery by Wambaugh, against the defendants as heirs, devisee and surviving executor of Jonathan Boyer, deceased; and sought to satisfy the amount of a judgment he had obtained against the executors of Boyer, out of real estate which was chargeable by the will of Boyer with certain legacies, and which real estate had been transferred by the devisee previous to the recovery of the judgment.

The principal point in the case, decided by the chancellor, was, that the complainant was bound, under the pleadings and proofs exhibited in the case, to proceed against the surviving executor personally, for the satisfaction of his debt, before lie could resort to the interests of the legatees in the real estate upon which their legacies were a lien, if under the circumstances that interest could be reached in any way—the property having been conveyed by the devisee previous to obtaining the judgment. A decree was made in favor of the complainant against the surviving executor personally, and a reference ordered. There was a question in relation to the proper parties to the suit. (Reported, 11 Paige, 505.)