Chambers v. Davis

Judge Simpson

delivered the opinion of the court:

This case has been heretofore before this court, and the opinion then rendered is referred to for a general statement of the facts. It is reported in 15th B. Monroe, page 522.

On the return of the cause to the circuit court, an estimate was made of the rents of the land during the time it had been in the possession of the devisee for life, and the amount, which was ascertained to be four hundred dollars, was decided to be assets in the hands of the executor, and he was charged therewith in his executorial account.

The correctness of this decision is now presented for our consideration.

By the common law, the lands which descended to the heir were only liable for the specialty debts of the ancestor in which he expressly bound himself and his heirs. And if the heir, before an action brought against him, had sold and conveyed the lands, the obligee was without any remedy.

To correct this evil, and to prevent the wrong and injury done to the creditors by alienation of the lands descended, a statute was passed in the reign of William and Mary, by which it was enacted that the heir should be answerable for the value of the lands descended to him, and which he had sold and alienated before an action had been brought against him.

1. The statute of Kentucky of 1796, (1 Statute Law, 744,) is in substance the same as the statute of William & Mary Against, fraudulent devi« ses, and makes the heir liable lor the debts o.f the ancestor to the extent of the value of the’ lands he receives hy descent. & makes the devisee liable in the same’ manner as the heir-at-law. 2. But at common law the heir was only liable for the estate descended —he was not liable for the profits derived from it during the time he had it in possession, nor did ihe statute of William and Mary make him’ liable for profits received. (Bacon's Ab. 3, Title Heir ajul Ancestor, p. 463.) Nor dill our statute of 1796 — And as it only makes the devisee liable in the same manner ns the heir at la iv, a devisee for lile is not responsible for the profit! of land devised during the time it is held.

Before the passage of this statute, if the ancestor had devised his lands away, a creditor had no remedy against the devisee. But to prevent this injustice to creditors, it was enacted by this statute, thát all devises of lands, except for the payment of debts, or other liabilities of the testator therein enumerated, founded on a valuable consideration, should be deemed, as to creditors, to be fraudulent and utterly void, and of none effect. It was also enacted by it, that every devisee made liable by its provisions, should be liable and chargable in the same manner as the heir-at-law, notwithstanding the land devised should be aliened by him before the action was brought.

Our statute of 1796 on the subject of fraudulent devises, (1 Statute Law, 742,) is a substantial copy of the one above referred to, and makes the heir liable for the debts of the ancestor to the extent i f the value of the lands he acquires by descent, and. declares that .the devisee shall be liable and chargable in the same manner as the heir-at-law.

Other statutes have made the heir and devisee liable to the extent of the value of the estate descended or devised, for all the debts of the ancestor or testator, whether they be simple contract or specialty debts.

But the liability of the heir by the common law, was only for the value of the estate descended; he was not liable for the profits he derived from it during the time he had it in possession, nor did the foregoing statute of William and Mary make him responsible beyond the value of the land itself. (Bacon’s Abridgement, 3d vol., title Heir and Ancestor, page 463.)

As, then, the statute only makes the devisee liable and chargable in the same manner as the heir-at-law, it would seem to follow that the devisee for life should not, in this case, be made liable for the profits of the land during the time she had the possession of it.

3. A devisee Cf land takes a u absolute estate in the land devised, though the ancestor owes debts — not an equitable estate, subject to the debts the creditor of the devisor, or ancestor of the heir, has no lien on the land devised or descended. 4. By the Revised Statutes (paye 364,) the heir or devisee is made liable where the estate has been aliened before suit brought to re cover the debt of the ancestor or devisor, not only for the val oe of the land, but for interest thereon from the time of all nation. This case does fall under the provisions of the Revised Statutes. 5. An estate In remainder af ter the termination of a life estate, is not subject to sale under execution, to pay the debts of a testator during tfaci pendency of a suit to subject it to that purpose.

It might seem just and equitable to subject to ihe payment of the ancestor’s debts, not only the estate descended to the heir, but also the profits he had derived fro n it. The doctrine, however, is, that he takes an absolute title to the land, subject to be charged with the debts ; but the creditors have no lien upon it, ami he is only liable, for its value. (Wilson vs. Wilson, 13 Barbour's Rep. 252; 4 Kent's Commentaries, 420.)

The only liability on the devisee, is that which, the statute imposes, and as it is only for the value of the estate devised, she is not liable for the proti's during the time she has had the possession of the land. Consequently, the charge of four hundred dollars on that account, against the executor, was unauthorized and erroneous.

The liability of an heir, or of a devisee, where the estate descended or devised has been alienated before suit, brought, is enlarged by the Revised Statutes, and he is made liable not only for the value of such estate, but also for legal interest- thereon from the time of alienation. (Revised Statutes, page 364.) Whether, according to the spirit oí this act, the liability should he the same where there is no alienation of the estate, and t.he rents and profits' should be substituted in that state of case in place of the interest with which he would be chargable if an alienation were made, is a question we need not now decide, as this case has to be governed, not by the Revised Statutes, but by the pre-existing Jaw.

The estate in remainder could not be subjected to sale, for the payment of the debts of the devisees, during the pendency of this action, which was brought for the express purpose of subjecting it to the payment of the debts of the testator, so as to invest the purchaser with a valid title, but he would take it subject to the judgment in this case, being a pendente lite purchaser. The decision of the court below, therefore, that the sale and purchase under execution which was set up and relied upon, did not constitute any obstruction to a sale of the land in this action, was obviously correct.

It does not appear whether any of the articles of property which by the act of 1843 (Session Acts, 1842 -3, page 230,) were declared not to be assets in the hands of the executor, were charged against him in the settlement made out and reported by the commissioner in the circuit court, nor whether any such articles were received by the widow under the bequest to her, or were sold by the executor at the sale of the personal estate made by him. We cannot, therefore, decide that the executor was made liable for the value of any property which did not constitute assets in his hands for the payment of debts. But as the judgment has to be reversed on account of the charge for rents, this matter may be inquired into on the return of the cause to the court below.

As the cause is still pending in the circuit court, the court has power to give the plaintiffs a judgment for their costs, and also to order a sale of so much of the estate as would pay the executor the balance due to him. But still, as the amount for which the estate might sell was uncertain, we think that it should have been sold for the payment of the whole debt for which it was liable.

The other questions which have been made were virtually decided when the case was formerty before this court.

Wherefore, the judgment is reversed, and cause remanded for further proceedings and judgment in conformity with this opinion.