[335] they are not trusted with it as executors. 1 Roll's Abr. 920. That is, it shall not be assets at law, but it shall be assets in equity. 1 Abr. Cas. Eq. 141. (e) So land articled by the testator in his lifetime to be sold, is as 1 Salk. 154. money. If there is a mortgage for years (though never so many), this is assets at law: because the whole interest is not gone from the mortgagor, the reversion is fee being left in him: but if it is a mortgage in fee, it is only assets in equity, because the legal estate is gone out of the obligor. Plunket and Penson, Apr. 3. 1742. If there is a mortgage in fee, and two descents cast, and there is more due on it than the value of the land, and though the mortgagor says he will not redeem; yet it shall go to the executor, and not to the heir, the equity of redemption not being foreclosed or released. Taber and Grover, M. 1699. 2 Vern. 367. But if a mortgagee in fee enters for a forfeiture, and after some years' enjoyment absolutely sells the land to J. S. and his heirs; this estate shall not be looked upon as a mortgage in the hands of J. S. but shall go to his heir, and not to his executor. Cotton and Isles, M. 1684. 1 Vern. 271. A man having several mortgages, one in fee, on which he entered for a forfeiture, devised those lands which were mortgaged in fee to his two daughters and their heirs, and the mortgages to them, their executors, and administrators. One of the daughters died her share of the lands which were mortgaged in fee, shall go to her heir, and not to her executors; for it was the testator's intent that those lands should pass as a real estate, though between him and a mortgagor, they were but a mortgage. Noys and Mordaunt, H. 1706, 2 Vern. 581. If the heir of the mortgagee forecloses the mortgagor, yet the land shall go to the executor, unless the heir thinks fit to pay him the mortgage money; and then he may have the benefit of the mortgage. 2 Vern. 67. If the lands are devised to one for life, remainder to another in fee, and the lands are charged with the payment of a sum of money, either by a former devise, rent-charge, or mortgage; the (e) The court of chancery leans to construe assets equitable rather than legal; because in the former case the debts are paid pari passu, being equal in conscience, whereas in the latter, they are paid in a course of administration. Therefore, where an executor is also trustee for the payment of debts, the assets are equitable, whether lands are devised to him to sell or he have only a power to sell. Lewin v. Okely, 2 Atk. 50. Hargrave v. Tindal, 1 Bro. C.C. 136. n. Silk v. Prime, 1 Bro.C. C. 138. n. Newton v. Bennet, Ib. 135. Batson v. Lindegreen, 2 Bro. C. C. 94. [A charge for payment of debts makes equitable assets. Bailey v. Ekins, 7 Ves. 319. See infra, 25. p. 357.] tenant for life shall contribute and pay a proportionable part of And in the case of Cornish and Mew, H. 27 & 28 C. 2. it was decreed, that the tenant for life should contribute one third, and he in remainder two thirds to redeem. 1 Ch. Ca. 271. The same day in another cause, where a jointress was of lands mortgaged, it was decreed, that the jointress paying the mortgage, should hold over till she and her executors were repaid with interest. Bertue and Style, 1 Cha. Ca. 271. Also where the mortgagee devised the mortgaged lands to A. for life, remainder to B. in fee, and the mortgagor redeemed the land: it was decreed that A. should have one-third, and B. twothirds of the mortgage money. Brent and Best, M. 1682. 1 Vern. 70. Lands in mortgage are devised to A. for life, remainder to B. in fee. A. dies; and a bill being brought against his executors, it was held, that though A. in his lifetime might have been compelled to contribute one-third towards payment of the mortgage, in respect of his estate for life; yet his executor shall be obliged to contribute only in proportion to the time that A. his testator [ 336 ] enjoyed it. Clyat and Batteson, T. 1686. 1 Vern. 404. When upon a mortgage, money is made payable to the heir or executor; there, before the day, or at the day of payment, the mortgagor hath election to pay it, to which he pleases; but after the day of payment is over, and the mortgage forfeited by law; though equity doth give the mortgage relief, so as upon the payment of the money, he shall have his land, yet equity will not revive the election of the mortgagor to pay it to the heir or executor, but then he shall be forced to pay it to the executor, because it came out of the personal estate of the testator, and thither it shall return. But if in the mortgage, neither heir nor executor is mentioned; then after the death of the mortgagee, the law determines it to be paid to the executor. 2 Freem. 20. If a man is seised of an advowson in fee, and the church doth become void; the void turn is a chattle: and if the patron dieth before he doth present, the advowson doth not go to his heir, but to his executor. Wats. c. 9. If the grant of the next avoidance be to one, his heirs and assigns; yet it is but a chattel, and shall go to the executors: for where the thing itself is a chattel, the word heirs shall not make it an inheritance. Wats. c. 10. M. 4 G. 2. Robinson and Tonge. Decreed, that an advowson in fee, is assets in the hands of the heir, for payment of debts. And the decree was affirmed in the house of lords. Stra. 879. 3 P. Will. 399. And in the case of Westfaling and Westfaling, Mar. 5, 1746; lord Hardwicke decreed, that an advowson in fee in gross, is as sets by descent, to satisfy specialty debts; and as to an advowson appendant to a manor, he said there could be no doubt, because the manor itself being assets, what is appendant must be assets likewise. 3 Atk. 465. In the case of Oldham and Pickering, M. 8 W. it was adjudged, that an estate pur autre vie, although it be assets (by the statute of frauds and perjuries) for the payment of debts; yet it is not distributable, nor subject to the payment of legacies. 2 Salk. 464. L. Raym. 96. But by the statute of the 14 G. 2. c. 20. Whereas doubts have arisen on the said statute of frauds and perjuries, where no devise of estates pur autre vie hath been made, to whom the surplus of such estates, after the death of such deceased owners thereof are paid shall belong, it is enacted, that such estates pur autre vie, [337] in case there be no special occupant thereof, of which no devise shall have been made according to the said act, or so much thereof as shall not have been so devised, shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. If an executor has a lease for years of land, of the value of 201. a year, rendering rent of 10l. a year; it is assets in his hands only for 101. over and above the rent. Cro. El. 712. If an executor renew, he shall account for the new lease as well as the old, for the benefit of the creditors. 2 Cha. Ca. 208. Assets in Ireland are assets in England: and so it hath been resolved, that if the executor hath goods of the testator in any part of the world, he shall be charged in respect of them. Jac. 55. 6 Co. 46. Cro. So an estate in the plantations is testamentary, and assets to pay debts. 2 Ventr. 358. Bonds and Specialties are no assets, until the money is paid. 1 Ventr. 96. (g) If an executor recovers damages in trespass for goods taken away in the life of the testator; this (when recovered) shall be assets: because he recovers it as executor. 1 Roll's Abr. 920. If an executor recovers (as executor) things in chancery by equity; these things so recovered shall be assets. 1 Roll's Abr. 920. A debt due from an executor to a testator, is assets in equity to pay legacies. 3 Cha. Ca. 89. The interest which a master hath in a servant is not assets in the hands of an executor; for a servant whose master is dead, is legally discharged, and is not servant either to the heir or executor; but meet and honest it is, that one of them continue him in service, till a fit time of providing for him a new master; and fit for him, not to depart suddenly. Went. 55. (g) A Power unless executed is not assets for debts. 7 Ves. 499. But the interest which one hath in an apprentice, is a chattel personal, and shall go to the executors. Law of Test. 378, 379. Went. 55. 2 Bac. Abr. 416, 443. T. 17. C. 2. Walker and Hall. An action was brought against the executor, upon the covenant of the testator to teach an apprentice his trade; and after verdict for the plaintiff, it was moved in arrest of judgment, that this covenant was personal to the testator, and did not oblige the executors, but only obliged the master during his life, to teach the apprentice. But by the court: it obliged the executors also, and they ought to see the apprentice taught his trade; and if they be not of the trade, they ought to [338 ] assign him to another that is of the trade, so that he may be taught according to the covenant. And judgment was given for the plaintiff. 1 Lev. 177. The interest in the liberty of a prisoner in execution for debt is a chattel personal, and shall go to the executors. Law of Test. 378. 2 Bac. Abr. 416. If an executor puts in suit a bond of 100l. for performance of covenants, and the parties submit to an award, and it is awarded that the obligor shall pay 70l. in full satisfaction, and that the executor shall release, which is done accordingly; it is said, that the executor shall be taken to have assets to the value of the whole 1007.: and though by the award he was compelled to release, it was his own act to submit to the arbitrament. 3 Leon. 53. (h) A reversion expectant upon an estate for life, is assets in the hands of the heir: but the creditor cannot compel the heir to sell it, but must wait till it falls. 1 Abr. Eq. Cas. 275. 9. If there be a debt due to the king, equity will order it to be paid out of the real estate, that the other creditors may have satisfaction for their debts out of the personal estate. 1 Vent. 455. A mortgage is a charge upon the personal estate, as well as upon the lands mortgaged; and the personal estate is primarily liable for a mortgage is a general debt, and the land is only as security. 1 Atk. 487. If one dies indebted by mortgage and simple contract, and one of the simple contract creditors gets judgment of assets when they shall happen, and the executor applieth the assets to pay off the mortgage; the simple contract creditors shall stand in the place of the mortgagee, as to what he hath exhausted out of (h) If an arbitrator, under a reference between A. and B. an administrator, award that B. shall pay a certain sum as the amount of A.'s demand, B. cannot afterwards object that he had no assets, but may be attached for non-performance. Worthington v. Barlow, 7 T. Rep. 453. In what case the lands and the personalty shall be charged in aid of each other. the personal assets: and this being only by aid of equity, all the simple contract creditors shall come in equally with the creditor that hath judgment. Wilson and Fielding, M. 1718. 2 Vern. 763. So in the case of Haslewood and Pope, T. 1734; it was decreed, that if a man deviseth his lands to trustees to pay all his debts, and dies indebted by specialty and simple contract, and the bond creditors recover part of their debts out of the personal estate, and afterwards they apply to be paid the rest of their bond debts out of the real estate devised for that purpose; in this case, as the testator intended all his creditors should be equally paid their debts, the bond creditors shall not come in upon the land, until the simple contract creditors have received [339] so much thereout, as to make them equal, and upon the level with the bond creditors, in respect of what they received out of the personal estate. It was also decreed, that where one gives a specific, or even a pecuniary legacy, and deviseth lands to pay his debts; if a simple contract creditor comes upon the personal estate, and exhausts it so far, as to break in upon the specific or pecuniary legacy, these legatees shall stand in the place of the creditors to receive their satisfaction out of the fund raised by the testator for the payment of their debts. But where a man dies indebted by bond, and leaves a personal estate, and deviseth lands to one in fee, and gives specific legacies, and the creditor by bond comes on the personal estate to be paid his bond; the specific legatees shall not stand in the place of the bond creditor, to charge the land devised, because the devisee of the land is as much a specific devisee, as the legatee of a specific legacy. And in this cause the lord chancellor said, that the personal estate is the natural fund for payment of debts, and which as against creditors, unless they please, the testator cannot exempt; but against the devisee of his land he may, by appropriating his land as a fund for payment of his debts; but even in that case, according to the general rule, there ought to be express words to exempt the personal estate from the debts, or at least very plainly shewing this to have been the intention of the testatator. 3 P. Will. 322. So where a man deviseth all his freehold houses, lands and hereditaments, to trustees, to hold to them in trust, that the freehold estate should be subject to, and be sold and disposed of by them, for payment of his just debts; and after disposing of some particular legacies, he gave to his nephew the rest and residue of his goods, chattels, debts, rights, credits, and personal estate not before disposed of. Hereupon the question was, whether the personal estate should be first applied to the payment of the debts, notwithstanding the real estate was expressly devised for that purpose. The counsel for the defendants (who were the |
