Opinion
05-24-1892
SNOVER v. SQUIRE et al.
William H. Morrow, for complainant. J. M. Roseberry, for defendants Raub & Stoll. J. G. Shipman, for defendant L. C. Drake. Geo. A. Angle, for defendant Philip W. Squire.
Bill by Andrew M. Snover against Philip W. Squire and others, praying that certain money be paid him out of one M. S. Konkle's share of his father's estate. Relief granted.
William H. Morrow, for complainant.
J. M. Roseberry, for defendants Raub & Stoll.
J. G. Shipman, for defendant L. C. Drake.
Geo. A. Angle, for defendant Philip W. Squire.
BIRD, V. C. John Konkle, on or about the 17th day of April, 1889, departed this life, leaving a last will and testament, in and by which he ordered the sale of all his real estate by his executors, directing them to make distribution of the residue after the payment of his debts and funeral expenses among his six children. Milton S. Konkle, his son, George Cook, his son-in-law, and Philip W. Squire, one of the defendants, were appointed as the executors of said will. The first and last proved the will. Prior to the death of the testator, Drake, a defendant, recovered a judgment against Milton S. upon confession for $220.16, and $4.5 C costs, upon which judgment execution was issued. On the 21st day of November, in the year 1890, part of the lands of which the testator died seised were sold by the executors, and on the 27th day of the same month the balance of his lands were sold by them. By the conditions the deeds were to be delivered on the 1st of April then following On the 19th day of December next after the sale M. S. K. made an assignment of his right, title, and interest in all his father's estate, under and by virtue of the said will, to the complainant, with power to collect the same, to secure a debt due to the latter of $626. Very soon thereafter Snover gave notice of the said assignment to Philip S. Squire, the other executor. On the 1st day of February, 1891, M. S. K. executed and delivered a deed of conveyance, commonly called a "deed of quitclaim," to Raub & Stoll, two of the defendants, in and by which he did "sell, grant, and convey, remise, release, and forever quitclaim, to the said party of the second part, and to their heirs and assigns, all my [his] right, title, and interest, and all money and proceeds of the sale of the real estate under the will of John Konkle, deceased ;" then describing the land by metes and bounds. The consideration of this conveyance was certain notes and accounts which R. & S. held against M. S. K., and certain other accounts and notes which they agreed to pay and discharge for him. It is claimed by R. & S. that the whole amount of their claims, and the amount which they assume to pay for him, was $872.55; but the testimony leaves this in great uncertainty. R. & S. insist that at the time they took this conveyance they had no knowledge whatever of the previous assignment to Snover; but there are strong circumstances tending to awaken the belief that they had knowledge of such facts as would put a prudent man upon his guard, and consequently bind him. However, as the case stands, and under the law, I do not think this is material. I only refer to it because counsel for R. & S. seem to think that they, being innocent purchasers, enjoyed superior rights to Snover, the first assignee. II they had not notice before the execution of the said quitclaim, or if the nature of the conveyance did not warn them, they had notice within a very few days, and before any change had been made in their relations to M. S. K. They claim that they paid some cash for him; but what amount and when is not fixed in such a manner as to make it at all reliable. Hence it is not easy to come to a satisfactory conclusion that equity can protect them in their claim that they were bona fide purchasers for a valuable consideration. The law to which 1 refer will be adverted to hereafter. On 9th day of May following, the time of the execution of said quitclaim, the said M. S. K. made a distinct assignment to the said Raub & Stoll of all his right, title, and interest in the estate of his father, under and by virtue of the said will, in which assignment distinct reference is made to the assignment which had been made to the complainant in the month of December previous. On the 14th day of the said month of May, Snover filed his bill of complaint in this cause, praying that the amount due to him from the said M. S. K. may be paid to him out of the share of the said estate found to be due to the said M. S. K. before any other person be paid the amount claimed by them. It appears that the said executors have proceeded so far towards the final distribution of the amount of moneys in their hands as to secure a final passage of their accounts in the orphans' court. There seems to be no doubt but that the amount due to the said M. S. K. under the said will will exceed the amount due to Snover. It is clear that the amount due to him will not be sufficient to pay Snover and also R. & S., saying nothing about Drake, the judgment creditor. Hence the question is, who has the superior right? I think there is no doubt but that Snover is entitled to be first paid the principal and interest due to him. Besides, taking a regular assignment of all the rights and interests of M. S. K. under the will, he gave notice to the. other executor (M. S. K. being one) of such assignment. He did all the law required of him. Ryall v. Rowles, 2 White & T. Lead. Cas. Eq. 1579, 1580, 1582, 1584, 1588, 1660, 1665. At the time of taking this assignment, Snover treated the interest of M. S. K. in the estate of his father as personal estate, notwithstanding at that time no conveyance had been made by the executors. He was justified in this by all the authorities. "It is a well settled rule in equity that where lands are directed to be converted into money, and the proceeds given as a legacy, it will be treated as a legacy of personal estate." Scudder v. Van Arsdale, 13 N. J. Eq. 109; Welsh v. Crater, 32 N. J. Eq. 179; Dutton v. Push, 45 N. J. Eq. 429, 18 Atl. Rep. 207; Fletcher v. Ashburner, 1 White & T. Lead.Cas. Eq. 1120, 1123, 1129, 1157, 1160. When conversion is so ordered, it takes effect from the death of the testator. Cook's Ex'r v. Cook's Adm'r, 20 N. J. Eg. 375; Button v. Pugh, 45 N. J. Eq. 428, 18 Atl. Rep. 207. These principles are strengthened when real and personal estate are blended in one mass for distribution. Fletcher v. Ashburner, 1 White & T. Lead. Cas. Eq. 1120. The law on this subject being so well established, it must be concluded that the contention by R. & S. that the land in this case should be considered real estate until the conveyance was actually made by the executors, and that consequently the assignment of the legacy to Snover was ineffectual as to the land, and that the quitclaim deed to them carried the entire interest, and gave them the entire right of property, cannot be sustained.
This view will be more apparent when the rights of Snover and of R. & S., as against the claim of Drake, are presented and come to be understood. Certain it is that if the insistment on behalf of R. & S. be well founded as to the effect of their conveyance, because the land was to be considered real estate, then it must be so considered for all purposes in the discussion, and consequently the judgment of Drake became a lien upon the interest of M. S. K. immediately upon the death of his father; and none will contend, if he could convey, that it was not bound by the judgment, and that his conveyance must be subject to such judgment. But the jurisprudence of this age must be credited with some degree of harmony and consistency; and in the particular now in hand, in making application of the rules which govern courts, all creditors must enjoy equal rights, having preferences according to their diligence. Nothing is better understood than that such assets as we are now dealing with cannot be reached directly by judgment and execution at law. The creditor can only avail himself of the advantages which his judgment gives him as to such assets by a bill in equity. Until he has filed his bill he has not a lien. Mr. Drake has never taken this step. He has no better foothold now than he had at the instant of the testator's death. He is in no wise profited by the filing of the bill of complaint by another who seeks to reduce these assets to possession, even though Drake be made a party defendant. He had no lien upon these assets by virtue of his judgment. He could make no application of them until he acquired such a lien. This he could only do by asking for affirmative relief, to do which he must either file his bill, or, if brought into court as a defendant, his cross bill. Trust Co. v. Earle, 110 U. S. 717, 4 Sup. Ct. Rep. 226; McDermutt v. Strong, 4 Johns. Ch. 687; Miller v. Miller, 25 N. J. Eq. 354. Having failed to do either, he has in no sense advanced his position. In other words, I cannot conclude that he has any such lien upon these assets as entitles him to be heard. The principal cases upon the question here presented are collected in Hoppock v. Cray, (N. J.) 21 Atl. Rep. 626, 627. For a full discussion of procedure, see Trust Co. v. Earle, 110 U. S. 710, 4 Sup. Ct. Rep. 226. The rents and profits of real estate, which have been so converted into personal, must necessarily partake of the character of personal, and are distributable, accordingly, in this case, among the legatees. The complainant is first entitled to be paid the amount due him, with his costs. R. & S. are entitled to be next paid.