Opinion
FEBRUARY TERM, 1805.
THIS was a writ of error to reverse a decree in chancery of the circuit court for the district of Georgia, rendered in favour of the defendants in error.
The bill alleges that John Rae and John Sommerville, as copartners in merchandize were, on the first day of January 1775, indebted to Stead, a British creditor in the sum of £ 3864 sterling, on account.
That Rae and Sommerville in their life time made a division of their supposed profits in trade, and drew out considerable proportions of the partnership-funds, which they ought not to have done before payment of their debts, and that each invested part of those funds in the purchase of lands and negroes as their own separate property.
That Rae died in 1772 or 1773, intestate, and that Sommerville the surviving partner died in 1773, having made Edward Telfair his executor, and having a large real and personal estate.
That the said John Sommerville, Samuel Elbert, and Robert Rae, administered upon the estate of John Rae. That a considerable part of his personal estate was purchased with monies, improperly drawn out of the joint funds. — That he left personal estate to the amount of £ 9014 5 0 sterling which came to their hands. That the said administrators of Rae are all dead. That Telfair as executor of Sommerville, who was administrator of Rae, became possessed of a considerable part of his estate, part of which had been purchased with the joint funds. That on the death of Robert Rae, his wife Robecca, now wife of Samuel Hammond, claiming as executrix of Robert Rae, became possessed of a considerable part of the estate of John Rae, senior, which had been purchased with the joint funds. That on the death of Samuel Elbert, the last surviving administrator of Robert Rae, Elbert's executors, viz. Elizabeth Elbert, William Stephens and Joseph Habersham, also became possessed of part of the estate of John Rae, senior, which had been purchased with the joint funds.
That Habersham, as legatee of Jane Sommerville, daughter of John Rae, senior, became possessed of a large personal estate liable to the claims of the complainants.
That administration de bonis non, of the estate of John Rae, senior, was (after the death of Sommerville, Robert Rae, and Elbert) granted to John Cobbison and Ann his wife, and a part of the estate of the said John Rae, senior, (purchased with the joint funds) came to their hands.
That James Rae deceased, as legatee of Jane Sommerville, became also possessed of an estate liable to the claim of the complainants, which has come to the hands of his administrators, Cobbison and wife.
The complainants charge that the defendants have wasted or misapplied the property which was liable to their claim, and seek a discovery against each of the defendants, of assets and funds, but do not ask for any specific relief.
The answer of Cobbison and wife admits that they are in possession of 600 acres of land, part of the estate of John Rae, senior, "but whether it was purchased with "monies drawn from the funds of Rae and Sommerville is "a fact which has not come to their knowledge." They also admit personal estate to the value of £ 348 2 4.
Hammond and wife, Habersham and Stephens, demurred to the bill,
1st. Because the complainants state themselves to be executors but do not shew where the will was proved, nor whether letters testamentary were ever granted, nor whether they have taken upon themselves the execution of the will.
2d. That the bill contains no matter of equity.
The same defendants also pleaded in bar a recovery at law, in the year 1775, by Stead in his life time, against Telfair, executor of Sommerville, surviving partner of Rae and Sommerville, for the same debt for which the complainants are now seeking relief upon the original assumpsit, which is merged in the judgment.
Habersham and Stephens deny all knowledge of ever having had in their hands any part of the estate of John Rae, senior, under Elbert's will; but Stephens states, that in the life time of Mrs. Elbert, she delivered to him as an attorney at law, a bond of Rae, Whitefield and Rae, to John Rae, senior, for £ 1637 0 4, which bond he is ready to deliver up to any person entitled to receive it.
Rebecca Hammond admits that her former husband, Robert Rae, as dèvisee of Jane Sommerville, came to the possession of two tracts of land, a family of negroes called Boston's family, and some plate, but does not admit that they were part of the property of John Rae, or came from the funds of Rae and Sommerville. She states that one of the tracts of land, viz. Rae's-Hall, has been sold for taxes.
Joseph Habersham admits that in right of his wife, a legatee of Jane Sommerville, he received negroes, valued at £ 300, which had once belonged to John Rae, senior.
Telfair demurred to so much of the bill as seeks a discovery from him, of the amount due to the complainant's testator from the estate of John Sommerville, or from Rae and Sommerville, or either of them at the time of their deaths, or to compel the payment thereof from this defendant, for want of equity, there being an adequate remedy at law; and answered as to the residue of the bill.
His answer states that before the war he had fully administered on the estate of John Sommerville, in his own right, and as surviving partner of Rae and Sommerville, as far as had come to his hands; and had returned an account of his administration on oath to the satisfaction of the creditors.
He does not admit that any division of profits was made by Rae and Sommerville in their life-time, nor that they drew out any of the joint funds and invested them in lands, c. as their, or either of their separate property.
He admits that there are several real estates, and that he received assets to a considerable amount — a part of which were sold for paper money which perished on his hands; and the books and papers of Rae and Sommerville, and his own accounts of payments and receipts, c. were lost or destroyed by the British while in possession of Georgia. He claims also a right to retain for debts due to himself.
On the 30th of April, 1794. The demurrers were on argument overruled by judges Iredell and Pendleton.
To the plea in bar of Hammond and wife, Habersham and Stephens, the complainants, replied that there was no such record, the issue upon which being joined, was adjudged for the complainants on the 15th of November, 1794, by the judges Wilson and Pendleton.
At the same term auditors were appointed to ascertain the sum due to the complainants, but their report appears to have been set aside, and the clerk was directed to ascertain the balance, and an issue was directed to ascertain the damages, upon the verdict for which the following decree was made by Judge Blair, on the 5th of May, 1795.
"The bill and answers in this cause being read and heard, it is ordered and decreed by the court as follows:
"That the sum of £ 3634 14 7 sterling together with "the interest accrued thereon at the rate of 5 per cent per " annum from the 1st of January 1774 to this day, deducting "interest from the 19th of April, 1775, to the 3d of "September, 1783, be paid to the complainants, together "with 5 per centum on the amount of the said principal "and interest, as a compensation for the expenses of remitting "the said amount to Great Britain where it was "contracted to be paid; and that the partnership-property, "admitted by the defendants to be in their hands, be "in the first instance applied towards the discharge of the "complainants' demand. And that the several tracts and "lots of land belonging to John Rae or John Sommerville " deceased, referred to in the answers of the several "defendants (and the title-deeds whereof admitted to be "in their possession) be sold by the marshal of this court "on the first Monday of January next for cash, giving two "months notice of such sale in the gazettes of Savannah "and Augusta; and the net proceeds of such sale be appropriated "towards the payment and satisfaction of this "decree. And that the title deeds in the hands of the "several defendants of such lands be delivered over into "the hands of the clerk of this court in three months after "notice given to the defendants for that purpose."
Sundry sales having been made under this decree, and the clerk having reported the balance remaining due on the 4th of January 1796, to be 11,196 dollars and 77 1-2 cents,
The following decree was made on the 15th of November 1796, by Judge Paterson.
"It appearing from the report of the clerk that on the "4th of January 1796, 11,196 dollars and 77 1-2 cents "remained due to the complainants, upon motion of Mr. " Gibbons, solicitor for the complainants, and by consent "of Mr. Telfair executor of Sommerville, it is further " ordered and decreed, that in regard to the defendant Edward " Telfair the executor of John Sommerville who was "the surviving partner of John Rae, that the copartnership "property, if any, which now is in the hands and possession "of the said Edward, as executor as aforesaid, be sold "by the marshal of this court, he giving sixty days notice "in the public gazettes of such sale. And the judgments, "bonds, notes and other evidences of debts due the said "copartnership be delivered over to his attorney or solicitor "under a general assignment by deed in order to sue "the same, if the assets acknowledged or proven to be in "the hands of the defendants should not be sufficient to "discharge the amount of the said decree. That after "payment and satisfaction of a prior judgment obtained "by Matthew Clarke in the county of Richmond against "the said Edward Telfair, executor of the said John Sommerville "for the sum of £ 826 100 with interest from the "17th of March 1794, the balance of the property of the "said John Sommerville, if any, in the hands of the said " Edward Telfair, executor as last aforesaid, agreeably to "his answer, be sold as first aforesaid. And the bonds, "notes and other evidences of debts remaining in this defendant's "hands be delivered over and assigned as aforesaid, "subject to the further order of this court after deducting "all lawful commissions and paying costs and "charges for administering and conducting the business "of the said estate, and that the said Edward Telfair be "discharged from the same on complying with this order.
"It is further ordered, that the bond admitted by William " Stephens, one of the defendants, to be in his hands, "given by Rae, Whitefield and company to John Rae, "senior, dated the 1st of June 1782 conditioned for the "payment of £ 1637 0 4 with lawful interest from the date, "be delivered over to the complainants, or their agents, to "be sued for and recovered, and that the sum so recovered "be applied to the extinguishment of the complainants' demand.
"It is further decreed that the following negroes, that "is to say, Boston, Jenny, Phillis, Boy Boston, Molly, " Peter, Sally and Ned, charged to be in the hands of the "defendants, Samuel and Rebecca Hammond, and not denied "by the said defendants, be sold at public sale by the "marshal of this court, first giving sixty days notice "thereof, and that the proceeds be applied to the discharge "of the complainants' debt.
"It is further ordered and decreed, that the following "negroes Cuffey, Bet with her issue and children, Nelly, " Peter, Nancy, Toney, Mary, Jenny, Suckey and Doll, "admitted by the defendant, Joseph Habersham, to be in "his hands, be sold by the marshal in manner aforesaid, "and the net proceeds be applied to the payment of the "complainants' demand."
On the 2d of May 1797 before Judge Chase, leave was given to the complainants to add Elizabeth Course, executrix of Daniel Course, deceased, as a defendant to the bill.
On the 17th of November 1797, Judge Wilson decreed a number of tracts of land belonging to the estate of John Rae senior to be sold.
On the 2d of May 1799 Ellsworth, Ch. J. on the circuit made the following decree; viz.
"This cause came on to be heard on a decree made at "November term 1796 by which it is ascertained and stated, "that on the 4th of January 1796 the sum of 11,196 "dollars 77 1-2 cents remained due to the complainants; "and upon a supplemental bill against Elizabeth Course, "which charges that a certain tract of land containing 450 "acres, on Savannah river, known by the name of Rae's " Hall, is a part of the estate of John Rae senior, deceased, "and subject to the complainants' decree, and upon the answer "of the said Elizabeth Course, by which it is ascertained "that the said defendant claims the said tract of "land under a deed of conveyance executed by Francis " Courvoisie, tax collector of Chatham county to Daniel " Course, deceased, late husband of the said defendant, "bearing date the fifth of May 1792 for the consideration "of £ 128 19 4 sterling. And the cause being heard, and "argued by counsel, on the said decree and the said bill "and answer together with the proofs and exhibits produced "by the parties respectively;
"Whereupon, it is ordered, adjudged and decreed that "the said pretended conveyance be set aside and held as "void; and that the said tract of land and premises be "sold at public auction, by the marshal, first giving forty "days notice in one of the Savannah newspapers of the "time and place of such sale. And it is further ordered, "adjudged and decreed that the following negroes in the "possession of William Stephens and Joseph Habersham, "executors of Samuel Elbert, to wit, Young Sambo, Billy, " Chance, Oronoko, Fanny, Diana and Nero, be sold by the "marshal at public auction, giving forty days notice of the "time and place of sale as aforesaid.
"And it is further ordered that the marshal shall pay "to the complainants, or their solicitor, the proceeds of "such sales above ordered and decreed, towards satisfaction "of the balance due to the complainants on this day, "being 9157 dollars and 90 cents."
On the 28th of April, 1800, Judge Moore made the following decree:
"This cause came on to be heard on the bill, answers "and replications, and on decree made in this cause in the "term of April 1799; and it appearing by the answer of " Ann Cobbison, one of the defendants that she hath assets "in her hands amounting to the sum of £ 348 2 4 equal "in value to 1491 dollars and 90 cents;
"Whereupon it is ordered, adjudged, and decreed that "the said Ann Cobbison, do within ninety days pay over "to the complainants, or their solicitor, the said sum of "1491 dollars and 90 cents."
From these decrees the defendants appealed, and assigned for error.
1st. That there was not sufficient equity in the bill.
2d. That the decree of the 5th of May, 1795, is vague and uncertain as to the amount directed to be paid by the defendants, it being expressed in pounds, shillings and pence, which are of no fixed value, whereas it ought to have been in dollars and parts of dollars.
3d. That the sum decreed to be paid ought to have been apportioned among the several defendants (they not being the original debtors) in proportion to the amount of assets by them severally acknowledged or proved to be in their hands respectively.
4th. That a court of chancery has no power to order the sale of real estate, especially as the heirs at law are not parties to the suit; and inasmuch as the title to the real estate was not the subject matter of the bill and proceedings.
5th. That the decree does not state to whom (whether to Rae or Sommerville) the lands belonged which were ordered to be sold.
6th. That the private property of the partners was decreed to be sold before it was ascertained whether the joint property (which had before been decreed to be sold) was not sufficient to satisfy the claim, or how far it would go towards satisfaction.
7th. That the decree of 15th November, 1796, is founded only on the consent of one of the defendants, and yet materially affects some of the other defendants.
8th. That it directs the sale and application of individual funds while it shews the existence of large copartnership funds not previously applied by the complainants to the extinguishment of their demands, as directed by the decree of 5th May, 1795.
9th. That it orders the sale of negroes not specifically claimed by the complainants, and especially the negroes inferred to be in the then possession of Samuel and Rebecca Hammond, although not by them or either of them admitted so to be.
10th. The decree of the 17th of November, 1797, is liable to the objections stated in the 4th error.
11th. That the said decrees are not personal against each defendant and apportioned according to the different amounts of assets in the hands of each.
12th. The decree of 28th of April 1800, is erroneous in ordering Ann Cobbison to pay the full amount of assets admitted by her, while a femme covert, to be in her or her then husband's hands, without her being called on, since becoming sole, to shew whether her husband left the said assets, or any, and what part thereof.
13th. The decrees are against the real and personal estate, and not personally against the defendants, or either of them.
14th. That by the decree of May, 1799, certain negroes are said to be in the hands of Habersham and Stephens, executors of Elbert, whereas it was denied that the said negroes were in their possession, but in the possession of the children of Elbert, in right of their mother or otherwise, which negroes, by the said decree, are ordered to be sold, without proof of their being in the possession of Habersham and Stephens, and without the said children (many of whom are under age) being made parties.
This cause was argued in this court at February term, 1803, by Key, for the original complainants, no counsel appearing on the other side.
By the decisions of the courts of Georgia, on the statute of 5 Geo. 2. making lands liable to a fieri facias, it is not necessary that the heirs should be made parties. The lands are assets until all the debts are paid.
The executor of an administrator is not, as such, liable to a suit on account of the original intestate; but is liable in equity for the property of the original intestate which has come to his hands.
The record contains a special demurrer to the bill, which was very properly overruled.
The causes for demurrer were,
1st. That it did not appear in the bill by whom, on where the letters testamentary were granted.
2d. That there was a complete remedy at law.
As to the first, it was not necessary for the complainants to make profert of their letters testamentary. It was sufficient for them to state that they were executors. At law the defendants might crave oyer; but in equity they must petition that the will and letters testamentary may be produced. It is no cause of demurrer that they are not set forth in the bill.
As to the second cause of demurrer, a court of equity will sustain a bill against executors because they are considered as trustees for the creditors and representatives of the deceased, and are liable to account; especially where they are executors of several copartners; and because the court may compel an equitable distribution.
There are 14 errors assigned in the record.
1st. That there is no equity in the bill.
This has been considered and answered.
2d. That the decree being in pounds shillings and pence is vague and uncertain.
The relative value of dollars to the currency of Georgia is well known, and if the decree can be rendered certain it is sufficient.
3d. The decree ought to be proportioned to the assets.
This is done by applying the decree to the assets themselves.
The object of the bill was not to enforce a responsibility further than assets should appear — it was not against the persons but the property that the bill sought relief — its object was to follow the assets. It does not appear that the whole assets were sufficient to satisfy the claim, and therefore there was no necessity to apportion the decree to the assets in the hands of each defendant.
4th. The heirs at law were not made parties.
By the practice and law of Georgia the lands are assets, and therefore the executor is the representative of the testator as to lands as well as to the personal estate until the debts are paid, and is the proper person to defend them against the claims of creditors.
5th. The decree does not state whether the lands belonged to the estate of Rae, or of Sommerville.
The answer to this is that the fact is not so.
6th. That the private property was decreed to be sold before it was ascertained that the joint property was not sufficient.
The answer to this is that it did not appear that the joint funds were sufficient. And it is to be presumed that they were not until the contrary appears. No error is to be presumed until it is shewn.
7th. That the decree is founded on the consent of Telfair alone, but affects some of the other defendants.
The decree is founded on the consent of Telfair so far only as respects him. It was not necessary for the court to insert in the decree the grounds on which it was founded so far as it affected the other defendants. If the court had sufficient grounds to justify the decree against the others, it is enough. The objection is that the court did not state the grounds, not that they did not exist.
8th. This objection is the same as the 6th, only applying it to another decree; and is liable to the same answer.
9th. That the negroes, ordered to be sold, were not specifically claimed by the complainants.
It is true that the complainants did not specifically claim those negroes; but they were seeking for assets generally, and the defendant admitted that the negroes came to her hands as executrix of Robert Rae. The court having adjudged them to be liable to the complainants' demand, decreed them to be sold. Whether they were then in her actual possession, or not, was immaterial; they had been traced to her hands, and she must account for them.
10th. This objection is the same as the 4th, and liable to the same answer.
11th. This is the same as the 3d
12th. That the defendant became sole since her answer and before the decree.
Neither the complainants nor the court were bound to take notice of that fact until it was shewn. If the assets did not remain in her hands after the death of her husband it was for her to shew it. The court was not bound to make the inquiry.
13th. The decrees are not against the defendants personally.
This is no error. The complainants were following the property of their debtor, not the persons of his representatives.
14th. The answer to this objection is that the facts do not appear in the record to be as alleged in this exception.
On a subsequent day the court expressed a doubt whether the heirs ought not to have been made parties to the bill, and continued the cause to ascertain what construction the courts of Georgia had given to the statute of 5 Geo. 2.
The only doubt which the court had, was, whether by the laws of Georgia, the land could be made liable unless the heir was a party to the suit.
We have received information as to the construction given by the courts of Georgia to the statute of 5 Geo. 2. making lands in the colonies liable for debts, and are satisfied that they are considered as chargeable without making the heir a party.
Decrees affirmed.