Cameron v. Harper

The defendants were Thaddeus Harper, the executor of the testator, and certain judgment creditors of the executor who have recovered judgment against him, de bonis propriis, in respect of personal demands and not for any debts or liabilities of the testator. These judgment creditors having obtained the appointment of receivers and these receivers having got into their hands moneys which the respondent alleges formed part of, or were derived from, the assets of the testator Jerome, the respondent seeks to have these assets applied in payment of his legacy, there being no debts or other legacies of the testator remaining unpaid. The judgment appealed against directs the payment of the unpaid balance of the legacy out of these moneys, as claimed by the respondent.

Assuming that these moneys were, in fact, assets of the testator, or the proceeds of such assets, I can see no possible objection to the respondent's Strong J. demand.

The appellants are personal judgment creditors of the executor, and as such have no right whatever to the testator's assets so long as any of his pecuniary legatees remain unpaid. If all the legacies had been paid off then, inasmuch as the executor is also the residuary legatee, any assets remaining would no doubt be exigible by the creditors of the residuary legatee; but these creditors can have no possible right to have these assets applied in satisfaction of their debts to the prejudice of a legatee of the testator.

To admit the contrary of such a proposition would be to sanction the application of one man's property to the payment of another man's debts. Judgment creditors are only entitled to have applied to the satisfaction of their judgments such property as the debtor has a beneficial interest in, and they are not entitled to enforce their claims against property or assets which their debtor holds as an actual or constructive trustee for another.

The court below find that one-half of the sum of $45,497.50 in the receivers' hands belongs to the estate of Jerome Harper, the testator, and they direct that out of this moiety the amount of the judgment recovered by the plaintiff for the unpaid residue of the legacy, together with interest and costs, should be paid. Assuming that there are assets in the receivers' hands to the amount mentioned this judgment must surely be unimpeachable. That there are moneys in the receivers' hands which properly belong to the estate of Jerome is a fact which I consider concluded by the finding of the court below, the evidence of Thaddeus, the executor, being quite sufficient to warrant in this respect the judgment appealed against.

There is a further ground upon which the judgment s

Jmight be sustained. The legacy bequeathed to the respondent was charged upon the testator's realty. There can be no doubt upon this head. The testator having first given several legacies, including that mentioned to his brother Ezekiel, gives and devises to his brother Thaddeus Harper, the executor, all " the balance and remainder of the property and any estate" of which the testator might die the owner. The words "property " and " estate " are of course both sufficient to pass realty. Then it is established by Greville v. Browne a decision of the highest authority, that where there is no specific devise of real estate, and a pecuniary legacy is given without any words making it an express charge upon the real estate, and the will contains a subsequent gift of the residue the realty, there is by implication a charge of the legacy on the real estate.

This being so, and the evidence establishing that the testator's share of the realty has been sold by the receivers and the proceeds applied to the payment the judgment creditors of the executor, including amongst others the present appellants, the respondent would, to the extent to which the appellants' judgments have been satisfied by a misapplication of real assets in the hands of the receivers to his prejudice, be entitled to stand in the appellants' place against moneys now remaining in the hands of the receivers applicable to the payment of the judgment creditors, even though not assets of the testator. This, however, would involve an account, which, under the judgment appealed against, proceeding as it does upon the ground that the assets remaining in the receivers' hands are personal assets of the testator, is not required.

As regards the real assets, if it were necessary to resort to the principle of subrogation which I have just referred to, it would be no answer to such a proceeding to say that the judgment creditors were also mortgagees of the executor Thaddeus.

Granting that they were mortgagees of Thaddeus, the executor and residuary legatee and devisee, they must be held to have had notice of the will and the charge thereby created for, even assuming in their favour that the will was never properly registered, as to which I find some obscurity in the evidence, yet

Mr. Maine, through whose agency the mortgages were obtained, expressly admits in his evidence that he saw and examined the will before taking the mortgages;

so that he must be taken to have had express notice the charge of the legacy on the real estate.

This action being brought to enforce the judgment recovered by the respondent in 1889 for the unpaid balance of the legacy the statute of limitations can, of course, be no defence to it.

I do not very well understand why the judgment creditors other than the appellants who were originally made parties to the action were dismissed. It would certainly seem that if their judgments were still in any part unsatisfied, they were interested in maintaining their right to be paid in preference to the respondent, out of moneys in the hands of the receivers, who were appointed at their instances as well as at the instance of the appellants. They have not, however, appealed, and in default of any appeal by them

I am of opinion that we ought not to interfere with the judgment on this ground.

The appeal should be dismissed with costs.

will not dissent, though I should have preferred to see the mortgagees before the Gwynne J.

Appeal dismissed woith costs.