p. 143are not chargeable by the executors, or the survivor of-them, with the payment of such'balance. John Marbury,
Solicitor for the heirs and devisees of David Peter.
. On the 21st of January, 1841, the cause came on for 'hearing on the exceptions to the auditor’s, report, and th.e bill, answers and exhibits, depositions and proofs and general replication; when the court decreed that the exceptions to the auditor’s report, made by complainants, be overruled, and the exceptions of'defendants to the auditor’s report be confirmed; and that the bill of the complainants be dismissed with costs.
From that decree the complainants appealed to this court.
Jones and Sergeant, for the appellants.
Cox and Reverdy Johnson, for the .appellees.
The counsel for the appellants made the following points. That the court erred.
1. In overruling the exception of complainants.
2. In. confirming the exceptions of defendants, the claims of the bank and of George .Peter being sustained in the record by the proof as reported by the auditor.
3. In dismissing the bill—
Because: 1. The bill filed in 1827, and the proceedings thereon, were no bar to the relief now sought.
2. Lapse of time and the statute of limitations could not,, under the circumstances of the case, operate as a Bar. .
3. Under the arrangement made between the banks and the . executors for the benefit of the heirs, and according to the provisions of. the will,, the personal estate might properly be applied to the maintenance of the heirs.
■ 4. If so applied (as it was) the real .estate was liable to the debts,'whether specifically so directed by the will, or not.
5. On that part of the real estate specifically directed to be sold for the payment of the.debts appearing to be insufficient, the rest of the real estate was liable; and' it was not necessary, in such case, to wait till an actual sale ascertained .the extent of the, insufficiency.
6. All these grounds were maintained'in the opinion of this court in the former casé between these parties.
In that case the court determined that the real estate specifi
p. 145executor involve it? Law Reporter of March, 1840, page 1. As to limitations: there is only a general replication filed, and no special matter set forth in avoidance of the plea. The argument on the other side cannot therefore come in. 6 Peters, 64, says, “ where thé statute is pleaded, replication or amended bill must set forth the facts to take it out of the statute.” As to the effect of limitations, 1 Bland, 91 , 470; 2 Bland, 366 ; 8 Peters, 528; 3 Cond. Ch. Rep. 155; 4 Harris and Gill, 126, 270; 2 Gill and Johns. 491. As to a trust reviving a debt barred by statute, 1 Russell and Mylne, 255, or 4 Cond. Ch. Rep. 413. The bill does not aver a trust; and if there be one, who is the trustee ? If it is the executor, the bill ought to have been against him alone, 2 Johnson’s Ch. Rep. 614, 623, and authorities there cited.
H. Johnson, same side, examined,
I. Whether the case as presented by the bill could be sustained, supposing the creditors to be the creditors of the testator at his death.
2. Whether they were in fact such creditors.
3. Whether the answer and proof did not meet the averments of the bill.
4. Whether the complainants could come upon the real estate either upon the ground-of'an assigned claim to the bank, or that-the executor had overpaid.
1. The complainants can succeed- only upon one of two grounds — upon the act of 1785, or that there was a general trust created. It is settled in Maryland, that under the act of 1785 there must be an averment and proof of a deficiency of personal assets.
1 Harris and Gill, 504. But here the bill says there was a large personal estate. As to a general trust — how can that be,, when there is a particular part of the estate devised to pay debts, if necessary? Testator died, in 1812, and bill filed in 1S36; in the mean time the debt has accumulated, by interest, to $46,000; the-executor is a creditor to $26,000, making $72,000. The trust property is estimated at'$29,000; the personal estate, which the .testator thought might be insufficient, all gone, and the general estate is to make up $43,000. The yrhole estate will not pay the debt.
2. They were not creditors of the original estate. The executor’s account begins .in 1813, after testator’s death, and the
p. 146other creditors claim by assignment; but none is shown. ' See 7 Harris and Johns.. 134; 4 Gill and Johns. 303; 6. Gill and-Johns. 4.
3. Answers rely upon limitations and lapse of time. Morrison v. Bell, 1 Peters, decided that the court would not try to get Out of the statute, and in.Gray and others, 1 Harris and Gill, adopts the„ same principle. Can the creation of a trust upon a part of the estate prevent the statute from protecting the rest ? Did not the testator intend that his debts .should be soon paid, and the residue of his estate go to his children, free from debt ? Between the cestui que trust and the trusted, the statute stops; but if other parties are brought in, it is different. If it is the law which makes this property responsible, then it is not the intention' of the testator ; and if so, there- was no trust, and the statute must run. 2 Story’s Equity, 735, note; 2 Sch. and Lef. 630.
■ 4. The dismissal of a former bill is a bar to this. 2 Story’s Equity, 740; Cooper’s Pleading, 269 — 271.; Milford,-237.
Sergeant, in reply, for appellants.
The hardship of this case is not on the side of_the defendants; it is one of obstinate ingenuity on their side. Debt has never been paid, and children have had the benefit of the personal, estate. No mismanagement of the fund anywhere. The creditors are worse off than the family. ' The' Bank- of Columbia broke along ago; if it had exacted its debt immediately, it would have been called a Shylock. The respondents are residuary devisees; the testator first provides for his wife, and then for his debts, and the will is the law of the case. (Mr'. S. here gave a history of the case.). The bill does not profess to be under the act of 1785. There was a special agreement of counsel, in which the defendants waived any objection to the jurisdiction of the courtj &c.: they cannot now deny that the debt was due by the testator. We were entitle.d to the real, in aid of the personal, in IB 13, and are so still. A devise of a part of the land to pay debts, does not exempt the rest. Whoever takes the-land takes it as a trustee.- Jones v. Scott,-1 Russell and Mylrie,says, that the intention of a testator to make a trust, prevents the statute, from, running. See 2 Story’s Equity, 737, 741. The question in the case is, whether the executor shall be ruined, and the legatees
p. 147get the land for nothing. The family all, concurred in what was done: the heirs and‘devisees-had as much right as we had to go into chancery and have the.estate settled up. As to the former suit being a bar,, the record does not show any thing but the answer, or whether-it was dismissed “ without prejudice.”
delivered the opinion of the court.
.A summary of the points decided, and principles settled in the •former case between these parties, will save much time- in the investigation of those which are involved in this.
After taking a condensed view of the will of David Peter, the court declare, that he had unquestionable right, so far as respected his children, to charge the payment of his debts upon any part of his estate he might think proper, and that none -but a creditor could control his will in that respect; that he had constituted his widow'the trustee of the proceeds of all his estate, for the maintenance and education of his children; and inve.sted her with unlimited discretion in this respect, so'-far as the proceeds of his estate would go. Whereby the surviving executor js not accountablé for any thing so applied by her, even if she would be chargeable with a devastavit, and that the- proceeds of all his estate being thus vested in the widow, would render it necessary,' independent of any express direction in the will, that recourse be had to the real estate for the payment of the debts. 10 Peters; 502, 563. • The court then decide, that the surviving executor had power to sell, and that, it was impossible to draw any other conclusion, than that it was the intention of the testator that the sale should be so made. 10 Peters, 566. . On the inquiry whether there is any subsisting debt due from the estate of David Peter to the banks, the court say, there is no pretence that they have been paid in fact, and if not, the trust remains unexecuted, and the land still remains charged with it. If the executors have paid the banks, or the banks have accepted their notes in payment of the notes of the testator, the only effect is, that the executors became the creditors instead of the banks, and may resort to the trust fund to satisfy the debt. But the court also say, that under the circumstances of the case, there is.no ground for con-, sidering the debt of the banks to be extinguished, and they then proceed to state the result of their consideration to be this.
p. 148That the will created a power coupled with an interest that survives; that the surviving executor is the person authorized to execute that power and fulfil'that trust; that the debt due the banks has not' been extinguished, or the estate in any way discharged from the payment. That the executors, are not chargeable with negligence or such misapplication of the personal estate-as to make them responsible for the payment of these debts; and that from the auditor’s report on the accounts of the executors, exhibited to, and alldwed by him, there has at ail times been, and now is, a considerable balance in favour of the executors against the estate. The court, then, refer to the exceptions taken to the auditor’s report, and declare them to have been properly overruled by the court below, and proceed to render their .decree as before referred to. 10 Peters, 569, 570.-
So far, then, as related to the construction of the will, the disposition of the personal property, the charge of existing debts on the real estate, the power of the executor, the existence of a trust, and their duty to execute it by a sale of the property charged by the will, the decision of the court has settled’ the rules and principles on which the present controversy must be determined if they are applicable; it was made on great consideration, founded on,r uthority, and. nothing which has been urged, in the' argument of this case has caused us to entertain the least doubt of its entire conformity to the well established law of equity. So far as the evidence and facts of that case were considered and adjudicated, the .decree of this court is final and conclusive; the parties and the subjects of controversy between them were the same as are now before us; negligence and misapplication of assets were charged on the executors, the existence of debts to them or the banks was. denied by the then complainants, and now defendants, and both facts adjudged and decided adversely to them ;• and the auditor’s report was confirmed, whereby every fact it contained became established and binding on the parties in any future controversy, as to any matter thus adjudicated.
In Hopkins v. Lee, this court state the settled law of all courts to be, that, as a general rule, a fact which has been directly tried and-decided by.a court of competent jurisdiction, cannot be contested again between the same parties, in the sa. .e or any other’ court. Hence a verdict and judgment of a court of record, or a
p. 149decree in chancery, although not binding on strangers, puts an end to all further controversy concerning the points thus decided between the parties to such suit. In this, there is, and ought to be, no difference between a verdict and judgment in a court of common law and. a decree of a court of equity. They both stand on the same footing. 6 Wheat. 113 ,114; S. P. 1 Wheat. 355 ; 12 Peters, 492. Whatever, therefore, our opinion might now be as to the facts adjudicated in the former case, the judicial power is incompetent to revise the evidence on which the decree was rendered, on any ground now set up in the answer of the defendants, or apparent on the present record, and they must be taken to be beyond all controvery in this or any future case between the parties. Before proceeding to consider the questions appropriate to this cause, a reference to the case- of Fenwick v. Chapman, 9 Peters, 466, will be useful, in order to ascertain-what principles were there laid down and are applicable to the ' present controversy. Adopting the general rule that the personal estate of a testator shall in all case's be primarily applied to the "discharge -of his personal debts of general legacies, unless he by express words or manifest intention exempt it, the .court thus qualify the rule; -where the testator’s intention clearly appears that a legacy shall be paid at all events, the real estate is made ■ liable on a deficiency of personal assets. So where without any assistance from the will, the nature of the thing to be done may clearly show the intention to charge the real estate with a debt; as, where the thing to be done cannot be partially performed by the executor, without defeating the instruction which directs it, and the thing itself. On this principle the court holds, that the manumission of slaves pursuant to-the directions of a will under the law of Maryland (which is the law of the eastern part of this district) operates ás a specific legacy to the slaves, and to charge the real estate with the payment of the debts of the testator, even though -he may have, at the time óf his death; no other personal property than slaves. 9 Peters, 47"!, 473. That the creditor-may be Carried into a court of equity, or voluntarily resort to it to obtain his debt,'either from, the lands or the personalty, when the testator leaves it. doubtful from what fund his debts are to be paid; that lands devised for the payment of debts, or which have become chargeable by implication, constitute
p. 150a fund for the payment of debts, and an ample and plain remedy is admitted to exist in the law of Maryland, so-to apply them.'
“ The will is the executor’s law, and he is no more than the testator’s representative' in all things lawful in the will. A special legacy of all the personal property is a law to him;”, if there is an insufficiency of “ personal assets to pay debts, it is' the executory duty to file a. bill against the creditors and' all interested, in the estate.;” “praying that the lands may be made liable to the . payment of debts, that equity may be done to all toncerned, according to the law of equity.” . 9 Peters, 474, 475. When he is charged with the, sale of the testator’s lands for the payment of debts, it is his duty to execute the whole of the testator’s will,-' and in such á case the creditors* have as good a right to look to the land through him* for the payment of their debts, as they have to look to' the goods and chattels through him, 9 Peters, 477; and they must pursue their claims in equity, .or according to the statutes of Maryland' subjecting real estate to the payment of debts, to. make their debts out of the land, 9 Peters, 481, 482. These statutes are the 4 Geo. 2, adopted in Maryland, and the act of 1785., c. 72, sect. 5, which is recited in the Bank of the United States v. Ritchie, 8 Peters, 143, and which this court there declare has been construed in that state to be an enlargement of jurisdiction, and that decrees'for selling the lands of minors and lunatics, in the cases prescribed by it, have been treated by the Court of Appeals, as the exercise of other equity powers.. That these opinions of this court are -iñ accordance as well with the statutes of Maryland, and the established rules of equity in cases of this description, we ■ have no doubt; nor of their application to the present. It must therefore be taken to be a. settléd point, that a disposition by a- testator of his personal property to purposes other than the payment of his debts, with the assent- of creditors, is’ in itsélf a charge on the real estate, subjecting it to the payment of the debts of the estate, though no such charge .is created by the words, of the will. Á trust is thereby raised which devolves on the executor, who. may execute it by his own au-. th'ority, or be compelled to do it by a bill filed by the creditors, " either under the.-statute of 17S5, or in virtue of-the powers of a court of equity in relation to the execution of trusts, as the case may be; in this case there .was such á trust, fastened on the pro
p. 151perty in controversy by implication of law, and the presumed intention of the testator, which can be enforced by these comjplainants, unless some valid objection has been made, out by the respondents.
'It has been contended that the frame-of the bill is too defective to justify any action upon it, for the want of necessary averments, but when we take it in connection with the former cause to which it refers, the agreement of the parties on file, and the answer of the defendants, we think that , a satisfactory answer is at hand. The object of the -bill is clearly stated, such averments are set' forth as on its' fac. shows.some equity which requires an answer; informal as-they may be, they would stand the test of a'demurrer, especially with the aid of the agreement, by. which it appears that the defendants fully understood the nature of the plaintiff’s case, the object sought,-and the evidence on which they would rely. The answer is full to every matter of fact or law which could be averred in the best drawn bill; there has been no allegation of surprise, or any want of notice of the grounds on which the plaintiff rested his case, and the parties went to. the hearing on the; bill as it stood, fully prepared to contest their respective claims, as they had doné in the first case, of which this was .well known to be the consequence. Under such circumstances the objection is entitled to no favour], and is not sustainable as án obstacle to our action upon the merits of the cause.
The answer sets tip the'dismission of a bill.filed by the complainants in 1827, against the defendants, for the same relief as is prayed for in the present bill, as a bar thereto; but no record of such case is set out or exhibited, so that, however true the answer may-be in fact, it cannot avail in law. In this respect it is not responsive, to the bill'; it sets up distinct affirmative matter ]of defence and bar, which the defendants must prove, or it. can have ho effept for either purpose.
The statute of limitations, and. the loss of time from the death of David Peter to the filing of the bill, are also plead and relied on' as a bar, but we think that neither can apply to. this case, which is an unexecuted trust for the payment of debts adjudged by this court in 1836, to be unpaid in point of fact, and then' existing in . favour of the banks and executor, and the present bill' was filed soon after the decision was made. . The confirmation of the au
p. 152ditor’s report, made in that case, is conclusive to show the amount of such debts at that time; so is his report in this case as to their present amountwe cannot look through these reports for the evidence on which they were made; they have passed to judgment, and have the sanctity of re'cords.
The remaining objections to the relief prayed for by the bill, which are founded on the principles of the law or the rules of equity, are covered by the former decisions of this court; those-which arise from the evidence in the cause as to matters of fact material to our decision, are no longer open to controversy, and we are clearly of opinion that the complainants have made out their case in point of law and fact.
The decree of the Oircuit'Court must consequently be reversed. The cause is remanded with directions to make a decree in conformity with this opinion, by ordering a sale of the property in controversy, and consistently with the agreement of the parties filed of record, and the rules of equity as to the time of disposing of the several parts thereof, specifically devised by the will of David Peter. It is also directed', that the Circuit Court decree on the report of an auditor, or. as they may think proper, to what part or items of the account of George Peter, a preference ought to be given in payment over the other creditors of the estate'of-the testator, and make a final order thereon according to law and equity.
ORDER.
This cause came on to be heard on the- transcript ot the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington,-'and was argued fry counsel. On consideration, whereof, it is now here ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be' and the same is hereby re-, manded to the said Circuit Court, with directions to proceed therein according to the opinion of this court, and in conformity to the principles ,of law and justice.