Edwards v. McClave

EMERY, V. C.

Bill by Frank C. Edwards and another against Norman McClave and others. Heard on demurrer to bill. Order advised sustaining demurrer.

Howard W. Hayes, for complainants.

E. B. Williamson, for demurrants.

EMERY, V. C. The bill in this case is filed by two complainants, Frank C. Edwards and Charles Bierman, against the administrator and the infant heirs at law of Hannah McClave, deceased, and also against one E. Wilkes McClave. Separate demurrers have been filed by the administrator and on behalf of the infant heirs at law, the special causes assigned being remedy at law, misjoinder of complainants, and multifariousness. The demurrer of the administrator sets up, in addition, that no relief is prayed against the administrator. At the hearing the want of equity was also relied on on behalf of all demurrants. The complainants, as appears by the bill, are the holders of, or interested in, a certain promissory note for $648, dated September 3, 1891, at four months, signed by Hannah McClave,, deceased, in her lifetime, for the accommodation of the defendant E. Wilkes McClave, the payee of the note. This note was delivered to the complainants, or one of them, by E. Wilkes McClave, after the death of Hannah McClave, who died on September 23, 1891, but before the maturity of the note, and was delivered by Wilkes McClave as collateral security for the payment of a loan then made by complainants to him upon four of his own notes, aggregating $350. Upon obtaining the loan and delivering the note by Hannah McClave, the defendant E. Wilkes McClave failed to indorse this note, which was payable to his order, but executed and delivered to complainant Edwards a writing set out in the bill, certifying that the note of Hannah McClave, deceased, indorsed by him, was deposited with Edwards as collateral security for his (E. Wilkes McClave's) own notes, and authorizing Edwards, on his failure to pay these, to collect, sue for, sell, transfer, or in any way negotiate or collect the Hannah McClave note for any price he might obtain for the same, rendering the overplus to him. The bill alleges that it was the intention of E. Wilkes McClave and of the complainants that the note should be indorsed by E. Wilkes McClave, but that this was neglected by mistake. Hannah McClave died intestate on September 21, 1891, and E. Wilkes McClave was appointed administrator of her estate, butMarch 7, 1797 (Revision, p. 476), and it has always been held that under this statute the liability of heirs is purely legal, and enforceable only by action at law. Insurance Co. v. Meeker, 37 N. J. Law, 282, 299; Insurance Co. v. Hopper, 43 N. J. Eq. 387, 12 Atl. 528, affirmed 44 N. J. Eq. 604, 17 Atl. 1104. In Holley v. Weedon (1686) 1 Vern. 400, an action at law was brought against the heir at law upon a bond of the ancestor. The heir put in a false plea, and after verdict in the plaintiff's favor, but before the time for entering judgment on it, the defendant died, having devised the lands descended. On a bill against the devisee to be paid the debt, Lord Chancellor King said: "Dismiss the bill. There is no color of equity in the case, unless you'll have it that the heir died maliciously before day in bank on purpose to defeat plaintiff in his debt."

Nor can there, on this bill, be any decree that the lands descended to the heirs are chargeable with the amount of the note as a debt of the deceased ancestor. This is not a creditors' bill for the general administration of a decedent's estate, and bringing all the estate of deceased, both real and personal, into the court for administration, but a bill by one creditor to establish an alleged obligation against decedent's estate, upon the establishment of which he asks that a decree may be made for its payment out of the real estate of the deceased. There are no allegations in the bill in reference to the personal estate, which is the primary fund for payment of obligations of this character, and, even on the supposition that there was no personal estate whatever, the claim, as it seems to me, not being admitted by the administrator, must first be regularly established by judgment or decree against him before the lands which have descended to the heirs can be sold by the court. If established against him, by judgment or decree, and the personal estate is insufficient to pay the demand, the creditor would then be in a position to apply to enforce the payment of the debt by sale of the lands under the orphans' court act, on which application the heirs are entitled to be heard. But it would seem to be beyond the power of a court of equity, as against the heirs at law, to enforce against them a sale of lands by decree in this suit, brought for the sole benefit of a single creditor whose claim is not admitted by the administrators, and who has not established his claim by judgment or decree against him. Haston v. Castner (Err. & App., 1879) 31 N. J. Eq. 697, decides that a creditor whose claim has been presented to the administrator, and its validity admitted by him, may, without obtaining judgment, file a bill in behalf of himself and other creditors, to set aside conveyances of land made by the deceased in fraud of his creditors. The estate in this case had, however, been settled as an insolvent estate before the filing of the bill (see page 697), so that the jurisdiction of the orphans' court was at an end. And in the later case of Mayor, etc., v. Alyea (Err. & App.; June, 1896) 34 Atl. 1078, the court decide that on a bill by a creditor for his sole benefit the court of equity will not, except for special cause, interfere with the jurisdiction of the orphans' court for the settlement of accounts of executors and administrators. This settlement in the orphans' court includes the application of real estate of the deceased for the payment of his debts, which application may, if necessary, be made by the creditor after establishing his claim by judgment against the executor or administrator. Orphans' Court Act (Revision, 769) § 79. In the absence, therefore, of any facts alleged in the bill showing the equity of complainants, to require a general settlement of the estate in this court, and a sale by the court of the lands of the deceased, including complainants' claim, if it be eventually established, I conclude that no decree can be granted against the heirs at law on this bill charging the debt on the lands, or directing the sale thereof for the purpose of payment. I do not consider the effect of the judgment at law in favor of the heirs at law, as this question may arise on any application for sale of the lands to pay complainants' debt, if it should be hereafter established against the administrator, and the consideration of the question is not necessary for the decision of this case.

So far, therefore, as the present bill seeks to charge the heirs at law personally, or the lands descended to them, with the payment of the note, it is without equity, and must be dismissed. As against the administrator, my view is that, if the complainants on the present bill could obtain a decree against E. Wilkes McClave for the indorsement of the note, then, on the authority of Hughes v. Nelson, supra, the administrator might perhaps be a proper, if not necessary, party to the suit, as the personal representative of the deceased maker, who is interested in determining the validity of the claims against the estate. The claim of the bill is that, if the indorsement is made by decree of the court, the complainant is entitled to stand equitably in the same situation as if the indorsement was made at the time of the transfer; and the personal representative of the maker of the note may, therefore, perhaps, properly be a party to a suit to compel the payee to indorse the note, but, unless the final result of the suit is a decree for indorsement by the payee, the maker's representative is under no equitable obligation upon the note. If the court cannot decree specific performance of the contract to indorse, it cannot, as it seems to me, decree a liability against the maker, as if the note were indorsed. If this view be correct, the complainants' bill must fail, as against the administrator, for the reason that it discloses that no such decree can be rendered against Wilkes McClave, the payee, because he is not within the jurisdiction of the court, and the bill states that he cannot be brought withinits jurisdiction, and the decree for payment without indorsement is prayed. A decree for indorsement of the note made against the payee upon publication, and without obtaining jurisdiction over his person, would be without due process of law under the fourteenth amendment to the federal constitution, as construed in Pennoyer v. Neff, 95 U. S. 714.

It appearing, therefore, by the bill itself, that the contract which lies at the basis of the whole proceeding, viz. the personal contract of Wilkes McClave to indorse the note, cannot be enforced by reason of the want of jurisdiction over his person, I am of opinion that no decree against the administrator can be made upon the bill, even if it had been prayed for, and as to him also the bill must be dismissed. Where it appears on the face of the bill that the defendants were, at the time of the institution of the suit, resident in a foreign country, and that the suit does not relate to any of the subjects in respect of which the court is warranted in exercising jurisdiction against persons so resident, a demurrer for want of equity will be allowed. 1 Daniell, Ch. Prac. (6th Am. Ed.) 550. An order will be advised sustaining the demurrer, with costs.