EMERY, V. C.
Partition by Josephine K. McKinley against Ella M. Coe and others. On petition by a creditor for the payment of a note held by her from the proceeds of sale paid into court, and exceptions to the master's report directing payment. Exceptions overruled.
W. I. & H. Chamberlain, for petitioner.
Mr. Murphy and McEwan & McEwan, for complainant.
A. C. Hartshorne, for defendant Mrs. Ilerdman.
EMERY, V. C. In this case I reach the following conclusions upon the issues raised in the exceptions to the master's report, and the application at the hearing to open the proofs.
1. The application of petitioner made at the hearing on the exceptions to open the proofs must be denied. It appears by the evidence taken before the master on the first reference to him that petitioner then claimed that the note in question was signed in the presence of Mrs. McKinley. Necessary diligence by petitioner to procure other proof than her own testimony as to the execution of the note has not been shown, nor does the affidavit of the solicitor show a sufficient excuse for its nonproduction before the master.
2. The petitioner's testimony as to the transactions with the testatrix in relation to the note upon which her claim is based is admissible. This question arises upon the application of the petitioner as a creditor of the testator, claiming that her debt is charged by the will upon the lands which have been sold in proceedings in partition. The bill for partition was filed by one of the respondents, a residuary devisee, against the other respondent and the petitioner, the other devisees. The lands have been sold, and the proceeds paid into court. The petitioner is also the executrix of the will, and upon her previous application as executrix under chancery rule 155, etc., for the payment to her, as executrix, of sufficient money to pay the debts of the testatrix, including the petitioner's own claim, the application was denied, so far as it applied to this debt, because, at the time of the application, recovery against her, as executrix, was barred by the statute of limitations; and I held that although the executrix might, so far as the personal estate was concerned, waive the statute, she could not affect the rights of heirs or devisees by her waiver, nor could she reach the proceeds of sale of land by her waiver of the statute as executrix. Petitioner's claim is based on a promissory note purporting to be signed by the testatrix, dated January 14, 1891, for $450, payable one year after date, with interest at 5 per cent. The testatrix died December 9. 1895, and the personal estate was insufficient to pay the debts, hot including the petitioner's claim; and, on petitioner's application, an order was made in this cause directing payment to the petitioner as executrix, of the sum necessary to pay such other debts, but without prejudice to her right to apply for payment of her claim out of the proceeds of sale, as a debt charged upon the lands. This petition was thereupon filed for that purpose, and upon this application and the previous application the only proof as to the execution of the note or its consideration was the evidence of the petitioner. This was objected to before the master on the reference in this petition, as a statement of a transaction with decedent, but was not objected to in the proceedings on the first petition. The order of reference on the present petition directed that the evidence taken on the former petition should be used, subject to all proper objections to the legality and admissibility of any portion thereof. Assuming that, under this last order, objection can be now taken to the admissibility of petitioner's evidence, the question is whether it is admissible under the evidence act (Revision, P. L. 1900, p. 303, § 4), excluding testimony by a party to a civil action, as to any transaction with or statement by any testator or intestate represented in said action, where any party sues or is sued in a representative capacity; and the point to be decided is whether, in a proceeding of this character, the testator is "represented" by the devisees. The earliest decision of this court (Colfax v. Colfax [1886] 32 N. J. Eq. 206) arose under the act of 1874 (Revision, p. 378, § 3), providing that no party should be sworn where either of the parties in a cause sue or are sued in a representative capacity; and Chancellor Runyon, on a bill filed by a vendee for specific performance of a contract of the deceased, against the heirs at law and the widow of vendor as administratrix, held that the heirs were sued in a representative capacity, and that the evidence of complainant was not admissible. Subsequent to the decision in Colfax v. Colfax, occurred two decisions of the Court of Errors and Appeals. Hodge v. Coriell (Sup. Ct. 1882) 44 N. J. Law, 456, affirmed (1884) 46 N. J. Law, 354, and Palmateer v. Tilton (1885) 40 N. J. Eq. 555. 5 Atl. 105. These later decisions were considered by Vice Chancellor Van Fleet in Crimmins v. Crimmins (1887) 43 N. J. Eq. 86, 10 Atl. 800, as overruling Colfax v. Colfax; and on a bill filed by a widow against heirs at law of her husband to set aside a deed made to the husband of property formerly standing in her name, because of fraud and undue influence practiced on her by the husband, the Vice Chancellor held that the wife was ato transactions with the decedent was not admissible. But as I understand these cases before the vice chancellors, in neither of them was a decision upon this point necessary. In Greenwood v. Henry it was decided that the testimony, if within the statute, was admissible under an exception expressly made by the statute, and in Kempton v. Bartine, the court on appeal expressly declined to consider the question because it was not involved. I must therefore be governed by the Crimmins and Vreeland decisions, and their construction of the effect of the previous decisions on appeal, and especially so as the Vreeland Case was decided subsequent to Greenwood v. Henry. And as to the effect to be given to Joss v. Mohn as qualifying or affecting the previous decisions of the Court of Errors and Appeals or in chancery, it should also be stated that Vice Chancellor Reed, who, as associate justice, delivered the opinion of the court in Joss v. Mohn, has subsequently, in Wyckoff v. Norton (1900) 60 N. J. Eq. 474, 477, 46 Atl. 614, given his view of the effect of the former decision, and his conclusion that the decision in Joss v. Mohn has not affected the admissibility of evidence against devisees in cases where the devisees are sued merely as the owners of land upon which, or in relation to which, equitable rights are claimed. In this status of the decisions, I must hold that the question of the admissibility of the evidence has been settled affirmatively by authorities binding upon me.
3. The debts of the testatrix, including the debt due petitioner, were charged on the lands by her will. The will first directs "that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be after my decease," and then, after two pecuniary legacies of $300 and $200, proceeds, "I give, bequeath and devise all the residue of my estate, both real and personal and wheresoever situated to my three daughters [the petitioner and the two respondents] to be equally divided between them share and share alike," etc. This general direction of the testatrix that her debts be paid charges them on the real estate, under our decisions. Shreve v. Shreve (Err. & App. 1864) 17 N. J. Eq. 487, 494; Thomas v. Thomas (Beasley, Master) 17 N. J. Eq. 356; Suydam v. Voorhees (Reed, V. C, 1899) 58 N. J. Eq. 157, 43 Atl. 4. The personal estate is, of course, the primary fund, but in this case the personal estate has been exhausted.
4. The petitioner's debt being charged on the lands, she has a right, as creditor, to enforce in this court the equitable lien thus created against the lands (Suydam v. Voorhees, supra; also 3 Pom. Eq. § 1247), and the lands having been sold free from petitioner's debt, by the decree obtained in the partition suit, which directed a sale of all the petitioner's rights in the land, the lien or charge may be enforced against the proceeds of sale. "Sale of Lands," Gen. St. p. 2984, par. 20. Independent of this statute, the rule seems to be that, where a sale in partition has been made, a creditor may come in by petition to have the debts paid out of the proceeds of sale. Latimer v. Hanson, 1 Bland, 51, approved in Speer v. Speer (Green, Ch. 1862) 14 N. J. Eq. 240, 251, and the practice of this court in relation to the application of executors and administrators for so much of the proceeds as is necessary to pay the debts (whether they are parties to the suit or not) is based upon this theory.'
5. The debt being a charge upon lands, created at testator's death by his will, there is an equitable estate or interest in lauds, and, the debt not being barred by the statute at the testator's death, it may be enforced within 20 years from testator's death, as if it were a legal estate given by the will. Condit v. Bigalow, 64 N. J. Eq. 504, 515, 54 Atl. 160, and cases cited. The remedy by lien may be enforced even if action at law for the debt is barred. 11 A. & E. Encyl. (2d Ed.) pp. 177, 152.
6. The other exceptions to the master's report have been considered, and are overruled. The items excepted to are the payments made by petitioner, as one of the tenants in common, for the benefit of the estate. These were properly made, as the master finds, and I see no sufficient reason has been urged for rejecting any of those items allowed. The claim that the petitioner excluded the other tenants in common from the premises is not sustained by the evidence.
Payment to petitioner from the funds in court will be advised, in conformity with the master's report.