Wilkes v. . Harper

*593 Gardiner, J. The complainants are the legatees and devisees of Charles Wilkes, the testator, and some of them the heirs at law of Horatio Wilkes, his executor, who died intestate. As legatees of Charles Wilkes they in no sense sustained to their co-legatee Horatio, or to each other, the relation of surety in respect to the debt of the Misses Garnett, or any other demand against the estate of their testator. According to the revised statutes, 452, section 28, “ The whole amount which a creditor of the testator shall be entitled to recover, shall be apportioned among the legatees in proportion to the respective amounts of their several legacies, and such proportion only shall be recovered of each legatee.” The judgment prescribed by the 30th section is to the same effect. Their liability as devisees in respect to the real estate was in like manner several, and limited by the estate, interest, or right devised to them by the testator. (2 R. S. § 32.) The complainants were therefore sejiarately liable for their respective proportions, and the payment of Horatio’s share by the other legatees, if at his request, would have been money advanced for his use; and if voluntarily made without his assent, it would impose no obligation, either legal or equitable, upon him or his representatives. The same remark is applicable to that portion of the estate of Charles Wilkes which came to the hands of Horatio as executor, either with or without the assent of the complainants, and which was wasted by him. In either case, Horatio would have become the debtor of his co-legatees or devisees respectively for their distributive shares of the testator’s property. But this would give them no lien either at law or in equity upon the real estate devised to Horatio. We agree fully with the chancellor, that there was nothing in the nature of an equitable hypothecation by Horatio of his interest as devisee in the real estate of his father as a security for the faithful performance of his trust as executor. It is urged by the counsel for the appellants, that at the time of the payment by Hamilton Wilkes of the Garnett debt, as stated in the bill, the share of Horatio in the house in Laightstreet had descended to his brothers and sisters, and they were *594 liable in respect to that share to make good to the creditors of Charles Wilkes the contributory share of Horatio as devisee of Charles Wilkes to the payment of his debt; that the payment by Hamilton was a payment by them all; and as it included Horatio’s contributory share, they Lad an equitable lien upon his share of the testator’s property for their indemnity. The complainants, it must be remembered, are the widow and surviving children of Charles Wilkes, and the husbands and trustees of the daughters. The bill states that the Garnetts demanded payment of their debt from the estate of Charles Wilkes. It alleges that they were advised that they were liable in respect of any estate or moneys received from Charles Wilkes ; not in respect of the estate which descended to a part of them from one of his devisees. And being so advised, Hamilton Wilkes thereupon paid the debt with his own money, under an agreement with all the complainants that it should be considered a payment in behalf of the estate of Charles Wilkes. They then insist that Hamilton Wilkes ought to be subrogated to the right of the Garnetts to the extent of $2,200, the contributory share of Horatio, and that the former has a lien for that amount paramount to the personal creditors of the latter. The payment was therefore on account of the presumed liability of the complainants as legatees and devisees of Charles Wilkes; and their promise of repayment-was in the same character. Hence the claim that Hamilton should be substituted in place of the Garnetts, and paid the contributory share of Horatio, is in behalf of all the complainants as legatees and devisees of " Charles, and not in behalf of the heirs of Horatio "Wilkes. The whole frame of the bill is therefore inconsistent with the idea now suggested for the first timo, that the money was advanced to the Garnetts by Hamilton, at the request of his co-heirs in respect to his and their liability as the heirs of their brother. And, in the second place, the complainants who were heirs at law of Horatio Wilkes, were in that character liable for all his debts to the extent of the real estate inherited by them. (2 R. S. 452, § 82.) In order to retain the property they were *595 bound to pay both the contributory share of Horatio for the Garnett debt, and the judgmenthf the defendants. The bill is silent as to the value of Horatio’s interest in the Laight-street property. For aught we can say, it may have-been sufficient to discharge both demands. The most that the heirs of Horatio can claim is, that they have paid a debt of their ancestor which was preferred to that of the appellees by the equity of the statute. (2 R. S. 455, § 48.) But if the residue of the real estate, after deducting the contributory share of Horatio to the Garnett debt-, was sufficient to pay the judgment of the appellees or any part of it, they ought not to have been restrained by injunction from obtaining satisfaction pro' tanto. The decree of the chancellor must be affirmed. Decree affirmed.