Lilly v. . Wooley

Smith, C. J. (after stating the facts). It is a well understood rule in the administration of the estate of a deceased debtor, that his'personal property must be first applied and exhausted, and the residue only of unpaid liabilities, can be satisfied out of his real property. If the representative into whose hands the personal effects come, make a distribution among the legatees or next of kin, he is personally answerable therefor to the creditors. Bland v. Hartsoe, 65 N. C., 204. If the assets are wasted or misapplied, and the representative removed for misconduct, his successor, administering de bonis non, must sue on the administration bond and collect the amount of the devastavit, if the sureties are solvent, before he can proceed ¿gainst the devised or descended lands. Latham v. Bell, 69 N. C., 135. And his application for license to sell the decedent's lands will be refused, if the money so misapplied can be replaced by an action against the former representative, and his official sureties. Carleton v Byers, 70 N. C., 691. When there is no personal estate, or it is insufficient to pay the debts of the decedent, or when consisting in slaves, it is lost by the vis major of war, without default of the representative or of the legatee or next of kin, to whom they have been delivered, the land becomes chargeable with the debts, and may be sold for their payment. Hinton v Whitehurst, 71 N. C., 66, and payment may be enforced against any tract for the satisfaction of the indebtedness, leaving those, whose property may be taken, to obtain contribution according to the respective values of the other lands held by devisees or heirs. In the present case, the obligors executing the administration bond, except one, áre insolvent, and he, though possessed of property in another State, has none in this, and has become, since he executed the bond, a resident in Florida, and not accessible *416 to process issuing from a home court. The Court ruled that this fact was a bar to any remedy against the debtor’s real estate, until the remedy against the solvent surety has been exhausted. No decided case or authority has been adduced to sustain the ruling, and the proposition does not command our approval. We do not understand the law to be, under the adjudications of the Courts, that the creditor here residing, must pursue his remedy upon the administration bond, against a surety to it in a distant State, and exhaust this source, before he can resort to the debtor’s real estate, found in this State. The rule which puts the personal in front of the real estate, in payment of debts, has reference to cases where both are within the jurisdiction of the Courts, and can be reached by process, and not to cases where only the latter can be thus subjected. The policy of the law, looks to the payment of debts due to home creditors, out of such property, whether real or personal, of the non-resident debtor, within the limits of the State, as is under jurisdictional control, and capable of being thus marshalled. It would be unreasonable, when the means of enforced payment, out of the debtor’s lands, are here furnished, to force resident or other creditors, to follow the person and property of a surety, liable, not in person for the debt, but a guarantor of the fidelity of a principal, who has wasted or misapplied trust funds in his hands. The requirement that the personal property of the deceased must be first applied, or redress sought upon the bond given for its proper administration, and representing it, cannot, upon any just principle, be extended to a case where these resources are not accessible to the process of the Court. The difficulties arising from permanent absence of both person and property, (for we do not attach importance to the fact that he frequently visits the State), are scarcely less formidable in the way of coercing payment, than insolvency itself. When the Courts of the State can give its creditors redress upon property here, it will not drive them to seek it in a foreign tribunal. This is the policy which underlies our attachment laws. *417 It was error, therefore, to refuse judgment against the heirs-at-law, subjecting the land fund to the payment of what could not be made out of the personal estate, and the ruling in this regard must be reversed. As the cause can be proceeded with to greater advantage and convenience in the Court below, it is remanded,Let this be certified. Error. Reversed and Remanded.