Moore v. . Shields

Rodman, J. 1. We have no difficulty in saying that the fund in the hands of Mr. Moore must be considered as the rents and profits of the lands. It is not a part of the land, because that remains in specie, in the possession of the heirs and it does not appear that it has been wasted or dilapidated. *331 2. As to the application of the fund, we think we are bound by the decision in Washington v. Sasser, 6 Ired. Eq. 336. Previous to that decision it was the general opinion of the profession, founded on what was said in Harrison v. Wood, 1 D. & B. Eq. 437, that the heir might hold against the creditors of his ancestor, all the profits of the land which accrued from the time of the descent cast up to a sale under process at law, or to a decree in equity, and that his right in this respect, was the same in a Court of equity as1 at law. The general rule that the creditors of the ancestor are entitled to all the rents and profits received by the heir, since the descent cast must now be considered established by Washington v. Sasser. It isjsupported by other authority-2 Story Eq. Jur. 1216, and Curtis v. Curtis, 2 Bro. ch. Cas. 628-633. It is said, however, that the creditors aa’e the only persons who can demand the application of this fund to the debts, and they ought to be parties, or some of them in behalf of all. They are substantially parties, for the administrator represents them, and there is no more reason for their being personally parties to a proceeding to subject the rents, and profits than for their being such in a proceeding to sell the lands. In either case they may come in if they have any reason to do so; if, for example, by reason of any adverse interest in the administrator, or from his misconduct he is not properly representing them. But until they do-come in personally, the administrator is their trustee and and representative. It is true, that an administrator is not accountable to the creditors for the rents and profits of the lands, unless he actually receives them, nor is he entitled to receive them any more than he is to sell the land, except upon the insolvency of the personal estate, and upon a proper action in Court for that purpose. It is his duty, by statute, to obtain an order to sell the land; it is not expressly made his duty to proceed to obtain the rents and profits* *332 but it is his duty in a proper case to do so, as a part of his general duty to collect the assets. If he fails to do either, he cannot be charged with the value of the land in one case, or with the rents and profits in the other as assets. The creditors may, as to the lands, obtain a judgment compelling him to sell them, and they may in like manner obtain a judgment that the rents and profits be paid to him, to be administered, if they be content that he shall administer them; or by a creditor’s bill they may have lands and profits administered by an officer of the Court, as personal assets; upon such a bill w’ould be, thus procuring an equality of distribution and excluding the administrator from his right to prefer. In the present case the creditors have not thought proper to come in, and the Court without some reason for it, will not take from the administrator the administration of the assets whether real or personal, which is his of right. Again, it is said for the heirs, that the land should be sold and the proceeds exhausted in preference to the rents and profits. There is no such rule of law, and we do not know of any reason why this should be so as a general rule. The creditors are entitled to have their claims paid ; but if there be more property than enough for this, it is no concern of theirs what particular property is applied for that purpose. That must be a matter of discretion in each case depending on the circumstances, and a Court will always make its judgments as to the selection of the property to be applied, such as to promote the interests of the heirs. But there is no case for selection made here. There is but one fund in Court. And if we could, in this case, order a sale of the land without its being applied for, we should think that in most instances it would be for the interest of the heir to extinguish the debts by the rents and profits not needed for his maintenance, and save the land. No reason is presented to make this an exception. *333 3. Washington v. Sasser also decides upon the authority of Thompson v. Brown 4 John, C. C. 619, that if the heir be an infant and the guardian has expended the rents and profits, or any part of them in his maintenance, only the part remaining unexpended is liable to the creditors. We-think that when a guardian has disbursed the income for the maintenance of his wards bona fide, and in ignorance of the insolvency of the estate, his equnity not to be compelled to pay those sxims over again to the creditors is a plain one. In this case the guardian has not actually disbursed any part of the fund, it not being in his possession; but he says that he has made advances or incurred liabilities for the wards, depending' on the fund in question for reimbursement, and that would be the same thing as disbursing. We agree with his Honor, the district judge, upbn this point. So much of the fund as will be equal to the-advancements of the guardian, made as aforesaid, will be adjudged to be paid to him; the residue of the fund will be' paid to the administrator, to be applied by him in due course of administration. If the parties do not agree upon the amounts, a reference must be had to take the necessary accounts. The costs will be paid out of the fund. If the parties desire it, the case may be remanded for further proceedings in the Superior Court, in conformity to-this opinion. Píse. Cubiam. Judgment accordingly.