This cause was heard on bill, answer, replication, and oral evidence, at the same time as the appeal from the Probate Court of Pawtucket, Mowry v. Robinson, ante, p. 152, and involves the same facts. The bill, after stating the facts relative to the estates of Spencer B. Mowry, Senior, and Spencer B. Mowry, Junior, goes on to allege that the father and son left real estate, but that the personal estate, in both cases, was insufficient to pay debts, c.; that said Barnes appealed from the decision of the commissioners for delay; that there was no valuable consideration for the conveyances from the heirs to him; that he has received the rents and profits of the estate; that the real estate being probably sufficient only to pay the debts of the father, the administrator of the son is entitled to the rents and profits to apply to the debts of the son; that when sold on the decree for the debts of the father, the administrator of the son is entitled to the surplus, and the bill contains a prayer for a receiver, and for an injunction.
The answer denies the insufficiency of the personal estate, alleges that the reports of the commissioners were erroneous; that the deeds to Barnes were for a valuable consideration; that there is real estate enough to pay the claims against both estates; that Barnes purchased at the request of the widow, and on her representation that there were no claims against the estates, and that *Page 157 on these grounds she should be estopped by said representations from setting up her claims against his rights in the real estate, and prays that she may be enjoined from prosecuting them, and that he may be held entitled to relief in equity, and to the same relief as if he could have appeared and had appeared before the commissioners and contested her claims.
A portion of the answer is in the nature of a cross-bill under Pub. Laws R.I. cap. 563, § 10, April 20, 1876.
It is contended by Mr. Barnes that the report of the commissioners is in the nature of a judgment, which can bind only the parties to it, and that he was not a party to it.
In most cases in our probate proceedings the notices are given, not personally, but by public advertisement to all parties interested. The law gives the right of appeal only to creditors and persons entitled to distribution. And as the heirs from whom he purchased would be entitled to distribution, he might have appeared in their right, and the court might have sustained an appeal taken by him in the name of his vendors. He, Barnes, did appeal in his own name, and the court dismissed his appeal, because it was taken from the decree of the Court of Probate and not from the judgment of the commissioners.1
The decision of the commissioners, not being reversed, was good against the distributes and heirs, and the purchaser from the heirs steps into their place and succeeds to their rights and no more.
The respondent Barnes claims relief on the ground that the widow is estopped by her representations to him from setting up her claims, and that he ought on this ground to be relieved in equity, inasmuch as he could not have made this defence before the commissioners; their only duty being to decide whether the debt was due, and not whether she was estopped from claiming it. But we are not satisfied with the evidence on which this estoppel is claimed.
Upon the view we have taken of other points, the question of the consideration in the deeds becomes of no importance, as also the question of whether the estate is sufficient or not to pay the debts of both father and son. It will be in the power of the *Page 158 purchaser, Mr. Barnes, to attend the sale and prevent a sacrifice of the property.
The administrator of the son claims the rents and profits of the real estate.
It is frequently the case, and especially in small estates, that the administrator takes possession of both real and personal estate and applies the income of the real estate as well as the personal to debts and expenses. This is by consent, and from a desire to economize and pay debts and save what can be saved for the family. In such cases the administrator becomes the agent of the heirs to receive and apply the income at law, or under the ordinary probate jurisdiction. But he has no such right without consent. The heirs are entitled to possession and to the profits until the realty is sold by the administrator to pay debts, excepting only the case of emblements specified in the statute. Gen. Stat. R.I. cap. 174, § 5.
Whether in the administration of estates in a court of chancery the general rule is different, or whether there are any special circumstances in the present case to except it from the ordinary rule of law, is a question which it may be necessary to decide in some subsequent stage of the proceedings, but not now.
We see no necessity at present for granting the prayer for a receiver; but if the whole estate is sold for the father's debts, the surplus remaining will take the place of the real estate which would have gone to the son, Gen. Stat. R.I. cap. 168, § 14, and would have been liable for his debts.
But the son also has died leaving debts, and the purchaser, Barnes, now represents the heirs of the son.
It is the duty of the court to see that this surplus is applied to the debts of the son, and if there should be any surplus after paying the debts of both father and son, it belongs to the purchaser, and the decree must be drawn accordingly.
Decree accordingly.
The case came again before the court for consideration, the complainant contending that the estate should be administered in this court and that the heirs of Spencer B. Mowry, Junior, should be required to account for the rents and profits received by them from his realty while in their possession. *Page 159
Gen. Stat. R.I. cap. 176, contains the following provision:
"SEC. 10. No person entitled to a share in any deceased person's estate shall have a right to demand the same within three years after administration or letters testamentary granted on such estate, unless he shall give bond to the administrator or executor, with sufficient surety, to be approved by the Court of Probate, to refund the proportionate share of the estate, in case any debt or debts should afterwards appear against the same, and the executor or administrator should not have a sufficiency of the estate in his hands, undivided, for the payment thereof:Provided, that the heirs at law or devisees may, during said term, take the rents and profits of the real estate as heretofore."
Gen. Stat. R.I. cap. 178, contains the following provisions:
"SEC. 1. The estate of every deceased person shall be chargeable with the expenses of administering the same, the funeral charges of the deceased, and with the payment of his just debts; and the same shall be paid by the executor or administrator of the estate out of the same, if, and so far as, sufficient therefor.
"SEC. 2. The personal estate shall stand chargeable for such expenses, charges, and debts, in the first instance, and the real estate for all the same which the personal estate shall be insufficient to satisfy, unless the deceased has otherwise directed by his last will and testament.
"SEC. 14. No heir or devisee of any deceased person shall have power, within three years and six months after the probate of the will, or grant of administration on the estate of such person, to incumber or aliene the real estate of the deceased, so as to prevent or affect the sale thereof by the executor or administrator, if necessary, as prescribed by law: Provided, that after the expiration of three years and six months, the heir or devisee may aliene or incumber the same, and the same shall not be liable for the debts of the deceased in the hands of the purchaser thereof, or of any other person.
"SEC. 15. The liability of the real estate of deceased persons for the payment of their just debts may be enforced by actions of the case, to be brought against the heirs at law or devisees of such estate: Provided, the personal estate of the testator or intestate be insufficient for the payment of his debts, funeral charges, and expenses of supporting his family and settling his estate. *Page 160
"SEC. 16. Such action shall be brought against all the heirs and devisees who took such estate by devise or descent from the testator or intestate, if to be found in person or estate.
"SEC. 17. The writ in such action shall be served by attaching such real estate in the first instance, by process of summons and attachment, if such estate has not been aliened by such heir or devisee; and in case of alienation, shall be in form and served as writs in other cases.
"SEC. 18. The execution in such action shall be served upon, and the debt and costs levied and collected out of, the estate received from the testator or intestate by the several heirs or devisees, in the same proportion that they hold the same, if such real estate remain unaliened, and it can be conveniently so done; and in case it be levied in any other proportion, the parties aggrieved thereby shall be entitled to a joint or several action against any person or persons in arrears, to recover such arrearages, with costs.
"SEC. 20. If the heir or devisee of any such real estate shall aliene any such estate, before the same shall be attached for the debt of the testator or intestate, such heir or devisee shall be liable to pay the value of the estate so aliened, to the creditor of the testator or intestate, to be ascertained by a court or jury, who shall assess the damages in the suit that may be brought against such heir or devisee as aforesaid; and the execution in such case shall be served upon the heir or devisee who shall have aliened as aforesaid, or shall be levied on his estate, in manner prescribed by law for his own proper debt."
1 Barnes v. Mowry, 11 R.I. 420.
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