Wallace v. Keyser

The opinion of the court was delivered, by Agnew, J. The debt set forth in the plaintiff’s bill was simply a judgment of Elhanan Keyser, the intestate, against his sons George and Francis, and is not alleged to be an advancement. The money in the hands of Wallace, the defendant, was not a fund in the course of distribution, but merely purchase-money arising from a private sale by the heirs of the intestate of the real estate placed in his hands for the use of the judgment-creditors of George and Francis in lieu of the liens they had released. The case does not fall within that numerous class of decisions, holding that the debt of a legatee or distributee may be set off against the claim for the legacy or share in a court of law, or retained from a fund to be administered’ in a court of equity: Earnest v. Earnest, 5 Rawle 213; McConkey v. McConkey, 9 Watts 352: Manifold’s Estate, 5 W. & S. 340; Springer’s Appeal, 5 Casey 208; Strong’s Executor v. Bass, 11 Casey 333; Thompson’s Appeal, 6 Wright 345. In these cases the debtor is seeking the aid of the law, and is met by the principle that he must do equity before he receives it. But the plaintiffs here, without an advancement which diminishes the share, or a lien which encumbers it, are seeking active aid [498] from a court of equity, upon principles of mere abstract justice. Abstractly, it is right that an heir to real estate who owed a debt to his ancestor should take his share less the debt, but the right is imperfect, and cannot be enforced until the party or the fund comes into the power of the law. In an action of ejectment, if the defendant should set up an independent debt against the plaintiff to bar recovery, the equity would be precisely of the same description. But equity in this respect follows the law. By the Intestate Act the realty descends in fixed proportions, subject to no diminution of quantity, except by advancement or settlement; and this only by a legal retrospect, constituting it a present portion of the entire estate. It makes no difference whether the advancement was in land or money, but the law founds itself on the intention of the ancestor, making it a present portion of his descend-able estate in advance of his death. Hence the intention must be disclosed by acts or declarations legally fixing this as the mind of the testator. This fact may be difficult of discovery, but nevertheless is clear in principle: King’s Estate, 6 Whart. 370; Haverstock v. Sarbach, 1 W. & S. 390; Levering v. Rittenhouse, 4 Whart. 130; Lawson’s Appeal, 11 Harris 85; and a debt cannot be loosely turned into an advancement: Roland v. Shrack, 5 Casey 125; Haverstock v. Sarbach, supra. An heir needs no aid from a court of law or equity. His share being fixed by his relation and possession taken by entry, he stands on his legal right of quantity against all claims, except by advancement or settlement, operating by way of qualification in the law itself which declares his proportion. In such a case equity cannot intervene against the law to administer a mere abstract principle of justice. Unless he is compelled to ask the aid of equity to come in upon a fund derived by conversion of the estate, there is no means of reaching him for a debt, except by the ordinary course of judgment and execution. Ilgenfritz’s Appeal, 5 Watts 25, has no application to this case; and the only point decided — that grandchildren take by substitution, and' not by representation — has been overruled in McConkey v. McConkey, 9 Watts 352. Manifold’s Estate, 5 W. & S. 340, was decided on the ground that the fund was in the hands of the administrator for distribution, enabling him to retain for the debt of the son. Springer’s Appeal, 5 Casey 208, was also a case of distribution; and the expression of Lowrie, J., that in distribution the debt of an heir may be treated as an advancement, had reference to the fact as found in the court below, and not to the question now before us. There is nothing in the 16th section of the intestate laws countenancing the idea of deduction, except by way of advancement or settlement. Finding no error in the record, the judgment is affirmed, with costs against the appellants.