Hunt v. Danforth

CUBTIS, Circuit Justice. Mrs. Mary Hunt, hy her next friend, her husband also joining, brings this bill, against .the executor ■of Burrington Anthony, to enforce the execution of a trust expressly declared by the latter in his lifetime in her favor for her sole use. The bill is demurred to; and the first ground taken in support of the demurrer is, that as the bill shows that a liquidated .sum of money is due from the estate of the testator, the remedy is exclusively at law .by an action for money had and received in the joint names of the husband and wife. The provision of the ldth section of the judiciary act of 1789 (1 Stat. 82), that suits in equity shall not be sustained when there -,is a plain, adequate, and complete remedy at the common law, is merely declaratory, and made no change in equitable remedies; to bar which, the remedy at law must be •as efficient to secure all the equitable rights of the complainant, as that in equity. Boyce v. Grundy, 3 Pet. [28 U. S.] 210. The right of a feme covert to receive and enjoy a sum •of money to her separate use, cannot be deemed- sufficiently protected by a suit at •the common law in the joint. names of her husband and herself. Such a suit reduces the chose in action to his possession, ■not to hers. And so far from its being the only remedy for the recovery of money .due to the wife under a trust for her sole use, I apprehend a court of equity would enjoin the husband, on the application of the wife, from prosecuting such a suit, if. he were to commence one. Moreover, this is the case of an express trust; and though the bill avers that a particular sum was obtained by the trustee from the sale of the trust property, yet an account must be taken of the proceeds of the sale, and of any allowances claimed for the trustee by his executor. The next objection is, that the assignment to Anthony in trust for the complainant, did not convey the right of the lessee to the buildings, or to be paid for them by the landlord, under the special contract contained in the lease. I am of opinion it transferred all the rights of the lessees, and among others, the right now in question. The covenant of the lessor to purchase the building at a valuation, or allow it to be removed, being a covenant which touched the thing demised, namely, the messuage and land, and affected its mode of occupation, was a covenant which ran with the land. It is not necessary that the particular subject of the covenant should be in esse, to cause it to run with the land. In Bally v. Wells, Wilm. 344, Lord Chief Justice Wil-mot says of such covenants, if they relate to a thing not “in esse,” but yet the thing to be done be upon the land demised, as to build a new house, or wall, the assignees, if named, are bound by the covenants. So a covenant to apply insurance money to rebuild, runs with the land. Vernon v. Smith, 5 Barn. & Ald. 1. And the rules laid do'wn in Spencer’s Case, 5 Coke, 17, lead to the same result. The right to the benefit of this covenant of the lessor, therefore, passed to the assignee by the assignment of the lease, and the money received by virtue of the covenant was received by the assignee in trust for this complainant. The remaining objection grows out of the fact that the estate of Burrington Anthony has been represented insolvent by the executor, to the probate court of the state, and that. Mrs. Hunt, the complainant, through her attorney, presented this claim to the commissioners, appointed to receive and report upon claims against the estate, and it was rejected by them. It was rightly conceded at the bar. that the mere fact that an estate has been represented insolvent, does not prevent citizens of other states from coming into this court to establish their claims. No state law can, proprio vigore, deprive this court of jurisdiction conferred by the constitution and laws of the United States. Suydam v. Broadnax, 14 Pet. [39 U. S.] 67, is in point; and has been affirmed by a decision made by the supreme court at the last term. But it is insisted that the jurisdiction of the commissioners was concurrent with that sought for in this case; and the complainant having voluntarily submitted to that jurisdiction and had a decision against her, [911] is barred. The statute of Khode Island (I\ L. 253, etc.), after providing for the appointment of commissioners to receive and examine all claims of creditors, further says, (.section 5,) that notwithstanding the report of the commissioners, any creditor whose claim is wholly or in part rejected, may have the same determined at common law, in case he shall give notice thereof in writing in the clerk of probate’s office, within twenty days after such report shall toe received, and bring and prosecute his action as soon as may be. The 7th section provides, that “When a claim shall be settled by referees, or in the course of the common law as aforesaid, execution shall not issue,” &c. It thus appears, either that the only claims which could be determined by the commissioners were such as could be tried according to the course of the common law, or that their determination of all equitable claims was to he final, ¿nd no further proceeding could be had thereon before any tribunal at the instance of the claimant. It is extremely improbable that the latter was intended by the. legislature. No valid reason is perceived why the claimant -of an equitable right should be concluded by the report of the commissioners, when all legal rights are expressly allowed to be prosecuted before the ordinary judicial tribunals, as if no report had been made thereon. And this improbability is greatly strengthened by the sixth section, which enacts that, “In case the executor or administrator shall be dissatisfied with any creditor’s claim allowed by the commission, and shall give notice thereof in the clerk of probate’s office, and also to the creditor within twenty days as aforesaid, such claim shall by the court of probate, be stricken out of the commissioner’s report” It can hardly be supposed, that a creditor whose equitable claim had been disallowed, was not to have power to object and prosecute further, while the .administrator or executor had power to object if it was allowed. and thus annul the report in his favor; that a report, final and conclusive, upon one party should be of no avail against the simple objection of the other party. But further, suppose an equitable claim having been allowed and stricken out on the objection of the administrator; how is the creditor to proceed? The act has provided •only for the trial of claims before the courts, in the course of the common law. This appears not only from the fifth section, which grants to the creditor only a right so to have his claim determined, but .also from the seventh section, which regulates what is to be done when the amount ■of the claim shall have been ascertained; and which confirms its provisions to “claims settled in the course of the common law.” So that if the commissioners have jurisdiction to decide on merely equitable claims, their report against the claimant binds him; but their report in his favor may be annulled by the objection of the administrator; and as such a claim cannot be prosecuted according to the course of the comiiion law, it is finally defeated by that objection. No one can suppose such is the law of Rhode Island, and the only alternative is to hold, that of merely equitable claims the commissioners have no jurisdiction. [.See Case No. 6,888.] Though at first view, this conclusion may seem to present an anomaly, in the system for the distribution of estates of persons deceased insolvent, on further consideration, it will be found not of much practical importance; because a court of equity, in which alone the claims under consideration can be prosecuted, can so mould its decrees as to prevent any disturbance of the rights of other creditors, and to protect executors and administrators from exposure to injustice. I believe it to be true, also, that at the time this system was framed, merely equitable claims not cognizable at the common law, were but little considered in the legislation of the state, and that it should not excite surprise that in this matter no special provision was made for them. I am not aware that the supreme court of Rhode Island has ever considered this question. I should have been much relieved to find that learned court had done so. In Connecticut, it was held in Brown v. Slater, 16 Conn. 192, that commissioners on insolvent estates have the powers of courts of equity as well as of courts of law. But the statutes conferring their power differed materially from those of Rhode Island. Having come to the conclusion that the commissioners had not jurisdiction over a claim which cannot be prosecuted according to the course of the common law, and as this claim by a married woman in her own name, for an account of property held by a trustee for her separate use could not be thus prosecuted, it follows that the presentation of this claim by her. and its dis-allowance by the commissioners, cannot af-feet her right to go into a court of equity for relief. If any authority be necessary in support of this last position it may be found in Varick v. Edwards, 1 Hoff. Ch. 412, where the vice chancellor has carefully examined the cases. His decision, that a judgment of a court of common law, upon a claim which is exclusively of equitable cognizance, does not bar relief in equity, is supported both by authority and principle. My opinion is, that the complainant has not submitted to a jurisdiction which could act on her claim; and that the case stands, as if it had not been presented to the commissioners. The demurrer is overruled; and the defendant must answer.