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him,29 but a beneficiary may protect himself by requiring all debts and expenses to be paid prior to distribution.30 Charges for the payment of legacies will follow the land in the hands of bona fide purchasers for value without actual notice; for the purchaser in such cases is affected with constructive notice of the charge;31 although as between two purchasers, one having constructive, the other actual notice, the latter should be first charged.32 But it has been held on the other hand that a bona fide purchaser for value from a devisee who had been directed to pay the testator's debts, need not look to the application of the purchase money.33 In England, in a

(In re Jones' Estate), 80 Kan. 632, 25 L. R. A. (N. S.) 1304, 103 Pac. 772.

29 Walker v. Ganote, (Ky.) 116 S. W. 689; Hill's Admr. v. Grizzard, 133 Ky. 816, 119 S. W. 168; Converse v. Nichols, 202 Mass. 270, 89 N. E. 135; Hill v. Moore, 131 App. Div. 365, 115 N. Y. Supp. 289; Hebert v. Handy, 29 R. I. 543, 72 Atl. 1102.

The procedure depends on the local statutes. Mathewson v. Wakelee, 83 Conn. 75, 75 Atl. 93.

A creditor who has no lien on property devised is entitled only to a personal judgment against the devisee to the extent of the property received by him.-Wendel v. Binninger, 132 App. Div. 785, 117 N. Y. Supp. 616.

Where complaint against administrator and heir shows assets in the hands of the former, no cause of action exists against the heir.McKillop v. Burton's Admr., 82 Vt. 403, 74 Atl. 78.

30 Chenault v. Crooke, (Ky.) 128 S. W. 302. See, also, Richards v. Gill, 138 App. Div. 75, 122 N. Y. Supp. 620, decided under Decedent Estate Law (Consol. Laws, ch. 13, § 101); Green v. Dunlop, 136 App. Div. 116, 120 N. Y. Supp. 583, referring to action against heirs and devisees under the New York

Code.

31 Wallington v. Taylor, 1 N. J. Eq. (Saxt.) 314; Harris v. Fly, 7 Paige Ch. (N. Y.) 421.

32 Aston v. Galloway, 38 N. C. (3 Ired. Eq.) 126.

A purchaser will take subject to the charge, notwithstanding a paper executed by the cestui and recorded, in which she stated that the trust money had been invested to her satisfaction, and that she released the land from the charge. -Dickinson v. Worthington, 10 Fed. 860, 4 Hughes 430.

33 Grotenkemper v. Bryson, 79 Ky. 353.

modern ruling on this point, it was held that where executors in whom the legal fee is vested are selling real estate charged with debts, a purchaser is not bound nor entitled to inquire whether debts remain unpaid, unless twenty years have elapsed from the testator's decease.34

Statutes have been passed in some jurisdictions protecting innocent purchasers from devisees.35 In New York, where a testator devises his lands after his debts shall have been paid, the statutory lien expires after three years, and a good title may then be given.36 When real estate not chargeable with debts has been sold to pay them, the devisee thereof may subject other lands which were charged with the debts to his claim for reimbursement.37

§ 804. Marshaling of Assets.

The term "marshaling of assets," as applied to the settlement of estates of decedents, may be said to be such an arrangement of the various funds of the estate as to enable all parties having equities to receive their due proportions, notwithstanding any intervening interest, liens

34 In re Tanqueray, L. R. 20 Ch. Div. 465.

35 Rich v. Morisey, 149 N. C. 37, 62 S. E. 762.

36 White v. Kane, 1 How. Pr. (N. S.) 382, 51 N. Y. Sup. Ct. 295; Hill v. Moore, 131 App. Div. 365, 115 N. Y. Supp. 289.

A claim barred because of fail. ure to present same to executor or administrator of the estate can not be enforced against lands in the hands of the heirs.-Stewart v. Thomasson, 94 Ark. 60, 126 S. W. 86. But see O'Donnell v. McCann,

77 N. J. Eq. 188, 75 Atl. 999, to the effect that a creditor may recover against a legatee out of his legacy although his claim is barred as against the executor.

Action against devisee to enforce decedent's stockholder's liability does not accrue until death of testator, and the Statute of Limitations does not commence to run until then.-Richards v. Gill, 138 App. Div. 75, 122 N. Y. Supp. 620.

37 Cranmer v. McSwords, 24 W. Va. 594.

or other claims of particular persons to prior satisfaction out of a portion of these funds.38 Courts of equity have established rules for the marshaling of assets and for their appropriation in such manner that the equities of all parties are substantially met. The general principle underlying these rules is that the assets shall be so appropriated that every claim shall be satisfied in so far as the assets of the estate will allow, by an arrangement consistent with various claims.39

The decedent's legal representative or his creditor alone may maintain an action to marshal the assets, and the heirs at law are necessarily the parties defendant.40 Where a creditor's debt remains unpaid, whether it has been reduced to judgment or not, he may maintain a suit in equity against the personal representative of the decedent, his heirs and devisees, to marshal the assets and apply the proceeds thereof to the liquidation of the indebtedness against the estate.11

§805. The Same Subject.

The rules regarding marshaling of assets of an estate are founded on natural and moral equity, and not de

38 Farmers' Loan & Tr. Co. v. Kip, 192 N. Y. 266, 85 N. E. 59.

39 New York Life Ins. Co. v. Brown, 32 Colo. 365, 76 Pac. 799.

"If, for instance, a specialty creditor whose debt in England was a lien on the real estate, receive satisfaction out of the personalty, a simple contract creditor, who had no claim except on the personal assets, shall, in equity, stand in place of the specialty creditor as against the real estate so far as the latter has exhausted

the personal assets in the payment of his debts, and no further; and this because the specialty creditor could go against both personal and real estate or against either of them."-Hope v. Wilkinson, 14 Lea (82 Tenn.) 21, 52 Am. Rep. 149.

40 Still v. Wood, 85 S. C. 562, 67 S. E. 910.

41 American Bank and Trust Co. v. Douglass, 75 W. Va. 207, 83 S. E. 920.

duced from the contract between the debtor and the creditor. They do not depend upon the will or caprice of one creditor who has within his reach a double fund whereby, if unrestrained, he might disappoint another creditor of the satisfaction of his claim.42 If a creditor has a lien on two different parcels of land and another creditor has a junior lien on only one of the parcels, and the former elects to collect his whole demand out of the land on which the junior creditor has his lien, such junior creditor will be entitled either to have the prior claim or lien collected out of the other funds or have such claim or lien assigned to him, upon payment, and thus receive all the aid which it can afford him.13 The equitable principle is not to take from any prior lien-holder any substantial rights which he may have, but simply to enforce his just rights in such order of priority as will, without loss to him, protect as far as possible the subsequently acquired rights of others.44

§ 806. Widow's Right of Dower.

A widow is entitled to receive her dower free from encumbrance, and where a widow's interest in the lands of her deceased husband has been sold to pay her husband's mortgage debts she has an equitable claim to be reimbursed out of the personal estate in the hands of the executor or administrator, to the full value of her interest in the lands sold.45 This doctrine applies also to a case where the fund out of which the widow seeks to be

42 New York Life Ins. Co. v. Brown, 32 Colo. 365, 76 Pac. 799; Post v. Mackall, 3 Bland (Md.) 486.

43 Cheesebrough v. Millard, 1 Johns. Ch. (N. Y.) 409.

44 Sibley v. Baker, 23 Mich. 312.

45 McCord v. Wright, 97 Ind. 34; Shobe v. Brinson, 148 Ind. 285, 47 N. E. 625; Henagan v. Harllee, 10 Rich. Eq. (S. C.) 285.

reimbursed is derived from the sale of real estate as well as if the fund was the proceeds of personalty. If a widow receives a legacy in lieu of dower and a creditor has a lien upon the fund from which such legacy is to be paid, equity will subrogate her to the rights of the creditor.47

§ 807. Constructive or Equitable Conversion Defined.

A testator may direct in his will that specified real or personal property of his estate shall be sold and the proceeds distributed in a certain manner. By such directions the testator effects a constructive or equitable conversion of the property. Equity regards that done which should be done. Constructive or equitable conversion as applied to the law of wills is the transformation of real property into personalty and personal property into realty, not by reason of physical change, but by intendment. If the will of a testator directs certain lands be sold by his executor and the proceeds be given to certain beneficiaries named, the effect is not a devise of realty, but a bequest of personalty. It will be so treated for the purposes of taxation18 and the gift will be subject to the incidents attending legacies of such class. It is a general principle of equity that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted.49

46 Shobe v. Brinson, 148 Ind. 285, 47 N. E. 625.

47 Durham v. Rhodes, 23 Md. 233.

48 See § 288.

49 Smith v. Claxton, 4 Madd. 484; Given v. Hilton, 95 U. S. 591, 24 L. Ed. 458; Masterson v. Pul

len, 62 Ala. 145; Attorney General v. Hubbuck, L. R. 13 Q. B. 275; In re Pforr's Estate, 144 Cal. 121, 77 Pac. 825; In re Clark's Appeal, 70 Conn. 195, 39 Atl. 155; In re Stevenson's Estate, 2 Del. Ch. 197; Lash v. Lash, 209 Ill. 595, 70 N. E. 1049; Starr v. Willoughby, 218 Ill.

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