Minter v. Burnett (90 Tex. 245, 1896)

BROWN, Associate Justice.

This case was presented to the Court of Civil Appeals upon an agreed case, from which we make the following extracts and statements, covering the facts necessary to the determination of the questions submitted by that court:

“1st. Jerry J. Burnett died in Wichita County, Texas, on August 7th, 1894, intestate, and left surviving him his wife, Jesse Burnett, but left no children. He also left surviving him his father, Jerry Burnett,, and the following named brothers and sisters: S. B. Burnett, P. H. Burnett, T. H. Burnett, Mrs. T. A. Minter and Mrs. Mollie Christol, whose, husband is J. G. Christol. That the mother of Jerry J. Burnett, deceased, was dead at the time of his death. That Jerry Burnett, deceased,, never had any child or children.

“2nd. That on October 25th, 1894, S. B. Burnett was duly appointed administrator of said estate of Jerry J. Burnett, deceased, and duly qualified on ¡November 8, 1894, and on December 8, 1894, filed his inventory and list of claims according to law.”

The estate was solvent and was properly administered as required bylaw, except in the particulars complained of in this case. The inventory returned by the administrator showed that he had on hand four tracts of land, which it is unnecessary to describe here, of the aggregate value of $5930.

“That said values are the values shown in said appraisement »f said estate. That most of the personal property of Jerry J. Burnett consisted of cattle, situated at his death in the Indian Territory, and that his personal estate situated in Texas at the time of his death is not more than sufficient to pay expenses of administration and widow’s allowance and other debts not secured by lien on the real estate.”

On April 22, 1895, the administrator made application to the County Court for an order to sell certain real estate for the purpose of paying the-debts therein mentioned, which constituted and held vendor’s liens upon-the said land. All of these claims had been presented to and allowed by the administrator and approved by the County Court as required by law. Two of the notes which held liens upon two of the tracts of land had been paid off by the administrator, he being a surety upon the said notes. The other debt was still due to the original payees and regularly probated m their names. These were the only debts of the estate remaining unpaid. The administrator also had on hand in addition to the lands mentioned personal property and cash to the amount of $9000, it being principally in cash. Only $691.19 of the $9000 consists of property and of cash derived from the sale of the personal property that was situated in the State of Texas at the death of Jerry Burnett. The remainder of the cash, $8308.91, is money derived from the sales of partnership cattle, situated in the Indian Territory at the time of the death of Jerry J. Burnett, deceased, and afterwards sold by S. B. Burnett as surviving partner of the said J. J. Burnett, deceased, and brought into the State of Texas since the death of Jerry J. Burnett.

“That at the time of the death of Jerry J. Burnett most of his personal estate consisted of a half interest in a herd of cattle in the Indian Territory and outside the State of Texas; that S. B. Burnett owned the other half interest in said cattle, and that the said Jerry J. Burnett, deceased, and S. B. Burnett were partners in said cattle business. That after the death of said Jerry J. Burnett, and before the filing of inventory and taking out letters of administration, S. B. Burnett had sold a portion of said cattle as surviving partner, and received in payment therefor notes and cash, and brought the proceeds of said sale into the State of Texas, and rendered same in his inventory of said estate, and afterwards made a motion in Probate Court of Wichita County, where said administration of said estate was pending, to correct said inventory by leaving out said proceeds, which motion was refused by said court.”

That outside of the funds in the hands of the administrator derived from the sale of the cattle in the Indian Territory there is no personal property belonging to the estate out of which he can raise the money to pay off the said debts or any part thereof. The lands are not worth more than the amount of money for which they stand incumbered by the vendors lien. That the partnership "of S. B. and J erry J. Burnett owes no debts, all of the debts having been paid by the surviving partner out of funds derived from the sale of partnership property. That the allowances for the widow have been made except the homestead allowance and there is no land out of which the homestead can be set apart to her.

Due notice was given of the application for order of sale made by the administrator, and Mrs. J esse M. Burnett, the surviving widow of the decedent, appeared and joined in the prayer of the administrator for the sale of the land. Jerry Burnett, father of the deceased, and T. A. Minter and Mrs. Mollie Christol, joined by her husband, appeared by their attorneys and by written answer resisted the application, alleging that there was no necessity for the sale of the land, because the application showed money enough on hand to pay all the debts without any sale of the real estate and that under the law the personal property was the primary fund out of which the debts should be paid. The application made by the administrator showed fully the condition of the estate and all of the debts due and the property and money on hand at the time.

The case was tried in the County Court, the application granted and an order made for the sale of all of the lands for the purpose of discharging the debts which held vendor’s liens thereon; from that order Mrs. T. A. Minter, Jerry Burnett and Mrs. Mollie Christol, joined by her husband, appealed in due form to the District Court of Wichita County. Upon a trial de novo, had in that court, the land was ordered to be sold as prayed for; from which said judgment the said parties, T. A. Minter, J erry Burnett, and Mrs. Mollie Christol and husband appealed to the Court of Civil Appeals, which court has certified to this court the following questions:

"1. Did the application of the administrator for the sale of the land and the proof show any necessity for the sale?

er2. Are the father and brothers and sisters of the deceased, Jerry J. Burnett, under the facts shown in the agreed statement, entitled, as between themselves and the administrator and the widow, who inherited thv personalty, to have the purchase money for the land paid out of the money and personalty in the hands of the administrator, and to thus have their one-half interest in the land freed of any incumbrance; or, in other words, should the personal property belonging to the estate of Jerry Burnett be used in discharging the debts which are a lien for the purchase of the real estate, allowing the heirs other than the widow to receive one-half of the land freed from the incumbrance?”

In this State all property belonging to the estate of a deceased person which is not exempt from forced sale by law is liable in the hands of the executor or administrator to the payment of debts, and creditors áre not interested in the question as to what fund is primarily liable therefor, except in cases of insolvent estates, in which event there might arise a question as to the enforcement of the lien upon specific property before admitting debts secured thereby to participate in the general fund. The question as to what property is first liable-to the payment of debts against the estate of a deceased person usually arises between the persons who take such estate by descent or by will from the decedent. Under our law of descent and distribution this question will rarely arise, because both real and personal property descend alike to all the heirs, but in case of disposition of the property by will the question may often be of importance.

As between those persons who take the estate of the deceased by descent or by will, if there is nothing to indicate a different intention on the part of the deceased, the personal property belonging to the estate constitutes the primary fund for the payment of debts under the rules of the common law. (Arnold v. Dean, 61 Texas, 253; Hull v. Hull, 3 Rich. Ch. (S. C.) 85; Tower v. Lord Rous, 18 Ves. Jr. 131.) There is no conflict in the authorities upon this proposition and it is unnecessary to discuss it or add authorities to the few here named.

There is considerable conflict among the English cases as to what will render the purchaser from, or heir or devisee of, the mortgagor personally liable for the debt secured by a mortgage or other lien upon the land purchased inherited or received by devise. But there is no conflict in the authorities upon the following propositions:

(1) . If the deceased was not liable personally to the mortgagee or other lienholder for the debt secured upon the land, then the personal property cannot be applied to its satisfaction; he holds the land subject to the hen, but is not liable himself nor is his estate other than the land liable for the debt. Duke of Cumberland v. Cordington, 3 Johns., Ch. 228; Billinghurst v. Walker, 2 Brown Ch. 473 (*608); Tweddell v. Tweddell, 2 Brown Ch. 126 (*152); Barry v. Harding, 1 Jones & LaT., Ch. 475.

(2) . If a person dies and leaves land which is incumbered for debt contracted by the decedent, whether it be the purchase money of the land or borrowed money, secured by a mortgage, or if the decedent purchased land upon which there was then an incumbrance existing, and assumes to pay the debt in such manner as to render himself liable to suit by the creditor, then at common law, as between those who may take the personal property and those taking the real estate, the personal property would be liable as the primary fund to discharge the debt so secured, and the heir or devisee" who received the land from the deceased would have the right to insist upon the application of the personal property to its payment, or, if he had discharged the debt, would be entitled to be reimbursed for the amount so expended out of the personal property belonging to the estate. Johnson v. Corbett, 11 Paige Ch. 265; Cogswell v. Cogswell, 2 Edwards Ch. (N. Y.) 238; Hood v. Hood, 26 L. J. Eq. (New Series) 616; Oxford v. Rodney, 14 Ves. Jr., 417; Broome v. Monck, 10 Ves. Jr., 612; Woods v. Huntingford, 3 Ves. Jr., 128; Gould v. Winthrop, 5 R. I., 319; Dandridge v. Minge, 4 Band. (Ya.) 397.

It is not intended to include in the last proposition cases in which a contrary intention appears either from the contract or from the will under which the devisee claims, and, indeed, whenever such intention is established by lawful evidence. In fact, the general rule stated has a great number of exceptions which we do not deem it necessary to notice here.

Appellees insist that the paramount title to the land in question was in the vendors and that the deceased had nothing but an equity which does not entitle the appellants to have the lien discharged from the personal estate. The rule at common law is that when the contract of purchase is such that the vendee could be compelled to take the land, upon his decease that right descends to the heir, who can require the administrator to pay the purchase money, and perfect the title. Broome v. Monck, 10 Ves. Jr., 612.

, It is the settled law of this State that, as between the vendor and vendee, an express reservation of the vendor’s lien has the effect to reserve to the vendor the superior title to the land. This is however only for the purpose of enforcing the collection of the purchase money and has no application as between the vendee and third persons. The vendee’s title is subject to execution, may be sold by him, and will descend to his heirs. Stephens v. Motl, 82 Texas, 81; Baker v. Clepper, 26 Texas, 629.

Article 1689 reads as follows: “Where any person having title to any estate of inheritance, real, personal, or mixed, shall die intestate as to such estate, and shall leave a surviving husband, or wife, the estate of such intestate shall descend and pass as follows: *********_ If the deceased have no child or children, nor their descendants, then the living husband or wife shall be entitled to all of the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution.” Considering the estate in question as the separate property of the deceased husband, the surviving widow would, under this statute, take all of the personal property subject to the right of the heirs who share the real estate with her to have the incumbrance upon the land discharged by the personal propert}7, if the common law governs in the decision of the question. (Sutherland v. Harrison, 86 111., 363.) The case just cited involved the identical question presented here under a statute practically the same as ours. But appellees insist that the money in the hands of the administrator is not subject to be appropriated to the discharge of the lien on the land, for the following reasons:

First: Because under our statutes all property descends to the heirs, subject to the payment of debts, and the common law is not in force in this State so far as it affects this question, because its rules are inconsistent with our statute law on the subject.

Second: Because if the common law be in force, the money sought to be applied was derived from the sale of personal property situated in the Indian Territory at the death of the intestate, and is not subject to be-appropriated to discharge the lien upon this land.

The cases of Mullins v. Yarborough, 44 Texas, 14, and Arnold v. Dean, 61 Texas, 249, bear upon the question under discussion. The former case involved the riglrt of the administrator to apply personal property in his hands to the discharge of a lien upon the homestead which had been set apart to the widow and minor children, and the court held that the homestead was no part of the estate being administered by the administrator, and whatever right the children and widow might have had to-have the incumbrance discharged by the administrator under order of the-court, the administrator had no authority to do so except under the direction of the court. The right of those who received the homestead from the estate to have the lien discharged out of the personal property was not decided in that case.

In the ease of Arnold v. Dean, it was sought to have certain special legacies satisfied out of land belonging to the estate, there being sufficient personal property to pay the debts and the legacies; this court held that the personal property was the primary fund for the payment of debts and legacies. The same rules at common law apply to both debts and legacies, therefore the decision in that case is authoritative upon the point now under discussion. In neither of the cases cited, however, did the-court consider the effect of our statutes upon the question as to whether the common law was in force in this State in reference to the matter under litigation.

We will briefly examine the statutes of this State which it is claimed have the effect to displace the common law in so far as they bear upon this, question.

On the 5th of February, 1840, the Congress of the Republic enacted a law concerning the administration of estates which contained the following provision: