While it is undoubtedly true that this court in equity has concurrent jurisdiction with the Probate Court in many cases, we do not think the present is a case for the exercise of it.
The heirs at law and their assigns, on the decease of the Mowrys, went into possession of their real estate, and the real estate on sale being insufficient to pay the debts, this bill is filed for the purpose, though not the sole purpose, of requiring the heirs to account for the rents they have received, and to have them applied to the payment of the debts.
Our laws furnish two different modes of reaching the estate of a deceased person in the hands of his heirs; first, by the administrator *Page 161 applying to have it sold to pay debts; second, by actions by creditors against the heirs.
It is very noticeable that while the land of the deceased is made generally chargeable for debts the statute contains an express provision, Gen. Stat. R.I. cap. 176, § 10, that no person shall have a right to demand his share of a deceased's personal estate within three years, unless he gives bond if debts appear, to refund his proportionate share of said estate, "Provided, that the heirs at law or devisees may, during said term, take the rents and profits of the real estate as heretofore."
In Gen. Stat. R.I. of A.D. 1872 and Rev. Stat. R.I. of A.D. 1857, this provision is under the head of "Descent, Distribution,c." In the Digest of A.D. 1822, page 235, where it first appears, and in that of A.D. 1844, page 147, it is under the head of "An act directing the descent of intestate estates and the settlement thereof, c." The Proviso is important because it recognizes the practical construction of the older laws.
So, also, in actions against heirs for debts of the ancestor. By Gen. Stat. R.I. cap. 178, §§ 14, 18, 20, if the heir has not aliened the execution is to be levied on the estate, and if he has aliened before suit he is to be liable "to pay the value of the estate so aliened," § 20 being the very words of the old English statute. There is no provision whatever as to accounting for rents and profits, and nothing from which we can infer any intention of the legislature that they should be accounted for. On the contrary, the inferences are strong the other way.
On any other construction, we can understand that cases of much hardship might arise. The family of the deceased, if in possession, may remain in possession, and may receive no profits otherwise than by use and occupancy; while, on the other hand, the executor may apply for a sale as soon as he can satisfy the Court of Probate that there is a deficiency of personal estate. This rests in the sound discretion of that court.
Formerly in England the Probate (Ecclesiastical) Court had jurisdiction only of the personal property. They could not prove a will of real estate, and had nothing to do with real estate, and it may have, therefore, been more necessary there for a court of equity to aid creditors in obtaining their debts, and it may often be necessary here in cases of fraud, in marshaling assets, in questions *Page 162 of subrogation, in enforcing contributions, in equitable assets, in discovery, c.
Here, so far at least as concerns the liability of the land, our courts of probate have complete jurisdiction and very ample powers. See 1 Story Eq. Juris. § 543 a, § 628, n.
In England, courts of chancery have ordered land sold to pay debts in many cases where the old law gave only the remedy byelegit, i.e. to hold until the rents paid the debt. Many cases of this sort are cited in Burton v. Smith, 13 Pet. 464, 481, which was a case from Virginia, where the law was similar to the English. But in regard to the rents and profits of land in the possession of heirs, the cases are few. Story, in 2 Eq. Juris. § 1216, Perry's ed., lays it down as law that equity will compel an account of them, and cites only Tyndale v. Warre, Jac. 212, where the subject is not even mentioned, the question being, whether a reversion, which had descended to the heir, should be ordered sold for the debt of the ancestor, and Curtis v.Curtis, 2 Bro. C.C. 620, where the widow sued for dower, obtained judgment, and the widow and the heir both dying, a bill was filed against the devisee of the heir for one third part of the rents or mesne profits from her husband's death. Sir Richard Pepper Arden, M.R., says, by way of illustration, p. 633: "It is the practice in equity, that bond creditors coming for a distribution of assets shall have an account of rents and profits, which they could not have at law." He refers to no authority in point.1
In Rowe v. Beavis, 1 Dick. 178, we find a decision reported in three lines only, that the rents of real estate descended are to be accounted for and applied before the inheritance is sold and applied. No facts are stated, nor anything whatever, to show the nature of the case. And on this question see, also, March v. Bennett, 1 Vern. 428; Waters v. Ebrall, 2 Vern. 606.
How much of this jurisdiction in England depends on statute is difficult to ascertain. By Sir Samuel Romilly's Act, 47 Geo. *Page 163 III. cap. 74 of A.D. 1807, real estate of deceased bankrupts was made liable for all debts, but preference was given to specialties, and by subsequent statutes, 11 Geo. IV. 1 Will. IV. cap. 47, c., larger powers of sale were conferred on the Court of Chancery, and by 3 4 Will. IV. cap. 104, all lands, whether of traders or others, are made assets for the payment of debts, but preference is given to specialties, to be administered in equity. As bankruptcy was a part of the jurisdiction of the Court of Chancery, many cases relating to the application of real estate to the payment of debts would appear in the reports of that court.
But in this country, we think, on the construction of similar statutes in other states, the heirs have been held entitled to take the rents until the estate is sold to pay debts. See 3 Redfield on Wills, cap. 8, §§ 32, 19, pp. 238, n., 135, n.;Kimball v. Sumner, 62 Me. 305; Titterington v. Hooker, 58 Mo. 593; Breevort v. McJimsey, 1 Edw. Ch. 551; Hellman v.Stephens, 16 N.Y. 278.
And having in our State the additional provisions before referred to, we think there can be no doubt as to the meaning of our statute. And it seems that anciently real estate was sometimes included in the inventory of a deceased person, which practice was abolished by act of October, A.D. 1803, the preamble stating that it is passed to remove doubts as to the existing laws.
The prayer of the bill for the application of the rents to pay debts must therefore be refused.
The bill also states that the whole of the real estate of the father has been sold by order of the Court of Probate, to pay his debts, it being impossible to sell a part of it without great sacrifice, and prays that if there be a surplus it may be paid over to the administrator of Spencer B. Mowry, Jr., his only son and heir, to be applied to said son's debt.
If there is a surplus it is, of course, upon the settled principles as to conversion, to be treated as if it had gone to the son as real estate, and on descending to him, would, on his death, be liable for his debts in the same manner as if it had remained real estate.
Decree accordingly.
1 He does indeed speak of the case of Dormer v.Fortescue, 3 Atk. 124, in a way which might mislead. In that case the bill was for discovery and account of rents by mesne profits in a case where a person had recovered judgment in ejectment. It of course was an authority for the case he was actually deciding, but has not the remotest connection with the question of the power of a court of equity to make the rents received by heirs from descended land liable for the debts of the ancestor.