GRAFF v. SMITH'S ADM'RS
1 U.S. 481 (1789)

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U.S. Supreme Court

GRAFF v. SMITH'S ADM'RS, 1 U.S. 481 (1789)

1 U.S. 481 (Dall.)

Graff
v.
Smith's Admors.

Court of Common Pleas of Philadelphia County

December Term, 1789

This case came before the Court on a rule to show cause, why the Sheriff should not be directed to postpone the sale of lands taken in execution in the hands of the purchasors from John Smith, the eldest son of Robert Smith, the intestate, till all the lands remaining unsold in the hands of the other children of Robert Smith, should be sold by virtue of the execution.

After argument, the President stated the circumstances of the case, and delivered the opinion of the Court, in the following manner.

Shippen, President:

The facts agreed on both sides in this cause, are, that Robert Smith died intestate indebted to several persons, and possessed of a considerable real estate, but not of sufficient personal estate to pay his debts; that his administrators applied to the Orphan's Court for an order to sell certain parts of the real estate, sufficient to pay the debts and maintain the children; that such order was accordingly obtained, and that part of the real estate was sold for that purpose; that a subsequent application was made to the Orphan's Court for a division of the remainder among the children; that the part alloted to John Smith, the eldest son, on that division, was by him sold and conveyed to bona fide purchasors; and that John Smith was himself an administrator, and neglected to discharge all the debts out of the sum arising from the sale of the lands ordered to be sold by the Orphan's Court, but wasted the money, and is supposed insolvent. [481-Continued.]

Some of the creditors of Robert Smith, whose debts remained unpaid, have since obtained judgments, and issued executions against the lands of the intestate, as well those sold by John Smith, under the order of division, as against the lands remaining unsold in the hands of the younger children.

Three questions have arisen upon the argument.

1. Whether, upon the death of the intestate, his lands were bound to the payment of the debts, in such a manner, as that they may be taken in execution and sold, notwithstanding the heir may have previously sold and conveyed the same to bona fide purchasors?

2. Whether the purchasors from one of the heirs, is bound to contribute to the other heirs?

3. Whether the purchasors under the order of the Orphan's Court, are likewise bound to contribute?

I. In order to solve the first question, it will be necessary to take into view the several acts of Assembly which subject lands to the payment of debts.

The act of 1700 subjects all lands of debtors to sale on judgment and execution against them, their heirs, executors, or administrators.

Page 1 U.S. 481, 482

The act of 1705 repeats the same provision, with the restriction, that, if the clear yearly profits will pay the debt in seven years, the land shall be delivered to the Plaintiff upon a reasonable extent. Under these acts the real estates of debtors have been held liable to sale by execution, whether they be living, or dead; if living, under a judgment and execution against themselves; if dead, under a judgment and execution against their heirs, executors, or administrators. By the Intestate Act, passed likewise in 1705, there is a particular provision in case of intestacy, that the Administrator may sell such parts of the real estate as the Orphan's Court should allow of, as sufficient to pay the debts, maintain the children, and improve the residue of the estate. By this act the surplusage, or remaining part of the intestate's lands, not sold, or ordered to be sold, by virtue of that act, is directed to be divided among the intestate's widow and children, in the proportions therein expressed. Although the surplusage only is here directed to be divided, yet the construction has always been, that where there are no debts, or where they have been otherwise satisfied, the division shall notwithstanding take place, the act being considered as a general law of descents and distribution. It is contended, on one side, that the word surplusage in the latter act implies strongly that the remaining part only of the real estate, after payment of debts, is vested in the heirs, and that they shall take nothing till the debts are paid; or, if they do take them, it must be cum onere. On the other side, it is said, that the act was made for a particular purpose, that the word surplusage relates only to the remainder of the lands not ordered to be sold by the Orphan's Court, and that there are no words which express or imply the surplusage to mean after payment of debts. Upon the former construction, however, it is urged, that, immediately on the death of the intestate, there is a Lien created on all the real estate in favor of the creditors. Without entering into the doctrine of Liens under the words of this act, which would only affect the estates of persons dying intestate, I would choose to consider the question on broader ground; that is, how far, and in what manner, the real estate of deceased persons, whether they die testate or intestate, is bound by our laws to the payment of their debts. That such real estates are a fund for the payment of debts, is not controverted; but, it is contended, that they are no otherwise a fund after the death of the debtor, than in his life time; and that as he himself could have aliened before judgment, so his representatives could likewise alien, and that the lands are not specifically bound, till judgment against the executors or administrators; that [1 U.S. 481, 483]


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