Elliott & wife v. George

Citations

• 23 Va. 780

Syllabus

<p>In October 1865, T one of the heirs at law and the administrator of G-, filed his bill against the other heirs, some of whom were infants, for the sale of the land of G-, on the ground that partition could not be made of it. He said he had proceeded to administer the assets, and, so far as he knew, there was but one debt due from the estate, and the assets were sufficient to pay it. The court decreed a sale of the land and directed a commissioner to take an account of the outstanding debts of G-, and o£ the available assets. The commissioner reported the debts between three and four thousand dollars, and assets nearly as much. The land was sold for §12,741, one third cash, and the balance in one, two and three years. The cash payment and the first credit payment were divided among the heirs. At the November term 1867, the court made a decree directing the second payment to be collected and distributed ratably among the creditors of G-, according to the report of the commissioner. Held :</p> <p>1. The court erred in charging the proceeds of the sale of the land with the debts of G-, without first taldng an account of the entire personal estate which came to the hands of the administrator, and directing its application in discharge of such debts.</p> <p>2. So long as the debts due the estate were not collectable by reason of the operation of the stay law, the debts against the said estate could not be enforced for the same reason, against the land or the money resulting from its sale.</p> <p>3. If the Circuit court apprehended a deficiency of personal assets, or that the rights of creditors would be endangered by a distribution of the land fund among the heirs, it would have been proper to retain under its control so much of said fund as was necessary, until the amount of such deficiency was accurately ascertained, and then supply the same by a resort to such land fund.</p>