converse of it.30 It is a fundamental principle that subrogation is the substitution of an inferior to the rights of a superior and not a superior to the rights of an inferior. I shall, therefore, refrain from any further reference to such rights of the creditor in this paper.

This right of subrogation is superior to any other claim or lien upon the property, provided such other claim or lien was subject to the debt that has been discharged.32 But it will not be carried further than to compensate the party for the amount actually paid under a legal liability, or under compulsion.33

§ 2. Subrogation in Cases of Suretyship.-The equity of subrogation is most frequently applied in the case of sureties; but it may be stated as a general proposition that this right will accrue to all parties who are liable in common to a debt or charge of any kind. And since the courts are pretty generally agreed as to when and under what circumstances a surety as such may take advantage of this right, it will be sufficient at this instance to state briefly its application in general to sureties, referring to it as the necessity of the case may require under the subsequent headings where its application is more complicated.85

A surety who has paid the debt of his principal is entitled to be subrogated to all the securities, liens and equities, which the creditor holds as a means of enforcing payment from the principal debtor. And this right will be transmitted to his heirs if necessary for their protection; also to the surety's assignees, grantees, and creditors, when the principal demand had been used in such a way as to destroy their subordinate liens or claims upon the debtor's property.

The creditor must do nothing to prejudice the surety's right of subrogation. If he parts with any property held by him from the principal debtor as a security for the debt, or does any other affirmative act by reason of which the surety

30 Sheldon, Subrogation, Introduction, VII. Maure v. Harrison, 1 Eq. Ab. 93; In re Walker (1892), 1 Ch. 621.

31 See any definition of Subrogation; Shinn v. Budd, 14 N. J. Eq. 234; Hayes v. Ward, 4 Johns. Ch. 130; Swan v. Patterson, 7 Md. 164.

32 Duncan v. Drury, 9 Pa. St. 332.

33 Teamsters v. Withrow, 9 W. Va. 296; Hicka v. Bailey, 229; Coggeshall v. Ruggles, 66 Ill. 401; Pease v. Eagan, 131 N. Y. 262; Greiner v. Greiner, 58 Cal. 115.

34 Bispham's Prin. Eq. sec. 328; Fulton's Appeal, 95 Pa. 321.

35 See Articles IV., V., VI. this paper.

36 Union Trust Co. v. Morrison, 125 U. S. 591; Keokuk v. Love, 51 Iowa, 119; Talbot v. Wilkins, 31 Ark. 411; Foelds v. Sherril, 18 Kan. 365; Tuck v. Calbert, 33 Md. 209; Allison v. Sutherlin, 50 Mo. 274; Dick v. Moon, 26 Minn. 309; Dozier v. Lewis, 27 Miss. 679.

37 Holt v. Bodey, 18 Pa. St. 207; Meador v. Meador, 88 Ky. 217; Wilson v. Murray, 90 Ind. 477; Beaver v. Slanker, 94 Ill. 175; Watts v. Kinney, 3 Leigh (Va.), 272.

35 Pearl v. Deacon, 24 Beav. 186.

cannot be substituted to the rights and securities of the creditor, the surety will be discharged at least pro tanto from his liability.

It is almost impossible to put the surety's right of subrogation too high. But he cannot be substituted to greater rights than the creditor himself enjoyed. Nor is he entitled to this equity until he has paid the debt for which he is bouni as surety. Even though he is liable for only a part of the debt, he cannot enforce the right. upon payment of that part until the creditor's demand is fully satisfied. In equity the surety is regarded as a creditor of his principal and with all the privileges of a creditor43 from the time be signs the instrument by which he is bound," though his right to sue his principal and to be substituted to the securites held by the creditor does not become consummated until he has paid the debt.46

Although it is a generally accepted rule that in equity a surety will be subrogated, upon payment of the principal's debt, to the benefit of all the securities which the creditor holds against the principal for the payment of the debt, yet, it was finally settled in England that this right of subrogation must be confined to only those securities which continue to exist, and that the debt itself is ipso facto extinguished by the act of payment, and, therefore, cannot pass to the benefit of the surety.47 But this rule was changed by the "Mercantile Law Amendment Act 48 which provides that any person who pays another's debt. whether under compulsion, or for the protection of his own interests, may sue the principal obligor upon the debt as well as enforce collateral securities for the same.

39 Kirkpatrick v. Hawk, 80 Ill. 122; Guild v. Butler, 127 Mass. 386; Hurd v. Spencer, 49 Vt. 581; Jenkins v. McNeese, 34 Tex. 189; Winston v. Yeargin, 50 Ala. 340; Saline County v. Buie, 65 Mo. 63; Hill v. Voorhies, 22 Pa. St. 68; Kinnaird v. Webster, 10 Ch. Div. 139; City Bank v. Young, 43 N. H. 457.

40 Barton v. Brent, 87 Va. 385; Perkins v. Nolson, 75 Ga. 295; Benneson v. Savage, 130 Ill. 352; Wynne v. Willis, 76 Tex. 589; Schur v. Schwartz, 140 Pa. St. 53.

41 Kemmerrer's Appeal, 125 Pa. St. 238; Church, Petitioner, 16 R. I. 231; McConnell v. Beattie, 34 Ark. 113; Cowell v. McCowan, 53 Ill. 363.

42 Rice v. Morris, 82 Ind. 204; Cooper v. Jenkins, £ Beav. 337; Bridges v. Nicholson, 20 Ga. 90; Field v. Hamilton, 45 Vt. 35; Vest v. Vass, 74 Ind. 566.

43 Lane v. Spiller, 18 N. H. 209; Brogg v. Patterson. 85 Ala. 233; McKee v. Scobee, 90 Ky. 124.

44 Walker v. Dicks, 80 N. Car. 263; Davis v. Me Curdy, 50 Wis. 569; Reitz v. People, 72 Ill. 435.

45 Huse v. Ames, 104 Mo. 91; Adams v. Tator, 57 Hun (N. Y.), 302.

46 Chateau v. James, 11 Ill. 300; Laughridge v. Bowland, 52 Miss. 546; Furnold v. Bank of State of Missouri, 44 Mo. 336.

47 Armitage v. Baldwin, 5 Beav. 278; Jones v. Da vis, 4 Russ. 227; Copis v. Middleton, Turn & Russ. 224.

48 Mercantile Law Amendment Act, 19 & 20 Vie. 97, sec. 5.

50

With more or less aid from legislation, the rule as laid down by this statute has been very generally adopted in this country.49 And though it is now conceded that the payment of the debt by the surety extinguishes the same as well as all the securities, so far as the creditor is concerned, yet, as to the surety, it is in the nature of a purchase by him from the creditor, and does not relieve the principal debtor; it operates in equity as an assignment of both the debt and securities to the surety.51 However, it is held in a few States, that the original obligation is discharged absolutely by its payment, and that one, other than the real debtor, who is liable therefor, will, upon paying the same, be subrogated only to the collateral securities for the payment of the debt.52

Two or more sureties for the same debt do not have equal rights against each other, unless their liability is the same in kind and degree. Thus, one who becomes surety for the principal in the course of some legal proceeding against him, is not entitled to subrogation against prior sureties for the debt;54 on the contrary, as to prior sureties, he holds the place of the debtor.55

Since the relation of co-sureties among themselves is the same as that of joint debtors, the reader is referred to section 3, which I have devoted to the subrogation of joint debtors.

$3. Subrogation Among Joint Debtors.-The authorities disagree as to the right of subrogation between parties severally bound as principals. Some courts hold that such right does not exist,56 but it is more in accordance with the principles of natural justice to allow a joint debtor, upon payment of the obligation, to be subrogated to the common creditor's means of payment, that he may recover from his codebtors their pro rata of the obligation which he

49 Benne v. Schnecko, 100 Mo. 250; Miller v. O'Kain, 13 Hum (N. Y.), 594; Am. note to Dering v. Winchelsea, 1 Lead. Cas. Eq. 434: Townsend v. Whitney, 15 Hun (N. Y.). 93; Sheldon, Subrogation (2d. Ed). sec. 137 et seq.

50 Bendey v. Townsend, 109 W. S. 665; Strong v. Blanchard, 4 Allen (Mass.), 538; Campbell v. Pape, 96 Mo. 468; Sublett v. McKinney, 19 Tex. 438; Sheldon, Subrogation, secs. 135, 136, 137.

51 Hauser v. King, 76 Va. 731; Jones v. Tincher, 15 Ind. 308; McCormick v. Irwin, 35 Pa. St. 111; Sheldon, Subrogation, secs. 87, 137.

52 Moore v. Campbell, 36 Vt. 361; Slode v. Mutrie, 156 Mass. 19; Whittier v. Hewinway, 22 Me. 238; Sheldon, Subrogation, sec. 138.

53 Stout v. Fenno, 6 Allen (Mass.), 580; Schur v. Schwartz, 140 Pa. St. 53; Dillan v. Scofield, 11 Neb. 419.

54 Hammock v. Baker, 3 Bush (Ky.), 208; Smith v. Bing, 3 Ohio, 33.

55 Keller v. Williams, 10 Bush. (Ky.), 216; Friber v. Donovan, 23 Ill. App. 58; Handy v. Henritze, 85 Va. 177; Bender v. George, 92 Pa. St. 36.

6 Eagles v. Eagles, 4 Ark. 286; Clark v. Warren, 55 Ga. 575; Benton v. Bailey, 50 Vt. 137; Fessler v. Hickernell, 82 Fa. 150; Bispham's Prin. Eq. (6th Ed.) sec. 337

has discharged; and this seems to be the general rule. As between the joint debtors each one is regarded as the principal debtor for taat part which he ought to pay, and as surety for his codebtors as to that part of the debt which they should satisfy.58

I stated in a former section that when a surety pays his principal's debt it is not extinguished as between principal and surety, but is regarded as purchased by the surety. By the Mercantile Law Amendment Act, this right is extended to a joint debtor who has paid the common obligation.59 But in this country the rule is not so well settled as to joint debtors. High authority may be found both in suppor160 and in denial of this doctrine. The prevailing rule seems to be that the payment of the common debt by one joint debtor does not, as between himself and his co-obligors, amount to a discharge of the debt, but that it is treated as purchased by the party making the payment.

Accordingly, where one of the owners of land which is subject to a mortgage pays the debt for the protection of his own estate, and takes an assignment of the mortgage, its lien remains alive as against the other owners. And he will be subrogated to the rights of the mortgagee against the shares of the others to their ratable proportion of the incumbrance as if the mortgage subsisted, whether they be tenants in common or hold distinct parcels of the incumbered estate." The same rule applies where several different persons give securities on their individual property to secure the same debt.64

If a partnership has dissolved leaving a firm indebtedness, and one of its members discharge the same out of his private property, he may in

57 Lamb v. Montague, 112 Mass. 352; Durpin v. Kuny, 19 Oreg. 71; Dobyns v. Rowley, 76 Va. 537; Summer v. Rhodes, 14 Conn. 135; Smith v. Latimer, 15 B. Mon. (Ky.) 75; Merwin on Eq. & Eq. Plead. sec. 629; Chase v. Woodbury, 6 Cush. 143; Pratt v. Law, 9 Cranch, 456; Sheldon, Subrogation, sec. 169.

58 Newton v. Newton, 53 N. H. 537; Higman v. Harris, 108 Ind. 246; Moore v. State, 49 Ind. 558; Stering v. Stewart, 74 Pa. St. 445; Chipman v. Morril, 20 Cal. 130; Pratt v. Law, 9 Cranch, 456; Wheatley v. Calhoun, 12 Leigh (Va.), 264.

59 Mercantile Law Amendment Act, 19 & 20 Vic. ch, 97, sec. 5.

60 Sheldon, Subrogation, sec. 136 et seq.; O'Bryan v. Neel, 84 Ga. 134; Hendrickson v. Hutchison, 29 N. J. Law, 180; Hollinsworth v. Pearson, 53 Iowa, 53; Neilson v. Fry, 16 Ohio St. 552.

61 Stanley v. Nutter, 16 N. H. 22; Morley v. Stephens, 47 How (N. Y.) 228; Baykin v. First National Bank, 58 Ill. 57; Bispham's Prin. Eq., sec. 337.

62 Duncan v. Drury, 9 Pa. St. 832.

63 Newbold v. Smart, 67 Ala. 336; Carter v. Penn, 99 Ill. 390; Lowery v. Byers, 80 Ind. 433; Hubbard v. Ascutney Mill Dam Co., 20 Vt. 402; Aiken v. Gale, 37 N. H. 501.

64 In re Wright, 16 Fed. Rep. 482; McCready v. Van Antwerp, 24 Hun (N. Y.), 322; Doudy v. Blake, 50 Ark. 205; Aiken v. Gale, 37 N. H. 501; Beck v. Farrant, 61 Tex. 402.

equity enforce contribution from his co-partners. This right springs from partnership agreement to contribute to losses rather than by means of subrogation; for it is the settled doctrine, both in England and in this country, that firm creditors have no lien upon firm property,67 and can procure it to the satisfaction of their claims only through the equities of the partners themselves to have firm property applied in the first instance to the payment of firm debts.68 If, as between joint debtors, one becomes duty bound to pay the whole debt, and the others are compelled to pay it, they will be subrogated to the securities and other means of payment which the creditor holds against the former to the same extent as if they had been sureties of the former eo nomine. But the debtors cannot lessen the rights of the creditor against all or any of them.70 And even when the whole debt has been discharged, subrogation will not be allowed if the person seeking it has no meritorious claim, as where he is indebted to the party in a larger amount than that which he seeks, or where for value he has waived his right."1

§ 4. Subrogation Among Parties to Bills and Notes. The payment of a bill or note by an indorser to the holder, whether voluntarily or under compulsion. will not extinguish the instrument, if the indorser was liable thereon; but he will be subrogated to all the available remedies upon the bill or note against prior parties thereto. And a partial payment by an indorser will not, to the extent of the payment, lessen the liability of prior parties, unless made in their behalf; but the holder may collect the full amount from those antecedently liable thereon, holding the amount of such partial payment in trust for

65 Downs v. Jackson, 33 Ill. 465.

66 Philips v. Blachford, 137 Mass. 510; Hagan v. Reynolds, 21 Ala. 56. Contra: Sells v. Hubbell, 2 Johns. Ch. (N. Y.) 394, 397.

67 Allen v. Centre Valley Co., 21 Conn. 130; Sigley v. Knox County Bank, 8 Ohio St. 511; Bispham's Prin. Eq. (6th Ed.), sec. 515.

68 Couchman v. Maupin, 78 Ky. 33; Schmidtopp v. Caurrier, 55 Miss. 597; Bispham's Prin. Eq. (6th Ed.), sec. 515.

69 Schinn v. Schinn, 91 Ill. 477; Buenttel v. Har mount (Minn,), 49 N. W. Rep. 250; Hards v. Button, 79 Ill, 504; Jackson v. Roberts (Ga.), 9 S. E. Rep. 358; Buckhanan v. Clark (Va.), 10 Gratt. 164; Field v. Hamilton, 45 Vt. 85; Butler v. Birkley, 13 Ohio St. 514, 70 Hards v. Burton, 79 Ill. 504; Buettel v. Harmount, 46 Minn. 481; Jackson v. Roberts, 83 Ga. 358.

71 Greenlaw v. Pétit, 87 Tenn. 468; Crawford v. Richeson, 101 Ill. 351; Forest Oil Co.'s Appeal, 118 Pa. St. 138; Greer v. Bush, 57 Miss, 575; Blake v. Traders' Bank, 149 Mass. 250; Drake v, Paige, 127 N. Y. 562; Ritter v. Cast, 99 Ind. 80.

72 Woodward v. Pell, L. R. 4 Q. B. 55; Rushworth v. Moore, 36 N. H. 188; Bechwith v. Webber, 78 Mich. 390; Bird v. Louisiana Bank, 93 U. S. 96; Crawford v. Logan, 97 Ill. 396.

73 Randall v. Moon, 12 C. B. 261; North Nat. Bank v. Hamlin, 125 Mass. 506.

the indorser who first made it.74 On the other hand, a partial payment by any party to a bill or note inures to the benefit of all subsequent parties thereto, and is a discharge pro tanto of their lia. bility. Likewise, if separate judgments have been procured against maker and indorser, the latter may satisfy the judgment against himself, and by taking an assignment of the other judgment. enforce it against the maker for his own benefit;" and the indorser may be substituted to the benefit of a judgment against the maker, even though there has been no assignment thereof." But the subrogation of the indorser is only to a suit or judgment against the maker on the original obligation; the indorser cannot enforce a merely incidental remedy.78

The indorser of a bill or note, or any one who has to the knowledge of the holder become an accommodation party for the primary debtor thereon, is to be regarded as a surety of the primary debtor and has all the rights of a surety.79 But this right of the accommodation maker to the privilege of a surety against the holder depends upon the holder's knowledge of the true relation of the parties to the note. Since the vendee is subrogated to all the rights of his vendor,81 one who takes a note or bill from a bona fide holder, for value, will be subrogated to all the rights of such holder, though he himself takes it overdue, or knows of facts which would otherwise constitute a defense to the instrument in his hand.82 As the acceptor of a bill. supra, protest is liable like an indorser, he is subrogated, upon taking it up, to all the rights of an indorser against all parties prior to the one for whose honor he takes it up;84 but such an acceptance will discharge all parties to the bill subsequent to the one for whose honor it has been accepted. The indorsement or transfer of a bill will pass to the transferees the right to en74 Madison Square Bank v. Pierce, 62 Hun (N. Y.), 493.

85

75 Lowell v. French, 54 Vt. 193; Nash v. Ames, 8 Allen (Mass.), 318.

76 Falson v. Carli, 5 Minn. 264.

77 Ross v. Jones, 22 Wall. 576; Yated v. Mead, 68 Miss. 787; Old Dominion Bank v. Allen, 76 Va. 200. 78 Dehn v. Heckman, 12 Ohio St. 181; Warren Bank v. Parker, 8 Gray (Mass.), 221.

79 Story on Prom. Notes, sec. 412 et seq.; Gunnis v. Weigley, 114 Pa. St. 191; Hoffman v. Butler, 105 Ind. 371.

80 Sheldon, Subrogation (2 Ed.), sec. 182a; Auburn Bank v. Marshall, 73 Me. 79; Goodman v. Litaker, 84 N. Car. 8.

81 Chicago v. Tebbetts, 104 U. S. 655.

82 Carruthers v. West, 11 Q. B. 143; Scotland County v. Hill, 132 U. S. 107; Suffolk Sav. Bank v. Boston, 149 Mass. 364; Sanoma Bank v. Gove, 63 Cal. 355; Kast v. Bender, 25 Mich. 515.

83 Hoare v. Cazenove, 16 East, 391; Schofield v. Bayard, 3 Wend. (N. Y.) 488.

84 Beckwith v. Webber, 78 Mich. 390; Bushworth v. Moore, 36 N. H. 188.

85 Ex parte Wackeroth. 5 Ves. 574; Sheldon, Subrogation (2d Ed.), sec. 184.

'orce securities given for the payment of the same. even though the securities have been formally assigned or delivered.86 The indorsement and delivery of such instrument operates as an equitable assignment of all securities for its payment, and the holder of the legal title of the securities will be regarded as a trustee for the benefit of the transferees.87 A security given by the maker of a note to his accommodation indorser thereon to secure him against his liability is merely a personal indemnity and not an accessory to the principal obligation; and as a general rule it can be reached only upon payment by the indorser. A surety who has been forced to pay the note, cannot avail himself of such an indemnity because the maker, though he be a surety, and an accommodation indorser, are not co-sureties.89

Where a bill is drawn against a consignment of merchandise and is accompanied with a warehouse receipt for the same, and a certificate by which the drawer declares a lien upon the merchandise in favor of the holder of the bill, and makes the consignee a trustee of the merchandise for the holder of the bill the indorsee acquires by taking the bill a special property in the merchandise, and may enforce the trust against the consignee, or against one to whom the consignee has pledged the property after accepting the bill. So an indorsee of a bill accompanied with a shipping document acquires a special property in the goods described therein, and the shipper loses the possession and the title of the property. On the other hand, the holder of a bill, though it be accompanied by the shipper's document, will not have a lien upon the goods, if the acceptor by means of his acceptance acquired against the drawer the full control of the property, or if the carrier had been made the agent of the purchaser, upon whom the bill was drawn.92 By analogy to the rule that the beneficiary of a promise may bring an action thereon, though he is not a party to the contract nor privy to the consideration, it has been sometimes held that the holder of a check is substituted to the rights of the drawer, the depositor, and may sue the bank in his own

86 McQuie v. Peay, 58 M. 56; Union Ins. Co. v Slee, 123 Ill. 57; Blake v. Williams, 36 N. H. 39; Creaner v. Creaner, 36 Ark. 91; Exchange Bank v. Stone, 80 Ky. 109.

57 Converse v. Michigan Dairy Co., 45 Fed. Rep. 18; Patterson v. Booth, 103 Mo. 402; Hagerman v. Sutton, 91 Mo. 519; Burhans v. Hutcheson, 25 Kan. 625; Hol way v. Gilman, 81 Me. 185.

O'Hara v. Baum, 88 Pa. St. 114; Hartford Transp. Co. v. Hartford Bank, 46 Conn. 569.

Nurre v. Chittenden, 56 Ind. 462.

90 Michigan Bank v. Gardner, 15 Gray (Mass.), 362; Marine Bank v. Wright, 48 N. Y. 1.

91 Dows v. Exchange Bank, 91 U. S. 618; Taylor v. Turner, 87 Ill. 296; Hathaway v. Hayes, 124 Mass. 311; Batavia Bank v. Ege, 109 N. Y. 120.

Trust Nat. Bank v. Crabtree, 52 N. W. Rep. 559.

name, upon its failure to pay the check. But by the great weight of authority no one but the depositor may maintain such an action, unless the check was drawn upon such property as in equity belongs to the payee.95

§ 5. Subrogation in the Administration of Estates. -An executor or administrator may elect to pay debts of the estate out of his own pocket and re· imburse himself from the personal assets in his hands; and by so doing the assets become, to the actual value of his payments, his own property. And though an executor cannot retain to himself land which he has been ordered to sell, yet, where the personal assets are insufficient, he may, upon payment out of his own property of debts of the estate to the value of the land, reimburse himself out of the proceeds of the sale of the land; and his right to be reimbursed under such circumstances is superior to the claims of distributees. Though an administrator who pays unpreferred debts of his intestate before he is legally bound to pay them cannot, if the estate afterward proves to be insolvent, charge it with the whole amount so paid by him, yet, there being no statutory regulations, he may be subrogated to the rights of the creditors, whose demand he has satisfied, against those assets to which they would have been entitled.99 So if he has voluntarily paid the debts of a legatee out of the assets of an estate, though before the probate of the will, he may be subrogated to the rights of the legatee in the estate for his exoneration.100 And since an executor is not responsible at common law for his co-executor's waste, provided he took no part in it and was guilty of no negligence,101 he may, if compelled to replace a sum paid by his colleague out of the personal assets to the payment of debts properly' chargeable upon real estate, hold such real estate in the hands of the heirs for his reimbursement. 102 In order that a personal representative may

93 Union Bank v. Ocean Bank, 80 Ill. 212; Roberts v. Austin, 26 Iowa, 315.

94 First Nat. Bank v. Whitman, 94 U. S. 343; Carr v. Security Bank, 107 Mass. 45; Maginn v. Dollar Sav.. Bank, 131 Pa. St. 362.

95 Hemphill v. Yerkes, 132 Pa. St. 545.

96 Livingston v. Newkirk, 3 Johns. Ch. (N. Y.) 312; Hancock v. Minat, 8 Pick. (Mass.) 29, 37, 38; Powell v. Powell, 80 Ala. 11; Sorrels v. Trantham, 48 Ark. 385.

97 Livingston v. Newkirk, 3 Johns. Ch. (N. Y.) 312; Turner v. Shuffler, 108 N. Car. 642; Clayton v. Somers 27 N. J. Eq. 230.

98 Terrell v. Rowland, 86 Ky. 67; Goodbody v. Goodbody, 95 Ill. 456; Black v. Black, 42 Iowa, 694; Gaw v. Huffman, 12 Gratt. (Va.) 628.

99 Wooley v. Pemberton, 41 N. J. Eq. 391; Millard v. Harris, 119 Ill. 185; Breckenridge's Appeal, 137 Pa. St. 81; Byrd v. Jones, 81 Ala. 336.

100 Pinkham v. Grant, 78 Me. 158; Stayner v. Bower, 42 Ohio St. 314; Stetson v. Moulton, 140 Mass. 597; Dickie v. Dickie, 80 Ala. 57.

101 Adair v. Brimmer, 74 N. Y. 539; Smith v. Pettingrew, 34 N. J. Eq. 216.

102 McKinn v. Aulbach, 130 Mass. 411; Walker v.

be subrogated to the rights of a creditor whom he has satisfied, his claim must be seasonably made. 103 If in the course of his administration he has disregarded the rights of preferred creditors in his payment of the debts of the estate, he will have, upon a deficiency of assets, no right of priority for his reimbursement.104 And if certain property is charged by the will for the payment of debts, he must show that the charge has been faithfully administered and that such property was inadequate, before he can have a lien upon the testator's other property for his exoneration.105

Where one in good faith purchases real estate of a deceased party at an invalid sale made by the personal representative thereof for the payment of debts, he may by avoiding the sale be subrogated for his protection to the rights of those whom he has satisfied and to charge upon the land to the extent which the land was liable for the debts paid out of his purchase money.106 The same rule applies to the purchaser of personal property from a guardian.107 And if one estate is charged in a will with the payment of legacies and another with the payment of the testator's debts, and the legacies are paid out of the latter estate, the creditors are entitled to be subrogated to the rights of the legatees against the former estate in the hands of a purchaser thereof with constructive notice of the nature of the will. 108

A tenant for life and remainder-man under a devise must each contribute in proportion to his interests in the land so devised to the extinguish ment of their testator's debts for which the land is liable; and any payment by one for that purpose gives him a lien upon the estate as against the other.100 The one cannot claim any benefit of the redemption by the other until he has contributed his proportion of the expense. Where the personal property of a testator has been exhausted by the executor in the payment of debts chargeable upon both the real and personal estate, a legatee is entitled to receive so much of his legacy out of the estate descending to the heirs, as the personal estate, but for the creditors, would have paid, unless the will shows that the

Walker, 88 Ky. 615; Nanz v. Oakley, 120 N. Y. 84; Fisher v. Skillman, 18 N. J. Eq. 229.

103 Ex parte Allen, 15 Mass. 55; Loomiss' Appea!, 29 Pa. St. 237; Donnell v. Coke, 63 N. Car. 227.

104 Findlay v. Trigg, 83 Va. 539; Evans v. Halleck, 83 Mo. 376.

105 Frary v. Booth, 37 Vt. 78, 93.

106 Kinney v. Knoebel, 51 Ill. 112; Folts v. Fergu son, 77 Tex. 301; Duncan v. Gainey, 108 Ind. 579; Cunningham v. Anderson, 107 Mo. 371; Neel v. Carson, 47 Ark. 421.

107 Harrison v. Illger, 74 Tex. 86.

108 Burwell v. Fauber, 21 Gratt. (Va.) 446.

109 Whitney v. Salter, 36 Minn. 103; Amory v. Lowell, 1 Allen (Mass.), 504; ¡Durham v. Rhodes, 23 Md. 233.

110 Ohner v. Boyer, 89 Ala. 273; Allen v. DeGroodt. 105 Mo. 442.

testator intended there should be no legacy in case of a deficiency in the personal property. Legatees who have paid the claim of a creditor of the estate will be substituted to the remedies of their creditor for their reimbursement, if the creditor's claim has been reduced to a judgment, or otherwise made a lien upon that portion of the testator's estate to which the legatees are entitled to look. It would be otherwise if there had been no charge upon the assets out of which they could claim their legacies. So if the administrator has exhausted money of the husband's estate which should have been paid to the widow for her dower interest, she will be subrogated to the rights of such creditor to hold the real estate for her reimbursement.114

115

A devisee of a tract of land is entitled, after discharging an incumbrance created upon the land by the testator, to be subrogated to the rights of the creditor against the personal estate; and this right is extended against personal property subsequently discovered and received by the executors;116 for it is the right of such devisee, unless the will clearly shows a contrary intention, to have the testator's debts discharged out of the undisposed of assets of the estate.118 But this rule is reversed if the devised property is charged with the debt of one other than the testator.119 As specific legatees have • the right to receive their legacies exonerated from incumbrances created by the testator,1 they have upon the sale of their legacies for the payment of the testator's debts, the right to proceed against the general fund for their indemnity.12 It may be stated as a general rule that where property devised to one of several devisees has been taken to pay the debts of the testator, he will be entitled to contribution for his loss against the other devisees in proportion to the value of their respective interests. and this right accrues to an heir or legatee against the other heirs or legatees respectively."

111 Mollam v. Griffith, 3 Paige (N. Y.), 402; Allen v. Allen, 3 Wall. Jr. 289; Smith v. Wycoff, 11 Paige (N. Y.), 49; Lilford v. Keck, L. R 1 Eq. 347.

112 Place v. Oldham, 10 B. Mon. (Ky.) 400. 118 See Article VII. this paper.

114 Crouch v. Edwards, 52 Ark. 499. 115 Redmond v. Burroughs, 63 N. Car. 242; Brandt's Will, 40 Mo 266.

116 Couch v. Delaplaine, 2 N. Y. 397.

117 Brandt's Will, 40 Mo. 266; Rogers v. Rogers, 1 Paige (N.Y.), 188.

118 Adams v. Brackett, 5 Met. (Mass.) 280; Keene v. Murin, 16 N. J. Eq. 398; Lenig's Estate, 52 Pa. St. 135.

119 Gould v. Winthrop, 5 R I. 319; Andrews v. Bishop, 5 Allen (Mass.), 490.

120 Richardson v. Hall, 124 Mass. 228; Johnson v. Goss, 128 Mass. 433.

191 Hope v. Wilkinson, 14 Lea (Tenn.), 21; Crammer v. McSwords, 24 W. Va. 594.

122 Harris v. White, 5 N J. Law, 484; Brighden v. Cheever, 10 Mass. 450; Gallagher v. Redmond, 64 Tex. 622.

123 Choplin v. Sullivan, 128 Ind. 50; Taylor v. Tay.