From Thomas Burke
Sepr. 3d 1770
I received yours of July 15th a few days past, and Immediately communicated your Sentiments and my own relative to the Suit of Tuckers Creditors vs his Executors to the persons concerned and endeavoured to enforce what you recommended which was Intirely agreeable to my own Opinion. I also recommended the Joining Creditors to undertake all the Enquiries at their common Expence and to average all that may be recovered amongst them. This I recommended lest any one or two Creditors might not chuse to risque an Appeal which I apprehend will be Inevitable. But when I came to consider in what manner Executions were to be levied I found myself altogether at a loss how to proceed probably owing to my Ignorance of the Proceedings on the Act of Parliament or Indeed of any methods of levying Executions except what are pointed out by the Common Law, the older Statutes, or our own acts of Assembly. In whatever View I turn these I cannot discover that Execution can be levied in Hands of Executors without A Sc: fac: when the Judgements have been obtained against the Testator or against the Executors, when Assets, the Latter of these is our Case, all our Judgements are in that predicament; and unless the act of Parliament makes Lands Assets in their Hands I cannot See what use even a Sc: fac: against them will be of, and if the Lands are only Assets in the Hands of the Heir, I presume he must be in Court Before any Execution can go against his Inheritance. The same reasoning will hold good with regard to the Hæres factus mutatis mutandis. But on the other Hand if the Act makes them Assets, and it has been adjudged that no Sc: fac: is Necessary, I should be glad to have your direction and Opinion relative thereto. I have Just read an Abstract of the Law in these Words. “All real Estates shall be chargeable with all Just Debts Whatsoever as they are by the Law of England liable to Satisfaction of Debts due by Bond or other Specialties, and Subject to like remedies and proceedings in any Court in any of the Plantations in the same manner as personal Estates are there.” Now Sir if this Law Extends to charging Lands in the Colonies with provincial Debts (which I am very clear in) The only Question, I think will be what would be our remedy against personal Estates under our Circumstances? Can we take Execution against the personal Estate without bringing A Sc: fac: against the Executors? If we can, I make no Question but we also can against the Lands Since they are subject to the Same remedies. I shall leave these Things Sir to your determination; fairly confessing my Ideas are not clear enough to enable me to act or Judge Effectually. Upon reconsidering this Matter, I incline Strongly to conclude No Sc: fac: is Necessary because I find the Rule laid down in many Books, but clearly in Ld. Raymond, that a Sc: fac: is only Necessary when persons who are not parties to the Judgement are to be charged therewith, or have the Execution. This then cannot be the Case, because the Executor is party to the Judgement altho they are Conditional. I suppose then the way is to Issue the Execution and let the Sheriff Nulla Bona or devastavit as he finds the Case. In our Case then if we Indemnify him and Shew him Assets I must agree with you that if those Assets Should Afterwards be found Chargeable, the Officer would be liable. I know it is an Idea amongst us, that a Sc: fac: must Issue against the Executors on Such Conditional Judgements before Execution. But I can find no Precedent and know no Statute or rule of Law on which it can be founded. If I am wrong I doubt not your giving me Such Instructions as will Intirely remove my difficulties. Altho I have fatigued you so long on this Subject, I must beg your Patience while I offer a few Considerations on the other Points. You will recollect that Coll. Tucker in the begining of his Will, previous to any particular dispositions, directs his Just Debts to be paid; also that he has left certain Lands to be Sold for performing his Will. Now Sir I will premise that if by Virtue of 5th: G: 2d all his Estates were Assets for the payment of Debts of what kindsoever, then his Will need not be Considered, because it must be postponed to the payment of Debts which is all we are to Consider: I need not repeat Sir that this is my Opinion Nor my Reasons for thinking so, because I have before declared them to you, and they will Occur to you, but if it should not be the case, let us enquire how far his Will makes those Lands Assets. And here let me also premise that he could not make any disposition by his Will which could Operate against Law. Therefore the Bond Creditors could not be prevented from recovering from the Executors, or the personal Estate, or be compelled by his Will in Case of a Deficiency of Assets to take an Average of their Claims when they have a prior Right to be fully Satisfied. We must Set it down then, that the Creditors by Specialty must be paid, and all that remains for Consideration is how far his Will Subjects his [heirs?] to the payment of his Simple Contract Debts. Had he died Intestate Chancery would Subject them as far as personal Estate had been Applied in paying Spec. Therefore the Spec. being paid, It is not matterial what Estate they were paid from, if the Will Subjects all his Lands to pay his Debts, and that it does I stronly Incline for the Reasons, and Authorities which follow. His first direction in his Will, Seems clearly to me to Intend a Charge upon his Estate for payment of his Debts in preference to all other Dispositions, and that his Succeeding Dispositions were only to take place in case of his Estate being fully Sufficient for them after his Debts paid, and when he made his Will he had Expectations that his Estate would have been Sufficient for all his purposes, and what prevented it were Subsequent Accidents. Still the Charge remains on what is left, and Indeed no man has any Estate until his Debts are paid, the rest is Æs alienum. But if that general Charge can make that Estate Assets which was not so before, or by Law, Seems to be our grand Question, and this I will endeavour to discuss. (here are Inserted Paragraphs from 2d Bac: Abr: [Bacon’s Abridgment] 65 and Vern: [Vernon] 225 & 690 Quoted). Not to tire you with any more Cases, I shall only refer you to that of Harris vs Ingledew 3d P: W: [Peere Williams] 91 which is as Strong in our Favor as any Words could make it, the Words being “as to all my Worldly Estate, my Debts being first Satisfied I devise the Same as follows” And clearly held that the Lands both Freehold and Copyhold were Subject because nothing is devised until the Debts are paid. In this Case the Subject is so elegantly and Judiciously treated I think I can not better Support my Opinion than by refering to the perusal of it. Taking it for granted then that the Will Subjects the Lands, the next Question arising is are they legal or Equitable Assets? In Walker vs Meager. 2d P: W:552 it is laid down by Lord Chancellor King that Equitable Assets in the Hands of the Executors, must be applied as legal Assets are, and in Frumould vs: Dedire 1st: P:W: 430, 431 the Distinction is taken between Lands devised for payment of Debts and Lands charged with the Debts and descending charged, which I apprehend to be our Case, and in which Case the Ld. Chancellor said the Specialties Should be first Satisfied. The reason why I have Investigated the last Question is because I Apprehend if the Lands are now Subjected under the Will, the Judgements must be paid in their legal Order Since Each has now the Same Superority one over the other that one Specialty can have over another Vizt priority of time. And again if Mr. Hunt has any preference, which is most Extraordinary and unaccountable, the Enquiry may as well cease Since the Lands will not be Sufficient to pay him. Indeed I should apprehend the very Will would prevent Such a Claim, for surely it will not be denied that a man may pay his American Debts with his Lands, tho he must pay his British with them. If then they are Subject to one as well as the other what gives him any preference? Real Estates can be no exclusive fund for British Debts; and Supposing a Man had no real Estate, is his Executor Obliged to give his British Creditors the Preference? I think a man would be deservedly laughed at who would advance such a possition, and surely when real and personal assets are made Assets alike he can have no claim to A Privilege; and an American Creditor having first Intitled himself would most assuredly be first Satisfied. We are come at length then to Conclude on this Head, If Lands in Virginia are Subject by Act of Parliament to every Species of Just Debt without Distinction, then the Lands are liable to our Recovery. If they are not Subject by Statute yet they may be so by the Will. If so By the Will They are Assets, and must be Applied in legal Order In which Order Mr. Hunt only can come in Turn (for his Debt has no Dignity, and the utmost they can claim is a right to take the Lands in Execution, when provincial Creditors might Not, and if they have not taken them, surely they cannot prevent an other man who has as good a right, which I suppose we have by the Will). I must own I have thought Mr. Waller’s prohibitting the Sale of Coll. Tucker’s Lands when advertised by the Executors a most unwarrantable proceeding, for tho’ my Lands may be Subject to the payment of a British Debt, or rather to an Execution for a British Debt when recovered, has the person who Sues me any kind of right to prevent my Selling those Lands before he recovers his Judgement, because he may chuse to levy his Execution, when he gets one, on that part of my property? This indeed would be to bind the Property of the Lands from the time of contracting the Debt, a Length which I believe the Notion was never carried. Surely there can be no reason to prevent Coll. Tucker or even his Executor from giving the preference to any Creditor in equal Degree, and if he was authorised by his Testator to Sell all his Lands and pay off other Creditors before Mr. Hunt could get a Judgement has he not a right to do So? This reasoning must hold Just unless it be contended that the British Debt is a specific Lien upon the Lands, a position hard to be maintained. As to Marshalling the Assets I believe it would answer little purpose since the personal Estate is already Exhausted in paying Specialties, and there are not Lands Sufficient even to pay Mr. Hunt. You have the Copy of the account Sales and Appraisement, you will see the Iniquity appearing in them, and Covin I believe may be proved. The Purpose you mention for making Mrs. Tucker a party is certainly a good one, And Mr. Taylors claim will depend upon whether Coll. Tucker’s Promise was a Voluntary one or for valuable Consideration. Mr. Taylor made no Settlement. Q: is the Promise not Voluntary. It is a Settled Point that even Voluntary Bonds must be postponed to Simple Contract Debts afortiori A Promise. I am at length come to an End of this Tedious Letter, during the writing of which I have suffered many Interuptions, and have turned over many Volumes. But as I can do nothing Conclusively until I hear from you again I must beg of you to write as soon as possible. Mr. Coles will be coming Down in a Little time. I shall write again as soon as I hear from the gentlemen on James River. I remain Sir with much Esteem &c.
FC, autograph (NcDAH).
See note on preceding letter. TJ’s letter of 15 July is missing. The several legal compilations mentioned and quoted by Burke were all owned by TJ; see Library Catalogue, 1815 description begins Catalogue of the Library of the United States, Washington, 1815 description ends , p. 72 (twice), 74, 82.