Robert W. Broome, Administrator of Matthew W. Smith et al., vs. Horatio Bisbee, Jr., 14 Fla. 21

WESTCOTT, J., delivered the opinion of the Court. This appeal is here now for two terms without any petition of appeal filed in this Court showing the grounds upon which a reversal of the decree is sought. We shall therefore simply state the question which arises in the case, and dispose of it. The simple question is whether, under the facts, respondent had an equity which entitled him to a decree for one-half of the sums collected under this judgment, and then in the control of the Court.

That at law he might possibly have recovered a judgment for one-half of the amounts collected by Smith in his lifetime, or by his administrator since his death, may be admitted, and it is no answer to the case made, because as against an administrator, even in ordinary cases where he seeks to enforce no claim against aspecificfund, a creditor can seek either a court of law or equity. The jurisdiction for this purpose is concurrent. In this case Bisbee seeks to share in this particular fund, by virtue of peculiar equities attaching to his demand against the deceased intestate.

A court of common law certainty cannot afford this relief, or act upon this particular fund. The sole question is: Does the case made entitle him to share in this particular fund, or does he occupy the standing of a general creditor of this insolvent estate, with no equity entitling him to a portion of this fund, resulting from his contract and the relations of the parties ?

Being, entitled under the terms of the original contract to one-half of the moneys which Smith was to receive from Myers, the defendant in execution, he is clearly entitled, as against his legal representative or others having a beneficial interest in the estate, to the benefit of all liens which Smith may ae quire for his security. Smith’s claim for services has' merged in the judgment, and upon the collection of the judgment Bisbee is clearly entitled to one-half of the specific funds. • Smith’s contract was not to pay Bisbee a certain amount at all events.

It was to pay him one-half of the sums he would realize from Myers, as the services which Bisbee rendered were to enure to the benefit of Myers-After Bisbee has performed one-half, if not more, of the service which these identical funds represent, relying upon she capacity of Myers to pay Smith, and upon the express understanding that he was to^hare in them in that proportion, it would be palpably inconsistent with the plainest principles of right and justice to make him occupy the relation of a general creditor of an insolvent estate, thus permitting other creditors who had no such equity to take, as against him, a part of this particular fund.

The general ■creditor who relied upon the general credit of the intestate must look to his general assets. This particular creditor, who has no claim upon the general assets, and who is entitled to no compensation unless something was realized from a debtor to the estate, and in that event to but one-half of the amount, will be given the right in equity ,to share in that fund without deduction, when the fund can be identified as in this case. If Smith or- his estate had never realized anything from Myers, Bisbee could have claimed nothing.

Having taken this risk for all purposes of loss, a court of equity, under the particular contract here disclosed, will make it effectual for the purposes of advantage. That Bisbee has' a demand payable out of this particular asset cannot be denied. This is the contract set up and established by proof; indeed the administrator does not ■deny it. "Where a legatee has a right to a particular fund, a court of equity will always secure the interest in his favor when the contest is between legatees, and where the superior rights of creditors do not intervene. In this case the demand is by contract.

The particular asset is liable for this particular claim; the general assets are not, except conditionally in the event of an improper appropriation by the intestate. That is the case with the amounts collected by •the intestate during his life. Respondent is a general ■creditor as to that, and there is no claim upon the judgment for that. The fund must be identified. These views áre fully sustained by adjudicated cases. 2 Ves. jr., 619; 1 Ves. sr., 282; 1 Mar. Chy. Dec., 64; Story’s Eq., 846, 730, 717. The decree is affirmed.