#### Hefferman *vs*Forward, *et al.*

Error to tub Louisville Chancery Court.

ClIANCERY.

*Casts*127.

Case stated and decree of the Chancellor.

*By*the statute of 1792, (1 *Slat. Laws,*316,) it is obviously intended to make real estate descended lo heirs subject to the payment of the debts oí the decedent.

The statute of 1819, (1 *Slat. Laws,*780,) authorizes a sepa, rate action against heirs when no administration is granted for 12 months after death of debtor.

*Equity jurisdiction. Non-residents. Unknown heirs.*

*June*29.

CiriEi' Justice Ewing

delivered the opinion of the Court.

Owen Carrell died in the county of Jefferson, leaving a widow and two infant children. Just before he dkd, Forward, by force, took from his possession a negro gill, claiming her as his own, and afterwards sold her, but whether before or after the death of Carrell, does not appear. The widow and children of Carrell removed out of the State, and after his death, twelve monlhs having expire! without administration upon his estate, Hefferman filed this bill against Forward and the widow and unknown heirs of Carrell, to subject (he slave or her value, to the payment of a demand which he sets up against the estate of Carrell. The Chancellor dismissed his bill for the want of jurisdiction only, prematurely hearing and deciding the cause before it was prepared for hearing on •the merits, and he has appealed to this Court.

The section which provides a joint action against administrators and heirs, is a part of the statute of 1792, (1 *Stat. Laws,*316,) which first subjected lands to the payment of debts, and was obviously intended to reach the real estate which should descend to the heirs, and which, by its provisions, was made liable to the payment of debts. The universal practice sanctioned by the repeated decisions of this Court,) has been to render the judgment against the heirs, to *be levied*of the estate *descended to*them, which restricts the levy, as to them, to the real estate.

The statute of 1819, (1 *Stat. Laws,*780,) authorizes a separate action to be brought against heirs, when administration has not been taken out for twelve months after the death of the decedent. The main purpose and object of this statute was, no doubt, so to modify the provisions of the first statute, as to authorize a suit on the contingen*568Cy stated, against the heirs separately, without joining the administrator, as required by the first statute, so as to reach the real estate in cases in which there might be no personal estate. But as this is a remedial statute, and there may be personal assets in the hands of the heirs, and yet no administration taken on the estate, and as by the provisions and spirit of our execution laws, the personalty, should be first applied to the payment of debts; and as by the provisions of this or the former statute, there is no speeific/om of judgment prescribed, but *under*the former statute the judgment has been so framed as to reach both funds in the hands of their appropriate representative, it may be questioned whether the latter statute, in the absence of any other personal representative, should not be construed as looking to the heirs as the representative of the personalty as well as the realty, and the judgment so rendered as to reach both funds in their hands, and in the *order*in which they should be subjected. If this course should be about to interrupt the rateable equality of distribution of the proceeds of the estate among all the creditors, in cases in which there should not be enough to satisfy all, the difficulty might be obviated by appropriate application to the Chancellor,

Where there has tratSon°aforitti2 months, the equity,ma^tmder soCtararegarded as the representatives of the personalty as tyfasfo'’authoríainsTthem'by a creditor, to .sonaHy-1 6 pet’

It is true if the heirs intermedled with the personalty, they might be sued as executors *de son tort.*But the same obstruction to an equality of distribution would .arise in this mode of proceeding as in the former, and could be obviated only in the manner suggested, if it could be obviated at all, in either case.

But whether in a proceeding at law against the heirs, the latter statute might be construed as intimated or not, we have no doubt that in a proceeding in chancery against non-residents under our statutes, that the heirs may be so far regarded as the representative of the personalty as well as as to authorize the proceedings against them, as non-residents, in *the*absence of any duly appointed per- , ’ . , J . . sonal representative. I hey have an ultimate interest in personal estate, and indeed, are equitably entitled to ^le whole of it after the payment of debts. They are, therefore, interested in defending against and resisting the payment of the demand set up, and if it were unjust, *569would be as likely to oppose a successful resistance., as the means of enjoying the fund sought to be subjected, as a naked personal representative, who had no ultimate interest in the fund. It would seem to be hard, therefore, and contrary to the spirit of our statutes authorizing the proceeding against non-resident debtors, &c., when the fund sought to be subjected is within the power and jurisdiction of the Court, that the creditor should .not be allowed to proceed against it, making all persons interested against the debt, and in the fund sought to be subjected, parties, merely because an administrator or personal representative, in whom, if appointed, the *naked*legal title would vest, has not been appointed, and therefore, cannot be made a party.

■It'iS'iiot necessary for a creditor! in order to reach the personal estate of a deceased non-resident debtor, found in Ky. when there is no administration for twelve months, either to administer or sue the person in possession ot the personal estate as executor *deson tort,*but a bill Sri. Chancery against the heiTS will reach the personalty as well as realty.

Besides, it is believed that it is the general, if not the universal practice under these statutes, when no admiimistrator, foreign or domestic, has been appointed for twelve months, to proceed against the fund .here, making the heirs only, and all others interested, parties. And to ■give to those statutes the technical construction contended for, would have the effect to defeat many of the actions brought, and perhaps to annul numerous decrees heretofore rendered under their provisions.

It is true the creditor might take out letters of administration here, and in that character sue for and recover 4he fund sought to be subjected., or bring an action *de son .tort*against the person intermedling with the estate, and ■in one of these forms of proceeding, be might perhaps be ■enabled to reach the fund here, sought-to be applied to the payment of his debt. We do .not regard either of those modes of proceeding as an ordinary legal remedy, which ■should preclude the interference of the Chancellor in behalf of the creditor, under the statutes referred to. 1st Many creditors are not competent and should not be appointed administrator. 2d. Others may. pot be able to give the requisite security; and 3d. Others would rather loose a small debt than involve themselves in the trouble of settling and winding up the affairs of a complicated estate. And in the latter form of proceeding, or proceeding against an executor *de son iort,*the personalty «sight be so held or disposed of in the life of the dece*570dant, as not to be reached in this form of action, and if ther fund consisted in debts, liabilities, or choses in action, they could not eertainly be recovered. Besides, the per sonalty might, in the mean time, be sent out of the State to the non-resident heirs, or the debt paid over to them or to some foreign administrator, and the fund, which should be made liable to the creditors here, escape from the power and jurisdiction of the Chancellor.

*Ballard*for plaintiff: *Guthrie*for defendants.

Upon the whole, we think the Chancellor had jurisdiction of the case, and having dismissed the bill prematurely, his decree is reversed and the cause remanded that further proceedings may be had.