#### John Bullard *versus*Abraham A. Dame, Administrator.

The owner of land attached by one of his creditors, makes a *bond fide*conveyance of it to an innocent purchaser, and dies pending the action ; his estate is represented in the probate court to be insolvent, and thereupon a commission of insolvency issues. *Heidi*that the attachment had no force after the decease of the debtor

Assumpsit on a promissory note made by William Peirce, the defendant’s intestate. The action was commenced in November, 1826.

*246
      *Oct, 30th.*

In September, 1828, the defendant filed his plea ; in which he admits the note to be due, but says that the estate of the intestate being insufficient to pay his debts, he, the administrator, on the 28th of April, 1828, at a Court of Probate, represented the same to he insolvent, and that commissioners were appointed to examine the claims of creditors, for which purpose six months were allowed, which have not expired , and he prays that no execution may issue against the estate of the intestate in the hands of the administrator, but that judgment, if any should be rendered, may be rendered as against an insolvent estate.

The plaintiff replies, that he ought not to be precluded from having execution on the judgment to be rendered against the estate of Peirce, in the hands of the administrator, because, on the 17th of November, 1826, while Peirce was alive, the plaintiff attached on the original writ in this suit, certain real estate of which Peirce was then seised, to respond the judgment, and on the 22d of the same November, Peirce for a valuable consideration conveyed the same real estate to one Todd, and on the 25th of December then next, Peirce died ; and the plaintiff waives all claim against any other property of Peirce except this real estate.

T o this replication there was a general demurrer.

The *St.*1784, c. 2, provides, that no action brought against any administrator shall be sustained, after the estate shall be represented and found insolvent, unless the administrator, having objection to the claim, shall consent to have it settled by course of law ; in which case the judgment of the court shall determine the claim and be reported by the commissioners as such. In *St.*1783, c. 59, it is provided, that when any land is attached upon any writ, and the defendant shall die before final judgment, and his estate shall be represented insolvent, and a commission of insolvency shall thereupon issue, such attacnment shall have no force after the death of the defendant.

*Metcalf,*in support of the replication,

said the case came within the letter of the statute last cited, but that it did not come within the spirit of either statute. The design of these statutes is, that the insolvent’s estate shall be distributed among Lis creditors *pro rata.*The land attached was not the proper *247ty of the intestate at the time of his decease ; he was not disseised, but he had made a *bona fide*conveyance, and his estate has the benefit of the purchase money; and no creditor will derive any advantage from defeating the attachment. *Hunt*v. *Whitney,*4 Mass. R. 620 ; *Grosvenor*v. *Gold,*9 Mass. R. 209 ; *Wildridge*v. *Patterson,*15 Mass. R. 148. There is one difficulty in the case, that the land attached cannot be said to he property in the hands of the administrator; but it has ncen held that land in the hands of an alienee of a devisee may be taken on an execution against the executor. *Gore*v. *Brazier,*3 Mass. R. 523.

In answer to an objection made by the chief justice, that the execution on a judgment in favor of the plaintiff would run against the property in the hands of the administrator, *Metcalf*suggested that the Court might issue a special execution, restricting the levy to the land attached on the writ.

The opinion of the Court was afterward drawn up by

Parker C. J.

We are not able to find any legal grounds on which the replication to the plea in bar can be supported.

The plea itself shows sufficient cause to prevent execution against the goods or estate of the intestate in the hands of the administrator, though judgment is to be entered for the plaintiff, the cause of action being admitted by the plea. But that judgment is to be laid before the commissioners on the insolvent estate and by them received as conclusive evidence of the debt, and the amount is to be placed on the list of claims to be reported to the judge of probate..

The replication states, that on the original writ, in the lifetime of the intestate, an attachment was made of real estate of which he was then seised, but which he afterwards, while living, conveyed for a valuable consideration to one Todd. The object of the judgment and execution sought, is to levy upon the estate so attached.

The 2d section of *St.*1783, c. 59, provides for the continuance in force of an attachment after the death of the defendant, in an action, which had been commenced against him in his lifetime, pending at the time of his death ; but the proviso to the section is, that where any estate, attached as aforesaid, shall by the executor or administrator be represented insolvent, *248and a commission of insolvency shall thereupon issue ; in all such cases, attachments made as aforesaid shall have no force or efficacy after the death of the original defendant in the action.1

The intent of the legislature in this proviso, and in all other enactments on the same subject, was undoubtedly to secure an equal distribution of the estate and effects of an insolvent intestate among all the creditors. By the expression, “ where any estate attached as aforesaid,” they intended not where any particular piece of land, or any particular chattel, which may be attached, but where the estate of the intestate generally, shall be represented insolvent, all attachments shall be vacated.

The land was the estate of the intestate when attached, and though it ceased to be his before his death, yet it can no otherwise be held on the attachment, or levied upon, than as his estate, having reference to the time of the • attachment, and so it comes within the terms of the proviso. It is true, that a levy upon this land would not affect the *quantum*of estate to be distributed, except favorably to the creditors by satisfying this debt and saving so much from the general fund ; but if execution goes generally against the goods and estate of the intestate, it may be levied on other estate of the intestate, and we do not find any authority to restrain the execution to any particular portion of the estate, or to that which was attached.

There are other difficulties. If execution should issue, it must go against the goods or estate of the intestate in the hands of the administrator. Can a levy take place upon land of which the intestate did not die seised, and in which therefore the administrator had no concern ?

It is not like the case of a fraudulent conveyance made by the intestate, for in such case he is supposed by the law to die seised for the benefit of his creditors. This intestate had lawful right to convey, and his grantee a lawful right to purchase, notwithstanding the attachment; so by his deed his seisin was absolutely transferred.

See Revised Stat. *c.*90, § 105, where it is enacted, that all attachments shall be dissolved by the death of the debtor provided that administration of his estate shall be granted in this State, within one year after his decease, or that application for such administration shall be made within the said year and that administration shall be afterwards granted upon such application.