Year: 1867




his death, from the sale of property, real


personal, or otherwise, whether he died tt


tate or intestate, shall be assets, and sha


stand chargeable with all the Just debts al


funeral expenses Of the deceased and Il
! expenses of settling the estate; and Il


lands, tenements, and hereditaments of ii


testator or intestate, shall also stand cha


geable for the debts, over and above VIII;
! the personal estate may be sufficient to pa


or may be subjected to the payment of deb


in the manner hereinafter directed, savin
I to the widow her right of DOVER"


9 Then it is provided, that when any Exc
4 utor or Administrator shall discover tha
I the personal property will not be suificien
to pay the debts, he may petition the Coul
I of Probates, for q sale of the lands of th
Z deceased, and he shall then exhibit full
: just and true account of the personal estat,
! and of the debts due from the deceased an
that the court shall give notice D
the application and, shall after
wards hear the proofs on bot
sides; and if the court shall thereupon
! satisfied that the personal estate is insuffic
lent to pay the debts Of the deceased, all,
! that the land ought to be sold for that pul
pose, it may make decree for that purpose
Rev. Code, 445, Arts. $3.50.


Again--the Executor or Administrator i
required to take all proper steps to ascer


tain whether the estate will be solvent O


insolyent; and if it be ascertained that til,


estate, both real and personal, will be in


sufficient to pay the debts of the deceased


he shall exhibit true account of the per


sonal estate and assets, and true list of thu


lands of the deceased, and schedule of the


debts and if it shall appear that the estate


isinsolvent, the court shall make an order
for the sale Of the lands, and the proceeds Of
the sale, and all other assets shall be equally
4 distributed pro rata among all the creditors


Ib. 448, Art. SO.


j 1t is manifest that the effect of these
4 statutes is, to render the real estate of the
! deceased chargeable with his debts, "oveI


and above what the personal estate may be


sufficient to pay and they were plainly


founded on the policy, which SO generally


prevails in this country, to subject all mans


property to the payment of his debts But


the rule of priority in the application of the


personality before the real estate, to that


purpose, which prevails both in England


and in the States Of this Union, is also estab-
| ed


| But the question here presented is, wheth-
er if the personality besufficient, at the time


of the testatOr's death, and afterwards turn
tout, for any cause whatever, without fault
ION the part either of thehe or of the cred


itors, to be insufficient to pay the debts, the


creditors can resort to the real estate for that


purpose, through the Executor and in the


Court of Probates.


In support of the negative of this propo-
sition, it is said, that the lands vested in the
heir Immediately on the death of the de-
ceased, subject to the q tion that they
Should be liable to the dt 1t should be-
come necessary to apply u to that pur-
xe +ha t,,aY ~ r.f
personality. But we do not consider this
view tenable.


1t has been held, by this court, that, un.
der our statutes, the lands of the deceased
are liable to the payment of his debts equal
ly with the personality, the latter being only
first required to be exhausted; that they are
subject to administration for the payment
of his debts, as of the assets of the deceased
at the tjme of dis Death; and that in the
contingency of the deficiency Of the person
atty, they become as completely subject to
the payment. of debts as the personally,
their liability as such having relation back
to the death of the deceased. Lee VS.. Gard
ner, 26 Miss SAL, 542 1t is true, the legal
title descends to the heir, who is entitled to
enjoy the estate until the contingency arise
when the land may be required to be ap-
propriated to the payment of the debts. But
he holds it subject to the charge Of the debts
of the ancestor, which may be enforced
whenever it is found that the personal assets
are insufficient to pay the debts. This
charge is affixed to the lands, by law, at the
time of the testator's death, though it may
not be enforced until the deficiency of the
personality be ascertained and the heir
holds the legal title, in the interim, subject
to this charge whenever it shall be made to
appear that the necessity for enforcing it
has arisen. 1t is case of charge on the
lands, and not that of a title held on condi-
tion subsequent.


Again-it is contended, that the deficiency
must exist at the time of the death of the
deceased, in order to make the real estate
and that the question of the
sufficiency of the personal assets must be
tested by their condition at the time of his
death.


We do not think that the statutes will |
admit of this construction for several rea-
sons.


l. 1t is not consistent with their phraseol-
)gy. The first provision is, that the lands
shall be chargeable for the debts over and
above what the personal estate may be
sufficient to pay''-that is, may, in the
course of administration be found to be
insufficient This language is prospective,
md Is not reconcilable with the idea that
he liability of the lands was to be governed
~ the condition of the personal estate at the
ime of the death of the deceased. Then
he Executor is required to give notice, for
he presentation of claims, and creditors are
Ilowed two years to present them. Again
when the Executor or Administrator shall
discover that the personal estate will not be
efficient to pay the debts" he may apply
or the sale of the lands. Thus, the appli-
alton to sell the lands may be made when
yer the Executor shall discover the insuffic
ency of the personal assets. He is not linn |
ted to any particular time in taking the j
tep nor to the condition of the personal es- ;
ate, at any particular time. The terms ]
mployed exclude the idea, that the step is s
. depend upon the condition of the person
estate at any other time, than when he &
hall discover that the personal estate, in !
ne course of administration, twill not be ]
efficient" to pay the debts. Again-the G
Executor is required, at the time of present. q
lg his petition, to exhibit "a full, true and c
lst account of the personal estate" of the G
eceased. This clearly appears to contem- s
late that the personal estate may be differ
Mt in amount or value at the time of the t
pplication to sell the lands from what it
as at the time of the death of the deceased. '
or, otherwise there could be no necessity I
II this account, at the time of making the
ppncatl0n since there would already
ave been made and returned to the court, l
n inventory showing the amount and value
the personal estate at the time of the
cath Of the deceased. The account referred b
must have reference to the condition of a
he estate at the time of the application. o
gain-it is provided, that, if on the hear e
g of the petition, "the court shall be sat {
fed that the personal estate is insufficient s
pay the debts" a decree may be made for n
le sale of the lands, which shows that it b
as the condition of the personal estate at P
Ie time of the hearing that was intended a