Page:United States Reports, Volume 1.djvu/494

Rh 

1789.

if, indeed, they are then unfold, they remain a fund, but if aliened, no remedy remains except a perfonal one againft the feller.

The real and perfonal eftates are both funds for the payment of debts. The perfonal eftate, there is no doubt, is immediately bound on the death of the debtor ; it goes into the hands of the executor, or adminiftrator, and is affets in his hands for the payment of debts; fpecific perfonal property, being in its nature perifhable, may be fold for that purpofe, and the executor, or adminiftrator, is perfonally bound to anfwer for the value. In the cafe of the adminiftrator, he muft give fecurity before the adminiftration is committed to him. In the cafe of the executor, being intrufted by the teftator, he gives no fecurity in the firft inftance; but, in cafe of probably infolvency, he may be compelled likewife to give fecurity. In both cafes, the whole perfonal eftate, or its value, is bound, from the moment of the debtor's death, to the payment of his debts. The real eftate is likewife confeffedly a fund for the payment of debts. It is a fund, however, that does not actually go into the hands of the executor, or adminiftrator, as affets, in the ordinary courfe ; but is a fund, made fuch by pofitive law, in another form ; that is, creditors may iffue executions, and fell it for the payment of their debts, on a judgment againft the executor, or adminiftrator ; for, it is not neceffary, nor has it been ufual, to bring the action againft the heir. The lands, however, go into the hands of the heir or devifee, who gives no fecurity, and between whom and the creditors there is no privity: They are made a fund for the payment of all debts, and muft neceffary have been intended by the Legiflature to be a certain, and not a precarious fund ; for, fince it is declared, that the creditors may take them in execution on a judgment againft the executor, or adminiftrator, it muft be meant that they fhould have the fruit of that execution ; and as there is the fame reafon under the law, that they fhould be equally liable with the perfonal eftate from the death of the debtor,  they muft neceffarily be liable in fuch a manner as to be anfwerable at all events, which can no otherwife be, than be confidering them as fpecifically liable in whofever hands they may be. If it were otherwife, the would prove no fund at all; for the devifee, or heir, knowing that if judgments were obtained, he fhould lofe his land, would, in every inftance, where he apprehended debts beyond the amount of the perfonal eftate, immediately fell them, an thereby entirely defeat the intent of the Legiflature, in making them a fund for the payment of debts.

The mifchief of this doctrine is ftill more ftriking, if we confider, that the eftates of the inhabitants of Pennʃylvania, out of the city of Philadelphia,  are chiefly real eftates, and if they were immediately  alienable by the heirs, without being afterwards liable for the anceftors debts, few creditors to any amount would ever recover their debts, although perhaps the debts may really have been contracted on the credit of the lands. Another