32 TESSIER v. WYSE.—3 BLAND.

3 Atk. 406. But if any one of the heirs, or, according to *our
43 Act of Assembly, any other person claiming the real estate
by purchase, be a minor, he cannot be compelled to answer the
suit, but the parol shall demur as to all, until each infant attains
his full age. 1729, ch. 24, s. 16; Co. Litt. 290; 3 Blac. Com. 300;
Markal's Case, 6 Co. 4.

It must, however, be borne in mind, that this mode of adminis-
tering the assets of a deceased debtor, by applying his personal
estate first to the payment of his debts, can only be done on a
creditor's bill filed in this Court; and according to all the authori-
ties, it is only adopted here for the purpose of preventing that
circuity of action, which would be occasioned if the creditor were
permitted to obtain satisfaction from the real estate, and thereby
leave the heir to take his place, and go against the personalty for
reimbursement. It is founded upon that equity alone, which sub
sists between the real and personal representatives of the deceased,
to have the personal estate, as the primary and natural fund for
the payment of debts, first applied for that purpose. And being
an equity which arises only as between the heir and executor, it is
one by which the rights of a creditor can in no way be affected,
and with which he can have no concern; since it is well settled,
that upon the establishment of his claim in point of fact, he has a
clear legal right to enforce satisfaction, at his election, from either
the heir or the executor. The Court has but two points to consi-
der. First, that there is a debt presently due—and secondly, not
to sell real estate, while there is personalty available. But this
does not mean, that if debts are due to the estate, the creditor is
not to be satisfied until they are collected. The Court will order
immediate application of such funds as are immediately available,
and then resort to the real estate, without waiting for the coming
in of other personal effects, which may become capable of being
applied, within a shorter or longer period of time. Clanmorris v.
Bingham, 12 Cond. Chan. Rep. 254.

And, therefore, as it is not necessary at law for a creditor to
found this title to recover upon any allegation or proof, that the
executor has not a sufficiency of assets, Davy v. Pepys, Plow. 439;
so it cannot be necessary, that he, the creditor, should make and
sustain any such allegation to enable him to obtain satisfaction
out of the real estate by the aid of a Court of Chancery. On the
contrary, according to the English precedent, so far from the cre-
ditors alleging an insufficiency of the personal estate for the pay-
ments of debts, as a foundation * for a sale of the realty for
44 that purpose, it is there usually charged, in a creditor's bill,
that the deceased's personal estate was more than sufficient to
satisfy all his debts, as well those due by specialty as by simple
contract, &c.; but, that if the personal estate be insufficient, that
then the specialty debts be paid out of the deceased's real estate,