442 HIGH COURT OF CHANCERY.

This being so, I can see no reason why the heirs at law of
Samuel Hayes may not insist, that his personal estate, as be-
tween his personal representatives and themselves, shall be ap-
plied in exoneration of the real. And as both the personal
and the real estate are now in this court, brought here by the
act of the administratrix, it seems to me, this court may now
see, that the proper application is made.

If this mortgage debt should be paid by the heirs, they
would have a clear right to reimbursement out of the personal
estate, and the latter being in this court, no good reason sug-
gests itself, why the proper application should not be made at
once, to prevent circuity, and save expense and delay. It is
not that this court usurps the powers of the Orphans Court,
but upon a principle of equity, which regards the personal es-
tate as the primary, and natural fund for the payment of debts ;

and the court will—having both funds under its control—apply
them in the order in which, as between the heir and executor,
they are liable. 1 Story's Eg., sec. 571.

I think, therefore, this mortgage debt, or the principle thereof,
must be paid out of the personal estate, if it is sufficient for the
purpose.

' I have said, that the principal sums due upon the mortgage
to William Seal, should be paid out of the personal estate of
Hayes, the mortgagor; but I do not think the interest should
be, which accrued between the death of Hayes, and the sales
of the property in 1845. During that period the defendants
were in possession of the mortgaged property, and acknowl-
edged that they received some profits; though, in their answer
they say they received very little;—the profits being applied,
as they represent, to keeping in repair, and enlarging the es-
tablishment. It appears to me, however, that they ought to
have kept down the interest upon the debt, and that the pay-
ments which they made on account of interest, and which are
stated in the Auditor's statement G. No. 6, must be assumed
to have been made out of the profits.

There is another reason why the interest upon the bonds
and mortgage to Seal should not be thrown upon the personal
estate in the hands of the administratrix of Hayes.