410 MACKUBIN v. BROWN.

MACKUBIN v. BROWN.

In a creditor's suit the decree for a sale of the realty, being founded on the fact of the
insufficiency of the personal estate, necessarily establishes that point; and, conse-
quently, after that, the correctness of the administrator's accounts cannot be im-
peached for the purpose of turning a creditor, who had come in under the decree,
away from the realty to seek payment of the personalty.

After the notice to creditors had been given, a sale had been made, and a distribution
of the proceeds had been awarded to creditors, claimants, who had been infants,
were allowed to come in soon after they attained their full age, and to have a fur-
ther sale of the realty made for the satisfaction of their claims; and that too, after
a partition had been made of it among the heirs of the deceased debtor.

A trustee, under a decree for the sale of property, who fails to bring into court, or
to account for the proceeds of sale, or the bonds and notes taken by him to secure
the payment of the purchase money, may be charged with the whole amount of the
proceeds according to his report of the sales. But, by thus holding the trustee
liable, the court docs not thereby virtually exonerate any one else.

A trustee cannot be permitted to apply a part of the proceeds of sale without any
authority from the court, and then to come in to have it allowed as a set off against
the claim of the party to whom it was paid.

It appears, that William Hammond of Ann Arundel county, by
his will and codicil, made on the 24th March 1807, after devising
several parcels of his land to particular persons, and emancipating
some of his negroes, directed, that all the residue of his real estate
should be sold by his executors for the payment of his debts; and
the surplus of the proceeds to be invested and applied in satisfac-
tion of legacies, as therein specified among the children of his sis-
ters; and he appointed Basil Brown and William H. Marriott his
executors. After which he died; his will was proved according
to law; and, on the 7th of October 1807, his executors by a note
addressed to the register of wills renounced the executorship ;(a) and
administration, with the will annexed, was immediately granted to
Basil Brown. And, on the same day, Basil Brown filed his peti-
tion in .this court, stating these facts and alleging, that he was
interested in the estate as appeared by the will, and prayed that, a
trustee might be appointed to carry the will into effect.

Whereupon, and according to the act of assembly,(o) a decree
was passed ex parte, on the 12th of October 1807, directing the
real estate of the late William Hammond to be sold; and Basil

(o) 1798, ch. 101, sub-ch. 8, s. 7; Dep. Com. Gui. 69; 3 Bac. Abr. 43.—(b) 1785,
ch. 72, s. 4.