328 HAMM0ND v. HAMMOND.

ever, been put to rest by a positive legislative enactment, which
declares, that the previous laws in relation to the sale of real

Thomas Parkin, by his last will, devised all his estate, real and personal, to the
defendant Rachel, his mother, and appointed her his executrix, and soon after died ;
that she was, at that time, above twenty-one years of age; and on her refusing to
act as executrix, letters testamentary, with the will annexed, were granted to the
defendant Susannah; that, afterwards, Francis McKenna made his last will, by
which he appointed the defendant James Carey, his executor, and soon after died;
upon which the defendant Carey, qualified as his executor. The bill further states,
that Thomas Parkin and Francis McKenna, at the time of their death, were conside-
rably indebted, as appeared by the accounts of the defendant James Carey, passed
before the Orphans Court, and exhibited as a part of the bill; and that all their
partnership effects and personal estate were insufficient to discharge their debts; and
that the whole of their partnership effects, and their personal estate, had been ex-
hausted in the payment of his debts; and that there remained then, due from the
estate of Parkin &, McKenna, to the plaintiffs, a considerable sum of money; that
the testator Francis, left no real estate; that the testator Thomas, held, at the time
of his death, ten shares of bank stock, which had passed into the hands of his ad-
ministratrix, the defendant Susannah; that he had died unmarried, and without issue,
seized of real estate; but left no brother or sister of the whole or half blood; nor
any issue of a brother or sister; nor did he leave a father; and that his mother, who
was his heir at Jaw, claimed the real estate left by him, as his devisee; and had taken
possession, and received the rents and profits thereof accordingly. Whereupon it
was prayed the defendants Jesse and wife might account for the rents and profits of
the real estate; that the defendants Susannah and James, might account for the
personal estate of their respective testators, and that the real estate devised to Rachel
might be ordered to be sold, &c.

The defendant Carey, by his answer, said that he had passed an account as execu-
tor, before the Orphans Court, and distributed a large amount in payment of debts
due from the firm of Parkin & McKenna, leaving considerable sums still due, &c.

The defendants Hollingsworth and wife, and Susannah Goodwill, by their answer,
objected to the accounts of the defendant James Carey, as passed by the Orphans
Court, in many particulars; and averred that, if all the effects had been fully ac-
counted for, and applied by him, there would have been assets sufficient to pay all;
or, at least, leaving a small balance due; and they say they do not know, or admit,
that the debts stated in the bill are due; and they put the plaintiffs upon the proof
thereof. These defendants admit the other facts as set forth in the bill, &c.

A commission was issued to take testimony, and returned with sundry depositions,
documents, and admissions of the parties; from all which, the indebtedness to the
plaintiffs was established substantially as charged; but the insufficiency of the per-
sonal estates of the deceased debtors; or of the separate personal estate of Thomas
Parkin, deceased, was in no other manner averred in the bill than as stated above, or
shewn by the proofs, than by the accounts of the defendants Carey and Goodwin,
which they had passed before the Orphans Court.

30th December, 1803.—HANSON, Chancellor.—This cause standing ready for hear-
ing, and being appointed, with notice to all parties, to be heard this day; and the
counsel for the defendants being absent; and the cause being thereupon submitted
by the complainant's counsel, the bill, answers, exhibits, depositions, and all other
proceedings were, by the Chancellor,read and considered.

Whether or not, in case of a deficiency of assets in the hands of the executor or
administrator, this court can decree a sale of a real estate devolving on a person of