HAMMOND v, HAMMOND. * 385

stand on an equal footing with other claims of the same nature; (x)
and as it had been previously declared, that an heir or devisee
should pursue the same rules in the payment of debts out of the
real assets as were prescribed for an executor or administrator; (y)
it would seem to follow, that the claim of an heir or devisee should
now, in like manner, be held to stand only upon an equal footing
with all other claims of the same nature; and be allowed to retain
only for a due proportion, (z)

Here, however, it may be well to observe, that although it is
directed, by an act of assembly, that all judgments against the de-
ceased shall be first discharged, if the assets be sufficient; but if
not, and there be more judgments than one, a proportionable divi-
sion of the assets shall be made among them, in affirmance of the
common law, as to the personalty, (a) and then, it is further de-
clared, by the same act of assembly, that, in case there be not per-
sonal estate sufficient, the heir or devisee shall pursue the rules and
directions aforesaid, in the payment of the debts of the deceased;
and that all courts of law and equity shall observe those rules and
directions. (6) Yet as nothing is said, in that legislative enact-
ment, as to any lien upon the real or personal estate; and, as it
would be impracticable, in many cases, to satisfy judgments in due
proportion only; and at the same time sustain the liens of mortga-
gees and vendors, it has been always held, that notwithstanding
what is said in that act of assembly, all liens upon the realty must
remain in full force; and that the rules therein laid down can
only apply where no such lien exists on the personal estate by
a fieri facias actually delivered to the sheriff; or on the real estate
by a mortgage or judgment made or recovered in the life-time of
the deceased, (c) And, consequently, since the real estate of a
debtor, has been made liable to the payment of his debts by sta-
tute; and can only be properly applied in payment of them, after
his death, in a court of equity, that estate can only be regarded as
legal assets, not having been raised where there were none before;
and, therefore, must be administered accordingly, subject to all the
legal and equitable liens, preferences and priorities of those credi-
tors who may be entitled to obtain satisfaction from them. (d) That
is, they must be first applied in discharge of all costs, so as thus to

(x) ch. 101; sub ch. 8, s. 19.—(y) 1785, ch. 80, s. 7.--(z) Player v. Fox-
hall, 1 Russ. 538; Winter v. Hicks, 5 Cond. Cha. Rep. 490.—(a) Will. Exrs. 660.—
(&) 1785. ch. 80, s. 7.—(c) Tyson v. Hollingsworth, ante 383; Pattison v. Frazier,
ante 372— (d) 2 Fonb. 403; Silk v. Prime, 1 Bro. C. C. 139.