6f6 WARING v. WARING.

In this, as well as in all other proceedings which may be brought
before the court, in relation to the right of property, it will be pro-
per, however, constantly to bear in mind, that there are certain
constitutional limitations, beyond which, the power of the legisla-
tive or judicial department cannot be in any manner extended.
Neither the legislature nor the court can take property from one
citizen and give it to another; and therefore, no part of this real
estate can be sold, and taken from these heirs and applied to the
benefit of any one, other than these heirs, to the extent of their
interest in the personalty, and as the means of saving it. Because
the application of the proceeds of the sale of the realty, which
belongs to them, to save any personal property from the claims of
creditors, which would not, when so saved, belong to them, would
be, in effect, to take their property to save the property of others;
which cannot be done in any way, or under any form of proceed-
ing whatever. In this instance, the intestate having left children,
the widow would be entitled to only one-third of his personal
estate left after the payment of all his debts; and consequently,
in so far as the real estate which has descended to these heirs,
may be applied to pay those debts, in order to save the personalty,
these heirs do, in fact, thereby become the purchasers of it, as
against all but creditors; and the widow can have no claim to any
part of it; since the awarding to her any portion of the personalty
so saved, would be, in effect, to take the property of the heirs and
to give it to her; which cannot be done. She is, however, justly
entitled to dower out of the real estate sold; or to an equivalent
allowance from the proceeds of the sale; recollecting always, that
by coming in, and making claim to an equivalent allowance out of
the proceeds of sale, she thereby, tacitly admits the truth of the
allegations of the bill; and therefore, must, on that ground also,
be precluded from any portion of the personalty thus saved by the
proceeds of the sale of the realty.

But the legislature is, by a positive constitutional provision,
restrained from passing any law impairing the obligation of con-
tracts; and it is believed, that no court of justice has hitherto
ventured to impair the obligation of a contract, or to throw any
impediment in the way of a creditor who asked to have his claim
enforced against his debtor. This act of assembly must therefore,
be so construed, and the authority which has been conferred by it,
upon in cases of this kind, must be so applied, as to
leave to of this deceased debtor, no cause to complain.