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352 SIMMONS v. TONGUE.
exceptions thereto, the solicitors were heard for and against seve-
ral of the claims; and the proceedings read and considered.
It appears from the auditor's statements, that he makes frequent
reference to certain dividends which some of the creditors had
obtained from the personal estate; and it is also stated by the
auditor, that from the list, filed by the defendants, of the debts due
to the late Thomas Tongue, it appears, that there are accounts
which are relied on as discounts in bar of many of the claims.
These circumstances very strongly shew the propriety and utility
of passing a decree to account against the executor or adminis-
trator in all cases where it is alleged and shewn, that there is any
personal estate which had been or might be distributed in satisfac-
tion of those creditors who then claimed payment from the proceeds
of the realty.
Where there has been, or is then no administration, because of
there being no assets, there is no personal representative of the
deceased debtor to bring before the court for any purpose. And
where the personal estate had been confessedly altogether taken
up in making entire satisfaction of some claims, without any pro-
portional distribution among any, it would be idle and unnecessary
to call on the executor or administrator to account. But where,
as in this instance, it appears, that there had been a distribution of
the personalty among the creditors in partial payments; or where
there are some personal assets still to be administered, there
should be a decree to account against the executor or administra-
tor for his own protection, to save him from being unjustly charged
by any creditor whose claim had not been passed upon by this
court; and also for the benefit of creditors to force the executor or
administrator to account for the whole of the assets which had
come to his hands; and to prevent any one creditor from obtain-
ing more than a due proportion of satisfaction from the whole
estate of the deceased; and also to relieve the heirs or devisees
from every portion of die burthen which should be borne by the
personal estate as the natural fund for the payment of debts. For
these reasons the whole estate, personal as well as real, should be
brought before the court, by a decree to account against the exe-
cutor or administrator, which in this case has been very impro-
perly omitted, as well as by a decree for a sale of the realty.
These two reports of the auditor have described one hundred
tod fifty-one claims which have been presented here against the
estate of Thomas Tongue, deceased, the proceeds of which the
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