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36 TESSIER v. WYSE.
real assets which have come to their hands. It is a mortgagee
from some of the heirs, and an heir who makes this defence
against this claim.
As regards the mortgagee, it is perfectly clear, that he might,
at any time, have sued for and recovered his claim by bill for a
foreclosure and sale, or otherwise; or he might, by a creditor's
suit, have called before the court the creditors of the deceased,
in order to have the property, so far as it had been mortgaged to
him, relieved from their prior claims, by having them satisfied or
rejected, so as to have the surplus applied in satisfaction of his
claim. This mortgagee cannot, therefore, be permitted to com-
plain of the negligence of this creditor, when it is so perfectly
obvious, that he might have had him called before the court, and
thus compelled to receive satisfaction for his, this mortgagee's,
benefit. It is equally well settled, that a next of kin or heir may,
by a creditor's suit, have the personal and real estate administered
in equity, in order to have the estate cleared of the claims of cre-
ditors, so that what remains, may be at once awarded to him, or
distributed among all such next of kin or heirs of the deceased.
And, consequently, it is no less clear, that a next of kin, or an
heir, can in no way, be allowed to complain of the mere negli-
gence of a creditor in not enforcing payment from the personal or
real assets of his deceased debtor, (b)
And even supposing these defendants to stand in any way as
sureties for the payment of this debt to the plaintiff Tessier; then,
as sureties, they might by a bill quia timet, have compelled these
plaintiffs to have sued and obtained satisfaction from the person
first liable, or from the proper fund, so as to save them, these
defendant?, harmless. Therefore, considered even as sureties,
these defendants cannot complain of the mere forbearance of their
creditors; and thus have shewn no cause to impute to these
plaintiffs negligence or misconduct of any kind whatever.
Perhaps these defendants by the charge of negligence and mis-
conduct, and by the averment, that the plaintiffs hare no such
claim as the testator's real estate can be charged with, intend to
take defence upon the ground, that haying failed to allege and
shew the insufficiency erf the personalty, the real estate of the tes-
tator cannot be made liable for the payment of this debt. This
is a case in which a creditor, in behalf of himself and other credi-
(d) Hammond v, Hammond, 2 Bland, 307.
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