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TESSIER v. WYSE. 43
our act of Assembly, any other person claiming the real estate by
purchase, be a minor, he cannot be compelled to answer the suit,
but the parol shall demur as to all, until each infant attains his
full age. (s)
It must, however, be borne in mind, that this mode of adminis-
tering the assets of a deceased debtor, by applying his personal
estate first to the payment of his debts, can only be done on a
creditor's bill filed in this court; and according to all the authori-
ties, it is only adopted here for the purpose of preventing that
circuity of action, which would be occasioned if the creditor were
permitted to obtain satisfaction from the real estate, and thereby
leave the heir to take his place, and go against the personalty for
reimbursement. It is founded upon that equity alone, which sub-
sists between the real and personal representatives of the deceased,
to have the personal estate, as the primary and natural fund for the
payment of debts, first applied for that purpose. And being an
equity which arises only as between the heir and executor, it is one
by which the rights of a creditor can in no way be affected, and
with which he can have no concern; since it is well settled, that
upon the establishment of his claim in point of fact, he has a clear
legal right to enforce satisfaction, at his election, from either the
heir or the executor. The court has but two points to consider.
First, that there is a debt presently due—and secondly, not to sell
real estate, while there is personalty available. But this does not
mean, that if debts are due to the estate, the creditor is not to be
satisfied until they are collected. The court will order immediate
application of such funds as are immediately available, and then
resort to the real estate, without waiting for the coming in of other
personal effects, which may become capable of being applied
within a shorter or longer period of time, (t)
And, therefore, as it is not necessary at law for a creditor to
found his title to recover upon any allegation or proof, that the
executor has not a sufficiency of assets, (u) so it cannot be neces-
sary, that he, the creditor, should make and sustain any such alle-
gation to enable him to obtain satisfaction out of the real estate
by the aid of a Court of Chancery. On the contrary, according to
the English precedents, so far from the creditor alleging an insuf-
ficiency of the personal estate for the payments of debts, as a foun-
(i) 1729, ch. 24, s. 16; Co. Litt 200; 3 Blac. Com. 300; Markal's Case, 6
Co. 4.—(t) Clanmorris v. Bingham, 12 Cond. Chan. Rep. 254.—(u) Davy v. Pepys,
Plow. 439.
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