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44 TESSIER y. WYSE.
dation for a sale of the realty for that purpose, it is there usually
charged, in a creditor's bill, that the deceased's personal estate
was more than sufficient to satisfy all his debts, as well those due
by specialty as by simple contract, &c.; but, that if the personal
estate be insufficient, that then the specialty debts be paid out of
the deceased's real estate, that the executor account; that the real
estate be sold, &c. And, consequently, in all such cases, if it be
supposed, that there are personal assets which may be applied in
aid of the realty, the issue, as to that fact, founded on this equity,
must be presented by the heir; and be made up between him and
the executor or administrator alone, as it clearly lays with the heir
only to allege and shew that fact for his own benefit; which if he
fails to do, the creditor, whose legal rights cannot in any way be
impaired or controlled by the court, must be allowed to obtain
payment by a sale of the realty, (w)
Thus stood the Jaw of Maryland until the year 1732, when the
British parliament passed an act, by which it was declared, 'that
from and after the said twenty-ninth day of September, one thou-
sand seven hundred and thirty-two, the houses, lands, negroes and
other hereditaments and real estates, situate or being within any
of the said plantations belonging to any person indebted, shall be
liable to and chargeable with all just debts, duties, and demands
of what nature or kind soever, owing by any such person to his
majesty, or any of his subjects, and shall and may be assets for the
satisfaction thereof, in like manner as real estates are by the law of
England liable to the satisfaction of debts due by bond or other
specialty, and shall be subject to the like remedies, proceedings
and process in any court of law or equity, in any of the said plan-
tations respectively for seizing, extending, selling or disposing of
any such houses, lands, negroes and other hereditaments and real
estates, towards the satisfaction of such debts, duties and demands,
and in like manner as personal estates in any of the said planta-
(w) Wolstan s. Aston, Hard, 511; Anonymous, 2 Cha. Ca. 4; Popley v. Popley,
2 Cha. Ca. 84; Mead v. Hide, 2 Vern. 120; Tipping v. Tipping, 1 p. Will, 729;
Edwards v. Warwick, 2 P. Will. 175; Knight v. Knight, 3 P. Will. 332; Anony-
mous, 9 Mod. 66; Williams v., Williams, 9 Mod. 299; Lutkins Leigh, Ca. Tem.
Talb. 54 Galton v. Hancock, 2 Atk. 435; Stileman v. Ashdown, 2 Atk. 609;
Walker v. Jackson, 2 Atk, 624, Daniel v. Skipwith, 2I Bro. C, C, 155; Rowe v.
Bant, Dick. 151; Hamilton v. Worley, 2 Ves. jun.,, 68; Aldridge v. Wallscourt, 1
Ball & Bea. 812; 2 Fonb. 286; Will, Exrs. 1042; 2 Harr. Prac. Cha, 323; 2 Newl
Pra. Ca. 13; Willis' Eq. Plea. 222; Clanmorris v. Bingham, 12 Cond. Chan.
Rep. 254,
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