|
|
|
|
|
|
|
TESSIER v. WYSE. 49
equity, obtain reimbursement from the personal estate, if any, in
the hands of the executor or administrator; that if a creditor sued
in equity, and it was alleged and shewn, by the heir, that there
was personal estate, then that estate was first applied, and the
realty only sold to make up the deficiency; and that in all cases,
where any one of the claimants of the real estate was an infant
the parol should demur as to all until such minor attained his Hill
age.
Hence it appears, that a creditor's right to proceed against the
real estate of his debtor in no way depended upon the insufficiency
of his personalty, and it is most manifest, from a fair reading of
this act of Assembly, obviously made for the benefit of creditors,
that the legislature could not have intended to throw in the way of
a creditor any new obstacle or hindrance to the recovery of his
debt in any form whatever. It could not have been intended to
engraft upon the former law a condition precedent, requiring a
creditor to show, as a foundation of his claim to obtain satisfaction
from the realty, that the personalty had been exhausted; or to re-
quire him first to shew the amount to be raised by a sale of the
realty to make up for the deficiency of the personalty; although
the court may, to avoid unnecessary injury to the heir, and at his
instance, first call in the creditors and have an account of the per-
sonal estate taken, in order to ascertain how much of the real
estate should be sold, (h) A specialty creditor might, at his elec-
tion, by an action at common law, enforce payment from the heir,
without regard to the amount of the personal assets held by the
executor or administrator. And, if such specialty creditor went
into a court of equity for relief, he carried with him there this legal
right to obtain satisfaction unembarrassed by any question as to
assets between the heir and executor. The Court of Chancery,
recognizing the existence of such legal right, always so regulated
its proceedings, as, in doing justice between the heir and execu-
tor, in no way materially to delay or prejudice the claims of cre-
ditors.
Simple contract creditors having, by the British statute of 1732,
been put upon a footing with specialty creditors, the Court of
Chancery here, in creditors' suits, always, since the adoption of
that statute, applied the same rules and principles to the claims of
(h) Strike's Case, 1 Bland, 85; Galphin v. McKinney, 1 McCord, 294; Clan-
morris v. Bingham, 12 Cond. Chan. Rep. 254.
|
|
|
|
|
|
|
|
 |
