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POST v. MACKALL. 501
derstand the nature of the directions which the court is now called
upon to give respecting them.
court signed by any one of its judges, because of his being the court, must be
deemed valid.
After various other proceedings, for the principal part of which see 10 G. & J. 67,
this case was again submitted for a final determination.
13th. May, 1836. —BLAND. —Chancellor. —It will be seen, by adverting to the pro-
ceedings, that the defendant James Tilton, in his answer, relied on two distinct
grounds of defence, each of which apparently, covered the whole of the plaintiff's
cause of suit as regarded the real estate of the deceased; first, the statute of limi-
tations; and secondly, the sufficiency of the personal estate of the deceased to pay
all his debts. Considering the reliance upon the statute of limitations, if sustained,
as an entire bar, it was obviously unnecessary to say any thing as to the sufficiency
of the personalty. And, on the reliance upon the statute by this defendant being
declared, by the Court of Appeals, to be only a protection of his interest in the
realty, it could not be proper, upon any allegation of his only, to call for an account
of the personalty, because his interests having been thus fully protected, the taking
of any such account, at his instance only, might well be regarded, in relation to all
others, as an impertinent and unnecessary interference with the further progress of
the case. The same principles apply to the answer of Clara Tilton, who, in her
answer, made after she had attained her full age, has, in like manner, relied upon
the statute of limitations and the sufficiency of the personal estate.
It appears, however, that the defendants Bennett and wife had also, in their
answer, relied on the sufficiency of the personal estate and the other appropriated
funds. That that allegation of theirs had been distinctly placed, by the record, be-
fore the Court of Appeals; and, if available, in any degree, in favour of the realty,
seems to have necessarily called for a decree or direction from that tribunal, that an
account be taken of the personalty; as usual, in all cases of this kind, where the
alleged insufficiency of the personalty or appropriate fund is contested by an heir or
devisee. —Campbell's case, 2 Bland, 225; Hammond v. Hammond, 2 Bland, 347,
354. —But, as nothing has been said by that tribunal as to any such account, this
court may now, therefore, treat it as a conceded or established fact, that the personal
estate of the deceased, including so much of the profits and the sales of his real
estate as he had appropriated to the payment of his debts are insufficient for that
purpose; and proceed accordingly to direct the real estate indiscriminately to be
sold.
The defendant Rebecca Gibson has had her claim, in lieu of dower, under the will
of her deceased husband, brought fully before the court, by the bill of complaint;
and, yet she ha? made default, and still remains silent and passive. The devise to
her, in lieu of dower, may be entirely equivalent in value to her legal right; and by
her acceptance of it, as such, it must be presumed, that she has hitherto so regarded
it No one of these parties has objected to the having of it, or of her dower awarded
to her, in kind, or in any other form. This devise to her, in lieu of dower, is one
of singular complexity, and difficult to be disposed of, with a due regard to the inte-
rests of the devisees, and the creditors of the deceased. For, as regards the mort-
gaged estate, there being no personal covenant in the mortgage deed for the payment
of the money, it follows, that in so far as this incumbrance in lieu of dower should
be thrown upon it, so as to leave any balance unsatisfied, the claim for such balance
would be thereby reduced to the grade of a mere simple contract debt, so as in that,
and in other respects, to be regarded as a devise to the prejudice, and in fraud of
creditors, and void under the statute,
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