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502 POST t. MACKALL,
Where one creditor may, to obtain satisfaction, have recourse to
two funds, and another creditor of the same debtor can only resort
Therefore such a decree, as may be deemed safe as to the widow, and roost bene-
ficial to all others, may be now made, as is usual in similar cases, directing the real
estate to be sold, disregarding this devise to the widow, and leaving her to come in,
according to the rule of the court, for a proportion of the proceeds of the sale in lieu
of her dower at the common law, to which she and all concerned have thus tacitly
admitted she may safely be remitted in place of the devise. — Maccubbin v. Cromwell,
2 H. & G. 444; Margaret Hall's case, 1 Bland, 203.
The claim of the complainant being established to the satisfaction of the Chan-
cellor, except as against the defendants James Tilton and Clara Tilton, to the extent
of whose interests it is barred by the act of limitations; and, it appearing that the
personal estate of the said Jacob Gibson, deceased, is not sufficient for the payment
of his debts. Decreed, that the bill of complaint be taken pro confesso against the
absent defendants, &c. and against the defendants Nancy Gibson, &c. Decreed, that
the real estate of the said Jacob Gibson, deceased, or so much thereof as may be
necessary, be sold for the payment of the mortgage claim of the defendants, The
Farmers' Bank, and the claim of the complainant as stated in the proceedings, and
all other debts due from the said Jacob Gibson, deceased; that John Scott be ap-
pointed trustee to make the said sale, &c. (in the usual form. ) And at the time of
advertising said sale the trustee shall give notice to the creditors of the said Jacob
Gibson, deceased, to file their claims with the proper vouchers in the Chancery
office within four months from the day of sale. Decreed, in conformity with the
decree of the Court of Appeals, that the answer of the defendant James Tilton; and,
according to the principles of the same decree, the answer of the defendant Clara
Tilton, be, and they are hereby declared to operate as. protections to the interests of
the said defendants in the real estate aforesaid, as against the complainant. And in
taking the account of the claim of the complainant the auditor is directed to treat it
as having been paid in proportion to the extent of the interests of the defendants
James Tilton and Clara Tilton; to which extent they would have been required to
contribute towards the payment thereof in respect of the interests acquired by them
under the will of the said Jacob Gibson, deceased, if the aforesaid answers had not
been filed. And the parties are hereby authorized to take testimony in relation to
the said proportional deduction from the said plaintiff's claim, before any justice of
the peace, on giving three days notice as usual; provided, that such testimony be
taken and filed in the Chancery office within four months after the day of the said
sale.
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From this decree some of the defendants appealed, and the case having been
brought before the Court of Appeals, the decree of the Chancellor was modified as
set forth in 10 G. & J. 100.
Under this decree of the Court of Appeals the case having been returned to the
Court of Chancery, the auditor on the 8th of May, 1840, reported, that he had exa-
mined the proceedings, and from them stated all the claims exhibited against the
estate of Jacob Gibson, deceased; also an account marked A. between the personal
estate of this deceased, and the executor thereof; and also an account marked B.
between the real estate of this deceased and the trustee for the sale thereof; with
sundry statements marked No. 1, 2, 8, 4 and 5; all herewith filed. That in account
A. the amount of the personal estate, and the proceeds of the real estate as directed
by the will to be applied to the payment of debts, according to the administration
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