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506 POST v. MACKALL.
and creditor, but is founded on a natural and moral equity, that it
shall not depend upon the will or caprice of one creditor who has
Lloyd and Blake, grounded on their alleged payment of debts due by the deceased,
as having no just foundation; and as being barred by the act of limitations. And
on the same day the plaintiff excepted, in like manner, and also relied on the act of
limitations against claims No. 2, 3, 4, 5, 7, 8, 9 and 10.
On the11th of July, 1840, the heirs of Harriet Bennett and of John W. Blake,
excepted to the report of the auditor; 1st. That the claims to which they have ob-
jected have not been rejected. 2d. That in the said report he has assumed two
valuations of the real estate, neither of which is based on sufficient testimony.
8d. That he has assumed as the basis of valuation the estimate made many years
ago; whereas, it ought to be taken as of its present value. 4th. That having
assumed as the basis of value an estimate made many years ago, he has reduced the
estimate to make it correspond with the difference between the estimate of Marengo
and the sum for which it actually sold; whereas, different causes may have operated
to increase or diminish in equal or less degree the value of each piece of property;
and the assumption is without proper evidence to sustain it. 5th. That he has not
shewn what deduction ought to be made from the claim of the complainant in con-
sequence of the plea of limitations, set up and allowed, of Clara Tilton and James
Tilton. 6th. That he has not shewn what part of the claim of McCormick the
plaintiff, as against the heirs of Gibson, rests upon the ground of substitution; and
what part of the portion of the said claim to be paid by these defendants they ought
to be relieved from, under the opinion of the Court of Appeals, in consequence of
a failure of proof as to the claims paid out of the personal estate, in whose place a
substitution on the part of McCormick is sought to be established. 7th. That the
said report is not complete and full, and does not shew the liabilities of any portion
of the estate, as it ought, of all and every part before justice can be done to the
heirs, the complainant, the Bank, or other creditors. 8th. That the whole purchase
money of the property sold, after deducting costs, and the trustee's expenses, are
applied to the Bank mortgage debt, whereas it may happen, that the part sold is not
sufficient for the payment of the mortgage, and that portion of the general debts
which may be thrown upon it; and that such an appropriation ought not to be
made, because of the right to substitution, as stated by the auditor; for the reason
that these defendants object to the claim of the Bank, and plead limitations thereto,
whenever made on the ground of substitution, or otherwise than under the mortgage
upon the mortgage property. 9th. That there is no proof of the validity of the
debts mentioned in account A. and the auditor erred in assuming them to reach such
an amount as to reduce the personal estate to $ 0. 61106 in the dollar; or any other part
of a dollar, less than the whole. 10th. That statements 3, 4 and 5, are erroneous,
because the whole of Marengo ought to be estimated, and its value ascertained, and
the excess of value over and above the payment of the mortgage, ought to be applied
to the payment of the general debts like the rest of the property of the deceased;
and not otherwise, so far as these defendants are concerned.
On the same day the heirs of John W. Blake excepted to the auditor's report,
because no account has been returned allowing in their favour, and as a deduction
from that portion of the debts which the property sold to their father ought to pay
$5, 000, relied upon by the answer of the said Blake, as being a part of the purchase
money paid to this Bank, in liquidation of a just debt due by the estate.
On the petition of the heirs of Harriet Bennett the parties were authorized to take
testimony before any justice of the peace in relation to the facts presented by the
auditor's report. And some time after the case was again brought before the court.
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