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818 POST v. MACKALL.
deceased; although as against all the other creditors, now before
the court, except claim No. 4, they would, if not opposed by a plea
of limitations, be clearly entitled to a preference •, even against
claim No. 11, whose right to issue an execution upon his judg-
ment, existing at the time when these two judgments were ob-
tained, having been suffered to expire, could not be revived so as
to overreach an intermediate lien or conveyance, which during its
lapse, had taken full effect, (u)
The personal estate is the fund primarily liable for the payment
of debts; and therefore, if the real estate be mortgaged, the per-
sonal estate must be applied in discharge of the mortgage in relief
of the realty. But where there are simple contract creditors who
cannot resort to the mortgaged estate, the mortgage debt may be
thrown entirely upon it, so as to leave the personalty for the benefit
of the simple contract creditors. But by our law, on the personal
estate being exhausted, all creditors may resort to the realty; and
therefore, in administering the assets of a deceased debtor, in this
court, there can rarely be any necessity for such a marshalling of
the funds for that purpose, since all the assets, real and personal,
are to be applied to the satisfaction of the creditors according to the
priorities of their respective liens; and then in satisfaction of the
rest in due proportion; applying the personalty first, so that if
there be any surplus it shall be left as of the realty, and go to the
heirs.
If there was here no other distinction among these creditors,
than that arising from the nature of the securities of their claims as
derived from the deceased debtor himself, the distribution of these
assets might be made among them upon principles the most simple
and obvious. But, it must be recollected, that, according to the
recently established rules, an absolute judgment against an execu-
tor or administrator, although conclusive as between the creditor
and executor or administrator, is not so as between the creditor
and the heir or devisee; and that a plea of the statute of limita-
tions, if established as a bar, can only enure to the benefit of him
who pleads it; and besides, that although a creditor who has ob-
tained an absolute judgment at law against an executor or admin-
istrator, will not be permitted to levy his debt by a fieri facias after
a decree to account; yet he cannot, on coming in, under the de-
cree, be compelled to part with any advantage his judgment has
(u) 1323, ch. 104; Coombs v. Jordan, ante 284.
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