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54 t?. WYSE.
but creditors as are of this state (r) should be allowed
to come in and have the real estate sold for the payment of their
debts in the manner prescribed. These legislative provisions it is
obvious have relation to peculiar cases, to which the state is a
party, and do not in any way affect the rights of a creditor against
the heirs or devisees, executors or administrators of his deceased
debtor.
From this review of the law in relation to the matter now under
consideration, it is therefore perfectly clear, even admitting that
the defendants have relied upon the fact, that the plaintiffs had
failed to allege and prove, that the personal estate of William Wyse
deceased, was insufficient to pay his debts, it can be of no avail to
them as a defence against the claim of these plaintiffs to obtain
satisfaction by a sale of the real estate of the deceased in their
hands; since, if it be true, that there is a sufficiency of personal
estate to pay the debts of the deceased, it rests with these heirs
alone to allege and shew that fact, and how that estate may be now
so applied for the saving of their own interests. But as these
heirs have failed to do so, the real estate in their hands must cer-
tainly be held liable, at least so far as the personal estate may be
insufficient, as it now appears to be upon the face of these pro-
ceedings.
But the proofs show that although the personal estate might origi-
nally have been more than sufficient to pay this debt, it has since,
by some means or other, fallen greatly short. Admitting then that
there has been a waste of the personal assets; do these heirs and
next of kin stand here as persons having no interest in the person-
alty, or having no concern with this apparent misapplication of
it ? And has the conduct of the plaintiff Testier, been such, that
the loss must fall entirely upon him ?
It is clear that an account of an administrator passed by the Or-
phans Court must be received as prima facie evidence of the then
truth of the facts stated in it, at least as against the administrator;
and therefore it must be assumed, until the contrary is shewn, that
the administratrix Rachel Wyse, on the 29th of June, 1816, had in
her hands a sufficiency of assets to pay this debt. But the strong-
est proof which could be adduced of that fact, would not preclude
her from shewing, in answer to the claim of a creditor, made at a
subsequent period, that she had since disbursed the whole amount,
(r) Corrie's case, 2 Bland, 495.
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