tator, to disturb this order." On the other hand, there is a material distinction between debts originally contracted by the testator, or intestate, and those contracted by another; and, therefore, if a person purchases an estate subject to a mortgage, and dies, his personal estate, as between him and his personal representatives, shall not be applied to the exoneration of the land, unless there be strong and decided proof, that in taking the encumbered estate, he meant to take upon himself the mortgage debt as a personal debt of his own. The provision mentioned in the preceding page from the New-York Revised Statutes, was an alterarion of the antecedent rule, and makes a mortgage debt fall primarily upon the real estate.

I assume, that the rule prevails generally in the

a

Stephenson v. Heathcote, 1 Eden's Rep. 38. Lord Inchiquin v. French, 1 Cox's Cases, 1. Webb v. Jones, ibid. 245. Bootle v. Blundell, 1 Meriv. Rep. 193. Barnwell v. Lord Cawdor, 3 Madd. Rep. 453. Watson v. Brickwood, 9 Vesey, 447. Livingston v. Newkirk, 3 Johns. Ch. Rep. 312. Livingston v. Livingston, ibid. 148. Stroud v. Barnett, 3 Dana's Ken. Rep. 394Ram on Assets, c. 30, p. 247, Philad. edition. Warley v. Warley, 1 Bailey's Eq. Rep. 397. New-York Revised Statutes, vol. ii. 452, sec. 33. 455, sec. 56. Schermerhorn v. Barhydt, 9 Paige Rep. 29. 49. Chase v. Lockerman, 11 Gill & Johnson, 185. The bequest of personal estate does not exempt it from its liability to exonerate the real estate, unless a clear intention to that effect appears on the face of the will. 12 Price, 324.

b Cumberland v. Cumberland, 3 Johns. Ch. Rep. 229.

It is not easy to perceive the necessity or policy of thus interfering with, and reversing the rule of equity as to mortgage debts, which had been known and settled for ages; and especially as the Revised Statutes, as to all other debts, retain and enforce the rule that the personal estate is the primary fund. The symmetry of the law, on this point, is thus destroyed; and a reason suggested by the revisers, in their report of the bill, was, that the existing " rule of law was unknown to the generality of our citizens."

If there arises a question under the law of different countries, as to particular debts, whether they are properly payable out of the personal estate, or are chargeable upon the real estate of the deceased, the rule is, that the law of the domicile of the deceased will govern in cases of intestacy; and, in cases of testacy, the intention of the testator. Anon., 9 Mod. 66. Story on the Conflict of Laws, 442.

United States, that the lands descended to the heirs are liable to the debts of the ancestor equally, in all cases, with the *personal estate.

In Massachu- *422 setts, the personal estate is first to be applied, and the land resorted to upon a deficiency of personal assets.b This is probably the case in other states, in which the real and personal estate is placed as assets under the control of the personal representatives. In Pennsylvania, the lands are treated as personal assets; and the creditor who sues the executor, may sell the land in the hands of the heirs, without making them parties. This is complained of by high authority in that state, as contrary to the plainest principles of justice. In New-Hampshire, the heir is not liable on the covenant of his ancestor, while a remedy remains against the personal repre

It has been stated, that the common law rule prevails still in Virginia, and perhaps in Kentucky; but every where else in the United States the equitable rule seems to have been adopted, that, on failure of personal assets, the real estate in the hands of heirs and devisees is liable for debts as extensively as the personal. The common law rule has been altered by statute. Griffith's Register, passim. Mass. Revised Statutes, 1835. In Massachusetts, to sustain a suit against the heir, it must appear that administration had been taken out on the estate of the deceased, and that the demand was not due, and no cause of action accrued until the term of four years had expired from the grant of administration, and that the suit was brought within one year after the cause of action accrued. Stat. 1788, ch. 66. Revised Statutes, 448, sec. 14. Hall v. Burnstead, 20 Pick. 2. In New-York no suit lies against heirs or devisees of any real estate, to charge them with a debt of the testator or intestate, within three years from the time of granting letters testamentary or of administration upon the estate. New-York Revised Statutes, vol. ii. 109, sec. 53.

Mass. Revised Statutes, 1835.

b 3 Mass. Rep. 527. 536. 4 ibid. 358. • Gibson, Ch. J., 13 Serg. & Rawle, 14. By the statute of Pennsylvania, of 4th April, 1797, debts of the ancestor not secured by mortgage, judgment, recognizance, or other record, do not remain a lien on lands longer than seven years after the debtor's death, unless a suit be brought within seven years, or the statement of the debt filed in the prothonotary's office. Judgment on a suit brought afterwards cannot affect the lands in the hands of the heir, or of the person under him. Kerper v. Hoch, 1 Watts, 9. Quigley v. Beatty, 4 Watts, 13.

sentatives, inasmuch as all the estate, real and personal, of the ancestor, in the hands of the executor or administrator, is liable for his debts."

■ Hutchinson v. Stiles, N. H. Rep. 404. So, in Tennessee, the lands in the hands of the heir cannot be sold on a judgment against the ancestor, until the personal estate is exhausted. Boyd v. Armstrong, 1 Yerger's Rep. 40. The Massachusetts Revised Statutes of 1835, part 2, tit. 3, c. 62, make ample provision for the marshalling of assets as against heirs, devisees, and legatees, when a part of the real estate is wanting for the payment of debts, or when one or more of the persons who ought to contribute become insolvent. It is the application by statute of the principles of courts of equity in marshalling assets and enforcing contributions in the cases of estates descended or devised, or when one of the parties bound to contribute becomes insolvent. Hays v. Jackson, 6 Mass. Rep. 149. Livingston v. Livingston, 3 Johns. Ch. Rep. 148. Livingston v. Newkirk, ibid. 312. In respect to the distribution of assets in equity for the payment of debts, it is to be observed that a creditor may go into chancery against executors and administrators for the discovery and distribution of assets; and after the usual decree to account in a suit by one or more creditors, the decree is for the benefit of all the creditors, and is in the nature of a judgment for all. They are all entitled and should have notice to come in and prove their debts before the master, and they will be paid ratably without preferences, after the judgmentcreditors are satisfied, and creditors suing at law will in the mean time be stayed by injunction, and not allowed to disturb the ratable and equal distribution of the assets in chancery. Morris v. Bank of England, Cases temp. Talbot, 218. 4 Bro. P. C. 287. S. C. Paxton v. Douglass, 8 Vesey, 520. Clarke v. Earl of Ormonde, 1 Jacobs, 108. Thompson v. Brown, 4 Johns. Ch. Rep. 619. So, also, a suit against the heir and decree for a sale enures for the benefit of all the creditors against the heir, and draws the entire distribution of the assets of the heir into chancery. Martin v. Martin, I Vesey, sen., 211. The same rule applies in the case of a devise to trustees to pay debts, or to a charge on land for the payment of debts. The estate becomes a trust estate for the purpose, and as the assets are placed under the jurisdiction of chancery to be distributed as equitable assets, suits at law by creditors for the purpose of gaining a preference, will be enjoined. Benson v. Le Roy, 4 Johns. Ch. Rep. 651. Helen v. Darby, 3 Dana's Ken. Rep. 186. Stroud v. Barnett, ibid. 391. Executors pay in their own wrong after decree for administration. Mitchelson v. Piper, 8 Simons, 64.

LECTURE LXVI.

OF TITLE BY ESCHEAT, BY FORFEITURE, AND BY EXECUTION.

TITLE to land is usually distributed under the heads of descent and purchase, the one title being acquired by operation of law, and the other by the act of agreement of the party. But titles by escheat and forfeiture are also acquired by the mere act of law; and Mr. Hargrave thinks that the proper general division of title to estates, would have been by purchase and by act of law, the latter including equally, descent, escheat, and forfeiture. Our American authors have added an additional title, and one unknown to the English common law, and which they treat separately. It is title by execution; and I shall take notice of it in regular order.

I. Of title by escheat.

This title, in the English law, was one of the fruits and consequences of feudal tenure. When the blood of the last person seised became extinct, and the title of the tenant in fee failed, from want of heirs, or by some other means, the land resulted back, or reverted to the original grantor, or lord of the fee, from whom it proceeded, or to

Litt. sec. 12. Co. Litt. ibid. note 106.

Ch. J. Swift, in his Digest of the Laws of Connecticut; and Mr. Dane, in his Abridgment of American Law.

his descendants or successors.

All escheats, under the English law, are declared to be strictly feudal, *424 and to import *the extinction of tenure.a The

opinions given in the great case of Burgess v. Wheate, concur in this view of the doctrine of escheat, and in that case it was held to be the rule that if lands were held in trust, and the cestui que trust died without heirs, the lands did not escheat to the crown, but the trustee being in esse and in the legal seisin of the land, took the land discharged of the trust, and bound as owner for the feudal services. But, as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat; and the state steps in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. It is a general principle in the American law, and which, I presume, is every where declared and asserted, that when the title to land fails from defect of heirs or devisees, it necessarily reverts, or escheats, to the people, as forming part of the common stock to which the whole community is entitled. Whenever the owner dies intestate without

a

Wright on Tenures, 115-117. 2 Blacks. Com. 244, 245.

1 Wms. Blacks. Rep. 123. S. C. 1 Eden, 177.

• New-York Revised Statutes, vol. i. 282, tit. 12. Ibid. 718, sec. 1, 2, 3. Swift's Digest, vol. i. 156. Rhode Island Statutes of 1768 and 1822. Tucker's Blackstone, vol. ii. 244, 245, note. Statute of Pennsylvania, 29th September, 1787. 5 Binney's Rep. 375. Dane's Abr. vol. iii. 140, sec. 24. Ibid. vol. iv. 538. Mass. Revised Statutes of 1835. Statute Laws of Ohio, 1831, p. 253; of Alabama, 1811, 1818, p. 288; of Illinois, edit. 1833; of Georgia, Prince's Dig. 2d edit. 198; of New-Jersey, 1828, Elmer's Digest; of Mississippi, Revised Code of 1824. Revised Statutes of Missouri, 1835. The law of Alabama, says that the real and personal estates of persons dying intestate, and leaving no lawful heirs within the limits of the United States, shall escheat. The words as they stand want explanation to render their operation just or liberal. Mr. Dane says, that the New-England colonies of Massachusetts and Plymouth very early passed laws for vesting in the colony all lands escheating for want of heirs, on the ground that the colony was the severeign who made the original grant. In Maryland, before the