Thornton, J.
This is a writ of error, brought by the plaintiffs, to reverse a decree in Chancery, rendered against them, in the Monroe Circuit Court, The bill of complaint contains multifarious charges, which are substantially embraced in the following statement:
That the complainant was a creditor of Joseph Philips, deceased, upon an account, which is set forth at large in the bill. That the said-Philips died, on the-day of --, having made a last will and testament, an authenticated copy of which, with the certificate of probate, is made an exhibit, in the following words:
“ In the name of God, Amen! I, Joseph Philips, of the County of Clarke, and State of Alabama, being sick of body, but of sound mind, and of disposing memory; and, calling to mind the uncertainty of human affairs, and being desirous to dispose of all such earthly estate, as it has pleased God to bless me with — I give and bequeath the same, in manner fol lowing, viz: 1st. I will, that all my just debt" should be paid, previous to any distribution of my estate between my legal representatives, except so much as may be necessary for the support and education of my children. 2dly. Having already provided for my two daughters, Elizabeth Harrison and Mary Saffold, as liberally as I feel myself able and willing to do, I therefore give and bequeath to each of them, one dollar. 3dly. I give and bequeath all my estate, both real and personal, to be equally divided between my other children, viz : four sons, Zeno, Wray, John C., and Sidney; and two daughters, Frances H., and Amarinth. 4thly. I ordain [20]*20and appoint Reuben Saffold, Esq. and my two sons, Zeno and Wray, executors of this, my last will and testament.” V/itness, &c.
That letters testamentary were granted to Zeno Philips, alone, who is alleged, in the bill, to be a citizen of the County of Monroe; against whom, suit was instituted, by the complainant, on the demand aforesaid, on the 12th day of February, 1822, in the Circuit Court of said County ; and a judgment obtained therein. That a large portion of the personal estate of the deceased testator, was wasted and embezzled, by the said Zeno; and, that, owing to the fraudulent conduct of the said Zeno, and others, charged with participation in the devastavit of the assets, none can be found, to satisfy his demand.
The bill, also charges, that the said Joseph died, seized of a large landed estate, which consisted of certificates of purchase from the United' States; and that, without any order of sale from the Orphans’ Court, or any other authority to do so, the said Zeno fraudulently transferred the same to various persons; and, among others, to the plaintiffs in error. That, patents have been obtained from the government, in many instances, to the heirs, generally, of the said Joseph, for sundry tracts of land, paid for, by the said certificates.
The bill prays for a discovery, in regard to the premises, and that the lands of the deceased may be subjected to the payment of the debt of the complainant.
Of the defendants, against whom the decree was pronounced, who are the plaintiffs in error, and in relation to whom, it is alone, proper, now, to consider this cause, Darrington answered, denying all the [21]*21allegations of fraud with which he is charged — admitting, that he purchased from his co-defendant, Zeno, sundry certificates of purchase, of the estate of the deceased testator; but, he insists, that he purchased in good faith, for an adequate consideration — ■ relying, as he avers, upon the competency of Zeno, to transfer them, by virtue of an act of the legislature of 1821, authorising the executor of Joseph Philips, to sell and transfer certain certificates of land, therein named.
Mrs. Harrison, by her answer, admits the purchase, made by her, from Zeno — disclaims any interest, as heir, or devisee, under the will of her father —insists, that she is a Iona fide purchaser, for valu-ble consideration; .and, relies, also, upon the act of 1821, as conferring the power to sell upon the acting executor of her father.
The four minor defendants, as they would appear to be, answer, by Samuel M’Coll, who, by no order or decree of the Court, disclosed in the record, was appointed their’’, gaurdian, ad litem ; though the answer purports to be in virtue of such appointment.
Zeno Philips does not appear, from the record, to have been served 'with a subpoena. No answer is filed by him: nq judgment, pro confesso, taken against him — nor any means used, to make him a party to the cause, so as to render him liable to the decree..
Wray Philips did not answer; nor does it appear that a judgment, pro confesso, was taken against him.
In this stage and state of the case, an interlocutory decree was rendered, ordering notice to be given to all the creditors, to come forward, and prove their claims — an account to be taken, of the debts due from the estate of the deceased testator — an account [22]*22of the personal estate, if any, of the said estate; and, of the location, quantity, and yearly rent, or value of the real estate, &c. >
By the final decree, the bill was dismissed, as to Saffold and wife, Butler and King, Cannon and God-bold ; and certain lands, therein specified, decreed to be sold, in satisfaction of the complainant’s debt: as, also, the sum of ■-'dollars, to'be paid by Barring-ton, being the rents and profits of portions of the real estate, while in his possession, as reported by the master.
The record does not shew, that there was any other evidence; but, that the cause was heard, upon the bill, answers and master’s report.
From this brief history of the case, it is apparent, that many irregularities have intervened — for which the propriety of the decree may be justly- assailed. In the first place, in whatever light the case may be viewed, the personal representative of the deceased, is an essential party; and no decree could regularly be pronounced against the other defendants to the bill, until, by service of process upon him, if he be alive, and within the jurisdiction of the court (which facts, the bill, in this case, expressly avers,) or, if nonresident, by publication, according to the statute, he had beep notified of the proceeding — or, had, voluntarily, answered the complaint. Even in the case of an express lien, by mortgage of realty, if the mortgagee seek a sale of the lands, he must make the personal representative of the deceased mortgagor, as well as his heir or devisee, a party to his bill.
As the personal property, in every case, unless where the testator unequivocally exonerates it, by the provision of other means, is primarily and natu[23]*23rally applicable to the payment of his debts, the personal representative, who, alone, is cognizant of it, ought to be a party, wherever any account of it is taken. In all cases, too, he is the proper person to pay the debts.' — They are required, within a certain time, to be presented to him; and, he may have paid them, without the knowledge of the heir or devisee.
Of the same nature with this omission to make the executor a party, is the failure to take the bill, pro confesso, against Wray Philips; as, also, the absence of any decree, appointing a guardian, ad litem, for the minor devisees. The answer, by Samuel M’Coll, styling himself their guardian, is not suffi-cient.a
For irregularities, of the description above noticed, it is the practice of appellate courts, to reverse and remand the cause, if there be equity in the bill; and if upon the whole record, the complainant would otherwise be entitled to the relief which he seeks.— It becomes our duty, then, to proceed to the investigation of the essential merits of the cause.
The view, which we are now called upon, to take of it, is greatly restricted, compared with that presented, by the record, to the Court below. The decree, which is only appealed from, by those of the original defendants, against whom the bill was not dismissed, is not, now, sought to be disturbed; except so far as it affects their interests in the real estate of Joseph Philips, deceased, which they hold, as his devisees, or by contract of purchase, with Zeno Philips, who was executor of the will, and also one of the said devisees.
Various errors are assigned upon this record, and a multitude of points have been urged, in the argu-[24]*24merit) on both sides, with a zeal and ability worthy of the gentlemen who conducted it. It is the duty of counsel, to urge every matter, which may even, probably affect, the determination of a cause. But, as regards the court, though all should be heard with respectful attention, yet, perhaps their duty is best observed by adjudicating only such as are necessarily involved in the decision. I will endeavor to embrace all such, in the view which I propose to take of the case, under two heads: first, as the case of a'creditor seeking satisfaction of a debt, out of the real estate of a deceased debtor, irrespective of- any charge of his debts, by will, upon his realty ; and, secondly, as that of a creditor seeking to subject the same, under a charge in the will
As a preliminary matter, applicable, alike, in either of those aspects of the cause, it may be best, here, to consider the character of certificates of purchase of land, from the general government: how far, and under ,what circumstances, they constitute real estate. There can be no doubt, that these terms embrace lands held in this manner, just as in a similar case of purchase from an individual, though the purchase money were not all paid, or deed executed to the vendee. In the use of the terms, by the testator, in this case, nothing else could have been intended— for, it appears, that he had no other real estate, than of this kind. I apprehend, too, that whenever any such certificates have been rendered available towards the clearing ou t, or paying for any tract or parcel of land, •by an appropriation under the act of congress, authoris-ing their translation, such tract or parcel of land continues subject to the creditors, as the real estate of the testator or intestate, who died possessed of them, [25]*25exactly in the proportion of the certificates thus applied. The facts, that the transfer of such certificates, has been made, for valuable consideration, in the form prescribed; and that patents have been obtained for the lands, to which they have been applied, by the transferees, will not vary the case.
The position, that a patent obtained under such circumstances, is a shield to the purchaser, is not tenable. The principle of equity, that he who unites the legal, with an equitable title, must prevail against one having a bare equity, is not applicable. The maxim, caveat emptor applies with all its force. — * The law in favor of creditors, is a monumented index, warning every one to beware, who is about to purchase the real estate of a deceased; and, if he purchase, the land remains encumbered with the liability, just as though a regular mortgage were spread upon the records of the country.
In connection with these preliminary suggestions, which are, indeed, but the anticipated results of considerations, intended to be more fully exposed, I will here remark, in relation to the act of 1821, entitled “ An act to authorise the executor of Joseph Philips, deceased, to sell and transfer certain certificates of land, therein named,” that so far as this record discloses, no title has been acquired, in virtue of that' act — for, (waiving all other objections,) with, regard to this mode of sale, as of any other, of the real estate of a deceased, upon well established principles, it is incumbent on him, who relies upon it, to shew, affirmatively, that all the prerequisites, which are so many guards, interposed for the safety of the creditor, like conditions precedent to any title, have been strictly complied with.a
[26]*26Having premised thus far, I will proceed to consider the case, in the order above stated.
From the nature of the debt sought to be satisfied, it being, as set forth in the bill, a promissory note— upon the principles of the common law, there is no recourse of any kind, upon the real property of the deceased, for its discharge; except so far as, by his will, it may have been charged upon the realty. By that law, real estate was only subjected, in the hands of the heir, where he was bound, eo nomine, in the obligation of the ancestor. If it were aliened, before any suit brought, it was discharged in the hands of the vendee of the heir; and, when devised, there was no recourse, whatever, against the lands, in the hands of the devisee.
As early as the year 1806, these features of the common law, were all abolished. By an act of that year,a after providing, “ that the goods and chattels, or personal estate of any person, deceased, whether-testator or intestate, shall stand chargeable with the payment of all the just debts, and funeral expenses of the deceased, and the charges of settling the said estateit was further enacted, “ that the lands, tenements and hereditaments of the testator or intestate, shall stand chargeable with all the debts of the deceased, ovér and above what the personal estate- shall be sufficient to pay, as aforesaid.” By that act, all distinction, between debts by simple contract, and by specialty, is destroyed. All the creditors of the deceased debtor are entitled, in the event specified, of an insufficiency of the personal property, to be satisfied, out of the real — whether in the hands of the heir, or of the devisee of the deceased debtor; or, even, of the bona fide alienees of either.
[27]*27By the same act above recited,'the executor or administrator is empowered, where the real and personal estate are both, together, shewn by him, to the satisfaction of the Orphans’ Court, to be insufficient to pay all the debts of the deceased, to sell the real estate, by order of that Court, and divide the proceeds, jpro rata, among the creditors.
By a subsequent act, passed in 1822,a it is enacted that it shall be lawful, for an executor or administrator, who has not power, by the will, to sell real property, to file a petition in the County Court, setting forth, that the personal estate of his testator, or intestate, is not sufficient for the payment of the just debts, &c.; and, according to the rules prescribed by the said act, a sale will be decreed to be effected, by commissioners appointed for that purpose.
These laws give the extent of the liability of the lands of a deceased debtor, to his creditor, and are all, which, at the time of the filing of this bill, pointed out any mode by which, they could be reached.— It is apparent to my mind, that the remedies for obtaining the right conferred by the first act, are not conclusively limited to those pointed out by it, and the latter one of 1822.
The first of these acts only allowed the sale of real property, where there was a total insolvency, or insufficiency of both real and personal estate; making no provision for the case, where there was not an insolvency; but, where, though the personalty, alone, could notpneet the demands of creditors, yet, a portion only of the realty would be requisite for that purpose. The last act removed that defect in the former; but, still did not provide a sufficient re[28]*28medy: for, in case of the failure of the executor or administrator, to apply for the sale of the real property, when needed, there would be no redress; and the benefit conferred by the act of 1806, subjecting the lands of the deceased, would utterly fail.
It is true, that by express legislation, subsequent to the passage of the above cited acts, and, also, since the filing of this bill, the failure of the executor or administrator, to apply for the sale of the real estate, wi thin three months after declaring the estate insolvent, has been declared a devastavit; and, though it may be doubted, whether in every case, and without such a statute, the failure to apply for its sale, when needed, to pay debts, would not be a waste — yet the doubt, as to the existence of the legal remedy, as for such waste, against the personal representative, and his securities, would, of itself, authorise an appeal to the Chancellor. I cannot hesitate to conclude, that the Chancellor should, as the law then stood, decree a sale of the real property of a deceased, where, after a full and fair administration of the personal estate, there remained debts unpaid, and the personal representative had failed to apply for its sale.
Now, upon what principle of jurisdiction is it, that a Chancellor would proceed, in such a case ? It cannot be merely on the ground, that the land is liable for the payment of the debts. That fact, alone, would not confer jurisdiction, though without such liabilty, no jurisdiction could be entertained — for, without our statute, equity, no more than a court of law, could reach the real estate of a deceased, to satisfy a simple contract creditor; unless, through a charge upon it by will — or, where it was sought to marshal [29]*29the assets — the specialty creditors, having-, as they were authorised to do, exhausted the personal estate.
It is, I apprehend, upon this principle, that no legal means are available to the creditor, to satisfy a just debt; and from the necessity of the case, he must be entertained in a Court of Chancery, to reach, the real estate, or there is a failure of justice. There is not any liability, at law, against any person, for his demand; and,- if the estate had been regularly declared insolvent, no suit could be sustained, unless, at the option of the executor or administrator. It is only, as I apprehend, by the application of the same principle, that is, to save a failure of justice, that a Chancellor would lend his aid, where the realty remained unsold by the personal representative, and all the personal estate had been appropriated to his own use. . The injury, in such a case, is a direct consequence of the devastavit; and, unless that injury is remediless at law, the Chancellor will not interpose.
There is, however, a legal remedy against the executor or administrator, and the securities for the administration, and unless it appear that the common law forum has been invoked in vain; or that from the insolvency of these parties their pursuit would be idle, there is no ground for the application to chancery. To give jurisdiction, such should be the allegations of a complainant; and to warrant a decree, such should be the effect of the proof. There being no such proof in the case before us, which is one of waste and mismanagement by the executor, as set forth in the bill, Iklo not think the decree can be sustained, in the first aspect of the cause.
[30]*30In Virginia, where the distinction between simple contract and specialty creditors has not been abolished, it is held that real property, in the hands of heirs or devisees, was not subject to creditors, in’a case, where, if there had been no waste by the personal representative, there could have been no doubt of the jurisdiction of the court. It was the case of a simple contract creditor who had obtained a judgment against the executor by default, and then filed Ms bill to marshall the assets, averring that the- personal property had all been exhausted by the payment of specialty creditors. The court held, that the judgment was an admission of assets, that therefore there was a remedy at law against the executor and his securities, and whilst that was the >case, equity would not relieved.a In the case before us, there is not only a judgment at law against the executor, but positive averment of a devastavit. In the Circuit Court of the United States for the State of Rhode Island, Judge Story recognizes the same doctrine, in third Mason, 126. That was a bill in equity, brought by the United States against D. T. Aborn, the sole 'acting executor of Samuel Aborn, deceased, against the securities of the executor, on his probate bond, against the heirs and devisees of the testator, and against one Edward Carrington, to whom D. T. Aborn had assigned all his estate. The bill charged that D. T. Aborn was insolvent, and had wasted the personal estate of the testator. - All these parties being before the court, the securities of the executor in the probate bond, were decreed to pay the debt, and the bill dismissed as to the rest of them. The Judge, in delivering his opinion, says, “ I pass over the questions how far devisees, &c, taking the real es[31]*31tate, (which, in this State, is assets for the payment of debts,) ought, in a court of equity, to be held liable to pay debts like the present, upon a deficiency of assets, occasioned by the waste or mismanagement of the executor; and how far an assignee, (suchas Carring-ton is asserted to be in the bill,) bound by an undertaking to discharge such debts upon execution of the assignment, may be made liable here, as upon a trust. The former could only arise where the sureties of the probate bond, were also insolvent, which is not the present case. The latter does not arise upon the facts.” &c.
I consider the doctrine tobe here explicitly announced, that the establishment of the insolvency of the securities of an executor whose mismanagement has occasioned an insufficiency of the personal estate to pay creditors, is a prerequisite to the liability of heirs or devisees, if they be in such case liable at all; as to which latter proposition concerning their liability in such case, I deem it unnecessary to express any opinion.
In the second aspect, in which it remains to consider this cause, that is, as one in which the aid of chancery is sought to reach the real estate of a debt- or, by virtue of a charge of his debts, by his will, upon that estate, the jurisdiction of the court rests upon a principle altogether .different from that which we have been examining. It is the familiar, inherent and original case of a trust, which it is the peculiar province of this court specifically to enforce.— There is no necessity here, to aver, and prove the fruitless .pursuit of legal remedies, or facts which exonerate from that pursuit, by shewing it to be worse than an idle waste of time and costs. If the charac[32]*32ter of a creditor is sustained, and a will creating a charge from which a trust results, is proven, the court will fasten upon the subject of that trust, and see to its proper administration. The first enquiry presented in the view we are now taking, is, whether, by the will, as set forth, there is a charge of the debts upon the real estate of the testator. I cannot hesitate in concluding that there is. After expressing the desire to dispose, by his will, of all his earthly estate, which ex vi terminis, includes both real and personal, the testator thus proceeds—
“ I give and bequeath the same, in manner following,'viz: 1st. I will, that all my just debts should be paid, previous to any distribution of my estate between my legal representatives, except so much as may be necessary for the support and education of my children;” and, by a subsequent clause, he “ bequeaths all his estate, both real and personal, to be equally divided,” between the six devisees, named in the will, as above copied. There is no devise to the executors, of the real estate, to sell for the payment of the debts; nor is there any power conferred upon them to do so. The real estate, by this will, as I apprehend it, vests, in sólido, in the several devisees, charged with the payment of the debts.
If no strength were derived to the construction, from the grammatical connection, which would refer the word “ estate,” where it occurs, in the first clause, after the videlicit to the word “same;” which is again referable to “ earthly estate,” in the introductory clause — yet the first clause, itself, following the videlicit, would, without any such aid, be satisfactory to my mind, of the intention, to charge [33]*33the real property. Nor is this conclusion weakened, by the suggestion, that the words, “ my estate,” ought to be limited, and controlled by the words “distribution” and “legal representatives,” which occur in the same clause. It is true, that the term distribution, is most commonly applied to personalty, and that legal representatives more commonly mean the executors and administrators of a deceased, than those between whom his estate is to be divided. However, the sense of those terms, which we here impute to the testator, is sanctioned by our legislative use of them, as in Aikin’s Digest, p. 155, sec. 12.
The real property, then, of the testator, is, by the will, vested in the devisees, charged with the payment of his debts, and, by necessary implication, they are trustees of the creditors. From this view of the case, so far as the mere question of jurisdiction is-concerned, no difficulty can arise. But when we proceed to carry out the trust, the principles which ought to be applied are not so obvious.
The effect of our act of 1S06, subjecting the lands of a deceased, whether testator or intestate, to the payment of his debts, destroys all distinction between a general express trust, created by will, or an implied general trust, in the devisees, (as is created by this will in favor of the creditors,) and a special trust designating by schedule, the particular debts of the deceased. I apprehend that the just construction of this act, is to make the lands liable, no matter how devised, or into whose hands they may pass; unless sold by a decree of the Orphans’ Court, or of Chancery; or, unless, when sold by a trustee, authorised either expressly or impliedly, by the will, the sale is bona fide, and the proceeds actually applied to the * [34]*34discharge of the debts: which application it is incumbent upon the purchaser, or those claiming through him, affirmatively to shew. It creates a specific lien, overreaching all conveyances through the will of the debtor. As, between his heirs and devisees, he may do what he pleases with his estate; he may set apart a particular portion for the payment of his debts, to the exoneration of the balance: he may direct his executor,' or any other trustee, to sell a specified portion of his estate, for the payment of his debts. But all this must be subordinated to the rights of creditors. The will of a deceased will be carried into effect whenever it can, without impugning their rights. So, if a portion of the estate is authorised to be applied to other purposes than the payment of debts, and such application has been made, that portion will not be disturbed unless there should be a deficit of the balance, to pay the debts.
This modification of the doctrine of trusts, which is, in effect, giving a paramount right to the lien of creditors, upon the estates of deceased debtors, over any purchaser from a trustee, created by the will, unless the purchase money has been actually paid to creditors, seems to me to be the necessary result of the construction which is due to the act of 1806, aboye cited.a
In the aspect in which we are now considering this case, as in the other, the question arises, how far the waste of the personalty, which is the primary' and natural fund for the payment of debts, will exonerate the lands charged by the will. I will here remark, that, although the testator cannot abridge the rights of the creditors, he may enlarge them beyond the extent to which they might otherwise attain, and,. [35]*35whatever may be the proper construction of our laws, subjecting the lands of a deceased to the payment of his debts, in this particular, it is certainly competent for him to devise them in such terms as to subject them at all events, and under all circumstances.—
The question is one of construction, and in the will now before us, the language is very comprehensive; The testator desires his debts to be paid, “ previous to any distribution of his estate between his legal representatives.” Could this desire be said to be accomplished, if the devisees, or their vendees, were allowed to enjoy the estate, free from liability, whilst the debts remained unpaid? The language is, not that he decrees the debts to be paid out of his real estate, on condition that his executors do not waste his personalty. It is an unconditional subjection; and, upon principle, a lien once created, continues until discharged by the payment of the debt; unless forfeited by some act on the part of him in whose favor it is created.a When the charge is unconditional, by the terms of the devise, the devastavit will not defeat it.b
From the consideration thus far given of this case, it is deducible, that the real estate sought to be subjected by the bill, is to the extent, and in the manner heretofore explained, liable to the debts of the deceased testator, if not by force of the statute, at all events by virtue of the charge upon it by his will; that the court has jurisdiction of the cause, and that the allegations in the bill are sufficient. To warrant a decree for relief, however, there must not only concur jurisdiction in the court of the subject matter, and appropriate allegations; but they must be sustained by competent proofs: with regard to which. [36]*36though the rules of evidence are the same, both at law and in equity, yet the mode of ascertaining facts is one of the characteristic distinctions of the latter tribunal. The conviction of the truth of facts may be derived to the mind of a Chanceller through various channels.
The answer of the defendant, containing an express admission of the fact, is proof of it, whether such fact is charged to be within his knowledge, or not. So, if a matter is charged, to be in the knowledge of a defendant — or, if it be apparent, that he must be cognizant of it, if true, whether he be charged with such knowledge or not, his failure to deny it, is tantamount to an admission; upon the common sense rule, applicable in such case, that silence gives consent. So, too, it is competent to a Chancellor, to tranfer the ascertainment of complicated matters, especially of account, by reference, either upon a feigned issue, to a jury at law, or to a master, or auditors or commissioners, (for they are so styled, indifferently,) of his own appointment. The facts thus ascertained by the verdict or report, as the result of evidence, taken and heard before the jury or master, are not to be proven over again; noris the evidence, upon which they were found, before the Court, unless brought thither, by objections, made in the tribunal 'where it was adduced — or, unless the order of reference, to the master, direct him, (otherwise, it would be a departure from the order,) to report the proofs back to the Court.
I have already remarked, that two essential matters of fact, necessary to sustain the decree in the first aspect of this case, viz. the insolvency of the executor, and of his securities, in no manner, are proyed in this record; and, if there were no other [37]*37ground, for the case to rest upon, the decree would, for these substantial defects, in the proof, be reversed, and the bill be here dismissed.
The other aspect, however, which the hill presents, makes it necessary to examine further, as to the proof of the will, and of the debt.
As to the will, it is neither charged to be, nor is it, in presumption, at law, to be considered, as peculiarly in the knowledge of the plaintiffs in error. That a will was made, might, perhaps, be so considered; but, that a legally attested will, such as is required, to pass real estate, was left by the deceased, is not to be presumed, as in the knowledge of the devisees, even, much less, of those of the defendants, who do not claim, in that character. Nor, is there any admission of such a will, in the answers of any of the present plaintiffs in error.- The only evidence of it is a copy, with a certificate of its probate, by the clerk of the Orphans’ Court. I have felt some difficulty, in determining, whether this will constitute sufficient proof. But, from a strict examination of our statutes, in force at the making and probate of this will,a it seems, that no other proof can be required, in any forum, or in any controversy, such as is here offered.
And, this conclusion is fortified by analogy of the English doctrine, applicable to wills of personal property, of which, alone, the probate Courts, in country, could take the proof;b and, by the decisions in those States, where, as with us, probate Courts are authorised to take proof of wills, both of real and personal estate.c
By the acts above referred to, jurisdiction is fully conferred, of the probate of all wills. Notice is re[38]*38quired to be given to the next kindred; and a mode is pointed out, expressly for the correction of errors, in the procedure of the court.
By section 55, p. 887, the validity of the will, may be contested, by bill in Chancery, within five years after probate; but, if not within that period, the probate is declared to be conclusive and binding on all parties concerned, except, «See. And, also, by section 56, same page, the correctness of the decree of the Orphans’ Court, admitting the will to probate, may be tested, by appeal, &c.; and, by section 15, p. 885, all original wills after probate, shall be recorded, and remain in the register’s office of the court where they are proved — except, &c.
The effect of this legislation is, I think, to make the certified copy of the will and probate, evidence, both of the validity of the will, and of the correctness of its probate, so long as the decree of the Orphans’ Court remains unreversed.
By analogy to the doctrine in England, respecting wills of personalty, I come to the same conclusion.— There, after probate the certified copy is full and sufficient evidence. We have extended the power of probate, so as to include wills of both kinds, and the effect of the extension follows as a consequence.
As to the proof of the debt, in this case, in determining upon its sufficiency, regard must be had to the settled practice in Chancery, above mentioned, of reference to the master. As was contended in argument, it is very true, that there is no privity between the executor, and the heirs or devisees of a testator; and, of course, that a judgment against the former, is no evidence, in a proceeding against the latter, to subject the real estate. They claim [39]*39through, the will, or bj descent, and not.through the executor; and if the exhibit of the judgment, properly authenticated, had been read on the trial, without further proof of the debt; and, no other mode of ascertaining the fact of the debt, had been adopted by the court, it might well be said, that there was no evidence of it, upon the record. But, instead of that, the court, as it was competent to it to do, and in conformity with the usual course, ordered an account to be taken before the master, and a report to be made by him, of the debts due from the testator — thus transferring the office of receiving the proof, from himself to another competent tribunal.— There, the matter of the original justness, and continuing obligation of the debt should have been met, and controverted, by all the parties interested in resisting it. Even the statute of limitations might, there, have been urged against the demand, if it were liable to such objection.a
According to my apprehension, the statute of non-claim might, also, be there rejected : of which latter, however, I will here remark, that a judgment against the personal representative, is sufficient evidence, of a legal presentment of the demand. If the order of reference, in this case, had been, as it was in the case cited from 1 Munf. 438, that the master should report the proofs adduced before him, questions, as to the sufficiency of them, would, of course, be fairly open.
But, where the order or decree is, as it was here, to ascertain and report the debts, the report of the master is received as true, where no exception is ken;b and the evidence will not be looked to by the Court, nor need it be reported, “farther than it is re[40]*40lied on to support, explain, or oppose, a particular exception.” In this case, the only exception taken to the item of the debt in the report, is, that there was no such judgment as the report recites, against the executor, which was overruled by the Court below. This exception does not embrace the objection now urged, which is to the competency of such evidence to establish the debt against the present plaintiffs i-n error> even admitting such judgment to exist.
In the Court of errors in New York,a Spencer, Justice, says, “it appears to me that exceptions partake of the nature of special demurrers ; and if reports are erroneous, the party must put his finger on the error; when he does so, the parts not excepted to, are admitted to be correct, not only as regards the principles, but as relates to the evidence on which they are founded.” As it does not appear that there was any objection taken before the master, to the competency of the proof on this head, or any exception filed to it in the Court below, I do not think that the question is now open. But, this whole report, upon other grounds already alluded to, abstracted from its inherent qualities, is insufficient, and should not have been adopted as the basis of the final decree. The interlocutory decree itself, ordering the action of the master, was premature. Ii the proof of matters essential to a decree, may be translated from the court to the tribunal of the master, still, these matters must be there established according to the rules of evidence, and all the parties interested must have the opportunity, so far as the law affords it, in any other case, to appear if they choose, and scan, and sift the testimony offered, as also to rebut it by any which they can adduce. As respects Zeno Philips, he [41]*41had not been served with the process, and as to the minors if they had any guardian adlitem, which I think they had not — yet the clerk and master answering as such, could not unite the incompatible character of judge and party.
The views presented in the foregoing pages, embrace, I believe, every matter presented by the assignment of errors, except three particulars in the final decree, which relate to the rents and profits— the sale of the lands for money, or cash, and not upon a credit — and upon the notice of only thirty days:
As to the rents and profits, in the first aspect heretofore taken of this case, I would not hesitate to pronounce, that a decree for any portion of them, would be erroneous. Chancery, in supplying a remedy* would not go beyond the extent of the right conferred upon the party, by the law; and this right, according to my construction of the statute, is only to subject the land, itself, of a deceased debtor. The rents and profits accruing, before the creditor avails himself of the proceeds, by'- a sale, belong to the heirs or devisees. Under the act, alone, they stand in the attitude of mortgagors, who are not responsible for the rents and profits. This is the construction given to a similar act, in Massachusetts;a and I concur in its propriety.
In the case, however, of a charge of the debts, by the will of the testator, upon his lands, the authorities are, that the rents and profits are to be accounted for.b But, in such case, where the direction not expressly, or by strong implication, to pay debts, out of the rents and profits; but merely, as here, a charge upon the lands, themselves — as in the [42]*42case, above cited from 3 P. Wms. tbejare postponed, in the order of application, to the proceeds of the sale, of the land.
The decree is erroneous, in this particular; no execution should go for their amount, until, after sale of the lands — a deficit should still be left.
I do not perceive the force of the objection, to either of the other particulars mentioned. It is true, that, - in the sale of lands, under the act of the legislature, authorising executors and administrators to sell, for the payment of debts, upon the insufficiency of the personal estate, the Court may direct the sale to be either for money, or on a credit, as may be most just and equitable. It would seem to me, that it would be just and equitable, in every .case, if the debts were all ascertained — at all events,, if judgments were obtained — that the creditors should not be delayed, by a sale on credit, which might possibly result in a total loss, by the insolvency of the purchaser, or, in another suit, on the bonds for the purchase money; or, in case of the death of the ob-ligors, in the same protracted routine of pursuit.— There is no reason for more delay, in the satisfaction of a decree in Chancery, than of a common law judgment. A reasonable notice of the time of sale,, is all that should be required; and, I think, that, in adopting the regulations of the act, subjecting lands to the satisfaction of judgments and decrees, against living debtors, as was done in this case, there was no error. ,
Let the decree be reversed, and the cause be remanded, for further proceedings to be had therein,, not inconsistent with the principles of this opinion..
Saffold, C, J., not sitting.
2Br. Cha. 155