STONE, J.
Gideon Nelson died intestate, leaving as his next of kin, heirs at law and distributees, his two brothers, John and Jabez 0., who, with four others, inherited his estate, each being entitled to one-sixth part thereof. Gideon’s personal estate was insufficient to pay his debts, and his lands were sold for that purpose, under an order of court obtained therefor. His entire landed estate was sold under that order, and its proceeds, together with the personal assets, paid the debts and expenses of administration, and left a surplus of fifteen hundred dollars for division or distribution; that is, two hundred and fifty dollars for each heir or distributee. John and Jabez O. were each insolvent; and being indebted to their brother Gideon, he, in his lifetime, obtained a decree against them for something over twelve hundred dollars. That decree was wholly unsatisfied and uncollectible at the time of Gideon’s death.
Before the death of Gideon Nelson, James T. Murfee, the appellee, recovered a judgment against John and Jabez C. Nelson, for a fraction over one thousand dollars, on which nothing had been realized. Immediately after Gideon’s death, and before administration had been, or could have been obtained on his estate, Murfee caused an execution, issued on his judgment, to be placed in the hands of the sheriff, with instructions to levy on the interests of John and Jabez C. in the lands descended to them from the estate of their deceased brother, Gideon. The sheriff failed to make such levy, and returned said execution no property found. The present is a suit on the sheriff’s bond, prosecuted against the executors of one of his sureties, and seeks to recover the amount of the execution, on the alleged ground that, with proper diligence, the sheriff could have made the money. As to the facts summarized above, there is no conflict in the testimony.
Under our statutes, as at common'law, the title to lands, on the death of the ancestor, descends immediately to the hier at law, or next of kin. Unlike the rule of the common law, however, it does not vest in the heir absolutely, but the descent may be intercepted, and the possession claimed and held by the personal representative, for the purposes of administration. In Calhoun v Fletcher, 63 Ala. 574, we discussed the various powers the personal representative' may assert over the realty, and need not here repeat what we there said. Among the unquestioned powers conferred upon him, is the right to petition for and obtain an order to sell the lands of his testator or intestate, for the payment of debts. When this right is asserted, [604] and the lands are sold and conveyed under the order thus obtained, the title to the lañd which had descended to the heir, is completely devested. And notwithstanding the heir may have sold and conveyed the lands, or they may have been sold and conveyed as his property, the title the personal representative conveys, is not in the least impaired or affected thereby. This is the legitimate effect of our statutory system, which subjects -the lands of a decedent to the payment of his debts of every class, when the personal assets are insufficient therefor. Our laws of descent of realty, except as to dower, homestead, and the husband’s rights in the statutory separate estate of a deceased, intestate wife, carry the estate to the same persons, and in the «ame proportions, as the law of distributions carries the personalty. — Code of 1876, §§ 2252, 2261. And lands of a decedent are equally with personal estate chargeable with the debts, except that the personal estate must be first exhausted. Code of 1876, §§ 2429, 2447, As said by Chancellor Kent, Yol. 2, Com. 427, in margin: “In a majority of the States, the descent of real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance as the English statute of distributions, with the exception of the widow, as to the real estate.” We need not .and do not. decide in this case what would be the rights and remedies of the administrator, if the descended lands remained unsold. Whether, when the heir is insolvent and owes the estate of the ancestor, as in this case, the administrator has any prior right to demand payment out of lands descended, or whether it becomes a mere race of diligence between him and •other creditors of the heir, is a question not raised by this record. See Towles v. Towles, 1 Head, 601; Mann v. Mann, 12 Heisk. 245; Procter v. Newhall, 17 Mass. 81; Hancock v. Hubbard, 19 Pick. 167. While it is manifest the probate court could grant no relief to the administrator in such a case, by reason of its limited, statutory powers, we are not prepared to admit it becomes a mere race of diligence. We, however, leave this question open, as its decision in this case is unnecessary. See Brown v. Lang, 14 Ala. 719; Goodman v. Benham, 16 Ala. 625; Miller v. Irby, 63 Ala. 477.
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STONE, J.
Gideon Nelson died intestate, leaving as his next of kin, heirs at law and distributees, his two brothers, John and Jabez 0., who, with four others, inherited his estate, each being entitled to one-sixth part thereof. Gideon’s personal estate was insufficient to pay his debts, and his lands were sold for that purpose, under an order of court obtained therefor. His entire landed estate was sold under that order, and its proceeds, together with the personal assets, paid the debts and expenses of administration, and left a surplus of fifteen hundred dollars for division or distribution; that is, two hundred and fifty dollars for each heir or distributee. John and Jabez O. were each insolvent; and being indebted to their brother Gideon, he, in his lifetime, obtained a decree against them for something over twelve hundred dollars. That decree was wholly unsatisfied and uncollectible at the time of Gideon’s death.
Before the death of Gideon Nelson, James T. Murfee, the appellee, recovered a judgment against John and Jabez C. Nelson, for a fraction over one thousand dollars, on which nothing had been realized. Immediately after Gideon’s death, and before administration had been, or could have been obtained on his estate, Murfee caused an execution, issued on his judgment, to be placed in the hands of the sheriff, with instructions to levy on the interests of John and Jabez C. in the lands descended to them from the estate of their deceased brother, Gideon. The sheriff failed to make such levy, and returned said execution no property found. The present is a suit on the sheriff’s bond, prosecuted against the executors of one of his sureties, and seeks to recover the amount of the execution, on the alleged ground that, with proper diligence, the sheriff could have made the money. As to the facts summarized above, there is no conflict in the testimony.
Under our statutes, as at common'law, the title to lands, on the death of the ancestor, descends immediately to the hier at law, or next of kin. Unlike the rule of the common law, however, it does not vest in the heir absolutely, but the descent may be intercepted, and the possession claimed and held by the personal representative, for the purposes of administration. In Calhoun v Fletcher, 63 Ala. 574, we discussed the various powers the personal representative' may assert over the realty, and need not here repeat what we there said. Among the unquestioned powers conferred upon him, is the right to petition for and obtain an order to sell the lands of his testator or intestate, for the payment of debts. When this right is asserted, [604] and the lands are sold and conveyed under the order thus obtained, the title to the lañd which had descended to the heir, is completely devested. And notwithstanding the heir may have sold and conveyed the lands, or they may have been sold and conveyed as his property, the title the personal representative conveys, is not in the least impaired or affected thereby. This is the legitimate effect of our statutory system, which subjects -the lands of a decedent to the payment of his debts of every class, when the personal assets are insufficient therefor. Our laws of descent of realty, except as to dower, homestead, and the husband’s rights in the statutory separate estate of a deceased, intestate wife, carry the estate to the same persons, and in the «ame proportions, as the law of distributions carries the personalty. — Code of 1876, §§ 2252, 2261. And lands of a decedent are equally with personal estate chargeable with the debts, except that the personal estate must be first exhausted. Code of 1876, §§ 2429, 2447, As said by Chancellor Kent, Yol. 2, Com. 427, in margin: “In a majority of the States, the descent of real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance as the English statute of distributions, with the exception of the widow, as to the real estate.” We need not .and do not. decide in this case what would be the rights and remedies of the administrator, if the descended lands remained unsold. Whether, when the heir is insolvent and owes the estate of the ancestor, as in this case, the administrator has any prior right to demand payment out of lands descended, or whether it becomes a mere race of diligence between him and •other creditors of the heir, is a question not raised by this record. See Towles v. Towles, 1 Head, 601; Mann v. Mann, 12 Heisk. 245; Procter v. Newhall, 17 Mass. 81; Hancock v. Hubbard, 19 Pick. 167. While it is manifest the probate court could grant no relief to the administrator in such a case, by reason of its limited, statutory powers, we are not prepared to admit it becomes a mere race of diligence. We, however, leave this question open, as its decision in this case is unnecessary. See Brown v. Lang, 14 Ala. 719; Goodman v. Benham, 16 Ala. 625; Miller v. Irby, 63 Ala. 477.
As we have said, in the present case it became necessary to .sell the lands for the payment of debts, and the lands, were so sold, reducing them to money. After paying the debts and the expenses of administration, there remained fifteen hundred dollars for division or distribution among the next of kin; equal to two hundred -and fifty dollars to each, or five hundred dollars to the two, John and Jabez O. Nelson. Now, however .much money, thus acquired and held, will be treated as having the qualities of land for certain purposes of administration and [605] succesion,- — Teague v. Corbitt, 57 Ala. 529, — still, for all other-purposes, it is only money, and money -in the hands of the administrator. Any process or procedure to get it out of the administrator, must necessarily be that which is adapted to the recovery of money as money. It follows that the distributive shares of this sum to which John and Jabez C. Nelson were entitled, was money in the hands of the administrator, and rightfully in his hands by operation of law. Being -money in his hands, the question arises, had the administrator the right-to retain it, in part payment of the debt the distributees owed his intestate. In Adams’ Eq. 223, in margin, it is said: “ There-are some cases occasionally spoken of as depending on an equitable set-off, but which would be more correctly termed retainers in the nature of set-off. As for example, where a legatee is indebted to his testator’s estate, and the executor, instead of paying the legacy, is entitled to balance it against the debt.” In Toller on Executors, 338, it is said : “If a legacy be left to the testator’s debtor, the debt shall be deducted from the legacy.” So, in Waterman on Set-off, § 190, is the following language:: “ The right of the executor or administrator to retain in such cases, depends upon the .principle that the legatee or distributee is not entitled to his legacy or distributive share, while he retains in his own hands a part of the fund out of which that and other legacies or distributive shares ought to be paid, or which were necessary to extinguish other claims on that fund.” In Ranking v. Barnard, 5 Maddock Ch. Rep. 32, ruled in 1820, the court said: “ It is clear that as against the husband, the executors of the testatrix would have had a right to satisfy Pipe legacy, by writing off so much of the debt due from the husband to the estate of the testatrix, and they must have the same right against the assignees of the husband.” See, also, Cherry v. Boultbee, 4 Myl. & Cr. 442. In Keim v. Muhlenberg, 7 Watts, 79, the ruling was that “a legatee, who is indebted to the estate of his testator, is not entitled to recover his legacy, nor that which he holds by assignment in right of another legatee, so long as any part of that debt, equal to the amount of the legacies claimed, remains due and unpaid; and the assignee of such legatee can be in no better situation than the legatee himself.” — Goodman v. Benham, 16 Ala. 625; Miller v. Irby, 63 Ala. 477; Livingston v. Newkirk, 3 Johns. Ch. 312. We concur in what- is said above, and hold that the administrator of Gideon Nelson had a right to retain the money in his hands, to the extent John and Jabez O. owed his intestate; and he had an equal right to retain, against any transferee of theirs, or a purchaser of their interest at sheriff’s sale. Many of the rulings in the court below are opposed to these views.- Wilson v. Strobach, 59 Ala. 488.
[606] We have no inclination to disturb the rulings in Sprowl v. Lawrence, 33 Ala. 674. See, also, Tutwiler v. Steele, 68 Ala. Rep. 107.
Reversed and remanded.