Phelps v. Miles

1 Root 162

Opinion

By the Court.

In England the personal estate only is assets in the hands of an executor, the real estate descends to the heir-at-law, and is liable to creditors by specialty only in the hands of the heir, in case the personal estate proves insufficient.

But by the laws of this state the real estate as well as the personal, is charged with the payment of debts generally, if the personal is not sufficient, the real estate is assets in the hands of the executors, etc. and may be sold by them for the payment of debts; and the heirs cannot hold against such sale; the necessity therefore, of an action against the heirs, is wholly superseded by the law relative to the settlement of estates; but upon no principle are the plaintiffs entitled to a recovery upon this declaration and pleadings.