OLOPTON, J.
— When a court of equity takes jurisdiction of the administration of an estate of a decedent, the court takes the estate in its condition at .the time of taking jurisdiction, and is governed by the laws regulating and controlling the sales of property, payment of debts, and settlement of administrations, which are applicable to the administration of estates in the Probate Court. Following its own practice, the court will decree a sale of lands, when necessary, and when, in similar cases, a court of probate would have had jurisdiction to order a sale. — Bragg v. Beers, 71 Ala. 151 ; Hall v. Wilson, 14 Ala. 295; Wilson v. Crook, 17 Ala. 59. The Probate Court has jurisdiction to order a.sale of the lands of an intestate, in only two cases — for the payment of debts, and for distribution ; and an order of sale for the payment of debts can not be made, unless there is an-averment and proof that the personal estate is insufficient therefor. — Code, §§ 2447, 2448, 2449. These statutory provisions govern a court of equity, when it has taken jurisdiction of an estate, and it is being administered in that court.
The averment of the bill is, that complainant “is notinformed as to whether the property, which the said Samuel M. Sharp died possessed of, will be sufficient to pay her said claim,” but believes it is insufficient. This is not an averment, nor the equivalent of an averment, that the'personal estate is insufficient to pay tiie debts. The bill was filed ten days after the appointment of the administrator of Samuel M. Sharp, and in less than eighteen months thereafter a decree was rendered, by which the administrator was ordered to pay to the register, for the use of the complainant, any moneys of the estate he may have in his possession, not exceeding the amount ascertained to be due complainant, after deducting the costs and the expenses of the administration ; provided the debt'of complainant is the only debt presented to him within eighteen months after his appointment; and for any balance due to complainant, the reg[318]*318ister was ordered to sell the lands admitted to belong to Samuel M. Sharp.
The decree was made before the expiration of the time in which creditors are required to present their claims, and of the time allowed an administrator to ascertain the condition of the estate, or before he can be compelled to make settlement, and without an ascertainment of the debts of the estate, or of its condition, or what amount, if anything, is due to complainant. The validity of the claim of complainant is dependent on a settlement of the guardianship of Josephus P. Sharp, as her fuardian. If, on the reference ordered, the register should nd an amount due, his report remains subject to exceptions, and is not final until confirmed. A decree of sale was made, without a judicial finding of either of the facts preceding and necessary to a sale of lands for the payment of debts- — the existence of debts, and the insufficiency of the personal estate for their payment.
By our statutes, all the estate of a decedent, whether real or personal, other than the exemptions provided by the law, is charged with the payment of his debts. The only restriction is, that resort must be first had to the personal estate. Creditors, not having a lien created in the lifetime of the deceased, or whose claims are not founded on the considerations for which a preference is given by statute, stand pari passu. One can not, by any proceedings, acquire a preference; his right being to participate in the assets, real and personal, equally with the other creditors. The corollary from these statutory provisions is, that the rule in the English Court of Chancery —that a single creditor of an estate can bring a bill for the payment of his own debt only, and for this purpose have a discovery of assets — does not prevail in this State. The bill, in such case, must be a creditors’ bill, on which the assets may be marshalled and applied for the benefit of all, a due administration of the estate had, and a final settlement made,— thus preventing a multiplicity of suits, and unnecessary and expensive litigation. — Scott v. Ware, 64 Ala. 174. The bill is brought by a single creditor for the payment of her debt.only, without allegation that there are no other claims, entitled to share equally, and no claims for funeral expenses, expenses of last sickness, or other considerations, for the payment of which the statute provides a preference; and a decree is made for the payment of complainant’s debt, without regard to the existence of any such preferred claims, except the costs and expenses of administration.
The bill is filed for the purpose of subjecting to the complainant’s demand, not only the personal estate, but also the land descended to the heirs. It may be conceded that the case [319]*319does not fall within the principle held in Scott v. Ware, supra, where it is said : “ Before a creditor can obtain the assistance of a court of equity, to subject lands descended, or lands demised, to the satisfaction of his demand, he must have established his debt by a judgment at law, and exhausted his legal remedies; and there must be averment and proof of a want of personal assets, and of the insolvency of the personal representative,'and the sureties on his bond, if any he has given.” Her demand being founded on the liability of a surety on the official bond of her guardian,' who died insolvent, the complainant had a right to come into a court of equity to establish it; and the jurisdiction having attached, the court will grant all the relief to which she is entitled, and settle the entire litigation between the parties, notwithstanding she may have a remedy at law as to a part. But this does not entitle her to an order for the sale of the land, until her debt has been established by a decree of the court, conclusive on the heirs; nor does it entitle her to exclusive payment out of the legal assets, if there are preferred claims, or other creditors having a right to an equal participation.
By the bill, the complainant seeks, also, to subject lands, alleged to have been fraudulently conveyed to his wife, by the procurement of the deceased debtor. Before a simple-contract creditor can come into a court of equity, to subject property fraudulently conveyed by a debtor, who has since deceased, there must be averment and proof of a deficiency of legal assets to satisfy his demand. Without such averment, the bill is without equity. Such a case belongs to that “ class of cases dependent upon the jurisdiction of the court over the administration and marshalling of the estate of deceased persons, in which the court was accustomed to intervene for the relief of creditors, though judgments at law had not been obtained, if a necessity existed; and the necessity existed, when there was a deficiency of other assets for the payment of debts.” — State Bank v. Ellis, 30 Ala. 478 ; Lehman v. Meyer, 67 Ala. 396; Cawthorn v. Jones, 73 Ala. 82. There is an absence of both averment and proof of a deficiency of legal assets, real and personal, for the payment, of the debt.
The lands, claimed to have been fraudulently conveyed, were purchased from Yanderveer by the deceased debtor, for and in the name of his wife, entirely on a credit. A conveyance was made to the wife, and a mortgage was taken on tfie lands to secure the payment of the consideration, which was payable, in several annual installments, in cotton. Our attention has been specially called to the case of Keeney v. Good, 21 Penn. St. 349.
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OLOPTON, J.
— When a court of equity takes jurisdiction of the administration of an estate of a decedent, the court takes the estate in its condition at .the time of taking jurisdiction, and is governed by the laws regulating and controlling the sales of property, payment of debts, and settlement of administrations, which are applicable to the administration of estates in the Probate Court. Following its own practice, the court will decree a sale of lands, when necessary, and when, in similar cases, a court of probate would have had jurisdiction to order a sale. — Bragg v. Beers, 71 Ala. 151 ; Hall v. Wilson, 14 Ala. 295; Wilson v. Crook, 17 Ala. 59. The Probate Court has jurisdiction to order a.sale of the lands of an intestate, in only two cases — for the payment of debts, and for distribution ; and an order of sale for the payment of debts can not be made, unless there is an-averment and proof that the personal estate is insufficient therefor. — Code, §§ 2447, 2448, 2449. These statutory provisions govern a court of equity, when it has taken jurisdiction of an estate, and it is being administered in that court.
The averment of the bill is, that complainant “is notinformed as to whether the property, which the said Samuel M. Sharp died possessed of, will be sufficient to pay her said claim,” but believes it is insufficient. This is not an averment, nor the equivalent of an averment, that the'personal estate is insufficient to pay tiie debts. The bill was filed ten days after the appointment of the administrator of Samuel M. Sharp, and in less than eighteen months thereafter a decree was rendered, by which the administrator was ordered to pay to the register, for the use of the complainant, any moneys of the estate he may have in his possession, not exceeding the amount ascertained to be due complainant, after deducting the costs and the expenses of the administration ; provided the debt'of complainant is the only debt presented to him within eighteen months after his appointment; and for any balance due to complainant, the reg[318]*318ister was ordered to sell the lands admitted to belong to Samuel M. Sharp.
The decree was made before the expiration of the time in which creditors are required to present their claims, and of the time allowed an administrator to ascertain the condition of the estate, or before he can be compelled to make settlement, and without an ascertainment of the debts of the estate, or of its condition, or what amount, if anything, is due to complainant. The validity of the claim of complainant is dependent on a settlement of the guardianship of Josephus P. Sharp, as her fuardian. If, on the reference ordered, the register should nd an amount due, his report remains subject to exceptions, and is not final until confirmed. A decree of sale was made, without a judicial finding of either of the facts preceding and necessary to a sale of lands for the payment of debts- — the existence of debts, and the insufficiency of the personal estate for their payment.
By our statutes, all the estate of a decedent, whether real or personal, other than the exemptions provided by the law, is charged with the payment of his debts. The only restriction is, that resort must be first had to the personal estate. Creditors, not having a lien created in the lifetime of the deceased, or whose claims are not founded on the considerations for which a preference is given by statute, stand pari passu. One can not, by any proceedings, acquire a preference; his right being to participate in the assets, real and personal, equally with the other creditors. The corollary from these statutory provisions is, that the rule in the English Court of Chancery —that a single creditor of an estate can bring a bill for the payment of his own debt only, and for this purpose have a discovery of assets — does not prevail in this State. The bill, in such case, must be a creditors’ bill, on which the assets may be marshalled and applied for the benefit of all, a due administration of the estate had, and a final settlement made,— thus preventing a multiplicity of suits, and unnecessary and expensive litigation. — Scott v. Ware, 64 Ala. 174. The bill is brought by a single creditor for the payment of her debt.only, without allegation that there are no other claims, entitled to share equally, and no claims for funeral expenses, expenses of last sickness, or other considerations, for the payment of which the statute provides a preference; and a decree is made for the payment of complainant’s debt, without regard to the existence of any such preferred claims, except the costs and expenses of administration.
The bill is filed for the purpose of subjecting to the complainant’s demand, not only the personal estate, but also the land descended to the heirs. It may be conceded that the case [319]*319does not fall within the principle held in Scott v. Ware, supra, where it is said : “ Before a creditor can obtain the assistance of a court of equity, to subject lands descended, or lands demised, to the satisfaction of his demand, he must have established his debt by a judgment at law, and exhausted his legal remedies; and there must be averment and proof of a want of personal assets, and of the insolvency of the personal representative,'and the sureties on his bond, if any he has given.” Her demand being founded on the liability of a surety on the official bond of her guardian,' who died insolvent, the complainant had a right to come into a court of equity to establish it; and the jurisdiction having attached, the court will grant all the relief to which she is entitled, and settle the entire litigation between the parties, notwithstanding she may have a remedy at law as to a part. But this does not entitle her to an order for the sale of the land, until her debt has been established by a decree of the court, conclusive on the heirs; nor does it entitle her to exclusive payment out of the legal assets, if there are preferred claims, or other creditors having a right to an equal participation.
By the bill, the complainant seeks, also, to subject lands, alleged to have been fraudulently conveyed to his wife, by the procurement of the deceased debtor. Before a simple-contract creditor can come into a court of equity, to subject property fraudulently conveyed by a debtor, who has since deceased, there must be averment and proof of a deficiency of legal assets to satisfy his demand. Without such averment, the bill is without equity. Such a case belongs to that “ class of cases dependent upon the jurisdiction of the court over the administration and marshalling of the estate of deceased persons, in which the court was accustomed to intervene for the relief of creditors, though judgments at law had not been obtained, if a necessity existed; and the necessity existed, when there was a deficiency of other assets for the payment of debts.” — State Bank v. Ellis, 30 Ala. 478 ; Lehman v. Meyer, 67 Ala. 396; Cawthorn v. Jones, 73 Ala. 82. There is an absence of both averment and proof of a deficiency of legal assets, real and personal, for the payment, of the debt.
The lands, claimed to have been fraudulently conveyed, were purchased from Yanderveer by the deceased debtor, for and in the name of his wife, entirely on a credit. A conveyance was made to the wife, and a mortgage was taken on tfie lands to secure the payment of the consideration, which was payable, in several annual installments, in cotton. Our attention has been specially called to the case of Keeney v. Good, 21 Penn. St. 349. That case involved a question of fraud in fact, and the court held the arrangement between the husband and wife “too [320]*320unsubstantial, and too easily shammed, to be at all satisfactory.” The real estate, on which there was a distillery, was purchased by the wife on a credit, except a small amount, and by agreement the wife appointed the husband her agent to manage the farm and the distillery, for which she was to pay him twenty dollars per month. There was no evidence that the purchase-money was paid with funds of the wife. The court held that, “no agreement of the husband and wife about the property of either, whether it be made in writing or by parol, can avail against creditors, without proof which wall render the fact indubitable, that it wras hers independent of all agreement between themselves.” We are not prepared to disagree to this legal proposition, if it were applicable to the case before us.
We do not understand that any question of actual fraud is really involved, other than it is insisted the lands were paid for with the earnings of the husband and wife. It clearly appears that the payments for the land were made with cotton, grown on the premises by tenants principally, and some of the payments were made by Mrs. Sharp after the death of her husband. No funds or earnings of his assisted in paying for the lands. The question raised on these facts is, are the lands, by law, the property of the wife, or of the husband ? This is not an open question. At common law, the wife, during coverture, could make a valid purchase, and accept a valid conveyance of real estate. If she purchased an estate in fee, the conveyance was good, unless it was avoided by the husband in some mode declaring his dissent, or disagreed to by the wife after the husband’s death. If the estate w^as purchased with the concurrence of the husband, the purchase and conveyance remained valid during coverture, and could be disaffirmed only by the wife, and after her coverture. The husband, having once given his consent, could not revoke it, and the wife was incapable to disaffirm during coverture. The husband consented to the purchase by Mrs. Sharp. The conveyance to her, and the mortgage to secure the consideration agreed to be paid, being contemporaneously executed, created in her an estate on condition, which became absolute on the payment of .the full consideration. These principles are clearly and distinctly held in Marks v. Cowles, 53 Ala. 449. And in Prout v. Hoge, 57 Ala. 28, it is said: “ The original agreement for the purchase of the premises provided for a conveyance to the wife, on the payment in, full by her of the purchase-money. This agreement certainly created in the wife an equity. This equity of the wife was her statutory separate estate, incapable of alienation, except in the mode prescribed by the statute.”— Wimbish v. Montg. M. B. & L. Asso., 69 Ala. 575.
By our statutes, “ all property of the wife, held by her pre[321]*321vious to the marriage, or which she may become entitled to after the marriage in any manner, is her separate estate.” In any manner'' includes any purchase and conveyance valid in law, and sufficient to vest in her an estate. The creditors of the husband suffer no loss or damage. The property in the hands of the wife’s vendor was not subject to their demands. The labor and attention of the husband, bestowed in its management, was the discharge of a duty, imposed by the statute upon him as trustee; and' the rents, income and profits were not subject to the debt of complainant. The lands purchased •from Yanderveer became the property of Mrs. Sharp, and are not subject to her husband’s debts.
Reversed and remanded.