Gileillan, C. J.
Under the laws of this state, the estates of deceased persons, testate or intestate, are subject to the payment of their debts in the course of administration provided by statute. The difference between personal and real estate as assets for this purpose is that the title to the former [25] vests in the executor or administrator, and it may be disposed of by him without the order or license of the probate court, and it is the primary fund for payment of debts, while the title to real estate vests in the heir or devisees, and it is the secondary fund, to be resorted to only after the personal property is exhausted, and then only upon the order or license of the court. The title vests in the heir or devisee, subject to the claims of administration upon it. The executor or administrator is entitled to the possession, and to the rents, issues and profits of real estate, until the estate is settled, or until delivered over, by order of the probate court, to the heir or devisee. Gen. St. c. 52, § 6. He is accountable for the income of the real estate while it remains in his possession. Gen. St. c. 54, § 7. He is also liable if he neglects to raise money by collecting the debts or selling the real or personal •estate. Id. § 8. After the executor or administrator has paid the expenses of administration, and debts, and such allowances to the widow and children as the statute provides for, the probate court by decree assigns the remainder of the estate, real and personal, among those entitled under the will; or, if there be none, according to the statute of descent or distribution. Gen. St. c. 56, §§ 4-23. This decree is not necessary to vest the title to the real estate, for that passes upon the death of the decedent. The effect of the decree upon real estate is to discharge it from the administration. Until then, it is assets and is liable to be applied, in default of personal property, to payment of debts and charges of administration, whether it remain in the hands of the heir or devisee, or has been by him conveyed to another. A purchaser takes with this liability upon it.
The debts are ascertained by commissioners. Their report, when filed, allowing or disallowing claims, has the effect of a judgment, and, unless appealed from, is final. How far their allowance of a claim is binding — that is, upon whom it is conclusive — is not entirely free from doubt. It is certainly conclusive upon the creditor whose claim is allowed or rejected, [26] and upon the executor or administrator. Is it conclusive upon other creditors, next of kin, legatees, heirs and devisees ? We find only three cases which appear to involve the point. Garnett v. Macon, 6 Call, 308; Alston v. Munford, 1 Brock. 266; and Stone v. Wood, 16 Ill. 177. The first two were eases of judgments in ordinary actions, and in the first the decision is placed on the ground that the heir is no party to' the action, cannot controvert the testimony, adduce evidence in opposition to the claim, nor appeal from the judgment. Stone v. Wood was, like this, an application for license to sell real estate to pay debts allowed by commissioners, and appears-to have been under a statute similar to ours, and the court, while apparently admitting that the heir might contest the claim before the commissioners, and appeal from their decision, places its decision on the ground, narrower and more technical than that taken by the court in Garnett v. Macon, that the heir is not in privity of estate with the executor, and, therefore, not concluded by the allowance of the debt. However it might be in an ordinary action between an administrator or executor and a third person, any one interested in the estate may contest claims before the commissioners, and! appeal from their decision, if the executor or administrator, declines to do so. Gen. St. c. 53, §§ 26, 27. The proceeding before the commissioners is not an adversary suit between litigant parties, the creditor on one side, and the executor or administrator on the other, but is in the nature of a proceeding against the estate, which estate is, in theory, in the probate court, for the purpose of being administered by distribution among creditors, heirs, devisees, legatees and next of kin. Though the proceedings on the part of the estate are conducted in the name of the executor or administrator, he is only a nominal party; the actual parties are those interested in the estate. We do not think it was intended that any party might neglect his opportunity to contest a claim Before the commissioners or on an appeal, and then contest it on an application for its payment, but that the award of the com[27] missioners, if not appealed from, and the judgment of the appellate court, in case of appeal, should be final and conclusive upon all parties interested in the estate, in all subsequent proceedings for its administration. The judgment on the claim of Coffin was, therefore, conclusive.
The holder of that judgment had a right to have it satisfied, so far as it could be, out of the property belonging to the estate. The real estate, the title to which is in Eibert, and in Dawson and Smith, belongs to the estate for the purposes of administration, as much as it did immediately after the death of Goldsmith. It was devised by the will to Mrs. Goldsmith, and she conveyed to them; at the time of such conveyance, there had been no administration in this state. The most that had been done was to file, in the probate court of Eamsey county, a certified copy of the will and of the probate, from the court in Philadelphia where the will was proved, to .make the proper record in the office of the register of deeds, and to take out letters to the executrix, Mrs. Goldsmith. She filed an affidavit that there were no debts. While this affidavit, if made in good faith, may have operated as an excuse to her for not applying for a commission to audit claims, it could not bar, nor in any manner affect, the rights of creditors to proceed against the estate for satisfaction of their claims. Nor could she, by conveying as devisee the real property, affect its status or the rights of creditors with respect to it. Their right to have the property applied in satisfaction of their claims could be barred only in the manner pointed out by the statutes.
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Gileillan, C. J.
Under the laws of this state, the estates of deceased persons, testate or intestate, are subject to the payment of their debts in the course of administration provided by statute. The difference between personal and real estate as assets for this purpose is that the title to the former [25] vests in the executor or administrator, and it may be disposed of by him without the order or license of the probate court, and it is the primary fund for payment of debts, while the title to real estate vests in the heir or devisees, and it is the secondary fund, to be resorted to only after the personal property is exhausted, and then only upon the order or license of the court. The title vests in the heir or devisee, subject to the claims of administration upon it. The executor or administrator is entitled to the possession, and to the rents, issues and profits of real estate, until the estate is settled, or until delivered over, by order of the probate court, to the heir or devisee. Gen. St. c. 52, § 6. He is accountable for the income of the real estate while it remains in his possession. Gen. St. c. 54, § 7. He is also liable if he neglects to raise money by collecting the debts or selling the real or personal •estate. Id. § 8. After the executor or administrator has paid the expenses of administration, and debts, and such allowances to the widow and children as the statute provides for, the probate court by decree assigns the remainder of the estate, real and personal, among those entitled under the will; or, if there be none, according to the statute of descent or distribution. Gen. St. c. 56, §§ 4-23. This decree is not necessary to vest the title to the real estate, for that passes upon the death of the decedent. The effect of the decree upon real estate is to discharge it from the administration. Until then, it is assets and is liable to be applied, in default of personal property, to payment of debts and charges of administration, whether it remain in the hands of the heir or devisee, or has been by him conveyed to another. A purchaser takes with this liability upon it.
The debts are ascertained by commissioners. Their report, when filed, allowing or disallowing claims, has the effect of a judgment, and, unless appealed from, is final. How far their allowance of a claim is binding — that is, upon whom it is conclusive — is not entirely free from doubt. It is certainly conclusive upon the creditor whose claim is allowed or rejected, [26] and upon the executor or administrator. Is it conclusive upon other creditors, next of kin, legatees, heirs and devisees ? We find only three cases which appear to involve the point. Garnett v. Macon, 6 Call, 308; Alston v. Munford, 1 Brock. 266; and Stone v. Wood, 16 Ill. 177. The first two were eases of judgments in ordinary actions, and in the first the decision is placed on the ground that the heir is no party to' the action, cannot controvert the testimony, adduce evidence in opposition to the claim, nor appeal from the judgment. Stone v. Wood was, like this, an application for license to sell real estate to pay debts allowed by commissioners, and appears-to have been under a statute similar to ours, and the court, while apparently admitting that the heir might contest the claim before the commissioners, and appeal from their decision, places its decision on the ground, narrower and more technical than that taken by the court in Garnett v. Macon, that the heir is not in privity of estate with the executor, and, therefore, not concluded by the allowance of the debt. However it might be in an ordinary action between an administrator or executor and a third person, any one interested in the estate may contest claims before the commissioners, and! appeal from their decision, if the executor or administrator, declines to do so. Gen. St. c. 53, §§ 26, 27. The proceeding before the commissioners is not an adversary suit between litigant parties, the creditor on one side, and the executor or administrator on the other, but is in the nature of a proceeding against the estate, which estate is, in theory, in the probate court, for the purpose of being administered by distribution among creditors, heirs, devisees, legatees and next of kin. Though the proceedings on the part of the estate are conducted in the name of the executor or administrator, he is only a nominal party; the actual parties are those interested in the estate. We do not think it was intended that any party might neglect his opportunity to contest a claim Before the commissioners or on an appeal, and then contest it on an application for its payment, but that the award of the com[27] missioners, if not appealed from, and the judgment of the appellate court, in case of appeal, should be final and conclusive upon all parties interested in the estate, in all subsequent proceedings for its administration. The judgment on the claim of Coffin was, therefore, conclusive.
The holder of that judgment had a right to have it satisfied, so far as it could be, out of the property belonging to the estate. The real estate, the title to which is in Eibert, and in Dawson and Smith, belongs to the estate for the purposes of administration, as much as it did immediately after the death of Goldsmith. It was devised by the will to Mrs. Goldsmith, and she conveyed to them; at the time of such conveyance, there had been no administration in this state. The most that had been done was to file, in the probate court of Eamsey county, a certified copy of the will and of the probate, from the court in Philadelphia where the will was proved, to .make the proper record in the office of the register of deeds, and to take out letters to the executrix, Mrs. Goldsmith. She filed an affidavit that there were no debts. While this affidavit, if made in good faith, may have operated as an excuse to her for not applying for a commission to audit claims, it could not bar, nor in any manner affect, the rights of creditors to proceed against the estate for satisfaction of their claims. Nor could she, by conveying as devisee the real property, affect its status or the rights of creditors with respect to it. Their right to have the property applied in satisfaction of their claims could be barred only in the manner pointed out by the statutes.
The judgment of Coffin being a valid claim against the estate, and the lands owned by Eibert, and Dawson, .and Smith, being, for the purposes of administration and payment of debts, a part of the estate, the only question is, is it necessary to sell lands to satisfy the judgment ? So far as the administration in this state is considered without reference to the administration in Pennsylvania, there can be no doubt of it. There is no personal property in the hands of the admin[28] istrator, and there does not appear to be any other real estate to which resort may be made. It is claimed, however, that the principal and’ original administration of the estate is in Philadelphia; that the administration in this state is in its nature ancillary; and that, as Coffin was not a resident of this state, he ought to have sought satisfaction of his claim in Philadelphia; and that, certainly, it cannot be enforced against real estate here, while there is, in the hands of the administrator in Philadelphia, personal property of the estate applicable to the payment of debts, before resorting to real estate. How it would be if there were, in fact, personal property applicable to debts in course of administration at Philadelphia, it is unnecessary to consider, for such does not appear to be the case. The copy of the inventory of personal property, filed by the executrix in the court at Philadelphia, in 1863 — and no other record to show the condition of administration there was introduced — does not show it. If the amount of the personal property set out in the inventory did, at that time, in fact belong to the estate, there is no presumption that it continued so for fourteen years. The commencement of administration in Philadelphia being shown, the presumption is rather that it proceeded in due course and has been closed. Any one claiming the contrary must show the condition of such proceedings at or near the time of the proceedings in question here.
If there were anything in the suggestion that Coffin was a non-resident, and that the proper place for him to enforce his claim was in Philadelphia, we think the proper time to raise the objection was when he presented and offered to prove his claim before the commissioners. As it has been presented and allowed in the course of administration here, there is no reason why the administration, including the application of the estate here to the payment of this debt, should not be fully completed.
It is claimed that Laws 1876, c. 37, § 3, subd. 10, (Gen. St. 1878, c. 46, § 3,) which provides “that no debt or claim [29] against any deceased person which had not become a lien upon his real estate before his death shall continue to be a lien upon any such real estate after the lapse of three years from the date of such death,” has extinguished the right to sell this real estate to pay this debt. This provision is not in express terms applied retroactively, and there is nothing which shows an intent to include other than future eases. The entire chapter is prospective, and such being the case, it would be a violent construction to give the language quoted a retrospective meaning.
The decision of the probate court is reversed, and that court is directed to grant the license to sell the real estate as applied for. The cause will be remanded for that purpose.