Tyson v. Hollingsworth

1 H. & J. 469

• Court: High Court of Chancery of Maryland
• Decided: December 15, 1803
• Status: Published

Opinion

Hansow, Chancellor,

(23d December 1803,) decreed as follows; Whether or not, incaseofa deficiency of assets in the hands of the executor or administrator, this court can decree a sale of areal estate devolving on a person of full age, hath heretofore been considered as doubtful. In fact, there has been no such decree in this court. And in one case where creditors, several years since, filed a bill against the heir of full age, who by his answer expressed his willingness to have the land sold for paying all the creditors, the chancellor refused to execute the power. He hath since often reflected on the subject, and thought that in that case he might have done wrong. For inasmuch as are executor or administrator is suable, in this court, ont the ground of discovery, and land is in this state liable for all debts, as well as the personal estate, there seems no reason wherefore an heir should not be sued on the bame ground. Indeed this very case shews the-propriety of this court exercising the jurisdiction. Here is a dispute between the executor of one partner, and the administrator of the other partner, and an .heir and devisee, as well as between them all and the creditors; and if the creditors were referred to a remedy at law, it would he almost, if not altogether impracticable, to obtain it. . But here, if the chancellor be right in his present opinion, the remedy is easily attainable; all parties being compellable to account, in order to shew what is the amount of real and personal assets, as well as to shew what are the just claims, against the deceased; and the interference of this court being obviously to the advantage of all parties, Decreed» that, the defendant, James Carey, shall account for the personal assets in his hands, as executor of Francis M-Kenna, surviving partner of Parkin óf M'Kenna, both in the right of the said M'Kenna alone, and of M'Ken-na as surviving partner aforesaid. That the said Sie, sauna Goodwin, as administratrix with the will annexed of Thomas Parkin, shall account for the personal assets in her hands. That the auditor of this court shall state the said accounts. &c. He shall state the several claims of the complainants, &c. Ami inasmuch, as it appears to the chancellor that the claims of the complainants, although not yet precisely ascertained, will require a wale of the real estate in the bill mentioned, it is further decreed, that all that tract ofland, See. be sold, &c.