of the ancestors, are in equal equity. The act of assembly of 12 Will. 3, pa. 7, directs, that "all lands within this government shall be liable to sale upon judgment and execution obtained against the defendant, the owner, his heirs, executors, or administrators, where no sufficient personal estate is to be found.” These words do not create any lien on the land, until judgment. The lien, in equity, takes place from the judgment. 3 Term Rep. 370. All the words of the law may be satisfied by a reasonable construction. The owner of lands may sell them even after a suit brought, and immediately before judgment. So may the heir, and in both instances, they will pass unincumbered to the purchaser.

The act of 4 Ann. cap. 38, p. 49, contains the same expressions in effect, and should receive the same construction.

The act of 4 Ann. c. 21, p. 33, directs, that the Orphans' Court, in each county, shall distribute the surplusage of the estate of any person dying intestate, after all debts, funeral and just expenses of every sort first allowed and deducted, in a particular manner.

But it is evident, that this surplus respects as well personal as real estate; and it will not be pretended, that if executors or administrators, sold goods or mere chattel interests in the course of administration, that the creditors of the deceased could recur to the property in the hands of the vendees. Why should not lands receive the same construction? The 8th section of the act (p. 35), lays no additional restraint in the case of real estates. It only determines the cases of children, or heirs at law, entitled to the lands. It does not respect the cases of purchasers. Suppose one by will appointed his executors, or trustees, to sell his whole estate; and, pursuing the language of this law, directed that (after payment of his just debts, funeral and other just expenses), the surplusage should be distributed in a certain mode; and afterwards, the executors or trustees sold the same bona fide, but embezzled the money eventually in violation of their trust. Will it be said that the fair purchasers are to be affected thereby?

There are only two instances, that we know of, which can be put in England, analogous to the point before the Court; 1st, when personal property is sold for payment of debts; 2d, where lands are sold charged with the payment of debts.

As to the first instance, it has been repeatedly determined, both in law and in equity, that no creditors can follow goods aliened by executors or administrators for a valuable consideration without fraud; because a purchaser has no power of knowing

the debts of the deceased, and if such purchases should be controlled, no one would venture to buy. 1 Atky. 463.

As to the second instance. One devises his real estate to trustees, to sell and pay his own and his father's debts and legacies, and the residue to his two sisters. No particular debts were specified in the will, but legacies to the residuary devisee and others to a considerable amount were given by both their wills. The trustees sell great part of the estates, and embezzle the money without discharging the debts and legacies; the rest of the estate was possessed by one of the residuary devisees. Decreed, that where there is a trust or devise for payment of debts generally, a purchaser is not obliged to see to the application of his money, as he is where there is a schedule, or particularizing of the debts. Ambl. 188. But where an estate by will is charged with payment of debts generally, if the devisee sell pending a suit by creditors for sale and payment of debts, such alienation is void; because the jurisdiction of the Court being attached, it would be inconvenient to permit a sale but by the Court. Ib. 676. One devises all his real and personal estate to G, his heirs, executors, administrators, and assigns, charged with the payment of his debts; the plaintiffs, who were bond creditors, never asked for their principal, but received their interest regularly for sixteen years, of G, the executor, who, during this interval, made several sales of the testator's estate: held, that the purchasers should not be disturbed, after a quiet possession of sixteen years. 2 Atky. 41.

If lands are devised to be sold for payment of debts in a schedule, the purchaser is bound to see the purchase money applied to the payment of those debts; but if the trust be general to pay debts, though he has notice of them, yet the purchaser is not obliged to see the money applied. 1 Vern. 301; 2 Cha. Cas. 115; 1 Equ. Cas. Abr. 358, pl. 1, 2.

In the state of New Jersey, the intestate laws, as to the point in question, bear a strong similitude to those of this state (vide New Jersey laws, passed December 1742, pa. 129). A remarkable case happened in that government. One Thomas Leonard, of Princeton, died possessed of a considerable estate. He devised his lands to his nephews, who afterwards sold them, and by their extravagance soon consumed the purchase moneys. A creditor of the testator obtained a judgment against his executors, and attempted to recover the same, by seizing in execution the lands sold by the devisees; but on full argument, he was prevented from doing it by the Court.

The argument ab inconvenienti, holds equally strong in case of a bona fide purchaser of lands from the heir without notice,

as in the case of a creditor of the ancestor, who lays by, without taking the proper steps for the recovery of his debt. There are already many liens on lands, created by the municipal laws of the government; they should not be increased by the introduction of constructive ones, for no human prudence can guard against them; and it is of the utmost consequence in an infant country, that the sales of real estates should not be fettered further than is absolutely necessary for the common welfare. The counsel for the plaintiff insisted that the point before the Court had been fully settled by the decision in the Common Pleas of Philadelphia county, in the case of Graff vs. Smith's administrators. Dallas, 481.

They urged, that the policy of England differed materially from that of this state. The system of the former went no further than to the aggrandizement of eldest sons. The first institutions of our government wore a very different aspect. By the laws agreed on in England, between the governor and first adventurers in 1682 (Append. pa. 4, § 14), it was declared that all lands and goods shall be liable to pay debts, except where there is legal issue, and then, all the goods and one-third of the land only. By the act of 1688 (Append. pa. 10, cap. 189), lands were made liable to pay debts. By the act of 1693 (Append. pa. 13), all estates, real and personal, which any person had in this province and territories at the time of his decease, shall be liable to be seized and sold for the payment of the just debts of the deceased person's, so far as the same shall extend; and after all debts are paid, the surplusage of the real and personal estate to be distributed in a certain manner.

By the act of 1700 (Append. pa. 16), all lands shall be liable to be seized and sold for the payment of decedents' just debts; and where the testator's or intestate's personal estates are sufficient to pay all debts and damages owing by them respectively at the time of their deaths, with all charges incident thereunto, then the real estates to be disposed of and distributed in a particular mode.

The act of 4 Annæ, § 8, pa. 35, directs that the surplusage or remaining part of intestate's lands not sold, or ordered to be sold, shall be divided between the intestate's widow and children, &c. The intention of the legislature is here manifest, that until the debts of the decedent are paid, the heir is entitled to the lands only sub onere.

The counsel for the plaintiff were stopped by the Court.

M'Kean, C. J. The rules in England do not apply to the

case now before us.

the question.

Our own acts of assembly must determine

On the first settlement of the province, it was established that the lands of deceased persons should be liable to the payment of their debts. This continued until the act of 4th Annæ, when a provision was made by the legislature as to the mode by which the surplus of real estates was to be divided, after payment of debts and funeral expenses. In the infancy of the province the bulk of the property consisted of lands; personal property bore but a small proportion thereto, and creditors necessarily must have relied on the real estates of deceased persons as their security.

The universal opinion has been, that the lands of decedents were chargeable with the payment of their debts. Whatever my sentiments might be, if it were a recent case, I am concluded by the general opinion, the unsettling whereof would be attended with dangerous consequences. The general idea of the bar has been as I have stated, and we have been furnished with a copy of the opinion of Mr. Chew on this point, on a case put by the creditors of John Jones, who died some years before the revolution. He there says: "The constant construction of the act of 4th Annæ has been, that until payment of the just debts of an intestate, no descent or distribution can give the children an indefeasible right in the lands of the intestate; but they, and all purchasers under them, take the lands under the act, subject to the payment of the intestate's just debts, and the practise has gone accordingly."

The personal estate should be first applied to the payment of the debts of the deceased. When this fund is deficient, the lands are liable. The arguments from inconvenience hold strongly on both sides of the question; but this is a matter of mere legislative wisdom, and does not belong to us.

Shippen, J. Having heretofore delivered my sentiments on this subject when sitting as President of the Court of Common Pleas, and those sentiments being in print (1 Dallas, 481), it is the less necessary for me to be very particular in delivering my present opinion, especially as I have seen no reason to alter it.

Our ancestors in Pennsylvania seem very early to have entered into the true spirit of commerce, by rejecting every feudal principle that opposed the alienation or partibility of lands. While, in almost every province around us, the men of wealth or influence were possessing themselves of large manors, and tracts of land, and procuring laws to transmit them to their eldest sons, the people of Pennsylvania gave their conduct and

laws a more republican cast by dividing the lands, as well as personal estate, among all the children of intestates, and by subjecting them, in the fullest manner, to the payment of their debts. There was a time, within my remembrance, when lawyers held that commom recoveries for docking estates tail could not be legally suffered in Pennsylvania; and the first that was suffered will be found among the records of the Common Pleas, in my hand-writing, when a young student. The practise, however, was not generally adopted till the passing of the act of assembly in 1750, which expressly authorized it. As lands, by means of intails, were, before this time, daily rendered unalienable, the only way of docking them was by the instrumentality of the very acts of assembly under our consideration; and nothing was more common, and it was every day practise, for lawyers to advise the instituting suits against the executors of the testator (perhaps many years after his death), for the sole purpose of taking the intailed lands in execution, and barring the intail. Many lands are now held under these titles. There was then but one opinion upon the subject. The acts of assembly were taken in the utmost latitude for the purpose of making lands responsible to creditors; for other purposes, they were suffered to retain the qualities of real estate. They were bound

They never went

from the time of the judgment, not execution. into the hands of executors, or administrators, as chattels; although, for the purpose of making them answerable to creditors, they were, by a kind of fiction, expressed in the executions to be in the hands of executors and administrators to be administered. They either went into the hands of the heirs by descent, or to devisees under the will of the testator; and then they waited the event of a settlement of the deceased's debts. No one ever imagined, that by a hasty sale the creditors could be stripped of their security in the land. This produced caution both in the heirs and the purchasers; and, when doubts occurred, an indemnity was expected, or, what was more common, a sale by the sheriff took place. No mischiefs were formerly experienced from this construction of the law. It is said that lately, since our population has increased, and of course the transactions of family concerns become less notorious, some inconveniences have arisen to purchasers. This may show the necessity of legislative interference, in order to limit the time of the lands remaining liable, but cannot be a reason for a Court of justice to overturn a construction which has prevailed for near a century past in Pennsylvania.

Yeates, J. I fully concur. It appears to me evident, that the