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whether entered as heir or not; (a) 2ndly, Not only conveyances to the creditors of the heir, but onerous deeds to third parties are prohibited by this statute; (b) 3rdly, A conveyance to the ancestor's creditors generally will be good, (c) but not it seems to one in preference to others of that class; (d) 4thly, The ancestor's creditors are those whom the law intended to protect, and they have the right to challenge, while the creditors of the heir can claim no participation; and 5thly, It is not necessary that the ancestor's creditors should do diligence within the three years, in order to exclude the creditors of the heir. (e)

In the administration of the estate of an ancestor, the Courts of Chancery in England and the Colonies, and the Courts of the United States, possess ample means for securing to the creditors of the ancestor the application of his estate to the payment of their demands, in preference to those of the creditors of the heir or devisee.

(a) Magistrates of Ayr, June 14th, 1780, Dict. 3135

(b) Taylor, Nov. 26th, 1747, Dict. 3128, 3133. Magistrates of Ayr, ut supra. (c) Ersk. ib. § 102.

(d) 1 Bell's Comm. 736.

(e) Bell, Feb. 25th, 1773, Dict. 3134. Taylor, Nov. 26th, 1747, Dict. 3128.

CHAPTER XV.

OF THE LIABILITY OF THE HEIR OR DEVISEE, AND OF THE DESCENDED OR DEVISED PROPERTY TO THE PAYMENT OF THE ANCESTOR'S DEBTS.

It will have been seen that under the several systems of jurisprudence which are here considered, except in that of England, of those British possessions which do not retain the law of Holland, Spain, or France, and of the several states of America, except Louisiana, the heir ab intestato or by institution becomes by his acceptance of the succession liable to the creditors of the deceased, either to the extent only of the property which he inherited, if he has entered with benefit of inventory, or to the full extent of all the debts owing by the deceased, however much they may exceed the value of that property, if he has not entered with benefit of inventory.

The property itself is also liable to the creditors, and it is in their power, instead of enforcing their demands against the heir personally, to secure its exclusive application to the payment of their demands, by causing it to be separated from his property.

By the law of England, the whole property of the ancestor is made liable to his creditors, but the heir, devisee, or executor, is liable only to the extent of the assets of the ancestor which he has received.

When the succession by operation of law on an in

testacy has devolved on or been transmitted by testament to several persons, and the liability incurred by the acceptance is sustained by several co-heirs, there are various modes by which that liability may be divided between them.

Each of the heirs may be liable to the creditor for that proportion of his demand which corresponds with the share he takes in the inheritance, or any one heir may be liable in solidum to the extent of that share, and entitled to be reimbursed by his co-heirs the amount he has paid of the debts beyond his proportion. Again, the share of the heir in the inheritance which is to determine the proportion of debts to be paid by him, may be estimated either by the part of the inheritance he takes, as a moiety, or third or fourth, or by the value which his share bears to the whole inheritance. Again, the heir may be liable in respect of every description of property to which he has succeeded, or in respect of one description only, as of the moveables or acquéts, which may be solely liable, whilst in respect of biens propres he may be exempt from any liability to the debts, or the distinction in this respect may only consist in rendering one description liable before the other can be taken. The liability of the one and the exemption of the other description of property, or the primary applicability of the one, may prevail as well against creditors as between the co-heirs themselves, or it may be recognized only as between the latter, and entitle them to contribution or indemnity from each other, where the proceedings of the creditors have interfered with that exemption.

Again, when the creditors have been paid their demands, and the co-heirs ab intestato, or by institution or devise are to divide what remains of the succession amongst themselves, according to the respective interests which they take by law or by the dispositions of the testator, there are certain rights which they have against each other. They are entitled in certain cases to have

that which any of them may have received in the ancestor's lifetime, and which the law presumes to have been an advancement on account, or in anticipation of their shares in his succession, collated or brought into the general mass of the estate.

Some of the instituted heirs or devisees may be bound, as the condition on which alone they can take that which has been devised to them, to relinquish an interest which they would have enjoyed independently of the testament. The law will not allow them to admit the testament in part and reject it in part, whenever it appears that the bequest to them was made by the testator on the condition express or implied that the whole testament should take effect.

The rules by which this equity is governed form the doctrine known in the law of England as that of election, and in the law of Scotland as that of approbate and reprobate.

There is great discrepancy between the several systems of jurisprudence now considered on these various modifications and qualifications of the liability of heirs.

It is intended in the following sections of this chapter to state, 1st, The nature and extent of the liability of the co-heirs to the creditors and to each other, in respect of the debts of the deceased; 2ndly, Of the collation which they are bound to make; 3rdly, Of the cases in which they are prevented from claiming under and in opposition to the testament; 4thly, It is proposed to state the law by which the obligations and rights of the heirs are to be decided, when there arises a conflict between the laws of the domicile and situs on either of these subjects.

SECTION I.

OF THE LIABILITY OF THE HEIRS TO CREDITORS AND TO EACH OTHER.

1. Under the civil law, and the law of Holland and Spain, coheirs liable pro ratá parte quá quisque hæres est.-Under the coutumes of Paris and Normandy and the Code Civil, pro ratá emolumenti.—Cases in which each may be liable in solidum, as in hypothecary actions, &c.-When the share of liability is affected by the nature of the property. II. Heir's liability under the law of Scotland. Of heirs portioners.-Heirs tailzie.—Heirs of marriage.-Heirs substituted in a bond.-Order in which different classes of heirs to be sued. Personal estate equally liable with the heritable.-Whether the debts be heritable or moveable. The heir and executor entitled to relief from each other, when the former pays a moveable, and the latter an heritable debt. III. In England heir or devisee in respect of real estate, and executor in respect of personalty, liable only to creditors to the extent of the property of the deceased which has come to their possession. Lands are now assets for the payment of the ancestor's simple contract debts, as well as debts by specialty.-Personal estate primary fund for payment of debts.

IV. Colonies in which rules similar to those in England prevail respecting the liability of heirs and devisees, and the applicability of real and personal estate. Similar rules in the states of America, except Louisiana.

I. Under the civil law, each of the coheirs bears his burthen of the ancestor's debts pro ratâ in respect of that part of the succession to which he is heir pro ratâ parte quâ quisque hæres est, and not pro ratá emolumenti, or according to its value compared with that of the part to which his coheir had succeeded. "Sit ex

plorati juris, hæreditaria onera ad scriptos hæredes pro portionibus hæreditariis, non pro modo emolumenti pertinere." (a)

(a) Cod. lib. 4, tit. 2, 1. 1. Sande, Decis. Fris. lib. 4, tit. 9, def. 3. Voet, lib. 29, tit. 2, n. 20.

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