
    Anna Coburn, Executrix of John Coburn vs. Simon Magwood, Executor of John Coburn.
    Heard before Chancellor Drsaussure, Charleston, May Term, 1835.
    The former commissioner, Mr. Thomas Hunt, made a report in this case, on the 29th January, 1830, stating that he made sales of the real and personal estáte of the late John Coburn. That the sale of the slaves amounted to $14,963 ; and that Mrs. Wood, one of the distributees of the estate, became the purchaser of part of the said slaves, to the amount of $2,145 ; and Miss Jane Coburn, to the amount of $2,815; but neither of them had complied with the terms of sale. That the commissioner had received from. other purchasers, cash to the amouut of $5,388; and bonds to the amount of $4,621. That one tract of land of the estate, was sold for $1,050, and purchased by Mrs. Wood, who did not comply with the terms ; there were no bidders for the other tracts. The commissioner recommends sales.
    That advertisements for creditors, were issued, calling on them to furnish their demands, which was done to the amount of $9,647.60, as per schedule, which have been paid. That the total amount of receipts, including cash on tho bonds, and interest, amounted to $9,792.89, as appears per schedule.
    That he, the commissioner, charged the estate of John Coburn, with the debts contracted in Ids life time., and for the benefit, of the estate, as per Exhibit No. I. That such other debts as were not incidental to the estate, but have been contracted for the family generally, he, the commissioner, had equalized, and charged in equal proportions, to each heir respectively, as appears by Exhibit No. 2. Among the debts presented against tho estate of John Co-burn, wore the following:
    A judgment by E. Carter vs. Mrs. Coburn, $758.49, with interest; a judgment by Crovat vs. Mrs. Coburn, $656.95. The items on which these judgments were founded, shew that they were articles of groceries, and other articles necessary for a family. But plaintiffs having proceeded at law, against Mrs. Cobum indi, vidually, it is submitted by the commissioner, whether they have not forfeited their equitable claim on the estate. That another judgment against Mrs. Coburn, and sundry accounts, and a legacy of £100 sterling, remain to be provided for, which if to bo paid, can only be paid out of the sales of the lands of the estate, remaining now unsold.
    Exceptions were filed to the above report, and a decretal order was made January 29, 18:30, directing that the report and exceptions, be referred to the present commissioner; and the documents and funds in the hands of Commissioner Hunt, bo transferred to the present commissioner, with directions to vouch the expenditures and make up the accounts ; and that he should soli the lands, and the slaves purchased and uot'paid for ; and generally a full and final report aud settlement of the affairs of the estate.
    The present commissioner, in obedience to this order, now makes his report; wherein he states, that he received from tho former commissioner, certain funds, which he specifics. That he examined the accounts of Mr. Hunt, the former commissioner, and allowed such as were vouched, and the balance in favor of Mr. Hunt, amounted to $208.05. That he examined and reports trom No. 1, to No. 10 inclusive, stated by the former commissioner, with the widow and children of John Coburn, under former orders of tile court. That the Schedule A, is an exhibit of the demands of creditors presented to Commissioner Hunt, aad transferred to the present commissioner, and remaining unpaid for want of funds, to the amount of $6,568.10. Of these debts the present, commissioner reports the following as duly vouched. Debt to Dr. Samuel H. Dickson, for a balance of $595.75; Eliza Carter, $768.49 ; and that of Crovat for $65#.95. These were not demauds against the estate ; but also Johnson &. Maynard, $322.B0, of which only f 95 §2 cents, against the estate. These were not debts of the estate of John Coburn ; but under the orders of the court, they may with propriety be charged against the distributive shares of the widow and children iu court, before the distribution, as they were debts contracted for the use of the family generally.
    The commissioner reports that nothing has been paid him on either of the bonds reserved. And states some difficulties, on which he asks the directions of the court. He reports that he has sold two tracts of land of the estate, for $2,210, and the terms have been complied with. That the slaves' purchased by two of the children of John Coburn, and not paid for, have not been delivered up to him for re-sale, nor is he able to ascertain how many arc remaining, or in whose possession they are.
    To this report, exceptions were filed on behalf of the children of John Coburn. As the 6th and 7th exceptions alone were argued, it is presumable, that the rest were considered untenable, and therefore abandoned. No facts were stated, or reasons urged in support of them. Therefore, they must be considered overruled.
    The 0th exception is in the following words ; “ That the com. missioner had no authority to recommend the payment of the debts of the distributees before distribution ; and the creditors were not authorized to present their demands.” And the 7tb exception in support of the claims of the children, is, “ That the children of John Coburn, have had four years adverse possession of the ne-groes.”
    These exceptions bring before the court a very important subject for consideration, which is of great interest to creditors of estates, and of the heirs o,f estates. A person dios leaving a widow anc! children, anda good estate, bu! considerably indebted: tile widow, yvho is executrix, and the other executors, take measures to have, the estate settled by collecting debts due, selling parts of the estate ; and some payments on the debts due by the estate, are made by the executors. Meanwhile, it is necessary to support the family and to educate the children, and expenses are incurved for those purposes, and some debts contracted. After some time the widow and children, desire to have a settlement of the estate, and file a bill against the acting executor for that purpose ; various orders are made; sales are directed to be made; and debts directed tobe collected, and those due to be paid. Sales are made ; some of the distributees become purchasers, and do not comply with the terms ; and the debts remain unsatisfied lor want of funds.
    This state of things exist in the case, we are considering. The management of the cause for settling the affairs of the estate, have been in the hands of the executors, and distributees. The rights pnd interests of creditors, have been but incidentally brought before the court, or taken care of; and now it is attempted by these exceptions, to exclude the creditors, and to permit distributees to have their shares of the estate; yet they have got possession of the property of the estate,■ by breach of faith in becoming purchasers, $nd not complying with the terms of sale. If they should succeed itl their claim to have a distribution of the estate, and leaving the creditors, who furnished the means of subsistence, to pursue their claims upon an exhausted estate, or by separate suits against the dis-tributees, at law, which could not be sustained, because there was ho privity of contract between the creditors and the distributees ; the creditors would be utterly defeated. It appears to me, that this would be gross injustice, which this court ought not to sanction.
    It is, therefore, ordered and decreed, that these exceptions be overruled; and that the report be confirmed. And it is further ordered, that the commissioner do proceed diligently to settle the affairs of the estate ; to collect what is due and satisfy the credhors. That lie take proper measures, to compel the distributees to pay the amount of their purchases, or to deliver up the property purchased by them, for re-sale ; and to make sales of the undisposed property ; and to recover the debts on tho bonds, by suit or otherwise.
    I-IENRY W, PESAUSSURE.
    
      Grounds of Appeal.
    
    That in a suit brought for settlement of the estate of a testator, no creditors but those of the deceased are proper parties, The creditors of distributees, have their remedy at law, where they can compel an assignment of the interest of their debtors.
    That in this case Crovat’s judgment is satisfied by execution and the person of his debtor.
    That the exceptions ought to have been sustained, as the individual creditors of the distributees, and not parties to the record.
    That the purchasers who have been four years in peaceable and adverse possession of their purchases, cannot be compelled to give up their property, especially without suit, but are protected by the statute of limitations.
    That the suit abated by the death of the complainant, and no proceedings can be had until proper parties are made.
    HUNT, for Appellants.
    
   Chancellor J. Johnston

delivered the opinion of the court.

The first question is, whether there is error in that part of the decree, which directs that the legatees, who purchased, but have not complied with the terms of the sale, do either pay to the commissioner the amount of the bids, or that the property be resold.

I apprehend, it is not only competent for the court to carry its order for sale into execution, but that it is bound to do so, at the-instance of persons interested in that decree.

The defaulting purchasers, rely on the act of limitation. But the decree for sale, is substantially a judgment against the purchasers for the purchase money. The debtor cannot object the statute against any bonds to enforce the judgment against him, or his property. The decree here, is, that the purchasers pay, or that their property be sold, to raise the amounts they owe. If they pay the money, that relieves the property they purchased. If not, then I think, not only that property, but, any other they may possess, may be made liable.

It may become necessary to resort to their other property : and if the necessity occurs,- an order may be made for process to issue, suitable to the exigency. For instance, if they fail to pay up the amount of their bids, and the property bought by them, shall have been aliened to persons, who may protect themselves by an adverse holding, i suppose the price bid may be raised by process against the purchasers, on their property generally.

But I tniuk, this part of the decree, should not be enforced until, upon a reference, it shall appear there are claims to be allowed in the case, to the satisfaction of which, its enforcement may be necessary.

The next question is, whether the creditors, Crovat and others, are properly before the court; and what are their rights.

These are creditors of Mrs. Anna Coburn. Their demands are lor debts contracted by her. The consideration in some instances, was for articles furnished, for her own personal benefit, in others-for the benefit of the estate in her 'charge, and in others for thtf benefit of particular legatees,- who were minors.

The case is presented to us, in a very confused manner. Frag, ments only of the records are brought up. From these it appears, that the suit was for a sale and settlement of the estate of John Coburn, and for its distribution among his' legatees. That Anna Coburn, the testator’s widow, who was an executrix, and also oner of the legatees, had assigned her share of the estate to Jane M, Coburn, for the payment of the said Anna’s debts. That at January term, 1820, the said assignee was made a party. That at the same term a decree was pronounced, directing a sale ; and that the com-itiissioner after selling, should call in the creditors of the testator f to establish their demands. That he should take an account of the administration ; and that he should out of the proceeds of sale pay the debts of the testator and of his estate. That he should pay the' share of the said Anna to her assignee, to be distributed among the creditors, according to their rights, under the provisions of the assign-"moni. That he should pay the said Anna, the executrix, whatever ba- . lance should be found due her on account of hcradministration. That he should deliver their shares to the other legatees, who were of age ; and pay the shares of the minors, to such guardians as the court should-appoint: the guardians to vest these shares in the several names of their wards, and pay the annual interest to the mother o'! their wards, for their support and maintenance.

At the same term, an order was made, that the commissioner examine and report upon the debts of I he said Anna Coburn, and the order which should bo observed in the payment of the same.

Certainly it is irregular to take notice of creditors, as parties interested in the suit, upon mere motion 5 or to grant orders on their behalf, unless upon some formal proceeding on their part. 1 suppose, they might he let in upon petition, setting forth their rights, and giving an opportunity to the other parties to contest them. But even then, 1 do not think, they should be allowed to come in, or delay the suit; unless upon allegation and proof of some equitable ground, such as the insolvency of their debtor, or that it was necessary to make the application to prevent a fund from passing into unsafe hands, to their prejudice.

But as only part of the record has been furnished us, we are to presume that tin; orders which I have mentioned, wore grounded upon the consent of parties, or upon some proper proceeding, entitling the creditors to the orders. By the orders they wore recognized as interested parties.

The effect of the orders, is, to let them in as creditors of Mrs, Anua Coburn.

They are entitled to payment out ol her share of the estate, unless that has been paid over to the assignee, provided their demands fall within the provisions of the assignment.

They are also entitled to look to the funds of the estate, so far as their debtor was in advance on the administration account, for necessary expenditures for the estate ; provided, she has not been paid the balance due her on this account.

Thus lar the creditors have been let in by the orders made in the case. It does not appear thal they have been given any right to insist on advances made by their debtor, for the particular legatees who were minors. In that case, they would have been entitled to insist on such advances, within the limits of the interest on the shares of those minors, unless that interest was paid over to her, or expended by the commissioner for the support and maintenance of the minors.

The next question, respects the account of Mr. Hunt, the ex* commissioner.

He is entitled to credit for all payments on debts of the testator, or of his estate, for which proper vouchers can be produced. These payments he was directed by the decroe to make.

Hunt, tor motion.

Ctkimke, contra.

Filed 13th March, 1837.

He is also entitled for payments made to the legatees, or their guardians.

I would not extend his rights further than these limits, which aré the tiounds of his express authority. But it is the opinion of my brethren, that, under the circumstances, he should be allowed for such puymeuts oi the annual interest of the minors’ shares, as hé' may have made to their mother ; distinguishing between each share. And also for such necessary expenditures, as he may have mad© for the particular legatees, (distinguishing between itum,) withe the annual interest of their respective shares respectively, but no' further

Having expressed these general vielvs, this court will remain! the ease to the Circuit Couit; with a general direction that a reference be held in conformity with them. The accounts must bit taken up from the begin.,in», and attention must be paid particularly to the directions for making them up, contained in the decree of 1826. and to the principles set forth in (h<s opinion. In case of any difficulty, the Circuit Court will give particular instructions.

J. JOHNSTON*-

We concur,

DAVID JOHNSON,

WILLIAM HARPER*  