
    Thomas Hancock, Appellant, &c. versus William Minot, Executor.
    The widow of an intestate had her dower assigned to her in all his real estate. Afterward a judgment was obtained against his administrator on a demand fo which the intestate was liable as a surety, and the real estate not assigned as dow er was sold by the administrator under a license of coutt, and the proceeds applied in satisfaction of the judgment. The administrator then brought a suit and recovered judgment against the principal debtor, and levied on his land. It was held, that the administrator did not stand seised and possessed of this land for the benefit of the widow and heirs, but of the heirs alone, their portion only of the intestate’s real estate having been taken to discharge the judgment against the administrator ; and that the case did not come within the spirit and intention of St, 1788, c. 51, § 3, which provides, that whenever an administrator shall recover a judgment and levy on land, he shall stand seised and possessed of sucli land to the use of the widow and heirs of the intestate.
    
    William Minot, as executor of the last will of Elizabetn Hancock, widow of Ebenezer Hancock, presented a petition to the judge of probate, representing that J. G. Rogers, as administrator de bonis non of the estate of Ebenezer Hancock in 1823, recovered judgment against John Plancock for the sum of 60,825 dollars, being for debts due from John to the estate of Ebenezer, and afterwards sued out a writ of execulion on the judgment, and on May 13, 1823, levied upon certain land of John, being an undivided sixth part of the mansion house estate of the late governor Hancock ; that this undivided sixth part was appraised at 18,710 dollars, which sum is credited in the administration account of Rogers ; that Rogers now stands seised and possessed of the whole estate in the land set off to him on execution, in trust for the sole use and behoof of the widow and heirs of the intestate, and that it is not necessary for the payment of debts, legacies, annuities, or charges of administration, and that it ought, by law, to be distributed as the personal estate of the intestate, and one third of it assigned to the petitioner as executor of the widow. The petition concludes with a prayer of distribution accordingly.
    Thomas Hancock filed an answer to the petition, in which lie states, that Ebenezer Hancock died intestate, leaving a widow (Elizabeth above named) and two sons (John aboyé named and Thomas the respondent) ; that Ebenezer died seised of much real estate, and of but little personal estate ; that a considerable portion of the personal estate was allowed to the widow by the judge of probate, and her dower duly assigned to her in all the intestate’s real estate lying within this Commonwealth ; that though the personal debts of the intestate were very small, yet that he was surety for his son John for a large ¿mount; that the creditors of John commenced suits against Rogers as administrator of Ebenezer, and under a commission of insolvency, and by virtue thereof, re covered judgments against the administrator to the amount of 57,435 dollars, and the administrator, in order to satisfy the debts, sold real estate of Ebenezer, of one half of which the respondent as one of the heirs was then seised, under a license of court, obtained for that purpose, to an amount sufficient to pay the demands; that by reason thereof a debt was created m favor of the administrator against John, and in consequence thereof the administrator commenced an action against John, and recovered judgment for the sum of 60,825 dollars, and levied an execution on his real estate and on certain equities of redemption ; the whole amounting to 26,030 dollars, and the estate mentioned in the petition being appraised and set off at the sum of 18,710 dollars. The respondent admits that this estate has never been distributed by the Court of Probate, but he denies that the widow, or her executor, has a right to any part of the same.
    The judge of probate, after hearing the parties, decreed that the administrator was seised and possessed of the land set off to him on execution, for the sole use and behoof of the widow and heirs of Ebenezer Hancock, and ordered a distribution of the same as of personal estate, viz. to the executor of the widow and to John and Thomas one third part each.
    From this decree Thomas appealed for the following reasons : •—■
    1. Because the estate in question was not the proceeds of debts due to Ebenezer in his lifetime, and in which alone his widow could be interested : —
    
      
      2. Because the moneys paid by the administrator for at c°unt of John, were not a part of the personal estate of Ebem ezer; in consequence of which the widow’s share of the personal estate was not diminished by such payment: —
    3. Because the dower of the widow in the real estate of Ebenezer had been set out before the sales under the license of court: —
    4. Because the real estate in the hands of the administrator is in place of the real estate of Ebenezer which had been sold for the payment of debts, and is to be distributed and disposed of in like manner : —
    5. Because, so far as it can be considered as personal estate, as such it is to be appropriated for the payment of debts, and to be applied, in the settlement of the estate, to the relief of the real estate and to the protection of the heirs at law : —
    6. Because the judge of probate has not marshalled the assets of the estate of Ebenezer according to the true intent and meaning of the statute of distributions of intestate estates.
    The petition was founded on St. 1788, c. 51, § 3, which provides, “that whenever any executor or administrator shall recover judgment for any sum of money, whereon execution shall issue, and lands, tenements or hereditaments shall be set off to the said executor or administrator, in discharge of the said execution, the said executor or administrator shall be seised and possessed of the whole estate in the lands, tenements or hereditaments so set off, to the sole use and behoof of the widow and heirs of the deceased intestate, or to [the use of] the residuary legatee or legatees of the testator, as the case may be ; and the Court of Probate may make distribution of the same, as of personal estate, accordingly ; unless the lands, tenements or hereditaments so set off on the said execution, shall be necessary for the payment of debts, legacies, annuities or charges of administration.”
    The 2d section contains a similar provision in regard to land mortgaged to the intestate, of which the administrator shah recover seisin and possession.
    
      June 24th, 1828.
    
      Jf. J. Hubbard, for the appellant.
    In construing a statute, qie intention and not the letter is to govern. Bac. Abr. Statute, I, 5. By the law, as it existed in 1786, the wddow of an intestate was entitled to dower, and to one third part of the surplus of his personal estate, after the payment of his debts ; and in case the personal estate should be insufficient to pay the debts, she was to have so much of the personal estate as the judge of probate should determine to be necessary. Anc. Chart. &c. 205, § 3; ibid. 230; St. 1783, c. 36, § 3. The statute of 1786, c. 5, § 3, contains a provision like that of 1788, c. 51, § 3, except that it does not mention the widow. The preamble of the statute of 1786 recites that doubts had arisen as to the estate of an executor or administrator in land mortgaged to the testator or intestate, or taken in execution at the suit of an executor or administrator for the payment of debts due to the estate of the person deceased, and the statute enacts that such land shall be assets. These doubts probably gave rise to the other provisions of the statute. If that statute had continued in force, it would have been questionable whether the widow could receive any benefit from the land so mortgaged or taken in execution, and whether the whole would not have gone to the heir. When the statute of 1788 was made, it was discovered that there was no express provision, in such cases, for an equitable distribution in regard to the widow. If a large portion of the estate of the deceased consisted in dioses in action and payment were enforced by extending on land, the widow might have had no benefit from it, though it was intended that she should have one third of the personal estate. So if debts due to the deceased had been secured by mortgage, and the administrator had entered to foreclose. The sole reason for inserting the provision as to the widow, was to secure to her an equitable proportion of the personal effects so turned into real estate. It cannot be supposed that the legislature intended that she should have one third of the intestate’s real estate assigned to her as her dower, and a fee simple in one third of the residue ; which would virtually be the operation of the statute in some cases, if the petitioner’s construction is adopted. The People v. Utica Ins. Co. 15 Johns. R. 380.
    Another rule is, that if divers statutes relate to the same thing, they ought to be all taken into consideration in constru ing any one of them. Bac. Abr. Statute, I, 2. If the statute of 1788 would bear the construction given to it by the petitioner, it is controlled by the subsequent statue of 1805, c. 90, which provides (§ 2), that after an allowance of necessaries tc the widow, the personal estate shall first be applied to the payment of the intestate’s debts. The real estate is liable to debts, only in case of a deficiency of personal estate. And by the statute of 1788, the land in the administrator’s hands by virtue of an extent, is not to be distributed, if it is wanted to pay debts. Here it is required for that purpose. Unless the personal estate of the intestate is sufficient to meet all his debts, the widow has no claim upon land taken on execution by the administrator.
    The statute contemplates that the debts for which the land is taken by an administrator, were due to the husband at the time of his decease. This was not a debt due in equity to the deceased, but to the appellant, as his real estate was taken to pay the creditors.
    
      Peabody and Minot, for the appellee.
    To the argument that the debt from John Hancock was not due to the intestate at the time of his decease, and so the widow has no interest in it, we reply, that neither did this real estate belong to him at that time. The claim of the heirs is founded on the same statute as the claim of the widow. Before the statutes of 1786 and 1788, it was doubtful whether land taken on execution by an administrator must not have remained in his hands ; but those statutes directed that it should be assets and be distributed as personal estate. The statute of 1805 is not inconsistent with that of 1788, and if it were, it would operate equally against the heirs as against the widow.
    There is no equity on the part of the appellant. It is true that he had a property in the real estate taken to pay the debt of Ebenezer Hancock, but it was a qualified pioperty. The land descended to him subject to the debts and liabilities of the ancestor ; it was not like land purchased by the appellant for a valuable consideration. The appellant does not complain that his real estate was sold illegally. It was necessary to convert it into personal estate, and when so converted, it did not differ from any other personal estate of the intestate. Brazer v. Dean, 15 Mass. R. 184. Suppose a Spanish claim had been allowed to the administrator under the Florida treaty might not the appellant have then said, with as much equity as he does here, that his real estate having been taken to pay the debt of the intestate, he was entitled to be indemnified out of the sum received by the administrator ? Had the legislature so intended, they might easily have provided, that if the real estate sold to pay debts should affect the heirs only, any reimbursement to the administrator should be for their sole benefit.
    
      S. Hubbard, in reply.
    The land in question is the proceeds of the intestate’s real estate, and the widow is not entitled in equity to any part of it. The administrator is a trustee of this land. Boylston v. Carver, 4 Mass. R. 598. It is a “ trust arising in the settlement of an estate,” and so by St. 1817, c. 87, is within the equity jurisdiction of this Court. The only question would be, whether the case is in a proper form for the exercise of such jurisdiction ; but the proceedings of a court of probate by decrees, are similar to those of a court of chancery, and as this Court has full chancery power over the subject, they will not turn the appellant round to his bill in equity. Gibbs v. Ougier, 12 Ves. 413. When the court have once equitable jurisdiction of a case, they will follow it through and make a final equitable disposition of it. In the case of a surety paying a bond, a court of equity will put him in the place of the obligee, in regard to any remedy against the principal debtor. Ebenezer Hancock, as a surety, might in equity have compelled the creditor to levy on John Hancock’s estate. The widow would then have had no claim. The suretyship descended with the real estate of Ebenezer, and the appellant is entitled to stand in the place of the surety. The land acquired by the administrator, is in lieu of that which was sold by him. Kidney v. Coussmaker, 12 Ves. 154.
    The Court will marshall the assets and will consider this land in the hands of the administrator as real estate ; and the appellant, having paid the debt of his co-heir, will stand in his place. Hays v. Jackson, 6 Mass R. 149; Lanoy v. Duke &c. of Athol, 2 Atk. 444; Clifton v. Burt, 1 P. Wms. 680; Toller, 418; Mills v. Eden, 10 Mod. 488; Cheesebrough v. Millard, 1 Johns. Ch. R. 413; Livingston v. Newkirk, 3 Johns. Ch. R. 312.
    The petitioner must rely entirely on a literal construction of the statute. Then we say, by a like construction, that the debt recovered of John Hancock was not a debt due to the estate of the deceased, which means, due to the deceased in his lifetime ; the intestate had no claim against John Hancock ; so that the case is not within the statute.
    
      March 16th, 1829.
    
      
      See Revised Stat. c. 73, § 52, and c. 65, § 13.
    
   Wilde J. delivered the opinion of the Court.

This case has been argued upon the facts stated in the petition and in the answer of the respondent; which wo understand to be agreed by the parties. The petitioner contends, on these facts, that the administrator stands seised and possessed of the real estate set off on execution, in trust for the sole use and benefit of the petitioner as representing the widow of Ebenezer Hancock, and of the heirs ; and the general question is, whether the administrator is so seised, and whether the judge of probate is authorized by law to order the estate to be distributed among the widow and heirs of Ebenezer Hancock as a part and portion of his personal estate.

This question depends on the construction of St. 1788, c. 51, § 3. The respondent contends, that the provision is limited to lands, tenements and hereditaments taken on execution by executors or administrators for debts due to the deceased, and that the intention of the legislature so to limit it, is expressed in the preamble to tne statute. The intention, however, expressed in the preamble, is to remove doubts and to declare the law “with respect to the extent of the right, interest, title and estate, which executors or administrators may have in houses, lands and tenements, set off by execution, at the suit of executors or administrators, for debts due to the estates of persons deceased.” This language of the preamble is not inconsistent with that of the 3d section. Both refer not only to debts due to the deceased, but to debts due to the estate of the deceased, at the time when judgment may be recovered by an executor or administrator, and must include all debts for which the executor or administrator is bound to account in the probate office. But if he should institute a suit and recover judgment in his name as executor or administrator for a debt not belonging to the estate, the statute in such case would not apply, and the general words of the 3d section ■would be limited ai.d restrained by the words of the preamble For instance, suppose the deceased had, before his death, assigned a chose in action, and that it afterwards became necessary for the administrator to institute an action in his own name for the use of the assignee, and that on judgment recovered, execution should issue and be extended on real estate. In such a case the administrator would not be seised for the use of the widow and heirs, but for the sole use of the assignee of the chose ; it would therefore not be a case within the meaning of the statute, the judgment not being recovered for a debt due to the estate of the deceased.

In the present case, however, it is clear, we think, that the debt on which judgment was recovered was a debt belonging to the estate of the deceased. It was founded on an implied promise to the deceased, to indemnify him against his liabili ty as surety for his son John Hancock, and it was recovered for the use and benefit of the estate of the deceased. The administrator was bound to account for it in the probate court, and he has so accounted, as stated in the petition. True it is, that the debt was not due to Ebenezer Hancock at the time of his decease, nor was it a debt due to the estate at the time when administration was granted or when the estate was inventoried ; but it belonged to the estate when judgment was recovered. byr the administrator, and when execution was extended on the real estate in question. And this we think sufficient to bring the case within the meaning of the statute.

The only remaining question is, whether the estate in questian is necessary for the payment of the debts &c. of the deceased, within the true meaning and intention of the statute.

It must be admitted that the affirmative of the question cannot be maintained, if the statute is to be construed strictly and according to the letter. The estate in question is not now necessary to pay the debts of the deceased, nor the legacies, nor the charges of administration. The respondent admits that these have already been discharged in the manner before stated. But cases frequently occur which cannot be brought within the letter of the law, and which are nevertheless manifestly within its spirit and meaning. When, therefore, a case is to be considered, which is excluded by the literal construction of a statute, the question always is, does it come within its meaning, or is it casus omissus. So if a case is included by a literal construction, still the question is, whether it is within its true meaning. Laws are made to settle general principles and rules, and it is impossible for the legislature, when an act is framed, to have in contemplation all cases which in the course of business may possibly occur. The meaning, therefore, of a statute is not always to be ascertained by the language of it alone. Other aids may be necessary, and are to be considered according to the settled rules of construction.

The cause and necessity of making a statute are therefore to be regarded, and also the state of the law at the time, relating to the subject matter of its provisions, so as to be the better able to determine what remedy was intended, and to what extent the previously existing law was meant to be changed. It is said, the best construction of a statute is, to construe it as near to the rule and the reason of the common law as may be. Bac. Abr. Statute /, 4, 5, and the cases there cited.

It may be material therefore to consider how the law stood as to marshalling assets in the hands of executors and administrators, at the time of the passage of the act.

The law in this respect was perfectly well established and known. In all cases the personal estate was to be first applied to the payment of debts and legacies, unless they were charged on the real estate by will, nor would this even exonerate the personal estate, unless there were express words to that effect, or unless such was the plain intent of the testator. Duke of Ancaster v. Mayer, 1 Bro. C. C. 454; Watson v. Brickwood, 9 Ves. 447. This had been the established law of the land from the first settlement of the country, and it had before been the law of England from time immemorial. It is not to be supposed that the legislature intended to change this well established principle of law. On the contrary, the language of the statute plainly recognises the principle, that the personal estate should be applied to the payment of debts and legacies, before any part should be distributed among the widow' and heirs.

Another principle of law also was well established, namely, that if an executor or administrator pays, out of his own money, debts to the value of assets in hand, he may apply the assets to his own use, towards satisfaction of the moneys he has expended. Livingston v. Newkirk, 3 Johns. Ch. R. 318. If therefore the administrator had paid the judgments recovered against the estate of the deceased with his own funds, he would be entitled to reimbursement out of the effects of the judgments afterwards recovered against John Hancock the principal. By means of substitution, he would have all the rights of the creditors of the deceased whose debts he had discharged. If a creditor exacts his whole demand of one of the sureties, that surety is entitled to be substituted in his place, and to a cession of his rights and securities as if he were a purchaser. Cheesebrough v. Millard, 1 Johns. Ch. R. 413.

And this right of substitution is founded on the most manifest equity. The same right of substitution would attach to heirs, if they should pay a debt of the deceased to prevent execution from being extended on the real estate. And when the real estate belonging to the heirs is sold for this purpose by the administrator, the same principle we think applies with equal force. The estate of the heirs being sold for the payment of the debts of the deceased, the heirs have a right to be substituted in the place of the creditors.

According to these well known principles, and substituting the heirs in the place of the creditors paid, the estate in question may with great propriety be said to be necessary for the payment of the debts of the deceased, and we are of opinion that this is the true meaning and construction of the statute.

It has however been objected, that the principle of substitutian is a principle of equity and not of the common law; and therefore, that it is not to be regarded by this Court sitting as a court of probate. To this objection two answers have been given. First, that courts of probate proceed according to the course of the civil and ecclesiastical law, and have indeed equity powers in many cases ; and that the statute in question expressly gives to-the court equity powers, for it declares that the executor or administrator shall in certain cases hold real estates in trust, and that the execution may be enforced by the Court of Probate. The second answer is, that if the Court of Probate is not clothed ivith equity powers and is not to proceed upon rules of equity, yet this Court sitting as a court of equity has jurisdiction over the case, and has power to enforce the trust, whatever it may be, according to the rules and principles of equity. If then this is a proper case to be brought before a court of equity, this petition should be dismissed ; for certainly this Court will not proceed to order dis ■ tribution as prayed for, when we perceive that as a court of equity we shall be obliged, if required, to make a different distribution.

The question now is, whether the administrator is seised and possessed of the estate in question, in trust for the use of the widow and heirs, as stated in the petition. This depends on the construction of the statute as relating to the facts agreed. And upon these facts, we think the administrator is not so seised, but that he is seised in trust for the use of the heirs whose property has been taken and appropriated to pay the debts of the deceased, and who have a clear right, as we think, to be substituted in the place of the creditors to whom payment has been made.

The result is, that the decree of the judge of probate must be reversed, and the petition be dismissed.  