
    James M. Stigler, Administrator, v. Lucy A. Porter et al.
    
    1. Estates or decedents : sale or realty to pay debts upon insurEIOIENCY OR PERSONALTY ARTER DECEDENT’S DEATH. — The Probate Court will decree a sale of the lands of a decedent to pay debts, when the personalty, which was sufficient at the time of decedent’s death, has subsequently become insufficient, in consequence of an event over which the personal representatives had no control.
    2. Same: same: realty not chargeable when personalty becomes inSTJEEICIENT EROM DEYASTAYIT OR NEGLECT OR PERSONAL REPRESENTATIVES.— The personal estate of a decedent is the primary fund for the payment of debts, but upon its insufficiency, whether at the time of the death of the decedent or subsequently, the lands are chargeable, unless the subsequent insufficiency of the personalty has resulted in consequence of the devastavit or neglect of the personal representatives ; in that event, the lands cannot be sold until the creditor has exhausted all remedies against the personal representatives and securities. Evans v. Eisher, 40 Miss. 648.
    Appeal from tbe Probate Court of Holmes county. Hon. Hugb W. Fultz, judge.
    Appellant, as tbe administrator de bonis non of Robert Howard, deceased, filed bis petition in tbe court below, stating that tbe personal estate was insufficient to pay tbe debts, that the slaves belonging to tbe estate bad been freed, and that tbe notes and accounts were of little or no value. A schedule of liabilities and assets was filed. Tbe petition asked that tbe heirs of Howard be made parties, and that tbe lands be sold for tbe purpose of paying tbe debts.
    Lucy A. Porter and Thomas L. Howard, heirs of Robert Howard, appeared and demurred to tbe petition for tbe causes stated in tbe opinion of tbe court. Tbe demurrer was sustained and tbe petition dismissed.
    
      James M. Dyer, for appellant,
    cited Evans v. Fisher, 40 Miss. 643 ; Rev. Code, 443, art. 80.
    
      D. W. Sanders for appellees. No brief on file.
   Peyton, J.,

delivered the opinion of the court.

The plaintiff in error, as administrator de bonis non pi Robert Howard, deceased, filed his petition in the Probate Court of Holmes county, alleging that the personal estate of said decedent was wholly insufficient to pay and satisfy the debts which had been exhibited against the estate of said deceased; that the negroes belonging to said- estate, by the result of the war, had been emancipated, and that in conseqxxence thereof all the assets of said estate that have eonxo into the hands of said administrator, as contained in a sclxodxxlo amxcxed axxd made part of the petitioix, are insufficient to pay the debts and liabilities of said deceased; and that a schedule of the debts axxd liabilities of the decedent was annexed, and xxxado part of the petition, and that it was xxeecssary to resort to the real estate of the deceased for the payment of his said debts and liabilities; axxd praying for a decree of said coxxrt, authorizing a sale of the real estate for that pxxrpose.

Thomas L. Howard, one of the defendants to this sxxit, and •child of decedent, appeared axxd demux-red to said petitioix, on -the groxxnd that the -personal property of said estate that passed Into the haxxds of the executrix after the death of the said Robert Howard, stood charged with axxd was amply sufficient to dis'charge the liabilities of said decedent, and that the real estate •desceixded to the heirs axxd devisees of the deceased, unincumbered with said liabilities. The demurrer was sustained by the coxxrt and the petition dismissed, and the caxxse conxes here by appeal on the part of the said adnxinistx-ator de bonis non, who •■assigns for error that the coxxrt below erred in sustaining the •demurrer and dismissing the petitioix.

It appears from the petition that tiie personal estate at the time of the death of the deceased was sufficient to pay the debts, and that subsequently to that time the personal estate ‘became insufficient to pay the debts, in conseqixence of the •emancipation of the slaves which had belonged to said estate by an event over which the personal representatives of the deceased had no control.

The facts set out in the ¡petition, if true, were sufficient to authorize a decree of the court to sell the land; and those facts being admitted by the demurrer, the court below erred in sustaining it, and in dismissing the petition.

By the law of this State, the lands, tenements, and hereditaments of the deceased stand chargeable for the debts, over and above what the personal estate may be sufficient to pay, and may be subjected to the payment of the same by a decree of the Probate Court for that purpose. Rev. Code, 446, art. 89. It is founded on the policy which generally prevails in this country, to subject all a man’s property, except such a is positively exempt, to the payment of his debts, and is most consonant to the principles of honesty and justice.

The personal estate is the primary fund for the payment of debts. But it is not necessary that the deficiency of the personal estate should exist at the time of the death of the deceased, in order to make the real estate chargeable. The court will look to the condition of the estate at the time of the hearing of the; petition, for the purpose of ascertaining whether the personal estate is then sufficient to pay the debts; and if it is not, a decree should be made for the sale of the land, unless it should appear that the personal estate became insufficient to pay the debts in consequence of the devastavit or neglect of duty of the administrator; and in that event the lands cannot be sold for the purpose of paying debts, until the creditors have exhausted all remedy against the administrator and securities. Evans v. Fisher, 40 Miss. 643.

For these reasons the decree will be reversed, the demurrer overruled, and cause remanded for further proceedings in accordance with this opinion.  