
    [Philadelphia,
    February 1, 1836.]
    WENTZ against WENTZ.
    IN ERROR.
    .One died seized.of real estate, leaving three daughters, one of whom, A.,was married to B. By three several deeds the land was partitioned between them; but the deed to B. and his wife, recited, that on the death of her- father, her share descended to B.; . and conveyed one-third to Mm, his heirs and assigns’. After tlie death of B., his widow borrowed money, and gave a sealed note for payment, upon which judgment was entered, and then she died. G., the son of A. and B. becaipe administrator, both of his father and mother, and applied to the Orphanls-Cqurt'for’the sale of the land, as the property of A., to pay her debts. The court !re’fus’ed the application, on the gtound that it was the property of B. The land was afterWardS sold 'by-virtue of proceedings on amortgage given by A. and B.; the 'suit on the mortgage being* against G.as-administrator both of A. and B. The balance of the purchase money, after paying the mortgage, was brought into court, where it was directed to be paid to C. “ admmsfrator, &c., as aforesaidand was received by him. In a scire facias, on the jíiügtnent above mentioned, brought against C., as administrator of A., it was - held, that C. must be taken to have received the money as administrator of A.; and, consequently, that he was liable for the amount to the plaintiff in the scire facias.
    
    Writ of error to the Court of Common Pleas of the County of Chester, to remove the record of a scire facias upon a judgment obtained in that court by Maria Wentz, and Arthur Armstrong, administrators, &c., of Thomas Wentz, deceased, to the use of Mary H. Brinton, against John T. Wentz, who survived Samuel R. Wentz, administrator, &c., of Mary Wentz, deceased. ’
    In the qourt below, the following case was stated for the opinion of the court, to be considered in the nature of a special verdict, viz. :
    “ A tract of land, containing two hundred acres, descended from Charles Kinkead to his three daughters, Hannah, Jane, and Mary, (who intermarried with Isaac Wentz,) as tenants in common. They divided it, and executed deeds of partition, duly acknowledged and recorded, (copies of which are annexed,, marked A, B and C.) On the 4th day of July, A. D. 1807, Isaac Wentz, and Mary his wife, mortgaged the tract conveyed to them to Thomas Wistar; which mortgage, by several assignments, subsequently became the pro-party of Abrahám W. Sharpless, Afterwards Isaac Wentz died, leaving his wife Mary to survive him; and on the 13th August, 1829, a judgment was entered in the Court of Common Pleas of Chester county, in favour of Maria Wentz and Arthur Armstrong, administrators of Thomas Wentz, deceased, against the said Mary Wentz, which was subsequently assigned to Mary H. Brinton. Afterwards, Mary Wentz died, and letters of administration upon her estate were granted to John T. Wentz, and Samuel R. Wentz. At, or about the same time, letters of administration, de bonis non, &c., on the estate of Isaac Wentz, were granted to the said John T. Wentz.
    Suit having been instituted by the said administrators of Thomas Wentz, a loan of the money upon the security and transfer of the said judgment to the said Mary H. Brinton, was negotiated through the instrumentality of the administrators of Mary Wentz, who, apprehending the title to the property described in the deed A,, to be in Mary Wentz, supposed they could obtain’an order from the Orphan’s Court of Chestér county to sell the same, for the payment of the' debts' of the said' Mary. Application, by petition to the said court, was accordingly made-r — but-the court being of opinion that the title to two-thirds of said property was in Isaac 'W’entz, and not in Mary, refused to grant an order of sale, and recommended a sale under the mortgage to Thomas Wistar. Accordingly, a levari facias, at the suit of Abraham W. Sharpless, assignee of Isaac W. Morris, who was assignee of Johp Price, executor, &c., of Thomas Wistar, deceased, against John T. Wentz, administrator, &c., of Isaac Wentz, deceased, and John T. Wentz, and Samuel R. Wentz, administrators, &c., pf Mary Wentz, deceased — issued out of the Court of Common Pleas of said county, returnable to February term, 1833; by virtue of which the sheriff of said county sold the said property, described in deed A, to Hannah Kinkead, for $4000. Out’ of the proceeds of sale, the said mortgage was discharged, and on the 22d day of September, 1834, the undisputed orie-third of the balance, belonging to the estate of Mary Wentz, was applied in part payment of a judgment, recovered against the said Mary Wentz, by Hannah Kinkead, prior to the judgment in favouV of the administrators of Thomas Wentz, leaving still due on the said judgment, in favour of Hannah Kinkead, the sum of $394 78¿. The remaining two-thirds of the balance of the said" purchase money, .consisting of $1686, 40, was paid into the said Court of Common Pleas, by the sheriff, in pursuance, of a rule granted by the said ..court, in the said case of Sharpless, assignee, &c.,- against Wentz, administrator, &c., (as above recited,) of which the following is á copy of the docket entry: ‘February 11th, 1833 — On'motion of Mr. Bell, of counsel with John T. Wentz, administrator, &c., rule on the s.heriff -to pay into court the. sum of $1686 40, being two.■ihirds pf the balance of the said purchase, money, after deducting the amount levied under the above mentioned execution with costs.’ On the same day, John T. Wentz obtained from the said court, in the said case, a further rule, of which the following is a copy of the docket entry: ‘February 11th, 1833 — On motion of Mr. Bell, rule to show cause why John T. Wentz', administrator, &c.,'as aforesaid, should not take out of court, the said sum of $1686 do.’ On the 10th day of April, 1833, the rule was enlarged, until the 10th day of June, then next, and the said court directed ‘ notice to be given to the administrator's of Mary Wentz, deceased, and tci the creditors and others interested in the estate'óf the sa'id Mary Wentz, deceased, by publication of a copy thereof for four weeks Successively, prior to the said 10th day of June, in the Village Record, and American Republican and Chester County Democrat.’ On the return of the said rule, proof was made to the satisfaction of the said Court of Common Pleas, of the due publication óf á notice in the newspapers, mentioned in the said order of' the'court. On the 13th of June, 1833, no person having appeared' to" object, the said court being of opinion that th'e said John T. WetitZ, a's ady ministrator, Sue., of Isaac Wéntz, deceased, was- entitled to- rfedei ve the said sum of $1686' 40, made the said last' mentioned f ulebte tained by him, absolute-*~ahd, on thé s'ame day,' tiré' próthono'Éa'ry of the said court paid to the said- Johri; Tv Wéntz,■ the' sáid sü’mp whd gave the following receipt: .’
    ‘ Rec’d June 13th, 1833, of John W. Cunningham, prothoiiotary, one thousand six hundred sevehty-six dollars and ninety-seven cents, pursuant to order of court. John T. Wentz, ,
    $1676 97.’
    The said John T. Wentz has since, and before the bringing of this suit, distributed the said money among the heirs of Isaac Wentz, deceased, the said John T. Wentz, administrator, &c.-, of Isaac Wentz, being the same John T. Wentz who is also surviving administrator, &c., of Mary Wentz, and the heirs of the said Isaac Wentz, being the same persons as the heirs of the said Mary Wentz, to wit: the said John T. Wentz, Charles IL Wentz, Samuel R; Wentz, Jeremiah M. Wentz, George G. Wentz, Isaac Wentz, and Hannah Wentz.
    The question for the opinion of the Court is, whether the said plaintiffs, to the use of Mary H. Brinton, are entitled to recover from the said John T. Wentz, as surviving administrator of the' said Maria' Wentz, deceased, the said sum of $1686 4'0, or any part thereof. If the court shall be of opinión with the plaintiffs, then judgment to be entered for such sum as' the court shall think due, with costs. But if the court shall be of opinion with the defendants,’ then judgment to be entered for the defendants, with costs.
    (Signed) W. H. Dillingham1, Plaintiff’s Attorney.
    
    Thomas S. Bell, Defendant’s Attorney.
    
    
      June 8, 1835.”
    
      . The deeds of pártition, referred to in the foregoing statement, were dated respectively on the 13th of June, 1801. The deed marked A was as follows:
    “ This indenture, made the thirteenth day of June, in the year of bur Lord one thousand eight hundred and one, between Isaac Wentz, and Mary his wife, of Sadsbury township, in the county of Chester, and state of, Pennsylvania, said Mary being one of the daughters of Charles Kinkead, late of the township and place aforesaid, deceased, of the one part, Hannah Kinkead of the township and state aforesaid, another daughter of the said Charles Kinkead, deceased, of the second part, and Jane Kinkead of the township* county and state aforesaid, also, another of the daughters of Charleé Kinkead, deceased, of the third part. Whereas the..said Charles Kinkead, jaté father of the said Mary Kinkead, Haniiah Kinkead; and Jane Kinkead, died seized in his demesne, as of fee of and in a certain tract, of land, situated in Sadsbury township, Chester county, and sfáte aforesaid, containing two hundred acres, and allowance of .six , per cent, for roads, &c., as by pátent; bearing date the 10th qf December, A. D. 1745, given under the hands and seals of John Penh;.Thomas Penn, and Richard Penh, Esquires, absolute proprietors; of the state aforesaid, recorded in the office for the recording of deeds for the county arid city of Philadelphia, in Patt Book. vol. 15, page 273, reference being had thereunto, will more explicitly appeár; without leaving behind him any male heir, or making any disposition of the above described premises, or any part thereof, by will or otherwise, whereby and by which means, all and singular, the said above described premises, a tract of land, the real estate of Charles Kinkead, deceased, are descended and come unto the said Isaac Wentz, Hannah Kinkead, and Jane Kinkead, his said daughters, and daughter’s husband. Now this indenture witnesseth, that the said Isaac Wentz, and Mary his wife, and Hannah Kinkead, and Jane Kinkead, have make partition, and by. thbse presents do make a full, perfect, and absolute partition, of the.above described tract of land, to and amongst them, the said Isaac, Wentz, Hannah Kinkead, and Jane Kinkead, three parts, in the manner following, that is to say, that the said Isaac Wentz, his heirs or as'sighs; shall have, hold and enjoy, to the only proper use and behoof of. the said Isaac Wentz, his heirs and assigns for ever, all that the following described piece or parcel of land, situate in Sadsbury township, Chester county, and state aforesaid, [here follows á. description;] containing eighty-eight acres, and one hundred and thirty perches of land, be the same more or less, for the full share and proportion of his, the said Isaac Wentz, of, and in, and to, all and every méssuages, hereditaments, and premises; above mentioned, so descended unto them, the said Isaac Wentz; Hannah Kinkead, and Jane Kinkeád, á's aforesaid :1'"and thesáid Hannah Kinkead and Jane Kinkead do, and each of them doth) by these presents, grant, assign, release, and confirm unto the said Isaáb Wentz, his heirs and assigns, the said messuages, hereditaments, and appurtenances, so as aforesaid agreed to be held, as aforesaid, his full share or proportion of the premises above mentioned, and descended as aforesaid to the said Isaac Wentz, Hannah Kinkead, and Jane Kinkead, and all the estate, right, title, interest, claim, challenges and demand whatsoever, of them, the said Hannah Kinkead, and 'Jane Kinkead, of, in, or to, the said messuage, piece or parcel of land, above mentioned and descended, and hereby released unto the said Isaac Wentz, as aforesaid, to have and to hold the said messhage, piece or parcel of land, with the appurtenances, hereby released and confirmed, as mentioned or intended, so to be unto the said Isaac Wentz, his heirs and assigns for ever, and the said Hannah Kinkead, and Jane Kinkead, doth hereby grant, for themselves and their heirs, that they and their heirs, the said described piece or parcel of land, containing eighty-eight acres, and one hundred and thirty purches, be the same more or less, hereditaments and appurtenances, unto the said Isaac Wentz, his heirs and assigns, against them, the said Hannah Kinkead, and Jane Kinkead, and their heirs and assigns, against all and every other person or persons whomsoever, lawfully claiming, or to claim the same, or any part thereof, shall and will warrant, prove, and defend. In witness whereof, &c.”
    The deeds marked B and C, were similar in their recitals to the preceding. They conveyed to Hannah Kinkead, and Jane Kinkead, respectively, their respective heirs and assigns, the parts or shares which, by the alleged partition, were allotted to them, in severalty; and each contained a covenant of general warranty, by Isaae Wentz, and Mary his wife.
    The following is a copy of the note given by Mary Wentz :
    “ Sixty days after date, I promise to pay Thomas Wentz, his heirs and assigns, the júst and full sum of twelve hundred and ninety-nine dollars, twenty-one cents, in lawful money of Pennsylvania, with interest from the date hereof. I further authorize and em- ■ power the prothono'ta'ry of Chester county, to enter judgment against me, and my heirs and assigns, without defalcation; with stay of execution till after the date hereof, as witness my hand and seál, this 3d day of December, one thousand eight hundred and twenty-seven. ’ Mary Wentz, [l. s.]
    Witnesses present,
    
      John T. Wentz,
    
    
      Maria Wentz”
    
    
      Endorsed thereon was the following:
    “ The balance due the estate of Thomas Wentz, deceased, on the within obligation, having been paid to the administrators, by-Mary H. Brinton, of the borough of West Chester, on the 19th of January, 1832, (the particular sum appearing on the calculation made and in her possession.) We, the said administrators, in consideration of the same, hereby assign, transfer, and set over this obligation, and all right of recovering the amount yet due on the same, to her, the said Mary H..Brinton, her executors, administrators and assigns. Witness out hands and seals, February 24th, 1832. Maria Wentz, [u. s.]
    Arthur Armstrong, [l. s.]
    Sealed and delivered in the presence of
    
      I. A. Danner.
    
    The interest has been paid up to the 19th of January, 1832, to Mr. A. Armstrong, one of T. Wentz’s administrators.”
    The following is á copy of the entries on the docket:
    Maria Wentz and Arthur') In the Common Pleas of Chester county. Armstrong, administra- j August 13th, 1829. — Judgment for tors, &c., of Thomas l the Plaintiffs, for the sum of $1299 21, Wentz, deceased. [ with interest thereon from the 3d day vs. of December, 1827. Mary Wentz.
    (See Judgment Docket, J. page 10.)
    For value received, I, Arthur Armstrong, one of the administrators above named, do hereby assign, transfer, and set over, unto Mary H. Brinton, her executors, administrators, and assigns, the jabove stated judgment, and all moneys due, and to become due thereon) and also the obligation and warrant of attorney, upon, ‘and by virtue of which the said judgment was entered and obtained, ;and all the right and interest of the said administrators, the plaintiffs above named, in, and to the same.
    Witness my hand and seal, this 19th day of January, anno Do-mini, 1832. Arthur Armstrong, [l. s.]
    Signed, sealed, and delivered, in the presence of
    
      Francis James,
    
    
      Thomas Williamson.
    
    I, John Thomas Wentz, one of the administrators, &c., of Mary Wentz, the defendant above named, deceased ; do hereby confess and acknowledge, that the above mentioned principal sum of twelve hundred and ninety-nine dollars, and twenty-one cents, at this day, remains due and unpaid upon the above stated judgment. Witness my hand and seal, this 19th day of January, A. D. 1832.
    John T. Wentz, [l. s.]
    W itnesses present,
    
      Francis James,
    
    
      Thomas Williamson.”
    
    The letter of attorney, referred to in the statement, is as follows:
    “ To all people to whom these presents shall come, I, Maria Wentz, one of the administrators of Thomas Wentz, deceased; do hereby authorize and empower my co-administrator, Arthur Armstrong, in my name an<} stead, and in my behalf, to assign and transfer, to Mr. Williamson, of Chester county, a certain judgment, now held by the estate of the said Thomas Wentz, deceased, against the estate of Mary Wentz, in said county of Chester, hereby investing the said Arthur Armstrong, with full power to act in the premises, as if I were personally present.
    Witness my hand and seal, this 18th day of January, A. D. 1832.
    Maria Wentz, [l. s.]
    
      Lancaster City, ss.:
    
    Personally appeared before me, a Justice of the Peace, of thp county of Lancaster, Maria Wentz, above named, and in due form of law, acknowledged the above instrument to be her act and deed, and desired the same to be recorded as such.
    Witness my hand and seal, this 18th day of January, 1832.
    George Matter, [l. s.]”
    The notice given by the prothonotary, in pursuance of the order ,of the court, was as follows;
    
      “ Notice,
    
    Abraham W. Sharpless, asssignee of Isaac W. Morris, who was assignee of John Peirce, executor, &c., of Thomas Wistar, deceased.
    
      vs.
    
    John T. Wentz, administrator, &c., de bonis non, of Isaac Wentz, deceased, and John T. Wentz and Samuel R. Wentz, administrators, &c., of Mary Wentz, deceased.
    In the Common Pleas of Chester county, of February term, 1835. — Levari >Facias.
    
    Land sold to Hannah Kinkead? for 14000.
    Amount of money paid into court by the sheriff, in pursuance of a rule obtained on him for that purpose, 11686 40, being two-thirds of the balance of said purchase money, after deducting the amount levied under the above mentioned execution, with costs.
    
      February 10, 1833. On motion of Mr. Bell, rule to show cause, why John T. Wentz, administrator, de bonis non, as aforesaid, should not take out of court the said sum of $1686 40. April 10, rule enlarged until the 10th day of June next, and notice to be given to the administrators of Mary Wentz, deceased, and to the creditors and others interested in the estate of the said Mary Wentz, deceased, by publication of a copy thereof, for four weeks successively, prior to the said 10th day of June, in the Village Record, and American Republican and Chester County Democrat.
    From the record, John W. Cunningham, Proth'y.
    
    
      April 24, 1833.”
    The following is a copy of the docket entries in this case;
    “Abram W. Sharpless, assignee ot"
    Isaac W. Morris, who was assignee of John Peirce, executor, &c., of Thomas Wistar, deceased.
    
      vs.
    
    John T. Wentz, administrator, de bonis non, of Isaac Wentz, deceased, and John T. Wentz, and Samuel R. Wentz, administrators, &c., of Mary Wentz, deceased.
    In the Common Pleas of Chester county, of February term, 1833; — Levari >Facias.
    
    Land sold to PlannahKinkead, for $4000.'
    February 11,1833. On motion of Mr. Bell, of counsel with John T. Wentz, administrator, &c., rule on the sheriff to pay into court the sum of $1686 40, being two-thirds of the balance of the said purchase money, after deducting the amount levied under the above mentioned execution, with costs.
    February 11, 1833. On motion of Mr. Bell, rule to show cause why John T. Wentz, administrator, fyc., as aforesaid, should not take 'out of court, the said sum of $1686 40. April 10,1833, rule enlarged until the 10th day of June next, and notice to be given to the administrators of Mary Wentz, deceased, and to the creditors and others, interested in the estate of the said Mary Wentz, deceased, by publication of a copy thereof, for four weeks successively, prior to the said 10th day of June, in the Village Record, and American Republican and Chester County Democrat.”
    Upon this case, the Court of Common Pleas rendered judgment for the defendant. Whereupon the plaintiff removed the record to this court.
    Mr. Dillingham, for the plaintiff in error.
    This is a case of great hardship for Miss Brinton, the party for whose use this scire facias was prosecuted, if the decision of the court below is to be sustained. The conduct of the defendant, throughout these transactions, was such as equity is always eager to relieve against. There is no obstacle in'the way of a decision by this court upon the merits, since it was agreed that the question should be raised upon this issue.
    1. There can be doubt of the intentions of the parties to the deeds of partition. The papers were drawn by a person ignorant of the laws regulating the descent of land in this state, and unskilful in conveyancing. The object was merely to make partition, not to alter .the right of the married sister, Mrs. Wentz. This is obvious from the recital. Here is the case o’f a mistake, then, which this c.ourt has more than once allowed to be corrected on parol evidence. Leek v. Cowley, (10 Serg. dp R. 176,) is in point. Thompson v. M’Clenachan, (17 Serg. dp R. 110.) Equity will, under, these Circumstances, consider Isaac Wentz as holding the fee in trust for his wife ; and, on his death, his heir at law, would be held to have/ succeeded tothe legal estate only, and a conveyance would be directed. In our courts, this conveyance would be presumed, and Mrs. Wentz could have recovered in ejectment. 2 Roper on Husband and Wife, ch. 18, 151. Fogelsonger v. Somerville, (6 Serg. <5* R. 267.) Stoolfoos v. Jenkins, (8 Serg. dp R. 167.) M’Culloh v. Wallace, (8 Serg. dp R. 181.)
    2. The loan, by Miss Brinton to the estate of Mary Wentz, was made on the faith of her being the owner of this land, and on the application and representation of John T. Wentz, who acted in the double capacity of administrator of the goods, &c., of his mother, and administrator, de bonis non, &c., of his father. He was a witness to the assignment of the judgment; and applied to the Orphan’s Court for authority to sell this land as the property of his mother. Then, when the land was sold under the mortgage given by his father and mother, it was his duty to apply the balance of the proceeds to the payment of Miss Brinton’s judgment, or at least to have given her sufficient personal notice of the proceedings to h^.ve enabled her to make application for it. Instead of doing this, he applied, through his attorney, to the court, for leave to take it out. The docket entries show, that the application was made by him as “ administrator,” &c., yet the ad vertisement states him as “ administrator, de bonis non,” &c. I contend that this notice was insufficient; and Miss Brinton being the only creditor, and living on the opposite side of the street, in the same town, the want of personal notice to her, implies a fraudulent intent, which vitiates the whole proceeding. We do not deny, that the decree of the court is conclusive ; but we submit that the defendant received and holds the money as trustee for Miss Brinton.
    Mr. Bell, for the defendant in error.
    It is well settled, that the decree of a court of competent jurisdiction will not be overhauled in a collateral proceeding. The act of 1827, gave the Common Pleas plenary power in proceedings of this kind. Nothing but proof of fraud will countervail this. Fraud is never to be pre-. sumed. The defendant complied strictly with the orders of the court, who proceeded with great caution. It is said, that he should have claimed this money as administrator of Mary Wentz., The answer to this is, that the Orphan’s Court had decided against him on this point, and declared the property not to be in Mary Wentz. Besides, there were judgment creditors of Mary Wentz, as against whom the administrator was not entitled to recovér the money. Pie has distributed this money on the faith of the decree of the court, and if it be recovered in this proceeding, he has no remedy. Clark v, Callaghan,-(2 Watts. 261.) It is said that Isaac Wentz wms trustee for his wife, and tha't equity will correct the mistake. There is no case showing that equity will interfere after a lapse of twenty years, in favour of a creditor of the alleged cestui que trust, .whose lien accrued after the transaction. Sugden on Vendors, &c. 107. The cases of M'-Cullbh v. Wallace, Fogelsonger v. Somerville, and Stoolfoos v. Jenkins, go upon the ground that the Orphans* Court had not power tq decree the wife’s estate to her husband. Here there is no evidence that the wife did not intend to give her .estate to her husband. The deeds were all executed on the same day, and in the presence of thp same witnesses. It is to be presumed, thqt Sirs. "V^entz was fully conusant of the whole proceeding;,
    Mr. Sergeant, in reply.
    If there was not actual fraud in the re? xeipt of this money, there is certainly mala fides in retaining it? against the creditor of the mother, whose-estate they knew it to be. It is said that there has been an adjudication in this case, which cannot be got over. Now, in the first place, the money was adjudicated to “.John T. Wentz, administrator,” &c., upon á rule which spoke of him as “ administrator as aforesaidthat is, with reference to the title of the suit, in which he is named as administrator both of his father and mother. Then, who were the parties to this decree. The plaintiff in the execution was satisfied.' The defend? ant was the only party. Why did he not make Miss Brinton a party ? There was not such notice as law and justice required. The defendant was trustee for her, and could not act for himself. .In fact, he went before the court in two capacities, and asked the court to decide in which he was to retain the money. The act of 1827, applies to cases of dispute among creditors; not to a case like this. It is said, that equity will not correct mistakes, unless -.they are clearly proved. This does not mean proof alinnde. Here the proof is in the paper itself. The very first recital is a plain Jpgal falsehood. The sole consideration for the conveyance, is the idea that, on the death of the wife’s father, her share of his real estate descended to her husband. Nothing but a partition was intended by the parties.
   The opinion of the court was delivered by

Gibson, C. J.

The vesting of the legal title in Isaac; Wentz, was so palpably the effect of mismanagement in making partition among the sisters, and not of an original purpose to convey to him, that a Chancellor would not have hesitated to compel him to convey to his wife. The deeds seem to have been prepared and executed under a common error, in believing him to be entitled to her land, as well as her chattels; and the case is, consequently, one which equity would have instantly set right. Perhaps it would be found, that, as nothing moved from him, there was no consideration to raise a use to him by bargain and sale; and that he had not the estate even at law. But, in the one or the other of these aspects, the proceeds of it belonged to the creditors of the wife, when they were brought into court; and it is to be seen whether they passed by an adjudication adverse to her title, when they were taken out.

It is not disputed, that, as to every thing adjudicated, a decree of distribution concludes the rights of all who were parties to it, either immediately or by representation. If, then, it be considered that the money was decreed to the son, as the administrator of his father, and not of his mother; the decree must be held adverse to the mother’s créditors, and conclude their rights; but if it be considered as dec'rééd to him, without discrimination of character, the law will refer the receipt of it to that character, in which alone it could, without a special decree, be legally received. Now, though an administrator may not be allowed to handle the proceeds of land in court; in order to pay it over to the lien creditors, whose recourse to the fund is immediate, he may undoubtedly demand for the gén'éfal creditors, wdiere there are any, whatever remains after satisfactión.of the liens, in order to bring it into a course of administration. Unless, then, the fund was explicitly awarded to the son, as the administrator of the father exclusively, we must say, that no more was adjudicated against the interests of the "plaintiff in the present action, than that she was not entitled by virtue of her judgment as a lien; that she was put upon the footing, of a creditor whose debt had survived its lien, and whose right to receive, is to be postponed to that of the representative of her fellow creditors, with whom she is to come in pari passu. Nor are the consequences different, though she be the only remaining creditor ; for her lien being put aside, the money goes into a course of administration on general principles, and she can receive payment but at his hands. "Such may not have been the intended principle of the decree, but such is its legal effect. On the maxim, then, that co-existent rights, in the same individual, are to be treated as if they existed separately, in different individuals, the question is, how far does the decree of distribution purport to distinguish between the representative of the husband, and the representative of the wife 1 The money being in court, the son in whom both characters were united, but not blended, procured a rule to show cause why the “ administrator, &c., as aforesaid,” should not have leave to take it out. These words “ administrator, &c., as aforesaid,” palpably refer to the title of the levari facias, on which the money was made; in the record of which the rule was entered, and in which he is named a defendant,as the administrator,respectively, of both his father and his mother. It is true that it is stated in the body of the case, that he was adjudged to be entitled as the administrator of his father, which, taking it to be conclusively established by the agreement, would carry the cause against the plaintiff. But in the record, which is a part of the case by express reference, no more appears than that the rule was simply made absolute; and, consequently, that the money was ordered to him without distinction of character. That fact being established, the result is, that the fund, though actually distributed among the children of his father, potentially remains in his hands, for his mother’s creditors; and that the plaintiff, being the only creditor, is entitled to have execution for the principal and interest of her judgment.

Judgment of the court below reversed, and judgment for the plaintiff, according to the terms of the case.  