
    Abner Royce versus David Burrell and Jabez Burrell.
    No action lies against heirs, unless where the creditor is unable, during the existence of an administration, to procure satisfaction. Nor are heirs liable within the time limited for granting letters of administration, merely because no such letters have been granted.
    '1 his was an action of covenant broken, brought against the defendants, as children and heirs of Abraham. Burrell, late of Sheffield, deceased intestate. The plaintiff declares on a deed of the said Abraham for the conveyance of a certain piece of land to .the plaintiff in fee simple, with a covenant of general warranty ; and the breach alleged is an eviction by fVilliam Spaulding and others, by an elder and better title, since the decease of the said Abraham.
    
    [ * 396 ] * The defendant, David Burrell, pleads, first, that he has no lands by descent from the said Abraham. To which the plaintiff replies, that he has divers lands, &c. To which there is a rejoinder and issue. Secondly, that he has no lands by descent, except one eleventh part of three certain pieces, which are described in the plea. To which the plaintiff replies, that he has divers lands, other than those specified in the plea, sufficient to satisfy the plaintiff for his damages ; on which there is a rejoinder and issue.
    The other defendant, Jabez Burrell, pleads two like pleas, to which there are like replications, rejoinders, and issues.
    These issues were tried at the sittings here, after the last September term, before Jackson, J., when a verdict was taken for the plain tiff on all the issues, subject to the opinion of the Court ; and to be set aside in whole or in part, or to be altered, as the Court should direct upon the following case reported by the judge.
    The said Abraham Burrell died in November, 1798, leaving eleven children and heirs. In 1809, when the plaintiff was evicted, eight of those children lived in the State of Neiv York. The two defendants lived in this State, and the other child, who had also lived here, was then dead, leaving sundry children who then did and still do live in this State.
    The whole damage sustained by the plaintiff, including the value of the land conveyed to him, and his costs and expenses in the suit brought against him to recover it, were assessed by the jury at $ 1839.77 ; to which they added $529.26 for interest to the time .of their verdict ; making, in the wholej $ 2369.03. It was proved, that the said Abraham died seized of the three parcels of land mentioned in the second plea of the defendants, the value of which is $ 474
    
    
      There is another piece of land, called the home-lot, of the value of $ 1500, of which the said Abraham was seized in his lifetime, and which is now held by the said Jabez; as to which it appeared, that, some years before the death of the said Abraham, it was agreed between him and the said Jabez, that their business of waggon-making and farming * should be carried on by them [*397] jointly, until Isaac Burrell, the youngest son of the said Abraham, should arrive at full age ; the father to have two thirds, 'and the said Jabez one third, of the profits of the said business ; and that, when the said Isaac should come of age, the father should relinquish all concern in said business, and that he and his wife should be maintained by the said Jabez, who was to have the said home-lot as a consideration therefor. The said Abraham continued to labor and attend to the said business until about ten days before his death, and he died before his son Isaac arrived at full age. The said Jabez has ever since maintained his mother, the widow of the said Abraham, she still living with him.
    There was a deed made and signed by the said Abraham, as an escrow, for the conveyance of the said home-lot to the said Jabez ; but the deed was not produced at the trial, and there was no evidence of its delivery, nor of the time or manner of its execution by the said Abraham.
    
    The said Jabez has been in possession of the said lot ever since the death of his father.
    The defendants objected, that the action could not be maintained against them jointly, there being other heirs of the said Abraham Burrell within the State, who are not sued ; and that, if the action is maintainable in this form, they are liable only to the extent of two eleventh parts of the value of the said three pieces of land specified in their respective pleas. They also objected, that the declaration contained no averment, nor did it appear, that administration had been granted of the goods and estate of the said Abraham; and that the time prescribed by statute for the limitation of suits against administrators had not expired.
    At the present term, the parties agreed that no administration had ever been taken upon the estate of the said Abraham Burrell, and that this fact should be considered as if stated in the report of the judge.
    
      Gold and Hulburt, for the plaintiff.
    
      Ashmun and Whiting, for the defendants.
   * Parker, C. J.,

delivered the opinion of the Court. [ *398] Several questions, intended to have been settled ni this action, appear to be superseded by the fact introduced into the report of the judge-, by consent of the parties, at the present term ; namely, that no letters of administration upon the estate of Abraham Burrell bad been prayed for or granted ; but that the same estate remains to this day wholly unadmmistered and unsettled.

Had this fact appeared at the trial, it is probable the plaintiff would have been nonsuited ; as it is very clear, that the action against the heirs cannot be maintained, while the right to take out letters of administration remains open.

Whatever may be the liability at common law of an heir, upon a covenant made by his ancestor, we are persuaded, that, by our statutes for the distribution and settlement of intestate estates, such liability is but contingent and eventual ; depending upon the inability of the creditor, from the nature of his claim, to procure satisfaction during the existence of an administration.

The executor or administrator, by our laws, has the whole control of the real as well as personal estate of the deceased, under the regulations of the probate office, so far as may be necessary to raise a sufficient fund to pay all the just debts. Upon application to the courts of common law, the whole estate, into whose hands soever it may have, fallen, may be sold for that purpose ; the lands of a de ceased debtor being by law bound for the payment of all his debts.

In order to expedite the settlement of estates, as well as to relieve executors and administrators from vexation and uncertainty, the term of four years is limited, within which all creditors, whose debts are due and payable, must present their claims or be for ever barred. Those debts which are due, but not payable within the four years, may be filed in the probate office ; and the executor or administrator may retain assets sufficient to discharge them when [*399] they become due; unless the heir will * take upon himself the payment and give security therefor, in the mannei prescribed by the statute.

But there may be other demands, neither due nor payable during the liability of the executor or administrator ; such as covenants and contracts not broken, but which may afterwards be broken. The provision for these is, that an action may be brought upon them against those who inherit the estate, within one year from the time of the actual accruing of the right of action.

It is obvious, that, in making this provision, the legislature contemplated an expiration of the duty of the executor or administrator; and for that reason gave the action directly against the heir. It is also clear, that, where the right of action accrues within the four years from the time when notice of the administration is given, no action will lie against the heir ; it being the general policy of our laws to secure the settlement of all estates in the probate office by the administrator.

The present case shows, indeed, that there is no person against whom the plaintiff can maintain his action, if not against the heirs. But it also shows that such person may be created, on application by the plaintiff’ himself, as a creditor, to the judge of probate. Administration may be granted within twenty years from the death of ihe intestate. The creditor may himself take out letters of administration, if the kindred of the deceased refuse. His personal estate may be collected ; and, for aught that appears, it may be sufficient to satisfy this demand without disturbing the heirs in their possessions. If not, so much of the real estate as is necessary may be sold. This process is more simple, more convenient, and less prejudicial to es tales, than the bringing of suits against heirs or devisees ; who may be interested in different proportions, and the exact extent of whose liability it may be difficult to ascertain.

We are all clearly of opinion, that, as administration may still be granted upon the estate of Jibraham Burrell, the contingency upon which the heir is liable has not happened, and therefore the verdict in this case must be set aside, and the plaintiff be called.

Plaintiff nonsuit. 
      
      
        Howes vs. Bigelow, 13 Mass. Rep. 384.
     
      
      
        Stat. 1783, c. 36, § 3.
     
      
      
        Stat. 1788, c. 66, §§ 3,4,5; 1791, c. 28
     
      
       The reasonableness of this law is questionable.
     
      
       There seems to be no good reason for the provision of our law limiting the grant ing of original letters of administration to twenty years.
     