
    Duval’s Executor v. Trent’s Devisses and Others.
    Decided, Nov. 11th, 1817.
    1. Creditors of Deceased Person — Remedies—Bill in Equity. — A creditor, Raving- obtained judgment against the executors of the surety for the debt, is not bound to take out execution, before he can file his Bill in equity, for an account of the personal and real estates of the principal and surety, and to get satisfaction out of the real, in default of the personal assets.
    2. Same — Same—Same.—Under what circumstances such Bill may be filed.
    See also Foster & wife v. Crenshaw’s ex’ors, 3 Munf. 514.
    William Duval surviving executor of Robert Duval filed his Bill in the Superior Court of Chancery for the Richmond District against the sons and heirs of Peter-field Trent, the devisees and executors of Alexander Trent deceased, Richard N. Venable a debtor of Peterfield Trent, and other defendants. The object of the suit was to get satisfaction of two judgments obtained in the General Court, by the executors of Robert Duval against Peterfield Trent in his life time; whereupon, Executions being issued against his body, his brother Alexander Trent became his surety in two bonds for his keeping within the prison bounds, in which they bound themselves and their heirs: — those bonds were forfeited by the said Peterfield Trent’s escaping from the bounds, and judgments were obtained upon them, in the County Court of Cumberland, against the executors of Alexander Trent, the surety; but no executions were issued upon these judgments. The Bill stated that Peterfield Trent died intestate, without anj’ personal estate, and much involved in debt, and that no person had taken out administration; but that he left real estate more than sufficient to pay off the judgments in question : — that there were no assets of Alexander Trent deceased,, on which executions could be levied; that the said Alexander Trent devised sundry lots of land to be sold by his executors for payment of his debts, and also devised lands to his children: — that the defendant Vena-ble acknowledged himself to be a ''’debtor of Peieiiield Trent, in the sum of 1001. at least, and was willing to pay the same under the direction to the Court. The Complainants therefore prayed an account of the personal and real estates of Peterfield and Alexander Trents; a decree directing their claims to be satisfied out of the real, in default of the personal property, and payment to be made to them of the money in Venable’s hands.
    After answers filed, and sundry proceedings in the cause, Chancellor Taylor dismissed the Bill; — “being of opinion, that the plaintiff’s coming into equity before executions were sued out upon the judgments of the County Court of Cumberland, filed among the exhibits, was premature.”
    Nicholas for the appellants.
    There are several reasons for giving the Court of Equity jurisdiction in this case; 1. as to Peterfield Trent’s estate; a discovery of assets is called for by the Bill,  There was no representative of the personal estate, the same being so obviously insolvent that no person would administer; which is admitted by the answer of the children. The suit was brought in equity to charge the real estate. Conflicting claims of mortgagees were also to be adjusted; and the Court of Chancery delights to prevent circuity of action.
    2. As to Alexander Trent’s estate. The Bill charges a deficiency of personal, and a devise of real estate to pay debts. The Executors by their Answer refer to an Account of the assets which came to their hands, taken by a Commissioner in the suit of Hill v. Archer and others in the same Court. The Chancellor ought either to have been satisfied with that Account, or directed another to be taken.
    Peterfield Trent was the real original debtor. A Court of Equity ought not to compel a Creditor to go against a surety for satisfaction. Because we had got judgments against the executors of Alexander Trent the surety, the Chancellor decided that we were bound to look to those judgments, though we filed this Bill endeavour-ing to get satisfaction out of the principal. This was against the *'principles 0f Equity, and a harsh application of the rule that relief Will not be given in Chancery when it can be had at law.
    3. A final decree should now be directed, as to the money appearing by Venable’s answer to be in his hands. If not, the Court ought not to dismiss the Bill, but to send the cause back for farther proceedings.
    William Hay, jr. for Alexander Trent’s executors.
    I should be glad if the Court would make ’ such decree as Mr. Nicholas suggests.
    
      
       Creditors of Deceased Person — Remedies.—In Hale V. White, 47 W. Va. 700, 35 S. E. Rep. 885, it is said: “The present remedies of the creditor of a deceased person are as follows. (1) An action at law against the personal representative. Section 19, c. 85, Code. (2) A separate bill in chancery to compel payment of his individual debt out of the funds in the hands of the personal representative, and discover the funds or estate liable to the payment thereof. Story, Eq. PI. §§ 99-102: 2 Tuck. Bl. Comm. 425: White v. Bannister’s Ex’rs, 1 Wash. (Va.) 168; Duval v. Trent, & Munf. 29: Clarke v. Webb, 2 Hen. & M. 8. (3) A bill in behalf of himself and other creditors to ascertain and distribute both the real and personal estate. This is subject to the right of the personal representative to bring such suit within six months from his qualification. Section 7, c. 86, Code. (4) A, bill against an heir or devisee because of assets by descent. Section 6, c. 86, Id.” To the same effect, the principal case is cited in Poling v. Huffman, 39 W. Va. 323, 324, 19 S. E. Rep. 422, 423.
    
    
      
       White, Whittle & Co. v. Bannister's ex’ors, 1 Wash. 168.
    
   JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion, that the Decree dismissing the Bill is erroneous ; — and that, instead thereof, the Court of Chancery should have decreed to the appellant, as Executor, the sum admitted by the defendant Venable to be due to the estate of Peterfield Trent deceased; subject, however, to any preferable claims thereto which may exist in favour of any other creditor or creditors of the said P. Trent deceased, and under such conditions, to ensure the eventual forthcoming of the same, as to the said Court might seem proper. The Court is farther of opinion, that, as to the residue of the sums now in controversy, an account should have been taken of the personal and real estates of P. and A. Trents respectively, and that as much thereof as is not bound by superior claims should have been held liable to make good the same; applying the personal estate, if any, in the first instance.

The Decree is therefore reversed with costs, and the cause remanded, to be finally proceeded in pursuant to the principles of this Decree.  