
    Philip Wootering against Deborah Stewart, Blair M’Clenachan, Francis West and William Tilghman, executors of Walter Stewart.
    Asset s arising from the salos of real as well as porsonal estates of deceased persons, shall be averaged amongst the creditors, after payment of the debts entitled to priority, under the 4th section of the act of 19lh April 1191.
    The judgment creditor obtains no preference by 1ns judgment against executors or administrators.
    On the 19th March, 1798, judgment was entered for the plaintiff, “ he to be entitled to his dividend of assets, when ascertained by auditors in the Orphans’ Court in case any shall b,e found.” In conser quenee hereof, the plaintiff issued a testatum ji. fa. to Lycoming county, whereupon several tracts of land were levied, and afterwards sold by the sheriff of that county. The plaintiff insisted, that the moneys arising on the salos, after deducting the costs, should be applied to the credit of his judgment.
    In December term, last, a rule was made at the instance of the executors, to show causo, why the money levied or to be levied by, the sheriff of Lycoming county, either of the real or personal estate of Walter Stewart, on the execution issued in this cause, should not he paid by the sheriff to the prothonotary of this court, to be by him: distributed among the creditors of the said Walter, according to the terms on which the judgment was entered, as this court shall hereafter: direct. Greneral Walter Stewart died in June, 1796.
    Mr. Kawle for the plaintiff,
    now showed cause against the rule. and contended that the 14th section of the act of 19th April 1794, (3 Dall. St. Laws 527) directing an average of assets, after payment of those debts entitled to priority, amongst the other creditors pro rata, merely respects the personal property and hot the lands of the deceased. No creditor will be at the trouble and expense of taking out executions, and searching for lands, whereon the same may be levied, unless he is to receive some particular benefit therefrom. , He will not gratis become the agent of the other creditors, to guard their interests by his vigilance. No powers are vested by law in executors, to convert their testator’s lands into cash to pay the debts. To effect this, they must possess such authority under the will. It is true, where an intestate leaves real property and lawful issue, but not a sufficient personal estate to pay his debts and maintain his children, the administrator may mortgage the lands for one third of their value, or sell and convey such parts thereof as the Orphans’ Court may direct for those purposes. But even this provision is rendered abortive, in the case of an intestate leaving issue, unless there is sufficient property, personal or real, to discharge the debts. No appropriate mode therefore being pointed out by the act, whereby on the deficiency of personal assets, the real estate of a deceased person may be changed into money by the act of the executor or administrator, for the purpose of average amongst creditors of a certain description, it would seem to follow, that the assets to be averaged must be confined to those, which are merely personal.
    Mr. W. Tilghman for himself and the other executors,
    was prepared to answer the foregoing remarks, but was interrupted by the court, who observed, that the doctrine asserted by the plaintiff would totally defeat the true meaning and spirit of the 14th section of the law in question. The object intended to be accomplished was, that after the payment of certain specified debts of a person deceased, other debts, should be paid in certain equal proportions in the pound, as far as the assets would extend. By the policy of this government, shortly after it became a colony, decedents’ real estates became a subsidiary fund for the payment of their debts, and were subjected thereto in the hands of heirs and devisees^ and those claiming under them. So far has this principle been carried, that in the case of a sheriff’s sale of lands under a levari ferias, on a mortgage executed by the husband alone after marriage, the claim of dower of the widow has been held to be barred. Why then under this marked system should there be a different rule as to assets arising from the sale of real and personal estate under the provisions of this law ? Why should a creditor in the first instance take the whole of the property to the disadvantage of the rest of the creditors, and in the latter share it proportionably with them ?
    The interests of the different creditors will readily furnish a mode whereby the lands of persons who have died with or without wills, may be turned into cash, and the expense attending the same will be naturally disbursed thereout in the first instance. Little danger is to be apprehended from all the creditors refusing their aid to bring about a sale of lands, when they are once assured that it is from those funds they only can expect the payment of any part of their demands.
   Let the rule be made absolute.  