
    Phelps v. Miles et al.
    An action in favor of a creditor to a deceased man; will not lie against Lis lieirs or legatees as such.
    Weit op Eeeoe; complaining of a judgment of a justice in an ¡action brought by said Miles et al. fv. Pbelps, as heir to Abel Phelps, upon a bond executed by said Abel to the plaintiff, for £8 19s., dated 29th of August, A. D. 1754; averring that the defendant had received of his father, said Abel, by gift and by legacies, more than-sufficient to pay saidj debt.
    Said Elijah plead in bar — That he did not receive of his father any legacy at his death, as the plaintiffs have alleged; and as to the rest of the declaration he says it is insufficient. To this plea the plaintiffs demurred. The justice gave judgment, that the plea was insufficient; and for plaintiffs to recover £8.
    Errors assigned •— 1st. That no such action is maintainable against an heir or legatee. 2d. If it is, it must appear, that the party has no other remedy. 3d. It appears that said Elijah received no legacy from his father.
    Judgment — Manifest error.
   By the Court.

In England the personal estate only is assets in the hands of an executor, the real estate descends to the heir-at-law, and is liable to creditors by specialty only in the hands of the heir, in case the personal estate proves insufficient.

But by the laws of this state the real estate as well as the personal, is charged with the payment of debts generally, if the personal is not sufficient, the real estate is assets in the hands of the executors, etc. and may be sold by them for the payment of debts; and the heirs cannot hold against such sale; the necessity therefore, of an action against the heirs, is wholly superseded by the law relative to the settlement of estates; but upon no principle are the plaintiffs entitled to a recovery upon this declaration and pleadings.  