
    
      J. McD. Garlick, Adm’r. of Reuben Patterson, dec’d. vs. Joseph Patterson and others.
    
    There being a balance remaining in the Sheriff’s hands, after sale of a part of an intestate’s estate in satisfaction of executions, the administrator was not entitled to the surplus, either in law or in equity,' as assets for payment of debts ; though the creditors themselves might have claimed it at law.
    Heard by Johnson, Ch.
    The defendants were the heirs at law of Reuben Patterson, who died intestate, possessed of real and personal estate, but insolvent to a large amount. At the time of his death there were judgments and executions against him; under which, after exhausting the personalty, the sheriff proceeded to levy on and sell part of the real estate. Of the proceeds of the latter, there remained in the sheriff’s hands a surplus of about ninety-seven dollars.
    The bill, in this case, was filed by the administrator, to make the lands unsold equitable assets for the payment of the intestate’s debts, and to compel the sheriff to pay over to him the balance above mentioned, to be assets .for the same purpose.
    The court, as to that part relating to the balance in the sheriff’s hands, dismissed the bill, on the ground that the administrator had his action at law against the sheriff.
    The complainant appealed and moved to reverse this part of the decree, on the ground that he had no remedy but in Equity.
   Curia, per

Johnson, Ch.

At the hearing, I was inclined, to think that the fund in the sheriff’s hands, although the proceeds of the sales of real estate, had become assets in the hands of the administrator for the payment of debts, and that, therefore, he might maintain an action at lavy tg recover it; but, if he was not entitled to it and had no authority to dispose of it in the regular course of administration, still, the bill could not have been maintained. I therefore dismissed so much of it as relates to this subject.

.Clinton, for the motion. Withers, .contra.

On reviewing th.e case upon the argument here, I am satisfied that there was no foundation for the opinion that the complainant, as administrator, was entitled to the fund. On the death of the ancestor, the legal estate in the realty vests immediately in the heir or distributees, — subject, it is true, to. the payment of debts, but if any thing remains, they, and not the administrator, are entitled to pursue the fund. They are not parties to the bill, and there is no other allegation of the .existence of outstanding debts than the voluntary declarations of the administrator. If there are unsatisfied creditors, they are undoubtedly entitled to the fund; but it is their right, and not the administrator’s, to complain. ’

The motion to reverse the decree of the Circuit Court is therefore dismissed.

Dunkin, Ch. concurred.  