Sample v. Barr

The opinion of the Court was delivered by Woodward, J. — The argument of the plaintiff in error is fully ’ answered by the remark that the 34th section of the Act of 1834, is a rule of action, and not of lien, to creditors,of a decedent. There is nothing about lien in it. That is regulated by other provisions. But if a creditor means' to enforce his lien, if he intends to charge the lands of the decedent, he shall bring in the widow and heirs, and for what ? Not to contest his lien, but his debt; to demonstrate, if they can, that the decedent owed him nothing, and that, for this reason, he has no right to pursue the decedent’s real estate. Debts, when established, are a lien; but, since the Act of 1834, they must be established against widows and heirs, as well as personal representatives, before they can be levied on real estate, and hence their right to contest the claim on original grounds, whether sued with the personal representatives, or brought in afterward by seirefaeias: 8 W. & Ser. 165; 2 Barr 112; 9 W. & Ser. 16. That a purchaser takes no estate where this rule has been disregarded, has been decided in many cases, and in McCraken v. Roberts, 7 Harris 395, was a conceded point. The estate in that case, as here, was devised subject to payment of debts. That is generally the case, but to assume the existence [460] of the debt, which the statute says shall be proved, and then to argue that the will devised only what remained after the payment of debts, is to sacrifice the statute to a petitio principii. It is not necessary to decide the other question in this case. If it were, I should have grave doubts whether, since the legislation of 1834, executors could waive inquisition and confess condemnation, notwithstanding what was ruled in Hunt v. Devling, 8 Watts 403. The judgment is affirmed.