Mitcheltree's Administrator v. Veach

The opinion of the court was delivered by Lowrie, C. J. With all the changes which we have made in our common law actions against executors and administrators for [456] debts of a decedent, there is still some difference between them and the equitable proceeding by creditor’s bill for an account and settlement of the estate, which is substantially the mode in which we pay debts of decedents in the Orphans’ Court. The former proceeding is still in form a personal action, and retains some of the substance of one, while the latter is rather a proceeding in rem; that is, against the decedent’s estate, out of which the complainant demands payment. Now it is plain enough that this claim against the estate, founded on the statutory lien given to the creditors of a decedent, does not keep alive the right of action at common law in personam. An assignment for the benefit of creditors does not stop the running of the statute; yet the assignee cannot set up the statute when distribution is claimed from him, on a debt not barred at the time of the assignment. A debt secured by a pledge or lien may be barred by the statute, without divesting the security which the lien affords. The court below fell into error in applying the rule of McClintock’s Appeal, 29 State Rep. 360, by overlooking this distinction. Judgment reversed, and a new trial awarded.