Nokes v. Smith

M’Kean C. J. The rules in England do not apply to the * case now before us. Our own acts of assembly must determine the question. On the first settlement of the province, it was established, that the lands of deceased persons should be liable to the payment of their debts. This continued until the act of 4th Annse, when a provision was made by the legislature as to the mode, by which the surplus of real estates was to be divided, after payment of debts and funeral expences. In the infancy of the province, the bulk of the property consisted of lands; personal property bore but a small proportion thereto, and creditors necessarily must have relied on the real estates of deceased persons as their security. The universal opinion has been, that the lands of decedents were chargeable with the payment of their debts. Whatever my sentiments might be, if it were a recent case, I am concluded by the general opinion, the unsettling whereof would be attended with dangerous consequences. The general idea of the bar has been as I have stated, and we have been furnished with a copy of the opinion of Mr. Chew on this point, on a case put by the creditors of John Jones, who died some years before the revolution. He there says, ‘ ‘ The constant “ construction of the act of-4th Annse has been, that until [243] “payment of the just debts of an intestate, no descent or distribution can give the children an indefeasible right in the “lands of the intestate; but they, and all purchasers under “them, take the lands under the act, subject to the payment “of the intestate’s just debts, and the practice has gone ac- ‘ ‘ cordingly. ’ ’ The personal estate should be first applied to the payment of the debts of the deceased. When this fund is deficient the lands are liable. The arguments from inconvenience hold strongly on both sides of the question; but this is a matter of mere legislative wisdom, and does not belong to us. Shippen, J. Having heretofore delivered my sentiments on this subject, when sitting as president of the Court of Common Pleas, and those sentiments being in print, (Dallas 481,) it is the less necessary for me to be very particular in delivering my present opinion, especially as I have seen no reason to alter it. Our ancestors in Pennsylvania seem very early to have entered into the true spirit of commerce, by rejecting every feudal principle that opposed the alienation or partibility of lands. While, in almost every province around us, the men of wealth or influence were possessing themselves of large manors, and tracts of land, and procuring laws to transmit them to their eldest sons, the people of Pennsylvania gave their conduct and *laws a more republican cast, by dividing the lands, as well as personal estate, among all the children of intestates, and by subjecting them, in the fullest manner, to the payment of their debts. There was a time, within m3' remembrance, when.lawyers held that common recoveries for docking estates tail could not be legally suffered in Pennsylvania; and the first that was suffered, will be found among the records of the Common Pleas, in my hand writing, when a young student. The practice, however, was not generally adopted till the passing of the act of assembly in 1750, which expressly authorized it. As lands, by means of intails, were before this time daily rendered unalienable, the only way of docking them was by the instrumentality of the very acts of assembly under our consideration; and nothing was more common, and it was every day’s practice, for lawyers to advise the instituting suits against the executors of the testator, (perhaps many years after his death,) for the sole purpose of taking the intailed lands in execution, and barring the intail. Many lands are now held under these titles. There was then but one opinion upon the subject. The acts of assembly were taken in the utmost latitude, for the purpose of making lands responsible to creditors; for other purposes, they were suffered to retain the qualities of real estate. The)' were bound from the time of the judgment, not execution. The)' never went into the hands of [244] executors, or administrators, as chattels; although, for the purpose of making them answerable to creditors, they were by a kind of fiction expressed in the executions to be in the hands of executors and administrators to be administered. They either went into the hands of the heirs by descent, or to devisees under the will of the testator; and then they waited the event of a settlement of the deceased’s debts. No one ever imagined, that by a hasty sale the creditors could be stripped of their security in the land. This produced caution both in the heirs and the purchasers; and, when doubts occurred, an indemnity was expected, or what was more common, a sale by the sheriff took place. No mischiefs were formerly experienced from this construction of the law. It is said that lately, since our population has increased, and of course the transactions of family concerns become less notorious, some inconveniences have arisen to purchasers. This may shew the necessity of legislative interference, in order to limit the time of the lands remaining liable, but cannot be a reason for a court of justice to overturn a construction, which has prevailed for near a century past in Pennsylvania. Cited in i Y., 388; 3 S. & R., 455 ; 9 S. & R., 331; 11 S. & R., 4315 *3 S. & R., 383 ; 5 Watts, 367 ; 15 Pa., 447 ; 77 Pa., 260. Messrs. Wilcocks and Rawle, pro quer. Messrs. Ingersoll and Sergeant, pro def.