Julian v. Boston, Clinton, Fitchburg & New Bedford Railroad

Soule, J. The demandant has not received, as heir of her father, any real estate. She has not, therefore, received anything which, independently of our statute, would be assets to render her liable to her father’s grantee or his assigns on the covenants in her father’s deed. The same would be true if she had inherited lands lying in the State of New Hampshire. Austin v. Gage, 9 Mass. 395. Our statute provides that, in certain cases, heirs, next of kin and devisees shall be liable to the creditors of deceased persons, to the extent of the personal estate, as well as of the real estate which they have received from the deceased. Gen. Sts. c. 101, §§ 31, 32. This liability by reason of the receipt of personal estate is created by the statute, and exists only in the cases provided for in the statute. It arises, therefore, only after the set-, tlement of an estate by an executor or administrator appointed in this Commonwealth. Until such settlement, it cannot be ascertained that there is not sufficient estate of the deceased within the Commonwealth to pay his debts and satisfy his covenants. Royce v. Burrell, 12 Mass. 395. Hall v. Bumstead, 20 Pick. 2. Russ v. Alpaugh, 118 Mass. 369. Money received in another state, from an executor or administrator appointed there, [557] is no more assets under our statute, than real estate lying in another state and inherited from the grantor in a deed was assets to make the heir liable on the covenants of his ancestor at common law. It follows that the tenant would have no right of action against the plaintiff, on the covenants in her father’s deed, if she should recover her dower as sued for. He therefore fails to establish any facts which bar her right to recover her dower in the lands described in her writ, it being conceded that her husband was seised of those lands during coverture, and that she has not released her right to dower therein. Judgment affirmed.