Cardwell's Heirs v. Brodic ( 1805 )

From Hillsborough. The act of 1784, ch. 11, was passed to remove doubts "which were entertained whether the real estates of deceased debtors in the hands of their heirs or devisees should be subject to the payment of debts upon judgments obtained against the executors or administrators, and to direct the mode of proceeding in such cases." It is declared in section 2 of this act, "that in all cases at law where the executors or administrators of any deceased person shall plead fully administered, no assets, or not sufficient to satisfy the plaintiff's demand, and such plea shall be found in favor of the defendant, the plaintiff may proceed to ascertain his demand and sign judgment; but before taking out execution against the real estate of the deceased debtor, a writ or writs of scire facias shall and may issue, summoning the respective heirs and devisees (99) of such deceased debtor to show cause why execution should not issue against the real estate for the amount of such judgment, or so much thereof as there may not be personal assets to discharge; and if judgment shall pass against the heirs or devisees, or any of them, execution shall and may issue against the real estate of the deceased debtor in the hands of such heirs or devisees against whom judgment shall be given as aforesaid." The Legislature intended that the real estates of deceased debtors should not be subject to the payment of their debts until the personal estate was exhausted; and the Court have no power to award execution against the real estate in the hands of the heirs or devisees until "it shall be found upon the plea of the executors or administrators that they have fully administered, have no assets, or not sufficient to satisfy the creditor's demand." The judgment, therefore, rendered against the plaintiffs in error was not rendered according to the mode of proceeding directed by the Legislature. It is erroneous, and must be reversed.