Hawkins v. Hulburd ( 1840 )

Wood, J.

It is admitted, in this case, that Cyrus Hulburd, the intestate, died in May, 1828. At his death, he had an incontestable equity in the lands entered by him, which, under the provisions of the acts of Congress, had he lived, he might have made available, until July 4, 1829. By the act of May 23, 1828, passed one day after Hulburd’s death, that right was made available in scrip. This scrip was to be issued “ to the person, or persons, legally entitled to the benefit of” the provisions contained in the act, “ his, her, or their legal representatives or assigns.” Harriet Hulburd, the heir at law, availed herself of these enactments, and the scrip was issued to her, which was afterward converted into money. She received it, not as an original right, conferred upon her by the act of Congress, but as a right conferred upon the estate to which she stood in the relation of heir at law. In other words, it is clear that she is in possession not by purchase, but by descent. It follows, then, that the scrip, though issued to the heir, is assets which belongs to the estate. It has descended, liable to the payment of debts of the ancestor, and the heir must account to the administrator for the avails; for the heir holds property descended, in trust, for the benefit of creditors, as far as the liabilities of the ancestor extends

Decree for the complainant.