Commonwealth v. Pool , 6 Watts 32 ( 1837 )

The opinion of the Court was delivered by

Gibson, C. J.

The only exception sustained or entitled to remark, was taken to the charge in relation to the lien of the decedent’s debt to Rupp. If money, the representative of land, converted for partition, follows the nature of its principal, the lien is confessedly gone; and it is decisive that the conversion was for distribution among heirs and not creditors. The executor or administrator, having the money in hand, may tmdoubtedly apply it, in the event of deficiency of personal assets, to debts not barred by time; but only because another order to sell would be nugatory; and thus his indirect power over the fund, like the conversion of it, is the creature of necessity. That power is collateral to the purpose, which is not to pay but distribute; and that there is a conversion at all, is a defect that is endured because it cannot be avoided, but it is tolerated no further than is necessary to accomplish the end it was intended to serve, the money being land for every thing else. Equitable conversion is dependent on the particular object to be attained by it, insomuch, that if the property be more than sufficient for it, the surplus passes, at the next transmission, as if it had not been converted at all. Leigh and Dalzell, 2 L. L. 1. A sale for partition, therefore, works a conversion of the form without a transmutation of the essence; and this distinguishes it from a sale for payment of debts, of which transmutation is the primary and entire intent. So far was this distinction carried by us, in Greider v. M’Clay, 11 Serg. & Rawle 224, that even a surplus, after payment of debts, was held to belong to the administrator, and not the heir; in which I thought established analogies were transcended. In every judicial sale for payment of debts, however, the money raised for the object, is in a course of administration, and no process lies against it to enforce or continue a lien on it; but money, raised incidentally by process of partition, is land in another form, and attended with inheritable qualities. In Ferree v. Elliott, 8 Serg. & Rawle 312, we held the transmutation to be incomplete before the confirmation of the sale. Its completion, however, so far as it depends on construction, ought, in justice to the interests affected, to be deferred to the last practicable moment, which I take to be that at which payment over is made, or a security for it is accepted. Being land, then, for purposes of descent, why is not the money land for purposes of lien? If the limitation annexed to the lien by the act of 1797, were exclusively for the security of purchasers, there would be sufficient reason to hold the debts to be an indefinite charge; but as the heirs are equally objects of protection, there is no more reason to dispense with the injunctions of the statute, where the form of the property has been changed, in respect to the one than there is hi respect to the others; in both cases the mischief to be remedied by it is the same. ' And no injustice is done by this to the creditor, who may secure his debt, by simply bringing and prosecuting an action or filing a statement of his -demand within the seven years; in neither case an onerous precaution. The point is entirely within the principle of Kerper v. Hoch, 1 Watts 9; and the debt ought not to have been allowed as a charge on the fund in the hands of the administrators.

Judgment reversed, and a venire facias de novo awarded.