When exe

cutor to

tion, &c.

$114. Any subsequent executors or administrators shall have execution upon any judgments that may have been recovered by any have execuperson who preceded them in the administration of the same estate, within one year from the time of the docketing of such judgment, without reviving the same by scire facias, and without any other proceedings to give notice to the defendant in such judgment.

rived from

butted.

$115. In any action against executors or administrators, in which Evidence dethe fact of their having administered the estate of their testator or inventory intestate, or any part thereof, shall come in issue, and the inventory may be reof the property of the deceased, made and filed by them, shall be given in evidence, the plaintiff or defendant may rebut the same by proof:

1st. That any property or effects have been omitted in such inventory, or were not returned therein at their true value.

2d. That such property has perished or been lost, without the fault of such executor or administrator, or that it has been fairly sold by them at private or public sale at a less price than the value so returned; or that since the return of the inventory such property has deteriorated or enhanced in value.

when charg

$116. In every such action the defendant shall not be charged Executors, for any demands or rights in action specified in their inventory, un-ed with de less it appear that such demands or rights have been collected, or might have been collected with due diligence.

mands.

$117. The two last sections shall not be construed to vary any Limitation. rules of evidence in respect to any proof which an executor or administrator may now make by law.

not liable in

$118. No person shall be liable to an action as executor of his Executor own wrong, for having received, taken or interfered with the proper- his own ty of a deceased person; but shall be responsible as a wrong-doer in wrong, &c. the proper action to the executors, or general or special administrators of such deceased person, for the value of any property or effects so taken or received, and for all damages caused by his acts to the estate of the deceased.

Administra. tor may

error in cer.

$119. When administration of the effects of a deceased person, which shall have been left unadministered by any previous execu- bring writ of tor or administrator of the same estate, shall be granted to any per- tain cases. son, such person may bring a writ of error upon any judgment obtained against such previous executor or administrator of the same estate, or against the original testator or intestate, and shall defend any writ of error brought upon any such judgment; and shall have the same remedies in the prosecution or defence of any action by or against such previous executors or administrators, and for the collection and enforcing of any judgment as they would have by law.

against exe

ferees.

$120. Whenever an action shall be brought by any legatee Actions against an executor or administrator, and the want of assets to pay cutors refer all the debts of the deceased, and all the legacies bequeathed by him red to reor any of them, shall be pleaded, the cause shall be referred to referees, to examine the accounts of the defendants, and to hear and report upon the allegations and proofs of the parties in respect to such plea.

how to pro

S 121. Such referees shall proceed in the manner provided by law Referees. in respect to referees of actions, in which there is a long account; ceed. and all the provisions of law in relation to such referees shall apply

Costs, how

paid.

Plaintiff fail. ing to reco

of assets.

to referees appointed pursuant to the last section, and to their proceedings and the judgment thereon.

$122. In all cases the costs of the action, or of either party, shall be paid as the court may direct, out of the estate of the deceased, or by the defendants personally, if their refusal to pay such legacy, or their defence of the action shall appear to have been unreasonable.

S 123. If the plaintiff in any such suit shall recover only part of ver for want his demand for the want of assets in the hands of the defendants, and assets shall afterwards come to their hands, he shall have a new action for the recovery thereof, or for the proportionate share thereof, to which he may be entitled; and the same proceedings, in all respects, shall be had in such action.

Actions

against relatives, how brought.

What recovered in

$124. Actions against the next of kin of any deceased person to recover the value of any assets that may have been paid to them by an executor or administrator, may be brought against all of the said relatives jointly, or one or more of them, for the amount received by each of them.

$125. In such action the plaintiff shall be entitled to recover the such action. value of all the assets received by all the defendants in the suit, if necessary to satisfy his demand; and the amount of the recovery shall be apportioned among the defendants, in proportion to the value of the assets received by each; and no allowance or deduction shall be made from such amount on account of there being other relatives to whom assets have also been delivered.

Relatives may compel

to contribute

$126. Any of the next of kin, against whom a recovery shall be each other had pursuant to the preceding sections, may maintain an action against the other relatives of the testator to whom any such assets may have been paid, jointly, or against any of them separately, for a just and equal contribution; and shall be entitled to recover of each defendant such an amount as shall be in the same proportion to the whole sum collected of the plaintiff, as the value of the assets delivered to such defendant bore to the value of all the assets delivered to all the relatives of the deceased.

Actions

against lega. tees, how brought.

What plaintiff must show to recover.

Amount re. covered,

$127. Actions by creditors of any deceased person to recover the value of any assets that may have been paid by any executor or administrator to any legatees of their testator, may be brought against all of such legatees jointly, or against any single legatee separately. $128. In such action, the plaintiff shall not be entitled to recover unless he shows,

1st. That no assets were delivered by the executor or administrator of the deceased to his next of kin; or,

2d. That the value of such assets has been recovered by some other creditor; or,

3d. That such assets are not sufficient to satisfy the demands of the plaintiff:

And in the last case, he shall be entitled to recover the deficiency. $129. The whole amount which the plaintiff shall be entitled to how appor recover, shall be apportioned among all the legatees of the testator, in proportion to the respective amounts of their several legacies; and such proportion only shall be recovered of each legatee.

tioned.

Costs, how

apportioned.

$130. If any action be brought against several relatives jointly, or against several legatees jointly for assets delivered to them, if a recovery be had against them, the costs of such action shall be appor

tioned to the several defendants, in proportion to the amount of the debt or damages recovered against each of them.

what to ex

$131. In every such action, the judgment shall express the Judgment, amount recovered against each defendant, for debt or damages, and press. costs; and the execution thereon shall correspond to such judgment.

one defend

$132, In case of any judgment against several relatives of a tes- Payment by tator, or against several legatees, the payment or satisfaction of the ant to dis amount recovered against any one of the defendants, shall discharge charge him. such defendant, and shall exonerate him and his property from such judgment, and from the execution thereon.

legatees to

liable for debts.

S133. The heirs of every person who shall have died intestate, Heirs and and the heirs and devisees of any person who shall have died after what extent the making of his last will and testament, shall respectively be liable for the debts of such person, arising by simple contract or by specialty, to the extent of the estate, interest and right, in the real estate which shall have descended to them from, or been devised to them by, such person.

$134. But such heirs shall not be liable for any such debt, unless Ib. it shall appear, that the personal assets of the deceased were not sufficient to pay and discharge the same; or that after due proceedings before the proper probate court, and at law, the creditor has been unable to collect such debt, or some part thereof, from the personal representatives of the deceased, or from his next of kin or legatees.

$135. In case the personal assets were sufficient to pay a part of b. such debt, or in case a part thereof shall have been collected, as in the last section mentioned, the heirs of such deceased person shall be liable for the residue unpaid or unsettled.

$136. But the two last sections shall not affect or impair the lia- 1b. bility of heirs for any debt of their ancestor, where such debt was by his will expressly charged exclusively upon the real estate descended to such heirs; or where such debt is, by such will expressly directed to be paid out of the real estate descended, before resorting to the personal estate.

quired to

$137. It shall be incumbent on the creditors seeking to charge Facts reany heirs, to show the fact and circumstances herein required to ren-charge der them liable.

heirs.

tives, &c. lia

$138. In cases where the next of kin, heirs and devisees, are lia- When relable for the debts of their ancestors as herein provided, they shall give ble, prefepreference in the payment of the same, and shall be liable therefor rence given in the following order:

1st. Debts entitled to a preference under the laws of the United States.

2nd. Judgments docketed, and decrees enrolled against their ancestor, according to the priority thereof respectively.

3d. Recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts.

in payment.

$139. No preference shall be given by any next of kin, legatee, ib. heir or devisee, to any debt over other debts of the same class, except those specified in the second class of the last section; nor shall a debt, due and payable, be entitled to a preference over debts not due; nor shall the commencement of a suit against any next of kin, legatee, heir or devisee, for the recovery of any debt, entitle such debt to any preference over others of the same class.

Recovery

against rela

be had in

certain ca. ses.

$140. The next of kin, legatees, heirs and devisees may show tives not to that there are debts of a prior class unsatisfied, or that there are unpaid debts of the same class, with that on which the suit is brought, and if it appear that the value of the personal property delivered to them, or of the real estate, descended or devised to them, does not exceed the debts of a prior class, judgment shall be rendered in their fa

When property will

pay certain debts, &c.

When prior

recovered.

vor.

S141. If the personal property delivered to such next of kin or legatee, or if the real estate descended or devised to such heirs and devisees, except [exceeds] the amount of debts which are entitled to a preference over the debt for which the suit is brought, judgment shall be rendered against them only for such a sum as shall be a just proportion to the other debts of the same class with that on which the suit is brought.

$142. If any evidence [debt] of a prior class to that on which the debts to suit is brought, or of the same class, shall have been paid by any next of kin, legatees, heirs or devisees, they may give evidence of such payment; and the amount of debts so paid, shall be estimated in ascertaining the amount to be recovered, in the same manner as if such debts were outstanding and unpaid, as prescribed in the two last sections.

Heirs, how prosecuted.

When suits

layed.

S 143. The heirs of any person who may be liable to any creditor of such person in consequence of lands having descended to them, shall be prosecuted jointly in a court of equity, but shall not be liable to any suit in a court of law.

$144. Suits against heirs or devisees shall not be delayed, nor not to be de- shall the remedy of the plaintiffs be suspended by reason of the infancy of any such heir or devisee; but guardians to defend their rights in such suits, shall be appointed, as in other cases.

Real estate,

ed.

S 145. In any bill filed against heirs to charge them on account how specifi- of any lands and tenements or hereditaments descended to them, the complainant shall specify with convenient certainty the real estate so descended.

What heir

may show in defence.

Value of

lands, ascertained.

Court to decree how

levied.

S 146. In such suit any heir may show that at the time of the commencement thereof he had nothing by descent, or that he had not sufficient to satisfy the complainants demand.

S147. If it appear that any lands or tenements have (have) descended to such heir, the court shall inquire and ascertain the value thereof, either by reference to a inaster or by awarding an issue for that purpose.

S 148. If it appear that the lands, tenements or hereditaments so debt to be descended, were not aliened by such heir, at the time of the commencement of the suit; or if the heir confess the action, and show what lands, tenements or hereditaments have descended to him, the court shall decree that the debt of the plaintiff, or the proportion thereof which he is entitled to recover, shall be levied of such real estate so descended, and not otherwise.

Such decree

to have preference.

Heir, when personally liable.

$149. Every final decree rendered in such suit shall have preference as a lien on the real estate descended, to any judgment or decree obtained against such heir personally, for any debt or demand in his own right.

$150. When it shall appear in any such suit, that before the commencement thereof, any such heir has aliened the lands, tene

ments or hereditaments descended to him, or any part thereof, he shall be personally liable for the value of the estate so aliened, and judgment shall be rendered therefor, and execution awarded, as in suits for his own debts.

entitled to

$151. In such cases, the preference herein before declared, in re- What debts spect to demands against the ancestor of such heir, shall apply, and preference. which [such] heir may show the same matters herein before allowed, and the same proceedings and judgment shall be had thereon.

ed, not af

$152. But no lands, tenements or hereditaments, aliened in good Lands alienfaith by any heir, before any suit commenced against him, shall be fected by deliable to execution, or in any manner affected by a decree against such heir.

cree.

covered

divided,

S 153. In suits brought against several heirs jointly, or several de- Amount revisees jointly, the amount which the plaintiff shall be entitled to re- against cover shall be apportioned among all the heirs of the ancestor, or heirs, how among all the devisees of the testator, in proportion to the value of the real estate descended to such heirs, or devised to such devisees respectively, as the case may be, and such proportion only shall be recovered of each heir, or of each legatee.

$154. The costs of such suit shall be apportioned among the se- Costs, how veral defendants, in proportion to the debt or damages recovered apportioned. against each of them; the decree shall express the amount recovered against each defendant for debt, or damages and costs; and the execution issued thereon, shall conform to such decree.

ted against

$155. When a decree shall be rendered against any heirs or de- When devisees who are infants, no execution issued thereon shall be executed tree execu against them, until the expiration of one year after the rendition of infants. such decree; but such execution may be executed against any defendants in the same suit, who are of full agé.

Names en

$156. The solicitor issuing an execution in every such case, do n shall endorse thereon the names of the defendants, who are infants, execution. and shall direct the sheriff not to execute the same against such infants, until the time specified in the last section.

liable to cre.

lator.

$157. Devisees made liable to [by] the foregoing provisions to the Devisees creditors of their testator, shall not be so liable unless it shall appear that ditors of teshis personal assets and the real estate of the testator, deceased [descended] to his heirs, were insufficient to discharge such debt; or unless it shall appear that after due proceedings before the proper probate judge and at law, the creditor has been unable to recover such debt, or some part thereof, from the personal representatives of the testator, or from his next of kin or legatees, or from his heirs.

liabilities.

S 158. In either of the cases specified in the last section, the amount Extent of of the deficiency of the personal assets, and of the real estate descended, to satisfy the debt of the plaintiff, and the amount which such plaintiff may have failed to recover from the personal representatives of the testator, his next of kin, legatees and heirs, may be recovered of the devisees of such testator, to the extent of the real estate devised to them respectively.

last two sec

S 159. But the two last sections shall not impair or affect the lia- Limitation of bility of devisees for any debt of their testator, where such debt was tions. by his will expressly charged exclusively upon the real estate devised, or made payable exclusively by such devisee by the terms of the will,