After a continuance, for advisement, the opinion of the Court was prepared by
Weston C. J.The authorities, bearing upon the questions raised, have been fully presented by counsel. In several of the cases cited for the demandant, the Court speak of the lien in favor of creditors, upon the estates of deceased debtors, and the liability of such estates, as discharged and gone after the lapse of lour years. This immunity is not based upon any direct or express provision of law. It results, as it is stated, from the limitation of that period^ in favor of executors and administrators, in suits brought against them as such, which is regarded as interposed for the bene*324fit of heirs, devisees and purchasers, and to facilitate the final settlement of estates.
In pursuance of. the same policy, courts in their discretion, generally refuse to grant license to sell the real estate of persons deceased, unless application for this purpose be made as soon as may be, after the expiration of the four years. The generality of the language used by the Court, must be restricted to the ground upon which it was placed, namely the limitation of suits against executors and administrators, and the rule established by the courts, to guide their pwn discretion. It does not apply to cases, where the limitation could not be successfully interposed. As for instance, where the administrator had not given notice of his appointment, and that he had taken upon himself that trust, which was the case in Emerson v. Thompson et al. 16 Mass. R. 429. This is admitted to be an exception, directly within the statute. And if other exceptions to the operation of the statute arise, upon a fair and just construction, the lien upon the estates of persons deceased, and their liability to be taken for the payment of debts, may be extended and continued.
The same effect is produced, where the courts, for just cause, relax the rule, by which they have limited their discretion; as in the case of Richmond, adm’r, pei’r, 2 Pick. 567. There the petition was presented and license granted, two years after the limitation of four .years had expired. And although his account, against the estate of the deceased, was not presented, until five years after he had taken upon himself the trust, and consisted in part of moneys paid, on account of the debts of his intestate, the statute limitation was held not to apply to the case.
The statute was pleaded in the suit, which preceded the judgment and levy, under which the tenant holds; but it was not sustained by the Court. The execution, which issued upon that judgment, did by law run against the goods and estate of the deceased. Statute of 1821, ch. 52, <§> 19. It was no longer under the control, or subject to the discretion of the Court. In Emerson v. Thompson et al., Jackson J. says, the Court may, for just cause, refuse to grant a license to sell the land of a person deceased, for the payment of his debts; but they cannot prevent the creditor' from taking it in execution, according to the right secured to him *325by statute. And this right may be exercised, notwithstanding there may have been a division of the land, among the heirs, or a conveyance made to third persons, as has been settled by the authorities, cited for the tenant.
The judgment against the goods and estate of the deceased, must be regarded as evidence that he was indebted, unless it can be impeached on the ground of fraud or collusion, or perhaps of culpable omission or negligence in his administrator, which is of the same character. Thus where the administrator neglected to interpose the statute limitation of four years, where it would have been a good bar, his sureties were permitted to do so, in an action against them, upon the administration bond. Dawes Judge v. Shed et al. 15 Mass. R. 6.
In the case under consideration, there is no evidence of collusion or negligence in the administrator d.e bonis non, of the goods and estate of the elder Nowell. It is not suggested, that any defence existed, of which he could have availed himself. The statute limitation, upon which he relied, was overruled by this Court, sitting in full bench.
If there was no fraud or negligence in the administrator, which does not appear, we are aware of no reason why the estate of the deceased, levied upon, was not as liable to be taken, according to the precept in the execution, as in other suits. In all such cases, the heirs at law are disinherited, by the paramount claim of the creditors, although no parties to the actions, in which these claims are established. The administrator represents the estate, which is bound by judgments in suits defended by him, unless where he acts collusively or fraudulently.
The opinion of the Court is, upon the facts reported, that the tenant is entitled to judgment.