The case was continued for advisement, and the opinion of the Court was subsequently drawn up by
Weston C. J.Executors are to account with the Judge of Probate, who is authorized by law to examine and allow bis accounts. Statute of 1821, c. 51, § 1. As incidental to this power, he has a right to direct the payment and distribution of moneys remaining in his hands, according to law. The first objection to the decree, from which this appeal is made is, that it is not based upon any petition or written motion, setting forth the facts, upon which it is founded. We do not hold that to have been necessary. The will, the probate, and subsequent proceedings in relation to the estate, remained of record in the probate office. These, which were under the eye and inspection of the Judge, would enable him to determine what ought to be the legal distribution of funds, which the executor had unexpectedly realized from a source, which had long been unavailable.
It is further insisted, that he had no jurisdiction of the subject matter. We think otherwise. Whatever may be said of the rights of legatees, in intestate estates it belongs to the Judge of Probate to order and decree, to each person legally entitled, his distributive share in the personal estate. And all the estate, which does not pass by will, is to be distributed in the same manner, as if the estate were intestate. Daniel Walker, the testator, after the payment of his just debts and certain legacies, gave his personal estate to Mary, his wife. She relinquished the provision made for her by the will, so that whatever would have otherwise come to her, is to be distributed as intestate estate. If there is any such estate to be distributed, it is the duty of the Judge to decree distribution. But it was within his jurisdiction to determine, whether there was any such estate. His decree excludes from distribution the funds in controversy, and if this is erroneous, the appeal is rightfully interposed. So far as the appellant is concerned, the question is, whether this estate ought to be distributed; and this is a question of probate jurisdiction. How far, if distribution *211had been ordered, the devisees would have been concluded, or whether they would have had a right to claim the money, as received in trust for them, we are not called upon to determine.
It is contended, that the French claim was of so hopeless a character, that it could not have been regarded by the testator as available property, but that ho must therefore have intended, that the real estate, although specifically devised, should, if necessary, be taken for the payment of his debts; and hence that they have no right of reclamation from this fund. But it does not appear to us to make any difference, whether this is to be regarded as intestate property, because the will was not intended to operate upon it, or because the widow has relinquished her right under the will. We entertain no doubt however, that this property would have passed to his widow, but for her relinquishment. He gave to her his whole personal property, subject to debts and legacies. This would have carried the whole, whatever might have been the contingencies, and however unexpected, by which it might have been affected.
It remains to be decided, whether this is estate, which ought to be distributed, or whether the devisees have the better title to it. And we are of opinion, that the estate of the devisees having been taken to pay debts, for which the personal estate was legally charged, they have a right of reclamation upon the personal estate, which was subsequently received. They stood, by substitution, in the place of the creditors, as a surety does, who pays for the principal. The equity and justice of the case is precisely the same. The right of substitution is examined and recognized in Cheeseborough v. Millard, 1 Johns. Ch. R. 409. So it is also in Hancock v. Minot, 8 Pick. 29. Wilde J. there says, that when heirs pay a debt of the deceased, to prevent an execution from being levied on the real estate, which they inherited from him, or where the land of the intestate is sold by the administrators, for the payment of debts, the heirs have a right to be substituted in the place of the creditors. And there can be no difference in principle between heirs and devisees. From a deficiency in the personal assets, which was then supposed to exist, the estate of the devisees was taken from them, by a license from the Probate Court. It is now ascertained in the same Court, either that there is no deficiency, or that *212it was less than it appeared to be. We entertain no doubt, that the same court may well sanction the payment to them of the personal assets, subsequently received, until they are remunerated for payments made from their funds for debts chargeable upon the personal estate. It is thus administered as it ought to be, for the payment pf debts to the devisees, who are the substitutes of the creditors,