delivered the opinion of the court.
c- , » . » There can be no doubt but that the executors are responsible ■ " , V ... •’ , , , , . a ■ > , - for the whole avails of the lands sold by them, to Wit, 2,500: dollars; but by the twenty-second section of the .11 act relative to the court of probates,” &c., (1 K. & R. 304. 1 N. R. L. 452.) ' *121it is enacted, “ that the avails of such sale, where the order is to sell ‘part of the real estate only’ shall be considered assets in the hands of the executors or administrators for the payment of debts.” “ But where the whole real estate is ordered to be sold, the moneys arising therefrom shall be brought into the court of probates, or office of the surrogate,” &c.; and there distribution, after public notice, is to be made according to the rule of equitable assets ; that is, among all the creditors, pari passu, without regard to grades, &c.
It appears to me, that, under this statute, the executors are not responsible, at law, immediately to the creditors, where the whole real estate is sold ; and the truth or falsity of the plea of plene administraoit must be determined upon reference to the amount of the inventory only. That was .381 dollars and 87 cents, and it is admitted that the executors have duly paid debts to the amount of 2,000 dollars; and, therefore, the plea is true. Sua executors, they have fully administered. Under the statute, they are trustees, immediately responsible to the surrogate, who commissioned them to sell the real estate; and when the avails are paid to the surrogate, a different rule of distribution prevails from that which governs executors and administrators at common law.
For aught that appears, the executors in this case may have sold the lands on credit, as they are authorized to do by statute, and therefore have not paid over the avails to the surrogate.
Judgment of nonsuit must be entered.
Judgment of nonsuit.