There can be no doubt that the fund in controversy, in equity, must be considered as a substitute for the land in the city of New-York; and that it belongs to those to whom the land was devised, or to those who now represent their rights, exclusively. It is suggested in some of the answers that the real estate in New-Jersey, which was not disposed of by the will of the testator, was also sold for the payment of the debts; that such land descended to all the children of the decedent, and that by the laws of New-Jersey which were then in force, the sons took by descent, from their father, shares which were twice as large as those of the daughters; and that they, or their representatives, are entitled to a part of the fund in controversy, on account of the sale of those lands. The answer to that claim is that the value of the lands which were sold in New-York, far exceeded the amount recovered under the French treaty; and that, by the common law, as between heirs and devisees, the land which is undisposed of by the will of the testator is primarily liable for the payment of the debts of the de *182cedent, and must first be resorted to for that purpose. Here, the whole personal estate of the testator, including the amount subsequently recovered under the French treaty, and the proceeds of the whole real estate undisposed of by the will, were insufficient-to pay the debts of the testator. The devisees of the real estate, in the city of New-York, which was sold to pay debts, exclusively were entitled to the spes recuperando or hope of obtaining satisfaction from the French government, for the testator’s vessels which had been illegally captured and condemned. For if this fund had been received and applied to the payment of the debts, immediately after the death of the testator, the real estate in New Jersey, not disposed of by the will, must still have been sold for the same purpose. Not so, however, as to a portion of the real estate in the city of New-York, which was devised to seven of the testator’s children in equal proportions. For if the part of the personal estate which then consisted in the mere hope of obtaining an indemnity from the French government, could have been realized at that time, a part of the real estate in the city of New-York, which was subsequently sold under the surrogate’s order, would have been saved to the devisees. This brings me to the main question in controversy in this cause. Was the hope or chance of obtaining remuneration from the French government, to which the devisees of the city property were equitably entitled the moment their property was sold under the surrogate’s order, real or personal estate, before the money was actually received by the executors, under the treaty 1
If either of the devisees had died before the actual sale of the property under the surrogate’s order, even after the order for sale had been made, that land would have descended to the heirs at law of the decedent. And upon a sale of such land they would have been subrogated to the rights of the creditors, as to this French claim, which was a part of the personal estate of Isaac Clason. For in that case the real estate of the heirs of the original devisee, and not the real estate of such devisee, would have been sold for the payment of the debt which was chargeable primarily upon the personal estate of the devisor ; *183and the heirs of the devisee would of course be subrogated to the rights of the creditors as to the personal estate, which was primarily liable. So, if a judgment debtor should die leaving personal property sufficient to pay his debts, and the sheriff, having advertised the real estate of the decedent for sale previous to his death, should afterwards proceed and sell the same, after it had become the real estate of the heirs at law, the heirs would be entitled to be subrogated to the rights of the judgment creditor, as against the personal estate which was primarily liable for the payment of such judgment. This being so, the decision of Lord Camden, in Flanagan v. Flanagan, referred to by the counsel of the appellants and by the assistant vice chancellor, was clearly wrong; if the facts of that case are correctly stated by Sir Thomas Sewell in Fletcher v. Ashburner, (1 Bro. C. C. 500.) For, from that statement it appears that the land which was sold under the decree by mistake, was not sold until after the legal title had been cast upon the grandson, as heir; the grandfather, to whom that half of the estate belonged, having died subsequent to the decree, but before the sale. It was the property of the grandson, therefore, which was erroneously sold in that case. Consequently he was not only equitably but legally entitled to the proceeds of the erroneous sale. (Smith v. Kearney, 2 Barb. Ch. Rep. 551.) And the same should not have been decreed to the personal representatives of the grandfather, as they properly would have been had the land been actually converted into personal estate by a sale previous to his death.
In the case under consideration, the real estate had actually been converted into personalty, by the sale, fourteen years be fore the death of Mrs. Graham; although the substituted fund was not really received by the- executors until some time aftei her death. The moment the land was sold, the devisees became entitled to the proceeds of the French claim; not as real estate, but as a personal fund to which they had an equitable right to resort to remunerate them for the loss of the land. The right of Mrs. Graham to one-seventh of the French claim was an interest in personal estate which she had at the time of *184tier death. And her real and her personal representatives being equally volunteers, there is nothing to take this case out of the general rule that they must take their estate of the intestate as they find it.
It is true, if the real estate of the devisee had not been sold under the order of the' surrogate, and she had .continued to own it until the time of her death, it would have descended to her heirs at law, and her husband would have been excluded. But there is no legal presumption that a feme covert who is the owner of real estate will not join with her husband in selling it,, for the purpose of converting it into personalty. And the real estate in this case having been converted into personalty, by operation of law, during her lifetime, it must now be disposed of in the same manner as if she had herself converted it into .personal property.
' The cases referred to in the opinion of the assistant vice chancellor fully sustain his decision in .this case; and I do not see how he could have come to a different conclusion without disturbing principles which have been long settled. The decree appealed' from must therefore be affirmed, with costs.