delivered the opinion of the court,
Section 10, Act of April 13th 1843, Pamph. L. 235, subjects all legacies given and lands devised to any person, and any interest which any person may have in real or personal estate of any decedent, by will or otherwise, in the hands or possession of the executor or administrator, or in whosesoever hands the same may be., except legacies and distributive shares due married women, to attachment and levy in satisfaction of any judgment in the same manner as debts due are made subject to execution by the twenty-second section of the Act of June 16th 1836, Pamph. L. 765. Said twenty-second section makes debts due to any defendant liable to execution like other goods and chattels. As debts cannot be taken in same mode as a house or leasehold, the thirty-fifth section declares, “ the same may be attached and levied in satisfaction of the judgment in the manner allowed in the case of a foreign attachment.” In the case of personal property, a foreign attachment is served by the officer going to the person in whose hands or possession the defendant’s goods or effects are supposed to be, and then and there declaring, in the presence of one or more credible persons of the neighborhood, that he attaches the said goods or effects : Act June 13th 1836, sect. 48, Pamph. L. 580. The forty-ninth section directs how the writ shall be executed; ahd the fiftieth, what the sheriff shall do after the service, in case of real estate. By Act of 1849, sect. 11, Pamph. L. 620, process in the nature of attachment may be issued at any time after the interest of the defendant in the real or personal estate shall have accrued by reason of the death of the decedent.
The statutes have not confounded legacies and devises, nor the respective interests of one in the realty and personalty of an intestate, but have made each and all liable to attachment upon execution in satisfaction of a judgment. “Legacies given” and *192“ lands devised” are artistic phrases, meaning different things, and neither includes the other. And so an interest in the goods and chattels of an intestate, is quite different from an interest in his lands.
Immediately after the death of a decedent his heir takes the real estate in possession, and, as if he held by purchase, he may sell and convey, or encumber it, or his judgment-creditor may cause it to be seized in execution. The administrator of an intestate has no right of possession or custody of his lands. The possibility that the primary fund may be insufficient for payment of the decedent’s debts, does not prevent possession and control of the land by the heir until adjudication and conversion by proceedings in the proper court. One who acquires the title of the heir stands in his place and holds subject to liability for debts of the intestate, if there be not enough personalty to pay them.
Here the praecipe directed an attachment of the moneys and interest of the defendant in the hands of the administrator, and the writ rightly followed the praecipe. Obeying his writ, the sheriff attached “ all the goods and chattels, debts, effects, credits, legacies, distributive shares of the defendant” in the hands, possession or custody of the administrator of Jacob Harwi, deceased. Upon the admitted facts the administrator was not in possession of the lands, and no service was made on the occupants. The personal estate of the decedent is more than sufficient for payment of his debts, but this fact matters little, if anything. On its face, the writ embraces nothing but the defendant’s interest, or his distributive share, in the personal assets in the administrator’s hands ; and the return of service shows no attachment of lands or interest therein. Clearly, the writ and service did not bind the defendant’s interest in the real, estate, and it is unnecessary now to decide how the writ for such purpose should be executed. The record fails to show an attachment or levy on lands or interest therein, and consequently there is not a semblance of notice to subsequent purchasers or encumbrancers.
The decree of the court below seems to rest mainly on the authority of Straley’s Appeal, 7 Wright 89, and Neely v. Grantham, 8 P. F. Smith 433. The former was not referred to in the latter, though at variance with the views of a majority of the court. In Neely v. Grantham, supra, two of the five judges dissented, holding that the writ, not having been served in the manner directed in a foreign attachment, did not create a lien; and the present chief justice agreed in the judgment expressly on the ground that the interest of the defendant in the estate was personalty ; but if realty, the strong inclination of his mind was to unite with the dissenting judges. Therefore, that case cannot be regarded as ruling that the defendant’s interest in the real estate of a decedent, is bound by an attachment of his interest only in the *193personal estate; or that the real and personal estates are so blended in the statute, that words exclusively applicable to one include the other.
Decree reversed, and it is now considered and decreed that the fund, $1549.32, be appropriated to the judgment in favor of Jeremiah Roth, trustee for Barbara Harwi, No. 269, February Term 1878. Costs to be paid by appellees.