Nokes v. Smith

Yeates, J.

I fully concur. It appears to me evident, that the * general opinion, from the first settlement of this pgpg government, has been, that the lands of an ancestor, *- though aliened bona fide by the heir, are still subject to the payment of his debts; and, at this day, it would be highly dangerous to impeach it. In the course of my practice I have known some cases of this kind’, both before and since the revolution, acquiesced in, though attended with circumstances of apparently .considerable hardship.

The opinion of th-is court in the case of Morris’s executors v. M’Conaughy’s executors, in September term last, was founded on the principle that lands, though devised, continued assets for the payment of the testator’s debts, in case of a deficiency of personal property; and the purchaser of lands from a devisee, or heir, cannot', in my idea, be in a better situation than the vendors, under the general usage.

The idea of the liability of lands to pay the debts of deceased persons, has grown up with the laws since the charter of the late province; and if any inconveniences shall be experienced therefrom, it is competent to the legislature alone to remedy them.

Mr. Justice Bradford gave no opinion, having formerly been retained as counsel in the cause.

Judgment for the plaintiff.

Prior to the Act of Feb. 24, 1834, debts of every kind were recoverable by action against the personal representatives, without notice to the heirs, and a sheriff’s sale of the real estate of a decedent,' on such a judgment, conclusively passed the title, even as against an alienee of the heir. Tryon v. Munson, 77 Pa., 260.