The 34th section of the act of 24th February, 1834, protects the rights of a widow, and of heirs and devisees not made parties, and not served with notice, where an action is brought against executors or administrators of a decedent who shall have left real estate. If the widow and children of the decedent, here, have interests in the real estate levied on, they will not be affected by a sale under the judgment obtained in this action, inasmuch as the "evy, in such a case, is entirely inoperative as to those interests. Looking to the security of the rights of the widow and children, there is then no necessity for the summary interference of the court, and we are uniformly careful to avoid deciding any questions of title on applications to set aside proceedings under judgments.
If the plaintiff desires to contest the validity of the deed of trust, or the validity of the will, or desires any other facts essential to the support of the claim of those asserting title, as wife, heirs, and devisees, questions will be presented which must be determined by trial by jury. A purchaser at a sale under the execution will be obliged to ascertain in an action of ejectment, whether he has acquired any thing for his bid or not.
Stroud, J.—I can discover no motive for the course which the plaintiff has pursued, admitting his claim to have been a just one entitling him to a judgment. But I am equally at a loss to see how the widow and children can be prejudiced by suffering the execution to be prosecuted. The act of assembly certainly protects any interests they may have in real estate levied on, not derived under the deed of trust. And if the deed of trust be valid, they are safe under it. I do not see that the widow or children can be at all affected by the plaintiff’s omission.
*246There is besides an objection to the summary interference which has been asked. How can we determine who are heirs, cfec.? The legality of the marriage of the decedent may be involved in the inquiry. Trial by jury is the proper mode of determining such questions, and this can be had only in an ejectment, should a sale take place under the execution.
Joses, J.—The question is, whether Roberts left real estate in the sense of the Act of the 24th February, 1834, section 34. Can it be said that a decedent has left real estate, except where it descends to his heir? and in this case if it descended, upon the decease of Roberts, to his heir, how could Mr. Norris, the trustee of Roberts, convey any thing to Mr. Gerhard, who claims to succeed Mr. Norris in the trust'1 If a man fraudulently conveys his real estate to his children, and then dies, and one of the creditors of the decedent obtains a judgment against his administrator, this act of assembly will not prevent him from levying the lands so conveyed, without notice to the heirs of the fraudulent grantor, because, as alienees they would be estopped from alleging that they hold by descent. In this case the devise is of an equity which is not levied by a seizure of the corpus of the fee which did not descend if the deed be valid; and if the deed be fraudulent as it respects the plaintiff' in this execution, yet the lands conveyed by it cannot be demanded by the heirs of Roberts, as real estate which descended to them, because they are bound by the deed of their ancestor, as well where it is fraudulent in respect to creditors, as where it is made bona fidé upon a valuable consideration, and is valid against all persons, and to all intents and purposes. My opinion is, that the rule to set aside this execution should be discharged.
Rule refused.