1. The complainant’s title to relief, depends chiefly on the question, whether Peter Martin had such an interest in the land settled and cultivated by him, as was the subject of sale by his personal representative after his death. We state the question in this way, because it seems evident that no subseqpent action of the widow, or heirs, with reference to the land, could change the rights of the administrator, and through him the creditors, if they had any.
It will be seen, on looking to the act of Congress, of the 29th May, 1831, and of June 19th, 1834, that the bounty of the government is not extended by express terms, to either the heirs or the personal representatives of the person entitled to the pre-emption. The privilege of entry, at the mini*335mum price, is given to every settler or occupant of the public lands, who was in possession at the time of the enactments, and who cultivated the lands — by the first act, in 1829, or by the last, in 1833. [Land Laws, p. 1, 473, 525.] The construction of these acts, in the general land office, seems to have been that the pre-emption right in the event of the death of the settler previous to any abandonment of the lands, and before the entry was actually made, descended to his heirs at law. [See instructions, 23d October, 1833, Land Laws, p. 2, 582.] Such a construction of these acts, seems to be in entire accordance with principle, for it is common learning, that conditions annexed to an estate, descend to the heir, and he alone can take advantage of them. [Bacon’s Ab. tit. Heir, C.] If the pre-emption acts are analyzed, it will be seen they grant a privilege to the settler, which may ripen into an estate in fee, if the prescribed condition of making proof, and paying the minimum price, is performed. Nothing can he more clear, however, than that this privilege is not in the nature of a contract, nor could the personal representative be compelled, in any manner, to appropriate the funds of the estate, to make the entry. The legal analogies, which in reality control this case, although remote, and of rare occurrence with us, are free from dispute, and entirely decisive. It is the well known rule of equity courts, to consider that done which is contracted to be done, and under its influence, decisions are numerous in the English courts, to compel an appropriation of the personal effects by the administrator, for the benefit of the heir or widow, to pay for lands contracted to be purchased, but not paid for, or the title passed by the execution of the necessary assurances. [Sugden on Tend. ch. 4, 211; see also, Champion v. Brown, 6 Johns. Ch. 398.] This rule is comparatively unimportant with us, when the same person is usually the distributee of the personal estate and heir to the real, and where too, lands are chargeable with simple contract as well as specialty debts. Yet its existence is so interwoven with the entire equity system, that it never can be lost sight of, although the cases may be rare in which its application will prevent one party from participating in a fund otherwise distributable to him, and transfer it to another, who, without the rule, would have *336no rights. Although the rule referred to is of universal application, it is applied only to contracts, and these must be valid in point of law, to warrant the heir in claiming the application of the personal estate to pay for lands. [7 Vesey, 341.] The liability of the real and personal representatives, in respect of a contract, is, that of the party at the time of his death ; if he could not then be compelled to take the estate, the heir cannot insist on having it, or that the personal estate shall pay for it. [10 Vesey, 607.] These cases show clearly, that the heir (assuming that his rights here are of the same nature as by the common law,) could not call on the administrator to pay for the land. Nor (to take the case, in which it is possible the rule might be invoked with us) could the widow call on either heir or administrator, to pay for the land, to secure her dower interest in it. There then being no obligation on Martin to pay out the land, his administrator was not authorized to do so, and if he had thus appropriated the funds of the estate, in our judgment, he would have been responsible in the event of a loss. So far then as the title to the land is concerned, we are constrained to say there was nothing which could pass by the sale, under the decree of the orphans’ court, affecting the title now shewn by the heirs of Martin.
But, it may be asked, is it possible that one can have an interest in lands which is really beneficial, but which cannot be reached by a creditor during the life-time of his debtor, or even after his death be appropriated to discharge the debt ? The answer is that the government of the United States has the sole disposition of the public lands, and if it chooses to permit its citizens to occupy them until actually sold, the creditor has no more right to complain than he would of the charity which gives his debtor shelter elsewhere. It is the settled law of this court, that a settlement and improvement on public lands, is not the subject of levy and sale under execution. [Rhea, Conner & Co. v. Hughes, 1 Ala. Rep. N. S. 219.] Whether the mere occupation might not be entered upon, held, or sold by the administrator, is á point which has never yet been presented, and therefore we decline to express an opinion upon it, further than we have already done. Conceding, however, the right so to enter, and to hold the *337possession, or take the emblements, it seems clear that by a sale of it, the administrator could not pass the settler’s right of pre-emption to the purchaser, or in any manner affect that of the heir.
There is another view which is pressed with much ability by the complainant’s counsel, and it is, that as the funds were provided by the administrator, from the estate, that a trust results either to him or to the estate, and thus the equitable right to the land is conveyed by the deed. This would possibly be answered by the proof, that the purchase, instead of being made by the administrator, was, in point of fact, made by the widow and heirs ; but, without placing any stress on this fact, it seems to us that such a trust would be directly against the policy of the pre-emption acts ; as the bounty of the government was obviously intended for the settler and his heirs. A construction, therefore, which would make him or them trustees for the person advancing the purchase money, is not to be tolerated, as it would, in effect, transfer the bounty of the government from the settler to the lender of the money.
It is perhaps unnecessary to advert to this matter further, but as an equity may be supposed to arise, that the money advanced by Martin out of the funds of the estate, shall be accounted for by the heirs, we shall content ourselves with the remark, that it more properly falls under the head of payment by the administrator to them. Even if the estate administered by Martin, was insolvent, and its assets had not been squandered, we should doubt if the complainant would have any right to be considered as entitled to re-payment, as standing in the place of the administrator.
There can be no question, we think, as to the complainant’s right to relief, in the present aspect of the case, as against the legal title vesting in the widow under the patent. This she is concluded from insisting upon, by the bond which she entered into; but the decree must be so made as not to permit this to affect the future conducting of the suit at law.
The decree of the chancellor must be reversed, and the cause remanded, for such further proceedings as will conform to the opinion now pronounced. Reversed and remanded.