There is no troublesome conflict of testimony. All important facts are established by undisputed evidence, and seem to have been conceded. There are no charges of fraud or circumvention. The established facts are:
' First, that at the time of the death of Sarah A. Nichols, appellee had a valid existing judgment against the husband Edward T., and another, amounting to something over $100; second, that Sarah A. died intestate, seized in fee of •the property in controversy subject to the incumbrance; third, that the value of the real estate over the incumbrance was $1,980, and the personal assets $100, making the aggregate value $2,080; fourth, that at the time of her’death she was indebted in various sums, amounting in the aggregate to $3,604.10, and exceeding the value of the estate $1,524.10; -consequently, that the estate was insolvent.
These facts having been established or conceded without question, the issues to be determined were not issues of fact, hut questions of law applicable to the facts; the theory of appellee being that there was an inheritance; that the husband, under the statute, immediately upon the death of the wife became the heir to one-half of the estate in gross, and that one-half of the estate at once vested in him regardless of the financial condition of the estate as to solvency; and that the inheritance cast at once became available for the satisfaction of the judgment, and took precedence to the *151exclusion of creditors of the estate. .This theory is erroneous and cannqt be maintained. In our view of the case, all supposed errors assigned may be disregarded except the general one that “ the court erred in finding that the plaintiff [appellee] was the owner of the undivided half of the premises, and had been since July, 1884, and that defendant [appellant] unlawfully detained the premises, and that the matters in the cross-complaint of defendant are wanting in equity and insufficient to afford relief, except as to the excess of expenditures paid above the rents by her received.” We think the entire case can be satisfactorily disposed of by the application of primary and fundamental principles of law to the admitted and established facts.
1. That during the life of the intestate the husband had no interest in the estate in controversy that he could make available for the payment of appellee’s judgment or that appellee could reach under execution. Upon her death the judgment creditor could only take the distributive share of the estate going to the husband; in other words, the creditor could take no greater interest in the estate than the husband took by inheritance in the estate of the wife upon her death. These propositions are so self-evident and elementary that no authorities are needed in their support.
2. Both in England and in this country lands held in fee are subject to the debts of the owner while living and after .death, and this is the case whether the debt be due upon matter of record, by specialty or by simple contract; and, if the lands descend to the heir, or go to a devisee, he holds them subject to be taken for the,'payment of the debts of the ancestor, according to the laws of the state in which they are situated. 1 Washb. Beal Prop. (4th ed.) 87; Watkins v. Holman, 16 Pet: 63; 1 Greenl. Cruise, 60, note.
3. The only title or interest in the estate that could be taken at the sale under execution was the distributive share of the husband in the estate of the wife after the payment of all debts. -The regularity and legality of the appointment of the administrator, and the validity of the claims *152against the estate and' the legality of their allowance by the court, having been unquestioned, and no objection made to the valuation of the estate and aggregate value found, and these proceedings being cohceded to have been regular, the appellee to that extent is concluded by them. Under our statutes, as at common law, the lands of the intestate descend to the heir subject to the payment of debts, if the personal estate be insufficient; and when there is a deficiency of personal estate, neither the heir nor one holding under him by deed or by operation of law can retain the estate as against creditors, except by the payment of the debts. “Heirs, devisees and distributees are liable to creditors * -x- * -fcpg fup amount of the property received by them, whether real or personal.” 2 Woerner, Adm’n, 1265. In Borer v. Chapman, 119 U. S. 587, it was held that, after the settlement and distribution of the estate and discharge of the administrator, a creditor of the estate could proceed in equitjr in the state of the domicile to which the assets had been removed, and subject such assets in the hands of an heir or devisee to the payment of the debt.
The estate being insufficient to pay the debts, it follows that an action could not be maintained by appellee without paying or contributing to their payment to the value of the property claimed.
Many questions, technical and of minor importance, are raised in regard to-the proceedings in subjecting the property to the payment of the debts. The first, and one of the most important, is that there was no appraisement of the personal estate. The object of appraisement is to inform the court of the value of personal property as a guide and aid in the adjustment of the affairs. It is not contended that the petition did not contain and set forth the amount and value of the personal property, nor that the inventory was not correct; it showed the only personal property to be $100 in money. The contention is that the proceedings were irregular and illegal because three disinterested persons had not duly appraised the value of $100 in money. *153The value of that item being known, and it being the only one, there was no personal estate to be appraised. The law does not require unreasonable, unnecessary, nor superfluous acts to be performed. The failure to cause such appraisement under the circumstances cannot avail to vitiate the proceedings.
It is urged that the service of summons was defective. We do not so regard it. The proceedings appear to have been regular; service was acknowledged by all’to whom the writs were directed, and they were properly before the court. If they had not been, it was a defense that could only be interposed by the parties, or some of them; it was personal to them, and could not avail appellee.
It is also contended that the proceedings were faulty in not making appellee a party. Whatever title or supposed title appellee had was not by virtue of descent cast, but was derivative. As already shown, if he had any interest it was that coming through the heir. The proceedings were to settle the estate. Appellee was neither heir nor creditor, and was not an indispensable party,— if he had wished to intervene, he could have done so. His failure to do so should not prejudice the result. It follows that the general assignment of error should be sustained. The finding and judgment were erroneous: First, in finding the title in appellee, and that appellant unlawfully detained the premises; second, in finding that the averments in the cross-complaint were insufficient. The title of appellant was shown to be that acquired by purchase as creditor,— the only title that could prevail. The minor irregularities supposed to have existed in the proceedings could in no way affect appellee when the insolvency was established and conceded. There being no allegations of fraud, and it being obvious that under no possible manipulation could the estate have shown a residue for distribution, it becomes apparent.that the only interested parties who would have a legal right to complain of such irregularities, if they existed, were the creditors who had not been and could not be fully paid.
*154We advise that the judgment be reversed and the cause remanded.
Richmond and Bissell, 00., concur.