The liability of real estate, by the common law, to the debts of the creditor, is so entirely variant from the statute regulations and established law on the same subject here, as to be utterly irrelevant. Simple contract debts, by the common law, are not recoverable in any shape, out of the intestate’s or testator’s land; and it is made responsible only where the ancestor binds himself and his heirs, by specialty *263And even then, before the act of Wm. & Mary, cap. 14., which is of no obligation here, this security was little more than fallacious. If before action brought, the heir had aliened the assets, the obligee was without remedy ; and before the statute, if the ancestor had devised away the lands, a creditor had no redress, either against the heir or devisee.
In Connecticut, “ our statute,” said Ch. J. Mitchill, in Starr v. Booth, 5 Day, 286 , " has created a joint fund of the real and personal estate, and made both assets in the hands of the administrator, and requires a bond from him faithfully to administer, not only the goods, chattels and credits, like the statute 22 & 23 Car. 2., but the estate also of the intestate.” The real estate, the executor or administrator is bound to inventory, and cause to be appraised; and if the debts and charges exceed the value of the personal estate, the probate court is au-thorised to direct so much of the realty to be sold, as is sufficient to make payment. And in the event of insolvency, the whole estate, both real and personal, is, by law, to be disposed of, and the avails to be applied in satisfaction of debts. I shall not recur to the various statutes on this subject, carrying the system back, not merely beyond the memory of man, but almost coeval with the first records of our laws. It is a point indisputably and familiarly known, both by the ignorant and learned, that the real estate of a person deceased, is a fund for the payment of debts, on deficiency of personal assets; and equally so, after it descends to the heirs; or is alienated to the devi-see, subject to this lien.
The estate of Dyar Throop, by his executrix, was proceeded with, in the usual manner; a time was limited for the exhibition of claims ; and the debts having been paid, without a total exhaustion of the personal estate, the remaining property was duly distributed. By this last act of administration, the executrix terminated her duty, and exonerated herself of her trust, in relation to all existing claims. No bond was taken by her of the devisees, to refund, if any debts should appear in future ; nor is it usual, since the legal authority given to the court of probate to limit the exhibition of demands. A claim like the present, arising out of the breach of a covenant of warranty, long subsequent to the above distribution, both contingent and unknown, it is reasonable to suppose, would not have been anticipated.
It is unquestionably clear, that the limitation of claims, and *264the non-exhibition of the one in question, constitute no bar against it. Where a claim originates after the time limited, the creditor is not precluded, as the law operates only on existing demands, capable of exhibition. It is the negligent creditor only whose debt is barred. Backus v. Cleaveland, Kirby, 36. Allen v. Gleason & al. 4 Day, 476.
That the court of probate had jurisdiction over the appointment of Mr. Griswold, as administrator of the estate administered, has been impliedly admitted throughout the defendant’s argument. There is no doubt, that the probate court has cognizance of such appointments; and the only question that can arise, must relate to the legal exercise of jurisdiction in the particular case. The decrees of a court of competent jurisdiction, are conclusive, while they remain unreversed, on every question, which they profess to decide. Rockwell v. Sheldon, 2 Day, 305. They can never be questioned collaterally, but ex directo only. The same observations are equally applicable to the allowance of the claim by the court of probate, and to the order of sale. It was the proper course of the devisees and other persons interested, if desirous of reviewing these determinations, to have appealed from the appointment of the administrator, and the order of sale, and indeed from any other exceptionable decree of probate ; and in my opinion, this was the only legal mode of reviewing any of those determinations. From this it results, so far as this Courtis authorized to decide, that an administrator was duly appointed ; the claim wa legally allowed ; and a lawful order of sale was made ; and this, for aught I can discern, puts an end to the controverted enquiry. For, I think it indisputably clear, that so long as the court of probate is authorized to proceed in its legitimate functions, and direct the sale of estate for the payment of debts, the lien upon the land of the deceased must continue. These propositions are correlatives, and must always co-exist.
If, however, the enquiry be competent, I do not perceive, that any fact has taken place, which terminates the lien on the estate of the deceased.
Perhaps, the most perspicuous mode of discussing this subject, will be, by distinctly replying to the various considerations urged by the counsel of the defendant, to show that the lien was extinguished.
Before I enter on the objections, I will dispose of one suggestion of a general nature, made in the course of the argu*265ment. It was supposed, that the order of sale, by the court of probate, is discretionary ; and to this end were cited two determinations in a neighbouring state. Ex parte Allen, 15 Mass. Rep. 58. Thompson v. Brown & al. 16 Mass. Rep. 172.
These decisions, I think, are misconceived. It never can be admitted, that a probate judge, on principles of unlimited discretion, may refuse to exercise this branch of his jurisdiction. This would be to sanction that discretion, which Lord Camden, in Doe d. Hindson v. Kersey, denominates “ the law of tyrants.” 1 Day, 81. in note. The learned court meant nothing more, than that the jurisdiction must be exercised discreetly but legally, according to the observation of Sir Edward Coke, that legal discretion is, discernere per leges quid sit jushum But if the discretion were absolute, the proceedings of the court of probate must be irreversible ; as no error is predicable of a decision made on this unlimited principle. While v. Trinity Church, 5 Conn. Rep. 187. The argument recoils on the defendant.
It has been objected, that the lapse of time since the distribution. has been such as to extinguish the lien on the land ; especially, in the hands of a purchaser. A perpetual lien upon the lands of the deceased for the benefit of creditors, would be a public inconvenience, and ought not to be sanctioned. Still it ought to continue a reasonable time, and not be defeated, except by the neglect or laches of the creditor; and hence, gross neglect or unreasonable delay, should be held a waiver or ex-tinguishment of it, in all cases ; and more especially, where the property has been disposed of for a valuable consideration. This is the opinion of two eminent jurists. Gore v. Brazier, 3 Mass. Rep. 542. Ricard v. Williams, 1 Wheat, 116. And in it I certainly acquiesce, founded as it is on principles ofjustice and analogy. It is unnecessary to lay down a rule on the subject, defining, by certain limits, what shall be considered a reasonable rime, as the case before us would not fall within any rational principle that could be adopted. The creditor’s demand originated in the year 1820; and in 1821, administration, with a view to take advantage of the lien existing on the land of the deceased testator, was taken out. Here was nothing savouring of laches or neglect.
It was next contended, that the lien was extinguished, by the distribution. It is clear, that a distribution, by its own proper force, has no such effect; nor has any case been cited to es *266tablish the position. By a distribution, the title is not transferred, nor in general, the rights of the parties changed. It merely divides or aparts the property to be held as it was, under the right already existing. The title to personal estate rests on a different ground ; and is not embraced by this remark. Such property vests in the executor, and is conveyed by the distribution to the heirs. Roorbach v. Lord, 4 Conn. Rep. 347. The proposition of the defendant must be supported, if sustainable, on a correct construction of the statute relating to the subject, and the nature of the case. The argument has proceeded on the ground, that a distribution is the final consummation, not only of the administrator’s powers, but emphatically and necessarily a complete settlement of the estate. I will examine these positions ; and in the first place, attend to a construction of the statute. It must be admitted, that very generally, the distribution of an estate, is the last act of administration, and closes the concern : the question is, whether by law, it does this universally. The statute (sec. 29.) is not explicit on this subject. It merely provides, that there shall be a distribution of the estate ; but whether this indispensably terminates the settlement of it, in all events, must depend on the nature of the case Previous to distribution, the estate is to be inventoried ; the debts are to be paid ; land, if necessary, is to be sold for this purpose ; and all the apparent duties of the executor or administrator having been discharged, and an account thereof rendered to the court of probate, nothing remains, but that the estate should be divided, and go into the hands of the heirs or devisees. This would seem, at first blush, to have completely effected what the administration was designed to effect; that is, to relieve the estate of the deceased from every burden, that the persons having right to enjoy the surplus, might enter on and possess it, without future interruption. This, however, is the surface of the transaction only. Debts suspended on contingencies, and unknown to the executor or administrator, may arise; and what reason can be assigned, that these demands should meet with diminished security ? The personal estate, perhaps, is exhausted; and the bond of the executor or administrator, if not performed, as it was held to be in Booth v. Starr, 5 Day, 275., perhaps is unavailing, through the insolvency of the obligors. On what just and reasonable principle, independent of positive law, (and here there is none,) shall the class of creditors last referred to, be deprived of their lien on *267the real estate, which has been aparted or divided 1 The lien is a legal right, by law provided for the benefit of the creditors, lest their just debts should not be paid; and on what ground is it, that this right should be deemed extinguished, while there remains the same reason for its existence, as there ever did ? It would be thought to be a strange reason for the non-payment of a promissory note, that it had been assigned; and equally strange is it, that a right, neither released, nor lost by neglect, should be annulled, because the property burdened with a lien, is no longer owned by the heirs jointly, but is aparted in separate divisions among them. The laws of Pennsylvania and Massachusetts, on the subject in question, are similar to ours, and vary alone in the mode of their execution. In Graff v. Smith’s admrs. 1 Dall, 481. after the distribution of the estate of a person deceased, the lien in favour of creditors was determined to exist; and even the supposed extinguishment of it, by the distribution, was not made a question. And in Gore v. Brazier, 3 Mass. Rep, 523. Ch. J. Parsons lays down the doctrine, that although the lien in question is not intended to be perpetual, it should continue a reasonable time, and not be defeated, save by the laches of the creditor. So, in Ricard v. Williams, 7 Wheat. 114. it was said, by Story, J., that so long as the administration legally subsists, or may legally be granted, this power over the land may be exercised, if the land remain in the possession of the heirs ; and that it is not defeated, simply by an alienation.
It is an incorrect position, that the whole distribution of an estate must, if the lien continue, be rendered void, by a single debt. The heir, whose land is sold, by the executor or administrator, may have contribution from the other heirs, all of them being in equali jure. Harbert’s case, 3 Rep. 13. Graff v. Smith’s admrs. 1 Dall. 484. Stat. p. 306. sec. 28.
The estate of a deceased person usually is considered as settled, at the time of the distribution ; and generally speaking, this consideration is true ; and so a descent cast usually falls on the permanent heir; but these appearances may be annulled, by subsequent facts, by unsettled debts, or an heir that will take the place of the former.
I have no doubt that our laws, either expressly, or by construction, do not annul the lien of debts on the estate of deceased persons, by reason of its distribution ; and that this essential *268right is alone defeated, by a release, or the laches of the creditor.
That an alienation of land by the heir or devisee, has not the effect of discharging the lien, has repeatedly been determined. Gore v. Brazier, 3 Mass. Rep. 523. Wyman v. Brigden, 4 Mass. Rep. 150 Graff v. Smith’s admr. 1 Dall. 481. Ricard v. Williams, 7 Wheat. 59. If it were otherwise, it would be no fund at all; for the devisee or heir, knowing the necessity of alienation to extinguish the lien, would, in every instance where he apprehended debts beyond the amount of personal property, immediately sell the estate, and thereby entirely defeat the intent of the legislature in making it a fund for the payment of debts. Instead of being necessarily liable, at all events, to the payment of debts, on the exhaustion of the personal estate, in whatever hands it might be, it would be altogether precarious, and defeasible always, by the person who had an interest to defeat it. Here there is no inconvenience. The alienee purchases with open eyes, knowing the condition of the property ; and can protect himself by covenants, if he is apprehensive of the existing lien ; and the heir or devisee is under no restraint of alienation, except from that which justly arises ; the burden to which his title is legally subjected.
It is said, that the bond given at the distribution of the estate, which always may be exacted, (sect. 33.) to refund to the executor or administrator, if debts should afterwards be made to appear, discharges the lands of the deceased from the lien imposed by statute. In Gore v. Brazier, 3 Mass. Rep. 523., it was adjudged, that such bond was merely cumulative. This opinion is most manifestly just. The law declares nothing explicitly on this subject; and hence we must judge from the nature and consequence of the act. The creditors, without fault or neglect, are not placed, upon the supposition advanced, in equal equity with those who came in before distribution; but a disparity, without the slightest reason, is made between them. Some time may elapse before their contingent claims exist; the bond may have become worthless, by reason of the insolvency of the bondsmen; and thus their just debts may be defeated. A construction so inequitable ought not to be admitted, the law being silent on this subject. There is no injustice in con-considering, and it is the lesser convenience to consider, the lien as existing, until its object is accomplished.
I am, therefore, of opinion, that the judgment of the court *269below, that the estate of Dyar Throop could not by law be sold, under an order of probate, for the payment of the debt exhibited, was incorrect.
Whether by virtue of the administrator’s deed, the plaintiff acquired a title, is a question that remains to be considered.
In this state, a deed of release is not viewed as secondary or derivative, but as primary and original; and is a common mode of conveyance for the transfer of land, without covenant of seisin or warranty. But such deed is entirely unadapted to the execution of the power confided to the administrator. He had no interest in the lands of the deceased; and yet all that he has done, is to release such interest. The instrument intended by law must be such as is proper for the disposition of that which is the subject matter of the power. As it can have no operation, unless by virtue of the power, the law requires a resort to that power, for the purpose of giving validity to the instrument. 4 Cruise's Dig. 238, 9. It is usual for the administrator to recite the facts, showing that he is empowered to sell, although this is not indispensably necessary ; (Hob. 160.) and to grant the land by virtue of the power, with such covenants as he thinks proper to assume ; as that the testator or intestate died seised ; that he was duly empowered; and that he has in all things observed the rules and directions of the law, in the sale.
The deed of the administrator is void and inoperative ; and the plaintiff, by reason of it, acquired no title.
On this sole ground, I am of opinion that no new trial be granted.
Brainard, J. was of the same opinion.