Although I concur in the conclusion to which the judge, who has just delivered his opinion has arrived, I do not altogether agree with his reasoning. I do not believe the act of 1796, ch. 67, s. 13, should be so construed as to prohibit a testator from manumitting his slaves, provided he has left real estate sufficient to pay his debts. All a man’s estate, real and personal, is a fund for the payment of his debts. The former can be resorted' to with as much facility in the absence of the latter, as personal property itself can. To, be sure the personal estate is the first fund to which'the creditor is to look; but I cannot believe if by the manumission of slaves, the personal estate is made insufficient, and the creditor is compelled to resort to the real estate for payment of his debts, that he is thereby prejudiced within the meaning of the act of assembly. To constitute such a prejudice, in my opinion, some loss should re», *7suit to him, which could not be the case where the real assets are sufficient.
My difficulty in the present case is that there are no parties to the record who are competent to make the admission, that the real estate is sufficient to pay the debts, when the petitioners are abstracted from the personal property. Surely the executor cannot do it. He has only to deal with the personal estate — with the real estate he has nothing to do, and is an entire .stranger to it. He is not in law supposed to know either the •title by which it is held or its value; nothing in relation to it coming within the scope of his legal power and authority. Were the admissions of an executor taken, creditors would be utterly insecure; they would be bound by the admissions of one who, from the character of his office, would be irresponsible to them, which would be the extremity of injustice.
Were it possible for the petitioners to ascertain the creditors of the testator, I strongly incline to the opinion that they might in equity be compelled to resort to the real estate for the payment of their debts. Of this, however, I give no decisive opinion, as the case before the court does not demand that I should point out a remedy, but only to determine whether the law furnishes the remedy which is sought; and I am clearly of opinion it does not; for we must be satisfied that the creditors will not sustain a loss, if the petitioners are adjudged to be free, and that we cannot do in these proceedings.
Earle, J.This is an appeal from a judgment of Kent county aourt. The appellants are petitioners, claiming their freedom Under the will of James Corse, and the appellee is his administrator, with his will annexed. The verdict is against the petitioners; and it was rendered on an agreed statement of facts, Under an instruction given by the associate judges of the court to the jury to find for the defendant. This instruction gave rise to the bill of exceptions, which forms the present subject of inquiry. Ought the court to have instructed the jury to find against the petitioners?
I approach the consideration of this subject with every disposition to favour the pretensions of the appellants, as it appears to have been the earnest wish of their master, protector *8and friend, that they should 'be free; 'but in deciding on their rights, my inclinations and feelings must not -induce me to overlook the interests of others. Their -contention is with Thomas C. Kennard, who appears in a representative character, and whose security in the performance of his trust, must be consulted. The creditors are the first objects of this ‘trust-, to whom his testator was bound to be just, before to others he could be generous. It was not in his power to confine them to a particular fund for the satisfaction of their debts, to whose demands the whole of his estate was equally liable. Mote particularly was it not with him, to turn them over from the natural fund, to one more uncertain, and less accessible. It is true they might resort to his real assets, agreeably to his wishes, but they had a right to call on his personal estate for payment, to the full extent of it, if they had been pleased so to do. The point then arises, whether a verdict and judgment rendered against this administrator, could have justified him to the creditors, if he had attempted to have established by proof the insufficiency of the real and personal assets, independent of the negroes, to pay the debts of the deceased, and failed in the attempt? The plain answer to the point is, that such a proceeding would not have excused him; because in the trial of such a question, he was not competent to act the part he assumed. With the real assets, and their sufficiency or insufficiency, he had nothing to say, and was in no way cognizant of their value or extent, and had not the means of ascertaining the one or the other. In my opinion, then, he acted the prudent part in avoiding this controversy, and by admitting the fact of sufficiency, very properly brought the question of right before the court, who appears to me to have decided it correctly. It never could have been the intention of the act of 1796, ch. 67, to have abrogated principles long established, by compelling creditors to look for payment to a particular fund, specified by their debtor; nor could it have been its design to oblige them to abide by the verdict of a jury, deciding on the question of sufficiency or insufficiency of real assets, where the executor alone was a party, and they not represented in the controversy.
I think the judgment ought to be affirmed.
JUDGMENT AFFIRMED.