The opinion of the Court was delivered by
"Wiluard, A. J.Under the view taken of this case it will be *163necessary to consider only two questions. The first is, whether the Probate Court possesses authority to order the sale of the lands of a decedent for the purpose of raising a fund in the hands of an administrator for the payment of the debts of such decedent when the personal assets are insufficient for that purpose. The second is, whether a purchaser, under an order made by the Probate Court, for the purpose indicated above, can maintain a bill in equity against the occupant of lands so sold, to restrain such occupant from appropriating the usufruct of the land, such as minerals, &e., without having established his title thereto in an action at law.
The determination of the question of the authority of the Probate Court involves the construction of the following language from Art. 4, Sec. 20, of the Constitution : “ A Court of Probate shall be established in each County, with jurisdiction in all matters testamentary, and of administration in business appertaining to minors, and the allotment of dower, in cases of idiocy, lunacy and persons 'non compotis mentis.” The particular clause to be examined is that conferring jurisdiction in all matters of administration.
It must be considered, first, in reference to the sense of the terms emplojmd, and, second, in relation to the general'intention of the Constitution as to the character of the Court constituted as expressed in the language defining such jurisdiction. We will first consider whether the power of ordering the sale of the lands of a decedent for the purpose of raising a fund in the hands of an administrator for the payment of such decedent’s debts is a matter of administration in the sense of the clause under consideration. What are matters of administration is to be determined by the laws of the State existing at the time the language in question was introduced into the Constitution. The object of administration is to pay the debts of the deceased, and distribute his personal estate among those entitled to it, and any act that may properly be performed by an administrator looking to this end is a matter of administration. To accomplish this end the administrator is clothed with authority to collect the personal estate and to convert it into a form suitable for the purpose.
At common law the personal estate alone is assets for the payment of such debts by the administrator. By the Statute (2 Stat., 570,) “ the houses, lands and other hereditaments and real estates, situate and being within this State, belonging to any person in*164debted, shall be liable to and chargeable with all just debts, duties and demands, of what nature or kind soever, owing to any person, and shall and may be assets for the satisfaction thereof, and shall be subject to like remedies, proceedings and process as personal estates.” It is the unmistakable intent of this clause to make the real estate of a decedent assets in the hands of his administrator for the payment of his debts, if the exigencies of the estate render that course necessary, for that is the necessary result of assimilating the realty to the personalty, as it regards the mode of applying it to the satisfaction of the debts of the decedent.
The interposition of a Court is not required in order to impose the character of assets on the realty, for that is already done by the terms of the Statute; it is only required to ascertain whether the personal assets are insufficient to discharge the debts. It may well be questioned whether a power to sell the realty, in the event of the insufficiency of personal assets, is not conferred directly by the Statute, so that an adjudication of the insufficiency of assets would authorize such sale without a personal order authorizing and directing such sale. Such a construction has not, however, been put on the Statute by judicial authority, and we are not called upon, at the present time, to consider it. It is enough to know that, assuming the necessity of a judicial declaration of the fact of the insufficiency of personal assets, upon the ascertainment of such fact, the duty is imperative of subjecting the realty to the payment of such debts, and the Court has no discretion but to proceed to do whatever may be requisite to give efficacy to the Statute. Does jurisdiction in all matters of administration embrace the authority to determine the fact of the insufficiency of personal assets and power to conform to the requirements of the Statute, as it regards subjecting the realty to like remedies, as are appropriate in the case of personalty ? As the application of.the personalty, as assets in the hands of the administrator, to the payment of debts, is indisputably a matter of administration, it would seem reasonable that a provision of law, placing realty on the same footing, in this respect, as personalty, was intended to make the application of the realty to such purpose a matter of administration also.
It is true that the administrator cannot, of his own mere motion, reach out his hand and take poásession of the realty and sell it as if it were personalty. He must, indeed, apply to a Court and show grounds for such demand, but the very fact that he may make such *165a demand of the Court shows that he has a right to the thing demanded, and this right arising under the Statute, he holds in virtue of his office as administrator.
The concession that-the administrator is clothed with authority to demand through the proper Court power to sell the realty is a concession; that the application of the,realty to the payment of debts, in the event of the insufficiency of personal assets is, in a strict sense, a matter of administration, or, in other words, a matter in respect of which the administrator is clothed with power to act in virtue of his office.
This conclusion is strengthened by looking at the terms under consideration from the stand point of the Constitution. They are there employed to define the powers of a Court, not of an administrator. It is judicial jurisdiction that they describe.
Jurisdiction,-in matters of administration, means power to do what a Court ought to do in the matter of administration.
The Constitution furnishes a Court on which the administrator may lean, and which can supplement his legal powers by its process; to say, then, that the measure of the powers of the Court shall be precisely that of the powers of the administrator is to misconceive entirely the distinction between jurisdiction and administrative competency. If it is contended that the power of an administrator, to reach the realty as assets, is not absolute, but depends on the contingency of there being an insufficiency of personal assets, the answer is clear, that the expression 11 all matters of administration ” is broad enough to embrace contingent as well as absolute power.
The expression “ all ” imports an intent to clothe the Probate Court with full power in matters of administration. That it was the intention of the Constitution to clothe that Court with full efficiency, as it regards matters of administration, is evident from the nature of the Court, as established by Sections 1 and 20, Article IV, of the Constitution. It is enumerated among the Courts between’ which the judicial power of the State is portioned. Jurisdiction is conferred upon it in matters of great moment, embracing some of the most delicate and responsible powers exercised in Chancery. In addition to matters of administration it has jurisdiction of all matters testamentary. It has charge of the persons and estates of minors and others not possessed of legal competency to act in their own right. It may allot dower. A Court possessed of such large powers must have been regarded as fully competent to ascertain the *166fact that the personal estate of a decedent was insufficient to pay his debts, and, to comply with the requirements of the Statute, demanding that in such cases the realty should be subjected to the same remedies and process as the personalty.
In the ordinary course of business before the Probate Court the fact would appear whether the personal estate was insufficient for the payment of debts ; in fact, this is the precise place where that fact ought to be judicially ascertained. After that fact is ascertained, the making of the order for the sale of the realty is merely a matter of course under the Statute. Why, then, should the labor and expense be incurred of going into the Circuit Court for such order of sale 1 No good reason has been assigned, nor can be assigned, for the existence of any such necessity.
The case of the Bank of Hamilton vs. The Lessees of Dudley (2 Peters, 492,) was cited as placing a construction on words similar to those under consideration, as employed in the State of Ohio ; but it has no bearing on the case in hand. It was there held that the right to sell realty to pay debts was not included under the words “jurisdiction in all probate and testamentary matters,” (p. 524.)
The words “ matters of administration ” were not involved in that case. Whatever may be the law of Ohio, it is clear that by the law of South Carolina the application of the realty to the payment of a decedent’s debts, in the event of the insufficiency of the personalty, is a matter of administration, and, as such, is within the jurisdiction of the Probate Courts under Section 20 of Article IV of the Constitution.
The next question to be considered, as already stated, affects the right of the complainant to file a bill in equity as against parties in possession of the land at the time of sale, asking an injunction to restrain them from taking to their own use the profits of the land, the principal profit being a mineral substance found on the land, without first establishing his title in an action at law. The bill was filed prior to the adoption of the Code of Procedure, and must stand or fall by the rules prevailing at that time.
The effect of an order of sale, made by the Probate Court, in the cases under consideration, is to place- the purchaser, in reference to the lands to which it relate's, in the position and title of the decedent as against the various parties interested in and bound by the settlement of the estate before the Probate Court. It cannot determine any question of title between the purchaser and a stran*167ger to the estate in possession. To obtain possession, as against such stranger, the purchaser must bring his action at law, and establish his title by a verdict.
While his title is in dispute, by one in possession, he cannot obtain the aid of a Court of Equity to restrain the occupant from exercising right of ownership. For the reasons stated, the order dismissing the bill was proper, and the appeal must be dismissed.
Wright, A. J., concurred.