The administrator of the estate of Calvin R. Stone, deceased, applied to the circuit court for loaA'e to sell real estate for the payment of debts Avhich had been alloAvcd against the estate by the county court. Upon the hearing of this application in the comity court, the heir appeared and offered to proA'c that the claims Avhich liad been alloAvcd by the county court, and to pay Avhich the real estate Avas asked to be sold, Avere not legally and justly duo from the intestate, and that they had been illegally and unjustly alloAvcd by the county court. The county court refused to alloAV this defense, from Avhich decision the heir has brought this case here for reA'ieAv. This requires us to determine Avliat effect is to be given to the order of the county court alloAving the claims as against the heir upon such an application. The true construction of our statute of Avills must determine the question. We lmre already decided in tivo cases, that the order of the county court alloAving the debt of a creditor against the estate, is a judgment of a court of competent jurisdiction in firvor of the creditor and against the administrator, and, as between those parties, it is necessarily conclusive till reversed by a superior tribunal, unless impeached for fraud. Is such judgment conclusiA-e against the heir Avlion the administrator applies to the circuit court for leav'o to sell the real estate for the payment of such judgment ? We think not. Under our law the legal title to the personal estate is in the administrator, while the title to the real estate descends to the heir at law. The administrator is the solo representative of the personal estate, but not of the real, property. The judgment then was conclusively binding upon the personal estate, for the representative of that estate was before the court, and. a direct party to that judgment; but the heir was not before the court, nor a direct party to the judgment. He was not notified to appear upon that trial, nor given an opportunity to appear and contest the validity of that judgment. It is true, the statute gives the right to come in and appeal from such judgment, provided he happen to hear of it in time to take the appeal; but it is not made his duty to do so, nor has the law provided that he should have notice to enable him to do so. Had he thus appeared and made himself a party by taking an appeal, he, as a party, would no doubt be bound by the judgment rendered on the appeal. Till he docs thus come in, he certainly is not a party, nor is he even a privy, except so far as he may have an interest in the personal estate, as being entitled to the residue after the payment of the debts. But as regards the real estate, we think his position essentially different. There the title is vested in him, and is placed beyond the reach or control of the administrator, except the court is vested with authority, upon a special proceeding against the heir, to direct him to sell the title of the heir. Nor is the administrator bound to protect the real estate. He is not even authorized by law to pay taxes upon it; but it is in all respects vested in and under the control of the heir. To it the administrator is an utter stranger. The judgment against the administrator is not a judgment against, or a lion upon, the land. The creditor cannot, under our statute, even sue out a scire facias upon that judgment against the heir so as to make it chargeable upon the land, as is the case in some of the States. Were such the law, the rule might be different. Were we to admit the heir, so far as it might affect the real estate, a privy with the administrator to that judgment, the conclusion would inevitably follow that he would be bound by it. But such, we think, was not the intention of the legislature. Before the administrator can acquire any right to interfere with or sell the real estate, he is required to institute a proceeding in the circuit court citing the heir before it, and requiring him to show cause why the lands should not bo sold to pay the debts of the estate. The law then, for the first time, calls him into court, and gives him an opportunity of being heard, and of contesting the validity of the claims, to pay which, his land is asked to be sold. He is cited into court for some purpose, certainly. It may be said that that purpose is to enable him to show that the personal estate is not exhausted, and that hence there is no occasion to resort to the real estate. The statute does not thus limit his rights, but he is required “ to show cause why it should not be sold for the purposes aforesaid.” And what were those purposes ? In the language of the statute, it is to pay the debts of the intestate. The administrator is required in his petition to give a schedule of those debts. Shall it be said that none of them shall be contested by the heir ? There is as much authority for contesting a debt which has been passed upon and approved by the probate court, as one which has been admitted by the administrator to be just, and as such placed in his schedule. It Is true, there may not be as much necessity in the former as in the latter case, for there is a greater presumption that a claim is just which has received the sanction and judgment of the probate court, than one that has not; and for that reason the judgment of the probate court may be held to be prima facie evidence of the validity of the demand. But the terms of the statute are broad, and give him as much right to contest the one as the other. It may be said, that the creditor is not a party to the proceeding on the application to sell the real estate to pay his debt, and is not called upon to appear there to establish his claim, and the administrator may not have the means of doing so. That is true; and it is as just and proper to hold that the creditor is not bound by the defense which has been set up by the heir in a proceeding to which he was not a party, as it is to hold that the heir was not bound by the judgment in favor of the creditor, which was established in the absence of the heir, but it is no more so. The creditor not being concluded in his absence by the decision of the circuit court, refusing to allow his claim on the application of the administrator to sell the real estate of the heir, he has, if he thinks he can establish the validity of his claim, but to sue the heir at law, and thus raise the question directly between the parties immediately interested, and, if he can obtain a judgment against the heir, subject the lands which have descended to him to sale for its satisfaction. Thus, all parties have an opportunity of being fairly heard.
I have found no case in point, establishing a contrary rule. It is true the books • are full of cases holding that privies as well as parties are concluded by the judgment of a court of competent jurisdiction, but none holding that, under a statute like ours, the heir is a party to a judgment against the administrator. Did the statute authorize the land to be sold under such a judgment, its effect would be very different.
But authorities are not wanting of the highest character directly upon the point. I shall only refer to the case of Garnett v. Macon, 6 Call. 308. Chief Justice Marshall in that case said: “ The defendants insist that the decree against the personal representative of George Brooks, is conclusive evidence against the devisee of the existence of the debt.
“ The cases cited by counsel in support of this proposition do not decide the very point. Not one of them brings directly into question the conclusiveness of a judgment against the executor in a suit against the heir or devisee. They undoubtedly show that the executor completely represents the testator as the legal owner of his personal property for the payment of his debts in the first instance, and is consequently the proper person to contest the claims of his creditors. Yet there are strong reasons for denying the conclusiveness of a judgment against an executor in an action against the heir. He is not a party to the suit, cannot controvert the testimony, adduce evidence in opposition to the claim, or appeal from the judgment. In case of a deficiency of assets, the executor may feel no interest in defending the suit, and may not choose to incur the trouble or expense attendant on a laborious investigation of the claim. It would seem unreasonable that the heir who does not claim under the executor, should be estopped by a judgment against him.
“ In the case of Munford’s heirs in this court, the question was decided against the conclusiveness of such a judgment, and I am not satisfied that the decision was erroneous.
“ This case, however, varies from that in a material circumstance. In that case, however, the heir was bound by the obligation of his ancestor, and was liable to the creditor directly. In this case, the creditor is bound to proceed against the executor, and to exhaust the personal estate before the lands become liable to his claim. The heir as devisee may, indeed, in a court of chancery be united with the executor in the same action, but the decree against him would be dependent on the insufficiency of the personal estate. Since, then, the proceeding against the executor is in substance the foundation of the proceeding against the heir as devisee, the argument for considering it as prima facie evidence may be irresistible, but I cannot consider it as an estoppel. The judgment not being against the person representing the land, ought, I think, on the general principle which applies to give records in evidence, to be re-examinable, where brought to bear upon the proprietor of the land.”
We are willing to hold, with this case, that the judgment against the administrator is prima facie evidence of the existence of the debt against the estate as against the heir, but further than this, we cannot, with our view of the intention of the legislature and the rights of the heir, feel authorized to extend it. If he can show, as he offered to do, that the claims were unjust, and that not one cent was legally due upon them from his ancestor, the doors of justice should not be closed against him.
The judgment must be reversed and the cause remanded.
Judgment reversed.