The decree is erroneous, inasmuch as the real estate sought to be subjected to the demands of the appellees, constitutes an equitable fund, out of which all the creditors of the testator Kinney, are entitled to satisfaction, pari passu; and, among others, the executor Stribling, as standing in the place of the creditors whose claims he has discharged, and appearing to be a creditor to a large amount, unless it shall appear, that since the report of the commissioner, he has been reimbursed in whole or in part, by the receipt of personal assets of his testator. And opportunity should have been given to all the other creditors of the testator, coining in and agreeing to bear their proportions of costs, to prove their debts before the commissioner, within a reasonable time prescribed by the chancellor, and to participate equally of the equitable assets.
Decree reversed.