The opinion of the Court was delivered by
The administrator, by being creditor, or making himself so in consequence of his advancing money out of his own pocket to pay off the debts due by the intestate, cannot place himself as to the real estate in a better situation than other creditors. They would be barred by suffering seven years, under the former Act of 4th April 1797, sec. 4, (and now by the Act of 24th February 1834, sec. 24, five years), to elapse without pursuing their claims according to the modes prescribed in the Act; and there is the same reason, considered in any point of view, why the limitation should exist as to the administrator. His payment of the debts out of his private funds'is gratuitous; although he has a right, he is not obliged to do it, but may require creditors to proceed according to law to sell the real estate, or may within the limited time have it done for his own payment, under the provision for his benefit contained in the Acts of 1st April 1811, sec. 2, and 20th March 1832, sec. 31. It would be going a great way to hold that the administrator could prolong the lien whenever he saw fit, at his own will and pleasure, by holding back his claim, or by
We are of opinion that the real estate, after the lapse of more than seven years from the decease of the intestate, was freed by the limitation Acts from these claims of the administrator, and that there was no authority to order it to be sold to pay his debts, and that the decree of the court on the petition of Alexander M’Curdy, ordering the sale, should be reversed.
Decree of sale reversed, and the case remitted to be proceeded in.