M'Curdy's Appeal

The opinion of the Court was delivered by

Sergeant, J.

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 advancing his owM money to a creditor of the estate, though the creditor himself, in whose place he stands, would have been barred if he had stood by for that length of time, and neglected to comply with the directions of the law. He is, as to liens on the real estate, in no different position from other creditors. The limitation of these liens against the real estate of the decedent has been decided in many cases to have been prescribed as well for the benefit of heirs and devisees, as of purchasers, in order to compel vigilance by creditors in bringing the affairs of the estate to a conclusion, and to secure the real estate against latent and indefinite liens: all of which would be defeated by enabling an administrator to take these debts out of the statute, and let them lie over indefinitely, to be put in force at some distant day, and then selling the real estate in the hands of the heirs to satisfy them. The inconvenience and mischief would be quite as great, whether the administrator owns the claims, or they remain outstanding in the hands of other creditors; and such privilege given to the administrator might be a temptation to him to traffic in the funds of the estate, and to procrastinate the settlemen't of it: whereas one great object of the law, apparent throughout the provisions made in regard to the estates of decedents, is, to obtain their speedy adjustment and distribution, so that the claims of creditors may be discharged, and the heirs, devisees or legatees, be able to know in some reasonable time what is left for them of the property of their ancestor.

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.