have also been given against devisees, by statutes. But the remedy in effect is rather against the lands of the obligor, in the hands of the heir, than against the person of the heir; and it cannot be extended beyond the value of the assets descended, unless the heir, by neglecting to show the certainty of them, should render himself personally liable.1 For if he should plead that he has nothing by descent, and the jury should find that he has anything, however small in amount, the plea will be falsified, and the plaintiff will be entitled to a general judgment for his entire debt; whereas if he should confess the debt, and show the amount of the assets in his hands, he will be answerable only

to this amount.2

§ 357. Estate a trust fund. In the United States, the entire property of the deceased, real as well as personal, constitutes a trust fund for the payment of his debts. The modes in which this trust is carried into effect are various, and are usually prescribed by statutes, but in some States the forms of remedy are left at common law. The general feature, that the personalty must first be resorted to, is uniformly preserved; and in several of the States, the executor or administrator is empowered by license from the courts, after exhausting the personal assets, to enter upon and sell the real estate, whether devised or not, to an amount sufficient to discharge the debts. Ordinarily, therefore, in the first instance, the creditor must resort to the personal representative, and not to the heir, for the payment of the debt; unless the cause of action, as in the case of a covenant of warranty, not previously broken, did not accrue until all remedy against the executor or administrator was barred by the statute of limitations.3 (a)

12 Saund. 7 n. (4), by Williams.

2 Ibid.; Plowd. 440; 2 Roll. Abr. 71; Buckley v. Nightingale, 1 Stra. 665. The plea of non est factum, if found against the heir, is not such a false plea as will render him liable de bonis propriis. 2 Saund. 7, n. (4); Jackson v. Rosevelt, 13 Johns. 97.

8 4 Kent, Comm. 421, 422; Hutchinson v. Stiles, 3 N. H. 404; Webber v. Webber, 6 Greenl. 127; Royce v. Burrell, 12 Mass. 395; Hall v. Bumstead, 20 Pick. 2; Roe v. Swazey, 10 Barb. 247.

(a) It has been decided in some States that in an action of this sort brought against an heir there should be proof that the estate of the deceased has been settled in the Probate Court. Grow v. Dobbins, 128 Mass. 271; Woodfin v. Anderson, 2 Tenn. Ch. 331.

that it is enough to prove that the personal assets are insufficient to pay the debts. Blossom v. Hatfield, 24 Hun (N. Y.), 275; Laughlin v. Heer, 89 Ill. 119; McLean v. McBean, 74 Ill. 134; Hinton v. Whitehurst, 71 N. C. 66.

The heir is not liable for debts conBut the more general rule seems to be tracted by the administrator of the an.

§ 358. Sale of land by executor. Wherever the executor or administrator, by the statutes alluded to, is authorized to apply to the courts for leave to sell the land of the deceased, for the payment of his debts, the heir takes the land subject to that right and contingency; and when the land is thus sold, the title of the heir is defeated, and he has nothing by descent, and may well plead this plea in bar of an action, brought against him by a creditor, upon the bond of his ancestor.1 (a)

§ 359. Plea of riens per descent. The plea of riens per descent admits the obligation; but the proof of assets is incumbent on the plaintiff. And the substance of this issue is, whether the defendant had assets or not. The place, therefore, is not material to be proved; nor is it material whether the land was devised by the ancestor, or not, nor whether it was charged with the payment of debts or legacies, or not, provided the heir takes the same estate which would have descended to him without the will, its nature

1 Covel v. Weston, 20 Johns. 414. And see Gibson v. Farley, 16 Mass. 280.

cestor, in the course of administration. Allen v. Poole, 54 Miss. 323.

When the action is against the heir, to subject lands descended to him, to debts of the ancestor, a previous judgment on suit brought against the executor by the heir on the same cause of action is not evidence against the heir. Lehman v. Bradley, 62 Åla. 31.

As between the creditors of the ancestor and the creditors of the heir, it has been held that when the heir to whom lands have descended becomes insolvent, his creditors can only take what surplus remains after his liability for debts of the ancestor has been satisfied up to the value of the land descended. Ryan v. McLeod, 32 Gratt. (Va.) 367. If the heir has aliened the lands he is liable for their value, that is, their value at the time he received them; and he is not liable for rents and profits, nor for increased value arising from improvements which he has made on the land, neither can he deduct anything for repairs. Fredericks v. Isenman, 41 N. J. L. 212; Hopkins v. Ladd, 12 R. I. 279. In any event the heir is only liable to the extent of the value of the property which has come to him from the ancestor. Branger v. Lacy, 82 Ill. 91; Williams v. Erving, 31 Ark. 229; Sauer v. Griffin, 67 Mo. 654. In Arkansas it is said that no action at law will lie against an heir, for his ancestor's debt, but the

(a) The heir is entitled to the rents and profits of the land till the sale, and is not accountable for them to the creditors of his ancestor. Draper v. Barnes, 12 R. I. 156; Hopkins v. Ladd, id. 279; Fredericks v. Isenman, 41 N. J. L. 212; Harrington v. Barfield, 30 La. An. Pt. II. 1297. Where the land of one deceased is taken for a railroad, the heir, and not the administrator, is entitled to the damages for such taking, and to prosecute for the recovery thereof, although the administrator has previously represented the estate to be insolvent, and afterwards obtains a license to sell the intestate's real estate for the payment of debts. Boynton v. Peterboro', &c. Ry. Co., 4 Cush. (Mass.) 467. The case was this: Oliver Page died intestate, seised of real estate, leaving one daughter, his heir-at-law. His whole real and personal estate was insufficient to pay his debts. His administrator obtained a license to sell the real estate. After the death of the intestate, but before the license was obtained, the railroad corporation filed the location of their road, by which a part of said real estate was taken for the railroad. The question was, whether the heir or the administrator should have the damages for the land thus taken; and the court held, that, as the right to damages for land taken for

and quality not being altered by the devise.1 (a) But it is material for the plaintiff, where he declares against the defendant as the immediate heir of the obligor, to show that the assets came to the defendant as heir of the obligor, and not of another person. For where the obligor died seised of the lands, leaving issue, and the issue died without issue, whereupon the lands descended to the defendant as heir, not of the obligor, but of the obligor's son, the plea of riens per descent directly from the obligor was held maintained. And where the ancestor of the obligor died seised of a reversion expectant on a lease for years, leaving the obligor his heir, but no rent was paid to the obligor, the lands being supposed to have passed to a stranger by devise from the ancestor; yet it was held, that the possession of the tenant was in law the possession of the heir, and so the obligor was seised in fact, and the land became assets in the hands of his heir, whose plea of riens per descent from the obligor was therefore falsified. But if the intermediate heir was never seised, his successor in the same line of descent would take as heir to the obligor, who was last seised, and be liable accordingly. Under this plea, by the common law, the heir might show that, prior to the commencement of the suit, he had in good faith aliened the lands; but this has been changed by statute. (b)

§ 360. Assets. In proof of assets, it will be sufficient for the plaintiff to show that the defendant is entitled, as heir, to a reversion in fee after a mortgage or lease for years; or to a reversion expectant upon an estate tail, provided the limitation in tail has expired, and the reversion has vested in possession, in the heir. But a reversion after a mortgage in fee is not assets at law, though

1 Bull. N. P. 175; Allam v. Heber, 2 Stra. 1270.

2 Jenks's Case, Cro. Car. 151; Kellow v. Rowden, 3 Mod. 253; Chappell v. Lee, 3 Mod. 256; Duke v. Spring, 2 Roll. Abr. 709, pl. 62. 8 Bushby v. Dixon, 3 B. & C. 298.

Kellow v. Rowden, 2 Mod. 253; s. c. 1 Show. 244. 5 2 Saund. 7, n. (4), by Williams; Bull. N. P. 175.

public use accrues at the time of taking, and as in the case of railroads that time is prima facie, and in the absence of other proof, the time of filing the location, and as the heir-at-law was seised and possessed of the estate taken at the time of the taking, subject only to be defeated by a sale, not then made, nor authorized and licensed by competent authority to be made, the

VOL. II.

23

heir was entitled to the damages. Ibid. See also Wilson v. Wilson, 13 Barb. (N.Y.) 252; Vansyckle v. Richardson, 13 Ill. 171.

(a) Ellis v. Paige, 7 Cush. (Mass.) 161; Gilpin v. Hollingsworth, 3 Md. 190; Buckley v. Buckley, 11 Barb. (N. Y.) 43.

(b) Ticknor v. Harris, 14 N. H. 272.

it is in equity.1 A reversion expectant upon an estate for life is also assets; but it must be pleaded specially.2 (a)

§ 361. Same subject. Whether lands lying in a foreign state or country can be regarded as assets, so as to charge the heir is a point not perfectly clear. In one American case it has been decided that they were not. No reasons were given for the decision; but cogent arguments were urged by the learned counsel for the creditor, showing that upon principle, as well as by analogy of law, the heir was chargeable.3 (b)

1 2 Saund. 7, n. (4), by Williams; Plunkett v. Penson, 2 Atk. 294; Bushby v. Dixon, 3 B. & C. 298.

2 Bull. N. P. 176; Kellow v. Rowden, 3 Mod. 253; s. c. Carth. 126; Anon., Dyer, 373 (b).

8 Austin v. Gage, 9 Mass. 395. See Dowdale's Case, 6 Co. 46; Covell v. Weston, 20 Johns. 414. The reference in 1 Vern. 419, to Evans v. Ascough, Latch, 234, that lands in Ireland were assets against the heir in England, but that lands in Scotland were not, is erroneous; no such point being mentioned in that case, which was only a question of chancery jurisdiction. The mistake has arisen from a misprint of and for as.

(a) Where a person makes a deed which conveys no estate, the land descends to his heir, who takes it unconditionally, and he is not obliged to restore the consideration received by his ancestor. Flanders v. Davis, 19 N. H. 139.

(b) Where land in Ohio descended to a

resident in Kentucky, and it did not ap

pear that by the laws of Ohio a descent of lands to an heir were assets which rendered him liable to the debts of his ancestor, the heir was held not to be liable to a creditor of his ancestor for the lands so descended as assets. Brown v. Brashford, 11 B. Mon. (Ky.) 67.

INFANCY.

§ 362. Infancy a personal privilege. Infancy is a personal privilege or exception, to be taken advantage of only by the person himself; and the burden of proof rests on him alone, even though the issue is upon a ratification of his contract, after he came of age. The trial by common law is either upon inspection by the court, or, in the ordinary manner of other facts, by the jury; but in the United States the latter course only is practised.2

§ 363. Proof of age. The fact of the party's age may be proved by the testimony of persons acquainted with him from his birth; or, by proof of his own admissions; for these are receivable, even in criminal cases, the infant being regarded as competent to confess the truth in fact, though he may lack sufficient discretion to make a valid contract.3 (a) An entry of his baptism in the register is not of itself proof of his age; but if it is shown to have been made on the information of the parents, or others similarly interested, it may be admitted as a declaration by them; and in the ecclesiastical courts, it is strong adminicular evidence of minority.* If the action is against the acceptor of a bill, the defendant upon the issue of infancy must distinctly prove not only his real age, but also the day on which he accepted the bill; unless he is proved to have been under age at the commencement of the action; for otherwise it does not appear that he was an infant at the time he entered into the contract, the date of the bill not being even presumptive evidence of the time of acceptance.5

1 Borthwick v. Carruthers, 1 T. R. 648; Leader v. Barry, 1 Esp. 253; Jeune v. Ward, 2 Stark. 326.

2 Silver v. Shelback, 1 Dall. 165.

Haile v. Lillie, 3 Hill (N. Y.), 149; McCoon v. Smith, Id. 147; Mather v. Clark, 2 Aikens, 209. But his admissions should be weighed cautiously, with reference to his age and understanding. State v. Guild, 5 Halst. 163, 189, 190.

4 Wihen v. Law, 3 Stark. 63; Burghart v. Angerstein, 6 C. & P. 690; Agg v. Davies, 2 Phil. 345; Jeune v. Ward, 2 Stark. 326; Rex v. Clapham, 4 C. & P. 29. In the United States, where births are required by law to be recorded, a copy of the record is usually received as sufficient evidence of the facts it recites, which it was the officer's duty to record.

5 Israel v. Argent, 1 Chitty's Prec. 314, n. (b); Blyth v. Archbold, Id.

(a) O'Neill v. Read, 7 Ir. L. 434.