Williamson's Appeal

A judgment against the heirs and administrator is not a lien indefinite in its duration, as is a judgment recovered against the decedent in his life time, hut it remains a lien upon the lands of the decedent for only five years from the date of its entry. The judgment against the heirs is de terris only, and, unless properly revived, cannot, on distribution, be paid out of the shares of the heirs in the proceeds of the real estate. It seems that an order of the orphans’ court for the sale of lands to pay the debts of a decedent does not operate as a toll of the statute of limitations as to the debts scheduled.

Appeal, No. 206, Jan. T. 1888, from a decree of the O. C. of Delaware Go., dismissing exceptions to the report of an auditor, distributing the proceeds of an orphans’ court sale of real estate to pay debts, at Sept. T. 1874. G-reen and Clark, JJ., absent. The following facts appeared from the papers and records offered in evidence and from the report of the auditor, W. Boss Brown, Esq.: The decedent, William Gray, died on June 10, 1874, intestate, seized of a farm in Delaware county. Letters of administration were originally granted on the estate of the decedent to James Dunwoody and Beece Pyott on July 16, 1874. On Sept. 28, 1874, the administrators made application to the orphans’ court for an order to sell the real estate of the decedent for the payment of debts, and an order for the sale of the real estate was made on the same day. On Nov. 27,1874, the administrators returned “ no sale.” No further order was applied for or issued until April 6, 1885, when an alias order was issued to Henry C. Howard, Esq., to whom'letters de bonis non had been granted, on April 4,1885, the former administrators both having died in the interim. Among the debts of decedent, scheduled by the administrators in the original application for an order of sale, was a note of $90.00 to George M. Hunter, dated February 12, 1867. On April 18, 1878, Hunter brought suit on this note in the common pleas of Delaware county, against the then surviving administrator, James Dunwoody, and recovered judgment on May 20, 1878, for $140.00 and costs. On Nov. 19, 1878, a writ of sci. fa. to charge real estate was issued on this judgment in which Janies Dunwoody, administrator of William Gray, deceased, and Bobert Gray and Bebecca G. Tyler, heirs of said decedent, were named as defendants; to which the sheriff returned served on James Dunwoody and Bobert Gray, and nihil habet as to Bebecca Tyler. On Dec. 9,1878, an alias sci. fa. issued, naming the same parties as defendants, to which the sheriff made the same return, and upon which judgment was entered against the defendants, for want of an appearance, on Jan. 15, 1879, and damages assessed at the sum of $145.49. The real estate of decedent was sold under the order of April 6, 1885. At the audit, a claim was made for the’ payment of the judgment of Jan. 15,1879, out of the funds. The auditor disallowed the claim. Exceptions to the auditor’s report were dismissed by the court, in an opinion, reported in 3 Del. Oo. B. 325, by Clayton, P. J. Pending these proceedings, Hunter died, and letters testamentary were granted to Williamson. The assignments of error specified the action of the court, 1, in confirming the report of the auditor, and decreeing distribution in accordance therewith; 2, in awarding any part of the fund for distribution to the heirs of William Gray, deceased, until all his just, 'and legal debts had been paid out of the same; 3, in not awarding to the appellant the amount of the judgment of Jan. .15, 1879.