The act of 1784, ch. xi. was passed to remove doubts, which were entertained whether the real estates of deceased debtors in the hands of their heirs or devisees, should be subject to the payment of debts upon judgments obtainsd against the Executors or Administrators ; and to direct the mode of proceeding in such cases.” It is declared in the 2d section of this, act, “ that in all cases at law', where the Executors or Administrators of any deceased person shall plead fully administered, no assets, or not sufficient to satisfy the plaintiff’s demand, and such plea shall be found in favour of thedefendant, the plaintiff may proceed to ascertain his demand and sign judgment; but before taking out execution against the real estate of the deceased debtor, a writ or writs of scire facias sliall and may *99issue, summoning the respective heirs and devisees of such deceased debtor j to shew cause wliy execution should not issue against the real estatejbr the amount ofsucli judgment, or so much thereof as there may not be personal assets to discharge ; and if judgment shall pass against the heirs or de-visees, or any of them, execution shall and may issue against the real estate of the deceased debtor, in the bauds of such heirs or devisees, against whom judgment shall be given as aforesaid.” — The Legislature intended that the real estates of deceased debtors should not he subject to, the payment of their debts, until the personal estate was exhausted; and the court have no power to award execution against the real estate in the hands of the heirs or devisees, until “ it shall be found upon the plea of the Executors or Administrators, that they have fully administered, have no assets, or not sufficient to satisfy the creditor’s demand.” The judgment, therefore, rendered against the plaintiffs in error was not rendered according to the mode of proceeding directed by the Legislature: it is erroneous and must be reversed.
Cardwell's Heirs v. Brodic, 5 N.C. 97, 1 Mur. 97 (1805)
Cardwell’s Heirs vs. Brodic
—From Hillsborough.
This was a writ oT error brought by the plaintiffs to reverse a judgment recovered against them by defendant in Granville county court'. John Brodic the defendant brought an action of trespass on the case against Mary Executrix of Thomas Cardwell’s will, and the said Execu-7 trix failing to make any defence, Brodic took judgment by default, and damages were assessed upon a writ of enquiry, A Fieri Facias was sued out against the goods and chattels of Thomas Cardwell deceased, in the hands of his Executrix the said Mary, which was returned by the Sheriff to *98November term 1805, of Granville county court, having the sheriff’s indorsement thereon “ that no goods nor chattels of Thomas Cardwell were to be found.” — Brodic then . . . ... suet! out a scire facias agamstthe heirs at law and devisees of Tilomas Cardwell deceased, to shew cause why he should n(i*: have judgment of execution for his debt and costs, against the real estate of the said Thomas Cardwell deceased in the hands of the said heirs and devisees. Upon this scire facias, judgment was rendered in favour of Brodic; and some time afterwards the said heirs and devisees brought a writ of er-' ror to reverse this judgment. They assigned tor error, 1st. that it did not appear from the record and proceedings in the cause, that the Executrix Mary Cardwell had fully administered the estate of her testator, or that she had no assets, or not sufficient to-satisfy the recovery of the defendant in error in the suit brought against her. 2nd. That the jury did not find upon the trial of the said suit, that the said Executrix had fully administered, or had no assets or not sufficient to satisfy the recovery aforesaid. 1 he defendant in error having pleaded that there was no error in the proceedings iu the cause, &c. the case was sent to this court tor the opinion of the Judges.
*97judgment" real estate or a cleceas-«i^ehíorin. the heirs & versed,S’he-that the ex-.. *98tcutvix liad full}-admin-isicicd, had n'not suffi-°r 0,t?sfy the*" omiitor’s