majority"> Pearson, C. J.

By the common law, the heir is bound for no undertaking er debt of his ancestor, except covenants real, warranties, and debts charged on the land by deed ; hence, the old form, “ For the payment of which I hereby bind myself and my heirs.”

The personal estate is the primary fund for the payment ■of debts. An heir who paid a specialty debt, i. e. a bond in which he is expressly charged, had relief in equity, by which to be subrogated to the rights of a creditor, who had forced him to pay a debt, and have compensation out of the personal estate. This doctrine is treated of in the books under the head of Marshaling Assets.

By the statutes of this State, the land of deceased debtors is made liable for all of the debts as a secondary fund, in case the debt cannot be made out of the personal estate, and the real representative is allowed to make up a collateral issue with the personal representative, by which to put upon him, if he applies for license to sell the land for the payment of debts, or upon the creditors if they seek to charge the land, because of the default of the personal representative in failing to apply for license to sell the land, the onus of showing that all of the personal property is needed for the payment •of debts, and will not he enough, so as to show that it is necessary to resort to the secondary in aid of the primary fund.

The administrator delivered the slaves to the distributees, taking refunding bonds as required by the statute; the distributees kept the slaves until emancipation. His Honor was of opinion, that the distributees could be charged on the refunding bonds for the value of the slaves, and consequently *319 that the land could not be reached until that fund is accounted for. We think the distributees do account for the slaves, by the fact of their civil death, and that this saves the condition of the refunding bonds,

The refunding bond has this condition, “ he will refund and pay his ratable part of such debt out of the part or share allottedTo him.” ' Rev. Code, ch. 46, sec. 24.

In reply to a sci. fa., to show cause why execution shall not issue against him for his ratiable part of a debt, the distributee alleges that the share allotted to him, to-wit: the slaves, has been lost by civil death, emancipation, without default on his part. This is good cause, and accounts for the slaves very satisfactorily; for it was the debt of the intestate, and never was the debt of the distributee, except in respect to the property which is lost, without a devastavit on. his part.

Suppose a judgment against an administrator fixing him with assets, by reason of a slave, the property of the intestate, in his hands to be administered. Judgment “ de bonis intestatris.” Execution returned “ no goods of the intestate to be found.” Sci. fa. or debt suggesting devastavit, to charge the administrator “ de bonis propriis;” he alleges the death of the slave after the judgment without default in him: This is a good cause. Upon a strict analogy it follows that a distributee, who is bound to refund a ratable part of a debt out of the slave allotted to him, is not bound de bonis proprius in the first instance, for it is not his debt except in respect to the property allotted to him; by selling the property he makes a ratable part of the debt his own, and is chargeable de bonis proprius, but if the property dies a natural or civil death before he is fixed by judgment, the condition of his bond is saved.

We concur with his Honor in the opinion that the administrator is not liable. We think the parties to the refunding bonds are not liable; and our conclusion is, that *320 the primary fund being accounted for, the debt stands as a charge upon the land in the hands of the heirs.

In respect to the shares of the femes covert that have been converted by sale, the husbands are chargeable with a pro rata contribution, unless the purchase money is secured for the separate use Of the femes covert, in which event the fund will be charged.

Judgment below reversed. This opinion will be certified, to the end that judgment may be entered in the Court below, fixing the contribution and other matters of detail.

It is clear that under the old system our case would have béen the subject for an original bill to marshal the assets, &c. In no point of view can it be treated as a fit subject for a “ special proceeding ” before a Judge of Probate for license to sell land to pay debts.

Per Curiam.

Judgment reversed.

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