We are unanimous in this opinion, although it involves a very great hardship. This estate belonged to a party who died pending a suit against him in a court of law, and the law steps in and says that the suit shall not abate, but survive, and directs that the administrator shall be made a party to it, and the suit proceed to judgment. In the meantime the heirs assert their estate in *258the real property of the deceased, as they have a right to do, subject to the incumbrances and the indebtedness of the intestate. At the same time the plaintiff proceeds to judgment, and gets it — a judgment, which if it had preceded the death of the party twenty-four hours would have been a lien -upon all this real property. But inasmuch as the defendant did not live to the end, instead of the right of action surviving, it really only partially survives, that is to say you have the interposition of a statute which says that a judgment against an administrator shall only go into effect against the personal assets of the intestate. It seems to me this is a solecism in legal remedies. First, the law declares that a party’s rights shall not be forfeited by death, but shall survive, and they do survive, but they do not take effect on the substance of the defendant. In the meantime the heirs, who derive, all their estate through and in subordination to the claims of the defendant in judgment, take possession of the substance and leave the cast-off shoes of the estate to the creditor. Now, that is reversing the general proposition that inheritors of property take it ewn onere; under this statute they take it absolved, absolved of debts created by the intestate, debts that are anchored in the substance and created on the faith of the property of the party. Still, I do not know how we can fender any other decision in this case under the light of authority as it exists, than the decision which has just been pronounced. I have been, myself, fighting this incongruity earnestly, in the interest of sensible construction, but I cannot escape the duty of uniting in this opinion under the circumstances, for the express authority is that this judgment under no circumstances takes effect on other than personal assets of the deceased. That is the line of authority beyond question, and especially in this jurisdiction. But in establishing that line of authority, both in legislation and upon the bench, evidently the protraction of the right of survival of the action, with all its energies, in the execution which is to issue on the judgment has been overlooked, or to that extent it does not survive; it is merely protracted to hunt after the per*259sonalty of the deceased. It is a fraud, legal, not judicial, for it comes from the law makers; the judiciary have nothing to do with it. It is dogmatically provided by the legislative authority that you shall only have judgment against the personal assets of the decedent as against an administrator, and under the language of the statute I do not know how the courts can decide other than they have done.

While I give my assent to the decision which has been announced, I must acknowledge that I sympathize with almost every expression that the Chief Justice has just uttered.. I think this case demonstrates that there should be exceptions made to a general principle of law which, as a general principle, may be very proper in its application, since no general principle can exist without inflicting, in special instances, great inconvenience, and, perhaps, apparent injustice. This, I think, is one of those, cases, and that is the reason why I am in accord with the views expressed by the Chief Justice.

As has been stated,-the action in this case was commenced in the lifetime of the ancestor, and he' died before it was perfected in judgment. Of course, the general principle comes in that a judgment, against the administration is not evidence against the heirs. But we all know, and all concede, that that was a personal action, and that the heirs are .interested in the personalty as much as in the real estate, and why they should be considered as being represented by the administrator in relation to one kind of property.and not in relation to the other kind of property, appears to be a mere figment of the brain. But such is the law.

If the action had been commenced against the administrator instead of against the party himself, there might be less objection to the denial of justice. But that was not the case. This young woman commenced her suit before the statute had run against it, and she did all she could to get judgment against the man who, unfortunately for himself as well as for this woman, died.

Another special circumstance in this case which ought to *260make it an exception to the application of the rule, if that were possible — and I certainly would make an exception.on that ground if I could — is the fact that a creditor commenced his suit upon his claim. The court took possession of that suit, pronounced a decree for the sale of this real estate, sold it, took the proceeds into its possession in the form of personal property, and just at this stage of the proceeding, this woman comes in with her petition for the purpose of sharing in the distribution of that personal property. But the law steps in again with its general principle, and says that although it has been converted into personal property, in contemplation of law, it is still real estate and must go 'to the heirs. So that this party who has prosecuted her claim throughout as well as she could, has been, by circumstances, swindled out of her claim. I wish that the Chief-Justice and myself could make an exception to these general principles and take hold of this case by main strength, but I do not see how we can do it.

delivered the opinion of the court. After making the foregoing statement of the case, he proceeded:

It should be remarked here that there is an irregularity in the form in which the auditor has made his report. He files alternative statements of account, but does not adopt either as his report. The, proper way is for him to decide which statement is correct and adopt that, and allow it to be excepted to. That is, however, not rei-y material.

The whole question turns on the defence of the Statute of Limitations to this claim of Daisy F. Oasparis. The law upon the subject is found in the act of assembly of Maryland of 1729 and the additional one of 1798, the testamentary act. The first provides, that—

“ All actions upon administration and testamentary bonds shall be commenced within twelve years after the passing of the said bonds, and not alter.”

Gi-uardians’ bonds are put on the same footing by the act of 1798. Then there is this provision in the same act of 1729 :

“Nothing in this act shall be construed to bar any person *255within the age of twenty-one years, feme covert, non compos mentis, or imprisoned, or persons heyond seas, from bringing an action or actions within six years after their coming to or being of full age, uncovert, sound memory, at large, or returned from beyond seas, upon any administration or testamentary bond.”

• The bond in this case is dated April 20th, 1869, and the present suit was commenced July 28,1882, which was nearly thirteen years after the date of the bond, or “after the passing” of the bond, in the words of the act of assembly. On the face of it it would appear to be barred by the Statute of Limitations. There is a question as to the date of the birth of this petitioner, and whether she does not come within the exception of persons under age. It is claimed, on her part, that she was horn in the autumn of 1854, and by the defence it is claimed sir; was born in September, 1858. If the former were true, then the suit was brought within the time, because the six years would not have elapsed after she became of age. But we are satisfied that the weight of testimony shows very clearly that her birth was in 1853, so that she came of age on the 28th of September, 18'T4. She then had not only six years, but seven years after she became of age for the institution of this suit, before the twelve years of the life of this bond had expired. So that this exception does not avail her anything.

The petition of Daisy F. Casparis proceeds upon the theory that she had recovered a judgment, and that that judgment is her cause of action; that the judgment is good against the real estate, the real assets, as well as against the administrator. But it is perfectly well settled in this jurisdiction, by the Court of Appeals of the State of Maryland, and by a decision of this court, in Keefe vs. Malone, 3 Mac Arthur, 236, and, above all, by a decison of the Supreme Court of the United States, in the case of Ingle vs. Jones, 9 Wallace, 495, that a judgment recovered against the administrator is not even prima facie evidence against the heir-at-law, but the plaintiff must commence de novo against the heir upon his or her original cause of action, as if no suit had been instituted against the *256administrator. Not only that, but the heirs-at-law are at liberty to make any defence that any one else could make to such new suit, and, among others, the defence of the Statute of Limitations. It, therefore, seems to us very plain that the defence of limitations must be sustained.

Another point made on the part of the petitioner is that these assets ought to be marshalled; that is to say, that inasmuch as she has no recourse against the real assets, and the other complainants have against both personal and real, the latter ought to be excluded from participation in the personal assets, and these should he applied to her claim, and the other creditors thrown on the proceeds of the real estate. The rule undoubtedly is that if one creditor has a lien upon, or has a resort to, two different funds belonging to the debtor, and another one may only resort to one of them, the law, in order to save the latter, will throw the creditor having the larger and more ample remedy on the fund not common to both, in order to save the other debt. But that hardly applies to a case like this. This is a case in which all the creditors have, at law, a similar recourse to all parts of the debtor’s estate, and one of these creditors lost it by her own laches. That is, she had as much right as these other claimants to proceed against the real assets, but failed to bring her suit in time. We never have known a case where the law marshalling assets applied to a case like that, and the contrary is laid down by the Lord Chancellor, in 10 Hare’s Reports, 229, in the following language :

“It is said next, that under the doctrine of marshalling, the right of the plaintiffs must be considered to subsist for the period of twenty years; and Vickers vs. Oliver and Gibbs vs. Ogier are relied on upon that point. But upon examining the case of Vickers vs. Oliver, it will, I think, he found that the judgment does not at all bear out the marginal note as to the simple contract creditor not being barred by the lapse of less than twenty years; and in Basby vs. Seymour (1 J. & L., 527), that case seems to me to be referred to the true ground on which by the judgment it was rested. And with reference to the case of Gibbs vs. Ougier, it goes *257no further than to decide that the court will marshal the assets, although the right to marshal may not be distinctly raised by the pleadings; it does not at all affect the question which arises in the present case, whether the court will do so at the instance of a plaintiff whose immediate right against the real estate is barred by the Statute of Limitations. I can find no authority which goes to that extent. Simple contract creditors have now a direct right against the real estate in case of a deficiency of the personal. They do not require the aid of this court to marshal the- assets in order to give them a remedy against the real estate; and for whatever purpose the doctrine of marshalling may be necessary to be kept on foot, I do not think that it ought to be kept alive for the purpose of giving indirectly a right which could not be asserted directly. The consequence would be that, in all cases where there are any specialty debts, the simple contract creditors would be entitled to sue the real estate at any time within which the specialty creditors could have sued; in effect, to create in equity the same limitations as‘to simple contract debts as the statute has prescribed as to specialties.”

It does not seem, therefore, that, the doctrine of marshalling could apply to this case, and we must, therefore, sustain the exceptions of the defendant to the alternative statement made by the auditor in which the claim of this petitioner is allowed, and overrule the exception of the petitioner to the other alternative statement from which it is excluded. The case was certified to be heard here in the first instance, and the order will have to be drawn in that form.