By the Court.

delivering the opinion.

Morton Bledsoe died in 1845, leaving a considerable estate, real and personal; a widow, whom he constituted his executrix, and fourteen children. By his will, his children were to be raised until the youngest male child attained the age of fifteen, at which time his property was to be distributed between them.

Being a debtor to one Dyer, with Gustavus Hendrick and Dr. Charles Bailey as his securities, he executed a mortgage to his securities, for their indemnity. He made some payments upon this debt in his lifetime; and had gone so far as to make a note to raise the balance of the money to pay this mortgage debt before he died. This note, however, was not negotiated, but was left in his possession at the time of his death. It is probable that James M. Bledsoe, the plaintiff in error, was security upon this paper, although the fact does not distinctly appear. After the death of Morton Bledsoe, the money was raised on this noie by James M. Bledsoe, with which the mortgage was paid off and taken up.

It seems that the estate was under some other liability, actuad or threatened, and James M. Bledsoe entered into an *390arrangement with Mary Bledsoe, the widow, and executrix, to sell the property in such a way as would cause it to bring little or nothing; it was to be bought in by James M. Bledsoe, and placed back into the possession of Mrs. Bledsoe, to carry out the purposes of the will; that is, to make distribution of it amongst the children.

The negroes were sold under the mortgage, taken up by James M. BJedsoe, and kept open by him, at a nominal price, and the proceeds credited on the mortgage; and two-tracts of land were sold by the widow as executrix, for the benefit of the heirs, under the encumbrance of the mortgage; one of which was bid in by James M. Bledsoe; and the other by one Elijah Bailey, the brother-in-law of Morton Bledsoe, and who participated in carrying out the arrangement entered into by Mary Bledsoe, and James M. Bledsoe. The property was returned to Mrs. Bledsoe, and James M. Bledsoe overseed it the first year, at a salary of $300. After this, James M. Bledsoe repudiated the whole transaction, setting up title in himself, both to the land and negroes.

Mary Bledsoe died in 1845, insolvent, and her estate is unrepresented ; and the legatees have filed their bill against James M. Bledsoe, and one Wilson, who intermarried with the widow and only heir at law of Elijah Bailey, to recover •the whole of the property except one share, with a view to its division amongst themselves, according to the will of their father. A general demurrer for want of equity, is filed to the bill; but the only ground relied on is, that the complainants are not entitled to sue for the property in their own trame; and that it can only be recovered by an administrator, de bonis non, upon the estate of Morton Bledsoe. ■

Had the bill alleged, that there were no outstanding debts against the estate of Morton Bledsoe, there can be no doubt, we apprehend, but that the bill would be maintainable. How stands the matter upon the facts as stated in the bill ? Ten years elapsed from the death of the testator to the death *391of the executrix. Had there been unpaid demands, it might he fairly inferred, that some attempt would have been made to enforce them within that time. But concede that there are debts still unsatisfied, will the defendant or creditors be prejudiced by this proceeding ?

The defendant by his answer, can bring to the knowledge of the Court, outstanding claims, if there be any. And the decree will be so framed as to protect him. The creditors, if there be any, can sue James M. Bledsoe, as executor de son tort, interplead, pending the present proceeding; or failing to do either, they can follow, the estate, into the hands of the legatees, even after a division, and compel them to contribute to the payment of their demands.

Fourteen years have elapsed since the death of Morton Bledsoe; the youngest child is eighteen years old; the property was sold for the benefit of the complainants ; the assent of the executrix to the vesting of these legacies, will be presumed from all the circumstances of this case. The whole transaction amounts to this. Surely the legatees are entitled to sue. Why not?. The creditors have stood by all this time with their arms folded; they could have administered. If they should be put to some inconvenience, which there is no reason to apprehend, they would have no cause to complain.

Judgment affirmed.