afterward drew up the opinion of the Court Although it is true, that by the laws of this Commonwealth the real estate of the debtor is ultimately held liable for the payment of his debts on his decease, yet it is held with several qualifications and restrictions, and will not be applied to the disinheritance of an heir unless it becomes necessary upon the failure of other assets first liable in due course of administration. And it has been often decided, that application for a license to sell real estate to enable the administrator to pay debts, is an application to the discretion of the court, to be decided upon equitable principles, regard being had to all the circumstances of the case. Scott v. Hancock, 13 Mass. R. 162; Ex parte Allen, 15 Mass. R. 58. Where the creditors, through their own laches, have failed to obtain payment of their debts, out of funds first applicable to that object, such license ought not to be granted to the injury of the heir.

It appears that S. Livermore made a will, valid by the laws of Louisiana, but not valid to pass real estate by the laws of this Commonwealth, and although in general the legal effect of a will is to be adjudged according to the law of the domicil of the testator, and the place where it is made, yet the passing of real estate, in another jurisdiction, is an exception. That depends upon another general principle", that real estate must be conveyed and transferred, according to the law of the place where it is situated. Several of the sisters, who now claim the estate in this Commonwealth, as heirs at law, would have taken the same estate as devisees, had the *119<nl. been executed in the manner required by the laws of this Commonwealth to pass real estate. And although this cannot be taken into consideration in deciding their legal rights, it adds something to the strength of their equitable claims.

The first and appropriate fund for the payment of debts, is, the general assets in the State of Louisiana, where the principal administration and settlement of the estate took place, consisting of the personal estate, and the proceeds of real estate, ordered to be sold for that purpose, in the ordinary course of administration. That these were more than sufficient for the payment of all the debts, is manifest from the facts agreed, that a considerable amount of legacies have been paid by the executors, which could only have been done after payment of debts. In all the States of the United States it must be presumed, that all debts, as well those due to citizens of other States, as those due to citizens of the same State, are to be paid out of the general assets, before they can be applied to the payment of legacies. Indeed the constitution of the United States guaranties to citizens of each State, the rights and privileges of citizens in all the States, amongst which may be reckoned, that of proving claims and recovering debts, against a deceased person, in due course of administration. Where there is an ample fund provided for the payment of debts, in another State, to which, for aught that appears, the creditors could resort and obtain payment of their debts, no license ought to be granted to sell real estate in this Commonwealth, and thus disinherit the heirs ; at least until it is shown, that the creditors have used some diligence to collect their debts, in the foreign State, and have met with some legal impediment in obtaining them.

But in the present case, the petitioner, who has taken administration in this Commonwealth, was himself the principal executor of the will, in Louisiana, and had the control of the general assets, and in his capacity of tutor or guardian of his children, has received a large amount for them, as residuary legatees under the will. If these debts were seasonably made known to him and satisfactorily proved, before the settlement of the estate was closed, and before be took the residuum bv way of legacy to his children, then he should have paid the debts out of that fund ; if they were not made known to him, *120it is proof of laches in the creditors. We are of opinion, therefore, that the petitioner, whether he be regarded in this matter as acting officially in his own right, or as trustee for the creditors, is not entitled to have a license to sell the real estate in this Commonwealth. The effect would be to disinherit the heirs at law in this Commonwealth and enlarge the residuary legacy under the will in favor of the petitioner’s children ; and that in favor of creditors, who have another and appropriate fund for the payment of the debts, or have lost it by their own laches. The representation, of insolvency can make no difference, because the case finds, that the estate was not in fact insolvent.

Decree of the Court of Probate, granting the license prayed for, reversed.